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Docket No. 92238-Agenda 15-March 2002.

ROSS WAYNE EVANS et al., Indiv. and Co-Adm'rs of the 
Estate of Timothy Michael Evans, Deceased, Appellees, v. 
DERRICK SHANNON et al. (Vogler Motor Company, Inc.,
Appellant).

Opinion filed August 29, 2002.

CHIEF JUSTICE HARRISON delivered the opinion of thecourt:

Timothy Evans died as a result of injuries he sustained whenhis vehicle collided with a car negligently driven by defendantDerrick Shannon. The car Shannon was driving at the time of theaccident, a Mercury Sable station wagon, was owned by defendantVogler Motor Company and had been entrusted the previous dayto defendant Robert Margrum, doing business as Bob's Clean UpShop, for detailing and cleaning services. Shannon, acting in hiscapacity as Margrum's employee, had taken possession of theVogler vehicle and had driven it to Margrum's place of business,wherein the car was locked up for the night. At some point thatevening, after regular business hours, Shannon returned to theshop and, without authority, took the car for his own use. He wasintoxicated and driving the vehicle when he crossed the centerlineof the highway and collided with Timothy Evans' car. Shannondid not have a valid driver's license at the time of the collision.

The parents of Timothy Evans brought wrongful-death andsurvivor actions, as co-administrators of the estate of TimothyEvans and individually. Plaintiffs' action against Vogler was basedin pertinent part on a theory of negligent entrustment of Vogler'scar to Derrick Shannon, Margrum's employee. A jury ultimatelyfound all three defendants liable, but found Vogler only 9% liable.Initially, the circuit court entered judgment on the verdict andgranted several liability as to Vogler, based upon the percentageof negligence attributed to Vogler by the jury. However, after amotion for reconsideration, the circuit court entered joint liabilityas to all defendants. Noting that this court in Best v. TaylorMachine Works, 179 Ill. 2d 367 (1997), had held section 2-1117of the Code of Civil Procedure (Code) (735 ILCS 5/2-1117 (West1996) (amended by Public Act 89-7, eff. March 9, 1995))unconstitutional, the circuit court ruled that the prior version ofthe statute (735 ILCS 5/2-1117 (West 1994) (providing for severalliability if degree of fault is determined to be less than 25% andjoint and several liability if the degree of fault is determined to be25% or more)) was unconstitutional as well, finding that itarbitrarily establishes "different types of liability solely dependentupon the percentage of fault," attributed to individual defendantsand "is contrary to the common law of this state as interpreted bythe Supreme Court of Illinois."

From the circuit court's ruling, Vogler brought this directappeal pursuant to Supreme Court Rule 302(a)(1) (134 Ill. 2d R.302(a)(1)). Because we find that Vogler's motions for directedverdict and judgment notwithstanding the verdict were improperlydenied, we reverse the judgment of the circuit court as it pertainsto Vogler and remand this cause for assessment of damagesagainst only Shannon and Margrum. Thus, we need not reach theconstitutional issue in this case. We set forth below a briefstatement of the applicable standards of review and the pertinentfacts.

A denial of a motion for judgment notwithstanding theverdict, like an adverse ruling on a motion for directed verdict, isreviewed under the de novo standard. Donaldson v. CentralIllinois Public Service Co., 199 Ill. 2d 63, 89 (2002); Edwards v.Paddock Publications, Inc., 327 Ill. App. 3d 553, 562 (2001)."[V]erdicts ought to be directed and judgments n.o.v. entered onlyin those cases in which all of the evidence, when viewed in itsaspect most favorable to the opponent, so overwhelmingly favorsmovant that no contrary verdict based on that evidence could everstand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510(1967). See also Donaldson, 199 Ill. 2d at 89; Maple v. Gustafson,151 Ill. 2d 445, 453 (1992).

Following is a comprehensive summary of the trial testimonywe consider pertinent to the issue of negligent entrustment.Consistent with applicable standards of review, we have taken careto include even marginal evidence favorable to the plaintiffs, andthat which is arguably relevant.

Dennis Rathjen, vice-president and sales manager of Vogler,testified that Vogler had utilized the services of Margrum'sbusiness for a number of years and had never had any problemswith his work. Prior to the March 5, 1996, collision, Rathjen hadperceived Margrum as a reputable business owner who hired onlyreputable employees. Before March of 1996, Vogler had never hada car stolen while in Margrum's possession, nor had a Voglervehicle been involved in a collision. Based upon their relationshipup to that point in time, Vogler's management trusted Margrum.

Rathjen testified that, as a matter of policy, Vogler allowedonly licensed drivers to operate its cars. Rathjen assumed thatMargrum had performed background checks on his employees andhad verified that they had driver's licenses. Rathjen consideredthat Margrum's responsibility. Vogler personnel did not ask to seethe licenses of Margrum's employees when they came to pick upVogler's cars. Had Rathjen known Margrum was using unlicenseddrivers, it would have been cause to terminate their businessrelationship. Rathjen conceded it would have taken "about fiveseconds" to verify that Margrum's drivers were licensed when theycame to get Vogler's cars. Rathjen supposed Vogler would havehad the authority to ask for verification of a valid license had itchosen to do so. The procedure in place, however, merely requiredthat an inventory sheet show which Vogler employee had providedMargrum's employee the keys for the car to be detailed.

Rathjen was aware of one instance when a Margrumemployee (Jerome Wooley) was seen in a Vogler car at the drive-up window of the ABC Liquor Store in Carbondale, Illinois (themunicipality in which both businesses were located); however,Rathjen said he would not have complained to Margrum, as thedetour was at most 50 yards off the route from Vogler toMargrum's business and the employee in question was purportedlyonly buying cigarettes.

Frank Black, Vogler's president and majority stockholder,testified there was no policy in place to check Margrum'semployees for driver's licenses. He felt that was Margrum'sresponsibility. Black said he expected Margrum to check out hisemployees, "[s]ame as any other contractor I do business with." Inthat respect, Black rejected plaintiffs' counsel's attempt todifferentiate between a large business, like K mart, and a smallbusiness, like Margrum's. Before the accident that gave rise to thiscase, Black had never heard of any cars having been stolen fromMargrum's shop, nor of any cars in his possession having beeninvolved in a collision or having been driven recklessly. Blacktestified that a log sheet would have noted the location of a Voglervehicle and would have indicated who was in possession of it.Vogler on occasion used other detailers, and Margrum performedservices for individuals and businesses other than Vogler.

Black denied knowing about "detours" that might have beentaken with Vogler's cars while in Margrum's possession. Asked,hypothetically, what action he might have taken had he knownabout detours, Black responded that he probably would have saidsomething to Margrum about it, and he might even haveterminated the business relationship with Margrum if the detourswere "severe enough."

John Barnes, a salesman for Vogler, testified that he recalledsomeone at Vogler had arranged for detailing the Sable stationwagon through Bob's Clean Up Shop. On March 4, 1996,someone from Bob's arrived to pick up the car. Barnes recalledhearing someone say that "Bob's" was there to get the car. Barnesdid not see Bob personally come into Vogler's building or pull upoutside. Barnes handed the keys to a man he did not know andsubsequently learned was Margrum's employee Derrick Shannon.Barnes did not really look at the man's face or speak to him.Barnes simply handed him the keys and pointed to the car. Theman had what appeared to be dealer plates under his arm. The mandid not offer identification and Barnes did not ask for any. Prior toMarch of 1996, according to his own estimate, Barnes had handedover keys more than 100 times to Margrum's employees withoutever having asked to see a driver's license.

Barnes admitted it would have violated Vogler's unwrittenpolicy for Shannon to have driven the car without a valid driver'slicense. He conceded he would not have handed the keys toShannon had he known Shannon did not have a driver's license.He stated his belief that he lacked the authority to ask Margrum'semployees for license verification.

Barnes testified that he had been instructed by Rathjen toinvestigate the ABC Liquor Store incident. He spoke withMargrum, who informed Barnes that the employee in question was"no longer with him." Barnes testified that he did not trustMargrum or his employees completely after that incident. In fact,Barnes subsequently took it upon himself to check odometerreadings on Vogler cars returned by Margrum; however, prior tothe accident, he did not find excess miles on cars that had beensent to Margrum for detailing.

Jerry Bankhead testified that he was working for Margrum inMarch of 1996. When he was hired, he was not required toproduce a driver's license or fill out a job application. He wasaware of no background check undertaken by Margrum in his case.

Margrum had a rule that only an employee with a validdriver's license could drive dealer cars. He told his employees thatthe car dealers with whom he dealt required a driver's license.Margrum also warned employees about putting excess miles oncars. Bankhead stated that one employee, Singletary Johnson, hadbeen fired because he violated the latter rule. Bankhead said thatJerome Wooley was fired as a result of the ABC Liquor Storeincident, but was later rehired.

Bankhead was a friend of Derrick Shannon, with whom heworked for approximately 2