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Illinois Supreme Court Distinguishes 20 Years of Trucking Law

May 20, 2022Joseph PanateraRelated Practice Areas: Transportation

Illinois Supreme Court Distinguishes 20 Years of Trucking Law

On April 21, 2022, the Illinois Supreme Court distinguished twenty years of trucking law related to dismissal of negligent hiring, retention, and entrustment claims when a motor carrier admits that a driver is its agent. See McQueen v. Lavonta M. Green, et al., 2022 IL 12666 (Ill. April 21, 2022).

In McQueen, the Illinois Supreme Court addressed the primary issue of whether an employer’s admission of vicarious liability for its employee’s misconduct precludes a plaintiff from raising claims of direct negligence based on the employer’s own conduct. McQueen, 2022 IL 12666 at ¶ 34. The Illinois Supreme Court held that a plaintiff may proceed with both a direct negligence action against an employer and an action under a theory of vicarious liability. Id. at ¶ 47.

In McQueen, a general contractor in Chicago, Pan-Oceanic, employed Mr. Green. Id. at ¶ 3. Mr. Green’s supervisor asked him to pick-up a skid steer from another company, Patten. Id. at ¶4. Patten loaded the skid steer onto a trailer. Mr. Green saw that the skid steer was not loaded properly and asked that it be reloaded. Patten did not re-load the skid steer. Mr. Green contacted his supervisor and advised that the skid steer was “crooked.” Mr. Green’s supervisor told him to return with the skid steer. Id. Mr. Green then drove away with the skid steer. As Mr. Green was driving on the highway, he moved from one lane to another and pressed the brakes. When he pressed the brakes, the vehicle started spinning and the trailer swung into a car driven by Mr. McQueen causing injury to Mr. McQueen. Id. at ¶ 5. Mr. McQueen filed suit alleging that Mr. Green, as an employee of Pan-Oceanic, was negligent in the operation of the vehicle. Mr. McQueen also alleged that Pan-Oceanic was negligent in failing to train Mr. Green on how to respond to an unsafe load, was negligent in ordering Mr. Green to take the load onto the highway when the company knew or should have known that the load was in an unsafe state, and failed to reject the load to prevent it from traveling on the highway. Id. at ¶ 6.[1] Pan-Oceanic admitted that Mr. Green was its agent and was acting within the scope of his agency at all times relevant to the lawsuit. Id. at ¶ 7.

At trial, the jury found Mr. Green not guilty but found Pan-Oceanic guilty. Id. at ¶ 22.  The Illinois Supreme Court held that the verdicts were not absolutely irreconcilable. Id. at ¶ 53. The Court stated, “the jury could have found that Mr. Green acted as a reasonably careful person would have under the circumstance.” Id. at ¶ 52 The Court also stated, “the jury could reasonably have concluded that Pan-Oceanic demonstrated utter indifference toward the safety of other.” Id. at ¶ 53

The Illinois Supreme Court held that so long as a good faith factual basis exists for a plaintiff’s claim of direct negligence against an employer, the plaintiff should be allowed to pursue such a claim in addition to a claim of vicarious liability. Id. at ¶ 43. The Illinois Supreme Court explained that the trial court instructed the jury that plaintiff claimed Pan-Oceanic was negligent for, among other things, ordering Mr. Green to take the load after it knew, or should have known that it was in an unsafe state, and for failing to reject the load to prevent it from traveling on the highway. Id. at ¶ 44. This theory of liability did not seek to impute Mr. Green’s misconduct onto Pan-Oceanic, but claimed that Pan-Oceanic should be held liable for its own actions and inactions. Id. The Illinois Supreme Court went on to state that a potentially meritorious cause of action should not be barred simply because the employer acknowledges vicarious liability for its employee’s misconduct in a separate cause of action. Id. at ¶ 45.

The Illinois Supreme Court noted that Plaintiff’s theory of liability did not seek to impute Green’s misconduct onto Pan-Oceanic. Id. at ¶ 44. Over the past twenty years, the Illinois First District Appellate Court has held that once an employer admits responsibility under respondeat superior, a plaintiff may not proceed against the employer on a theory of negligent hiring, negligent retention or negligent entrustment. Gant v. L.U. Transport, Inc., 331 Ill. App. 3d 924, 930 (1st Dist. 2002). The Gant Court held that once a principal admits it is liable under a respondeat superior theory, the cause of action for negligent entrustment is duplicative and unnecessary. Id. at 929. To allow both causes of action to stand would allow a jury to assess or apportion a principal’s liability twice. This case has also been used to successfully seek dismissal of allegations based on a failure to train as those allegations would be derivative of the negligence of the driver. [2]

The Illinois Supreme Court does not indicate that it is overturning the holding in Gant. Instead, the facts in McQueen are distinguishable from the holding in Gant. Specifically, the claims against the employer were not derivative of the claims against the employee. The direct negligence claim of failure to train and ordering the employee to transport the trailer that was improperly loaded were based on actions or inactions of the employer.

The Illinois Supreme Court also included the statement that “[n]egligent hiring, negligent supervision, and negligent retention are all direct causes of action against the employer for the employer’s misconduct in failing to reasonably hire, supervise, or retain the employee.” Id. at ¶ 44, citing Doe v. Coe, 2019 IL 123521, p. 33. In Doe v. Coe, the Illinois Supreme Court held that under a common-law negligence cause of action, an employer can be liable for an employee’s torts in one of two ways, depending on whether the employee was acting within the scope of his employment. Doe v. Coe, 2019 IL 123521, p. 33. If the employee was within the scope of his employment, the employer can be found liable for his actions under a theory of vicarious liability, or respondeat superior. Id. If an employee acts outside the scope of his employment, however, the plaintiff can bring a direct cause of action against the employer for the employer’s misconduct. Negligent hiring, negligent supervision, and negligent retention are all direct causes of action against the employer for the employer’s misconduct in failing to reasonably hire, supervise, or retain the employee. Id. To prove a negligent hiring or retention claim, a plaintiff must show not just that an employee was unfit but that the employee was unfit in a particular manner, which particular unfitness, “must have rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position.” Id. at pp. 44, 66. In McQueen, the Illinois Supreme Court does not address whether Mr. Green was considered to be acting outside the scope of his employment with Pan-Oceanic, which would be a basis for a direct cause of action against Pan-Oceanic.

Based on the opinion in McQueen, plaintiff attorneys will likely be able to pursue negligent hiring, retention and training claims against trucking companies as well as vicarious liability claims. These claims will likely no longer be dismissed based on an admission of agency by the trucking company. However, the Illinois Supreme Court has left open ways to continue to seek dismissal of the negligent hiring, retention, and training claims. The Supreme Court noted that the theories of liability in McQueen did not seek to impute the driver’s liability onto the company. McQueen, 2022 IL 12666 at ¶ 44. Instead, plaintiff’s claims were that the company should be held liable for its own actions and inactions. Specifically, the company should be held liable for ordering its driver to take the load when the company knew, or should have known, that the load was in an unsafe state, and for failing to reject the load to prevent it from traveling on the highway. Id.

A trucking company may still argue for dismissal of negligent hiring, retention, and training claims that are derivative of the vicarious liability claim. See Gant, 331 Ill. App. 3d at 928. In addition, trucking companies may continue to seek dismissal of negligent hiring and retention claims, if a plaintiff does not allege that an employee was unfit, and the particular unfitness rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position. See Doe v. Coe, 2019 IL 123521, p. 44. These arguments should be raised at the summary judgment stage, if the plaintiff fails to present evidence that the claims are not derivative of the vicarious liability claim or fails to present evidence that a particular unfitness of a driver caused the injury to plaintiff.

Defense attorneys must remain vigilant in forcing plaintiff attorneys to meet their burden of proof and force judges to address these issues. We should continue to file motions to dismiss negligent hiring, retention and training claims when a trucking company admits the driver was its agent, if the pleadings indicate that the claims are derivative of the vicarious liability claim. We need to force plaintiff attorneys to explain how a negligent hiring, retention, or training claim is not derivative of a vicarious liability claim. The plaintiff’s response should provide us with more specific information regarding the alleged bases for these claims, which will allow us to better prepare written discovery and deposition questions to address these issues. We will then need to seek summary judgment regarding these claims, if plaintiff fails to present evidence to support the claims. We must take plaintiff attorneys to task at summary judgment to force them to present specific evidence to support their claims. If they cannot present evidence to support their claims as required by the law, then summary judgment should be granted on those claims. We must then also seek entry of modified jury instructions, special interrogatories, and potentially post-trial motions to prevent any potential double recovery, if a Court improperly allows a plaintiff to pursue a negligent hiring, retention, or training claim and a vicarious liability claim. We should not allow the McQueen decision to harm trucking companies in unintended ways by allowing plaintiff attorneys to seek duplicative claims and potentially double recovery.