author: PRESIDING JUSTICE EGAN

text:
    GARY T. MAZZONE, Plaintiff-Appellant, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellee.
    First District (6th Division)
    No. 1—91—0156
    Opinion filed February 7, 1992.
    Rehearing denied March 18, 1992.

      Raymond P. Concannon and Michael P. Concannon, both of Raymond P. Concannon, Ltd., of Chicago, for appellant.
    Ronald J. Cuchna, Richard A. Haydu, and George T. Brugess, all of Chicago and North Western Transportation Company, of Chicago, for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Gary T. Mazzone, appeals from an order granting summary judgment in favor of the defendant, Chicago & North Western Transportation Company. The complaint alleged that on August 20, 1984, the plaintiff was driving his motorcycle westbound on the Eisenhower Expressway near 2540 West in the City of Chicago. As he passed under a railroad bridge he was struck with an object thrown from the overpass by an unknown person. The defendant owned and controlled the west side of the bridge at that location; the east side was owned by Conrail. The plaintiff was struck at 1:30 a.m. when traveling under the west side of the bridge. The complaint further alleged that on the date the plaintiff was injured and “for a long time prior thereto, defendant knew or in the exercise of ordinary care should have known of persons throwing rocks, stones and other objects from its overpasses onto motor vehicles proceeding on the Eisenhower Expressway.” The principal allegation of negligence is that the defendant failed to “install screen or shield over its overpass to prevent foreign objects from being thrown onto traffic below.” The issue before us, as it is in virtually all summary judgment appeals, is whether a question of material fact exists. The trial judge concluded that there was no question of material fact; and we agree.

Generally, there is no duty to protect one against the criminal attacks of a third person. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 306 N.E.2d 39.) A duty does not arise unless there are sufficient facts to put the defendant on notice that an intervening criminal act is likely to occur. (Moore v. Yearwood (1960), 24 Ill. App. 2d 248, 164 N.E.2d 215.) In short, the existence of a legal duty requires that the occurrence be reasonably foreseeable. (Cross v. Chicago Housing Authority (1979), 74 Ill. App. 3d 921, 393 N.E.2d 580.) In determining whether a legal duty exists, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequence of placing that burden on the defendant must also be taken into account. Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535.

The defendant first filed a motion to dismiss alleging that the complaint failed to state a cause of action. The plaintiff’s response pointed out that the motion to dismiss admitted “the persons were throwing rocks and other objects off of its overpass onto motorists below and that for some time prior thereto, it further knew of this happening and yet it did nothing. Defendant’s argument that it had no duty to do anything to prevent this from happening therefore cannot be based upon lack of foreseeability.” (Emphasis added.) The plaintiff concluded by citing with approval Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617, as support of his claim that the defendant could foresee what subsequently happened and that the defendant “knew that vandals were using its bridge to throw rocks upon the motorists below.” (Emphasis added.) The judge denied the motion to dismiss.

After discovery, the defendant filed its motion for summary judgment and emphasized the absence of proof of actual knowledge of any incidents during which objects were thrown from the bridge in question upon traffic traveling on the expressway. The deposition of the defendant’s assistant vice-president established that there had never been “any incidents of people dropping objects off any bridge that the [defendant] owns in the State of Illinois.” It was also established that the defendant had had no notice of any incidents involving objects dropped from bridges in its entire 11-State system.

In the plaintiff’s response, he abandoned any claim of actual notice, although he did not amend his pleadings. He argued that the defendant had constructive notice “that vandals were using its bridge to throw rocks upon the motorists below.” (Emphasis added.) The plaintiff also argued that constructive notice of other events should have alerted the defendant to the fact that protective screening should have been placed on the bridge in question. In support of its argument the plaintiff introduced the following:

(1) A police report dated August 20, 1984, and accident reports dated August 20, 1984. The reports reflected the plaintiff’s accident and those of five other vehicles which were struck by objects thrown from the same overpass at or about the same time.

(2) A book entitled “A Guide for Protective Screening of Overpass Structures” (Guide) prepared by the Committee on Planning and Design Policies of the American Association of State Highway Officials, dated December 1, 1968. The Guide was prepared “to assist *** in determining the need for a protective screen on overpass structures with suggested screening methods.” It pointed out that in the period of 1964 to 1965 there were over 1,200 reported incidents of objects being dropped or thrown from overpasses onto vehicles below in the Chicago area. A more recent study covering a period of July 1968 to March 1969 disclosed that 357 incidents were reported. The guide also provided that screens should be considered “[o]n an overpass near a school, a playground or elsewhere where it would be expected that the overpass would be frequently used by children unaccompanied by adults.”

(3) A City of Chicago police report dated May 29, 1983, of an accident on the Eisenhower Expressway with personal injuries from an object dropped from an overpass at 2401 West.

(4) A City of Chicago police report dated January 27, 1984, of an accident on the Eisenhower Expressway from an object dropped from an overpass at 2400 West.

(5) The plaintiff’s answers to interrogatories in which he named a transportation specialist, Matthew Sielski, as an expert and included his opinion that the defendant’s overpass should be screened to prevent the dropping of objects onto motorists below. His opinion was based upon “police report, deposition transcript, pleadings, custom in the industry” and the Guide.

The judge granted the motion for summary judgment on October 3, 1990. On October 24, 1990, the plaintiff filed a motion to reconsider. He also filed a supplemental response to the motion for summary judgment which included the affidavit of the supervisor of the City of Chicago Office of Department Planning and Cartography and a plat survey of the defendant’s bridge and surrounding area. The plat showed a park at the southwest edge of the bridge, a housing project on the northeast comer and two schools “close by.” The judge denied the motion to reconsider on the ground that the plaintiff failed, as a matter of law, to establish that the defendant had constructive notice of any dangerous condition of its bridge overpass.

In his brief the plaintiff asserts that his complaint alleged “that defendant knew or *** should have known that for an extended period of time people dropped objects off overpasses onto motorists below.” That assertion is not a precisely accurate description of the allegation of the complaint. The complaint alleges that the defendant knew or should have known that people dropped objects off the defendant’s bridge, not just “off overpasses” in general. There is no proof, save for reports of occurrences on the morning the plaintiff was injured, of any accidents involving the bridge in question. We believe that under the circumstances we would be justified in affirming summary judgment on the ground advanced by the defendant that the plaintiff failed to establish, as a matter of law, a material allegation of the complaint. We have determined, however, for the sake of finality, to address the plaintiff’s argument that a fact finder could conclude that the defendant had such constmctive notice that the injury to the plaintiff should have been reasonably foreseeable.

The elements of constmctive notice have been explained thus:

“One has constmctive notice of a fact when from all the facts and circumstances known to him at the relevant time, he has reason to know that it exists. And a person has reason to know a fact when he has such information as would prompt a person exercising reasonable care to acquire knowledge of the fact in question or to infer its existence.” (Emphasis added.) 58 Am. Jur. 2d Notice §9 (1989).
“The facts brought to the knowledge of a person must be sufficient to produce a reasonable conviction that inquiry, if followed up, would lead to a knowledge of the fact of which notice is to be imputed.” (Emphasis added.) 66 C.J.S. Notice §11 (1950).

In In re Application of County Collector (1977), 48 Ill. App. 3d 572, 362 N.E.2d 1335, the court held that one having knowledge of facts which would put a reasonable man on inquiry is chargeable with knowledge of other facts which would have been discovered on diligent inquiry.

Thus, in this case there can be no constructive notice of one fact unless there is previous knowledge on the part of the defendant of other facts. It is clear to us that the plaintiff has failed to establish knowledge of the other facts that would give rise to a finding of constructive notice on the part of the defendant that its bridge was maintained in a dangerous condition. Of all the evidence submitted by the plaintiff, the defendant could be charged with knowledge of only the occurrences that happened on the morning in question, including the occurrence involving the plaintiff. There is a complete absence of proof of any knowledge on the part of the defendant of the incidents on other overpasses or of the Guide, published in 1968, upon which the plaintiff places such reliance. (We will discuss the Guide in more detail later.) The plaintiff expressly argues that the defendant is charged with constructive notice of the Guide and of the incidents involving other overpasses on other dates and that, therefore, constructive notice of those facts establishes constructive notice of the dangerous condition of the defendant’s bridge. The plaintiff does not explain how the defendant was placed on constructive notice of the Guide or the other incidents at other locations. This is a bootstrap argument, and we reject it.

The defendant may properly be charged with notice of the other incidents of vehicles struck by objects thrown from the defendant’s overpass at or about the same time the plaintiff was injured. The issue, however, becomes whether those incidents occurred at a time sufficiently before the plaintiff was injured to permit the defendant to take steps to correct any dangerous condition, or more specifically, whether the defendant had sufficient time to install protective screening after the other occurrences and before the plaintiff’s injury.

Generally, whether a dangerous condition exists for a sufficient length of time before an injury for the owner of property to be deemed to have constructive notice is a question of fact. (Livings v. City of Chicago (1975), 26 Ill. App. 3d 850, 326 N.E.2d 170.) However, if the evidence viewed in its aspect most favorable to the plaintiff so overwhelmingly favors the defendant that no contrary finding based on that evidence could ever stand, the issue becomes a question of law. (Cook v. Gould (1982), 109 Ill. App. 3d 311, 440 N.E.2d 448.) Contrary to the plaintiff’s insistence, no reasonable person could conclude that the other incidents that occurred on the morning in question happened before the plaintiff’s injury in sufficient time to permit the defendant to take remedial steps. It would be ridiculous to hold otherwise. In fact, the record is not clear whether the other incidents occurred before or after the injury to the plaintiff. The burden of proof to show constructive notice of the existence of the dangerous condition of the defendant’s bridge was on the plaintiff. (Miller v. Chicago Transit Authority (1966), 78 Ill. App. 2d 375, 223 N.E.2d 323.) We conclude, as a matter of law, that the plaintiff has failed to maintain that burden of proof. For that additional reason, the judge’s order granting summary judgment should be affirmed.

The principal case relied upon by the plaintiff is Beffa v. Terminal R.R. Association (1991), 208 Ill. App. 3d 7, 566 N.E.2d 846. The facts of that case, which were brought out at a trial, are in sharp contrast to the facts of this case. The defendant’s railroad bridge, which was formed by the railroad tracks and a sidewalk, ran at ground level. The street had been lowered and made into an underpass. The bridge was convenient for people living nearby to use as a shortcut. The use was so heavy that the railroad’s chief engineer said that there was little the railroad could do to prevent it. Thirty years before the accident the railroad had been warned that the bridge was decaying and to make the bridge solid. Twenty-one years before the accident a woman informed the railroad that concrete had come off the bridge and damaged her car as she was passing underneath. Six days before the accident the railroad’s track supervisor inspected the bridge and noted that the ties had rotted and the tie-plates had come loose. The railroad knew the bridge was in a high-crime area. The track supervisor said that when he was in the area he was “extra careful.” He also said there were vandals in the area all the time and that he had known that ever since he began working for the railroad. He also testified that he had heard of vandals getting on the bridge and throwing things on people below.

A police officer testified that he “averaged one to two serious injuries” each summertime resulting from things falling or being dropped from the bridge. A witness testified that she saw two or three children on the railroad overpass at the same time that the plaintiff, a police officer, was in a squad car in the area of the overpass. The children moved to the edge of the overpass, and as the squad car came under the overpass, something fell or was dropped from where the children were standing, and they ran. A 20-pound, railroad tie-plate crashed through the squad car window and shattered the plaintiff’s lower face.

The appellate court affirmed the judgment on two grounds: the proof established that, if the tie-plate fell or was unintentionally knocked off the bridge, the negligence of the defendant in maintaining the bridge created the condition on the defendant’s premises that caused the injury; the court also held that the verdict could be sustained on a finding that the object that injured the plaintiff was thrown from the bridge. In doing so, the court pointed out that the defendant knew the bridge was in a high-crime area, knew that people used the bridge as a shortcut and knew that objects had fallen or been dropped from this particular overpass. The court also pointed out that the defendant should have realized that pedestrians dropped objects from the overpass and that the bridge, as it disintegrated, might furnish the ammunition itself to those who were inclined to drop objects from the overpass. Factually, the Beffa case is wide of the mark in this case.

Before leaving Beffa, we express recognition, and the plaintiff emphasizes, that the same Guide used by the plaintiff here was introduced into evidence in Beffa and was discussed by the appellate court. The plaintiff here describes the Guide as an “official document of record” and as an “authoritative text.” He asked the trial court, as he asks us apparently, to take judicial notice of the Guide. (He also asked the trial court to take judicial notice of the police reports.) We are not prepared to take judicial notice of or to accept the Guide as an “official document of record” nor do we believe that the Beffa case has elevated the Guide to that status. The opinion simply refers to the fact that the Guide was put into evidence and the railroad’s chief engineer was cross-examined from it. The court referred to the Guide as support for its statement that “[t]he problem of objects being thrown off bridges is widespread and recurrent.” (208 Ill. App. 3d at 10.) Significantly, the court added, “According to the guide, screens should be considered on all overpasses in large urban areas used exclusively by pedestrians and not easily kept under surveillance by police.” (Emphasis added.) 208 Ill. App. 3d at 11.

Turning to the Guide itself, we believe it may be fairly argued that the Guide supports the defendant’s position as much as the plaintiff’s. The Guide, which describes itself as an “Informational Guide,” contains an introduction that includes the following:

“With the advent of extensive freeway development in the United States the problem of objects being thrown or dropped from overpass walks onto vehicles traveling below has become a serious one in some areas.” (Emphasis added.)

In its description of the “Type of Barriers,” the Guide refers to “Pedestrian Overpasses” and “Vehicular and Pedestrian Overpasses” and includes pictures of only pedestrian or pedestrian-vehicular overpasses. The defendant’s bridge is exclusively a railroad bridge. It consists only of five sets of railroad tracks. There is no pedestrian walkway. The only vehicles that travel over the bridge are railroad cars or engines.

The plaintiff argues that the absence of screening on this overpass and the presence of screening on other overpasses acts as a “magnet” to vandals to use the unscreened overpass to throw things onto the expressway. The Guide seems to refute that argument:

“There is no practical device or method yet devised that can be universally applied to prevent a determined individual from dropping an object from an overpass.
* * *
It is also a known fact that any type of physical preventive measure [such as screening] acts as a motivating challenge to some individuals.”

The plaintiff makes much of the fact that the defendant did not object to the introduction of the Guide. The failure to object, he argues, amounts to an admission by the defendant that the Guide is “authoritative.” We agree with the defendant’s position that its failure to object to the admissibility of the Guide does not bar the defendant from arguing that the Guide is entitled to no weight in this case or, at least, does not support the plaintiff’s position.

For these reasons, we conclude that no material fact remains unresolved; that the plaintiff would be unable, as a matter of law, to show that the plaintiff’s injuries were reasonably foreseeable by the defendant; and, consequently, that summary judgment was properly entered.

The judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    ARPAC CORPORATION, Plaintiff-Appellee, v. CHARLES R. MURRAY et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—91—2584
    Opinion filed February 11, 1992.
    Rehearing denied March 25, 1992.

      Hough, Cook, Weatherhead & Kinsella, of Chicago (Charles R. Murray, John A. Cook, and Mercedes Matías, of counsel), for appellants.
    Levenfeld, Eisenberg, Janger, Glassber, Samotny & Halper, of Chicago (James T. Rohlfing and Mark J. Bereyso, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Arpac Corporation (Arpac) sought injunctive and other relief from its former employee, defendant Charles Murray, based upon Murray’s employment agreement containing a restrictive covenant. After an evidentiary hearing, the circuit court entered a preliminary injunction, enjoining Murray and Bundling Machines International, Inc. (BMI), his current employer, from soliciting any of Arpac’s customers of the previous five years for a period of 24 months. The court further enjoined Murray from influencing Arpac’s employees to leave the company and from working in Arpac’s area of business for two years. Murray appeals pursuant to Supreme Court Rule 307(aXl) (134 Ill. 2d R. 307(a)(1)), raising in issue (1) whether the circuit court’s grant of injunctive relief was against the manifest weight of the evidence because: (a) Arpac had no protectable proprietary interest in its customers and would suffer no irreparable harm; and (b) the order was overly broad due to the court’s determination that “end users” were Arpac’s customers; (2) whether the restrictions contained in Murray’s employment agreement were overly broad, thus rendering the restrictive covenant void; and (3) whether the circuit court erred in holding that Murray’s employment agreement was authorized by and binding upon Arpac.

Arpac, operating in the Chicago area since 1971, manufactures shrink-wrap packaging machinery, which is used to package products by surrounding them with a plastic film, heated until it contracts to tightly enclose the products. Shrink-wrap packaging machines are typically used at the end of a manufacturer’s assembly line for packaging multiple products, including foods, beverages, and pharmaceuticals. In addition to its nationwide sales, Arpac sells its shrink-wrap machines in foreign countries.

Arpac’s sales of its machinery are either to distributors, who then sell the machinery to others at a higher price, or “end users,” large companies who purchase either directly from Arpac or from the distributors for their own account. By 1990, Arpac’s sales to distributors comprised 80% to 85% of its total sales, with the balance of sales to end users. Of those distributors, the top 30 to 40 have had an association with Arpac from 3 years to 10 or more years, the average association being five years. Because of the complexity of choosing the proper machinery, it may take from six months to five years from the time a quote is first received until the machinery is installed at the customer’s work place. During that time, Arpac and its distributors determine, in cooperation with the customer, the type of features suitable to that customer’s uses. The shrink-wrap packaging business in the United States, in which Arpac competes, consists of Arpac and 8 to 10 other manufacturers of machinery, and comprises less than 1% of the total packaging industry.

In 1987, Murray, a South African national, met Michael Levy, also from South Africa, and advised him of his desire to leave South Africa and obtain employment in America, Australia, or Europe. Levy, who at the time had been in the shrink-wrap business since 1965, was considering purchasing Arpac. The two men discussed the possibility of Murray’s working for Arpac as its marketing vice-president.

At the time of their meeting, Murray held the equivalent of a college diploma in chemical technology from the Witwatersrand Technical College in Johannesburg, South Africa. Although he had extensive experience as a salesman in the packaging industry in South Africa and Europe, Murray was not in the business of manufacturing or selling shrink-wrap machinery nor was he familiar with shrink-wrap packaging machines or their operation.

While still in South Africa, during his acquisition of Arpac, Levy presented Murray with an employment agreement, offering him a position with Arpac. The agreement, which included a restrictive covenant, provided that Murray would work for Arpac for a three-year period; the agreement allowed Murray to terminate his employment without cause, but prohibited Arpac from terminating Murray’s employment, except for cause. Additionally, the agreement granted Murray an option to purchase Arpac’s common stock, an option Murray never exercised. During negotiations, Murray’s attorney reviewed the agreement and suggested to him that it was unenforceable according to South African law. Although Murray believed that the restrictive covenant was unenforceable, he never suggested that to Levy. Further, Murray, while negotiating the employment agreement, never attempted to modify or delete the restrictive covenant.

The covenant provided, in pertinent part, that:

“Murray acknowledges that Arpac’s relationships with its customers, their affiliates and related entities, and their employees and former persons, hereinafter referred to as prohibited persons, are special and unique, and that Arpac’s relationship with the prohibited persons may not be able to be replaced by Arpac. Murray further acknowledges that the protection of Arpac’s customers and business is essential. Therefore, Murray expressly covenants and agrees that during the term of his employment by Arpac and for a period of twenty-four (24) months immediately following the expiration or termination of such employment for any reason *** he will not at any time for himself or on behalf of any other person, firm, partnership or corporation engage in the business (or any part thereof) of manufacturing, producing, marketing or selling shrink-packaging machinery in the United States, (other than the states of Wyoming, Montana, Hawaii and Alaska). Further, Murray expressly covenants and agrees that during the term of his employment by Arpac and for a period of twenty-four (24) months immediately following the expiration or termination of such employment for any reason *** he will not at any time induce, or attempt to induce, any customer of Arpac to whom goods have been sold in the preceding five (5) years to refrain from purchasing the same or similar goods from Arpac or to cancel or fail to renew any contract with Arpac; or solicit the business of such customers directly or indirectly for his own account or for the account of any other person, firm, partnership or corporation; or induce, or attempt to induce, any employees, agents or sales personnel of Arpac to terminate any relationship with Arpac.”

Thus, at the end of the three-year term of employment or whenever Murray left Arpac, he would become bound for a period of two years thereafter not to engage in any way in the shrink-wrap business in any States other than Montana, Wyoming, Alaska, and Hawaii; to refrain from soliciting any customer who had purchased shrink-wrap equipment from Arpac in the five-year period preceding the date of termination of employment; and to refrain from inducing any employee of Arpac to leave employment with Arpac.

On November 23, 1987, Murray signed the employment agreement, which provided that Murray’s employment would begin on such date as Murray submitted to Arpac competent evidence that he was authorized by the United States Immigration and Naturalization Service to be employed in the United States.

After Murray obtained his visa, he moved to the United States and began working for Arpac. For approximately the first three months of his employment, he was the chief executive officer of Arpac in Levy’s absence. Thereafter, Murray became vice-president of marketing and sales. His responsibility was to take all actions necessary to market Arpac’s products, including “fostering” the network of Arpac distributors, conducting sales conferences, sending out newsletters, setting up training sessions for customers and distributors, exhibiting Arpac’s machinery at trade shows, preparing manuals for Arpac’s sales staff, establishing an award system for Arpac’s distributors, visiting customers, and maintaining phone and personal contact with all Arpac distributors. Moreover, both he and Levy worked together to increase customer loyalty to Arpac. Although, prior to his employment at Arpac, Murray was unfamiliar with the shrink-wrap industry and did not know a single Arpac customer, once hired by Arpac, he made it a practice to visit each Arpac distributor personally at least once every three months.

Shortly before his three-year term of employment was due to expire, Murray began discussions with Hans Deubel, the president of H&K Holding Company (H&K) in Waukesha, Wisconsin, about the possibility of working for that company selling various types of packaging equipment other than shrink-wrap machinery. On December 14, 1990, Murray resigned from Arpac and on January 2, 1991, began employment with BMI, a corporation formed on that date as a subsidiary of H&K. BMI was incorporated for the specific purpose of selling shrink-wrap packaging machinery and Murray was designated as its president and sales manager.

Not long after Murray left Arpac, three other Arpac employees left: Elvezio Martelli, Arpac’s senior salesman for 10 years, left Arpac on February 10, 1991; Branko Vukotic, Arpac’s production manager, left on January 18, 1991; and Bogomil Ignatov, Arpac’s electrical foreman for 13 years, left on March 1,1991.

On March 25, 1991, Arpac brought suit for injunctive and other relief against Murray, BMI, Martelli, Vukotic, and Ignatov, claiming that Murray, in violation of the restrictive covenant in his employment agreement, engaged in competition with Arpac, solicited its customers, and enticed away its employees. Arpac averred that BMI had improperly acquired, through Murray, confidential information belonging to Arpac. Arpac further alleged that Martelli, though not subject to an employment agreement, had nevertheless engaged in unfair competition with Arpac. Finally, Arpac claimed that Vukotic and Ignatov terminated their employment allegedly as a result of a conspiracy with Murray and Martelli.

Thereafter, the circuit court entered findings in favor of Vukotic and Ignatov. Following a hearing, the court, in slightly modifying the restrictive covenant, enjoined Murray and BMI from soliciting any of Arpac’s customers of the previous five years for a period of 24 months; enjoined Murray from competing with Arpac in the shrink-wrap business in all but four States; and enjoined Murray from inducing Arpac’s employees to leave their positions with Arpac. The circuit court found that Arpac’s relationship with its customers was unique and that, but for his employment with Arpac, Murray would have had no opportunity to develop relationships with Arpac’s customers. Further, the court found that, although the restrictive covenant was essentially nationwide, the nonsolicitation covenant was enforceable because Arpac had a proprietary interest in its customers. Likewise, the court found that the covenant’s restriction on Murray from competing in the shrink-wrap industry was reasonable and thus enforceable. The court declined, however, to enjoin Murray from disclosing information obtained while employed by Arpac, because the court found that that information lacked the requisite confidentiality.

Murray appeals from the court’s order enjoining him from competing with Arpac in the shrink-wrap business, from soliciting any of Arpac’s customers of the previous five years for a period of 24 months, and from inducing Arpac’s employees to quit.

I

Murray initially contends that the injunction entered against him should be set aside because the granting of injunctive relief was against the manifest weight of the evidence. Specifically, Murray maintains that the circuit court erred in finding that Arpac had a protectable proprietary interest in its customers, that Arpac would suffer irreparable harm, and that Arpac’s end users were customers.

A preliminary injunction is a provisional remedy granted to preserve the status quo, pending a hearing on the case on the merits. (The Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 480 N.E.2d 1273.) A party seeking injunctive relief must thus establish that it has a clear right which ought to be protected; that it is likely to succeed on the merits; that there is no adequate remedy at law; and that irreparable harm will occur if the injunction is not granted. (Millard Maintenance Service Co. v. Bernero (1990), 207 Ill. App. 3d 736, 743, 566 N.E.2d 379; Preferred Meal Systems, Inc. v. Guse (1990), 199 Ill. App. 3d 710, 718, 557 N.E.2d 506; Agrimerica, Inc. v. Mathes (1988), 170 Ill. App. 3d 1025, 1031, 524 N.E.2d 947; A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 791, 514 N.E.2d 45.) In order to show a likelihood of success on the merits, however, a party need raise only a fair question as to the existence of the right claimed. McRand, Inc. v. Van Beelen (1985), 138 Ill. App. 3d 1045, 1050, 486 N.E.2d 1306; Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686, 329 N.E.2d 414.

The decision to grant or deny preliminary injunctive relief rests within the sound discretion of the circuit court and will not be disturbed absent a showing of abuse. (A.B. Dick Co., 159 Ill. App. 3d at 791; McRand, Inc., 138 Ill. App. 3d at 1050.) The role of a reviewing court, therefore, is limited to examining the issues on their merits only insofar as is necessary to determine whether the circuit court’s findings are contrary to the manifest weight of the evidence. (Millard Maintenance Service Co., 207 Ill. App. 3d at 743-44; McRand, Inc., 138 Ill. App. 3d at 1050-51.) Whether injunctive relief should have been granted under the facts of the instant case depends upon the existence of an interest subject to protection and the enforceability of the restrictive covenant. Millard Maintenance Service Co., 207 Ill. App. 3d at 744; Agrimerica, Inc., 170 Ill. App. 3d at 1031; A.B. Dick Co., 159 Ill. App. 3d at 792.

A

Murray contends that Arpac is not entitled to injunctive relief because it failed to establish the existence of a protectable business interest in its customers. Although it is true that ordinarily an employer has no proprietary interest in its clients (Corroon & Black of Illinois, Inc. v. Magner (1986), 145 Ill. App. 3d 151, 163, 494 N.E.2d 785), there are two general situations in which such an interest may be found for purposes of enforcing a covenant not to compete: where, by the nature of the business, an employer has a near-permanent relationship with its customers and, but for his association with his employer, an employee would have had no contact with them; or where the former employee learns trade secrets or acquires other confidential information during his employment and subsequently attempts to use it for his own benefit. (Label Printers v. Pflug (1991), 206 Ill. App. 3d 483, 491, 564 N.E.2d 1382; Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 15-16, 490 N.E.2d 1302.) The first situation applies to the case at bar.

Several objective factors are considered in determining whether a near-permanent relationship exists between an employer and its customers: the time, cost, and difficulty involved in developing and maintaining the clients; the parties’ intention to remain affiliated indefinitely; and the continuity as well as the duration of the relationship. (Reinhardt Printing Co., 142 Ill. App. 3d at 15; McRand, Inc., 138 Ill. App. 3d at 1051-53.) Thus, the number of years it takes the employer to develop the clientele indicates the parties’ intention to remain affiliated for an indefinite period. (McRand, Inc., 138 Ill. App. 3d at 1051.) The amount of money invested in developing the client base is also an objective indication of the employer’s intention to retain the customer relationship in a near-permanent status. (McRand, Inc., 138 Ill. App. 3d at 1052.) Correspondingly, an indication of the employer’s intention to retain the customer relationship permanently is the difficulty involved in the process of developing the clientele. (McRand, Inc., 138 Ill. App. 3d at 1052.) Conversely, no such protectable interest is recognized where the employer-customer relationship is short-term and no specialized knowledge has been acquired by or imparted to the employee. Reinhardt Printing Co., 142 Ill. App. 3d at 15.

In the instant case, the testimony at the hearing established that Arpac strongly relies upon its solid base of customers. Because of the importance of maintaining its long-term customers, Arpac spends an “absolute fortune” on developing its clientele and maintaining the loyalty of its customers. Not only does Arpac spend time and money on training programs, trade shows, and the education of its distributors, but it ensures that its employees maintain the necessary personal contact with its customers. Charles Sgro, vice-president of one of Arpac’s largest distributors, testified that he considers Arpac a “partner,” and his company and Arpac operate with each other’s long-term interests in mind. Likewise, several of Arpac’s distributors have had an association with Arpac in excess of 10 years, the average association being five years.

Although Murray attempts to dimmish Arpac’s relationship with its customers by arguing that they occasionally do business with shrink-wrap machine manufacturers other than Arpac, this fact alone does not lessen the permanency of their relationship with Arpac. (See, e.g., Charles P. Young Co. v. Leuser (1985), 137 Ill. App. 3d 1044, 485 N.E.2d 541.) Further, Murray’s contention that it was through his own efforts alone that Arpac’s customer base increased has no basis in the record. What the record does indicate, though, is that Arpac manufactures sophisticated, expensive machinery, which requires a great deal of time and expense to market; thus, Arpac depends upon the loyalty of its customers, both distributors and end users, to effectuate its sales. Accordingly, we find that the circuit court’s determination that Arpac’s relationship with its customers is near-permanent was not contrary to the manifest weight of the evidence.

The second part of the test which determines whether a protectable interest exists in customer relationships is whether, but for the job with the employer, the employee would not have come into contact with the customers. (Agrimerica, Inc., 170 Ill. App. 3d at 1033; Corroon & Black of Illinois, Inc., 145 Ill. App. 3d at 163.) Here, Murray had had no contact with any of Arpac’s customers prior to his employment with Arpac. Further, it is highly unlikely that Murray, a South African national who had never worked in the shrink-wrap industry prior to working for Arpac, would have developed relationships with Arpac’s customers were it not for his association with Arpac.

Once a protectable interest is established, irreparable injury is presumed to ensue if the interest is not protected. (McRand, Inc., 138 Ill. App. 3d at 1055; Donald McElroy, Inc. v. Delaney (1979), 72 Ill. App. 3d 285, 389 N.E.2d 1300.) In the present case, immediately after leaving Arpac, Murray, with the cooperation of H&K, set up a corporation, the sole purpose of which was to compete with Arpac. Murray’s assertion that Arpac did not show the possibility of irreparable injury must thus fail.

Accordingly, we conclude that the circuit court did not err in finding that Arpac had a protectable proprietary interest in its customers.

B

Murray also contends that the circuit court’s order was against the manifest weight of the evidence because the court included end users who did not purchase machinery directly from Arpac, but instead purchased the equipment from distributors, in the definition of customers for purposes of the injunction. Specifically, he maintains that, because Arpac does not have as much contact with end users as it has with distributors, such inclusion renders the injunction overly broad.

The circuit court in the instant case, notwithstanding Murray’s contention, based its ruling that end users who purchased through distributors are customers of Arpac on the “evidence in the record that [Arpac], regardless of whether or not [its machinery] was sold through a distributor, brings in the end user, has a dry run of the machine, [and] answers the calls directly in terms of servicing.” In other words, Arpac works closely with the end users and depends on their loyalty and good-will.

Because the record does indeed reflect that Arpac has continued contact with end users who purchase shrink-wrap machines, whether from distributors or directly from Arpac, it does not appear that the circuit court erred in holding that both end users who purchase from distributors and those who purchase directly from Arpac are customers for purposes of the injunction.

II

Having identified an interest amenable to protection, we next consider Murray’s contention that the restrictive covenant in his employment agreement is overly broad and thus void. Murray maintains that rather than placing reasonable restrictions upon him, Arpac has sought to eliminate a potential competitor.

Enforceability of a restrictive covenant in an employment contract is dependent on whether, given the particular facts of the case, the restraints imposed thereby are reasonably necessary for the protection of the employer’s business from unfair or improper competition. (Reinhardt Printing Co., 142 Ill. App. 3d at 15; The Instrumentalist Co., 134 Ill. App. 3d 884, 480 N.E.2d 1273.) A restrictive covenant’s reasonableness is measured by its hardship to the employee, its effect upon the general public, and the reasonableness of the time, territory, and activity restrictions. (Millard Maintenance Service Co., 207 Ill. App. 3d at 749-50; McRand, Inc., 138 Ill. App. 3d at 1056-57.) “A restrictive covenant in an employment agreement is generally held to be enforceable if it is reasonable in geographical and temporal scope and it is necessary to protect a legitimate business interest of the employer.” (Shapiro v. Regent Printing Co. (1989), 192 Ill. App. 3d 1005, 1010, 549 N.E.2d 793.) The question is one of law and because covenants operate as partial restraints of trade, they are scrutinized carefully by the courts. (Reinhardt Printing Co., 142 Ill. App. 3d at 15.) A restrictive covenant may be held enforceable only if the time and geographical limitations are reasonable and the restrictions are reasonably necessary to protect a legitimate business interest of the employer, a determination which necessarily turns on the facts of the case. Reinhardt Printing Co., 142 Ill. App. 3d at 15; The Instrumentalist Co., 134 Ill. App. 3d 884, 480 N.E.2d 1273.

Here, that portion of the restrictive covenant preventing Murray from soliciting Arpac’s customers of the previous five years is clearly an “activity” covenant, designed not to restrict competition, but rather to protect Arpac’s relationship with its customers. Such covenants do not require geographic limitations, but must be reasonably related to the employer’s interest in protecting customer relations that its employees developed while working for the employer. (Agrimerica, Inc., 170 Ill. App. 3d at 1034; Corroon & Black of Illinois, Inc., 145 Ill. App. 3d at 165.) In the instant case, the covenant restricts nonsolicitation to only those customers which have had business dealings with Arpac in the previous five years. Because of the nature of the industry and the time involved in the manufacture and marketing of the machinery, the five-year span is not unreasonable; on the average, Arpac’s larger customers have had a five-year relationship with the manufacturer. Further, as noted earlier, such a nonsolicitation covenant is reasonable in order to protect Arpac’s interest in its customers.

Murray further contends that the covenant’s restriction prohibiting him from “inducing” Arpac’s employees to quit provides no discernible benefit or protection to Arpac and, thus, is void and unenforceable. In response, Arpac maintains that, based upon the evidence adduced at the hearing, the covenant was necessary to protect its legitimate business interests and maintain a stable work force. Arpac asserts that those interests clearly needed protection in light of Murray’s attempts to induce several Arpac employees to leave the company.

The circuit court in the instant case enforced that part of the covenant prohibiting Murray from inducing Arpac employees to quit because it found that two Arpac employees quitting at approximately the same time that Murray left to be more than a coincidence. As the court stated, Murray’s telephone records prior to his leaving Arpac reflected no calls to either Vukotic or to Ignatov; however, during the two months subsequent to his resignation, a “flurry of activity” took place between Murray’s phone and those of Vukotic and Ignatov.

Because it appears that the covenant restricting the solicitation of Arpac’s employees was reasonably calculated to protect Arpac’s interest in maintaining a stable work force, we find that this portion of the restrictive covenant was enforceable and not void. See also Torrence v. Hewitt Associates (1986), 143 Ill. App. 3d 520, 493 N.E.2d 74; Frank B. Hall & Co. v. Payseur (1979), 78 Ill. App. 3d 230, 396 N.E.2d 1246.

Murray also asserts, however, that the time and geographical restraints of the covenant are unreasonable because, he maintains, they prohibit him, for a period of two years, from working for any company in the world which competes with Arpac in the United States. He contends that the noncompetition restriction, preventing him from working in the shrink-wrap business in any capacity in all but four States, was not designed to protect any legitimate business interest of Arpac, but rather to prevent competition per se and is thus contrary to public policy and unenforceable.

With respect to the geographic scope of noncompetition covenants, courts generally look to whether the restricted area is coextensive with the area in which the employer is doing business (Donald McElroy, Inc., 72 Ill. App. 3d 285, 389 N.E.2d 1300), and have upheld as reasonable even those covenants containing no geographical limitation where the employer was doing business nationwide and the purpose of the restriction was to protect the employer from losing customers to a former employee who, by virtue of his prior relationship, gained special knowledge and familiarity with the customers’ requirements (The Instrumentalist Co., 134 Ill. App. 3d 884, 480 N.E.2d 1273; Donald McElroy, Inc., 72 Ill. App. 3d 285, 389 N.E.2d 1300; Wolf & Co. v. Waldron (1977), 51 Ill. App. 3d 239, 366 N.E.2d 603).

In the case at bar, the circuit court initially found the covenant’s restriction upon Murray, preventing him from engaging in the manufacture, production or marketing of shrink-wrap packaging machinery in the United States except for four States, unreasonable and unenforceable. The circuit court found that the noncompetition restriction was essentially nationwide in scope despite its allowance for competition in four noncontiguous States; thus, the court held that, without a geographical limit, the noncompetition restriction was overly broad and not necessary to preserve the goodwill of Arpac. It was only after Arpac offered The Instrumentalist for support that the court changed its ruling and held that the noncompetition covenant was enforceable. Murray urges that it was error for the court to rely upon The Instrumentalist.

In The Instrumentalist, the plaintiff was engaged in the publishing of a trade magazine directed at school band and orchestra directors and music teachers. After being employed by the plaintiff as an editor and advertising manager for approximately 14 years, the defendant voluntarily terminated his employment and, thereafter, became a principal shareholder and editor of another magazine in competition with the plaintiff. The plaintiff attempted to enjoin the defendant from working for the competitor on the basis of its employment agreement with the defendant, which provided that the defendant would, for two years following the termination of his employment, refrain from working for “any other business *** engaged in the business of publishing, selling, or distributing a magazine or other periodical directed to or primarily used by band or orchestra directors, piano or organ teachers or junior or senior high school instrumental musicians in the United States of America.” The Instrumentalist Co., 134 Ill. App. 3d at 887.

The defendant in The Instrumentalist argued, as Murray has in the instant case, that the foregoing restriction in the covenant prevented him from working for any company which competed with the plaintiff in the entire United States and, thus, was void and unenforceable. The court, however, disregarded the defendant’s assertion and held that the noncompetition restriction was reasonable and enforceable, despite its lack of geographical boundaries, in order to protect the plaintiff from the loss of its customers to the defendant by reason of his long-term relationship with it and the knowledge he gained as editor and advertising manager. (The Instrumentalist Co., 134 Ill. App. 3d at 895-96.) In so holding, the court placed emphasis on the fact that the restricted area of business, namely the school band music area, comprised only a small portion of the entire music publishing area. (The Instrumentalist Co., 134 Ill. App. 3d at 895-96.) Thus, the court reasoned, the defendant was free to accept employment with any music magazine, whether as an editor or advertising manager, or both, or even to publish his own magazine so long as any such publication was outside the specific prohibitions of the covenant. The Instrumentalist Co., 134 Ill. App. 3d at 896.

Similarly, in the instant case, the restriction, according to Murray, prevents him from competing virtually in any market worldwide. He argues that, even if Arpac does have a protectable interest in its customers or confidential information, the restraint on competition is unreasonable both in terms of its effect on the general public and its effect on Murray’s ability to gain employment.

In response, Arpac contends that the restriction prevents Murray from working only in a small segment of the packaging industry in which he has experience; Arpac points out that the shrink-wrap industry comprises only 1% of the packaging industry. Arpac asserts that the circuit court was correct when it found that “Murray can go out and he can compete with all the world in terms of the packaging business, which incidentally he has a substantial background in. All that this order will do is prohibit him from competing for two years nationwide in one percent of the packaging business which constitutes the shrink-wrap machine business.”

It is apparent that the employment agreement here is very broad. In addition to prohibiting Murray from soliciting Arpac’s customers, it prevents him from engaging in the shrink-wrap business in any capacity, whether manufacturing, producing, marketing, or selling, anywhere in the United States except for four noncontiguous States. Because the validity of a contract in restraint of competition is determined by its reasonableness in terms of its effect on the parties and the public (House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 39, 225 N.E.2d 21), we find that the portion of the agreement prohibiting Murray from working in any capacity in the shrink-wrap business is patently unfair. Certainly an employment contract is reasonable if its enforcement will not be injurious to the public, not cause undue hardship to the promisor, and is not greater than is necessary to protect the employer (Dryvit System, Inc. v. Rushing (1985), 132 Ill. App. 3d 9, 477 N.E.2d 35); however, we find that, here, the virtually unlimited geographic restraints on competitive activities and the further restriction from association with any company whose activities involve competition in the shrink-wrap industry are clearly beyond the need of Arpac to protect its interest and are unduly harsh on Murray. Moreover, Arpac’s concern for the protection of its customers, one reason The Instrumentalist court enforced that plaintiff’s agreement, is adequately addressed in the case at bar by the nonsolicitation clause of Murray’s employment agreement.

Despite Arpac’s assertion that The Instrumentalist is controlling, we find that the noncompetition portion of the agreement in the instant case, unlike that in The Instrumentalist, does not serve to protect Arpac’s interest in its customers, but rather, exists only to stifle any competition Murray might offer to Arpac. As such, the noncom-petition portion of the agreement is unjust and void as against public policy. See, e.g., Hamer Holding Group, Inc. v. Elmore (1990), 202 Ill. App. 3d 994, 560 N.E.2d 907.

Murray contends that it is error for the circuit court or this court to modify the restrictive covenant. Specifically, Murray maintains that the covenant is void and should not be rewritten to conform to a reasonable standard.

Although a circuit court is not prohibited from modifying restraints embodied in an employment contract, the fairness of the restraint initially imposed is a relevant consideration of the court in equity. (House of Vision, Inc., 37 Ill. 2d at 39; Stamatakis Industries, Inc. v. King (1987), 165 Ill. App. 3d 879, 520 N.E.2d 770; Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498, 507, 392 N.E.2d 1148.) The court is not required, however, to follow the terms of the covenant exactly in issuing an injunction. (McRand, Inc., 138 Ill. App. 3d at 1058.) In the instant case, the circuit court modified only slightly the covenant, holding that the balance of the restrictions were reasonable and necessary to protect Arpac’s legitimate business interests. Furthermore, we do not find modification inappropriate where, as here, the agreement specifically allows, in a severability clause, a court to modify its limits if its restrictions are too broad. See Wyatt v. Dishong (1984), 127 Ill. App. 3d 716, 719, 469 N.E.2d 608; cf. Hill v. Names & Addresses, Inc. (1991), 212 Ill. App. 3d 1065, 1088-89, 571 N.E.2d 1085 (employment agreement’s covenant not to compete, termed “essential element” of the agreement, in conflict with severability clause).

Accordingly, we affirm the court’s order enforcing the non-solicitation restrictions as to Arpac’s employees and customers; we reverse, however, the court’s order enforcing the noncompetition clause, holding that it is overly broad.

Ill

Finally, Murray contends that the employment agreement was neither authorized by nor binding upon Arpac. Specifically, he argues that Levy never had the authority to enter into the employment contract, which offered a stock option to Murray, without prior approval by Arpac’s board of directors. Thus, because the contract was never authorized by Arpac’s board, Murray contends that it is void. Murray further maintains that the court never considered the issue properly, but rather, mistakenly regarded it as being part of Murray’s unclean hands defenses.

In response, Arpac asserts that Murray cannot now raise such an argument because he twice admitted in verified pleadings that he and Arpac entered into a valid employment agreement/stock option agreement. (See Beverly Bank v. Coleman Air Transport (1985), 134 Ill. App. 3d 699, 703, 481 N.E.2d 54.) Murray rejoins that his admission was in error; he asserts that only after discovery was it revealed that Levy did not have the authority to enter into the agreement.

Any admission contained in the original verified pleading, which is not the product of mistake or inadvertence, is a binding judicial admission. (American National Bank & Trust Co. v. Erickson (1983), 115 Ill. App. 3d 1026, 452 N.E.2d 3.) Correspondingly, such an admission has the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Beverly Bank, 134 Ill. App. 3d at 703.

Here, Murray contends that his admission was error because the information necessary to respond was unavailable. However, he has offered little support for his contention, other than arguing that his admission was inadvertent. Thus, based upon the record and the support provided by Murray, we find that Murray’s verified answer admitting Arpac’s allegation that an employment agreement had been entered into between Arpac and him constituted a binding judicial admission against Murray.

In summary, we conclude that the circuit court’s findings — that for purposes of preliminary injunctive relief, the evidence was sufficient to demonstrate that Arpac possesses a legitimate business interest in need of protection; that there is no adequate remedy at law; that injury to Arpac will result if the covenant is not enforced; and that the benefits in granting the injunctive relief sought by Arpac outweigh the injury which Murray might suffer thereby — are supported by the evidence presented. Consequently, we find no abuse of discretion by the circuit court in entering the preliminary injunction. Although we find that the court properly held that the nonsolicitation portions of the covenant were enforceable, we find that that portion of the covenant restricting Murray from engaging in the shrink-wrap business in any State except four, is unconscionable, unreasonable, overbroad in its application, and constitutes an unlawful restraint of trade insofar as it would restrict Murray’s employment. We thus reverse the circuit court’s order enforcing the noncompetition restriction in the covenant.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

HARTMAN, P.J., and SCARIANO, J., concur.

      The circuit court initially ruled that the restriction against Murray working in any capacity in the shrink-wrap business in the United States other than four States was overly broad and thus void. The court, however, later revised its decision on this point pursuant to The Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 480 N.E.2d 1273, and directed that the injunction issue against Murray working in the shrink-wrap business anywhere in the United States except Hawaii, Alaska, Wyoming, and Montana.


author: PRESIDING JUSTICE HARTMAN JUSTICE DiVITO,

text:
    AURELIA CANNON, Plaintiff-Appellant, v. MORTEZA DINI, Defendant-Appellee (St. Anne’s Hospital et al., Defendants).
    First District (2nd Division)
    No. 1—90—2809
    Opinion filed February 11, 1992.
    Rehearing denied April 8, 1992.
    DiVITO, J., dissenting.

      King & Davis, of Chicago (Timothy P. King and David J. Corbett, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Hugh C. Griffin, Chad M. Castro, and Diane I. Jennings, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

The circuit court of Cook County determined that plaintiff, Aurelia Cannon, failed to exercise due diligence in obtaining service of process on Morteza Dini (Dini), a defendant herein. Accordingly, the court dismissed plaintiff’s amended complaint with prejudice pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)).

Plaintiff filed a three-count complaint on November 7, 1988, four days prior to the expiration of the limitations period, alleging negligence against defendants, St. Anne’s Hospital, R. Owen, and Dini. On November 18, 1988, a summons was issued against Dini as well as the other defendants. The summons went unserved as to Dini and was returned on December 28, 1988. The return, which listed Dini’s office address at 4909 W. Division Street in Chicago, showed attempted service on the following dates:

December 6,1988, at 10:30 a.m.
December 8,1988, at 3:47 p.m.
December 10,1988, at 12:56 p.m.
December 12,1988, at 11:15 a.m.

The remark “avoiding service” was handwritten on the return.

Plaintiff’s complaint was stricken with leave to amend on March 29, 1989, pursuant to a motion brought by St. Anne’s Hospital. On April 3, 1989, plaintiff filed an amended complaint and mailed a copy of it with an accompanying letter to Dini at 4909 W. Division. Dini did not respond.

An alias summons was issued on August 3, 1989, which specifically directed the sheriff to serve Dini at 4909 W. Division on Wednesday or Thursday between 1:30 and 5:30 p.m., or on Saturday between 1 and 3 p.m. The sheriff, however, unsuccessfully attempted service on Monday August 7, 1989, at 11 a.m., and on Tuesday August 8, 1989, at 4:15 p.m. The summons was returned “not served” on August 11, 1989, with the additional handwritten notation “no long [sic] at this location.”

The court appointed a special process server (server) on September 25, 1989, pursuant to plaintiff’s motion filed on that date. A second alias summons was issued on September 26, 1989, and the server attempted service at 4909 W. Division on October 21, 1989, and October 23, 1989. He indicated that Dini appeared to have moved out of his office located at the aforementioned address, although his name appeared on the first-floor directory.

A third alias summons issued on December 18, 1989, with instructions to serve Dini at 4550 N. Winchester in Chicago. The server attempted to locate Dini there on December 24, but discovered that his office was across the street at 1945 W. Wilson Avenue. After an unsuccessful attempt on December 26, 1989, Dini was personally served at 5:09 p.m. on December 27,1989, at 1945 W. Wilson.

Dini filed an appearance on February 27, 1990, and moved to vacate all defaults on April 5, 1990. On April 30, 1990, he moved to dismiss plaintiff’s amended complaint pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)), alleging that plaintiff had failed to exercise reasonable diligence in obtaining service upon him. In his attached affidavit, Dini stated that he had practiced medicine in the Chicago area since 1980; he had lived at his home address, which was listed in the Skokie telephone directory, since 1983; his office, which was listed in the Chicago yellow pages under his name, had been located at 1945 W. Wilson since February 1989; during the four years previous to February 1989, his office had been at 4909 W. Division; he had sent several billing statements to plaintiff on which his office addresses had been indicated; he had been listed in the American Medical Association’s directory since 1974, and was also registered with the Illinois State Medical Association, the Chicago Medical Association, and the St. Anne’s Hospital Professional Building, each of which had his office address and telephone number; and he had not attempted to evade service of process in connection with this matter.

Plaintiff responded that she had demonstrated due diligence in attempting to serve Dini, and attached copies of the returns as support for her position. On August 28, 1990, the circuit court dismissed the complaint as to Dini, finding that plaintiff had failed to diligently serve him. The court also included Rule 304(a) language in its order. (134 Ill. 2d R. 304(a).) Plaintiff appeals the dismissal of her amended complaint.

Initially, plaintiff claims that Dini waived any objections under Rule 103(b) because of his participation in the case. That argument, however, cannot be raised for the first time on appeal. (Riopelle v. Northwest Community Hospital (1990), 195 Ill. App. 3d 750, 753-54, 552 N.E.2d 1220; Kruk v. Birk (1988), 168 Ill. App. 3d 949, 958, 523 N.E.2d 93.) The record indicates that plaintiff did not raise the question of waiver in the circuit court and, therefore, failed to properly preserve the matter for review.

Even if not waived, plaintiff’s argument fails. A defendant’s participation in the defense of his case may constitute a waiver of a Rule 103(b) objection. (Lovell v. Hastings (1973), 11 Ill. App. 3d 221, 223, 296 N.E.2d 608.) In Lovell, defendant was held to have actively participated in the defense of his case on the merits prior to filing a Rule 103(b) motion. There, defendant filed sworn answers to interrogatories propounded by plaintiff and gave a discovery deposition; two days after he was deposed, defendant filed a motion to dismiss for failure to exercise due diligence in obtaining service of process. Lovell, 11 Ill. App. 3d at 223.

Here, after filing his appearance on February 27, 1990, Dini moved to vacate all defaults on April 5, 1990; that motion was granted on the same day. On April 30, 1990, he filed his motion to dismiss based upon Rule 103(b). A briefing schedule was set by the court on May 14, 1990. On June 4, 1990, Dini filed answers to interrogatories which had been propounded by plaintiff on April 24, 1990. Dini’s limited involvement does not constitute the active participation in the defense of the action on its merits which waives a Rule 103(b) objection. Although Dini answered plaintiff’s interrogatories, he did so well after his Rule 103(b) motion had been filed. Further, he did not participate in a deposition, as did defendant in Lovell. Dini’s minimal participation, therefore, does not mandate application of the Lovell waiver rule. See Daily v. Hartley (1979), 77 Ill. App. 3d 697, 703-04, 396 N.E.2d 586; cf. Muskat v. Sternberg (1991), 211 Ill. App. 3d 1052, 1057-58, 570 N.E.2d 696.

Additionally, plaintiff argues that the circuit court abused its discretion in dismissing her amended complaint pursuant to Rule 103(b). The rule states: Although prevention of intentional delay in the service of summons was a primary reason for the adoption of the rule and its predecessors, Rule 103(b) is not based upon the subjective test of plaintiff’s intent, but, rather, upon the objective test of reasonable diligence in effecting service. (Parker v. Universal Packaging Corp. (1990), 200 Ill. App. 3d 882, 886, 558 N.E.2d 203.) The rule does not denote a specific time limitation within which defendant must be served; instead, it seeks to promote the expeditious handling of suits by giving the circuit court wide discretion to dismiss when service is not effected with reasonable diligence. (Segal v. Sacco (1990), 136 Ill. 2d 282, 285-86, 555 N.E.2d 719.) Further, the rule protects defendants from unnecessary delay in the service of process on them and prevents circumvention of the statute of limitations. (Segal, 136 Ill. 2d at 286.) Ordinarily, however, controversies should be resolved on their merits after both sides have had their day in court. (Montero v. University of Illinois Hospital (1978), 57 Ill. App. 3d 206, 210, 372 N.E.2d 1010.) Plaintiff has the burden of showing reasonable diligence in service of process. (Segal, 136 Ill. 2d at 286.) Different factors which the court may consider in determining whether to allow a Rule 103(b) motion include, but are not limited to: length of time used to obtain service; activities of plaintiff; plaintiff’s knowledge of defendant’s location; ease with which defendant’s whereabouts could have been ascertained; defendant’s actual knowledge of the pendency of the action; and special circumstances which would affect plaintiff’s efforts. Clemons v. Atlas (1989), 185 Ill. App. 3d 894, 895-96, 542 N.E.2d 40.

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice.” (134 Ill. 2d R. 103(b).)

The case sub judice is analogous to Dupon v. Kaplan (1987), 163 Ill. App. 3d 451, 516 N.E.2d 727, in which eight unsuccessful attempts were made to serve defendant at his office address within the immediate three months after the complaint was filed. A special process server was appointed seven months later, and he effected service upon defendant within five days of his appointment. Based upon those facts, and despite plaintiff’s inactivity during the intervening seven-month period, the appellate court held that the circuit court abused its discretion in granting defendant’s Rule 103(b) motion. (Dupon, 163 Ill. App. 3d at 455-57.) Similarly, in Licka v. William A. Sales, Ltd. (1979), 70 Ill. App. 3d 929, 388 N.E.2d 1261, the appellate court reversed the dismissal of plaintiff’s medical malpractice action against a physician pursuant to Rule 103(b). Although 13 months had elapsed between the time of the first amended complaint and the time of service, plaintiff had issued four alias summonses and expended considerable effort in attempting to locate and serve defendant. It was held that plaintiff had exercised reasonable diligence in effecting service and the circuit court had abused its discretion in dismissing the action as to the doctor. Licka, 70 Ill. App. 3d at 937-38; see also Schultz v. McElroy (1973), 9 Ill. App. 3d 940, 943-44, 293 N.E.2d 353.

The cases upon which defendant relies are distinguishable. In Jones v. Shallow (1990), 201 Ill. App. 3d 594, 596-97, 559 N.E.2d 128, plaintiff unsuccessfully attempted to serve defendant by means of two summonses at two different addresses. After a period of six months, during which plaintiff only attempted to trace defendant’s telephone number, plaintiff located defendant through the Secretary of State’s office, and he was served shortly thereafter. In both Paglis v. Black (1989), 178 Ill. App. 3d 1062, 1063-64, 534 N.E.2d 206, and Semersky v. West (1988), 166 Ill. App. 3d 637, 642-43, 520 N.E.2d 71, several months elapsed after the filing of the complaints, during which the defendants’ proper addresses were known, but no attempt was made to serve them at those locations. In Luebbing v. Copley Memorial Hospital (1978), 60 Ill. App. 3d 780, 782-83, 377 N.E.2d 345, no summons was issued at all until 10 months after the complaint had been filed.

Here, the initial summons was issued and service was attempted on four different dates within one month after the filing of the original complaint. Dini’s argument is based upon the assertion that plaintiff did nothing for over seven months after the initial summons was returned unserved. That contention, however, fails to take into account that two separate motions to dismiss plaintiff’s complaint were pending at different times during most of that period. A chronology of the procedural history following the return of the initial summons is illustrative.

On December 30, 1988, St. Anne’s Hospital moved to dismiss plaintiff’s complaint, contending that plaintiff failed to file it within the applicable statute of limitations and attach a physician’s affidavit pursuant to section 2 — 622(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—622(a)). Plaintiff moved for an extension of time to file a health care report pursuant to section 2 — 622 on February 6, 1989. On March 27, 1989, plaintiff responded to the hospital’s motion to dismiss. The circuit court struck plaintiff’s complaint on March 29, 1989, and in the accompanying order, plaintiff was given 28 days within which to amend her complaint. Further, plaintiff was granted until May 18, 1989, to file the physician’s certificate required by section 2 — 622, and a status hearing was set for that date.

Plaintiff filed her amended complaint on April 3, 1989, five days after it had been stricken. A copy of the amended complaint was mailed to Dini at 4909 W. Division, but he did not respond. On May 9, 1989, St. Anne’s Hospital filed its second motion to dismiss on the same grounds presented in its first motion. After being heard on the progress call on May 15, 1989, the cause was placed on the trial call. On May 18, 1989, plaintiff was granted an additional 30 days to file a physician’s affidavit, and the cause was continued until June 27, 1989, for a status hearing. On June 27, the hospital’s motion to dismiss was entered and continued for status until September 6,1989.

The first alias summons was issued on August 3, 1989, but it was returned unserved on August 11, with the remark that Dini was no longer at 4909 W. Division.

On September 6, 1989, the motion to dismiss plaintiff’s complaint was stricken because St. Anne’s Hospital failed to appear. Until that date, the survival of plaintiff’s cause of action had been uncertain, regardless of whether or not Dini was or would have been served with summons. The special process server was appointed on September 25, 1989, and he attempted service through a second alias summons at 4909 W. Division. Subsequently, he found another address for Dini, and the third alias summons was issued on December 18, 1989. Dini was personally served nine days later.

From the filing of the original complaint on November 7, 1988, until service was obtained with a third alias summons on December 27, 1989, plaintiff demonstrated sufficient diligence to avoid the harsh sanction of a Rule 103(b) dismissal. During that 13-month period, plaintiff placed four summonses, on one of which four attempts to serve defendant were made, and pursued the matter to a successful conclusion. The seven-month period of alleged “inactivity,” during which plaintiff’s complaint was stricken and refiled and a second motion to dismiss remained pending for four months, cannot comprise the basis of a finding that plaintiff failed to exercise reasonable diligence in serving Dini. The circuit court erred in so holding. We do not find that the five-day period between the striking and refiling of plaintiff’s complaint constitutes justification for plaintiff’s delay in serving Dini; however, presented with the lingering question of whether she was properly in court at all, as asserted by the two motions to dismiss, plaintiff was at least reasonably diligent in her several attempts at service upon Dini.

The dissent also urges that “[w]e *** should support trial courts in their efforts to manage heavy dockets.” (226 Ill. App. 3d at 91.) This court, however, has expressly indicated that:

“While the purposes of Rule 103(b) are unquestionably valid, nevertheless, faced with a crowded civil docket as has been the experience in Cook County, Illinois, the trial court should be careful that Rule 103(b) is not used merely as a device to reduce the backlog of cases, but consideration of the competing factors inherent in ruling on a Rule 103(b) motion should be given to each case in which such a motion arises.” Galvan v. Morales (1972), 9 Ill. App. 3d 255, 258-59, 292 N.E.2d 36.

Based upon the foregoing, the judgment of the circuit court is reversed, and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McCORMICK, J., concurs.

JUSTICE DiVITO,

dissenting:

I write in respectful dissent because of the effect of the majority’s opinion on the two central issues in this case — a plaintiff’s burden, in the face of a Rule 103(b) challenge, to show reasonable diligence in effecting service, and the deference we should give to a trial court’s exercise of discretion — and because of my belief that the circuit court did not abuse its discretion in dismissing the complaint given that plaintiff has utterly failed to meet her burden.

As the majority recognizes, and as our supreme court held in Segal v. Sacco (1990), 136 Ill. 2d 282, 555 N.E.2d 719, an essential purpose of Supreme Court Rule 103(b) is to promote the expeditious handling of lawsuits by giving trial courts wide discretion to dismiss a complaint when service is not effected with reasonable diligence. When the grant of “wide” (albeit sound) discretion is combined with the principle that a plaintiff has the burden of showing reasonable diligence in effecting service to survive a Rule 103(b) motion (Segal, 136 Ill. 2d at 286), it is difficult to understand the majority’s reversal of the circuit court’s judgment.

Here, plaintiff’s suit was filed on November 7, 1988, four days before the expiration of the applicable four-year statute of limitations and at least three years after plaintiff was aware of the injury that allegedly was caused by Dini’s malpractice. Plaintiff caused summons to issue on November 18, 1988, and the sheriff unsuccessfully attempted service four times in December 1988. The return of summons, dated December 12,1988, bore the notation “avoiding service.”

That notation did not establish that Dini was avoiding service; rather, its significance was to alert plaintiff to the need to extend greater effort in her attempts at service. Nevertheless, plaintiff made no effort whatsoever to serve Dini again until the issuance of the alias summons on August 3, 1989 — nearly eight months later. This summons too was returned unserved, with the notations that Dini was no longer at that location and that he had not been served because he had moved. Plaintiff then waited V-k months to request a second alias summons, and, inexplicably, did so for the same address. When the process server’s affidavit again informed plaintiff that Dini had moved, plaintiff delayed yet another IV2 months before requesting another alias summons. It was only then that Dini was served, across the street from the address supplied on the summons, more than 13 months after both the filing of suit and the expiration of the statute of limitations.

In this case, plaintiff presented no evidence of her efforts to effect service on Dini other than the above history of service attempts. Although the record reflects her inactivity and inattention, it is silent concerning whether she checked local phone directories, the post office, the State registration board, medical associations, hospitals, the Secretary of State, or any other source in an attempt to ascertain Dini’s home or business address. In short, plaintiff did not merely fail to meet her burden to show reasonable diligence in effecting service, she presented no evidence concerning her efforts. Given this lack of proof, the circuit court’s order of dismissal can in no way be deemed an abuse of discretion.

In reversing, the majority emphasizes that “two separate motions to dismiss plaintiff’s complaint were pending at different times during most of” the nearly eight-month period when no effort was made to serve Dini. (226 Ill. App. 3d at 87.) The majority refers to “the lingering question of whether [plaintiff was properly in court at all” and states that, “[ujntil [September 6, 1989], the survival of plaintiff’s cause of action had been uncertain, regardless of whether or not Dini was or would have been served with summons.” (226 Ill. App. 3d at 88.) The majority somehow deems plaintiff’s efforts to defend her complaint against the hospital’s motions to be sufficient justification for her failure to exercise any effort to serve Dini. The majority explicitly states that “[t]he seven-month period of alleged ‘inactivity,’ during which plaintiff’s complaint was stricken and refiled and a second motion to dismiss remained pending for four months, cannot comprise the basis of a finding that plaintiff failed to exercise reasonable diligence in serving Dini.” (226 Ill. App. 3d at 88.) I disagree.

The majority’s holding applies a new spin to the principles applicable here. The critical inquiries are whether plaintiff has shown reasonable diligence in effecting service and whether, given plaintiff’s evidence, dismissal was an abuse of discretion. They are not, as the majority opinion appears to hold, whether a plaintiff must be excused for doing nothing if her counsel is otherwise occupied, and whether not excusing such a plaintiff is an abuse of discretion.

By its holding, the majority, without cited authority, provides new and unwarranted grounds for failure to exercise reasonable diligence in the service of summons. In essence, the majority holds that plaintiff’s involvement with one defendant’s motions attacking the complaint justifies inaction in serving another defendant. We should not countenance that principle because it assumes full and justifiable absorption in defending the complaint, something contrary to common sense and experience generally, and something not remotely borne out by the record in this case.

The principle of waiver is also applicable here. Nowhere has plaintiff presented the argument that the majority finds so persuasive here. Defense of her complaint or the “lingering question of whether she was properly in court at all” was cited by plaintiff neither in the response she filed in the circuit court to the motion to dismiss, nor in her argument to the circuit court before the motion was granted, nor in either her opening or reply briefs in this court, nor at oral argument. Although she did rely upon the five-day period during which no complaint was on file, that contention appears unsupportable in light of the supreme court’s holding in Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 586, that a circuit court may consider the circumstances surrounding a plaintiff’s service of process on the original as well as a refiled complaint, and by the fact that the majority explicitly states that this is not the basis for its decision.

Moreover, the almost eight months of plaintiff’s inactivity are not the only example of her overall lack of reasonable diligence in this case. Other instances include plaintiff’s failure to be even more attentive to service after the “avoiding service” notation and the issuance of summons for the same address, IV2 months after being informed by the process server that Dini had relocated.

In my opinion, decisions such as this one send the wrong signals to bench and bar. Our decisions, and the rulings and indulgences of trial judges, do much to shape the local legal culture in which we and all litigants function. We therefore should support trial courts in their efforts to manage heavy dockets and to require attorney vigilance in prosecuting cases. When, however, we say, as the majority does here, that a plaintiff’s lack of diligence was reasonable, we encourage practices that are in grave conflict with good case management and attorney professionalism. In my opinion, such rulings unduly infringe upon the efforts of trial courts as they seek to discharge their duties fairly and expeditiously. See O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 283, 492 N.E.2d 1322.

Given the record in this case, particularly plaintiff’s failure to provide any evidence of reasonable diligence, the circuit court’s exercise of sound judicial discretion in dismissing the case should be affirmed.

      Owen and St. Anne’s Hospital were served with the summons on December 5, 1988, and December 7,1988, respectively.

      Indeed, the evidence, summarized by the majority, showed that Dini was not avoiding service, and plaintiff offered no evidence that indicated he was.


author: JUSTICE McCORMICK

text:
    CARLOS ESCOBAR et al., Plaintiffs-Appellants, v. MADSEN CONSTRUCTION COMPANY, Defendant-Appellee (Xavier Watkins et al., Defendants).
    First District (2nd Division)
    No. 1—90—2599
    Opinion filed February 11, 1992.
    Rehearing denied April 8, 1992.

      Thomas P. Cernek & Associates, of Chicago, for appellants.
    Hinshaw & Culbertson, of Chicago (Nancy G. Lischer and Steven C. Wolf, of counsel), for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Carlos and Lorena Escobar sued Xavier Watkins for shooting Carlos Escobar, and they sued Watkins’ employer, Madsen Construction Company (Madsen), for negligently hiring and supervising Watkins. Madsen moved for summary judgment on all counts directed against it. The trial court granted the motion, finding that the Escobars failed to present evidence which could show that Madsen proximately caused their injuries, and the Escobars appeal.

In 1989, Carlos Escobar, Xavier Watkins and John Jackson were employed by Madsen for the construction of a building in Evanston, Illinois. After work on May 18, 1989, Watkins and Escobar got into a fight in a bar near the jobsite. On the morning of May 19, 1989, when Escobar got out of his car before work, about two blocks from the jobsite, Watkins shot Escobar.

Watkins, a black man, worked as a carpenter foreman on the Evanston construction site. Because his home was far from the job-site, while he was working in Evanston, he shared a hotel room with the general foreman, Steve Carlson, who is white. One carpenter, a white man who was supervised by Watkins and Carlson, stated in his deposition that Watkins caused the continual racial problems on the job; on numerous occasions he screamed at the workers under him and he easily lost his temper. The carpenter got into an argument with Watkins, and Watkins threatened to get his gun from his car and “take care” of the worker. The worker told the job superintendent about the threat.

Several other carpenters, including Escobar, described Watkins in their affidavits as a mean person who was abusive to everybody. Watkins’ crew had to work in a dangerous manner, without safety precautions, because that was how Watkins wanted to do the work, and he yelled at and threatened to fire workers who would not do things his way. The Escobars’ witnesses stated that Watkins frequently argued with Carlson. Madsen presented contrary evidence concerning Watkins’ character at work.

At the bar on the night prior to the shooting, Watkins pushed Carlson up against a wall, possibly because Carlson had been “bitching” at Watkins at work that day about the money Watkins owed him for room rent. Escobar stated in his deposition that after Carlson left, he and two other white workmen asked Watkins what happened, and Watkins punched Escobar three or four times. The three men hit Watkins several times and Escobar knocked Watkins down.

Carlson knew Watkins occasionally used cocaine. One of the Escobars’ witnesses said Watkins appeared to be high on cocaine on the morning of the shooting.

Summary judgment is appropriate if the pleadings and evidentiary materials on file show that the moving party is entitled to judgment as a matter of law. (Lower v. Lanark Mutual Fire Insurance Co. (1983), 114 Ill. App. 3d 462, 466, 448 N.E.2d 940, 944.) In a negligence action, if the evidence cannot support a finding that defendant’s acts or omissions proximately caused plaintiff’s injury, defendant is entitled to judgment. Salinas v. Werton (1987), 161 Ill. App. 3d 510, 515, 515 N.E.2d 142, 144.

“A proximate cause is one which produces the injury through a natural and continuous sequence of events unbroken by any effective intervening cause. [Citation.] If the negligence charged does nothing more than furnish a condition which made the injury possible and that condition causes an injury by the subsequent independent act of a third party, the creation of that condition is not the proximate cause of the injury. [Citation.] The subsequent independent act becomes the effective intervening cause which breaks the causal connection, and itself becomes the proximate cause.” Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 361, 493 N.E.2d 372, 373.

The Escobars seek to hold Madsen liable on theories of negligent hiring and supervision. They admit that Watkins was not acting in the course of his employment when he shot Escobar, so the shooting itself cannot be considered Madsen’s act under the doctrine of respondeat superior. Watkins’ act is, thus, the act of a third party and an intervening cause of the Escobars’ harm. In order to resist the motion for summary judgment, the Escobars needed to present evidence from which the trier of fact could conclude that the negligent hiring and supervision provided more than a condition which made the injury possible; the shooting must have been the result of a natural and continuous sequence of events set in motion by Madsen’s negligence. The Escobars’ injuries must have been foreseeable to a person of ordinary prudence in Madsen’s position, and the negligent hiring and supervision must have been a substantial factor in bringing about the harm. Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 89, 508 N.E.2d 1201, 1210.

In Bates v. Doria (1986), 150 Ill. App. 3d 1025, 502 N.E.2d 454, an off-duty deputy sheriff assaulted the plaintiff, and the plaintiff sought to impose liability on the department because the department should have known of the deputy’s psychological instability. The trial court granted summary judgment for the department and the appellate court affirmed, finding no connection between the employment and the assault. Like Watkins, the deputy did not obtain the weapon he used in the assault from his work and he was not at work at the time of the assault. Appellants argue that Bates is distinguishable because Watkins first met Escobar at work and pressures at work could have contributed to his violent act, whereas the deputy met his victim only at the time of the attack, not in connection with work, and there was no evidence of departmental pressures contributing to the act. These distinctions show only that the work provided a condition for Watkins’ attack, not that the work proximately caused the attack.

The Escobars cite several cases which establish that an employer may be liable for negligent hiring and supervision of an employee who intentionally harms someone while acting outside the scope of his employment. However, all of the Escobars’ cases fall within the purview of Restatement (Second) of Torts, section 317 (1965), which provides that an employer may be liable for harm caused by an employee acting outside the scope of his employment if the employee is on the employer’s premises or using chattel of the employer, and the employer has reason to know of the need and opportunity for exercising control over the employee. In Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 387 N.E.2d 1241, the defendant gave its employee a passkey which he used to enter plaintiff’s apartment, where he assaulted the plaintiff. In Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265, 496 N.E.2d 1086, defendant gave its employee a truck which he used in his assault on the plaintiff. In this case Watkins was not on Madsen’s jobsite, not doing Madsen’s work, and not using Madsen’s gun when he shot Escobar. Evidence of Watkins’ orneriness and drug usage, together with a report from one worker that Watkins had threatened to get his gun from his car, did not make the shooting a foreseeable consequence of hiring and supervising Watkins. The alleged negligent hiring and supervising could not have been a substantial factor in bringing about the shooting. The trial court properly concluded that the Escobars had not presented evidence from which a trier of fact could find that Madsen’s alleged negligent hiring and supervision of Watkins proximately caused the Escobars’ injuries. Accordingly, we affirm.

Affirmed.

SCARIANO and DiVITO, JJ., concur.