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Montgomery v. Petty Management Corp.

Case Date: 06/22/2001
Court: 1st District Appellate
Docket No: 1-99-1701 Rel

(caption corrected Aug. 2, 2001)
June 22, 2001

No. 1-99-1701

 

WALTER MONTGOMERY,

                         Plaintiff-Appellant,
          v.

PETTY MANAGEMENT CORPORATION, 

                         Defendant-Appellee(1)

(McDonald's Corporation, Defendant).

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)		 Appeal from the
Circuit Court of
Cook County.



Honorable
Sophia H.Hall,
Judge Presiding.

 

JUSTICE REID delivered the opinion of the court:

The appellant, Walter Montgomery, appeals the trial court'sgrant of summary judgment. On appeal, Montgomery contends thatthe appellee, Petty Management Corp. (PMC), is liable fornegligence: (1) under a theory of respondeat superior, and (2)due to negligent hiring. For the reasons that follow, we affirm.

On June 18, 1994, Montgomery, who was 72 years of age,entered a McDonald's restaurant located at 7601 South Vincennesin Chicago, Illinois, which was owned by PMC. As Montgomery waswaiting in line to place his order, a McDonald's employee,Demetrius Holmes, who was dressed in street clothes, approachedthe counter and requested a drink.

Montgomery thought that Holmes was cutting the line. Anargument between the two ensued, which escalated into afistfight. It is uncertain who started the fight. Both menclaim that the other threw the first punch. The fight ended withHolmes kicking Montgomery as he lay on the floor, before peoplewere able to separate them. Holmes claims that after the twowere separated, Montgomery pulled a knife and attempted to attackhim. Montgomery denied the allegations. After the fight, Holmeswas pulled into the back of the restaurant away from Montgomery.

It is disputed as to whether Holmes was working when thealtercation occurred. In his deposition, Holmes stated that hehad changed out of his uniform and into his street clothesbecause his shift had ended and he was in the process of leavingthe store when the fight occurred. Holmes was required to punchhis time card whenever a shift or break started or ended. However, on the day of the fight there were five punches onHolmes' time card.

Holmes' supervisor, Renee Thorpe, testified during herdeposition that the altercation took place while Holmes was "offthe clock." Thorpe stated that she did not know the exact timethat the fight took place. She said that she knew Holmes was"off the clock" because approximately 15 minutes before the fightoccurred she had asked Holmes to punch out because his shift hadended.

Montgomery initially brought suit against PMC, Holmes,McDonald's Corporation, manager Earl Reeves, and assistantmanager Renee Thorpe. All defendants were granted summaryjudgment except Holmes, who was voluntarily dismissed. Montgomery now appeals the grant of summary judgment as to PMC.

Since this appeal arises from an order granting summaryjudgment, the standard of review is de novo. Aetna Casualty &Surety Co. v. Allsteel, Inc., 304 Ill. App. 3d 34, 39 (1999). The judgment sought shall be rendered without delay if thepleadings, depositions, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgmentas a matter of law. 735 ILCS 5/2-1005(c) (West 2000). In rulingon a motion for summary judgment, the trial court must view allevidence in the light most favorable to the nonmovant. Boldiniv. Owens Corning, 318 Ill. App. 3d 1167, 1170 (2001).

Montgomery contends that the trial court erred in findingthat Holmes was not acting within the scope of his employment atthe time of the altercation. We disagree.

For an employer to be vicariously liable for an employee'stort under the doctrine of respondeat superior, the tort musthave been committed within the scope of the employment. Pyne v.Witmer, 129 Ill. 2d 351, 359 (1989). No precise definition hasbeen accorded the term "scope of employment," but broad criteriahave been enunciated:

"(1) Conduct of a servant is within the scope ofemployment if, but only if:

(a) it is of the kind he is employed toperform;

(b) it occurs substantially within theauthorized time and space limits;

(c) it is actuated, at least in part, bya purpose to serve the master, ***

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(2) Conduct of a servant is not within the scopeof employment if it is different in kind from thatauthorized, far beyond the authorized time or spacelimits, or too little actuated by a purpose to servethe master. (Restatement (Second) of Agency