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06/19/89 Keith L. Pyne, v. William E. Witmer Et Al.

June 19, 1989

KEITH L. PYNE, APPELLEE

v.

WILLIAM E. WITMER ET AL. (D.R.W. ENTERPRISES, INC., APPELLANT)



SUPREME COURT OF ILLINOIS

543 N.E.2d 1304, 129 Ill. 2d 351, 135 Ill. Dec. 557 1989.IL.922

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of McHenry County, the Hon. Henry L. Cowlin, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. JUSTICE RYAN, Dissenting. JUSTICE MILLER joins in this Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

In this automobile accident case based on a theory of respondeat superior, we are asked to examine the entry of summary judgment in favor of the defendant employer. The central issue is whether a triable question of fact existed as to whether, at the time of the accident, the defendant's employee was within the scope of his employment. We conclude that a factual question sufficient to preclude summary judgment did exist. We therefore affirm the appellate court's reversal of summary judgment and its remand of the cause to the circuit court of McHenry County.

The circumstances of the accident were set forth in detail in the appellate court's opinion. (159 Ill. App. 3d 254.) From that opinion, one Justice Dissented. We granted the defendant employer's petition for leave to appeal (107 Ill. 2d R. 315(a)).

Briefly, this case involves an employee, defendant William E. Witmer, who, at or near the end of his scheduled work day, drove in his own vehicle from his workplace in Streamwood to Rockford in order to take an evening test that could secure his certification as an automobile mechanic. Witmer's employer, appellant D.R.W. Enterprises, Inc. , which operated the gasoline station at which Witmer worked, did not pay him wages, mileage, or expenses for the trip, but D.R.W. did issue a check for the test fee. There is some question whether D.R.W. expected to be repaid by Witmer for the check amount and whether certification would have benefited D.R.W., but for purposes of this appeal the parties are in agreement that, while taking the test, Witmer was within the scope of his employment.

There is some evidence that, before Witmer's journey to Rockford, D.R.W. was aware that he was prone to excessive alcohol consumption, but this appeal does not involve a claim of negligent hiring. See generally Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 931; Bates v. Doria (1986), 150 Ill. App. 3d 1025, 1030; 53 Am. Jur. 2d Master & Servant § 422 (1970).

For appeal purposes, the parties agree that Witmer would have been in the scope of his employment with regard to the test during "travel incident thereto" and that Witmer was not required to report to work in Streamwood again until the next morning. Generally, an employee traveling to or from work outside actual working hours is not in the scope of employment, but an exception exists for employees who are caused by their employers to travel away from a regular workplace or whose travel is at least partly for their employers' purposes rather than simply serving to convey the employees to or from a regular jobsite. See International Art Studios v. Industrial Comm'n (1980), 83 Ill. 2d 457, 460; Givenrod-Lipe, Inc. v. Industrial Comm'n (1978), 71 Ill. 2d 440, 444; Warren v. Industrial Comm'n (1975), 61 Ill. 2d 373, 377; Irwin-Neisler & Co. v. Industrial Comm'n (1931), 346 Ill. 89, 93; see also Hall v. DeFalco (1988), 178 Ill. App. 3d 408, 413 (exception for employer-facilitated travel); see generally Annot., 52 A.L.R.2d 287 (1957).

Some 2 1/2 hours after he completed his test, Witmer was killed in a 10:30 p.m. automobile collision involving his vehicle and one driven by the appellee, Keith L. Pyne. According to blood-alcohol evidence, Witmer was intoxicated at the time of collision, and the appellee does not dispute this. The collision site was near Marengo, which lies between Rockford, on the one hand, and, on the other, Witmer's home in Elgin and workplace in Streamwood.

No eyewitness or physical evidence was presented as to Witmer's actual whereabouts or activities from the time he left his test location until the time of the accident. However, his widow testified in a deposition that before leaving for Rockford he had told her he would stay a little late in order to study for a second test session to be held the next evening. Witmer's former mother-in-law also swore in an affidavit that, some 10 years earlier, he had regularly commuted between Capron and Schaumburg for a two-year period and that at that time he had often professed to know all the back roads well.

At the time of the accident, Witmer's southbound route of travel would within two miles have led him to a T intersection with a highway, U.S. 20, that, in turn, could have led him directly east eight miles to Marengo and directly beyond to Elgin, his hometown. About 10 miles north of the accident site is Capron, where he had formerly lived. Thus, both Capron and Marengo are in the same general area of northern Illinois, and Elgin, Schaumburg, and Streamwood are in the same general Chicago northwestern suburban area. The appellee argues that these facts tend to refute the contention that, at the time of accident, Witmer was so intoxicated as not to know where he was and thus was incapable of taking any steps or forming any intention to return to the scope of his employment if he had in fact left it.

Summary-judgment procedure permits a trial court to determine whether any genuine issue of material fact exists (Purtill v. Hess (1986), 111 Ill. 2d 229, 240), but it is not designed to try such an issue (Kobus v. Formfit Co. (1966), 35 Ill. 2d 533, 538; Ray v. City of Chicago (1960), 19 Ill. 2d 593, 599). Summary judgment is to be encouraged in the interest of prompt Disposition of lawsuits, but as a drastic measure it should be allowed only when a moving party's right to it is clear and free from doubt. Reed v. Bascon (1988), 124 Ill. 2d 386, 393; Purtill v. Hess (1986), 111 Ill. 2d 229, 240.

If, from the papers on file, a plaintiff fails to establish an element of the cause of action, summary judgment for the defendant is proper. (Brunsfeld v. Mineola Hotel & Restaurant, Inc. (1983), 119 Ill. App. 3d 337, 341; Taylor v. Hocker (1981), 101 Ill. App. 3d 639, 641; cf. Randi F. v. High Ridge YMCA (1988), 170 Ill. App. 3d 962, 964-65 (dismissal for failure to state respondeat superior cause of action for employee's intentional tort; analyzing cases).) If what is contained in the papers on file would constitute all of the evidence before a court and would be insufficient to go to a jury but would require a court to direct a verdict, summary judgment should be entered. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587.) However, in determining the existence of a genuine issue of material fact on a motion for summary judgment, the trial court should construe pleadings, depositions, admissions, exhibits, and affidavits strictly against the movant and liberally in favor of the respondent. Reed v. Bascon (1988), 124 Ill. 2d 386, 393; Purtill v. Hess (1986), 111 Ill. 2d 229, 240.

Inferences may be drawn from undisputed facts (Century Display Manufacturing Corp. v. D.R. Wager Construction Co. (1977), 46 Ill. App. 3d 643, 648, aff'd in part, rev'd in part (1978), 71 Ill. 2d 428), but an issue should be decided by the trier of fact and summary judgment denied where reasonable persons could draw divergent inferences from the undisputed facts (Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, 1077, 1078; Marciniak v. O'Connor (1981), 102 Ill. App. 3d 381, 386).

Summary judgment is generally inappropriate when scope of employment is at issue. (Dragovan v. City of Crest Hill (1983), 115 Ill. App. 3d 999, 1001; see Metzler v. Layton (1939), 373 Ill. 88, 93; Kavale v. Morton Salt Co. (1928), 329 Ill. 445, 451-52; Bonnem v. Harrison (1958), 17 Ill. App. 2d 292, 298-99; Becker v. Brummel (1943), 319 Ill. App. 499, 503; cf. Pantaleo v. Gamm (1969), 106 Ill. App. 2d 116, 126; see generally 57 C.J.S. Master & Servant § 617(a)(3) (1948).) Only if no reasonable person could conclude from the evidence that an employee was acting within the course of employment should a court hold as a matter of law that the employee was not so acting. Boehmer v. Norton (1946), 328 Ill. App. 17, 21, 24.

For an employer to be vicariously liable for an employee's torts under the doctrine of respondeat superior, the torts must have been committed within the scope of the employment. Darner v. Colby (1941), 375 Ill. 558, 560, 566-67; Gomien v. Wear-Ever Aluminum, Inc. (1971), 50 Ill. 2d 19, 21; see generally W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on the Law of Torts §§ 69, 70 (5th ed. 1984) (hereinafter cited as Prosser & Keeton); 57 C.J.S. Master & Servant §§ 561 through 563, 570, 574, 615 (1948); 17 Ill. L. & Prac. Employment §§ 251, 252, 255, 257 (1956); Restatement (Second) of Agency §§ 219, 228 through 237 (1958); cf. G. Calabresi, The Costs of Accidents 50-54 (1970); ...


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