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Gant v. L.U. Transport

May 17, 2002

ADOLPHUS GANT, PLAINTIFF-APPELLANT,
v.
L.U. TRANSPORT, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County Honorable PHILIP BRONSTEIN, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Gallagher

UNPUBLISHED

Plaintiff, Adolphus Gant, appeals from an order of the trial court dismissing count II of his first amended complaint against defendant, L.U. Transport, Inc. We affirm.

On February 14, 1998, a motor vehicle accident occurred on the Dan Ryan Expressway near the 95th Street interchange in Chicago, Illinois, resulting in a seven vehicle pile-up. At the time, plaintiff was operating a tandem tractor-trailer in the course of his employment. Directly behind plaintiff, an employee of defendant was operating a tractor-trailer in the course of his employment. The front of the vehicle operated by defendant's employee struck the rear of the vehicle operated by plaintiff.

Plaintiff filed a two-count first amended complaint against defendant to recover for the injuries he sustained as a result of the accident. Count I alleged negligence under a theory of respondeat superior. Count II alleged negligence under the theory of negligent hiring and retention. In its answer, defendant admitted the allegations in count I. Defendant filed a motion to dismiss count II on the ground that an employer who has admitted respondeat superior responsibility for the conduct of its employees cannot also be sued for negligent hiring or retention of that employee. The trial court granted defendant's motion to dismiss count II. The dismissal order contained a Rule 304(a) (155 Ill. 2d R. 304(a)) finding. Plaintiff now appeals.

We first address the threshold issue of whether we have jurisdiction over this appeal. Although plaintiff has stated that this court has jurisdiction pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), defendant contends that this court lacks jurisdiction over this appeal.

Rule 304(a) provides, in relevant part, as follows:

"(a) Judgments As To Fewer Than All Parties or Claims--Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both." 155 Ill. 2d R. 304(a).

If, however, the trial court's order was not in fact final, the mere fact that the order contains the required Rule 304(a) language does not make the order final and appealable. Sloma v. Arens Controls, Inc., 269 Ill. App. 3d 666, 670, 645 N.E.2d 238, 240 (1993).

Defendant asserts that, despite the fact that the trial court's order contained the requisite express written finding required by Rule 304(a) language, this court has no jurisdiction over this matter. Citing Viirre v. Zayre Stores, Inc., 212 Ill. App. 3d 505, 571 N.E.2d 209 (1991), defendant argues that the trial court's order did not dismiss plaintiff's entire negligence claim. We believe the instant case is distinguishable from Viirre, which involved a single negligence claim. As the court in Viirre explained, the statement of a single claim in several ways does not warrant a separate appeal. Viirre, 212 Ill. App. 3d at 512, 571 N.E.2d at 214.

Generally, the controlling factor in determining whether an order appealed under Rule 304(a) is a final order is whether the bases for recovery under the dismissed counts are different from those under the counts left standing. Sloma, 269 Ill. App. 3d at 670, 645 N.E.2d at 241. In Viirre, plaintiff's single-count complaint did not involve multiple claims, but only a single claim of negligence. By contrast, plaintiff here has filed a two-count complaint, involving different claims of negligence: (1) negligence under a theory of respondeat superior, and (2) negligent hiring, retention and entrustment. These are separate and distinct claims with separate bases for recovery. An employer's liability under a respondeat superior theory for the acts of its employees is distinct from its liability for negligent hiring, retention or entrustment. See, e.g., Montgomery v. Petty Management Corp., 323 Ill. App. 3d 514, 519, 752 N.E.2d 596, 600 (2001). A negligence claim brought under a respondeat superior theory is based upon an employer's vicarious liability for the wrongful acts of its employees. By contrast, a negligence claim brought under a theory of negligent hiring or retention is based upon the employer's negligence in hiring or retaining the employee, rather than the employee's wrongful act. Van Horne v. Muller, 185 Ill. 2d 299, 311, 705 N.E.2d 898, 905 (1998).

Because the basis for recovery under the count that was dismissed, negligent hiring, retention and entrustment, is different from the basis for recovery under the count left standing, negligence based upon a respondeat superior theory, this court has jurisdiction, pursuant to Supreme Court Rule 304(a), over the trial court's order dismissing count II of plaintiff's amended complaint. Hence, we shall address the merits of plaintiff's appeal.

Our review of the trial court's order granting defendant's motion to dismiss under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2000)) is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993). The issue presented for review is whether a plaintiff who is injured in a motor vehicle accident can maintain a claim for negligent hiring, retention and entrustment against an employer where the employer admits responsibility for the conduct of the employee under a respondeat superior theory. The trial court here determined that the count based on negligent hiring, retention and entrustment could not stand under the holdings of this court in Ledesma v. Cannonball, Inc., 182 Ill. App. 3d 718, 538 N.E.2d 655 (1989), and Neff v. Davenport Packing Co., 131 Ill. App. 2d 791, 268 N.E.2d 574 (1971). Plaintiff now argues that Ledesma and Neff are no longer applicable in view of the adoption of comparative negligence by the Illinois Supreme Court in Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886 (1981).

In 1971, the Neff court agreed with the majority view that once an employer admits responsibility under respondeat superior, a plaintiff may not proceed against the employer on another theory of imputed liability such as negligent entrustment or negligent hiring. See Neff, 131 Ill. App. 2d at 792-93, 268 N.E.2d at 575 (and cases cited therein). This remains the view of the majority of jurisdictions. See McHaffie v. Bunch, 891 S.W.2d 822, ...


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