Appeal from the Circuit Court of McHenry County. No. 07-LA-464. Honorable Thomas A. Meyer, Judge, Presiding.
In an action for the injuries plaintiff suffered while she was volunteering to help the Jaycees at an Oktoberfest event and another volunteer hugged her and attempted to throw her over his shoulder but fell down and landed on top of her, the trial court erred in entering the jury's finding that the Jaycees were vicariously liable for the conduct of the other volunteer and judgment was entered for the Jaycees, since plaintiff failed to present a prima facie case for imposing vicarious liability, especially in the absence of sufficient evidence that the kind of conduct involved in plaintiff's injury was the kind the volunteer was employed to perform and that the volunteer's conduct was motivated by a purpose to serve the Jaycees.
Daniel E. Compton, of Compton Law Group, of Elgin, for appellant.
Mark J. Vogg, Hans A. Mast, and Thomas J. Popovich, all of Law Offices of Thomas J. Popovich, P.C., of McHenry, for appellee.
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.
[¶1] This appeal arises from an incident in which Dennis Brinkman, a volunteer at an event staffed by the defendant, the Crystal Lake Jaycees, hugged and picked up another volunteer, the plaintiff, Penny Parks. Brinkman lost his balance and fell to the ground, injuring Parks. Parks sued, and the case went to a jury trial. The jury found the Jaycees vicariously liable for Brinkman's conduct. The Jaycees appeal, arguing that the verdict was against the manifest weight of the evidence. We reverse, holding that the Jaycees were entitled to judgment notwithstanding the verdict.
[¶2] I. BACKGROUND
[¶3] A. Factual Background
[¶4] The following facts are drawn from the trial testimony and other evidence submitted by the parties and are undisputed except as noted. One of the central issues at trial, as in this appeal, was whether hugging was " within the scope" of Brinkman's employment as a volunteer for the Jaycees. Thus, much of the evidence summarized here concerns the extent to which hugging was either customary or encouraged at Jaycee events. Other evidence that relates only to a specific issue on appeal is summarized elsewhere, when that issue is discussed. Finally, evidence
regarding other issues that are not raised in this appeal, such as Parks' injuries and damages, is largely omitted.
[¶5] On September 28, 2007, the Lakeside Legacy Foundation held an Oktoberfest event at the Dole mansion in Crystal Lake. There was a carnival on the grounds, and the Jaycees provided volunteers for the ticket booth, the beer tent, and security. The event began at 5 p.m. on Friday and continued through the weekend.
[¶6] The plaintiff was in her late thirties at the time of the accident. She was not a member of the Jaycees, but she was familiar with the group and had participated in Jaycee events before, beginning in 1994. The plaintiff had lived in Minnesota for several years. She also had lived in Illinois at various times, however, and she moved back to Illinois a few months before the accident. At the time of the accident, she was working in a sub sandwich shop as a management trainee. Her boss, Roger (" Chip" ) Whitman II, was a member of the Lakeside Legacy Foundation. He asked her if she would volunteer at the Oktoberfest event. He himself attended the Oktoberfest on Friday evening as a volunteer for Lakeside Legacy.
[¶7] Noni Valicenti, the plaintiff's sister, had been a member of the Jaycees for about 14 years. She was in charge of recruiting and organizing volunteers for the Oktoberfest event. She also asked the plaintiff to come volunteer at the event.
[¶8] The plaintiff arrived at the event at about 7:15 p.m. She checked in with Valicenti, who was at the ticket booth, and then toured the area around the beer tent, taking pictures of volunteers and guests with her camera. In some of the pictures she took, Jaycees had their arms around each other. The plaintiff saw a number of Jaycees she knew, including Brinkman. Brinkman was working as a Jaycee volunteer in the beer tent, either pouring or serving beer. The plaintiff greeted several of the Jaycees, hugging them as she did so. She and Brinkman did not greet each other at that time, as he was busy.
[¶9] There was conflicting evidence regarding the extent to which the plaintiff knew Brinkman prior to the accident. At trial, the plaintiff testified that she met Brinkman for the first time only a few weeks before the accident, at a wedding they both attended. After giving this testimony, the plaintiff was impeached with her deposition testimony that she first met Brinkman in 2004 or 2005. The plaintiff also testified at trial that, at the wedding as well as at a Jaycee event they both attended shortly before the Oktoberfest, Brinkman hugged her and she hugged him back. Whitman testified that the plaintiff told him after the accident that she knew Brinkman well.
[¶10] After the plaintiff took some pictures, she picked up her Jaycee volunteer's T-shirt and went to the bathroom to change into it. As she was returning to the beer tent to start her shift, she encountered Brinkman. Brinkman greeted her and hugged her. According to the plaintiff, her arms were at her sides during the hug because she was not expecting the hug. Brinkman then picked her up in the air so that she was on his shoulder. The two of them fell over, Brinkman landing on top of the plaintiff. The plaintiff testified that this was not the sort of hug that she usually received from Jaycees; she had never been picked up before when hugging a Jaycee.
[¶11] The plaintiff was dazed and injured, and after she picked herself up off the ground, she went to rest nearby. While she was resting, Whitman (who had heard that she had been injured) came and spoke with her. Whitman initially testified that the plaintiff said she had been hurt when
Brinkman picked her up and tried to sling her over his shoulder; the plaintiff did not say that Brinkman embraced her. On cross-examination, however, Whitman stated that the plaintiff might have mentioned a hug; he did not recall. The plaintiff testified that she told Whitman that Brinkman hugged her and picked her up and they fell over.
[¶12] The plaintiff then went to tell her sister what happened. Valicenti asked a fellow volunteer to take the plaintiff to the hospital. The plaintiff testified that she was in pain throughout the weekend and afterward. She returned to the Oktoberfest twice on Saturday but could not work. The plaintiff sustained injuries to her shoulder, neck, and back.
[¶13] Various witnesses testified at trial regarding the role of hugging within the Jaycees. The plaintiff testified that she knew many Jaycees, who were like a second family to her. It was common for them to greet one another with hugs, although Jaycees also greeted each other with handshakes. She would hug Jaycees to greet them when she knew them well. The plaintiff testified that she allowed Brinkman to hug her at the Oktoberfest because Jaycees " always embraced." When asked why, in her experience, Jaycees were " commonly greeting and hugging and--welcoming each other," the plaintiff responded that it was done to show that the Jaycees were a friendly and warm group that others would want to be a part of.
[¶14] Valicenti testified that the mission of the Jaycees was to promote business skills within its members, who were between 21 and 40 years old. (The name " Jaycees" was derived from the description of it as a " Junior Chamber of Commerce." ) This mission involved providing " opportunities for individuals to gain leadership skills, social responsibility skills, education skills, so that they can through their fellowship do good within the community." The Jaycees sponsored a variety of community service events. The group also had a social purpose, promoting close relationships among its members by sponsoring purely social events, and this was historically one of the group's purposes. In Valicenti's experience, building bonds between the members was just as important as the community service and skill improvement activities.
[¶15] At any Jaycee function, people would be greeted " by a hello, a handshake, a hug." This bonding would create a positive and inviting environment. When asked whether the hugs and handshakes were just in " the nature of working together over time and getting to know each other" or whether there was also a " Jaycee purpose" to them, Valicenti responded that it was the nature of the Jaycee organization and also many other organizations to foster this type of bonding and inviting atmosphere. On cross-examination, Valicenti agreed that all similar organizations had a social aspect, because no one would want to join an organization full of unfriendly people. The friendly atmosphere encouraged by the Jaycees was expressed by different people in different ways; some people hugged, some did not. Jaycees who served as recruiters at an event were instructed to be warm and friendly, not to hug people. The Jaycees had no written policy of encouraging hugging.
[¶16] Ann Brophy, a past president and vice president of the Crystal Lake Jaycees, testified that the Jaycees was founded to develop business and leadership skills among its members. Jaycee-sponsored events included training to improve members' skills at writing and public speaking, leadership skills, and networking. The Jaycees also sponsored community service events and social events for members and
prospective members. The Jaycees was an all-male organization until the mid-1980s, when it began accepting women members. The Jaycees had no policy encouraging hugging or physical contact. Greetings, handshakes, and hugs were common among members of the Jaycees. Picking people up was not commonly done by Jaycees; she had never seen this occur between Jaycees.
[¶17] Brophy herself had many close friends among the Jaycees, and she would hug them when she saw them. However, that was because of the friendship, not because of any Jaycee policy. She would do the same even if she had gotten to know these friends through a different organization. There were other Jaycees whom she did not hug, because she was not as close with them. She had never hugged or embraced anyone for the purpose of recruiting him or her to join the Jaycees.
[¶18] Brophy had known Brinkman through the Jaycees for several years; he hugged people at both Jaycee and non-Jaycee events. At the Oktoberfest in September 2007, Brinkman's job as a volunteer was to pour or serve cups of beer; embracing people was not part of his role.
[¶19] B. Procedural History
[¶20] In December 2007, the plaintiff filed a personal injury lawsuit against Brinkman, the Jaycees, and the Lakeside Legacy Foundation. The plaintiff's claim against Brinkman alleged that he negligently caused her personal injuries in that he " attempted to pick [her] up *** without the ability to do so safely" ; failed to warn her that he was going to make physical contact with her; and " man-handled [her] in an unreasonable and unauthorized manner." The claim against the Jaycees and the Lakeside Legacy Foundation alleged that Brinkman was acting as ...