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SECOND DIVISION
August 20, 2002

Plaintiff Herman Davila appeals an order of the circuit courtof Cook County granting summary judgment in favor of defendantYellow Cab Company.

In a first amended complaint, Davila alleged he was struck andinjured by a taxicab owned by Yellow Cab and negligently operatedby defendant Thomas Williams on October 31, 1996, in the vicinityof the intersection of LaSalle and Lake Streets in Chicago. Davilaalleged that he was a State of Illinois police officer standing onLake Street due to traffic congestion when he was struck byWilliams' cab and dragged for several feet. Davila also allegedthe incident caused him severe and permanent bodily injuries, painand suffering, medical expenses, and loss of his usual occupation. Davila complained that Yellow Cab was responsible for his damagesdue to a principal/agent or master/servant relationship withWilliams. In a separate count, which was dismissed and is notsubject to this appeal, Davila alleged that Yellow Cab hadnegligently entrusted Williams with the taxicab.

Yellow Cab answered and moved for summary judgment, contendingthat its written contract with Williams established he was anindependent contractor and that Williams' conviction for battery,an intentional crime, in connection with the incident at Lake andLaSalle Streets established Williams was not acting within thescope of any agency or employment relationship. Yellow Cabconcluded it was therefore not responsible for Williams' actions.

The trial court granted Yellow Cab's motion for summaryjudgment, finding that, as a matter of law, Williams was not anagent or employee of Yellow Cab, because Yellow Cab was leasinglicensed cabs and there was no indication that it had a right tocontrol Williams' operation of the cab. The trial court declinedto follow Yellow Cab Co. v. Industrial Comm'n, 124 Ill. App. 3d644, 464 N.E.2d 1079 (1984), or Yellow Cab Co. v. IndustrialComm'n, 238 Ill. App. 3d 650, 606 N.E.2d 523 (1992), and indicatedthat these cases are limited to questions of entitlement toworkers' compensation benefits. In both cases, the courts rejectedYellow Cab's independent contractor argument and found theexistence of an employer-employee relationship under a writtenagreement and facts that are substantially similar to those in thecase at bar.

In this appeal, Davila argues (1) a principal/agentrelationship existed or was sufficiently disputed to precludesummary judgment in Yellow Cab's favor; and (2) Yellow Cab can beheld liable for tortious conduct in furtherance of its business,regardless of whether the conduct was intentional or criminal.

Summary judgment permits the trial court to determine whetherany genuine issue of material fact exists, but it does not permitthe trial court to try such an issue. Pyne v. Witmer, 129 Ill. 2d351, 357-58, 543 N.E.2d 1304 (1989). Summary judgment isencouraged in the interest of the prompt disposition of lawsuits,but it is a drastic measure which should be granted only when thepleadings, depositions, affidavits, and admissions on file, whenreviewed in the light most favorable to the nonmovant, show thatthere is no genuine issue as to any material fact and that themoving party's right to judgment is clear and free from doubt. Pyne, 129 Ill. 2d at 358. " 'Summary judgment must be awarded withcaution to avoid prempting a litigant's right to trial by jury orthe right to fully present the factual basis of a case where amaterial dispute may exist ***.' [Citation.]" Schrager v. NorthCommunity Bank, 328 Ill. App. 3d 696, 703, 767 N.E.2d 376 (2002). " 'A triable issue of fact exists where there is a dispute as to amaterial fact or where, although the facts are not in dispute,reasonable minds might differ in drawing inferences from thosefacts.' [Citation.]" Schrager, 328 Ill. App. 3d at 703.

In cases involving summary judgment motions, we conduct a denovo review of the evidence in the record. Schrager, 328 Ill. App.3d at 702. " '[W]e are free to consider any pleadings,depositions, admissions, and affidavits on file at the time of thehearing regardless of whether facts contained therein werepresented to the trial court in response to the motion for summaryjudgment.' [Citation.]" Schrager, 328 Ill. App. 3d at 703. Reversal " 'is warranted where, on review, a material issue of factor an inaccurate interpretation of the law exists.' [Citation.] " Schrager, 328 Ill. App. 3d at 703.

We disagree with the trial court's conclusion that Yellow CabCo. v. Industrial Comm'n, 124 Ill. App. 3d 644, 464 N.E.2d 1079(1984) (Yellow Cab I), and Yellow Cab Co. v. Industrial Comm'n, 238Ill. App. 3d 650, 606 N.E.2d 523 (1992) (Yellow Cab II), arelimited to questions of entitlement to workers' compensationbenefits. The standard used in determining whether an employer-employee relationship exists in a workers' compensation context isno different from the standard used in a vicarious liabilitycontext. Gunterberg v. B&M Transportation Co., 27 Ill. App. 3d732, 737-38, 327 N.E.2d 528 (1975) (standard used to determineemployee or independent contractor status is not affected bywhether question arises in context of workers' compensationcoverage or respondeat superior); Hamilton v. Family Record Plan,Inc., 71 Ill. App. 2d 39, 47-48, 217 N.E.2d 113 (1966)(determination of employee or independent contractor status is thesame in workers' compensation and respondeat superior cases).

In Yellow Cab I, the court indicated that a lease agreementbetween Yellow Cab and a cab driver disclaiming an employer-employee relationship was not dispositive of the cab driver'sstatus. Yellow Cab, 124 Ill. App. 3d at 647. See also Tansey v.Robinson, 24 Ill. App. 2d 227, 234, 164 N.E.2d 272 (1960) (writtencontract between grocery store and delivery man not conclusive oftheir relationship). The nature of the relationship "depends uponthe actual practice followed by the parties and, as a general rule,becomes a mixed question of law and fact to be submitted uponproper instructions to a jury." Tansey, 24 Ill. App. 2d at 233-34. The question of whether a relationship of employer and employee,principal and agent, or owner and independent contractor existeddepends upon the facts of a given case. Tansey, 24 Ill. App. 2d234. "Unless those facts clearly appear, the relationship cannotbecome purely a question of law." Tansey, 24 Ill. App. 2d at 234.

" 'No one factor may determine what [the]relationship is between parties in a givencase. It may be necessary to consider anumber of factors with evidentiary value, suchas the right to control the manner in whichthe work is done, the method of payment, theright to discharge, the skill required in thework to be done, and who provides the tools,materials, or equipment. Of these factors theright to control the manner in which the workis done is the most important in determiningthe relationship.' " Yellow Cab II, 238 Ill.App. 3d at 652, quoting Morgan Cab Co. v.Industrial Comm'n, 60 Ill. 2d 92, 97-98, 324N.E.2d 425 (1975).

Additionally, it is the right of control, not the fact ofcontrol, that is the principal factor in distinguishing a servantfrom a contractor. Gunterberg, 27 Ill. App. 3d at 738.

Accordingly, in Yellow Cab I, the court found that a number offactors established that Yellow Cab had a right to control themanner in which work was done under a 24-hour cab lease. YellowCab, 124 Ill. App. 3d at 647. All of the cabs were uniform inappearance and had the company's name and telephone number on them. Yellow Cab maintained the right to terminate or refuse to renew the24-hour lease. The driver was not permitted to sublet the cab, wasinstructed to purchase his gas at the company garage, and wasrequired to report mileage at the end of the lease period. YellowCab derived goodwill from the public presence of the well-maintained cabs. Roadmen filled out observation reports on thecondition of the cabs. Yellow Cab performed routine maintenanceand repairs, and if the cab broke down within a six-county area,Yellow Cab would make the necessary repairs or tow the cab andprovide another cab if one were available.

Based on these facts, the court concluded that despite thelease agreement's employment relationship disclaimer, the recordclearly indicated that Yellow Cab's interest in its cabs did notcease with their leasing, but extended to their operation (YellowCab, 124 Ill. App. 3d at 647), and that Yellow Cab was in thebusiness of operating a fleet a cabs for public use (Yellow Cab,124 Ill. App. 3d at 648). Accordingly, there was sufficientevidence to conclude the cab driver was an employee of Yellow Cab. Yellow Cab, 124 Ill. App. 3d at 648.

Yellow Cab II, 238 Ill. App. 3d 650, 606 N.E.2d 523, bearseven more resemblance to the instant case, because it also involveda long-term lease, rather than the series of 24-hour leases inYellow Cab I. The court stated:

"Unquestionably, several factors whichother courts have relied upon in analyzing thecontrol factor, such as the requirement thatgasoline be purchased and repairs done at theemployer's garage, use of radio assignments orcontrol of shifts and assignments, are notpresent in this case. However, several of themost important factors which courts haverelied upon in determining that anemployer/employee relationship existed betweenthe parties do indeed exist in the presentcase. Here, claimant was required to keep thevehicle in running condition, and the employerhad the right to inspect the vehicle, sign andmeter at a time and place the employerdesignated. Claimant was required to keep theemployer's name upon the vehicle and could notpaint it any color other than yellow. Theemployer was entitled to terminate the lease'with or without cause,' a provision thatsuggests an employer/employee relationship. Subletting of the vehicle to any other than anemployer-authorized individual (with a validpublic chauffeur's license) was prohibited." Yellow Cab, 238 Ill. App. 3d at 654.

In light of these facts, Yellow Cab II concluded that the cabcompany was not simply leasing vehicles, but was in the business ofproviding a fleet of cabs for public use. Yellow Cab, 238 Ill.App. 3d at 654-55. The court declined to respond to Yellow Cab'sassertion that it did not insist that the cab driver actuallyoperate the vehicle as a taxicab, because this assertion contradicted the express language of the lease ("Lessee thereby andhereby leases the Automobile as a taxicab"), and the very reasonfor some of the lease's requirements. Yellow Cab, 238 Ill. App. 3dat 654-55. Accordingly, the court affirmed the determination of anemployer-employee relationship between Yellow Cab and the cabdriver. Yellow Cab, 238 Ill. App. 3d at 655.

In the instant case, the relationship between Yellow Cab andWilliams was described in four documents. The first was entitled"Yellow Cab Company Driver Information Packet" and was given toWilliams as part of his orientation to the company. During adeposition on January 8, 2001, Jeffrey Feldman, Yellow Cab'spresident between February 1982 and March 2000, stated that theorientation consisted of a three-hour "indoctrination addressingoperations of a Yellow Cab," and it was required of all Yellow Cabdrivers regardless of whether they had been driving for anothercompany or not. Feldman estimated that Yellow Cab owned 2,246 ofthe 5,700 cabs operating in Chicago in 1996. The second documentwas entitled "Terms and Conditions," and Feldman referred to thiscontract as a "master lease" during his January 8, 2001 deposition. The third and fourth documents were entitled "Daily Lease withOption to Buy" (a two-year contract) and "Service Agreement."

According to these documents and Feldman's depositiontestimony, Williams' relationship with Yellow Cab was similar tothe driver's relationship with Yellow Cab in Yellow Cab II. Although Yellow Cab did not require Williams to work any shifts orlocations, Yellow Cab provided the cab, cab medallion, meter, andtaxi dome light on the roof of the vehicle, and specified it wasleasing the vehicle to Williams as a "taxicab." The cab was partof uniformly painted fleet of nearly half the cabs operating inChicago in 1996, and Williams was prohibited from changing itsappearance in any way. Williams was also to be the sole driver,unless Yellow Cab authorized a sublettor. Williams was instructedto issue meter-printed or hand-completed receipts bearing YellowCab's name, and to accept Yellow Cab coupons and charges to YellowCab's corporate and individual charge accounts. Williams was askedto use the cab's heater and air conditioner for the comfort of hispassengers, to turn the cab's radio down or off when a passengerentered the cab, and to clean the interior of the cab often, and hewas "encouraged" to use Yellow Cab's car washing facilities. Williams was required to keep the vehicle and meter in satisfactoryrepair and running condition, and to report any accidents to YellowCab's insurer.

Furthermore, Yellow Cab's influence over Williams' operationof the cab did not stop with these requests, instructions andprohibitions. Yellow Cab reserved the right to inspect the vehicleand meter at any time and place Yellow Cab designated. Accordingto Feldman, Yellow Cab placed a bumper sticker on the back of thecab that read "How Am I Driving" and provided Yellow Cab'stelephone number. Yellow Cab also reserved the right to terminatethe lease under a number of circumstances, including if Williamsviolated "any term, provision or condition of [the Daily] Lease orthe Service Agreement," or failed to follow "any applicable laws,ordinances and governmental rules and regulations."

Accordingly, we disagree with the trial court's conclusionthat, "There's nothing to indicate that the cab company in any wayhad control over the way in which the driver did his business." Wealso disagree with the trial court's determination that Yellow Cabwas "leasing the cab, and from there, the cab driver takes it anddoes whatever he wants with it," and "as to how he goes about hisbusiness, [there isn't] anything that really would even *** raisea question of fact about whether he's an agent." Based on evenfewer indications of a right to control, Yellow Cab II concludedthat Yellow Cab was not simply in the business of leasing vehicles(Yellow Cab, 238 Ill. App. 3d at 654) and that an employer-employeerelationship existed (Yellow Cab, 238 Ill. App. 3d at 655).

The trial court emphasized that Williams paid Yellow Cab aflat leasing fee regardless of what Williams earned while operatingthe taxicab, and appears to have been referring to the analysis inMetro East Cab Co. v. Doherty, 302 Ill. App. 3d 402, 705 N.E.2d 947(1999), which concluded that a cab company and driver were lessorand lessee rather than employer and employee because there was noevidence of "economic interdependence" between them. Metro East isa Fifth District opinion and therefore not binding authority in theFirst District. State Farm Fire & Casualty Co. v. Yapejian, 152Ill. 2d 533, 605 N.E.2d 539 (1992). We do not consider Metro Eastrelevant, particularly when Yellow Cab I and Yellow Cab II, FirstDistrict cases, involve the same cab company and substantiallysimilar contracts and facts as the case at bar.

Based on the reasoning in Yellow Cab I and Yellow Cab II andthe facts disclosed by the record, we conclude that materialquestions of fact exist as to whether Williams was an employee oragent of Yellow Cab on October 31, 1996, and that summary judgmenton this issue was erroneous. Pyne, 129 Ill. 2d at 358 (summaryjudgment is warranted when there is no genuine issue as to anymaterial fact and the moving party's right to judgment is clear andfree from doubt); Schrager, 328 Ill. App. 3d at 703 (triable issueof fact exists where there is a dispute as to a material fact orwhere reasonable minds might differ in drawing inferences fromundisputed facts).

The trial court did not make any specific findings aboutwhether Williams was acting within the scope of employment, butquestioned whether Yellow Cab could be held liable for Williams'conduct after Williams was convicted of an intentional crime. Yellow Cab contends that Williams was convicted of battery inconjunction with the incident at Lake and LaSalle Streets, andcites American Family Mutual Insurance Co. v. Savickas, 193 Ill. 2d378, 739 N.E.2d 445 (2000), for the proposition that Williams isestopped from relitigating the issue of intent in this subsequentcivil proceeding.

It is unclear from the record whether Williams was in factconvicted, or even charged, with any crime as a result of theincident at Lake and LaSalle Streets. Yellow Cab has not providedevidence of any criminal proceedings and is citing only its ownmotion for summary judgment in support of this claim. The motionrefers to an attached "Report of [Criminal] Proceedings," but thereare no attachments to the motion in the record on appeal. Incontrast, in Savickas, 193 Ill. 2d 378, the moving party provideda certified copy of Savickas' conviction for first degree murder,a copy of the appellate court opinion affirming that conviction,and transcripts of Savickas' trial testimony in which Savickasadmitted that the gun did not go off accidentally and that he hadintentionally aimed and fired the gun at the decedent. Savickas,193 Ill. 2d at 381-82. Here, Yellow Cab's unsupported statementsdo not adequately establish that Williams litigated the issue ofintent and, therefore, is now prohibited from relitigating theissue in this action. Furthermore, collateral estoppel can only beasserted against a party who was a party or was in privity with aparty to a prior adjudication. Savickas, 193 Ill. 2d at 387;Illinois State Chamber of Commerce v. Pollution Control Board, 78Ill. 2d 1, 7, 398 N.E.2d 9 (1979). Savickas does not stand for theproposition that one third party may use a criminal convictionagainst another third party in a later civil proceeding.

More importantly, under the doctrine of respondeat superior,an employer can be held vicariously liable for the tortious acts ofits employees (Pyne, 129 Ill. 2d at 359), including negligent,wilful, malicious, or even criminal acts of its employees when suchacts are committed in the course of employment and in furtheranceof the business of the employer (Brown v. King, 328 Ill. App. 3d717, 722, 767 N.E.2d 357 (2001)). "Whether or not the employee'sact is intentional or merely negligent is not the defining factor. Instead, the focus is on whether or not the act was performedwithin the 'scope of employment'." Hargan v. Southwestern ElectricCooperative, Inc., 311 Ill. App. 3d 1029, 1032, 725 N.E.2d 807(2000). Thus, assuming that Williams was Yellow Cab's employee,the dispositive issue was not whether Williams acted intentionally,but whether his intentional, negligent, or even criminal acts werewithin the scope of employment.

The term "scope of employment" had not been precisely defined,but Illinois uses the following criteria in determining whether anact is within the scope of employment:

" '(1) Conduct of a servant is within thescope of employment if, but only if:

(a) it is of the kind he isemployed to perform;

(b) it occurs substantiallywithin the authorized time and spacelimits;

(c) it is actuated, at least inpart, by a purpose to serve themaster, ***

***

(2) Conduct of a servant is not withinthe scope of employment if it is different inkind from that authorized, far beyond theauthorized time or space limits, or too littleactuated by a purpose to serve the master.' " Pyne, 129 Ill. 2d at 359-60, quotingRestatement (Second) of Agency