Parker v. Lofton & Lofton Management V, Inc. , 2019 IL App (1st) 182382-U ( 2019 )

2019 IL App (1st) 182382-UNo. 1-18-2382
Order filed December 19, 2019
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
MICHAEL PARKER, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. ) No. 15 L 7981
)
LOFTON & LOFTON MANAGEMENT ) Honorable
V, INC., ) Allen Price Walker,
) Judge Presiding.
Defendant-Appellee. )
JUSTICE BURKE delivered the judgment of the court.
Justices Lampkin and Reyes concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s grant of summary judgment in favor of defendant
where plaintiff failed to raise a genuine issue of material fact with regard to any of
the allegations in his complaint.
¶2 Plaintiff, Michael Parker, filed a three-count complaint in the circuit court of Cook
County after he was involved in an altercation outside of a McDonald’s restaurant owned by
defendant, Lofton & Lofton Management V, Inc. (Lofton). Plaintiff claimed that one of Lofton’s
employees, Darryl Haynes, struck him in the eye causing him permanent injuries. Plaintiff
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sought relief against both Lofton and Haynes. 1 Plaintiff’s claims against Lofton are the sole
issues on appeal. In his complaint, plaintiff contended (1) that Lofton was liable for the criminal
actions of Haynes through the doctrine of respondeat superior; (2) that Lofton was negligent in
failing to adequately supervise Haynes; and (3) that Lofton was negligent in hiring and retaining
Haynes as an employee despite his criminal history. The trial court granted Lofton’s motion for
summary judgment finding that, at the time of the altercation, Haynes was not acting within the
scope of his employment and that plaintiff failed to present evidence demonstrating that Haynes
was unfit for his employment such that Lofton was negligent in failing to supervise him or in
hiring and retaining him.
¶3 On appeal, plaintiff contends that the court erred in granting Lofton’s motion for
summary judgment where the trial court employed the incorrect standard of review applicable to
motions for summary judgment and resolved disputed issues of material fact in favor of Lofton,
rather than viewing the evidence presented in a light most favorable to the plaintiff. Plaintiff
further contends that the evidence presented shows that Lofton owed a duty to protect plaintiff,
as a patron of the restaurant, from harm, that Lofton breached that duty by improperly hiring,
retaining, and failing to supervise Haynes, and that Lofton’s breach proximately caused
plaintiff’s injuries. For the reasons that follow, we affirm the judgment of the circuit court.
¶4 I. BACKGROUND
¶5 The record shows that on February 25, 2015, plaintiff’s stepfather, Charles Butler, was
eating at the McDonald’s restaurant on North Western Avenue in Chicago, Illinois. Haynes was
cleaning tables in the McDonald’s dining area. Butler asked Haynes to stop spraying the cleaning
solution on the tables near him because it was disturbing him. Butler told the security guard
1
Haynes was the defendant in separate criminal proceeding in case number 15-CR-04856-01.
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about the incident and Haynes told Butler to leave the restaurant before he beat him. Butler
exited the restaurant and told plaintiff about the incident. Plaintiff, who had eaten at the
McDonald’s earlier in the day and had been standing outside, entered the McDonald’s and told
Haynes that he should not spray the cleaning chemicals around people’s food. Plaintiff exited the
restaurant and spoke with some friends in a parking space in the McDonald’s parking lot. After
about half an hour, plaintiff started walking into the Walgreens parking lot next door to the
McDonald’s on his way to the bus stop on the corner. As plaintiff walked toward the bus stop, he
heard someone call his name and then was struck by Haynes in the side of the face, near his right
eye. As a result of his injuries, plaintiff lost vision in his right eye.
¶6 Plaintiff filed a complaint against Lofton and Haynes. In Count I of his complaint,
plaintiff asserted that while he was on the premises of the McDonald’s, Haynes, without
provocation, battered him with a metal bar he obtained from “his work site.” Plaintiff asserted
that because Haynes was working in the course of his employment for Lofton, Lofton was liable
for the injuries plaintiff suffered. In Count II, plaintiff contended that while he was eating his
food in the McDonald’s restaurant, Haynes sprayed a cleaning solution on plaintiff and his food. 2
Plaintiff asserted that Lofton failed to properly train and supervise Haynes, which resulted in
Haynes following plaintiff outside and striking him with a metal bar. Finally, in Count III,
plaintiff contended that before hiring Haynes, Lofton failed to conduct a background search of
his criminal history and failed to fire Haynes after he violated written procedures. Plaintiff
maintained that Lofton failed to discover Haynes’ numerous felony convictions that included
2
As discussed below, this claim conflates Haynes’ interaction with Butler and Haynes’
interaction with plaintiff. Although plaintiff maintains his claim for negligent supervision on appeal, he
supports the claim with a different factual basis.
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evidence of his “vicious propensities.” Plaintiff asserted that these acts and omissions resulted in
Lofton hiring Haynes, which led to Haynes battering plaintiff.
¶7 Lofton filed a motion for summary judgment contending that it was not liable for
Haynes’ action under the doctrine of respondeat superior because Haynes quit prior to the
altercation. Lofton asserted that Haynes therefore was not an employee at the time of the
incident. Lofton further asserted that even assuming Haynes was still an employee of Lofton at
the time of the altercation, Lofton was not liable for his actions because Haynes was not acting
within the scope of his employment. Lofton contended that the altercation did not occur on the
restaurant’s premises and Haynes engaged in conduct that he was not employed to perform.
Lofton also contended that it could not be liable for negligently hiring Haynes because there was
nothing in his criminal background or work history that suggested Haynes posed a danger to the
restaurant’s customers.
¶8 In response to Lofton’s motion, plaintiff contended that Lofton could be held vicariously
liable for Haynes’ conduct because Lofton, as the landowner, owed plaintiff a duty to protect
him from unreasonable risk of physical harm or assault by a third party. Plaintiff further asserted
that Haynes was acting within the scope of his employment because the evidence presented
showed that Haynes did not quit his job before the altercation and Lofton’s employees testified
that Haynes had not been fired. Plaintiff also contended that the location of the assault, a material
fact, was in dispute, thus precluding the entry of summary judgment. Finally, plaintiff contended
that there were disputed issues of fact as to whether Lofton was negligent in hiring Haynes,
negligent in failing to properly supervise Haynes, and negligent in retaining Haynes despite
previous workplace incidents.
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¶9 In granting Lofton’s motion, the trial court found that although the testimony was
“somewhat conflicting,” based on the evidence presented, the incident at issue occurred on
Walgreens property. The court found, however, that whether the incident occurred on Walgreens
property or McDonald’s property was not “relevant, nor material.” Likewise, the court found that
whether Haynes struck plaintiff with a metal object was not “material,” but the court noted that
plaintiff testified that he did not see a metal object and every other witness testified that Haynes
hit plaintiff with his fist.
¶ 10 With regard to plaintiff’s respondeat superior claim, the court reasoned that the
determining factor was whether Haynes was acting within the scope of his employment at the
time he struck plaintiff. The court found that Haynes was not acting within the scope of his
employment because his actions were not related to Lofton’s business. The court therefore
granted summary judgment on that count. The court also granted summary judgment on
plaintiff’s claims for negligent hiring and retention because plaintiff failed to present evidence
that Haynes was unfit for the position and that his hiring created a danger to third persons, or that
Lofton knew of any such unfitness. The court noted that plaintiff emphasized Haynes’ criminal
background, but plaintiff did not present any evidence of the nature of Haynes’ convictions. The
court noted that in his deposition Haynes testified that his convictions were drug related. The
court found that there was no evidence in the record that Haynes had a conviction for a violent
criminal act. The court cited Illinois precedent suggesting that a nonviolent criminal background
is not an indicator of future violent behavior and does not put an employer on notice of a
person’s potential propensity for violence. The court therefore granted summary judgment on
plaintiff’s claims for negligent hiring and retention. Plaintiff filed a motion to reconsider that
ruling to which plaintiff attached a discovery deposition from Ronald Hauri, who had a
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background in behavioral sciences and law enforcement. Hauri testified, inter alia, that it was
“reckless and dangerous” for Lofton to hire and retain Haynes in part based on his criminal
history. The circuit court denied plaintiff’s motion. Plaintiff now appeals.
¶ 11 II. ANALYSIS
¶ 12 On appeal, plaintiff contends that the trial court erred in granting Lofton’s motion for
summary judgment where the court deviated from the standard of review on a motion for
summary judgment by deciding issues of disputed fact in favor of the defendant and where the
record contained the requisite evidence to prove each theory of liability or at least raise a genuine
issue of material fact. Plaintiff asserts that there was sufficient evidence in the record from which
a reasonable trier of fact could find that Haynes was Lofton’s employee at the time of the
incident, that the incident occurred on Lofton’s property, that Lofton was negligent in hiring and
retaining Haynes, and that Lofton was negligent in failing to supervise Haynes. Plaintiff asserts
that there was at least a genuine issue of material fact that Lofton was liable for plaintiff’s
injuries, precluding the court’s entry of summary judgment.
¶ 13 A. Standard of Review
¶ 14 Summary judgment is appropriate where the pleadings, depositions, affidavits, and
admissions on file establish that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016); Carney v.
Union Pacific R.R. Co., 2016 IL 118984, ¶ 25. In determining whether a genuine issue of
material fact exists, the court construes the pleadings, depositions, and affidavits against the
moving party and liberally in favor of the opposing party. Carney, 2016 IL 118984, ¶ 25 (citing
Mashal v. City of Chicago, 2012 IL 112341, ¶ 49). A genuine issue of material fact exists “where
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the material facts are disputed or, if the material facts are undisputed, reasonable persons might
draw different inferences from the undisputed facts.” Mashal, 2012 IL 112341, ¶ 49.
¶ 15 In order to survive a motion for summary judgment, a plaintiff need not prove his case,
but he must present a factual basis that would arguably entitle him to a judgment. Bruns v. City
of Centralia, 2014 IL 116998, ¶ 12 (citing Robidoux v. Oliphant, 201 Ill. 2d 324, 335 (2002)).
“In a negligence action, the plaintiff must plead and prove the existence of a duty owed by the
defendant to the plaintiff, a breach of that duty, and injury proximately resulting from the
breach.” Bruns, 2014 IL 116998, ¶ 12. “In the absence of a showing from which the court could
infer the existence of a duty, no recovery by the plaintiff is possible as a matter of law and
summary judgment in favor of the defendant is proper.” Vesey v. Chicago Housing Authority,
145 Ill. 2d 404, 411 (1991); see also, Bonner v. City of Chicago, 334 Ill. App. 3d 481, 483 (2002)
(“Whether a duty of care exists is a question of law which may be determined on a motion for
summary judgment.”)). We review the circuit court’s ruling on a motion for summary judgment
de novo. Bruns, 2014 IL 116998, ¶ 12.
¶ 16 B. The Trial Court’s Ruling
¶ 17 Plaintiff first contends that we should reverse the trial court’s judgment because it applied
the incorrect standard of review to the summary judgment motion. Plaintiff asserts that the court
improperly decided disputed issues of material fact and erroneously rejected disputed evidence
that supported plaintiff’s case. Plaintiff points out that there was conflicting evidence regarding
whether Haynes hit plaintiff with his fist or a metal object, where the attack occurred, and
whether Haynes’ criminal history was evidence that he was a dangerous person. Plaintiff
maintains that these were questions for the trier of fact and the court erred in resolving them in
ruling on the motion for summary judgment.
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¶ 18 In granting Lofton’s motion, the trial court found there was “somewhat conflicting—not
really conflicting, but there is testimony as to whether or not this occurred in—on the
McDonald’s property as opposed to on the Walgreens property.” The court found that based on
the testimony presented, the incident occurred on the Walgreens property, but found that the
location of the incident was not “relevant, nor material.” Likewise, the court noted that there was
a “question as to whether or not [Haynes] struck [plaintiff] with a metal object.” The court also
did not think this issue was material, but observed that plaintiff testified that he did not see a
metal object and every other witness testified that Haynes hit plaintiff with his fist. Further, in
finding that plaintiff failed to present evidence that Haynes’ criminal history demonstrated that
he was unfit for the position with Lofton, the court noted that plaintiff failed to present any
evidence as to what Haynes’ convictions were and Haynes testified they were “drug-related.”
The court relied on three appellate court decisions in finding that a history of nonviolent crimes
does not put an employer on notice of an employee’s propensity for violence.
¶ 19 As noted, summary judgment is appropriate where the pleadings, depositions, affidavits,
and admissions on file establish that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. (Emphasis added.) 735 ILCS 5/2-
1005(c) (West 2016); Carney, 2016 IL 118984, ¶ 25. A material fact is one that “might affect the
outcome of the suit.” GreenPoint Mortgage Funding, Inc. v. Hirt, 2018 IL App (1st) 170921, ¶
17. Here, we find support for the trial court’s conclusions that location of the incident and
whether Haynes used a metal object to strike plaintiff were not material. As the trial court found,
Lofton could not be held liable for Haynes’ actions because Haynes was not acting within the
scope of his employment and because plaintiff failed to present evidence that Haynes was unfit
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for the position. We agree, and, thus, the location of the incident and whether Haynes used a
metal object to strike plaintiff is immaterial.
¶ 20 Further, we observe that the trial court did not actually decide the issue of whether
plaintiff was struck with a metal object as plaintiff contends. During argument on Lofton’s
motion and in its ruling, the trial court noted that plaintiff testified that he believed he was struck
with a metal object, but observed that every other witness testified that Haynes hit plaintiff with
his fist. The court did not decide the issue, however, noting that the point was not “material.”
Plaintiff asserts that the issue was material because a jury could determine that Haynes struck
plaintiff with a metal object and then could “evaluate the danger that Haynes presented in his
employment capacity with” Lofton. This somewhat circular reasoning misses the mark with
regard to plaintiff’s claim that Lofton was liable for Haynes’ conduct. There is no suggestion that
the metal object was somehow related to Haynes’ employment or that Haynes’ possession of a
metal object was in any way related to Lofton’s negligence. 3 Accordingly, we agree that, to the
extent this issue was disputed, it was not material such that the conflicting testimony would
preclude the court’s entry of summary judgment.
¶ 21 With regard to the location of the altercation, the court likewise found this point was not
material, but nonetheless determined that the altercation clearly occurred in the Walgreens
parking lot. This conclusion is amply supported by the evidence presented and cannot be said to
be in dispute as plaintiff claims. Haynes testified at his criminal trial that the altercation was
“nowhere near McDonald’s” and was on the “Walgreens property.” The McDonald’s security
guard, Larry Weatherspoon, also testified at Haynes’ criminal trial that the altercation occurred
3
We observe that plaintiff contended that Haynes obtained the metal object from his “work site,”
but as discussed below, this baseless contention was unsupported by any evidence.
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in the Walgreens parking lot. Butler, plaintiff’s stepfather, also testified that the altercation took
place in the Walgreens parking lot. Similarly, plaintiff testified at the criminal trial that he heard
someone call his name “as he entered the Walgreens parking lot,” but before he could turn
around, he was “attacked” from behind. At his deposition, however, plaintiff testified that he
could not remember if he was in the Walgreens parking lot when Haynes hit him. He testified
that he was talking to some friends in a parking space in the McDonald’s parking lot when he
started walking toward the bus stop, but “everything [] happened so fast” that he could not tell
where he was when Haynes hit him. Ignacio Almazañ Sanchez, the general manager of the
McDonald’s where Haynes was employed, testified at his deposition that the fight occurred in
the Walgreens parking lot. Thus, every witness testified that Haynes struck plaintiff in the
Walgreens parking lot. The only testimony presented to the contrary was plaintiff’s deposition
testimony, which was contrary to his testimony at the criminal trial, and which, as the trial court
noted, did not even contradict the other evidence presented. Plaintiff merely testified that he
could not recall where he was when Haynes hit him. This is insufficient to create a genuine issue
of material fact precluding summary judgment. See Judge-Zeit v. General Parking Corp., 376 Ill.
App. 3d 573, 584 (2007).
¶ 22 Finally, the trial court’s conclusion that plaintiff failed to present evidence to show that
Haynes’ criminal background put Lofton on notice of Haynes’ propensity for violence is well
supported by the record. As the trial court noted, the only evidence presented regarding the
nature of Haynes’ convictions was his testimony at his deposition that they were drug related. At
the hearing on Lofton’s motion for summary judgment, however, plaintiff’s counsel represented
that Haynes had convictions for burglary and attempted escape from jail, as well as handgun
violations. Plaintiff asserts that these convictions amply demonstrate Haynes’ propensity for
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violence and the trial court erred in disregarding them. We find this court’s decision in
Montgomery v. Petty Management Corp., 323 Ill. App. 3d 514 (2001) persuasive. In that case,
the defendant, an employee of McDonald’s, battered a patron after an argument. Id. at 516. On
appeal, the plaintiff patron argued that the defendant restaurant was negligent in hiring the
employee because his background indicated that his hiring would create a foreseeable danger. Id.
at 519. This court disagreed finding that there was nothing in the employee’s background
suggesting that he was unfit to work as a cook at McDonald’s or that he had a propensity for
violence. Id. at 519-20. The court noted that defendant had been a member of a gang and had an
arrest record, but the nonviolent nature of defendant’s background did not tend to show that he
would foreseeably be a danger to customers. Id. at 520.
¶ 23 Here, too, Haynes’ background does not tend to show that he would foreseeably be a
danger to customers and the trial court correctly decided that issue on summary judgment. Even
accepting plaintiff’s unsupported contentions that Haynes had convictions for burglary,
attempted escape from jail, and handgun violations, plaintiff failed to present any evidence that
these convictions involved violent behavior. As in Montgomery, there was nothing in Haynes’
criminal background to suggest that he had a propensity for violence toward customers. Id.Accordingly, we find that the court did not err in finding that Haynes’ criminal background did
not put Lofton on notice of Haynes’ propensity for violence. Having determined that the court
did not apply the improper standard of review in ruling on Lofton’s motion and did not
inappropriately resolve disputed issues of material fact, we may now address the merits of
plaintiff’s appeal.
¶ 24 C. Respondeat Superior
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¶ 25 Plaintiff first contends that the court erred in granting summary judgment on the
respondeat superior count of his complaint because Haynes was acting within the scope of his
employment when the altercation occurred. Plaintiff asserts that Haynes was still employed by
Lofton at the time of the incident and the incident occurred on Lofton’s property.
¶ 26 Initially, we note, as outlined above, the evidence presented clearly supports the trial
court’s conclusion that the altercation between plaintiff and Haynes occurred on Walgreens
property. However, as the trial court found, this issue is not material to the outcome on this
count. Nor is it relevant whether Haynes was still technically an employee of Lofton at the time
of the incident. It is also not relevant whether Haynes did not clock out before striking plaintiff.
Montgomery, 323 Ill. App. 3d at 518-19 (“Whether Holmes was on the clock is irrelevant. The
mere fact that Holmes was working when the altercation occurred does not in fact mean that he
was acting within the scope of his employment when the fight occurred.”). Instead, a finding that
Haynes was not acting within the scope of his employment at the time of the altercation with
plaintiff would be dispositive of plaintiff’s respondeat superior claim. Adames v. Sheahan, 233
Ill. 2d 276, 298 (2009). “Pursuant to the theory of respondeat superior, an employer can be liable
for the torts of his employee when those torts are committed within the scope of the
employment.” Id. The employer’s vicarious liability in such cases extends to the negligent,
willful, malicious, or even criminal acts of its employees when such acts are committed within
the scope of the employment. Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 163-64 (2007). In
determining whether an employee is acting within the scope of the employment, a court
considers whether (a) the act is the kind the employee is employed to perform; (b) the act occurs
substantially within the authorized time and space limits; and (c) “it is actuated, at least in part,
by a purpose to serve the master.” Id. at 164 (citing Restatement (Second) of Agency § 228
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(1958)); Adames, 233 Ill. 2d at 299 (citing same). All three of these criteria must be met in order
for the court to conclude that an employee was acting within the scope of employment. Bagent,
224 Ill. 2d at 165. Although, as plaintiff points out, whether defendant was acting within the
scope of employment is generally a question for the trier of fact, such a determination may be
made as a matter of law where no reasonable person could conclude from the evidence presented
that an employee was acting within the course of employment. Giannoble v. P&M Heating and
Air Conditioning, Inc., 233 Ill. App. 3d 1051, 1056 (1992).
¶ 27 Here, it is clear that striking plaintiff in the parking lot was not the kind of act Haynes
was employed to perform and thus no reasonable person could conclude that Haynes was acting
within the course of employment. At his deposition, Haynes testified that his responsibility on
the date of the incident was to clean the tables in the “lobby” of the restaurant. Fighting with
plaintiff in the Walgreens parking lot is clearly far removed from the kind of act Haynes was
employed to perform. Further, there is no evidence that Haynes’ acts were actuated by a purpose
to serve Lofton. Indeed, the fight with plaintiff appeared to be motivated solely by Haynes’
personal desires. “Where an employee’s conduct is actuated by a personal purpose rather than a
purpose to serve the employer, it is not within the scope of employment.” Parks v. Brinkman,
2014 IL App (2d) 130633, ¶ 66 (citing Bagent, 224 Ill. 2d at 169-70). Finally, the act did not
occur within the authorized time and space limits. As noted, the altercation clearly took place in
the Walgreens parking lot.
¶ 28 We further find plaintiff’s reliance on Sunseri v. Puccia, 97 Ill. App. 3d 488, 490 (1981)
unpersuasive. In Sunseri, a bartender got into a verbal confrontation with the plaintiff after the
bartender asked to see his identification. Id. at 489-90. The confrontation escalated into a
physical altercation both inside and outside of the restaurant. Id. at 490. The trial court entered a
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directed verdict on plaintiff’s claim for respondeat superior. Id. at 491. On appeal, this court
reversed finding that the jury should have been permitted to determine whether the bartender’s
actions had been within the scope of his employment based upon the fact that the altercation
occurred within the time and location of the employment, the foreseeability of the assault, and
the defendant’s presence during the commission of the act without intervening. Id. at 494. This
court distinguished Sunseri in Stern v. Ritz Carlton Chicago, 299 Ill. App. 3d 674, 679 (1998),
noting that the court’s ruling in Sunseri was based on the notion that “in cases involving assault
by a bartender, liability often attaches to the employer because it is expected that a bouncer will
be required to use force in doing his job, even though the force used may be unnecessary or
excessive.” The Stern court found that the circumstances in that case were distinguishable
because it was not “expected” that a masseur would sexually assault a client during the course of
a massage. Id. In the case at bar, we likewise find that it was not “expected” that a Lofton’s
McDonald’s employee would physically assault someone in the Walgreens parking lot. Thus, we
find the reasoning in Sunseri unpersuasive here.
¶ 29 There was also much discussion in the trial court and in the parties’ briefs before this
court as to whether Haynes was even an employee of Lofton at the time of the altercation. If
Haynes was not an employee of Lofton at the time of the incident, clearly plaintiff would not
have a viable respondeat superior claim. As outlined above, however, even assuming Haynes
was an employee of Lofton at the time of the incident, we find that plaintiff failed to present any
facts that would create a genuine issue of material fact as to any one of the three criteria for a
respondeat superior claim. Nonetheless, we find that, based on the evidence presented, Haynes
was no longer an employee of Lofton at the time of the incident.
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¶ 30 The record shows that before Haynes went outside where he struck plaintiff, he had an
interaction with a manager where the manager asked him to clean the bathrooms. Haynes refused
and the manager told him clean the bathrooms or go home. Haynes “told them ‘F*** this job,’
and [he] left.” Haynes did not clock out, but testified that he was not working for McDonald’s at
the time of the incident and had “quit McDonald’s.” Plaintiff asserts that Fred Brown, the area
supervisor for Lofton’s McDonald’s, testified that Haynes was an employee of Lofton at the time
of the altercation. This is, at best, a mischaracterization of Brown’s testimony. Brown testified
that although he made a formal decision to terminate Haynes after the incident “[Haynes] made
the decision by walking out.” Brown testified that Haynes quit before Brown made the decision
“to terminate him.” “I think my decision was secondary because I think he left—my
understanding that he had left the building so like a voluntary quit.” Consistent with that,
Lofton’s owner, Ronnie Lofton (Ronnie), testified that he learned that Haynes had quit the job
before the incident which was “[e]nd of story” for him. He testified unequivocally that Haynes
was no longer an employee of McDonald’s at the time of the incident and it was irrelevant
whether Haynes had clocked out prior to leaving the restaurant. The only witness who testified
that Haynes was still an employee of Lofton at the time of the incident was Sanchez, who
testified that Haynes had not been terminated. However, this testimony is clearly contrary to
Haynes’ own independent intention to terminate his employment with Lofton.
¶ 31 It was unnecessary for anyone at McDonald’s to formally terminate Haynes where he
was free to quit at any time and testified that he in fact did so. Haynes testified that after walking
out of the restaurant he never returned and even had his mother pick up his final check. Plaintiff
repeatedly emphasizes that in response to one plaintiff’s counsel’s questions, Haynes testified
that he did not resign; however, this is merely an attempt by plaintiff to mischaracterize Haynes’
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testimony and view it out of context. When viewed in full, it is clear from his testimony that
Haynes quit his employment at McDonald’s.
“Q. All right. Did you believe that you had resigned when you left, or were you
told as far as you know to leave?
A. There was no resign [sic]. Me—none, whatever. I told them—my exact words
was, ‘F*** this job,’ and I left. That was my exact words. I didn’t punch out. I didn’t take
my shirt off, I didn’t do none of that. I went in the back and got my stuff and walked out
the door.”
¶ 32 Thus, it is clear from Haynes’ testimony, and the testimony of Brown and Ronnie, that
Haynes quit prior to the incident and was not an employee of Lofton at the time of the incident.
As noted, however, even assuming Haynes was an employee of Lofton at the time of the
incident, plaintiff failed to present any facts that would create a genuine issue of material fact as
to any one of the three criteria for a respondeat superior claim. Accordingly, we find that the
trial court properly granted Lofton’s motion for summary judgment on plaintiff’s respondeat
superior claim.
¶ 33 D. Negligent Supervision 4
¶ 34 Plaintiff next contends that the court erred in granting Lofton’s motion for summary
judgment on his claim for negligent supervision. Plaintiff asserts that given Haynes’ criminal
4
We observe that in his complaint, plaintiff based his claim for negligent supervision on Haynes
spraying cleaning solution onto him and his food while he was eating in the McDonald’s restaurant. The
evidence presented, however, including plaintiff’s own deposition testimony, demonstrates that Haynes
never sprayed cleaning solution onto plaintiff or his food. Indeed, this appears to be a conflation of
Haynes’ interaction with Butler where Haynes sprayed cleaning solution onto tables near Butler while
Butler was eating. Nonetheless, plaintiff maintains his claim for negligent supervision on appeal, raising
allegations different from those raised in his complaint. Because we find that plaintiff’s claim for
negligent supervision would not survive a motion for summary judgment regardless of the manner in
which plaintiff presents the claim, we will nevertheless address plaintiff’s contentions as he presents them
on appeal.
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background and his prior confrontations with customers, Haynes’ conduct was reasonably
foreseeable. Plaintiff contends that Haynes had a proven record of engaging in hostile
confrontations with patrons and his status as a convicted felon presented an unreasonable risk of
harm to patrons.
¶ 35 In order to state a cause of action for negligent supervision, the plaintiff must establish
that “(1) the employer had a duty to supervise its employee; (2) the employer negligently
supervised its employee; and (3) such negligence proximately caused the plaintiff’s injuries.”
Lansing v. Southwest Airlines Co., 2012 IL App (1st) 101164, ¶ 22. In order to impose a duty to
supervise, the employer needs only “general foreseeability” to put the employer on notice of an
employee’s conduct. Doe v. Coe, 2019 IL 123521, ¶ 61. A claim for negligent supervision differs
from a respondeat superior claim because a claim for negligent supervision requires the plaintiff
to prove that the employer itself was negligent, rather than proving that the employer is
vicariously liable for the employee’s conduct. National R.R. Passenger Corp. v. Terracon
Consultants, 2014 IL App (5th) 130257, ¶ 15 (citing Vancura v. Katris, 238 Ill. 2d 352, 375
(2010)).
¶ 36 As discussed in detail above, at the time of the altercation, Haynes was not an employee
of Lofton and the altercation occurred on Walgreens’ property, not Lofton’s property.
Accordingly, Lofton had no duty to supervise Haynes at the time of the altercation. Nonetheless,
even assuming Lofton had a duty to supervise Haynes, plaintiff has failed to raise a genuine issue
of material fact that Lofton negligently supervised Haynes. Plaintiff points out that on the date of
the incident, Sanchez, the general manger, left the McDonald’s where Haynes was working to
retrieve supplies from another restaurant. Plaintiff asserts that Lofton therefore failed to
supervise Haynes because Sanchez left the restaurant. Plaintiff ignores, however, the testimony
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No. 1-18-2382
that another manager was present at the restaurant prior to the incident. Indeed, it was this
manager who instructed Haynes to clean the bathrooms before Haynes voluntarily terminated his
employment. The record also shows that Sanchez was present in the restaurant during the verbal
altercation between plaintiff and Sanchez and returned to the restaurant before Haynes exited the
restaurant and struck plaintiff in the Walgreens parking lot. A security guard, Weatherspoon, was
also present in the restaurant’s lobby. The record thus shows that Lofton adequately monitored
Haynes while he was an employee of the restaurant (Doe, 2019 IL 123521, ¶ 64).
¶ 37 We also find that Haynes’ conduct was not “generally foreseeable.” We find this court’s
reasoning in MacDonald v. Hinton, cited by the trial court in its ruling, instructive. In that case,
the plaintiff sued the defendant after her son, an employee of the defendant, was murdered by
one of his coworkers. MacDonald v. Hinton, 361 Ill. App. 3d 378, 379 (2005). The plaintiff
alleged that the coworker was a known convicted killer who posed a danger to young men such
as her son who he met through “mutual employment or otherwise.” Id. at 380. The court found
that the harm inflicted by the coworker on the plaintiff’s son was not foreseeable because
plaintiff failed to allege that her son was particularly at risk such that the defendant employer had
a duty to warn him. Id. at 386-87. “Plaintiff’s allegation that [the coworker] would kill
individuals he befriended through ‘mutual employment or otherwise,’ leaves the threat of harm
open to a very broad group of individuals who are not necessarily employees” of defendant, like
her son. Id. at 387. Accordingly, the court found that the harm inflicted was not foreseeable. Id.¶ 38 Here, even accepting plaintiff’s unsupported contentions regarding Haynes’ criminal
background, the harm inflicted to plaintiff was not foreseeable because plaintiff did not allege
that he was particularly at risk such that Lofton had a duty to supervise Haynes in his interactions
with customers. Plaintiff’s allegations that Haynes had a propensity for violence because of his
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No. 1-18-2382
criminal background “leaves the threat of harm open to a very broad group of individuals.” Id.Plaintiff thus failed to allege that he was particularly at risk from harm from Haynes. Id. at 386-
87. Plaintiff points out that Haynes had received warnings for previous workplace violations and
one of his managers had even recommended that he be fired. Plaintiff asserts that these incidents
rendered Haynes conduct on the date of the incident foreseeable. However, the incidents
described in Haynes’ employee history involved arguments with other employees and
noncompliance with directions from managers or his work schedule. Nothing in his employment
history suggested that he posed a risk of harm to customers. Accordingly, we find that plaintiff
failed to raise a genuine issue of material fact with regard to his claim for negligent supervision
and that the trial court did not err in granting Lofton’s motion for summary judgment on that
claim.
¶ 39 E. Negligent Hiring and Retention
¶ 40 Plaintiff next contends that the court erred in granting Lofton’s motion for summary
judgment on his claims for negligent hiring and retention. Plaintiff asserts that Haynes lied on his
employment application indicating that he had not been convicted of a felony within the past five
years and no one at Lofton verified the veracity of that claim. Plaintiff further asserts that while
Haynes was an employee of Lofton, he was cited for multiple workplace violations, but Lofton
nonetheless refused to fire him.
¶ 41 As with a claim for negligent supervision, “[a]n employer’s direct liability for negligent
hiring and retention is distinct from its respondeat superior liability for the acts of its
employees.” Van Horne v. Muller, 185 Ill. 2d 299, 311 (1998) (citing Bates v. Doria, 150 Ill.
App. 3d 1025, 1031 (1986)). “Under a theory of negligent hiring or retention, the proximate
cause of the plaintiff’s injury is the employer’s negligence in hiring or retaining the employee,
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No. 1-18-2382
rather than the employee’s wrongful act.” Van Horne, 185 Ill. 2d at 311. An action for negligent
hiring or retention requires the plaintiff to plead and prove “(1) that the employer knew or should
have known that the employee had a particular unfitness for the position so as to create a danger
of harm to third persons; (2) that such particular unfitness was known or should have been
known at the time of the employee’s hiring or retention; and (3) that this particular unfitness
proximately caused the plaintiff’s injury.” Id. A plaintiff must show that the employee was unfit
in a particular manner such that the unfitness rendered the plaintiff’s injury foreseeable to a
person of ordinary prudence in the employer’s position. Doe, 2019 IL 123521, ¶ 66.
¶ 42 Here, we find that the court did not err in granting summary judgment on plaintiff’s
claims for negligent hiring and negligent supervision because plaintiff cannot satisfy the
proximate cause element of his claim as a matter of law. We recognize that the issue of
proximate cause is typically a matter for the trier of fact. Brettman v. M&G Truck Brokerage,
Inc., 2019 IL App (2d) 180236, ¶ 45. “However, if the facts alleged do not sufficiently
demonstrate both cause in fact and legal cause, which involves policy considerations, the lack of
proximate cause may be determined by a court as a matter of law.” Id. Here, we may determine
the lack of proximate cause in this case as a matter of law because plaintiff’s cause of action
cannot satisfy the proximate-cause standard under the existing record. Id. This is the case
because “the definition of the cause of action of negligent hiring or retention centers on the work
to be performed and whether the incompetent execution of that work caused harm to a third
party. Again, in an action for negligent hiring or retention, the injury must have occurred by
virtue of the servant’s employment.” (Emphasis in original.) Id. (citing Bates, 150 Ill. App 3d at
1025, 1032). That is, an employer may be liable for negligent hiring or retention “ ‘only where
there was demonstrated some connection between the plaintiff’s injuries and the fact of
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No. 1-18-2382
employment.’ ” Brettman, 2019 IL App (2d) 180236, ¶ 45 (quoting Bates, 150 Ill. App 3d at
1032). “Were such a connection not required, an employer would essentially be an insurer of the
safety of every person who happens to come into contact with his employee simply because of
his status as an employee.” Bates, 150 Ill. App. 3d at 1032.
¶ 43 In this case, we conclude that summary judgment was properly granted because there was
no factual basis alleged to show that plaintiff’s injuries were caused in any way by virtue of
Haynes’ employment at McDonald’s. Id. As discussed, Haynes had already voluntarily quit his
employment and the incident did not take place on Lofton’s property. Most importantly, even
accepting plaintiff’s arguments that Haynes was still an employee of Lofton and the incident
took place on Lofton’s property, at the time of the altercation, Haynes was not engaged in
conducting any of his duties as an employee of McDonald’s. Id. That is, plaintiff could maintain
an action for negligent hiring or retention only where his injuries were a result of Haynes’
performance of the work he was employed to perform. Brettman, 2019 IL App (2d) 180236, ¶
45. That is clearly not the case here. Plaintiff makes no suggestion that Haynes’ conduct was in
any way related to his responsibilities as an employee of McDonald’s. Although the trial court
did not rely on this reasoning in granting Lofton’s motion, we note that we may affirm the trial
court’s grant of summary judgment on any basis appearing in the record whether or not the trial
court relied on that basis. Argueta v. Krivickas, 2011 IL App (1st) 102166, ¶ 5. Accordingly, we
find that plaintiff has failed to present any evidence to raise an issue of fact upon which he could
recover in a cause of action for negligent hiring and retention and we find that the trial court
properly granted summary judgment in favor of Lofton on that issue.
¶ 44 We note, however, that there is a line of cases which relies on section 317 of the
Restatement (Second) of Torts. Restatement (Second) of Torts § 317 (1965). Under that section,
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No. 1-18-2382
an employer has a duty to control the conduct of an employee where the employee is on the
premises of the employer or is using a chattel of the employer and the employer knows or should
know of the necessity and opportunity to control the employee. Hills v. Bridgeview Little League
Association, 195 Ill. 2d 210, 229 (2000) (citing Restatement (Second) of Torts § 317 (1965)). As
discussed, at the time of the incident, Haynes was not an employee of Lofton, was not on the
premises of Lofton, and was not using a chattel of Lofton. Although plaintiff summarily
contended that Haynes struck him with a metal object he obtained from his “work site” plaintiff
presented no evidence supporting this claim; either the fact of the metal object or the notion that
Haynes obtained it from his “work site.” As noted, the trial court correctly determined that the
evidence presented demonstrated that Haynes struck plaintiff with his fist. Further, as discussed
above, plaintiff failed to present evidence suggesting that Lofton knew or should have known of
the necessity to control Haynes where there was nothing in his criminal background or
employment history to suggest that he would strike a patron of the restaurant.
¶ 45 Plaintiff contends, however, that because of the “special relationship” between him and
Lofton’s McDonald’s, Lofton had an affirmative duty to protect him from harm. Plaintiff is
correct that in certain circumstances, a special relationship may give rise to an affirmative duty to
protect another against unreasonable risk of physical harm. Marshall v. Burger King Corp., 222
Ill. 2d 422, 438 (2006). These relationships include “common carrier and passenger, innkeeper
and guest, custodian and ward, and possessor of land who holds it open to the public and
member of the public who enters in response to the possessor's invitation.” Id. Plaintiff
maintains, citing Marshall, that Lofton, as a business invitor, owed him, an invitee, a duty to
protect him from an unreasonable risk of harm. Id. at 440. However, by plaintiff’s own
testimony, he was not a business invitee at the time of the incident. Plaintiff testified that he ate
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No. 1-18-2382
at the McDonald’s earlier that day. At that point, he was a business invitee of Lofton. However,
he left the McDonald’s after finishing his meal. At that point, his status as business invitee
ended. Although he later returned to the McDonald’s, he did so for the sole purpose of
confronting Haynes to tell him to stop spraying the cleaning solution on tables near Butler. Even
assuming plaintiff regained his status as a business invitee when he reentered the restaurant, he
clearly lost it when he, after exiting the restaurant, stood talking with friends in a nearby parking
space for half an hour and then began to walk into the Walgreens parking lot on his way to the
nearby bus stop before he was struck by Haynes. This court has held that, except in certain
circumstances that are not present in this case, a business invitor does not owe a duty to a
business invitee after the invitee leaves the premises. Cooke v. Maxum Sports Bar & Grill, Ltd.,
2018 IL App (2d) 170249, ¶ 60 (“The general rule is that a business invitee ceases to be an
invitee, and the business invitor’s duty ends, as soon as the invitee leaves the premises owned by
the invitor.”); see also, Hougan v. Ulta Salon, Cosmetics & Fragrance, Inc., 2013 IL App (2d)
130270, ¶ 44 (“Ulta did not owe a duty of care to [plaintiff] when she was injured, because the
sidewalk on which she was standing, as well as the allegedly dangerous parking lot, were under
[the landlord’s] exclusive control.”). Accordingly, we find no “special relationship” existed
between the parties at the time of the altercation such that Lofton owed plaintiff an affirmative
duty of care to protect him from harm. As such, we find that the trial court did not err in granting
Lofton’s motion for summary judgment on his claims for negligent hiring and retention.
¶ 46 F. Ronald Hauri
¶ 47 Finally, plaintiff contends that the testimony of Hauri warrants the reversal of the
summary judgment motion. Plaintiff asserts that Hauri was an expert in law enforcement and
violent crime and the court erred in disregarding his testimony. Plaintiff points out that Hauri
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No. 1-18-2382
opined that it was reckless and dangerous for Lofton to have hired Haynes, that Haynes’ criminal
background demonstrated that it was unreasonable and unsafe for Lofton to entrust Haynes to be
around McDonald’s patrons, and that Lofton failed to follow its own hiring procedures in failing
to look into Haynes’ criminal background. Plaintiff maintains that this testimony raises an issue
of material fact that prevents the entry of summary judgment. We find, however, that Hauri’s
testimony does not warrant reversal. As noted, plaintiff’s claims for negligent supervision,
hiring, and retention must fail as a matter of law. In addition, his claim for respondeat superior
must fail because there were no facts alleged that Haynes was acting within the scope of his
employment at the time of the altercation. Hauri’s testimony does not cure these defects. In any
event, Hauri’s testimony was essentially a recitation of plaintiff’s allegations regarding Lofton’s
failure to examine Haynes’ criminal background, and his allegations that Haynes’ criminal
background demonstrated his propensity for violence. As outlined above, none of these
considerations are relevant to our ruling. As such, we find that Hauri’s testimony does not
warrant a reversal of the trial court’s judgment.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 50 Affirmed.
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