                                  Illinois Official Reports

                                           Appellate Court




                             Parks v. Brinkman, 2014 IL App (2d) 130633




Appellate Court              PENNY PARKS, Plaintiff-Appellee, v. DENNIS BRINKMAN and
Caption                      LAKESIDE LEGACY FOUNDATION, Defendants (Crystal Lake
                             Jaycees, Defendant-Appellant).


District & No.               Second District
                             Docket No. 2-13-0633


Filed                        May 2, 2014



Held                         In an action for the injuries plaintiff suffered while she was
(Note: This syllabus         volunteering to help the Jaycees at an Oktoberfest event and another
constitutes no part of the   volunteer hugged her and attempted to throw her over his shoulder but
opinion of the court but     fell down and landed on top of her, the trial court erred in entering the
has been prepared by the     jury’s finding that the Jaycees were vicariously liable for the conduct
Reporter of Decisions        of the other volunteer and judgment was entered for the Jaycees, since
for the convenience of       plaintiff failed to present a prima facie case for imposing vicarious
the reader.)
                             liability, especially in the absence of sufficient evidence that the kind
                             of conduct involved in plaintiff’s injury was the kind the volunteer
                             was employed to perform and that the volunteer’s conduct was
                             motivated by a purpose to serve the Jaycees.



Decision Under               Appeal from the Circuit Court of McHenry County, No. 07-LA-464;
Review                       the Hon. Thomas A. Meyer, Judge, presiding.



Judgment                     Reversed.
     Counsel on                Daniel E. Compton, of Compton Law Group, of Elgin, for appellant.
     Appeal
                               Mark J. Vogg, Hans A. Mast, and Thomas J. Popovich, all of Law
                               Offices of Thomas J. Popovich, P.C., of McHenry, for appellee.


     Panel                     JUSTICE SCHOSTOK delivered the judgment of the court, with
                               opinion.
                               Justices Hutchinson and Spence concurred in the judgment and
                               opinion.


                                                 OPINION


¶1         This appeal arises from an incident in which Dennis Brinkman, a volunteer at an event
       staffed by the defendant, the Crystal Lake Jaycees, hugged and picked up another volunteer,
       the plaintiff, Penny Parks. Brinkman lost his balance and fell to the ground, injuring Parks.
       Parks sued, and the case went to a jury trial. The jury found the Jaycees vicariously liable for
       Brinkman’s conduct. The Jaycees appeal, arguing that the verdict was against the manifest
       weight of the evidence. We reverse, holding that the Jaycees were entitled to judgment
       notwithstanding the verdict.

¶2                                           I. BACKGROUND
¶3                                         A. Factual Background
¶4          The following facts are drawn from the trial testimony and other evidence submitted by the
       parties and are undisputed except as noted. One of the central issues at trial, as in this appeal,
       was whether hugging was “within the scope” of Brinkman’s employment as a volunteer for the
       Jaycees. Thus, much of the evidence summarized here concerns the extent to which hugging
       was either customary or encouraged at Jaycee events. Other evidence that relates only to a
       specific issue on appeal is summarized elsewhere, when that issue is discussed. Finally,
       evidence regarding other issues that are not raised in this appeal, such as Parks’ injuries and
       damages, is largely omitted.
¶5          On September 28, 2007, the Lakeside Legacy Foundation held an Oktoberfest event at the
       Dole mansion in Crystal Lake. There was a carnival on the grounds, and the Jaycees provided
       volunteers for the ticket booth, the beer tent, and security. The event began at 5 p.m. on Friday
       and continued through the weekend.
¶6          The plaintiff was in her late thirties at the time of the accident. She was not a member of the
       Jaycees, but she was familiar with the group and had participated in Jaycee events before,
       beginning in 1994. The plaintiff had lived in Minnesota for several years. She also had lived in
       Illinois at various times, however, and she moved back to Illinois a few months before the
                                                        -2-
       accident. At the time of the accident, she was working in a sub sandwich shop as a
       management trainee. Her boss, Roger (“Chip”) Whitman II, was a member of the Lakeside
       Legacy Foundation. He asked her if she would volunteer at the Oktoberfest event. He himself
       attended the Oktoberfest on Friday evening as a volunteer for Lakeside Legacy.
¶7         Noni Valicenti, the plaintiff’s sister, had been a member of the Jaycees for about 14 years.
       She was in charge of recruiting and organizing volunteers for the Oktoberfest event. She also
       asked the plaintiff to come volunteer at the event.
¶8          The plaintiff arrived at the event at about 7:15 p.m. She checked in with Valicenti, who was
       at the ticket booth, and then toured the area around the beer tent, taking pictures of volunteers
       and guests with her camera. In some of the pictures she took, Jaycees had their arms around
       each other. The plaintiff saw a number of Jaycees she knew, including Brinkman. Brinkman
       was working as a Jaycee volunteer in the beer tent, either pouring or serving beer. The plaintiff
       greeted several of the Jaycees, hugging them as she did so. She and Brinkman did not greet
       each other at that time, as he was busy.
¶9          There was conflicting evidence regarding the extent to which the plaintiff knew Brinkman
       prior to the accident. At trial, the plaintiff testified that she met Brinkman for the first time only
       a few weeks before the accident, at a wedding they both attended. After giving this testimony,
       the plaintiff was impeached with her deposition testimony that she first met Brinkman in 2004
       or 2005. The plaintiff also testified at trial that, at the wedding as well as at a Jaycee event they
       both attended shortly before the Oktoberfest, Brinkman hugged her and she hugged him back.
       Whitman testified that the plaintiff told him after the accident that she knew Brinkman well.
¶ 10       After the plaintiff took some pictures, she picked up her Jaycee volunteer’s T-shirt and
       went to the bathroom to change into it. As she was returning to the beer tent to start her shift,
       she encountered Brinkman. Brinkman greeted her and hugged her. According to the plaintiff,
       her arms were at her sides during the hug because she was not expecting the hug. Brinkman
       then picked her up in the air so that she was on his shoulder. The two of them fell over,
       Brinkman landing on top of the plaintiff. The plaintiff testified that this was not the sort of hug
       that she usually received from Jaycees; she had never been picked up before when hugging a
       Jaycee.
¶ 11       The plaintiff was dazed and injured, and after she picked herself up off the ground, she
       went to rest nearby. While she was resting, Whitman (who had heard that she had been injured)
       came and spoke with her. Whitman initially testified that the plaintiff said she had been hurt
       when Brinkman picked her up and tried to sling her over his shoulder; the plaintiff did not say
       that Brinkman embraced her. On cross-examination, however, Whitman stated that the
       plaintiff might have mentioned a hug; he did not recall. The plaintiff testified that she told
       Whitman that Brinkman hugged her and picked her up and they fell over.
¶ 12        The plaintiff then went to tell her sister what happened. Valicenti asked a fellow volunteer
       to take the plaintiff to the hospital. The plaintiff testified that she was in pain throughout the
       weekend and afterward. She returned to the Oktoberfest twice on Saturday but could not work.
       The plaintiff sustained injuries to her shoulder, neck, and back.


                                                     -3-
¶ 13       Various witnesses testified at trial regarding the role of hugging within the Jaycees. The
       plaintiff testified that she knew many Jaycees, who were like a second family to her. It was
       common for them to greet one another with hugs, although Jaycees also greeted each other
       with handshakes. She would hug Jaycees to greet them when she knew them well. The plaintiff
       testified that she allowed Brinkman to hug her at the Oktoberfest because Jaycees “always
       embraced.” When asked why, in her experience, Jaycees were “commonly greeting and
       hugging and–welcoming each other,” the plaintiff responded that it was done to show that the
       Jaycees were a friendly and warm group that others would want to be a part of.
¶ 14       Valicenti testified that the mission of the Jaycees was to promote business skills within its
       members, who were between 21 and 40 years old. (The name “Jaycees” was derived from the
       description of it as a “Junior Chamber of Commerce.”) This mission involved providing
       “opportunities for individuals to gain leadership skills, social responsibility skills, education
       skills, so that they can through their fellowship do good within the community.” The Jaycees
       sponsored a variety of community service events. The group also had a social purpose,
       promoting close relationships among its members by sponsoring purely social events, and this
       was historically one of the group’s purposes. In Valicenti’s experience, building bonds
       between the members was just as important as the community service and skill improvement
       activities.
¶ 15       At any Jaycee function, people would be greeted “by a hello, a handshake, a hug.” This
       bonding would create a positive and inviting environment. When asked whether the hugs and
       handshakes were just in “the nature of working together over time and getting to know each
       other” or whether there was also a “Jaycee purpose” to them, Valicenti responded that it was
       the nature of the Jaycee organization and also many other organizations to foster this type of
       bonding and inviting atmosphere. On cross-examination, Valicenti agreed that all similar
       organizations had a social aspect, because no one would want to join an organization full of
       unfriendly people. The friendly atmosphere encouraged by the Jaycees was expressed by
       different people in different ways; some people hugged, some did not. Jaycees who served as
       recruiters at an event were instructed to be warm and friendly, not to hug people. The Jaycees
       had no written policy of encouraging hugging.
¶ 16       Ann Brophy, a past president and vice president of the Crystal Lake Jaycees, testified that
       the Jaycees was founded to develop business and leadership skills among its members.
       Jaycee-sponsored events included training to improve members’ skills at writing and public
       speaking, leadership skills, and networking. The Jaycees also sponsored community service
       events and social events for members and prospective members. The Jaycees was an all-male
       organization until the mid-1980s, when it began accepting women members. The Jaycees had
       no policy encouraging hugging or physical contact. Greetings, handshakes, and hugs were
       common among members of the Jaycees. Picking people up was not commonly done by
       Jaycees; she had never seen this occur between Jaycees.
¶ 17       Brophy herself had many close friends among the Jaycees, and she would hug them when
       she saw them. However, that was because of the friendship, not because of any Jaycee policy.
       She would do the same even if she had gotten to know these friends through a different
       organization. There were other Jaycees whom she did not hug, because she was not as close
                                                   -4-
       with them. She had never hugged or embraced anyone for the purpose of recruiting him or her
       to join the Jaycees.
¶ 18       Brophy had known Brinkman through the Jaycees for several years; he hugged people at
       both Jaycee and non-Jaycee events. At the Oktoberfest in September 2007, Brinkman’s job as
       a volunteer was to pour or serve cups of beer; embracing people was not part of his role.

¶ 19                                       B. Procedural History
¶ 20        In December 2007, the plaintiff filed a personal injury lawsuit against Brinkman, the
       Jaycees, and the Lakeside Legacy Foundation. The plaintiff’s claim against Brinkman alleged
       that he negligently caused her personal injuries in that he “attempted to pick [her] up ***
       without the ability to do so safely”; failed to warn her that he was going to make physical
       contact with her; and “man-handled [her] in an unreasonable and unauthorized manner.” The
       claim against the Jaycees and the Lakeside Legacy Foundation alleged that Brinkman was
       acting as their agent at the time of the accident and that they negligently failed to train and
       supervise him properly.
¶ 21        The plaintiff amended her complaint in November 2009. She added the following
       allegations about Brinkman’s conduct toward her on the day of the accident: that he attempted
       to pick her up without her consent; that he committed battery by making unauthorized contact
       with her; that he was intoxicated to the point that he could not appreciate the risks of his
       conduct toward others; and that he failed to control his actions so as to avoid harm to others.
       She also added a new count II that asserted a vicarious liability claim against the Jaycees.
       Finally, she amended count III (formerly count II) to allege that the Jaycees and the Lakeside
       Legacy Foundation negligently hired, trained, and supervised Brinkman, and failed to warn
       other volunteers about Brinkman based upon his past conduct. A trial date was set, along with
       dates for the close of discovery, the filing of motions in limine, and a pretrial conference.
¶ 22        In November 2010, the attorney for Brinkman filed a motion in limine seeking to bar the
       introduction of any evidence or argument regarding any prior bad conduct by Brinkman, on the
       grounds that it would be unfairly prejudicial and irrelevant to the claim against him (Brinkman
       admitted that he had been drinking beer on the night of the accident). Brinkman also moved to
       sever the trial of the claim against him from the trial of the negligent supervision claim against
       the two organizations, because if the claims were tried together, evidence of Brinkman’s prior
       bad acts would be admissible to show the organizations’ prior notice of Brinkman’s alleged
       conduct of drinking and inappropriate touching, even though that evidence would be
       inadmissible as to Brinkman’s own liability.
¶ 23        The plaintiff opposed both motions. The Jaycees opposed the motion to sever but
       supported the motion in limine. The Lakeside Legacy Foundation also opposed severance. The
       trial court granted the motion in limine, and as a result, Brinkman withdrew his motion to
       sever.
¶ 24        On March 16, 2011, the plaintiff voluntarily dismissed Brinkman from her suit. As part of
       the dismissal, Brinkman agreed to appear and testify at trial for any party that requested him to
       do so. In April 2011, the trial court granted the Lakeside Legacy Foundation’s motion for

                                                   -5-
       summary judgment, finding that there was no evidence that Brinkman was acting as an agent
       of that organization at the time of the accident. The trial court denied the Jaycees’ motion for
       summary judgment on count III, the negligent supervision claim.
¶ 25        In May 2011, the plaintiff filed a motion to vacate the trial court’s November 2010 order
       barring evidence regarding Brinkman’s prior misconduct. The plaintiff argued that, in its
       recent ruling denying the Jaycees’ motion for summary judgment on count III, the trial court
       had referred to evidence that the Jaycees had notice that Brinkman had misbehaved in the past.
       The plaintiff sought to vacate the earlier order so that she could present evidence at trial to
       support count III. The Jaycees opposed the motion, arguing that the evidence about
       Brinkman’s prior misconduct was vague or based on hearsay.
¶ 26        On July 14, 2011, the trial court granted the plaintiff’s motion in part, vacating its previous
       ruling but only as to certain evidence. Specifically, the trial court lifted its blanket ban on
       evidence regarding Brinkman’s history of physical contact with people, the fact that Brinkman
       had been warned not to touch women, and Brinkman’s history of flirting with women and
       initiating physical contact. The trial court stated that it would rule on the admissibility of such
       evidence “as it came in” at trial.
¶ 27        About two weeks before trial, the Jaycees (hereafter, the defendant) filed a series of
       motions in limine. The trial court granted the defendant’s request to bar evidence of any “prior
       reprimands or discipline” of Brinkman by the defendant and to bar any mention of Brinkman’s
       consumption of alcohol. The defendant also asked to bar evidence that Brinkman “may have
       been known as one who was prone to hug other persons.” The trial court reserved its ruling on
       this issue.
¶ 28        A few days later, the plaintiff informed the trial court that she was dismissing count III.
       Reversing her previous position, the plaintiff then moved to bar all evidence of Brinkman’s
       misconduct on other occasions, “including unwanted contact, flirtation, advances, touching
       *** whether before or after the accident.” The defendant did not object, and the trial court
       granted the plaintiff’s motion in limine.
¶ 29        Prior to trial, the plaintiff filed an agreed “plaintiff’s statement of the case,” stating that she
       “maintain[ed] that she was injured while serving at the event *** when *** Brinkman[ ]
       picked her up and caused her to fall to the ground.”
¶ 30        The trial commenced on September 17, 2012, on the sole remaining claim: that the
       defendant should be held vicariously liable for Brinkman’s conduct that caused the plaintiff’s
       injuries. The first witness for the plaintiff was Valicenti. After the plaintiff’s attorney had
       begun to elicit testimony from Valicenti about the Jaycees’ methods of recruiting new
       members, the defendant objected and asked for a sidebar. The defendant objected that the
       plaintiff had never disclosed that she would be presenting any evidence suggesting that the
       accident “was somehow associated with recruitment.” The trial court eventually overruled the
       objection and Valicenti’s direct examination continued.




                                                      -6-
¶ 31        The second sidebar at issue occurred during the cross-examination of Valicenti.1 The
       defendant’s attorney indicated that he wished to elicit testimony regarding the fact that, before
       Brinkman started work in the beer tent on the evening of the accident, Valicenti had instructed
       him not to touch anyone. The defendant sought the trial court’s permission to inquire, because
       the court had stated that it would decide the admissibility of such evidence at trial. The plaintiff
       objected on the ground that such testimony would indicate that Brinkman was treated
       differently than other volunteers because of his prior bad acts, and testimony about his prior
       bad acts had been barred.
¶ 32        The trial court said that it thought it had ruled on the issue. The defendant pointed out that
       the ruling had occurred when the plaintiff moved to vacate the trial court’s previous order on
       the issue, and that Valicenti’s instruction to Brinkman was the type of evidence that the trial
       court ruled it might admit, depending on the course of the trial. The defendant then argued that
       Valicenti’s instruction that Brinkman should not touch anyone had become highly relevant in
       light of the plaintiff’s theory that the Jaycees encouraged hugging among their members. The
       trial court stated that, if it allowed the testimony the defendant wanted to elicit, then it would
       also have to allow the plaintiff to inquire about why Brinkman was given that instruction,
       which it believed would reopen “an issue that I had previously resolved in your favor.” The
       trial court therefore barred the inquiry into Valicenti’s instruction to Brinkman. The plaintiff
       rested her case after presenting testimony by Valicenti, herself, and her treating physician, Dr.
       George Nahra (by reading his evidence deposition into the record).
¶ 33        The defendant moved for a directed verdict, arguing that the plaintiff had not presented
       evidence that the accident was caused by conduct within the scope of Brinkman’s
       employment. Referring to the three-part test from the Second Restatement of Agency
       (Restatement) (Restatement (Second) of Agency § 228 (1958)), adopted in Bagent v. Blessing
       Care Corp., 224 Ill. 2d 154, 164 (2007), the defendant argued that two of the three
       requirements were not met: the plaintiff had not shown (1) that Brinkman’s conduct in picking
       her up was “of the kind he [was] employed to perform,” or (2) that Brinkman’s conduct was
       motivated even partly by a desire to serve the defendant. As to the last of these requirements,
       the defendant argued that the plaintiff had presented no evidence whatsoever about
       Brinkman’s motivation for his acts. The trial court denied the motion, stating that the
       circumstantial evidence that the Jaycees commonly hugged each other at events (and so
       Brinkman’s hug was a foreseeable occurrence) could support an inference that Brinkman’s
       conduct was in part motivated by a desire to serve the defendant.
¶ 34        After the trial court denied its motion for a directed verdict and prior to the start of its case,
       the defendant asked the trial court once again to allow it to call Valicenti to testify regarding
       her instruction to Brinkman not to touch anyone. The defendant argued that the plaintiff’s
       theory that “the Jaycees is a huggin’ organization was never pled and was never disclosed,”
       and that the defendant was entitled to present Valicenti’s testimony to counter this theory. The

           1
           For some reason, this portion of the transcript was not included in the report of proceedings.
       However, it is contained in the common-law record, having been filed in connection with the posttrial
       motion.
                                                      -7-
       trial court reviewed the allegations of the amended complaint and concluded that it adequately
       put the defendant on notice that some type of physical contact by Brinkman was at issue. The
       trial court then declined to allow the defendant to present Valicenti’s testimony:
                     “That being said, I’m going to again deny your request to get into prior acts because
                if I were to do that, I think I’d guarantee a mistrial *** based on my prior ruling.
                     So I’m–I’m not going to permit you to do what I have denied the plaintiff the ability
                to do.”
       Trial then resumed with the defendant’s case, which included the testimony of Brophy and the
       video deposition of Dr. Antonio Yuk, the defendant’s expert witness regarding the plaintiff’s
       injuries.
¶ 35        Prior to resting, the defendant made an offer of proof regarding Valicenti’s likely
       testimony about her instruction to Brinkman at the start of his shift in the beer tent on the night
       of the accident. The defendant read into the record a portion of Valicenti’s deposition
       testimony, in which Valicenti stated that, “before the incident,” she spoke with Brinkman
       about not “touching people”–not only women, but anybody. When asked why she told
       Brinkman specifically not to touch anybody, Valicenti said, “[Brinkman] is a gregarious and
       friendly physical contact kind of person.” The trial court reiterated that it believed that the
       defendant’s attorney had “previously asked this court to bar reference to prior bad acts of Mr.
       Brinkman” and that it had granted that request:
                “So from my perspective, *** I couldn’t allow you to introduce evidence that touched
                on prior acts while at the same time barring plaintiff from introducing evidence that
                touched on prior acts of Mr. Brinkman.
                     So I–yes, it *** is preventing you from introducing evidence that he was
                specifically warned not to touch. But you ultimately, as I see it, *** that is as a direct
                result of the request that *** you or your predecessor filed with this court. So from my
                perspective, you can’t have it both ways.
                     So I–I don’t see any other way to resolve the conflict other than to bar her from
                testifying as to what you just offered by way of an offer of proof from her deposition
                ***.”
¶ 36        Following closing arguments, the jury returned a verdict finding the defendant vicariously
       liable for the plaintiff’s injuries and awarding her damages of $253,051.69 plus costs. In
       addition to the general verdict forms, the jury also received special interrogatory forms asking
       it to make specific findings as to whether Brinkman’s conduct (1) “was of the kind he was
       employed to perform or reasonably could be said to have been contemplated as part of his
       employment”; (2) was “motivated, at least in part, by a purpose to serve the Crystal Lake
       Jaycees”; and (3) took place substantially within the time and space limits of his employment
       duties. The jury answered “yes” to each of these special interrogatories.
¶ 37        The defendant filed a timely posttrial motion for judgment notwithstanding the verdict
       (judgment non obstante veredicto, or judgment n.o.v.) or, in the alternative, for a new trial. The
       defendant argued that the verdict was against the manifest weight of the evidence, as the
       plaintiff had not proven the elements necessary for vicarious liability. It also argued that the
                                                    -8-
       trial court had erred in permitting the plaintiff to elicit testimony on undisclosed topics (the
       Jaycees’ alleged use of hugging to promote camaraderie and to recruit new members) and in
       barring the defendant from eliciting Valicenti’s testimony that, before the accident, she
       instructed Brinkman not to touch anyone.
¶ 38        The trial court denied the posttrial motion. As to its rulings barring the defendant from
       presenting Valicenti’s testimony that she told Brinkman not to touch anyone, the court
       commented that the testimony would have been relevant and important to the defendant’s
       case and that it continued to be “troubled” by the issue. However, it continued, it could not
       have permitted the testimony without also allowing the plaintiff to inquire about the reason
       Valicenti said this to Brinkman (Brinkman’s huggy nature), and it had already barred such
       inquiry at the defendant’s request. The defendant appealed.

¶ 39                                          II. ANALYSIS
¶ 40       On appeal, the defendant raises several challenges to the judgment. It first contends that
       the trial court erred in denying the motions for a directed verdict and for judgment n.o.v.,
       because the plaintiff failed to present a prima facie case of vicarious liability. The defendant
       also contends that the trial court should have granted its motion for a new trial because of
       certain errors in the trial court’s evidentiary rulings. As we agree with the defendant’s first
       argument, we do not reach the second.

¶ 41                                         A. General Principles
¶ 42       At the close of the plaintiff’s case, the defendant moved for a directed verdict, arguing
       that the plaintiff had failed to present a prima facie case that it should be held vicariously
       liable for Brinkman’s conduct. The defendant also moved, posttrial, for a judgment n.o.v. on
       the same ground. The trial court denied both motions. The defendant contends that both
       rulings were error.
¶ 43       A motion for a directed verdict will be granted only where “all of the evidence so
       overwhelmingly favors the movant that no contrary verdict based on that evidence could ever
       stand.” Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 225 (2010). A directed verdict
       may be granted to a defendant where the plaintiff has failed to make out a prima facie case;
       that is, the plaintiff has failed to present at least some evidence on every necessary element of
       his or her cause of action. Hemminger v. LeMay, 2014 IL App (3d) 120392, ¶ 17. “In ruling
       on a motion for a directed verdict[,] ‘a court does not weigh the evidence, nor is it concerned
       with the credibility of the witnesses; rather, it may only consider the evidence, and any
       inferences therefrom, in the light most favorable to the party resisting the motion.’ ” Id.
       (quoting Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992)). Although a motion for a directed
       verdict and a motion for judgment n.o.v. are made at different times, they raise the same
       issues and are governed by the same standards. Gustafson, 151 Ill. 2d at 453 n.1.
¶ 44       The test for vicarious liability found in the Restatement was formally adopted by our
       supreme court in Bagent, 224 Ill. 2d at 164. That test asks three questions. First, was the
       conduct of the employee of the kind that he or she is ordinarily employed to perform?
                                                   -9-
       Second, did the employee’s conduct occur substantially within the time and place of his or
       her employment? Third, was the employee’s conduct motivated, partly or wholly, by a
       purpose to serve the employer? Id. All three of these criteria must be met to hold the
       employer vicariously liable for the employee’s conduct, and the plaintiff bears the burden of
       proving that all of the requirements are met. Id. at 165.2
¶ 45       Applying this test in the context of the defendant’s motions for a directed verdict and a
       judgment n.o.v., the question becomes whether the evidence presented by the plaintiff, when
       viewed most favorably to the plaintiff, was totally lacking on any of the three requirements.
       See York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 178 (2006). It is
       undisputed that Brinkman’s conduct toward the plaintiff occurred during the time and at the
       place of his employment as an Oktoberfest volunteer. Thus, the issue is whether the plaintiff
       presented sufficient evidence to make out a prima facie case as to both of the other two
       requirements: that Brinkman’s conduct was of the type he was employed to perform and that,
       in picking up the plaintiff, he was motivated partly or wholly by a desire to serve the
       defendant’s interests rather than by personal desire or whim.
¶ 46       Like the parties’ arguments, our analysis of these issues relies heavily on two recent
       supreme court cases involving vicarious liability. The first case is Bagent, which involved a
       hospital employee’s disclosure of confidential medical information to the sister of a patient.
       The hospital had a policy of protecting confidential medical information (as required by
       federal law) and trained its employees that such information should not be disclosed to
       anyone outside of the medical staff caring for the patient, not even the patient’s family.
       Bagent, 224 Ill. 2d at 157-58. The employee at issue acknowledged that she knew the
       hospital’s policy. However, when she saw the patient’s sister (who was also her best friend)
       at a bar, she mentioned that the patient was pregnant. The patient’s sister had not been aware
       of the pregnancy before that, and the employee testified that she immediately realized that
       she should not have shared the information with the sister. Id. at 158.
¶ 47       The patient sued the employee and also the hospital, claiming vicarious liability. The trial
       court granted summary judgment in favor of the hospital, holding that the evidence showed
       that, when the employee disclosed the confidential information, she was acting outside the
       scope of her employment. Id. at 160-61. The plaintiff appealed and the appellate court
       reversed the grant of summary judgment. Although the appellate court found that the
       evidence showed that the disclosure was not the kind of conduct the employee was employed
       to perform, it believed there was a question of fact about whether the disclosure was
       motivated, at least in part, by a purpose to serve the hospital. Id. at 161.


           2
            We note that, in discussing these requirements, we use the terms “employment,” “employee,” and
       “employer” broadly to include the scenario present here, in which the “employee” is an unpaid
       volunteer performing services for a nonprofit organization. There is no dispute that a volunteer’s
       conduct can give rise to vicarious liability. Alms v. Baum, 343 Ill. App. 3d 67, 71 (2003) (fact that
       allegedly negligent person was a “volunteer worker for a charitable organization does not necessarily
       preclude a finding” of an employment relationship between the worker and the organization).
                                                    - 10 -
¶ 48        The hospital appealed to the supreme court. Adopting the three-part test of the
       Restatement, the supreme court held that all three requirements must be satisfied in order to
       create vicarious liability. Id. at 165. The supreme court then analyzed the evidence as to each
       requirement to determine whether summary judgment was appropriate. As to whether the
       disclosure was the kind of conduct that the employee was employed to perform, the supreme
       court found that it was not, as the employee was a phlebotomist whose job was to draw blood
       and keep records. No part of her job included disclosing confidential information to
       nonmedical personnel. Id. at 167. The fact that the hospital explicitly forbade such disclosure
       was relevant evidence that confirmed the conclusion that the employee’s act was not the type
       of conduct that the employee was employed to perform. Id. at 168.
¶ 49        Turning to the third criterion, the employee’s motivation for the conduct, the supreme
       court found that the appellate court had improperly focused on the interests of the employer
       when it found that the employee’s duty of nondisclosure was “ ‘actuated by the needs and
       requirements of the employer.’ ” (Emphasis omitted.) Id. at 169 (quoting Bagent v. Blessing
       Care Corp., 363 Ill. App. 3d 916, 924 (2006)). The supreme court held that this approach
       was incorrect and that, for this criterion, “it is the state of mind of the employee that is
       material.” (Emphasis in original.) Id. at 170. The supreme court then found that there was no
       material dispute that the employee was not motivated, even partly, by a desire to serve the
       hospital, because the employee herself had testified that she simply spoke out of an
       assumption that the patient had already shared the information with her sister. The supreme
       court noted that, in the ordinary case in which there was no direct evidence of the employee’s
       intent, that intent could be gleaned “from the manifestations of the employee and the
       surrounding circumstances.” Id. The fact that the employer forbade the employee to engage
       in the complained-of conduct would be a relevant circumstance to consider in determining
       the employee’s intent, as it would make it less likely that the employee’s conduct was
       motivated by a desire to serve the employer. Id.
¶ 50        The supreme court in Bagent therefore reversed the appellate court and affirmed the trial
       court’s grant of summary judgment for the hospital. Id. at 172. (The supreme court did not
       address the second requirement–that the disclosure was made within the time and place of
       employment–because it was clear that neither the first nor the third requirement was met.)
¶ 51        The supreme court issued the second leading case on vicarious liability, Adames v.
       Sheahan, 233 Ill. 2d 276 (2009), two years after Bagent. Adames involved the accidental
       killing of the plaintiffs’ son when his friend, the son of a sheriff’s deputy, found three of the
       deputy’s guns in the house and discharged one of them toward the plaintiffs’ son while they
       were playing. The plaintiffs sued (among others) the sheriff, arguing that he should be held
       vicariously liable because the deputy’s keeping of the guns in his home was related to his
       employment. As in Bagent, the trial court entered summary judgment in favor of the
       employer; the appellate court affirmed in part and reversed in part; and the case went to the
       supreme court. Id. at 290-95.
¶ 52        Applying the three-part Restatement test, the supreme court found that the sheriff was not
       vicariously liable for the deputy’s conduct. Id. at 303-04. As to the first requirement, the
       supreme court found that the deputy’s negligent storage of his guns was not the kind of
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       conduct he was employed to perform. Although at one time the deputy had been required to
       carry a gun at work and had owned one of the guns for that purpose, at the time of the
       accident he was not required to, and did not, carry a gun for employment purposes. Id. at 304.
       The fact that the deputy’s negligence was foreseeable by the sheriff–the sheriff’s office
       trained deputies in the proper storage of guns at home and disciplined deputies for improper
       storage–would have been relevant if the deputy were required to carry a gun for work, but as
       he was not, the first requirement was not met. Id. at 304-05. Similarly, although the deputy
       was required to be certified annually in the use of a firearm, he did not need to own a gun in
       order to be certified, and thus the deputy’s ownership of the guns was not required by the
       sheriff. Id. at 304.
¶ 53        The second requirement–that the complained-of conduct occurred within the time and
       place limits of the employment–also was not met: the negligent storage of the guns occurred
       at the deputy’s home, and unlike the defendant police officer in a similar case upon which the
       appellate court had relied (Gaffney v. City of Chicago, 302 Ill. App. 3d 41 (1998)), the deputy
       was not on call 24 hours per day and was not required to attempt to stop a crime even when
       off duty. Adames, 233 Ill. 2d at 304-05.
¶ 54        Finally, there was no evidence that the deputy was motivated “by a desire to serve his
       employer when he negligently stored his gun.” Id. at 305. The deputy had testified that he
       kept the guns at home for his own protection and in case he needed them in the future. Id. In
       this respect, the case again differed from Gaffney because the police officer in Gaffney
       testified that he kept his gun in an unlocked cabinet in his home so that he could respond
       quickly in the event of an emergency, including one related to his employment as a police
       officer. Id. For all of these reasons, the deputy was not acting within the scope of his
       employment when he negligently stored the guns in his home, and the sheriff could not be
       held vicariously liable for that conduct. Id. at 306.
¶ 55       Bagent and Adames contain the most recent guidance from the supreme court on the
       subject of vicarious liability. We note that the parties to this appeal also cite several earlier
       cases in their arguments. While there is no doubt that many of those earlier cases remain
       good law to the extent that they are consonant with Bagent and Adames, to the extent that
       they apply a different analysis we must follow the controlling cases of Bagent and Adames.
       We therefore look primarily to Bagent and Adames, along with any relevant later cases, in
       deciding this appeal.

¶ 56           B. Whether Brinkman’s Conduct Was of the Kind He Was Employed to Perform
¶ 57       The first requirement of the Restatement’s three-part test asks a court to determine, as a
       factual matter, “whether the complained-of act of the employee, although not authorized by
       the employer, is nevertheless so similar or incidental to employer-authorized conduct as to be
       within the scope of employment.” Bagent, 224 Ill. 2d at 166. Thus, even if Brinkman’s acts
       of hugging the plaintiff and picking her up were not among his authorized job duties,
       vicarious liability might properly be imposed if the acts were sufficiently “similar or
       incidental to” his assigned duties.

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¶ 58       In considering this issue, we note that the supreme court, in both Bagent and Adames,
       began by looking at the tasks the employee was required to perform as part of his or her
       regular job duties, and then compared the complained-of conduct with those duties. See id. at
       167 (listing the employee’s typical daily tasks as a phlebotomist and concluding that she was
       “not employed to divulge confidential patient information while off duty and after hours in a
       tavern”); Adames, 233 Ill. 2d at 303-04 (noting testimony that correctional officers such as
       the deputy were not required to own or carry guns and did not need weapons to perform their
       duties, and finding that the deputy’s “negligent storage of his guns was not the kind of
       conduct [he] was employed to perform, nor was it incidental to his employment”). Here,
       there is no dispute that the tasks that Brinkman was required to perform at the Oktoberfest
       were limited to pouring or serving cups of beer. Although there was copious testimony that
       the defendant was a “huggy” organization whose members commonly greeted one another
       with hugs, the record is clear that such hugs were not required as part of the job duties that
       Jaycee volunteers were assigned to perform that night. (At oral argument, the plaintiff’s
       attorney stated that hugging was one of the founding purposes of the Jaycees, but we regard
       this statement as an unwarranted exaggeration of the evidence that, in general, the defendant
       encouraged the strengthening of social bonds among its members.) Brophy testified that the
       defendant had no policy of promoting hugging among its members, and Brophy, Parks, and
       Valicenti all testified that they greeted some Jaycees with hugs but did not hug others. All of
       them testified that the hugs they exchanged with other Jaycees were based on their closeness
       to those Jaycees, not on any organizational requirement. None of these witnesses testified
       that hugging other volunteers was part of their assigned job duties at the Oktoberfest. Finally,
       there was absolutely no evidence that Brinkman’s conduct of lifting the plaintiff into the air
       following their hug was part of his assigned job duties that night.
¶ 59       Thus, it is clear that Brinkman’s conduct at the time of the accident was outside of his
       assigned job duties. We therefore turn to the question of whether the plaintiff produced
       evidence that Brinkman’s conduct toward her (hugging her and lifting her off the ground)
       was “so similar or incidental to” his assigned job duties that vicarious liability should be
       imposed. See Bagent, 224 Ill. 2d at 166. In considering this question, we bear in mind that
       “an act is outside of the scope of employment if it has no connection with the conduct the
       employee is required to perform.” Id. at 168.
¶ 60       The plaintiff argues that conduct “similar or incidental to” employer-authorized conduct
       includes any conduct that “reasonably could be said to have been contemplated as part of”
       the employment, citing the relevant jury instruction (Illinois Pattern Jury Instructions, Civil,
       No. 50.06.01 (2011)). While we acknowledge that the jury instruction indeed contains that
       phrase, we also note that the sole citation for that instruction is Bagent (see id., comment),
       and that Bagent itself does not contain that phrase or any variant of it. Accordingly, we
       decline to adopt this phrase as the appropriate standard.
¶ 61       The plaintiff also argues that we should look to the factors enumerated in section 229 of
       the Restatement (Restatement (Second) of Agency § 229(2)(a) (1958)), which include such
       factors as “whether or not the act is one commonly done” by employees like the one who
       caused the injury and whether the employer had reason to expect that the particular act would
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       be done. These factors suggest a broader standard under which an employer may be held
       vicariously liable if it reasonably should have foreseen that its employee might engage in the
       complained-of conduct.
¶ 62       It is unclear whether the supreme court has in fact approved this broader standard. In
       Bagent, the court suggested that the factors in section 229 could be considered in determining
       whether the complained-of conduct was within the scope of employment. Bagent, 224 Ill. 2d
       at 166. However, the court did not itself apply those factors in Bagent to determine whether
       the complained-of conduct was “of the kind” that the employee was employed to perform.
       Moreover, the supreme court appeared to reject this broader foreseeability approach in
       Adames. In that case, there was evidence that the sheriff could have foreseen (and in fact did
       foresee) that deputies might store guns improperly in their homes, because the sheriff
       provided training on the proper storage of guns and had adopted a policy of disciplining
       employees who stored guns improperly. Adames, 233 Ill. 2d at 304. However, the court
       found that the foreseeability of the deputy’s negligent storage of his guns was not relevant,
       because the deputy was not required to own a gun at all for his employment. Id. Applying a
       similar analysis here, Brinkman was not required to hug anyone at all as part of his
       employment, and so the fact that the defendant might have “ha[d] reason to expect that such
       an act [would] be done” (Restatement (Second) of Agency § 229(2)(f) (1958)) was not
       relevant in determining whether his conduct was “of the kind” he was employed to perform.
¶ 63       However, even if this broader standard of foreseeability were applied here, the plaintiff
       has not presented evidence that Brinkman’s conduct met this standard. While his act of
       hugging the plaintiff might have been foreseeable by the defendant, given that Jaycees
       customarily greeted each other in a friendly manner, there was no evidence that the defendant
       had “reason to expect” Brinkman’s act of lifting the plaintiff off the ground. As identified by
       the plaintiff in her complaint and her initial descriptions of the accident, Brinkman’s lifting
       of her, not the initial hug, was the act that caused her injury. There was no evidence that
       Brinkman’s act of hoisting the plaintiff into the air was a foreseeable outgrowth of his duties,
       or even that it was a foreseeable extension of the hug. The plaintiff herself testified that this
       was an unusual act by a Jaycee; indeed, she had never experienced this or seen other Jaycees
       greet each other this way. Accordingly, we reject the argument that the plaintiff presented
       evidence that the defendant had reason to expect Brinkman’s conduct. The jury’s finding that
       the conduct that caused the injury was “of the kind” he was employed to perform was against
       the manifest weight of the evidence.

¶ 64         C. Whether Brinkman’s Conduct Was Motivated by a Desire to Serve the Defendant
¶ 65       Regardless of whether the plaintiff made out a prima facie case as to the first requirement
       (that Brinkman’s conduct was “of the kind” he was employed to perform), the plaintiff also
       was required to present evidence to meet the third requirement for vicarious liability–that
       Brinkman’s conduct was motivated, either partly or wholly, by a desire to serve the
       defendant. Bagent, 224 Ill. 2d at 165 (all three requirements of the three-part test must be met
       in order to impose vicarious liability). A plaintiff may present either direct or circumstantial
       evidence of this motivation. Id. at 170. However, the plaintiff may not rely on evidence about
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       the employer’s needs or interests, but must offer evidence of the employee’s own state of
       mind. Id.
¶ 66       Here, the sole evidence of Brinkman’s motivation offered by the plaintiff was the
       evidence that Jaycees sometimes hugged one another in greeting. The plaintiff and Valicenti
       stated that they believed that such hugs advanced the purposes of the organization by
       showing that it was a friendly and welcoming group. However, neither of them testified that
       she herself, when she hugged other Jaycees, was motivated by a desire to advance the
       interests of the Jaycees. To the contrary, they both testified that they hugged other Jaycees
       whom they knew well, and did not hug all Jaycees. Brophy testified similarly. The
       implication of this testimony is that the witnesses’ own motivation in hugging other Jaycees
       was personal: they wanted to express their closeness to particular people. Where an
       employee’s conduct is actuated by a personal purpose rather than a purpose to serve the
       employer, it is not within the scope of employment. Id. at 169-70; cf. Deloney v. Board of
       Education of Thornton Township, 281 Ill. App. 3d 775, 783-86 (1996) (collecting cases
       expressing the general rule that acts of sexual misconduct are viewed as having been
       undertaken solely for the employee’s personal reasons). Moreover, even if there was
       testimony that some Jaycees intended to advance the defendant’s interests when they hugged
       other Jaycees, that testimony would do nothing to establish that Brinkman was himself
       motivated by a desire to serve the defendant when he hugged and picked up the plaintiff.
¶ 67       The plaintiff argues that she was not required to call Brinkman as a witness in order to
       establish that his acts were motivated, at least in part, by a desire to serve the defendant. This
       is certainly true: intent or motivation can be proved by circumstantial evidence as well as
       direct evidence. People v. Lattimore, 2011 IL App (1st) 093238, ¶ 44. Here, however, the
       plaintiff presented no evidence, either circumstantial or direct, about Brinkman’s actual
       motivation for hugging and picking up the plaintiff. Her argument that, given the Jaycees’
       interest in maintaining a welcoming and friendly environment, Brinkman could have been
       motivated by a desire to serve the defendant is simply speculation. Speculation cannot take
       the place of evidence. Billman v. Frenzel Construction Co., 262 Ill. App. 3d 681, 687 (1993)
       (summary judgment proper where speculation would be necessary to establish element of
       plaintiff’s claim).
¶ 68       In arguing that she presented a prima facie case on this requirement, the plaintiff cites to
       numerous cases decided before Bagent and Adames were issued. However, in addition to
       being distinguishable to the extent that they applied a different analysis instead of the
       three-part Restatement test, none of these cases discusses the third requirement at issue here:
       the employee’s own motivation for his or her conduct. Accordingly, the plaintiff’s reliance
       on them is misplaced.
¶ 69       Our conclusion that Brinkman’s conduct was not within the scope of his employment is
       bolstered by evidence that we believe was improperly excluded by the trial court–Valicenti’s
       testimony that, a few hours before the accident, she told Brinkman not to touch anyone at the
       Oktoberfest. The trial court barred the defendant from eliciting this testimony because it
       believed that allowing the testimony to come in would prejudice the plaintiff, given the

                                                   - 15 -
       court’s prior rulings barring evidence of Brinkman’s past misconduct. We think that the trial
       court erred in reaching this conclusion.
¶ 70       “The basic rule is that all relevant evidence is admissible unless otherwise provided by
       law.” People v. Cruz, 162 Ill. 2d 314, 348 (1994). Relevant evidence is any evidence that
       tends to make the existence of any fact material to the determination of the case either more
       probable or less probable. People v. Harvey, 211 Ill. 2d 368, 392 (2004). In Bagent, the
       supreme court made it clear that the type of evidence at issue here is relevant in determining
       whether vicarious liability should be imposed on an employer. Bagent, 224 Ill. 2d at 168, 170
       (that an employer forbade certain conduct is relevant to two requirements of the three-part
       test for vicarious liability: whether the employee’s wrongful act was the kind of act that he or
       she was employed to perform, and whether the employee’s wrongful act was motivated by a
       desire to serve the employer). Thus, Valicenti’s testimony that she told Brinkman not to
       touch anyone on the night of the accident was unquestionably relevant to the vicarious
       liability analysis. The exclusion of this evidence seriously damaged the defendant’s ability to
       defend against the vicarious liability claim.
¶ 71       Moreover, the exclusion of this highly relevant evidence was not necessary to avoid
       unfair prejudice to the plaintiff. First, according to Valicenti’s deposition testimony, her
       instruction to Brinkman contained no express reference to any previous bad behavior by
       Brinkman: Valicenti simply told Brinkman not to touch anyone. The trial court could easily
       have permitted the introduction of this testimony without allowing inquiry into the reason for
       the instruction. It was not as if either party wanted or needed to introduce evidence of
       Brinkman’s past misconduct; the plaintiff herself had moved successfully to bar such
       evidence, and indeed such evidence was irrelevant to the elements of vicarious liability.
       Second, the plaintiff does not identify any way in which the admission of the testimony at
       issue would have unfairly prejudiced her. Cf. Harvey, 211 Ill. 2d at 392 (a trial court may
       exclude evidence that is remote, uncertain, or unfairly prejudicial). Although the testimony
       would have strengthened the defendant’s case and damaged her own, this is a natural effect
       of relevant evidence, and is not in itself a reason to bar that evidence. Finally, the timing of
       the evidence would not have prejudiced the plaintiff. The defendant first asked to elicit this
       evidence during its cross-examination of Valicenti. As Valicenti was the plaintiff’s first
       witness, the plaintiff would have had ample opportunity to make her own case thereafter.
¶ 72       While we give proper deference to the trial court’s inherent power to control the
       presentation of evidence at trial, the exclusion of relevant evidence must rest on some legally
       sufficient ground. Cruz, 162 Ill. 2d at 348; see also People ex rel. Noren v. Dempsey, 10 Ill.
       2d 288, 293 (1957) (“The basic principle that animates our law of evidence is that what is
       relevant is admissible. Exceptions to that principle must justify themselves.”). Here, no such
       legally sufficient basis for excluding the evidence has been identified. Thus, the trial court
       erred in excluding Valicenti’s testimony that she told Brinkman not to touch anyone. Had the
       evidence come in, it would have provided additional support for our conclusion that
       Brinkman’s conduct was not within the scope of his employment by the defendant.
¶ 73       In summary, the plaintiff failed to put forward a prima facie case for imposing vicarious
       liability on the defendant. Bagent, 224 Ill. 2d at 165 (all three requirements of the three-part
                                                  - 16 -
       test must be met in order to impose vicarious liability). A directed verdict or a judgment
       n.o.v. may be granted to a defendant where the plaintiff has failed to make out a prima facie
       case; that is, the plaintiff has failed to present at least some evidence on every necessary
       element of his or her cause of action. Hemminger, 2014 IL App (3d) 120392, ¶ 17. As the
       plaintiff did not present evidence of either the first or the third requirement of the three-part
       test for vicarious liability, we find that the trial court erred in denying the defendant’s
       motions for a directed verdict and judgment n.o.v.

¶ 74                                       III. CONCLUSION
¶ 75       The judgment of the circuit court of McHenry County is reversed, and judgment is
       entered in favor of the defendant, the Crystal Lake Jaycees.

¶ 76      Reversed.




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