Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Blockmon v. McClellan

Court of Appeals of Illinois, First District, First Division

June 24, 2019

LANISHA BLOCKMON, as Special Administrator of the Estate of Walter Blockmon III, deceased, Plaintiff-Appellee,
v.
JAKOBI MCCLELLAN; VECTOR MARKETING CORPORATION, a Pennsylvania corporation; and CUTCO CORPORATION, a Delaware corporation, Defendants Vector Marketing Corp. and Cutco Corp., Defendants-Appellants.

          Appeal from the Circuit Court of Cook County No. 14 L 8538 The Honorable Edward S. Harmening, Judge Presiding.

          JUSTICE PIERCE delivered the judgment of the court, with opinion. Presiding Justice Mikva and Justice Walker concurred in the judgment and opinion.

          OPINION

          PIERCE JUSTICE.

         ¶ 1 This appeal arises out of a jury's verdict in favor of plaintiff Lanisha Blockmon, as special administrator of the estate of Walter Blockmon III. On July 11, 2014, Walter was driving on I-80 near the city of Country Club Hills, Illinois, when his vehicle was struck from behind by a vehicle driven by defendant Jakobi McClellan. Walter died from his injuries. Plaintiff ultimately filed a five-count fourth amended complaint in the circuit court of Cook County naming McClellan, Vector Marketing Corp. (Vector), and Cutco Corp. as defendants. Vector markets, sells, and distributes cutlery and other kitchen equipment manufactured by Cutco. Plaintiff alleged that in July 2014, McClellan was a sales representative for and an agent of Vector and Cutco, and that at the time of the accident, McClellan was traveling between sales calls in his role as a Vector sales representative. McClellan admitted that at the time of the accident he was using the mapping and GPS functions on his cell phone to check the location of his next sales call and to determine how late he was running, and that he was not looking at the road.

         ¶ 2 At trial, plaintiff pursued theories that Vector and Cutco were directly liable for Walter's death for breaching a duty to train McClellan to not use his cell phone while driving, and were vicariously liable for Walter's death because McClellan was Vector's and Cutco's agent at the time of the accident, as he was en route to a customer's home while acting as a Vector sales representative. The jury returned a general verdict in favor of plaintiff and against McClellan, Vector, and Cutco, and awarded plaintiff $4.7 million in damages. The circuit court denied Vector's and Cutco's posttrial motions for a directed verdict, judgment n.o.v., and for a new trial.

         ¶ 3 On appeal, Vector and Cutco argue that the circuit court should have entered judgment n.o.v. on plaintiff's direct negligence claim because plaintiff failed to prove that Vector or Cutco owed Walter a duty of care and that plaintiff failed to establish proximate cause. Vector and Cutco further argue that the circuit court should have entered judgment n.o.v. on plaintiff's vicarious liability claim because the evidence at trial was insufficient to establish that McClellan was Vector's and Cutco's agent at the time of the accident. Alternatively, Vector and Cutco contend that the circuit court should have ordered a new trial because the jury's verdict was against the manifest weight of the evidence, and because the circuit court erred by (1) refusing to submit a proposed special interrogatory to the jury asking whether McClellan was an independent contractor at the time of the occurrence; (2) refusing to instruct the jury that a written sales representative agreement between McClellan and Vector and Cutco was a relevant factor in determining whether McClellan was an agent of Vector and Cutco; (3) permitting plaintiff to question Vector's legal affairs manager at trial about contracts of adhesion and the doctrine of unconscionability, since the enforceability of the sales representative agreement was not at issue; and (4) permitting plaintiff's counsel to make certain statements during closing argument. We affirm.

         ¶ 4 I. BACKGROUND

         ¶ 5 The only claims at issue in this appeal are counts I and V of the fourth amended complaint.[1] Count I alleged that Vector and Cutco, through the acts or omissions of their agent McClellan, were negligent by failing to keep a proper lookout, speeding, failing to reduce speed to avoid an accident, traveling too fast for traffic conditions, and using an electronic device while driving, and that the negligent acts or omissions were a proximate cause of Walter's death. Count V alleged that Vector and Cutco provided bonuses and incentives to sales representatives based on the number of sales presentations performed and sales made, and "had a duty to train its [s]ales [r]epresentatives so as to prevent foreseeable harm that would be caused by its incentive structure and the nature of its business." Plaintiff alleged that Vector and Cutco breached that duty and were negligent by "fail[ing] to provide appropriate training with the regard to the use of cellular devices in obtaining route information to sales calls," "fail[ing] to have policies related to the use of cellular devices used for the purpose of accomplishing sales calls," and failing "to provide training to sales representatives to not use their cellular devices while doing sales calls." Plaintiff alleged that Vector's and Cutco's negligent acts or omissions were a proximate cause of Walter's death.

         ¶ 6 It was undisputed at trial that McClellan was driving his mother's car from an appointment in Naperville to a customer's house in Homewood along I-80, and that he was running 5 to 10 minutes late for a sales appointment. While he was driving at between 67 and 80 miles per hour, he was looking at a map and the GPS on his phone when he looked up and saw Walter's vehicle was stopped immediately in front of him. There was no evidence of any preimpact braking at the scene of the accident.

         ¶ 7 McClellan testified that in June 2014, he turned 18 years of age and had just graduated from high school. He had no sales experience when he was interviewed and hired by Joshua Dicks, a Vector branch manager working out of an office in Orland Park. McClellan attended a group training session led by Dicks on how to demonstrate Cutco products. Participants were told to dress professionally and were provided with a sales training manual. On June 14, 2014, McClellan electronically signed a sales representative agreement with Vector. The Vector training manual provided tips on how to conduct product demonstrations and how to talk to potential customers. McClellan testified that he could ultimately decide on what methods worked best for him. McClellan was supplied with a Vector Connect web identification and login number for purposes of placing product orders. He was also loaned a Cutco knife sample kit containing Cutco knives, rope, leather, a cutting board, and a velvet cloth. He was told by Vector that he could not sell Cutco products through social media or online sales platforms. McClellan was provided with a desk and a landline phone at the Orland Park branch where he could make calls and schedule demonstrations, although McClellan testified that he ordinarily used his cell phone to make calls and schedule demonstrations. He chose the hours that he worked, set his own schedule, developed his own customer list, and paid his own taxes. He testified that he generally called in to Vector's Orland Park office once per day. McClellan also testified that he knew before he signed the sales representative agreement that it was dangerous to drive while looking at the GPS on his phone, and the fact that Vector did not tell him to avoid looking at his phone while driving did not cause the accident.

         ¶ 8 Vector's sales representative agreement contained a voluntary "additional incentive commission program," under which a sales representative could earn $17 for conducting an online or in-person one-on-one sales presentation provided certain criteria were met. The sales representative agreement also provided that a sales representative was an independent contractor and was prohibited from holding themselves out as a Vector or Cutco employee. A sales representative would "not be treated as an employee for federal, state, or local tax purposes nor for unemployment compensation or worker's [sic] compensation taxes." A sales representative could "set [their] own schedule and develop [their] own marketing methods in pursuit of sales and profits." Sales representatives had no authority to "incur or create any liability or obligation of any kind in the name of [Vector] *** except in the solicitation of orders for [Cutco's] consumer products." Vector required prior written approval for a sales representative's use of any of Vector's or Cutco's trade names, trademarks, service names, and service marks, and sales representatives were prohibited from using the Vector or Cutco name on any business cards, directories, stationary, advertisements, phone listings, bank accounts, or on any form of social media. Sales representatives were responsible for any loss, theft, or destruction of the sample kit, and were required to return the sample kit if the sales representative terminated the sales representative agreement. Sales representatives could, however, elect to purchase the sample kit at any time. The sales representative could terminate the sales representative agreement by sending written notice to Vector, while Vector could terminate the sales representative agreement for good cause.

         ¶ 9 Dicks testified that in 2014, he was Vector's Orland Park branch manager. During group training sessions, potential sales representatives were told that they had to find their own customers. Sales representatives could submit orders through the web ID portal, by mail, or over the phone. Sales representatives needed to submit an order once per week in order to maintain an active status. Sales representatives that performed sales presentations submitted reports, and Vector retained the right to contact the people listed on the report to verify whether the sales representative actually performed the presentation. Vector held optional weekly meetings for sales representatives designed to help the sales representatives "learn more so they can sell more." Vector did not provide sales representatives with cars, cell phones, laptops, or e-mail accounts. Dicks testified that sales representatives were encouraged to check in daily, but were not required to. If a sales representative was running late for a customer appointment, it was left to the sales representative's discretion as to how to handle that situation. Dicks testified that at the time of the accident, McClellan "was serving not only his own needs and hopefully making a commission, *** but he was also serving Vector and Cutco." Dicks also testified that the "terms 'independent contractor' and 'agent' are not mutually exclusive," and that a person could be "an independent contractor for tax purposes but also an agent based upon right of control issues."

         ¶ 10 Mike Muriel testified that he was Vector's central region sales manager. He testified that Cutco set the price of the product. Paul Matheson testified that he was Vector's legal affairs manager. He testified that Vector did not provide any safe driving advice to sale representatives, and did not ban the use of cell phones while a sales representative's vehicle was in motion. Sales representatives were not paid minimum wage or overtime, and did not receive any unemployment benefits, workers' compensation benefits, or health insurance. Sales representatives were not reimbursed for travel expenses. Matheson testified, over Vector's and Cutco's objection, that a contract of adhesion referred to a standard form contract in which one party sets the terms of the agreement, and the other party has little to no ability to negotiate. Also over Vector's and Cutco's objection, Matheson testified that he had heard of the doctrine of unconscionability, but did not know its definition. Vector would calculate a sales representative's compensation by comparing the number of "qualified presentations" to the number of sales, and the sales representative would receive the greater of the two commissions. For qualified presentations, Vector paid 75%, while the district or branch manager paid the other 25%.

         ¶ 11 At the close of evidence, Vector and Cutco made an oral motion for a directed verdict on plaintiff's direct negligence claim (count V), asserting that plaintiff failed to present any evidence that Vector's or Cutco's failure to train McClellan to not use his cell phone while driving caused the accident, and that plaintiff failed to present any evidence that Vector or Cutco had any duty to provide any such training to McClellan. The circuit court denied Vector's and Cutco's motion for a directed verdict on count V. Vector and Cutco subsequently made an oral motion for a directed verdict on plaintiff's negligence claims based on vicarious liability (count I), arguing that plaintiff failed to present evidence that McClellan was Vector's or Cutco's agent at the time of the accident. The circuit court denied Vector's and Cutco's motion for a directed verdict on count I. The circuit court also denied Vector's and Cutco's request to submit to the jury a special interrogatory asking if McClellan was an independent contractor at the time of the occurrence.

         ¶ 12 Defendants did not request a separate verdict on each count. The case was submitted to the jury, which returned a general verdict in favor of plaintiff and against defendants. The jury's verdict form, with the jurors' signatures removed, appears in the record as follows:

         (Image Omitted)

         ¶ 13 Vector and Cutco filed a timely posttrial motion for judgment n.o.v., or alternatively for a new trial, which the parties briefed and argued. The circuit court entered a written order denying Vector's and Cutco's posttrial motion. Vector and Cutco filed a timely notice of appeal.

         ¶ 14 II. ANALYSIS

         ¶ 15 Vector and Cutco argue that the circuit court should have entered a directed verdict or judgment n.o.v. on plaintiffs wrongful death claim based on direct negligence in count I because plaintiff failed to prove that either Vector or Cutco owed Walter a duty of care, plaintiff failed to establish proximate cause, and the circuit court misapplied the general verdict rule in denying their posttrial motion. Vector and Cutco further argue that the circuit court should have entered a directed verdict or judgment n.o. v. on plaintiffs wrongful death claim of negligence based on vicarious liability in count V because the evidence was insufficient to establish that McClellan was Vector's and Cutco's agent at the time of the accident.

         ¶ 16 Plaintiff asserts, however, that Vector and Cutco failed to properly preserve any challenges to the jury's verdict, and have therefore forfeited all of their appellate arguments. Plaintiff argues that at least two theories of liability against Vector's and Cutco's were submitted to the jury: direct negligence based on a failure to properly train McClellan regarding cell phone use while driving, and vicarious liability based on McClellan acting as an agent for Vector and Cutco. Plaintiff contends that Vector and Cutco knew that two theories of liability were going to be submitted to the jury, and because Vector and Cutco did not submit any special interrogatories to test the jury's general verdict or request separate verdicts on the two separate theories of liability submitted to the jury, this court has no way to determine the basis of the jury's verdict. Plaintiff relies on section 2-1201(d) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1201(d) (West 2016)), and several decisions applying the general verdict rule.

         ¶ 17 In response, Vector and Cutco argue that if the circuit court erred by denying the motion for directed verdict on the direct liability claim in count V, the direct liability claim would not have gone to the jury, and, at a minimum, Vector and Cutco would have been entitled to the proffered special interrogatory as to whether McClellan was an independent contractor, which they contend would have controlled the verdict on the vicarious liability claim in count I.

         ¶ 18 A. General Verdict Rule

         ¶ 19 Section 2-1201(d) of the Code provides:

"If several grounds of recovery are pleaded in support of the same claim, whether in the same or different counts, an entire verdict rendered for that claim shall not be set aside or reversed for the reason that any ground is defective, if one or more of the grounds is sufficient to sustain the verdict; nor shall the verdict be set aside or reversed for the reason that the evidence in support of any ground is insufficient to sustain a recovery thereon, unless before the case was submitted to the jury a motion was made to withdraw that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.