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04/17/96 JAMES JOHNSON v. ROSEMARIE MERS

April 17, 1996

JAMES JOHNSON, AND JOSHUA GRAY JOHNSON, A MINOR, BY JEANINE JOHNSON, HIS MOTHER AND NEXT FRIEND, PLAINTIFFS-APPELLANTS,
v.
ROSEMARIE MERS, D/B/A MERS RESTAURANT, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT, AND THE VILLAGE OF ISLAND LAKE, DEFENDANT-APPELLEE AND COUNTERDEFENDANT-APPELLEE (RENA JENSEN, DEFENDANT AND COUNTERDEFENDANT.)



Appeal from the Circuit Court of Lake County. No. 94--L--0406. Honorable Stephen E. Walter, Judge, Presiding.

Released for Publication May 21, 1996.

The Honorable Justice Inglis delivered the opinion of the court: Bowman and Thomas, JJ., concur.

The opinion of the court was delivered by: Inglis

The Honorable Justice INGLIS delivered the opinion of the court:

Plaintiffs, James Johnson (Johnson) and Joshua Gray Johnson, a minor, by Jeanine Johnson, his mother and next friend, and counterplaintiff, Rosemarie Mers, d/b/a Mers Restaurant (Mers) (collectively referred to as plaintiffs), appeal the order of the circuit court of Lake County, which granted summary judgment in favor of defendant, the Village of Island Lake, Illinois (Island Lake). We affirm.

This case is before us as a result of events which occurred on July 13, 1993. On that date, Rena Jensen (Rena), a police officer for Island Lake, shot Johnson with her service revolver, seriously injuring him.

On July 13, 1993, both Rena and Johnson had attended a fundraiser at Mers where she consumed several alcoholic beverages. Rena quarreled with Johnson, and Johnson left and returned to his mobile home. After a short time, Rena also left and returned to Johnson's mobile home. Their quarrel continued, and Rena drew her service revolver and fired several shots into the ceiling. Both Rena and Johnson then allegedly struggled with the revolver, whereupon Rena shot Johnson in the head, causing permanent injuries.

On December 12, 1994, Johnson filed a fourth amended eight-count complaint against Island Lake, Mers, and Rena. Counts I and II were directed against Rena and alleged negligence and wilful and wanton misconduct. Count III was directed against Mers, alleging violation of the Dramshop Act (235 ILCS 5/6--21 (West 1994)). Count IV was directed against Mers and alleged loss of support. Counts V through VIII were directed against Island Lake and alleged wilful, wanton, and reckless misconduct, negligent hiring, negligent retention, and negligent entrustment. Mers filed a counterclaim seeking contribution against both Rena and Island Lake.

Island Lake moved for summary judgment, arguing that plaintiffs had failed to establish proximate causation. On August 31, 1995, the trial court granted Island Lake's motion for summary judgment against Johnson and against Mers on Mers' counterclaim. The trial court also struck the testimony of Scott Krajniak because plaintiffs had failed to disclose him as a Rule 220 expert witness. Both Johnson and Mers filed separate notices of appeal. We consolidated both appeals.

On appeal, Johnson argues that the trial court improperly granted summary judgment for Island Lake because there allegedly existed material issues of fact pertaining to Island Lake's actions in hiring and supervising Rena. Johnson also argues that the trial court erred in striking the testimony of Krajniak. Lastly, Mers argues that the trial court improperly granted summary judgment on its contribution claim against Rena and Island Lake.

We turn now to Johnson's first contention. Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Leschinski v. Forest City Steel Erectors, 243 Ill. App. 3d 124, 127, 183 Ill. Dec. 390, 611 N.E.2d 1038 (1993); 735 ILCS 5/2--1005(c) (West 1994). In ruling on the motion, the court is required to construe all evidentiary material strictly against the movant and liberally in favor of the respondent. Pagano v. Occidental Chemical Corp., 257 Ill. App. 3d 905, 908, 196 Ill. Dec. 24, 629 N.E.2d 569 (1994).

The propriety of an order granting summary judgment is a question of law, and, as such, we review such orders de novo. Pagano, 257 Ill. App. 3d at 909. If, after reviewing the pleadings and evidentiary material before the trial court, the reviewing court determines that a material issue of fact exists or that the summary judgment was based on an erroneous interpretation of the law, then reversal is warranted. Pagano, 257 Ill. App. 3d at 909.

I. NEGLIGENT HIRING

Plaintiffs contend that they presented sufficient facts to prove that Island Lake was negligent in hiring Rena and, thus, the grant of summary judgment was improper. It is well established that a cause of action exists against an employer for negligently hiring, or retaining in his employment, an employee he knew, or should have known, was unfit for the job so as to create a danger of harm to third persons. Bates v. Doria, 150 Ill. App. 3d 1025, 1030, 104 Ill. Dec. 191, 502 N.E.2d 454 (1986). An action for negligent hiring can be maintained even where an employee commits a criminal or an intentional act which is outside the scope of employment. Carter v. Skokie Valley Detective Agency, Ltd., 256 Ill. App. 3d 77, 80, 195 Ill. Dec. 138, 628 N.E.2d 602 (1993). An employer must exercise the degree of care reasonably commensurate with the perils and hazards likely to be encountered in the performance of the employee's duties. See Easley v. Apollo Detective Agency, Inc., 69 Ill. App. 3d 920, 932, 26 Ill. Dec. 313, 387 N.E.2d 1241 (1979).

However, proximate cause is an essential element of any negligence action, and, although an employer may have negligently hired someone who caused harm to another, liability will only attach if the injuries were brought about by reason of the employment of the unfit employee. Carter, 256 Ill. App. 3d at 80. In determining whether there is a causal connection between the employer's negligence and the plaintiff's injuries, it is necessary to inquire whether the injury occurred by virtue of the employee's employment. Carter, 256 Ill. App. 3d at 80. Thus, the employment itself must create the situation where the employee's violent propensities harm the third person. Carter, 256 Ill. App. 3d at 80.

Generally, the existence of proximate cause is a question of fact for the jury. Carter, 256 Ill. App. 3d at 81. However, if the plaintiff's evidence is wholly insufficient to establish that the employer's negligence proximately caused plaintiff's injuries, the employer is entitled to judgment as a matter of law. Carter, 256 Ill. App. 3d at 81.

In this case, even assuming that Island Lake may have been negligent in hiring Rena, Island Lake's actions were not the proximate cause of plaintiffs' injuries. Plaintiffs argue that if the Island Lake police department (ILPD) had not hired Rena, the altercation with Johnson would not have occurred. Plaintiffs' argument proceeds in this fashion: (1) Rena needed a firearm as a condition for her employment; (2) she did not yet have a "Firearm Owner's identification" card (FOI); (3) the chief of police wrote a letter on Island Lake letterhead to the gun shop verifying she was a police officer; and (4) the ILPD trained her in the use of a firearm. Therefore, plaintiffs contend that Island Lake's actions were the proximate cause of their injuries.

However, there is no dispute that the firearm was purchased solely by Rena and not the ILPD. While at the time Rena purchased the firearm, she did not have her FOI card, she previously applied for the card and, in fact, received it several weeks after the firearm was purchased. Thus, even if the ...


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