Huber v. Seaton

• Decision Date: 26 July 1989
• Docket Number: No. 2-88-0705,2-88-0705
• Citation: 542 N.E.2d 464,186 Ill.App.3d 503
• Parties: , 134 Ill.Dec. 285 John HUBER and Joan Huber, Plaintiffs-Appellees, v. Frank B. SEATON, Defendant-Appellant (Richard Janowitz, Defendant).
• Court: United States Appellate Court of Illinois

Page 464

542 N.E.2d 464

186 Ill.App.3d 503, 134 Ill.Dec. 285

John HUBER and Joan Huber, Plaintiffs-Appellees, v. Frank B. SEATON, Defendant-Appellant (Richard Janowitz, Defendant).

No. 2-88-0705.

Appellate Court of Illinois,

Second District.

July 26, 1989.

Rehearing Denied Aug. 30, 1989.

Querrey, Harrow & Callahan, P.C., John P. Callahan, Law Offices of Querrey & Harrow, Ltd., Geneva, Victor J. Piekarski, and Michael Resis, Querrey & Harrow, Ltd., Chicago, for Frank B. Seaton.

John M. O'Halloran, Coleman & O'Halloran, Chicago, for John and Joan Huber.

Justice McLAREN delivered the opinion of the court:

Plaintiffs, John and Joan Huber, filed a negligence action against defendants, Frank B. Seaton and Richard Janowitz, for damages sustained as the result of a fire on May 6, 1984. The jury returned a verdict for both plaintiffs and assessed damages at $40,000. Defendant Seaton's post-trial motion was denied, and this appeal followed. Codefendant Janowitz is not a party to this appeal. We reverse.

The majority of alleged facts in this case were set out in a previous opinion issued by this court. (Huber v. Seaton (1988), 165 Ill.App.3d 445, 116 Ill.Dec. 483, 519 N.E.2d 73.) We will only set out additional facts pertinent to the issues present in this appeal.

On May 6, 1984, a fire occurred at the townhouse owned by defendant Seaton and occupied by plaintiffs. At trial, plaintiffs alleged the fire was caused by the negligence of Janowitz, an independent contractor hired by defendant. Plaintiffs alleged Janowitz negligently left the valve open on a propane torch that he set down, allowing gas to escape and subsequently causing the fire. Plaintiffs also alleged Seaton negligently hired Janowitz. In particular, plaintiffs alleged that Seaton never checked to see if Janowitz was licensed to do plumbing work, and if Janowitz carried liability insurance, nor did Seaton obtain any information concerning the quality of Janowitz's work before hiring him.

In our prior opinion, we held Seaton's motion for summary judgment should not have been granted because a question of material fact remained as to whether Seaton negligently selected Janowitz as an independent contractor. (Huber, 165 Ill.App.3d at 450-51, 116 Ill.Dec. 483, 519 N.E.2d 73.) We noted an employer is generally insulated from liability for the negligent acts of an independent contractor. (Huber, 165 Ill.App.3d at 450, 116 Ill.Dec. 483, 519 N.E.2d 73, citing Gomien v. Wear-Ever Aluminum, Inc. (1971), 50 Ill.2d 19, 21, 276 N.E.2d 336.) However, a recognized exception to the general rule exists if the employer fails to exercise reasonable care in the selection of the independent contractor. ( Huber, 165 Ill.App.3d at 450, 116 Ill.Dec. 483, 519 N.E.2d 73; Kouba v. East Joliet Bank (1985), 135 Ill.App.3d 264, 267, 89 Ill.Dec. 774, 481 N.E.2d 325.) This court in its prior opinion held that the materials in support of the motion for summary judgment did not eliminate a potential fact question as to the issue of negligent hiring.

At the time of the first appeal, however, this court was in no position to pass upon the sufficiency of the amended complaint, the instructions or the evidence at trial. Although questions of law actually decided in a previous appeal are binding, matters concerning the merits of a controversy which were not decided by the appellate court do not become the law of the case. (Zokoych v. Spalding (1980), 84 Ill.App.3d 661, 667, 40 Ill.Dec. 128, 405 N.E.2d 1220.) The prior opinion did not address and resolve questions of fact.

Seaton raises three issues on appeal: (1) whether the court erroneously instructed the jury as to statutory licensing violations and absence of liability insurance; (2) whether the jury verdict was against the manifest weight of the evidence; and (3) whether the evidence supports a finding that Seaton negligently hired Janowitz.

It is well established that a cause of action exists against an employer for negligently hiring an employee he knew, or should have known, was unfit for the job so as to create a danger of harm to third persons. (Fallon v. Indian Trail School (1986), 148 Ill.App.3d 931, 935, 102 Ill.Dec. 479, 500 N.E.2d 101; Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill.App.3d 265, 268, 100 Ill.Dec. 21, 496 N.E.2d 1086; Gregor v. Kleiser (1982), 111 Ill.App.3d 333, 338, 67 Ill.Dec. 38, 443 N.E.2d 1162.) The Restatement (Second) of Agency describes the cause of action as follows:

"A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:

* * * * * *

(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others * * *." Restatement (Second) of Agency § 213, at 458 (1958).

Seaton first contends the trial court improperly instructed the jury as to Janowitz's lack of a plumber's license. The instructions in question stated Seaton could be held liable for:

"Carelessly and negligently hiring Richard Janowitz to perform plumbing services on the premises in question when he knew or, in the exercise of ordinary care, should have known that Richard Janowitz was not a licensed plumber as required under Chapter 111, Section 1101 et. [sic ] seq. of the Illinois Revised Statutes."

Plaintiffs respond by asserting the instructions in question were properly submitted to the jury to show that Seaton was negligent in hiring Janowitz. Plaintiffs argue a reasonable person would have inquired into whether Janowitz was a licensed plumber before hiring Janowitz to do the repair work. Further, that had Seaton done so, he would have found Janowitz lacked the requisite skills to do the work.

Plaintiffs also contend that section 1 of the Illinois Plumbing License Law (Licensing Law) (Ill.Rev.Stat.1987, ch. 111, par. 1101) was enacted to protect the general public by requiring those who install plumbing to be licensed. Plaintiffs claim that they were members of the class of persons which the statute was intended to protect.

We believe the trial court erred in instructing the jury as to Janowitz's lack of a plumber's license. It is improper to instruct the jury as to a statutory violation when there is no evidence to show the injury or damage was proximately caused by the statutory violation. Davis v. Marathon Oil Co. (1976), 64 Ill.2d 380, 390, 1 Ill.Dec. 93, 356 N.E.2d 93; Greenlee v. First National Bank (1988), 175 Ill.App.3d 236, 240, 124 Ill.Dec. 742, 529 N.E.2d 723; Grabner v. American Airlines, Inc. (1980), 81 Ill.App.3d 894, 900, 37 Ill.Dec. 103, 401 N.E.2d 1196.

In the instant case, plaintiffs alleged a violation of the Licensing Law. However, plaintiffs failed to establish sufficient facts to show the alleged statutory violation (lack of a plumbing license) was proximately related to the negligent act (the propane torch valve left open). A review of the record fails to set forth any evidence showing that a person needs to have proficiency with propane torches before receiving a plumber's license, or that a person may not operate a propane torch without a "plumber's license." Without a proper foundation, we fail to see how the absence of a plumber's license was proximately related to the alleged negligent act with the propane torch. Thus, we believe the trial court erroneously instructed the jury as to the alleged statutory licensing violation in this case.

Seaton next contends the trial court improperly instructed the jury as to Janowitz's lack of liability insurance. The instructions in question stated that Seaton could be held liable for:

"Carelessly and negligently hiring Richard Janowitz to perform plumbing services on the premises in question when he knew or, in the exercise of ordinary care, should have known that Richard Janowitz did not have any liability insurance to cover him in the performance of his work at the leased premises on the day of the occurrence."

Seaton argues the reference to insurance was prejudicial error. In addition, Seaton asserts it was error to give such a jury instruction without first showing that the lack of insurance was the proximate cause of the fire.

Plaintiffs respond by asserting the instruction was properly submitted to the jury to show that Seaton was negligent in hiring Janowitz. Plaintiffs argue a reasonable person would have inquired into whether Janowitz carried liability insurance before hiring Janowitz to do the...