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06/06/97 GLORIA WILLIAMS v. ALAN HALL

June 6, 1997

GLORIA WILLIAMS, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF KEVIN WILLIAMS, HER SON, DECEASED, KELLEY WILLIAMS AND RONALD HEMPHILL, PLAINTIFFS-APPELLANTS,
v.
ALAN HALL, AS AGENT FOR ITALIAN FIESTA PIZZERIA, INC., A CORPORATION, ITALIAN FIESTA PIZZERIAS 1 AND 2 D/B/A ITALIAN FIESTA PIZZERIA, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Nos. 88-L-22568, 90-L-08100, 94-L-09393. Honorable Daniel J. White, Justice Presiding.

Released for Publication July 21, 1997.

The Honorable Justice Theis delivered the opinion of the court. Zwick and Quinn, JJ., concur.

The opinion of the court was delivered by: Theis

The Honorable Justice THEIS delivered the opinion of the court:

Plaintiffs appeal the trial court's order granting defendants' motion for judgment notwithstanding the verdict. We affirm.

On the evening of Saturday May 29, 1988, Kevin Williams, Ronald Hemphill, Derrell Dixon, and Brian Osborne drove to a McDonald's restaurant on Halsted street in Chicago. The restaurant was located across the street from the Italian Fiesta Pizzeria. Williams and Hemphill noticed pizza boxes on top of a car parked in front of the pizzeria. After the group left McDonald's in Dixon's Jeep, Dixon pulled within a few car lengths of the pizza boxes. Dixon and Hemphill jumped out of the Jeep to grab the boxes. When Dixon and Hemphill discovered the boxes were empty, they dropped the boxes and re-entered the Jeep.

Alan Hall, an Italian Fiesta pizza driver, noticed the group's activities while inside the pizzeria. Hall exited the pizzeria, yelling at the group to return the pizza boxes. While Dixon drove the Jeep, Hall entered his vehicle and began chasing them. Dixon turned the wrong way onto a one-way street, and Hall continued to pursue them. Dixon collided with another vehicle, which propelled Dixon's Jeep into a tree. The accident resulted in Williams' death and Hemphill's injury. While Hall was not injured in this accident, he subsequently died from other causes.

Plaintiffs filed a wrongful death action against the pizzeria under theories of negligent hiring and vicarious liability based upon the employment relationship. The trial court granted defendants' motion for a directed verdict on the plaintiffs' negligent hiring count. However, the court denied the defendants' motion as to vicarious liability, and allowed the case to proceed to trial on this issue. The defendants presented evidence that the pizzeria specifically informed employees and pizza drivers that they were not to attempt to recover stolen property or punish perpetrators. Rather, the pizzeria's policy was for supervisors to contact police and file a report in the event of theft. In addition, the pizzeria did not penalize pizza drivers if their property was stolen.

The jury returned a verdict in favor of plaintiffs. In their post-trial motion, the defendants claimed that they could not be held liable for Hall's actions as a matter of law. Accordingly, the defendants argued, they were entitled to judgment notwithstanding the verdict (JNOV). The trial court agreed, stating that "it's my opinion that the employee's deviation from the course of employment was exceedingly marked and unusual. *** As a matter of law the employee was acting outside the scope of his employment." Plaintiffs appeal, claiming that the court erred in granting JNOV. We affirm.

We review orders granting JNOV under a de novo standard. Arellano v. SGL Abrasives, 246 Ill. App. 3d 1002, 617 N.E.2d 130, 186 Ill. Dec. 891 (1993). A court should enter an order of JNOV only when the evidence, viewed in a light favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967). In the case at bar, we find that the evidence established that the pizzeria was not liable for Hall's conduct as a matter of law.

The Illinois Supreme Court set forth the standard for holding an employer liable for the conduct of its employees in Pyne v. Witmer, 129 Ill. 2d 351, 543 N.E.2d 1304, 135 Ill. Dec. 557 (1989). The court relied upon the Restatement (Second) of Agency ยง 228 (1958) and stated that:

"Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time ...


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