concurring in part and dissenting in part:
I concur with the majority’s opinion with respect to, and would affirm the judgment of the circuit court on the jury verdict against National Food Stores on, the respondeat superior counts of plaintiffs’ complaint. With respect to the majority’s opinion concerning the judgment against National on the negligent and wilful and wanton retention counts of plaintiffs’ complaint, however, I must respectfully dissent.
A cause of action for negligent hiring or retention must establish that a “particular unfitness” of an applicant or employee creates a danger of harm to third parties of which the employer knew, or should have known, when he hired, placed, or continued the person in employment where he could injure others. (Huber v. Seaton (1989), 186 Ill. App. 3d 503, 508, 542 N.E.2d 464, 467.) Under plaintiffs’ complaint alleging wilful and wanton retention, plaintiffs were further required to show a deliberate intention to harm or an utter indifference to or conscious disregard for the safety of others in the retention of defendant Livigni as an employee. (Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 336, 443 N.E.2d 1162, 1165.) In the instant case plaintiffs failed to establish by the two incidents occurring, respectively, two and seven years earlier that defendant Livigni had a violent propensity that could manifest itself in Livigni’s dealings with those persons in the zone of foreseeable risk created by Livigni’s employment.
As the majority notes, Livigni had been employed at National for 17 years at the time of the incident and was a good employee; National had never received any reports from customers or employees that Livigni had any violence-related problems. The 1980 incident in which a subordinate employee was struck by an empty milk crate thrown by Livigni and the 1985 incident in which he injured his 13-year-old son while disciplining him involved persons over whom Livigni was trying to assert authority, not the general public. As such, National was not put on notice by these two incidents that Livigni’s continued employment created a danger of harm to the store customers or others with whom Livigni, as store manager, would have come in contact. In order to prove the negligent and the wilful and wanton retention counts of the complaint to the jury, plaintiffs were required to establish a causal relationship between the particular unfitness and the negligent act of the agent. (Huber, 186 Ill. App. 3d at 508, 542 N.E.2d at 467.) In my opinion, plaintiffs failed to show a connection between the nature of Livigni’s prior acts of violence and the conduct of Livigni towards the plaintiffs in the instant case.
From a practical standpoint, the majority’s opinion sends a message to all employers that in order to insulate themselves from liability for negligent or wilful and wanton retention any employee who has ever had an altercation on or off the workplace premises must be fired. Moreover, the majority opinion places an unreasonable investigative burden upon the employer by forcing the employer to discover, retain, and analyze the criminal records of its employees. Is not the majority’s opinion then at cross-purposes with the established public policy and laws of Illinois protecting the privacy of citizens and promoting the education and rehabilitation of criminal offenders? See Ill. Rev. Stat. 1991, ch. 68, par. 2 — 103 (making it a civil rights violation to ask a job applicant about an arrest record); see also Ill. Rev. Stat. 1991, ch. 38, par. 1003 — 12—1 et seq. (concerning correctional employment programs whose function is to teach marketable skills and work habits and responsibility to Illinois prisoners).
I would have granted defendant National Food Stores’ motion for judgment non obstante veredicto on the negligent retention count of plaintiffs’ complaint, because “no contrary verdict based on that evidence could ever stand” (Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 514), in that plaintiffs failed to sustain their burden of proof. Similarly, since the theory of negligence was not proved, plaintiffs also failed to prove that the alleged conduct or omission showed a deliberate intention to harm or an utter indifference or conscious disregard for the safety of others. Accordingly, I would have also granted defendant National’s motion for judgment non obstante veredicto on the wilful and wanton retention count of plaintiffs’ complaint.