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Alms v. Baum

September 05, 2003

DAVID ALMS, INDEPENDENT ADM'R OF THE ESTATE OF STEVEN BERGER, DECEASED, AND SUSAN DELANTY, PLAINTIFFS-APPELLANTS,
v.
DANIEL BAUM AND RONALD MCDONALD HOUSE NEAR CHILDREN'S MEMORIAL HOSPITAL, INC., AN ILLINOIS NOT-FOR-PROFIT CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 98 L 2886 Honorable Martin S. Agran, Judge Presiding.

The opinion of the court was delivered by: Justice Reid

PUBLISHED

The decedent, Steven Berger, and appellant Susan Delanty were passengers in a two-seater sports car that was driven by defendant Daniel Baum (Baum), when he lost control of the vehicle and had an accident. Delanty and appellant David Alms, who is serving as the independent administrator of the estate of the deceased Berger, filed suit against Baum and defendant Ronald McDonald House Near Children's Memorial Hospital (Ronald McDonald House), based on a theory of respondeat superior. Ronald McDonald House subsequently filed a motion for summary judgment, which the trial court granted. On appeal, the appellants argue that the trial court erred when it determined that Baum was not acting as an agent of the Ronald McDonald House when the accident occurred. For the reasons that follow, we affirm the decision of the trial court.

BACKGROUND

On March 10, 1998, Alms and Delanty filed a 16-count complaint for wrongful death, a survival action and negligence against Baum and the Ronald McDonald House. The complaint alleged that on June 7, 1997, Berger and Delanty were passengers in Baum's automobile when he lost control of it and had an accident while negotiating a curve on a roadway in Williams Bay, Wisconsin. Berger was killed and Delanty suffered permanent injuries. The plaintiffs sought to recover damages.

From discovery deposition testimony, it was learned that beginning in 1978, Children's Oncology Services of Illinois, a nonprofit corporation, owned and operated a children's cancer summer camp, "One Step At A Time Camp," at George Williams College in Wisconsin. During the 1990s, Children's Oncology Services of Illinois changed its name to the Ronald McDonald House. The camp was founded by Edward Baum, M.D. (Dr. Baum), who served as its director from 1971 until his retirement in July 1997.

Each year since 1979, the camp conducted an orientation weekend for camp workers before the actual start of summer camp. The purpose of the weekend was to: (1) provide orientation and training for new and existing staff members and (2) organize and plan for the upcoming two-week camp session. Attendance at the orientation weekend was mandatory for administration staff, camp leaders and counselors.

Also, camp leaders and administrators held four organizational meetings during the year. The last of those meetings was held on the night of Friday, June 6, 1997. Attendance at the Friday night meeting was mandatory for camp leaders as well. The following day, on Saturday June 7, 1997, the two-day orientation weekend was scheduled to begin.

Although rooms were made available to camp leaders, Dr. Baum testified that if they chose to do so, camp leaders could leave the camp on Friday night and return the following morning. Dr. Baum testified that he would have objected to camp leaders drinking alcohol after the Friday night meeting because they were not supposed to drink when they were at camp regardless of whether they were on camp premises or elsewhere. Dr. Baum also said that he believed he had the right to tell camp leaders that they could not go to a local establishment and drink an alcoholic beverage. However, Dr. Baum admitted that there was no written policy or rule that prohibited camp leaders from drinking alcohol after the Friday night meeting.

Berger, Baum and Delanty served as camp leaders. Camp leaders were unpaid volunteers, who were responsible for providing their own transportation to and from camp. However, camp leaders would be reimbursed for traveling expenses that they incurred during the camp.

As camp leaders, Berger, Baum and Delanty attended the mandatory Friday night meeting. Dr. Baum testified that the meeting was scheduled to start at around 6:30 p.m. or 7 p.m. When the meeting ended around 9:30 p.m., a group of people who attended the meeting, which included Berger, Baum and Delanty, decided to go to a local establishment called the Keg Room.

After the Friday meeting ended, Dr. Baum testified, official camp business for the camp leaders would not begin again until the following Saturday morning. Dr. Baum testified that any camp business that took place between the camp leaders after the Friday meeting had concluded and before Saturday morning occurred at the election of the camp leaders.

Several leaders testified that going out as a group to the Keg Room or some other local establishment after the Friday night meeting had been a regular practice for years. It was also common for camp business to be discussed during these times. After the Friday meeting, Delanty brought materials from the camp with her to the Keg Room and worked on camp business while there. However, Baum and Berger did not bring any materials from camp to work on. Instead, Baum and Berger watched a basketball game on television and socialized while they were at the Keg Room.

Delanty, Berger and Baum were at the Keg Room for approximately two hours. Delanty testified that she, Berger and Baum were the last three to leave. Baum, who was leasing a two- seater sports car, offered to drive the three back to camp. Delanty sat on Berger's lap in the passenger seat of Baum's car. As they were returning to the camp, Baum, who testified that he drank five beers while at the Keg Room, lost control of the car and had an accident.

On March 10, 1998, Alms and Delanty filed suit against Baum and Ronald McDonald House. On January 22, 2001, Ronald McDonald House filed a motion for summary judgment, which the trial court granted on May 14, 2001. Subsequently, the appellants timely filed a notice of appeal on June 14, 2001.

ANALYSIS

The question that must be resolved is whether Baum was acting as an agent of Ronald McDonald House ...


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