Papadakis v. Fitness 19 Il 116, LLC

• Decision Date: 28 June 2018
• Docket Number: No. 1–17–0388,1–17–0388
• Parties: Maria PAPADAKIS, Plaintiff–Appellant, v. FITNESS 19 IL 116, LLC, d/b/a Fitness 19; F–19 Holdings, LLC, d/b/a Fitness 19; and Chad Drake, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 170388

148 N.E.3d 648

439 Ill.Dec. 595

Maria PAPADAKIS, Plaintiff–Appellant,

v.FITNESS 19 IL 116, LLC, d/b/a Fitness 19; F–19 Holdings, LLC, d/b/a Fitness 19; and Chad Drake, Defendants–Appellees.

No. 1–17–0388

Appellate Court of Illinois, First District, FOURTH DIVISION.

June 28, 2018

Glenn J. Dunn Jr. and Angel P. Bakov, of Glen J. Dunn & Associates, Ltd., of Chicago, for appellant.

Hugh C. Griffin and Mary N. Nielsen, of Hall Prangle & Schoonveld, LLC, of Chicago, for appellees.

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

¶ 1 While exercising at a health club called Fitness 19 under the supervision of one of the club's personal trainers, plaintiff, Maria Papadakis, slipped and fell off an unsecured piece of equipment known as a plyometric step. She sued the health club, its corporate affiliate (collectively, the Fitness 19 Defendants), and the personal trainer, Chad Drake, for negligence and willful and wanton conduct. She also sued the Fitness 19 Defendants under a theory of respondeat superior for the conduct of their employee, Drake.

¶ 2 The trial court dismissed the direct claims of willful and wanton conduct against the Fitness 19 Defendants but left intact the willful-and-wanton allegations against the personal trainer, Drake. That ruling is not challenged on appeal.

¶ 3 The trial court later entered summary judgment on all negligence claims, based on a waiver-of-liability clause in a contract plaintiff signed with the health club. To the trial court's thinking, that left standing only a single count: the direct claim of willful and wanton conduct against the personal trainer, Drake, with no viable claims against the Fitness 19 Defendants.

¶ 4 Plaintiff does not challenge the trial court's ruling that the waiver-of-liability clause barred all negligence claims. Plaintiff challenges only a sliver of the summary judgment ruling. She says that the respondeat superior counts against the Fitness 19 Defendants (Counts 2 and 6) alleged not only the employee's negligence but also his willful and wanton conduct. Thus, while she does not challenge the grant of summary judgment on Counts 2 and 6 insofar as they concerned Drake's negligence, she claims that those counts should stand to the extent they allege his willful and wanton acts.

¶ 5 After the grant of summary judgment below, plaintiff filed a motion to reconsider to make this very point—that Counts 2 and 6 should be read as including willful-and-wanton allegations and thus, to that extent, should have survived the summary judgment ruling. The trial court did not read the complaint the same way, writing that its summary judgment ruling "did not address counts of willful and wanton conduct against [the Fitness 19 Defendants] because such counts were not pled in the second amended complaint." (Emphasis added.)

¶ 6 Plaintiff also sought leave to file a third amended complaint to more explicitly add allegations of willful and wanton conduct by Drake in the respondeat superior Counts 2 and 6. The trial court denied that motion, too.

¶ 7 On appeal, plaintiff argues that the trial court abused its discretion in denying her leave to amend the complaint and likewise erred in denying the motion to reconsider its entry of summary judgment as to Counts 2 and 6. The rulings came in different orders on different dates.

¶ 8 As a preliminary matter, the Fitness 19 Defendants challenge our jurisdiction to hear the appeal from the order denying plaintiff leave to file a third amended complaint. We agree that we lack jurisdiction over that order.

¶ 9 At the time the appeal was taken, the matter was pending (and remains pending) in the trial court, as Count 4, directed against defendant Chad Drake, survived all the dispositive motions. Under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), "an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both." (Emphasis added.)

¶ 10 Ordinarily, an order denying leave to amend a complaint is not considered a "final judgment." Ely v. Pivar , 2018 IL App (1st) 170626, ¶ 39, 424 Ill.Dec. 10, 107 N.E.3d 323 ; Paul H. Schwendener, Inc. v. Jupiter Electric Co., Inc. , 358 Ill. App. 3d 65, 82, 293 Ill.Dec. 893, 829 N.E.2d 818 (2005) ; Gray v. Starkey , 41 Ill. App. 3d 555, 558, 353 N.E.2d 703 (1976). But we may review the denial of leave to amend when the plaintiff sought to amend counts that the trial court dismissed with prejudice. Ely , 2018 IL App (1st) 170626, ¶ 39, 424 Ill.Dec. 10, 107 N.E.3d 323 ; Jupiter , 358 Ill. App. 3d at 82, 293 Ill.Dec. 893, 829 N.E.2d 818. That principle has been extended as well to denials of leave to amend certain counts on which (as here) summary judgment was granted. See Enblom v. Milwaukee Golf Development, 227 Ill. App. 3d 623, 628, 169 Ill.Dec. 703, 592 N.E.2d 190 (1992) ("As a result of our determination that we have jurisdiction over the appeal of the denial of the motion to vacate the summary judgment, we have permitted ourselves to comment substantively on the issue of leave to amend due to the effect of the summary judgment on the motion for leave to amend.").

¶ 11 But we need not decide if plaintiff could bootstrap that denial-of-leave order onto the summary judgment order here, because even if she could, we would lack jurisdiction over the order denying leave to amend for a different reason: it lacked the requisite finding under Rule 304(a) that there was no just reason to delay enforcement from or appeal of that order. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). "In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liability of fewer than all the parties is not enforceable or appealable." Ill. S. Ct. R. 304(b) (eff. Mar. 8, 2016). Even if the order denying leave was final, it was not appealable. We thus lack jurisdiction to review it. Ely , 2018 IL App (1st) 170626, ¶ 36, 424 Ill.Dec. 10, 107 N.E.3d 323 ("[T]he absence of a Rule 304 finding in a judgment—for whatever reason—leaves the judgment final but unenforceable and unappealable.") (internal quotation marks omitted); In re Estate of Lee , 2017 IL App (3d) 150651, ¶ 21, 416 Ill.Dec. 72, 83 N.E.3d 570.

¶ 12 We do, however, have jurisdiction to review the order denying plaintiff's motion to reconsider summary judgment, as it was unquestionably a final order, and it contained the requisite Rule 304(a) language. See Enblom, 227 Ill. App. 3d at 628, 169 Ill.Dec. 703, 592 N.E.2d 190. We turn to that question.

¶ 13 A motion to reconsider brings to the court's attention changes in the law, new evidence, or errors in the court's application of existing law. Broadnax v. Morrow , 326 Ill. App. 3d 1074, 1082, 261 Ill.Dec. 225, 762 N.E.2d 1152 (2002). We usually review this ruling for an abuse of discretion. Id. But when the motion to reconsider argues that the trial court committed legal error in entering summary judgment, our review is de novo , as we are really just reviewing the original grant of summary judgment. O'Shield v. Lakeside Bank , 335 Ill. App. 3d 834, 837–38, 269 Ill.Dec. 924, 781 N.E.2d 1114 (2002). And plaintiff's argument is a purely legal one—that the trial court improperly disposed of the respondeat superior counts in their entirety in its summary judgment order, when it should have read them as including not just claims of Drake's negligence but also his willful and wanton conduct.

¶ 14 Summary judgment is proper only where "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 2014). We construe these materials strictly against the movant and liberally in favor of the opponent. Mashal v. City of Chicago , 2012 IL 112341, ¶ 49, 367 Ill.Dec. 223, 981 N.E.2d 951. As summary judgment is a drastic disposition, the moving party's right must be "clear and free from doubt." Id.

¶ 15 Under the respondeat superior doctrine, an employer can be vicariously liable for the torts of an employee acting within the scope of employment. Vancura v. Katris , 238 Ill. 2d 352, 375, 345 Ill.Dec. 485, 939 N.E.2d 328 (2010). The employee's liability is imputed to the employer; the plaintiff generally need not establish any malfeasance by the employer. Id. The employer's liability extends to negligent, willful, malicious, or even criminal acts of its employees within the scope of employment. Adames v. Sheahan , 233 Ill. 2d 276, 298, 330 Ill.Dec. 720, 909 N.E.2d 742 (2009) ; Mitchell v. Norman James Construction Co. , 291 Ill. App. 3d 927, 932, 225 Ill.Dec. 881, 684 N.E.2d 872 (1997).

¶ 16 Respondeat superior liability attaches for an employee's conduct if (1) an employer/employee relationship existed, (2) the principal controlled or had the right to control the employee's conduct, and (3) the employee's conduct fell within the scope of the agency or employment. Wilson v. Edward Hospital , 2012 IL 112898, ¶ 18, 367 Ill.Dec. 243, 981 N.E.2d 971. For purposes of this appeal, there is no issue as to whether plaintiff has established these requirements. The Fitness 19 Defendants have conceded that Drake was their employee and have never claimed in any dispositive motion (or on appeal) that Drake was not acting within the scope of his employment when his client, plaintiff, was injured. For summary judgment purposes, construing the record liberally in plaintiff's favor, we thus presume that plaintiff has established the three prerequisites.

¶ 17 Nor is there an issue as to the sufficiency of the willful and wanton claims directed against the employee, Drake, in the count directed at him (Count 4). The trial court ruled that a question of fact existed as to whether Drake's conduct was willful and wanton;...