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O'Rourke v. McIlvaine

Court of Appeals of Illinois, Second District

September 30, 2014

ROSEMARY O'ROURKE, Plaintiff-Appellant,

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Lake County. No. 11-L-906. Honorable Diane E. Winter, Judge, Presiding.


In an action for negligent hiring and retention alleging that a man who worked for defendants' residential construction firm in the course of completing an insulation job at plaintiff's house broke into her house a few weeks after the job, restrained her and stole some items from the house, the appellate court upheld the trial court's entry of summary judgment for defendants based on section 317 of the Restatement (Second) of Torts, since defendants' work relationship with the man ended several weeks before the home invasion, plaintiff's home could no longer be considered defendants' jobsite for purposes of her claim for negligent hiring and retention, plaintiff did not allege the man used any of defendants' instrumentalities in the home invasion, defendants did not have any right to control the man when he invaded plaintiff's home, and there was no allegation of a failure to warn plaintiff of the man's criminal record.

Donald J. Morrison, of Morrison & Morrison, P.C., of Waukegan, for appellant.

Bradley E. Puklin and Robert K. Scott, both of Scott, Halsted & Babetch, P.C., of Chicago, for appellees.

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Hutchinson concurred in the judgment and opinion.



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[¶1] The trial court granted summary judgment against plaintiff, Rosemary O'Rourke, on her negligence complaint against defendants, Bruce McIlvaine and McIlvaine Enterprises, Inc. Plaintiff's complaint sought to hold defendants accountable for a home invasion committed against her by Alejandro Requena, who had previously worked under defendants' supervision on an insulation project inside plaintiff's home. The trial court reasoned that defendants could not be held responsible for the crime, because the work relationship between defendants and Requena had ended several weeks before and thus plaintiff's home could no longer be considered defendants' jobsite. For the following reasons, we affirm.


[¶3] In November 2011, plaintiff filed her complaint for negligent hiring and retention. As later brought out in summary-judgment proceedings, the uncontested facts of this case are as follows. In 2010, defendant Bruce McIlvaine (Bruce) was president of defendant McIlvaine Enterprises (McIlvaine), a residential construction firm. Plaintiff hired McIlvaine to replace insulation in the attic of her home in Bannockburn, where she lived alone. On January 12, 2010, Bruce began the insulation project, accompanied by an independent contractor he frequently retained to assist him with projects. On the first day of the job, Bruce realized that he needed additional help to finish the project within the agreed time frame. Bruce consulted an associate, who recommended a laborer named Santiago Waight. Bruce contacted Waight and asked if he could assist with the insulation project and if he could find others to help as well. Waight agreed to help and said that he would bring two others. The next day, January 13, Waight arrived at plaintiff's home with two men, Requena and Alan Romero. McIlvaine did not inquire into Requena's background. In fact, Requena had criminal convictions for unlawful possession of a motor vehicle and for theft from, and abuse of, an elderly person. McIlvaine permitted Waight, Romero, and Requena to work on the project, which they completed the next day.

[¶4] On March 9, 2010, a man rang plaintiff's doorbell. Plaintiff did not recognize the man and addressed him through a second-story window. The man said that he was there to clean the furnace. Plaintiff said that he had the wrong house, and then she phoned the police. Later that day, plaintiff heard a noise inside her house. She stepped out of her bedroom to see a man whom she later identified as Requena. She had not invited Requena into her home. The record suggests that

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he broke into the house through an outside door. Requena restrained plaintiff, beat her, and stole items from the house.

[¶5] Plaintiff's complaint alleged that defendants were negligent for failing to investigate Requena's background before allowing him into plaintiff's home. Plaintiff asserted that defendants' negligence permitted Requena to learn " intimate details" about plaintiff and her home and so was the proximate cause of plaintiff's injury.

[¶6] In January 2012, defendants filed a motion for judgment on the pleadings (see 735 ILCS 5/2-615 (West 2012)). Defendants contended that, as a matter of law, they had no responsibility for Requena's actions occurring two months after their work relationship with him was terminated. The motion was heard by the Honorable David M. Hall, who entered a written order in April 2012 denying the motion " for the reasons stated in the record." The record, however, contains no transcript of the motion hearing or other indication of Judge Hall's reasoning.

[¶7] In April 2013, defendants filed a motion for summary judgment (see 735 ILCS 5/2-1005 (West 2012)). Defendants again contended that, as a matter of law, they had no duty to plaintiff when the home invasion occurred. In response, plaintiff asserted that Judge Hall's denial of defendants' motion for judgment on the pleadings was the law of the case and, accordingly, required denial of the motion for summary judgment. Alternatively, plaintiff addressed the merits, contending that there was an issue of material fact as to whether defendants were negligent. In arguing that defendants had a duty of care toward her, plaintiff commented that " [t]he rule of law regarding employee liability for criminal acts of employees originates from the Restatement (Second) of Torts, § 317 (1965)." Plaintiff contended that the requisites of section 317 for the existence of a duty of care were satisfied in this case.

[¶8] The summary-judgment motion was heard by the Honorable Diane E. Winter. Judge Winter concluded that she was not bound by Judge Hall's denial of defendants' motion for judgment on the pleadings, as facts had developed since that ruling. Reaching the merits of the summary-judgment motion, Judge Winter applied the principles of section 317 of the Restatement (Second) of Torts, as summarized by the First District Appellate Court in Escobar v. Madsen Construction Co., 226 Ill.App.3d 92, 95, 589 N.E.2d 638, 168 Ill.Dec. 238 (1992):

" [A]n employer may be liable for harm caused by an employee acting outside the scope of his employment if the employee is on the employer's premises or using chattel of the employer, and the employer has reason to know of the need and opportunity for exercising control over the employee."

[¶9] Judge Winter found that plaintiff's home could not be considered defendants' premises, or jobsite, once the work relationship between Requena and defendants had ended. Judge Winter also found that Requena was not using any chattel or instrumentality of defendants' when he committed the home invasion. Consequently, Judge Winter held ...

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