Baumrucker v. Express Cab Dispatch, Inc. , 2017 IL App (1st) 161278 ( 2017 )

2017 IL App (1st) 161278
No. 1-16-1278
Opinion filed July 18, 2017
Second Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
MARGARET BAUMRUCKER, )
)
Appeal from the Circuit Court
Plaintiff-Appellee, )
of Cook County.
)
)
v. )
No. 12 L 6839
)
EXPRESS CAB DISPATCH, INC. d/b/a Express )
Cab Company, EXPRESS CAB COMPANY, )
The Honorable
INC. d/b/a Express Cab Company, and LUIS )
Michael R. Panter,
LEAL, )
Judge, presiding.
)
Defendants-Appellants. )
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices Neville and Mason concurred in the judgment and opinion.
OPINION
¶1 Three weeks after Express Cab Dispatch, Inc., and Express Cab Company, Inc.
(collectively, Express Cab), leased Luis Leal a taxi cab, he hit a pedestrian, Margaret
Baumrucker, while she was walking to her job at MacNeal Hospital in Berwyn. Although Leal
was driving at a slow speed, he knocked Baumrucker to the ground, injuring her left shoulder.
Baumrucker has had years of physical therapy, and according to her physician, the shoulder
1-16-1278
injury is permanent and will likely cause her pain and restrict some activities for the rest of her
life.
¶2 Baumrucker sued Express Cab alleging negligence and willful and wanton entrustment of
the cab to Leal. She sued Leal for negligence. Baumrucker argued that Express Cab acted
recklessly by failing to check Leal’s driving record, which would have shown that while living
out of state, he had been convicted of driving while intoxicated in 2000 and ticketed for speeding
more than 85 miles per hour in 2010. Express Cab conceded Leal was negligent and Baumrucker
was injured but contested the extent of her injuries and the allegations that they acted willfully
and wantonly by entrusting the cab to Leal.
¶3 After trial, a jury returned a verdict for Baumrucker and awarded her $897,740.81, which
included $397,740.81 in compensatory damages and $500,000 in punitive damages. The trial
court denied defendants’ motion for a judgment notwithstanding the verdict (n.o.v.) and motion
for a new trial on damages. Defendants contend (i) the evidence did not support the jury’s verdict
on the willful and wanton entrustment claim, (ii) Leal’s driving record should not have been
admitted into evidence, (iii) the trial court abused its discretion in permitting Baumrucker to
present expert witness testimony that Express Cab had a nondelegable duty to run a background
check on prospective drivers, (iv) the trial court abused its discretion in instructing the jury on
punitive damages, and (v) the compensatory and punitive damages awards were excessive.
¶4 We affirm. The jury’s verdict was not against the manifest weight of the evidence, the
trial court’s evidentiary rulings and jury instruction were not an abuse of discretion, and the
damages were reasonable and not excessive.
¶5 BACKGROUND
-2­
1-16-1278
¶6 On October 17, 2011, at about 3 p.m., Margaret Baumrucker was walking to MacNeal
Hospital in Berwyn, where she worked as a psychiatric nurse. Baumrucker, who was 60 years
old, was crossing the street at the crosswalk with the right of way. Luis Leal, who was driving a
cab he leased from Express Cab, stopped to let a passenger out and suddenly accelerated, hitting
Baumrucker. She was knocked to the pavement, injuring her left shoulder. Baumrucker was
treated in the MacNeal Hospital emergency room and released.
¶7 Baumrucker filed a complaint against Leal and Express Cab alleging negligence. She
later amended her complaint to add counts against Express Cab for willful and wanton
entrustment. Her amended complaint alleged (i) negligent operation of a motor vehicle; (ii)
negligent entrustment of the cab to Leal; (iii) willful, reckless, and wanton entrustment of the cab
to Leal; (iv) negligent hiring of Leal; and (v) reckless, willful, and wanton hiring of Leal. The
reckless entrustment claims were based on Baumrucker’s allegation that Express Cab knew or
should have known Leal posed an unreasonable risk of harm to the public because he had a 2000
conviction for driving while intoxicated and several related offenses, including failure to pay
fines, perform community service, attend victim impact panels, and register for DUI school, and
a 2010 speeding conviction. (Baumrucker sought to introduce additional convictions, but the trial
court excluded evidence of Leal’s nondriving criminal record.) The trial court denied defendants
motion to dismiss Baumrucker’s reckless entrustment counts.
¶8 The trial court heard pretrial argument on defendants’ motion in limine, seeking to
prevent Baumrucker from presenting Andrew Sievers as an expert witness to testify that (i) Leal
was an unqualified and incompetent driver, (ii) Express Cab was negligent in entrusting him with
a cab, and (iii) Express Cab was reckless in failing to screen him regarding his driving record and
-3­
1-16-1278
background. Defendants also sought to bar mention of Leal’s criminal convictions or arrests and
argument that Express Cab was negligent or reckless when it entrusted the cab to Leal.
¶9 After a hearing, the trial court dismissed the negligent entrustment claim but allowed
Baumrucker to proceed on the willful and wanton entrustment claim. The court also found
Sievers could testify as to his opinion about causation and liability, Express Cab’s screening
process, and Leal’s driving record.
¶ 10 The trial court also heard argument on Baumrucker’s motion in limine seeking to bar
production of Leal’s chauffer’s license. Baumrucker argued defendants violated Illinois Supreme
Court Rule 213 (eff. Jan. 1, 2007) by failing to timely comply with her multiple requests for the
license, which defendants produced just three weeks before trial. She also contested the
authenticity of the license, which was a poorly replicated faxed document that did not include
Leal’s name or the date of issuance. Defendants made an oral motion to bar argument that Leal
did not possess a chauffer’s license; they asserted Cicero does not permit operation of a cab
without a license and they had produced Leal’s license. The trial court agreed that defendants’
failure to produce the chauffer’s license sooner violated Rule 213, but found no prejudice to
Baumrucker. The trial court held the license was admissible and Baumrucker could challenge
authenticity.
¶ 11 The case was tried before a jury. (Leal was served a summons and Express Cab filed an
appearance on his behalf, but Leal did not appear at trial despite Baumrucker’s request under
Illinois Supreme Court Rule 237 (eff. July 1, 2005) compelling his appearance; he also did not
appear for three noticed depositions.) Donald Batryn, Express Cab’s fleet manager, called as an
adverse witness, testified he was in charge of finding new drivers. Express Cab does not hire
drivers but leases cabs for a flat fee. Express Cab does not give prospective drivers a written test
-4­
1-16-1278
or a road test and does not conduct a criminal background check. And while Express Cab
provides orientation for new drivers, it does not provide either training or a training or safety
manual.
¶ 12 Express Cab hires drivers who have a chauffer’s license issued by the town of Cicero.
According to Batryn, Leal completed an application to lease a cab and was hired in September
2011. On the application, which was admitted into evidence, Leal left blank the spaces asking for
his social security number, and his prior taxicab and work experience. In the space asking for his
prior address, he listed “ABQ, NM.” Spaces on the application indicating whether the applicant
was interviewed and the application was acceptable were left blank. Batryn or his brother
interviewed Leal and accepted the application, but Batryn could not recall which of them did.
¶ 13 Leal had no prior cab driving experience, but according to Batryn, he had a Cicero
chauffer’s license. Batryn said to his knowledge, the Cicero police department conducts a written
test, a road test, and a five-year criminal background check on chauffer license applicants. He
acknowledged he had not seen proof of those tests or a copy of a background check.
¶ 14 Leal obtained an Illinois drivers license on April 26, 2011, some five months before
Express Cab hired him. Batryn testified that Leal’s driving record was the most important
document in deciding to hire Leal, and in accordance with the company’s practice, he looked at
Leal’s five-month Illinois driving record. He did not obtain Leal’s driving record from New
Mexico, where Leal previously lived, or his prior work history but testified he had “done
everything required by me.”
¶ 15 Batryn acknowledged that Leal had been convicted of driving while intoxicated in New
Mexico and related offenses and, in September 2010, of speeding in excess of 85 miles per hour
in Arizona. If Batryn had known about the convictions, he probably would not have allowed Leal
-5­
1-16-1278
to drive for the company, but Express Cab is not required to acquire applicants’ out of state
driving records. After the accident, Express Cab did not change its hiring procedures.
¶ 16 During Batryn’s testimony, the trial court admitted into evidence the copy of Leal’s
purported Cicero chauffer’s license. The license was issued in 2011 but did not have a specific
date. It did not include Leal’s name but had the number “168” on it. It also had a picture of a
man, whom Batryn recognized as Leal. Batryn has seen hundreds of chauffer’s licenses issued by
Cicero, and the exhibit admitted into evidence appeared to be a Cicero chauffer’s license.
¶ 17 Baumrucker presented Andrew Sievers as an expert witness to testify about the vetting
process for commercial drivers. Before becoming a safety consultant, Sievers worked in the
trucking industry, in various safety and risk management positions. When hiring a driver for a
cab or other commercial vehicle, Sievers said that, at minimum, an employer should require
applicants to complete a form listing their driving record for the previous three years and conduct
an interview; a criminal background check; a physical exam, including vision and drug tests; and
a road test.
¶ 18 According to Sievers, Express Cab failed to meet this minimum standard. It did not check
Leal’s employment history, interview him, do a criminal background check, or conduct a
physical, drug test, eye test, or road test. Sievers also said Express Cab’s failure to provide a
safety manual, explaining rules and regulations and company policies and procedures, falls
below reasonable standards. As for Leal’s application, it was deficient, lacking Leal’s social
security number, employment history, taxi driving history, criminal background, or driving
record. According to Sievers, Express Cab’s screening of Leal was “the worst I’ve ever seen in
screening a commercial driver” and “it’s real apparent they did not care; because if they cared
they would have done at least a little bit of a background check, and they didn’t do any.” Had
-6­
1-16-1278
there been safety controls in place, Sievers testified Express Cab could have easily determined
Leal was unfit to drive a cab.
¶ 19 Over defendants’ objection, Sievers said Express Cab’s failure to perform a background
check was willful and wanton and put the motoring public at increased unnecessary risk. Defense
counsel moved to strike, arguing Sievers should not be permitted to give an opinion on an
ultimate issue. The trial court overruled the objection, but instructed the jurors they would
determine whether Express Cab engaged in willful and wanton conduct.
¶ 20 On cross-examination, Sievers testified that the standards he identified were good
practice for owners and operators of commercial vehicles and admitted they were not based on
any federal or state laws or regulations. They were his opinion based on Chicago requirements,
which he acknowledged were not the same as the rules that apply in Cicero, Express Cab’s base.
He acknowledged a Cicero ordinance requires chauffer’s license applicants to pass a driving test
and that Cicero determined if an applicant had any criminal convictions in the previous five
years. But, he said, regardless of the rules in Cicero for obtaining a chauffer’s license, Express
Cab had a nondelegable duty to confirm prospective drivers are fit and safe.
¶ 21 Baumrucker testified she was 60 years old at the time of the accident and a nurse for 40
years, then working in the psychiatric department at MacNeal Hospital. Leal’s cab hit her on the
right shoulder and hip and slammed her left shoulder to the concrete, causing pain in the upper
part of her back, going down the spine. Immediately after the accident, Dr. Sarah Johnson in the
MacNeal Hospital emergency room evaluated Baumrucker and sent her home with a sling for her
left arm. Three days later, Baumrucker followed up with her primary care physician, Dr. Suman
Gupta, who sent her for an MRI of her shoulder and prescribed a muscle relaxant and physical
therapy. The MRI did not show a fracture.
-7­
1-16-1278
¶ 22 Baumrucker went to physical therapy from November 2011 to April 2013, and again
from September 2013 to March 2014. She estimated she had more than 60 physical therapy
sessions, and since her last one, she had been exercising at home four times a week. She said the
physical therapy helped, but she still had shoulder pain, which became exceedingly
uncomfortable by day’s end. The pain often woke her in the middle of the night. She took
ibuprofen about three times a week.
¶ 23 Dr. Gupta referred Baumrucker to Dr. William Sterba, an orthopedic surgeon. Dr. Sterba
injected cortisone in her shoulder, which relieved the pain for a few days. Dr. Sterba told
Baumrucker surgery would be a last resort. Baumrucker was reluctant to undergo surgery—she
is diabetic, has a blood clot in her leg, and was diagnosed with Parkinson’s disease in 2012, and
those underlying conditions increase the risk of surgery and can lead to slow healing.
¶ 24 At her attorney’s direction, Baumrucker saw another orthopedic surgeon, Dr. Samuel
Chmell, in August 2012. Dr. Chmell ordered an MRI, told her she had a torn labrum, and
recommended surgery. Baumrucker told Dr. Chmell she would prefer to continue with physical
therapy because of the risks associated with surgery.
¶ 25 Dr. Chmell testified that Baumrucker has traumatic derangement syndrome (persistent
pain) in the left shoulder and adhesive capsulitis (“frozen shoulder”). He did not operate because
of her underlying health problems, namely, (i) diabetes, which increases the risk of infection, and
(ii) frozen shoulder and Parkinson’s disease, which make postsurgery rehabilitation more
difficult. Should Baumrucker decide on surgery, it will cost about $50,000 with additional costs
for two to three months of rehabilitation. If she does not have surgery, she will likely need
regular care and treatment for the shoulder for the rest of her life, including periodic physical
therapy, doctor visits, and medication.
-8­
1-16-1278
¶ 26 Dr. Chmell opined that Baumrucker’s left shoulder problem is permanent and she will
likely suffer shoulder pain for the rest of her life and be unable or restricted from doing certain
activities, including reaching overhead with her left shoulder and lifting and carrying things with
the left arm. She also will likely have trouble sleeping as she will be awakened by a sharp pain
when rolling onto her left side.
¶ 27 On cross-examination, Dr. Chmell said adhesive capsulitis is more likely to occur in
someone with diabetes, but it would not have occurred but for the accident. Defense counsel
impeached Dr. Chmell with his discovery deposition testimony in which he said “I think her
adhesive capsulitis is related to her diabetes.” Because of the underlying risks, Dr. Chmell would
not operate on Baumrucker unless she demanded it.
¶ 28 Thirteen weeks after the accident, Baumrucker returned to work; however, MacNeal
Hospital terminated her three months later. She was earning about $1700 a week. Baumrucker
acknowledged that due to Parkinson’s disease, she cannot work as a nurse. She said that because
of her shoulder, she still has trouble doing certain tasks, like carrying grocery bags, putting
dishes away, bathing, yard work, and chores around the house. She continues to do physical
therapy and takes over-the-counter pain medication.
¶ 29 After plaintiff rested, defendants moved for a directed verdict on the willful and wanton
entrustment counts, which the trial court denied. Defendants presented one witness, Dr. Edward
Boone Brackett. Dr. Brackett reviewed Baumrucker’s medical records and examined her on
August 18, 2014. He said her X-rays showed some mild osteoarthritis but no fracture or
dislocation. He said that the X-ray taken four days after the accident showed a bone bruise that
should heal in four to six weeks and would not require surgery.
-9­
1-16-1278
¶ 30 In the jury instructions, the trial judge included Illinois Pattern Jury Instruction, Civil,
No. 35.01 (2011) (hereinafter, IPI Civil (2011) No. 35.01), an instruction on willful and wanton
conduct and punitive damages. The jury returned a verdict for Baumrucker and awarded her
$897,740.81, including $397,740.81 in compensatory damages and $500,000 in punitive
damages. The jury specifically found that Express Cab acted willfully and wantonly in entrusting
the cab to Leal. The trial court denied defendants’ motion for a judgment n.o.v. and motion for a
new trial on damages.
¶ 31 ANALYSIS
¶ 32 Defendants contend the trial court erred in denying their motion for a directed verdict and
their motion for a judgment n.o.v. because Baumrucker failed to present sufficient evidence to
support a finding of willful and wanton entrustment. Specifically, they argue that under long­
standing precedent, they were only obligated to make sure Leal had a valid Illinois driver’s
license and a chauffer’s license before leasing him the cab. They argue that the trial court should
not have allowed Baumrucker’s expert, Andrew Sievers, to testify that in his opinion Express
Cab, at minimum, was obligated to perform an additional independent background investigation
on Leal. Express Cab also asserts that Leal’s prior driving-related convictions—a 2000 DUI and
a 2012 speeding ticket—were not sufficient to support a finding of willful and wanton
entrustment and asks us to reverse the jury’s verdict.
¶ 33 “A directed verdict or a judgment n.o.v. is properly entered in those limited cases where
‘all of the evidence, when viewed in its aspect most favorable to the opponent, so
overwhelmingly favors movant that no contrary verdict based on that evidence could ever
stand.’ ” Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992) (quoting Pedrick v. Peoria & Eastern
R.R. Co., 37 Ill. 2d 494, 510 (1967)). “In ruling on a motion for a judgment n.o.v., a court does
-10­
1-16-1278
not weigh the evidence, nor is it concerned with the credibility of the witnesses; rather it may
only consider the evidence, and any inferences therefrom, in the light most favorable to the party
resisting the motion.” Id. “[A] judgment n.o.v. may not be granted merely because a verdict is
against the manifest weight of the evidence.” Id. “The court has no right to enter a judgment
n.o.v. if there is any evidence, together with reasonable inferences to be drawn therefrom,
demonstrating a substantial factual dispute, or where the assessment of credibility of the
witnesses or the determination regarding conflicting evidence is decisive to the outcome.” Id. at
454. When the trial court has erroneously denied a motion for judgment n.o.v., we will reverse
the verdict without remand. Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 37.
Although a motion for directed verdict and motion for judgment n.o.v. are made at different
times, they raise the same questions and are governed by the same rules of law. Id. We review
de novo the trial court’s ruling on both motions. Id.
¶ 34 Willful and Wanton Entrustment
¶ 35 The Illinois Supreme Court has defined willful and wanton misconduct as a course of
action showing actual intent or reckless disregard for the safety of others. Klatt v.
Commonwealth Edison Co., 33 Ill. 2d 481, 488 (1965). Whether particular conduct can be
characterized as willful and wanton depends on each case’s facts and ordinarily presents a
question of fact for the jury to determine. Stehlik v. Village of Orland Park, 2012 IL App (1st)
091278, ¶ 34. But the trial court may grant a motion for directed verdict where all of the
evidence, viewed in the light most 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, 510 (1967).
-11­
1-16-1278
¶ 36 Express Cab concedes that liability may arise from entrusting a vehicle to someone
whose incompetency, inexperience, or recklessness is known or should have been known by the
owner or entrustor of the vehicle. Lockett v. Bi-State Transit Authority, 94 Ill. 2d 66, 74 (1983);
Giers v. Anten, 68 Ill. App. 3d 535, 538 (1978). But Express Cab contends Illinois courts have
held that a cab company cannot be deemed reckless so long as the company determined that a
prospective driver had a valid Illinois driver’s license and a chauffer’s license before entrusting
the driver with a cab.
¶ 37 For support, Express Cab relies on two cases, Richards v. Checker Taxi Co., 168 Ill. App.
3d 154 (1988) and Ledesma v. Cannonball, Inc., 182 Ill. App. 3d 718 (1989). In Richards, the
plaintiff, who was injured while a passenger in a Checker taxi, obtained a jury verdict against
Checker for negligence and willful and wanton entrustment. Richards argued that Checker’s
failure to review an abstract of its employee’s driving record from the Illinois Secretary of
State’s office sufficed to support the jury’s verdict of willful and wanton entrustment. Richards,
168 Ill. App. 3d at 156. The appellate court disagreed, finding no authority required Checker to
obtain a copy of the driver’s record before entrusting him with a cab and noting that the only
requirements, taking into account certain statutory obligations, were that the driver, because he
was a taxi driver, have a valid chauffeur’s license and, because the vehicle was leased to the
driver, a valid driver’s license. Id. at 157. The evidence showed that the driver met both
requirements. But, the court stated that in addition to requiring proper licensing, Checker had a
practice of contacting a prospective taxicab driver’s previous employer to obtain information on
his or her driving record and employment performance. Id. The court also pointed to evidence
showing that in the two years the driver worked for Checker before the accident, he had no major
traffic violations. Id. The court concluded “[b]ased on the record before us, we find no evidence
-12­
1-16-1278
to demonstrate that Checker’s conduct was wilful and wanton in entrusting [the driver] with a
taxicab. Id.
¶ 38 In Ledesma, a bicyclist who was struck by a messenger driver sued the driver’s employer,
Cannonball, Inc., alleging in part that the company willfully and wantonly entrusted a vehicle to
the driver. The evidence showed that the driver filled out a job application stating that he had a
valid Illinois driver’s license and insurance for his vehicle. Ledesma, 182 Ill. App. 3d at 721-22.
The driver acknowledged his license had previously been revoked and in response to another
question concerning whether he had had any traffic violations in the past year, the driver wrote
“ ‘Yes *** License revoked for accident. Traffic ticket for speeding.’ ” Id. at 722. After
completing the application, the driver was interviewed by a personnel assistant, who stated in her
deposition that the driver’s prior license revocation was not determinative in the decision to hire,
and that Cannonball considered other factors, including knowledge of the Chicago area,
communication skills, physical appearance, and driving record. Id. She also said at that time
when the applicant had a valid driver’s license, the company had no policy to investigate a
potential employee’s prior driving record beyond the information in the application. Id.
¶ 39 Cannonball filed a motion for summary judgment on the willful and wanton entrustment
count, which the trial court granted, and the appellate court affirmed. The appellate court found
“there was no authority to require Checker to obtain a copy of the driver’s record before
entrusting the vehicle to him, and noted that the only requirements, taking into account certain
statutory obligations, were that the driver, because he was a taxi driver, have a valid chauffeur’s
license and, because the vehicle was leased to the driver, that he have a valid driver’s license.”
Id. at 729 (citing Richards, 168 Ill. App. 3d at 157). The court also stated “[s]imilarly, the
plaintiff here presents no authority which would suggest that Cannonball was required to
-13­
1-16-1278
investigate [the driver’s] past driving record. Like the evidence presented in Richards, the
evidence here showed that Cannonball checked to make sure that [the driver] had a valid Illinois
driver’s license and that he was insured before hiring him and entrusting him with the vehicle.
Moreover, we note that, similar to the evidence in Richards, the evidence here showed that while
[the driver] was in Cannonball’s employ, he had no major traffic violations.” Id. at 729-30.
¶ 40 Express Cab argues that Richards and Ledesma recognize that a prior driving record is
irrelevant so long as the prospective driver has a valid driver’s license and a chauffer’s license.
Defendants assert that because the parties do not dispute Leal had a valid Illinois driver’s license
and Express Cab believed Leal had a valid Cicero chauffer’s license, Express Cab met that
standard and cannot be deemed to have acted willfully and wantonly in entrusting Leal with a
cab. Express Cab also asserts that Leal’s possession of an Illinois driver’s license necessarily
means that the Illinois Secretary of State determined that, regardless of violations in other states,
his driving record was good enough to warrant driving privileges in Illinois. And that Cicero, by
ordinance, required that applicants for a chauffer’s license complete a written test and a driving
test, not be addicted to alcohol or drugs, and not have a disqualifying criminal record.
Defendants assert that Baumrucker did not present evidence showing Leal failed to meet the
requirements of the Cicero ordinance.
¶ 41 Express Cab maintains that rather than follow the standard set forth in Richards and
Ledesma, the trial court permitted Sievers to present a different “minimum” standard to the jury
requiring a cab company to perform an independent investigation before entrusting a vehicle to a
prospective driver. And this standard was based solely on Sievers’s opinion rather than a
community standard and or existing law. We disagree.
-14­
1-16-1278
¶ 42 First, as to Sievers, Express Cab does not provide a persuasive argument for excluding
his testimony. He testified based on his knowledge of industry standards, that commercial
transportation companies, including those who lease cabs, have an independent duty to vet
commercial drivers. Express Cab had the opportunity to cross-examine Sievers on that opinion.
Further, Express Cab could have presented its own expert to rebut Sievers but did not do so.
¶ 43 Turning to Richards and Ledesma, neither case sets forth a bright line rule that a driver’s
license and chauffer’s license alone are sufficient to insulate a cab company from liability for
willful and wanton entrustment. In Richards, the court concluded that the absence of a driver’s
abstract from the Illinois Secretary of State did not render the employer’s vetting process
deficient. But, the court looked at factors in addition to the employee’s possession of a driver’s
license and a chauffer’s license in determining that the plaintiff had no claim for willful and
wanton entrustment. In addition to requiring the proper licenses, Checker maintained a practice
of contacting prospective taxicab driver’s previous employer to obtain information on his or her
driving record and employment performance with that company. The court also noted that the
driver “had been leasing a taxicab from Checker for over two years” and “incurred no major
driving violations” and that based “on the record before us, we find no evidence to demonstrate
that Checker’s conduct was wilful and wanton in entrusting [the driver] with a taxicab.”
Richards, 168 Ill. App. 3d at 157.
¶ 44 Similarly, in Ledesma, the court looked beyond licensing in determining whether
Cannonball was willful and wanton in vetting a prospective driver before entrusting him with a
vehicle. The court noted that the driver completed a job application, which included questions
about his driving record, whether his license had ever been revoked or suspended, and whether
he had any driving violations in the past year. Ledesma, 182 Ill. App. 3d at 721-22. Cannonball
-15­
1-16-1278
also interviewed the driver and explained the factors that influence hiring decision, including
knowledge of the Chicago area, communication skills, physical appearance, and driving record.
Id. at 722.
¶ 45 As noted, whether particular conduct can be characterized as willful and wanton depends
on the facts of the case. Stehlik v. Village of Orland Park, 2012 IL App (1st) 091278, ¶ 34. As
the Richards court stated, “the determination of whether an individual would be a competent and
safe taxicab driver is subjective rather than objective.” Richards, 168 Ill. App. 3d at 157.
Although proper licensing is required, it is not the lone factor when deciding whether a cab
company was willful and wanton in entrusting a driver with a cab. And, we cannot say that when
viewed in the light most favorable to Baumrucker, even absent the testimony of Sievers, the
evidence so overwhelmingly favors Express Cab that the jury’s verdict should be reversed. First,
Express Cab required prospective drivers to complete an application, but Leal’s was incomplete
and devoid of crucial information, including his Illinois driver’s license number, social security
number, and past job experience. Indeed, the application also has a space for marking whether
the application was acceptable or not, and that space was blank. Thus, unlike Richards and
Ledesma, where the defendants had certain practices and procedures when hiring a driver and
adhered to them, Express Cab failed to follow its own vetting standards.
¶ 46 Batryn testified that a driver’s driving record was the most important document in
analyzing a driver’s fitness, but Express Cab considered only the five month driving record he
accrued after getting his Illinois driver’s license. Leal’s employment application listed his
address as “ABQ, NM,” which would indicate he had a driving record in New Mexico, but
Express Cab did not ask for his driving record from that state. Batryn acknowledged that if he
-16­
1-16-1278
had known about Leal’s prior driving record, which included a DUI and a speeding ticket, he
probably would not have entrusted the cab to him.
¶ 47 Batryn also acknowledged that Leal had never driven a cab before, but Express Cab did
not provide him training, a safety manual, or company policies and procedures. Unlike the
drivers in Richards and Ledesma, Leal did not have experience that would lead Express Cab to
believe he could be entrusted with a cab.
¶ 48 Even if we agreed that Express Cab only was required to determine whether Leal had a
valid driver’s license and chauffer’s license, the validity of the chauffer’s license was a question
of fact and based on the evidence it would be reasonable for the jury to determine that Leal did
not possess a valid chauffer’s license. The trial court stated that Baumrucker could challenge the
validity of the license, and considering the facts in the light most favorable to her, the jury could
have concluded that Leal did not have a valid chauffer’s license.
¶ 49 As noted, Express Cab violated Illinois Supreme Court Rule 213 by failing to produce a
copy of Leal’s purported chauffer’s license, despite Baumrucker’s repeated requests. Defendants
turned over a purported license a mere three weeks before trial. The trial court permitted
Baumrucker to challenge the license’s authenticity, and her attorney pointed out that the license,
which was a photocopy of poor quality, did not have Leal’s name or other identifying
information or a date of issue. The license was not self-authenticating because it did not have
Cicero’s seal or a certification under seal that the town president and clerk who signed the
license had official capacity to sign and that their signatures were genuine. See Ill. R. Evid.
902(2) (eff. Jan. 1, 2011). Moreover, defendants did not present any witness to authenticate the
license. See Ill. R. Evid. 901(b)(1) (eff. Jan. 1, 2011) (“Testimony that a matter is what it is
claimed to be” satisfies the authentication requirement.). For instance, an official from Cicero did
-17­
1-16-1278
not testify as to its authenticity, and Leal, himself, was not present to testify as to how he
obtained the license. Batryn could only testify that the purported license looked like other Cicero
chauffer’s licenses and the photo looked like Leal. But, based on the poor quality of the
document and the lack of testimony authenticating, the jury could have reasonably concluded
Leal did not have a chauffer’s license.
¶ 50 Defendants also assert that Leal’s driving record, which included a 15-year-old DUI
conviction and a speeding ticket were insufficient to support a willful and wanton entrustment
verdict. But, as noted, in making that assessment the jury was permitted to consider all of the
facts presented. The jury did not view Leal’s driving record in isolation; they considered other
factors, including his inexperience driving a cab and lack of training, both of which were known
by Express Cab when they entrusted him with a cab. Viewing the evidence in the light most
favorable to Baumrucker, we cannot say that the evidence so overwhelmingly favors defendants
that the verdict cannot stand. Thus, the trial court properly denied the motions for a directed
verdict and a judgment n.o.v.
¶ 51 Evidentiary Errors
¶ 52 Next, defendants assert that the trial court made numerous evidentiary errors that
deprived them of a fair trial—(i) admission of Sievers’s expert’s testimony and (ii) Leal’s 2001
DUI conviction and 2010 speeding ticket. The admission of evidence is within the sound
discretion of the trial court, and we will not reverse the trial court’s ruling unless that discretion
was abused. Gill v. Foster, 157 Ill. 2d 304, 312-13 (1993).
¶ 53 Defendants contend the trial court erred in permitting Sievers to testify as to his opinion
on the “minimum” standard for vetting a commercial driver because it was his personal opinion,
based on conjecture and speculation, rather than a community standard. Preliminarily, we
-18­
1-16-1278
address Baumrucker’s argument that defendants waived their right to raise this issue by failing to
object to Sievers’s testimony at trial. Baumrucker acknowledges that defendants objected to the
testimony in a pretrial motion in limine and asserts that to preserve the issue for appeal, they also
needed to object when the testimony was offered.
¶ 54 A court’s evidentiary rulings are not reviewable on appeal unless properly preserved.
Thornton v. Garcini, 237 Ill. 2d 100, 106 (2009). When the court makes its rulings before trial in
response to the parties’ motions in limine, the rulings are interlocutory and remain subject to
reconsideration throughout trial. Cetera v. DiFilippo, 404 Ill. App. 3d 20, 40 (2010). So denial of
the complaining party’s pretrial motion to exclude evidence is not sufficient to preserve the issue
for appeal. Simmons v. Garces, 198 Ill. 2d 541, 569 (2002); Cetera, 404 Ill. App. 3d at 40. The
complaining party also must make a contemporaneous objection at trial when the evidence is
introduced to allow the trial court the opportunity to revisit its earlier ruling. Simmons, 198 Ill. 2d
at 569. Failure to object at trial results in forfeiture of the issue on appeal. Id. Express Cab
acknowledges it did not make a continuing objection to Sievers’s testimony but asserts that we
should review it as plain error.
¶ 55 A reviewing court may consider a forfeiture under the plain-error doctrine in civil cases.
Wilbourn v. Cavalenes, 398 Ill. App. 3d 837, 855-56 (2010) (citing Palanti v. Dillon Enterprises,
Ltd., 303 Ill. App. 3d 58, 66 (1999)). Although the plain-error doctrine finds much greater
application in criminal cases, in limited circumstances it may be applied in civil cases. Arient v.
Shaik, 2015 IL App (1st) 133969, ¶ 37; Wilbourn, 398 Ill. App. 3d at 856 (citing Gillespie v.
Chrysler Motors Corp., 135 Ill. 2d 363, 375 (1990)). The cases that have applied it have
restricted the plain-error doctrine to situations where the act complained of was a prejudicial
error so egregious that it deprived the complaining party of a fair trial and substantially impaired
-19­
1-16-1278
the integrity of the judicial process. Arient, 2015 IL App (1st) 133969, ¶ 37; Wilbourn, 398 Ill.
App. 3d at 856; Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 8 (2007); In re Marriage
of Saheb, 377 Ill. App. 3d 615, 627 (2007). This court has observed that applying the plain-error
doctrine to civil cases should be “exceedingly rare.” Arient, 2015 IL App (1st) 133969, ¶ 37
(citing Wilbourn, 398 Ill. App. 3d at 856, citing Palanti, 303 Ill. App. 3d at 66). The question,
then, is whether the case before us is the “exceedingly rare” civil case that requires applying the
plain-error doctrine. Id.
¶ 56 Defendants complain that Sievers was improperly “permitted to make up his own legal
standard” that a taxi company has a nondelegable duty to perform an independent investigation
and road test on prospective drivers, which is contrary to existing case law as stated in Richards
and Ledesma. This testimony, they argue, prevented defendants from receiving a fair trial and, if
allowed, will deteriorate the judicial process. We disagree.
¶ 57 Generally, a person will be allowed to testify as an expert when his or her experience and
qualifications provide knowledge that is not common to laypersons and when the testimony will
aid the trier of fact in reaching its conclusions. Thompson v. Gordon, 221 Ill. 2d 414, 428 (2006).
An expert only needs to have knowledge and experience beyond that of an average citizen. Id. at
429. Sievers’s opinion was based on 25 years in the commercial transportation industry, 12 years
experience as a trucking safety consultant, personal experience hiring commercial drivers, and
the requirements imposed by the city of Chicago. Further, as noted, we do not agree with
defendants that Richards and Ledesma set forth a bright line rule on proper vetting of cab
drivers. Sievers’s experience enabled him to provide the jury with his opinion about proper
vetting procedures, and defendants were not deprived of a fair trial. As noted, Express Cab could
-20­
1-16-1278
have presented its own expert to refute Sievers’s testimony regarding the proper standard of care.
There is no reason to review Sievers’s testimony for plain error.
¶ 58 Express Cab objected when Sievers offered his opinion on the ultimate issue as to
whether Express Cab acted willfully and wantonly by entrusting the cab to Leal. Thus, we will
consider that question. An expert witness may generally express an opinion as to the ultimate
issue. Townsend v. Fassbinder, 372 Ill. App. 3d 890, 905 (2007). The test for whether to admit
an expert’s opinion on the ultimate issue is whether that opinion aids the trier of fact to
understand the evidence or determine a fact in issue. Id. Sievers’s testimony meets the standard.
¶ 59 In addition, Express Cab contends the trial court erred in admitting Leal’s driving record
into evidence. Specifically, the trial court should have barred Leal’s 2000 DUI conviction under
Illinois Rule of Evidence 609(b) (eff. Jan. 1, 2011), which states that evidence of a conviction is
not admissible if a period of more than 10 years has elapsed since the date of conviction or of the
release of the witness from confinement, whichever is the later date. Express Cab further asserts
that even if Rule 609(b) does not apply, the trial court should have barred admitting into
evidence Leal’s DUI conviction because its probative value was outweighed by its danger of
unfair prejudice, given that the accident was unrelated to the use of alcohol or drugs. Express
Cab acknowledges that Leal’s speeding ticket is more recent but again asserts that it is unfairly
prejudicial as the accident occurred at a slow rate of speed.
¶ 60 Initially, we must point out that Rule 609 does not apply to the facts before us; it
expressly applies to evidence of convictions admitted for the “purpose of attacking the credibility
of a witness.” Ill. R. Evid. 609(a) (eff. Jan. 1, 2011). Leal was not a witness and did not even
appear at trial, so the evidence was not admitted for that purpose. Further, in a reckless
entrustment of a vehicle cause of action, a driver’s driving record “carrie[s] the potential of
-21­
1-16-1278
prejudicing the jury against defendant” but is “highly relevant, if not essential, to plaintiff’s case,
and to preclude its use was, in practical effect, to abolish plaintiff’s cause of action for wilful and
wanton misconduct.” Lockett, 94 Ill. 2d at 74. Because Leal’s driving record was relevant to the
willful and wanton entrustment claim and not barred by Illinois Rule of Evidence 609(b), the
trial court acted properly in admitting it into evidence.
¶ 61 Jury Instruction on Punitive Damages
¶ 62 Next, Express Cab argues that the trial court abused its discretion by giving IPI Civil
(2011) No. 35.01, because Baumrucker failed to present evidence to support a jury verdict that
Express Cab acted willfully and wantonly. Baumrucker contends that defendants waived this
issue by failing to raise it in the trial court. But, defendants did raise it in the posttrial motion for
a judgment n.o.v. or a new trial.
¶ 63 In general, a trial court has discretion to determine the appropriate jury instructions, and
its determination will be reversed for an abuse of discretion. In re Timothy H., 301 Ill. App. 3d
1008, 1015 (1998). But a litigant waives the right to object on appeal to instructions or verdict
forms that were given to a jury, when the party fails to make a specific objection during the jury
instruction conference or when the form is read to the jury. Marek v. Stepkowski, 241 Ill. App. 3d
862, 870 (1992). Additionally, even if the litigant properly objects to an instruction or verdict
form, the litigant is still required to submit a remedial instruction or verdict form to the trial
court. See id. Timely objection and submission assists the trial court in correcting the problem
and prohibits the challenging party from gaining an advantage by obtaining reversal based on the
party’s own failure to act. Morus v. Kapusta, 339 Ill. App. 3d 483, 489 (2003). The record does
not indicate that defendants made a specific objection during the jury instruction conference or
tendered a remedial instruction. And, because we find that Baumrucker did present sufficient
-22­
1-16-1278
evidence to establish reckless entrustment, we reject defendants’ argument that the trial court
abused its discretion in giving the jury the punitive damages instruction.
¶ 64 Damages
¶ 65 Finally, Express Cab argues that the compensatory and punitive damages were excessive
and the trial court should have granted its motion for a new trial.
¶ 66 On a motion for a new trial, a trial court will weigh the evidence and set aside the jury’s
verdict and order a new trial if the verdict is against the manifest weight of the evidence. Maple,
151 Ill. 2d at 454. “A verdict is against the manifest weight of the evidence where the opposite
conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not
based upon any of the evidence.” (Internal quotation marks omitted.) Id. A trial court’s denial of
a motion for a new trial will not be reversed absent a clear abuse of discretion. Id. at 455. The
abuse-of-discretion standard applies because the trial judge had the benefit of previous
observation of the appearance of the witnesses, their manner in testifying, and the circumstances
aiding in the determination of credibility. Id. at 456.
¶ 67 The amount of a verdict is generally at the discretion of the jury. Dahan v. UHS of
Bethesda, Inc., 295 Ill. App. 3d 770, 781 (1998). A question of damages is to be determined by
the trier of fact, and “a reviewing court will not lightly substitute its opinion for the judgment
rendered in the trial court.” Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997); Klingelhoets v.
Charlton-Perrin, 2013 IL App (1st) 112412, ¶ 67. But a court will order a remittitur or, if the
plaintiff does not consent, a new trial, if a verdict is excessive. Best v. Taylor Machine Works,
179 Ill. 2d 367, 412-13 (1997). In Richardson, the supreme court indicated that an award may be
viewed as excessive should it (i) exceed the range of fair and reasonable compensation, (ii) be
the result of passion or prejudice, or (iii) be so large that it shocks the judicial conscience.
-23­
1-16-1278
Richardson, 175 Ill. 2d at 113. Remittitur will not be ordered when an award “‘falls within the
flexible range of conclusions which can reasonably be supported by the facts.’ ” Best, 179 Ill. 2d
at 412 (quoting Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 470 (1992)). The opinion also
states that when reviewing an award of compensatory damages for nonfatal injuries, a court may
consider, among other things, “the permanency of the plaintiff’s condition, the possibility of
future deterioration, the extent of the plaintiff’s medical expenses, and the restrictions imposed
on the plaintiff by the injuries.” Richardson, 175 Ill. 2d at 114.
¶ 68 Defendants contends that the jury’s award of $50,000 in compensatory damages for
future surgery was excessive because Baumrucker testified she did not want surgery and her
physician, Dr. Chmell, said he would not perform it unless she demanded it and that her adhesive
frozen shoulder was related to diabetes and not the accident.
¶ 69 Taking defendants’ last contention first, Dr. Chmell did not testify that Baumrucker’s
frozen shoulder was due to her diabetes. Instead, he testified that “the diabetes makes it more
risky and more common for it to happen. I don’t think the adhesive capsulitis would have
occurred but for the accident though.”
¶ 70 Similarly, defendants mischaracterize the jury’s award of $50,000 for future medical
expenses as money for surgery she will never have. True, Baumrucker agrees with defendants
and her own doctor that her diabetes and Parkinson’s disease do not make her an ideal candidate
for surgery. But Dr. Chmell testified that the shoulder condition was permanent and that
Baumrucker, who was 63 years old at trial, would require physical therapy off-and-on for the rest
of her life if she did not undergo corrective surgery. Baumrucker asked for $87,000 to cover
physical therapy and all other future medical expenses. The jury awarded her $50,000. That is
not unreasonable.
-24­
1-16-1278
¶ 71 As for the remainder of Baumrucker’s compensatory damages, defendants do not object
to the award of $25,640.81 for medical expenses and $22,100 in lost wages. Baumrucker also
requested $250,000 for pain and suffering and $250,000 for loss of normal life. The jury awarded
her $150,000 for each. Those amounts are not unreasonable given the permanency of her injury,
which will cause pain for the rest of her life and restrict her ability to do basic activities like
carrying grocery bags, putting dishes away, bathing, yard work, and other household chores.
¶ 72 Defendants next assert the punitive damages were excessive and warrant a new hearing
under the Illinois common law standard or the federal due process standard.
¶ 73 As for the Illinois common law standard, once the court has determined as a matter of
law that punitive damages can be awarded for a particular cause of action, the jury must decide
based on the evidence whether the defendant’s conduct was sufficiently willful or wanton to
warrant the imposition of punitive damages. Cirrincione v. Johnson, 184 Ill. 2d 109, 116 (1998).
The measure of punitive damages to be awarded also presents a question for the jury. Kelsay v.
Motorola, Inc., 74 Ill. 2d 172, 186 (1978).
¶ 74 In reviewing a jury’s award of punitive damages, relevant circumstances to consider
include, but are not limited to, the nature and enormity of the wrong, the financial status of the
defendant, and the potential liability of the defendant. Deal v. Byford, 127 Ill. 2d 192, 204
(1989). Each case must be assessed in light of the specific facts and circumstances involved, and
the underlying purpose of a punitive damage award must be satisfied. Id.
¶ 75 “[T]he amount of a punitive damages award will not be reversed unless it is so excessive
that it must have been a result of passion, partiality, or corruption.” Franz v. Calaco
Development Corp., 352 Ill. App. 3d 1129, 1139 (2004). Although the purpose of punitive
damages is to punish and deter wrongful conduct, juries have been charged with their
-25­
1-16-1278
determination because they depend so closely on the jury’s fact finding. Id. at 1142. Because a
jury’s determination of the amount of punitive damages is a predominately factual issue, we will
not reverse a jury’s determination as to the amount of punitive damages unless it is against the
manifest weight of the evidence. Cirrincione, 184 Ill. 2d at 116; Franz, 352 Ill. App. 3d at 1145.
¶ 76 Defendants also claim that the jury’s award of $500,000 in punitive damages was so
excessive that it violated their constitutional right to due process. This analysis differs
significantly from the Illinois common law analysis. The due process clause of the fourteenth
amendment prohibits grossly excessive or arbitrary punishments on a tortfeasor because they
serve no legitimate purpose and constitute an arbitrary deprivation of property. State Farm
Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 417 (2003). Punitive damage
awards generally serve the same purposes of punishment and deterrence as criminal penalties;
however, they are not subject to the protections applicable to a criminal proceeding. Id. at 417.
Instead, they are “imprecise[ly]” determined by juries with wide discretion to choose amounts.
Id. Further, the United States Supreme Court has expressed “concern” that juries may be basing
their awards on “ ‘biases against big businesses, particularly those without strong local
presences.’ [Citation.]” Id.
¶ 77 Accordingly, the U.S. Supreme Court developed three guideposts to determine whether
an award of punitive damages by a jury comports with due process: (i) the degree of
reprehensibility of the conduct, (ii) the disparity between the harm or potential harm suffered by
the plaintiff and the amount of punitive damages awarded, and (iii) the difference between the
punitive damages awarded and the civil penalties authorized or imposed in comparable cases.
BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996). We apply de novo standard of
review to those factors to ensure the punitive damages award is based on the “ ‘application of
-26­
1-16-1278
law, rather than a decisionmaker’s caprice.’ ” Cooper Industries Inc. v. Leatherman Tool Group,
Inc., 532 U.S. 424, 436 (2001) (quoting Gore, 517 U.S. at 587 (Breyer, J., concurring, joined by
O’Connor and Souter, JJ.).
¶ 78 The Supreme Court considers the first factor, the degree of reprehensibility of the
defendant’s conduct, to be the most important. Gore, 517 U.S. at 575. In evaluating the
reprehensibility of the defendant’s conduct, the Court has instructed us to consider whether: (i)
the harm caused was physical as opposed to economic; (ii) the tortious conduct evinced an
indifference to or a reckless disregard of the health or safety of others; (iii) the target of the
conduct had financial vulnerability; (iv) the conduct involved repeated actions or was an isolated
incident; and (v) the harm was the result of intentional malice, trickery, or deceit, or mere
accident. Campbell, 538 U.S. at 419. The existence of only one of these factors weighing in the
plaintiff’s favor may not be sufficient to sustain a punitive damage award, and the existence of
none of these factors in the plaintiff’s favor would render the award suspect. Id.
¶ 79 Defendants argue that, under the common law and due process standards, the punitive
damages award should be overturned because the only factor favoring Baumrucker is that she
sustained a physical injury. They assert that the actual accident was a slow speed collision that
occurred because of Leal’s inadvertence and that Baumrucker failed to prove that Express Cab
acted maliciously or with deliberate indifference to her safety by leasing the cab to Leal because
Express Cab did all that was required by the Cicero ordinance.
¶ 80 We disagree and find that the jury’s punitive damages award was not excessive or against
the manifest weight of the evidence and did not violate defendants’ due process rights.
Analyzing the due process factors first, we note that no comparable Illinois law imposes a civil
penalty, like a fine, for willful and wanton entrustment. Thus, we need not consider this factor.
-27­
1-16-1278
Next, in examining the reprehensibility of defendants’ conduct, the evidence showed that as far
as Express Cab knew, Leal only had been licensed to operate a motor vehicle for five months
because it did not bother to investigate anything beyond his recently issued Illinois license. As
Batryn admitted, had he known of Leal’s driving record beyond those five months, he probably
would not have hired him. Instead, Express Cab remained willfully ignorant and put a cab driver
on the road with little investigation into whether he could endanger the public. Further, according
to Batryn, Express Cab knew Leal had never driven a cab but failed to ensure that he was
properly trained to reduce the likelihood that he would harm pedestrians and other drivers. And
Express Cab did not change their vetting procedures after the accident to ensure that potentially
dangerous, untested, and untrained drivers would not be driving their cabs.
¶ 81 As for the disparity between the actual harm and the punitive damages award, defendants
argue the $500,000 punitive damages award should be reversed because it bears no relationship
to the actual damages suffered—$25,640.81 in medical expenses. First, we note that under the
Illinois common law analysis, the amount of punitive damages imposed on a defendant does not
have to bear any particular proportion to the size of the plaintiff’s compensatory recovery. Deal,
127 Ill. 2d at 204. Further, the jury awarded Baumrucker a total of $397,740.81 in compensatory
damages, which included the $25,640.81 in medical expenses. Thus, the punitive damages were
about 26% greater than the compensatory damages and not as defendants contend, 20 times
greater than the compensatory damages award. And the evidence does not show the punitive
damages award was so excessive that it must have been a result of passion, partiality, or
corruption. Thus, we will not reverse and remand for a new damages hearing.
¶ 82 Affirmed.
-28­