                                   2019 IL App (1st) 180420

                                                                          FIRST DIVISION
                                                                          June 24, 2019

                                         No. 1-18-0420


                                        IN THE
                              APPELLATE COURT OF ILLINOIS
                                    FIRST DISTRICT


 LANISHA BLOCKMON, as Special Administrator of              )
 the Estate of Walter Blockmon III, deceased,               )
                                                            )
        Plaintiff-Appellee,                                 )          Appeal from the
                                                            )          Circuit Court of
 v.                                                         )          Cook County
                                                            )
 JAKOBI MCCLELLAN; VECTOR MARKETING                         )          No. 14 L 8538
 CORPORATION, a Pennsylvania corporation; and               )
 CUTCO CORPORATION, a Delaware corporation,                 )          The Honorable
                                                            )          Edward S. Harmening,
        Defendants                                          )          Judge Presiding.
                                                            )
 (Vector Marketing Corp. and Cutco Corp., Defendants-       )
 Appellants).                                               )


       JUSTICE PIERCE delivered the judgment of the court, with opinion.
       Presiding Justice Mikva and Justice Walker concurred in the judgment and opinion.

                                           OPINION

¶1     This appeal arises out of a jury’s verdict in favor of plaintiff Lanisha Blockmon, as

special administrator of the estate of Walter Blockmon III. On July 11, 2014, Walter was driving

on I-80 near the city of Country Club Hills, Illinois, when his vehicle was struck from behind by

a vehicle driven by defendant Jakobi McClellan. Walter died from his injuries. Plaintiff

ultimately filed a five-count fourth amended complaint in the circuit court of Cook County

naming McClellan, Vector Marketing Corp. (Vector), and Cutco Corp. as defendants. Vector
No. 1-18-0420


markets, sells, and distributes cutlery and other kitchen equipment manufactured by Cutco.

Plaintiff alleged that in July 2014, McClellan was a sales representative for and an agent of

Vector and Cutco, and that at the time of the accident, McClellan was traveling between sales

calls in his role as a Vector sales representative. McClellan admitted that at the time of the

accident he was using the mapping and GPS functions on his cell phone to check the location of

his next sales call and to determine how late he was running, and that he was not looking at the

road.

¶2      At trial, plaintiff pursued theories that Vector and Cutco were directly liable for Walter’s

death for breaching a duty to train McClellan to not use his cell phone while driving, and were

vicariously liable for Walter’s death because McClellan was Vector’s and Cutco’s agent at the

time of the accident, as he was en route to a customer’s home while acting as a Vector sales

representative. The jury returned a general verdict in favor of plaintiff and against McClellan,

Vector, and Cutco, and awarded plaintiff $4.7 million in damages. The circuit court denied

Vector’s and Cutco’s posttrial motions for a directed verdict, judgment n.o.v., and for a new trial.

¶3      On appeal, Vector and Cutco argue that the circuit court should have entered

judgment n.o.v. on plaintiff’s direct negligence claim because plaintiff failed to prove that Vector

or Cutco owed Walter a duty of care and that plaintiff failed to establish proximate cause. Vector

and Cutco further argue that the circuit court should have entered judgment n.o.v. on plaintiff’s

vicarious liability claim because the evidence at trial was insufficient to establish that McClellan

was Vector’s and Cutco’s agent at the time of the accident. Alternatively, Vector and Cutco

contend that the circuit court should have ordered a new trial because the jury’s verdict was

against the manifest weight of the evidence, and because the circuit court erred by (1) refusing to

submit a proposed special interrogatory to the jury asking whether McClellan was an



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No. 1-18-0420


independent contractor at the time of the occurrence; (2) refusing to instruct the jury that a

written sales representative agreement between McClellan and Vector and Cutco was a relevant

factor in determining whether McClellan was an agent of Vector and Cutco; (3) permitting

plaintiff to question Vector’s legal affairs manager at trial about contracts of adhesion and the

doctrine of unconscionability, since the enforceability of the sales representative agreement was

not at issue; and (4) permitting plaintiff’s counsel to make certain statements during closing

argument. We affirm.

¶4                                      I. BACKGROUND

¶5     The only claims at issue in this appeal are counts I and V of the fourth amended

complaint. 1 Count I alleged that Vector and Cutco, through the acts or omissions of their agent

McClellan, were negligent by failing to keep a proper lookout, speeding, failing to reduce speed

to avoid an accident, traveling too fast for traffic conditions, and using an electronic device while

driving, and that the negligent acts or omissions were a proximate cause of Walter’s death. Count

V alleged that Vector and Cutco provided bonuses and incentives to sales representatives based

on the number of sales presentations performed and sales made, and “had a duty to train its

[s]ales [r]epresentatives so as to prevent foreseeable harm that would be caused by its incentive

structure and the nature of its business.” Plaintiff alleged that Vector and Cutco breached that

duty and were negligent by “fail[ing] to provide appropriate training with the regard to the use of

cellular devices in obtaining route information to sales calls,” “fail[ing] to have policies related

to the use of cellular devices used for the purpose of accomplishing sales calls,” and failing “to

provide training to sales representatives to not use their cellular devices while doing sales calls.”



       1
         Count II, which alleged that McClellan was an agent of a joint venture between Vector and
Cutco, was dismissed during trial. Counts III and IV were directed at McClellan, who has not appealed
any portion of the judgment and is not a party to this appeal.
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No. 1-18-0420


Plaintiff alleged that Vector’s and Cutco’s negligent acts or omissions were a proximate cause of

Walter’s death.

¶6     It was undisputed at trial that McClellan was driving his mother’s car from an

appointment in Naperville to a customer’s house in Homewood along I-80, and that he was

running 5 to 10 minutes late for a sales appointment. While he was driving at between 67 and 80

miles per hour, he was looking at a map and the GPS on his phone when he looked up and saw

Walter’s vehicle was stopped immediately in front of him. There was no evidence of any

preimpact braking at the scene of the accident.

¶7     McClellan testified that in June 2014, he turned 18 years of age and had just graduated

from high school. He had no sales experience when he was interviewed and hired by Joshua

Dicks, a Vector branch manager working out of an office in Orland Park. McClellan attended a

group training session led by Dicks on how to demonstrate Cutco products. Participants were

told to dress professionally and were provided with a sales training manual. On June 14, 2014,

McClellan electronically signed a sales representative agreement with Vector. The Vector

training manual provided tips on how to conduct product demonstrations and how to talk to

potential customers. McClellan testified that he could ultimately decide on what methods worked

best for him. McClellan was supplied with a Vector Connect web identification and login

number for purposes of placing product orders. He was also loaned a Cutco knife sample kit

containing Cutco knives, rope, leather, a cutting board, and a velvet cloth. He was told by Vector

that he could not sell Cutco products through social media or online sales platforms. McClellan

was provided with a desk and a landline phone at the Orland Park branch where he could make

calls and schedule demonstrations, although McClellan testified that he ordinarily used his cell

phone to make calls and schedule demonstrations. He chose the hours that he worked, set his



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No. 1-18-0420


own schedule, developed his own customer list, and paid his own taxes. He testified that he

generally called in to Vector’s Orland Park office once per day. McClellan also testified that he

knew before he signed the sales representative agreement that it was dangerous to drive while

looking at the GPS on his phone, and the fact that Vector did not tell him to avoid looking at his

phone while driving did not cause the accident.

¶8     Vector’s sales representative agreement contained a voluntary “additional incentive

commission program,” under which a sales representative could earn $17 for conducting an

online or in-person one-on-one sales presentation provided certain criteria were met. The sales

representative agreement also provided that a sales representative was an independent contractor

and was prohibited from holding themselves out as a Vector or Cutco employee. A sales

representative would “not be treated as an employee for federal, state, or local tax purposes nor

for unemployment compensation or worker’s [sic] compensation taxes.” A sales representative

could “set [their] own schedule and develop [their] own marketing methods in pursuit of sales

and profits.” Sales representatives had no authority to “incur or create any liability or obligation

of any kind in the name of [Vector] *** except in the solicitation of orders for [Cutco’s]

consumer products.” Vector required prior written approval for a sales representative’s use of

any of Vector’s or Cutco’s trade names, trademarks, service names, and service marks, and sales

representatives were prohibited from using the Vector or Cutco name on any business cards,

directories, stationary, advertisements, phone listings, bank accounts, or on any form of social

media. Sales representatives were responsible for any loss, theft, or destruction of the sample kit,

and were required to return the sample kit if the sales representative terminated the sales

representative agreement. Sales representatives could, however, elect to purchase the sample kit

at any time. The sales representative could terminate the sales representative agreement by



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No. 1-18-0420


sending written notice to Vector, while Vector could terminate the sales representative

agreement for good cause.

¶9     Dicks testified that in 2014, he was Vector’s Orland Park branch manager. During group

training sessions, potential sales representatives were told that they had to find their own

customers. Sales representatives could submit orders through the web ID portal, by mail, or over

the phone. Sales representatives needed to submit an order once per week in order to maintain an

active status. Sales representatives that performed sales presentations submitted reports, and

Vector retained the right to contact the people listed on the report to verify whether the sales

representative actually performed the presentation. Vector held optional weekly meetings for

sales representatives designed to help the sales representatives “learn more so they can sell

more.” Vector did not provide sales representatives with cars, cell phones, laptops, or e-mail

accounts. Dicks testified that sales representatives were encouraged to check in daily, but were

not required to. If a sales representative was running late for a customer appointment, it was left

to the sales representative’s discretion as to how to handle that situation. Dicks testified that at

the time of the accident, McClellan “was serving not only his own needs and hopefully making a

commission, *** but he was also serving Vector and Cutco.” Dicks also testified that the “terms

‘independent contractor’ and ‘agent’ are not mutually exclusive,” and that a person could be “an

independent contractor for tax purposes but also an agent based upon right of control issues.”

¶ 10   Mike Muriel testified that he was Vector’s central region sales manager. He testified that

Cutco set the price of the product. Paul Matheson testified that he was Vector’s legal affairs

manager. He testified that Vector did not provide any safe driving advice to sale representatives,

and did not ban the use of cell phones while a sales representative’s vehicle was in motion. Sales

representatives were not paid minimum wage or overtime, and did not receive any



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No. 1-18-0420


unemployment benefits, workers’ compensation benefits, or health insurance. Sales

representatives were not reimbursed for travel expenses. Matheson testified, over Vector’s and

Cutco’s objection, that a contract of adhesion referred to a standard form contract in which one

party sets the terms of the agreement, and the other party has little to no ability to negotiate. Also

over Vector’s and Cutco’s objection, Matheson testified that he had heard of the doctrine of

unconscionability, but did not know its definition. Vector would calculate a sales representative’s

compensation by comparing the number of “qualified presentations” to the number of sales, and

the sales representative would receive the greater of the two commissions. For qualified

presentations, Vector paid 75%, while the district or branch manager paid the other 25%.

¶ 11   At the close of evidence, Vector and Cutco made an oral motion for a directed verdict on

plaintiff’s direct negligence claim (count V), asserting that plaintiff failed to present any

evidence that Vector’s or Cutco’s failure to train McClellan to not use his cell phone while

driving caused the accident, and that plaintiff failed to present any evidence that Vector or Cutco

had any duty to provide any such training to McClellan. The circuit court denied Vector’s and

Cutco’s motion for a directed verdict on count V. Vector and Cutco subsequently made an oral

motion for a directed verdict on plaintiff’s negligence claims based on vicarious liability (count

I), arguing that plaintiff failed to present evidence that McClellan was Vector’s or Cutco’s agent

at the time of the accident. The circuit court denied Vector’s and Cutco’s motion for a directed

verdict on count I. The circuit court also denied Vector’s and Cutco’s request to submit to the

jury a special interrogatory asking if McClellan was an independent contractor at the time of the

occurrence.




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No. 1-18-0420


¶ 12   Defendants did not request a separate verdict on each count. The case was submitted to

the jury, which returned a general verdict in favor of plaintiff and against defendants. The jury’s

verdict form, with the jurors’ signatures removed, appears in the record as follows:




¶ 13   Vector and Cutco filed a timely posttrial motion for judgment n.o.v., or alternatively for a

new trial, which the parties briefed and argued. The circuit court entered a written order denying

Vector’s and Cutco’s posttrial motion. Vector and Cutco filed a timely notice of appeal.

¶ 14                                      II. ANALYSIS

¶ 15   Vector and Cutco argue that the circuit court should have entered a directed verdict or

judgment n.o.v. on plaintiff’s wrongful death claim based on direct negligence in count I because

plaintiff failed to prove that either Vector or Cutco owed Walter a duty of care, plaintiff failed to

establish proximate cause, and the circuit court misapplied the general verdict rule in denying

their posttrial motion. Vector and Cutco further argue that the circuit court should have entered a

directed verdict or judgment n.o.v. on plaintiff’s wrongful death claim of negligence based on

vicarious liability in count V because the evidence was insufficient to establish that McClellan

was Vector’s and Cutco’s agent at the time of the accident.




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No. 1-18-0420


¶ 16   Plaintiff asserts, however, that Vector and Cutco failed to properly preserve any

challenges to the jury’s verdict, and have therefore forfeited all of their appellate arguments.

Plaintiff argues that at least two theories of liability against Vector’s and Cutco’s were submitted

to the jury: direct negligence based on a failure to properly train McClellan regarding cell phone

use while driving, and vicarious liability based on McClellan acting as an agent for Vector and

Cutco. Plaintiff contends that Vector and Cutco knew that two theories of liability were going to

be submitted to the jury, and because Vector and Cutco did not submit any special interrogatories

to test the jury’s general verdict or request separate verdicts on the two separate theories of

liability submitted to the jury, this court has no way to determine the basis of the jury’s verdict.

Plaintiff relies on section 2-1201(d) of the Code of Civil Procedure (Code) (735 ILCS 5/2-

1201(d) (West 2016)), and several decisions applying the general verdict rule.

¶ 17   In response, Vector and Cutco argue that if the circuit court erred by denying the motion

for directed verdict on the direct liability claim in count V, the direct liability claim would not

have gone to the jury, and, at a minimum, Vector and Cutco would have been entitled to the

proffered special interrogatory as to whether McClellan was an independent contractor, which

they contend would have controlled the verdict on the vicarious liability claim in count I.

¶ 18                                  A. General Verdict Rule

¶ 19   Section 2-1201(d) of the Code provides:

                “If several grounds of recovery are pleaded in support of the same claim, whether

                in the same or different counts, an entire verdict rendered for that claim shall not

                be set aside or reversed for the reason that any ground is defective, if one or more

                of the grounds is sufficient to sustain the verdict; nor shall the verdict be set aside

                or reversed for the reason that the evidence in support of any ground is



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No. 1-18-0420


                insufficient to sustain a recovery thereon, unless before the case was submitted to

                the jury a motion was made to withdraw that ground from the jury on account of

                insufficient evidence and it appears that the denial of the motion was prejudicial.”

                Id.

¶ 20   Our supreme court has explained, “When there is a general verdict and more than one

theory is presented, the verdict will be upheld if there was sufficient evidence to sustain either

theory, and the defendant, having failed to request special interrogatories, cannot complain.”

Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987).

¶ 21   Plaintiff’s argument that Vector and Cutco forfeited their challenges to the jury’s verdict

(see supra ¶ 16) reflects a misunderstanding of the general verdict rule, and the authority she

cites does not require a finding of forfeiture. In Dillon v. Evanston Hospital, 199 Ill. 2d 483, 491-

92 (2002), our supreme court found that where the plaintiff asserted multiple theories of

negligence in her complaint and defendants raised challenges to two of those theories on appeal,

the verdict could not be set aside on the bases advanced by the defendants, as there were no

challenges to the sufficiency of the evidence on the other theories. But here, Vector and Cutco

argue that the circuit court erred by not entering a directed verdict or judgment n.o.v. in their

favor on counts I and V. In other words, they challenge all of the theories of liability on which

the jury’s verdict might rest. The general verdict rule does not preclude appellate review of a

general verdict simply because there are multiple possible bases for the jury’s verdict; if that

were so, the rule would prevent a defendant that loses at trial from attempting to demonstrate that

none of the grounds advanced by plaintiff were sufficient to prove their claims at trial, even if the

evidence presented at trial was legally insufficient. The general verdict rule will not insulate a

verdict that is not supported by the evidence. Instead, the general verdict rule provides that in the



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No. 1-18-0420


absence of any indication in the record as to which theory of liability the jury rested its decision

on, a defendant may not obtain relief from the jury’s verdict if at least one theory of liability

would be sufficient to sustain the verdict. Witherell, 118 Ill. 2d at 329. We find that Vector and

Cutco have not forfeited their appellate challenges to the jury’s verdict.

¶ 22   Plaintiff further relies on section 2-1201(d) of the Code to argue that Vector and Cutco

forfeited their challenges to the jury’s verdict by failing to move to have any of the issues at trial

withdrawn from the jury’s consideration. Plaintiff argues that Vector and Cutco

                “did not move, ever, to withdraw any of the [c]ounts, much less each of the

                theories of liability set forth in [c]ount I and [c]ount V, from the jury’s

                consideration due to alleged insufficient evidence. Instead, the corporate

                defendants moved for a directed verdict in their favor, and later filed a post-trial

                motion.”

¶ 23   Plaintiff’s argument, however, offers no explanation as to how defendants’ motion for

directed verdict at the close of evidence—especially where, if granted, the direct negligence

claim in count V would have been withdrawn from the jury’s consideration—failed to satisfy

section 2-1201(d) of the Code. Vector’s and Cutco’s oral motion for a directed verdict on count

V specifically argued that plaintiff failed to present any evidence to establish that any alleged

breach of a duty to train McClellan not to drive while using a cell phone was a proximate cause

of the accident, and further argued that plaintiff failed to present any evidence to establish that

Vector or Cutco had a duty to train McClellan to not drive while using a cell phone.

Additionally, Vector’s and Cutco’s oral motion for directed verdict on count I specifically argued

that plaintiff failed to introduce any evidence to establish an agency relationship between either

Vector or Cutco and McClellan. Vector and Cutco preserved their motions for directed verdict



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No. 1-18-0420


by renewing those motions in their posttrial motion for judgment n.o.v. and for a new trial. See

735 ILCS 5/2-1202(a) (West 2016) (“If the court denies [a] motion [for directed verdict] or

reserves its ruling thereon, the motion is waived unless the request is renewed in the post-trial

motion.”). On appeal, Vector and Cutco argue the circuit court’s denial of the motions for

directed verdict were prejudicial because the evidence at trial was insufficient to prove plaintiff’s

claims, and the claims should not have been submitted to the jury. The motions for directed

verdicts clearly sought to “withdraw [those] ground[s] from the jury on account of insufficient

evidence” (id. § 2-1201(d)), and we therefore reject plaintiff’s argument that Vector and Cutco

failed to properly preserve their appellate arguments.

¶ 24   However, where the jury returns a general verdict that was not tested by a special

interrogatory, we will uphold the verdict if the evidence was sufficient to sustain either theory of

liability. Witherell, 118 Ill. 2d at 329. Vector and Cutco’s argument that the circuit court should

have directed a verdict in their favor on the direct negligence claim ignores the reality that

(1) both motions for directed verdict were denied before the case was submitted to the jury,

(2) both claims went to the jury, (3) no objection was made to a general verdict form, and (4) no

request was made for separate verdict forms for each count. This confluence of events resulted in

the jury to returning a general verdict. Had Vector and Cutco requested separate verdict forms

and the jury returned separate verdicts on counts I and V, this court and the parties would have a

better sense of the basis for the jury’s reasoning for its verdict. Without separate verdict forms,

however, we are presented with a general verdict that we may sustain so long as there was

sufficient evidence to sustain one of the two theories of liability submitted to the jury.




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¶ 25                                    B. Vicarious Liability

¶ 26   We first address whether the circuit court correctly denied Vector’s and Cutco’s motions

for judgment n.o.v. or, alternatively, for a new a trial with respect to plaintiff’s vicarious liability

claim in count I. Vector and Cutco argue that there was no evidence presented to the jury that

would support a finding that McClellan was an agent of Vector and Cutco at the time of the

accident, and that the evidence clearly showed that McClellan was an independent contractor.

We find that the evidence at trial demonstrated a substantial factual dispute regarding whether an

agency relationship existed, and therefore affirm the circuit court’s denial of Vector’s and

Cutco’s motion for judgment n.o.v. and motion for a new trial on count I.

¶ 27   Judgment n.o.v. “ ‘should not be entered unless the evidence, when viewed in the light

most favorable to the opponent, so overwhelming favors the movant that no contrary verdict

based on that evidence could ever stand.’ ” McClure v. Owens Corning Fiberglas Corp., 188

Ill. 2d 102, 132 (1999) (quoting Holton v. Memorial Hospital, 176 Ill. 2d 95, 109 (1997)). A

court “has no right to enter a judgment n.o.v. if there is any evidence, together with reasonable

inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the

assessment of credibility of the witnesses or the determination regarding conflicting evidence is

decisive to the outcome.” Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). We will not substitute

our judgment on questions of fact fairly submitted to and decided by the jury where the evidence

at trial did not greatly preponderate either way. McClure, 188 Ill. 2d at 132. The circuit court’s

decision on a motion for judgment n.o.v. is reviewed de novo. Id.

¶ 28   A motion for a new trial should only be granted where the jury’s verdict is against the

manifest weight of the evidence. York v. Rush-Presbyterian Luke’s Medical Center, 222 Ill. 2d

147, 178-79 (2006). “A verdict is contrary to the manifest weight of the evidence when the



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No. 1-18-0420


opposite conclusion is clearly evident or when the jury’s findings prove to be unreasonable,

arbitrary and not based upon any of the evidence.” Id. at 179. We review the circuit court’s

decision on a motion for a new trial for an abuse of discretion. Id.

¶ 29   In order to prove that Vector and Cutco were vicariously liable for McClellan’s acts,

plaintiff was required to prove an agency relationship. Wilson v. Edward Hospital, 2012 IL

112898, ¶ 18. “The hallmark of agency is the principal’s right to control the manner in which the

agent performs the work.” (Internal quotation marks omitted.) Magnini v. Centegra Health

System, 2015 IL App (1st) 133451, ¶ 25 (citing Simich v. Edgewater Beach Apartments Corp.,

368 Ill. App. 3d 394, 402 (2006)). By contrast, an independent contractor “undertakes to produce

a certain result but is not controlled as to the method in which he obtains that result.” Lang v.

Silva, 306 Ill. App. 3d 960, 972 (1999). Several factors should be considered when determining

whether a person is an agent or an independent contractor, including “the right to control the

manner in which the work is performed; the right to discharge; the method of payment; whether

taxes are deducted from the payment; the level of skill required to perform the work; and the

furnishing of the necessary tools, materials, or equipment.” Id. “No single factor is determinative

but the right to control the manner in which the work is performed is considered to be the

predominant factor.” Id. Plaintiff bears the burden of proving the existence of an agency

relationship and the scope of the agent’s authority. Krickl v. Girl Scouts, Illinois Crossroads

Council, Inc., 402 Ill. App. 3d 1, 5 (2010).

¶ 30   Vector and Cutco argue that plaintiff did not introduce any evidence that Vector and

Cutco “controlled the specific means and manner by which [McClellan] conducted [his] day-to-

day activities.” Instead, they argue that the evidence at trial showed that McClellan controlled

(1) the manner in which he did his work; (2) the number of hours that he worked; (3) setting his



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No. 1-18-0420


own schedule; (4) which methods he used for conducting sales, and could choose whether to

follow the sales tips that were included in the training manual; and (5) whether he would do

product demonstrations in-person or on-line. Vector and Cutco also argue that McClellan

(1) provided his own car, gas, and cell phone; (2) was not required to attend weekly meetings;

(3) was not required to check in daily with the office; (4) was not required to work out of the

office space that was available; (5) could either borrow or purchase a sample kit; (6) submitted

weekly reports to keep track of his commissions; and (7) paid his own taxes. Furthermore, the

sales representative agreement stated that McClellan (1) could not represent himself to others as

an employee; (2) was an independent contractor; (3) would not be treated as an employee for

purposes of unemployment compensation, workers’ compensation, or taxes; (4) could terminate

the agreement at any time upon written notice; and (5) had the right to set his own schedule and

develop his own marketing methods, with some exceptions.

¶ 31   Plaintiff responds that the jury heard evidence from which it could find the existence of

an agency relationship. Specifically, McClellan himself testified that he considered himself an

employee. Dicks testified that Vector and Cutco had the right to control whether sales

representatives could make sales over the internet. The training manual contained a script for

handling “knee-jerk reactions” from customers. McClellan testified that each sales presentation

took about one hour and was to be performed in accordance with the way he was trained and

with the manual, which included a “build a rapport” section, regardless of whether the sales

representative personally knew the customer. McClellan was required to have the customer cut

food during the demonstration. He was instructed to call his sales manager if he was having

trouble closing a sale or to obtain authority to offer a reward for large purchases. Furthermore,

Vector and Cutco (1) had control over whether its sales representatives could use business cards



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with Vector’s or Cutco’s names; (2) controlled the price of the products; (3) expected regular

contact between sales representatives and the sales manager; and (4) provided office space to

sales representatives to make sales calls. The jury also heard Dicks’s testimony that McClellan

“was serving not only his own needs and hopefully making a commission, *** but he was also

serving Vector and Cutco,” and that a person might be acting as an independent contractor and

an agent at the time.

¶ 32    Based on the foregoing, it is clear that plaintiff presented some evidence demonstrating a

substantial factual dispute as to whether Vector and Cutco had the right to control McClellan’s

work. The jury heard evidence that Vector and Cutco required sales representatives to conduct

sales presentations and product demonstrations in a particular manner, restricted sales

presentations to either in-person or online, prohibited the marketing of products through online

selling platforms, and either lent or sold the sample product kits to sales representatives like

McClellan. Viewing all of the evidence in a light most favorable to plaintiff, the circuit court did

not err when it denied Vector and Cutco’s motion for judgment n.o.v. on the vicarious liability

claim in count I. We therefore affirm the circuit court’s order denying Vector’s and Cutco’s

posttrial motion for judgment n.o.v. Furthermore, given that there was evidence presented from

which reasonable jurors might reach different conclusions on the issue of agency, we cannot say

that the circuit court abused its discretion when it denied Vector and Cutco’s posttrial motion for

a new trial.

¶ 33    Because there was sufficient evidence from which a jury could conclude that an agency

relationship existed, we find that the evidence was sufficient to sustain the general verdict and

we need not address Vector’s and Cutco’s arguments that the evidence at trial was insufficient to

find Vector and Cutco directly liable for Walter’s death.



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¶ 34                                   C. Special Interrogatory

¶ 35      Furthermore, we find no error in the circuit court’s refusal to submit to the jury a special

interrogatory asking whether McClellan was an independent contractor at the time of the

occurrence. “A special interrogatory serves ‘as guardian of the integrity of a general verdict in a

civil trial.’ ” Simmons v. Garces, 198 Ill. 2d 541, 555 (2002) (quoting O’Connell v. City of

Chicago, 285 Ill. App. 3d 459, 460 (1996)). “A special interrogatory is in proper form if (1) it

relates to an ultimate issue of fact upon which the rights of the parties depend, and (2) an answer

responsive thereto is inconsistent with some general verdict that might be returned.” Id. “If a

special interrogatory does not cover all the issues submitted to the jury and a ‘reasonable

hypothesis’ exists that allows the special finding to be construed consistently with the general

verdict, they are not ‘absolutely irreconcilable’ and the special finding will not control.” Id. We

review a circuit court’s decision on whether to give a special interrogatory de novo. Stanphill v.

Ortberg, 2018 IL 122974, ¶ 31; 735 ILCS 5/2-1108 (West 2016) (“Submitting or refusing to

submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of

law.”).

¶ 36      Here, Vector’s and Cutco’s proposed special interrogatory only asked whether McClellan

was an independent contractor at the time of the occurrence. But the jury was presented with two

theories of liability: that Vector and Cutco were vicariously liable for McClellan’s conduct

because he was an agent, and that Vector and Cutco were directly liable for their failure to train

McClellan. Therefore, if the jury’s answer to the proposed special interrogatory was “yes”—

meaning McClellan was an independent contractor—then the general verdict would be wholly

untested; an answer of “yes” to the special interrogatory would not in any way be inconsistent

with the general verdict because a finding that he was an independent contractor would not be



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inconsistent with a finding that Vector’s and Cutco’s negligence was a proximate cause of

Walter’s death. The circuit court did not err by refusing to give the proposed special

interrogatory. 2

¶ 37                      D. Vector’s and Cutco’s Remaining Arguments

¶ 38    Finally, we address Vector’s and Cutco’s arguments that they are entitled to a new trial

based on three trial errors that “separately and combined” denied them a fair trial. First, they

contend that the circuit court abused its discretion by refusing to give a modified version of

Illinois Pattern Jury Instruction, Civil, No. 50.10 (2006) (IPI Civil (2006)), which Vector and

Cutco requested be modified to specifically reference the written sales representative agreement.

Second, they contend that the circuit court acknowledged that it erred by permitting plaintiff to

question Vector’s legal affairs manager at trial about contracts of adhesion and the doctrine of

unconscionability, but that the circuit court erred when it determined that the error was harmless.

Finally, Vector and Cutco argue that plaintiff’s counsel made statements during closing

argument that deprived Vector and Cutco of a fair trial. We do not find that any of Vector and

Cutco’s arguments warrant a new trial.

¶ 39                                     1. Jury Instruction

¶ 40    Vector and Cutco contend that the circuit court abused its discretion when it refused to

give a modified version of IPI Civil (2006) No. 50.10. They contend that the written sales

representative agreement was a relevant factor for the jury to consider when determining whether

McClellan was an agent or an independent contractor, and that the circuit court’s refusal to

modify the pattern instruction to specifically reference the written sales representative agreement

was prejudicial.

        2
        Because we conclude that the special interrogatory was not in proper form, we need not address
the arguments presented by the parties as to whether an independent contractor may simultaneously be an
agent.
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No. 1-18-0420


¶ 41    “[T]he parties are entitled to have the jury instructed on the issues presented, the

principles of law to be applied, and the necessary facts to be proved to support its verdict.”

Dillon, 199 Ill. 2d at 505. A circuit court’s decision on whether to give a particular jury

instruction is reviewed for an abuse of discretion. Id. To determine whether an abuse of

discretion has occurred, we look to “whether, taken as a whole, the instructions are sufficiently

clear so as not to mislead and whether they fairly and correctly state the law.” Id. “A reviewing

court ordinarily will not reverse a trial court for giving faulty instructions unless they clearly

misled the jury and resulted in prejudice to the appellant.” Schultz v. Northeast Illinois Regional

Commuter R.R. Corp., 201 Ill. 2d 260, 274 (2002).

¶ 42    The fourth paragraph of IPI Civil (2006) 50.10 instructs the jury

                        “In determining whether at the time of the occurrence [alleged agent’s

                name] was the agent of the defendant [defendant’s name] or was an independent

                contractor, you may also consider [the method of payment;] [the right to

                discharge;] [the skill required in the work to be done;] [who provides tools,

                materials or equipment;] [whether the worker’s occupation is related to that of the

                employer;] [whether the employer deducted for withholding tax;] [and] [[other

                relevant factor(s)].” 3

Vector and Cutco requested that the circuit court replace the bracketed phrase “other relevant

factor(s)” with the phrase “the designation in the written agreement.” The circuit court refused,

and instead simply retained the bracketed language “other relevant factors.”

¶ 43    Vector and Cutco argue that the Notes on Use for IPI Civil (2006) 50.10 specifically state

“[o]nly such elements of the bracketed material in the fourth paragraph should be used as may be

        3
         All of the brackets appear in the pattern instruction. The last line of the fourth paragraph of the
pattern instruction contains a typographical error, as it places two opening brackets before the word
“other” and only one closing bracket following the word “factor(s)”.
                                                    19
No. 1-18-0420


supported by the evidence. See Wenholdt v. Industrial Comm’n, 95 Ill. 2d 76, 447 N.E.2d 404,

69 Ill. Dec. 187 (1983).” They contend, therefore, that the circuit court should have modified the

instruction to include a reference to the written sales representative agreement, as it was a

relevant factor for the jury to consider.

¶ 44   We find no abuse of discretion. Vector and Cutco make no argument that the instruction

as given was misleading or whether it fairly and correctly stated the law, or that it was a per se

abuse of the circuit court’s discretion to refuse to include a particular factor in the instruction.

The written agreement was discussed extensively at trial and was repeatedly referenced in the

parties’ closing arguments. The circuit court was not obligated to specifically instruct the jury to

consider one piece of evidence that was potentially favorable to Vector and Cutco. Instead, the

circuit court instructed the jury to consider specific factors and all of the evidence in deciding

whether McClellan was an agent or whether an independent contractor agency relationship

existed. Furthermore, Vector and Cutco simply assert that they were prejudiced by the circuit

court’s decision, but develop no argument as to how that might be so. The circuit court did not

abuse its discretion by refusing to modify the pattern instruction.

¶ 45                                        2. Trial Questions

¶ 46   Vector and Cutco argue that they were prejudiced by the circuit court’s decision to

overrule objections to plaintiff’s questioning of Matheson about whether he had heard of

contracts of adhesion and the doctrine of unconscionability. Matheson testified that he was

familiar with contracts of adhesion, and agreed “that a contract of adhesion is a contract between

two parties where the terms are set by one of the parties and the other has little or no ability to

negotiate more favorable terms.” Vector and Cutco argue that plaintiff’s line of questioning was




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No. 1-18-0420


prejudicial because “it invited the jury to disregard the agreement that McClellan signed as a

contract of adhesion and unenforceable.”

¶ 47   “[A] party is not entitled to a new trial unless a trial court’s erroneous evidentiary ruling

was substantially prejudicial and affected the outcome of the trial.” DiCosolo v. Janssen

Pharmaceuticals, Inc., 2011 IL App (1st) 093562, ¶ 40 (citing Simmons, 198 Ill. 2d at 566-67).

Vector and Cutco bear the burden of establishing prejudice and that the error affected the

outcome of the trial. Id.

¶ 48   Vector’s and Cutco’s prejudice argument is unpersuasive. There is nothing in the record

to suggest that the jury disregarded the written sales representative agreement. The jury heard

extensive testimony about the contents of the sales representative agreement, and extensive

testimony about the relationship of McClellan to Vector and Cutco. Whether McClellan was

Vector’s and Cutco’s agent or whether he was an independent contractor was a main focus of the

trial, and the jury heard competing evidence on the factors that bore directly on that issue,

including the sales agreement. See supra ¶¶ 30-31. During their closing arguments, the parties’

counsel extensively discussed the sales representative agreement. Plaintiff’s counsel did not urge

the jury to find that the sales representative agreement was unconscionable or argue that the sales

representative agreement’s use of the term “independent contractor” should be given less weight

because the sales representative agreement was a contract of adhesion. We find that Vector and

Cutco have not identified any substantial prejudice that resulted from plaintiff’s line of

questioning, and we conclude that any error in admitting the testimony was harmless.

¶ 49                                  c. Closing Arguments

¶ 50   Finally, Vector and Cutco argue that they were deprived of a fair trial based on the

following statements made by plaintiff’s counsel during closing argument:



                                                21
No. 1-18-0420


                         “MR. NAPLETON [(PLAINTIFF’S COUNSEL)]: You know, folks, a

                jury trial’s all about communication. The judge talks, we talk, witnesses talk, and

                you sit there and listen. Believe me when you come out of that jury room with

                your verdict, you’re going to get your chance to talk. What will you say with your

                verdict? Are you going to let Vector get away with this shell game and perpetrate

                a fraud on the public?

                         MR. AESCHLIMAN [(DEFENSE COUNSEL)]: Objection. Improper,

                your Honor.

                         THE COURT: The objection’s sustained. The jury will disregard that.

                         MR. NAPLETON: Are you going to let Vector get away with what

                happened here in the relationship they had with this man, or are you going to tell

                them, ‘We’re drawing the line to prevent another injustice’—

                         MR. AESCHLIMAN: Objection. Improper, your Honor.

                         THE COURT: The objection’s sustained. The jury will disregard this.

                You’re only to resolve the issues in this case, and no other cases, or no future

                cases.

                         MR. NAPLETON: Folks, your verdict’s going to be heard loud and clear

                coast to coast. From Cook County Illinois all the way to the president’s office in

                Olean, New York. It’s not right. It’s not fair to leave Jacobi McClellan all by his

                lonesome to pick up this debt that’s due and owing this family.

                         MR. AESCHLIMAN: Objection, judge. Improper.

                         THE COURT: The objection’s sustained. The jury will disregard that.”




                                                22
No. 1-18-0420


¶ 51    Vector and Cutco contend that plaintiff’s counsel’s arguments were inflammatory and

prejudicial, that he was asking the jury to “send a message,” and that he persisted in making such

statements even after the circuit court sustained an objection to his comment about letting Vector

“get away with this shell game and perpetrate a fraud on the public.”

¶ 52    Plaintiff’s appellate brief does not defend the propriety of her counsel’s statements, but

instead argues that the circuit court sustained all of Vector’s and Cutco’s objections and gave the

jury curative instructions to disregard the comments. Plaintiff also argues that the jury was

instructed that the opening and closing arguments of counsel are not evidence. Plaintiff also

argues, without offering any citation to authority, that “[i]f any of these comments were so

inflammatory at the time they were made, [Vector and Cutco] had an obligation to move

contemporaneously with their objection for a mistrial,” and that the failure to request a mistrial

results in forfeiture. Plaintiff’s mistrial argument, however, merits no further consideration, as

plaintiff has not established that the failure to request a mistrial categorically precludes a request

for a new trial.

¶ 53    It is axiomatic that a jury must decide the case before it based on the evidence presented

at trial, and not based on an attorney’s appeal to the jurors’ emotions. “Questions as to the

prejudicial effect of remarks made during opening statement and closing argument are within the

discretion of the trial court, and determinations as to such questions will not be overturned absent

a clear abuse of discretion.” Simmons, 198 Ill. 2d at 568.

¶ 54    We find that Vector and Cutco have not established substantial prejudice arising from

plaintiff’s counsel’s improper comments. First, the circuit court properly instructed the jury that

remarks made by counsel during opening and closing arguments are not evidence. Second, the

circuit court promptly and properly gave a curative instruction to the jury to disregard the



                                                 23
No. 1-18-0420


improper comments. See Willaby v. Bendersky, 383 Ill. App. 3d 853, 862 (2008) (“Where the

trial court sustains a timely objection and instructs the jury to disregard the improper comment,

the court sufficiently cures any prejudice.”). There is nothing in the record on appeal that might

suggest that the jury failed to follow the trial judge’s curative instructions, or that the jury found

these statements to be persuasive. We cannot find that, given the length of the trial and extensive

arguments given by all of the attorneys in this case, the jury was influenced by plaintiff’s

counsel’s improper comments resulting in any substantial prejudice to Vector and Cutco. We

therefore have no basis from which to conclude that plaintiff’s counsel’s statements resulted in

any prejudice.

¶ 55   Finally, we are not persuaded that the cumulative effect of any of the alleged errors

deprived Vector and Cutco of a fair trial.

¶ 56                                    III. CONCLUSION

¶ 57   For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 58   Affirmed.




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