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Evans v. Shannon

August 29, 2002

ROSS WAYNE EVANS ET AL., INDIV. AND CO-ADM'RS OF THE ESTATE OF TIMOTHY MICHAEL EVANS, DECEASED, APPELLEES,
v.
DERRICK SHANNON ET AL. (VOGLER MOTOR COMPANY, INC., APPELLANT).



The opinion of the court was delivered by: Chief Justice Harrison

UNPUBLISHED

Docket No. 92238-Agenda 15-March 2002.

Timothy Evans died as a result of injuries he sustained when his vehicle collided with a car negligently driven by defendant Derrick Shannon. The car Shannon was driving at the time of the accident, a Mercury Sable station wagon, was owned by defendant Vogler Motor Company and had been entrusted the previous day to defendant Robert Margrum, doing business as Bob's Clean Up Shop, for detailing and cleaning services. Shannon, acting in his capacity as Margrum's employee, had taken possession of the Vogler vehicle and had driven it to Margrum's place of business, wherein the car was locked up for the night. At some point that evening, after regular business hours, Shannon returned to the shop and, without authority, took the car for his own use. He was intoxicated and driving the vehicle when he crossed the centerline of the highway and collided with Timothy Evans' car. Shannon did not have a valid driver's license at the time of the collision.

The parents of Timothy Evans brought wrongful-death and survivor actions, as co-administrators of the estate of Timothy Evans and individually. Plaintiffs' action against Vogler was based in pertinent part on a theory of negligent entrustment of Vogler's car to Derrick Shannon, Margrum's employee. A jury ultimately found all three defendants liable, but found Vogler only 9% liable. Initially, the circuit court entered judgment on the verdict and granted several liability as to Vogler, based upon the percentage of negligence attributed to Vogler by the jury. However, after a motion for reconsideration, the circuit court entered joint liability as to all defendants. Noting that this court in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), had held section 2-1117 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1117 (West 1996) (amended by Public Act 89-7, eff. March 9, 1995)) unconstitutional, the circuit court ruled that the prior version of the statute (735 ILCS 5/2-1117 (West 1994) (providing for several liability if degree of fault is determined to be less than 25% and joint and several liability if the degree of fault is determined to be 25% or more)) was unconstitutional as well, finding that it arbitrarily establishes "different types of liability solely dependent upon the percentage of fault," attributed to individual defendants and "is contrary to the common law of this state as interpreted by the Supreme Court of Illinois."

From the circuit court's ruling, Vogler brought this direct appeal pursuant to Supreme Court Rule 302(a)(1) (134 Ill. 2d R. 302(a)(1)). Because we find that Vogler's motions for directed verdict and judgment notwithstanding the verdict were improperly denied, we reverse the judgment of the circuit court as it pertains to Vogler and remand this cause for assessment of damages against only Shannon and Margrum. Thus, we need not reach the constitutional issue in this case. We set forth below a brief statement of the applicable standards of review and the pertinent facts.

A denial of a motion for judgment notwithstanding the verdict, like an adverse ruling on a motion for directed verdict, is reviewed under the de novo standard. Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 89 (2002); Edwards v. Paddock Publications, Inc., 327 Ill. App. 3d 553, 562 (2001). "[V]erdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). See also Donaldson, 199 Ill. 2d at 89; Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992).

Following is a comprehensive summary of the trial testimony we consider pertinent to the issue of negligent entrustment. Consistent with applicable standards of review, we have taken care to include even marginal evidence favorable to the plaintiffs, and that which is arguably relevant.

Dennis Rathjen, vice-president and sales manager of Vogler, testified that Vogler had utilized the services of Margrum's business for a number of years and had never had any problems with his work. Prior to the March 5, 1996, collision, Rathjen had perceived Margrum as a reputable business owner who hired only reputable employees. Before March of 1996, Vogler had never had a car stolen while in Margrum's possession, nor had a Vogler vehicle been involved in a collision. Based upon their relationship up to that point in time, Vogler's management trusted Margrum.

Rathjen testified that, as a matter of policy, Vogler allowed only licensed drivers to operate its cars. Rathjen assumed that Margrum had performed background checks on his employees and had verified that they had driver's licenses. Rathjen considered that Margrum's responsibility. Vogler personnel did not ask to see the licenses of Margrum's employees when they came to pick up Vogler's cars. Had Rathjen known Margrum was using unlicensed drivers, it would have been cause to terminate their business relationship. Rathjen conceded it would have taken "about five seconds" to verify that Margrum's drivers were licensed when they came to get Vogler's cars. Rathjen supposed Vogler would have had the authority to ask for verification of a valid license had it chosen to do so. The procedure in place, however, merely required that an inventory sheet show which Vogler employee had provided Margrum's employee the keys for the car to be detailed.

Rathjen was aware of one instance when a Margrum employee (Jerome Wooley) was seen in a Vogler car at the drive-up window of the ABC Liquor Store in Carbondale, Illinois (the municipality in which both businesses were located); however, Rathjen said he would not have complained to Margrum, as the detour was at most 50 yards off the route from Vogler to Margrum's business and the employee in question was purportedly only buying cigarettes.

Frank Black, Vogler's president and majority stockholder, testified there was no policy in place to check Margrum's employees for driver's licenses. He felt that was Margrum's responsibility. Black said he expected Margrum to check out his employees, "[s]ame as any other contractor I do business with." In that respect, Black rejected plaintiffs' counsel's attempt to differentiate between a large business, like K mart, and a small business, like Margrum's. Before the accident that gave rise to this case, Black had never heard of any cars having been stolen from Margrum's shop, nor of any cars in his possession having been involved in a collision or having been driven recklessly. Black testified that a log sheet would have noted the location of a Vogler vehicle and would have indicated who was in possession of it. Vogler on occasion used other detailers, and Margrum performed services for individuals and businesses other than Vogler.

Black denied knowing about "detours" that might have been taken with Vogler's cars while in Margrum's possession. Asked, hypothetically, what action he might have taken had he known about detours, Black responded that he probably would have said something to Margrum about it, and he might even have terminated the business relationship with Margrum if the detours were "severe enough."

John Barnes, a salesman for Vogler, testified that he recalled someone at Vogler had arranged for detailing the Sable station wagon through Bob's Clean Up Shop. On March 4, 1996, someone from Bob's arrived to pick up the car. Barnes recalled hearing someone say that "Bob's" was there to get the car. Barnes did not see Bob personally come into Vogler's building or pull up outside. Barnes handed the keys to a man he did not know and subsequently learned was Margrum's employee Derrick Shannon. Barnes did not really look at the man's face or speak to him. Barnes simply handed him the keys and pointed to the car. The man had what appeared to be dealer plates under his arm. The man did not offer identification and Barnes did not ask for any. Prior to March of 1996, according to his own estimate, Barnes had handed over keys more than 100 times to Margrum's employees without ever having asked to see a driver's license.

Barnes admitted it would have violated Vogler's unwritten policy for Shannon to have driven the car without a valid driver's license. He conceded he would not have handed the keys to Shannon had he known Shannon did not have a driver's license. He stated his belief that he ...


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