2022 IL 126666
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 126666)
FLETCHER McQUEEN, Appellant, v. LAVONTA M. GREEN et al.
(Pan-Oceanic Engineering Company, Inc., Appellee).
Opinion filed April 21, 2022.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Anne M. Burke and Justices Garman, Neville, Michael J. Burke,
Overstreet, and Carter concurred in the judgment and opinion.
OPINION
¶1 At issue in this appeal is whether (1) an employer who admits liability under
the doctrine of respondeat superior may be independently liable for its own
negligence, even if the jury finds that its employee was not negligent, and (2) the
appellate court erred in granting the employer’s request for a new trial after
determining that the jury rendered legally inconsistent findings. For the following
reasons, we reverse the appellate court’s judgment.
¶2 BACKGROUND
¶3 Pan-Oceanic Engineering Company, Inc. (Pan-Oceanic), is a general contractor
located in Chicago, Illinois. During the relevant period, Pan-Oceanic employed
Lavonta M. Green. His responsibilities included hauling equipment that Pan-
Oceanic would need for its construction jobs.
¶4 On August 17, 2012, Green’s supervisor, Savinder Singh, 1 asked him to pick
up a skid steer—a piece of equipment commonly used for digging—from Patten
Industries, Inc. (Patten). The average skid steer weighs more than three tons. Upon
Green’s arrival, Patten employees loaded the skid steer onto a trailer. Green saw
that the skid steer had not been loaded properly, and he asked for it to be reloaded.
Patten employees refused. Green called Savinder to inform him that the skid steer
had not been correctly loaded. He described it as “crooked.” After speaking with a
Patten employee, Savinder told Green to “be safe” and to return to Pan-Oceanic
with the equipment.
¶5 At approximately 3 p.m., Green left with the skid steer and trailer and entered
the Eisenhower expressway. Because traffic was heavy, Green initially was driving
at a speed of 20 miles per hour. Traffic lightened as he approached the I-294
junction, and he accelerated to about 40 miles per hour. Green then looked in his
rearview mirror and saw that the skid steer and trailer were bouncing. As he moved
from one lane to another, Green stepped on the brakes, which caused his vehicle to
start spinning. The trailer swung into a car driven by Fletcher McQueen and injured
him.
¶6 McQueen filed a three-count complaint in the circuit court of Cook County,
naming both Pan-Oceanic and Green as defendants. In count I, McQueen alleged,
in part, that Green, as an employee of Pan-Oceanic, was negligent for operating his
vehicle on the highway with an improperly situated skid steer. In count II, McQueen
alleged that Pan-Oceanic was negligent for, among other things, failing to train
1
Pan-Oceanic’s president, Gulzar Singh, has the same surname. Therefore, we refer to them by
their first names.
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Green on how to respond to an unsafe load; ordering Green to take the load onto
the highway when the company knew, or should have known, that the load was in
an unsafe state; and failing to simply reject the load to prevent it from traveling on
the highway. In count III, McQueen sought punitive damages from both Green and
Pan-Oceanic. Regarding Pan-Oceanic, McQueen alleged, among other things, that
the company demonstrated a reckless disregard for the safety of others by ordering
Green to take the load on the highway when Pan-Oceanic knew, or should have
known, that the load was in an unsafe state.
¶7 Pan-Oceanic acknowledged that Green was its agent for purposes of this case.
The company further acknowledged that Green was acting within the scope of his
agency at all relevant times.
¶8 In May 2017, the case was tried before a jury. Defendants moved to bifurcate
the proceedings. In part, the trial court granted the motion. In the first proceeding,
the jury would hear all evidence regarding defendants’ conduct that could constitute
reckless disregard for the safety of others. After the evidence was presented and
after closing arguments, the jury would be given two special interrogatories to
determine whether defendants’ conduct amounted to willful and wanton
misconduct.
¶9 If the jury decided that one or both defendants had acted with willful and
wanton misconduct, or reckless disregard for the safety of others, plaintiff would
be allowed to present evidence on punitive damages in a subsequent hearing. At
that time, defendants’ financial positions would be admissible.
¶ 10 During the first proceeding, Green testified that he called Savinder on the day
of the accident because he was not sure whether the load was safe to transport.
When Savinder and employees from Patten advised him that he could safely
transport the skid steer and trailer, Green assumed that their assurances were
correct. Green also testified that he felt he had to follow his supervisor’s
instructions because otherwise he might get fired. According to Green, no one at
Pan-Oceanic had trained him how to respond if a skid steer was not loaded properly.
¶ 11 Pan-Oceanic’s president, Gulzar Singh, explained that the company, in part,
specialized in street and road construction. He testified that Pan-Oceanic held
regular meetings at which safety rules were discussed. Gulzar also testified that, in
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general, he relied on the company’s supervisors to make daily decisions,
particularly as it related to safety.
¶ 12 Gulzar testified that if Green had called his supervisor with a question about the
safety of a load, the supervisor should have ensured that he understood the problem
and how to fix the load. He further testified that Green was not the final
decisionmaker as to whether he would drive with a load. According to Gulzar,
Green was required to follow protocol that included calling his supervisor. Gulzar
also acknowledged that, if any of Pan-Oceanic’s employees had not been told that
they could lose control of an unstable load, that would be a reckless disregard of
safety rules.
¶ 13 Savinder testified that Green did not say that the load was unsafe when he called
him on the day of the accident. Instead, Green told him that the load looked crooked
or “funny.” Savinder did not ask what Green meant, nor did he understand the scope
of the problem. According to Savinder, he “was doing a few other things at the
time.” Savinder testified that he told Green to “let Patten take care of it.”
¶ 14 On May 9, 2017, the jury instructions conference was conducted. Among the
instructions that plaintiff tendered was Illinois Pattern Jury Instruction, Civil, No.
50.01 (approved Dec. 8, 2011) (hereinafter IPI Civil No. 50.01), which applies
when both a principal and an agent are sued and no issue as to agency exists. It
reads:
“The defendants are sued as principal and agent. The defendant [principal’s
name] is the principal and the defendant [agent’s name] is [his] [its] agent. If
you find that the defendant [agent’s name] is liable, then you must find that the
defendant [principal’s name] is also liable. However, if you find that [agent’s
name] is not liable, then you must find that [principal’s name] is not liable.” Id.
¶ 15 The notes on use for IPI Civil No. 50.01 add that,
“[i]f by the pleadings and evidence there is an issue of fact as to the liability
of the principal for his own acts independent of acts of the agent, then a separate
instruction appropriate to such independent basis of liability should also be used
and the last sentence of this instruction should be modified or stricken
accordingly.”
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Defendants initially questioned whether IPI Civil No. 50.02 instead applied, but
they ultimately acknowledged that IPI Civil No. 50.01 was appropriate.
¶ 16 Later in the conference, the parties realized that defendants had also included
IPI Civil No. 50.01 in their proposed instructions. The trial court observed that
defendants did not dispute that Green was Pan-Oceanic’s agent. Therefore, if the
jury ruled against Green, it had to rule against Pan-Oceanic as well. Yet, the court
also noted that plaintiff had raised allegations against Pan-Oceanic that did not rest
on respondeat superior, or vicarious liability, making it possible for the jury to rule
against Pan-Oceanic based on its own negligence. The court reserved its decision
on defendants’ jury instruction but stated that the parties were free to bring
alternative instructions.
¶ 17 Separately, as the parties discussed the verdict forms, defendants insisted that,
because plaintiff had sued Green both individually and as an agent of Pan-Oceanic,
each defendant should have its own verdict form. The trial court stated that, because
Green was Pan-Oceanic’s agent, there was “no conceivable way” that the jury could
find against Green but not the company. The court then noted that plaintiff
presented a failure to train theory against the company and, thus, it was possible for
the jury to find against Pan-Oceanic but not Green. At the same time, the court
suggested that “they rise and fall together because you’ve admitted that he’s your
agent.”
¶ 18 When the court and the parties again discussed the verdict forms the next day,
defendants stated, “I thought we had an instruction that any negligence of Pan-
Oceanic is negligence against *** Green and vice versa.” The trial court clarified
that, because Green was the company’s agent, his negligence could be attributed to
Pan-Oceanic; however, the court noted that there were allegations against Pan-
Oceanic that were not based on Green’s conduct. Nonetheless, the court stated that
there was no conceivable way the jury could find for Green, and against Pan-
Oceanic, because the company had admitted agency.
¶ 19 On May 10, 2017, the parties gave closing arguments. After the trial court
dismissed the jury, the court and the parties reviewed the jury instructions to
confirm that nothing was missing. Referencing IPI Civil No. 50.01, the court stated
that defendants were sued as principal and agent. Consequently, if Green was found
liable, the jury also had to find Pan-Oceanic liable. The court did not mention the
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last sentence of the instruction. Pan-Oceanic did not object to the omission of that
sentence.
¶ 20 The next day, the trial court gave the jury its instructions. In part, the court
instructed the jury that the word negligence meant “the failure to do something
which a reasonably careful person would do, or the doing of something which a
reasonably careful person would not, under circumstances similar to those shown
by the evidence.” Consistent with its proposal from the previous day, the court also
instructed the jury that, “defendants are sued as principal and agent. The defendant
Pan-Oceanic Engineering Co. Inc. is the principal and the defendant Lavonta Green
is its agent. If you find that the defendant Lavonta Green is liable, then you must
find that the defendant Pan-Oceanic Engineering Co. Inc. is also liable.” The court
further instructed that the expression “willful and wanton conduct” meant “a course
of action which shows an utter indifference to or conscious disregard for the safety
of others.”
¶ 21 The trial court instructed the jury that plaintiff claimed that he was injured and
sustained damages and that defendant Green was negligent by, among other things,
“fail[ing] to acknowledge and/or understand the risks associated with hauling an
improperly situated trailer on the rear of the skid-steer he was operating.” The court
instructed the jury that plaintiff claimed defendant Pan-Oceanic was negligent in,
among other respects, “[o]rder[ing] and/or permit[ting] *** Green to take the load
on the highway after Pan Oceanic [Engineering Company, Inc.,] knew or should
have known that it was in an unsafe state” and “[f]ail[ing] to reject the load and [to]
prevent it from leaving Patten Industries.”
¶ 22 At the close of the first proceeding, the jury found for plaintiff and against Pan-
Oceanic, but not against Green. The jury assessed damages in the amount of
$163,227.45. In response to the first special interrogatory, the jury determined that
Green had not acted with reckless disregard for the safety of others. In response to
the second special interrogatory, the jury found that Pan-Oceanic had acted with
reckless disregard for the safety of others.
¶ 23 In the second phase, Gulzar testified that Pan-Oceanic had retained earnings of
more than $2 million for each of the three years before trial. At the close of the
second proceeding, the jury awarded $1 million in punitive damages. On May 12,
2017, the trial court entered judgment on the verdicts.
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¶ 24 Pan-Oceanic filed a posttrial motion, asking the trial court to enter judgment
notwithstanding the verdict or to grant a new trial. Citing Gant v. L.U. Transport,
Inc., 331 Ill. App. 3d 924 (2002), Pan-Oceanic argued that, as a matter of law, it
could not be liable under theories of negligent training, supervision, or entrustment
because the jury rendered a verdict in Green’s favor. Pan-Oceanic further
contended that the jury’s verdicts, in favor of Green and against Pan-Oceanic, and
its answer to the second special interrogatory—finding that Pan-Oceanic had acted
with reckless disregard for the safety of others—were legally inconsistent and
against the manifest weight of the evidence.
¶ 25 Pan-Oceanic asserted that, “through the apparent unintentional oversight of
both parties and the court,” the jury was never instructed as to which party had the
burden of proof and what they had the burden of proving as to any of the counts.
Pan-Oceanic then argued that plaintiff’s failure to tender an issues instruction on
what specific acts constituted willful and wanton misconduct meant that he had
forfeited any claim for punitive damages. Pan-Oceanic also claimed that the trial
court erred in striking the second sentence of IPI Civil No. 50.01.
¶ 26 In response, plaintiff argued that, regardless of the jury’s verdict in favor of
Green, the evidence supported the verdict against Pan-Oceanic for its independent
willful and wanton misconduct. Plaintiff emphasized that the case went to the jury
on two distinct theories, one being that Pan-Oceanic failed to train Green how to
properly load a truck and then ordered Green to drive the truck despite knowing
that the load was unsafe. That theory was based on the conduct of Pan-Oceanic, not
Green. Plaintiff distinguished Gant on the ground that the claims against Pan-
Oceanic were not derivative of, or dependent on, Green’s fault. Further, noting that
it was not the trial court’s duty to prepare the jury instructions, plaintiff argued that
Pan-Oceanic had waived or forfeited any error based on the lack of instructions.
¶ 27 Additionally, plaintiff observed that the court gave the general burden of proof
instruction and an issues instruction before the jury’s first deliberation. Plaintiff
noted that Pan-Oceanic did not object to proceeding at the second phase without a
burden of proof instruction on specific issues. Because Pan-Oceanic “acquiesced in
the entire instructional process,” plaintiff argued that the plain error doctrine should
not be used to grant it relief. As to IPI Civil No. 50.01, plaintiff noted that the
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comments specify that the last sentence may be stricken where, as here, the plaintiff
makes an independent charge of negligence against the employer.
¶ 28 The trial court denied Pan-Oceanic’s posttrial motion. The court determined
that, unlike in Gant, the allegations of negligence and willful and wanton conduct
against Pan-Oceanic focused on fault attributable to the employer for its own
conduct, rather than a derivative claim. The evidence established that, although
Pan-Oceanic knew that the skid steer’s placement on the trailer was “crooked,” the
company nonetheless instructed Green to proceed with the load. The evidence also
showed that the company had not properly trained Green. Thus, the court found
that ample evidence supported the jury’s verdict. The court also noted that Pan-
Oceanic failed to tender an issues instruction for plaintiff’s claim for punitive
damages and, thus, forfeited the issue.
¶ 29 On appeal, the court held that, when a plaintiff is injured by a company’s
employee in a motor vehicle accident, the plaintiff cannot maintain a claim for
direct negligence against the employer where the employer admits responsibility
for the employee’s conduct under respondeat superior. 2020 IL App (1st) 190202,
¶ 42. The court reasoned that, once an employer admits responsibility for its
employee’s negligence, any liability alleged under an alternative theory, such as
negligent hiring, becomes irrelevant and should be dismissed. Id. Asserting that
other jurisdictions “take the same approach as Illinois, disallowing direct
negligence claims against the employer where the employer admits liability under
respondeat superior,” the appellate court “decline[d] to treat negligent training
differently from the other negligence claims that are barred once an employer
admits liability under respondeat superior.” Id. ¶ 44. The appellate court also
concluded that the jury’s findings—that Green was not negligent but Pan-Oceanic
acted with an aggravated form of negligence—were legally inconsistent, and thus,
the appellate court ruled that the trial court should have granted Pan-Oceanic’s
motion for a new trial. Id. ¶ 56.
¶ 30 Although the appellate court concluded that the legally inconsistent verdicts
alone warranted a new trial, it found that the state of the jury instructions
“compel[led] additional comment.” Id. ¶ 65. The appellate court acknowledged that
after the trial court reserved ruling on the burden of proof instruction that Pan-
Oceanic tendered, the company neither reasserted the need for a burden of proof
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instruction nor tendered the specific instruction that it argued was proper on appeal.
Id. ¶ 59. And though on appeal Pan-Oceanic argued that the trial court should have
given an issues instruction for willful and wanton conduct, it did not raise the issue
until its posttrial motion. Id. ¶ 62. Nonetheless, based on the totality of the errors it
found, the appellate court concluded that Pan-Oceanic had not received a fair trial.
Id. ¶ 65.
¶ 31 Justice Mikva dissented. She wrote that this court has never endorsed the
holding in Gant. Id. ¶ 71 (Mikva, J., dissenting). And to the extent that the majority
properly relied on Gant, she found that it had “unnecessarily and unfairly
extend[ed] application of the rule in that case beyond its principled parameters.” Id.
Justice Mikva observed that, in this case, there were bases of liability that rested
entirely on Pan-Oceanic’s own negligence and were not dependent on finding
Green negligent. Id. ¶ 72. Thus, she saw no inconsistency between the jury’s
finding that Pan-Oceanic acted willfully and wantonly and its finding that Green
was not negligent. Id. She also noted that Pan-Oceanic failed to object or tender
alternative instructions for the instructions it challenged on appeal, thereby
forfeiting any such challenges. Id. ¶ 74.
¶ 32 This court allowed plaintiff’s petition for leave to appeal. Ill. S. Ct. R. 315(a)
(eff. Oct. 1, 2020). We also allowed the Illinois Trial Lawyers Association and the
Illinois Defense Counsel to file amicus curiae briefs. Ill. S. Ct. R. 345 (eff. Sept.
20, 2010).
¶ 33 ANALYSIS
¶ 34 The primary issue in this appeal is whether an employer’s admission of
vicarious liability for its employee’s misconduct precludes a plaintiff from raising
claims of direct negligence based on the employer’s own conduct. The appellate
court concluded that it does and, on that basis, ruled that the verdicts were legally
inconsistent. Whether two verdicts are legally inconsistent is a question of law that
this court reviews de novo. Redmond v. Socha, 216 Ill. 2d 622, 642 (2005).
¶ 35 A related issue is whether the trial court erred in striking the last sentence from
IPI Civil No. 50.01, which would have instructed the jury that, if it found Green not
liable, it must also find Pan-Oceanic not liable. Whether a jury instruction
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accurately conveyed the law is also a question of law, which we review de novo.
Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 13.
¶ 36 Vicarious Liability Versus Direct Liability
¶ 37 At common law, an employee’s misconduct generally creates liability for his
employer in two ways: vicarious liability for the acts of the employee or direct
liability for the employer’s own acts. Vancura v. Katris, 238 Ill. 2d 352, 375 (2010).
Under the theory of respondeat superior, or vicarious liability, an employer may
be liable for his employee’s torts when those torts were committed within the scope
of the employment. Adames v. Sheahan, 233 Ill. 2d 276, 298 (2009). By contrast,
under a theory of direct negligence, the plaintiff alleges that the employer was itself
negligent. Vancura, 238 Ill. 2d at 375. In a direct negligence claim, the plaintiff
must prove that the employer’s breach of duty, rather than that of the employee,
was a proximate cause of the plaintiff’s injury. Id.
¶ 38 Courts nationwide are split on whether an employer’s acknowledgment of
vicarious liability for its employee’s conduct precludes a plaintiff from raising a
cause of action for direct negligence against the employer. The appellate court in
Gant relied on McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995) (en banc), the most
frequently cited decision holding that direct negligence claims are barred under
these circumstances. In McHaffie, as relevant here, the plaintiff claimed that the
defendant-employee negligently drove his employer’s truck and that the defendant-
employer was vicariously liable for the employee’s negligence. The plaintiff also
claimed that the employer had negligently hired and supervised the employee. On
appeal from the jury’s verdict in favor of the plaintiff, the appellate court concluded
that the claim for negligent hiring against the employer had been improvidently
submitted to the jury. Id. at 824.
¶ 39 The Supreme Court of Missouri affirmed, ruling that, “once an employer has
admitted respondeat superior liability for a driver’s negligence, it is improper to
allow a plaintiff to proceed against the employer on any other theory of imputed
liability.” Id. at 826. The court reasoned that “[i]f all of the theories for attaching
liability to one person for the negligence of another were recognized and all pleaded
in one case where the imputation of negligence is admitted, the evidence
laboriously submitted to establish other theories serves no real purpose.” Id. The
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court also expressed concern that irrelevant and potentially inflammatory evidence
would be admitted into the record. Id.
¶ 40 Relying upon McHaffie, courts elsewhere have held that “where an employer
acknowledges vicarious liability for its employee’s negligence, a plaintiff’s direct
negligence claims against the employer are barred.” Ferrer v. Okbamicael, 2017
CO 14M, ¶ 58 (superseded by statute (see Brown v. Long Romero, 2021 CO 67));
see also Gant, 331 Ill. App. 3d at 929 (holding that claims like negligent
entrustment “are simply alternative theories by which to impute an employee’s
negligence to an employer” and, thus, “[o]nce the principal has admitted its liability
under a respondeat superior theory *** the cause of action for negligent
entrustment is duplicative and unnecessary”).
¶ 41 Although some courts have suggested that McHaffie represents the majority
view, the caselaw throughout the country is more evenly divided. See MV
Transportation, Inc. v. Allgeier, 433 S.W.3d 324, 334 (Ky. 2014) (noting that the
“authorities are split on whether a separate negligent hiring claim should go forward
when an employer concedes its liability for the negligent acts of its employee under
the doctrine of respondeat superior”). Indeed, several courts have rejected
McHaffie and recognize a plaintiff’s ability to plead direct and vicarious negligence
claims in the alternative. See, e.g., Ramon v. Nebo School District, 2021 UT 30,
¶ 17, 493 P.3d 613 (holding that direct negligence and vicarious liability claims are
not redundant and that a plaintiff may proceed separately on both claims); Allgeier,
433 S.W.3d at 337 (holding that “a plaintiff may assert and pursue in the same
action a claim against an employer based under respondeat superior upon the
agent’s negligence, and a separate claim based upon the employer’s own direct
negligence in hiring, retention, supervision, or training”); James v. Kelly Trucking
Co., 661 S.E.2d 329, 332 (S.C. 2008) (holding that a plaintiff may bring a direct
action against the employer for negligence in hiring, supervising, or training the
employee despite the employer’s admission of vicarious liability).
¶ 42 Recently, after the Supreme Court of Colorado adopted the McHaffie rule in
Ferrer, the Colorado General Assembly revised a statute to “reverse the holding
*** that an employer’s admission of vicarious liability for any negligence of its
employees bars a plaintiff’s direct negligence claims against the employer.”
(Internal quotation marks omitted.) Brown, 2021 CO 67, ¶ 4 n.2. “In abrogating
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Ferrer, the General Assembly repealed the McHaffie Rule and allowed plaintiffs to
simultaneously assert vicarious liability and direct negligence claims against an
employer.” Id.
¶ 43 This court aligns itself with those jurisdictions that reject the McHaffie rule.
Settled law allows a plaintiff to plead and prove multiple causes of action. See
Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 486 (1998); see also Heastie v.
Roberts, 226 Ill. 2d 515, 557-58 (2007) (“Illinois law unquestionably allows
litigants to plead alternative grounds for recovery *** as long as the alternative
factual statements are made in good faith ***.”); Gehrett v. Chrysler Corp., 379 Ill.
App. 3d 162, 175 (2008) (“The law allows a plaintiff to pursue as many causes of
action as the facts and good-faith pleading permit.”). Thus, so long as a good-faith
factual basis exists for a plaintiff’s claim of direct negligence against an employer,
the plaintiff should be allowed to pursue such a claim in addition to a claim of
vicarious liability.
¶ 44 In this case, the evidence at trial established that Green thought Patten
employees had improperly positioned the load and asked them to reload it. Patten
employees refused. Green then called his supervisor at Pan-Oceanic to voice
concerns over the placement of the load. Savinder nonetheless instructed him to
return with it. At the close of the evidence, the trial court instructed the jury that
plaintiff claimed Pan-Oceanic was negligent for, among other things, ordering
Green to take the load on the highway after it knew, or should have known, that it
was in an unsafe state and for failing to reject the load to prevent it from traveling
on the highway. See IPI Civil No. 50.01, Notes on Use (“If by the pleadings and
evidence there is an issue of fact as to the liability of the principal for his own acts
independent of acts of the agent, then a separate instruction appropriate to such
independent basis of liability should also be used and the last sentence of this
instruction should be modified or stricken accordingly.”). This theory of liability
did not seek to impute Green’s misconduct onto Pan-Oceanic. Rather, plaintiff
claimed that Pan-Oceanic should be held liable for its own actions and inactions.
See National R.R. Passenger Corp. v. Terracon Consultants, Inc., 2014 IL App
(5th) 130257, ¶ 15 (observing that when a plaintiff raises “a direct claim of
negligence against an employer, such as a claim for negligent hiring, negligent
training, or negligent supervision,” she “ ‘must prove that the employer’s breach—
not simply the employee’s malfeasance—was a proximate cause of the plaintiff’s
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injury’ ” (quoting Vancura, 238 Ill. 2d at 375)); see generally Doe v. Coe, 2019 IL
123521, ¶ 33 (“Negligent hiring, negligent supervision, and negligent retention are
all direct causes of action against the employer for the employer’s misconduct in
failing to reasonably hire, supervise, or retain the employee.”).
¶ 45 We see no reason why a plaintiff should be precluded from seeking to hold an
employer vicariously liable for its employee’s negligence, as well as directly liable
for its own negligence, separate and apart from its employee’s conduct. A
potentially meritorious cause of action should not be barred simply because the
employer acknowledges vicarious liability for its employee’s misconduct in a
separate cause of action. See James, 661 S.E.2d at 332 (finding it to be “a rather
strange proposition that a stipulation as to one cause of action could somehow
‘prohibit’ completely the pursuit of another”).
¶ 46 The justifications for the McHaffie rule are policy driven and not well founded.
Courts adopting the McHaffie rule have expressed concern that, without it,
irrelevant and unfairly prejudicial evidence may be admitted. See, e.g., Gant, 331
Ill. App. 3d at 929. Yet, we generally rely on the trial court to determine when
otherwise relevant evidence should be inadmissible because its probative value is
outweighed by the risk of unfair prejudice. See People v. Adkins, 239 Ill. 2d 1, 23
(2010). The trial court can limit unduly prejudicial evidence in this context as well.
See, e.g., James, 661 S.E.2d at 332 (“[T]he argument that the court must entirely
preclude a cause of action to protect the jury from considering prejudicial evidence
gives impermissibly short-shrift to the trial court’s ability to judge the admission of
evidence and to protect the integrity of trial, and to the jury’s ability to follow the
trial court’s instructions.”).
¶ 47 Courts that have adopted the McHaffie rule also argue that it is necessary to
prevent the plaintiff from obtaining a double recovery for the same injury. See
Gant, 331 Ill. App. 3d at 929-30. The McHaffie rule, however, offers “a blunt
instrument to deal with that potential issue.” Ramon, 2021 UT 30, ¶ 21, 493 P.3d
613. The trial court can prevent the jury from awarding a double recovery through
proper jury instructions (see Babikian v. Mruz, 2011 IL App (1st) 102579, ¶ 20)
and by use of special interrogatories (see Marxmiller v. Champaign-Urbana Mass
Transit District, 2017 IL App (4th) 160741, ¶ 21). Indeed, a “court has myriad other
tools to address a potential double recovery: it can instruct the jury, provide special
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verdict forms, or even remove the doubly-covered portion through post-trial
motions.” Ramon, 2021 UT 30, ¶ 21, 493 P.3d 613. In short, we reject the McHaffie
rule and instead hold that a plaintiff may proceed with both a direct negligence
action against an employer and an action under a theory of vicarious liability.
¶ 48 IPI Civil No. 50.01
¶ 49 We also hold the trial court correctly conveyed the applicable law when it struck
the last sentence of IPI Civil No. 50.01. As we have just explained, a plaintiff may
seek to hold an employer responsible for its own misconduct even if the jury finds
that its employee was not negligent. The notes on use for IPI Civil No. 50.01
provide that if
“there is an issue of fact as to the liability of the principal for his own acts
independent of acts of the agent, then a separate instruction appropriate to such
independent basis of liability should also be used and the last sentence of this
instruction should be modified or stricken accordingly.”
Again, at the close of the evidence, the trial court instructed the jury that plaintiff
claimed Pan-Oceanic was negligent for, among other things, ordering Green to take
the load on the highway after it knew, or should have known, that it was in an unsafe
state and for failing to reject the load to prevent it from traveling on the highway.
This liability did not depend on Green’s actions. Therefore, it was appropriate for
the trial court to omit the last sentence of the instruction.
¶ 50 Consistent Verdicts
¶ 51 We further hold that the verdicts were not legally inconsistent. This court “will
exercise all reasonable presumptions in favor of the *** verdicts, which will not be
found legally inconsistent unless absolutely irreconcilable; further, the *** verdicts
will not be considered irreconcilably inconsistent if supported by any reasonable
hypothesis.” Redmond, 216 Ill. 2d at 643-44.
¶ 52 The evidence showed that Green saw that the skid steer had not been properly
loaded and that he asked for it to be reloaded. When Patten employees refused his
request, Green called his supervisor, who ultimately ordered him to return with the
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load. Pan-Oceanic’s president testified that Green followed the proper protocol
before driving with the load. Thus, the jury could have found that Green acted as a
reasonably careful person would have under the circumstances.
¶ 53 At the same time, the evidence showed that Savinder did not probe Green for
additional information when he called with concerns about the load. Savinder
testified that he was multitasking at the time. Savinder acknowledged that he did
not understand the scope of the problem; nonetheless, he ordered Green to drive on
the expressway with a heavy piece of equipment that his employee had described
as crooked. Further, Green testified that no one at Pan-Oceanic had trained him how
to respond if a skid steer was not loaded properly. Given this and other evidence,
the jury could reasonably have concluded that Pan-Oceanic demonstrated utter
indifference toward the safety of others. Thus, the jury’s verdicts were not
absolutely irreconcilable.
¶ 54 Missing Jury Instructions
¶ 55 After trial and on appeal, Pan-Oceanic argued that the trial court should have
given the jury IPI Civil No. B21.02.02—an instruction on the burden of proof when
there is one plaintiff, one defendant, and negligence and willful and wanton
counts—as well as IPI Civil No. 20.01.01—an issues instruction when there are
negligence and willful and wanton counts. This court has held that a “party forfeits
the right to challenge a jury instruction that was given at trial unless it makes a
timely and specific objection to the instruction and tenders an alternative, remedial
instruction to the trial court.” Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 557
(2008); see Deal v. Byford, 127 Ill. 2d 192, 203 (1989) (observing that the party
challenging a jury instruction must submit an instruction to the trial judge that states
the law for which he argues on appeal). “These requirements ensure that the trial
court has the opportunity to correct a defective instruction and to prevent the
challenging party from gaining an unfair advantage by failing to act when the trial
court could remedy the faulty instruction and then obtaining a reversal on appeal.”
Mikolajczyk, 231 Ill. 2d at 557-58.
¶ 56 Here, Pan-Oceanic did not raise timely and specific objections to the absence
of a burden of proof instruction or issues instruction during trial, nor did it tender
the instructions that it now claims were proper. Therefore, these issues were not
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preserved for appeal.
¶ 57 Punitive Damages
¶ 58 Pan-Oceanic further contends that the jury’s award of punitive damages was
unwarranted, and it asks this court to either reduce or strike the punitive damages
award in its entirety. In general, punitive damages are meant to punish the
wrongdoer and to deter that party, and others, from committing similar acts in the
future. Deal, 127 Ill. 2d at 203. Such damages may be awarded when, among other
things, the defendant acts willfully or with such gross negligence as to indicate a
wanton disregard of the rights of others. Slovinski v. Elliot, 237 Ill. 2d 51, 58 (2010).
To determine whether punitive damages are appropriate, “ ‘the trier of fact can
properly consider the character of the defendant’s act, the nature and extent of the
harm to the plaintiff that the defendant caused or intended to cause and the wealth
of the defendant.’ ” Id. (quoting Restatement (Second) of Torts § 908(2) (1979)).
A reviewing court will not disturb an award of punitive damages on grounds that
the amount is excessive, unless it is apparent that the award is the result of passion,
partiality, or corruption. Deal, 127 Ill. 2d at 204 (1989); see Doe v. Parrillo, 2021
IL 126577, ¶ 38 (confirming that a jury’s assessment of punitive damages will be
reversed only when the manifest weight of the evidence shows that its assessment
was so excessive as to demonstrate passion, partiality, or corruption on the jury’s
part).
¶ 59 As we noted above, the evidence showed that, although Green called Savinder
to express concerns about how the skid steer—a machine that weighs several
thousand pounds—was loaded onto the trailer, Savinder ordered him to bring it
back to Pan-Oceanic. Savinder told him to return with the load, despite a lack of
understanding as to the scope of the problem and despite the fact that it was rush
hour and, thus, traffic was likely to be heavy on the expressway. According to
Green, the skid steer and trailer were bouncing along the highway before he struck
plaintiff’s vehicle. Although plaintiff’s injuries apparently were not life-
threatening, the jury could properly have found that Pan-Oceanic’s failure to reject
the load was so grossly negligent that it amounted to a wanton disregard for the
rights of others on the highway. Further, Gulzar testified that the company earned
more than $2 million per year in the three years before trial. Given these factors,
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the manifest weight of the evidence does not suggest that the jury’s award of $1
million in punitive damages was excessive.
¶ 60 In sum, we hold that (1) an employer’s acknowledgment of vicarious liability
for its employee’s conduct does not bar a plaintiff from raising a direct negligence
claim against the employer, (2) the jury’s verdicts in this case were not legally
inconsistent, (3) the trial court accurately conveyed the applicable law to the jury
when it omitted the last sentence of IPI Civil No. 50.01, (4) Pan-Oceanic forfeited
its challenges to certain jury instructions, and (5) the manifest weight of the
evidence does not suggest that the punitive damages award was excessive.
¶ 61 CONCLUSION
¶ 62 For these reasons, we reverse the appellate court’s judgment.
¶ 63 Appellate court judgment reversed.
¶ 64 Circuit court judgment affirmed.
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