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Jacobs v. Yellow Cab Affiliation, Inc.

Court of Appeals of Illinois, First District, Fourth Division

March 16, 2017

MARC M. JACOBS, and DEBORAH JACOBS, Plaintiffs-Appellees,

         Appeal from the Circuit Court of Cook County, No. 15-L-04995; the Hon. Daniel J. Lynch, Judge, presiding.

          Steven R. Bonanno, Carlton D. Fisher, and Anne C. Couyoumjian, of Hinshaw & Culbertson LLP, and Richard C. Godfrey, R. Christopher Heck, and Catherine L. Fitzpatrick, of Kirkland & Ellis LLP, both of Chicago, for appellant Yellow Cab Affiliation, Inc.

          Kevin Q. Butler, Cornelius E. McKnight, Stanley A. Kitzinger, Nathan P. Karlsgodt, Joanne M. Krol, and Bryan T. Butcher, of McKnight Kitzinger & Pravdic LLC, of Chicago, for other appellant.

          Robert A. Clifford, of Clifford Law Office, and Timothy S. Tomasik and Patrick Giese, of Tomasik Kotin Kasserman LLC, both of Chicago, for appellees.

          Webster Chamberlain & Bean LLP, of Washington D.C. (Arthur L. Herold, of counsel), for amicus curiae Taxicab, Limousine & Paratransit Association.

          Panel JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Ellis concurred in the judgment and opinion. Justice Cobbs dissented, with opinion.


          McBRIDE, JUSTICE

         ¶ 1 Yellow Cab Affiliation, Inc. (YCA), was sued as the apparent principal of Chicago taxicab driver Cornelius C. Ezeagu, whose alleged negligence while exiting a highway caused a high speed crash and severe traumatic brain injuries to his passenger, attorney Marc M. Jacobs. YCA and Ezeagu now appeal from a $21.98 million jury verdict and judgment in favor of Jacobs and a $3.96 million award to his wife, Deborah Jacobs. YCA contends the trial court erred by (1) letting the Jacobses proceed on claims of apparent agency; (2) excluding evidence that the cab's appearance, which was the basis for the apparent agency allegations, was involuntary and mandated by Chicago ordinance; (3) giving a jury instruction relevant only to medical negligence claims; and (4 and 5) allowing evidence and a jury instruction as to the passenger's purported habit of taking YCA vehicles so that he could show, despite having no memory of the evening, that he had deliberately chosen the YCA vehicle. Ezeagu, who contends the accident was caused by his passenger's sudden urging to exit the highway when it was too late to safely do so, argues it was error to (1) allow an accident reconstruction expert to speculate about the cab's highway speed despite eyewitness testimony, (2) allow the passenger to put on testimony that he was a man of "careful habits, " (3) give a confusing jury instruction about the passenger's habit of taking YCA cabs, (4) refuse a special interrogatory on sole proximate cause, and (5) reject a motion for remittitur of the wife's award for loss of consortium. We allowed Taxicab, Limousine & Paratransit Association (TLPA) to file an amicus curiae brief. For the following reasons, we affirm.

         ¶ 2 On August 31, 2005, at approximately 8 p.m., Ezeagu was parked in a cabstand in Chicago's River North neighborhood, across the street from the Joe's Seafood restaurant where Jacobs was having dinner with one of his long-term clients. As the client, Jean Zielinski, was departing in her own vehicle, Jacobs crossed the street, got into the back of Ezeagu's taxi, and asked to be taken home to Hinsdale, Illinois, which is a community southwest of Chicago.

         ¶ 3 Later, at about 8:45 p.m., Ezeagu lost control of the minivan on the cloverleaf exit ramp leading from northbound Interstate 294 (I-294) to Hinsdale. The posted highway speed limit was 55 miles per hour, and the cloverleaf's posted limit was 25 miles per hour. Opposing experts in accident reconstruction differed only somewhat in their opinions of the vehicle's actual speeds. The Jacobses' expert, Michael E. O'Hern, determined the cab was moving 60 to 70 miles per hour on the highway and had decelerated only to 58 miles per hour when it left the banked edge of the cloverleaf. YCA and Ezeagu's expert, Roger W. Barrette, calculated a range of 55 to 60 on the highway, thus, leaving open the possibility that Ezeagu was not speeding on I-294, but was nonetheless moving at 53 or 54 miles per hour when he lost control on the cloverleaf. After slipping beyond the curved ramp, the speeding taxi went airborne for 32 feet, struck the ground and continued forward over a grassy drainage area, and then crashed into a concrete retention wall at either 43 or 46 miles per hour according to the Jacobses' expert or 47 miles per hour according to the defense expert. Ezeagu stepped out from the vehicle, fell down, and was initially unable to stand. Other motorists came to assist and called for emergency responders, and then the driver was able to call his brother, Matthew C. Ezeagu, who was the owner of the minivan and its Chicago cab license.

         ¶ 4 Because Matthew's corporation, Zegus, Inc. (Zegus), paid weekly fees to affiliate the cab with YCA, it was painted in YCA's all-over, bright yellow color scheme and bore the YCA logo. YCA did not own vehicles or Chicago cab licenses or employ drivers. Instead, pursuant to local ordinance, YCA was an "Affiliation" that provided its membership of cab license owners "with a Chicago business address, telephone number registered to the affiliation, color scheme where applicable, a trade name or emblem where applicable, a two-way radio dispatch system, insurance and the designation of an authorized registered agent." Chicago Municipal Code § 9-112-010(a) (amended Nov. 15, 2000) (section setting out "Definitions"). The ordinance further provided that "All taxicab vehicles belonging to a single affiliation must display that affiliation's color scheme and logo." Chicago Municipal Code § 9-112-360(a) (added Jan. 18, 2012) (section regarding "Taxicab vehicle color schemes").

         ¶ 5 Emergency medical responders found Jacobs on the floor of the minivan, behind its front seats. He was unresponsive, his breathing was slow and labored, and his jaw was too tightly clenched for intubation, which were indications that he had suffered serious head trauma and was in need of critical injury care. In the ambulance, Jacobs scored only 5, and then only 3, on the Glasgow Coma Score, with 3 being the lowest possible score for a living person. Jacobs subsequently filed this negligence suit and went to trial on a third amended complaint, which included one count against Ezeagu, one count against YCA, and his wife's two counts of loss of consortium.

         ¶ 6 It is undisputed Jacobs had no memory of a five-week period that began about a week before the accident. Since he could not testify about what occurred on that evening in late August but needed to prove that he had deliberately chosen the YCA vehicle, Jacobs intended to put on evidence of his past behavior and argue in part that he continued his practice. The trial court denied YCA's motion in limine No. 12 to bar the Jacobses from presenting habit evidence. The court also denied Ezeagu's motion in limine to bar the Jacobses' accident reconstruction expert from testifying about the highway speed of the cab, despite Ezeagu's argument that the expert's opinion was unnecessary when there were eyewitness accounts. In addition, the trial court granted the Jacobses' motion in limine No. 23 to bar evidence of Chicago's taxicab regulations affecting the cab's appearance and of the contractual relationship between YCA and the cab's owner, Zegus, on grounds that whether there was an actual agency was not relevant to claims alleging the appearance of agency.

         ¶ 7 The jury trial lasted just over two weeks in March 2015 and included evidence about the night of the accident as well as Jacobs's subsequent medical care, his inability to continue practicing law, and difficulties in his relationship with his wife. The following summary excludes details of his medical treatment and employment and focuses on the evidence relevant to the appellate arguments.

         ¶ 8 Zielinski testified that prior to the accident in 2005, she became Jacobs's client in 1996 when she was a vice president and manager in a commercial real estate group of Wells Fargo Bank and had retained Jacobs to write loan documents for the 20 to 30 large commercial loans which she was closing every year. Jacobs's office was across from hers on Franklin Street in Chicago, and at least 40 to 50 times a year, they met at the cabstand on his side of the street to travel together to lunch or dinner meetings or to her clients' offices. Jacobs would always select a Yellow Cab and would have them step out of the queue if necessary to wait for a Yellow Cab. Because Jacobs was paying their cab fare, Zielinski never questioned his insistence on Yellow Cabs and "just figured, you know, everyone has their quirks" and that "[Jacobs] was a Yellow taxi man like [Zielinski] flew United for business all the time." She never saw Jacobs take a taxi other than a Yellow, except for once when they were in San Francisco. On the night of the accident, Jacobs waited with her outside the restaurant until the valet returned with her car, she offered to take Jacobs to the train station, as she sometimes did, but he declined, saying to her, "I'm going to go grab the Yellow cab, " since there was one waiting across the street.

         ¶ 9 Ezeagu, who was born in 1972, testified that he became a licensed chauffeur about four months before the accident. To qualify for the Chicago license, he took a course in 2005 conducted by the municipality at Harold Washington College, addressing road safety and other topics, and then passed an exam. He had also taken a two-hour course at YCA's headquarters on how to use the Gandalf system, and afterward YCA assigned him a personal number which he could enter into the Gandalf if he "need[ed] a fare." He subsequently leased Chicago cab No. 160 from his brother's corporation. Ezeagu had been parked in the cabstand for about 5 to 10 minutes and become the first cab in line by the time Jacobs walked across the street from the restaurant. After Jacobs asked to be taken to Hinsdale and Ezeagu said he did not know the way, Jacobs responded that he would provide directions as they went. Complying with his passenger's instructions, Ezeagu then drove to Lakeshore Drive, merged onto Interstate 55, and proceeded onto northbound I-294. Ezeagu then asked where they would be exiting and Jacobs responded, "[K]eep going, I will direct you." Jacobs, however, was "with his phone" until moments before the crash when he screamed "Get off here, " meaning that Ezeagu should take the exit. At the time, Ezeagu was driving "in the second lane to the right, " so he "quickly tried to get into the right lane to *** enter the ramp." However, he lost control of the minivan as he entered the cloverleaf exit ramp, at "maybe like 50 [mph]."

         ¶ 10 Ezeagu's account differed to some extent from that of eyewitness Ruben Arce, who testified that at about 8:45 p.m., he was riding in the passenger seat of a commercial box truck heading north in very light traffic on I-294. Arce's box truck was in the far right lane of the four northbound lanes, moving at about 55 to 60 miles an hour, which was slightly slower than the car traffic. Arce noticed the yellow taxi because, without signaling, it "just swerved to the right" and "cut in front" of Arce's truck, moving all the way from the far left lane to the far right lane, off the highway, and into a ditch. This occurred about a quarter of a mile before the Ogden exit and "it didn't seem like [the taxi driver] was making an exit." Arce's truck was "doing at that time between 57, 58-between 55, 60" and the taxi "was going faster than [that]." Arce did not see any brake lights, and it appeared that the driver actually sped up in the ditch because the taxi flew up before landing on the ramp and continuing forward across the grassy area until it hit the wall.

         ¶ 11 The plaintiffs' certified crash reconstruction expert was Tinley Park police officer O'Hern, who supervises the police department's accident reconstruction team and has reconstructed more than 1000 accidents, most of them involving serious injuries or fatalities. O'Hern reviewed the Illinois police reports, reconstruction report, and photographs; read depositions; inspected and took measurements of the 2003 minivan and an undamaged exemplar; and, surveyed the actual crash site, which he was able to pinpoint based on the police photos and gouges that the cab made when it struck the concrete wall. This information enabled him to create a diagram of the scene and use crash data created by the National Highway Traffic Association, which led O'Hern to conclude that the speed of the taxicab was between 43 and 46 miles per hour when it hit the concrete wall. Then, working backwards through the event, he determined the cab's speed when it failed to navigate the curved exit ramp and vaulted into the air for approximately 32 feet. Depending on how much the driver had braked, the cab must have been traveling 57 to 71 miles per hour on the highway, but most likely 60 to 70 miles per hour, before it veered off the exit ramp. Therefore, the cab had been moving faster than the posted highway speed limit of 55 miles per hour and faster than the exit ramp posted speed of 25 miles per hour. If Ezeagu had been traveling at 55 miles per hour as he stated in a deposition, and had fully braked, then the cab would have travelled less than 252 feet, instead of striking the concrete barrier which was 336 feet from the roadway. When asked whether he had used and believed the eyewitness Arce's testimony, O'Hern answered affirmatively:

"They said they were traveling about the same speed as traffic. Well, [I-294] when it's light traffic or medium traffic as they said, it doesn't travel 55 to 60. It travels around 70.
So in terms of they're traveling with traffic, but they're only going 55 to 60, they also said that the taxicab accelerated to get in front of them, which would put the taxicab going faster than 60. Their testimony is consistent with my findings."

         ¶ 12 O'Hern was also asked about testimony indicating the cab and the eyewitness were traveling with the flow of traffic. O'Hern said that as a police officer for almost 26 years, he knew that the flow of traffic is "usually 10 miles an hour or more over the speed limit on a highway, and it's usually a lot more[, ] being realistic here" and also that a traffic study for the tollway system had shown that the average speed was 70 miles an hour.

         ¶ 13 The defendants' certified crash reconstruction expert, Lake Villa police department officer Barrette, indicated he had 30 years experience in law enforcement, extensive training in mechanical engineering and accident reconstruction, and was part of Lake County's major crash assistance team, which is a 40-member team of accident investigators, any one of whom may be called to near-fatal and fatal accidents in Lake County, Illinois, to investigate and recreate the crashes. Together, Barrette, O'Hern, and several lawyers visited the crushed vehicle and the crash site to record their observations and measurements. The two experts used essentially the same information and processes as they worked backward through the event to form their opinions. Although O'Hern determined Ezeagu's collision speed with the wall was 43 miles per hour, Barrette determined it was 47 miles per hour, because the cab not only struck the concrete, but also had sufficient residual energy to then shift 10 feet to the left. Barrette and O'Hern also made different assumptions about how strongly the driver depressed the brakes as the cab slid over the grass. O'Hern believed Ezeagu braked somewhat, but Barrette concluded there was no evidence of braking. This was one of the reasons O'Hern calculated slightly higher speeds than Barrette did for the cab as it left the cloverleaf and when it was on the exit ramp of the highway. Barrette also said eyewitness Arce testified that the cab was moving 55 to 60 miles an hour on the exit ramp.

         ¶ 14 The vehicle owner (Matthew Ezeagu) testified that as an affiliate of YCA, he had to paint his white Chrysler Town & Country minivan a certain color and then have the vehicle approved by YCA. He chose to have the paint applied by a body shop in the Rogers Park neighborhood and then took the minivan to YCA for its approval. He was then able to purchase a YCA logo from YCA and have it affixed to the cab's door, purchase a YCA radio, and make use of YCA's credit card system. He chose to affiliate with YCA because it was "one of the more popular affiliations, " and the YCA logo denoted quality and good customer service. He paid weekly fees to YCA, and if he did not make the payments, their relationship would "be cancelled." Inside the cab, visible to the passenger was a license card or "hard card" that informed the passenger how to contact the city's consumer services office with any complaints and stated Zegus was the owner of the cab and cab medallion No. 160.

         ¶ 15 Jacobs testified that his habit of taking Yellow Cabs started in the late 1980s when his work required him to use a lot of cabs. Chicago cabs seemed to be either Checker or Yellow, and he had a bad experience with a Checker driver. Jacobs recalled:

"I was in a Checker cab with a driver who was very reckless. I kind of feared for my life. He was making unusual moves and cutting off other cars. It was a terrible experience.
I am a very risk adverse person. So I thereafter just went for Yellow cabs. And they were everywhere. It didn't matter if I wanted to stick with taking Yellow cabs all the time because you could always get one. They were everywhere.
So even after the nice bloated style sedans got shrunk down to normal sedans, I still had good experiences with Yellow. They were cleaner. They were well maintained. The drivers were responsible. They were my cab company."

         ¶ 16 During this time period, Jacobs thought that the drivers were employees of Yellow Cab. He also testified that his loyalty to "the brand of Yellow Cab" was reinforced when he observed a lot of other taxis during his walks from the Metra station and noticed that the back seats of those vehicles were dirty and the cabbies were "driving a little dangerously." When asked whether he had chosen Ezeagu or Yellow Cab on the night of the accident, Jacobs responded, "Since Yellow Cab was my cab company, then I can say without a doubt I was relying on Yellow Cab as I had hundreds of times before."

         ¶ 17 Jacobs's cell phone records did not support Ezeagu's account of the accident. In 2005, Jacobs's employer did not provide a cell phone, but he had a personal "flip" (hinged or clamshell) style cell phone which he used infrequently. His phone records indicated that on the morning of the accident, Jacobs made two calls around 8 a.m. and that in the evening he made four calls. At 7:37 p.m., Jacobs dialed his voicemail account for two minutes, called home at 8:14 p.m. for five minutes, called a friend's number at 8:19 p.m. for two minutes, and then called voicemail again for one minute beginning at 8:25 p.m. Depending on traffic, it would have taken 35 to 45 minutes to drive from Grand Avenue and Lake Shore Drive to I-294 and Ogden Avenue.

         ¶ 18 Jacobs also testified that when he worked late at the office, he would take a Flash Cab home because he could pay for the cab fare and tip with a voucher which his law firm would then bill back to a particular client.

         ¶ 19 Robert William Ellis was the manager for customer services at YCA. Ellis died before the trial, but portions of his discovery deposition were read into the record. Ellis explained that YCA contractually authorized and required its affiliated taxicab medallion holders to use the YCA color scheme and logo on the exterior of their cabs. The yellow paint and logos would be affixed by a "qualified shop" rather than by YCA. YCA also provided its affiliates with "free" car washes at its own facility and with Gandalf radio calls, which were fare requests that a driver could choose to accept or not accept. Each affiliated cab owner paid YCA weekly for the relationship. Ezeagu leased cab No. 160 from his brother's corporation and had no direct relationship with YCA. Inside the cab, in plain view of the passenger, were Ezeagu's chauffer's license and the "hard card" identifying the brother's corporation, Zegus, as the owner of cab No. 160.

         ¶ 20 John Moberg, the president of Wolley Cab, Inc., doing business as Checker Taxi Affiliation, had been in the taxicab industry for well over 30 years, beginning as a driver for Checker Taxi Company in 1978 and then in various management positions with Checker Taxi Company and Checker Taxi Association. Moberg said he was familiar with the appearance of Chicago cabs when the accident occurred in 2005 and when he testified during the 2015 trial. He was shown 20 recent photographs of 10 different Chicago cabs, including Blue Ribbon Taxi Association, Inc., Checker Taxi Affiliation, Inc., Choice Taxi Association, Inc., City Service Taxi Association, Dispatch Taxi Affiliation, 5 Star Taxi Association, Koam Taxi Association, Inc., Service Taxi Association, Inc., Sun Taxi Association, Inc., and Top Cab Association. The photos showed a full view of each vehicle and then a closer view of the vehicle's "insignia, " logo, or emblem on the right rear door. Moberg confirmed that, in most instances, the logos or emblems used in 2015 had been identical in 2005. Moberg also indicated that as soon as a passenger "sits in the back [seat] of the cab, " "the hard card that is assigned to every particular car, which describes the owner of that taxi" would be "visible" to the passenger.

         ¶ 21 Prior to closing arguments, YCA unsuccessfully moved for a directed verdict on grounds that the plaintiffs failed to prove two of the three elements of an apparent agency claim, including that YCA had affirmatively held out the driver as its agent on the night of the accident and that Jacobs relied on that appearance when he chose the cab, as opposed to merely getting into the closest, most convenient cab.

         ¶ 22 In closing arguments, the plaintiffs' attorneys argued that in 2005, YCA-affiliated cabs were marked with the same "iconic emblem" that had been painted on Yellow Cab Company's vehicles when Jacobs first moved to Chicago in the 1980s and started preferring that brand of taxicab. Counsel argued that YCA held out "history" and that Jacobs was loyal to the "brand" when he "selected those cabs for over 15 years."

         ¶ 23 After deliberations, the jury returned its verdict in the plaintiffs' favor, in the total amount of $29.5 million which was reduced by 12% for the passenger's contributory negligence. The jury also answered three special interrogatories in the plaintiffs' favor: (1) "Did Yellow Cab Affiliation, Inc., hold itself out as a provider of taxicab services?" (2) "Did Marc Jacobs know, or should he have known, that Cornelius Ezeagu was not an employee of Yellow Cab Affiliation, Inc.?" and (3) "Did Marc Jacobs rely on Yellow Cab Affiliation, Inc., to provide him taxicab services?"

         ¶ 24 YCA filed a posttrial motion seeking judgment or a new trial. The motion reiterated YCA's prior arguments and the trial court denied the motion. YCA immediately filed a Chapter 11 bankruptcy petition, and then, with the bankruptcy court's authorization, this appeal.

         ¶ 25 YCA's main contention is that it did not "hold out" Ezeagu as its agent and that allowing the Jacobses to maintain and recover on a tort claim against YCA on the basis of the appearance of the cab was error, because the interior and exterior appearance of the vehicle was dictated by the comprehensive taxicab regulations found in chapter 9-112 of the Municipal Code of Chicago (Code). Chicago Municipal Code § 9-112-010 et seq. (amended Nov. 15, 2000). YCA asserted this argument in various motions throughout the proceedings and contends the trial court's rulings eliminated the first prong of an apparent authority claim and also negated Daniels v. Corrigan, a First District decision indicating that YCA's compliance with the Code did not create an actual agency relationship with a cab driver. Daniels v. Corrigan, 382 Ill.App.3d 66, 77-80, 886 N.E.2d 1193, 1207-08 (2008). YCA contends the judgment is particularly unfair when, under the ordinance then in effect, YCA would have been fined had it painted on the cab's exterior the words "independently owned and operated by" and the medallion owner's name. YCA contends there was no way for it to have modified its conduct or otherwise minimized its exposure to liability for the actions of a cab driver with whom it had no relationship and could not control. YCA further argues that because the Code-mandated "hard card" of the medallion owner's license was prominently displayed inside the vehicle stating "Zegus, Inc." instead of stating "Yellow Cab Affiliation, Inc., " Jacobs could not have reasonably relied on the driver being YCA's agent. See York v. Rush-Presbyterian-St. Luke's Medical Center, 222 Ill.2d 147, 202, 854 N.E.2d 635, 665-66 (2006) ("if a patient is placed on notice of the independent [contractor] status of the medical professionals [at the hospital], it would be unreasonable for a patient to assume that these individuals are employed by the hospital" and the patient cannot argue "there was an appearance of agency between the independent contractor and the hospital").

         ¶ 26 YCA contends the Jacobses' suit should never have gone to trial and would not have if the court had properly granted YCA's motion for summary judgment in 2009 as to the Jacobses' first amended complaint or YCA's motion for summary judgment in 2013 as to the Jacobses' second amended complaint. Circuit Court Judge Thomas Quinn presided over the first motion for summary judgment and Circuit Court Judge James N. O'Hara presided over the second motion for summary judgment. The trial and posttrial proceedings were conducted by Circuit Court Judge Daniel J. Lynch. YCA contends it was error when Judge Lynch granted the Jacobses' motion in limine No. 23 in 2015, prohibiting all evidence at trial of the Code's extensive regulation of taxicabs and the contractual relationship between YCA and the cab's owner and that this ruling prevented the jury from understanding that the cab's appearance was mandated by the Code and not YCA. YCA unsuccessfully repeated this argument in its motion for a directed verdict and its posttrial motion for judgment notwithstanding the verdict, or in the alternative, a new trial.

         ¶ 27 Amicus curiae TLPA is national organization that represents owners and managers of taxicab, limousine, sedan, airport shuttle, paratransit, and nonemergency medical fleets. TLPA suggests the verdict cannot stand because of its "ominous" potential impact: it exposes every Chicago taxi affiliation to apparent agency liability and, if YCA follows through on its bankruptcy filing, then YCA affiliates might have to switch to some other organization and bear the expense of repainting their vehicles and the inconvenience of switching out their meters, dispatch radios, and credit card processing equipment. TLPA also suggests it was error to bar evidence of the Code overlaying the relationship between cab affiliations and drivers, and that it could not be coincidental that within weeks of YCA's bankruptcy filing, Chicago revised the Code to permit medallion owners to display on their vehicles "Owned By" or "Independently Owned By" followed by their full names. TLPA also calls our attention to Daniels, 382 Ill.App.3d 66, 886 N.E.2d 1193, and similar precedent.

         ¶ 28 The Jacobses respond that the Code is silent on the design of the cabs, the logos used, and the branding that YCA deliberately engaged in when it duplicated the appearance of the classic Yellow Cab Company's vehicle. The Jacobses contend YCA apparently wanted to capitalize on the cab company's historic good will and reputation in Chicago, while minimizing into obscurity the fact that the historic fleet of cabs and employed drivers no longer exist and have been replaced by an affiliation relationship. The Jacobses contend that the perception that Yellow Cab was still a unified, monolithic brand was the result of YCA's own calculated and volitional marketing decision to use the historic Yellow Cab Company's color scheme and nearly the same logo, and consequently, YCA was "holding out" the driver as its agent. The Jacobses also contend the precedent YCA relies upon is not on point. Furthermore, the words "owner" or "operator" do not appear on the "hard card, " meaning that Jacobs was not put on notice of the owner or operator's true identity. The Jacobses conclude there is no merit to YCA's argument that it cannot be held liable under the theory of apparent agency.

         ¶ 29 YCA first argues the merits of its two motions for summary judgment, motion for a directed verdict, and posttrial motion, followed by the merits of granting the Jacobses' motion in limine No. 23, and the proper way to instruct the jury.

         ¶ 30 The denial of a motion for summary judgment is usually not reviewable after the case has been tried, but YCA contends its two motions for summary judgment present the exception of an issue of law which was not presented to the jury. See Valentino v. Hilquist, 337 Ill.App.3d 461, 467, 785 N.E.2d 891, 897 (2003) (addressing defendants' arguments that they were not liable for judgment where statutes immunized governments from tort liability and made workers' compensation system the exclusive remedy); Battles v. La Salle National Bank, 240 Ill.App.3d 550, 558, 608 N.E.2d 438, 443 (1992). We find, however, that the merits of YCA's argument for summary judgment as to the (first) amended complaint became moot in 2009 when the Jacobses filed their second amended complaint and that the merits for YCA's argument as to the second amended complaint became moot in 2015 when the Jacobses filed their third amended complaint. When an amendment does not refer to or adopt a prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn. Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill.2d 150, 154, 449 N.E.2d 125, 126 (1983). Furthermore, the arguments for summary judgment reappeared during the trial in opposition to the Jacobses' motion in limine No. 23, in YCA's motion for a directed verdict, and in YCA's posttrial motion, and these three latter arguments are unquestionably reviewable.

         ¶ 31 The following legal principles are pertinent to those reviewable rulings. "Apparent authority in an agent is the authority which the principal knowingly permits the agent to assume, or the authority which the principal holds the agent out as possessing." Gilbert v. Sycamore Municipal Hospital, 156 Ill.2d 511, 523, 622 N.E.2d 788, 795 (1993); Restatement (Third) of Agency § 2.03 (2006). A principal's manifestation of its agent's authority is conduct that is observable by others that expresses meaning, and the relevant state of mind is that of the person who observes or otherwise learns of the manifestation. Restatement (Third) of Agency § 1.03 cmt. b (2006). Thus, when a purported principal has created the appearance that someone is his or her agent, and an innocent third party has reasonably relied on the apparent agency and been harmed as a result, the apparent principal should not be permitted to deny the agency. O'Banner v. McDonald's Corp., 173 Ill.2d 208, 213, 670 N.E.2d 632, 634 (1996). With respect to that third party, the concept of apparent authority will overcome any restrictions that the principal may have privately imposed on the agent. Restatement (Third) of Agency § 2.03 cmt. c (2006). In order to impose liability on the basis of apparent authority, an Illinois plaintiff need only show "(1) that the principal held the agent out as having authority or knowingly acquiesced in the agent's exercise of authority; (2) based on the actions of the principal and agent, the third person reasonably concluded that an agency relationship existed; and (3) the third person relied on the agent's apparent authority to his detriment." Oliveira-Brooks v. Re/Max International, Inc., 372 Ill.App.3d 127, 137, 865 N.E.2d 252, 260 (2007) (citing Gilbert, 156 Ill.2d at 525, 622 N.E.2d at 795).

         ¶ 32 "It is not the conduct or words of the apparent agent that creates an apparent agency, but rather, the words or conduct of the apparent principal." (Emphasis omitted.) Tierney v. Community Memorial General Hospital, 268 Ill.App.3d 1050, 1062, 645 N.E.2d 284, 293 (1994). The manifestations by the apparent principal may be made directly to the third party or may be made to the community by signs or advertising. Restatement (Second) of Agency § 8 cmt. b (1958). See, e.g., Gizzi v. Texaco, Inc., 437 F.2d 308 (3d Cir. 1971) (discussing the local display of insignia and slogan and the national advertising done by the Texaco chain of automobile service stations). Either the principal must intend to cause the third party to believe that the agent is authorized to act for the principal or the principal should realize that his or her conduct is likely to create such belief. Restatement (Second) of Agency § 27 cmt. a (1958). "A principal may not choose to *** clothe[ ] [someone] with the trappings of [agency] and then determine at a later time whether the consequences of their acts offer an advantage." Restatement (Third) of Agency § 2.03 cmt. c (2006).

         ¶ 33 The concept of apparent agency is also described in section 267 of the Restatement (Second) of Agency as, "One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such." Restatement (Second) of Agency § 267 (1958). The first illustration in the Reporter's Notes for section 267 uses facts similar to the facts of the current case to describe this principle: "P, a taxicab company, purporting to be the master of the drivers of the cabs, in fact enters into an arrangement with the drivers by which the drivers operate independently. A driver negligently injures T, a passenger, and also B, a person upon the street. P is not liable to B. If it is found that T relied upon P as one furnishing safe drivers, P is subject to liability to T in an action of tort." Restatement (Second) of Agency § 267 cmt. a, illus. 1 (1958).

         ¶ 34 Evidence that is not relevant is not admissible. Clemons v. Mechanical Devices Co., 292 Ill.App.3d 242, 251, 684 N.E.2d 1344, 1350 (1997). "Relevant evidence" is evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." (Internal quotation marks omitted.) DiCosola v. Bowman, 342 Ill.App.3d 530, 535, 794 N.E.2d 875, 879 (2003). "One of the tests that a trial court may use when evaluating relevance is to ask how it would view this evidence if it were the trier of fact. Would the proposed evidence assist the trial court in resolving questions of fact? [Citation.] If not, then the evidence should be excluded." First Midwest Trust Co. v. Rogers, 296 Ill.App.3d 416, 430, 701 N.E.2d 1107, 1116 (1998). Furthermore, even relevant evidence may have drawbacks that require it to be excluded, including when "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Ill. R. Evid. 403 (eff. Jan. 1, 2011); Demos v. Ferris-Shell Oil Co., 317 Ill.App.3d 41, 53, 740 N.E.2d 9, 18 (2000) ("even if the evidence is arguably relevant it may still be excluded if it would confuse the issues or tend to mislead the jury"). Thus, parties are not permitted to bring in any and all evidence they might think will help their claim or defense.

         ¶ 35 The admission of evidence is within the sound discretion of the trial court, and we will not reverse the court's ruling unless that discretion was clearly abused. Gill v. Foster, 157 Ill.2d 304, 312-13, 626 N.E.2d 190, 194 (1993). A trial court is also "vested with broad discretion to grant a motion in limine as part of its inherent power to admit or exclude evidence." (Internal quotation marks omitted.) DiCosola, 342 Ill.App.3d at 535, 794 N.E.2d at 879. In determining whether there has been an abuse of discretion, a reviewing court may not substitute its judgment or even determine whether the trial court exercised its discretion wisely. DiCosola, 342 Ill.App.3d at 536, 794 N.E.2d at 879. An abuse of discretion has occurred when it can be said that no reasonable person would adopt the same view as the trial court. Schwartz v. Cortelloni, 177 Ill.2d 166, 176, 685 N.E.2d 871, 876 (1997). The abuse of discretion standard is " 'the most deferential standard of review available with the exception of no review at all.' " People v. Coleman, 183 Ill.2d 366, 387, 701 N.E.2d 1063, 1074 (1998) (quoting Martha S. Davis, A Basic Guide to Standards of Judicial Review, 33 S.D. L. Rev. 469, 480 (1988)).

         ¶ 36 The record on appeal contains all of the deposition transcripts that were presented in opposition to the Jacobses' motion in limine No. 23, and we briefly summarize that testimony. Ellis said his connection to the Yellow Cab entities began in 1971 when he was a commissioned driver operating Yellow Cab Company's vehicles and being paid a percentage of the money he "booked" or made per shift. Between 1979 and 1987, Ellis leased a vehicle from Yellow Cab Company, and between 1987 and 1994 he was one of Yellow Cab Company's cashiers. In 1994, Ellis switched over to managing city citations and insurance subrogation for Yellow Cab Company, [1] and in 2005, when Yellow Cab Company "faded away" as an entity and "became Yellow Cab Management, " Ellis's management position moved over to the new YCA entity. Ellis was 1 of about 10 YCA managers reporting to a supervisor who reported to YCA's president, Dan Deleo.

         ¶ 37 Ellis said YCA collected affiliation fees only and took no control or interest in whether an affiliated cab was actually used to transport fare paying customers. The medallion owner and the driver of a cab were responsible for vehicle repairs and towing and could have the work done by anyone they chose, and they also controlled the driver's routes, work hours, and so forth, and were responsible for gas, tolls, tickets, and fines. The medallion owner did not share fares or tips with YCA and only had to pay weekly fees. Therefore, the owner could choose to have the vehicle sit unused or use it for personal purposes. Ellis was asked about Chicago's cab ordinance and indicated that the municipality regulated the exterior and interior appearance of taxicabs and issues citations and fines for unauthorized marking or signage. A cab driver could not display advertising or decorate the interior of the vehicle, and the only authorized interior signage was a rate sign, a placard stating rights and duties, and a "hard card." YCA does not employ drivers. YCA could not tell drivers to put "independent contractor" or "not an employee of Yellow Cab" on the exterior of their vehicles, because Chicago has the sole authority and discretion about what goes on the outside of cabs and does not allow any markings "except for the ones that they approve." If a driver failed to post his chauffer's license and the hard card, he could be "pulled over by the City of Chicago police, " cited, and possibly fined. This could also happen if the driver decided to add something unauthorized to the exterior of the cab, such as advertising, or to the interior of the cab, such as stuffed animals.

         ¶ 38 When speaking of the relationship between YCA, medallion owners, and drivers, Ellis explained that not just any medallion owner could affiliate with YCA and not just anyone could drive a cab affiliated with YCA. Ellis said a medallion owner who wanted to affiliate with YCA would "come to [YCA] and explain what it is he wants to do and if it's acceptable, we [YCA] accept him" and that an individual cab driver would also have to be "acceptable."

         ¶ 39 YCA did not own any medallions, they were owned by other corporations and individuals. Those other corporations included YC-1 which in 2000 owned 900 medallions and in 2005 owned seven medallions. Another corporation was YC-2 which owned 2000 medallions in 2000 and only seven in 2005. The business of these two "YC" corporations was to lease their medallions. YCA sold no medallions after 2005. Ellis estimated that 2500 medallions affiliated with YCA. Every one of the medallion owners affiliated with YCA has to "use a [vehicle] that has the Yellow Cab colors, insignia and logos." YCA's color scheme and logos were not designed by the city. Each affiliation or association could choose how their cabs would appear and would draw up a plan for approval by the city. The association could decide on the type and size of lettering. YCA, not the city, proposed the use of the wing logo.

         ¶ 40 Ellis also specified that the weekly affiliation fee was $179 and that it included mandatory, minimum insurance coverage of $350, 000 per occurrence.

         ¶ 41 In an "Affiliation Agreement" between YCA and Zegus dated March 30, 2001, YCA agreed to license the use of its color scheme and its "Insignia, " which are described as the service marks "Yellow Cab" and "Yellow." YCA reserved the right to give "final approval" regarding "shade and/or tone of the Colors on the Taxicab" and the "forms and locations" of YCA's insignia on the vehicle. The contract also states that each party is "an independent contractor and affirms that nothing contained herein shall be construed as creating any employer-employee, principal-agent, partnership, or joint venture relationship between [them]." Zegus apparently owned more than one Chicago medallion because seven years after affiliating with YCA in 2001, Zegus and "Yellow 1" entered into a "Medallion Only Purchase Agreement" on October 27, 2008, documenting Zegus's purchase of cab medallion No. 160 for $63, 000.

         ¶ 42 In deposition testimony that was excluded from the trial, Moberg agreed that the municipality had not chosen the name "Yellow Cab Affiliation, " had not chosen YCA's wing logo, and had not chosen YCA's color scheme. The YCA color was a "unique and special shade of yellow" chosen through research at the University of Chicago when Yellow Cab began operating in Chicago in 1915, and it had been in use for many years by YCA and YCA's predecessor companies before the accident in 2005. Yellow Cab purported to be the oldest and largest taxicab company in North America, and according to Moberg, YCA had the largest fleet in Chicago, Flash had the second, and Checker had the third. Moberg recalled that in the mid-1990s he verbally asked "the commissioner" to include the actual license owner's name on the exterior of Checker Taxi Association affiliated vehicles, and he was uncertain whether he had also made a formal, written request at the time. He repeated the question in either 2002 or 2003 and was certain that this time was only a verbal request. Moberg agreed that "having a fleet with a recognized emblem and color scheme helps with marketing to people who ride in cabs." Checker Taxi Association and its immediate predecessor Checker Taxi Company did not own the color scheme and logo they used on Chicago cabs and instead paid a licensing fee for their use. Moberg was uncertain whether YCA owned its color scheme and logo but said "I would think not" because YCA "is a relatively new entity."

         ¶ 43 Rupal Bapat was not called as a trial witness. At her evidence deposition, Bapat indicated that in 2011 she was promoted to the position of deputy commissioner of the division of public vehicle operations of the department of business affairs and consumer protection (BACP) of the city of Chicago. Between 2011 and 2005, she was an assistant commissioner with the same department, and between 1998 and 2005, she was a staff attorney with the department. In the staff attorney position, she prosecuted violations of the Code at issue, section 9-112.

         ¶ 44 Bapat described taxicab affiliations as being similar to a franchise, in that the affiliation would be formed and licensed and then taxicab licensees would choose to "belong to it" or not. She said Chicago's taxicab industry is a "highly regulated business, " and she characterized the Code's control over a taxicab's appearance as "bumper to bumper."

         ¶ 45 Bapat also said, however, that YCA chose its own distinctive color and the municipality had no input into the design or creation of YCA's logo. Bapat knew that YCA's iconic color and logo predated her tenure with the municipal department. (Bapat came to work for the department in 1998.) She thought that the color scheme and logo had been used by Yellow Cab for "many years, " and she referred to the color scheme and logo as being "so old." She also assumed that it was "sometime ago, " that "Yellow Cab" had been chosen "as their corporate legal name."

         ¶ 46 Bapat was questioned about the advertising signs and devices permitted by section 9-112-300 of the Code (Chicago Municipal Code § 9-112-300 (amended July 12, 1990) ("Advertising signs permitted when")). She indicated the city regulates the specific placement on the exterior and interior of taxi logos, emblems, phone numbers, and any advertising. The medallion owner applies online and pays a fee for advertising permits and inspections. Permits are then approved as long as the advertising does not obscure the vehicle's identifying information. The advertising equipment must be securely attached so it does not cause a safety issue. Advertising permits can be issued for taxi top hoods, exterior door panels, and interiors. Chicago Department of Business Affairs and Consumer Protection Rule 14.04 ("Advertising guidelines"), which was part of the rules and regulations that BACP adopted in furtherance of the Code, prohibits profanity or other offensive advertising content.

         ¶ 47 Bapat confirmed that section 9-112-390 of the Code (Chicago Municipal Code § 9-112-390 (amended Nov. 15, 2000)), which dictates the location and size of a taxi's license number and driver information, prohibits displays which are not required by the Code or by state law, or displays which are not permitted by the Code. Bapat also said "[A]nybody can apply for whatever they want [to display]. I mean, I don't think that there's a bar on asking for something." With respect to interior displays, Bapat said the rules specified the minimum display of information and indicated anything else needed approval, but there was no prohibition on seeking or getting approval to display information regarding independent ownership and operation. Applying to the exterior the words "owned and operated by" and the medallion owner's name would probably have to be approved by BACP, but Bapat specified, "I don't have knowledge of anybody ever asking" for approval of that phrase. There was also nothing in the Code or rules that would prevent someone from asking to use an audible announcement that a cab is owned and operated by an independent contractor.

         ¶ 48 Cometas Dilanjian, a co-owner of City Service Taxi Association, was another potential witness who was not called to testify before the jury. At his deposition, Dilanjian said he became involved in the taxicab industry as second-generation driver in 1978, subsequently became a manager, a broker, and a lender within the industry, and had been a taxi affiliation co-owner for 10 years. Dilanjian recalled having two or three conversations between 1997 and 2000 with the then-commissioner of the department of consumer services, Caroline Schoenberger. (Bapat testified that the department of consumer services merged into BACP.) Schoenberger convened informal meetings at least every other month with medallion owners, affiliation representatives, and drivers. Section 9-112-390 of the Code (Chicago Municipal Code § 9-112-390 (amended Nov. 15, 2000)) controlled the appearance of cabs and limits the exterior to the affiliation's color scheme, trade name, or emblem and telephone number. Dilanjian, Moberg, and some other operators suggested changing the Code to authorize placing the names of the owner/operators on the side of taxicabs, as they had seen done with some suburban taxicabs, but Schoenberger denied the request. When the request was repeated at a subsequent meeting, she again rejected it.

         ¶ 49 Before granting the Jacobses' motion in limine No. 23, the trial court read the proposed testimony from Ellis, Moberg, Bapat, and Dilanjian, as well as the Code, and the Affiliation Agreement between YCA and Zegus, but reasoned that evidence regarding the "actual legal status" that was "generated by ordinance or by contract or agreements or practice" was not relevant to the case and was collateral to the issue of apparent agency. The pertinent questions were of appearance and reasonable, detrimental reliance. "So these witness may have something to say on relevant subjects, but to defend *** by pointing to an ordinance or by pointing to the City and pointing to the heavy regulations that evidently take place in this industry would take the Jury on a frolic that's not relevant."

         ¶ 50 Based on the cases cited above, the Code regulating Chicago's taxicabs, and the proffered testimony of the four witnesses, we conclude that the trial court did not abuse its discretion in granting the Jacobses' motion in limine No. 23. The proposed testimony suffers from several defects, the most obvious being that it was not relevant to the issues in the case because it did not negate the fact that the appearance of Ezeagu's cab was determined by YCA. The municipal code which YCA attempted to interject into the proceedings did not dictate that YCA choose a particular color scheme or logo, and the deposition testimony indicated YCA chose to use the same distinctive color scheme and nearly the same logo that was used historically by its predecessor, Yellow Cab Company, when the company owned a large fleet of taxicabs and had an employer-employee relationship with its cab ...

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