Reference no: EM131281578
Mark Livigni was manager of the National Super Markets, Inc., store in Cahokia, Illinois. After drinking alcoholic beverages one evening, he stopped by the store to check the operation and observed a 10-year-old boy's unacceptable behavior outside the store. Livigni chased the boy to a car, where he then pulled a 4-year-old child named Farris Bryant from the car and threw him through the air. A multicount lawsuit was brought against National and Livigni.
A verdict was rendered against National for $20,000 on a respondeat superior theory for the battery of Farris Bryant. A verdict was also rendered against National for $15,000 in negligent retention of Livigni and for $115,000 punitive damages for willful and wanton retention. National appealed the trial court's denial of its motions for directed verdicts on these counts.] MAAG, J.... On March 18,1987, while off duty, Livigni stopped by the Cahokia National store. As manager, he was authorized to check and supervise the operation of the store even during off-duty hours.
He was intoxicated at the time of his visit, which was a violation of National rules.... Livigni observed a young man urinating on the store wall outside the east exit doors. He hollered at the young man and followed the fleeing youth to the parked vehicle of Diana Bryant. Livigni pulled 4-year-old Farris Bryant from the automobile, ... throwing the child through the air. Farris was taken to Centreville Township Hospital's emergency room for medical treatment. Farris was admitted to the hospital and was released after four days. He was released from all medical treatment approximately one month after the battery....
At trial, Livigni's supervisor testified that during Livigni's 17-year tenure with National, Livigni had been a good employee. This supervisor never received any reports from customers or employees that Livigni had "violent-related" problems, although he was aware of a report that Livigni threw an empty milk crate which struck a coworker.
Evidence was offered of two batteries committed by Livigni prior to his attack of Farris. In 1980, Livigni had a disagreement with a subordinate employee resulting in Livigni throwing an empty milk crate at the employee striking him on the arm and necessitating medical treatment. At the time of this battery, Livigni was an assistant store manager. A workers' compensation claim was filed against National by the injured employee. A short time after the workers' compensation claim was resolved, Livigni was promoted to store manager by National in spite of this incident.
The second battery occurred in 1985 when Livigni, while disciplining his 13-year-old son, threw the boy into a bed causing the boy to sustain a broken collar bone. In June 1986 Livigni pleaded guilty to aggravated battery to a child and was sentenced to two years' probation. He was still on probation at the time he attacked Farris. Livigni testified at the trial that he had not told any of his supervisors at National about the battery of his son. He admitted to telling employees of equal or lesser positions than himself about the battery. He considered these people to be his friends....
According to National, there was no evidence that it knew or had reason to know that Livigni was anything other than "an excellent store manager, fit for his position." To support this argument, National claims that there was conflicting evidence regarding the 1980 incident where Livigni threw a milk crate at a coworker causing injury. It argues that the 1980 incident was of uncertain origin since differing versions of the incident and its cause were presented in the evidence. It asserts that due to this conflicting evidence the incident could not form the basis for a negligent retention claim....
Rather than disciplining Livigni after he injured a subordinate employee in an unprovoked attack, National promoted him following the resolution of the injured employee's workers' compensation claim. National further argues that it had no knowledge of the incident involving Livigni's son that resulted in Livigni's felony conviction for aggravated battery of a child. Relying upon Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App.3d 576, 61 Ill.Dec. 358, National points to the general rule which states that to impute knowledge of this occurrence to National a showing was required that an agent or employee of National had notice or knowledge of the incident and that the knowledge concerned a According to National, evidence of such knowledge was lacking....
National first admits that Livigni told employees of equal or lesser rank within the corporation about the battery involving his son. However, it claims that this is insufficient notice to the corporation. It argues that the people Livigni told were his "friends" and that as mere "coworkers" of equal or subordinate position no notice could legally be imputed to National. We disagree.... Viewing the evidence in the light most favorable to the plaintiff, we believe that a reasonable jury could have concluded that the information concerning the battery of Livigni's son, learned by these coworkers, was within the scope of their authority to act upon. Whether reported to higher authorities or not, the information still constitutes "corporate knowledge." (Campen, 105 Ill. App.3d at 586....)
In such a case, their knowledge is chargeable to National.... We conclude that the circuit court did not err in denying National's motion for a directed verdict, nor did it err in refusing to grant a judgment n.o.v. on plaintiff's claim of negligent retention. Viewing the evidence in the light most favorable to the plaintiff, we cannot state that the evidence so overwhelmingly favored National that this verdict cannot stand. National next claims that the circuit court should have directed a verdict in its favor or granted a judgment n.o.v. on the plaintiff's punitive damages claim. This count alleged that National's retention of Mark Livigni as a management employee constituted willful and wanton misconduct....
The Restatement (Second) of Torts, section 909, at 467 (1977) provides: "Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, *** (b) the agent was unfit and the principal or a managerial agent was reckless in ... retaining him." This count did not seek to impose liability upon the defendant vicariously. Rather, the plaintiff's cause of action alleged wrongful conduct on the part of National itself. Section 909(b) of the Restatement (Second) of Torts speaks directly to the issue under discussion.
So too does the case of Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill.App.3d 920, 26 Ill.Dec. 313, 387 N.E.2d 1241. Easley recognized that it is settled law that a cause of action exists in Illinois for negligent hiring of an employee, and that if the defendant's conduct could properly be characterized as willful and wanton then punitive damages are recoverable. (Easley, 69 Ill.App.3d at 931, 26 Ill. Dec. at 320, 387 N.E.2d at 1248). We see little difference between a punitive damages claim for willfully and wantonly hiring an employee in the first instance and a claim for willfully and wantonly retaining an unfit employee after hiring.
In both instances, the interest to be protected is the same. Employers that wrongfully (whether negligently or willfully and wantonly) hire or retain unfit employees expose the public to the acts of these employees. In such cases it is not unreasonable to hold the employer accountable when the employee causes injury or damage to another. The principle at issue is not respondeat superior, although that may also be implicated. Rather, the cause of action is premised upon the wrongful conduct of the employer itself. (Easley, 69Ill.App.3d at 931, 26 Ill. Dec. at 320, 387 N.E.2d at 1248). For this reason, the cause of action is distinguishable from the situation in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill.2d 31, 330 N.E.2d 509, where the plaintiff sought to hold the employer responsible for an employee's acts based upon principles of vicarious liability.
The jury heard evidence that Livigni attacked a fellow employee in 1980 and was then promoted. He injured his own son, he was convicted of aggravated battery in a criminal proceeding, and members of National's management admittedly knew of that incident. National took no action. Then while a store manager, in an intoxicated state, he attacked a 4-year-old child and threw him through the air, resulting in his hospitalization. National itself characterizes this attack on young Farris as outrageous. We cannot say the jury was unjustified in concluding the same and also concluding that retaining this man as a managerial employee constituted willful and wanton misconduct.... ...
The circuit court did not err in refusing to grant a directed verdict, not did it err in refusing to grant a judgment n.o.v. on plaintiff's punitive damages claim. Finally, National asks that a judgment n.o.v. be entered in its favor on the plaintiff's respondeat superior claims. In order to impose liability upon National, it was not necessary that Livigni be motivated solely by a desire to further National's interest.
It is sufficient if his actions were prompted only in part by a purpose o protect store property or further the employer's business. (Wilson v. Clark Oil & Refining Corp. (1985), 134 Ill.App.3d 1084, 1089, 90.) The evidence was sufficient to justify such a conclusion by the jury. Finally, the actions of Livigni in attacking Farris were committed within the constraints of the authorized time and location of his employment, thus bolstering a finding that the battery occurred within the course and scope of his employment. Sunseri v. Puccia (1981), 97 Ill. App. 3d 488....
Conclusion For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed. Affirmed. JUSTICE WELCH, concurring in part and dissenting in part... I concur with the majority's opinion with respect to, and would affirm the judgment of the circuit court on the jury verdict against National Food Stores on, the respondeat superior counts of plaintiff's complaint. With respect to the majority's opinion concerning the judgment against National on the negligent and willful and wanton retention counts of plaintiffs' complaint, however I must respectfully dissent.... From a practical standpoint, the majority's opinion sends a message to all employers that in order to insulate themselves from liability for negligent or willful and wanton retention any employee who has ever had an altercation on or off the workplace premises must be fired.
Moreover, the majority opinion places an unreasonable investigative burden upon the employer by forcing the employer to discover, retain, and analyze the criminal records of its employees. Is not the majority's opinion then at cross-purposes with the established public policy and laws of Illinois protecting the privacy of citizens and promoting the education and rehabilitation of criminal offenders? See Ill. Rev. Stat. 1991, ch. 68, par. 2-103 (making it a civil rights violation to ask a job applicant about an arrest record); see also Ill. Rev.Stat.1991, ch. 38, par. 1003-12-1 et seq. (concerning correctional employment programs whose function is to teach marketable skills and work habits and responsibility to Illinois prisoners). I would have granted defendant National Food Stores' motion for judgment non obstante veredicto....
Case Questions
1. Was there respondeat superior liability in this case?
2. Should National have reasonably known about Livigni's "violent-related" problems? If so, did it act negligently in retaining him as an employee?
3. From Judge Welch's dissent, will the Livigni case hurt the employment prospects of individuals with criminal records involving violence?