Bruntjen v. Bethalto Pizza, LLC

NOTICE
2014 IL App (5th) 120245
Decision filed 09/15/14. The
text of this decision may be NO. 5-12-0245
changed or corrected prior to
the filing of a Petition for
Rehearing or the disposition of IN THE
the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
________________________________________________________________________

MATTHEW BRUNTJEN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. )
)
BETHALTO PIZZA, LLC, d/b/a Imo's Pizza; and )
IMO'S FRANCHISING, INC., )
) No. 10-L-577
Defendants-Appellants )
)
(Kenneth Lyerla; Lisa Lyerla; Jeremiah Greene; )
Jason Yelton; Metro East Distributing, Inc.; ) Honorable
Leonard Cummings, Jr.; and Tresorella's, Inc., ) A. A. Matoesian,
Defendants). ) Judge, presiding.
________________________________________________________________________

JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Justice Stewart concurred in the judgment and opinion.
Justice Spomer dissented, with opinion.

OPINION

¶1 The defendants, Bethalto Pizza, LLC, doing business as Imo's Pizza (Bethalto),

and Imo's Franchising, Inc. (Imo's), appeal the December 13, 2011, judgment entered by

the circuit court of Madison County after a jury verdict in favor of the plaintiff, Matthew

Bruntjen, in the amount of $2,284,500.68, for damages he sustained in an automobile

1
accident. The defendants' posttrial motions were denied on May 18, 2012. The

defendants raise a number of issues on appeal. We affirm.

¶2 I. FACTS

¶3 On March 31, 2011, Matthew Bruntjen filed an amended complaint against, inter

alios, Kenneth Lyerla, Bethalto, and Imo's. According to the amended complaint, on

August 17, 2009, Kenneth Lyerla was delivering a pizza when he crossed the center line

and hit the van in which the plaintiff was a passenger, causing a severe brain injury. The

amended complaint alleged that Lyerla was an employee of Bethalto and that Imo's was

the franchising corporation that established policies and procedures for all Imo's

franchisees, including Bethalto. The amended complaint included a count alleging

vicarious liability against Imo's as well as a count alleging direct negligence against

Imo's. In the direct negligence count, the plaintiff alleged that Imo's created an

environment with its franchisees that put timely delivery of food products ahead of public

safety, and allowed Lyerla to operate a motor vehicle to deliver pizzas on its behalf

without first ascertaining that he was capable of safely operating a motor vehicle.

¶4 Lyerla conceded that his negligence caused the automobile accident at issue, and

Bethalto admitted that it was responsible for the acts of Lyerla as his employer.

However, Imo's, as a franchisor, contested its duty to the plaintiff via a motion to dismiss,

a motion for summary judgment, and a motion for a directed verdict, all of which were

denied. Subsequently, defendants filed motions for a mistrial, judgment notwithstanding

the verdict, remittitur or a new trial on the issue of damages, and a new trial on all issues.

The court's denial of these motions forms the basis of many of the issues raised in this
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appeal. As defendants' claims of error are numerous, we will further develop the facts

necessary for disposition as we address each issue on appeal.

¶5 Imo's and Bethalto shared the same counsel at trial, but are represented by separate

counsel on appeal. Imo's has expressly adopted and incorporated all arguments and

points of error raised by Bethalto in this appeal, in addition to the arguments and points

raised in its own brief.

¶6 II. ANALYSIS

¶7 A. Peremptory Challenges

¶8 The plaintiff named several additional defendants in the amended complaint: (1)

Lisa Lyerla, the owner of the vehicle Kenneth Lyerla was driving at the time of the

accident; (2) Jeremiah Greene, the driver of the van in which the plaintiff was a

passenger; (3) Jason Yelton, the owner of the van; and (4) Metro East Distributing, Inc.

(Metro East), the plaintiff's employer. When jury selection commenced, four defense

attorneys participated. Lisa and Kenneth Lyerla were represented by one attorney;

Jeremiah Greene and Jason Yelton were represented by a second attorney; Metro East

was represented by a third attorney; and Bethalto and Imo's were represented by a fourth

attorney. The trial court awarded eight peremptory challenges to the plaintiff and

distributed eight peremptory challenges among the defendants by awarding two

challenges to each of the four attorneys representing the defendants.

¶9 Before jury selection began, counsel for defendant Metro East stated as follows:

"I do want to state for the record–this is John Wendler. I represent Metro East

Distributing. My understanding is that Metro East has two strikes, and I'm going
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 to use them to the best advantage to get my client out of this case, which may–it

could or might end up me striking people that I normally wouldn't strike as

defendant. And even if I, to get a dismissal for my case, I need to work in concord

with the plaintiff if I had to. So, I want to put it out in the open so anyone can

make an objection."

¶ 10 Counsel for Bethalto and Imo's then stated:

"I'm going to object if any of the parties who are named as a defendant are

dismissed immediately after jury selection. I think that that would demonstrate

gamesmanship and it would influence the jury selection process. So, I just want to

make that clear. I think that by now the plaintiff should know who they're going

to leave in the case or take out of the case."

¶ 11 During the empanelment of the first four members of the jury, counsel for Bethalto

and Imo's objected and moved for a mistrial, stating that plaintiff's counsel had just

instructed Metro East on how to exercise its challenge. Counsel then went on to state that

he believed that there had been some kind of deal struck where some of the defendants

were going to use their challenges for the benefit of plaintiff in order to gain dismissals.

The court denied counsel's motion for mistrial. Shortly thereafter, the court empanelled

the first four jurors. This panel was accepted by counsel for Bethalto and Imo's. At that

point, counsel still had an additional peremptory challenge. Jury selection concluded

without any further objections.

¶ 12 The next morning, Metro East, Yelton, and Greene filed a joint motion for a good-

faith finding of settlement, informing the court that the plaintiff had agreed to their
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dismissal in exchange for $20,000. Counsel for Bethalto and Imo's then stated that he

was renewing his motion for mistrial. He also stated that he was objecting to the

settlement as not being made in good faith because of how the challenges were exercised.

Counsel for plaintiff stated that the settlement was in good faith and that the settlement

amount was all the insurance coverage available. Plaintiff's counsel went on to state that

none of the remaining defendants (Bethalto, Imo's, or Kenneth Lyerla) had identified any

juror who was objectionable or how their rights were violated. Counsel for Bethalto and

Imo's was then asked by the judge, "Is it your position that they should be kept in this

trial throughout the whole thing, even though they have settled?" Counsel answered, "I

am objecting to the good[-]faith finding."

¶ 13 Counsel for Metro East responded:

"Everything done here was for the purpose of defending our client. They can no

more claim that we can't take any and every avenue to defend our clients, than we

can claim they did. Everything has been in the open. They had every opportunity

to object to any jurors that were on the panel; they didn't do it."

The judge then asked Bethalto and Imo's counsel, "So what do you suggest?" Counsel

responded, "I suggest keeping them in." The judge approved the settlement. Lisa Lyerla

was subsequently dismissed from the suit. The case proceeded to trial against Kenneth

Lyerla, Bethalto, and Imo's. Kenneth Lyerla was dismissed sometime prior to verdict.

¶ 14 Bethalto and Imo's contend that a new trial is warranted because they were

deprived of their statutory allocation of peremptory challenges when two of the

codefendant groups used their peremptory challenges for the benefit of plaintiff. Plaintiff
5
responds that defendants were not deprived of their statutory allocations, because each

side agreed to the allocation of peremptory challenges among themselves in compliance

with the plain language of the statute.

¶ 15 Defendants based their motion for new trial, in part, on the trial court's denial of

their motion for a mistrial. " 'Generally, a mistrial should be granted where an error of

such gravity has occurred that it has infected the fundamental fairness of the trial, such

that continuation of the proceeding would defeat the ends of justice.' " Lovell v. Sarah

Bush Lincoln Health Center, 397 Ill. App. 3d 890, 899 (2010) (quoting People v. Bishop,

218 Ill. 2d 232, 251 (2006)). A trial court's denial of a motion for a mistrial will not be

disturbed unless there has been a clear abuse of discretion. Id.

¶ 16 Section 2-1106 of the Illinois Code of Civil Procedure provides, in relevant part:

"Each side shall be entitled to 5 peremptory challenges. If there is more than one

party on any side, the court may allow each side additional peremptory challenges,

not to exceed 3, on account of each additional party on the side having the greatest

number of parties. Each side shall be allowed an equal number of peremptory

challenges. If the parties on a side are unable to agree upon the allocation of

peremptory challenges among themselves, the allocation shall be determined by

the court." 735 ILCS 5/2-1106(a) (West 2010).

While defendants couch their argument in terms of not receiving their statutory

allocation, we agree with plaintiff that the plain language of the statute was adhered to

because each side was given the same number of challenges and the defendants agreed to

the allocation among themselves.
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¶ 17 Defendants essentially concede this point when they state in their brief that "the

trial court correctly allocated eight peremptory challenges to each side, eight challenges

to plaintiff and eight challenges to split among the four defendants." What counsel meant

was that the defendants' maximum allocation of eight peremptory challenges was divided

evenly among the four groups of defendants, represented by four different attorneys. As

both Imo's and Bethalto were represented by one attorney, they received two challenges.

¶ 18 We note that many of the cases cited by defendants are ones where the court

assigned an unequal number of challenges to each side. To the extent that they rely on

that issue, we find those cases of little value in our analysis. Most notably, defendants

cite to Schultz v. Gilbert, where the trial court incorrectly interpreted the statute to allow

extra peremptory challenges to additional parties on a plaintiff's side without affording

the same ratio to defendants. Schultz v. Gilbert, 300 Ill. App. 417, 420-21 (1939). We

also note that defendants cite to a number of cases from foreign jurisdictions, which we

decline to discuss as we believe Illinois case law adequately addresses and controls the

issues before us.

¶ 19 We believe defendants' real point of contention is how the allocated challenges

were utilized by the settling codefendants–that they were utilized for the benefit of

plaintiff rather than the benefit of defendants, Bethalto and Imo's. In defendants' words,

"In essence, the co-defendants were actually in plaintiff's camp, which destroyed the

adversary nature of the proceeding and promoted fundamental unfairness." It is this

argument that we will address.

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¶ 20 At trial, Bethalto and Imo's counsel moved for a mistrial and, in the alternative, for

a denial of a good-faith settlement of the codefendants. However, at no time did counsel

request that the court reallocate the peremptory challenges, as provided for by statute in

the event parties on a side are unable to agree on the allocation. Even after the court

asked defendants' counsel what he suggested doing, counsel opted to keep the panel

intact, instead repeatedly moving for a mistrial and urging the court not to approve the

settlement. Bethalto and Imo's cannot now claim that they were denied equal allocation

of peremptory challenges based on an alleged de facto realignment of the sides when they

did not request that relief below. A court properly denies the request for a mistrial when

less drastic remedies are not pursued. People v. Hood, 213 Ill. 2d 244, 262-63 (2004).

Also of note, Bethalto and Imo's do not claim error on appeal as to the good-faith

settlement finding–the other form of relief sought in the trial court.

¶ 21 In O'Donnell v. Holy Family Hospital, a similar claim was made. O'Donnell v.

Holy Family Hospital, 289 Ill. App. 3d 634, 649 (1997). There, the trial court refused to

dismiss for cause two persons who indicated that they could not award millions of dollars

in damages. Plaintiffs claimed on appeal that they were forced to exhaust all their

peremptory challenges and forced to accept the objectionable jurors. Id. In rejecting this

claim, the court stated:

"We need not decide whether refusal to dismiss the two jurors for cause was error.

Plaintiffs' counsel never requested additional preemptories or informed the court

that plaintiffs were being forced to accept objectionable jurors. Nor do plaintiffs

attempt to explain why the jurors they were forced to accept were objectionable.
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 Plaintiffs' simple assertion of prejudice is insufficient grounds for finding

reversible error." Id.

¶ 22 Similarly, in Lange v. Freund, the court refused to review a claim that plaintiffs

were denied a fair and impartial jury where the trial court had announced before jury

selection began that if a four-member panel had not been completed and sworn by the

end of the day, all jurors in that panel would be dismissed and they would begin anew the

next day. Lange v. Freund, 367 Ill. App. 3d 641, 648 (2006). Neither party objected to

this rule. Id. The four-member panel was not sworn by the end of the day, and the panel

members were dismissed. Id. Neither party objected at that time or when jury selection

resumed the next day and the remainder of the jury was empanelled. Id. The appellate

court stated, "Since the Langes did not object to the court's announcement of its rule, to

its application of the rule at the time the three jurors from the incomplete second panel

were dismissed, or to its assessment of the parties' remaining number of peremptory

challenges, they have waived the issue." Id. at 648-49.

¶ 23 Here, Bethalto and Imo's not only failed to ask for the relief afforded by statute–a

reallocation of challenges–they also failed to object to any jurors they now claim were

objectionable. Relief not requested in the trial court may not be considered on appeal.

Powell v. Dean Foods Co., 2012 IL 111714, ¶ 41. Because defendants' counsel did not

identify any objectionable jurors at trial, we do not know whether they had any

challenges left when the objectionable jurors were seated. However, a review of the

record does reveal that Bethalto and Imo's had one challenge left at the point in time

when the first four members of the jury were empanelled and the defendants moved for a
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mistrial. The failure to use a peremptory challenge on an objectionable juror waives the

issue on appeal. People v. Bowens, 407 Ill. App. 3d 1094, 1100 (2011). We find that the

claimed error, if in fact it was an error, has been forfeited.

¶ 24 Forfeiture notwithstanding, the erroneous denial of a peremptory challenge does

not require reversal unless the defendant can show that a biased or otherwise unqualified

juror rendered a verdict against him. Jimenez v. City of Chicago, 732 F.3d 710, 714 (7th

Cir. 2013). "Prejudice in the jury selection process is not shown by the mere assertion

that a party would have preferred different members of the jury; Illinois courts have

instead required a showing that a party was forced to accept a juror that was

objectionable and was unable to excuse that juror due to the lack of peremptory

challenges." Lange, 367 Ill. App. 3d at 649 (citing O'Donnell, 289 Ill. App. 3d at 649;

Snyder v. Poplett, 98 Ill. App. 3d 359, 365 (1981)). Even a Batson challenge (Batson v.

Kentucky, 476 U.S. 79 (1986)) is subject to a harmless error analysis without a showing

that a biased juror was seated. Jimenez, 732 F.3d at 714. Bethalto and Imo's argue,

however, that "[t]he issue is not that objectionable jurors were empanelled," but that

through plaintiff's manipulation with the jury selection process potentially "pro-defense"

jurors were removed resulting in a "pro-plaintiff" jury. This position is untenable and not

supported by case law. "Generally, the nature of a peremptory challenge suggests it may

be used for any reason." Tucker v. Illinois Power Co., 217 Ill. App. 3d 748, 751 (1991).

"The right of peremptory challenge is a right to exclude jurors, not to select them. It

enables a party to say who shall not try his case, but it does not enable him to select the

particular jurors by whom he wishes his case tried." Schultz, 300 Ill. App. at 422.
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Bethalto and Imo's were given the right to exclude the jurors that they did not want to try

their case through their allotment of challenges. Defendants' argument assumes that they

also have the right to control how other parties on the same side choose to use their

challenges. Defendants have not cited a case that supports this proposition. Defendants'

presumption of a unified defense may be an expectation, but does not equate to an

entitlement. Simpson v. Matthews, 339 Ill. App. 3d 322, 332 (2003).

¶ 25 Furthermore, the record reveals that Bethalto and Imo's had filed cross-claims

against the settling defendants, which contributed to an adversarial environment. There is

no requirement that once the parties on a side "agree upon the allocation of peremptory

challenges among themselves" (735 ILCS 5/2-1106(a) (West 2010)), the parties must

also agree on how the allocated challenges shall be used. "[T]he right to a fair trial does

not mean an ideal trial or a trial under circumstances most advantageous to either party."

Simpson, 339 Ill. App. 3d at 332.

¶ 26 Moreover, unless shown otherwise, we must presume that the jurors were

impartial. Apart from defendants' nebulous claim that a "pro-plaintiff" jury was

empanelled, they have made no showing that anything but a fair and impartial jury

decided the case to conclusion. To find otherwise would open up any verdict adverse to

the party in question.

¶ 27 We are equally unpersuaded by defendants' analogy to a "Mary Carter agreement."

As counsel concedes, the settlements at issue here were not "technically" Mary Carter

agreements, and thus we need not analyze them as such. See Simpson, 339 Ill. App. 3d at

328-29. We believe, however, that defendants' claim that the settlements were akin to a
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Mary Carter agreement also lacks merit. The settling defendants were forthright about

not aligning with Bethalto and Imo's, and they used their challenges as they saw fit.

¶ 28 Finally, we find no basis for defendants' accusation that a fraud was committed on

the trial court or that plaintiff's counsel violated the rules of professional conduct.

¶ 29 We believe that the transparency of the jury selection proceedings adequately

protected Bethalto's and Imo's right to a fair trial, while at the same time promoting the

court's policy to encourage settlements. We find that the trial court did not abuse its

discretion in denying defendants' motion for a mistrial.

¶ 30 B. Imo's Liability

¶ 31 Imo's contends that the trial court erred in denying its section 2-619 (735 ILCS

5/2-619 (West 2010)) motion to dismiss plaintiff's amended complaint, its motion for

summary judgment, and its motions for directed verdict because plaintiff failed to plead

and prove, as a matter of law, that Imo's owed him a duty of care or that the breach of any

duty was a proximate cause of his alleged injury. Imo's also contends that plaintiff failed

to prove that it was liable under a theory of respondeat superior. Imo's therefore

contends that it was entitled to a judgment notwithstanding the verdict. In the alternative,

Imo's asks for a new trial.

¶ 32 We apply a de novo standard of review to a trial court's denial of a motion for

summary judgment, motion for directed verdict, and motion for judgment n.o.v. Lawlor

v. North American Corp. of Illinois, 2012 IL 112530, ¶ 37; McClure v. Owens Corning

Fiberglas Corp., 188 Ill. 2d 102, 132 (1999). "[V]erdicts ought to be directed and

judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in
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its aspect most favorable to the opponent, so overwhelmingly favors movant that no

contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern

R.R. Co., 37 Ill. 2d 494, 510 (1967). We apply an abuse of discretion standard to a

motion for new trial. Maple v. Gustafson, 151 Ill. 2d 445, 455 (1992). A trial court has

abused its discretion when the verdict is against the manifest weight of the evidence. Id.

A verdict is against the manifest weight of the evidence where the opposite result is

clearly evident or the jury's findings are unreasonable, arbitrary, and not based upon the

evidence. Id. at 454.

¶ 33 As previously discussed, plaintiff's complaint contained counts alleging that Imo's

was liable due to its own negligence as well as on a theory of vicarious liability. The jury

found Imo's liable on both counts.

¶ 34 1. Direct Negligence

¶ 35 As a threshold matter, notwithstanding Imo's contention that plaintiff failed to

plead and prove that Imo's owed him a duty of care, we do not address the sufficiency of

the complaint, as Imo's attacks on plaintiff's pleadings were by a section 2-619 petition,

thereby admitting the legal sufficiency of the complaint. Reynolds v. Jimmy John's

Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 31.

¶ 36 Imo's argues that plaintiff failed to plead and prove that Imo's owed a duty to

plaintiff. Imo's general contention is that, as a matter of law, it owed no duty of care to

plaintiff because there was no relationship between plaintiff and Imo's giving rise to a

direct duty to protect plaintiff from the conduct of a third person. Plaintiff contends that

every person owes a duty of ordinary care to guard against injuries that are the
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foreseeable risk of a defendant's conduct. He argues that he pled and proved that Imo's

created a foreseeable risk of injury. Plaintiff also argues that he demonstrated that Imo's

assumed the risk of protecting him against harm caused by Lyerla. Imo's contends that

plaintiff failed to establish a duty under either theory. Imo's further argues that if there

was a duty, plaintiff failed to show that the breach of a duty was the proximate cause of

his alleged injury.

¶ 37 a. Duty of Care

¶ 38 It is well settled Illinois law that " 'every person owes a duty of ordinary care to all

others to guard against injuries which naturally flow as a reasonably probable and

foreseeable consequence of an act, and such a duty does not depend upon contract, privity

of interest or the proximity of relationship, but extends to remote and unknown

persons.' " Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 19 (quoting

Widlowski v. Durkee Foods, 138 Ill. 2d 369, 373 (1990)). "Thus, where a defendant's

course of action creates a foreseeable risk of injury, the defendant has a duty to protect

others from such injury." Doe-3 v. McLean County Unit District No. 5 Board of

Directors, 2012 IL 112479, ¶ 21; Simpkins, 2012 IL 110662, ¶ 19.

¶ 39 The criterion in a duty analysis is whether a plaintiff and a defendant stood in such

a relationship to each other that the law imposed an obligation upon the defendant to act

for the protection of the plaintiff. Simpkins, 2012 IL 110662, ¶ 18; Marshall v. Burger

King Corp., 222 Ill. 2d 422, 436 (2006). However, there is no requirement that the

relationship between the parties be a direct one. Doe-3, 2012 IL 112479, ¶ 22. The

relationship test is answered through the analysis of four factors: (1) the reasonable
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foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the

burden of guarding against the injury, and (4) the consequences of placing that burden on

the defendant. Id. The analysis of these factors depends on policies inherent in the

factors, and the weight given to each factor depends on the circumstances of the

particular case. Id.

¶ 40 The duty analysis begins with the question of whether the defendant by act or

omission created or contributed to a risk of harm to the plaintiff. Simpkins, 2012 IL

110662, ¶ 21. If the answer to that question is yes, then we proceed to analyze the four

relationship factors stated above. If the answer is no, then we address whether there were

any special relationships that establish duty between the defendant and the plaintiff, i.e.,

common carrier/passenger, innkeeper/guest, custodian/ward, and possessor of land who

holds it open to the public/member of the public who enters in response to the possessor's

invitation. Id. ¶ 20 (citing Marshall, 222 Ill. 2d at 438).

¶ 41 Where the act or omission of the defendant did not contribute to a risk of harm to

the plaintiff, the absence of a special relationship negates any duty to take affirmative

action to protect the plaintiff. Generally, there is no duty to control the conduct of a third

person to prevent him from causing physical harm to another. Hollywood Trucking, Inc.

v. Watters, 385 Ill. App. 3d 237, 242 (2008); see also Restatement (Second) of Torts

§ 314 (1965). However, this rule does not apply where an act or omission of the

defendant does contribute to the risk of harm. "Restatement Third of Torts (Liability for

Physical and Emotional Harm) § 37 (2010) now covers this ground and clarifies the

Second Restatement's rule by making it clear that the defendant does not escape liability
15
if he has himself created a risk of physical harm." D. Dobbs, The Law of Torts, ch. 35,

§ 405, p. 652 n.3 (2d ed. 2011). "[T]he no-duty-to-control rule has no logical application

when the defendant is affirmatively negligent in creating a risk of harm to the plaintiff

through the instrumentality of another or otherwise." Dobbs, ch. 36, § 414, p. 700.

¶ 42 Turning to the instant case, we ask the threshold question whether Imo's conduct

by act or omission created or contributed to a risk of harm to plaintiff. Plaintiff alleges

that Imo's actively contributed to a risk of harm to the plaintiff by (a) establishing an

unusually large delivery area for the Bethalto store; (b) requiring "timely" delivery; (c)

requiring Bethalto to have Lyerla sign a contract stating he could be terminated for failing

to deliver pizzas expeditiously; and (d) creating a financial incentive to young drivers to

drive at unsafe speeds. He alleges that this conduct created or contributed to a condition

of unsafe driving that put plaintiff traveling on the same roads as Lyerla at risk of harm.

Because plaintiff alleges that Imo's conduct contributed to the risk of harm, we look to

the four relationship factors to determine whether this conduct gave rise to a legally

cognizant duty.

¶ 43 The first factor we consider is the reasonable foreseeability of the injury. Imo's

argues that it "merely created a scenario under which Bethalto would place its employees

upon the roadways to deliver pizzas." As such, Imo's contends, there would be no reason

for it to expect that an employee of its franchisee would operate a vehicle in a negligent

manner. Furthermore, Imo's argues that it placed an emphasis on safety in its franchise

agreement, manual, and driver contract.

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¶ 44 "Foreseeability of harm, in connection with a duty, is not a magical concept that

ignores common sense." St. Paul Insurance Co. of Illinois v. Estate of Venute, 275 Ill.

App. 3d 432, 436 (1995). A person has a greater reason to anticipate negligence than

criminal conduct. Marshall, 222 Ill. 2d at 440 (citing Restatement (Second) of Torts

§ 302B cmt. d (1965)). It is unrealistic to posit that Imo's had no reason to expect that a

franchisee's employee would operate a vehicle negligently. Imo's knew or should have

known that from time to time vehicle-related accidents would occur involving its

franchisee's delivery drivers, and that some of those accidents would be attributable to the

fault of the delivery driver. We may assume the general foreseeability of occasional

accidents involving pizza delivery drivers, who will be at fault some of the time. See

Marshall, 222 Ill. 2d at 442 (recognizing the reasonable foreseeability of harm caused by

automobile accidents given the pervasiveness of automobiles, roadways, and parking

lots). The relevant query then becomes whether it was reasonably foreseeable that Imo's

actions would or could affect the conduct of Lyerla, thereby contributing to the risk of

harm to plaintiff.

¶ 45 Restatement (Second) of Torts section 303 states, "An act is negligent if the actor

intends it to affect, or realizes or should realize that it is likely to affect, the conduct of

another, a third person, or an animal in such a manner as to create an unreasonable risk of

harm to the other." Restatement (Second) of Torts § 303 (1965). Imo's argues that

because it emphasizes driver safety the expectation by Imo's was that "a franchisee's

delivery personnel will act in a reasonably safe manner and never sacrifice safety for

speedy delivery."
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¶ 46 Nineteen-year-old Kenneth Lyerla crossed the center line and hit the vehicle in

which plaintiff was a passenger head-on. An eyewitness testified that Lyerla was

speeding–"flying down the road"–when he swerved to avoid a stopped vehicle. The

witness testified that Lyerla did not appear to reduce his speed before impact. At the

time, he was in the process of a pizza delivery for his employer, Bethalto Pizza.

¶ 47 Imo's operating manual, franchise agreement, and driver contract were admitted

into evidence. Imo's policies emphasized speed of delivery–"as soon as possible." Imo's

required a driver contract that allowed for termination for failure to make "timely"

deliveries or with "expedition." Imo's compensation scheme did not require drivers to be

paid an hourly rate, but did require that they make minimum wage. Drivers could make

more than minimum wage only by delivering as many pizzas an hour as possible, because

they could keep delivery fees and tips. Imo's benefited by drivers making as many

deliveries as fast as possible because its franchisees paid it a monthly continuing fee

license equal to 4% of their sales. There was no bonus for safe driving or any safe

driving training or program.

¶ 48 Imo's required its franchisees to provide pizza deliveries, and it allowed the

franchisee to determine size of the delivery area beyond a three-quarter-mile radius from

each restaurant. The delivery range for the Bethalto franchise was up to 10 miles. The

further away the delivery, the less money drivers could potentially make, as drivers could

drive as long as 15 minutes in one direction. Consequently, drivers could deliver as few

as two pizzas an hour and make less than minimum wage on delivery fees and tips.

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¶ 49 Imo's had a written policy that drivers must have fewer than three moving

violations in the three preceding years. Imo's retained the right to monitor and enforce

compliance with its policies, but did not have anyone assigned to check on driver's

records. Lyerla had three moving violations in less than the three years preceding the

accident. According to Imo's own mandatory written policy, Lyerla should not have been

delivering pizzas.

¶ 50 We cannot say as a matter of law that it was unforeseeable that delivery drivers

would sacrifice safety for speedy deliveries given the large size of the delivery area; the

financial incentive to maximize deliveries; the young age and inexperience of some of its

drivers; the requirement that deliveries were to be "timely," "efficient," and made "as

soon as possible"; and the fact that the driver contract allowed Imo's to terminate a driver

for not delivering pizzas quickly enough. The fact that Imo's required delivery drivers

have fewer than three moving violations also evidenced knowledge that unsafe driving

could contribute to accidents.

¶ 51 We next consider the likelihood of the injury. The injuries suffered by plaintiff

were not remote or unlikely under the circumstances as a matter of law. Imo's

requirement of pizza deliveries placed its franchise drivers on the road with other

vehicles. Defendant Bethalto has admitted that Lyerla's negligent driving was the cause

of the accident whereby plaintiff was injured. Had Imo's enforced its own policy, it

would have discovered Lyerla's history of moving violations and not placed him on the

road delivering pizzas. Having determined that the risk of harm was foreseeable as a

matter of law, we likewise find that the plaintiff's injury was reasonably likely to arise
19
from a pizza delivery driver with past moving violations who was speeding to deliver a

pizza. See Doe-3, 2012 IL 112479, ¶ 33.

¶ 52 The next factor we address is the magnitude of the burden of guarding against the

injury. Imo's argues that the burden of guarding against the injury here would be great,

requiring that it either cease deliveries or control the manner and method of delivery in

all of its 94 franchise locations. Plaintiff counters with the argument that the magnitude

of the harm of speeding delivery drivers is great, including death and serious injury,

while the burden of guarding against such injuries would not be great.

¶ 53 We agree with plaintiff that the burden of guarding against the injury would not be

great when balanced with the seriousness of auto-related injuries caused by speeding

delivery drivers. We believe that the precautionary measures that Imo's could undertake

are not so onerous as to cause defendant to cease pizza deliveries or require it to

micromanage its 94 franchise locations. Imo's could remove the financial incentive that

encourages drivers to maximize the number of deliveries in an hour; remove language

from the driver contract that would allow Imo's to terminate drivers who do not deliver

pizzas with "expedition"; remove language from the franchise agreement, manual, and

driver contract that emphasize and require deliveries be made quickly; reduce the size of

the delivery area; allow the franchisee to determine whether or not to provide deliveries;

incentivize safe deliveries; provide safe driving training; and enforce its own safety

polices. Most notably in this instance, enforcement of its own policy–that a driver could

not have three or more moving violations and deliver pizzas–would have precluded

20
Lyerla from delivering pizzas. None of these alternatives would impose an undue burden

on Imo's.

¶ 54 The final relationship factor is the consequences of placing the burden on the

defendant. Imo's arguments that it would be forced out of business if it stopped pizza

deliveries and had to micromanage its 94 franchises are speculative at best. This is

particularly true since the precautionary measures proposed to reduce the risk of harm to

plaintiff would not require drastic measures. We adhere to the language in Marshall

wherein the court cautioned against conflating duty and breach, recognizing a duty of

care does not equate with a finding of breach or proximate cause: "In short, merely

concluding that the duty applies does not constitute an automatic, broad-based declaration

of negligence liability." Marshall, 222 Ill. 2d at 443. We find that plaintiff proved

circumstances that gave rise to a duty owed by Imo's to plaintiff in this case.

¶ 55 b. Assumption of Duty

¶ 56 Imo's argues additionally that plaintiff failed to prove that it voluntarily assumed a

duty of care towards plaintiff. As we have just discussed, if a defendant has created or

contributed to the risk of harm to a plaintiff, there is no additional requirement that an

independent or direct relationship be shown to establish a duty. Simpkins, 2012 IL

110662, ¶ 19. Imo's argues, however, that to impose duty in a franchisor-franchisee case,

there must be one of the four recognized special relationships or a voluntary undertaking.

Imo's relies extensively on Castro v. Brown's Chicken & Pasta, Inc., 314 Ill. App. 3d 542

(2000), for this argument. We disagree and find Imo's reliance on Castro misplaced.

21
¶ 57 Castro involved the murder of several restaurant patrons at a Brown's Chicken &

Pasta franchise. Castro, an administrator of one of the decedents' estates, brought suit

against the franchisor, claiming that it owed a duty towards the plaintiff because it

"exercised control over the franchisee by virtue of the franchise agreement and by

recommending safety rules for the employees." Id. at 544. The trial court dismissed the

complaint because it did not plead a voluntary undertaking. Id. The court subsequently

dismissed plaintiff's amended complaint on a motion for summary judgment as to

proximate cause, but not as to the amended voluntary undertaking count. Id. at 546.

¶ 58 On cross-appeals, the appellate court affirmed the dismissal as to proximate cause

and reversed and dismissed the voluntary undertaking count. The court found that the

franchisee had retained total control over the day-to-day operations of the restaurant. Id.

at 552. The court held that the franchisor did not voluntarily undertake to provide

security at the restaurant. Id. In making this determination, the court noted: "Clearly,

there is no legal duty on the part of Brown's because no special relationship exists

between it and plaintiff. Therefore, the issue becomes whether Brown's was negligent in

voluntarily undertaking to provide security for the plaintiffs." Id. at 547.

¶ 59 The most notable distinction between Castro and the instant case is that Castro

involved a criminal act. In general, there is no affirmative duty to protect a third party

from a criminal act. Hills v. Bridgeview Little League Ass'n, 195 Ill. 2d 210, 228 (2000).

To the extent that this language is read to make a finding of a special relationship or a

voluntary undertaking an absolute prerequisite as a matter of law to the recognition of a

duty in a franchisor-franchisee case, we believe this interpretation conflicts with the
22
principles our supreme court set down in Marshall and Simpkins. Simpkins instructs that

if a course of action creates or contributes to a foreseeable risk of injury, that individual

has a duty to protect others from such injury. Simpkins, 2012 IL 110662, ¶ 19.

Consequently, duty does not necessarily hinge on a special relationship or a voluntary

undertaking, even though such relationships may help establish the foreseeability of the

injury. Id.; see also Marshall, 222 Ill. 2d at 436-37 (emphasizing the four factors that

give rise to a duty and the policy considerations inherent in those factors). While we do

not believe that a finding of a voluntary undertaking is a necessary prerequisite to the

recognition of a franchisor's duty, we determine whether Imo's voluntarily assumed a

duty.

¶ 60 Under the voluntary undertaking doctrine of liability, " '[o]ne who voluntarily

undertakes to render services to another is liable for bodily harm caused by his failure to

perform such services with due care or with such competence and skill as he possesses.' "

Decker v. Domino's Pizza, Inc., 268 Ill. App. 3d 521, 526 (1994) (quoting Siklas v. Ecker

Center for Mental Health, Inc., 248 Ill. App. 3d 124, 131 (1993)). A defendant is subject

to liability if the defendant voluntarily undertakes a duty and performs that duty

negligently and the negligence is the proximate cause of the injury to plaintiff. Phillips v.

Chicago Housing Authority, 89 Ill. 2d 122, 126 (1982). Where a duty of care is imposed,

it is limited to the extent of the undertaking. Frye v. Medicare-Glaser Corp., 153 Ill. 2d

26, 32 (1992).

23
¶ 61 Illinois courts have adopted the section 324A of the Restatement (Second) of

Torts, "Liability to Third Person for Negligent Performance of Undertaking," which

provides:

"One who undertakes, gratuitously or for consideration, to render services to

another which he should recognize as necessary for the protection of a third person

or his things, is subject to liability to the third person for physical harm resulting

from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third

person, or

(c) the harm is suffered because of reliance of the other or the third person

upon the undertaking." Restatement (Second) of Torts § 324A (1965).

¶ 62 Imo's maintains that any imposition of liability based on a voluntary undertaking

should be based on misfeasance, not nonfeasance, and generally must involve an

affirmative act. We have already determined Imo's actions were affirmative, particularly

in regard to the drivers' requirements. Furthermore, our supreme court has held that a

voluntarily assumed duty is not limited to misfeasance or reliance. Phillips, 89 Ill. 2d at

127-28. "The failure to properly complete or to carry out an assumed duty imposes

liability in the same manner as for dangers affirmatively created during the course of the

assumed undertaking." Martin v. McDonald's Corp., 213 Ill. App. 3d 487, 491 (1991)

(citing Phillips, 89 Ill. 2d at 127-29).

24
¶ 63 Imo's next contends that Bethalto retained total control over all the day-to-day

operations of the franchise and therefore under the law it has not undertaken a duty to

protect against the acts of its franchisee. In several cases cited by Imo's and plaintiff,

courts have considered whether franchisors may be held liable for the criminal acts of

third persons to employees and patrons of restaurants based on assuming a voluntary duty

to protect the plaintiff. The issue of control is one of the determinative factors.

¶ 64 In Castro, discussed earlier, and Chelkova v. Southland Corp., 331 Ill. App. 3d

716 (2002), two cases decided by summary judgment, the courts held that the franchisors

did not undertake voluntary duties to protect their franchisees' employees from criminal

attacks. In both cases, the franchisors had made suggestions or recommendations

regarding security, but did not mandate security measures be followed by the franchisees.

Chelkova, 331 Ill. App. 3d at 724; Castro, 314 Ill. App. 3d at 551. Both courts found that

all security decisions were left up to the franchisees' discretion and that the franchisees

were permitted to run the businesses as they saw fit. Chelkova, 331 Ill. App. 3d at 724;

Castro, 314 Ill. App. 3d at 552.

¶ 65 In contrast, in Martin v. McDonald's and Decker v. Domino's Pizza, two cases

tried to verdict, the courts held that the franchisors did undertake voluntary duties to

establish security policies to protect their franchisees' employees from criminal harm.

Decker, 268 Ill. App. 3d at 527; Martin, 213 Ill. App. 3d at 493. In Martin, the court

found that "McDonald's clearly established a security policy which unquestionably

included a follow-up. Nevertheless, its key security people *** admittedly failed to

follow up." Martin, 213 Ill. App. 3d at 493. In Decker, the court found that once
25
Domino's Pizza undertook to establish a security program whose goal was to deter

robberies and protect employees from harm, it had a duty to act with reasonable care.

Defendant could be found liable for the negligent performance of the duty it undertook.

Decker, 268 Ill. App. 3d at 527.

¶ 66 In a more recent case, Lawson v. Schmitt Boulder Hill, Inc., on appeal from a

section 2-619 dismissal, the court reversed the dismissal, holding that the franchisor

failed to meet its burden of showing that it owed no duty to its franchisee's employee who

had been criminally attacked. Lawson v. Schmitt Boulder Hill, Inc., 398 Ill. App. 3d 127,

134 (2010). The court discussed at some length Castro, Chelkova, Martin, and Decker,

and in summary stated that these cases "illustrate that whether a franchisor maintains

mandatory security procedures is a crucial factor in determining whether the franchisor

has voluntarily undertaken a duty of care toward a franchisee's employees." Id. at 133.

Taking the allegations of the complaint as true, the court further found that, unlike the

defendants in Castro and Chelkova, McDonald's, the franchisor, had mandated

compliance with security procedures. Id. The Lawson court commented on McDonald's

affidavit, in which McDonald's averred that it lacked authority to control the day-to-day

operations of the franchisee or to hire, discharge, or discipline the franchisee's employees.

The court stated, "none of the pertinent cases suggest that such authority is a prerequisite

to the recognition of a duty." Id. The court went on to state that other averments in the

affidavit–such as claims that McDonald's does not supply any products to the franchisee

and does not file a tax return for the franchisee–were even less relevant. The court

emphasized that "[n]otably absent" from McDonald's affidavit were any averments
26
discussing its policies regarding security at franchisee restaurants, the very factors that

were found to be relevant in Martin and Decker. Id. at 133-34.

¶ 67 Apart from the fact that the instant case does not involve criminal conduct, we

believe that our case is more similar to Martin and Decker than Castro and Chelkova.

Here, the factors that are relevant to whether Imo's actions amounted to a voluntary

undertaking are those having to do with its driver safety policies. The safety policies

Imo's set for drivers were self-imposed standards that mandated compliance.

¶ 68 Critically here, Imo's required a good driving record. The manual provided that a

"Good Driving Record" "means the person does not have *** 3 or more moving citations

and/or accidents in the most recent 3 years." (Emphasis in original.) The manual further

provided: "[A motor vehicle report (MVR)] must be checked before someone is hired and

at least every 6 months while an individual who is working for you has any driving

responsibilities. If a driver's MVR changes so that they no longer have a Good Driving

Record, they must be prohibited from performing further driving for you." (Emphasis in

original.) The franchisee was required to adhere to all standards that were italicized in

the manual. The manual also required that each store "must keep every MVR you obtain

on an employee in that employee's file." (Emphasis in original.)

¶ 69 Importantly, the manual further reserved to Imo's the right to monitor the stores'

adherence to the policies and force compliance. Imo's assumed a duty to protect third

persons from accidents involving Imo's delivery drivers when it initiated a safe driving

policy; required its stores to obtain, update, and retain MVRs; and then reserved the right

27
to inspect for and enforce compliance. Yet, Imo's did nothing to monitor or enforce its

own safety policy.

¶ 70 Imo's also contends that the voluntary undertaking doctrine should be narrowly

construed and confined to the contractual obligation. Defendant cites the rule of law that

the duty of care is limited to the extent of the undertaking. Castro, 314 Ill. App. 3d at

547; Decker, 268 Ill. App. 3d at 526. Here, the scope of the undertaking is defined by the

standards that Imo's set out in its agreement, manual, and driver contract mandating

certain requirements be met. See Decker, 268 Ill. App. 3d at 526. The fact that Imo's

undertook to monitor Lyerla's driving record and failed to do so is within the scope of its

assumed duty. See Coty v. U.S. Slicing Machine Co., 58 Ill. App. 3d 237, 242 (1978).

¶ 71 In Martin, the defendant franchisor urged the court to consider the separate and

distinct nature of the corporate relationship with its licensee. The court stated, "No

matter what legal relationships existed, it was McDonald's Corporation which undertook

to provide security and protection to plaintiffs." Martin, 213 Ill. App. 3d at 491.

Restatement (Second) of Torts section 324A comment b states, "This Section applies to

any undertaking to render services to another, where the actor's negligent conduct in the

manner of performance of his undertaking, or his failure to exercise reasonable care to

complete it, or to protect the third person when he discontinues it, results in physical

harm to the third person or his things." Restatement (Second) of Torts § 324A cmt. b

(1965). Comment c states, "Clause (b) finds common application in cases of the

negligent performance of their duties by employees or independent contractors, which

creates or increases a risk of harm to third persons." Restatement (Second) of Torts
28
§ 324A cmt. c (1965). Thus, any concurrent negligence of Bethalto or Lylera does not

absolve Imo's of its duty once undertaken.

¶ 72 Regardless of whether Imo's had an affirmative duty to protect plaintiff from the

negligent acts of third persons, Imo's voluntarily undertook a duty when it set a

mandatory safety policy for driver's qualifications and then failed to monitor Bethalto for

compliance with its own policy.

¶ 73 c. Breach and Proximate Cause

¶ 74 Imo's contends that even if it owed plaintiff a duty, he has not proven a breach of

that duty or that the breach was the proximate cause of his injuries. In order to constitute

proximate cause, "[t]he injury must be the natural and probable result of the negligent act

or omission and be of such a character as an ordinarily prudent person ought to have

foreseen as likely to occur as a result of the negligence, although it is not essential that

the person charged with negligence should have foreseen the precise injury which

resulted from his act." Neering v. Illinois Central R.R. Co., 383 Ill. 366, 380 (1943).

"Questions concerning breach of a duty and proximate cause are factual matters for the

jury to decide. [Citations.] A jury's determination will not be set aside unless, clearly, it

is not supported by the evidence." Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 454

(1992).

¶ 75 When all the evidence is considered along with all reasonable inferences in the

light most favorable to plaintiff, it was not unreasonable for the jury to conclude that

Imo's was negligent by virtue of its various operating policies and procedures that put

speed of delivery ahead of safe driving in delivering pizzas; that Imo's negligence played
29
a substantial part in Lyerla's admittedly negligent driving; and that the resulting accident

and injury to plaintiff was a reasonably probable consequence of Imo's conduct. In

addition, it was not unreasonable for the jury to conclude that Imo's had failed in its

assumed duty to monitor the driving record of Lyerla to ensure that he was in compliance

with Imo's requirement that no driver have three or more moving violations and deliver

pizzas; that Imo's failure to monitor allowed Lyerla to deliver pizzas when he was in

violation of Imo's own mandatory policy; and that the resulting accident and injury to

plaintiff was a reasonably probable consequence of Imo's conduct.

¶ 76 2. Vicarious Liability and Agency Relationship

¶ 77 Imo's contends that plaintiff failed to prove that it was liable for the actions of

Bethalto Pizza and its driver Lyerla under a theory of respondeat superior because the

evidence did not support the jury's finding that a principal-agent relationship existed

between Imo's and Bethalto. Imo's maintains that the agreement and manual expressly

stated Bethalto was an independent contractor and the evidence showed that Bethalto

retained total control over its day-to-day operations.

¶ 78 "Agency is the fiduciary relation which results from the manifestation of consent

by one person to another that the other shall act on his behalf and subject to his control,

and consent by the other so to act." Restatement (Second) of Agency § 1(1) (1958).

¶ 79 The principal-agent relationship is an exception to the general rule that a person

injured by the negligence of another must seek his remedy from the one who caused the

injury. Sperl v. C.H. Robinson Worldwide, Inc., 408 Ill. App. 3d 1051, 1057 (2011).

Under traditional respondeat superior analysis, a principal can be found vicariously liable
30
for the torts of his agent committed within the scope of the agency or employment. Hills

v. Bridgeview Little League Ass'n, 195 Ill. 2d 210, 231 (2000); Wright v. City of Danville,

174 Ill. 2d 391, 405 (1996). A principal is generally not responsible for the conduct of an

independent contractor. Sperl, 408 Ill. App. 3d at 1057. "An independent contractor has

been repeatedly defined as one who renders service in the course of the occupation, and

represents the will of the person for whom the work is done only with respect to the

result, and not the means by which it is accomplished." Dean v. Ketter, 328 Ill. App.

206, 211 (1946).

¶ 80 A written contract is not conclusive of the nature of the relationship between the

parties. Despite an agreement labeling the relationship as that of an independent

contractor, the facts of the case can demonstrate an agency status. Sperl, 408 Ill. App. 3d

at 1057. The nature of the relationship depends on the actual practice between the parties

and, as a general rule, is a mixed question of law and fact to be submitted to the jury.

Davila v. Yellow Cab Co., 333 Ill. App. 3d 592, 595-96 (2002) (citing Tansey v.

Robinson, 24 Ill. App. 2d 227, 234 (1960)). "In determining whether a person is an agent

or an independent contractor, the court's cardinal consideration is the right to control the

manner of work performance, regardless of whether that right was actually exercised."

Sperl, 408 Ill. App. 3d at 1057; see also Illinois Pattern Jury Instructions, Civil, No. 50.05

(1995).

¶ 81 Determination of whether a relationship of employer and employee, principal and

agent, or owner and independent contractor exists depends upon such facts as the manner

of hiring, the right to discharge, the manner and direction of servants, the right to
31
terminate the relationship, and the character of the supervision of the work done. Lawlor

v. North American Corp. of Illinois, 2012 IL 112530, ¶ 44.

¶ 82 Additionally, liability can arise from negligence in training or supervising under

both an agency and direct negligence theory. See Reynolds v. Jimmy John's Enterprises,

LLC, 2013 IL App (4th) 120139, ¶ 27 (citing Restatement (Second) of Agency § 213(a)

(1958); Restatement (Third) of Agency § 7.05(1) (2006)).

¶ 83 Restatement (Third) of Agency section 7.05(1) states, "A principal who conducts

an activity through an agent is subject to liability for harm to a third party caused by the

agent's conduct if the harm was caused by the principal's negligence in selecting, training,

retaining, supervising, or otherwise controlling the agent." Restatement (Third) of

Agency § 7.05(1) (2006). Comment b states, "The rules stated in this section stem from

general doctrines of tort law not limited in their applicability to relationships of agency as

defined in § 1.01." Restatement (Third) of Agency § 7.05 cmt. b (2006). Comment b

further provides, "It is not a defense to liability under this rule that the actor whose

conduct harms a third party does not have a relationship of agency as defined in § 1.01

with the person who conducted an activity through the actor." Restatement (Third) of

Agency § 7.05 cmt. b (2006). The reporter's notes state that this section is the counterpart

to Restatement (Second) of Agency section 213. "The formulation in this section, as in §

213, is not limited to situations in which an actor is characterized as the agent or

employee of the person who conducts an activity through the actor." Restatement (Third)

of Agency § 7.05, Reporter's Notes (2006).

32
¶ 84 After a careful review of the record, we find that the agreement, the confidential

operating manual, and the driver contract provided ample evidence along with trial

testimony that Imo's had the right to control many aspects of Bethalto's daily operations.

These documents allowed Imo's to control employment decisions, training, safety, daily

maintenance, wage and hour requirements, record-keeping, supervision and discipline of

employees, and hiring and firing, as well as the right to terminate the franchise

relationship with Bethalto. The agreement required the franchisee "to operate the Store

and provide delivery service *** in accordance with the operational standards as may be

established by Franchisor from time to time." While Imo's characterizes many of these

directives as suggestions or recommendations that were left up to the franchisee's

discretion, the frequent use of terminology such as "must," "require," and "mandatory"

belies that characterization. The manual expressly indicated that its numerous italicized

provisions were mandatory. In addition, some of the provisions that were not italicized

expressly mandated compliance. One such nonitalicized provision in the manual stated:

"You must be open on New Year's Eve. We suggest you stay open until 2:00 a.m." The

jury could have reasonably inferred that the use of compulsory language evidenced Imo's

right to operational control and that provisions like "You must be open on New Year's

Eve" were not mere suggestions or recommendations. Margaret Imo's testimony

admitted that there were requirements in the manual that were not italicized.

¶ 85 The agreement required Bethalto to "conform with standards relating to signage,

color scheme, appearance, hours of operation, cleanliness, sanitation, size of food item

33
portions, menus, methods of preparation, employee uniforms, type of equipment and

décor as designated by Franchisor."

¶ 86 There was evidence that Imo's control extended specifically to the pizza delivery

drivers. Pizza delivery was required under the agreement. Imo's prescribed the minimum

delivery area. Imo's required Bethalto to name Imo's Franchising, Inc., as an additional

insured on all general liability and nonowned auto insurance policies. Imo's required the

stores to pay a fee equal to 4% of their sales. The manual required Bethalto to adhere to

guidelines in hiring, supervising, and terminating the drivers. The manual included eight

pages of detailed requirements entitled "Hiring and Supervising Drivers." Imo's required

that drivers "have a Good Driving Record as established by a motor vehicle report

(MVR)." (Emphasis in original.) The manual further provided:

"This means the MVR must be checked before someone is hired and at least every

6 months while an individual who is working for you has any driving

responsibilities. If a driver's MVR changes so they no longer have a Good

Driving Record, they must be prohibited from performing further driving for you."

(Emphasis in original.)

Bethalto was required to keep every MVR it obtained in the employee's file. A full page

was devoted to what defined a good driving record. One requirement was that a driver

have fewer than three moving violations in the preceding three years.

¶ 87 The manual contained an appendix A with forms. The following forms were

mandatory as indicated: "Procedure for New Driver's MVR Report–This form is

mandatory"; "Driver Eligibility Guidelines–These guidelines are mandatory"; "Driver
34
Contract–This form is mandatory"; and "Safe Work Practices for Drivers–These practices

are mandatory." The procedure for new driver's MVR report and driver eligibility

guidelines contained numerous specific requirements for hiring. Imo's required that

Bethalto calculate the hourly rate of drivers to ensure that they receive minimum wage; if

they did not, Bethalto was required to make up the difference. The driver contract stated

that a driver could be terminated for not "performing the work with safety and

expedition."

¶ 88 Imo's reserved the right to enforce the standards to ensure compliance. The

manual provided:

"We have the right to make inspections and inquiries of your store during normal

business hours without notice. If we find areas that need improvement, we have

the right to make certain recommendations and suggestions to you, and in some

cases, we may require you to make certain changes or improvements. You agree

to make those changes and improvements that we may require of you."

Under the agreement, Imo's reserved the right to terminate the franchise if Bethalto did

not perform the mandatory obligations under the confidential operating manual.

¶ 89 Imo's contends that Bethalto conducted business without interference from Imo's

in its operations or procedures. Assuming this to be true, it is not determinative of the

agency status. It is the right to control rather than the fact of control that is determinative

of agency. See Sperl, 408 Ill. App. 3d at 1057. Likewise, the fact that the agreement

expressly stated that Bethalto was an independent contractor is also not determinative of

the relationship. See id.
35
¶ 90 Applying these rules of law and factors to this case, we find that the evidence

adduced at trial was sufficient to support the jury's finding on agency. The existence of

an agency relationship was genuinely disputed and properly a question to be decided by

the jury and not prior to trial. We also note that neither scope of agency nor apparent

agency was at issue. In considering all the evidence, along with reasonable inferences in

the light most favorable to the plaintiff, we cannot say that there was a total lack of

evidence to support the jury's determination that Bethalto was the agent of Imo's.

Further, we find that the jury's determination of agency was not against the manifest

weight of the evidence.

¶ 91 For these reasons we find that the trial court did not err in denying Imo's motion to

dismiss plaintiff's amended complaint, its motion for summary judgment, and its motions

for directed verdict.

¶ 92 C. Denial of the Motion for Remittitur or a New Trial on the Issue of Damages

¶ 93 Defendants next argue that the trial court erred in denying their request for

remittitur or in the alternative a new trial on damages for future medical expenses and

future lost earnings. They argue that the jury's award of $657,000.68 for past and future

medical expenses and $607,500 for past and future lost earnings is against the manifest

weight of the evidence.

¶ 94 The standard of review for a trial court's ruling on a motion for new trial on the

issue of compensatory damages is whether the verdict is against the manifest weight of

the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992); Blackburn v. Illinois

Central R.R. Co., 379 Ill. App. 3d 426, 430 (2008). "A verdict is against the manifest
36
weight when it is arbitrary, unreasonable, or not based upon any evidence." Hollowell v.

Wilder Corp. of Delaware, 318 Ill. App. 3d 984, 990 (2001) (citing Maple, 151 Ill. 2d at

454). When determining whether a verdict is against the manifest weight of the evidence,

the appellate court should only consider the evidence in the light most favorable to the

party who prevailed at trial. Wallace v. Radovick, 55 Ill. App. 2d 264, 266 (1965). The

standard of review for a trial court's ruling on remittitur is abuse of discretion. Hollowell,

318 Ill. App. 3d at 991.

¶ 95 1. Future Medical Expenses

¶ 96 We cannot say that the award for future medical expenses was against the manifest

weight of the evidence or that the trial court abused its discretion in denying the motion

for remittitur or new trial on damages. Plaintiff suffered a severe traumatic brain injury

(TBI) as a result of the collision. At the time of trial, plaintiff's related past medical

expenses totaled $196,315.68.

¶ 97 The jury heard testimony from three board-certified surgeons from Barnes-Jewish

Hospital regarding three surgeries they performed on plaintiff in the days following the

collision. Plaintiff was hospitalized at Barnes-Jewish for over two weeks and then

transferred to a rehabilitation facility for approximately another two-week period before

being released to outpatient therapy.

¶ 98 The jury also heard from Dr. Sindhu Jacob, a rehabilitation specialist who is board

certified in physical medicine. Dr. Jacob works with brain injury patients. She provided

inpatient physical therapy, occupational therapy, and speech therapy to plaintiff following

the accident. Dr. Jacob testified that plaintiff sustained skull fractures and suffered from
37
a seizure disorder, migraine headaches, deficits in attention, and memory impairment

symptoms, all of which were caused by the accident. She last saw plaintiff two weeks

before trial, in November, 2011. She reported that he had been hospitalized at Alton

Memorial Hospital for a grand mal seizure in February of 2011. Dr. Jacob testified that

the seizure disorder and migraine headaches were ongoing complications from the head

injury. She had prescribed two antiseizure medications and a migraine prevention

medication. She explained that if plaintiff had additional seizures, he could require

antiseizure medication for life. She stated that a brain injury increases the risk of

developing further seizures even if one had seizures before.

¶ 99 Dr. Jacob also testified that plaintiff was still experiencing developmental

complications after his brain injuries and that he was at risk for future complications,

including headaches, seizure disorders, behavioral problems, attention deficits, memory

issues, cognitive deficits, endocrine disorders, and hydrocephalus–an increase in the

pressure or build-up of the fluid in the ventricle system of the brain, which can cause

confusion, lethargy, sleepiness, and trouble with bladder control.

¶ 100 Dr. Fucetola, a neuropsychologist who first treated plaintiff in September 2009

during his rehabilitation, also testified on plaintiff's behalf. He characterized plaintiff's

brain injury as severe because testing done one hour postinjury scored plaintiff's brain

injury in the severe traumatic brain injury range and because a CT scan showed structural

brain damage. He testified that a six-millimeter midline shift of the plaintiff's brain due

to the subdural hematoma was "actually quite grave in terms of the brain." Dr. Fucetola

explained that because the brunt of the brain injury was to the left side, which controls
38
language and verbal abilities, difficulty with verbal memory and language would be

normal. He further testified that once a patient suffers a seizure after a severe TBI like

plaintiff did, the patient is at high risk for other seizures.

¶ 101 Dr. Fucetola testified that when he last saw plaintiff in August of 2011, plaintiff

essentially had the same issues he had when he saw him in August 2010. Dr. Fucetola

testified that plaintiff's condition was permanent, and that he was in the plateau phase

where he would not expect further recovery. He testified that plaintiff's defects included

short-term memory, verbal fluency, and mental speed. He noted that plaintiff's mental

speed defect was probably aggravated by the seizures caused by the TBI and the

antiseizure medication. Plaintiff's symptom validity tests showed that plaintiff put forth

his best effort. Dr. Fucetola testified that there were no treatments that could restore

plaintiff's functioning, but he could benefit from using pagers or devices that help keep

him reminded of things.

¶ 102 Dr. Raymond Cohen, a board-certified neurologist who examined plaintiff and his

medical records, testified on behalf of plaintiff that as a result of the accident, plaintiff

suffered a moderate traumatic brain injury, which required him to undergo a craniotomy

for a depressed skull fracture, including fixation with a plate and screws. In addition,

plaintiff suffered extensive skull fractures, including temporal bones, and left orbit of the

brain injury, a left frontal lobe contusion, and a small left-sided subdural hematoma with

midline shift of the brain six millimeters. Dr. Cohen further testified that plaintiff

suffered a bilateral pulmonary contusion requiring bilateral chest tubes, underwent

surgery for a cricothyrotomy with subsequent revision tracheostomy or tracheotomy,
39
sustained a larynx fracture requiring repair, and experienced posttraumatic seizures. The

seizures appeared to have stabilized by the time Dr. Cohen examined plaintiff. Dr.

Cohen saw plaintiff seven months after the accident but before he had his more recent

seizure in February 2011. Dr. Cohen testified that plaintiff also suffered from

posttraumatic sleep disorder, keloid scarring, intractable itching of the neck, and cervical

and lumbar strain/sprain. Dr. Cohen testified that it was extremely unlikely that plaintiff

would have a full recovery.

¶ 103 Dr. Zipfel, who performed plaintiff's craniotomy, testified that as a result of the

craniotomy, plaintiff is restricted from contact sports that might lead to a direct blow and

that he is at risk for reinjuring the area from motor vehicle accidents or falls. He is also at

risk for increased seizure activity over time.

¶ 104 Multiple witnesses testified that plaintiff cannot live on his own and needs a

caretaker to protect himself and anyone else living with him from accidents. There was

testimony that plaintiff's memory deficit was severe enough to create hazards. For

example, plaintiff forgets food on the stove and in the oven and forgets to take his

medication. Plaintiff's father had arranged for someone to live with plaintiff and help

care for him in exchange for free housing. However, that person has no training and is

not a licensed caregiver. The testimony characterized the situation as a somewhat

temporary arrangement.

¶ 105 Defendants' argument that the future award was excessive rests upon a contention

that there was no evidence that plaintiff needed future medical care. We first note that

defendants acknowledge that plaintiff incurred $196,315.68 in medical expenses at the
40
time of trial, which they concede was properly included in the damage award.

Defendants assert that plaintiff's future medical expenses should be limited to the cost of

$140 per month for his medication. According to defendants, the evidence supported a

verdict of no more than $24,371.02 for future medical expenses. Defendants arrive at

this amount by multiplying $140 per month over a life span of 51 years and reducing that

sum to present cash value.

¶ 106 " 'The determination of damages is a question reserved to the trier of fact, and a

reviewing court will not lightly substitute its opinion for the judgment rendered in the

trial court.' " Blackburn, 379 Ill. App. 3d at 430 (quoting Richardson v. Chapman, 175

Ill. 2d 98, 113 (1997)). Future damages by their nature are always subject to some

uncertainties. Because of the finality of a verdict, courts allow the trier of fact a degree

of latitude in awards for medical expenses shown by the evidence to likely arise in the

future but that are not itemized by testimony. Richardson, 175 Ill. 2d at 112.

¶ 107 At the time of trial, plaintiff was in ongoing treatment for seizure disorder and

debilitating headaches stemming from the brain injury. None of plaintiff's physicians

believed that he would fully recover. His doctors agreed that his condition–which

included severe short-term memory problems, decreased mental speed, and problems

with concentration and verbal fluency–was permanent. Plaintiff's doctors testified

regarding a number of complications and conditions that plaintiff was at risk for or could

likely develop as time passed. There was also testimony that the jury could have believed

regarding the need for an ongoing trained caretaker, particularly after plaintiff's parents

were no longer able to assist with his care. We find that the medical testimony justified
41
an inference that there would be future medical expenses. Levin v. Welsh Brothers Motor

Service, Inc., 164 Ill. App. 3d 640, 659 (1987); see also Scheibel v. Groeteka, 183 Ill.

App. 3d 120, 138 (1989) (future medical expenses could reasonably be inferred given the

evidence on the nature of the plaintiff's disability, despite lack of medical testimony on

amount of expenses).

¶ 108 This court has also held that the absence of direct testimony as to a particular

amount of damages is not sufficient reason alone to attack a jury verdict. Rainey v. City

of Salem, 209 Ill. App. 3d 898, 907 (1991). "If the elements of damage presented for the

jury's consideration are proper under the facts of the case, then the assessment of

damages is preeminently for the jury, even though reasonable persons could differ as to

the amount." Id.

¶ 109 We cannot say that this amount exceeds the range of fair and reasonable

compensation; nor can we say that the verdict is based on passion or prejudice or is so

large as to shock the judicial conscience. See Blackburn, 379 Ill. App. 3d at 433.

Accordingly, we will not substitute our judgment for that of the jury. We find that the

trial court did not err in allowing the amount of future medical damages to stand.

¶ 110 2. Future Lost Earnings

¶ 111 The jury awarded plaintiff $607,500 for past and future lost wages. Defendants

argue that the future earnings award was based on speculative evidence and further that

the jury did not follow the court's instructions on calculating future earnings. We cannot

say that this award was against the manifest weight of the evidence or that the trial court

abused its discretion in denying the motion for remittitur or a new trial on damages.
42
¶ 112 Defendants first contend that the jury did not reduce future earnings to present

cash value as instructed by the court. This contention is based on their argument that

there was no evidence to support a finding that the plaintiff would have earned more than

$12,000 per year over his life expectancy of 51 years. Based on this assumption,

defendants calculate a present value of future lost earnings of between $135,507 and

$222,921.

¶ 113 The jury's present cash value calculations are not part of the record. Because we

do not know the amount of future lost wages the jury awarded to plaintiff before reducing

that sum to present cash value, there is no way to determine whether the jury's calculation

was incorrect. Defendants concede that a salary of $50,000 to $60,000 per year would

yield a present cash value of $607,000, but they argue that such an award is not supported

by the evidence.

¶ 114 " 'Where the right of recovery exists the defendant cannot escape liability because

the damages are difficult of exact ascertainment. *** The rule is, that while the law will

not permit witnesses to speculate or conjecture as to possible or probable damages, still

the best evidence which the subject will admit is receivable, and this evidence is often

nothing better than the opinions of persons well informed upon the subject under

investigation.' " Levin v. Welsh Brothers Motor Service, Inc., 164 Ill. App. 3d 640, 655

(1987) (quoting Johnston v. City of Galva, 316 Ill. 598, 603-04 (1925)).

¶ 115 Defendants cite to Christou v. Arlington Park-Washington Park Race Tracks

Corp., 104 Ill. App. 3d 257 (1982), for the proposition that it is reversible error to allow

testimony that is too speculative to be competent evidence of lost earnings. Id. at 260.
43
The plaintiff in Christou was unemployed at the time of injury but training to become a

bartender and had hopes to one day own a restaurant. The trial court allowed in

testimony related to what a restaurant owner would earn. The court reversed, holding

that plaintiff's mere ambition to own a restaurant was too remote and speculative to be the

basis for lost earnings damages. Id.

¶ 116 Similarly, in Carlson v. City Construction Co., 239 Ill. App. 3d 211 (1992), the

trial court allowed damage testimony that decedent plaintiff had an ambition to become

an engineer. The court found the testimony impermissible because there were too many

speculative contingencies. The court noted that although plaintiff had obtained his GED,

he had not yet attended, been accepted, or even applied to a college, all prerequisites to

becoming an engineer. Id. at 231-32. Defendants also cite Morris v. Milby for the

proposition that admissible damage evidence must be based on an attainable goal. Morris

v. Milby, 301 Ill. App. 3d 224, 229 (1998).

¶ 117 Here, the jury heard testimony from several witnesses regarding plaintiff's wage

loss damages. The jury heard from plaintiff's father that plaintiff had worked for him in

the past in a position similar to a millwright. Plaintiff's father was an automation

engineer whose business was building conveyor systems for bottling works. He testified

that he is familiar with the work of millwrights because he runs construction crews with

millwrights in factory settings. Plaintiff had worked with him in these settings. In his

opinion, plaintiff had the qualifications and the ability to be a millwright and had done

comparable work.

44
¶ 118 In addition, the jury heard testimony that at the time of the accident, plaintiff had

been working for several months as a salesman for defendant Metro East selling Kirby

Vacuums. The jury heard from a coworker that plaintiff was one of Kirby's top salesmen.

The coworker testified that employees were told that they could earn up to six figures

selling vacuums.

¶ 119 Defendants argue that plaintiff's vocational expert, Stephen Dolan, was

impermissibly allowed to testify to what plaintiff could have earned as an electrical

engineer or a millwright. We believe it was unlikely that plaintiff would have become an

engineer. He had not completed his GED at the time of the accident and had a poor

academic record in high school. In applying the foregoing cases, we agree that it would

have been error for the jury to consider damages based on plaintiff's becoming an

engineer. However, this argument mischaracterizes the record. Although there was a

passing reference to plaintiff's interest in becoming an engineer, the jury did not hear any

testimony regarding his potential earnings as an engineer.

¶ 120 Moreover, plaintiff's counsel did not mention or elicit any testimony regarding

engineering on direct examination of Dolan. It was defense counsel who brought the

issue before the jury on cross-examination by asking Dolan if plaintiff had told him that

he had wanted to be an engineer when he interviewed him, to which Dolan responded

that plaintiff did tell him that. However, Dolan did not testify to what plaintiff could

have earned as an engineer, or even if he thought it was likely that plaintiff could have

become an engineer.

45
¶ 121 Dolan reviewed plaintiff's medical records and high school transcripts, spoke with

family members, and interviewed and tested plaintiff. Dolan testified that plaintiff had a

life expectancy of 51 years. It was his opinion that after the accident, plaintiff was not

capable of holding down a full-time job, and he was pessimistic about part-time

employment. Dolan testified that plaintiff had been doing the equivalent of a millwright's

job when he worked for his father. Dolan characterized plaintiff's work as training to

assemble and fabricate production machinery, which is what a millwright does. He

testified that according to the United States Department of Labor, the average salary for a

millwright was approximately $50,000.

¶ 122 Dolan also gave the opinion that a salesman job, such as the one plaintiff held

selling Kirby Vacuums at the time of his accident, had been suitable for plaintiff and did

not require a high school degree. Dolan stated that even without a high school degree,

sales people can make a great deal of money. Dolan was asked to address evidence that

plaintiff had a sporadic work history prior to working with his father or for Metro East.

Dolan testified that this was typical for someone in his teens and early twenties and did

not change his opinion. Dolan testified that if plaintiff had not pursued a sales or a

millwright job, at a minimum, he would have had preinjury earnings of approximately

$15,000 per year.

¶ 123 Unlike the cases cited by defendants, the estimates of plaintiff's earning capacity

preinjury were not too remote or speculative. These estimates did not assume he would

be working in a new profession or need to obtain additional education. Both the sales

and millwright careers were ones that plaintiff had already demonstrated aptitude in. As
46
such, they were attainable goals. We believe that plaintiff's evidence was sufficient to

support the jury's award. Accordingly, we find the trial court did not err in allowing the

amount of lost wage damage award to stand.

¶ 124 D. Additional Allegations of Errors Requiring a New Trial

¶ 125 Imo's and Bethalto next contend several additional errors warranted a new trial.

We consider each claimed error in turn.

¶ 126 Defendants argue that the court erred in not granting a mistrial after interjecting

itself into the examination of two of defendants' witnesses and voicing its opinion

regarding the evidence and the competency of counsel.

¶ 127 "Wide latitude must be allowed a trial judge in conducting a trial and only where

his conduct or remarks are of the sort that would ordinarily create prejudice in the minds

of the jurors is reversible error present." Vinke v. Artim Transportation System, Inc., 87

Ill. App. 3d 400, 412 (1980). The court is permitted to question a witness to clarify and

elicit the truth, if done in a fair and impartial manner. Lopez v. Northwestern Memorial

Hospital, 375 Ill. App. 3d 637, 651-52 (2007). " 'The propriety of judicial examination of

a witness is determined by the circumstances in each case and rests largely in the

discretion of the trial court.' " Comito v. Police Board of the City of Chicago, 317 Ill.

App. 3d 677, 687 (2000) (quoting People v. Brown, 200 Ill. App. 3d 566, 576 (1990)).

¶ 128 The first interchange that defendants take issue with occurred during defense

counsel's questioning of Mrs. Wilson, one of the owners of Bethalto Pizza. After a

somewhat lengthy exam of Mrs. Wilson regarding the relationship between Imo's and

Bethalto, Mrs. Wilson testified that there was no involvement by Imo's in the operation of
47
her store. At this point, the court stated, "You really just rented the Imo's name, have you

not?" The remaining interchange between the judge and the witness and counsel evinced

the court's growing frustration with the repetition and the pace of the questioning. At one

point, the court stated: "Come on. Let's get to the meat of this case." Imo's counsel

responded, "I'll move on." Later, the court stated: "And it's getting to the point where this

trial–I do have a responsibility as a judge to keep this case going. There's been a lot of

wasted time, and there's been a lot of denying. Let's get to the point. Go ahead."

Counsel asked the witness several more questions and then announced, "That's all the

questions I have." At this point, the judge stated, "You're lucky."

¶ 129 The second interchange defendants complain of occurred during defense counsel's

questioning of psychologist Dr. Oliveri, a defense expert. Defendants take issue with the

following:

"THE COURT: What is your final upshot? What is your final question?

MR. CRANEY: My final question.

THE COURT: Why is he here?

MR. CRANEY: The final question are [sic] going to be are all of the–did

he on his tests to show unreliable reporting. *** Judge, I am trying to hurry.

THE COURT: I still want to know what he's on the stand for. What is he

here to say?

MR. CRANEY: I think he's just given his primary opinions.

THE COURT: I don't know if he–do you have a solid opinion on this?

THE WITNESS: Yes.
48
 THE COURT: Which is what?"

¶ 130 In Vinke v. Artim Transportation System, Inc., the appellate court rejected the

contention of error regarding the judge's recap of repetitious and immaterial testimony,

which concluded with the judge's statement, " 'so let's go on to something else.' " Vinke,

87 Ill. App. 3d at 412. Similarly, in Mattice v. Goodman, the appellate court found no

error in the judge's comment during an examination of a witness that the testimony was

" 'tiring.' " Mattice v. Goodman, 173 Ill. App. 3d 236, 244 (1988). The appeals court

noted that the comment described the presentation of the testimony rather than its

meaning. Id. Likewise, in Foerster v. Illinois Bell Telephone Co., the appeals court

rejected the contention of error in the judge's characterization of a witness's testimony as

" 'loose.' " Foerster v. Illinois Bell Telephone Co., 20 Ill. App. 3d 656, 663 (1974).

¶ 131 By contrast, in Pavilon v. Kaferly, a case cited by defendants, the judge

misconstrued testimony and made numerous statements reflecting a bias against the

plaintiff. Pavilon v. Kaferly, 204 Ill. App. 3d 235, 250-56 (1990). The judge stated that

the plaintiff had attempted to rape the defendant when such was not the case. Id. at 255-

56. The judge also made frequent sua sponte objections to the pro se plaintiff's questions

of witnesses and numerous disparaging remarks about the plaintiff. For example, the

judge stated that plaintiff was trying to fool the court and jury; plaintiff was trying to

sneak things in; plaintiff's apologies were insincere; and plaintiff gave the judge nothing

but problems since the trial started. Id. at 251-53. Further, the judge conveyed an

opinion regarding the credibility of a witness, telling that witness: " 'We know where

your sentiments lie. *** I don't care to have you add things that are not asked of you
49
because you think they may help your friend.' " Id. at 256. The appellate court found

that the cumulative effect of the conduct and remarks of the judge prejudiced plaintiff and

required reversal. Id.

¶ 132 Likewise, in Holton v. Memorial Hospital, the supreme court found a new trial

warranted when the judge admonished the jury that one of defendant's witnesses gave

inaccurate testimony on a collateral issue and was led to do so by defendant's attorneys

and plaintiff's counsel made repeated claims of defendant's fraudulent misconduct.

Holton v. Memorial Hospital, 176 Ill. 2d 95 (1997). There, the court found that these

errors had a strong probability of prejudicing the jury. Id. at 120.

¶ 133 We believe that the court's conduct in both interchanges in this case was more

similar to that in Vinke, Mattice, and Foerster, rather than Pavilon and Holton. In the

context of a lengthy trial, the judge's remarks were not excessive and of the nature that

would ordinarily cause prejudice. The record on appeal does not indicate an angry,

sarcastic, or demeaning tone.

¶ 134 While it may have been preferable if the judge had not made the remarks "You

really just rented the Imo's name" and "You're lucky," both could have just have easily

been said in jest and are ambiguous in meaning. The remarks could also be viewed as a

summation of Mrs. Wilson's testimony and position that Imo's had little to no control

over the operation of Bethalto's franchise operation. Even defendants hesitate to go so far

as to say that the judge's comments were a deliberate attempt to show advocacy, as Imo's

characterizes the effect of the court's behavior as "inadvertent."

50
¶ 135 It is important to view the interactions in the context of the witnesses' entire

testimony. Just prior to the challenged interchange involving Dr. Oliveri, he had been

testifying at length regarding the validity of the results of a battery of psychological tests

given by plaintiff's treating psychologist, Dr. Fucetola, and comparing those with the

results of testing he conducted. Following the conclusion of this testimony, plaintiff's

counsel asked: "I guess I just want to make sure I understand what you've told us after an

hour plus of this. Based on your testing, Matt may or may not have a brain injury that

has permanent impairment?" Dr. Oliveri replied: "Based on my testing, his current

presentation, the current test results and his current behavior can't all be attributed to the

residual after effect of brain dysfunction. If he's got brain dysfunction, it's at the mild end

of the continuum." Plaintiff's counsel then asked: "So we are not talking about the same

thing, I don't think. Didn't you just tell the jury that after all of your testing that there

were enough invalid results that you can't say for sure whether or not he has any

permanent impairment?" The witness responded, "That's correct."

¶ 136 In the context of Dr. Oliveri's lengthy and layered testimony, it was within the

court's discretion to request defense counsel to move testimony along and clarify

testimony that was obscure. In addition, we do not believe that the court's remarks

disparaged counsel or precluded him in any way from developing his line of questioning.

Following the interchange at issue, Dr. Oliveri continued testifying to his opinions to

conclusion.

51
¶ 137 Likewise, we find no merit in Imo's argument that the court shifted the burden of

proof as there was adequate evidence to support direct negligence and respondeat

superior theories.

¶ 138 Finally, we note that the jury was instructed as follows:

"It is your duty to resolve this case by determining the facts based on the evidence

and following the law given you in the instructions. Your verdict must not be

based upon speculation, prejudice or sympathy. My rulings, remarks or

instructions do not indicate any opinion as to the facts."

We believe that this admonition to the jury was adequate to remove any prejudicial

impressions.

¶ 139 We next consider Imo's contention that the court erred in allowing inquiry

regarding the insurance and indemnity agreement between Bethalto and Imo's. "The

admission of evidence is within the sound discretion of the trial court and a reviewing

court will not reverse the trial court unless that discretion was clearly abused." Snelson v.

Kamm, 204 Ill. 2d 1, 33 (2003).

¶ 140 Citing to Oliveira-Brooks v. Re/Max, Imo's argues that evidence of insurance may

be relevant in connection with an agency issue, but only if other evidence exists of a right

to control. Oliveira-Brooks v. Re/Max International, Inc., 372 Ill. App. 3d 127, 136

(2007). Imo's position is that there was no other evidence to establish an agency

relationship. Plaintiff responds that Imo's forfeited this issue when plaintiff offered into

evidence both the manual and the agreement without objection. Regardless of whether

Imo's forfeited this issue, we find no error. Because we have already determined that
52
there was additional evidence other than the existence of insurance to establish an agency

relationship, we find that the court properly ruled on this issue. "While not admissible to

show fault, the existence of insurance may be shown in connection with issues such as

agency, ownership, control, bias, or prejudice of a witness." Boettcher v. Fournie Farms,

Inc., 243 Ill. App. 3d 940, 945 (1993).

¶ 141 Imo's also contends that the court erred in allowing inquiry regarding defendants'

use of shared counsel. This court does not reach the merits of this argument, as that

contention has not been properly presented on appeal. There is no citation to any

authority that supports Imo's argument that referencing shared counsel was improper or

prejudicial. Statements unsupported by argument or by citation of relevant authority

need not be considered. Holmstrom v. Kunis, 221 Ill. App. 3d 317, 325 (1991); see also

Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) (providing that arguments must be supported by

citations to authority and that arguments not properly presented in an appellant's brief are

forfeited).

¶ 142 Next, we address both defendants' argument that it was error for the trial court to

exclude evidence of plaintiff's drug and alcohol use. Defendants claim that plaintiff's

drug and alcohol use was relevant to mitigation of damages and for impeachment

purposes.

¶ 143 We agree with plaintiff that the trial court did not abuse its discretion in excluding

evidence of plaintiff's use of alcohol or marijuana. We find that plaintiff's treatment for

alcohol and marijuana abuse eight years prior to the accident would have had no

probative value and could have had a prejudicial impact on the jury. Fultz v. Peart, 144
53
Ill. App. 3d 364, 378 (1986). Medical records related to the seizure plaintiff had on the

day of the accident and the seizure he had in 2011, some 18 months after the accident, did

not show any evidence of marijuana or alcohol use. No doctor testified that drug or

alcohol use before or after the accident in fact impacted his recovery, only that it might or

could impact a patient's recovery. After listening to argument and defendants' offer of

proof, and considering the matter overnight, the trial judge stated:

"I'm trying to avoid a trial within a trial. From his injuries, I mean, severe injuries,

this is not consequential in my opinion. I've been reading cases from early this

morning, and I believe to allow it in, the prejudicial effect would overcome any

reasonable inferences. And I think it would be too prejudicial. The cases seem to

say that, and I'm not going to allow it in."

¶ 144 The trial judge gave the ruling careful consideration. There is substantial case law

to support limiting references to alcohol or other drugs due to the potential for prejudice

far outweighing any probative value. See Bielaga v. Mozdzeniak, 328 Ill. App. 3d 291,

296 (2002) ("Evidence of drinking is so prejudicial that more than mere drinking must be

shown; actual intoxication with impairment of physical or mental capabilities is

required."); Roberts v. Norfolk & Western Ry. Co., 229 Ill. App. 3d 706, 716-17 (1992)

(court affirmed exclusion of evidence of alcohol and marijuana treatment, where there

was no evidence that plaintiff was using either at the time of the accident); Fultz, 144 Ill.

App. 3d at 378 (evidence of plaintiff's alcohol consumption barred despite claim that it

was relevant to life expectancy); Reeves v. Brno, Inc., 138 Ill. App. 3d 861, 870 (1985)

(error to permit references into evidence of plaintiff's marijuana use "because they were
54
introduced to persuade the jury that drug abuse rather than plaintiff's head injury caused

his mental deterioration").

¶ 145 Furthermore, defendants were permitted to ask plaintiff's treating doctor whether

he believed "that the plaintiff after the accident took some steps that reasonably would be

expected to have lowered his seizure threshold." Dr. Fucetola replied, "there are things

he may have done that could have affected that threshold." Defense counsel also elicited

the opinion that plaintiff disregarded his medical advice, which could have made it more

likely that he would have seizures later on. Plaintiff admitted this during his own

testimony.

¶ 146 Additionally, defendants were permitted an instruction on mitigation of damages.

The jury was instructed that it could find "the plaintiff failed to mitigate[d] [sic] his

alleged damages by taking actions that reasonably increased the risk of a seizure and

delayed his recovery, against medical advice," and "the plaintiff failed to exercise

ordinary care in obtaining medical treatment." Moreover, the verdict form reveals that

the jury awarded the plaintiff zero damages for "the increased risk of future seizures

resulting from the injury." We find that there was no need to inject inflammatory

evidence of drugs or alcohol into the case where the defendants effectively presented

other evidence regarding this ultimate issue.

¶ 147 Next, defendants claim it was error for the trial court to allow plaintiff to testify

that he was unable to pay for his medical care. Plaintiff states that this testimony was

offered to rebut defendants' argument that plaintiff was refusing to take medication to

treat his medical conditions. First we note that defendants did not provide any details
55
about the testimony. When we reviewed defendants' citation to the record, we found that

the testimony in question was not elicited by plaintiff, but rather by defense counsel on

cross-examination of plaintiff's father. We set forth that testimony in full:

"Q. Okay. Now, there's been testimony in this case, again, I'm jumping

ahead, that after the accident there was certain medicines that he couldn't afford to

take, at least that's what the allegation is. Has he approached you after the

accident and asked you and told you he didn't have the cash to pay for any drugs?

A. Well, he doesn't have any cash. You know, if Matt needed money for

drugs he would have to ask me for it."

Defendants cannot now complain of error that they invited. Oldenstedt v. Marshall

Erdman & Associates, Inc., 381 Ill. App. 3d 1, 14 (2008).

¶ 148 Notwithstanding, we agree with plaintiff that this testimony was proper rebuttal.

Plaintiff cites two cases precisely on point: Vanoosting v. Sellars, 2012 IL App (5th)

110365, ¶¶ 23-24 (reversible error not to allow relevant testimony on lack of health

insurance to rebut defendant's claim that plaintiff did not seek treatment because

condition had resolved); and Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412

(affirming admission of evidence that plaintiff stopped physical therapy because it was

too costly in response to defendant's suggestion that she stopped because she did not need

additional treatment). It is clear there is no error here.

¶ 149 Next, defendants claim it was error for the court to allow in a "Day in the Life"

video of plaintiff. Defendants state that they objected to the video as being untimely

produced and therefore it was improperly admitted, requiring a new trial. They cite to
56
Carlson v. General Motors Corp., 9 Ill. App. 3d 606 (1972), in support of their claim of

error. In Carlson, the court held that the admission of a test involving complex

engineering principles that was not timely disclosed in a faulty seat belt case against GM

required a new trial. Id. at 620. The court set forth the factors the trial court should

address when considering sanctions: surprise of the testimony to the opposing party, the

prejudicial effect of the testimony, the diligence of the opposing party in seeking

discovery, timely objection to the testimony, and the good faith of the party calling the

witness. Id. at 619-20. Defendants have wholly failed to develop their argument in

regard to these factors. Defendants offer no details of the discovery violation. They fail

to state if they were prejudiced, and if so, how they were prejudiced by this video.

Again, we have reviewed the record citations provided by defendants. While we note

that defense counsel did place an objection on record, there are no specifics as to the

basis for the objection. We are entitled to have cohesive arguments presented and not be

burdened with argument and research. Velocity Investments, LLC v. Alston, 397 Ill. App.

3d 296, 297 (2010). Defendants have given us no basis to find an abuse of discretion in

the trial court's decision to allow the video.

¶ 150 Bethalto also contends that a new trial is warranted because the cumulative effect

of these errors deprived defendants of a fair trial. Because we have found no error, we

need not consider this argument.

¶ 151 E. Jury Instructions

¶ 152 We next turn to jury instructions that the defendants contend were submitted in

error. It is within the trial court's discretion to determine which instructions will be
57
given, and its decision will not be disturbed absent an abuse of discretion. Colella v. JMS

Trucking Co. of Illinois, Inc., 403 Ill. App. 3d 82, 95 (2010) (citing Schultz v. Northeast

Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273 (2002)). Abuse of discretion

is dependent upon whether taken as a whole, the instructions fairly, fully, and

comprehensively inform the jury of the relevant legal principles. Id. (citing Schultz, 201

Ill. 2d at 273-74). If a party "fails to make a specific objection during the jury instruction

conference," the party forfeits the right to challenge that instruction on appeal. Id.

"Timely objection assists the trial court in correcting any problem and prohibits the

challenging party from gaining an advantage by obtaining reversal based on the party's

own failure to act." Id. "Furthermore, the doctrine of invited error prohibits a party from

complaining of an error on appeal ' "which that party induced the court to make or to

which that party consented." ' " Id. (quoting Oldenstedt v. Marshall Erdman &

Associates, Inc., 381 Ill. App. 3d 1, 14 (2008), quoting In re Detention of Swope, 213 Ill.

2d 210, 217 (2004)).

¶ 153 Imo's argues that the trial court erred in giving three of plaintiff's instructions over

Imo's objection and refusing several of Imo's instructions. Imo's complains of plaintiff's

instructions No. 5A, No. 6, and No. 7. In order to better understand both Imo's and

plaintiff's arguments, we thoroughly reviewed the transcript of the jury instruction

conference contained in the record.

¶ 154 We first turn to plaintiff's agency instruction No. 5A, based on Illinois Pattern Jury

Instructions, Civil, No. 50.10 (2006) (IPI Civil (2006)). We need not discuss the

specifics of this instruction because the record clearly supports plaintiff's claim that Imo's
58
did not object to the instruction as given. When asked by the court if there was any

objection, counsel stated, "No objection judge." Furthermore, the very modification that

Imo's now complains of on appeal–that plaintiff left out the last three paragraphs of

50.10–was endorsed by Imo's counsel. Plaintiff had earlier submitted a version

containing the three paragraphs at issue, but withdrew that one and submitted a revised

instruction upon Imo's counsel's suggestion: "Hey judge, on this one, we submitted a

similar instruction. We left out the last three paragraphs about independent contractor

*** I think bringing in the independent contractor language kind of muddies up the issues

because I really–I think the issue is just, you know, whether there is an agency

relationship or not." Here, not only did Imo's fail to object to the instruction as given, but

invited the error of which it now complains. Imo's is prohibited from complaining of an

error on appeal to which it both induced and consented. See Oldenstedt, 381 Ill. App. 3d

at 14; see also McMahon v. Sankey, 35 Ill. App. 341, 343 (1890). Imo's forfeited its right

to complain of error.

¶ 155 Second, we turn to plaintiff's burden of proof instruction, No. 6, based on IPI Civil

(2006) No. 21.02. When Imo's counsel was asked if he objected to instruction No. 6, he

stated: "Yes. I think it's overly complicated for the jury." The court stated: "I don't think

so. I'll give it over objection." There was no further statement made by Imo's counsel

regarding the nature of his objection to this instruction. Imo's now contends that the

instruction was erroneous because it did not include the second element of its burden of

proof on count VI–that plaintiff had to prove that he was injured, and that it did it not

include a statement that plaintiff had to prove the existence of an agency relationship.
59
We agree with plaintiff that Imo's failure to articulate in any way what "overly

complicated" meant made the objection so vague as to be meaningless and did not

preserve the claim of error for appeal. Colella, 403 Ill. App. 3d at 95. In order to

preserve an objection to an instruction, the objection must be set forth with specificity so

that the trial court knows the specific nature of the objection before ruling. Auton v.

Logan Landfill, Inc., 105 Ill. 2d 537, 550 (1984). Imo's has forfeited its right to complain

of error.

¶ 156 Third, we turn to plaintiff's issues instruction No. 7, based on IPI Civil (2006) No.

20.01. Imo's stated objection at trial, as it is on appeal, was that there was insufficient

evidence adduced at trial regarding the existence of an agency relationship between Imo's

and Bethalto to support the giving of this instruction. The trial court, in the exercise of its

discretion, must instruct the jury on all issues it finds supported by the evidence. Flynn v.

Golden Grain Co., 269 Ill. App. 3d 871, 880 (1995). This court has already determined

that there was sufficient evidence to support a jury's verdict based on an agency theory.

We thus find that no error was committed in giving an instruction based on this theory.

¶ 157 Next, Bethalto and Imo's both argue that the trial court erred in giving several

instructions to the jury related to certain elements of plaintiff's claim for damages,

including Nos. 17, 18, 21, 22, 23, and 27. Defendants contend that these instructions

were given over objection and not supported by sufficient evidence. We address each

instruction in turn.

¶ 158 Instruction No. 17 was plaintiff's damage instruction, based on IPI Civil (2006)

No. 30.01, "Measure of Damages," and further instructing on the various elements of
60
damages. Defendants objected to inclusion of the phrase "aggravation of any pre-existing

ailment or condition" in the main body of the measure of damage instruction. Defendants

further objected to the inclusion of the following elements of damages: (1) disability

experienced and reasonably certain to be experienced in the future (IPI Civil No.

30.04.01); (2) expenses for medical care, treatment, and services reasonably certain to be

received in the future (IPI Civil (2006) No. 30.07); (3) the value of earnings lost and the

present cash value of the earnings reasonably certain to be lost in the future (IPI Civil

(2006) No. 30.07); and (4) increased risk of future seizures resulting from the injury (IPI

Civil (2006) No. 30.04.03).

¶ 159 We have addressed in detail the sufficiency of evidence as to the factor of

"aggravation of any pre-existing ailment or condition" and each of the above elements of

damages in our earlier discussion of the defendants' motion for remittitur or a new trial on

the issue of damages. We need not revisit this question. A party is entitled to

instructions on any theory of the case that is supported by the evidence. Mikolajczyk v.

Ford Motor Co., 231 Ill. 2d 516, 549 (2008); Dillon v. Evanston Hospital, 199 Ill. 2d

483, 505 (2002). All that is required in giving an instruction is some evidence to justify

the theory, and the evidence need not be substantial. Dillon, 199 Ill. 2d at 505; Heastie v.

Roberts, 226 Ill. 2d 515, 543 (2007). Suffice it to say that we find that plaintiff presented

sufficient evidence on these issues to justify a corresponding jury instruction.

¶ 160 Instruction No. 18, based on IPI Civil (2006) No. 30.21, states: "You may not

deny or limit the plaintiff's right to damages resulting from this occurrence because any

injury resulted from an aggravation of a preexisting condition or a preexisting condition
61
which rendered the plaintiff more susceptible to injury." As we have already stated in

discussing instruction No. 17 that there was sufficient evidence on the factor of a

preexisting condition, we need not address this issue again.

¶ 161 Instruction No. 21 addresses future damages for plaintiff's injuries, medical, or

caretaking expenses. The sufficiency of evidence on these damages has already been

addressed in our discussion of instruction No. 17.

¶ 162 Instruction No. 22 addresses loss of plaintiff's future earnings damages. The

sufficiency of evidence on these damages has already been addressed in our discussion of

instruction No. 17.

¶ 163 Defendants next challenge plaintiff's instruction No. 23. We set out the totality of

the jury instruction conference regarding that instruction:

"THE COURT: We're now ready for 23.

MR. CRANEY: I'm not sure there's been sufficient evidence in the case to

talk about discount rates and present values, and I'm not sure that the foundation

has been laid to give this kind of instruction.

MR. DRIPPS: Well, are you withdrawing a claim that future earnings

should be reduced to present value?

MR. CRANEY: No.

MR. DRIPPS: Because the instruction–I mean they need to be told how to

do it.

THE COURT: I'm going to give 23. It looks okay. Given over objection."

62
¶ 164 The defendants have complained of numerous errors in the submission of this

instruction, but have not set out or stated what the instruction was. They complain that

there was insufficient evidence adduced at trial regarding damages for future earnings,

that it was a nonpattern instruction that did not correctly state the law, and that it should

not have been given because there was a pattern instruction on point which should have

been given instead. We are unable to decipher the points and arguments from the little

information that we are given, which hinders our consideration of this issue. Velocity

Investments, LLC, 397 Ill. App. 3d at 297.

¶ 165 We note, however, that Mr. Craney's only objection to the instruction at trial

related to the sufficiency of the evidence to support an instruction on discount rates and

present values. Defendants have forfeited the right to further complain by not making

these additional objections at the jury instruction conference. See Schultz, 201 Ill. 2d at

273. We find no error, as we have already ruled on the sufficiency of the future earnings

damages evidence. We further note as a point of interest that the very instruction

defendants claim should have been given instead, IPI Civil (2006) No. 34.02, was in fact

given by plaintiff, as pointed out in his citation to the record.

¶ 166 Finally, defendants complain of instruction No. 27, plaintiff's verdict form A, on

the basis that it contained the same elements of damage in plaintiff's No. 17, which

defendants claim were not supported by the evidence. As we have already determined

that there was no error in plaintiff's No. 17, we find no error in plaintiff's No. 27 for the

same reasons.

¶ 167 For the foregoing reasons, we affirm the judgment of the trial court.
63
¶ 168 Affirmed.

¶ 169 JUSTICE SPOMER, dissenting:

¶ 170 I respectfully dissent. I see three major problems in this case. First, in my

opinion, the record reflects that the defendants were deprived of the fundamental right to

a fair trial despite the fact that the circuit court was made aware of collusion occurring

during voir dire between the plaintiff and nominal defendants in the case whom the

plaintiff planned to voluntarily dismiss from the case after the jury was selected. I do not

believe the circuit court could in good conscience and in accordance with fundamental

principles of justice condone such behavior nor should this court affirm a verdict

rendered by a jury that was selected in such a manner. Second, I believe that Imo's was

deprived of a fair trial when the circuit court questioned Bethalto's owner in a manner

that indicated its bias on the issue of Imo's liability. Finally, I believe Illinois law

provides no basis for a finding that Imo's, as franchisor, had a duty to protect the plaintiff

from an accident caused by a driver employed by its franchisee. Accordingly, for the

specific reasons that follow, I would vacate the judgment against Imo's and remand with

directions that judgment be entered in its favor. Furthermore, I would reverse the

judgment against Bethalto for want of a fair trial and remand for a new trial on damages,

as Bethalto has admitted its vicarious liability for Lyerla's admitted negligence.

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¶ 171 1. Conduct of Voir Dire

¶ 172 I believe it is important to set forth in detail the colloquy between the circuit court

and counsel during voir dire so it is clear that the circuit court had specific information

that would lead any reasonable judge to understand that collusion was occurring in jury

selection between the plaintiff and nominal defendants who were voluntarily dismissed

from the case by settlement the following day. The record clearly reflects that the

plaintiff's counsel instructed counsel for Metro East Distributing to exercise one of its

peremptory strikes on juror No. 9, and Metro East did so. Counsel for Greene and Yelton

previously exercised their two strikes on two jurors that the plaintiff unsuccessfully

moved to strike for cause. Counsel for Bethalto and Imo's stated on the record as

follows:

"Counsel for Metro East and Counsel for Jeremiah Green and Jason Yelton have

met with Plaintiff's Counsel in the back room for some period of time before this

started. Plaintiff's Counsel just instructed Counsel for Metro East as to how to

exercise their strike. It's clear to me that what's happened is there's going to be a

deal cut here where they are either going to be dismissed, even though one doesn't

have insurance and probably shouldn't have been in the case to start with and one

has tendered witness[ 1] before today, there's been some sort of deal struck where

1
I believe that this is a transcription error and that counsel stated that "one has

tendered limits before today," indicating that one of the nominal defendants had already

tendered its policy limits before voir dire began.

65
 they are going to basically use their strikes for the plaintiff, which puts a distinct

disadvantage on the Defense in this case. I'm moving for a mistrial. I've never

seen any kind of gamesmanship like this. And that's my record."

¶ 173 The circuit court responded, "Okay. The motion is denied," and continued with

the voir dire. Counsel for Bethalto and Imo's then stated, "Let the record reflect that I'm

going to give time for[ 2] the plaintiff to continue to pass instructions to the other

defendants." The court stated, "It's been done before," and continued with voir dire.

¶ 174 The next day, during the hearing on the joint motion for a good-faith finding of

settlement, counsel for the defendants renewed their objections to the collusion during

voir dire by stating as follows:

"I think it's all but been admitted here that there was an agreement that was entered

into whereby the policy limits, which were tendered weeks ago, would be accepted

after we had already started selecting a jury, in exchange for some sort of

agreement whereby the Defense would throw their strikes the way of the plaintiff.

*** This effectively made a situation where the remaining Defendants who will

be in the case, ended up with four strikes, four peremptory strikes, and the

Plaintiffs had at their disposal 12 peremptory strikes. That violates due process. I

2
I believe that this a transcription error and that counsel for Bethalto and Imo's was

indicating that the plaintiff was continuing to pass instructions to the nominal defendants

on how to exercise their peremptory challenges and that time was being given for them to

do so.

66
 made a Motion for Mistrial, I am renewing our Motion for Mistrial. That can't be

the purpose of the rule. Essentially the Plaintiffs were allowed to, at will, choose

the jury they selected. *** This motion for Good Faith Finding basically says that

the release is, the consideration is for collective payment of $20,000. Well, that's

not in fact true. It appears to me that the consideration that is being paid here

today was $20,000 plus an agreement to stay in the case long enough to throw the

strikes, these additional four strikes, to the Plaintiff, to give them an unfair

advantage in this case."

¶ 175 Following this colloquy, the circuit court indicated, "I'm not concerned about the

strikes."

¶ 176 I cannot concur with the majority's finding of forfeiture under the egregious

circumstances of this voir dire. Although the defendants, in hindsight, perhaps should

have couched their objections to what was transpiring in the form of a request for a

reallocation of the challenges, it is not surprising that it was difficult for counsel to

discern the proper motion to make in the wake of, in my opinion, previously unheard of

and mortifying conduct on the part of the plaintiff's counsel and the nominal defendants.

It is clear from the record that the defendants brought to the circuit court's attention the

fact that the nominal defendants were no longer on the "same side" as contemplated by

section 2-1106 of the Code of Civil Procedure (735 ILCS 5/2-1106 (West 2010)), and

that accordingly, the allocation of the peremptory challenges among the defendants was

no longer equal. In essence, the defendants who were left to try the case had 4

peremptory challenges, and the plaintiff had 12. I believe these circumstances distinguish
67
this case from those cited by the majority for the proposition that the defendants must

show that a biased or unqualified juror was empanelled. The issue at hand involves the

equal apportionment of peremptory challenges between the plaintiff and the defendants,

not whether a particular juror was objectionable. The record reflected a clear violation of

section 2-1106, the circuit court was made aware of it, and I would find that the circuit

court's failure to ensure that the voir dire was conducted in accordance with law requires

a new trial.

¶ 177 2. Imo's Liability

¶ 178 I also disagree with the majority's analysis that Imo's motion for a summary

judgment, motion for a directed verdict, and motion for a judgment notwithstanding the

verdict were properly denied. I believe the record is clear that Lyerla was not an

employee or agent of Imo's, actual or apparent, did not owe a general duty to protect the

plaintiff, and did not voluntarily assume such a duty. I will address each theory of

liability in turn.

¶ 179 a. Respondeat Superior - Actual Agency

¶ 180 "The doctrine of respondeat superior allows an injured party to hold a principal

vicariously liable for the conduct of his or her agent." O'Banner v. McDonald's Corp.,

273 Ill. App. 3d 588, 592 (1995) (citing Moy v. County of Cook, 159 Ill. 2d 519, 523

(1994)), rev'd on other grounds, 173 Ill. 2d 208 (1996). "An agency relationship is a

consensual one between two legal entities whereby: (1) the principal has the right to

control the conduct of the agent, and (2) the agent has the power to effect the legal

relations of the principal." Id. "Whether an actual agency has in fact been created is
68
determined by the relations of the parties as they exist under their agreements or acts,

with the question being ultimately one of intention." Id. (citing 3 Am. Jur. 2d Agency §

21 (1986)). "While the existence of any agency relationship is usually a question of fact,

it becomes a question of law when the facts regarding the relationship are undisputed or

no liability exists as a matter of law." Oliveira-Brooks v. Re/Max International, Inc., 372

Ill. App. 3d 127, 134 (2007). Here, I would find that, as a matter of law, Lyerla was not

an actual agent of Imo's. Lyerla testified that he worked for Bethalto, that his pay checks

came from Bethalto, and that Annette Wilson of Bethalto screened and hired him and was

his supervisor. He never had contact with anyone from Imo's. There is no dispute that

Lyerla and Imo's had no contractual relationship, and based on the various written

agreements between Imo's and Lyerla's employer, Bethalto, it is clear that those entities

intended to exclude any possibility of an agency relationship. See id. The franchising

agreement specified that Imo's and Bethalto are independent contractors and required

Bethalto to conspicuously identify itself at the premises of the store and in all dealings

with the public as an independently owned business. In addition, the operating manual

stated that Bethalto was responsible for its own day-to-day operations and the hiring,

training, and supervision of its employees. It also contained an indemnification clause

requiring Bethalto to indemnify Imo's from any and all liability arising out of the acts or

omissions of Bethalto's employees, and a mandatory insurance provision requiring

Bethalto to maintain insurance, with Imo's named as an additional insured, for its drivers'

liability as well as workers' compensation.

69
¶ 181 Moreover, I find no evidence in this record to support a finding that the conduct of

Imo's and Lyerla, or Lyerla's employer, Bethalto, demonstrated Imo's actual control over

Lyerla or the day-to-day operations of Bethalto sufficient to negate the intent of the

franchise agreement not to create a principal-agent relationship. See id.; see also

Salisbury v. Chapman Realty, 124 Ill. App. 3d 1057, 1061 (1984). While the manual

provided general system standards for Bethalto to follow, it has been recognized that

inherent in any franchise agreement is the need to protect the name, goodwill, reputation,

and the trademarks and service marks it creates, and the mere protection of a trade name

does not create an agency relationship. Oliveira-Brooks, 372 Ill. App. 3d at 135. An

actual agency relationship did not exist as a matter of law, and I believe the majority's

analysis to the contrary improperly focuses on Imo's right to make recommendations and

impose requirements on Bethalto as a franchisee, rather than its relationship with the

negligent party, Lyerla. For these reasons, I would find that the circuit court erred in

denying Imo's motion for a summary judgment, directed verdict, and judgment

notwithstanding the verdict as to the issue of respondeat superior based on actual agency.

¶ 182 b. Respondeat Superior - Apparent Agency

¶ 183 I next consider whether Imo's was entitled to a summary judgment, a directed

verdict, and a judgment notwithstanding the verdict on the issue of its vicarious liability

for Lyerla's conduct based on the doctrine of apparent agency. Apparent agency is based

on principles of estoppel. O'Banner v. McDonald's Corp., 173 Ill. 2d 208, 213 (1996).

"The idea is that if a principal creates the appearance that someone is his agent, he should

not then be permitted to deny the agency if an innocent third party reasonably relies on
70
the apparent agency and is harmed as a result." Id. Accordingly, a principal can be held

vicariously liable in tort for injury caused by the negligent acts of his apparent agent if

the injury would not have occurred but for the injured party's justifiable reliance on the

apparent agency. Id. It is clear from the record before us that the plaintiff's injury is in

no way related to his reliance on Lyerla being an apparent agent of Imo's. The plaintiff

was injured in an automobile accident that occurred randomly on a public roadway. The

doctrine of apparent agency is, as a matter of law, inapplicable to the case at bar, and

Imo's was entitled to a summary judgment, directed verdict, and judgment

notwithstanding the verdict on the theory that Lyerla was an apparent agent of Imo's.

¶ 184 c. Direct Negligence

¶ 185 Having found no basis for vicarious liability on the part of Imo's for the acts of

Lyerla, I also believe Imo's was entitled to a summary judgment, directed verdict, and

judgment notwithstanding the verdict on the issue of its direct liability to the plaintiff for

the injuries he sustained in this automobile accident because Imo's owed no duty to

protect the plaintiff from the injuries he sustained in this accident. I respectfully submit

that the majority does not follow the analysis of duty required by the Illinois Supreme

Court in Simpkins v. CSX Transportation Inc., 2012 IL 110662, ¶ 21, because the

majority does not make a legal determination of the threshold question as to whether

Imo's committed an act or omission that contributed to a risk of harm to the plaintiff prior

to weighing the factors of foreseeability, likelihood of injury, and the burden on the

defendant. Instead, the majority accepts the plaintiff's allegations as true and moves

directly into an analysis of the four factors. These allegations are that Imo's contributed
71
to a risk of harm to the plaintiff by: (1) requiring Bethalto to engage in pizza delivery; (2)

establishing an unusually large delivery area for the Bethalto store; (3) requiring "timely"

delivery; (4) requiring Bethalto to have Lyerla sign a contract stating that he could be

terminated for failing to deliver pizzas expeditiously; and (5) creating a financial

incentive for drivers to drive at unsafe speeds. Having considered the entire record, I

believe that these alleged actions on the part of Imo's are insufficient, in law and in fact,

to support a finding that Imo's contributed to a risk of harm to the plaintiff, and I consider

them each in turn.

¶ 186 I begin with the contention that Imo's requirement that its franchisees engage in

pizza delivery constitutes an act that contributed to a risk of harm to the plaintiff. I would

decline to so hold. All of the cases cited by the plaintiff in support of its contention that

Imo's requirement that franchisees engage in pizza delivery contributed to a risk of harm

to the plaintiff involved entities that directly created a uniquely dangerous situation. See,

e.g., Michel v. O'Connor, 26 Ill. App. 2d 255 (1960) (motorcycle club racing event on a

frozen lake). In this case, requiring franchisees to deliver is tantamount to a requirement

that the franchisees engage in an everyday activity: operating a vehicle on a public

roadway. I cannot support a holding that any franchisor who proposes a business model

involving delivery of food assumes a duty to all motorists who come into contact with its

franchisees' employees.

¶ 187 Next I consider the plaintiff's contention that because Imo's created a large

delivery area for the Bethalto store, it contributed to a risk of harm to the plaintiff. I find

this contention to be belied by the record. Imo's assigned a protected delivery territory of
72
a three-quarter-mile radius from each franchise in which that store is guaranteed to

operate without the competition of other Imo's restaurants. Individual franchisees were

allowed to operate outside of the assigned delivery territory at their discretion as long as

they did not operate within the protected territory of another Imo's franchise. Bethalto's

owner, Mrs. Wilson, testified at trial that she chose to deliver to a larger area than that

assigned by Imo's at her own discretion. Accordingly, I find no act on the part of Imo's in

relation to the delivery area that would have contributed to any risk of harm to the

plaintiff.

¶ 188 I now turn to the plaintiff's contention that Imo's required "timely delivery" on

the part of franchisees, which contributed to a risk of harm to the plaintiff. My

examination of the record also belies this assertion. The manual is replete with

references to the quality of the product and the safety of delivery above all else. The

manual states: "When a customer calls, it is important they get a made-to-order pizza as

soon as possible. But we would never sacrifice quality for speed." In addition, the

manual explicitly states, "You must never advertise or stipulate to drivers that a delivery

must be accomplished within a specified time of when an order is received." Finally, all

references to "timely" or "efficient" delivery in the driver contract form in the manual

equally emphasize safety. I would decline to impose a duty based on the language of the

manual, which does not require franchisees to deliver within any specific time frame.

¶ 189 For the same reasons, I do not find that Imo's created a risk of harm to the plaintiff

by requiring Bethalto to utilize a driver contract stating that a driver could be terminated

for failing to deliver pizzas expeditiously. Imo's had no authority to terminate Lyerla's
73
employment with Bethalto for any reason. The manual stated that each franchisee was

solely responsible for establishing its own employment practices and guidelines for hiring

drivers, and Imo's had no right to control the franchisee's employees. Bethalto's owner,

Mrs. Wilson, testified that she was responsible for hiring, supervising, and disciplining

Bethalto's employees without any involvement from Imo's. Again, any requirement that

a delivery be made "timely" was qualified by the requirement that the delivery also be

made safely. The driver contract stated:

"Should Driver at any time, refuse, neglect, or fail in any respect to perform

the work with safety and expedition, or default in the performance of this

Agreement, then Company, without prejudice to any other right or remedy, may

terminate Driver's services under this agreement or oral or written notice to

Driver."

¶ 190 The driver contract consistently emphasized safety above all, stating that:

"Driver acknowledges Company's policy that the safety of the Driver and others is

of primary concern and that Driver will not jeopardize his or her safety of others

for any reason."

¶ 191 The safe work practices for drivers states in capitalized text:

"KEEP IN MIND THAT YOUR PRIMARY OBJECTIVE IS YOUR SAFETY

AND THE SAFETY OF OTHERS. DON'T EVER PUT ANYTHING AHEAD

OF SAFETY. Driver agrees to use his or her best efforts to deliver the pizzas and

other menu items in a good workmanlike manner in a timely fashion, taking all

safety precautions and obeying all laws. *** Driver acknowledges Company's
74
 policy that the safety of Driver and others is of primary concern and that Driver

will not jeopardize his or her safety or the safety of others for any reason. Driver

will at all times wear a seat belt and operate his or her motor vehicle in a safe

manner, in accordance will all laws and rules of the road. *** Driver

acknowledges that Company is a franchisee of Imo's Franchising Inc. and that

his/her employment is only with Company, and not Imo's Franchising, Inc."

¶ 192 I would find that the driver contract required by Imo's did not contribute to a risk

of harm to the plaintiff.

¶ 193 Finally, I consider whether Imo's suggestions for methods its franchisees could use

to compensate their drivers created a risk of harm to the plaintiff. These suggestions

included allowing the drivers to keep all or part of the delivery fee charged for each

delivery, allowing the drivers to keep all or part of any tips that were given, paying the

drivers an hourly wage, and compensating drivers with a gas or mileage allowance, or

any combination of those methods. Franchisees such as Bethalto could choose to adopt

any or all of these methods of compensation for its drivers or pay its drivers according to

its own policies. The only requirement that Imo's imposed is that drivers make at least

minimum wage. This requirement was imposed on Bethalto and not the drivers. I find

nothing in Imo's suggestions for compensating drivers that increased the risk of harm to

the plaintiff.

¶ 194 Generally, businesses do not owe an affirmative duty to protect or rescue a

stranger, but must guard against injuries which naturally flow as a reasonably probable

and foreseeable consequence of an act. Simpkins, 2012 IL 110662, ¶ 19. Here, I have
75
examined all of the plaintiff's contentions in this regard and have found no act or

omission on the part of Imo's that contributed to a risk of harm to the plaintiff. Because

Imo's has not created a risk of harm to the plaintiff, a duty on the part of Imo's to guard

against the plaintiff's injuries arises only if a legally recognized "special relationship"

existed between them. See id. ¶ 21. No such relationship exists in this case.

¶ 195 The remaining theory of direct liability that I must address is the majority's finding

that Imo's voluntarily assumed a duty to protect the plaintiff when it imposed

qualifications for drivers on Bethalto and then reserved the right to make inspections and

inquiries and to enforce compliance with suggestions or requirements set forth in the

manual. I find no support for this assertion under existing case law. The manual made

clear that its minimum driver's qualifications were imposed by insurance. It is also

important to note that the statements in the manual regarding the right to make

inspections made no specific mention of the driver's qualifications, and I believe it is

important to set forth this language in detail:

"In order to maintain the public image and reputation of the Imo's Pizza System,

and to maintain standards of quality, appearance and service of Imo's franchises,

we may use various methods to monitor each franchisee's compliance with the

high Imo's Pizza System standards. Such methods include, but are not limited to:

Store inspections/Inquiries–We have the right to make inspections and inquiries

of your store during normal business hours without notice. If we find areas that

need improvement, we have the right to make certain recommendations and

suggestions to you, and in some cases, we may require you to make certain
76
 changes or improvements. You agree to make those changes and improvements

that we may require of you. *** You and your employees must cooperate with us

and provide us with any requested information in connection with such inspections

and inquiries. Any suggestions, recommendations, or requirements we may

impose as a result of our inspections is not a substitute for your responsibility, as

the franchisee, for the manner and means by which the day-to-day operations of

your Imo's pizza parlor is conducted. Furthermore, we do not warrant the

appropriateness of any such suggestions, recommendations, or requirements."

(Emphasis in original.)

¶ 196 Although Imo's made its driver qualifications mandatory due to the imposition of

these requirements by insurance, and Imo's reserved a right to inspect and monitor

Bethalto's compliance with the manual in general, Imo's did not specifically reserve the

right to micromanage Bethalto's employment records and did not take any affirmative

action to ensure compliance with the standards for drivers. See Chelkova v. Southland

Corp., 331 Ill. App. 3d 716, 724 (2002) (franchisor did not exercise control over

franchisee day-to-day operations and did nothing to enforce its security

recommendations); accord Decker v. Domino's Pizza, Inc., 268 Ill. App. 3d 521, 528

(1994) (franchisor created a franchise consultant to ensure compliance with its security

standards) and Martin v. McDonald's Corp., 213 Ill. App. 3d 487, 491 (1991) (franchisor

checked for security problems at franchisee stores through a regional security manager

who would follow up on whether recommended security procedures had been followed).

The record reflects that Imo's never undertook to inspect Bethalto's records for
77
compliance with the insurance requirements regarding drivers' qualifications or to

monitor Bethalto in any fashion. With regard to hiring and managing employees, the

manual provided:

"[S]ince you control day to day operations of your business, you are responsible

for the acts of your employees ***. You are solely responsible for all employment

decisions and functions of your store, including hiring, firing, training, wage and

hour requirements, recordkeeping, supervising and disciplining of your

employees. *** We do not have any responsibility or duty to implement a

training program for your employees and we do not have a responsibility or duty

to instruct your employees about matters of safety and security in your Store or in

your delivery area. You are solely responsible for recruiting, hiring, training,

scheduling for work, supervising and paying those who work in your Store, and

they shall for all purposes be considered your employees, and not our agents or

employees. We expressly disclaim any right to control your employees, and again

reiterate that the control of your employees rests solely with you as the franchisee

and owner and operator of your Store. We neither have the right nor will ever be

in a position to control the manner and method of hiring or supervising your

employees. By providing advice or suggestions with respect to your employees,

or by providing any advice or suggestions with respect to other matters affecting

the operations of your Store, or by providing you forms that we have developed,

we do not assume any of your responsibilities or duties."

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¶ 197 I would decline to hold that the reservation of a right to monitor a franchisee is

tantamount to a voluntary undertaking to do so. I also note that a failure to inspect

Bethalto's records or negligent inspection of Bethalto's records was not pled in the

complaint as a basis for Imo's alleged negligence. For all of these reasons, I would find

that, as a matter of law, Imo's did not owe a duty to the plaintiff in this case, and was

entitled to a summary judgment, directed verdict, and judgment notwithstanding the

verdict on the plaintiff's direct negligence claim against it.

¶ 198 3. Questioning by the Circuit Court on Issue of Imo's Liability

¶ 199 Finally, although I would find that Imo's is entitled to a judgment as a matter of

law in its favor because it had no duty to protect the plaintiff from the conduct of

Bethalto's employee, I also believe that the circuit court's questioning of one of the

owners of Bethalto Pizza, Annette Wilson, during defense counsel's examination of her

indicated bias on its part regarding the issue of Imo's liability and constitutes reversible

error. Mrs. Wilson testified that she made the decisions to hire drivers for Bethalto Pizza

and sat in on interviews and that no representative of Imo's participated. As far as

operations of Bethalto Pizza, Mrs. Wilson testified that Imo's had no involvement. At

this point, the circuit court had the following colloquy with Mrs. Wilson during counsel

for Imo's examination:

"THE COURT: You really just rented the Imo name, have you not?

THE WITNESS: Pretty much.

THE COURT: Without Imo there couldn't be you; without you there

couldn't be a driver, so no one is responsible?
79
 THE WITNESS: Well, I have taken the responsibility.

THE COURT: How about Imo?

THE WITNESS: I don't–I don't see how they could possibly be

responsible.

THE COURT: Have you discussed this with Imo?

THE WITNESS: Have I discussed what with Imo?

THE COURT: This case. You are–I know you are going to object, and the

objection is overruled. But ask your next question.

COUNSEL: I was not going to object, Your Honor.

THE COURT: Come on. Let's get to the meat of this case.

COUNSEL: I'll move on.

THE COURT: Is there an agency relationship?

WITNESS: Is there what?

THE COURT: An agency relationship?

COUNSEL: Between Bethalto Pizza and the driver?

THE COURT: I just asked the general question. Is there an agency

relationship?

THE WITNESS: Between the store and Imo?

THE COURT: You can't answer that, right?

THE WITNESS: I don't–I don't understand the question.

THE COURT: Yes. You don't–

80
 THE COURT: There's been a lot I don't understand. You get a pack of

material an inch thick?

THE WITNESS: Right. Right.

THE COURT: It seems like no one has read it.

THE WITNESS: I have read it, but I did not memorize it.

THE COURT: And Mrs. Imo, she doesn't know anything about it either.

And it's getting to the point where this trial I do have a responsibility as a judge to

keep this case going. There's been a lot of wasted time, and there's been a lot of

denying. Let's get to the point. Go ahead.

COUNSEL: Okay. And your Bethalto Pizza is not denying that Ken

worked for them at the time of the accident, correct?

THE WITNESS: That's correct.

COUNSEL: Okay. He was–to your understanding he was driving pizzas in

the course of his employment at the time of the accident?

THE WITNESS: That's correct.

COUNSEL: And as far as the relationship with Imo they don't have any

direct control over day-to-day operations?

THE WITNESS: No. I own the franchise.

COUNSEL: Okay. All right. That's all the questions I have.

THE COURT: You're lucky."

¶ 200 I respectfully dissent from the majority's characterization of this line of

questioning on the part of the circuit court. I do not believe that the circuit court's
81
remarks "could have been just as easily said in jest" or that they are ambiguous in

meaning. Nor do I believe that the remarks could also be viewed as a summation of Mrs.

Wilson's testimony. Instead, I believe the questioning indicated bias on the part of the

circuit court regarding Imo's liability for the plaintiff's injuries, and deprived Imo's of a

fair trial.

¶ 201 In conclusion, and for all of the foregoing reasons, I would vacate the judgment

against Imo's and remand with directions that judgment be entered in its favor.

Furthermore, I would reverse the judgment against Bethalto and remand for a new trial

on damages, as Bethalto has admitted its vicarious liability for Lyerla's admitted

negligence.

82
 2014 IL App (5th) 120245

NO. 5-12-0245

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
____________________________________________________________________________________________

MATTHEW BRUNTJEN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. )
)
BETHALTO PIZZA, LLC, d/b/a Imo's Pizza; and )
IMO'S FRANCHISING, INC., )
) No. 10-L-577
Defendants-Appellants )
)
(Kenneth Lyerla; Lisa Lyerla; Jeremiah Greene; )
Jason Yelton; Metro East Distributing, Inc.; ) Honorable
Leonard Cummings, Jr.; and Tresorella's, Inc., ) A. A. Matoesian,
Defendants). ) Judge, presiding.
____________________________________________________________________________________________

Opinion Filed: September 15, 2014
____________________________________________________________________________________________

Justices: Honorable Melissa A. Chapman, J.

Honorable Bruce D. Stewart, J.,
Concurs
Honorable Stephen L. Spomer, J.,
Dissents
____________________________________________________________________________________________

Attorneys Gordon R. Broom, Theodore J. MacDonald, Jr., Michael L. Young, HeplerBroom, LLC,
for 130 North Main Street, P.O. Box 510, Edwardsville, IL 62025; Roderick T. Dunne, Linda
Appellants J. Carwile, Karbal, Cohen, Economou, Silk & Dunne, LLC, 150 South Wacker Drive,
Suite 1700, Chicago, IL 60606 (attorneys for Imo's Pizza)

Russell K. Scott, Greensfelder, Hemker & Gale, P.C., 12 Wolf Creek Drive, Suite 100,
Belleville, IL 62226 (attorney for Imo's Franchising, Inc.)
____________________________________________________________________________________________

Attorneys Roy C. Dripps, Charles W. Armbruster III, Michael T. Blotevogel, Armbruster, Dripps,
for Winterscheidt & Blotevogel, 219 Piasa Street, Alton, IL 62002
Appellee
____________________________________________________________________________________________