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SIXTH DIVISION

May 17, 2002

Plaintiff, Adolphus Gant, appeals from an order of the trial court dismissing count II ofhis first amended complaint against defendant, L.U. Transport, Inc. We affirm.

On February 14, 1998, a motor vehicle accident occurred on the Dan Ryan Expresswaynear the 95th Street interchange in Chicago, Illinois, resulting in a seven vehicle pile-up. At thetime, plaintiff was operating a tandem tractor-trailer in the course of his employment. Directlybehind plaintiff, an employee of defendant was operating a tractor-trailer in the course of hisemployment. The front of the vehicle operated by defendant's employee struck the rear of thevehicle operated by plaintiff.

Plaintiff filed a two-count first amended complaint against defendant to recover for theinjuries he sustained as a result of the accident. Count I alleged negligence under a theory ofrespondeat superior. Count II alleged negligence under the theory of negligent hiring andretention. In its answer, defendant admitted the allegations in count I. Defendant filed a motionto dismiss count II on the ground that an employer who has admitted respondeat superiorresponsibility for the conduct of its employees cannot also be sued for negligent hiring orretention of that employee. The trial court granted defendant's motion to dismiss count II. Thedismissal order contained a Rule 304(a) (155 Ill. 2d R. 304(a)) finding. Plaintiff now appeals.

We first address the threshold issue of whether we have jurisdiction over this appeal. Although plaintiff has stated that this court has jurisdiction pursuant to Supreme Court Rule304(a) (155 Ill. 2d R. 304(a)), defendant contends that this court lacks jurisdiction over thisappeal.

Rule 304(a) provides, in relevant part, as follows:

"(a) Judgments As To Fewer Than All Parties or Claims--Necessity forSpecial Finding. If multiple parties or multiple claims for relief are involved inan action, an appeal may be taken from a final judgment as to one or more butfewer than all of the parties or claims only if the trial court has made an expresswritten finding that there is no just reason for delaying either enforcement orappeal or both." 155 Ill. 2d R. 304(a).

If, however, the trial court's order was not in fact final, the mere fact that the order contains therequired Rule 304(a) language does not make the order final and appealable. Sloma v. ArensControls, Inc., 269 Ill. App. 3d 666, 670, 645 N.E.2d 238, 240 (1993).

Defendant asserts that, despite the fact that the trial court's order contained the requisiteexpress written finding required by Rule 304(a) language, this court has no jurisdiction over thismatter. Citing Viirre v. Zayre Stores, Inc., 212 Ill. App. 3d 505, 571 N.E.2d 209 (1991),defendant argues that the trial court's order did not dismiss plaintiff's entire negligence claim. We believe the instant case is distinguishable from Viirre, which involved a single negligenceclaim. As the court in Viirre explained, the statement of a single claim in several ways does notwarrant a separate appeal. Viirre, 212 Ill. App. 3d at 512, 571 N.E.2d at 214.

Generally, the controlling factor in determining whether an order appealed under Rule304(a) is a final order is whether the bases for recovery under the dismissed counts are differentfrom those under the counts left standing. Sloma, 269 Ill. App. 3d at 670, 645 N.E.2d at 241. InViirre, plaintiff's single-count complaint did not involve multiple claims, but only a single claimof negligence. By contrast, plaintiff here has filed a two-count complaint, involving differentclaims of negligence: (1) negligence under a theory of respondeat superior, and (2) negligenthiring, retention and entrustment. These are separate and distinct claims with separate bases forrecovery. An employer's liability under a respondeat superior theory for the acts of itsemployees is distinct from its liability for negligent hiring, retention or entrustment. See, e.g.,Montgomery v. Petty Management Corp., 323 Ill. App. 3d 514, 519, 752 N.E.2d 596, 600(2001). A negligence claim brought under a respondeat superior theory is based upon anemployer's vicarious liability for the wrongful acts of its employees. By contrast, a negligenceclaim brought under a theory of negligent hiring or retention is based upon the employer'snegligence in hiring or retaining the employee, rather than the employee's wrongful act. VanHorne v. Muller, 185 Ill. 2d 299, 311, 705 N.E.2d 898, 905 (1998).

Because the basis for recovery under the count that was dismissed, negligent hiring,retention and entrustment, is different from the basis for recovery under the count left standing,negligence based upon a respondeat superior theory, this court has jurisdiction, pursuant toSupreme Court Rule 304(a), over the trial court's order dismissing count II of plaintiff's amendedcomplaint. Hence, we shall address the merits of plaintiff's appeal.

Our review of the trial court's order granting defendant's motion to dismiss under section2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2000)) is de novo. Kedzie &103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993). Theissue presented for review is whether a plaintiff who is injured in a motor vehicle accident canmaintain a claim for negligent hiring, retention and entrustment against an employer where theemployer admits responsibility for the conduct of the employee under a respondeat superiortheory. The trial court here determined that the count based on negligent hiring, retention andentrustment could not stand under the holdings of this court in Ledesma v. Cannonball, Inc., 182Ill. App. 3d 718, 538 N.E.2d 655 (1989), and Neff v. Davenport Packing Co., 131 Ill. App. 2d791, 268 N.E.2d 574 (1971). Plaintiff now argues that Ledesma and Neff are no longerapplicable in view of the adoption of comparative negligence by the Illinois Supreme Court inAlvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886 (1981).

In 1971, the Neff court agreed with the majority view that once an employer admitsresponsibility under respondeat superior, a plaintiff may not proceed against the employer onanother theory of imputed liability such as negligent entrustment or negligent hiring. See Neff,131 Ill. App. 2d at 792-93, 268 N.E.2d at 575 (and cases cited therein). This remains the view ofthe majority of jurisdictions. See McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. 1995) (and casescited therein). The rationale for this rule was explained by the Neff court as follows:

"[I]ssues relating to negligent entrustment become irrelevant when the party socharged has admitted his responsibility for the conduct of the negligent actor. The liability of the third party in either case is predicated initially upon thenegligent conduct of the driver and absent the driver's negligence the third partyis not liable. Permitting evidence of collateral misconduct such as otherautomobile accidents or arrests for violation of motor vehicle laws would obscurethe basic issue, namely, the negligence of the driver, and would inject into the trialindirectly, that which would otherwise be irrelevant." (Emphasis added.) Neff, 131Ill. App. 2d at 792-93, 268 N.E.2d at 575.

In 1989, this court reaffirmed the Neff holding and its rationale in Ledesma v.Cannonball, Inc., 182 Ill. App. 3d 718, 538 N.E.2d 655 (1989). Plaintiff now argues that,because Illinois became a comparative negligence jurisdiction in 1981, Ledesma was wronglydecided in 1989 and urges us to overrule the decision. Although the Ledesma court did notaddress the issue of the applicability of the Neff holding in a comparative negligence jurisdiction,we reaffirm Ledesma v. Cannonball, Inc., 182 Ill. App. 3d 718, 538 N.E.2d 655 (1989), and findthat Neff v. Davenport Packing Co., 131 Ill. App. 2d 791, 268 N.E.2d 574 (1971), is stillapplicable. Notwithstanding the fact that Illinois is a comparative negligence jurisdiction, aplaintiff who is injured in a motor vehicle accident cannot maintain a claim for negligent hiring,negligent retention or negligent entrustment⁽¹⁾ against an employer where the employer admitsresponsibility for the conduct of the employee under a respondeat superior theory.

In a motor vehicle accident, comparative fault as it applies to the plaintiff should end withthe parties to the accident. A plaintiff's comparative negligence remains the same, regardless ofwhether the remaining fault can be allocated in part to the employer based on negligententrustment. Although negligent entrustment may establish independent fault on the part of theemployer, it should not impose additional liability on the employer. The employer's liabilityunder negligent entrustment, because it is predicated initially on, and therefore is entirelyderivative of, the negligence of the employee, cannot exceed the liability of the employee. Regardless of whether the employer is actually guilty of the separate tort of negligententrustment, the employer who concedes responsibility under the theory of respondeat superioris strictly liable for the employee's negligence. The employer is thus responsible for all the faultattributed to the negligent employee, but only the fault attributed to the negligent employee ascompared to the other parties to the accident.

We find persuasive the following reasoning of the McHaffie court:

"The reason given for holding that it is improper for a plaintiff to proceedagainst an owner of a vehicle on the independent theory of imputed negligencewhere respondeat superior is admitted has to do with the nature of the claim. Vicarious liability or imputed negligence has been recognized under varyingtheories, including agency, negligent entrustment of a chattel to an incompetent,conspiracy, the family purpose doctrine, joint enterprise, and ownership liabilitystatutes. If all of the theories for attaching liability to one person for thenegligence of another were recognized and all pleaded in one case where theimputation of negligence is admitted, the evidence laboriously submitted toestablish other theories serves no real purpose. The energy and time of courts andlitigants is unnecessarily expended. In addition, potentially inflammatoryevidence comes into the record which is irrelevant to any contested issue in thecase. [Citations.] Once vicarious liability for negligence is admitted underrespondeat superior, the person to whom negligence is imputed becomes strictlyliable to the third party for damages attributable to the conduct of the person fromwhom negligence is imputed. The liability of the employer is fixed by the amountof liability of the employee. [Citation.] This is true regardless of the 'percentageof fault' as between the party whose negligence directly caused the injury and theone whose liability for negligence is derivative." (Emphasis added.) McHaffie,891 S.W.2d at 826.

As the McHaffie court explained, allowing the simultaneous submission of these two separatetheories would create the possibility that an employer's negligent entrustment of a vehicle to anemployee would result in a greater percentage of fault to the employer than is attributable to theemployee. That, the McHaffie court stated, is "plainly illogical."McHaffie, 891 S.W.2d at 827. We agree with the reasoning of the McHaffie court.

The doctrine of respondeat superior and the doctrine of negligent entrustment are simplyalternative theories by which to impute an employee's negligence to an employer. Under eithertheory, the liability of the principal is dependent on the negligence of the agent. If it is notdisputed that the employee's negligence is to be imputed to the employer, there is no need toprove that the employer is liable. Once the principal has admitted its liability under a respondeatsuperior theory, such as in the instant case, the cause of action for negligent entrustment isduplicative and unnecessary. To allow both causes of action to stand would allow a jury toassess or apportion a principal's liability twice. The fault of one party cannot be assessed twice,regardless of the adoption of comparative negligence.

We do not believe that the Illinois Supreme Court's decision in Lockett v. Bi-State TransitAuthority, 94 Ill. 2d 66, 445 N.E.2d 310 (1983) stands for the proposition that the adoption ofcomparative negligence rendered Neff no longer viable. The Lockett court held that Neff 'srationale does not apply when the entrustment alleged is willful and wanton. The instant caseinvolves allegations of negligent entrustment. Thus, Neff is apposite; Lockett is inapposite.

In view of the foregoing, we conclude that the holdings of Ledesma v. Cannonball, Inc.,182 Ill. App. 3d 718, 538 N.E.2d 655 (1989), and Neff v. Davenport Packing Co., 131 Ill. App.2d 791, 268 N.E.2d 574 (1971), are still applicable in Illinois. We hold that Illinois' adoption ofcomparative negligence did not affect the rule that once an employer admits responsibility underrespondeat superior, a plaintiff may not proceed against the employer on a theory of negligenthiring, negligent retention or negligent entrustment. We affirm the order of the circuit court ofCook County granting defendant's motion to dismiss count II of plaintiff's first amendedcomplaint.

Affirmed.

BUCKLEY and O'BRIEN, JJ. concur.

1. Count II of plaintiff's amended complaint was titled "Negligent Hiring and Retention"but contained allegations of negligent hiring, retention and entrustment. For our purposes here,the analysis is the same as to all three theories. Thus, consistent with the opinion of the court inNeff, we shall hereinafter refer to the theory of negligent entrustment.