Blockmon v. McClellan ( 2019 )

2019 IL App (1st) 180420
FIRST DIVISION
June 24, 2019
No. 1-18-0420
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
LANISHA BLOCKMON, as Special Administrator of )
the Estate of Walter Blockmon III, deceased, )
)
Plaintiff-Appellee, ) Appeal from the
) Circuit Court of
v. ) Cook County
)
JAKOBI MCCLELLAN; VECTOR MARKETING ) No. 14 L 8538
CORPORATION, a Pennsylvania corporation; and )
CUTCO CORPORATION, a Delaware corporation, ) The Honorable
) Edward S. Harmening,
Defendants ) Judge Presiding.
)
(Vector Marketing Corp. and Cutco Corp., Defendants- )
Appellants). )
JUSTICE PIERCE delivered the judgment of the court, with opinion.
Presiding Justice Mikva and Justice Walker concurred in the judgment and opinion.
OPINION
¶1 This appeal arises out of a jury’s verdict in favor of plaintiff Lanisha Blockmon, as
special administrator of the estate of Walter Blockmon III. On July 11, 2014, Walter was driving
on I-80 near the city of Country Club Hills, Illinois, when his vehicle was struck from behind by
a vehicle driven by defendant Jakobi McClellan. Walter died from his injuries. Plaintiff
ultimately filed a five-count fourth amended complaint in the circuit court of Cook County
naming McClellan, Vector Marketing Corp. (Vector), and Cutco Corp. as defendants. Vector
No. 1-18-0420
markets, sells, and distributes cutlery and other kitchen equipment manufactured by Cutco.
Plaintiff alleged that in July 2014, McClellan was a sales representative for and an agent of
Vector and Cutco, and that at the time of the accident, McClellan was traveling between sales
calls in his role as a Vector sales representative. McClellan admitted that at the time of the
accident he was using the mapping and GPS functions on his cell phone to check the location of
his next sales call and to determine how late he was running, and that he was not looking at the
road.
¶2 At trial, plaintiff pursued theories that Vector and Cutco were directly liable for Walter’s
death for breaching a duty to train McClellan to not use his cell phone while driving, and were
vicariously liable for Walter’s death because McClellan was Vector’s and Cutco’s agent at the
time of the accident, as he was en route to a customer’s home while acting as a Vector sales
representative. The jury returned a general verdict in favor of plaintiff and against McClellan,
Vector, and Cutco, and awarded plaintiff $4.7 million in damages. The circuit court denied
Vector’s and Cutco’s posttrial motions for a directed verdict, judgment n.o.v., and for a new trial.
¶3 On appeal, Vector and Cutco argue that the circuit court should have entered
judgment n.o.v. on plaintiff’s direct negligence claim because plaintiff failed to prove that Vector
or Cutco owed Walter a duty of care and that plaintiff failed to establish proximate cause. Vector
and Cutco further argue that the circuit court should have entered judgment n.o.v. on plaintiff’s
vicarious liability claim because the evidence at trial was insufficient to establish that McClellan
was Vector’s and Cutco’s agent at the time of the accident. Alternatively, Vector and Cutco
contend that the circuit court should have ordered a new trial because the jury’s verdict was
against the manifest weight of the evidence, and because the circuit court erred by (1) refusing to
submit a proposed special interrogatory to the jury asking whether McClellan was an
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independent contractor at the time of the occurrence; (2) refusing to instruct the jury that a
written sales representative agreement between McClellan and Vector and Cutco was a relevant
factor in determining whether McClellan was an agent of Vector and Cutco; (3) permitting
plaintiff to question Vector’s legal affairs manager at trial about contracts of adhesion and the
doctrine of unconscionability, since the enforceability of the sales representative agreement was
not at issue; and (4) permitting plaintiff’s counsel to make certain statements during closing
argument. We affirm.
¶4 I. BACKGROUND
¶5 The only claims at issue in this appeal are counts I and V of the fourth amended
complaint. 1 Count I alleged that Vector and Cutco, through the acts or omissions of their agent
McClellan, were negligent by failing to keep a proper lookout, speeding, failing to reduce speed
to avoid an accident, traveling too fast for traffic conditions, and using an electronic device while
driving, and that the negligent acts or omissions were a proximate cause of Walter’s death. Count
V alleged that Vector and Cutco provided bonuses and incentives to sales representatives based
on the number of sales presentations performed and sales made, and “had a duty to train its
[s]ales [r]epresentatives so as to prevent foreseeable harm that would be caused by its incentive
structure and the nature of its business.” Plaintiff alleged that Vector and Cutco breached that
duty and were negligent by “fail[ing] to provide appropriate training with the regard to the use of
cellular devices in obtaining route information to sales calls,” “fail[ing] to have policies related
to the use of cellular devices used for the purpose of accomplishing sales calls,” and failing “to
provide training to sales representatives to not use their cellular devices while doing sales calls.”
1
Count II, which alleged that McClellan was an agent of a joint venture between Vector and
Cutco, was dismissed during trial. Counts III and IV were directed at McClellan, who has not appealed
any portion of the judgment and is not a party to this appeal.
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Plaintiff alleged that Vector’s and Cutco’s negligent acts or omissions were a proximate cause of
Walter’s death.
¶6 It was undisputed at trial that McClellan was driving his mother’s car from an
appointment in Naperville to a customer’s house in Homewood along I-80, and that he was
running 5 to 10 minutes late for a sales appointment. While he was driving at between 67 and 80
miles per hour, he was looking at a map and the GPS on his phone when he looked up and saw
Walter’s vehicle was stopped immediately in front of him. There was no evidence of any
preimpact braking at the scene of the accident.
¶7 McClellan testified that in June 2014, he turned 18 years of age and had just graduated
from high school. He had no sales experience when he was interviewed and hired by Joshua
Dicks, a Vector branch manager working out of an office in Orland Park. McClellan attended a
group training session led by Dicks on how to demonstrate Cutco products. Participants were
told to dress professionally and were provided with a sales training manual. On June 14, 2014,
McClellan electronically signed a sales representative agreement with Vector. The Vector
training manual provided tips on how to conduct product demonstrations and how to talk to
potential customers. McClellan testified that he could ultimately decide on what methods worked
best for him. McClellan was supplied with a Vector Connect web identification and login
number for purposes of placing product orders. He was also loaned a Cutco knife sample kit
containing Cutco knives, rope, leather, a cutting board, and a velvet cloth. He was told by Vector
that he could not sell Cutco products through social media or online sales platforms. McClellan
was provided with a desk and a landline phone at the Orland Park branch where he could make
calls and schedule demonstrations, although McClellan testified that he ordinarily used his cell
phone to make calls and schedule demonstrations. He chose the hours that he worked, set his
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own schedule, developed his own customer list, and paid his own taxes. He testified that he
generally called in to Vector’s Orland Park office once per day. McClellan also testified that he
knew before he signed the sales representative agreement that it was dangerous to drive while
looking at the GPS on his phone, and the fact that Vector did not tell him to avoid looking at his
phone while driving did not cause the accident.
¶8 Vector’s sales representative agreement contained a voluntary “additional incentive
commission program,” under which a sales representative could earn $17 for conducting an
online or in-person one-on-one sales presentation provided certain criteria were met. The sales
representative agreement also provided that a sales representative was an independent contractor
and was prohibited from holding themselves out as a Vector or Cutco employee. A sales
representative would “not be treated as an employee for federal, state, or local tax purposes nor
for unemployment compensation or worker’s [sic] compensation taxes.” A sales representative
could “set [their] own schedule and develop [their] own marketing methods in pursuit of sales
and profits.” Sales representatives had no authority to “incur or create any liability or obligation
of any kind in the name of [Vector] *** except in the solicitation of orders for [Cutco’s]
consumer products.” Vector required prior written approval for a sales representative’s use of
any of Vector’s or Cutco’s trade names, trademarks, service names, and service marks, and sales
representatives were prohibited from using the Vector or Cutco name on any business cards,
directories, stationary, advertisements, phone listings, bank accounts, or on any form of social
media. Sales representatives were responsible for any loss, theft, or destruction of the sample kit,
and were required to return the sample kit if the sales representative terminated the sales
representative agreement. Sales representatives could, however, elect to purchase the sample kit
at any time. The sales representative could terminate the sales representative agreement by
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sending written notice to Vector, while Vector could terminate the sales representative
agreement for good cause.
¶9 Dicks testified that in 2014, he was Vector’s Orland Park branch manager. During group
training sessions, potential sales representatives were told that they had to find their own
customers. Sales representatives could submit orders through the web ID portal, by mail, or over
the phone. Sales representatives needed to submit an order once per week in order to maintain an
active status. Sales representatives that performed sales presentations submitted reports, and
Vector retained the right to contact the people listed on the report to verify whether the sales
representative actually performed the presentation. Vector held optional weekly meetings for
sales representatives designed to help the sales representatives “learn more so they can sell
more.” Vector did not provide sales representatives with cars, cell phones, laptops, or e-mail
accounts. Dicks testified that sales representatives were encouraged to check in daily, but were
not required to. If a sales representative was running late for a customer appointment, it was left
to the sales representative’s discretion as to how to handle that situation. Dicks testified that at
the time of the accident, McClellan “was serving not only his own needs and hopefully making a
commission, *** but he was also serving Vector and Cutco.” Dicks also testified that the “terms
‘independent contractor’ and ‘agent’ are not mutually exclusive,” and that a person could be “an
independent contractor for tax purposes but also an agent based upon right of control issues.”
¶ 10 Mike Muriel testified that he was Vector’s central region sales manager. He testified that
Cutco set the price of the product. Paul Matheson testified that he was Vector’s legal affairs
manager. He testified that Vector did not provide any safe driving advice to sale representatives,
and did not ban the use of cell phones while a sales representative’s vehicle was in motion. Sales
representatives were not paid minimum wage or overtime, and did not receive any
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unemployment benefits, workers’ compensation benefits, or health insurance. Sales
representatives were not reimbursed for travel expenses. Matheson testified, over Vector’s and
Cutco’s objection, that a contract of adhesion referred to a standard form contract in which one
party sets the terms of the agreement, and the other party has little to no ability to negotiate. Also
over Vector’s and Cutco’s objection, Matheson testified that he had heard of the doctrine of
unconscionability, but did not know its definition. Vector would calculate a sales representative’s
compensation by comparing the number of “qualified presentations” to the number of sales, and
the sales representative would receive the greater of the two commissions. For qualified
presentations, Vector paid 75%, while the district or branch manager paid the other 25%.
¶ 11 At the close of evidence, Vector and Cutco made an oral motion for a directed verdict on
plaintiff’s direct negligence claim (count V), asserting that plaintiff failed to present any
evidence that Vector’s or Cutco’s failure to train McClellan to not use his cell phone while
driving caused the accident, and that plaintiff failed to present any evidence that Vector or Cutco
had any duty to provide any such training to McClellan. The circuit court denied Vector’s and
Cutco’s motion for a directed verdict on count V. Vector and Cutco subsequently made an oral
motion for a directed verdict on plaintiff’s negligence claims based on vicarious liability (count
I), arguing that plaintiff failed to present evidence that McClellan was Vector’s or Cutco’s agent
at the time of the accident. The circuit court denied Vector’s and Cutco’s motion for a directed
verdict on count I. The circuit court also denied Vector’s and Cutco’s request to submit to the
jury a special interrogatory asking if McClellan was an independent contractor at the time of the
occurrence.
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¶ 12 Defendants did not request a separate verdict on each count. The case was submitted to
the jury, which returned a general verdict in favor of plaintiff and against defendants. The jury’s
verdict form, with the jurors’ signatures removed, appears in the record as follows:
¶ 13 Vector and Cutco filed a timely posttrial motion for judgment n.o.v., or alternatively for a
new trial, which the parties briefed and argued. The circuit court entered a written order denying
Vector’s and Cutco’s posttrial motion. Vector and Cutco filed a timely notice of appeal.
¶ 14 II. ANALYSIS
¶ 15 Vector and Cutco argue that the circuit court should have entered a directed verdict or
judgment n.o.v. on plaintiff’s wrongful death claim based on direct negligence in count I because
plaintiff failed to prove that either Vector or Cutco owed Walter a duty of care, plaintiff failed to
establish proximate cause, and the circuit court misapplied the general verdict rule in denying
their posttrial motion. Vector and Cutco further argue that the circuit court should have entered a
directed verdict or judgment n.o.v. on plaintiff’s wrongful death claim of negligence based on
vicarious liability in count V because the evidence was insufficient to establish that McClellan
was Vector’s and Cutco’s agent at the time of the accident.
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¶ 16 Plaintiff asserts, however, that Vector and Cutco failed to properly preserve any
challenges to the jury’s verdict, and have therefore forfeited all of their appellate arguments.
Plaintiff argues that at least two theories of liability against Vector’s and Cutco’s were submitted
to the jury: direct negligence based on a failure to properly train McClellan regarding cell phone
use while driving, and vicarious liability based on McClellan acting as an agent for Vector and
Cutco. Plaintiff contends that Vector and Cutco knew that two theories of liability were going to
be submitted to the jury, and because Vector and Cutco did not submit any special interrogatories
to test the jury’s general verdict or request separate verdicts on the two separate theories of
liability submitted to the jury, this court has no way to determine the basis of the jury’s verdict.
Plaintiff relies on section 2-1201(d) of the Code of Civil Procedure (Code) (735 ILCS 5/2-
1201(d) (West 2016)), and several decisions applying the general verdict rule.
¶ 17 In response, Vector and Cutco argue that if the circuit court erred by denying the motion
for directed verdict on the direct liability claim in count V, the direct liability claim would not
have gone to the jury, and, at a minimum, Vector and Cutco would have been entitled to the
proffered special interrogatory as to whether McClellan was an independent contractor, which
they contend would have controlled the verdict on the vicarious liability claim in count I.
¶ 18 A. General Verdict Rule
¶ 19 Section 2-1201(d) of the Code provides:
“If several grounds of recovery are pleaded in support of the same claim, whether
in the same or different counts, an entire verdict rendered for that claim shall not
be set aside or reversed for the reason that any ground is defective, if one or more
of the grounds is sufficient to sustain the verdict; nor shall the verdict be set aside
or reversed for the reason that the evidence in support of any ground is
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insufficient to sustain a recovery thereon, unless before the case was submitted to
the jury a motion was made to withdraw that ground from the jury on account of
insufficient evidence and it appears that the denial of the motion was prejudicial.”
Id.
¶ 20 Our supreme court has explained, “When there is a general verdict and more than one
theory is presented, the verdict will be upheld if there was sufficient evidence to sustain either
theory, and the defendant, having failed to request special interrogatories, cannot complain.”
Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987).
¶ 21 Plaintiff’s argument that Vector and Cutco forfeited their challenges to the jury’s verdict
(see supra ¶ 16) reflects a misunderstanding of the general verdict rule, and the authority she
cites does not require a finding of forfeiture. In Dillon v. Evanston Hospital, 199 Ill. 2d 483, 491-
92 (2002), our supreme court found that where the plaintiff asserted multiple theories of
negligence in her complaint and defendants raised challenges to two of those theories on appeal,
the verdict could not be set aside on the bases advanced by the defendants, as there were no
challenges to the sufficiency of the evidence on the other theories. But here, Vector and Cutco
argue that the circuit court erred by not entering a directed verdict or judgment n.o.v. in their
favor on counts I and V. In other words, they challenge all of the theories of liability on which
the jury’s verdict might rest. The general verdict rule does not preclude appellate review of a
general verdict simply because there are multiple possible bases for the jury’s verdict; if that
were so, the rule would prevent a defendant that loses at trial from attempting to demonstrate that
none of the grounds advanced by plaintiff were sufficient to prove their claims at trial, even if the
evidence presented at trial was legally insufficient. The general verdict rule will not insulate a
verdict that is not supported by the evidence. Instead, the general verdict rule provides that in the
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absence of any indication in the record as to which theory of liability the jury rested its decision
on, a defendant may not obtain relief from the jury’s verdict if at least one theory of liability
would be sufficient to sustain the verdict. Witherell, 118 Ill. 2d at 329. We find that Vector and
Cutco have not forfeited their appellate challenges to the jury’s verdict.
¶ 22 Plaintiff further relies on section 2-1201(d) of the Code to argue that Vector and Cutco
forfeited their challenges to the jury’s verdict by failing to move to have any of the issues at trial
withdrawn from the jury’s consideration. Plaintiff argues that Vector and Cutco
“did not move, ever, to withdraw any of the [c]ounts, much less each of the
theories of liability set forth in [c]ount I and [c]ount V, from the jury’s
consideration due to alleged insufficient evidence. Instead, the corporate
defendants moved for a directed verdict in their favor, and later filed a post-trial
motion.”
¶ 23 Plaintiff’s argument, however, offers no explanation as to how defendants’ motion for
directed verdict at the close of evidence—especially where, if granted, the direct negligence
claim in count V would have been withdrawn from the jury’s consideration—failed to satisfy
section 2-1201(d) of the Code. Vector’s and Cutco’s oral motion for a directed verdict on count
V specifically argued that plaintiff failed to present any evidence to establish that any alleged
breach of a duty to train McClellan not to drive while using a cell phone was a proximate cause
of the accident, and further argued that plaintiff failed to present any evidence to establish that
Vector or Cutco had a duty to train McClellan to not drive while using a cell phone.
Additionally, Vector’s and Cutco’s oral motion for directed verdict on count I specifically argued
that plaintiff failed to introduce any evidence to establish an agency relationship between either
Vector or Cutco and McClellan. Vector and Cutco preserved their motions for directed verdict
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by renewing those motions in their posttrial motion for judgment n.o.v. and for a new trial. See
735 ILCS 5/2-1202(a) (West 2016) (“If the court denies [a] motion [for directed verdict] or
reserves its ruling thereon, the motion is waived unless the request is renewed in the post-trial
motion.”). On appeal, Vector and Cutco argue the circuit court’s denial of the motions for
directed verdict were prejudicial because the evidence at trial was insufficient to prove plaintiff’s
claims, and the claims should not have been submitted to the jury. The motions for directed
verdicts clearly sought to “withdraw [those] ground[s] from the jury on account of insufficient
evidence” (id. § 2-1201(d)), and we therefore reject plaintiff’s argument that Vector and Cutco
failed to properly preserve their appellate arguments.
¶ 24 However, where the jury returns a general verdict that was not tested by a special
interrogatory, we will uphold the verdict if the evidence was sufficient to sustain either theory of
liability. Witherell, 118 Ill. 2d at 329. Vector and Cutco’s argument that the circuit court should
have directed a verdict in their favor on the direct negligence claim ignores the reality that
(1) both motions for directed verdict were denied before the case was submitted to the jury,
(2) both claims went to the jury, (3) no objection was made to a general verdict form, and (4) no
request was made for separate verdict forms for each count. This confluence of events resulted in
the jury to returning a general verdict. Had Vector and Cutco requested separate verdict forms
and the jury returned separate verdicts on counts I and V, this court and the parties would have a
better sense of the basis for the jury’s reasoning for its verdict. Without separate verdict forms,
however, we are presented with a general verdict that we may sustain so long as there was
sufficient evidence to sustain one of the two theories of liability submitted to the jury.
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¶ 25 B. Vicarious Liability
¶ 26 We first address whether the circuit court correctly denied Vector’s and Cutco’s motions
for judgment n.o.v. or, alternatively, for a new a trial with respect to plaintiff’s vicarious liability
claim in count I. Vector and Cutco argue that there was no evidence presented to the jury that
would support a finding that McClellan was an agent of Vector and Cutco at the time of the
accident, and that the evidence clearly showed that McClellan was an independent contractor.
We find that the evidence at trial demonstrated a substantial factual dispute regarding whether an
agency relationship existed, and therefore affirm the circuit court’s denial of Vector’s and
Cutco’s motion for judgment n.o.v. and motion for a new trial on count I.
¶ 27 Judgment n.o.v. “ ‘should not be entered unless the evidence, when viewed in the light
most favorable to the opponent, so overwhelming favors the movant that no contrary verdict
based on that evidence could ever stand.’ ” McClure v. Owens Corning Fiberglas Corp., 188
Ill. 2d 102, 132 (1999) (quoting Holton v. Memorial Hospital, 176 Ill. 2d 95, 109 (1997)). A
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.” Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). We will not substitute
our judgment on questions of fact fairly submitted to and decided by the jury where the evidence
at trial did not greatly preponderate either way. McClure, 188 Ill. 2d at 132. The circuit court’s
decision on a motion for judgment n.o.v. is reviewed de novo. Id.
¶ 28 A motion for a new trial should only be granted where the jury’s verdict is against the
manifest weight of the evidence. York v. Rush-Presbyterian Luke’s Medical Center, 222 Ill. 2d
147, 178-79 (2006). “A verdict is contrary to the manifest weight of the evidence when the
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opposite conclusion is clearly evident or when the jury’s findings prove to be unreasonable,
arbitrary and not based upon any of the evidence.” Id. at 179. We review the circuit court’s
decision on a motion for a new trial for an abuse of discretion. Id.
¶ 29 In order to prove that Vector and Cutco were vicariously liable for McClellan’s acts,
plaintiff was required to prove an agency relationship. Wilson v. Edward Hospital, 2012 IL
112898, ¶ 18. “The hallmark of agency is the principal’s right to control the manner in which the
agent performs the work.” (Internal quotation marks omitted.) Magnini v. Centegra Health
System, 2015 IL App (1st) 133451, ¶ 25 (citing Simich v. Edgewater Beach Apartments Corp.,
368 Ill. App. 3d 394, 402 (2006)). By contrast, an independent contractor “undertakes to produce
a certain result but is not controlled as to the method in which he obtains that result.” Lang v.
Silva, 306 Ill. App. 3d 960, 972 (1999). Several factors should be considered when determining
whether a person is an agent or an independent contractor, including “the right to control the
manner in which the work is performed; the right to discharge; the method of payment; whether
taxes are deducted from the payment; the level of skill required to perform the work; and the
furnishing of the necessary tools, materials, or equipment.” Id. “No single factor is determinative
but the right to control the manner in which the work is performed is considered to be the
predominant factor.” Id. Plaintiff bears the burden of proving the existence of an agency
relationship and the scope of the agent’s authority. Krickl v. Girl Scouts, Illinois Crossroads
Council, Inc., 402 Ill. App. 3d 1, 5 (2010).
¶ 30 Vector and Cutco argue that plaintiff did not introduce any evidence that Vector and
Cutco “controlled the specific means and manner by which [McClellan] conducted [his] day-to-
day activities.” Instead, they argue that the evidence at trial showed that McClellan controlled
(1) the manner in which he did his work; (2) the number of hours that he worked; (3) setting his
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own schedule; (4) which methods he used for conducting sales, and could choose whether to
follow the sales tips that were included in the training manual; and (5) whether he would do
product demonstrations in-person or on-line. Vector and Cutco also argue that McClellan
(1) provided his own car, gas, and cell phone; (2) was not required to attend weekly meetings;
(3) was not required to check in daily with the office; (4) was not required to work out of the
office space that was available; (5) could either borrow or purchase a sample kit; (6) submitted
weekly reports to keep track of his commissions; and (7) paid his own taxes. Furthermore, the
sales representative agreement stated that McClellan (1) could not represent himself to others as
an employee; (2) was an independent contractor; (3) would not be treated as an employee for
purposes of unemployment compensation, workers’ compensation, or taxes; (4) could terminate
the agreement at any time upon written notice; and (5) had the right to set his own schedule and
develop his own marketing methods, with some exceptions.
¶ 31 Plaintiff responds that the jury heard evidence from which it could find the existence of
an agency relationship. Specifically, McClellan himself testified that he considered himself an
employee. Dicks testified that Vector and Cutco had the right to control whether sales
representatives could make sales over the internet. The training manual contained a script for
handling “knee-jerk reactions” from customers. McClellan testified that each sales presentation
took about one hour and was to be performed in accordance with the way he was trained and
with the manual, which included a “build a rapport” section, regardless of whether the sales
representative personally knew the customer. McClellan was required to have the customer cut
food during the demonstration. He was instructed to call his sales manager if he was having
trouble closing a sale or to obtain authority to offer a reward for large purchases. Furthermore,
Vector and Cutco (1) had control over whether its sales representatives could use business cards
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with Vector’s or Cutco’s names; (2) controlled the price of the products; (3) expected regular
contact between sales representatives and the sales manager; and (4) provided office space to
sales representatives to make sales calls. The jury also heard Dicks’s testimony that McClellan
“was serving not only his own needs and hopefully making a commission, *** but he was also
serving Vector and Cutco,” and that a person might be acting as an independent contractor and
an agent at the time.
¶ 32 Based on the foregoing, it is clear that plaintiff presented some evidence demonstrating a
substantial factual dispute as to whether Vector and Cutco had the right to control McClellan’s
work. The jury heard evidence that Vector and Cutco required sales representatives to conduct
sales presentations and product demonstrations in a particular manner, restricted sales
presentations to either in-person or online, prohibited the marketing of products through online
selling platforms, and either lent or sold the sample product kits to sales representatives like
McClellan. Viewing all of the evidence in a light most favorable to plaintiff, the circuit court did
not err when it denied Vector and Cutco’s motion for judgment n.o.v. on the vicarious liability
claim in count I. We therefore affirm the circuit court’s order denying Vector’s and Cutco’s
posttrial motion for judgment n.o.v. Furthermore, given that there was evidence presented from
which reasonable jurors might reach different conclusions on the issue of agency, we cannot say
that the circuit court abused its discretion when it denied Vector and Cutco’s posttrial motion for
a new trial.
¶ 33 Because there was sufficient evidence from which a jury could conclude that an agency
relationship existed, we find that the evidence was sufficient to sustain the general verdict and
we need not address Vector’s and Cutco’s arguments that the evidence at trial was insufficient to
find Vector and Cutco directly liable for Walter’s death.
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¶ 34 C. Special Interrogatory
¶ 35 Furthermore, we find no error in the circuit court’s refusal to submit to the jury a special
interrogatory asking whether McClellan was an independent contractor at the time of the
occurrence. “A special interrogatory serves ‘as guardian of the integrity of a general verdict in a
civil trial.’ ” Simmons v. Garces, 198 Ill. 2d 541, 555 (2002) (quoting O’Connell v. City of
Chicago, 285 Ill. App. 3d 459, 460 (1996)). “A special interrogatory is in proper form if (1) it
relates to an ultimate issue of fact upon which the rights of the parties depend, and (2) an answer
responsive thereto is inconsistent with some general verdict that might be returned.” Id. “If a
special interrogatory does not cover all the issues submitted to the jury and a ‘reasonable
hypothesis’ exists that allows the special finding to be construed consistently with the general
verdict, they are not ‘absolutely irreconcilable’ and the special finding will not control.” Id. We
review a circuit court’s decision on whether to give a special interrogatory de novo. Stanphill v.
Ortberg, 2018 IL 122974, ¶ 31; 735 ILCS 5/2-1108 (West 2016) (“Submitting or refusing to
submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of
law.”).
¶ 36 Here, Vector’s and Cutco’s proposed special interrogatory only asked whether McClellan
was an independent contractor at the time of the occurrence. But the jury was presented with two
theories of liability: that Vector and Cutco were vicariously liable for McClellan’s conduct
because he was an agent, and that Vector and Cutco were directly liable for their failure to train
McClellan. Therefore, if the jury’s answer to the proposed special interrogatory was “yes”—
meaning McClellan was an independent contractor—then the general verdict would be wholly
untested; an answer of “yes” to the special interrogatory would not in any way be inconsistent
with the general verdict because a finding that he was an independent contractor would not be
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inconsistent with a finding that Vector’s and Cutco’s negligence was a proximate cause of
Walter’s death. The circuit court did not err by refusing to give the proposed special
interrogatory. 2
¶ 37 D. Vector’s and Cutco’s Remaining Arguments
¶ 38 Finally, we address Vector’s and Cutco’s arguments that they are entitled to a new trial
based on three trial errors that “separately and combined” denied them a fair trial. First, they
contend that the circuit court abused its discretion by refusing to give a modified version of
Illinois Pattern Jury Instruction, Civil, No. 50.10 (2006) (IPI Civil (2006)), which Vector and
Cutco requested be modified to specifically reference the written sales representative agreement.
Second, they contend that the circuit court acknowledged that it erred by permitting plaintiff to
question Vector’s legal affairs manager at trial about contracts of adhesion and the doctrine of
unconscionability, but that the circuit court erred when it determined that the error was harmless.
Finally, Vector and Cutco argue that plaintiff’s counsel made statements during closing
argument that deprived Vector and Cutco of a fair trial. We do not find that any of Vector and
Cutco’s arguments warrant a new trial.
¶ 39 1. Jury Instruction
¶ 40 Vector and Cutco contend that the circuit court abused its discretion when it refused to
give a modified version of IPI Civil (2006) No. 50.10. They contend that the written sales
representative agreement was a relevant factor for the jury to consider when determining whether
McClellan was an agent or an independent contractor, and that the circuit court’s refusal to
modify the pattern instruction to specifically reference the written sales representative agreement
was prejudicial.
2
Because we conclude that the special interrogatory was not in proper form, we need not address
the arguments presented by the parties as to whether an independent contractor may simultaneously be an
agent.
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No. 1-18-0420
¶ 41 “[T]he parties are entitled to have the jury instructed on the issues presented, the
principles of law to be applied, and the necessary facts to be proved to support its verdict.”
Dillon, 199 Ill. 2d at 505. A circuit court’s decision on whether to give a particular jury
instruction is reviewed for an abuse of discretion. Id. To determine whether an abuse of
discretion has occurred, we look to “whether, taken as a whole, the instructions are sufficiently
clear so as not to mislead and whether they fairly and correctly state the law.” Id. “A reviewing
court ordinarily will not reverse a trial court for giving faulty instructions unless they clearly
misled the jury and resulted in prejudice to the appellant.” Schultz v. Northeast Illinois Regional
Commuter R.R. Corp., 201 Ill. 2d 260, 274 (2002).
¶ 42 The fourth paragraph of IPI Civil (2006) 50.10 instructs the jury
“In determining whether at the time of the occurrence [alleged agent’s
name] was the agent of the defendant [defendant’s name] or was an independent
contractor, you may also consider [the method of payment;] [the right to
discharge;] [the skill required in the work to be done;] [who provides tools,
materials or equipment;] [whether the worker’s occupation is related to that of the
employer;] [whether the employer deducted for withholding tax;] [and] [[other
relevant factor(s)].” 3
Vector and Cutco requested that the circuit court replace the bracketed phrase “other relevant
factor(s)” with the phrase “the designation in the written agreement.” The circuit court refused,
and instead simply retained the bracketed language “other relevant factors.”
¶ 43 Vector and Cutco argue that the Notes on Use for IPI Civil (2006) 50.10 specifically state
“[o]nly such elements of the bracketed material in the fourth paragraph should be used as may be
3
All of the brackets appear in the pattern instruction. The last line of the fourth paragraph of the
pattern instruction contains a typographical error, as it places two opening brackets before the word
“other” and only one closing bracket following the word “factor(s)”.
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No. 1-18-0420
supported by the evidence. See Wenholdt v. Industrial Comm’n, 95 Ill. 2d 76, 447 N.E.2d 404,
69 Ill. Dec. 187 (1983).” They contend, therefore, that the circuit court should have modified the
instruction to include a reference to the written sales representative agreement, as it was a
relevant factor for the jury to consider.
¶ 44 We find no abuse of discretion. Vector and Cutco make no argument that the instruction
as given was misleading or whether it fairly and correctly stated the law, or that it was a per se
abuse of the circuit court’s discretion to refuse to include a particular factor in the instruction.
The written agreement was discussed extensively at trial and was repeatedly referenced in the
parties’ closing arguments. The circuit court was not obligated to specifically instruct the jury to
consider one piece of evidence that was potentially favorable to Vector and Cutco. Instead, the
circuit court instructed the jury to consider specific factors and all of the evidence in deciding
whether McClellan was an agent or whether an independent contractor agency relationship
existed. Furthermore, Vector and Cutco simply assert that they were prejudiced by the circuit
court’s decision, but develop no argument as to how that might be so. The circuit court did not
abuse its discretion by refusing to modify the pattern instruction.
¶ 45 2. Trial Questions
¶ 46 Vector and Cutco argue that they were prejudiced by the circuit court’s decision to
overrule objections to plaintiff’s questioning of Matheson about whether he had heard of
contracts of adhesion and the doctrine of unconscionability. Matheson testified that he was
familiar with contracts of adhesion, and agreed “that a contract of adhesion is a contract between
two parties where the terms are set by one of the parties and the other has little or no ability to
negotiate more favorable terms.” Vector and Cutco argue that plaintiff’s line of questioning was
20
No. 1-18-0420
prejudicial because “it invited the jury to disregard the agreement that McClellan signed as a
contract of adhesion and unenforceable.”
¶ 47 “[A] party is not entitled to a new trial unless a trial court’s erroneous evidentiary ruling
was substantially prejudicial and affected the outcome of the trial.” DiCosolo v. Janssen
Pharmaceuticals, Inc., 2011 IL App (1st) 093562, ¶ 40 (citing Simmons, 198 Ill. 2d at 566-67).
Vector and Cutco bear the burden of establishing prejudice and that the error affected the
outcome of the trial. Id.
¶ 48 Vector’s and Cutco’s prejudice argument is unpersuasive. There is nothing in the record
to suggest that the jury disregarded the written sales representative agreement. The jury heard
extensive testimony about the contents of the sales representative agreement, and extensive
testimony about the relationship of McClellan to Vector and Cutco. Whether McClellan was
Vector’s and Cutco’s agent or whether he was an independent contractor was a main focus of the
trial, and the jury heard competing evidence on the factors that bore directly on that issue,
including the sales agreement. See supra ¶¶ 30-31. During their closing arguments, the parties’
counsel extensively discussed the sales representative agreement. Plaintiff’s counsel did not urge
the jury to find that the sales representative agreement was unconscionable or argue that the sales
representative agreement’s use of the term “independent contractor” should be given less weight
because the sales representative agreement was a contract of adhesion. We find that Vector and
Cutco have not identified any substantial prejudice that resulted from plaintiff’s line of
questioning, and we conclude that any error in admitting the testimony was harmless.
¶ 49 c. Closing Arguments
¶ 50 Finally, Vector and Cutco argue that they were deprived of a fair trial based on the
following statements made by plaintiff’s counsel during closing argument:
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No. 1-18-0420
“MR. NAPLETON [(PLAINTIFF’S COUNSEL)]: You know, folks, a
jury trial’s all about communication. The judge talks, we talk, witnesses talk, and
you sit there and listen. Believe me when you come out of that jury room with
your verdict, you’re going to get your chance to talk. What will you say with your
verdict? Are you going to let Vector get away with this shell game and perpetrate
a fraud on the public?
MR. AESCHLIMAN [(DEFENSE COUNSEL)]: Objection. Improper,
your Honor.
THE COURT: The objection’s sustained. The jury will disregard that.
MR. NAPLETON: Are you going to let Vector get away with what
happened here in the relationship they had with this man, or are you going to tell
them, ‘We’re drawing the line to prevent another injustice’—
MR. AESCHLIMAN: Objection. Improper, your Honor.
THE COURT: The objection’s sustained. The jury will disregard this.
You’re only to resolve the issues in this case, and no other cases, or no future
cases.
MR. NAPLETON: Folks, your verdict’s going to be heard loud and clear
coast to coast. From Cook County Illinois all the way to the president’s office in
Olean, New York. It’s not right. It’s not fair to leave Jacobi McClellan all by his
lonesome to pick up this debt that’s due and owing this family.
MR. AESCHLIMAN: Objection, judge. Improper.
THE COURT: The objection’s sustained. The jury will disregard that.”
22
No. 1-18-0420
¶ 51 Vector and Cutco contend that plaintiff’s counsel’s arguments were inflammatory and
prejudicial, that he was asking the jury to “send a message,” and that he persisted in making such
statements even after the circuit court sustained an objection to his comment about letting Vector
“get away with this shell game and perpetrate a fraud on the public.”
¶ 52 Plaintiff’s appellate brief does not defend the propriety of her counsel’s statements, but
instead argues that the circuit court sustained all of Vector’s and Cutco’s objections and gave the
jury curative instructions to disregard the comments. Plaintiff also argues that the jury was
instructed that the opening and closing arguments of counsel are not evidence. Plaintiff also
argues, without offering any citation to authority, that “[i]f any of these comments were so
inflammatory at the time they were made, [Vector and Cutco] had an obligation to move
contemporaneously with their objection for a mistrial,” and that the failure to request a mistrial
results in forfeiture. Plaintiff’s mistrial argument, however, merits no further consideration, as
plaintiff has not established that the failure to request a mistrial categorically precludes a request
for a new trial.
¶ 53 It is axiomatic that a jury must decide the case before it based on the evidence presented
at trial, and not based on an attorney’s appeal to the jurors’ emotions. “Questions as to the
prejudicial effect of remarks made during opening statement and closing argument are within the
discretion of the trial court, and determinations as to such questions will not be overturned absent
a clear abuse of discretion.” Simmons, 198 Ill. 2d at 568.
¶ 54 We find that Vector and Cutco have not established substantial prejudice arising from
plaintiff’s counsel’s improper comments. First, the circuit court properly instructed the jury that
remarks made by counsel during opening and closing arguments are not evidence. Second, the
circuit court promptly and properly gave a curative instruction to the jury to disregard the
23
No. 1-18-0420
improper comments. See Willaby v. Bendersky, 383 Ill. App. 3d 853, 862 (2008) (“Where the
trial court sustains a timely objection and instructs the jury to disregard the improper comment,
the court sufficiently cures any prejudice.”). There is nothing in the record on appeal that might
suggest that the jury failed to follow the trial judge’s curative instructions, or that the jury found
these statements to be persuasive. We cannot find that, given the length of the trial and extensive
arguments given by all of the attorneys in this case, the jury was influenced by plaintiff’s
counsel’s improper comments resulting in any substantial prejudice to Vector and Cutco. We
therefore have no basis from which to conclude that plaintiff’s counsel’s statements resulted in
any prejudice.
¶ 55 Finally, we are not persuaded that the cumulative effect of any of the alleged errors
deprived Vector and Cutco of a fair trial.
¶ 56 III. CONCLUSION
¶ 57 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 58 Affirmed.
24