                                    Illinois Official Reports

                                            Appellate Court



                             O’Rourke v. McIlvaine, 2014 IL App (2d) 131191



Appellate Court                ROSEMARY O’ROURKE, Plaintiff-Appellant, v. BRUCE
Caption                        McILVAINE and McILVAINE ENTERPRISES, INC., Defendants-
                               Appellees.


District & No.                 Second District
                               Docket No. 2-13-1191


Filed                          September 30, 2014


Held                           In an action for negligent hiring and retention alleging that a man who
(Note: This syllabus           worked for defendants’ residential construction firm in the course of
constitutes no part of the     completing an insulation job at plaintiff’s house broke into her house a
opinion of the court but       few weeks after the job, restrained her and stole some items from the
has been prepared by the       house, the appellate court upheld the trial court’s entry of summary
Reporter of Decisions          judgment for defendants based on section 317 of the Restatement
for the convenience of         (Second) of Torts, since defendants’ work relationship with the man
the reader.)                   ended several weeks before the home invasion, plaintiff’s home could
                               no longer be considered defendants’ jobsite for purposes of her claim
                               for negligent hiring and retention, plaintiff did not allege the man used
                               any of defendants’ instrumentalities in the home invasion, defendants
                               did not have any right to control the man when he invaded plaintiff’s
                               home, and there was no allegation of a failure to warn plaintiff of the
                               man’s criminal record.



Decision Under                 Appeal from the Circuit Court of Lake County, No. 11-L-906; the
Review                         Hon. Diane E. Winter, Judge, presiding.



Judgment                       Affirmed.
     Counsel on               Donald J. Morrison, of Morrison & Morrison, P.C., of Waukegan, for
     Appeal                   appellant.

                              Bradley E. Puklin and Robert K. Scott, both of Scott, Halsted &
                              Babetch, P.C., of Chicago, for appellees.



     Panel                    JUSTICE BIRKETT delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Burke and Justice Hutchinson concurred in the
                              judgment and opinion.


                                               OPINION


¶1         The trial court granted summary judgment against plaintiff, Rosemary O’Rourke, on her
       negligence complaint against defendants, Bruce McIlvaine and McIlvaine Enterprises, Inc.
       Plaintiff’s complaint sought to hold defendants accountable for a home invasion committed
       against her by Alejandro Requena, who had previously worked under defendants’
       supervision on an insulation project inside plaintiff’s home. The trial court reasoned that
       defendants could not be held responsible for the crime, because the work relationship
       between defendants and Requena had ended several weeks before and thus plaintiff’s home
       could no longer be considered defendants’ jobsite. For the following reasons, we affirm.

¶2                                         I. BACKGROUND
¶3         In November 2011, plaintiff filed her complaint for negligent hiring and retention. As
       later brought out in summary-judgment proceedings, the uncontested facts of this case are as
       follows. In 2010, defendant Bruce McIlvaine (Bruce) was president of defendant McIlvaine
       Enterprises (McIlvaine), a residential construction firm. Plaintiff hired McIlvaine to replace
       insulation in the attic of her home in Bannockburn, where she lived alone. On January 12,
       2010, Bruce began the insulation project, accompanied by an independent contractor he
       frequently retained to assist him with projects. On the first day of the job, Bruce realized that
       he needed additional help to finish the project within the agreed time frame. Bruce consulted
       an associate, who recommended a laborer named Santiago Waight. Bruce contacted Waight
       and asked if he could assist with the insulation project and if he could find others to help as
       well. Waight agreed to help and said that he would bring two others. The next day, January
       13, Waight arrived at plaintiff’s home with two men, Requena and Alan Romero. McIlvaine
       did not inquire into Requena’s background. In fact, Requena had criminal convictions for
       unlawful possession of a motor vehicle and for theft from, and abuse of, an elderly person.
       McIlvaine permitted Waight, Romero, and Requena to work on the project, which they
       completed the next day.



                                                   -2-
¶4         On March 9, 2010, a man rang plaintiff’s doorbell. Plaintiff did not recognize the man
       and addressed him through a second-story window. The man said that he was there to clean
       the furnace. Plaintiff said that he had the wrong house, and then she phoned the police. Later
       that day, plaintiff heard a noise inside her house. She stepped out of her bedroom to see a
       man whom she later identified as Requena. She had not invited Requena into her home. The
       record suggests that he broke into the house through an outside door. Requena restrained
       plaintiff, beat her, and stole items from the house.
¶5         Plaintiff’s complaint alleged that defendants were negligent for failing to investigate
       Requena’s background before allowing him into plaintiff’s home. Plaintiff asserted that
       defendants’ negligence permitted Requena to learn “intimate details” about plaintiff and her
       home and so was the proximate cause of plaintiff’s injury.
¶6         In January 2012, defendants filed a motion for judgment on the pleadings (see 735 ILCS
       5/2-615 (West 2012)). Defendants contended that, as a matter of law, they had no
       responsibility for Requena’s actions occurring two months after their work relationship with
       him was terminated. The motion was heard by the Honorable David M. Hall, who entered a
       written order in April 2012 denying the motion “for the reasons stated in the record.” The
       record, however, contains no transcript of the motion hearing or other indication of Judge
       Hall’s reasoning.
¶7         In April 2013, defendants filed a motion for summary judgment (see 735 ILCS 5/2-1005
       (West 2012)). Defendants again contended that, as a matter of law, they had no duty to
       plaintiff when the home invasion occurred. In response, plaintiff asserted that Judge Hall’s
       denial of defendants’ motion for judgment on the pleadings was the law of the case and,
       accordingly, required denial of the motion for summary judgment. Alternatively, plaintiff
       addressed the merits, contending that there was an issue of material fact as to whether
       defendants were negligent. In arguing that defendants had a duty of care toward her, plaintiff
       commented that “[t]he rule of law regarding employee liability for criminal acts of
       employees originates from the Restatement (Second) of Torts § 317 (1965).” Plaintiff
       contended that the requisites of section 317 for the existence of a duty of care were satisfied
       in this case.
¶8         The summary-judgment motion was heard by the Honorable Diane E. Winter. Judge
       Winter concluded that she was not bound by Judge Hall’s denial of defendants’ motion for
       judgment on the pleadings, as facts had developed since that ruling. Reaching the merits of
       the summary-judgment motion, Judge Winter applied the principles of section 317 of the
       Restatement (Second) of Torts, as summarized by the First District Appellate Court in
       Escobar v. Madsen Construction Co., 226 Ill. App. 3d 92, 95 (1992):
                “[A]n employer may be liable for harm caused by an employee acting outside the
                scope of his employment if the employee is on the employer’s premises or using
                chattel of the employer, and the employer has reason to know of the need and
                opportunity for exercising control over the employee.”
¶9         Judge Winter found that plaintiff’s home could not be considered defendants’ premises,
       or jobsite, once the work relationship between Requena and defendants had ended. Judge
       Winter also found that Requena was not using any chattel or instrumentality of defendants’
       when he committed the home invasion. Consequently, Judge Winter held that, as a matter of
       law, defendants were not responsible for Requena’s actions.
¶ 10       Plaintiff filed this timely appeal.

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¶ 11                                            II. ANALYSIS
¶ 12        The purpose of a summary-judgment proceeding is not to adjudicate a question of fact
       but, rather, to determine whether an issue of fact exists that would preclude judgment as a
       matter of law. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary
       judgment is appropriate only where “the pleadings, depositions, and admissions on file,
       together with the affidavits, if any, show that there is no genuine issue as to any material fact
       and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
       (West 2012). Our review of summary-judgment rulings is de novo. Adams, 211 Ill. 2d at 43.
¶ 13        “To prevail in an action for negligence, the plaintiff must establish that the defendant
       owed a duty of care, that the defendant breached that duty, and that the plaintiff incurred
       injuries proximately caused by the breach.” Id. The existence of a duty is a question of law
       for the court to decide. Id. Where a defendant owes no duty, he cannot be found negligent.
       Washington v. City of Chicago, 188 Ill. 2d 235, 239 (1999).
¶ 14        The parties frame the issue on appeal as whether an employer may be held liable for the
       posttermination wrongful acts of an employee. Judge Winter did not determine whether
       Requena was defendants’ employee, or rather an independent contractor, in performing the
       insulation work at plaintiff’s home. She found the distinction immaterial to her analysis. The
       parties assume for purposes of this appeal that Requena was defendants’ employee, though
       defendants stress that they are not thereby conceding that fact.
¶ 15        Plaintiff’s initial contention is that Judge Winter misapplied the law-of-the-case doctrine
       by refusing to defer to Judge Hall’s denial of defendants’ motion for judgment on the
       pleadings. We disagree. “The law-of-the-case doctrine binds a court only where a court’s
       prior order was final.” Commonwealth Edison Co. v. Illinois Commerce Comm’n, 368 Ill.
       App. 3d 734, 742-43 (2006) (appellate court’s denial of motion to dismiss appeal for lack of
       jurisdiction was interlocutory and, therefore, not subject to the law-of-the-case doctrine). The
       denial of a motion for judgment on the pleadings is interlocutory, or nonfinal. Fabian v.
       Norman, 138 Ill. App. 3d 507, 509 (1985). Consequently, Judge Hall’s decision did not bind
       Judge Winter.
¶ 16        Moving to the merits, we note that the issue of whether an employer is liable for the
       posttermination torts of an employee was raised before this court quite recently in Doe v. Boy
       Scouts of America, 2014 IL App (2d) 130121. In Doe, the defendants were sued in negligence
       for a sexual assault that their employee committed several months after his employment was
       terminated. The plaintiff urged this court to find that an employer’s duty of care can extend
       to its employee’s posttermination acts. The issue was apparently one of first impression in
       Illinois, but we declined to decide it where the plaintiff failed to develop it properly:
                “Plaintiff has cited no authority, Illinois or otherwise, for holding an employer liable,
                under the tort of negligent hiring and retention, for an employee’s posttermination
                acts. Our own research has disclosed no Illinois decision where a
                negligent-hiring-and-retention claim was based on posttermination acts. Our cursory
                research outside Illinois shows that the issue is controversial enough to have
                generated a split of authority. Compare Abrams v. Worthington, 169 Ohio App. 3d 94,
                2006-Ohio-5516, 861 N.E.2d 920, at ¶ 16 (no liability, because employment
                relationship had terminated before the wrongful act occurred), with Marquay v. Eno,
                662 A.2d 272, 280 (N.H. 1995) (‘The requirement of causal connection to

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         employment does not mean, however, that the employee’s criminal conduct must
         have been performed within the scope of employment, during working hours, or even
         while the perpetrator was an employee.’). Without considering the issue deeply, we
         can appreciate why courts would deem the termination of employment a logical and
         practical boundary for employer liability. Plaintiff suggests that ‘public policy ***
         dictates’ that ‘liability should extend beyond the temporal bounds of the employment
         relationship.’ We think it unadvisable to weigh the wisdom of such a policy where
         plaintiff marshals not even one source of authority to her cause and fails to recognize
         the controversy in other jurisdictions.” Id. ¶ 41.
¶ 17   We did, however, express our skepticism of the plaintiff’s position:
             “Though we decline to make a definitive statement today, we note that the law of
         negligent hiring and retention in this state appears to afford little scope for liability for
         posttermination acts of employees. We consider first the following representative
         statement of the tort: ‘Liability for negligent hiring arises only when a particular
         unfitness of an applicant creates a danger of harm to a third person which the
         employer knew, or should have known, when he hired and placed this applicant in
         employment where he could injure others.’ (Emphasis added.) Fallon v. Indian Trail
         School, Addison Township School District No. 4, 148 Ill. App. 3d 931, 935 (1986).
         This language suggests that the purpose of the tort is to prevent injuries that occur
         during the term of employment and, consequently, suggests that the employer’s duty
         of care does not extend beyond the cessation of employment.
             Significant also is the rigorous standard of proximate causation applied in
         negligent-hiring-and-retention cases. Illinois courts require that the injury itself must
         have ‘occurred by virtue of the servant’s employment (i.e., “because of the
         employment”).’ (Internal quotation marks omitted.) Carter v. Skokie Detective
         Agency, Ltd., 256 Ill. App. 3d 77, 80 (1993). Though Illinois courts are careful to
         maintain that an employer may be liable ‘even though the employee commits the
         criminal or intentional act outside the scope of employment’ (internal quotation
         marks omitted) (id.), liability for out-of-the-scope acts will rest only where ‘the
         employee is on the employer’s premises or using the chattel of the employer, and the
         employer has reason to know of the need and opportunity for exercising control over
         the employee’ (MacDonald v. Hinton, 361 Ill. App. 3d 378, 387 (2005)). MacDonald
         relied on Escobar v. Madsen Construction Co., 226 Ill. App. 3d 92, 95 (1992), which
         in turn relied on the Restatement (Second) of Torts, section 317 (1965). Courts have
         applied this rule to find liability lacking as a matter of law where, though the plaintiff
         came to know the employee only through the employment, the injury neither occurred
         on the employer’s premises nor involved the instrumentalities of employment. See
         MacDonald, 361 Ill. App. 3d at 388 (‘Plaintiff alleged that Maust killed James
         outside the scope of their employment at Trophies Are Us, but failed to allege that
         Maust killed James on defendant’s premises or with the instrumentalities of the
         employment.’); Escobar, 226 Ill. App. 3d at 95 (when the employee shot his
         coworker, the shooter ‘was not on [the employer’s] jobsite, not doing [the
         employer’s] work, and not using [the employer’s] gun’). In such a case, the
         employment only ‘provided a condition for [the] attack’ (by introducing the employee
         to the victim) and did not ‘proximately cause[ ]’ it. Escobar, 226 Ill. App. 3d at 95.


                                                -5-
               We do not opine on the wisdom of this approach, but note only that the policy exists
               and presents a formidable obstacle that plaintiff does not begin to address. Under this
               strict concept of causation, if the injury occurs–as here–after the actor’s employment
               has ended, then a fortiori the injury cannot be connected to that employment.”
               (Emphasis in original.) Id. ¶¶ 42-43.
¶ 18        Thus, in Doe, we observed–without rendering a holding on the matter–that Illinois courts
       have regarded section 317 as placing a significant restriction on an employer’s liability for
       the acts of an employee that exceed the scope of the employment. We further commented
       that section 317 appears to assume that the employment relationship was ongoing when the
       acts occurred on which liability is claimed. Now again we are asked to consider the
       possibility of liability under Illinois law for the posttermination acts of an employee. We
       stress, however, that plaintiff posits no ground for such liability apart from section 317.
       Plaintiff’s briefs do, we note, cite several foreign decisions that find liability for
       posttermination acts, and some of these courts rely on such sources as section 302B of the
       Restatement (Second) of Torts (1965), which states: “An act or an omission may be negligent
       if the actor realizes or should realize that it involves an unreasonable risk of harm to another
       through the conduct of the other or a third person which is intended to cause harm, even
       though such conduct is criminal.” See, e.g., McGuire v. Arizona Protection Agency, 609 P.2d
       1080, 1081-82 (Ariz. Ct. App. 1980) (applying section 302B to the acts of an ex-employee).
       Nevertheless, plaintiff’s briefs assume that, in Illinois, no liability for beyond-the-scope acts
       of an employee rests apart from section 317. Moreover, at oral argument, counsel for plaintiff
       was asked directly whether he was claiming any authority but section 317, and he
       unequivocally denied that any other source governed here.
¶ 19        Our analysis begins with the rule that one has no duty to protect another from the
       wrongful actions of a third party. Simpkins v. CSX Transportation, Inc., 2012 IL 110662,
       ¶ 19; MacDonald v. Hinton, 361 Ill. App. 3d 378, 382 (2005). One exception to this rule is
       where a special relationship exists. The relationship may be between the injured party and the
       party alleged to owe the duty, e.g., “ ‘common carrier and passenger, innkeeper and guest,
       custodian and ward, and possessor of land who holds it open to the public and member of the
       public who enters in response to the possessor’s invitation.’ ” Simpkins, 2012 IL 110662,
       ¶ 20 (quoting Marshall v. Burger King Corp., 222 Ill. 2d 422, 438 (2006)). Alternatively, the
       relationship may exist between the party who is the source of the harm and the party alleged
       to owe the duty, “such as a parent-child relationship [citations] and a master-servant or
       employer-employee relationship [citations].” Id.
¶ 20        Section 317 has been adopted by our supreme court (see Hills v. Bridgeview Little League
       Ass’n, 195 Ill. 2d 210, 229 (2000)), and it states:
                   “§ 317. Duty of Master to Control Conduct of Servant
                   A master is under a duty to exercise reasonable care so to control his servant
               while acting outside the scope of his employment as to prevent him from intentionally
               harming others or from so conducting himself as to create an unreasonable risk of
               bodily harm to them, if
                   (a) the servant
                        (i) is upon the premises in possession of the master or upon which the servant
                   is privileged to enter only as his servant, or


                                                   -6-
                        (ii) is using a chattel of the master, and
                    (b) the master
                        (i) knows or has reason to know that he has the ability to control his servant,
                    and
                        (ii) knows or should know of the necessity and opportunity for exercising such
                    control.” Restatement (Second) of Torts § 317 (1965).
¶ 21       Illinois courts have condensed section 317 as follows:
                “[A]n employer may be liable for harm caused by an employee acting outside the
                scope of his employment if the employee is on the employer’s premises or using
                chattel of the employer, and the employer has reason to know of the need and
                opportunity for exercising control over the employee.” Escobar, 226 Ill. App. 3d at
                95.
¶ 22       The trial court determined that Requena committed the harm neither on defendants’
       premises nor with defendants’ instrumentalities. As Escobar recognizes, an employer’s
       jobsite may be considered its premises for purposes of this rule. See id. Plaintiff does not
       contend that Requena used defendants’ instrumentalities, but does assert that plaintiff’s home
       was still defendants’ jobsite when Requena broke in and injured her. Plaintiff urges us to
       define premises “geographically, rather than temporally.” According to plaintiff, “[t]here
       simply is no authority to suggest that a site ceases to be a ‘jobsite’ when the job is complete.”
       Plaintiff, however, has the burden of persuasion on appeal, and she cites no authority to
       suggest that an area does remain the employer’s jobsite for purposes of section 317 once the
       job is complete. Certainly, the notion is not self-evidently true, and it would seem to raise
       many questions, such as how to assign responsibility for hazards that might remain on the
       jobsite. Plaintiff also suggests no limit on how long an area must or can be deemed an
       employer’s jobsite once the job is complete. The fiction that plaintiff proposes certainly
       would benefit her in this case, but she evidently has given little thought to its ramifications.
       Therefore, we find no error in the trial court’s determination that plaintiff’s home was not a
       jobsite when Requena broke in and injured her.
¶ 23       Even if we accepted the curious notion that plaintiff’s home was still defendants’ jobsite
       when the home invasion occurred, plaintiff’s claim would still fail as a matter of law because
       defendants no longer had a right of control over Requena when he committed the crime. The
       right of control has long been the dominant element that defines an employment relationship.
       See Darner v. Colby, 375 Ill. 558, 561 (1941) (“The right to control the manner of doing the
       work is of principal importance in the consideration of the question whether the worker is an
       employee or an independent contractor.”); Landers-Scelfo v. Corporate Office Systems, Inc.,
       356 Ill. App. 3d 1060, 1069-70 (2005) (“Under the common law, the most important factor in
       deciding whether a putative employer is a common-law employer is whether it has the right
       to control the manner and method in which the work is to be carried out.”).
¶ 24       Indeed, the employer’s right to control the employee’s conduct is essential for liability
       under the doctrine of respondeat superior, according to which an employer is responsible for
       the acts of an employee committed within the scope of employment. See Wilson v. Edward
       Hospital, 2012 IL 112898, ¶ 18 (respondeat superior liability “requires a showing that (1) a
       principal/agent, master/servant, or employer/employee relationship existed; (2) the principal
       controlled or had the right to control the conduct of the alleged employee or agent; and (3)


                                                   -7-
       the alleged conduct of the agent or employee fell within the scope of the agency or
       employment”); Harding v. St. Louis National Stockyards, 242 Ill. 444, 450 (1909) (“The
       doctrine of respondeat superior is applicable where the person sought to be charged has the
       right to control the action of the person committing the injury.”).
¶ 25       Moreover, the doctrine of respondeat superior requires that the right to control exist
       contemporaneously with the injury on which the employer’s liability is premised. The
       principles are well established:
                   “The general rule is that a person[ ] who is injured by the negligence of another
               individual[ ] must seek his remedy for damages against the person who caused the
               injury. However, the doctrine of [r]espondeat superior is an exception to this rule of
               law. Under this exception, the negligence of the employee is imputable to the
               employer, if the relationship of principal[-]agent existed at the time of and in respect to
               the transaction out of which the specific injury arose. [Citation.]
                   However, it is of little consequence that the negligent employee was usually the
               agent of his employer if, at the time of his tortious conduct toward the third party, the
               relationship of principal-agent was temporarily discontinued. If he was not acting as
               his employer’s agent at the time of the tort, the employer cannot be held liable for his
               negligent act. It is the burden of the plaintiff, who asserts this agency, to show that the
               employee was acting as the agent of the defendant-employer when the injury was
               inflicted. [Citation.]
                   In order to meet this burden the plaintiff must show not only that the tortfeasor
               was an employee, but that the relationship of principal and agent was not suspended
               at the time of the injury and that this relationship existed with respect to the particular
               transaction from which the tort arose. [Citations.] If the plaintiff is unable to sustain
               each of these factors, the question of agency need not be submitted to the jury.”
               (Emphasis added.) Bolwin v. El Kay Manufacturing Co., 32 Ill. App. 3d 138, 140-41
               (1975).
       See also Mosley v. Northwestern Steel & Wire Co., 76 Ill. App. 3d 710, 718 (1979) (“[I]f the
       employee was not acting as the employer’s agent at the time of the injury, the employer
       cannot be held liable for the employee’s acts.”).
¶ 26       The “borrowed employee” cases in Illinois highlight that accountability for an
       employee’s wrong rests with the employer who was then in control of the employee with
       respect to the particular task that the employee was performing when he committed the
       wrong. For instance, in Haight v. Aldridge Electric Co., 215 Ill. App. 3d 353, 366 (1991), a
       worker who was employed by Ald-Cass Electric, Inc., for several years was “contracted” out
       to another firm, Aldridge Electric Company, Inc., on a temporary basis. When Ald-Cass
       “contracted” out an employee to Aldridge, the understanding was that the employee was
       under Aldridge’s direction and did not answer to Ald-Cass for the work performed during the
       assignment. Several days into the Aldridge assignment, the worker negligently caused a car
       accident while driving an Aldridge vehicle and conducting Aldridge business. Id. at 366-67.
       This court affirmed the jury verdict holding Aldridge, not Ald-Cass, liable for the worker’s
       negligent act, as Aldridge was functionally the worker’s employer at the time of the injury.
       Id.
¶ 27       Thus, respondeat superior liability requires, at a minimum, that the employer had the
       right to control the employee when the injury occurred. The same minimal requirement of a

                                                    -8-
       right to control exists in cases where the employee’s action falls outside the scope of
       employment. An express element of liability under section 317 is that the employer failed to
       exercise control over the employee. Plaintiff would have us hold in this case that defendants’
       breach was complete when they hired Requena and retained him long enough for him to
       work at plaintiff’s home and become acquainted with her living situation. That approach is
       foreclosed by the text of section 317 and its comments. The text grounds liability on an
       employer’s failure “to control [the] servant while acting outside the scope of his employment
       as to prevent him from intentionally harming others or from so conducting himself as to
       create an unreasonable risk of bodily harm to them.” (Emphasis added.) Restatement
       (Second) of Torts § 317 (1965). A failure of control implies the capacity and authority to
       control, and “scope of employment” implies an existing employment relationship. The text
       contemplates an injurious act that, though committed outside the scope of employment, is
       still committed during the employment, that is, while the employee is subject to the
       employer’s control. When Requena worked on plaintiff’s home, he acted within the scope of
       his employment while under defendants’ control. When Requena committed the act for
       which plaintiff claims defendants are accountable, defendants no longer had the right to
       control his conduct.
¶ 28        Comment c reinforces the plain meaning of the text:
                    “c. Retention in employment of servants known to misconduct themselves. There
               may be circumstances in which the only effective control which the master can
               exercise over the conduct of his servant is to discharge the servant. Therefore the
               master may subject himself to liability under the rule stated in this Section by
               retaining in his employment servants who, to his knowledge, are in the habit of
               misconducting themselves in a manner dangerous to others. This is true although he
               has without success made every other effort to prevent their misconduct by the
               exercise of his authority as master. Thus a railroad company which knows that the
               crews of its coal trains are in the habit of throwing coal from the cars as they pass
               along tracks laid through a city street, to the danger of travelers, is subject to liability
               if it retains the delinquents in its employment, although it has promulgated rules
               strictly forbidding such practices.” Restatement (Second) of Torts § 317 cmt. c
               (1965).
¶ 29        The clear message here is that, failing all lesser attempts to control an errant employee,
       the employer must exert the ultimate control, which is to fire the employee. The implied
       lesson is that the employer fulfills its duty of care by terminating the employee before he can
       harm others in connection with the employment (i.e., while on the employer’s premises or
       while using the employer’s instrumentalities). The lesson of comment c’s hypothetical is that,
       if the railroad company fired the delinquent employees, it would not be responsible if they
       returned afterward, stole onto a railway car, and flung more coal. In the same way,
       defendants are not liable for Requena’s postemployment decision to injure plaintiff.
¶ 30        Moreover, there is no principled basis for holding that an employer’s right of control
       must be contemporaneous with the within-the-scope act that is the alleged basis of
       respondeat superior liability–which Illinois case law clearly requires–while holding that an
       out-of-the-scope act need not stem from a contemporaneous failure to control.
¶ 31        We conclude, therefore, that section 317 presumes that the actor committed the wrongful
       act while still employed and, hence, while the employer still had the right of control. See

                                                    -9-
       San Benito Bank & Trust Co. v. Landair Travels, 31 S.W.3d 312, 319 (Tex. App. 2000)
       (rejecting the possibility of employer liability for the posttermination acts of employee,
       noting that under section 317 “control is the critical factor”). Here, since the employment
       relationship had ended, defendants had no authority, and therefore no duty, to control
       Requena when he injured plaintiff. As the undisputed facts show that defendants had no duty
       of care toward plaintiff when the injury occurred, plaintiff’s negligence action fails as a
       matter of law.
¶ 32       Without commenting on the potential merits of such a claim, we note that plaintiff’s
       cause of action is not based on any alleged failure by defendants to warn plaintiff of
       Requena’s criminal background.

¶ 33                                      III. CONCLUSION
¶ 34      For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 35      Affirmed.




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