Neuhengen v. Global Experience Specialists, Inc.

• Decision Date: 28 June 2018
• Docket Number: 1–16–1380,1–16–1496 ( Consolidated),Nos. 1–16–0322,s. 1–16–0322
• Citation: 2018 IL App (1st) 160322,109 N.E.3d 832
• Parties: Thomas NEUHENGEN, Plaintiff–Appellee and Cross–Appellant, v. GLOBAL EXPERIENCE SPECIALISTS, INC., a Nevada Corporation, and Frederick Neirinckx, Defendants–Appellants, (Global Experience Specialists, Inc., a Nevada Corporation, Cross–Appellee).
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 160322
109 N.E.3d 832

Thomas NEUHENGEN, Plaintiff–Appellee and Cross–Appellant,
v.
GLOBAL EXPERIENCE SPECIALISTS, INC., a Nevada Corporation, and Frederick Neirinckx, Defendants–Appellants,

(Global Experience Specialists, Inc., a Nevada Corporation, Cross–Appellee).

Nos. 1–16–0322
1–16–1380
1–16–1496 ( Consolidated)

Appellate Court of Illinois, First District, FOURTH DIVISION.

June 28, 2018

Dominick W. Savaiano and Jack J. Murphy, of Nielsen, Zehe & Antas, P.C., and Melissa A. Murphy-Petros, of Wilson Elser Moskowitz Edelman & Dicker LLP, both of Chicago, and Adrian Mendoza and Edward R. Sherman, of Lillig & Thorsness, Ltd., of Oak Brook, for appellants.

Robert G. Black, of Law Offices of Robert G. Black, P.C., of Naperville, for appellee.

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

109 N.E.3d 837

¶ 1 Plaintiff Thomas Neuhengen was working at a trade show at McCormick Place in Chicago when he was injured by a forklift driven by defendant Frederick Neirinckx, an employee of defendant Global Experience Specialists, Inc. (GES). Plaintiff filed a complaint alleging negligence and willful and wanton conduct against GES and Neirinckx. Prior to the jury trial, Neirinckx admitted his negligence, and GES admitted negligence under the respondeat superior doctrine. GES further admitted that if Neirinckx's conduct was found to be willful and wanton, then it admitted its respondeat superior liability for Neirinckx's conduct. Following the trial, the jury awarded plaintiff $12,228,068 in compensatory damages on the negligence claims and $3,000,000 in punitive damages after finding GES's conduct to be willful and wanton in a special interrogatory. The jury found that Neirinckx's conduct was not willful and wanton in a special interrogatory.

¶ 2 Defendants filed a posttrial motion raising multiple claims, including a motion for a new trial and a request for judgment notwithstanding the verdict (JNOV) on the $3,000,000 punitive damages award against GES. The trial court granted defendants' motion for a JNOV on the punitive damages award, finding that plaintiff failed to prove GES's willful and wanton conduct proximately caused plaintiff's injury. Plaintiff filed a motion to reconsider the trial court's grant of JNOV, which was denied.

¶ 3 Defendants appealed and plaintiff filed a cross-appeal. In their appeal, defendants argue that the trial court abused its discretion in denying their motion for a new trial because they were deprived of a fair trial when the trial court failed to dismiss the count against GES alleging willful and wanton conduct after GES admitted its respondeat superior liability for Neirinckx's conduct. In his cross-appeal, plaintiff contends that the trial court erred in granting defendants' motion for a JNOV on the jury's verdict that GES's conduct was willful and wanton and striking the punitive damages award.

¶ 4 In September 2012, GES served as an official services contractor for the 2012 International Manufacturing Technology Show (IMTS) at McCormick Place. IMTS involved three phases: the "move-in" phase, when all large equipment for exhibition was brought in; the show itself for exhibitors and guests; and the "move-out" phase, when workers removed the heavy equipment exhibited at the show. GES hired Neirinckx as one of its forklift operators for IMTS.

¶ 5 On September 18, 2012, plaintiff was at IMTS during the move-out phase for his employer, the Hermle Corporation (Hermle), an exhibitor at the show. Plaintiff was in the Hermle exhibitor booth when Neirinckx was operating a 58,000–pound Versa Lift 40/60 forklift (Versa Lift) to remove equipment. Neirinckx was working with Christopher Nash, another GES employee, as his spotter. While attempting to pick up a piece of Hermle's equipment, Neirinckx operated the Versa Lift and came into contact with plaintiff's left foot and ankle causing severe injuries. Nash was removing debris from the floor and was not acting as Neirinckx's spotter at the time of the accident.

¶ 6 In January 2015, plaintiff filed a motion to amend his complaint to add separate punitive damages claims against Neirinckx and GES which was granted in

109 N.E.3d 838

April 2015. The operative complaint when the parties were proceeding to trial was plaintiff's fourth amended complaint. Count I alleged negligence against GES under the doctrine of respondeat superior for Neirinckx's actions. Count II alleged direct negligence against GES based on negligent hiring and training of Neirinckx. Count III alleged willful and wanton conduct by GES based on Neirinckx's conduct as well as GES's conduct in hiring and training. Count IV alleged negligence against Neirinckx in the operation of the Versa Lift, while count V alleged willful and wanton conduct against Neirinckx in the operation of the Versa Lift.

¶ 7 In August 2015, prior to jury selection, defendants admitted Neirinckx's negligence and that GES was liable under the doctrine of respondeat superior . GES also admitted respondeat superior for any willful and wanton conduct by Neirinckx if the jury should find against him. GES then moved to dismiss counts II and III from the fourth amended complaint, arguing that the claim of negligent hiring and reckless hiring based on willful and wanton conduct were "duplicative" in light of its admission of respondeat superior liability which eliminated "all corporate misconduct claims in this case." After arguments, the trial court granted GES's motion to dismiss count II, the claim of negligent hiring directed against GES, but denied the motion as to count III, the claim of willful and wanton conduct based on GES's reckless hiring.

¶ 8 During the trial, the circuit judge instructed plaintiff to file a new complaint to correspond with the claims being presented to the jury. Plaintiff's fifth amended complaint alleged negligence against both Neirinckx and GES based on Neirinckx's actions in count I, alleged willful and wanton conduct against Neirinckx in count II, and alleged willful and wanton conduct against GES in count III. The willful and wanton allegations in count III were against GES based upon Neirinckx's conduct as well as GES's own conduct for failing to have a three person crew, failing to implement a procedure to check certifications of forklift operators, and failing to ensure that Neirinckx was trained in the operation of the Versa Lift.

¶ 9 The following evidence was presented at trial.

¶ 10 Plaintiff was 35 years old at the time of the trial, served in the Wisconsin Army National Guard, and had served two deployments to Iraq. He was employed by Hermle at the time of the accident and was present during the move-out phase of IMTS.

¶ 11 On September 18, 2012, he arrived at McCormick Place between 7 and 7:30 a.m. He was working with Richard Saegert. Plaintiff observed that some of Hermle's machines had already been loaded onto a truck when he arrived. He noticed Neirinckx moving one of Hermle's "C22 machines," and "he was backing up with it over a bunch of crates." Plaintiff went over to Neirinckx and confirmed that the machine was being taken to the correct truck to move Hermle's equipment back to Wisconsin. He also asked Neirinckx to next move the "C22 accessory skid," which is where all the components for that machine were placed, to keep the items together.

¶ 12 Plaintiff and Saegert moved closer to the accessory skid. Plaintiff noticed Neirinckx "was pushing" one of Hermle's coolant pans with the forks of his forklift. Plaintiff asked Neirinckx to stop while he got another "fork truck" to move the coolant pan out of Neirinckx's way. Neirinckx backed up and stopped. Plaintiff asked another person, John Lopez, to come over to move the coolant pan. While plaintiff stepped away to get Lopez to assist, he

109 N.E.3d 839

heard Saegert say, "Stop." Plaintiff turned around and saw Neirinckx moving the forklift. He heard Saegert tell Neirinckx to wait until the debris was moved out of the way. Neirinckx then stopped.

¶ 13 While in the process of moving the coolant pan with the smaller forklift, the coolant pan snagged on an extension cord and slipped slightly off the forks, "teetering" approximately a foot off the ground. Plaintiff and Saegert bent down to pick up the pan and slipped it back onto the forks. Plaintiff believed he was in a crouch position for a couple of seconds, then stepped away so Lopez could back up with the pan.

¶ 14 As Lopez was backing up with the coolant pan, plaintiff felt something bump him from behind and he fell to the ground. At that point, the rear wheel of the forklift operated by Neirinckx "caught" his left heel and "then pulled off on [his] foot." Plaintiff testified that the forks of the forklift were ten feet behind him. Plaintiff was in front and a little to the right of Neirinckx's forklift.

¶ 15 Plaintiff testified that the cab to the Versa Lift forklift is to the left as one is seated in it, which left a blind spot to the right. Plaintiff did not receive any warning that he would be struck. He was unable to hear the forklift because there were a number of vehicles moving around the space. He did not hear a horn nor did anyone communicate with him that the Versa Lift was going to move. Plaintiff's safety training had taught him that you should not turn your...