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03/17/87 Amanie Fakhoury, A Minor, v. Rporation

March 17, 1987

AMANIE FAKHOURY, A MINOR, BY IBRAHAM FAKHOURY, HER FATHER AND NEXT FRIEND, PLAINTIFF-APPELLEE

v.

VAPOR CORPORATION, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

507 N.E.2d 50, 154 Ill. App. 3d 531, 107 Ill. Dec. 386 1987.IL.316

Appeal from the Circuit Court of Cook County; the Hon. Robert G. Mackey, Judge, presiding.

Rehearing Denied May 6, 1987.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. SCARIANO, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Ibraham Fakhoury filed suit on behalf of plaintiff, his five-year-old daughter, seeking damages for injuries she received when struck by a car operated by James Guyon, defendant's employee. The employee settled with plaintiff prior to trial. At trial, the court granted plaintiff a directed verdict on the issue of respondeat superior and the jury found against defendant on the negligence issue and awarded damages. Thereafter, judgment was entered on the verdict. Defendant now appeals.

On October 12, 1977, plaintiff Amanie Fakhoury was injured when she was struck by an automobile driven by James Guyon. Plaintiff allegedly suffered brain damage, hemiparesis and other injuries. On April 6, 1978, plaintiff filed an action in negligence against Guyon. An amended complaint was filed on April 30, 1979, naming Guyon's employer, defendant Vapor Corporation, as a party defendant based upon a theory of respondeat superior ; plaintiff alleged that Guyon was in the employ of defendant and was acting within the scope of his employment at the time of the accident.

Stanley Lemieux, defendant's vice-president, testified that the company is located on the northwest side of Chicago and is a manufacturer of heating equipment. Lemieux explained that Guyon was a serviceman employed by defendant. He was one of four such servicemen employed at the time of the accident and was supervised by a service manager. As a serviceman, Guyon's responsibility was to start up new equipment at a customer's site after installation and to perform any needed maintenance and repair on this equipment.

Defendant's customers are billed for a serviceman's hourly work and for his travel time. Servicemen are paid a fixed salary by defendant. They are required to use their own cars to travel to job sites and are reimbursed by defendant for doing so. Servicemen are directed to a job site from defendant's plant site or from their homes. When they have no service work scheduled, servicemen are required to be present at the plant and must return there after a job is completed if there is time to do so. Each serviceman is issued a set of tools by defendant and is required to carry the tools with him at all times. However, they are authorized to purchase certain standard tools at their discretion provided it is not a major expenditure and may make their own travel plans.

On cross-examination, Lemieux testified that the service manager and not the individual servicemen decide on what job they will work. When traveling, servicemen are required to call daily. Lemieux stated that each serviceman is issued a standard service tool kit. If, while he is on a job, a serviceman finds that he needs a certain tool, he must contact the service manager who will either send this tool or will authorize the serviceman to purchase it. Lemieux maintained that this procedure was a control function to insure that discretionary purchases were appropriate.

Guyon testified that he had been employed by defendant as a service representative for 20 years. He stated that he drove his own car to and from job sites and was required to maintain insurance on his car; Guyon was given a mileage allowance by defendant for travel. Guyon's tool kit includes meters for checking electricity, manometers, CO2 and O2 meters and equipment for checking combustion as well as an assortment of small hand tools.

On the date of the accident, Guyon was at defendant's plant doing routine paperwork. He had been assigned to travel to Madison, Wisconsin, the following day and planned to leave from his home at 6 a.m. When Guyon left work at 4:30 p.m. that evening, he stated that he stopped at a hardware store at Clark and Ashland to purchase a carpenter's square for his use the next day. When that store did not have this item, Guyon returned to his car and began to drive southbound on Ashland to a lumber store in the vicinity. While proceeding there, south of the intersection of Ashland and Berwyn, Guyon heard a thump and felt something strike the front of his car. Guyon stopped and saw plaintiff lying in the street approximately 25 feet behind his car. There were no eyewitnesses to the accident. A passing ambulance stopped moments later to render assistance to plaintiff and transported the child to the hospital. Guyon did not purchase a carpenter's square that evening. Upon his arrival in Madison, Wisconsin, the following day, he borrowed the customer's carpenter's square.

Thad Aycock, a senior consultant in the Accident Investigation Division of Northwestern University Traffic Institute, testified as to the length of time required to brake a moving vehicle. Aycock explained that speed, rate of deceleration and the slipperiness of the road surface as well as reaction time are factors used to determine braking distance. He explained that given a car traveling on dry pavement at approximately 25 miles per hour, the rate of speed at which Guyon stated he was traveling, it would take 130 feet for such car to brake. This braking distance is a mathematical equation involving speed, drag factor and deceleration. ...


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