Montgomery v. Petty Management Corp.
Decision Date | 22 June 2001 |
Docket Number | No. 1-99-1701.,1-99-1701. |
Citation | 752 N.E.2d 596,256 Ill.Dec. 716,323 Ill. App.3d 514 |
Parties | Walter MONTGOMERY, Plaintiff-Appellant, v. PETTY MANAGEMENT CORPORATION, an Illinois Corporation, Defendant-Appellee (McDonald's Corporation, Defendant). |
Court | United States Appellate Court of Illinois |
Law Offices of John J. Zachara, of Chicago (Michael J. Fahey) of counsel, for Appellant.
Law Office of Nancy A. Zettler, of Chicago (Nancy A. Zettler) of counsel, for Appellee.
The appellant, Walter Montgomery, appeals the trial court's grant of summary judgment. On appeal, Montgomery contends that the appellee, Petty Management Corp. (PMC), is liable for negligence: (1) under a theory of respondeat superior, and (2) due to negligent hiring. For the reasons that follow, we affirm.
On June 18, 1994, Montgomery, who was 72 years of age, entered a McDonald's restaurant located at 7601 South Vincennes in Chicago, Illinois, which was owned by PMC. As Montgomery was waiting in line to place his order, a McDonald's employee, Demetrius Holmes, who was dressed in street clothes, approached the counter and requested a drink.
Montgomery thought that Holmes was cutting the line. An argument between the two ensued, which escalated into a fistfight. It is uncertain who started the fight. Both men claim that the other threw the first punch. The fight ended with Holmes kicking Montgomery as he lay on the floor, before people were able to separate them. Holmes claims that after the two were separated, Montgomery pulled a knife and attempted to attack him. Montgomery denied the allegations. After the fight, Holmes was pulled into the back of the restaurant away from Montgomery.
It is disputed as to whether Holmes was working when the altercation occurred. In his deposition, Holmes stated that he had changed out of his uniform and into his street clothes because his shift had ended and he was in the process of leaving the store when the fight occurred. Holmes was required to punch his time card whenever a shift or break started or ended. However, on the day of the fight there were five punches on Holmes' time card.
Holmes' supervisor, Renee Thorpe, testified during her deposition that the altercation took place while Holmes was "off the clock." Thorpe stated that she did not know the exact time that the fight took place. She said that she knew Holmes was "off the clock" because approximately 15 minutes before the fight occurred she had asked Holmes to punch out because his shift had ended.
Montgomery initially brought suit against PMC, Holmes, McDonald's Corporation, manager Earl Reeves, and assistant manager Renee Thorpe. All defendants were granted summary judgment except Holmes, who was voluntarily dismissed. Montgomery now appeals the grant of summary judgment as to PMC.
Since this appeal arises from an order granting summary judgment, the standard of review is de novo. Aetna Casualty & Surety Co. v. Allsteel, Inc., 304 Ill.App.3d 34, 39, 237 Ill.Dec. 425, 709 N.E.2d 680 (1999). The judgment sought shall be rendered without delay if 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. 735 ILCS 5/2-1005(c) (West 2000). In ruling on a motion for summary judgment, the trial court must view all evidence in the light most favorable to the nonmovant. Boldini v. Owens Corning, 318 Ill.App.3d 1167, 1170, 253 Ill.Dec. 88, 744 N.E.2d 370 (2001).
Montgomery contends that the trial court erred in finding that Holmes was not acting within the scope of his employment at the time of the altercation. We disagree.
For an employer to be vicariously liable for an employee's tort under the doctrine of respondeat superior, the tort must have been committed within the scope of the employment. Pyne v. Witmer, 129 Ill.2d 351, 359, 135 Ill.Dec. 557, 543 N.E.2d 1304 (1989). No precise definition has been accorded the term "scope of employment," but broad criteria have been enunciated:
The burden is on the plaintiff to show the contemporaneous relationship between the tortious act and scope of employment. Witmer, 129 Ill.2d at 360,135 Ill.Dec. 557,543 N.E.2d 1304. If, from the papers on file, a plaintiff fails to establish an element of the cause of action, summary judgment for defendant is proper. 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. Stern v. Ritz Carlton Chicago, 299 Ill. App.3d 674, 677, 234 Ill.Dec. 28, 702 N.E.2d 194 (1998).
In Bolwin v. El Kay Manufacturing Co., 32 Ill.App.3d 138, 336 N.E.2d 502 (1975), the plaintiff, Earl Bolwin, brought suit to recover damages from defendant, El Kay Manufacturing Company, for personal injuries suffered in an assault committed by Willie Davis, who was employed as a shipping checker by El Kay at the time of the incident. The trial court directed a verdict for the defendant after the plaintiff testified. The appellate court affirmed and held that if the employee was not acting as his employer's agent at the time of the tort, the employer could not be held liable for the negligent act. It is the burden of the plaintiff, who asserts the agency, to show that the employee was acting as the agent of the defendant-employer when the injury was inflicted. The appellate court held that there was no evidence that established a connection between the checker's attack and some function that he was performing for his employer. Bolwin, 32 Ill.App.3d at 141, 336 N.E.2d 502.
Here, we have a similar situation. In his deposition, Holmes stated that he was hired as a cook. He stated that he mostly worked on the grill but that on occasion he would do cleaning duties and sometimes would work as a cashier when they got backed up.
The altercation occurred on the customer side of the counter. Holmes spent most of his time on the other side of the counter where the food was being prepared and orders were being taken. As Holmes stated, there were occasions when he was on the customer side of the counter, but on those occasions, Holmes would have been performing cleaning duties.
When the altercation occurred, Holmes was in the process of ordering a drink for himself. Holmes was not cleaning, nor was he performing any of his job duties, or in the process of performing any task for his employer, for that matter. Holmes' actions when the altercation occurred were more similar to those of a customer. He was in line requesting a drink, just as Montgomery was in line placing his order. Standing in line and placing an order was not one of Holmes' job duties.
It is disputed as to whether Holmes was actually on the clock when the altercation occurred. Whether Holmes was on the clock is irrelevant. The mere fact that Holmes was working when the altercation occurred does not in fact mean that he was acting within the scope of his employment when the fight occurred. Here, if we assume that Holmes, who was in street clothes, was on the clock, our holding that he was not acting in the scope of his employment would be the same. Even if Holmes were on the clock when the fight started, we still find that he was not furthering the ends of his employer when the fight occurred. Accordingly, the trial court's grant of defendant's motion for summary judgment on the count alleging respondeat superior is affirmed.
Montgomery next asserts as error the trial court's grant of summary judgment on the count of his complaint alleging that PMC was negligent in hiring Holmes. Montgomery argues that there was evidence in Holmes' background which indicated that Holmes was unfit for the job of cook and that his hiring would create a foreseeable danger. We disagree.
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