McQueen v. Green

• Decision Date: 16 October 2020
• Docket Number: No. 1-19-0202,1-19-0202
• Citation: 449 Ill.Dec. 93,2020 IL App (1st) 190202,178 N.E.3d 700
• Parties: Fletcher MCQUEEN, Plaintiff-Appellee, v. Lavonta M. GREEN and Pan-Oceanic Engineering Company, Inc., a Corporation, Defendants (Pan-Oceanic Engineering Company, Inc., Defendant-Appellant).
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 190202

178 N.E.3d 700

449 Ill.Dec. 93

Fletcher MCQUEEN, Plaintiff-Appellee,

v. Lavonta M. GREEN and Pan-Oceanic Engineering Company, Inc., a Corporation, Defendants(Pan-Oceanic Engineering Company, Inc., Defendant-Appellant).

No. 1-19-0202

Appellate Court of Illinois, First District, SIXTH DIVISION.

October 16, 2020

Daniel G. Suber, of Daniel G. Suber & Associates, of Chicago, for appellant.

Michael W. Rathsack and Yao O. Dinizulu, both of Chicago, for appellee.

JUSTICE CONNORS delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, a verdict was entered against defendant Pan-Oceanic Engineering Company, Inc. (Pan-Oceanic), related to injuries suffered by plaintiff, Fletcher McQueen, as a result of a vehicular collision between plaintiff and Lavonta Green, who was an employee of Pan-Oceanic. Pan-Oceanic was ordered to pay $163,227.45 in compensatory damages and costs and $1 million in punitive damages. The jury did not find against Green. On appeal, Pan-Oceanic contends that it is entitled to a judgment non obstante veredicto (n.o.v. ) or new trial based on faulty jury instructions and special interrogatories, inconsistent verdicts, and other issues. Finding that the verdicts were legally inconsistent and that the errors related to jury instructions prevented a fair trial, we reverse and remand for a new trial.

¶ 2 I. BACKGROUND

¶ 3 A. Complaint and Trial

¶ 4 Plaintiff's operative complaint, filed on March 8, 2017, alleged as follows. On August 17, 2012, Green—who worked for Pan-Oceanic—was assigned to pick up a skid steer from Patten Industries (Patten) and take it to a Pan-Oceanic site in Chicago. After agents for Patten loaded the skid steer onto Green's truck, Green observed that the load was crooked and "didn't look right." Green was nonetheless told to accept the load. While driving to the Pan-Oceanic site, Green lost control of his truck and struck plaintiff's vehicle, which injured plaintiff. Count I of the complaint alleged that Green was negligent. Count II alleged that Pan-Oceanic was negligent and stated in part that Pan-Oceanic had failed to properly hire and train Green in various respects. Count III stated that Green and Pan-Oceanic each recklessly disregarded the safety of others, and it sought punitive damages. Defendants admitted that Green was an employee of Pan-Oceanic during the relevant times. There is no dispute that Pan-Oceanic admitted liability for Green under respondeat superior .

¶ 5 At trial, Green testified that he started working for Pan-Oceanic in March or April 2012. On the day of the collision, Green was driving a truck with an attached flatbed trailer. He went to Patten, located in Elmhurst, to pick up a skid steer that had been repaired. The usual procedure at Patten was that Green would load the machine onto the trailer himself. This time, however, someone from Patten had to load the skid steer using a telehandler (similar to a forklift) because the required key could not be found. After being loaded, the skid steer looked crooked. Green called his boss, "Salvi," and told him "it didn't look right" or "[i]t looked funny." Salvi then spoke to someone at Patten, who told Salvi "[i]t was all fine. He can drive it like that. It's safe." Salvi then told Green, "Be safe. Come to the yard." Green began driving and took the expressway to the Pan-Oceanic site. At one point, Green accelerated and observed in his rearview mirror that the trailer was bouncing. Green hit the brakes, whereupon he spun out, lost control, and hit plaintiff's vehicle.

¶ 6 Green did not know that a load could become unstable on the expressway if it was improperly loaded. No one at Pan-Oceanic had talked to Green about what could happen if a skid steer was improperly chained or loaded. Green also stated that he never had monthly foremen/superintendents' meetings that talked about loading tractors and trailers.

¶ 7 Plaintiff testified in part that Green spoke to him right after the collision, telling plaintiff that he hated driving the truck "because it had happened * * * two or three times before. It happened to somebody else." Plaintiff also testified about his injuries and medical care.

¶ 8 Gulzar Singh, president of Pan-Oceanic, testified as follows. Pan-Oceanic had monthly trainings for employees about loading and securing equipment, as well as weekly toolbox topic meetings and quarterly safety meetings for all employees. Employees were informed and trained that they could lose control of a load if it was unstable. If an employee were not so informed, that would be a reckless disregard of the safety rules. It would also be unsafe if drivers were not taught what to do if they lost control of a load. There were approximately 20 opportunities for Green to have a safety meeting, and if Green did not have a chance to have any safety meetings, that would be an utter disregard for the safety of Green and others on the road.

¶ 9 Savinder Singh, also known as Savi,¹ testified that he was a yard supervisor at Pan-Oceanic in August 2012 and instructed Green and other employees on various aspects of operating trucks. He testified as follows. Savi "told [Green] the basic way" to properly situate a load on a trailer, but Green "knew pretty much how to as well, and I've seen him." Also, Green was trained to properly load a piece of equipment on the back of a trailer. After 60 days on the job, Green seemed familiar with the procedure for loading and unloading a trailer. Savi had not personally been in a situation where a load became insecure and he lost control of a load. Also, Savi himself was not taught how to handle a load that was in distress.

¶ 10 Savi also testified about his conversation with Green and Patten on the day of the collision. Savi denied that Green told him that the load was crooked or diagonal. Instead, Green told Savi that the load looked funny, and Savi did not ask what Green meant by that. At the time of the call, Savi was multitasking. After speaking to someone at Patten, Savi told Green to let Patten load the equipment and make sure it was secure. Savi denied that he told Green it was safe to drive the load and noted that he regularly told Green to "drive safe."

¶ 11 Via a videotaped evidence deposition, one of plaintiff's treating doctors testified about plaintiff's injuries and treatment.

¶ 12 The parties agreed to bifurcate the proceedings. In the first phase, the jury would decide liability and compensatory damages. Depending on the answers to special interrogatories, the jury would consider punitive damages in a second phase.

¶ 13 At a jury instruction conference, the court and the parties discussed Illinois Pattern Jury Instructions, Civil, No. 50.01 (approved Dec. 8, 2011) (hereinafter IPI Civil), which applies when both the principal and agent are sued and there is no issue as to agency. The court noted that the last sentence of the instruction would read, "if you find that—and it will give Lavonta Green—is not liable, then you must find that Pan-Oceanic is not liable * * * if it's strictly responding superior." Defense counsel responded, "Exactly," but plaintiff's counsel disagreed and asserted that plaintiff had independent allegations against Pan-Oceanic. Plaintiff's counsel suggested IPI Civil No. 50.02, which applied when the principal was sued but not the agent. The court maintained that IPI Civil No. 50.01 was the proper instruction because the principal and agent were both parties. Plaintiff's counsel apologized. Upon inquiry, defense counsel confirmed that he did not object to IPI Civil No. 50.01.

¶ 14 The matter of Green's and Pan-Oceanic's liability being linked also came up during defense counsel's request for separate verdict forms for Green and Pan-Oceanic. Defense counsel stated that Green and Pan-Oceanic were sued separately and Green was a separate defendant. The following exchange ensued about whether separate forms were proper where Green was Pan-Oceanic's agent:

"MR. BROWN [(PLAINTIFF'S COUNSEL)]: He's been sued individually and as agent for Pan-Oceanic.

MR. SUBER [(DEFENSE COUNSEL)]: Well, he's been sued as an agent, but he's also been sued individually.

THE COURT: In any event, you're going to tender separate verdict forms as to each defendant. We're going to [address] that. But that is my concern, if you're admitting, what you are, that Green is your agent at the time of the occurrence * * * there is no conceivable way that you can find against Green and not against Pan-Oceanic.

MR. BROWN: Right.

THE COURT: In theory, because there is this failure to adequately train and theory you can find [against] Pan-Oceanic, I guess, but not Green. I don't know. It seems to me they rise and fall together because you've admitted he's your agent. He's acting within his scope of his agency at the time of the occurrence."

¶ 15 The court and the parties later returned to IPI Civil No. 50.01, discussing as follows:

"THE COURT: [N]ormally, I really think this is the way to go, this 50.01 * * *, but my concern is that Lavonta Green * * * is an agent of Pan-Oceanic. That is undisputed. So if you find against Lavonta, you find against Pan-Oceanic.

MR. SUBER [(DEFENSE COUNSEL)]: And adversely.

THE COURT: Right. By my * * * concern is we've got these separate allegations against Pan-Oceanic * * * in other words, it's conceivable—

MR. BROWN [(PLAINTIFF'S COUNSEL)]: Yes, it is.

THE COURT: It's conceivable that you could find against Pan-Oceanic on the second count for negligent acts that were acts that—on a theory other than responding as superior [sic ]."

The court reserved ruling on IPI Civil No. 50.01. The court added that plaintiff would bring some alternative instructions and invited defense counsel to tender an alternative instruction as well.

¶ 16 The proposed special interrogatories asked whether Green and Pan-Oceanic acted with reckless disregard. The court noted that the terms reckless or willful and wanton needed to be defined. Plaintiff's counsel agreed and stated he ...