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Baumrucker v. Express Cab Dispatch, Inc.

Court of Appeals of Illinois, First District, Second Division

July 18, 2017

MARGARET BAUMRUCKER, Plaintiff-Appellee,
EXPRESS CAB DISPATCH, INC. d/b/a Express Cab Company, EXPRESS CAB COMPANY, INC. d/b/a Express Cab Company, and LUIS LEAL, Defendants-Appellants.

         Appeal from the Circuit Court of Cook County. No. 12 L 6839 The Honorable Michael R. Panter, Judge, presiding.

          PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Mason concurred in the judgment and opinion.



         ¶ 1 Three weeks after Express Cab Dispatch, Inc., and Express Cab Company, Inc. (collectively, Express Cab), leased Luis Leal a taxi cab, he hit a pedestrian, Margaret Baumrucker, while she was walking to her job at MacNeal Hospital in Berwyn. Although Leal was driving at a slow speed, he knocked Baumrucker to the ground, injuring her left shoulder. Baumrucker has had years of physical therapy, and according to her physician, the shoulder injury is permanent and will likely cause her pain and restrict some activities for the rest of her life.

         ¶ 2 Baumrucker sued Express Cab alleging negligence and willful and wanton entrustment of the cab to Leal. She sued Leal for negligence. Baumrucker argued that Express Cab acted recklessly by failing to check Leal's driving record, which would have shown that while living out of state, he had been convicted of driving while intoxicated in 2000 and ticketed for speeding more than 85 miles per hour in 2010. Express Cab conceded Leal was negligent and Baumrucker was injured but contested the extent of her injuries and the allegations that they acted willfully and wantonly by entrusting the cab to Leal.

         ¶ 3 After trial, a jury returned a verdict for Baumrucker and awarded her $897, 740.81, which included $397, 740.81 in compensatory damages and $500, 000 in punitive damages. The trial court denied defendants' motion for a judgment notwithstanding the verdict (n.o.v.) and motion for a new trial on damages. Defendants contend (i) the evidence did not support the jury's verdict on the willful and wanton entrustment claim, (ii) Leal's driving record should not have been admitted into evidence, (iii) the trial court abused its discretion in permitting Baumrucker to present expert witness testimony that Express Cab had a nondelegable duty to run a background check on prospective drivers, (iv) the trial court abused its discretion in instructing the jury on punitive damages, and (v) the compensatory and punitive damages awards were excessive.

         ¶ 4 We affirm. The jury's verdict was not against the manifest weight of the evidence, the trial court's evidentiary rulings and jury instruction were not an abuse of discretion, and the damages were reasonable and not excessive.

         ¶ 5 BACKGROUND

         ¶ 6 On October 17, 2011, at about 3 p.m., Margaret Baumrucker was walking to MacNeal Hospital in Berwyn, where she worked as a psychiatric nurse. Baumrucker, who was 60 years old, was crossing the street at the crosswalk with the right of way. Luis Leal, who was driving a cab he leased from Express Cab, stopped to let a passenger out and suddenly accelerated, hitting Baumrucker. She was knocked to the pavement, injuring her left shoulder. Baumrucker was treated in the MacNeal Hospital emergency room and released.

         ¶ 7 Baumrucker filed a complaint against Leal and Express Cab alleging negligence. She later amended her complaint to add counts against Express Cab for willful and wanton entrustment. Her amended complaint alleged (i) negligent operation of a motor vehicle; (ii) negligent entrustment of the cab to Leal; (iii) willful, reckless, and wanton entrustment of the cab to Leal; (iv) negligent hiring of Leal; and (v) reckless, willful, and wanton hiring of Leal. The reckless entrustment claims were based on Baumrucker's allegation that Express Cab knew or should have known Leal posed an unreasonable risk of harm to the public because he had a 2000 conviction for driving while intoxicated and several related offenses, including failure to pay fines, perform community service, attend victim impact panels, and register for DUI school, and a 2010 speeding conviction. (Baumrucker sought to introduce additional convictions, but the trial court excluded evidence of Leal's nondriving criminal record.) The trial court denied defendants motion to dismiss Baumrucker's reckless entrustment counts.

         ¶ 8 The trial court heard pretrial argument on defendants' motion in limine, seeking to prevent Baumrucker from presenting Andrew Sievers as an expert witness to testify that (i) Leal was an unqualified and incompetent driver, (ii) Express Cab was negligent in entrusting him with a cab, and (iii) Express Cab was reckless in failing to screen him regarding his driving record and background. Defendants also sought to bar mention of Leal's criminal convictions or arrests and argument that Express Cab was negligent or reckless when it entrusted the cab to Leal.

         ¶ 9 After a hearing, the trial court dismissed the negligent entrustment claim but allowed Baumrucker to proceed on the willful and wanton entrustment claim. The court also found Sievers could testify as to his opinion about causation and liability, Express Cab's screening process, and Leal's driving record.

         ¶ 10 The trial court also heard argument on Baumrucker's motion in limine seeking to bar production of Leal's chauffer's license. Baumrucker argued defendants violated Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007) by failing to timely comply with her multiple requests for the license, which defendants produced just three weeks before trial. She also contested the authenticity of the license, which was a poorly replicated faxed document that did not include Leal's name or the date of issuance. Defendants made an oral motion to bar argument that Leal did not possess a chauffer's license; they asserted Cicero does not permit operation of a cab without a license and they had produced Leal's license. The trial court agreed that defendants' failure to produce the chauffer's license sooner violated Rule 213, but found no prejudice to Baumrucker. The trial court held the license was admissible and Baumrucker could challenge authenticity.

         ¶ 11 The case was tried before a jury. (Leal was served a summons and Express Cab filed an appearance on his behalf, but Leal did not appear at trial despite Baumrucker's request under Illinois Supreme Court Rule 237 (eff. July 1, 2005) compelling his appearance; he also did not appear for three noticed depositions.) Donald Batryn, Express Cab's fleet manager, called as an adverse witness, testified he was in charge of finding new drivers. Express Cab does not hire drivers but leases cabs for a flat fee. Express Cab does not give prospective drivers a written test or a road test and does not conduct a criminal background check. And while Express Cab provides orientation for new drivers, it does not provide either training or a training or safety manual.

         ¶ 12 Express Cab hires drivers who have a chauffer's license issued by the town of Cicero. According to Batryn, Leal completed an application to lease a cab and was hired in September 2011. On the application, which was admitted into evidence, Leal left blank the spaces asking for his social security number, and his prior taxicab and work experience. In the space asking for his prior address, he listed "ABQ, NM." Spaces on the application indicating whether the applicant was interviewed and the application was acceptable were left blank. Batryn or his brother interviewed Leal and accepted the application, but Batryn could not recall which of them did.

         ¶ 13 Leal had no prior cab driving experience, but according to Batryn, he had a Cicero chauffer's license. Batryn said to his knowledge, the Cicero police department conducts a written test, a road test, and a five-year criminal background check on chauffer license applicants. He acknowledged he had not seen proof of those tests or a copy of a background check.

         ¶ 14 Leal obtained an Illinois drivers license on April 26, 2011, some five months before Express Cab hired him. Batryn testified that Leal's driving record was the most important document in deciding to hire Leal, and in accordance with the company's practice, he looked at Leal's five-month Illinois driving record. He did not obtain Leal's driving record from New Mexico, where Leal previously lived, or his prior work history but testified he had "done everything required by me."

         ¶ 15 Batryn acknowledged that Leal had been convicted of driving while intoxicated in New Mexico and related offenses and, in September 2010, of speeding in excess of 85 miles per hour in Arizona. If Batryn had known about the convictions, he probably would not have allowed Leal to drive for the company, but Express Cab is not required to acquire applicants' out of state driving records. After the accident, Express Cab did not change its hiring procedures.

         ¶ 16 During Batryn's testimony, the trial court admitted into evidence the copy of Leal's purported Cicero chauffer's license. The license was issued in 2011 but did not have a specific date. It did not include Leal's name but had the number "168" on it. It also had a picture of a man, whom Batryn recognized as Leal. Batryn has seen hundreds of chauffer's licenses issued by Cicero, and the exhibit admitted into evidence appeared to be a Cicero chauffer's license.

         ¶ 17 Baumrucker presented Andrew Sievers as an expert witness to testify about the vetting process for commercial drivers. Before becoming a safety consultant, Sievers worked in the trucking industry, in various safety and risk management positions. When hiring a driver for a cab or other commercial vehicle, Sievers said that, at minimum, an employer should require applicants to complete a form listing their driving record for the previous three years and conduct an interview; a criminal background check; a physical exam, including vision and drug tests; and a road test.

         ¶ 18 According to Sievers, Express Cab failed to meet this minimum standard. It did not check Leal's employment history, interview him, do a criminal background check, or conduct a physical, drug test, eye test, or road test. Sievers also said Express Cab's failure to provide a safety manual, explaining rules and regulations and company policies and procedures, falls below reasonable standards. As for Leal's application, it was deficient, lacking Leal's social security number, employment history, taxi driving history, criminal background, or driving record. According to Sievers, Express Cab's screening of Leal was "the worst I've ever seen in screening a commercial driver" and "it's real apparent they did not care; because if they cared they would have done at least a little bit of a background check, and they didn't do any." Had there been safety controls in place, Sievers testified Express Cab could have easily determined Leal was unfit to drive a cab.

         ¶ 19 Over defendants' objection, Sievers said Express Cab's failure to perform a background check was willful and wanton and put the motoring public at increased unnecessary risk. Defense counsel moved to strike, arguing Sievers should not be permitted to give an opinion on an ultimate issue. The trial court overruled the objection, but instructed the jurors they would determine whether Express Cab engaged in willful and wanton conduct.

         ¶ 20 On cross-examination, Sievers testified that the standards he identified were good practice for owners and operators of commercial vehicles and admitted they were not based on any federal or state laws or regulations. They were his opinion based on Chicago requirements, which he acknowledged were not the same as the rules that apply in Cicero, Express Cab's base. He acknowledged a Cicero ordinance requires chauffer's license applicants to pass a driving test and that Cicero determined if an applicant had any criminal convictions in the previous five years. But, he said, regardless of the rules in Cicero for obtaining a chauffer's license, Express Cab had a nondelegable duty to confirm prospective drivers are fit and safe.

         ¶ 21 Baumrucker testified she was 60 years old at the time of the accident and a nurse for 40 years, then working in the psychiatric department at MacNeal Hospital. Leal's cab hit her on the right shoulder and hip and slammed her left shoulder to the concrete, causing pain in the upper part of her back, going down the spine. Immediately after the accident, Dr. Sarah Johnson in the MacNeal Hospital emergency room evaluated Baumrucker and sent her home with a sling for her left arm. Three days later, Baumrucker followed up with her primary care physician, Dr. Suman Gupta, who sent her for an MRI of her shoulder and prescribed a muscle relaxant and physical therapy. The MRI did not show a fracture.

         ¶ 22 Baumrucker went to physical therapy from November 2011 to April 2013, and again from September 2013 to March 2014. She estimated she had more than 60 physical therapy sessions, and since her last one, she had been exercising at home four times a week. She said the physical therapy helped, but she still had shoulder pain, which became exceedingly uncomfortable by ...

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