Malorney v. B & L Motor Freight, Inc., 85-2310

• Decision Date: 18 July 1986
• Docket Number: No. 85-2310,85-2310
• Citation: 496 N.E.2d 1086,146 Ill.App.3d 265,100 Ill.Dec. 21
• Court: United States Appellate Court of Illinois
• Parties: , 100 Ill.Dec. 21 Karen MALORNEY, Plaintiff-Appellee, v. B & L MOTOR FREIGHT, INC., Defendant-Appellant.

Page 1086

496 N.E.2d 1086

146 Ill.App.3d 265, 100 Ill.Dec. 21

Karen MALORNEY, Plaintiff-Appellee, v. B & L MOTOR FREIGHT, INC., Defendant-Appellant.

No. 85-2310.

Appellate Court of Illinois First District, Fifth Division.

July 18, 1986.

Michael E. Dowd, Joel S. Ostrow (Dowd & Dowd, Ltd., of counsel), Chicago, for defendant-appellant.

Frank M. Bonifacic, William J. Harte, Madigan, Stanner, Kahn, Bonifacic & Getzendanner, and William J. Harte, Ltd., Chicago, for plaintiff-appellee.

Justice MURRAY delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308) by defendant B & L Motor Freight, Inc. (B & L) from a trial court order denying its motion for summary judgment. This court granted defendant's motion for leave to appeal upon certification of the issue by the trial court. The issue certified is whether defendant had a duty under the circumstances of this case to investigate Edward Harbour's non-vehicular criminal record and to verify his negative response regarding criminal offenses which he furnished on his employment application prior to employing him and furnishing him an over-the-road truck with sleeping facilities.

The circumstances of this case are as follows. Edward Harbour applied for a position of over-the-road driver with defendant B & L. On the employment application, Harbour was questioned as to whether he had any vehicular offenses or other criminal convictions. His response to the vehicular question was verified by B & L; however, his negative answer regarding criminal convictions was not verified by B & L. In fact, Harbour had a history of convictions for violent sex-related crimes and had been arrested the year prior to his employment with B & L for aggravated sodomy of two teenage hitchhikers while driving an over- the-road truck for another employer. Upon being hired by B & L, Harbour was given written instructions and regulations, including a prohibition against picking up hitchhikers in a B & L truck.

Subsequently, on January 24, 1978, at an Indiana toll road plaza, Harbour picked up plaintiff Karen Malorney, a 17-year-old hitchhiker. In the sleeping compartment of his truck, he repeatedly raped and sexually assaulted plaintiff, threatened to kill her, and viciously beat her. After being released, plaintiff notified police. Harbour was arrested, convicted, and sentenced to 50 years with no parole. Plaintiff's complaint charges defendant B & L with recklessness and wilful and wanton misconduct in negligently hiring Harbour as an over-the-road driver without adequately checking his background and providing him a vehicle with a sleeping compartment. Plaintiff seeks compensatory and punitive damages from B & L.

Defendant B & L filed a motion for summary judgment contending that it had no duty to verify Harbour's negative response to the question regarding criminal convictions. In denying defendant's motion, the trial court found that (1) Harbour was hired as an over-the-road driver and furnished with a truck equipped with sleeping quarters; (2) B & L instructed Harbour not to pick up hitchhikers; and (3) it is common knowledge that hitchhikers frequent toll plazas which would show that B & L knew drivers are prone to give rides to hitchhikers. The court concluded that these facts show that B & L had a duty to check Harbour's criminal background and certified the issue for interlocutory appeal.

Defendant argues that it had no duty to investigate Harbour's non-vehicular criminal background nor to verify his denial thereof because of a lack of foreseeability that he would use the truck to pick up and sexually assault a hitchhiker. To impose such a duty would be against public policy by placing too great a burden on employers. On the other hand, plaintiff posits the argument that factual issues exist which preclude summary judgment and require a jury determination. We agree and must affirm the trial court for the following reasons.

Defendant correctly argues that the existence of a duty is a question of law to be determined by the court, rather than by the factfinder. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 163, 74 Ill.Dec. 614, 617, 456 N.E.2d 116, 119.) However, once a duty has been found, the question of whether the duty was properly performed is a fact question to be decided by the trier of fact, whether court or jury. Johnson v. Hoover Water Well Service (1982), 108 Ill.App.3d 994, 1003, 64 Ill.Dec. 476, 482, 439 N.E.2d 1284, 1290.

The existence of a legal duty is not dependent on foreseeability alone, but includes considerations of public policy and social requirements. (Zimmerman v. Netemeyer (1984), 122 Ill.App.3d 1042, 1047, 78 Ill.Dec. 383, 387, 462 N.E.2d 502, 506.) In Illinois, two duties, among others not pertinent here, are imposed by law on owners of vehicles who permit or hire other persons to drive on our highways. The first duty requires that the degree of care which an owner should exercise in selecting a driver is that which a reasonable person would exercise under the circumstances. (Tansey v. Robinson (1960), 24 Ill.App.2d 227, 236, 164 N.E.2d 272, 276-77.) An owner or employer also owes a duty in connection with the entrustment of vehicles to others. In other words, a vehicle owner has a duty to deny the entrustment of a vehicle to a driver it knows, or by the exercise of reasonable diligence could have known, is incompetent. (See Seward v. Griffin (1983), 116 Ill.App.3d 749, 754, 72 Ill.Dec. 305, 310, 452 N.E.2d 558, 563.) In addition to these duties, it is well...