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Homer v. Pabst Brewing Co.

decided: November 18, 1986.

VIRGIL HOMER AND HELEN HOMER, PLAINTIFFS-APPELLEES
v.
PABST BREWING COMPANY, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern district of Illinois, Eastern Division. No. 80 C 4384-Charles R. Norgle, Sr., Judge.

Author: Cummings

Before CUMMINGS, EASTERBROOK, and RIPPLE, Circuit Judges.

CUMMINGS, Circuit Judge

Plaintiffs brought this tort action in diversity alleging that defendant Pabst Brewing Co. ("Pabst") is liable for injuries sustained by Virgil Homer in a car accident involving the defendant's employee, Randall Hendricks. The other plaintiff is Virgil Homer's wife, Helen, and Hendricks was an additional defendant. This case raises the issue of the scope of a duty in a voluntary undertaking. For the reasons discussed below, we conclude that the district court should have granted Pabst's motions for a directed verdict and judgment notwithstanding the verdict. Therefore the judgment of the district court is reversed.

Randall Hendricks worked at Pabst's Peoria Heights, Illinois plant as a brewing supervisor. He worked the night shift from 10:30 p.m. to 6:30 a.m. on June 29-30, 1980. He drove to and from work from his home in Normal, Illinois, a drive of less than one hour. On the night of the accident he arrived at work ill. He had stomach aches and cramps and felt nauseated. Between 10:30 and 11:00 p.m. he began having diarrhea every 15 minutes. Around 2:00 a.m. he went to Pabst's medical department and was seen by a nurse. Evelyn Gilchrist, who was to examine and treat Pabst employees. After he described his symptoms, she gave him Kaopectate and Triaminicin. He took only the Kaopectate. He took a nap on the cot in the medical department and then returned to work at approximately 4:00 a.m.

Gilchrist failed to make certain entries on the department's Daily Register. She did not indicate the severity of Hendricks' symptoms or the medication that she had given him, nor whether he had vomited or rested on the cot. There were two doctors available in case the nurse needed assistance and Pabst had, on occasion, provided sick employees transportation home or to the emergency room. But she did not call the doctors, recommend that he go to the emergency room, warn him against driving at the end of his shift, or tell him not to return to work.

When Hendricks left work at the end of his shift, he was still having the symptoms described earlier. At about 7:00 a.m. while driving home Hendricks lost consciousness and struck a semi-tractor trailer on the south shoulder of the highway. Plaintiff, Virgil Homer, was stepping down from the cab of his trailer when Hendricks' car struck him and the truck. Homer suffered permanent disabling injuries in the accident.

Plaintiffs, Virgil Homer and his wife Helen Homer, initiated this negligence suit against Randall Hendricks in 1980, later amending the complaint to include Pabst as a defendant. Counts IV and V alleged that Pabst breached a duty voluntarily taken to care for its employee, causing him to pass out while driving home. The jury returned a verdict for plaintiffs-$503,500 for the husband and $25,650 for his wife.*fn1 The district court denied Pabst's three motions for directed verdicts and a post-trial motion for judgment notwithstanding the verdict.

Defendant raises numerous issues on appeal. First, Pabst contends that plaintiffs failed to allege a duty owed to them. Second, Pabst argues that the evidence was insufficient to support the verdict. Third, a great number of evidentiary questions are raised. We hold that Pabst owed no duty to the plaintiffs as a matter of law and therefore reverse the judgment of the district court without reaching the other questions.

Duty is an essential element of negligence and is a question of law to be decided by the trial court. Laufenberg v. Golab, 108 Ill. App. 3d 133, 63 Ill. Dec. 875, 438 N.E.2d 1238 (1982). foreseeability is a necessary but not sufficient requirement before imposing a duty. Gustafson v. Mathews, 109 Ill. App. 3d 884, 887, 65 Ill. Dec. 475, 441 N.E.2d 388 (1982). Under controlling Illinois law, liability may arise from the negligent performance of a voluntary undertaking. Pippin v. Chicago Housing Auth., 78 Ill. 2d 204, 209, 35 Ill. Dec. 530, 399 N.E.2d 596 (1979); Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 74, 199 N.E.2d 769 (1964); see Restatement (Second) of Torts, § 324A.*fn2 But the scope of a duty is limited by the extent of the undertaking. McColgan v. United Mine Workers of America, 124 Ill. App. 3d 825, 827, 80 Ill. Dec. 183, 464 N.E.2d 1166 (1984) (citing Pippin, 78 Ill. 2d at 209-210). The question here is whether by providing medical care for its employees, Pabst owed a duty to the Homers. After reviewing Illinois law, we conclude that the answer is no.

The imposition of a duty is an act of judicial policymaking. To appreciate the consequences of placing a duty upon a defendant a court should first determine "the likelihood of injury from the existence of a condition, the magnitude of guarding against it, and the consequences of placing the burden upon the defendant." Barnes v. Washington, 56 Ill. 2d 22, 29, 305 N.E.2d 535 (1973). The Illinois courts have acted with this standard in mind, extending the concept of duty with caution and restraint. See McColgan, 124 Ill. App. 3d at 829. Under the voluntary undertaking doctrine, Illinois courts have carefully examined the nature of a defendant's undertaking, imposing a duty only to the extent actually assumed by the defendant.

In Pippin, plaintiff's decedent was knifed on property operated by the defendant Authority. Because the security service specifically contracted to provide protection services for the "purpose of guarding its [the Authority's] properties * * * and the protection of persons thereon," the court found that a duty existed consistent with § 324A. 78 Ill. 2d at 210. Likewise, because the Authority voluntarily entered into a contract to provide guard services, it had a duty to use reasonable care in hiring guards. Id. Each of the defendants' duties was limited to the extent of its undertaking. The Authority undertook to hire protective services and the Guard Service undertook to provide those services; therefore, absent a showing of negligent selection of guards, only the Guard Service could be liable for the victim's death.

The Illinois appellate court in Gustafson v. Mathews, 109 Ill. App. 3d 884, 65 Ill. Dec. 475, 441 N.E.2d 388 (1982), restrictively interpreted the scope of the duty associated with a voluntary undertaking. There employees of the defendant tavern assisted an obviously intoxicated man into a car with five children waiting in the back seat. The man drove away, later causing an accident in which he and four of the children were killed. When addressing the issue of voluntary undertaking, the court stated brusquely, "The [tavern] employees' responsibility and undertaking ended when they deposited Gustafson in his car safely." Id. at 888. Relying on Gustafson, the Illinois appellate courts have subsequently reaffirmed the general holding that one who helps an obviously inebriated person into his or her car owes not duty to the general public under the voluntary undertaking doctrine. See, e.g., Wienke v. Champaign County Grain Ass'n, 113 Ill. App. 3d 1005, 1010, 69 Ill. Dec. 701, 447 N.E.2d 1388 (1983) ("Here, there is no way that the defendant's transporting Eiskamp to his car could be deemed to have been for the benefit of the traveling public."); Heldt v. Brei, 118 Ill. App. 3d 798, 802, 74 Ill. Dec. 413, 455 N.E.2d 842 (1983).

In Brunsfeld v. Mineola Hotel & Restaurant, 119 Ill. App. 3d 337, 74 Ill. Dec. 859, 456 N.E.2d 361 (1984), the plaintiff alleged that the defendant hotel had a duty to keep an adjoining snowmobile track cleared of dangers. The court held that the hotel did not assume the duty to clear the debris from the track. Because the hotel could not control its customers once they were off the hotel premises, the court ...


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