Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of St. Clair
County, the Hon. Patrick Fleming, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Plaintiff, as administrator of the estate of Constance Hilliard (decedent), instituted this wrongful death action in the circuit court of St. Clair County against defendant, Bi-State Transit Authority, after Constance Hilliard died of injuries sustained when she was struck by defendant's bus. Defendant's driver, Claude E. Leslie, was also originally named as a defendant, but plaintiff dismissed the cause of action as to him prior to the jury trial at which plaintiff obtained a $250,000 verdict. A divided appellate court reversed and remanded for a new trial (102 Ill. App.3d 1210), stating that a question posed by plaintiff's counsel concerning defendant's termination of Claude Leslie's employment constituted a highly prejudicial violation of an in limine order. We subsequently granted plaintiff's petition for leave to appeal.
The accident which resulted in decedent's death occurred at approximately 5:30 p.m. on December 10, 1973, in the 1300 block of East Broadway in East St. Louis. Testimony at trial indicated that darkness had fallen, but that streetlights spaced along the north side of Broadway were lit; it was also undisputed that the headlamps and interior lights on defendant's bus were lit and that the weather was clear, dry and cool. The record additionally establishes that Broadway was a four-lane street in the 1300 block, but that parked cars occupied the two outermost lanes, leaving only two lanes for moving traffic. Marked pedestrian crosswalks were provided at each end of the block, with a third crosswalk located approximately in the middle. Because there was an elementary school located at the west end of the block, at the corner of 13th and Broadway, the speed limit in the area was 20 miles per hour when children were present. Claude Leslie, who had frequently driven that bus route, testified that children were often present at that time of day, and that he considered himself bound by the 20-mile-per-hour speed limit. The evidence also showed that the headlamps and part of the windshield on the right side of the bus were shattered in the accident.
Although some of the facts concerning the accident were undisputed, witnesses differed in their accounts as to the actions of Constance Hilliard, the location of the impact, and the speed of the bus. Willie Lockett, who was unrelated to plaintiff and unacquainted with Constance Hilliard, testified that he was seated in a car parked on the north side of Broadway while waiting for a friend to come out of a store on the south side of Broadway. The mid-block crosswalk was farther down the street to the west of that parked car. He stated that Constance Hilliard, accompanied by a man whom he did not know, emerged from a store on the south side of the street and walked a short distance to the mid-block pedestrian crosswalk. Upon reaching the crosswalk, the man with Constance Hilliard turned back and she began to walk across the street after looking both ways. At that point, Willie Lockett stated that he looked back over his shoulder and spotted defendant's bus approaching. He testified that the bus was traveling at about 35 miles per hour and that Constance Hilliard had nearly crossed the westbound lane when she was struck by the bus. In addition, he stated that the bus came to a stop 30 feet beyond the crosswalk.
Plaintiff also introduced the evidentiary deposition of Glennor Dabbs, a witness who had died prior to the trial. According to Mr. Dabbs, he had met Constance Hilliard as he was entering a shoeshine parlor on South 15th Street late in the afternoon on December 10, 1973, and acceded to her request to walk her partway home. They stopped briefly to warm up in a pool room and again in the Manhattan Club, located in the 1300 block of Broadway. Constance Hilliard lived in the Orr Weathers apartment complex across the street from the Manhattan Club, and when they left the club, Mr. Dabbs walked to the curbside with her. At that point, Mr. Dabbs spotted the bus approaching and said, "Here comes the bus." Although he was holding onto her coat lapel, she pulled away from him and went into the street, and he turned away. Mr. Dabbs further testified that there was no crosswalk at the point where she entered the street. Although he did not actually see her crossing the street, Mr. Dabbs also stated that she must have run in front of the bus, because it had been only 50 yards away when he first saw it, and he heard the impact of the accident only a "split second" after she had left him. After stating that the speed limit was evidently 20 miles per hour and that the bus was not speeding, Mr. Dabbs admitted that he did not actually know what the speed limit was. He also stated, however, that the bus came to a halt immediately after the impact.
Claude Leslie, the bus driver, testified that he stopped at 14th Street to pick up Mrs. Hoffman and that he had only proceeded about 160 feet when the impact occurred. He declared that Mrs. Hilliard "come out of nowhere" and that he did not see her until she had already crossed in front of the bus to the extreme right side, about five inches from the bus. Mr. Leslie stated that the bus was traveling about 15 to 20 miles per hour when it struck her and that he was able to stop within a few inches after she was hit. When asked where the accident occurred in relation to the mid-block pedestrian crosswalk, Mr. Leslie indicated that the bus had not yet reached the crosswalk, which was 60 feet to the west. This response was supported by testimony from additional witnesses which indicated that the accident occurred before the bus reached the mid-block crosswalk.
Plaintiff's original complaint consisted of two counts, charging defendant with negligent misconduct and wilful and wanton misconduct. Following a period of discovery, plaintiff amended the complaint by adding two counts alleging that defendant was guilty of negligent entrustment and wilful and wanton entrustment, and paragraph 6(g) in count II, alleging that defendant was guilty of wilful and wanton misconduct because it allowed Claude Leslie to drive the bus despite its knowledge of his prior "reckless driving and unsafe practices." On defendant's motion, the trial court dismissed counts III and IV on the grounds that they failed to state a cause of action. Although the court denied plaintiff's motion for reconsideration, it did certify for interlocutory appeal the question as to whether count IV was properly dismissed, stating the issue as follows:
"Whether Count IV of Plaintiff's Complaint, alleging in effect willful and wanton entrustment of defendant's vehicle to its driver states a cause of action in a situation in which defendant does not deny agency?"
Plaintiff's motion for an interlocutory appeal was denied by the appellate court.
Prior to trial, the court granted defendant's motion in limine in an order purporting to bar evidence concerning both Claude Leslie's company driving record prior to this accident, which was replete with instances of misconduct, and his employment history with defendant after the accident. While examining James Troupe, who was Claude Leslie's supervisor at the time of the accident, plaintiff's counsel asked when defendant terminated Mr. Leslie's employment. That question was objected to before the witness answered, and the trial court instructed the jury to disregard it. Having determined that the question constituted a non-prejudicial violation of his order in limine, the trial judge denied defendant's immediate motion for mistrial and also denied a post-trial motion for a new trial on that basis. It was this question which formed the basis for the appellate court's remandment. Because the trial took place before this court's decision in Alvis v. Ribar (1981), 85 Ill.2d 1, the court submitted two special interrogatories to the jury in order to determine if Constance Hilliard was guilty of contributory negligence and contributory wilful and wanton misconduct. The jury found her to be contributorily negligent but not guilty of contributory wilful and wanton misconduct, and found defendant guilty of wilful and wanton misconduct.
Plaintiff contends here that the trial court's in limine order was unjustified, and that, in any event, the limitations it purported to impose were too unclear to be enforceable. We agree on both counts.
The erroneous conclusion reached by the appellate court appears to stem from an overly broad application of the limitation adopted by our appellate court pertaining to the cause of action for negligent entrustment. (Neff v. Davenport Packing Co. (1971), 131 Ill. App.2d 791.) Relying on Neff defendant argues that a cause of action for negligent entrustment does not lie where existence of an agency relationship between tortfeasor and principal is not denied. Neff, a pre-Alvis case, is inapposite here. Prior to Alvis v. Ribar (1981), 85 Ill.2d 1, recovery under a negligent-entrustment theory was necessarily premised on an initial finding of negligent conduct by the tortfeasor coupled with nonnegligent behavior on the part of the plaintiff. Because the defendant-principal was only charged with the negligence of the tortfeasor agent, the sole purpose of allowing the cause of action was to create a chain of liability. When the defendant-principal acknowledged his responsibility for the alleged negligence of the tortfeasor-agent, however, no reason existed to allow the plaintiff to introduce proof of the negligence of the defendant-principal in the form of potentially inflammatory evidence concerning the defendant's knowledge of prior misconduct on the part of the tortfeasor.
In cases involving wilful and wanton entrustment, however, the analysis necessarily differs from that of negligent entrustment. Unlike the situation in negligent-entrustment cases, where the misconduct of the defendant-principal is of the same level of culpability as that of the tortfeasor-agent, defendants-principals may be found guilty of wilful and wanton misconduct even though the tortfeasors-agents to whom the instrumentality causing the injury was entrusted may have been only negligent. Furthermore, while contributory negligence by the plaintiffs would, prior to Alvis, bar recovery in actions for negligent entrustment, it would not preclude recovery when the defendants were guilty of wilful and wanton misconduct. Consequently, the necessity of proof of ...