Appeal from Circuit Court of McLean County No. 94L244 Honorable G. Michael Prall, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
Defendant, Youth Services of Mid-Illinois, Inc. (Youth Services), appeals from the October 22, 2001, order of the McLean County circuit court denying defendant's posttrial motions for judgment notwithstanding the verdict and for a new trial. We reverse the order denying the motion for judgment notwithstanding the verdict.
This case began on July 29, 1993, when three-year-old Louise Osborn died while enclosed in a bedroom closet in the home of her foster parents, Sarah and Matthew Augsburger. According to the record, defendant was a private, not-for-profit corporation which was hired by the Department of Children and Family Services (DCFS). Defendant had placed Louise and her older brother with the Augsburgers the previous year. DCFS contracts out foster children to private foster agencies such as defendant to provide the services that DCFS would normally provide. In the context of this case, it was defendant's responsibility to find foster parents, make sure that the foster parents and their home complied with DCFS' licensing requirements, and then monitor the foster children in accordance with DCFS regulations and Illinois law. Defendant provided services to the children, created plans, distributed state money to the foster parents, and monitored the foster parents, all pursuant to DCFS regulations. In other words, defendant acted in DCFS' place. The only duties which DCFS reserves for itself in cases like this are the licensing of the foster parents and the initial removal of children from their home that places them into state custody. DCFS also handles court appearances. Plaintiff Commerce Bank, f/k/a the People's Bank, sued the Augsburgers and defendant over Louise's death on behalf of Louise's estate.
In a previous appeal from an order granting a motion to dismiss, this court ruled that the Augsburgers were immune from suit for any negligence in regard to their supervision of Louise because they were clothed with parental immunity. See Commerce Bank v. Augsburger, 288 Ill. App. 3d 510, 517, 680 N.E.2d 822, 827 (1997) (Commerce Bank I). Plaintiff consequently amended its complaint to sue only defendant for defendant's own negligence in Louise's death and the Augsburgers' negligence under the theory of respondeat superior. The trial court dismissed plaintiff's respondeat superior claims, but allowed the rest of the claims to go to trial. A jury ultimately found that defendant was not negligent in Louise's death.
Plaintiff appealed, arguing only that the trial court erred when it prevented plaintiff from suing defendant under a theory of respondeat superior. This court agreed with plaintiff, and reversed and remanded the question of whether an agency relationship existed between the parties that would give rise to the doctrine of respondeat superior. See Commerce Bank v. Youth Services of Mid-Illinois, Inc., No 4-98-0833 (August 10, 1999) (unpublished order under Supreme Court Rule 23) (Commerce Bank II).
The case proceeded to trial against defendant on remand. A jury found that Sarah Augsburger was negligent in her supervision of Louise, proximately causing her death, and that an agency relationship existed between Sarah Augsburger and defendant, thus making defendant vicariously liable for Louise's death under the doctrine of respondeat superior. The jury awarded plaintiff a total of $640,000: $400,000 on a wrongful death claim and $240,000 on a survival claim. Defendant filed posttrial motions for judgment notwithstanding the verdict and for a new trial, which were denied. Defendant appeals.
Defendant raises several arguments in support of its contention that the trial court should have granted either the motion for judgment notwithstanding the verdict or a new trial: (1) the evidence was insufficient to support the jury's finding that an agency relationship existed between defendant and Sarah Augsburger; (2) the evidence was insufficient to support the jury's finding that Sarah Augsburger was negligent, proximately causing Louise's death; (3) defendant was entitled to derivative immunity based upon Sarah Augsburger's parental immunity; (4) the trial court imposed an impossible duty of constant supervision on Sarah Augsburger; (5) defendant was a public entity immune from suit under the Local Government and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-206 (West 2000)); (6) the trial court abused its discretion by refusing certain jury instructions; (7) the trial court abused its discretion by allowing evidence of abuse and neglect within the Augsburger home; and (8) the evidence was insufficient to support the jury's award of $640,000 when there was no evidence of pecuniary loss or that Louise suffered conscious pain and suffering. We find that the trial court erred in denying defendant's motion for judgment notwithstanding the verdict because the evidence was insufficient to support the jury's finding of an agency relationship. We therefore need not address the other issues.
The primary issue in this case was whether Sarah Augsburger was defendant's agent or merely an independent contractor. If an agency relationship existed, then defendant can be held liable for Sarah Augsburger's negligence under the doctrine of respondeat superior; defendant is not liable if Sarah Augsburger was an independent contractor. Lang v. Silva, 306 Ill. App. 3d 960, 972, 715 N.E.2d 708, 716 (1999). An independent contractor is hired to achieve a certain result but is not controlled in the method of reaching that result. Lang, 306 Ill. App. 3d at 972, 715 N.E.2d at 716. An agency relationship exists when the principal has the right to control the manner in which the agent performs his work. Lang, 306 Ill. App. 3d at 972, 715 N.E.2d at 716. In determining whether an agency relationship exists, the following factors should be considered: the right to control the manner in which the work is performed, the right to discharge, the method of payment, whether taxes are deducted from the payment, the level of skill required to do the work, and the furnishing of the necessary tools, materials, and equipment. Lang, 306 Ill. App. 3d at 972, 715 N.E.2d at 716. The right to control the manner of doing the work is the predominant factor. Wabash Independent Oil Co. v. King & Wills Insurance Agency, 248 Ill. App. 3d 719, 723, 618 N.E.2d 1214, 1217 (1993). It does not matter if the right to control was not actually exercised. Ross v. Cummins, 7 Ill. 2d 595, 600, 131 N.E.2d 521, 524 (1956). The question of whether the parties' relationship is that of principal and agent or independent contractor is a question of fact unless the relationship is so clear that it is undisputable. Letsos v. Century 21-New West Realty, 285 Ill. App. 3d 1056, 1065, 675 N.E.2d 217, 224-25 (1996).
Defendant argues that the trial court should have granted its motion for judgment notwithstanding the verdict because the evidence did not support the jury's finding that a principal-agent relationship existed between defendant and Sarah Augsburger. "'Judgment notwithstanding the verdict should not be entered unless the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.'[Citations.]" McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242, 257 (1999). If reasonable minds can come to different conclusions based on the facts presented, then judgment notwithstanding the verdict is not appropriate. McClure, 188 Ill. 2d at 132, 720 N.E.2d at 257. Our review of the trial court's decision on the motion for judgment notwithstanding the verdict is de novo. McClure, 188 Ill. 2d at 132, 720 N.E.2d at 257.
Our analysis begins with this court's mandate in the prior appeal in Commerce Bank II, wherein we remanded for the trial court to determine if an agency relationship existed between defendant and Sarah Augsburger:
"more precisely, whether defendant had enough control over the Augsburgers' day-to-day supervision of Louise and her brother necessary to create an employee-employer, or master-servant, relationship that would give rise to the doctrine of respondeat superior." Commerce Bank II, slip order at 7.
This court noted that the First District had found that DCFS-appointed foster parents were agents of the State (see Griffin v. Fluellen, 283 Ill. App. 3d 1078, 1087, 670 N.E.2d 845, 852 (1996); Nichol v. Stass, 297 Ill. App. 3d 557, ...