2014 IL App (2d) 130633
Ill. App. Ct.2014Background
- At an Oktoberfest volunteer shift, Jaycee volunteer Dennis Brinkman hugged and picked up fellow volunteer Penny Parks; he lost his balance, fell, and injured her. Parks sued; the jury found the Crystal Lake Jaycees vicariously liable and awarded damages.
- Parks dismissed Brinkman before trial; the sole claim at trial was vicarious liability against the Jaycees for Brinkman’s conduct.
- Evidence showed Jaycee events commonly involved hugs among members but hugging was not a written or required job duty; Brinkman’s assigned job that night was serving beer. Lifting someone onto a shoulder was not shown to be customary.
- The trial court admitted limited evidence about Jaycees’ social culture but excluded testimony that Valicenti (organizer) instructed Brinkman not to touch anyone before his shift; the court barred evidence of Brinkman’s prior misconduct by agreement.
- The Jaycees moved for directed verdict and later judgment n.o.v., arguing Parks failed to prove two Restatement (Second) of Agency § 228 factors: (1) the act was of the kind he was employed to perform, and (2) Brinkman was motivated at least partly to serve the Jaycees. The trial court denied relief; the appellate court reversed and entered judgment for the Jaycees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complained-of conduct was "of the kind" the volunteer was employed to perform | Parks argued hugging was common at Jaycee events and advanced organizational purposes, so Brinkman’s hug (and fall) was similar/foreseeable as part of his volunteer duties | Jaycees argued serving beer did not include hugging or lifting volunteers; lifting onto a shoulder was not customary or contemplated and therefore outside scope | Reversed: conduct (especially lifting) was not of the kind he was employed to perform; jury verdict was against manifest weight of evidence |
| Whether the act occurred within time and place limits of employment | Parks relied on occurrence at the event during his shift | Jaycees conceded timing/place but said that alone is insufficient without the other elements | Court treated time/place as satisfied but held other elements must be met; absence of those elements defeats vicarious liability |
| Whether Brinkman was motivated, at least partly, to serve the Jaycees when he hugged/picked up Parks | Parks asserted Jaycees’ interest in a welcoming image could supply motive; circumstantial inference from culture of hugging | Jaycees argued there was no direct or circumstantial evidence of Brinkman’s intent to serve the organization; witnesses said hugs were personal, not organizationally mandated | Held: plaintiff failed to present evidence of Brinkman’s state of mind or motivation to serve the Jaycees; speculation insufficient |
| Admissibility effect: exclusion of testimony that organizer told Brinkman not to touch anyone | Parks sought to exclude Brinkman’s prior-misconduct evidence and reasons for instruction; argued relevance and prejudice led to exclusion | Jaycees argued Valicenti’s instruction was highly relevant to show employer forbade touching and to rebut the ‘‘huggy organization’’ theory | Held: appellate court found exclusion of Valicenti’s testimony was error and that the excluded testimony would have supported Jaycees’ defense; exclusion undermined defendant’s case |
Key Cases Cited
- Bagent v. Blessing Care Corp., 224 Ill. 2d 154 (Ill. 2007) (adopts three-part Restatement test for vicarious liability and requires proof employee’s state of mind to show motive to serve employer)
- Adames v. Sheahan, 233 Ill. 2d 276 (Ill. 2009) (applies Restatement test; foreseeability alone insufficient when act is not of the kind employee was employed to perform)
- Krywin v. Chicago Transit Authority, 238 Ill. 2d 215 (Ill. 2010) (directed verdict standard: verdict overturned only when evidence so one-sided no contrary verdict could stand)