author: JUSTICE GIANNIS

text:
    JANINA KRENGIEL, Plaintiff-Appellant, v. LISSNER CORPORATION, INC., et al., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 91—2379
    Opinion filed July 23, 1993.

      Marvin A. Brustin, Ltd., of Chicago, for appellant.
    Querrey & Harrow, Ltd., of Chicago (Mary T. Nagel and Michael Resis, of counsel), for appellees.
   JUSTICE GIANNIS

delivered the opinion of the court:

Plaintiff instituted this action seeking damages for personal injuries allegedly sustained as a result of the negligent conduct of the defendants. After trial, the jury returned a verdict for plaintiff in the amount of $10,000, and the trial court entered judgment on the verdict. Plaintiff appeals, contending that (1) the verdict returned by the jury was against the manifest weight of the evidence and clearly inadequate, and (2) the trial court erred in admitting into evidence a statement contained in the emergency room record that plaintiff had a history of chronic back pain.

The record reveals that plaintiff filed suit on April 14, 1983, seeking recovery for personal injuries allegedly sustained in an automobile collision. The complaint asserted that plaintiff was injured on April 19, 1981, when the vehicle in which she was riding was struck from behind by a truck owned by defendant Lissner Corporation, Inc. (hereinafter Lissner Corp.), and operated by defendant Pelzer. The complaint asserted that Pelzer was liable for his negligent operation of the truck and that Lissner Corp. was vicariously liable for the acts of its agent under the doctrine of respondeat superior. The complaint requested damages as compensation for plaintiff’s personal injuries, medical expenses, and lost earnings.

In her answers to defendants’ interrogatories, plaintiff stated that she had suffered soft tissue injuries to her neck and back and had been treated by Dr. Josephine Sobol. Plaintiff stated further that she had paid $520.48 in hospital expenses and $121.85 for medications, but the cost of her treatment by Dr. Sobol was unknown. Plaintiff denied that she had suffered any serious personal injury, been treated by a physician, been confined to a hospital, or received X rays during the five years immediately prior to the accident. Plaintiff also denied that she had suffered any personal injury or serious illness since the date of the accident. Plaintiff did not answer the defendants’ interrogatory which requested the name of her employer, the dates on which she was unable to work, and the amount of her lost wages.

The pretrial memorandum filed by the plaintiff described her injuries as “soft tissue injury to neck — right cervico-thoracic spine muscle spasm — injury to lumbar sacral” and stated that she had paid $1,145 to Dr. Sobol for treatment and $43.10 for medication. These amounts were in addition to the medical expenses previously disclosed in plaintiff’s answers to the defendants’ interrogatories. The pretrial memorandum did not identify plaintiff’s employer or specify the dates on which she was unable to work, but stated that the amount of her lost wages was “unknown at this time.”

Plaintiff’s answers to defendants’ supplemental interrogatories stated that she had paid Dr. Sobol an additional $2,000 and had paid Dr. Sydney Morgenstem $200 for treatment. In response to defendants’ supplemental interrogatory regarding lost earnings and time off from work, plaintiff stated only that she had none other than that previously noted in written and oral discovery.

Plaintiff’s medical expenses disclosed prior to trial totalled $4,030.43.

Defendants retained Dr. Boone Brackett, M.D., as their expert witness, and he examined the plaintiff on May 25, 1989, eight years after the accident occurred. In the report of his examination, Dr. Brackett stated that he had considered, inter alia, the plaintiff’s medical history, which included “some chronic back pain prior to the accident.” Brackett concluded that he “could not say within the reasonable degree of medical and surgical [certainty] that this disc [syndrome] eight years later was caused by the accident.”

Prior to trial, plaintiff filed a motion in limine seeking exclusion of a statement contained in the Northwest Hospital emergency room report. The statement sought to be excluded indicated that plaintiff had a history of chronic back pain prior to the date of the accident. In her motion in limine, plaintiff asserted that she was a Polish national, spoke no English, had arrived in the United States only one week before the accident, and could not have made any admission or statements to the hospital staff. Plaintiff asserted further that she had not suffered any back injury or had chronic back pain before the accident, and neither she nor her daughter ever made such a statement to the hospital staff.

Although the record on appeal does not contain a written order disposing of plaintiff’s pretrial motion, the trial court apparently denied plaintiff’s motion in limine seeking exclusion of the statement contained in the emergency room report.

Defendants filed a motion in limine seeking to bar plaintiff from testifying as to her lost income and her inability to pay for medical treatment. The record does not, however, reflect the disposition of this motion.

The partial transcript which is included in the record on appeal reflects that at trial, plaintiff’s daughter, Wanda Podgorski, testified that she went with her mother to the emergency room at Northwest Hospital the day after the accident. Ms. Podgorski stated that the nurse in the emergency room did not speak Polish, and, although Ms. Podgorski did not speak English fluently, she informed the nurse of her mother’s name and address and indicated that her mother had been involved in an automobile accident. Ms. Podgorski denied that she gave the emergency room nurse a medical history of her mother and denied that she ever told a member of the Northwest Hospital staff that her mother had suffered a previous back injury or had a history of chronic back problems.

The partial transcript of plaintiff’s testimony reflects plaintiff testified that she went to the hospital with her daughter the day after the accident. Plaintiff testified that she was able to understand only that the nurse wanted to know whether she had undergone an operation, and plaintiff answered that she had not. Plaintiff stated that she did not know what information the nurse had written down.

The portion of plaintiff’s testimony which has been included in the record on appeal does not include any evidence of plaintiff’s medical expenses or lost earnings, nor does it reflect any questioning as to a history of back pain or a prior injury. In addition, the transcript does not include any evidence of the pain and suffering caused plaintiff as a result of the accident.

Dr. Boone Brackett, called as an expert for defendants, testified at length as to plaintiff’s physical condition at the time of his examination in April 1989. Brackett stated that plaintiff suffered from osteoarthritis of the spine and from spinal stenosis, which he described as a narrowing at the fourth and fifth vertebrae, causing pressure on the fifth nerve root. Brackett testified that the osteoarthritis was not caused by trauma and that spinal stenosis was a degenerative disease, resulting from the normal aging process, and not a result of trauma. Brackett concluded that the plaintiff’s condition was not caused by the accident in 1981. Brackett stated that he relied upon plaintiff’s X rays, CT scan, MRI report, X ray report, and the Northwest Hospital emergency room report in forming his opinions.

In testifying as to the basis of his opinion, Dr. Brackett was asked by defense counsel to read to the jury the “history and assessment” portion of plaintiff’s emergency room record, which included the statement that plaintiff had “a history of old lower back pain” and “chronic back pain.” No objection was asserted by plaintiff when this evidence was introduced. Brackett testified further that doctors rely on medical records such as the plaintiff’s emergency room record to make diagnoses and to treat their patients.

Among the instructions given to the jury was defendants’ instruction number 12, which stated that the defendants admitted negligence but denied that any act or omission on their part was a proximate cause of the injuries claimed by the plaintiff.

The jury returned a verdict for plaintiff in the amount of $10,000.

Thereafter, plaintiff filed a motion seeking a new trial on the issue of damages only. Plaintiff's post-trial motion asserted that the jury’s verdict was against the manifest weight of the evidence and was clearly erroneous. In support of this assertion, the motion listed specific amounts of plaintiff’s medical expenses and lost earnings which plaintiff claimed were testified to at trial. The motion also asserted that it was error for the trial court to (1) deny plaintiff’s motion in limine, (2) admit the emergency room record, and (3) deny plaintiff’s motion, made at the close of all the evidence, to strike all references to the challenged statement contained in the emergency room record.

The medical expenses specified in plaintiff’s post-trial motion total-led $5,283, and the lost earnings totalled $95,333.33.

Defendants opposed plaintiff’s post-trial motion, asserting that the verdict was supported by the evidence and that the statement contained in the emergency room record was properly admitted.

We initially address plaintiff’s claim that the verdict returned by the jury was against the manifest weight of the evidence or clearly inadequate.

The determination of appropriate damages is particularly within the province of the jury. (Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 407, 485 N.E.2d 4; Carter v. Indiana Harbor Belt R.R. Co. (1989), 190 Ill. App. 3d 1052, 1059, 547 N.E.2d 488.) A jury verdict is against the manifest weight of the evidence only where, upon viewing the evidence in a light most favorable to the party who prevailed, the opposite conclusion is clearly apparent or the jury’s finding is palpably erroneous. (York v. Stiefel (1983), 99 Ill. 2d 312, 321, 458 N.E.2d 488; Reid v. Sledge (1992), 224 Ill. App. 3d 817, 820, 587 N.E.2d 1156.) A reviewing court will order a new trial only if the damages are manifestly inadequate, if it is clear that proved elements of damage have been ignored, or if the amount awarded bears no reasonable relationship to the loss suffered by the plaintiff. Hollis, 108 Ill. 2d at 407.

Plaintiff contends that the jury’s verdict of $10,000 was manifestly inadequate, bore no reasonable relationship to the loss suffered by her, and did not include certain specific elements of damage which were established at trial. Yet, the abbreviated record before this court does not support plaintiff’s claim.

The partial transcript of plaintiff’s testimony does not include any evidence as to her medical expenses. The only information in the record as to this element of damage can be found in plaintiff’s pretrial memorandum, in her answers to defendants’ interrogatories and supplemental interrogatories, and in her post-trial motion. Plaintiff’s medical expenses disclosed prior to trial totalled $4,030.43, and her post-trial motion indicated that she had presented evidence establishing medical expenses in the amount of $5,283. Considering this information in the light most favorable to the defendants, we hold that the jury’s verdict of $10,000 cannot be characterized as inadequate to compensate plaintiff for her medical expenses or was against the manifest weight of the evidence.

Plaintiff also contends that the verdict was palpably erroneous because it ignored her damages for lost earnings and for pain and suffering. Initially, it must be noted that because plaintiff did not submit an itemized verdict form (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1109), there is no way to determine how the jury’s award was allocated for each of the elements of damage claimed by the plaintiff.

Moreover, the record on appeal contains no evidence of any pain and suffering sustained as a result of the accident, nor does it include any evidence of the plaintiff’s occupation, her usual rate of pay, or the specific dates on which she was unable to work as a result of the accident. The only indication of lost earnings can be found in the plaintiff’s post-trial motion which asserts that she suffered a “loss of potential earnings 9/3/83 when she returned to work for 13 months” in the amount of $26,693.33 and a “loss of earnings since returning Poland [sic] to present” in the amount of $68,640.

The appellant bears the burden of providing the record on appeal which supports the relief requested. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958.) In the absence of such a record, a court of review must presume that the trial court’s order was in accordance with the law and had a sufficient factual basis. (Foutch, 99 Ill. 2d at 392.) Any doubts which may arise from the incompleteness of the record will be resolved against the appellant. (Foutch, 99 Ill. 2d at 392.) Thus, where the record does not include a report of the proceedings, where the judgment order states that the court found the additional fees to be reasonable, and where there is no indication to the contrary, it must be presumed that the evidence presented to the trial court supported the judgment. Foutch, 99 Ill. 2d at 392; Mars v. Priester (1990), 205 Ill. App. 3d 1060, 1066, 563 N.E.2d 977.

In the instant case, the record on appeal is inadequate to establish the damages sustained by plaintiff for pain and suffering or for lost earnings. Consequently, we must presume that the jury’s verdict was supported by the evidence adduced at trial as to these elements of damage.

We next consider plaintiff’s contention that the trial court erred in admitting into evidence the nurse’s note in the emergency room record that plaintiff had a history of chronic back pain. Plaintiff’s attack on the admission of this evidence seems to be predicated upon (1) lack of foundation to justify admission under the business records exception to the hearsay rule, and (2) the defendants’ failure to complete the impeachment of plaintiff’s denial that she had a history of chronic back pain. We find, however, that plaintiff’s challenge of this evidence has been waived under either analysis.

The record reveals that plaintiff filed a motion in limine seeking to exclude the statement contained in the emergency room record, but her motion did not assert any legal grounds for excluding this evidence. Although plaintiff’s motion in limine was apparently denied by the trial court, the record on appeal does not contain that ruling or the reasons for the denial.

A motion in limine is an interlocutory order and remains subject to reconsideration by the court throughout the trial. (Reid, 224 Ill. App. 3d at 822; Romanek-Golub & Co. v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031, 1040, 522 N.E.2d 1341.) Consequently, a party whose motion in limine has been denied must object when the challenged evidence is presented at trial in order to preserve the issue for review, and the failure to raise such an objection constitutes a waiver of the issue on appeal. People v. Pantoja (1992), 231 Ill. App. 3d 351, 354, 596 N.E.2d 205; Reid, 224 Ill. App. 3d at 822; Romanek-Golub & Co., 168 Ill. App. 3d at 1040.

The record reveals that at the request of defense counsel, Dr. Brackett read to the jury the history and assessment portion of the emergency room record, including the statement that plaintiff had a history of chronic back pain. Plaintiff did not object to the introduction of this evidence and did not move to strike it until the close of all of the evidence. Thus, plaintiff’s failure to object to the evidence which was the subject of her motion in limine constituted a waiver of the issue on review. Pantoja, 231 Ill. App. 3d at 354; Reid, 224 Ill. App. 3d at 822; Romanek-Golub & Co., 168 Ill. App. 3d at 1040.

Plaintiff’s motion for a new trial asserts that although an expert witness can rely on medical records in general (Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140), the presumption of reliability has been rebutted in this case where no witnesses testified that the entry in the emergency room record was true and where the plaintiff testified that it was untrue. This claim attacks the foundation laid by defendants to justify admission of the evidence under the business records exception to the hearsay rule. Admission of evidence under the business records exception is governed by Illinois Supreme Court Rule 236. (134 Ill. 2d R. 236.) Objection to the introduction of challenged evidence must be made at the time of admission or it will be treated as waived. (Jacobs v. Holley (1972), 3 Ill. App. 3d 762, 763, 279 N.E.2d 186.) The Illinois Supreme Court has clearly indicated that this type of challenge can be waived. (See Wilson, 84 Ill. 2d at 191-92.) Because plaintiff failed to raise any objection to the lack of foundation at the time Brackett read the statement to the jury, she has waived her right to raise this issue on appeal.

Moreover, we hold that plaintiff has waived her right to attack the admission of the statement based upon the defendants’ failure to complete the impeachment of plaintiff. In Gillespie v. Chrysler Motors Corp. (1990), 135 Ill. 2d 363, 553 N.E.2d 291, the supreme court held that where evidence is admitted subject to later connection, and the proof of that evidence is never presented, the party that opposes it must both object to the lack of proof at the time the evidence is introduced and later renew that objection by making a timely motion to strike the evidence. (Gillespie, 135 Ill. 2d at 373.) In the instant case, plaintiff failed to object to introduction of the nurse’s note contained in the emergency room record at the time that Brackett read it to the jury during his direct examination. Because plaintiff failed to object to this evidence at the time it was admitted, she waived her right to assert the issue on appeal. Gillespie, 135 Ill. 2d at 374.

We note farther that any error in admitting the statement contained in the emergency room record can be considered harmless. We reach this conclusion based upon Brackett’s testimony that plaintiff suffered from osteoarthritis and spinal stenosis, which were degenerative conditions and not the result of trauma, and where the record before this court contains no evidence that plaintiff did not suffer from these conditions or that, if she did suffer from them, they resulted from the trauma of the accident. See Gillespie, 135 Ill. 2d at 378-79.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirm fid.

Affirmed.

EGAN and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOFFMAN

license: Public Domain

text:
      In re ESTATE OF ESTHER C. PENDLETON, Deceased (C. Brian Pendleton, Appellant, v. Richard W. Pendleton et al., Appellees).
    First District (4th Division)
    No. 1 — 92—3806
    Opinion filed August 5, 1993.
    Rehearing denied September 2, 1993.

      C. Brian Pendleton, of Kenilworth, appellant pro se.

    Sisual, Marks & Fleming, of Chicago (Edward L. Fleming and Margaret Iuorio, of counsel), for appellee La Salle National Trust.
    Gottlieb & Schwartz, of Chicago (Morton John Bernard, of counsel), for other appellees.
   JUSTICE HOFFMAN

delivered the opinion of the court:

Appellant, C. Brian Pendleton, a beneficiary under the will of Esther C. Pendleton, appeals from an order setting a date for a public auction of real property which was a part of the estate. We consider: (1) whether this court has jurisdiction to consider the appeal under Supreme Court Rule 304(b)(l) (134 Ill. 2d R. 304(b)(1)) allowing an appeal from an order entered in the administration of an estate which finally determines a right or status of a party; and (2) whether the appeal is moot because the property has been sold. For the following reasons, we dismiss the appeal.

Appellant and appellees Richard W. Pendleton and Marcia Doering were beneficiaries under their mother’s will. Appellee La Salle National Trust (La Salle) was appointed administrator de bonis non with will annexed after appellant was removed for mismanagement. The parties agree that the will empowered the executor to sell any real estate whenever he deemed it advisable and he could do so without court order.

The trial court entered an order setting a date for a public auction of the real property. Due to appellant’s failure to cooperate, the auction did not take place on the scheduled date. La Salle petitioned the court for a rule to show cause against appellant, and in an order dated September 25, 1992, the auction was rescheduled for December 15, 1992. Appellant now appeals from that order.

Opinion

Appellant asserts that this court has jurisdiction over the appeal under Supreme Court Rule 304(b)(l) because the September 25 order setting the date for the public auction terminated his “right of residence as an heir” and his “right to benefit from the full value of the realty.” La Salle does not challenge this court’s jurisdiction.

Supreme Court Rule 304(b)(l) provides that “[a] judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party” may be appealed without a special finding although it does not dispose of an entire proceeding. (134 Ill. 2d R. 304(b)(l).) The purpose of the rule is to prevent piecemeal appeals. (People ex rel. A.M. v. Herlinda M. (1991), 221 Ill. App. 3d 957, 583 N.E.2d 36.) This court has an obligation to consider whether it has jurisdiction even if the parties did not raise the issue. In re Estate of Devey (1993), 239 Ill. App. 3d 630, 607 N.E.2d 685.

Rule 304(b)(l) “applies to orders that are final in character although entered in comprehensive proceedings that include other matters. Examples are an order admitting or refusing to admit a will to probate, appointing or removing an executor, or allowing or disallowing a claim.” (Ill. Ann. Stat. ch. 110A, par. 304(b)(l), Committee Comments, at 27 (Smith-Hurd Supp. 1992).) Not every order entered in an estate proceeding must be immediately appealed; only those orders that finally determine the right or status of a party may be appealed under Rule 304(b)(l). Devey, 239 Ill. App. 3d 630, 607 N.E.2d 685.

Initially, it should be noted that the order appealed from did not authorize La Salle to sell the property as appellant contends. La Salle, as administrator de bonis non with will annexed, derived its power to sell from the clause in the will granting the executor the power to sell property without a court order. See Ill. Rev. Stat. 1991, ch. 110½, pars. 1-2.02, 6-16.

The order appealed from in this case merely reset a date for a public auction for the real property in question. The order did not finally determine appellant’s right to the property or his status as a beneficiary; appellant did not have a right to the property because the will authorized the executor to sell the estate’s property whenever he deemed it advisable. Research has not disclosed any case allowing an appeal under Rule 304(b)(l) from an order setting a date for a public auction of an estate’s property. The order in this case did not finally determine the right or status of a party and, therefore, was not appealable under Rule 304(b)(l). As a result, the appeal must be dismissed for lack of jurisdiction.

Additionally, the appeal must be dismissed because it is moot. Prior to oral argument, La Salle moved to dismiss the appeal because the property had been sold to independent third-party purchasers while the appeal was pending. Attached to its motion was the affidavit of a vice-president of La Salle who stated that the property was sold to David and Cameon Halstead, who are neither parties nor nominees of parties to this action. La Salle argues that appellant did not seek a stay of the order appealed from and, therefore, the resolution of this appeal cannot affect the sale of the property.

Supreme Court Rule 305(b)(l) allows the trial court or the reviewing court to stay pending appeal the enforcement, force, and effect of any final or interlocutory judgment or order. (134 Ill. 2d R. 305(b)(l).) The rule also provides that “[i]f a stay is not perfected *** the reversal or modification of the judgment does not affect the right, title, or interest of any person who is not a party to the action in or to any real or personal property that is acquired after the judgment becomes final and before the judgment is stayed.” (134 Ill. 2d R. 305(i).) Under the rule, the record must disclose that the purchaser was not a party or a nominee of a party to the action. Town of Libertyville v. Moran (1989), 179 Ill. App. 3d 880, 535 N.E.2d 82.

A reviewing court must dismiss an appeal as moot if no actual controversy exists or if it has notice of facts that have occurred which make it impossible for the court to grant effectual relief to either party. (Edwardsville School Service Personnel Association, I E A-N E A v. Illinois Educational Labor Relations Board (1992), 235 Ill. App. 3d 954, 600 N.E.2d 910.) “|T|n the absence of a stay, an appeal is moot if a specific property, possession or ownership of which is the relief being sought on appeal, has been conveyed to third parties.” Libertyville, 179 Ill. App. 3d at 886, 535 N.E.2d at 86.

Appellant contends that with this appeal he is not seeking possession or ownership of the property. Instead, he is only seeking to require La Salle to proceed with the sale of the property under section 20 — 5 of the Probate Act (Ill. Rev. Stat. 1991, ch. 110½, par. 20 — 5), which sets the procedure for the representative of an estate to obtain a court order authorizing the sale of real estate. Appellant explains that the object of the appeal “is to maintain the character of the sale *** as an independent, unsupervised act of the administrator, for which future liability is not barred.”

This court cannot grant effective relief to either party. Even if appellant was successful on appeal, the sale of the property has been completed and this court cannot retroactively require La Salle to comply with the provisions of section 20 — 5. AppeUant failed to obtain a stay of the order on appeal and, as a result, any reversal or modification of the order cannot affect the purchasers’ right, title, or interest in the property. Further, the record establishes that the purchasers were not parties to this case or nominees of the parties. As a result, the appeal is moot and we grant La Salle’s motion to dismiss the appeal.

Appeal dismissed.

JOHNSON and CAHILL, JJ., concur.


author: PRESIDING JUSTICE TULLY

text:
    THEMIS ANASTOS, Plaintiff-Appellant, v. CHICAGO REGIONAL TRUCKING ASSOCIATION, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 92—0635
    Opinion filed June 30, 1993.
    —Rehearing denied September 13, 1993.
    Modified opinion filed September 29, 1993.
    Lindner, Speers & Reuland, of Chicago (Jonathan K. Gray, of counsel), for appellant.
    Laser, Schostok, Kolman & Frank, of Chicago (Bruce M. Friedman and Michael L. Tinaglia, of counsel), for appellee.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

On February 11, 1986, plaintiff, Themis Anastos, filed suit against defendant, Chicago Regional Trucking Association, Inc., alleging, among other things, that defendant breached an employment contract with him by terminating him without cause. The trial court entered an order granting defendant’s motion to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615 (now codified as 735 ILCS 5/2 — 615 (West 1992))). Defendant now appeals to this court from that order pursuant to Supreme Court Rule 301.134 Ill. 2d R. 301.

On appeal, plaintiff contends that the trial court erred in granting defendant’s motion to dismiss.

Factual Background

Plaintiff, a licensed attorney, was general counsel for a trucking association named Cartage Exchange of Chicago, Inc. (Cartage). In 1981, Cartage merged with a competing association named Illinois Motor Truck Association (IMTA). Defendant is the entity which emerged from the amalgamation of Cartage and IMTA.

In 1985, defendant entered into a written employment agreement with plaintiff. The term of the contract was for 10 years at a minimum rate of $27,000 per annum. On December 3, 1985, a majority of defendant’s board of directors voted to pass a resolution discharging plaintiff as general counsel. Defendant claims that the action was for cause. Plaintiff submits that the dismissal was without cause.

Opinion

“In considering the trial court’s dismissal of a complaint, the standard of review is de novo. We must determine whether the complaint, when viewed in a light most favorable to the plaintiff, alleges facts sufficient to establish a cause of action for which relief may be granted and all well-pleaded facts must be accepted as true.” Harris v. Chicago Housing Authority (1992), 235 Ill. App. 3d 276, 277-78, 601 N.E.2d 1011.

Speaking to the issue of a client’s right to discharge an attorney, our supreme court has stated:

“Generally, a client may discharge his attorney at any time, with or without cause. [Citation.] This rule applies equally to in-house counsel as it does to outside counsel. Further, this rule ‘recognizes that the relationship between an attorney and client is based on trust and that the client must have confidence in his attorney in order to ensure that the relationship will function properly.’ ” (Balla v. Gambro, Inc. (1991), 145 Ill. 2d 492, 503, 584 N.E.2d 104, quoting Rhodes v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 228, 399 N.E.2d 969.)

This rule is grounded in a recognition of the fact that an attorney is in the unique situation of maintaining a Close relationship with the client in which he receives secrets, disclosures and other information that would not normally be divulged even to the most intimate of friends. Herbster v. North American Co. for Life & Health Insurance (1986), 150 Ill. App. 3d 21, 27, 501 N.E.2d 343.

The issue of what damages can be recovered by a discharged attorney from a former client was addressed by the appellate court in La Rocco v. Bakwin (1982), 108 Ill. App. 3d 723, 439 N.E.2d 537. In La Rocco, the plaintiff and the defendant entered into an oral, lifetime employment contract whereby the plaintiff agreed to devote substantially all of his time providing legal services to a legal clinic owned by the defendant. The defendant terminated the contract and the plaintiff sued for breach of contract and other relief. The La Rocco court affirmed the lower court’s disallowal of a breach of contract action by the discharged attorney and held:

“[T]he client’s right to discharge his attorney at will is not a breach of contract but a term of the contract implied by law because of the special relationship between attorney and client. [Citation.] Thus, the contract is not breached and the damages for termination of an attorney-client relationship under these facts are not governed by normal contract law principles. *** [W]e believe the proper balance between the client’s right to discharge his attorney and the attorney’s right to compensation under the facts presented, is that the discharged attorney’s fees be paid on a quantum meruit basis for services rendered before discharge.” La Rocco, 108 Ill. App. 3d at 728.

Thus, we believe that an attorney is subject to discharge at any time, with or without cause, and is without remedy against the client or employer for post-termination breach of contract damages. We believe this result is grounded in both common sense and sound public policy, for to hold otherwise would have a chilling effect upon the ability of a client to exercise the right to discharge, as the cost of exercising that right could be litigation with the former attorney. However, we wish to emphasize that nothing in our holding today disturbs an attorney’s right to recover pretermination damages.

Accordingly, we find no error in the trial court’s granting defendant’s motion to dismiss. In addition, we briefly note that plaintiff argued, in the context of arguing the propriety of the trial court’s granting of the motion, that the trial judge lacked the authority to do so as another judge previously assigned to the case had denied such motion. We completely reject this assertion and believe it warrants no further consideration. See Balciunas v. Duff (1983), 94 Ill. 2d 176, 446 N.E.2d 242.

For the above-stated reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

CERDA and GREIMAN, JJ., concur.


author: JUSTICE MAAG JUSTICE WELCH,

text:
    FARRIS BRYANT, a Minor, by his Next Friend Diana Bryant, et al., Plaintiffs-Appellees, v. MARK LIVIGNI, Defendant (National Super Markets, Inc., Defendant-Appellant).
    Fifth District
    No. 5-92-0141
    Opinion filed September 1, 1993.
    —Rehearing denied September 29, 1993.

      WELCH, J., concurring in part and dissenting in part.
    John D. Warner, Jr., of Kortenhof & Ely, of St. Louis, Missouri, for appellant.
    John Long and Greg Weber, both of Troy, for appellees.
   JUSTICE MAAG

delivered the opinion of the court:

Facts

In 1970, Mark Livigni was a 16-year-old high school student. He was hired by National Super Markets, Inc., as a bagger and continued to work for National after graduating from high school. Livigni worked himself up to a management position, and in 1985 he was made manager of the National store in Cahokia. Livigni was evaluated on a regular basis by National with respect to his ability to relate to customers and employees. The record reflects that he always received good evaluations while employed at National.

On March 18, 1987, while off duty, Livigni stopped by the Cahokia National store. As manager, he was authorized to check and supervise the operation of the store even during off-duty hours. He was intoxicated at the time of this visit, which was a violation of National rules. Livigni observed a young man urinating on the store wall outside the east exit doors. He hollered at the young man and followed the fleeing youth to the parked vehicle of Diana Bryant.

Livigni pulled four-year-old Farris Bryant from the automobile. Farris, however, was not the boy who had been urinating. The boy Livigni had followed was Donya Jackson, age 10, who was also in the back seat of the Bryant automobile. Livigni shouted racial epithets and profanity at Diana Bryant and the children, and he attacked four-year-old Farris, throwing the child through the air.

Farris was taken to Centreville Township Hospital’s emergency room for medical treatment. Farris was admitted to the hospital and was released after four days. He was released from all medical treatment approximately one month after the battery.

In a multicount complaint, Farris Bryant and Diana Bryant sued both Livigni and his employer, National. Mark Livigni was accused of committing battery and invasion of privacy. National was alleged to be liable based upon theories of respondeat superior (for Livigni’s actions), negligent retention of Livigni as an employee, and willful and wanton retention of Livigni as an employee.

At trial, Livigni’s supervisor testified that during Livigni’s 17-year tenure with National, Livigni had been a good employee. This supervisor never received any reports from customers or employees that Livigni had “violent-related” problems, although he was aware of a report that Livigni threw an empty milk crate which struck a coworker.

Evidence was offered of two batteries committed by Livigni prior to his attack of Farris. In 1980, Livigni had a disagreement with a subordinate employee resulting in Livigni throwing an empty milk crate at the employee, striking him on the arm and necessitating medical treatment. At the time of this battery, Livigni was an assistant store manager. A workers’ compensation claim was filed against National by the injured employee. A short time after the workers’ compensation claim was resolved, Livigni was promoted to store manager by National in spite of this incident.

The second battery occurred in 1985 when Livigni, while disciplining his 13-year-old son, threw the boy into a bed causing the boy to sustain a broken collar bone. In June 1986 Livigni pleaded guilty to aggravated battery to a child and was sentenced to two years’ probation. He was still on probation at the time he attacked Farris.

Livigni testified at trial that he had not told any of his supervisors at National about the battery of his son. He admitted to telling employees of equal or lesser positions than himself about the battery. He considered these people to be his friends.

Plaintiffs sought to prove that Livigni’s district manager and supervisor, Ben Rodell, was aware of Livigni’s battery of his son by presenting the testimony of Gary Kapecchi, a former National employee. Kapecchi testified, over a hearsay objection, that he had discussed Livigni with Carl Oiler, the man who replaced Livigni as the Cahokia store manager after Livigni was fired. Kapecchi testified that after the Bryant battery, Oiler related to Kapecchi a prior conversation Oiler had with Livigni and Rodell. This conversation concerned Livigni’s battery of his son and how the incident had been blown out of proportion. Kapecchi testified that the conversation took place prior to March 18, 1987. Thus, it would have predated the Farris Bryant attack and shown that Livigni’s supervisor had notice of the incident involving Livigni’s son. Oiler, Rodell, and Livigni all denied that any such conversation took place.

At the close of the evidence, the following counts were submitted to the jury for consideration and the following verdicts were returned.

VERDICTS

Judgment was entered for Farris Bryant in the sum of $20,000 for compensatory damages and $115,000 in punitive damages. Judgment was entered for Diana Bryant in the sum of $8,000 for compensatory damages.

National’s post-trial motion was denied, and this appeal ensued. Mark Livigni is not a party to this appeal.

I

National first contends that the trial court erred in denying its motion for a directed verdict and further erred in refusing to grant its motion for a judgment notwithstanding verdict on the claims of both Farris and Diana Bryant (counts V and IX) which alleged National was negligent in retaining Mark Livigni as an employee. This allegation of error is premised on the proposition that insufficient evidence was presented to show that National knew or should have known that Livigni was not fit to serve as a store manager. National also argues that there was no showing that its retention of Livigni was a proximate cause of the plaintiff’s injuries.

In considering this issue, we must remain cognizant of the relief sought by National. National is not seeking a new trial. Rather, the only relief requested is a judgment notwithstanding the verdict. The standard of review in such a case is that set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14:

“[Yjerdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

According to National, there was no evidence that it knew or had reason to know that Livigni was anything other than “an excellent store manager, fit for his position.” To support this argument, National claims that there was conflicting evidence regarding the 1980 incident where Livigni threw a milk crate at a co-worker causing injury. It argues that the 1980 incident was of uncertain origin since differing versions of the incident and its cause were presented in the evidence. It asserts that due to this conflicting evidence the incident could not form the basis for a negligent retention claim.

We find this argument to be unpersuasive. Under the Pedrick standard, we must refrain from resolving conflicts in the testimony. That is the function of the jury. Our charge is to view the evidence in the light most favorable to the party which prevailed below. In doing so, we believe that the evidence regarding this incident was sufficient to present an issue for the jury to resolve on the question of whether National was negligent in retaining Livigni in its employ.

Rather than disciplining Livigni after he injured a subordinate employee in an unprovoked attack, National promoted him following the resolution of the injured employee’s workers’ compensation claim.

National further argues that it had no knowledge of the incident involving Livigni’s son that resulted in Livigni’s felony conviction for aggravated battery of a child. Relying upon Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 434 N.E.2d 511, National points to the general rule which states that to impute knowledge of this occurrence to National a showing was required that an agent or employee of National had notice or knowledge of the incident and that the knowledge concerned a matter within the scope of the agent’s authority. According to National, evidence of such knowledge was lacking.

This claimed ignorance of the facts is premised upon several different bases. Each will be considered in order.

National first admits that Livigni told employees of equal or lesser rank within the corporation about the battery involving his son. However, it claims that this is insufficient notice to the corporation. It argues that the people Livigni told were his “friends” and that as mere “co-workers” of equal or subordinate position no notice could legally be imputed to National. We disagree.

The issue is not whether these persons were Livigni’s friends. The law does not recognize a “friendship privilege.” Being his friends did not diminish the duty of loyalty owed to the corporation (Restatement (Second) of Agency §39, at 130 (1958)), nor did this friendship relieve them of the duty to act in the best interest of the corporation. The duty is clearly set forth in comment a to section 39 of the Restatement as follows:

“Authority is conferred to carry out the proposes of the principal and not those of someone else. These purposes, as manifested to the agent, constitute the benefit for which, as the agent should realize, the. agency is created. In business enterprises, an agent normally has no authority *** to conduct his principal’s business with a mind to the benefit of others.” Restatement (Second) of Agency §39, Comment a, at 130 (1958).

The friendship enjoyed by Livigni and his co-workers does not constitute a reason to ignore the information admittedly learned by these co-workers, nor does it constitute a reason to forego imputing this information to National.

Assuming for the sake of discussion that no National employees in a position to supervise Livigni knew he had battered his son, we believe that the knowledge admittedly held by the co-workers must still be imputed to National. St. Paul Mercury Insurance Co. v. Statistical Tabulating Corp. (1987), 155 Ill. App. 3d 545, 550, 508 N.E.2d 433, 436.

There is no rule which requires this knowledge held by co-workers to be disregarded unless the co-worker possessing the knowledge “outranks” the employee in question. To the contrary, whether the agent obtaining the knowledge is in a subordinate or a superior position in the corporation, that knowledge is still chargeable to the corporation if the information concerns a matter within the scope of the agent’s authority. St. Paul Mercury Insurance Co., 155 Ill. App. 3d at 550, 508 N.E.2d at 436.

In this case, the defendant tendered, as its instruction No. 2, IPI Civil 2d No. 50.06 (Illinois Pattern Jury Instructions, Civil, No. 50.06 (2d ed. 1971)), and it was given by the court. The instruction explained to the jury the concept of agency and what was required for the jury to conclude that a matter was within the scope of an agent’s authority. Viewing the evidence in the light most favorable to the plaintiff (Pedrick, 37 Ill. 2d 494, 229 N.E.2d 504), we believe that a reasonable jury could have concluded that the information concerning the battery of Livigni’s son, learned by these co-workers, was within the scope of their authority to act upon. Whether reported to higher authorities or not, the information still constitutes “corporate knowledge.” (Campen, 105 Ill. App. 3d at 586, 434 N.E.2d at 517.) In such a case, their knowledge is chargeable to National.

National claims that evidence that Livigni’s supervisor was aware of this incident involving his son was improperly admitted. It claims this evidence was hearsay, should not have been admitted over its objection, and as such could not constitute notice of the incident.

Specifically, National complains that a former National employee, Gary Kapecchi, was allowed to testify over its hearsay objection about a conversation he had with Carl Oiler, a National store manager. According to Kapecchi, Oiler told him that before the incident involving Farris Bryant, National management knew of the incident involving Livigni’s son. Kapecchi stated that Oiler told him of a meeting attended by Oiler, Livigni, and Ben Rodell, Livigni’s supervisor. At this meeting, there was allegedly a discussion about the incident involving Livigni’s son.

This objection has been waived. National has not requested a new trial. It has requested a judgment n.o.v., an outright reversal. In such a case, error in the admission or rejection of evidence is not preserved for review. (Chiribes v. Bjorvik (1968), 100 Ill. App. 2d 150, 241 N.E.2d 626; Gundich v. Emerson-Comstock Co. (1960), 21 Ill. 2d 117, 171 N.E.2d 60.) Despite this waiver, we believe that any error in the admission of this evidence was at most cumulative and harmless. Our previous discussion demonstrates that knowledge of this incident is imputable to National through the knowledge of other employees.

Finally, we have considered the claim that National’s retention of Livigni in its employ was not a proximate cause of the plaintiff’s injuries. In its brief, National devotes only two sentences to this allegation and never states why it believes proof of proximate cause is lacking. The issue is waived. Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)).

We conclude that the circuit court did not err in denying National’s motion for a directed verdict, nor did it err in refusing to grant a judgment n.o.v. on plaintiff’s claim of negligent retention. Viewing the evidence in the light most favorable to the plaintiff, we cannot state that the evidence so overwhelmingly favored National that this verdict cannot stand.

II

National next claims that the circuit court should have directed a verdict in its favor or granted a judgment n.o.v. on the plaintiff’s punitive damages claim. This count alleged that National’s retention of Mark Livigni as a management employee constituted willful and wanton misconduct (count VI).

National reiterates its claim that there was insufficient evidence to prove negligence. It, therefore, states that if the evidence was insufficient to prove simple negligence, then as a matter of law the evidence must be insufficient to prove willful and wanton misconduct. It relies upon In re Application of Busse (1984), 124 Ill. App. 3d 433, 464 N.E.2d 651, as authority for this argument. As an abstract principle of law, we agree that if the evidence was insufficient to prove negligence it must necessarily also be insufficient to prove willful and wanton misconduct. However, we have already found that sufficient evidence was presented to create a jury issue on the negligent-retention claim. The jury resolved that issue against National. Now we must decide whether sufficient evidence was presented to support the punitive damages award.

The Restatement (Second) of Torts, section 909, at 467 (1979) provides:

“Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if,
***
(b) the agent was unfit and the principal or a managerial agent was reckless in *** retaining him.”

This count did not seek to impose liability upon the defendant vicariously. Rather, the plaintiff’s cause of action alleged wrongful conduct on the part of National itself. Section 909(b) of the Restatement (Second) of Torts speaks directly to the issue under discussion. So too does the case of Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 387 N.E.2d 1241.

Easley recognized that it is settled law that a cause of action exists in Illinois for negligent hiring of an employee, and that if the defendant's conduct could properly be characterized as willful and wanton then punitive damages are recoverable. (Easley, 69 Ill. App. 3d at 931, 387 N.E.2d at 1248.) We see little difference between a punitive damages claim for willfully and wantonly hiring an employee in the first instance and a claim for willfully and wantonly retaining an unfit employee after hiring. In both instances, the interest to be protected is the same. Employers that wrongfully (whether negligently or willfully and wantonly) hire or retain unfit employees expose the public to the acts of these employees. In such cases it is not unreasonable to hold the employer accountable when the employee causes injury or damage to another. The principle at issue is not respondeat superior, although that may also be implicated. Rather, the cause of action is premised upon the wrongful conduct of the employer itself. (Easley, 69 Ill. App. 3d at 931, 387 N.E.2d at 1248.) For this reason, the cause of action is distinguishable from the situation in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509, where the plaintiff sought to hold the employer responsible for an employee’s acts based upon principles of vicarious liability.

Punitive damages are not awarded as compensation. They serve the purpose of punishing the offender and deterring others from committing like conduct. (Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, 563 N.E.2d 397.)

“It has long been established in this State that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.” Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186, 384 N.E.2d 353, 359.

Citing Kritzen v. Flender Corp. (1992), 226 Ill. App. 3d 541, 589 N.E.2d 909, National argues that punitive damages require proof beyond that necessary for the basic action. We agree that proof of misconduct more egregious than simple negligence is required. Nevertheless, a party may plead in alternative counts that certain conduct constitutes either negligence or willful and wanton misconduct. (Alley v. Champion (1979), 75 Ill. App. 3d 878, 394 N.E.2d 735.) The question then becomes one for the jury to determine, whether the conduct amounted to simple negligence or rose to the level of willful and wanton misconduct. Giers v. Anten (1978), 68 Ill. App. 3d 535, 386 N.E.2d 82.

Because the cause of action pleaded in count VI was not based upon respondeat superior, there was no need to demonstrate that the wrongfully retained employee was in a managerial position. (Cf. Kemner v. Monsanto Co. (1991), 217 Ill. App. 3d 188, 576 N.E.2d 1146 (dealing with punitive-damage claims based upon respondeat superior).) Rather, the focus of the inquiry was on whether the employer committed willful and wanton misconduct by retaining the unfit employee in the service of the business. In other words, the position of those persons with the power to make decisions regarding the employment status of the unfit employee must be examined, not the position occupied by the person alleged to be unfit.

This does not mean that the position in the corporate chain of command of the unfit employee is irrelevant. An unfit supervisor is frequently in a position to do more harm than a lower-level employee. Also, as the authority of the unfit employee increases, the likelihood that his acts will be deemed corporate policy increases. There is a distinct qualitative difference between acts committed by a corporate official with authority to set policy and acts committed by an employee with no management authority. (Kemner, 217 Ill. App. 3d 188, 576 N.E.2d 1146.) But, given proper circumstances, an employee with little or no authority, who was wrongfully retained, could cause an employer to be subjected to a punitive award if the employer was willful and wanton in its retention of the employee.

The jury heard evidence that Livigni attacked a fellow employee in 1980 and was then promoted. He injured his own son, he was convicted of aggravated battery in a criminal proceeding, and members of National’s management admittedly knew of that incident. National took no action. Then while a store manager, in an intoxicated state, he attacked a four-year-old child and threw him through the air, resulting in his hospitalization. National itself characterizes this attack on young Farris as outrageous. We cannot say the jury was unjustified in concluding the same and also concluding that retaining this man as a managerial employee constituted willful and wanton misconduct.

Since a motion for judgment notwithstanding the verdict presents only a question of law, it will be granted only if there is a total failure to prove any essential element of the plaintiff’s case. (Baier v. Bostitch (1993), 243 Ill. App. 3d 195, 202, 611 N.E.2d 1103, 1108.) Under Pedrick, we must view the evidence in this case in the light most favorable to the plaintiff. There is no claim that the jury did not receive proper instruction, and given this standard of review, we cannot say that there was a total failure of proof on any element, nor can we say that the evidence so overwhelming favored the defendant that the verdict cannot stand. There was sufficient credible evidence presented to lead the jury to render the verdict that it did. We will not disturb that determination. The circuit court did not err in refusing to grant a directed verdict, nor did it err in refusing to grant a judgment n.o.v. on plaintiff’s punitive damages claim (count VI).

III

Finally, National asks that a judgment n.o.v. be entered in its favor on the plaintiffs’ respondeat superior claims (counts III and VIII). National argues in its brief:

“Mark Livigni’s conduct on March 18, 1987, in arriving at the store in an intoxicated state, contrary to known store policy, shouting racial epithets at a customer and her young children, and throwing and attacking an innocent four-year-old child, was unexpectable and outrageous and thus did not come within the scope of Livigni’s employment.”

We agree with National that the conduct was outrageous. We disagree that this precludes a judgment against National based upon principles of respondeat superior.

National appears to argue that because the conduct was reprehensible that it should be insulated from liability. Relying upon section 245 of the Restatement (Second) of Agency (Restatement (Second) of Agency §245, at 537 (1958)), and Harrington v. Chicago Sun-Times (1986), 150 Ill. App. 3d 797, 502 N.E.2d 332, which cites section 245 with approval, National argues that we should find that Livigni’s conduct was “unexpectable” in view of his duties.

Plaintiff cites the case of Metzler v. Layton (1939), 373 Ill. 88, 25 N.E.2d 60, in opposition. In Metzler, an employer was found to be responsible based upon respondeat superior principles for the act of an office manager who mistakenly shot an innocent bystander after a robbery. The court quoted with approval the following language from a Texas decision:

“ ‘The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business, or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances in the occasion, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injury on a third person.’ ” Metzler, 373 Ill. at 91-92, 25 N.E.2d at 61, quoting Central Motor Co. v. Gallo (Tex. Civ. App. 1936), 94 S.W.2d 821, 822.

We believe that the foregoing language is fully applicable to this case.

We also believe that the Harrington case relied on by National is distinguishable. National contends in its brief that Harrington involved a shooting by a newspaper delivery man of a person suspected of stealing newspapers. However, contrary to the claims of National, in Harrington the delivery man specifically denied suspecting the victim of stealing newspapers. (Harrington, 150 Ill. App. 3d at 800-02, 502 N.E.2d at 334-35.) Under these circumstances, it would be difficult to claim that the delivery man was trying to further the employer’s interest or protect the employer’s property.

Moreover, we believe that the criteria for imposition of liability suggested by section 245 of the Restatement (Second) of Agency have been satisfied. Given the evidence of Livigni’s prior acts that preceded the Farris Bryant attack, it was not “unexpectable” that an incident of violence might take place.

In order to impose liability upon National, it was not necessary that Livigni be motivated solely by a desire to further National’s interest. It is sufficient if his actions were prompted only in part by a purpose to protect store property or further the employer’s business. (Wilson v. Clark Oil & Refining Corp. (1985), 134 Ill. App. 3d 1084, 1089, 481 N.E.2d 840, 843.) The evidence was sufficient to justify such a conclusion by the jury.

Finally, the actions of Livigni in attacking Farris were committed within the constraints of the authorized time and location of his employment, thus bolstering a finding that the battery occurred within the course and scope of his employment. Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 493, 422 N.E.2d 925, 930.

Accordingly, we conclude that while the actions of Livigni were obviously not the normal actions of a store manager, we cannot say the jury was unjustified in concluding that Livigni was acting within the course and scope of his employment at the time of the Farris Bryant incident.

Conclusion

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

CHAPMAN, P.J., concurs.

JUSTICE WELCH,

concurring in part and dissenting in part:

I concur with the majority’s opinion with respect to, and would affirm the judgment of the circuit court on the jury verdict against National Food Stores on, the respondeat superior counts of plaintiffs’ complaint. With respect to the majority’s opinion concerning the judgment against National on the negligent and wilful and wanton retention counts of plaintiffs’ complaint, however, I must respectfully dissent.

A cause of action for negligent hiring or retention must establish that a “particular unfitness” of an applicant or employee creates a danger of harm to third parties of which the employer knew, or should have known, when he hired, placed, or continued the person in employment where he could injure others. (Huber v. Seaton (1989), 186 Ill. App. 3d 503, 508, 542 N.E.2d 464, 467.) Under plaintiffs’ complaint alleging wilful and wanton retention, plaintiffs were further required to show a deliberate intention to harm or an utter indifference to or conscious disregard for the safety of others in the retention of defendant Livigni as an employee. (Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 336, 443 N.E.2d 1162, 1165.) In the instant case plaintiffs failed to establish by the two incidents occurring, respectively, two and seven years earlier that defendant Livigni had a violent propensity that could manifest itself in Livigni’s dealings with those persons in the zone of foreseeable risk created by Livigni’s employment.

As the majority notes, Livigni had been employed at National for 17 years at the time of the incident and was a good employee; National had never received any reports from customers or employees that Livigni had any violence-related problems. The 1980 incident in which a subordinate employee was struck by an empty milk crate thrown by Livigni and the 1985 incident in which he injured his 13-year-old son while disciplining him involved persons over whom Livigni was trying to assert authority, not the general public. As such, National was not put on notice by these two incidents that Livigni’s continued employment created a danger of harm to the store customers or others with whom Livigni, as store manager, would have come in contact. In order to prove the negligent and the wilful and wanton retention counts of the complaint to the jury, plaintiffs were required to establish a causal relationship between the particular unfitness and the negligent act of the agent. (Huber, 186 Ill. App. 3d at 508, 542 N.E.2d at 467.) In my opinion, plaintiffs failed to show a connection between the nature of Livigni’s prior acts of violence and the conduct of Livigni towards the plaintiffs in the instant case.

From a practical standpoint, the majority’s opinion sends a message to all employers that in order to insulate themselves from liability for negligent or wilful and wanton retention any employee who has ever had an altercation on or off the workplace premises must be fired. Moreover, the majority opinion places an unreasonable investigative burden upon the employer by forcing the employer to discover, retain, and analyze the criminal records of its employees. Is not the majority’s opinion then at cross-purposes with the established public policy and laws of Illinois protecting the privacy of citizens and promoting the education and rehabilitation of criminal offenders? See Ill. Rev. Stat. 1991, ch. 68, par. 2 — 103 (making it a civil rights violation to ask a job applicant about an arrest record); see also Ill. Rev. Stat. 1991, ch. 38, par. 1003 — 12—1 et seq. (concerning correctional employment programs whose function is to teach marketable skills and work habits and responsibility to Illinois prisoners).

I would have granted defendant National Food Stores’ motion for judgment non obstante veredicto on the negligent retention count of plaintiffs’ complaint, because “no contrary verdict based on that evidence could ever stand” (Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 514), in that plaintiffs failed to sustain their burden of proof. Similarly, since the theory of negligence was not proved, plaintiffs also failed to prove that the alleged conduct or omission showed a deliberate intention to harm or an utter indifference or conscious disregard for the safety of others. Accordingly, I would have also granted defendant National’s motion for judgment non obstante veredicto on the wilful and wanton retention count of plaintiffs’ complaint.

      The numbering of the counts on the verdict forms differed from the numbering in the complaint. The numbers indicated in the chart are those used on the verdict forms.