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John Nagajew and Harriet Nagajew v. Aaron Slim and Montana Trucking

United States District Court, Northern District of Illinois


September 20, 2012

JOHN NAGAJEW AND HARRIET NAGAJEW
v.
AARON SLIM AND MONTANA TRUCKING, INC.

Name of Assigned Judge Elaine E. Bucklo Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Defendants' motion to dismiss count II of plaintiffs' complaint [37] is granted.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

On September 23, 2010, plaintiffs John and Harriet Nagajew filed a four-count complaint against Aaron Slim and Montana Trucking, Inc. to recover for the injuries plaintiffs have sustained as a result of a car accident in which defendant Slim allegedly collided into the rear end of plaintiff John's motorcycle. Defendants have filed a motion to dismiss count II of plaintiffs' complaint. Count II alleges negligence against defendant Montana, defendant Slim's employer, under a theory of negligent hiring, retention, supervision, and oversight.

Relying on Neff v. Davenport Packing Co., 268 N.E.2d 574 (Ill. App. Ct. 1971) and Gant v. L.U. Transp., 770 N.E.2d 1155 (Ill. App. Ct. 2002), defendants argue that because defendant Montana has admitted responsibility for defendant Slim under respondeat superior, plaintiffs cannot maintain their claim for negligent hiring. Indeed, Gant reaffirms the rule originally set forth in Neff: "Notwithstanding the fact that Illinois is a comparative negligence jurisdiction, a plaintiff who is injured in a motor vehicle accident cannot maintain a claim for negligent hiring, negligent retention or negligent entrustment against an employer where the employer admits responsibility for the conduct of the employee under a respondeat superior theory." Gant, 770 N.E.2d at 1159.

Plaintiffs respond by arguing that under Lockett v. Bi-State Transit Auth., 445 N.E.2d 310 (Ill. 1983), a principal may be liable for willful and wanton, though not negligent, misconduct even if an agency relationship is conceded. As defendants point out, plaintiffs have not pleaded a claim for willful and wanton entrustment. While "a plaintiff may attempt to defeat a motion to dismiss by submitting a brief that adds facts . . . 'consistent with the allegations in the complaint' . . . a brief cannot amend a complaint and add new legal claims." Savage v. Finney, No. 12 C 2398, 2012 WL 2374687, at *3 (N.D. Ill. June 20, 2012) (quoting Hentosh v. Herman M. Finch Univ., 167 F.3d 1170, 1173 n. 3 (7th Cir. 1999); citing Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009)). Because plaintiff's complaint does not allege willful and wanton entrustment, Lockett is inapposite. As such, count II is dismissed.

10C6105 John Nagajew and Harriet Nagajew v. Aaron Slim and Montana Trucking, Inc. Page 1 of 1

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