                                                                   FIFTH DIVISION
                                                                   November 5, 2010




No. 1-09-2745


MICHAEL K. RODMAN,                                  )      Appeal from the
                                                    )      Circuit Court of
       Plaintiff-Appellant,                         )      Cook County,
                                                    )
       v.                                           )      07 L 4929
                                                    )
CSX INTERMODAL, INC., a corporation,                )      The Honorable
                                                    )      Eileen M. Brewer,
       Defendant-Appellee.                          )      Judge Presiding.




       JUSTICE TOOMIN delivered the opinion of the court:

       Here, we consider whether an employer may be vicariously liable for the negligence of an

employee that occurs while the worker is en route to “punching out,” as directed by the employer.

Plaintiff, Michael Rodman, was injured in a collision with an employee of defendant, CSX

Intermodal, Inc., that occurred at the premises where the employee worked. The circuit court

found that the employee was not acting within the scope of employment at the time of the

collision and entered summary judgment for defendant. For the following reasons, we reverse and

remand for further proceedings.
No. 1-09-2745

                                         BACKGROUND

       Adam Wielgosiak worked for CSX Intermodal (CSX) from May 1998 to June 2006, as an

airman-tie-down employee. His responsibility as an airman was to ensure that the brakes on rail

cars at the Bedford railyard terminal were within federal guidelines and functional. His duties as a

tie-down worker were to ensure the trailers in the railyard were stored securely in the train

hitches. Wielgosiak worked in the “ramp,” the secured area of the yard that contained

approximately 22 railroad tracks.

       Wielgosiak worked the 6:30 a.m. to 2:30 p.m. shift. One of CSX’s job requirements was

that the employees had to clock in before starting their shifts and clock out when ending the shift.

The time clock was located in the main building. Accordingly, upon arriving each work day at

CSX’s property, Wielgosiak would first enter the main building and punch in. Wielgosiak was

required to punch out at 2:30 p.m. If he punched out any earlier, he would be subject to

disciplinary action by CSX.

       There was a smaller building about 30 yards west of the main building that had a

lunchroom, locker room and bathrooms, with an adjacent parking lot for CSX workers.

Wielgosiak regularly parked his car in the parking lot next to the smaller building. Upon finishing

their shifts, the CSX workers routinely would go to the smaller building to change and clean up

and then drive their personal vehicles to the main building to punch out. CSX’s management had

no rule or policy prohibiting the workers from punching out in that fashion. Notably, as plaintiff

maintains, some CSX personnel actually directed the workers to park near the smaller building

because the company frowned upon its employees filling the parking spaces by the main building.


                                                 2
No. 1-09-2745

       Plaintiff was employed by a CSX subcontractor to repair ceiling tile in the main building.

On June 4, 2005, plaintiff left his station in the main building and proceeded to his car in the

parking lot. While returning to the building, as plaintiff crossed the lot, he was struck by

Wielgosiak, who was driving to the main building to punch out for the day. Plaintiff sustained a

lateral tibial plateau fracture in his left knee, resulting in two surgeries. The accident occurred

before Wielgosiak’s 2:30 p.m. shift end time and he was still on the clock.

       Thereafter, plaintiff commenced the instant cause of action for personal injuries. In turn,

CSX filed a motion for summary judgment on the grounds that Wielgosiak was not acting within

the scope of his employment with CSX at the time of the collision. The circuit court granted the

motion and plaintiff now appeals.

                                             ANALYSIS

       Plaintiff maintains that the circuit court erred in granting summary judgment asserting that

a genuine issue of material fact existed as to whether Wielgosiak was acting within the scope of

his employment at the time of the accident. Prevailing practice holds that summary judgment

should be granted if “there is no genuine issue as to any material fact and *** the moving party is

entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2008). Summary

judgment is to be encouraged in the interest of prompt disposition of lawsuits, but as a drastic

measure it should be allowed only when a moving party’s right to it is clear and free from doubt.

Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). “Because the purpose of a

summary judgment proceeding is to determine whether there are any genuine issues of triable fact

[citation], a motion for summary judgment should be granted only when ‘the pleadings,


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No. 1-09-2745

depositions, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.’ [Citation.]” Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871. When determining the

existence of a genuine issue of material fact, the trial court should construe pleadings, depositions,

admissions, exhibits, and affidavits strictly against the movant and liberally in favor of the

respondent. Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871; 735 ILCS 5/2-619 (West 2008). In

appeals from summary judgment rulings, our review is de novo. Williams v. Manchester, 228 Ill.

2d 404, 417, 888 N.E.2d 1, 9 (2008).

       An unbroken line of precedent holds that summary judgment is generally inappropriate

when scope of employment is at issue. Pyne v. Witmer, 129 Ill. 2d 351, 359, 543 N.E.2d 1304,

1308 (1989), (citing Dragovan v. City of Crest Hill, 115 Ill. App. 3d 999, 1001, 451 N.E.2d 22,

24 (1983), Metzler v. Layton, 373 Ill. 88, 93, 25 N.E.2d 60, 62 (1939), Kavale v. Morton Salt

Co., 329 Ill. 445, 451-52, 160 N.E. 752, 754 (1928), Bonnem v. Harrison, 17 Ill. App. 2d 292,

298-99, 150 N.E.2d 383, 386 (1958), Becker v. Brummel, 319 Ill. App. 499, 503, 48 N.E.2d 419,

421 (1943), and 57 C.J.S. Master & Servant §617(a)(3) (1948)).

       The principle engrafted in English common law subjected an employer to vicarious liability

for his employees under the doctrine of respondeat superior. Bank of America, N.A. v. Bird, 392

Ill. App. 3d 621, 626, 911 N.E.2d 1239, 1243 (2009). The master was liable for the acts of his

servant while the servant was carrying into effect the master's orders where the acts were for the

good of the master and sufficiently within the course of employment. Turberville v. Stampe, 1

Salk. 13, 1 Ld. Raym. 264 (1698). See also W. Blackstone, Commentaries *418 (“If a servant


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No. 1-09-2745

*** by his negligence does any damage to a stranger, the master shall answer for his neglect ***

But in these cases the damage must be done while he is actually employed in the master’s service;

otherwise the servant shall answer for his own misbehavior”). In adherence to this abiding

principle, our supreme court has reaffirmed that Illinois courts look to the Second Restatement of

Agency (the Restatement) for guidance in determining whether an employee’s acts are within the

scope of employment. Adames v. Sheahan, 233 Ill. 2d 276, 298-99, 909 N.E.2d 742, 755 (2009),

citing Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 164, 862 N.E.2d 985, 992 (2007); Pyne,

129 Ill. 2d at 360, 543 N.E.2d at 1309. The Restatement identifies three general criteria to be

used in making this determination:

                “(1) Conduct of a servant is within the scope of employment if, but only if:

                       (a) it is of the kind he is employed to perform;

                       (b) it occurs substantially within the authorized time and space limits;

                       (c) it is actuated, at least in part, by a purpose to serve the master ***[.]

                       ***

                (2) Conduct of a servant is not within the scope of employment if it is different in

                kind from that authorized, far beyond the authorized time or space limits, or too

                little actuated by a purpose to serve the master.” Restatement (Second) of Agency

                §228 (1958).

See also Pyne v. Witmer, 129 Ill. 2d 351, 360, 543 N.E.2d 1304, 1308 (1989), quoting

Restatement (Second) of Agency, §228 (1958).

       As a general rule, all three criteria of section 228 must be met in order to conclude that an


                                                  5
No. 1-09-2745

employee was acting within the scope of employment. Bagent, 224 Ill. 2d at 165, 862 N.E.2d at

992. Only if no reasonable person could conclude from the evidence that an employee was acting

within the course of employment should a court hold as a matter of law that the employee was not

so acting. Pyne, 129 Ill. 2d at 359, 543 N.E.2d at 1308, citing Boehmer v. Norton, 328 Ill. App.

17, 21, 24, 65 N.E.2d 212, 214, 215 (1946). See also Montgomery v. Petty Management Corp.,

323 Ill. App. 3d 514, 518, 752 N.E.2d 596, 599 (2001).

        In the case sub judice, the circuit court’s terse ruling that the evidence presented “makes it

clear that the defendant, Adam Wielgosiak, was not acting within the scope of his employment,”

provides no insight as to which criteria the court found lacking. Plaintiff cites to workers’

compensation cases, asserting that Wielgosiak was acting within the scope of employment where

he was required by CSX to punch out and was still “on the clock.” Additionally, plaintiff argues

that CSX made Wielgosiak submit to a drug test and complete a CSX incident report, and given

that he had just finished his shift and was en route to the main building on CSX premises, the

collision was within the time and space parameters of Wielgosiak’s employment. CSX counters

that workers’ compensation cases are wholly irrelevant to respondeat superior liability in a

negligence action. CSX further asserts that plaintiff failed to establish the three requisite criteria

as Wielgosiak had stopped doing his assigned work more than a half-hour before the collision;

was driving his personal vehicle; and was “wholly outside of the time and space limits of the work

assigned him” because the collision occurred in the public parking lot.

        Although plaintiff places reliance on decisions in workers’ compensation cases, we agree

with CSX that such authorities are distinguishable in that the governing statute provides a


                                                   6
No. 1-09-2745

different basis for liability than a common law tort negligence action premised on respondeat

superior liability. Nonetheless, our precedent in workers’ compensation actions regarding

whether an employee is within the scope of employment while en route to punch out informs our

analysis.

        Thus, in Union Starch & Refining Co. v. Industrial Comm’n, 344 Ill. 77, 176 N.E. 303

(1931), our supreme court held that an employee who was struck by a car while he was waiting to

clock out from work, as required by his employer, was in the course and scope of employment

and was entitled to workers' compensation benefits. Also, in Northwestern Steel & Wire Co. v.

Industrial Comm’n, 38 Ill. 2d 441, 232 N.E.2d 293 (1967), cited by plaintiff, the claimant was

held to be in the course of his employment when he was injured while crossing a fence onto the

employer's property en route to the time clock. The employee testified that it had been his

practice to use this route to and from the plant for several weeks and offered evidence that this

was a customary route of ingress and egress for many other employees as well. Northwestern

Steel & Wire Co., 38 Ill. 2d at 444, 232 N.E.2d at 296. Notably, the court observed, “ ‘the courts

of this jurisdiction have consistently concluded that an injury accidentally received on the premises

of the employer by an employee going to or from his actual employment by a customary or

permitted route, within a reasonable time before or after work, is received in the course of and

arises out of the employment.’ ” Northwestern Steel & Wire Co., 38 Ill. 2d at 445, 232 N.E.2d at

296, quoting Chmelik v. Vana, 31 Ill. 2d 272, 279, 201 N.E.2d 434, 439 (1964).

        An identical result obtained in Hall v. DeFalco, 178 Ill. App. 3d 408, 413, 533 N.E.2d

448, 451-52 (1988), appeal denied, 125 Ill. 2d 565, 537 N.E.2d 809 (1989), where the fact that


                                                 7
No. 1-09-2745

plaintiff had punched out of work did not create an inference that the accident occurred outside

the scope of employment. Hall, 178 Ill. App. 3d at 413, 533 N.E.2d at 452. The defendant’s

uncontroverted affidavit stated that transporting plaintiff and other employees was within the

scope of employment and was part of his job, and thus the accident and any injuries sustained in

the accident occurred within the scope of employment. Hall, 178 Ill. App. 3d at 413, 533 N.E.2d

at 452.

          CSX contends that the mere fact that Wielgosiak was still “on the clock” does not

establish that he acted within the scope of his employment. CSX further avers that the route he

took was his personal choice and not dictated by CSX and, further, that Wielgosiak was not

motivated, even in part, to serve CSX at the time of the accident. Our precedent does indeed

instruct that where acts complained of are committed solely for benefit of the employee, the

employer will not be held liable. Rubin v. Yellow Cab Co., 154 Ill. App. 3d 336, 338, 507 N.E.2d

114, 115 (1987).

          Yet, in determining whether a purpose of the employer was being served at the time of the

tort, the Restatement has utilized the long-standing frolic vs. detour analysis. See Pyne, 129 Ill.

2d at 360-61, 543 N.E.2d at 1309. “A detour occurs where the employee’s deviation for personal

reasons is seen as sufficiently related to the employment.” Stern v. Ritz Carlton Chicago, 299 Ill.

App. 3d 674, 677, 702 N.E.2d 194, 196 (1998), citing Laird v. Baxter Health Care Corp., 272

Ill. App. 3d 280, 288, 650 N.E.2d 215, 221 (1995). In contrast, “[a] frolic occurs where the

employee’s personal business is seen as unrelated to employment.” Stern, 299 Ill. App. 3d at 677,

702 N.E.2d at 196, citing Laird, 272 Ill. App. 3d at 288, 650 N.E.2d at 221.


                                                  8
No. 1-09-2745

       Whether the employee’s conduct was so unreasonable as to make his act an independent

act of his own, rather than a mere detour or one incidental to employment, is a question of degree

which depends upon the facts of the case. Bonnem v. Harrison, 17 Ill. App. 2d 292, 298, 150

N.E.2d 383, 386 (1958). It is therefore axiomatic that this question should be decided by a jury

“ ‘unless the deviation is so great, or the conduct so extreme, as to take the servant outside the

scope of his employment and make his conduct a complete departure from the business of the

master.’ ” Davila v. Yellow Cab Co., 333 Ill. App. 3d 592, 601, 776 N.E.2d 720, 728 (2002),

quoting Bonnem, 17 Ill. App. 2d at 298, 150 N.E.2d at 386. However, where an employee’s

deviation from the course of employment is uncertain in extent and degree, or where surrounding

circumstances leave room for a legitimate inference as to whether the employee was still engaged

in the employer’s business, the question of an employer’s vicarious liability for an employee’s

torts is for a jury. Pyne, 129 Ill. 2d at 361-62, 543 N.E.2d at 1309.

       CSX stridently maintains that Wielgosiak’s action in driving through the lot to the main

building to punch out did not serve CSX and, given that it was raining that day, Wielgosiak’s

“sole motivation was a desire to stay dry.” Yet, CSX blithely ignores the undisputed fact that

punching out was a CSX requirement that Wielgosiak was fulfilling as the accident occurred. We

find no counteraffidavit on this point from CSX in contravention of this requirement. Based on

these facts, we are unable to conclude that no reasonable person could find that Wielgosiak was

motivated, at least in part, to serve the interest of CSX in punching out.

       As noted, CSX further asserts that Wielgosiak was “wholly outside of the time and space

limits of the work assigned him” because he had completed his work about a half-hour prior to


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No. 1-09-2745

heading to punch out, and that the collision took place in the company’s public parking lot, as

opposed to the ramp area. However, this assertion avails us nothing as it nonetheless is clear that

part of Wielgosiak’s assigned work requirements included punching out. Further, although the

accident did not take place specifically in the ramp area, the time clock was located in the main

building, which was also part of CSX premises. “An employee may combine personal business

with the employer’s business at the time of negligence, yet the employer will not necessarily be

relieved of liability on that account [citation], and the fact that an employee is not immediately and

single-mindedly pursuing the employer’s business at the time of negligence but has deviated

somewhat therefrom [citation], or that the employee’s conduct was not authorized [citation], does

not necessarily take the employee out of the scope of employment.” Pyne, 129 Ill. 2d at 361, 543

N.E.2d at 1309. Thus, merely because Wielgosiak had technically finished his work in the

confines of the railyard prior to punching out does not compel a determination that he was outside

the scope of his employment.

       Additionally, although CSX maintains it had a rule against employees driving their

personal vehicles in the railyard, that rule did not embrace the parking lot where plaintiff’s injury

occurred. Moreover, evidence in the trial record established Wielgosiak took a customary route

to punch out, as other employees also took this route, and it was not specifically forbidden by

CSX. Regardless, an employer is not relieved from liability simply because an employee does a

forbidden act while engaged in the business of the employer. Maras v. Milestone, Inc., 348 Ill.

App. 3d 1004, 1007, 809 N.E.2d 825, 828 (2004), citing Wilson v. Clark Oil & Refining Corp.,

134 Ill. App. 3d 1084, 1090-91, 481 N.E.2d 840, 844 (1985), citing Restatement (Second) of


                                                  10
No. 1-09-2745

Agency §230 (1958). The fact remains that Wielgosiak was required to punch out and was

fulfilling that requirement at the time of the accident.

        Furthermore, we find defendant’s citations in reliance on the foregoing principles are

readily distinguishable. In Montgomery v. Petty Management Corp., 323 Ill. App. 3d 514, 752

N.E.2d 596 (2001), we held that whether the employee was on the clock was irrelevant, because

the mere fact that he was working when he became involved in a physical altercation does not in

fact mean that he was acting within the scope of his employment. Montgomery, 323 Ill. App. 3d

at 518-19, 752 N.E.2d at 599. We reasoned that even if he were on the clock when the fight

started, he still was not furthering the ends of his employer during the course of that impermissible

activity, and accordingly, we affirmed the trial court’s grant of defendant’s motion for summary

judgment. Montgomery, 323 Ill. App. 3d at 519, 752 N.E.2d at 599.

        The facts of Adames are even further distinguished from the facts at bar. In Adames, the

administrators of the estate of a child who was killed by a friend playing with the service weapon

of his father, a correctional officer, sued the sheriff based on a respondeat superior theory. In

rejecting liability, our supreme court found that no reasonable person could conclude that the

father was acting within the scope of his employment when he negligently stored his weapon at

home, as there was no scintilla of evidence that the deputy was motivated to serve his employer.

Adames, 233 Ill. 2d at 305-06, 909 N.E.2d at 758-59. Conversely, here, Wielgosiak was required

to punch out. It cannot be said that no reasonable person could conclude that Wielgosiak’s

conduct in endeavoring to punch out was not motivated, at least in part, by his desire to serve

CSX.


                                                  11
No. 1-09-2745

       Therefore, we find that summary judgment was inappropriate on the facts of this case.

We simply cannot say that no reasonable person could conclude as a matter of law that

Wielgosiak was not acting within the course of employment. See Pyne, 129 Ill. 2d at 359, 543

N.E.2d at 1308 (“Only if no reasonable person could conclude from the evidence that an

employee was acting within the course of employment should a court hold as a matter of law that

the employee was not so acting”).

                                        CONCLUSION

       For the foregoing reasons, we reverse and remand the matter to the circuit court for

further proceedings, including trial.

       Reversed and remanded.

       HOWSE and LAVIN, JJ., concur.




                                               12
              No. 1-09-2745

Plea se Use
                                 REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Following                                      (Front Sheet to be Attached to Each Case)
Form:

                        MICHAEL K. RODMAN,
Complete
TITLE
of Case                                                    Plaintiff-Appellant,

                        v.

                        CSX INTERMODAL, INC.,,

                                                           Defendant-Appellee.


Docket No.
                                                                       1-09-2745
COURT                                                         Appellate Court of Illinois
                                                            First District, FIFTH Division

Opinion                                                          November 5, 2010
Filed                                                        (Give month, day and year)

                                JUSTICE TOOMIN delivered the opinion of the court:
JUSTICES
                                HOWSE and LAVIN, JJ.,                                                          concur [s]

                                                                                                               dissent[s]




APPEAL from                                Lower Court and Trial Judge(s) in form indicated in the margin:
the Circuit Ct. of
Cook County,                                     The Honorable      Eileen M. Brewer, Judge Presiding.
Chancery Div.




                                      Indicate if attorney represents APPELLANTS or APPELLEES and include
For                                        attorneys of counsel. Indicate the word NONE if not represented.
APPELLANTS,
John Doe, of
Chicago.                Plaintiff-Appellant,                                           Jeffrey S. Jordan
                                                                                       O’CONNOR & NAKOS, LTD.
For                                                                                    120 North LaSalle Street, 35th Floor
APPELLEES,                                                                             Chicago, IL 60602
Smith and Smith
of Chicago,                                                                            312/546-8100
Joseph Brown,
(of Counsel)
                        Defendant-Appellee,                                            Evan B. Karnes II
Also add
                                                                                       O’Connor & Karnes
attorneys for
third-party                                                                            The Page Brothers Building
appellants or                                                                          177 North State Street
appellees.                                                                             Chicago, IL 60601
                                                                                       312/629-8900

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No. 1-09-2745




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