APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
542 N.E.2d 464, 186 Ill. App. 3d 503, 134 Ill. Dec. 285 1989.IL.1149
Appeal from the Circuit Court of McHenry County; the Hon. Roland A. Herrmann, Judge, presiding.
JUSTICE McLAREN delivered the opinion of the court. DUNN and LINDBERG, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN
Plaintiffs, John and Joan Huber, filed a negligence action against defendants, Frank B. Seaton and Richard Janowitz, for damages sustained as the result of a fire on May 6, 1984. The jury returned a verdict for both plaintiffs and assessed damages at $40,000. Defendant Seaton's post-trial motion was denied, and this appeal followed. Codefendant Janowitz is not a party to this appeal. We reverse.
On May 6, 1984, a fire occurred at the townhouse owned by defendant Seaton and occupied by plaintiffs. At trial, plaintiffs alleged the fire was caused by the negligence of Janowitz, an independent contractor hired by defendant. Plaintiffs alleged Janowitz negligently left the valve open on a propane torch that he set down, allowing gas to escape and subsequently causing the fire. Plaintiffs also alleged Seaton negligently hired Janowitz. In particular, plaintiffs alleged that Seaton never checked to see if Janowitz was licensed to do plumbing work, and if Janowitz carried liability insurance, nor did Seaton obtain any information concerning the quality of Janowitz's work before hiring him.
In our prior opinion, we held Seaton's motion for summary judgment should not have been granted because a question of material fact remained as to whether Seaton negligently selected Janowitz as an independent contractor. (Huber, 165 Ill. App. 3d at 450-51.) We noted an employer is generally insulated from liability for the negligent acts of an independent contractor. (Huber, 165 Ill. App. 3d at 450, citing Gomien v. Wear-Ever Aluminum, Inc. (1971), 50 Ill. 2d 19, 21.) However, a recognized exception to the general rule exists if the employer fails to exercise reasonable care in the selection of the independent contractor. (Huber, 165 Ill. App. 3d at 450; Kouba v. East Joliet Bank (1985), 135 Ill. App. 3d 264, 267.) This court in its prior opinion held that the materials in support of the motion for summary judgment did not eliminate a potential fact question as to the issue of negligent hiring.
At the time of the first appeal, however, this court was in no position to pass upon the sufficiency of the amended complaint, the instructions or the evidence at trial. Although questions of law actually decided in a previous appeal are binding, matters concerning the merits of a controversy which were not decided by the appellate court do not become the law of the case. (Zokoych v. Spalding (1980), 84 Ill. App. 3d 661, 667.) The prior opinion did not address and resolve questions of fact.
Seaton raises three issues on appeal: (1) whether the court erroneously instructed the jury as to statutory licensing violations and absence of liability insurance; (2) whether the jury verdict was against the manifest weight of the evidence; and (3) whether the evidence supports a finding that Seaton negligently hired Janowitz.
It is well established that a cause of action exists against an employer for negligently hiring an employee he knew, or should have known, was unfit for the job so as to create a danger of harm to third persons. (Fallon v. Indian Trail School (1986), 148 Ill. App. 3d 931, 935; Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265, 268; Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 338.) The Restatement (Second) of Agency describes the cause of action as follows:
"A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others . . .." Restatement (Second) of Agency § 213, at 458 (1958).
Seaton first contends the trial court improperly instructed the jury as to Janowitz's lack of a plumber's license. The instructions in question ...