dissenting:
I concur with the majority’s holding insofar as it reverses the trial court’s finding that Kinko’s was liable under the statutory count of plaintiffs complaint (violation of Illinois Notary Public Act (the Act)) because it allegedly “consented” to misconduct on the part of its employee, but I would reverse for a different reason than the one the majority found. After much criticism of Kinko’s, the majority concede that the trial court was incorrect to find that Kinko’s consented to Al-bear’s misconduct. Their stated reason is essentially that Kinko’s could not have consented because it did not know what was going on, this apparently to bolster their theory that Kinko’s negligently supervised its employee. In my view, the real reason Kinko’s cannot be seen to have consented to misconduct is simple. Defendant, without any obligation to do so, voluntarily trained its notary to do the correct thing pursuant to applicable law and even trained the notary to do several things which were over and above what was required under the Act. It is apparent where an employer goes to the time, trouble, and expense of training an employee, it is seeking to avoid the kind of incident that took place here, not consent to it. It defies logic and common sense to conclude, as the trial court did, that by undertaking to train its employee, Kinko’s “consented” to his misconduct; the judgment on count I is therefore properly vacated. I respectfully dissent, however, from the majority opinion with respect to count II — that Kinko’s negligently trained and supervised the notary.
The duty to train and the duty to supervise are separate common law causes of action — separate from the statutory count and separate from each other. Kinko’s, as stated above, voluntarily undertook to train, not supervise, its notary and therefore took on a duty to do so in a nonnegligent manner (see Restatement (Second) of Torts §324A (1965)), which it did. However, the two common law counts are related to the statutory count in that the common law standard of care is reasonableness, and the statute fixes what a reasonable notary would do under the circumstances. See Illinois Pattern Jury Instructions, Civil, No. 60.00, Introduction, at 233 (2006) (hereinafter IPI Civil (2006) No. 60.00). Consequently, any duty to train is limited to instruction pursuant to the duties that are set out under the Illinois Notary Public Act and/or the two duties that were undertaken. Further, there is no common law duty to supervise unless an employer has notice that there are problems with a particular employee. 30 C.J.S. Employer — Employee §205, at 254 (2007). It is undisputed that Kinko’s had no such knowledge; it further did not undertake to supervise, so did not acquire a duty to supervise through an undertaking as it did with regard to training.
Moreover, in my view, the entire ruling — not just the first count— should be reversed because the major factors the trial court considered in reaching its conclusion that Kinko’s was negligent in training and supervision were inadmissible evidence, not even arguably proximately related to the injury. The ruling is therefore against the manifest weight of the evidence. See Rybak v. Provenzale, 181 Ill. App. 3d 884, 897 (1989) (holding that the trial court’s damages award was against the manifest weight of the evidence because it was based upon inadmissible evidence). Finally, Kinko’s cannot be liable where Albear was not acting within the scope of his employment at the time of this occurrence. Scope of employment is related not only to consent and the statutory count, but to training since it is obvious that an employer could not have a duty to train an employee other than in the performance of his duties as an employee, or to supervise that employee in situations where he was not functioning within the scope of employment. See Williams v. United States Fidelity & Guaranty Co., 854 F.2d 106 (5th Cir. 1988); 30 C.J.S. Employer — Employee §205, at 256 (2007) (“Employers do not have a duty to supervise their employees when they are not working ***”).
FACTS
The facts are that Kinko’s employed Gustavo Albear and subsequently requested that he become a notary. Although nothing in the Illinois Notary Public Act required it to do so, Kinko’s voluntarily trained Albear in his notarial tasks (emphatically demonstrating that no good deed goes unpunished). This training was done by another Kinko’s employee, Al Yamnitz, not himself a notary at that time, who studied the Act and Illinois notary handbook (a total of 39 pages) and put together a program. Yamnitz distributed copies of the Illinois Notary Public Act, the Illinois notary handbook, and showed videos. After the session, he “debriefed” the employees, but gave no formal tests.
Albear took the course in July 1995 and proceeded to function as a notary without incident until December of 1995, when this occurrence took place. It seems that two business partners, R Brown and Boat-wright, appeared at Kinko’s with two documents, both containing the signature of plaintiff, Vancura. One of them claimed to have obtained the signature from Vancura the night before but Vancura denied that. Boatwright made some necessary copies for the transaction then moved to the counter where Brown and the notary were standing. Boatwright produced a driver’s license and another identification to complete “his” part of the transaction. Although Albear admitted at trial that he signed and stamped the first document, what happened next is anybody’s guess. Albear acknowledged that the seal on the second document “looked like” his, but denied that the signature on the document was his and this testimony is unrefuted. Vancura, who was undisputedly not present, later sued for damages. Yamnitz testified that he trained Albear to get a photo identification, but the notary testified that he matched signatures to identify signers. It is not clear whether he did this in lieu of, or in addition to, getting a photo identification.
Prior to trial, the defense filed a motion to bar the testimony of plaintiff’s expert, Michael Glosen, substantially predicated upon the fact that much of it was inadmissible and he was attempting to define the term “satisfactory evidence” which appears in the Act. I disagree that Closen’s testimony was, as the majority state, “largely” based on the Illinois Notary Public Act or the handbook for Illinois notaries, as well as the Model Act. Virtually everything he had to say about the Illinois Notary Public Act was not any elucidation of it but, rather, criticisms of its supposed inadequacies. On the other hand, he had high praise for the Model Act and criticized Albear for not meeting its much expanded standards (highly detailed logbook, etc.). In any event, the court allowed Glosen to testify, noting that he was aware of his duty to sort out and consider only relevant evidence and would disregard evidence that was inadmissible.
ANALYSIS
Duty
With regard to any duty to train and/or supervise in this case, the majority opinion fails to appreciate the inextricable link between the statutory cause of action in the case at bar and the common law causes of action to train and supervise. I agree with the majority that under the common law, the duty, and thus the standard of care, is one of reasonableness. What is reasonable, in turn, is the conduct specified in the Illinois Notary Public Act. Noyola v. Board of Education of the City of Chicago, 179 Ill. 2d 121 (1997). In other words, the duty under the common law count is the same as the duty under the statutory count because it is the statute that fixes the duty and defines what a reasonable person would do under the circumstances. See Noyola, 179 Ill. 2d 121; see also Price v. Hickory Point Bank & Trust, 362 Ill. App. 3d 1211, 1216-17 (2006); Workman v. Dinkins, 442 F. Supp. 2d 543, 555 (N.D. Ill. 2006) (construing various Will County regulations); Threlkeld v. White Castle Systems, Inc., 127 F. Supp. 2d 986, 989 (N.D. Ill. 2001) (construing Illinois law). Although these cases are somewhat different factually, in my view, the principle quoted above is applicable.
Pursuant to the above, the duties which arise under the Illinois Notary Public Act, and thus those under the common law, are simple and straightforward and are much different from those promulgated by the model act. A signature is to be notarized as follows:
“(c) In witnessing or attesting a signature, the notary public must determine, either from personal knowledge or from satisfactory evidence, that the signature is that of the person appearing before the notary and named therein.
(d) A notary public has satisfactory evidence that a person is the person whose true signature is on a document if that person:
(1) is personally known to the notary;
(2) is identified upon the oath or affirmation of a credible witness personally known to the notary; or
(3) is identified on the basis of identification documents.” 5 ILCS 312/6 — 102(c), (d) (West 1996).
In terms of a duty Kinko’s may have assumed when it trained Al-bear, the above makes it clear that the Act simply requires “satisfactory evidence” of a person’s identity, not any specific document such as a picture identification or any specific number of documents. Further, the Act even allows identification through personal knowledge or an oath of a person known to the notary. Neither the Act nor the explanatory handbook gives instruction on how to dispose of the notary seal, and it was only required that it be kept in a safe place. There is no requirement that a logbook be maintained at all. Kinko’s trained Albear pursuant to the Illinois Notary Public Act and the handbook and undertook two additional duties in its training of A1bear: one to keep a logbook, the other to get a photo identification.
The majority opinion contains an extensive discussion about the Model Notary Public Act (hereinafter Model Act), claiming that it is appropriate to look to the Model Act, in this case, to define terms (here, what does “satisfactory evidence” of identification mean under the statute). The Model Act mandates that more than one identification be provided, one of them with a photo, and Professor Glosen expressed his view that more than one form of identification is necessary. On the other hand, that is not what the Illinois Notary Public Act or the Illinois handbook advises. The majority discussion leaves the impression that, among other duties, the Model Act requires that two or more pieces of identification are necessary and, impliedly, that Kinko’s’ trainer was negligent in training Albear to get one photo identification and nothing more unless the latter was suspicious.
However, the Model Act is not the law; it is little more than a series of suggestions that some people would like the law to be. The majority comment that it has never been “formally incorporated into Illinois law.” This appears to me to be something of an overstatement. In fact, the legislature has “formally” rejected the Model Act on at least two occasions, with good reason, in my view. For example, the Model Act calls not only for a logbook to be kept but 12 to 13 items of information including a thumb print or retinal scan. This seems to me to be an exaggerated and overreaching requirement. In any event, neither the trial court nor the majority can look to the Model Act to define the duties of a notary. These come only from the Illinois Notary Public Act and Kinko’s’ own undertaking.
Surprisingly, in spite of this rather lengthy dissertation on the Model Act, the majority in a footnote ultimately decline to answer the question of what “satisfactory evidence” is in Illinois. I would offer the following answer to that question. Professor Closen’s view is that two documents are required because the word “documents” is used in the plural. However, Closen’s position is wrong, pursuant to the plain language of the statute, and therefore Yamnitz’s training to get one photo identification was in compliance with the Illinois Notary Public Act. First, I note, as do the majority, that Professor Glosen is an expert, not a court, and it is not his prerogative to interpret a statute. Department of Corrections v. Illinois Civil Service Comm’n, 187 Ill. App. 3d 304, 308 (1989) (holding that an expert is not competent to testify as to statutory interpretation). Second, while the appellate majority certainly may interpret a statute, I contend that they would be wrong if they adopted Professor Closen’s view. A far more plausible interpretation of this phrase, “on the basis of identification documents” is simply that identification can be ascertained from a variety of different documents that various individuals may present, such as a driver’s license, state identification, immigration documents, passport, etc. I also note that the statute must be read as a whole (In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002)) and the term (identification from) “satisfactory evidence,” when read in conjunction with “documents,” bolsters my conclusion that in Illinois, one or more pieces of evidence may be used to sustain an identification, but there is no requirement that two pieces of identification be proffered. Had the legislature wished to mandate two pieces of identification, it could easily have done so. See, e.g., 5 ILCS 20/7 (West 2006) (providing that proclamation of the adoption of a constitutional amendment shall be made by publication in “at least” two newspapers). Kinko’s’ trainer therefore correctly trained his charge to get one piece of identification with a photo such as a driver’s license.
Training and Supervision
Kinko’s undertook to train, not supervise, its notary and, in my opinion, did so correctly pursuant to applicable law. As previously noted, what a reasonable notary would do is set out in the Illinois Notary Public Act. Albear was trained to get satisfactory evidence (a photo identification), and did keep a logbook with the name, address and information as to what identification, document or documents were presented. Because Kinko’s’ duty is limited to the extent of its undertaking (see Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32 (1992)), where Albear did this, he fulfilled any duty Kinko’s undertook in training him with regard to the logbook. Contrary to what the majority appear to believe, there is no duty to keep a bound logbook with voluminous information, audit logbooks, or do anything else with logbooks other than what it undertook to do. The notary also testified at trial that he was trained to have the signer present, although he clearly did not on the day in question; Kinko’s therefore trained him correctly and the incident was caused, not by incorrect training, but by his misapprehension of the instruction or collusion in the fraud.
However, one thing which might be considered to be incorrect training is that Albear stated at trial that he was trained to match signatures to ensure proper identification. It is not clear whether he did this instead of getting a photo identification or in addition to it. The fact that Albear did not seem to “get” the training to obtain a photo identification, or at least implied he did not understand this, is not fundamentally linked to Kinko’s’ training, unless one takes the position, as the majority appear to do, that the mere fact that an employee is trained by a company automatically gives rise to a duty to continuously supervise that employee to insure comprehension and prevent any mistakes. No authority is offered for this proposition.
Further, with regard to supervision, Kinko’s had no duty to supervise under the common law, nor did it undertake to do so. 30 C.J.S. Employer — Employee §205, at 254 (2007). It is well established that in order to maintain a cause of action for negligent supervision against an employer it must be demonstrated that
“the employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and that the employer, having this knowledge, failed to supervise the employee adequately, or take other action to prevent the harm.” (Emphasis added.) 30 C.J.S. Employer — Employee §205, at 255 (2007).
It is clear from the above that the duty to supervise is only triggered under the common law where the employer had notice of incompetence or misconduct. See 30 C.J.S. Employer — Employee §205, at 254 (2007); see also Keller v. Koca, 111 P.3d 445, 448 (Colo. 2005) (“Thus, where a plaintiff asserts a claim for negligent supervision, the question of whether the employer owes a duty of care to the injured third party boils down to issues of knowledge and causation ***”). It is undisputed that Kinko’s had no such information. No duty arose, and consequently, Kinko’s cannot be liable under a negligent supervision theory. Further, Kinko’s did not undertake to supervise Albear. In fact, the majority opinion castigates Kinko’s for what it terms turning a “blind eye” to Albear’s activities. Consequently, unlike training, no duty to supervise arises because of an undertaking. See 30 C.J.S. Employer— Employee §205, at 255 (2007) (“The tort of negligent supervision is separate from those of negligent hiring and retention”); Lowe v. Surpas Resource Corp., 253 F. Supp. 2d 1209, 1245 (2003); but cf. Allen v. Posternock, 107 Pa. Super. 332, 335, 163 A. 336, 336 (1932) (holding that the employer had a duty to ensure her instructions not to smoke were obeyed because, inter alia, she had knowledge the employee was not obeying her instructions).
Even if a duty to supervise did somehow exist, the scope of that duty the majority seek to impose is much too broad. As a practical matter, to prevent any mistake or criminal behavior or “harm to the public” (as the trial court said), Kinko’s would need supervisors for the supervisors and so on and so on. I believe this would put an unsupportable burden on defendant and violate one of the tenets for imposition of a duty. Sollami v. Eaton, 201 Ill. 2d 1, 17 (2002) (holding that, “[i]n determining whether a duty exists, a court should consider the following factors: (1) the reasonable foreseeability of injury, (2) the reasonable likelihood of injury, (3) the magnitude of the burden that guarding against injury places on the defendant, and (4) the consequences of placing that burden on the defendant” (emphasis added)). Could the Secretary of State be sued for negligent supervision if an individual, having been provided with and tested on the Rules of the Road, either did not understand or comply with them and had an accident? That scope would be much too broad and impossible for the Secretary to abide by. Further, no amount of supervision would prevent criminal behavior on Albear’s part, if that is what occurred.
In short, there is no duty that an employer supervise an employee absent notice of problems, and even if a duty to supervise could be considered to have arisen from mere training, it is not nearly as broad as the majority opinion suggests. We do not even know what happened in the few moments that the documents were notarized. Adopting the majority view would make Kinko’s the absolute insurer for every mishap on its premises involving an employee. In my view, this is much more than the law contemplates. See Hartung v. Maple Investment & Development Corp., 243 Ill. App. 3d 811, 815-16 (1993) (“an owner or occupier of land is not an absolute insurer of the safety of an invitee”). Moreover, as a matter of public policy, an affirmance would discourage employers from offering training.
Manifest Weight
The majority’s entire case for negligent training hangs on their acceptance of the trial judge’s conclusion that Kinko’s did not properly train Albear to get a photo identification and that this ruling is not against the manifest weight of the evidence. According to the opinion, this implies that the trial judge must have believed that the trainer was lying when he said he trained Albear to do this and Albear was telling the truth when he testified at trial that he was trained to match signatures. The majority further hold that we must accept this as correct because the trial court is in a better position to judge credibility. Best v. Best, 223 Ill. 2d 342, 350-51 (2006). I acknowledge that this is generally the law, but in this case, I disagree. Historically, the court has noted that even in a bench trial an error can be made as to the findings of fact and it is the duty of the appellate court to weigh the evidence. Talmage v. Union Central Life Insurance Co., 315 Ill. App. 623, 642 (1942). More recently, this court has observed in the context of the manifest weight of the evidence standard, “[rjeview in the appellate court is not perfunctory, however, and the fact that we give deference to the trial court’s conclusions of fact does not preclude overturning the trial court’s decision when the evidence so requires.” Midwest Software, Ltd. v. Willie Washer Manufacturing Co., 258 Ill. App. 3d 1029, 1051 (1994). I submit that in the case at bar, where the trial judge got at least four out of five things wrong and based her decision on much irrelevant evidence (as will be discussed below), we are not required to agree that she was right in her assessment of this single credibility issue.
A ruling is against the manifest weight of the evidence when the opposite conclusion is clearly apparent. Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 981 (1998). A more functional test to evaluate whether a decision is against the manifest weight of the evidence is provided by Justice Quinn in Kresin v. Sears, Roebuck & Co., 316 Ill. App. 3d 433, 441 (2000). Kresin instructs that the inquiry on appeal is not whether other conclusions are possible. Rather, the inquiry is whether the result reached is reasonable. Kresin, 316 Ill. App. 3d at 441. In my view, a review of the evidence shows that the court’s conclusion is not reasonable. First, common sense dictates that Albear, who either made a big mistake or was colluding with the perpetrators of this fraud, appears to have every reason to lie about how he was trained in order to deflect blame onto Kinko’s. The trainer, Yamnitz, on the other hand, had no apparent reason to lie. Secondly, Albear was undisputably given the Illinois notary handbook and was lectured on its contents during training. The handbook is as clear as a bell about the need for a photo identification and to have the signer present. Next, he was “debriefed” on these lectures, which I take to be a check on his knowledge. Finally, Albear acknowledged at trial that he was trained to have the signer present. For these reasons, the evidence does not support the trial court’s conclusion that Albear was the more credible witness. Therefore, the reasonable conclusion is that Kinko’s in fact did train Albear correctly and the trainer, not Albear, was telling the truth. In my opinion, the trial court’s conclusion on the credibility issue is against the manifest weight of the evidence.
Further, wholly contrary to the evidence, the court seemed to assume that Albear did not get a photo identification on the day in question because Kinko’s didn’t train him to do it, resulting in this fraud. However, the record shows that, as to the one document Albear acknowledged that he notarized, Albear actually did get a picture identification that day as well as some other identification. Even if he did not ask for it and it was voluntarily produced, where he had a picture identification it does not matter whether he asked for it or not — the purpose of his training was fulfilled, so as to this first document there is no proximate relationship between his professed misunderstanding of his training and the fraud on plaintiff. The court appears to have completely forgotten or discounted this testimony in its ruling, although it was puzzlingly willing to accept Albear’s testimony over that of the trainer about the photo identification.
What happened with the second document — where Albear claims the seal “looks like” his but the signature was definitely not his — is not just “unclear,” as the majority state, it is unknown. While it is not unreasonable to infer that, if he asked Boatwright for a picture identification then he would have also asked Brown several seconds later, we do not really know what happened with the second document and can only resort to impermissible speculation, i.e., that Albear’s conduct was a proximate cause of the injury. Mere speculation, however, is insufficient to establish proximate cause as to this particular thing or, for that matter, to the entire cause of action. Castro v. Brown’s Chicken & Pasta, Inc., 314 Ill. A pp. 3d 542, 553 (2000) (“The element of proximate cause must be established to a reasonable certainty, and no finding can be based upon mere speculation”).
To indulge briefly in such speculation, we might query whether Albear was given false identification showing the bearer to be Vancura — we do not have enough facts to know if, under that circumstance, a reasonable person should have accepted that person as Vancura— similar physical features, age, etc. Another “nonnegligent” scenario is that Albear momentarily left his seal on the counter and turned to answer a customer question or a phone call and one of the partners surreptitiously stamped the second document, later signing Albear’s name. The latter would not rise to the level of negligence, in my view, since a reasonable person might well have done the same. IPI Civil (2006) No. 10.01. Of course, if Albear was colluding with Brown and Boatwright to defraud Vancura, all the pictures and identification in the world would not have prevented the fraud. Where Albear got a signature on the day in question, the only real evidence of Kinko’s negligence the majority have, then, is that although Albear was properly trained to have the signer present, he did not do it. It is hard to view this as a negligent, and not deliberate, act. How can you negligently not notice that the signer is not present? He either is, or isn’t. If it was criminal conduct on Albear’s part, I do not believe Kinko’s is hable. See Doe v. Big Brothers Big Sisters of America, 359 Ill. App. 3d 684, 700 (2005) (generally noting that a person is not liable for harm to another that results from the person’s failure to defend the other against a third party’s criminal attack).
As previously stated, I believe that the trial judge was wrong on virtually everything. In addition to credibility, her decision on consent was also wrong, as evidenced by the majority’s vacatur of that ruling. Further, with regard to the portion of her order finding Kinko’s liable for negligent training and supervision, the trial court accepted Professor Closen’s testimony regarding nearly every issue and shaped her ruling accordingly, although much of his testimony was inadmissible. See In re Kenneth D., 364 Ill. App. 3d 797, 803 (2006) (recognizing that “[a] 11 evidence must be relevant to be admissible”). The judge early on stated that she was well aware of her duty to consider only relevant testimony and would do so. However, even a cursory examination of her ruling makes it clear that she considered substantial evidence which was inadmissible because most of the alleged negligent acts upon which her ruling was based were not proximately related to this event.
An act or omission is not regarded to be a cause in fact of an event if the event would have occurred without it. Stojkovick v. Monadnock Building, 281 Ill. App. 3d 733, 738 (1996). Put another way, the act or omission is said to be a cause in fact of the event if it was a material element and a substantial factor in bringing the event about. See Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455 (1992). It is not enough for plaintiff to show that Kinko’s might be somehow generally negligent — the negligence alleged must actually have caused the injury complained of. See Lee, 152 Ill. 2d at 455 (holding that cause-in-fact, inter alia, must be shown to establish proximate cause). For example, if there were a large greasy spot at Kinko’s’ entrance or doorway and employees and managers ignored it for a week, one might consider that to be a generally negligent condition, but unless someone fell or was injured by the condition, it would not be actionable.
The trial court’s ruling is premised upon approximately five things, four of which potentially could be considered negligent but which are not proximately related to this injury. Relying on Closen’s irrelevant testimony, the trial court held that Albear, because of Kinko’s’ training program, was negligent in his choice of a logbook, its entries, and where he kept his logbook and seal. These factors featured prominently in her ruling. The majority note (391 Ill. App. 3d at 367) that the trial court stated:
“ ‘[The notary instructor] did not teach them that information regarding notarizations was to be kept in a [bound] journal, did not teach them about steps to take to secure the notary seals and journal, and did not instruct Kinko’s notaries on the need to preserve the notary seal and logbook.’ ”
And:
“ ‘*** Albear did not require photo identification from a document signer. He did not properly secure his notary seal and he did not properly keep [the] notary journal [Kinko’s instructed him to keep]. Also, Glosen testified that when Albear left the employ of Kinko’s, he left his seal and journal behind with no assurance that the seal would not be misused or that his logbook would not be lost or destroyed.’ ”
Albear’s book had spiral bindings and pages that could be ripped out without detection, supposedly had “insufficient” information (according to Professor Glosen), and was not kept in a continuously locked place, which the majority implies is synonymous with “safe.” In addition, it was left at Kinko’s when Albear left and was lost at the time of trial 13 years later.
Where there is no evidence that the fraud on Vancura was caused by a missing entry page, lack of information, or a book or seal that was lost or stolen from an open drawer and somehow used to cause this event, nothing about the logbook Albear kept has anything to do with this occurrence. See Castro, 314 Ill. App. 3d at 553. The event would have happened if the logbook were carved on stone tablets, kept in a vault with armed guards, and contained every bit of information, womb to tomb, about the signer. Consequently, these factors are irrelevant in determining Kinko’s’ liability for negligent training. Where Albear routinely kept his seal is also irrelevant because the seal obviously had to be out and available for this event to have occurred at all and what he did with it otherwise does not matter. To the extent the trial judge considered these things in her ruling, it is incorrect. The majority opinion incorporates these factors and further finds that Kinko’s was negligent in that it failed to “audit” Albear’s logbook. I have no idea where a duty to audit logbooks would come from and no authority is offered to say one exists. No such thing is mentioned in the Illinois Notary Public Act, the handbook, or even in the Model Act. Since it is the Illinois Notary Public Act which defines what is reasonable for a notary to do and auditing is not included, I believe it is incorrect to maintain that Kinko’s is liable for breach of a nonexistent duty. Further, Kinko’s’ duty pursuant to the undertaking is limited to the extent of that undertaking, and Albear did keep a logbook with the three items of information Kinko’s taught him to keep. The majority opinion impermissibly expands the required duty when it includes “auditing” logbooks or keeping bound logbooks.
The majority also hold that Kinko’s’ training was negligent because Kinko’s “accepted” the seal and logbook when Albear departed. Again, even if this conduct could be considered generally negligent, it had nothing to do with bringing about this injury. Albear could have left his seal at a movie theater when he departed, but absent evidence it was used by a third party to defraud Vancura on the day in question, it is totally irrelevant to the ultimate outcome. Where this court relied on substantial evidence that it should have recognized as irrelevant or inadmissible and the majority incorporated it in their opinion, I think both are incorrect.
The trial court and the majority further claim that Kinko’s was negligent in its training by having a non-notary create and teach the notary program. First I would point out that the Illinois Notary Public Act and handbook are simple and straightforward and a person of normal intelligence should easily be able to understand them absent any training. However, Kinko’s did undertake to train its notary and a reading of the Act, videos, and “debriefings,” which I take to be a review of the material, is, in my view, more than sufficient training. I question what additional things a notary would have brought to the table. Further, there is no authority that stands for the proposition that use of anything other than a notary-teacher is a deviation from the standard of care or violation of a duty under the common law theory, even where there is an undertaking. Notably, none is offered by the lower court or the majority. If a lawyer or someone with an MBA taught the course, would that be negligent in and of itself?
More importantly, the trainer did offer the correct training (get a photo identification, have the signer present, keep a logbook, etc.). The fact that he was not a notary is not therefore proximately related to plaintiffs injury. Aside from getting a photo identification, as previously discussed, the majority have not pointed out what was inadequate about the training except the general conclusion that the trainer was “not familiar with sound notarial practices.” The only thing the trainer was admittedly unfamiliar with was the Model Act, but that is completely irrelevant. He was familiar with the Illinois Notary Public Act and handbook, and that is the only law which applies, to both the statutory and the common law counts.
In short, the substance of the trial court’s ruling is against the manifest weight of the evidence in that it consisted mainly of conclusions predicated on inadmissible evidence. In addition, with regard to the all-important issue of credibility, it is a perfectly reasonable principle that the trial court should be correct about witness credibility because he or she is present. See Best, 223 Ill. 2d at 350-51. In this case, however, where the decision is wrong on everything else, this theory is little more than a legal fiction. In my view, affirmance of the trial court here leaves an entity that had virtually nothing to do with the injury potentially liable for the whole verdict, and the real perpetrators of the fraud possibly off the hook. This result is unjust, in my view.
Waiver
The majority find that Kinko’s has waived any argument regarding negligent supervision because essentially they find the cases defendant cites essentially to be not on point (going to hiring and retention) and unpersuasive. Where the party has offered authority, but the court is ultimately unpersuaded by the cases for whatever reason, in my view, waiver is much too harsh a result. See Welch v. Johnson, 147 Ill. 2d 40, 48 (1992) (holding that a reviewing court may, “in furtherance of its responsibility to [provide] a just result, override considerations of waiver”). I think waiver is more appropriately applied where a party has offered no authority whatever, or ones which are not even tangentially related to the issues. Finally, even if it were correct to find waiver, it is a limitation on the parties, not on this court. See Welch, 147 Ill. 2d at 48.
Scope of Employment
Kinko’s argued on appeal that it could not be liable through Al-bear because he was not acting within the scope of his employment at the time. The Restatement of Agency (Second), in effect at the time, states:
“(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master ***[.]
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.” Restatement (Second) of Agency §228, at 504 (1958).
The majority apply the Restatement (Third) of 2001 for some reason, although the Restatement (Second) was the guideline in 1995 when this event occurred and the Illinois Supreme Court quoted extensively from the Restatement (Second) recently in a somewhat similar case. See generally Bagent, 224 Ill. 2d at 164-71. While training and supervision are separate causes of action, it is clear that Kinko’s could have no duty to train or supervise an employee in anything but his role as an employee. See Williams v. United States Fidelity & Guaranty Co., 854 F.2d 106 (5th Cir. 1988); 30 C.J.S. Employer — Employee §205, at 257 (2007) (“Employers do not have a duty to supervise their employees when they are not working ***”).
I was initially inclined to think the majority were correct to find Albear within the scope because he was attending to notarial duties when the incident occurred. However, a close reading of Commercial Union Insurance Co. of New York v. Burt Thomas-Aitken Construction Co., 49 N.J. 389, 230 A.2d 498 (1967), persuaded me otherwise. Commercial Union is very similar factually to the case at bar. While it is a New Jersey Supreme Court case, in our case of first impression it is appropriate to look to other jurisdictions for guidance. Owens v. Department of Human Rights, 356 Ill. App. 3d 46, 54 (2005). Notably, while this case is somewhat different in that Kinko’s solicited Albear to become a notary and trained him, these facts make the holding in Commercial Union no less applicable.
In Commercial Union, a bank employee (a notary) acknowledged a signature that was later claimed to be a forgery and the injured party sued the Bank. The court held that the bank was not liable for two reasons: first, the court noted that a notary public is a public official empowered by the state, not the bank, and as such exercises a power the bank does not possess; the notary is thus not performing the Bank’s work. Commercial Union, 49 N.J. at 394, 230 A.2d at 500. The second reason is that there was no evidence that anyone was relying on the bank and/or its reputation in choosing this particular notary. Commercial Union, 49 N.J. at 394, 230 A.2d at 500.
In the case at bar, training or no training, Albear only became a notary through the power of the state, not Kinko’s. Further, Kinko’s could not perform the notary function and the fact that the service may have benefitted Kinko’s by conveniencing its customers is insufficient reason to hold Kinko’s liable. See Commercial Union, 49 N.J. at 394, 230 A.2d at 500. Finally, there is no evidence whatsoever that the partners specifically relied upon Kinko’s’ reputation and sought out only a Kinko’s notary. Common experience makes it likely that they simply wanted any notary.
Significant to our case, the Commercial Union court stated:
“Thus the notary public exercises a power he receives from government rather than from someone who happens to be his private employer. The bank could not itself take an official acknowledgment or empower an employee to do so.
* * *
We are not persuaded that justice would be served by imposing liability in these circumstances. Surely neither party anticipated that prospect, and hence to deny liability cannot surprise or disappoint anyone. No doubt a private employer, here a bank, may gather goodwill through the presence of a notary public and may have that advantage in mind when it encourages its employee to seek the office, but it is also true the public convenience is furthered when the services of a notary public are thus made available. We see no good reason to hold a private employer who was in no sense a party in interest in the transaction when the claimant did not look to the employer and sought nothing more than an acknowledgment before some notary public.” (Emphasis omitted.) Commercial Union, 49 N.J. at 393-95, 230 A.2d at 499-501.
In the case at bar, Albear was performing his own work — that of a notary — a task Kinko’s could not do. He was thus not doing Kinko’s’ work, giving rise to a respondeat superior situation. Commercial Union, 49 N.J. at 393-95, 230 A.2d at 499-501. There is also no evidence that any of these parties specifically relied upon a notary from Kinko’s, as opposed to any other notary, so Kinko’s should not be liable.
Further, in balancing the equities, as the Commercial Union court did, plaintiff has already received full compensation from the businessmen who actually perpetrated this fraud and a windfall of $30,000 from Albear. He should not be allowed an even larger windfall by holding Kinko’s liable. In terms of joint and several liability, it would be unjust to force Kinko’s to pay the entire sum where it had nothing to do with the fraud.
In summary, in my view Kinko’s undertook to train Albear and did so in a nonnegligent manner. He was trained to follow the proper procedures but either failed to comprehend or deliberately did not do the right thing for his own purposes, and it is possible he colluded with the partners who actually defrauded plaintiff. Moreover, on the subject of training, the trial judge got virtually everything in the ruling wrong, so I decline to embrace the notion that she was correct in ruling the Kinko’s trainer was lying when he said he trained Albear properly. Further, where the trial court and the majority consider clearly inadmissible evidence — evidence that is unrelated proximately to the injury — the trial court’s ruling is against the manifest weight of the evidence and the majority’s opinion is, in my view, incorrect.
Accordingly, I respectfully dissent.