Appeal from the Circuit Court of Cook County Honorable James P. Flannery, Judge Presiding.
The opinion of the court was delivered by: Justice Quinn
Plaintiff Paul Valentino, a former employee of Oakton College, brought this action against defendants, the Board of Trustees of Oakton College (Board) and David Hilquist, the vice president of business and finance of Oakton College, to recover damages for alleged intentional battery, intentional infliction of emotional distress and breach of employment contract. Following a jury trial, judgment was entered in favor of plaintiff against the Board for $750,000 and against Hilquist for $600,000.
Defendants appeal from: (1) the trial court's failure to apply applicable immunities and defenses; (2) the trial court's rulings on pretrial motions, evidentiary rulings and jury instructions; and (3) the judgment, as being against the manifest weight of the evidence. Defendants also appeal the trial court's order denying defendants' request to waive presentment of an appeal bond on behalf of Hilquist. For the following reasons, we reverse in part, affirm in part and remand with directions.
Plaintiff worked as the director of facilities at Oakton College from February 1992 until June 1998. Oakton College is governed by the Board, which consists of seven elected trustees. Plaintiff's direct supervisor at the college was Hilquist, who had been employed with the college since 1972.
Plaintiff's duties as director included the supervision of the day-to-day operations of the college's facilities located on its two campuses in Des Plaines and Skokie. Plaintiff was employed with the college under an employment contract providing for one-year terms (July 1 through June 30), which would be automatically renewed each year unless plaintiff received written notice of non-renewal at least three months prior to expiration of the contract.
Plaintiff filed this action on February 4, 1998. The fifth amended complaint alleged counts in battery as to both Hilquist and the Board, intentional infliction of emotional distress as to both Hilquist and the Board and breach of contract as to the Board. After filing the action, plaintiff received a letter from Margaret Lee, the college's president, informing him that she would not recommend renewal of plaintiff's employment contract for the year 1998-99 to the Board. Plaintiff alleged that he received that letter on his desk in April of 1998, after the March 31 deadline for timely notification of non-renewal. Plaintiff's employment contract was not renewed for the year 1998-99.
At trial, plaintiff testified that from 1992 until 1997, he was subjected to physical and verbal abuse from Hilquist. Plaintiff testified that during that time period he was the subject of Hilquist's physical abuse about a hundred times. The abuse consisted of kicking plaintiff underneath the table during meetings, pushing his face against a window, pushing him against the wall and grabbing his arm. The abuse occurred in Hilquist's office, the conference room, the boardroom, the hallway and in the woods on campus. Plaintiff testified that during that time period, he was also subjected to verbal abuse from Hilquist daily. Hilquist would "scream" at plaintiff in person, before and after meetings, and over both plaintiff's office and home telephones. Plaintiff testified Hilquist would call him at home, often after midnight, and "scream" at him. Plaintiff testified Hilquist called him profane names and that toward the end of 1997 the abuse intensified.
During the time period from 1992 through 1997, plaintiff testified he reported the abuse to Joan Hall, a Board member, three to four times per week. Plaintiff testified he reported the abuse to Board members Marvin Walker, about 40 times: Ellen Schrodt, 4 or 5 times per year; Jody Wadhwa, about 12 times; Larry Goldberg, 5 or 6 times; and Amilda Mader about 4 or 5 times. Plaintiff testified that in response to these reports he was told to "hang in there." Plaintiff also testified he reported the abuse to the chief of public safety at the college and to the chief of the Des Plaines police department.
Plaintiff additionally testified that he reported the abuse to Margaret Lee, the president of Oakton, on at least 10 occasions. Plaintiff testified that on three different occasions in 1997, Lee told him she not only agreed with Hilquist, but condoned what he was doing.
Plaintiff testified that during October 1997 he was taken to the hospital from the college by ambulance because of his blood pressure. Following the hospitalization, on November 1, 1997, plaintiff went to see Lee and again reported the abuse. Plaintiff testified that Lee told him he was an embarrassment to the college and that she agreed with Hilquist's conduct. In June 1998, on plaintiff's last day of work, Hilquist called plaintiff's office, swore at him and told him to turn in his keys and leave. When plaintiff went to his office, Hilquist blocked him from leaving, yelled at him again in the hallway, and then pushed him into the wall resulting in a cut to plaintiff's hand. Plaintiff was then taken to the hospital for his blood pressure. Plaintiff additionally complained of deteriorating health while working for Hilquist, including stomach problems, trouble sleeping, headaches and blurred vision. Plaintiff began to see a psychologist, Debra Haley, in the latter part of 1997 and continued seeing her through the beginning of 1998.
Anthony Schimel, chief heating, ventilation and air-conditioning engineer for Oakton, testified that in the winter of 1997 he saw Hilquist poke plaintiff in the chest and then push him into the hallway. Schimel also testified that, some months after that incident, he was standing with Hilquist and plaintiff in the hallway and requested to raise the water temperature in the building. Hilquist responded, motioning to plaintiff, "Kill him, I'll give you 180 degree water."
Loretta Fivissani, plaintiff's secretary, testified that in the last two years plaintiff was employed with Oakton, she went to speak with Lee about the relationship between Hilquist and plaintiff. Fivissani testified that she told Lee that Hilquist harassed plaintiff daily with constant demanding calls and verbal abuse. Lee responded "I probably shouldn't say this, but I have to tell you that a decision has been made and I told [Hilquist] to handle it and it had to be done in the proper order."
Debra Haley, Ph.D., testified that plaintiff came to see her in November 1997. Plaintiff told her that his boss was physically and verbally abusing him. Haley testified that plaintiff was suffering from generalized anxiety disorder. Both Jeff Valentino, plaintiff's son, and June McCubbin, plaintiff's former fiancée, testified as to the deterioration in plaintiff's health during his employment with Oakton.
During plaintiff's case in chief, Margaret Lee, president of the college, testified that she received a letter on May 31, 1997, from Joan Hall. The letter stated, in relevant part:
"Paul had approached me about his problems with [Hilquist] some time before he gave this book to me [prior to October 1994]. *** The Paul Valentino I knew then was frustrated beyond belief over what he knew had to be done and then having to butt his head every time he tried to do it; also, someone who had been treated by [Hilquist] in ways (I documented this) that a lesser person would have seen [as] an opportunity to file a juicy lawsuit. *** Also, our track record with our Directors of Facilities would seem to call for curiosity/investigation to learn why we have not been able to keep people in that job for more than a year or two for many years."
Lee admitted she did not question Hilquist or plaintiff about the substance of the letter. Lee testified that although plaintiff was having an "extremely" hard time performing his job, his contract for the year 1997-98 was renewed, with the provision he was on probation with no increase in salary. Lee admitted that Hall had approached her on "several" occasions about problems between Hilquist and plaintiff, but that she was only told of general problems, not specific allegations of abuse. Lee also admitted that Fivissani, plaintiff's secretary, came to see her, although she could not recall exactly what Fivissani said, only that she was "concerned" about plaintiff's condition.
On cross-examination, Lee testified that after plaintiff received a poor quarterly evaluation from Hilquist, he requested to report to Lee directly and avoid Hilquist completely because plaintiff felt unfair demands were being placed on him. Lee also testified on cross-examination that during plaintiff's tenure, a library ceiling collapsed at the Skokie campus and pipes burst at the Des Plaines campus. Lee maintained that she never witnessed Hilquist abuse plaintiff. She also maintained that Schimel and Harstein never contacted her to inform her of any abuse.
During defendants' case in chief, Hilquist testified that on October 30, 1997, the day plaintiff was transported to the hospital, he had a meeting with plaintiff to review a negative evaluation. Hilquist also testified as to plaintiff's poor performance in his duties as director during his tenure, which included, for example, failure to handle snow removal and flood concerns, general lack of maintenance and failure to clean duct work. Hilquist testified he never pushed, kicked, or hit plaintiff. Hilquist testified he never screamed at plaintiff, although he may have raised his voice on occasion. Hilquist denied telling Schimel he would raise the temperature of the water if Schimel killed plaintiff.
During defendants' case in chief, Lee again testified that no trustee told her that plaintiff was being physically or verbally abused by Hilquist. Lee testified that plaintiff never reported physical or verbal abuse on the part of Hilquist. Lee also testified that she never told plaintiff that she approved of or condoned any physical acts on the part of Hilquist.
At the close of all the evidence, the jury returned verdicts in favor of plaintiff and against the Board on battery, intentional infliction of emotional distress, and breach of contract in the amount of $750,000. The jury also returned verdicts in favor of plaintiff and against Hilquist on battery and intentional infliction of emotional distress in the amount of $600,000. On February 6, 2001, the trial court entered judgment against both defendants on these awards. On June 11, 2001, the trial court denied defendants' timely postjudgment motions. Defendants now appeal.
Defendants first contend that the trial court erred in denying their motion for partial summary judgment. Defendants' arguments in this section involve the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101, 2-201, 2-109, 3-108 (West 1996)) and the Workers' Compensation Act (820 ILCS 305/5(a) (West 1996)). Plaintiff maintains that under Illinois law, the denial of a motion for summary judgment is not reviewable on appeal. Klemp v. Hergott Group, Inc., 267 Ill. App. 3d 574, 577 (1994); Tripi v. Landon, 140 Ill. App. 3d 230 (1986). It is well settled that a prior order denying a motion for summary judgment is not reviewable following an evidentiary trial, because the result of any error in such denial is merged by law in the subsequent trial. Thurmond v. Monroe, 235 Ill. App. 3d 281, 285 (1992); Pleasure Driveway & Park District v. Kurek, 27 Ill. App. 3d 60 (1975). However, these cases are inapplicable to the case at bar because defendants' arguments involving the Tort Immunity Act and Workers' Compensation Act were not presented to the jury.
Therefore, any error in the denial of summary judgment based on these issues was not merged in the subsequent trial. In addition, cases hold that where an appeal is otherwise properly before the appellate court from a final judgment, the court may review the denial of a motion for summary judgment. See Novak v. Insurance Administration Unlimited, Inc., 91 Ill. App. 3d 148, 152 (1980); Cedric Spring & Associates, Inc., v. N.E.I. Corp., 81 Ill. App. 3d 1031, 1034 (1980); Reznick v. Home Insurance Co., 45 Ill. App. 3d 1058, 1059 (1977). The procedural setting of those cases made the review of the denied motion acceptable. In those cases, as here, the denied motion was filed by the party taking the appeal from an otherwise final judgment. Rambert v. Advance Construction Co., 134 Ill. App. 3d 155, 165 (1985).
Therefore, we will review defendants' arguments on appeal. The grant or denial of summary judgment is reviewed on appeal de novo. Container Corp. of America v. Wagner, 293 Ill. App. 3d 1089, 1091 (1997). The function of the appellate court on review of summary judgment is to determine whether the trial court properly determined that no genuine issue of material fact had been raised, and if none was raised, whether judgment was proper as a matter of law. Malanowski v. Jabamoni, 293 Ill. App. 3d 720, 724 (1997).
We address defendants' arguments in logical order. Defendants maintain that section 3-108 of the Tort Immunity Act (745 ILCS 10/ 3-108(a)(West 1996)) ...