2014 IL App (2d) 130633
No. 2-13-0633
Opinion filed May 2, 2014
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
PENNY PARKS, ) Appeal from the Circuit Court
) of McHenry County.
Plaintiff-Appellee, )
)
v. ) No. 07-LA-464
)
DENNIS BRINKMAN and LAKESIDE )
LEGACY FOUNDATION, )
)
Defendants, ) Honorable
) Thomas A. Meyer,
(Crystal Lake Jaycees, Defendant-Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Hutchinson and Spence concurred in the judgment and opinion.
OPINION
¶1 This appeal arises from an incident in which Dennis Brinkman, a volunteer at an event
staffed by the defendant, the Crystal Lake Jaycees, hugged and picked up another volunteer, the
plaintiff, Penny Parks. Brinkman lost his balance and fell to the ground, injuring Parks. Parks
sued, and the case went to a jury trial. The jury found the Jaycees vicariously liable for
Brinkman’s conduct. The Jaycees appeal, arguing that the verdict was against the manifest
weight of the evidence. We reverse, holding that the Jaycees were entitled to judgment
notwithstanding the verdict.
¶2 I. BACKGROUND
2014 IL App (2d) 130633
¶3 A. Factual Background
¶4 The following facts are drawn from the trial testimony and other evidence submitted by
the parties and are undisputed except as noted. One of the central issues at trial, as in this
appeal, was whether hugging was “within the scope” of Brinkman’s employment as a volunteer
for the Jaycees. Thus, much of the evidence summarized here concerns the extent to which
hugging was either customary or encouraged at Jaycee events. Other evidence that relates only
to a specific issue on appeal is summarized elsewhere, when that issue is discussed. Finally,
evidence regarding other issues that are not raised in this appeal, such as Parks’ injuries and
damages, is largely omitted.
¶5 On September 28, 2007, the Lakeside Legacy Foundation held an Oktoberfest event at
the Dole mansion in Crystal Lake. There was a carnival on the grounds, and the Jaycees
provided volunteers for the ticket booth, the beer tent, and security. The event began at 5 p.m.
on Friday and continued through the weekend.
¶6 The plaintiff was in her late thirties at the time of the accident. She was not a member
of the Jaycees, but she was familiar with the group and had participated in Jaycee events before,
beginning in 1994. The plaintiff had lived in Minnesota for several years. She also had lived
in Illinois at various times, however, and she moved back to Illinois a few months before the
accident. At the time of the accident, she was working in a sub sandwich shop as a
management trainee. Her boss, Roger (“Chip”) Whitman II, was a member of the Lakeside
Legacy Foundation. He asked her if she would volunteer at the Oktoberfest event. He himself
attended the Oktoberfest on Friday evening as a volunteer for Lakeside Legacy.
¶7 Noni Valicenti, the plaintiff’s sister, had been a member of the Jaycees for about 14
years. She was in charge of recruiting and organizing volunteers for the Oktoberfest event.
She also asked the plaintiff to come volunteer at the event.
-2-
2014 IL App (2d) 130633
¶8 The plaintiff arrived at the event at about 7:15 p.m. She checked in with Valicenti, who
was at the ticket booth, and then toured the area around the beer tent, taking pictures of
volunteers and guests with her camera. In some of the pictures she took, Jaycees had their arms
around each other. The plaintiff saw a number of Jaycees she knew, including Brinkman.
Brinkman was working as a Jaycee volunteer in the beer tent, either pouring or serving beer.
The plaintiff greeted several of the Jaycees, hugging them as she did so. She and Brinkman did
not greet each other at that time, as he was busy.
¶9 There was conflicting evidence regarding the extent to which the plaintiff knew
Brinkman prior to the accident. At trial, the plaintiff testified that she met Brinkman for the
first time only a few weeks before the accident, at a wedding they both attended. After giving
this testimony, the plaintiff was impeached with her deposition testimony that she first met
Brinkman in 2004 or 2005. The plaintiff also testified at trial that, at the wedding as well as at a
Jaycee event they both attended shortly before the Oktoberfest, Brinkman hugged her and she
hugged him back. Whitman testified that the plaintiff told him after the accident that she knew
Brinkman well.
¶ 10 After the plaintiff took some pictures, she picked up her Jaycee volunteer’s T-shirt and
went to the bathroom to change into it. As she was returning to the beer tent to start her shift,
she encountered Brinkman. Brinkman greeted her and hugged her. According to the plaintiff,
her arms were at her sides during the hug because she was not expecting the hug. Brinkman
then picked her up in the air so that she was on his shoulder. The two of them fell over,
Brinkman landing on top of the plaintiff. The plaintiff testified that this was not the sort of hug
that she usually received from Jaycees; she had never been picked up before when hugging a
Jaycee.
-3-
2014 IL App (2d) 130633
¶ 11 The plaintiff was dazed and injured, and after she picked herself up off the ground, she
went to rest nearby. While she was resting, Whitman (who had heard that she had been injured)
came and spoke with her. Whitman initially testified that the plaintiff said she had been hurt
when Brinkman picked her up and tried to sling her over his shoulder; the plaintiff did not say
that Brinkman embraced her. On cross-examination, however, Whitman stated that the plaintiff
might have mentioned a hug; he did not recall. The plaintiff testified that she told Whitman that
Brinkman hugged her and picked her up and they fell over.
¶ 12 The plaintiff then went to tell her sister what happened. Valicenti asked a fellow
volunteer to take the plaintiff to the hospital. The plaintiff testified that she was in pain
throughout the weekend and afterward. She returned to the Oktoberfest twice on Saturday but
could not work. The plaintiff sustained injuries to her shoulder, neck, and back.
¶ 13 Various witnesses testified at trial regarding the role of hugging within the Jaycees. The
plaintiff testified that she knew many Jaycees, who were like a second family to her. It was
common for them to greet one another with hugs, although Jaycees also greeted each other with
handshakes. She would hug Jaycees to greet them when she knew them well. The plaintiff
testified that she allowed Brinkman to hug her at the Oktoberfest because Jaycees “always
embraced.” When asked why, in her experience, Jaycees were “commonly greeting and
hugging and—welcoming each other,” the plaintiff responded that it was done to show that the
Jaycees were a friendly and warm group that others would want to be a part of.
¶ 14 Valicenti testified that the mission of the Jaycees was to promote business skills within its
members, who were between 21 and 40 years old. (The name “Jaycees” was derived from the
description of it as a “Junior Chamber of Commerce.”) This mission involved providing
“opportunities for individuals to gain leadership skills, social responsibility skills, education
skills, so that they can through their fellowship do good within the community.” The Jaycees
-4-
2014 IL App (2d) 130633
sponsored a variety of community service events. The group also had a social purpose,
promoting close relationships among its members by sponsoring purely social events, and this
was historically one of the group’s purposes. In Valicenti’s experience, building bonds
between the members was just as important as the community service and skill improvement
activities.
¶ 15 At any Jaycee function, people would be greeted “by a hello, a handshake, a hug.” This
bonding would create a positive and inviting environment. When asked whether the hugs and
handshakes were just in “the nature of working together over time and getting to know each
other” or whether there was also a “Jaycee purpose” to them, Valicenti responded that it was the
nature of the Jaycee organization and also many other organizations to foster this type of
bonding and inviting atmosphere. On cross-examination, Valicenti agreed that all similar
organizations had a social aspect, because no one would want to join an organization full of
unfriendly people. The friendly atmosphere encouraged by the Jaycees was expressed by
different people in different ways; some people hugged, some did not. Jaycees who served as
recruiters at an event were instructed to be warm and friendly, not to hug people. The Jaycees
had no written policy of encouraging hugging.
¶ 16 Ann Brophy, a past president and vice president of the Crystal Lake Jaycees, testified that
the Jaycees was founded to develop business and leadership skills among its members.
Jaycee-sponsored events included training to improve members’ skills at writing and public
speaking, leadership skills, and networking. The Jaycees also sponsored community service
events and social events for members and prospective members. The Jaycees was an all-male
organization until the mid-1980s, when it began accepting women members. The Jaycees had
no policy encouraging hugging or physical contact. Greetings, handshakes, and hugs were
-5-
2014 IL App (2d) 130633
common among members of the Jaycees. Picking people up was not commonly done by
Jaycees; she had never seen this occur between Jaycees.
¶ 17 Brophy herself had many close friends among the Jaycees, and she would hug them when
she saw them. However, that was because of the friendship, not because of any Jaycee policy.
She would do the same even if she had gotten to know these friends through a different
organization. There were other Jaycees whom she did not hug, because she was not as close
with them. She had never hugged or embraced anyone for the purpose of recruiting him or her
to join the Jaycees.
¶ 18 Brophy had known Brinkman through the Jaycees for several years; he hugged people at
both Jaycee and non-Jaycee events. At the Oktoberfest in September 2007, Brinkman’s job as a
volunteer was to pour or serve cups of beer; embracing people was not part of his role.
¶ 19 B. Procedural History
¶ 20 In December 2007, the plaintiff filed a personal injury lawsuit against Brinkman, the
Jaycees, and the Lakeside Legacy Foundation. The plaintiff’s claim against Brinkman alleged
that he negligently caused her personal injuries in that he “attempted to pick [her] up *** without
the ability to do so safely”; failed to warn her that he was going to make physical contact with
her; and “man-handled [her] in an unreasonable and unauthorized manner.” The claim against
the Jaycees and the Lakeside Legacy Foundation alleged that Brinkman was acting as their agent
at the time of the accident and that they negligently failed to train and supervise him properly.
¶ 21 The plaintiff amended her complaint in November 2009. She added the following
allegations about Brinkman’s conduct toward her on the day of the accident: that he attempted
to pick her up without her consent; that he committed battery by making unauthorized contact
with her; that he was intoxicated to the point that he could not appreciate the risks of his conduct
toward others; and that he failed to control his actions so as to avoid harm to others. She also
-6-
2014 IL App (2d) 130633
added a new count II that asserted a vicarious liability claim against the Jaycees. Finally, she
amended count III (formerly count II) to allege that the Jaycees and the Lakeside Legacy
Foundation negligently hired, trained, and supervised Brinkman, and failed to warn other
volunteers about Brinkman based upon his past conduct. A trial date was set, along with dates
for the close of discovery, the filing of motions in limine, and a pretrial conference.
¶ 22 In November 2010, the attorney for Brinkman filed a motion in limine seeking to bar the
introduction of any evidence or argument regarding any prior bad conduct by Brinkman, on the
grounds that it would be unfairly prejudicial and irrelevant to the claim against him (Brinkman
admitted that he had been drinking beer on the night of the accident). Brinkman also moved to
sever the trial of the claim against him from the trial of the negligent supervision claim against
the two organizations, because if the claims were tried together, evidence of Brinkman’s prior
bad acts would be admissible to show the organizations’ prior notice of Brinkman’s alleged
conduct of drinking and inappropriate touching, even though that evidence would be
inadmissible as to Brinkman’s own liability.
¶ 23 The plaintiff opposed both motions. The Jaycees opposed the motion to sever but
supported the motion in limine. The Lakeside Legacy Foundation also opposed severance.
The trial court granted the motion in limine, and as a result, Brinkman withdrew his motion to
sever.
¶ 24 On March 16, 2011, the plaintiff voluntarily dismissed Brinkman from her suit. As part
of the dismissal, Brinkman agreed to appear and testify at trial for any party that requested him to
do so. In April 2011, the trial court granted the Lakeside Legacy Foundation’s motion for
summary judgment, finding that there was no evidence that Brinkman was acting as an agent of
that organization at the time of the accident. The trial court denied the Jaycees’ motion for
summary judgment on count III, the negligent supervision claim.
-7-
2014 IL App (2d) 130633
¶ 25 In May 2011, the plaintiff filed a motion to vacate the trial court’s November 2010 order
barring evidence regarding Brinkman’s prior misconduct. The plaintiff argued that, in its recent
ruling denying the Jaycees’ motion for summary judgment on count III, the trial court had
referred to evidence that the Jaycees had notice that Brinkman had misbehaved in the past. The
plaintiff sought to vacate the earlier order so that she could present evidence at trial to support
count III. The Jaycees opposed the motion, arguing that the evidence about Brinkman’s prior
misconduct was vague or based on hearsay.
¶ 26 On July 14, 2011, the trial court granted the plaintiff’s motion in part, vacating its
previous ruling but only as to certain evidence. Specifically, the trial court lifted its blanket ban
on evidence regarding Brinkman’s history of physical contact with people, the fact that
Brinkman had been warned not to touch women, and Brinkman’s history of flirting with women
and initiating physical contact. The trial court stated that it would rule on the admissibility of
such evidence “as it came in” at trial.
¶ 27 About two weeks before trial, the Jaycees (hereafter, the defendant) filed a series of
motions in limine. The trial court granted the defendant’s request to bar evidence of any “prior
reprimands or discipline” of Brinkman by the defendant and to bar any mention of Brinkman’s
consumption of alcohol. The defendant also asked to bar evidence that Brinkman “may have
been known as one who was prone to hug other persons.” The trial court reserved its ruling on
this issue.
¶ 28 A few days later, the plaintiff informed the trial court that she was dismissing count III.
Reversing her previous position, the plaintiff then moved to bar all evidence of Brinkman’s
misconduct on other occasions, “including unwanted contact, flirtation, advances, touching ***
whether before or after the accident.” The defendant did not object, and the trial court granted
the plaintiff’s motion in limine.
-8-
2014 IL App (2d) 130633
¶ 29 Prior to trial, the plaintiff filed an agreed “plaintiff’s statement of the case,” stating that
she “maintain[ed] that she was injured while serving at the event *** when *** Brinkman[]
picked her up and caused her to fall to the ground.”
¶ 30 The trial commenced on September 17, 2012, on the sole remaining claim: that the
defendant should be held vicariously liable for Brinkman’s conduct that caused the plaintiff’s
injuries. The first witness for the plaintiff was Valicenti. After the plaintiff’s attorney had
begun to elicit testimony from Valicenti about the Jaycees’ methods of recruiting new members,
the defendant objected and asked for a sidebar. The defendant objected that the plaintiff had
never disclosed that she would be presenting any evidence suggesting that the accident “was
somehow associated with recruitment.” The trial court eventually overruled the objection and
Valicenti’s direct examination continued.
¶ 31 The second sidebar at issue occurred during the cross-examination of Valicenti. 1 The
defendant’s attorney indicated that he wished to elicit testimony regarding the fact that, before
Brinkman started work in the beer tent on the evening of the accident, Valicenti had instructed
him not to touch anyone. The defendant sought the trial court’s permission to inquire, because
the court had stated that it would decide the admissibility of such evidence at trial. The plaintiff
objected on the ground that such testimony would indicate that Brinkman was treated differently
than other volunteers because of his prior bad acts, and testimony about his prior bad acts had
been barred.
1
For some reason, this portion of the transcript was not included in the report of
proceedings. However, it is contained in the common-law record, having been filed in connection
with the posttrial motion.
-9-
2014 IL App (2d) 130633
¶ 32 The trial court said that it thought it had ruled on the issue. The defendant pointed out
that the ruling had occurred when the plaintiff moved to vacate the trial court’s previous order on
the issue, and that Valicenti’s instruction to Brinkman was the type of evidence that the trial
court ruled it might admit, depending on the course of the trial. The defendant then argued that
Valicenti’s instruction that Brinkman should not touch anyone had become highly relevant in
light of the plaintiff’s theory that the Jaycees encouraged hugging among their members. The
trial court stated that, if it allowed the testimony the defendant wanted to elicit, then it would also
have to allow the plaintiff to inquire about why Brinkman was given that instruction, which it
believed would reopen “an issue that I had previously resolved in your favor.” The trial court
therefore barred the inquiry into Valicenti’s instruction to Brinkman. The plaintiff rested her
case after presenting testimony by Valicenti, herself, and her treating physician, Dr. George
Nahra (by reading his evidence deposition into the record).
¶ 33 The defendant moved for a directed verdict, arguing that the plaintiff had not presented
evidence that the accident was caused by conduct within the scope of Brinkman’s employment.
Referring to the three-part test from the Second Restatement of Agency (Restatement)
(Restatement (Second) of Agency § 228 (1958)), adopted in Bagent v. Blessing Care Corp., 224
Ill. 2d 154, 164 (2007), the defendant argued that two of the three requirements were not met:
the plaintiff had not shown (1) that Brinkman’s conduct in picking her up was “of the kind he
[was] employed to perform,” or (2) that Brinkman’s conduct was motivated even partly by a
desire to serve the defendant. As to the last of these requirements, the defendant argued that the
plaintiff had presented no evidence whatsoever about Brinkman’s motivation for his acts. The
trial court denied the motion, stating that the circumstantial evidence that the Jaycees commonly
hugged each other at events (and so Brinkman’s hug was a foreseeable occurrence) could support
an inference that Brinkman’s conduct was in part motivated by a desire to serve the defendant.
- 10 -
2014 IL App (2d) 130633
¶ 34 After the trial court denied its motion for a directed verdict and prior to the start of its
case, the defendant asked the trial court once again to allow it to call Valicenti to testify
regarding her instruction to Brinkman not to touch anyone. The defendant argued that the
plaintiff’s theory that “the Jaycees is a huggin’ organization was never pled and was never
disclosed,” and that the defendant was entitled to present Valicenti’s testimony to counter this
theory. The trial court reviewed the allegations of the amended complaint and concluded that it
adequately put the defendant on notice that some type of physical contact by Brinkman was at
issue. The trial court then declined to allow the defendant to present Valicenti’s testimony:
“That being said, I’m going to again deny your request to get into prior acts
because if I were to do that, I think I’d guarantee a mistrial *** based on my prior ruling.
So I’m—I’m not going to permit you to do what I have denied the plaintiff the
ability to do.”
Trial then resumed with the defendant’s case, which included the testimony of Brophy and the
video deposition of Dr. Antonio Yuk, the defendant’s expert witness regarding the plaintiff’s
injuries.
¶ 35 Prior to resting, the defendant made an offer of proof regarding Valicenti’s likely
testimony about her instruction to Brinkman at the start of his shift in the beer tent on the night
of the accident. The defendant read into the record a portion of Valicenti’s deposition
testimony, in which Valicenti stated that, “before the incident,” she spoke with Brinkman about
not “touching people”—not only women, but anybody. When asked why she told Brinkman
specifically not to touch anybody, Valicenti said, “[Brinkman] is a gregarious and friendly
physical contact kind of person.” The trial court reiterated that it believed that the defendant’s
attorney had “previously asked this court to bar reference to prior bad acts of Mr. Brinkman” and
that it had granted that request:
- 11 -
2014 IL App (2d) 130633
“So from my perspective, *** I couldn’t allow you to introduce evidence that touched on
prior acts while at the same time barring plaintiff from introducing evidence that touched
on prior acts of Mr. Brinkman.
So I—yes, it *** is preventing you from introducing evidence that he was
specifically warned not to touch. But you ultimately, as I see it, *** that is as a direct
result of the request that *** you or your predecessor filed with this court. So from my
perspective, you can’t have it both ways.
So I—I don’t see any other way to resolve the conflict other than to bar her from
testifying as to what you just offered by way of an offer of proof from her deposition
***.”
¶ 36 Following closing arguments, the jury returned a verdict finding the defendant
vicariously liable for the plaintiff’s injuries and awarding her damages of $253,051.69 plus costs.
In addition to the general verdict forms, the jury also received special interrogatory forms asking
it to make specific findings as to whether Brinkman’s conduct (1) “was of the kind he was
employed to perform or reasonably could be said to have been contemplated as part of his
employment”; (2) was “motivated, at least in part, by a purpose to serve the Crystal Lake
Jaycees”; and (3) took place substantially within the time and space limits of his employment
duties. The jury answered “yes” to each of these special interrogatories.
¶ 37 The defendant filed a timely posttrial motion for judgment notwithstanding the verdict
(judgment non obstante veredicto, or judgment n.o.v.) or, in the alternative, for a new trial. The
defendant argued that the verdict was against the manifest weight of the evidence, as the plaintiff
had not proven the elements necessary for vicarious liability. It also argued that the trial court
had erred in permitting the plaintiff to elicit testimony on undisclosed topics (the Jaycees’
alleged use of hugging to promote camaraderie and to recruit new members) and in barring the
- 12 -
2014 IL App (2d) 130633
defendant from eliciting Valicenti’s testimony that, before the accident, she instructed Brinkman
not to touch anyone.
¶ 38 The trial court denied the posttrial motion. As to its rulings barring the defendant from
presenting Valicenti’s testimony that she told Brinkman not to touch anyone, the court
commented that the testimony would have been relevant and important to the defendant’s case
and that it continued to be “troubled” by the issue. However, it continued, it could not have
permitted the testimony without also allowing the plaintiff to inquire about the reason Valicenti
said this to Brinkman (Brinkman’s huggy nature), and it had already barred such inquiry at the
defendant’s request. The defendant appealed.
¶ 39 II. ANALYSIS
¶ 40 On appeal, the defendant raises several challenges to the judgment. It first contends that
the trial court erred in denying the motions for a directed verdict and for judgment n.o.v., because
the plaintiff failed to present a prima facie case of vicarious liability. The defendant also
contends that the trial court should have granted its motion for a new trial because of certain
errors in the trial court’s evidentiary rulings. As we agree with the defendant’s first argument,
we do not reach the second.
¶ 41 A. General Principles
¶ 42 At the close of the plaintiff’s case, the defendant moved for a directed verdict, arguing
that the plaintiff had failed to present a prima facie case that it should be held vicariously liable
for Brinkman’s conduct. The defendant also moved, posttrial, for a judgment n.o.v. on the
same ground. The trial court denied both motions. The defendant contends that both rulings
were error.
¶ 43 A motion for a directed verdict will be granted only where “all of the evidence so
overwhelmingly favors the movant that no contrary verdict based on that evidence could ever
- 13 -
2014 IL App (2d) 130633
stand.” Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 225 (2010). A directed verdict
may be granted to a defendant where the plaintiff has failed to make out a prima facie case; that is,
the plaintiff has failed to present at least some evidence on every necessary element of his or her
cause of action. Hemminger v. LeMay, 2014 IL App (3d) 120392, ¶ 17. “In ruling on a motion
for a directed verdict[,] ‘a court does not weigh the evidence, nor is it concerned with the
credibility of the witnesses; rather, it may only consider the evidence, and any inferences
therefrom, in the light most favorable to the party resisting the motion.’ ” Id. (quoting Maple v.
Gustafson, 151 Ill. 2d 445, 453 (1992)). Although a motion for a directed verdict and a motion
for judgment n.o.v. are made at different times, they raise the same issues and are governed by the
same standards. Gustafson, 151 Ill. 2d at 453 n.1.
¶ 44 The test for vicarious liability found in the Restatement was formally adopted by our
supreme court in Bagent, 224 Ill. 2d at 164. That test asks three questions. First, was the
conduct of the employee of the kind that he or she is ordinarily employed to perform? Second,
did the employee’s conduct occur substantially within the time and place of his or her
employment? Third, was the employee’s conduct motivated, partly or wholly, by a purpose to
serve the employer? Id. All three of these criteria must be met to hold the employer vicariously
liable for the employee’s conduct, and the plaintiff bears the burden of proving that all of the
requirements are met. Id. at 165. 2
2
We note that, in discussing these requirements, we use the terms “employment,”
“employee,” and “employer” broadly to include the scenario present here, in which the
“employee” is an unpaid volunteer performing services for a nonprofit organization. There is no
dispute that a volunteer’s conduct can give rise to vicarious liability. Alms v. Baum, 343 Ill. App.
3d 67, 71 (2003) (fact that allegedly negligent person was a “volunteer worker for a charitable
- 14 -
2014 IL App (2d) 130633
¶ 45 Applying this test in the context of the defendant’s motions for a directed verdict and a
judgment n.o.v., the question becomes whether the evidence presented by the plaintiff, when
viewed most favorably to the plaintiff, was totally lacking on any of the three requirements. See
York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 178 (2006). It is
undisputed that Brinkman’s conduct toward the plaintiff occurred during the time and at the place
of his employment as an Oktoberfest volunteer. Thus, the issue is whether the plaintiff presented
sufficient evidence to make out a prima facie case as to both of the other two requirements: that
Brinkman’s conduct was of the type he was employed to perform and that, in picking up the
plaintiff, he was motivated partly or wholly by a desire to serve the defendant’s interests rather
than by personal desire or whim.
¶ 46 Like the parties’ arguments, our analysis of these issues relies heavily on two recent
supreme court cases involving vicarious liability. The first case is Bagent, which involved a
hospital employee’s disclosure of confidential medical information to the sister of a patient. The
hospital had a policy of protecting confidential medical information (as required by federal law)
and trained its employees that such information should not be disclosed to anyone outside of the
medical staff caring for the patient, not even the patient’s family. Bagent, 224 Ill. 2d at 157-58.
The employee at issue acknowledged that she knew the hospital’s policy. However, when she
saw the patient’s sister (who was also her best friend) at a bar, she mentioned that the patient was
pregnant. The patient’s sister had not been aware of the pregnancy before that, and the employee
testified that she immediately realized that she should not have shared the information with the
sister. Id. at 158.
organization does not necessarily preclude a finding” of an employment relationship between the
worker and the organization).
- 15 -
2014 IL App (2d) 130633
¶ 47 The patient sued the employee and also the hospital, claiming vicarious liability. The trial
court granted summary judgment in favor of the hospital, holding that the evidence showed that,
when the employee disclosed the confidential information, she was acting outside the scope of her
employment. Id. at 160-61. The plaintiff appealed and the appellate court reversed the grant of
summary judgment. Although the appellate court found that the evidence showed that the
disclosure was not the kind of conduct the employee was employed to perform, it believed there
was a question of fact about whether the disclosure was motivated, at least in part, by a purpose to
serve the hospital. Id. at 161.
¶ 48 The hospital appealed to the supreme court. Adopting the three-part test of the
Restatement, the supreme court held that all three requirements must be satisfied in order to create
vicarious liability. Id. at 165. The supreme court then analyzed the evidence as to each
requirement to determine whether summary judgment was appropriate. As to whether the
disclosure was the kind of conduct that the employee was employed to perform, the supreme court
found that it was not, as the employee was a phlebotomist whose job was to draw blood and keep
records. No part of her job included disclosing confidential information to nonmedical personnel.
Id. at 167. The fact that the hospital explicitly forbade such disclosure was relevant evidence that
confirmed the conclusion that the employee’s act was not the type of conduct that the employee
was employed to perform. Id. at 168.
¶ 49 Turning to the third criterion, the employee’s motivation for the conduct, the supreme court
found that the appellate court had improperly focused on the interests of the employer when it
found that the employee’s duty of nondisclosure was “ ‘actuated by the needs and requirements of
the employer.’ ” (Emphasis omitted.) Id. at 169 (quoting Bagent v. Blessing Care Corp., 363 Ill.
App. 3d 916, 924 (2006)). The supreme court held that this approach was incorrect and that, for
this criterion, “it is the state of mind of the employee that is material.” (Emphasis in original.) Id.
- 16 -
2014 IL App (2d) 130633
at 170. The supreme court then found that there was no material dispute that the employee was
not motivated, even partly, by a desire to serve the hospital, because the employee herself had
testified that she simply spoke out of an assumption that the patient had already shared the
information with her sister. The supreme court noted that, in the ordinary case in which there was
no direct evidence of the employee’s intent, that intent could be gleaned “from the manifestations
of the employee and the surrounding circumstances.” Id. The fact that the employer forbade the
employee to engage in the complained-of conduct would be a relevant circumstance to consider in
determining the employee’s intent, as it would make it less likely that the employee’s conduct was
motivated by a desire to serve the employer. Id.
¶ 50 The supreme court in Bagent therefore reversed the appellate court and affirmed the trial
court’s grant of summary judgment for the hospital. Id. at 172. (The supreme court did not
address the second requirement—that the disclosure was made within the time and place of
employment—because it was clear that neither the first nor the third requirement was met.)
¶ 51 The supreme court issued the second leading case on vicarious liability, Adames v.
Sheahan, 233 Ill. 2d 276 (2009), two years after Bagent. Adames involved the accidental killing
of the plaintiffs’ son when his friend, the son of a sheriff’s deputy, found three of the deputy’s guns
in the house and discharged one of them toward the plaintiffs’ son while they were playing. The
plaintiffs sued (among others) the sheriff, arguing that he should be held vicariously liable because
the deputy’s keeping of the guns in his home was related to his employment. As in Bagent, the
trial court entered summary judgment in favor of the employer; the appellate court affirmed in part
and reversed in part; and the case went to the supreme court. Id. at 290-95.
¶ 52 Applying the three-part Restatement test, the supreme court found that the sheriff was not
vicariously liable for the deputy’s conduct. Id. at 303-04. As to the first requirement, the
supreme court found that the deputy’s negligent storage of his guns was not the kind of conduct he
- 17 -
2014 IL App (2d) 130633
was employed to perform. Although at one time the deputy had been required to carry a gun at
work and had owned one of the guns for that purpose, at the time of the accident he was not
required to, and did not, carry a gun for employment purposes. Id. at 304. The fact that the
deputy’s negligence was foreseeable by the sheriff—the sheriff’s office trained deputies in the
proper storage of guns at home and disciplined deputies for improper storage—would have been
relevant if the deputy were required to carry a gun for work, but as he was not, the first requirement
was not met. Id. at 304-05. Similarly, although the deputy was required to be certified annually
in the use of a firearm, he did not need to own a gun in order to be certified, and thus the deputy’s
ownership of the guns was not required by the sheriff. Id. at 304
¶ 53 The second requirement—that the complained-of conduct occurred within the time and
place limits of the employment—also was not met: the negligent storage of the guns occurred at
the deputy’s home, and unlike the defendant police officer in a similar case upon which the
appellate court had relied (Gaffney v. City of Chicago, 302 Ill. App. 3d 41 (1998)), the deputy was
not on call 24 hours per day and was not required to attempt to stop a crime even when off-duty.
Adames, 233 Ill. 2d at 304-05.
¶ 54 Finally, there was no evidence that the deputy was motivated “by a desire to serve his
employer when he negligently stored his gun.” Id. at 305. The deputy had testified that he kept
the guns at home for his own protection and in case he needed them in the future. Id. In this
respect, the case again differed from Gaffney because the police officer in Gaffney testified that he
kept his gun in an unlocked cabinet in his home so that he could respond quickly in the event of an
emergency, including one related to his employment as a police officer. Id. For all of these
reasons, the deputy was not acting within the scope of his employment when he negligently stored
the guns in his home, and the sheriff could not be held vicariously liable for that conduct. Id. at
306.
- 18 -
2014 IL App (2d) 130633
¶ 55 Bagent and Adames contain the most recent guidance from the supreme court on the
subject of vicarious liability. We note that the parties to this appeal also cite several earlier
cases in their arguments. While there is no doubt that many of those earlier cases remain good
law to the extent that they are consonant with Bagent and Adames, to the extent that they apply a
different analysis we must follow the controlling cases of Bagent and Adames. We therefore
look primarily to Bagent and Adames, along with any relevant later cases, in deciding this
appeal.
¶ 56 B. Whether Brinkman’s Conduct Was of the Kind He Was Employed to Perform
¶ 57 The first requirement of the Restatement’s three-part test asks a court to determine, as a
factual matter, “whether the complained-of act of the employee, although not authorized by the
employer, is nevertheless so similar or incidental to employer-authorized conduct as to be within
the scope of employment.” Bagent, 224 Ill. 2d at 166. Thus, even if Brinkman’s acts of hugging
the plaintiff and picking her up were not among his authorized job duties, vicarious liability might
properly be imposed if the acts were sufficiently “similar or incidental to” his assigned duties.
¶ 58 In considering this issue, we note that the supreme court, in both Bagent and Adames,
began by looking at the tasks the employee was required to perform as part of his or her regular job
duties, and then compared the complained-of conduct with those duties. See id. at 167 (listing the
employee’s typical daily tasks as a phlebotomist and concluding that she was “not employed to
divulge confidential patient information while off duty and after hours in a tavern”); Adames, 233
Ill. 2d at 303-04 (noting testimony that correctional officers such as the deputy were not required
to own or carry guns and did not need weapons to perform their duties, and finding that the
deputy’s “negligent storage of his guns was not the kind of conduct [he] was employed to perform,
nor was it incidental to his employment”). Here, there is no dispute that the tasks that Brinkman
was required to perform at the Oktoberfest were limited to pouring or serving cups of beer.
- 19 -
2014 IL App (2d) 130633
Although there was copious testimony that the defendant was a “huggy” organization whose
members commonly greeted one another with hugs, the record is clear that such hugs were not
required as part of the job duties that Jaycee volunteers were assigned to perform that night. (At
oral argument, the plaintiff’s attorney stated that hugging was one of the founding purposes of the
Jaycees, but we regard this statement as an unwarranted exaggeration of the evidence that, in
general, the defendant encouraged the strengthening of social bonds among its members.)
Brophy testified that the defendant had no policy of promoting hugging among its members, and
Brophy, Parks, and Valicenti all testified that they greeted some Jaycees with hugs but did not hug
others. All of them testified that the hugs they exchanged with other Jaycees were based on their
closeness to those Jaycees, not on any organizational requirement. None of these witnesses
testified that hugging other volunteers was part of their assigned job duties at the Oktoberfest.
Finally, there was absolutely no evidence that Brinkman’s conduct of lifting the plaintiff into the
air following their hug was part of his assigned job duties that night.
¶ 59 Thus, it is clear that Brinkman’s conduct at the time of the accident was outside of his
assigned job duties. We therefore turn to the question of whether the plaintiff produced evidence
that Brinkman’s conduct toward her (hugging her and lifting her off the ground) was “so similar or
incidental to” his assigned job duties that vicarious liability should be imposed. See Bagent, 224
Ill. 2d at 166. In considering this question, we bear in mind that “an act is outside of the scope of
employment if it has no connection with the conduct the employee is required to perform.” Id. at
168.
¶ 60 The plaintiff argues that conduct “similar or incidental to” employer-authorized conduct
includes any conduct that “reasonably could be said to have been contemplated as part of” the
employment, citing the relevant jury instruction (Illinois Pattern Jury Instructions, Civil, No.
50.06.01 (2011)). While we acknowledge that the jury instruction indeed contains that phrase, we
- 20 -
2014 IL App (2d) 130633
also note that the sole citation for that instruction is Bagent (see id., comment), and that Bagent
itself does not contain that phrase or any variant of it. Accordingly, we decline to adopt this
phrase as the appropriate standard.
¶ 61 The plaintiff also argues that we should look to the factors enumerated in section 229 of the
Restatement (Restatement (Second) of Agency § 229(2)(a) (1958)), which include such factors as
“whether or not the act is one commonly done” by employees like the one who caused the injury
and whether the employer had reason to expect that the particular act would be done. These
factors suggest a broader standard under which an employer may be held vicariously liable if it
reasonably should have foreseen that its employee might engage in the complained-of conduct.
¶ 62 It is unclear whether the supreme court has in fact approved this broader standard. In
Bagent, the court suggested that the factors in section 229 could be considered in determining
whether the complained-of conduct was within the scope of employment. Bagent, 224 Ill. 2d at
166. However, the court did not itself apply those factors in Bagent to determine whether the
complained-of conduct was “of the kind” that the employee was employed to perform.
Moreover, the supreme court appeared to reject this broader foreseeability approach in Adames.
In that case, there was evidence that the sheriff could have foreseen (and in fact did foresee) that
deputies might store guns improperly in their homes, because the sheriff provided training on the
proper storage of guns and had adopted a policy of disciplining employees who stored guns
improperly. Adames, 233 Ill. 2d at 304. However, the court found that the foreseeability of the
deputy’s negligent storage of his guns was not relevant, because the deputy was not required to
own a gun at all for his employment. Id. Applying a similar analysis here, Brinkman was not
required to hug anyone at all as part of his employment, and so the fact that the defendant might
have “ha[d] reason to expect that such an act [would] be done” (Restatement (Second) of Agency
- 21 -
2014 IL App (2d) 130633
§ 229(2)(f) (1958)) was not relevant in determining whether his conduct was “of the kind” he was
employed to perform.
¶ 63 However, even if this broader standard of foreseeability were applied here, the plaintiff has
not presented evidence that Brinkman’s conduct met this standard. While his act of hugging the
plaintiff might have been foreseeable by the defendant, given that Jaycees customarily greeted
each other in a friendly manner, there was no evidence that the defendant had “reason to expect”
Brinkman’s act of lifting the plaintiff off the ground. As identified by the plaintiff in her
complaint and her initial descriptions of the accident, Brinkman’s lifting of her, not the initial hug,
was the act that caused her injury. There was no evidence that Brinkman’s act of hoisting the
plaintiff into the air was a foreseeable outgrowth of his duties, or even that it was a foreseeable
extension of the hug. The plaintiff herself testified that this was an unusual act by a Jaycee;
indeed, she had never experienced this or seen other Jaycees greet each other this way.
Accordingly, we reject the argument that the plaintiff presented evidence that the defendant had
reason to expect Brinkman’s conduct. The jury’s finding that the conduct that caused the injury
was “of the kind” he was employed to perform was against the manifest weight of the evidence.
¶ 64 C. Whether Brinkman’s Conduct Was Motivated by a Desire to Serve the Defendant
¶ 65 Regardless of whether the plaintiff made out a prima facie case as to the first requirement
(that Brinkman’s conduct was “of the kind” he was employed to perform), the plaintiff also was
required to present evidence to meet the third requirement for vicarious liability—that
Brinkman’s conduct was motivated, either partly or wholly, by a desire to serve the defendant.
Bagent, 224 Ill. 2d at 165 (all three requirements of the three-part test must be met in order to
impose vicarious liability). A plaintiff may present either direct or circumstantial evidence of
this motivation. Id. at 170. However, the plaintiff may not rely on evidence about the
employer’s needs or interests, but must offer evidence of the employee’s own state of mind. Id.
- 22 -
2014 IL App (2d) 130633
¶ 66 Here, the sole evidence of Brinkman’s motivation offered by the plaintiff was the
evidence that Jaycees sometimes hugged one another in greeting. The plaintiff and Valicenti
stated that they believed that such hugs advanced the purposes of the organization by showing
that it was a friendly and welcoming group. However, neither of them testified that she herself,
when she hugged other Jaycees, was motivated by a desire to advance the interests of the
Jaycees. To the contrary, they both testified that they hugged other Jaycees whom they knew
well, and did not hug all Jaycees. Brophy testified similarly. The implication of this
testimony is that the witnesses’ own motivation in hugging other Jaycees was personal: they
wanted to express their closeness to particular people. Where an employee’s conduct is
actuated by a personal purpose rather than a purpose to serve the employer, it is not within the
scope of employment. Id. at 169-70; cf. Deloney v. Board of Education of Thornton Township,
281 Ill. App. 3d 775, 783-86 (1996) (collecting cases expressing the general rule that acts of
sexual misconduct are viewed as having been undertaken solely for the employee’s personal
reasons). Moreover, even if there was testimony that some Jaycees intended to advance the
defendant’s interests when they hugged other Jaycees, that testimony would do nothing to
establish that Brinkman was himself motivated by a desire to serve the defendant when he
hugged and picked up the plaintiff.
¶ 67 The plaintiff argues that she was not required to call Brinkman as a witness in order to
establish that his acts were motivated, at least in part, by a desire to serve the defendant. This is
certainly true: intent or motivation can be proved by circumstantial evidence as well as direct
evidence. People v. Lattimore, 2011 IL App (1st) 093238, ¶ 44. Here, however, the plaintiff
presented no evidence, either circumstantial or direct, about Brinkman’s actual motivation for
hugging and picking up the plaintiff. Her argument that, given the Jaycees’ interest in
maintaining a welcoming and friendly environment, Brinkman could have been motivated by a
- 23 -
2014 IL App (2d) 130633
desire to serve the defendant is simply speculation. Speculation cannot take the place of
evidence. Billman v. Frenzel Construction Co., 262 Ill. App. 3d 681, 687 (1993) (summary
judgment proper where speculation would be necessary to establish element of plaintiff’s claim).
¶ 68 In arguing that she presented a prima facie case on this requirement, the plaintiff cites to
numerous cases decided before Bagent and Adames were issued. However, in addition to being
distinguishable to the extent that they applied a different analysis instead of the three-part
Restatement test, none of these cases discusses the third requirement at issue here: the
employee’s own motivation for his or her conduct. Accordingly, the plaintiff’s reliance on
them is misplaced.
¶ 69 Our conclusion that Brinkman’s conduct was not within the scope of his employment is
bolstered by evidence that we believe was improperly excluded by the trial court—Valicenti’s
testimony that, a few hours before the accident, she told Brinkman not to touch anyone at the
Oktoberfest. The trial court barred the defendant from eliciting this testimony because it
believed that allowing the testimony to come in would prejudice the plaintiff, given the court’s
prior rulings barring evidence of Brinkman’s past misconduct. We think that the trial court
erred in reaching this conclusion.
¶ 70 “The basic rule is that all relevant evidence is admissible unless otherwise provided by
law.” People v. Cruz, 162 Ill. 2d 314, 348 (1994). Relevant evidence is any evidence that
tends to make the existence of any fact material to the determination of the case either more
probable or less probable. People v. Harvey, 211 Ill. 2d 368, 392 (2004). In Bagent, the
supreme court made it clear that the type of evidence at issue here is relevant in determining
whether vicarious liability should be imposed on an employer. Bagent, 224 Ill. 2d at 168, 170
(that an employer forbade certain conduct is relevant to two requirements of the three-part test
for vicarious liability: whether the employee’s wrongful act was the kind of act that he or she
- 24 -
2014 IL App (2d) 130633
was employed to perform, and whether the employee’s wrongful act was motivated by a desire to
serve the employer). Thus, Valicenti’s testimony that she told Brinkman not to touch anyone
on the night of the accident was unquestionably relevant to the vicarious liability analysis. The
exclusion of this evidence seriously damaged the defendant’s ability to defend against the
vicarious liability claim.
¶ 71 Moreover, the exclusion of this highly relevant evidence was not necessary to avoid
unfair prejudice to the plaintiff. First, according to Valicenti’s deposition testimony, her
instruction to Brinkman contained no express reference to any previous bad behavior by
Brinkman: Valicenti simply told Brinkman not to touch anyone. The trial court could easily
have permitted the introduction of this testimony without allowing inquiry into the reason for the
instruction. It was not as if either party wanted or needed to introduce evidence of Brinkman’s
past misconduct; the plaintiff herself had moved successfully to bar such evidence, and indeed
such evidence was irrelevant to the elements of vicarious liability. Second, the plaintiff does
not identify any way in which the admission of the testimony at issue would have unfairly
prejudiced her. Cf. Harvey, 211 Ill. 2d at 392 (a trial court may exclude evidence that is
remote, uncertain, or unfairly prejudicial). Although the testimony would have strengthened
the defendant’s case and damaged her own, this is a natural effect of relevant evidence, and is
not in itself a reason to bar that evidence. Finally, the timing of the evidence would not have
prejudiced the plaintiff. The defendant first asked to elicit this evidence during its
cross-examination of Valicenti. As Valicenti was the plaintiff’s first witness, the plaintiff
would have had ample opportunity to make her own case thereafter.
¶ 72 While we give proper deference to the trial court’s inherent power to control the
presentation of evidence at trial, the exclusion of relevant evidence must rest on some legally
sufficient ground. Cruz, 162 Ill. 2d at 348; see also People ex rel. Noren v. Dempsey, 10 Ill. 2d
- 25 -
2014 IL App (2d) 130633
288, 293 (1957) (“The basic principle that animates our law of evidence is that what is relevant is
admissible. Exceptions to that principle must justify themselves.”). Here, no such legally
sufficient basis for excluding the evidence has been identified. Thus, the trial court erred in
excluding Valicenti’s testimony that she told Brinkman not to touch anyone. Had the evidence
come in, it would have provided additional support for our conclusion that Brinkman’s conduct
was not within the scope of his employment by the defendant.
¶ 73 In summary, the plaintiff failed to put forward a prima facie case for imposing vicarious
liability on the defendant. Bagent, 224 Ill. 2d at 165 (all three requirements of the three-part
test must be met in order to impose vicarious liability). A directed verdict or a judgment n.o.v.
may be granted to a defendant where the plaintiff has failed to make out a prima facie case; that
is, the plaintiff has failed to present at least some evidence on every necessary element of his or
her cause of action. Hemminger, 2014 IL App (3d) 120392, ¶ 17. As the plaintiff did not
present evidence of either the first or the third requirement of the three-part test for vicarious
liability, we find that the trial court erred in denying the defendant’s motions for a directed
verdict and judgment n.o.v.
¶ 74 III. CONCLUSION
¶ 75 The judgment of the circuit court of McHenry County is reversed, and judgment is entered
in favor of the defendant, the Crystal Lake Jaycees.
¶ 76 Reversed.
- 26 -