O'Rourke v. McIlvaine
19 N.E.3d 714
Ill. App. Ct.2014Background
- Plaintiff sued for negligent hiring and retention after a home invasion by a former worker who had assisted on an insulation job at her home.
- In 2010 Bruce McIlvaine and McIlvaine Enterprises employed Requena, Waight, and Romero for insulation work; Requena had prior criminal convictions.
- The workers completed the insulation project the day after they started.
- In March 2010, Requena burglarized plaintiff’s home, restrained her, and stole items.
- Plaintiff alleged defendants were negligent by not investigating Requena’s background, enabling the invasion by learning intimate details about plaintiff and her home.
- The trial court granted summary judgment to defendants, holding no duty existed when the home was not the employer’s premises and Requena was not using the employer’s instruments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an employer is liable for posttermination acts under Restatement §317. | O'Rourke argues §317 extends duty post-termination. | Defendants contend §317 requires continued control or premises use. | No duty for posttermination acts under §317. |
| Whether plaintiff’s home remained the employer’s premises or jobsite after termination. | Home remained the jobsite; liability persists. | Jobsite ends with termination; no premises use. | Home not the employer’s jobsite after termination. |
| Whether the employer had contemporaneous right to control Requena at the time of the injury. | Contends retained control implied liability. | No contemporaneous control; no duty. | No control at time of injury; no liability. |
Key Cases Cited
- Escobar v. Madsen Construction Co., 226 Ill. App. 3d 92 (1992) (restatement §317 reliance; premises or chattel control elements)
- Doe v. Boy Scouts of America, 2014 IL App (2d) 130121 (2014) (considered posttermination liability under §317; not decided for liability)
- MacDonald v. Hinton, 361 Ill. App. 3d 378 (2005) (right to control essential for liability outside scope)
- Carter v. Skokie Detective Agency, Ltd., 256 Ill. App. 3d 77 (1993) (proximate causation in negligent-hiring contexts)
- Haight v. Aldridge Electric Co., 215 Ill. App. 3d 353 (1991) (borrowed-employee principle; liability tied to control over employee)
- San Benito Bank & Trust Co. v. Landair Travels, 31 S.W.3d 312 (Tex. App. 2000) (control factor central to employer liability for postemployment acts)