Court of Appeals of Illinois, First District, Second Division
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
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
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 ...