Appeal from the Circuit Court of Cook County No. 92 L 012181 Honorable David R. Donnersberger, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cahill
Plaintiff Beverly Strickland sued defendants Chicago Cable TV and NaCom, Inc., seeking to hold them liable for the acts of cable installer Joseph Williams, who allegedly sexually assaulted plaintiff on February 11, 1992. Plaintiff's first amended complaint contained 10 counts. Counts II and VII alleged negligent hiring. Counts III and VIII alleged willful and wanton conduct in failing to investigate before hiring Williams. The other six counts alleged battery, intentional infliction of emotional distress and false imprisonment. Plaintiff did not contest summary judgment on those counts, which were premised on the doctrine of respondeat superior. The Judge granted summary judgment on all counts except count VIII. Plaintiff appeals the order granting summary judgment and the trial court's refusal to allow plaintiff to amend her complaint after summary judgment. We affirm.
The depositions and affidavits produced at summary judgment showed the following. Chicago Cable TV subcontracted some of its installation work to NaCom. NaCom hired Williams to install cable. NaCom employees were required to have a valid driver's license. Williams filled out employment and automobile insurance forms indicating that he had a valid driver's license when he was hired. But Williams' license was, in fact, suspended.
Neither Chicago Cable nor NaCom conducted a criminal background or reference check on Williams. The evidence established that if NaCom or Chicago Cable had checked Williams' criminal background, several violations for speeding, driving while his license was suspended, and other traffic offenses would have been discovered.
When Chicago Cable uses NaCom installers, the installers wear both NaCom and Chicago Cable identification badges. The identification badges are shown to customers so that the customers will allow installers into their homes.
Plaintiff testified at a deposition that Williams came to her house on January 17, January 18, and February 11, 1992, to install cable. On February 11, Williams brought a trainee with him to repair a cable wire that had been cut at plaintiff's house. Shortly after their arrival, the trainee pointed a gun in plaintiff's face and forced her to lie down on the floor. The trainee threatened to kill plaintiff and her children if she cried out. Williams then forced plaintiff to have intercourse with him.We first address whether the trial court erred by granting summary judgment for defendants on plaintiff's negligent hiring claims.
We review summary judgment de novo. Outboard Marine v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992). Summary judgment is proper when the pleadings, depositions and affidavits, taken in the light most favorable to the non-movant, present no genuine issue of material fact and show that the movant is entitled to judgment as a matter of law. Golla v. General Motors Corp., 167 Ill. 2d 353, 358, 657 N.E.2d 894 (1995). Summary judgment should be granted only where the movant's right to judgment is free from doubt. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986).
The parties dispute whether Williams was an independent contractor or an employee of NaCom. But the issue has no relevance in the context of plaintiff's negligent hiring claim. A defendant may be liable for negligent hiring whether the person was retained as an employee or an independent contractor. See DiMaggio v. Crossings Homeowners Ass'n, 219 Ill. App. 3d 1084, 1090, 580 N.E.2d 615 (1991).
Defendants contend that summary judgment was proper because plaintiff did not establish that the failure to investigate Williams' background was the proximate cause of plaintiff's injury. Defendants argue that, even if a background check had been performed, plaintiff could not show that defendants would have found information warning them that Williams might sexually assault a customer in her home.
To establish negligent hiring, a plaintiff must prove: (1) that the employer knew or should have known that the person hired had a "particular" unfitness for the job that would create a foreseeable danger to others; and (2) this particular unfitness was the proximate cause of the plaintiff's injury. See Mueller v. Community Consolidated School District 54, 287 Ill. App. 3d 337, 341-42, 678 N.E.2d 660 (1997).
Plaintiff relies on Easley v. Apollo Detective Agency, Inc., 69 Ill. App. 3d 920, 387 N.E.2d 1241 (1979). In Easley, an armed security guard used a passkey to enter the plaintiff's apartment and then assaulted her. The plaintiff sought to hold the employer detective agency liable on two theories. Count I alleged that the detective agency's conduct in hiring the offending security guard was willful and wanton. Count II alleged that, by statute, the agency was strictly liable for its employee's conduct. See Easley, 69 Ill. App. 3d at 930, citing Ill. Rev. Stat. 1975, ch. 38, par. 201--10(b). The evidence at trial showed that the guard had a criminal history and had been discharged by two previous employers for misconduct, including "making eyes" at a female employee, abandoning his post, and sleeping on the job. A jury found the detective agency liable under count I, and a directed verdict for the plaintiff was entered on count II.
The agency did not appeal liability for compensatory damages under count II. But the agency argued that the trial court erred in denying its motion for a directed verdict on count I. We held, based on the evidence, that: a jury could have properly found the security guard to be unfit; a reasonably adequate investigation would have determined this fact; the detective agency's investigation exhibited a reckless disregard for the plaintiff's safety; and the inadequate investigation was the proximate cause of the plaintiff's injury. Easley, 69 Ill. App. 3d at 932.
We note that the detective agency in Easley did not argue a lack of proximate cause, as defendants argue here. And unlike Easley, the evidence introduced at summary judgment in our case did not show that defendants would have discovered a negative employment history, disciplinary problems, or a criminal record other than traffic violations. Plaintiff points to no evidence that would have put defendants on notice that Williams was unfit to work as a cable installer or that he was a danger to cable customers.
A more recent and analogous case is Giraldi v. Community Consolidated School District No. 62, 279 Ill. App. 3d 679, 665 N.E.2d 332 (1996). In Giraldi, the plaintiff, who was sexually molested by a school bus driver, sued the bus company and the school district for negligently hiring, investigating and supervising the bus driver. The driver had a history of arriving late to work. The trial court refused to submit the negligent hiring count to the jury. We affirmed, holding that the only conduct the bus company could have been warned of, had it investigated the driver's past conduct, was a tendency to be late. ...