Alms v. Baum

Case Date: 09/05/2003
Court: 1st District Appellate
Docket No: 1-01-2384 Rel

No. 1-01-2384

 

DAVID ALMS, Independent Adm'r ) Appeal from the
of the Estate of Steven Berger, ) Circuit Court of
Deceased, and Susan Delanty, ) Cook County.
)
                            Plaintiffs-Appellants, )
)
         v. ) No. 98 L 2886
)
DANIEL BAUM and RONALD MCDONALD HOUSE )
NEAR CHILDREN'S MEMORIAL HOSPITAL, )
INC., an Illinois Not-for-Profit )
Corporation, ) Honorable
) Martin S. Agran,
                          Defendants-Appellees. ) Judge Presiding.


 

JUSTICE REID delivered the opinion of the court:

The decedent, Steven Berger, and appellant Susan Delantywere passengers in a two-seater sports car that was driven bydefendant Daniel Baum (Baum), when he lost control of the vehicleand had an accident. Delanty and appellant David Alms, who isserving as the independent administrator of the estate of thedeceased Berger, filed suit against Baum and defendant RonaldMcDonald House Near Children's Memorial Hospital (Ronald McDonaldHouse), based on a theory of respondeat superior. RonaldMcDonald House subsequently filed a motion for summary judgment,which the trial court granted. On appeal, the appellants arguethat the trial court erred when it determined that Baum was notacting as an agent of the Ronald McDonald House when the accidentoccurred. For the reasons that follow, we affirm the decision ofthe trial court.

BACKGROUND

On March 10, 1998, Alms and Delanty filed a 16-countcomplaint for wrongful death, a survival action and negligenceagainst Baum and the Ronald McDonald House. The complaintalleged that on June 7, 1997, Berger and Delanty were passengersin Baum's automobile when he lost control of it and had anaccident while negotiating a curve on a roadway in Williams Bay,Wisconsin. Berger was killed and Delanty suffered permanentinjuries. The plaintiffs sought to recover damages.

From discovery deposition testimony, it was learned thatbeginning in 1978, Children's Oncology Services of Illinois, anonprofit corporation, owned and operated a children's cancersummer camp, "One Step At A Time Camp," at George WilliamsCollege in Wisconsin. During the 1990s, Children's OncologyServices of Illinois changed its name to the Ronald McDonaldHouse. The camp was founded by Edward Baum, M.D. (Dr. Baum), whoserved as its director from 1971 until his retirement in July1997.

Each year since 1979, the camp conducted an orientationweekend for camp workers before the actual start of summer camp. The purpose of the weekend was to: (1) provide orientation andtraining for new and existing staff members and (2) organize andplan for the upcoming two-week camp session. Attendance at theorientation weekend was mandatory for administration staff, campleaders and counselors.

Also, camp leaders and administrators held fourorganizational meetings during the year. The last of thosemeetings was held on the night of Friday, June 6, 1997. Attendance at the Friday night meeting was mandatory for campleaders as well. The following day, on Saturday June 7, 1997,the two-day orientation weekend was scheduled to begin.

Although rooms were made available to camp leaders, Dr. Baumtestified that if they chose to do so, camp leaders could leavethe camp on Friday night and return the following morning. Dr.Baum testified that he would have objected to camp leadersdrinking alcohol after the Friday night meeting because they werenot supposed to drink when they were at camp regardless ofwhether they were on camp premises or elsewhere. Dr. Baum alsosaid that he believed he had the right to tell camp leaders thatthey could not go to a local establishment and drink an alcoholicbeverage. However, Dr. Baum admitted that there was no writtenpolicy or rule that prohibited camp leaders from drinking alcoholafter the Friday night meeting.

Berger, Baum and Delanty served as camp leaders. Campleaders were unpaid volunteers, who were responsible forproviding their own transportation to and from camp. However,camp leaders would be reimbursed for traveling expenses that theyincurred during the camp.

As camp leaders, Berger, Baum and Delanty attended themandatory Friday night meeting. Dr. Baum testified that themeeting was scheduled to start at around 6:30 p.m. or 7 p.m. When the meeting ended around 9:30 p.m., a group of people whoattended the meeting, which included Berger, Baum and Delanty,decided to go to a local establishment called the Keg Room.

After the Friday meeting ended, Dr. Baum testified, official camp business for the camp leaders would not begin againuntil the following Saturday morning. Dr. Baum testified thatany camp business that took place between the camp leaders afterthe Friday meeting had concluded and before Saturday morningoccurred at the election of the camp leaders.

Several leaders testified that going out as a group to theKeg Room or some other local establishment after the Friday nightmeeting had been a regular practice for years. It was alsocommon for camp business to be discussed during these times. After the Friday meeting, Delanty brought materials from the campwith her to the Keg Room and worked on camp business while there. However, Baum and Berger did not bring any materials from camp towork on. Instead, Baum and Berger watched a basketball game ontelevision and socialized while they were at the Keg Room.

Delanty, Berger and Baum were at the Keg Room forapproximately two hours. Delanty testified that she, Berger andBaum were the last three to leave. Baum, who was leasing a two-seater sports car, offered to drive the three back to camp. Delanty sat on Berger's lap in the passenger seat of Baum's car. As they were returning to the camp, Baum, who testified that hedrank five beers while at the Keg Room, lost control of the carand had an accident.

On March 10, 1998, Alms and Delanty filed suit against Baumand Ronald McDonald House. On January 22, 2001, Ronald McDonaldHouse filed a motion for summary judgment, which the trial courtgranted on May 14, 2001. Subsequently, the appellants timelyfiled a notice of appeal on June 14, 2001.

ANALYSIS

The question that must be resolved is whether Baum wasacting as an agent of Ronald McDonald House when the accidentoccurred.

Summary judgment is proper where the pleadings, depositions,and admissions on file, together with the affidavits, if any,show that there is no genuine issue as to any material fact andthat the moving party is entitled to a judgment as a matter oflaw. 735 ILCS 5/2-1005(c)(West 2000); Travelers Insurance Co. v.Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001). Inappeals from summary judgment rulings, our review is de novo. Travelers, 197 Ill. 2d at 292.

Under the doctrine of respondeat superior, an employer canbe held vicariously liable for the tortious acts of its employees(Pyne v. Witmer, 129 Ill. 2d 351, 359 (1989)), includingnegligent, wilful, malicious, or even criminal acts of itsemployees when such acts are committed in the course ofemployment and in furtherance of the business of the employer (Brown v. King, 328 Ill. App. 3d 717, 722 (2001)).

The status of a negligent person as a volunteer worker for acharitable organization does not necessarily preclude a findingthat a master-servant relationship existed between theorganization and the volunteer. Morgan v. Veterans of ForeignWars of the United States, 206 Ill. App. 3d 569, 575 (1990),citing Baxter v. Morningside, Inc., 10 Wash. App. 893, 521 P.2d946 (1974), and A. Manley, Annotation, Liability of CharitableOrganization Under Respondeat Superior Doctrine For Tort ofUnpaid Volunteer, 82 A.L.R.3d 1213 (1978). "'One who volunteersservices without an agreement for or expectation of reward may bea servant of the one accepting such services.'" Morgan, 206 Ill.App. 3d at 575, quoting Restatement (Second) of Agency