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Divila Yellow Cab Company

August 20, 2002

HERMAN DAVILA, PLAINTIFF-APPELLANT,
v.
YELLOW CAB COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County 98 L 5513 Honorable Barbara A. McDonald and Bill Taylor, Judges Presiding

The opinion of the court was delivered by: Justice McBRIDE

UNPUBLISHED

Plaintiff Herman Davila appeals an order of the circuit court of Cook County granting summary judgment in favor of defendant Yellow Cab Company.

In a first amended complaint, Davila alleged he was struck and injured by a taxicab owned by Yellow Cab and negligently operated by defendant Thomas Williams on October 31, 1996, in the vicinity of the intersection of LaSalle and Lake Streets in Chicago. Davila alleged that he was a State of Illinois police officer standing on Lake Street due to traffic congestion when he was struck by Williams' cab and dragged for several feet. Davila also alleged the incident caused him severe and permanent bodily injuries, pain and suffering, medical expenses, and loss of his usual occupation. Davila complained that Yellow Cab was responsible for his damages due to a principal/agent or master/servant relationship with Williams. In a separate count, which was dismissed and is not subject to this appeal, Davila alleged that Yellow Cab had negligently entrusted Williams with the taxicab.

Yellow Cab answered and moved for summary judgment, contending that its written contract with Williams established he was an independent contractor and that Williams' conviction for battery, an intentional crime, in connection with the incident at Lake and LaSalle Streets established Williams was not acting within the scope of any agency or employment relationship. Yellow Cab concluded it was therefore not responsible for Williams' actions.

The trial court granted Yellow Cab's motion for summary judgment, finding that, as a matter of law, Williams was not an agent or employee of Yellow Cab, because Yellow Cab was leasing licensed cabs and there was no indication that it had a right to control Williams' operation of the cab. The trial court declined to follow Yellow Cab Co. v. Industrial Comm'n, 124 Ill. App. 3d 644, 464 N.E.2d 1079 (1984), or Yellow Cab Co. v. Industrial Comm'n, 238 Ill. App. 3d 650, 606 N.E.2d 523 (1992), and indicated that these cases are limited to questions of entitlement to workers' compensation benefits. In both cases, the courts rejected Yellow Cab's independent contractor argument and found the existence of an employer-employee relationship under a written agreement and facts that are substantially similar to those in the case at bar.

In this appeal, Davila argues (1) a principal/agent relationship existed or was sufficiently disputed to preclude summary judgment in Yellow Cab's favor; and (2) Yellow Cab can be held liable for tortious conduct in furtherance of its business, regardless of whether the conduct was intentional or criminal.

Summary judgment permits the trial court to determine whether any genuine issue of material fact exists, but it does not permit the trial court to try such an issue. Pyne v. Witmer, 129 Ill. 2d 351, 357-58, 543 N.E.2d 1304 (1989). Summary judgment is encouraged in the interest of the prompt disposition of lawsuits, but it is a drastic measure which should be granted only when the pleadings, depositions, affidavits, and admissions on file, when reviewed in the light most favorable to the non-movant, show that there is no genuine issue as to any material fact and that the moving party's right to judgment is clear and free from doubt. Pyne, 129 Ill. 2d at 358. " 'Summary judgment must be awarded with caution to avoid prempting a litigant's right to trial by jury or the right to fully present the factual basis of a case where a material dispute may exist ***.' [Citation.]" Schrager v. North Community Bank, 328 Ill. App. 3d 696, 703, 767 N.E.2d 376 (2002). " 'A triable issue of fact exists where there is a dispute as to a material fact or where, although the facts are not in dispute, reasonable minds might differ in drawing inferences from those facts.' [Citation.]" Schrager, 328 Ill. App. 3d at 703.

In cases involving summary judgment motions, we conduct a de novo review of the evidence in the record. Schrager, 328 Ill. App. 3d at 702. " '[W]e are free to consider any pleadings, depositions, admissions, and affidavits on file at the time of the hearing regardless of whether facts contained therein were presented to the trial court in response to the motion for summary judgment.' [Citation.]" Schrager, 328 Ill. App. 3d at 703. Reversal " 'is warranted where, on review, a material issue of fact or an inaccurate interpretation of the law exists.' [Citation.] " Schrager, 328 Ill. App. 3d at 703.

We disagree with the trial court's conclusion that Yellow Cab Co. v. Industrial Comm'n, 124 Ill. App. 3d 644, 464 N.E.2d 1079 (1984) (Yellow Cab I), and Yellow Cab Co. v. Industrial Comm'n, 238 Ill. App. 3d 650, 606 N.E.2d 523 (1992) (Yellow Cab II), are limited to questions of entitlement to workers' compensation benefits. The standard used in determining whether an employer-employee relationship exists in a workers' compensation context is no different from the standard used in a vicarious liability context. Gunterberg v. B&M Transportation Co., 27 Ill. App. 3d 732, 737-38, 327 N.E.2d 528 (1975) (standard used to determine employee or independent contractor status is not affected by whether question arises in context of workers' compensation coverage or respondeat superior); Hamilton v. Family Record Plan, Inc., 71 Ill. App. 2d 39, 47-48, 217 N.E.2d 113 (1966) (determination of employee or independent contractor status is the same in workers' compensation and respondeat superior cases).

In Yellow Cab I, the court indicated that a lease agreement between Yellow Cab and a cab driver disclaiming an employer-employee relationship was not dispositive of the cab driver's status. Yellow Cab, 124 Ill. App. 3d at 647. See also Tansey v. Robinson, 24 Ill. App. 2d 227, 234, 164 N.E.2d 272 (1960) (written contract between grocery store and delivery man not conclusive of their relationship). The nature of the relationship "depends upon the actual practice followed by the parties and, as a general rule, becomes a mixed question of law and fact to be submitted upon proper instructions to a jury." Tansey, 24 Ill. App. 2d at 233-34. The question of whether a relationship of employer and employee, principal and agent, or owner and independent contractor existed depends upon the facts of a given case. Tansey, 24 Ill. App. 2d 234. "Unless those facts clearly appear, the relationship cannot become purely a question of law." Tansey, 24 Ill. App. 2d at 234.

" 'No one factor may determine what [the] relationship is between parties in a given case. It may be necessary to consider a number of factors with evidentiary value, such as the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required in the work to be done, and who provides the tools, materials, or equipment. Of these factors the right to control the manner in which the work is done is the most important in determining the relationship.' " Yellow Cab II, 238 Ill. App. 3d at 652, quoting Morgan Cab Co. v. Industrial Comm'n, 60 Ill. 2d 92, 97-98, 324 N.E.2d 425 (1975).

Additionally, it is the right of control, not the fact of control, that is the principal factor in distinguishing a servant from a contractor. Gunterberg, 27 Ill. App. 3d at 738.

Accordingly, in Yellow Cab I, the court found that a number of factors established that Yellow Cab had a right to control the manner in which work was done under a 24-hour cab lease. Yellow Cab, 124 Ill. App. 3d at 647. All of the cabs were uniform in appearance and had the company's name and telephone number on them. Yellow Cab maintained the right to terminate or refuse to renew the 24-hour lease. The driver was not permitted to sublet the cab, was instructed to purchase his gas at the company garage, and was required to report mileage at the end of the lease period. Yellow Cab derived goodwill from the public presence of the well-maintained cabs. Roadmen filled out observation reports on the condition of the cabs. Yellow Cab performed ...


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