Giannoble v. P & M Heating and Air Conditioning, Inc.

• Decision Date: 17 August 1992
• Docket Number: No. 1-90-3648,1-90-3648
• Citation: 175 Ill.Dec. 169,233 Ill.App.3d 1051,599 N.E.2d 1183
• Parties: , 175 Ill.Dec. 169 Jack J. GIANNOBLE, Special Administrator to the Estate of Anthony S. Giannoble, Deceased, Plaintiff-Appellant, v. P & M HEATING AND AIR CONDITIONING, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1183

599 N.E.2d 1183

233 Ill.App.3d 1051, 175 Ill.Dec. 169

Jack J. GIANNOBLE, Special Administrator to the Estate of Anthony S. Giannoble, Deceased, Plaintiff-Appellant, v. P & M HEATING AND AIR CONDITIONING, INC., Defendant-Appellee.

No. 1-90-3648.

Appellate Court of Illinois,

First District, First Division.

Aug. 17, 1992.

Brenda A. Szeja, Chicago, for plaintiff-appellant.

Tressler, Soderstrom, Maloney & Priess (Gary T. Jansen, Kathleen M. Gibbons, of counsel), Chicago, for defendant-appellee.

Presiding Justice BUCKLEY delivered the opinion of the court:

Plaintiff, Jack J. Giannoble, as special administrator of the estate of Anthony S. Giannoble, deceased, filed a two-count complaint for wrongful death based upon an automobile accident in which a van, owned by defendant P & M Heating and Air Conditioning, Inc. (P & M) and driven by defendant William Smith (Smith), collided with the deceased's vehicle. Count I of the complaint sought recovery against Smith individually, and count II sought recovery against P & M under a theory of respondeat superior. In its answer, P & M admitted ownership of the van and being Smith's employer but denied all remaining material allegations.

P & M subsequently moved for summary judgment alleging that Smith, at the time of the accident, was not within the scope of his employment. Plaintiff appeals the circuit court's grant of P & M's motion contending that genuine issues of material fact exist on the scope of employment issue and that pending discovery matters rendered summary judgment premature. We affirm.

To support its motion for summary judgment, P & M submitted the sworn deposition testimony of Smith, and the sworn affidavit of Thomas Vaccaro, P & M's service manager at the time of the accident.

The deposition testimony of Smith reflects that on July 23, 1986, P & M employed Smith as a heating, air conditioning, refrigeration and ventilation service technician. Smith worked a 40-hour work week and was on 24-hour call approximately one week per month. Smith was not on call July 23.

In the course of his employment, P & M provided Smith with a service van which contained the tools necessary for Smith to complete his work. Since Smith normally called into P & M's Summit plant each morning from his Blue Island home to receive his first job assignment, and thereafter travelled to such job in the van, P & M permitted Smith to keep the van at home after work. All service technicians were provided a van and similarly were allowed to take their service vans home at night. Smith testified that he had general permission to use the van. Smith charged gasoline to a company charge account.

On July 23, 1986, Smith started work at 8 a.m., his normal work time. He received job assignments that day and finished his work at 4 p.m. Smith drove the company van directly home after completing work.

At home, Smith changed clothes, took a shower and ate dinner with his wife. While home, Smith's stepdaughter telephoned and related that she was having problems with her air conditioning unit at home. Smith agreed to look the unit over and make the repairs as a favor. Smith did not tell anyone at work about this work including Thomas Vaccaro, his supervisor. While Smith would normally complete a customer receipt on a service call, no customer receipt or other paper work was generated for this work.

Not knowing what the repair task would entail, Smith and his wife took the company van as it contained the tools Smith may possibly need. The two departed their home and first drove to the stepdaughter's beauty salon, arriving between 6:45 and 7 p.m. There, Smith, his wife and the stepdaughter conversed briefly. They agreed that Smith and his wife would first proceed to the stepdaughter's house so Smith could get a start on the unit. The stepdaughter would follow later. Accordingly, Smith, his wife and their grandson, who was at the salon, left the salon for the stepdaughter's home, located near 141st and Bell Avenue, in Will County.

At between 7 and 7:45 p.m., the three arrived, and Smith proceeded to look at the unit which was in the backyard. At 10:45 p.m., Smith completed his work. Because it was a hot night and Smith was to work outside, Smith brought along his swim suit and went swimming in his stepdaughter's pool after completing the work. At about midnight, Smith and his wife left for home. The accident which resulted in the deceased's death occurred during the drive home at about 1 a.m Smith testified that he has done other repair work as favors and not kept a record of such work. Other service technicians have similarly performed favors. Smith stated that P & M knows of this practice and it is acceptable to them.

Regarding Vaccaro's affidavit, Vaccaro states that he was P & M's service manager on July 23, 1986, and that service technicians like Smith are provided a van which they are allowed to take home. Vaccaro further states that Smith never asked for permission to use the van after normal working hours on the day of the accident; that he had no knowledge that the van was being so used at the time of use; that he is unaware of any P & M customer receipts or other paper work being issued to the stepdaughter; and that no P & M records exist which reflect the payment of consideration for such work.

In granting P & M's motion for summary judgment against plaintiff, the court concluded that no genuine issue of material fact existed on the scope of employment issue. During its oral ruling, the court was persuaded by Smith's deposition testimony that the air conditioning services he performed for his stepdaughter was not a P & M job, but rather a personal favor, performed six or seven hours after Smith had completed his daily work.

Plaintiff first contends on appeal that there exists "major, outcome-determinative factual differences precluding summary judgment" in this case. Plaintiff directs this court to Vaccaro's affidavit, which plaintiff asserts is internally conflicting, and also requests this court to compare the affidavit with Smith's testimony, which reveals yet another contradiction. Plaintiff additionally asserts that Smith's testimony differs from that of his wife's in material respects. Finally, plaintiff asserts that an issue of fact exists merely on the fact that Smith was driving a service equipped company van from an air conditioning repair job at the time of the accident.

Summary judgment shall be entered when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (ILL.REV.STAT.1987, ch. 110, par. 2-1005(c).) The purpose of summary judgment is not to try an issue of fact, but rather to determine whether a triable issue of fact exists. Sloan v. Jasper County Community Unit School District No. 1 (1988), 167 Ill.App.3d 867, 870, 118 Ill.Dec. 879, 881, 522 N.E.2d 334, 336.

The use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit; however, it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 309, 489 N.E.2d 867, 871.) In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent. Purtill, 111 Ill.2d at 240, 95 Ill.Dec. at 309, 489 N.E.2d at 871.

Summary judgment is generally inappropriate when scope of employment is at issue. (Pyne v. Witmer (1989), 129 Ill.2d 351, 360, 135 Ill.Dec. 557, 561, 543 N.E.2d 1304, 1308 (and cases cited therein).) Only if no reasonable person could conclude from the evidence that an employee was acting within the course of employment should a court hold as a matter of law that the employee was not so acting. Pyne, 129 Ill.2d at 360, 135 Ill.Dec. at 561, 543 N.E.2d at 1308.

For an employer to be vicariously liable for an employee's torts under the doctrine of respondeat superior, the torts must have been committed within the scope of the employment. (Pyne, 129 Ill.2d at 360, 135 Ill.Dec. at 561, 543 N.E.2d at 1308 (and cases cited therein).) No precise definition has been accorded the phrase "scope of employment," but broad criteria have been enunciated:

" '(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, * * *

* * * * * *

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.' " (Pyne, 129 Ill.2d at 360, 135 Ill.Dec. at 561, 543 N.E.2d at 1308, quoting Restatement (Second) of Agency § 228 (1958).)

The burden is on the plaintiff to show the contemporaneous relationship between the tortious act and scope of employment. Pyne, 129 Ill.2d at 360, 135 Ill.Dec. at 562, 543 N.E.2d at 1309.

In this case, we initially reject plaintiff's attempt to create an issue of fact by asserting the existence of various conflicts in the testimony and affidavits. The conflicts are illusory and, to the extent they exist, are neither genuine nor material.

Plaintiff first alleges that paragraphs 4 and 6 of Vaccaro's affidavit are internally inconsistent. Paragraph 4 asserts that P & M service technicians such as Smith were provided with vans which they were allowed to take home. Paragraph 6 states that Smith never asked for permission to use the van after normal working hours on the day...