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BRUMMERSTEDT v. AMERICAN AIRLINES

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


April 29, 1993

ROBERT L. BRUMMERSTEDT, Plaintiff,
v.
AMERICAN AIRLINES, INC., a corporation, a subsidiary of AMR CORPORATION, Defendant.

The opinion of the court was delivered by: MARVIN E. ASPEN

MEMORANDUM OPINION AND ORDER

 MARVIN E. ASPEN, District Judge:

 In August, 1991, an American Airlines baggage truck backed into plaintiff Robert Brummerstedt ("Brummerstedt") at O'Hare Airport. In his Amended Complaint, Brummerstedt charges defendant American Airlines, Inc. ("American") with negligence (Count I) and willful and wanton conduct (Count II) and seeks punitive damages in connection with Count II. Presently before us is American's motion to dismiss Count II of the Amended Complaint.

 American first argues that Brummerstedt's allegations do not describe willful and wanton misconduct, a prerequisite to punitive damages. Under Illinois law, willful and wanton conduct is "a course of action which shows actual or deliberate intention to harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." Burke v. 12 Rothschild's Liquor Mart, 148 Ill. 2d 429, 443, 593 N.E.2d 522, 170 Ill. Dec. 633, 639 (1992). Furthermore, "whether a defendant's acts amounted to willful and wanton conduct is a question to be resolved by the finder of fact, based upon the particular circumstances of each individual case." Downing v. United Auto Racing Association, 211 Ill. App. 3d 877, 570 N.E.2d 828, 156 Ill. Dec. 352 (1st Dist. 1991), citing Lynch v. Board of Education, 82 Ill. 2d 415, 412 N.E.2d 447, 45 Ill. Dec. 96 (1980).

 Here, Brummerstedt alleges that an American employee, knowing that Brummerstedt was behind her vehicle in a confined space, drove her baggage truck in reverse without sounding a warning, hit Brummerstedt, pinning him against another vehicle, and continued to back up the truck even after witnesses pounded on the truck and screamed for her to stop. These allegations, which describe reckless disregard for, if not an intent to jeopardize, Brummerstedt's safety, certainly suffice to allege willful and wanton conduct.

 American contends, however, that regardless of whether the allegations amount to wilful and wanton conduct, Count II still fails, because it lacks elements necessary to sustain a punitive damages claim against a corporation. Under Illinois' "complicity rule," an employer can only be held vicariously liable for punitive damages if the employer "ordered, participated in, or ratified the 'outrageous misconduct' of the employee." Pendowski v. Patent Scaffolding Co., 89 Ill. App. 3d 484, 411 N.E.2d 910, 44 Ill. Dec. 544, 547 (1st Dist. 1980). This rule, adopted by the vast majority of Illinois courts in reliance on the Illinois Supreme Court decision in Mattyasovszky v. West Towns Bus Co., 61 Ill. 2d 31, 330 N.E.2d 509 (1975), *fn1" derives from the notion that "the punitive and admonitory justifications for the imposition of punitive damages are sharply diminished in those cases in which liability is imposed vicariously," and in which the wrongdoing employee is not a party to the action. Id at 512. Instead, punitive damages will be awarded against a corporate defendant only if (1) it authorized, ratified, or approved the act, (2) the employee was unfit and the corporation recklessly hired him, or (3) the employee was a manager acting within the scope of employment. See Restatement (Second) of Agency, ยง 217C, relied on in Mattyasovszky 330 N.E.2d at 512. Where the employer itself has committed no intentional wrong, then, Illinois courts will not impose the harsh sanction of punitive damages. *fn2"

 In the case at hand, Brummerstedt fails to allege the sort of deliberate action by American which would bring it within the complicity rule. Without any indication that American directed, or otherwise actively participated in or condoned, the alleged misconduct, or that the employee was a manager acting within the scope of employment, punitive damages are unavailable against the corporation, and we therefore dismiss Count II. It is so ordered.

 MARVIN E. ASPEN

 United States District Judge

 Dated 4/29/93


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