Williams v. Hall

                                                                SIXTH DIVISION
                                                                  June 6, 1997











No. 1-95-2653


GLORIA WILLIAMS, Individually and as      )
Special Administrator of the Estate of    )        Appeal from
KEVIN WILLIAMS, Her Son, Deceased, KELLEY )     the Circuit Court
WILLIAMS and RONALD HEMPHILL,             )      of Cook County.
                                          )
          Plaintiffs-Appellants,          )
                                          )           88-L-22568)
     v.                                   )     Nos.  90-L-08100) 
                                          )           94-L-09393
ALAN HALL, as Agent for ITALIAN FIESTA    )  
PIZZERIA, INC., a Corporation, ITALIAN    )   
FIESTA PIZZERIAS l and 2 d/b/a ITALIAN    )         Honorable
FIESTA PIZZERIA,                          )      Daniel J. White,
                                          )     Justice Presiding.
          Defendants-Appellees.           )



     JUSTICE THEIS delivered the opinion of the court:

     Plaintiffs appeal the trial court's order granting defendants'
motion for judgment notwithstanding the verdict.  We affirm.
     On the evening of Saturday May 29, 1988, Kevin Williams, Ronald
Hemphill, Derrell Dixon, and Brian Osborne drove to a McDonald's
restaurant on Halsted street in Chicago.  The restaurant was located
across the street from the Italian Fiesta Pizzeria.  Williams and
Hemphill noticed pizza boxes on top of a car parked in front of the
pizzeria.  After the group left McDonald's in Dixon's Jeep, Dixon
pulled within a few car lengths of the pizza boxes.  Dixon and
Hemphill jumped out of the Jeep to grab the boxes.  When Dixon and
Hemphill discovered the boxes were empty, they dropped the boxes and
re-entered the Jeep.   
     Alan Hall, an Italian Fiesta pizza driver, noticed the group's
activities while inside the pizzeria.  Hall exited the pizzeria,
yelling at the group to return the pizza boxes.  While Dixon drove the
Jeep, Hall entered his vehicle and began chasing them.  Dixon turned
the wrong way onto a one-way street, and Hall continued to pursue
them.  Dixon collided with another vehicle, which propelled Dixon's
Jeep into a tree.  The accident resulted in Williams' death and
Hemphill's injury.  While Hall was not injured in this accident, he
subsequently died from other causes.  
     Plaintiffs filed a wrongful death action against the pizzeria
under theories of negligent hiring and vicarious liability based upon
the employment relationship.  The trial court granted defendants'
motion for a directed verdict on the plaintiffs' negligent hiring
count.  However, the court denied the defendants' motion as to
vicarious liability, and allowed the case to proceed to trial on this
issue.  The defendants presented evidence that the pizzeria
specifically informed employees and pizza drivers that they were not
to attempt to recover stolen property or punish perpetrators.  Rather,
the pizzeria's policy was for supervisors to contact police and file a
report in the event of theft.  In addition, the pizzeria did not
penalize pizza drivers if their property was stolen.
     The jury returned a verdict in favor of plaintiffs.  In their
post-trial motion, the defendants claimed that they could not be held
liable for Hall's actions as a matter of law.  Accordingly, the
defendants argued, they were entitled to judgment notwithstanding the
verdict (JNOV).  The trial court agreed, stating that "[i]t's my
opinion that the employee's deviation from the course of employment
was exceedingly marked and unusual.  *** [A]s a matter of law the
employee was acting outside the scope of his employment."  Plaintiffs
appeal, claiming that the court erred in granting JNOV.  We affirm.
     We review orders granting JNOV under a de novo standard. 
Arellano v. SGL Abrasives, 246 Ill. App. 3d 1002, 617 N.E.2d 130
(1993).  A court should enter an order of JNOV only when the evidence,
viewed in a light favorable to the nonmoving party, so overwhelmingly
favors the movant that no contrary verdict could stand.  Pedrick v.
Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967).  In
the case at bar, we find that the evidence established that the
pizzeria was not liable for Hall's conduct as a matter of law. 
     The Illinois Supreme Court set forth the standard for holding an
employer liable for the conduct of its employees in Pyne v. Witmer,
129 Ill. 2d 351, 543 N.E.2d 1304 (1989).  The court relied upon the
Restatement (Second) of Agency 228 (1958) and stated that:
               "`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 ***. "  Pyne v. Witmer,
          129 Ill. 2d  at 360, 543 N.E.2d  at 1308.  
     An employer is not liable for the criminal acts of its employees
if the act is not committed in furtherance of the employer's business,
but rather in furtherance of the employee's purposes.  Harrington v.
Chicago Sun-Times, 150 Ill. App. 3d 797, 502 N.E.2d 332 (1986).  While
an employee's minor deviation from his course of employment will not
negate an employer's liability, extreme and unusual deviations place
the conduct outside the scope of employment.  Sunseri v. Puccia, 97
Ill. App. 3d 488, 422 N.E.2d 925 (1981).  "The fact that the servant
acts in an outrageous manner or inflicts a punishment out of all
proportion to the necessities of his master's business is evidence
indicating that the servant has departed from the scope of employment
in performing the act."  Restatement (Second) of Agency 245, Comment
f, at 541 (1958).
     A review of the relevant case law reveals that Hall's conduct was
outside of the scope of his employment.  For example, in Harrington v.
Chicago Sun-Times, the court held that a newspaper driver was not
acting within the scope of his employment when he shot an alleged
thief along the driver's route.  Harrington, 150 Ill. App. 3d 797, 502 N.E.2d 332.  The court ruled that such conduct was too unforeseeable
and outrageous, where the employee's job responsibilities did not
include punishing those who attempted to steal the employer's
property.  Harrington, 150 Ill. App. 3d 797, 502 N.E.2d 332.
     Similarly, in Rubin v. Yellow Cab Co., 154 Ill. App. 3d 336, 507 N.E.2d 114 (1987), the court found that the plaintiff's allegations
that the defendant's cab driver struck him about the head and shoulder
with a metal pipe after the plaintiff's car blocked the cab driver's
progress were insufficient to state a cause of action.  The court
noted that the cab driver's conduct would not result in the collection
of a fare or otherwise benefit the employer.  The court held that the
cab driver's assault on the plaintiff was "clearly not an act
undertaken to further Yellow Cab's business but rather one propelled
singularly by anger and frustration."  Rubin, 154 Ill. App. 3d at 340,
507 N.E.2d  at 116. 
     The instant case parallels Harrington and Rubin in the following
respects:  (1) the employees were all ostensibly on duty at the time
of the incident; (2) the employees were all angered by the plaintiffs'
acts which were related, at least tenuously, to the employer's
business; and (3) the employees' acts were not a foreseeable extension
of their job responsibilities.  The evidence at trial was that the
pizza boxes were empty.  Even if the pizzas were stolen, the pizzeria
directed Hall not to attempt to recover stolen property and the
pizzeria did not penalize employees for stolen pizzas.  Accordingly,
just as in Harrington and Rubin, we find as a matter of law that
Hall's actions were not in furtherance of his employer's interests.
     The case law plaintiff relies upon is readily distinguishable
from the instant case.  For example, Sunseri v. Puccia, 97 Ill. App.
3d 488, 422 N.E.2d 925 (1981), involved a situation where a bartender
committed an intentional tort while attempting to maintain order and
protect his employer's property.  The court ruled that a directed
verdict was inappropriate because whether such conduct was
unforeseeable in light of the bartender's duties and whether the
bartender's use of force was excessive were questions of fact for the
jury.  Sunseri, 97 Ill. App. 3d 488, 422 N.E.2d 925.  In
distinguishing cases involving bartenders and bouncers from other
employees, the Rubin court stated that "[t]he nature of a bartender's
or bouncer's job makes the use of force during the course of his
employment highly probable."  Rubin v. Yellow Cab Co., 154 Ill. App.
3d 336, 339, 507 N.E.2d 114, 115 (1987).
     In the case at bar there was no evidence presented which would
establish even an inference that the use of force was a reasonably
foreseeable extension of Hall's duties.  Rather, such conduct was
contrary to his employer's policy of allowing supervisors to handle
thefts.  We find that, as a matter of law, Hall's conduct in pursuing
the Jeep was an unforeseeable extension of his job responsibilities. 
Because Hall was acting outside the scope of his employment, we find
that the pizzeria could not be held liable for Hall's conduct as a
matter of law. Therefore, we affirm the ruling of the trial court.
     Affirmed. 
     ZWICK and QUINN, JJ., concur.