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Montgomery v. McDonald's Corp.

June 22, 2001

WALTER MONTGOMERY, PLAINTIFF-APPELLANT,
v.
MCDONALD'S CORPORATION AND PETTY MANAGEMENT CORPORATION, AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES *FN1 .



The opinion of the court was delivered by: Justice Reid

Not Released For Publication

WALTER MONTGOMERY, PLAINTIFF-APPELLANT,
v.
MCDONALD'S CORPORATION AND PETTY MANAGEMENT CORPORATION, AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES *FN1 .

The opinion of the court was delivered by: Justice Reid

Appeal from the Circuit Court of Cook County. Honorable Sophia H. Hall, Judge Presiding.

The appellant, Walter Montgomery, appeals the trial court's grant of summary judgment. On appeal, Montgomery contends that the appellee, Petty Management Corp. (PMC), is liable for negligence: (1) under a theory of respondeat superior, and (2) due to negligent hiring. For the reasons that follow, we affirm.

 On June 18, 1994, Montgomery, who was 72 years of age, entered a McDonald's restaurant located at 7601 South Vincennes in Chicago, Illinois, which was owned by PMC. As Montgomery was waiting in line to place his order, a McDonald's employee, Demetrius Holmes, who was dressed in street clothes, approached the counter and requested a drink.

Montgomery thought that Holmes was cutting the line. An argument between the two ensued, which escalated into a fistfight. It is uncertain who started the fight. Both men claim that the other threw the first punch. The fight ended with Holmes kicking Montgomery as he lay on the floor, before people were able to separate them. Holmes claims that after the two were separated, Montgomery pulled a knife and attempted to attack him. Montgomery denied the allegations. After the fight, Holmes was pulled into the back of the restaurant away from Montgomery.

It is disputed as to whether Holmes was working when the altercation occurred. In his deposition, Holmes stated that he had changed out of his uniform and into his street clothes because his shift had ended and he was in the process of leaving the store when the fight occurred. Holmes was required to punch his time card whenever a shift or break started or ended. However, on the day of the fight there were five punches on Holmes' time card.

Holmes' supervisor, Renee Thorpe, testified during her deposition that the altercation took place while Holmes was "off the clock." Thorpe stated that she did not know the exact time that the fight took place. She said that she knew Holmes was "off the clock" because approximately 15 minutes before the fight occurred she had asked Holmes to punch out because his shift had ended.

Montgomery initially brought suit against PMC, Holmes, McDonald's Corporation, manager Earl Reeves, and assistant manager Renee Thorpe. All defendants were granted summary judgment except Holmes, who was voluntarily dismissed. Montgomery now appeals the grant of summary judgment as to PMC.

Since this appeal arises from an order granting summary judgment, the standard of review is de novo. Aetna Casualty & Surety Co. v. Allsteel, Inc., 304 Ill. App. 3d 34, 39 (1999). The judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000). In ruling on a motion for summary judgment, the trial court must view all evidence in the light most favorable to the non-movant. Boldini v. Owens Corning, 318 Ill. App. 3d 1167, 1170 (2001).

Montgomery contends that the trial court erred in finding that Holmes was not acting within the scope of his employment at the time of the altercation. We disagree.

For an employer to be vicariously liable for an employee's tort under the doctrine of respondeat superior, the tort must have been committed within the scope of the employment. Pyne v. Witmer, 129 Ill. 2d 351, 359 (1989). No precise definition has been accorded the ...


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