Phillips v. Community Center Foundation and Children's Farm

• Decision Date: 13 November 1992
• Docket Number: No. 1-91-0871,1-91-0871
• Citation: 606 N.E.2d 447,179 Ill.Dec. 615,238 Ill.App.3d 505
• Parties: , 179 Ill.Dec. 615 Charles PHILLIPS, Plaintiff-Appellant, v. COMMUNITY CENTER FOUNDATION AND THE CHILDREN'S FARM, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 447

606 N.E.2d 447

238 Ill.App.3d 505, 179 Ill.Dec. 615

Charles PHILLIPS, Plaintiff-Appellant, v. COMMUNITY CENTER FOUNDATION AND THE CHILDREN'S FARM,

Defendant-Appellee.

No. 1-91-0871.

Appellate Court of Illinois,

First District, Sixth Division.

Nov. 13, 1992.

Rehearing Denied Dec. 17, 1992.

Rick A. Gleason of Gleason & Fritzshall, Chicago, for plaintiff-appellant.

Robert A. Roth of Keck, Mahin & Cate, Chicago, for defendant-appellee.

Presiding Justice EGAN delivered the opinion of the court:

This is an appeal by the plaintiff, Charles Phillips, from an order granting summary judgment to the defendant, Community Center Foundation (the Center); The Children's Farm is part of the Center. The plaintiff had filed a personal injury action to recover damages for injuries he suffered when he fell from a horse owned by the Center which he was riding on the Center's property.

The Center is an organization whose mission is "to enable people to develop a well-balanced quality of life and a feeling of wholeness." Reverend Frank Sanders is the Executive Director of the Center. The Center sponsors various religious, educational and social service programs designed to accomplish its mission, including religious retreats, an environmental education program, three summer camps, a school camp, a folk school program, a social service program dealing with alcoholism, and an educational farm called the Children's Farm. The Children's Farm is located on the east side of the Center's property, across the road from the main community center building.

Samuel Smith was an employee of the Center from March through November of 1986. Smith had completed the Center's "Pathway to Sobriety" program for alcoholic rehabilitation and was then hired by the Center and placed in charge of maintenance. Smith lived in a house on the western portion of the Center's property, across the highway from the Children's Farm. At his evidence deposition, Smith testified that he worked in a supervisory capacity at the Center, overseeing the physical maintenance of the buildings, vehicles and animals. He said that he supervised five to nine other people; he maintained the equipment for the horses, including saddles, and performed maintenance duties inside the barn. (Smith had earlier testified at his discovery deposition that he was not responsible for checking the condition of the horses' equipment.) Smith would sometimes ride the horses himself, and he would allow his son, his wife and his brother to ride the horses.

The plaintiff testified at his discovery deposition that Smith had often stated that he was in charge of everything at the Center, including maintenance and caring for the horses and equipment, and that he was "in charge of the whole place."

Sanders testified at his discovery deposition that Smith was in charge of maintenance of the premises, but had nothing to do with caring for the horses or the saddles and other equipment associated with the horses. He added that Smith's maintenance responsibilities generally would not require him to go into the barn area. The Center's horses were used mainly for the summer camp program; the general public was not allowed to ride the horses. There was a sign on the gate at the entrance to the Children's Farm that said "Open By Reservation Only." Sanders said that neither Smith nor any other employee was allowed to ride or saddle the horses unless Sanders was present.

Contrary to Sander's testimony, Smith testified that he had authority to use or ride the horses himself and that everyone rode the horses on a daily basis. Smith understood that Sanders had given him authority to ride the horses himself and to allow the plaintiff to ride the horses on the date of the accident. He said that Sanders had been present on past occasions when Smith, other employees, and non-employees had ridden the horses, and Sanders had not told Smith that allowing non-employees to ride the horses was improper.

The plaintiff's complaint alleged that Smith had invited him to a birthday party for Richard Phillips, the plaintiff's brother, on Sunday, August 10, 1986. The party was held at Smith's residence on the Center's property. During the party, Smith invited the plaintiff, his brother, and several children to ride the horses; they rode the horses for short jaunts through the fields for a period of approximately one hour. Dave Schroeder, another employee of the defendant, was participating in the Pathway to Sobriety Program and was working at the Center that day; he saddled the horse that the plaintiff rode. A cinch strap broke, and the plaintiff was injured when he was thrown from the horse.

Smith testified that the broken cinch strap was worn, dry and old and that he had complained to Sanders about the condition of the equipment on several occasions before the plaintiff's accident. Employees did not regularly inspect the saddles and cinches.

Sanders testified he knew all about cinches and saddles, that he knew that a worn-out cinch strap represented a danger to the rider of the horse and that a cinch strap may have broken before the date of the accident. He knew that the camp was using horses on Sunday.

The Center filed a motion for summary judgment, maintaining that it could not be held vicariously liable for the plaintiff's injuries because Smith was not acting within the course and scope of his employment when he invited the plaintiff to ride the horse. The Center's motion stated that Smith was not acting as its agent when the incident occurred, because Smith's acts were motivated by an intention to serve the personal enjoyment of his family and himself, and not the interests of the Center. Contrary to the plaintiff's contention in this court, the Center did argue that it could not be held directly liable for the plaintiff's injuries under a negligence theory because the plaintiff allegedly was a trespasser. Last, the Center maintained that it was shielded from liability by the Recreational Use of Land and Water Areas Act. Ill.Rev.Stat.1985, ch. 70, par. 31, et seq.

The trial judge entered summary judgment in favor of the Center stating, "The court has adopted the argument, reasoning and law referred to in defendants' motion for summary judgment, memorandum in support of defendants' motion for summary judgment, and in defendants' reply in support of its motion for summary judgment as the basis for its ruling."

Summary judgment is generally inappropriate when scope of employment is at issue. 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. (Pyne v. Witmer (1989), 129 Ill.2d 351, 135 Ill.Dec. 557, 543 N.E.2d 1304.) We judge that the evidence in this case does not satisfy the requirements of Pyne v. Witmer and that summary judgment was improperly granted.

We will first address the issue of whether the defendant has established as a matter of law that Smith was not acting as the defendant's agent when he invited the plaintiff to ride the defendant's horse. The defendant relies principally on sections 228 and 242 of the Restatement of Agency (Restatement (Second) of Agency §§ 228, 242 (1958)), Pyne v. Witmer (1989), 129 Ill.2d 351, 135 Ill.Dec. 557, 543 N.E.2d 1304, and Wilson v. Clark Oil & Refining Corp. (1985), 134 Ill.App.3d 1084, 90 Ill.Dec. 40, 481 N.E.2d 840.

Section 228 of the Restatement, cited in Pyne and Wilson, sets forth the criteria to be used in determining whether the conduct of a servant is within the scope of employment. We point out that the comment to section 228 provides that "a master may be liable if a servant speaks or acts, purporting to do so on behalf of his principal, and there is reliance upon his apparent authority or he is aided in accomplishing the tort by the existence of the agency relation." (Emphasis added.) Restatement (Second) of Agency § 228 (1958), comment.

Section 242 provides that:

"A master is not subject to liability for the conduct of a servant towards a person harmed as a result of accepting or soliciting from the servant an invitation, not binding upon the master, to enter or remain upon the master's premises or vehicle, although the conduct which immediately causes the harm is within the scope of the servant's employment."

Again, we point out that the comment to section 242 provides that "the rule stated in this section is applied most frequently when a servant entrusted with a custody of a vehicle, without authority or apparent authority to do so, permits or invites persons to ride on it. The rule applies also, however, to persons entering land with the permission of an employee." (Emphasis added.) Restatement (Second) of Agency § 242 (1958), comment.

The issue in this case, therefore, is whether the record establishes as a matter of law that Smith did not have at least apparent authority to permit the plaintiff to ride the Center's horse.

Apparent authority is that authority which a reasonably prudent person, in view of the principal's conduct, would naturally suppose the agent to possess. Acquiescence by the principal in the conduct of the putative agent is sufficient to establish apparent authority. State Security Insurance Co. v. Burgos (1991), 145 Ill.2d 423, 164 Ill.Dec. 631, 583 N.E.2d 547.

The defendant relies heavily on the testimony of Sanders and substantially disregards the testimony of Smith. Smith testified that he worked in a supervisory capacity which included his overseeing animals; he maintained the equipment for the horses; and he maintained the saddles used on the horses. He understood that he had the authority to use or ride the horses himself, that this authority had been given to him by Sanders and that he had the authority to allow the plaintiff to ride the horse on the date of the accident. He had saddled the horses on other occasions for other individuals; he would...