Malorney v. B & L Motor Freight, Inc. - 146 Ill. App. 3d 265, 100 Ill. Dec. 21, 496 N.E.2d 1086 (1986)

Rule:

The existence of a duty is a question of law to be determined by the court, rather than by the factfinder. However, once a duty has been found, the question of whether the duty was properly performed is a fact question to be decided by the trier of fact, whether court or jury.

Facts:

Edward Harbour applied for a position of over-the-road driver with defendant B & L Motor Freight, Inc. On the employment application, Harbour was questioned as to whether he had any vehicular offenses or other criminal convictions. His response to the vehicular question was verified by B & L; however, his negative answer regarding criminal convictions was not verified by B & L. In fact, Harbour had a history of convictions for violent sex-related crimes and had been arrested the year prior to his employment with B & L for aggravated sodomy of two teenage hitchhikers while driving an over-the-road truck for another employer. Upon being hired by B & L, Harbour was given written instructions and regulations, including a prohibition against picking up hitchhikers in a B & L truck. In 1978, Harbour picked up plaintiff Karen Malorney, a 17-year-old hitchhiker. In the sleeping compartment of his truck, he repeatedly raped and sexually assaulted plaintiff, threatened to kill her, and viciously beat her. After being released, plaintiff notified police. Harbour was arrested, convicted, and sentenced to 50 years with no parole. Plaintiff's complaint charges defendant B & L with recklessness and wilful and wanton misconduct in negligently hiring Harbour as an over-the-road driver without adequately checking his background and providing him a vehicle with a sleeping compartment. Plaintiff seeks compensatory and punitive damages from B & L. Defendant filed a motion for summary judgment, contending that it had no duty to verify Harbour's negative response to the question regarding criminal convictions. The trial court denied defendant’s motion. On appeal, defendant urged that a reasonable and prudent motor carrier could not foresee that one of its drivers would rape and assault a hitchhiker, that the company had no duty to investigate driver's nonvehicular criminal backgrounds, and that such investigation would be financially burdensome. On the other hand, plaintiff asserted that factual issues existed that precluded summary judgment and required a jury determination.

Issue:

Did factual issues exist that preclude summary judgment and require a jury determination? 

Answer:

Yes.

Conclusion:

The court affirmed the order denying the defendant’s motion for summary judgment. The court held that the defendant had a duty to entrust its truck to an employee fit to drive an over-the-road truck that had been equipped with a sleeping compartment. Because the defendant knew or should have known that truckers were prone to pick up hitchhikers despite rules against such actions, the question then became one of fact: whether the defendant breached its duty to hire a competent driver. There was no evidence to justify that the cost of checking on the nonvehicular criminal history of prospective drivers was too expensive when measured against the potential utility of so doing. The question of foreseeability in the case was a question of fact because reasonable persons could conclude differently as to whether the defendant used due care in its hiring decision.