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                                  Appellate Court                          Date: 2019.07.11
                                                                           11:03:04 -05'00'




           Brettman v. M&G Truck Brokerage, Inc., 2019 IL App (2d) 180236



Appellate Court       DEREK BRETTMAN, Individually and as Guardian of GINA
Caption               BRETTMAN, a Disabled Person, Plaintiff-Appellant, v. M&G
                      TRUCK BROKERAGE, INC., and TEXANA PICKLE
                      PRODUCERS, INC., Defendant-Appellees.



District & No.        Second District
                      Docket No. 2-18-0236



Rule 23 order filed   December 21, 2018
Motion to
publish allowed       January 17, 2019
Opinion filed         January 17, 2019



Decision Under        Appeal from the Circuit Court of McHenry County, No. 15-LA-76;
Review                the Hon. Thomas A. Meyer, Judge, presiding.



Judgment              Affirmed.


Counsel on            Milo W. Lundblad and Jerome A. Urbik, of Brustin & Lundblad, Ltd.,
Appeal                of Chicago, for appellant.

                      James P. Crawley and Gerald A. Kennedy, of Kennedy & Associates,
                      PC, of Chicago, for appellee M&G Truck Brokerage, Inc.
                              Michael D. Sanders and Kingshuk K. Roy, of Purcell & Wardrope,
                              Chtrd., of Chicago, for other appellee.



     Panel                    JUSTICE JORGENSEN delivered the judgment of the court, with
                              opinion.
                              Justices Burke and Hudson concurred in the judgment and opinion.


                                               OPINION

¶1         Plaintiff, Derek Brettman, individually and as guardian of Gina Brettman, appeals the trial
       court’s grant of summary judgment to defendants, M&G Truck Brokerage, Inc. (M&G), and
       Texana Pickle Producers, Inc. (Texana), on four counts. Counts I and II were against M&G for
       negligence (vicarious liability) and negligent hiring. Counts III and IV were against Texana
       and were also for negligence (vicarious liability) and negligent hiring. For the reasons that
       follow, we affirm.

¶2                                          I. BACKGROUND
¶3         This matter arises out of a traffic accident between Gina Brettman and a tractor trailer
       driven by Isreal Vela, an employee of E.G.G. Trucking, which was owned by Efren Garcia
       (hereinafter collectively referred to as E.G.G., where appropriate). The accident occurred at a
       Huntley intersection that was under construction. It occurred after Vela had delivered a load of
       cucumbers from Texana in Progresso, Texas, to a Kraft/Claussen pickling plant in Woodstock.
       M&G brokered the delivery of the cucumbers. Plaintiff filed a 27-count complaint against
       E.G.G., Kraft/Claussen, Texana, M&G, and various entities involved in the construction of the
       intersection, such as Brown Traffic Products and Siemen’s Industry, Inc. Plaintiff reached
       settlements with many of these entities, including Kraft/Claussen and several of the
       construction entities. Plaintiff’s action remains pending as to E.G.G. This appeal concerns
       M&G and Texana only, and the trial court has entered the requisite finding under Illinois
       Supreme Court Rule 304(a) (eff. Mar. 8, 2016).
¶4         Texana grows cucumbers in Texas and Mexico. It sells the cucumbers to processing
       facilities across the United States, such as the Kraft/Claussen plant in Woodstock. It is not a
       trucking company, does not own any commercial or semitrucks, and does not have a
       department of transportation number or motor carrier authority. It does not contract with
       trucking companies. Rather, it works with shipping brokers to arrange the shipments. (In 2010,
       four years before the accident, a part owner of Texana, Frank Gonzalez, left Texana and
       became a part owner at M&G. Members of the same, extended Gonzalez family work at both
       companies.)
¶5         M&G is a Texas business entity that brokers freight delivery of products. M&G maintains
       a roster of 3000 carrier companies across the country, upon which it draws to arrange for the
       shipment of goods for its clients. To be on the roster, a carrier is required to submit a carrier
       information form, an insurance certificate, a W-9 form, and its motor carrier and department of
       transportation numbers. M&G does not have an exclusive contract with any of its carriers. It


                                                   -2-
       works with a number of carriers, just as each carrier works with a number of brokers. As such,
       M&G does not have a long-term contract with any of its carriers. Instead, each shipment load
       requires its own contract.
¶6         E.G.G. is a licensed motor carrier. It owned the refrigerated trailer involved in the instant
       case. It also owned the tractor that pulled the trailer, and it paid for all of the maintenance and
       insurance for the equipment. E.G.G. hired Vela, who had been working for E.G.G. for 10
       years.
¶7         In August 2013, Texana entered into a contract with Kraft/Claussen to supply cucumbers
       for the 2013-14 season. Throughout that season, Texana worked with 10 different brokerage
       companies to arrange for the shipment of its cucumbers. In turn, those 10 brokerage companies
       secured 100 different motor carriers to haul the cucumbers.
¶8         On March 9, 2014, Texana contacted M&G, asking M&G to arrange the shipment at issue.
       M&G, in turn, chose E.G.G. to haul the load. M&G had been working with E.G.G. since 2007.
       In those seven years, M&G had selected E.G.G. to haul as many as 10 loads per month without
       incident.
¶9         M&G took the following actions in brokering the load. It negotiated the freight and
       shipping charges. And it negotiated its own commission on the shipping charges. After the
       delivery was completed, Texana would pay M&G the shipping charge. Then, M&G would pay
       E.G.G., after deducting its own commission. M&G advanced $1500 to E.G.G. to cover
       expenses in hauling the load, like gas.
¶ 10       The contract between M&G and E.G.G. set forth certain instructions for the trip, such as
       the required temperature to keep the trailer. Kraft/Claussen chose the temperature and the
       deadline for delivery. Vela was to call M&G daily, before 10 a.m., or be subject to a $150 fine.
       He was also to call M&G if there was any delay that would prevent him from delivering the
       load on time.
¶ 11       Instructions aside, Vela testified in deposition that he conducted his own pre-trip
       inspection of the truck. He would address any problems with equipment without asking M&G
       for help. He chose what route to take, what speed to travel, and when to fuel up. He did not feel
       rushed over the course of the trip.
¶ 12       E.G.G. paid Vela for executing the trip. It administered Vela’s drug testing and provided
       his safety training. E.G.G. instructed Vela to pick up the load from Texana at approximately 11
       a.m. on March 9, 2014. Vela was to deliver the load to Kraft/Claussen by 5 a.m. on March 14,
       2014.
¶ 13       After unloading the cucumbers at the Kraft/Claussen plant, Vela was no longer required to
       check in with M&G. E.G.G. instructed Vela to take Interstate 90 to the nearest truck stop to
       wait for a new load assignment, which could originate from M&G or a new broker. After
       delivering the load, about 25 miles from the Kraft/Claussen plant but before reaching Interstate
       90, Vela collided with Brettman at an intersection. Vela was going straight, driving at the
       posted speed limit of 45 miles per hour, and Brettman was turning left with a green arrow. The
       intersection was under construction, and Vela later stated that he was confused by the traffic
       control signals. Vela saw that the permanent traffic signals were covered, so he assumed there
       were no traffic controls for drivers traveling in his direction. At the last second, he saw a
       temporary traffic signal hung with wire over the intersection. The temporary signal was red.



                                                    -3-
       He could not stop in time, and he collided with Brettman. Brettman suffered severe injuries as
       a result of the collision and filed the instant lawsuit.
¶ 14       In the seventh amended complaint at issue here, the first four counts are relevant. In count
       I, plaintiff alleged negligence (vicarious liability) against M&G. Plaintiff theorized that
       E.G.G., with Vela as its driver and Garcia as its owner, were agents of M&G because M&G
       imposed rules on driver conduct, thereby exercising a requisite degree of control to establish a
       principal-agent relationship. The agents were guilty of one of the following wrongful acts or
       omissions: failure to stop at a red light, failure to keep a reasonably careful lookout for other
       vehicles, failure to decrease speed, and driving too fast for conditions. As a result of these
       wrongful acts or omissions, Vela’s truck collided with Brettman’s automobile, causing injury.
¶ 15       In count III, plaintiff alleged the same, but against Texana.
¶ 16       In count II, plaintiff alleged negligent hiring against M&G. He alleged that M&G had a
       duty to exercise reasonable care when it selected a carrier to haul the load at issue. In his view,
       the exercise of reasonable care included performing an independent investigation and
       background check on E.G.G. and Vela. Had M&G performed an adequate investigation, it
       would have discovered, inter alia, that E.G.G. was an unrated motor carrier and that Vela had a
       history of forging time sheets. M&G negligently hired a company it should have known to be
       unfit. The exercise of reasonable care in hiring also included supervising E.G.G. in the
       transportation and delivery of commercial product to Kraft/Claussen. M&G failed in this as
       well. As a result of these wrongful acts or omissions, Vela’s truck collided with Brettman’s
       automobile, causing injury.
¶ 17       In count IV, plaintiff alleged the same, but against Texana.
¶ 18       The parties proceeded to discovery, where the evidence established the facts discussed
       above. In addition, plaintiff retained Whitney Morgan to testify to a broker’s duty of care in
       selecting a trucking company. Morgan had worked for the United States Department of
       Transportation, enforcing regulations. Morgan reviewed the evidence in the case, including the
       deposition testimony of Vela and Garcia. In Morgan’s view, brokers should contract only with
       carriers that have satisfactory ratings from the Federal Motor Carrier Safety Administration
       (FMCSA). The FMCSA conducts compliance reviews to determine whether a carrier meets
       minimum safety standards. The FMCSA never conducted a compliance review on E.G.G., so
       E.G.G. was an “unrated” carrier. In Morgan’s opinion, a broker should not contract with an
       unrated carrier.
¶ 19       Morgan posited that, if a broker were going to contract with an unrated motor carrier, it
       should conduct its own safety review. To do this, a broker should go to the FMCSA website to
       see if a given carrier has a record of accidents or safety violations. The FMCSA website
       showed that, while unrated overall, E.G.G. was rated at 75% on one metric measuring
       management controls. This was above FMCSA’s “intervention threshold” of 65%. E.G.G.’s
       two drivers had four citations between them in the 14 months preceding the accident for
       falsifying time sheets and driving without enough rest. In fact, Garcia admitted in deposition
       that he was aware that Vela had previously falsified a time sheet. Garcia informed Vela that he
       would be fired if he did it again. Also, Vela previously documented average speeds of 70 miles
       per hour. This speed is unrealistic, given that a trip is not entirely highway driving. Either Vela
       was speeding, or he drove more hours than allowed by federal regulations.
¶ 20       According to Morgan, it is clear that Vela once again falsified his time sheets while
       performing on the contract with M&G. Under certain conditions applicable here, federal

                                                    -4-
       regulations require a driver to rest a minimum of 10 hours before going back on the road each
       day. Morgan hypothesized that, from the times and locations recorded on Vela’s cell phone, it
       is clear he did not do this. Morgan believed that Vela drove 18 hours without proper rest before
       arriving at the Kraft/Claussen docking station and that he got less than 6.5 hours of sleep on the
       night preceding the accident.
¶ 21        Maria Vergara, a general manager for M&G, testified in a deposition that she has used the
       FMCSA website to search for driver safety violations. In the past, she has disqualified certain
       carriers based on the FMCSA information concerning prior violations. However, she did not
       perform a review of E.G.G. prior to this trip. She was aware, prior to contracting with E.G.G.
       for this trip, that an E.G.G. driver had been in a weather-related accident within the past year.
       No one was hurt in that accident.
¶ 22        Both M&G and Texana moved for summary judgment. In his response, plaintiff
       affirmatively abandoned count III, negligence (vicarious liability) against Texana. The trial
       court granted summary judgment to M&G and Texana on the remaining counts.
¶ 23        As to count I, vicarious liability as to M&G, the court agreed with M&G that any agency
       relationship shared by M&G and E.G.G., if it ever existed, terminated after Vela completed the
       delivery. The court stressed that M&G had no control over Vela after the delivery:
                “[P]laintiff put forth the argument that[,] if the fatigue *** occurred as a result of his
                driving while in the employ or acting as an agent of *** M&G, *** M&G should ***
                then continue to be responsible after *** the delivery of the product, and I would
                disagree with that because after the delivery *** their authority to control his actions
                terminated as well.
                    And they couldn’t tell him don’t drive. They couldn’t tell him sleep.” (Emphases
                added.)
       Further, Vela no longer had an obligation to check in with M&G. The court stated:
                “[T]here was no obligation that he make phone calls, there was no obligation that he
                refrigerate anything. There was no obligation to *** M&G that he do anything. He was
                dead to them at that stage.”
¶ 24        The court rejected plaintiff’s argument that the agency relationship continued after the
       delivery because, according to plaintiff, “if you have a trip assignment, a trip contract, that trip
       does not end until the driver reaches his home base.” See St. Paul Fire & Marine Insurance
       Co. v. Frankart, 69 Ill. 2d 209 (1977). M&G responded that St. Paul was inapposite. It
       concerned the interpretation of an insurance contract, not the scope of an agency relationship.
       The court agreed with M&G: “I don’t think the St. Paul case is applicable to this situation. I
       think factually it is distinguishable, and the fact that it addresses insurance coverage rather than
       the scope of an agency relationship for people who hired a carrier tells me not to rely on it.”
¶ 25        As to counts II and IV, negligent hiring, the court granted summary judgment to M&G and
       Texana, respectively. It determined that, regardless of which company had selected E.G.G., the
       accident occurred after the completion of the work E.G.G. was hired to perform. The court
       appeared to classify the issue of liability beyond the limits of the contracted-for work as
       determinative of the duty element rather than the proximate-cause element. It stated: “I’m less
       comfortable getting into a question of proximate cause, because that’s a tougher standard for
       summary judgment.” This appeal followed.



                                                    -5-
¶ 26                                             II. ANALYSIS
¶ 27        Plaintiff appeals the trial court’s grant of summary judgment to M&G and Texana on all
       four counts. We will not address count III, negligence (vicarious liability) as to Texana,
       because plaintiff unequivocally conceded below and at oral argument that no evidence
       supported that claim. Therefore, the argument is waived.
¶ 28        As to the remaining counts, “[s]ummary judgment is proper where, when viewed in the
       light most favorable to the nonmoving party, the pleadings, depositions, admissions, and
       affidavits on file reveal that there is no genuine issue as to any material fact and that the
       moving party is entitled to judgment as a matter of law.” Northern Illinois Emergency
       Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005).
                “[W]hile a plaintiff need not prove [his] entire cause during summary judgment, [he]
                must present some evidentiary facts to support the elements of [his] cause of action.
                [Citation.] If the plaintiff fails to establish even one element of the cause of action,
                summary judgment in favor of the defendant is wholly proper.” Wallace v. Alexian
                Brothers Medical Center, 389 Ill. App. 3d 1081, 1085 (2009).
       We review a grant of summary judgment de novo. Sollami v. Eaton, 201 Ill. 2d 1, 7 (2002).
       And, we may affirm a grant of summary judgment for any reason that finds its basis in the
       record, regardless of whether the trial court exercised similar reasoning. Northern Illinois, 216
       Ill. 2d at 305.

¶ 29                     A. Count I: Negligence (Vicarious Liability) as to M&G
¶ 30       The parties agree that count I turns on the existence of a principal-agent relationship
       between M&G and E.G.G. when the alleged negligence occurred. Plaintiff’s argument is
       twofold. He contends that (1) an agency relationship was formed when M&G exercised
       control over E.G.G.’s delivery of the load and (2) the agency relationship continued after the
       delivery and through the time that the accident occurred. We reject plaintiff’s argument. We
       agree with the trial court that, even if an agency relationship was formed during the delivery of
       the load, it terminated when E.G.G. completed its contractual obligation to deliver the load and
       M&G ceased to exercise any control over it or its driver. Because there was no agency
       relationship at the time the alleged negligence occurred, the trial court correctly granted
       summary judgment to M&G.
¶ 31       The principal-agent relationship is an exception to the general rule that a plaintiff in a
       negligence action must seek a remedy from the person who caused the injury. Sperl v. C.H.
       Robinson Worldwide, Inc., 408 Ill. App. 3d 1051, 1056-57 (2011). Under the theory of
       respondeat superior, a principal is vicariously liable for the conduct of its agent, but not for the
       conduct of an independent contractor. Id. at 1057. In distinguishing between an agent and an
       independent contractor, the court must consider the level of control under which the agent or
       independent contractor operates. Id. An agent voluntarily enters into a relationship whereby
       the principal has a right to control his conduct. Id. An independent contractor undertakes to
       produce a certain result, but he is not under the control of the person for whom he does the
       work. Id. The court is to consider whether there is a right to control the manner of work
       performance, regardless of whether that right is exercised. Id. The court may consider the
       nature of the work performed in relation to the general business of the employer, the right to
       discharge, the method of payment, the provision of necessary tools, whether taxes are deducted


                                                    -6-
       from payment, and the level of skill required. Id. at 1057-58. No single factor is determinative.
       Id. at 1058.
¶ 32       Both parties agree that Sperl controls the issue of whether M&G and E.G.G. ever shared an
       agency relationship. The facts of Sperl are as follows. C.H. Robinson Worldwide, Inc., a/k/a
       C.H. Robinson Company (CHR), was a federally licensed freight broker. It sold its services to
       customers needing to transport goods, and then it contracted with carriers to provide
       transportation to its customers. Id. at 1052. One of the carriers with whom CHR contracted was
       Dragonfly. Id. at 1052-53. Dragonfly agreed that all transportation would be performed under
       the contract, which required it to use competent drivers and be responsible for the drivers’
       salaries, charges, and workers’ compensation expenses. The contract specified that Dragonfly
       was an independent contractor. The contract allowed Dragonfly to haul loads for CHR. As to
       the specific trip at issue, however, Dragonfly’s driver hauled a load of potatoes owned by CHR.
       Id. at 1053. CHR issued a load confirmation sheet with special instructions. The special
       instructions required that Dragonfly’s driver “ ‘stay in constant communication with [CHR]’ ”
       and make “ ‘check calls’ ” daily no later than 10 a.m. Id. at 1054. Further, the driver was to
       keep the truck at a certain temperature and was given a strict deadline. All of these
       requirements were enforceable by fine. Id. The driver collided with the plaintiff during the haul
       of CHR’s potatoes. She later testified that CHR’s tight deadlines and system of fines put
       pressure on her and made it impossible for her to also comply with federal regulations limiting
       driving time. Id. at 1055. A jury determined that the driver had been an agent of CHR, making
       CHR liable for damages from the crash. Id. at 1056.
¶ 33       On appeal, CHR argued that the trial court should have granted its motion for a judgment
       notwithstanding the verdict or a new trial, because the evidence did not support the jury’s
       determination of an agency relationship. Id. The appellate court disagreed, holding that the
       evidence was sufficient to uphold the jury’s special finding. Id. at 1060. Despite contractual
       evidence that the parties intended an independent-contractor relationship, specific conduct
       indicated an agency relationship. See id. at 1057-58. The court explained that the driver’s
       services were closely aligned with CHR’s business of hauling freight for its customers. Id. at
       1058-59. CHR owned the product at issue as well as the warehouse to which it was being
       delivered. Id. at 1059. CHR was, therefore, motivated to see that the driver delivered the
       product with care. And, CHR enforced an extensive system of fines, influencing the driver’s
       compensation. Id. at 1059-60. It was while trying to adhere to CHR’s strict operation
       requirements that the driver collided with the plaintiff. The court concluded: “Th[e] extensive
       requirements, coupled with [the driver’s] fine-based compliance, directed [her] conduct during
       the entire transportation process and support the finding that CHR had the right to control the
       manner in which [the driver] performed her job.” Id. at 1058. As the evidence supported
       CHR’s right to control the manner in which the driver performed her job, it also supported the
       existence of an agency relationship. Id. at 1059.
¶ 34       Some of the indicia of control set forth in Sperl are, arguably, present here. M&G was
       engaged exclusively in the trucking business. M&G instructed E.G.G. to maintain the truck at
       a certain temperature and check in once per day. E.G.G. was to notify M&G if the shipment
       was going to be late. M&G imposed a system of fines to enforce its requirements. Unlike in
       Sperl, however, M&G did not own the product at issue or the warehouse to which it was being
       delivered. M&G was not acting in furtherance of its own business when it instructed E.G.G. to
       maintain the truck at a certain temperature. Rather, acting as a broker, it passed on


                                                   -7-
       requirements from Kraft/Claussen. There was no indication that M&G required E.G.G. to
       remain in “constant contact” or that its operation requirements and system of fines were so
       onerous that E.G.G. felt pressure to violate federal regulations in order to avoid incurring fines.
       To the contrary, Vela testified that he did not feel pressure.
¶ 35        The key difference, however, is that, in Sperl, the accident occurred when the driver was
       acting at the broker’s direction. Here, in contrast, the accident occurred after E.G.G. had
       completed its contract for delivery and after M&G ceased to exercise any control over it. For
       that reason, we, like the trial court, do not find it necessary to determine whether sufficient
       evidence supports that M&G ever had a right to control E.G.G. so as to establish an agency
       relationship. To us, it is dispositive that, at the time of the accident, M&G did not exercise any
       control over E.G.G. so as to continue in an agency relationship.
¶ 36        We look to the Restatement (Third) of Agency for further support that the agency
       relationship terminated upon the completion of the contracted-for delivery:
                “[A]n agent’s actual authority may terminate upon the occurrence of circumstances
                under which the agent should reasonably conclude the principal would no longer assent
                to the agent’s taking action on the principal’s behalf. If the principal has engaged the
                agent for a particular task, its completion is such a circumstance.” Restatement (Third)
                of Agency § 3.09 cmt. b, at 229 (2005) (not yet adopted by the supreme court, cited for
                guidance only).
       Here, if it ever existed, the agency relationship terminated upon the completion of the task of
       delivering the cucumbers to the Kraft/Claussen plant. E.G.G. had already completed the
       assigned task before the time of the alleged negligence—failure to stop at a red light, failure to
       keep a reasonably careful lookout for other vehicles, failure to decrease speed, and driving too
       fast for conditions. No indicia of control were present at that time. M&G could no longer direct
       E.G.G. in any manner. M&G could no longer inform E.G.G. what to deliver, where to deliver
       it, what temperature to keep it at, or to stay in contact. It could not tell Vela to rest. E.G.G.
       alone instructed and controlled Vela after the delivery.
¶ 37        Plaintiff argues that there is “some indication” that E.G.G. was still acting within the scope
       of its agency relationship with M&G following the delivery because it expected M&G to look
       for loads it could haul on its return trip to Texas. We reject this argument. That E.G.G.
       remained open to working with M&G in the future does not create a “genuine issue” that it was
       operating at its direction at the time of the accident. E.G.G.’s hope or expectation of future
       business with M&G cannot show M&G’s current control over E.G.G.
¶ 38        Plaintiff also argues, as he did below, that the agency relationship between M&G and
       E.G.G. did “not terminate at the point of delivery [but] continue[d] at least until the
       owner-driver return[ed] to the point where the haul originated, to the terminal from which the
       haul was assigned, or the owner-driver’s home terminal from which he customarily obtain[ed]
       his next assignment.” St. Paul, 69 Ill. 2d at 218; see also Occidental Fire & Casualty Co. of
       North Carolina, 113 Ill. App. 3d 215, 220 (1983); Hodges v. Johnson, 52 F. Supp. 488, 492
       (W.D. Va. 1943).
¶ 39        Plaintiff takes this quote out of context. St. Paul discussed not the termination of an agency
       relationship, but the definition of a term in an insurance policy, “being used in the business.”
       St. Paul, 69 Ill. 2d at 213. To interpret that term, the court looked to define a trip or an
       assignment. Id. at 218-19. The court determined that, in the context of the insurance-coverage


                                                    -8-
       issue before it, a trip did not necessarily end at the point of delivery but could include the return
       leg. Id. at 219.
¶ 40        Our ruling does not conflict with the definition of a trip set forth in St. Paul and the other
       cases cited by plaintiff. This case is not about the definition of a term in an insurance contract.
       It is about the right to control the work. M&G’s right to exercise any control over Vela ended
       upon the completion of delivery. It was E.G.G., not M&G, who instructed Vela after the
       completion of delivery and on the return leg. Upon the completion of delivery, E.G.G. was free
       to accept a new assignment from M&G or any other broker. Unless the parties entered into a
       new contract, M&G had no control over E.G.G. after its delivery of the cucumbers and
       satisfaction of the instant contract. Thus, there was no evidence of an agency relationship at the
       time of the alleged negligence, so M&G cannot be vicariously liable for the alleged
       negligence. Summary judgment was properly granted on count I.

¶ 41                               B. Counts II and IV: Negligent Hiring
¶ 42       Plaintiff next argues that the trial court erred in granting summary judgment to M&G and
       Texana on counts II and IV, respectively, for negligent hiring. Under this theory, M&G and
       Texana would be liable not for E.G.G.’s actions, but for their own actions in hiring E.G.G. to
       transport the goods. In a negligence action, the plaintiff must plead and prove (1) the existence
       of a duty of care owed to the plaintiff by the defendant, (2) a breach of that duty, (3) an injury
       proximately caused by that breach, and (4) damages. Calles v. Scripto-Tokai Corp., 224 Ill. 2d
       247, 270 (2007). Proximate cause has two components: cause in fact and legal cause. Turcios
       v. The DeBruler Co., 2015 IL 117962, ¶ 23. As to cause in fact, courts typically consider the
       but-for test or the substantial-factor test. Id. The but-for test states that conduct cannot be a
       cause of an event if the event would have occurred without it. Id. The substantial-factor test
       states that conduct is a cause of an event if it was a material element and a substantial factor in
       bringing about the event. Id. As to legal cause, courts typically assess foreseeability. Id. ¶ 24. A
       court must consider whether the injury is one that a reasonable person would see as a likely
       result of his conduct, or whether the injury is so highly extraordinary that imposing liability is
       not justified. Id. “The question is one of policy—how far should a defendant’s legal
       responsibility extend for conduct that did, in fact, cause the harm?” (Internal quotation marks
       omitted.) Id.
¶ 43       In an action for negligent hiring or retention of an employee, specifically, the plaintiff must
       plead and prove (1) that the employer knew or should have known that the employee had a
       particular unfitness for the position so as to create a danger of harm to third persons, (2) that
       such particular unfitness was known or should have been known at the time of the employee’s
       hiring or retention, (3) that this particular unfitness proximately caused the plaintiff’s injury,
       and (4) damages. Doe v. Catholic Bishop of Chicago, 2017 IL App (1st) 162388, ¶ 11. Further,
       the duty of care in selecting an independent contractor is that which a reasonable person would
       exercise under the circumstances. Carney v. Union Pacific R.R. Co., 2016 IL 118984, ¶ 66.
       The common law tort of negligent hiring or retention finds its basis in the Restatement
       (Second) of Torts § 411 (1965):
                “An employer is subject to liability for physical harm to third persons caused by his
                failure to exercise reasonable care to employ a competent contractor (a) to do work
                which will involve a risk of physical harm unless it is skillfully and carefully done, or
                (b) to perform any duty which the employer owes to third persons.”

                                                     -9-
       A “competent and careful contractor” is a contractor who
                “possesses the knowledge, skill, experience, and available equipment which a
                reasonable man would realize that a contractor must have in order to do the work which
                he is employed to do without creating unreasonable risk of injury to others, and who
                also possesses the personal characteristics which are equally necessary.” Restatement
                (Second) of Torts § 411 cmt. a, at 376-77 (1965).
       The Illinois Supreme Court has adopted section 411 of the Restatement. See Carney, 2016 IL
       118984, ¶ 88; Gomien v. Wear-Ever Aluminum, Inc., 50 Ill. 2d 19, 21 (1971) (Gomien II).
¶ 44        We begin with count II, negligent hiring against M&G. The parties spend much of their
       briefs citing Morgan’s and Vergara’s deposition testimony and debating whether there is a
       genuine issue that M&G failed in its duty to exercise reasonable care in hiring E.G.G. Even if
       we assume that there was sufficient evidence to raise a material factual issue as to whether
       M&G breached its duty of care in hiring E.G.G., plaintiff’s argument ultimately fails. The
       remaining question is whether the failure to exercise reasonable care in hiring E.G.G. to
       perform the contracted-for work proximately caused the injuries. Although the trial court
       properly recognized E.G.G.’s completion of the contracted-for work as an enormous hurdle for
       plaintiff, it did not seem to recognize that the completion of the contracted-for work implicated
       the proximate-cause element: “I’m less comfortable getting into a question of proximate cause,
       because that’s a tougher standard for summary judgment.” Instead, the trial court incorrectly
       assumed that the termination of the hiring relationship implicated the duty element. (Perhaps
       the court meant that there can be no duty to exercise reasonable care in retaining an
       independent contractor where that contractor is no longer retained.) In any case, M&G does
       not seriously debate that it had a duty to exercise reasonable care in hiring a carrier. Regardless
       of the court’s misstatement, we may affirm a grant of summary judgment for any reason that
       finds its basis in the record. Northern Illinois, 216 Ill. 2d at 305. This claim turns on proximate
       cause.
¶ 45        We recognize that proximate cause is typically a matter for the jury. Platson v. NSM,
       America, Inc., 322 Ill. App. 3d 138, 144 (2001). However, if the facts alleged do not
       sufficiently demonstrate both cause in fact and legal cause, which involves policy
       considerations, the lack of proximate cause may be determined by a court as a matter of law.
       City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 395-96 (2004). Proximate cause is not
       a matter for the jury in this case because the cause of action at issue sets forth a rigorous
       proximate-cause standard that simply cannot be met under the existing record. As we explain,
       the definition of the cause of action of negligent hiring or retention centers on the work to be
       performed and whether the incompetent execution of that work caused harm to a third party.
       Again, in an action for negligent hiring or retention, the injury must have occurred by virtue of
       the servant’s employment. Bates v. Doria, 150 Ill. App. 3d 1025, 1031-32 (1986). The
       employer’s liability attaches “only where there was demonstrated some connection between
       the plaintiff’s injuries and the fact of employment.” Id. at 1032. As stated in Carney, 2016 IL
       118984, ¶ 65, an employer is subject to liability for harm to third persons caused by its failure
       to exercise reasonable care to employ a competent and careful contractor to do work that will
       involve a risk of harm unless that work is carefully done.
¶ 46        As a matter of public policy, the courts have set a rigorous proximate-cause standard for
       the cause of action. Doe v. Boy Scouts of America, 2014 IL App (2d) 130121, ¶ 43. In Gomien
       II, the supreme court strongly implied that, to support a claim for negligent hiring or retention,

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       the injury must have occurred while the independent contractor was directly involved in the
       performance of the contracted-for work, as opposed to an act collateral to the work for which
       the contractor was engaged. Gomien II, 50 Ill. 2d at 24.
¶ 47       In Gomien v. Wear-Ever Aluminum, Inc., 131 Ill. App. 2d 760 (1970) (Gomien I), the
       defendant manufacturer selected an independent contractor to solicit sales. The defendant
       knew that the contractor must operate a motor vehicle to perform his obligations under the
       agreement, and the defendant had a duty to persons using highways to exercise reasonable care
       in selecting the contractor. While operating his vehicle for the solicitation of sales for the
       defendant, the contractor struck and injured the plaintiff. The plaintiff pleaded that, had the
       defendant investigated, it would have learned that the contractor was a habitually negligent
       driver with a history of traffic violations and accidents. Id. at 761-62. The trial court dismissed
       the complaint, and the appellate court affirmed. Id. at 765. The appellate court reasoned that
       there could be no liability, because the accident occurred not when the contractor was directly
       involved in the work of soliciting customers or selling products, for which he was retained, but
       when he was engaged in the collateral act of operating his motor vehicle on the highway. Id.
       The supreme court reversed: “Under this state of the pleadings, the operation of the automobile
       by [the contractor] was not an act collateral to the performance of the work for which he was
       engaged. It was part of the conduct directly involved in the performance of the work contracted
       for.” Gomien II, 50 Ill. 2d at 24.
¶ 48       Applying the law set forth in Gomien II leads to a different result in this case. In Gomien II,
       the injury occurred while the contractor was directly involved in completing the contracted-for
       task. If, as in Gomien II, the injury here had occurred while Vela was operating his motor
       vehicle to deliver produce, M&G might have been subject to liability under a theory of
       negligent hiring or retention. The difference is that, here, Vela was not operating his vehicle to
       perform the contracted-for work when the injury occurred. The work for which he had been
       engaged was completed. He was no longer hired or retained by M&G. He was 25 miles away
       from the pickle plant.
¶ 49       As in Gomien II, in every Illinois negligent hiring or retention case cited by plaintiff, the
       accident occurred while the selected contractor performed the contracted-for work. See, e.g.,
       Carney, 2016 IL 118984, ¶ 88 (no liability, although the construction accident occurred on the
       job, because the victim subcontractor was not a third party entitled to protection under the
       cause of action); Hayward v. C.H. Robinson Co., 2014 IL App (3d) 130530, ¶ 43 (no liability,
       although the traffic accident occurred while the contractor delivered the broker’s freight,
       because the broker did not have reason to know of the particular unfitness); see also Platson,
       322 Ill. App. 3d at 140 (a negligent supervision claim; assault occurred at work). Similarly, in
       every non-Illinois negligent hiring or retention case cited by plaintiff, the accident occurred
       while the selected contractor performed the contracted-for work. See L.B. Foster Co. v.
       Hurnblad, 418 F.2d 727, 728 (9th Cir. 1969) (the accident occurred during the contracted-for
       haul of steel); McComb v. Bugarin, 20 F. Supp. 3d 676, 678 (N.D. Ill. 2014) (same); Schramm
       v. Foster, 341 F. Supp. 2d 536, 540 (D. Md. 2004) (the accident occurred during the
       contracted-for shipment of soymilk); Puckrein v. ATI Transport, Inc., 897 A.2d 1034, 1037
       (N.J. 2006) (the accident occurred during the contracted-for removal of waste); Hudgens v.
       Cook Industries, Inc., 1973 OK 145, ¶ 1, 521 P.2d 813 (the accident occurred during the
       contracted-for shipment of wheat).



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¶ 50       Our research has not revealed an Illinois negligent hiring or retention case finding
       proximate cause when the injury occurred after the completion of the contracted-for work,
       during a period this court has referred to as posttermination. We find Boy Scouts instructive on
       the limitations of posttermination liability. In Boy Scouts, a retired scout executive sexually
       assaulted a teenage boy. Boy Scouts, 2014 IL App (2d) 130121, ¶¶ 4-5. The mother sued the
       local Boy Scouts organization, the Blackhawk Area Council (BAC), alleging, inter alia,
       negligent hiring and retention. Id. ¶ 1. Her theory of the case was as follows. The executive
       was a pedophile who posed a constant threat to boys. BAC knew that, in the past, pedophiles
       had infiltrated its leadership. Id. ¶ 5. BAC did not appropriately screen the executive before
       awarding him the position, negligently hiring him. Id. ¶ 7. If it had screened the executive, it
       would have known that, in the 1970s, he had been discharged from the military for suspected
       homosexual activity1 and that, in the late 1980s or early 1990s, he had been apprehended in
       Germany for driving under the influence while an 18-year-old man was in the car with him. Id.
       ¶¶ 10-14. Also, BAC did not heed warning signs that occurred during the executive’s tenure,
       negligently retaining him. It had been told that the executive positioned himself in the boys’
       locker room of a swimming pool complex so as to see the boys changing. Id. ¶ 20. The
       executive interacted with the victim between 2001 and 2006, beginning when the victim was
       10 years old. During that time, the executive exploited his leadership role to gain the victim’s
       trust, admiration, and obedience. The two saw each other at all major scouting events. The
       executive spoke with the victim and his mother at these events. The executive took a special
       interest in the victim, encouraging him to apply for a foreign exchange program. The executive
       visited the victim’s home to speak with his mother about it. He also agreed to pay for the victim
       to attend modeling school, though the victim’s mother ultimately decided against it. Id.
       ¶¶ 23-24. In March 2006, the executive retired. He no longer held a position with BAC. Id.
       ¶ 27. Three months later, in June or July 2006, the executive invited the victim to go to an event
       in Michigan with him. The two would share a hotel room, with no one else. The mother agreed
       to the trip, because she had known the executive for several years, she knew him to be a scout
       leader, and she trusted him. While on the trip, the executive sexually assaulted the victim. Id.
       ¶¶ 25-26.
¶ 51       The trial court granted summary judgment to BAC. It explained that, as a matter of law,
       BAC could not have committed the tort of negligent hiring and retention because BAC no
       longer employed the executive when the executive inflicted the injuries for which the plaintiff
       sought relief. Id. ¶ 29.
¶ 52       This court affirmed. We noted that there was no authority in Illinois for holding an
       employer liable for posttermination acts. Id. ¶ 41. We acknowledged that other jurisdictions
       were split on the question of liability for posttermination acts, but we declined to make a
       definitive statement absent a full briefing. Id. ¶¶ 41-42. Nevertheless, we appreciated the logic
       and practicality of deeming an employee’s termination a cutoff for employer liability. Id. ¶ 41.
       And, we observed:
                “[T]he 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

          1
            The court, of course, rejected the mother’s insinuation that homosexual individuals were more
       likely to commit acts of child abuse. Id. ¶ 44.

                                                   - 12 -
                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.’ [Citation.] 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.” (Emphasis omitted.) Id. ¶ 42.
¶ 53       We distinguished acts occurring posttermination from acts occurring outside the scope of
       employment. An employer may be liable for out-of-the-scope acts, but 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. Id.
       ¶ 43. As no authority exists for posttermination liability, and as out-of-scope liability is
       extremely limited, Illinois law and policy have demonstrated a rigorous standard of proximate
       causation in the context of negligent hiring or retention cases. Id. “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.” Id. We summarized that “what
       plaintiff seeks is a broadening of liability as currently recognized by Illinois law.” Id. ¶ 51.
¶ 54       As in Boy Scouts, plaintiff here is asking this court to expand Illinois law on negligent
       hiring or retention. We decline to do so. Plaintiff has not cited one case where the accident,
       wrongful act, or injury occurred posttermination. This case is different from a scenario where a
       contractor’s incompetent workmanship resulted in a construction failure postjob, such as a
       cornice falling off of a building and onto a pedestrian. See, e.g., Carney, 2016 IL 118984, ¶ 79
       (discussing the Restatement (Second) of Torts § 411 (1965)). In that example, the work itself
       was not performed in a manner so as to reasonably protect third parties from harm. Here, the
       work itself, delivering the cucumbers, was performed without incident. Rather, it was the
       worker, not the work, who went on, posttermination, to injure a third party. Illinois does not
       have a policy of making those who select independent contractors become insurers for the
       independent, posttermination actions of those contractors.
¶ 55       We reject plaintiff’s theory that, because E.G.G. continued to perform on its contract with
       M&G on the return leg of the trip, the accident did not occur posttermination. Plaintiff again
       cites St. Paul for the proposition that, in the trucking industry, an assignment to haul a load
       does not end until the driver reaches his home base or is assigned a new job. Again, St. Paul is
       not applicable. St. Paul sought to define terms set forth in an insurance contract. That issue is
       inapposite to the instant case. More to the point, here, the contract terminated upon completion
       of the contracted-for task, the delivery of the cucumbers. After the delivery, E.G.G. had no
       remaining obligations to M&G. Postdelivery meant posttermination.
¶ 56       We also reject plaintiff’s alternate theory that, even if the accident occurred
       posttermination, the negligent act—driving too many hours so as to become
       fatigued—occurred predelivery while E.G.G. performed on its contract with M&G. Still, we
       find this case analogous to Boy Scouts. In that case, the executive engaged in acts, such as
       grooming, while employed that created a condition for the wrongful act of molestation.
       However, he committed the wrongful act of molestation, which caused the injury,
       posttermination. Here, even if we assume the independent contractor became fatigued while
       completing his contract for M&G, he committed the wrongful acts—failing to stop at a red
       light, failing to keep a reasonably careful lookout for other vehicles, failing to decrease speed,
       and driving too fast for conditions—posttermination.

                                                   - 13 -
¶ 57       We now turn to count IV, negligent hiring against Texana. We first note that plaintiff is
       unable to point to any evidence that supports a finding that Texana hired E.G.G. Plaintiff’s
       expert, Morgan, opined only that M&G was negligent in selecting E.G.G.; Morgan did not
       offer any opinion as to Texana. In fact, plaintiff concedes: “While plaintiff agrees that the
       preponderance of the evidence does indicate that M&G hired E.G.G., M&G itself denies this.
       Consequently, [whether Texana hired E.G.G.] is a material fact that is in dispute and should be
       resolved by a jury, not on summary judgment.” Plaintiff also states that one person at M&G,
       Gonzalez, had an ownership interest in Texana four years prior to the accident. This
       observation is mere conjecture on plaintiff’s part. Mere speculation, conjecture, or guess is
       insufficient to withstand summary judgment. Lewis v. Chica Trucking, Inc., 409 Ill. App. 3d
       240, 251 (2011). Plaintiff failed to raise a genuine issue as to whether Texana hired E.G.G.
       And, even if Texana had selected E.G.G. to haul the load, the negligence still would have
       occurred posttermination.

¶ 58                                       III. CONCLUSION
¶ 59       Summary judgment is a drastic remedy to be awarded only where the right of the movant is
       clear and free from doubt. Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31
       (1999). Here, however, it is warranted. There was no agency or hiring relationship between
       M&G and E.G.G. at the time of E.G.G.’s alleged negligence. E.G.G. was not on M&G’s
       premises, using M&G’s equipment, or acting under the direction of M&G. E.G.G. had
       completed its contracted-for work at the time of the accident. For the reasons stated, we affirm
       the trial court’s grant of summary judgment to M&G and Texana.

¶ 60      Affirmed.




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