Brief in scope of employment appeal

IN THE THIRD DISTRICT APPELLATE COURT

OF THE STATE OF ILLINOIS

Appellate Case No. 3-09-0410

_______________________________________________________

PAMELA J. WATSON and                          )

DARRYL WATSON                                      )

)           Appeal from the Circuit

Plaintiffs-Appellants              )           Court of the Twelfth

)           Judicial District Circuit

v.                                             )           Case No. 06L686

)           The Honorable Judge

DANIEL T. MESICH and                              )           Michael J. Powers,

IMPERIAL CONSTRUCTION                      )           presiding

ASSOCIATES, INC.                                     )

)

Defendants-Appellee           )

____________________________________________________

APPELLANTS’ BRIEF

____________________________________________________

William Lazarus, Attorney No. 6187706

Law Office of William Lazarus

18300 Dixie Highway

Homewood, Illinois 60430

Tel: (708) 215-0348

Fax: (708) 249-3034

Gregory T. Mitchell, Attorney No. 6195711

Law Office of Gregory T. Mitchell, P.C

18141 Dixie Highway

Homewood, Illinois 60430

Tel: (708) 799-9325

Fax: (708) 799-9326

Attorneys for Plaintiffs-Appellants

ORAL ARGUMENT REQUESTED


POINTS AND AUTHORITIES

Standard of Review

Cases

Pyne v. Witmer, 129 Ill. 2d 351 (1989)……………………………………………………………. 6

BlueStar Energy Services, Inc. v. Illinois Commerce Comm’n,

374 Ill. App. 3d 990 (2007)……………………………………………………………………………… 6

Delaney Electric Co. v. Schiessle, 235 Ill. App. 3d 258 (1992)……………………….. 6

Williams v. Manchester, 228 Ill. 2d 404 (2008)……………………………………………….. 6

Other

Restatement (Second) of Agency § 228, Comment d………………………………….. 6

735 ILCS 5/2-1005(c) (West 2006)…………………………………………………………………. 6

The trial court erred in finding that Mesich’s trip to work was not within the scope of his employment.

  1. A. Taking ladders home for possible use on job made trip within   scope of employment.

Jacks v. Woodruff, 9 Ill. App. 2d 224 (1st Dist. 1956)……………………………………….. 7-8

  1. B. Picking up supplies for next day made drive within scope, despite after-work drinking binge.

Sloma v. Pfluger, 125 Ill.App.2d 347 (2d Dist. 1970)………………………………………. 8-10

Hogan v. City of Chicago, 319 Ill. App. 531 (1943)…………………………………………. 10

Urban v. Industrial Commission, 34 Ill2d 159 (1966)……………………………………… 10

Christian v. Chicago & I. M. Ry. Co., 412 Ill 171 (1952)…………………………………. 10

  1. C. A possible coffee stop would make no difference.

Pyne v. Witmer, 129 Ill. 2d 351 (1989)……………………………………………………………. 12

Sloma v. Pfluger, 125 Ill.App.2d 347 (2d Dist. 1970)………………………………………. 11

  1. D. Employee’s plan to pick up tool created issue of fact for jury.

Fakhoury v. Vapor Corporation, 154 Ill.App.3d 531 (1st Dist. 1987)………………… 12-13

Fakhoury v. Vapor Corporation, 218 Ill.App.3d 20 (1st Dist. 1991)…………………… 13

  1. E. Trip to unload equipment was within scope.

Leszinske v. Grebner, 89 Ill.App.2d 470 (2d Dist. 1967)…………………………………. 13-15

  1. F. Assignment to different job sites creates fact issue.

Leszinske v. Grebner, 89 Ill.App.2d 470 (2d Dist. 1967)…………………………………. 14

  1. G. Travel incident to test was partly for employer’s purpose.

Pyne v. Witmer, 129 Ill. 2d 351 (1989)……………………………………………………………. 15-16

  1. H. Restatement criteria met as to scope of employment.

Cases

Korczak v. Sedeman, 2005 U.S. App. Lexis 21531 (N.D. Ill. 2004)………………….

Other

Second Restatement of Agency §228 (1958)…………………………………………… 16-17

  1. I. Requirement at least creates issue of fact.

Pyne v. Witmer, 129 Ill. 2d 351 (1989)……………………………………………………………. 19

Laird v. Baxter, 272 Ill. App. 3d 280 (1st Dist. 1994)……………………………………….. 18

Urban v. Industrial Commission, 34 Ill2d 159 (1966)……………………………………… 18

Nattens v. Grolier Soc., Inc., 195 F.2d 449 (7th Cir. Ill. 1952)………………………….. 18

Katsinas v. Colgate-Palmolive, 299 Ill. App. 347 (3rd Dist 1939)…………………….. 18-19

Reilly v. Peterson Furniture, 314 Ill. App. 46 (1st Dist. 1942)…………………………… 19

Jacks v. Woodruff, 9 Ill. App. 2d 224 (1st Dist. 1956)……………………………………….. 19

Sloma v. Pfluger, 125 Ill.App.2d 347 (2d Dist. 1970)………………………………………. 19

STATEMENT OF THE NATURE OF THE CASE

This appeal concerns whether defendant Daniel Mesich was acting within the scope of his employment as he was driving early one morning to a jobsite to which he had been assigned that day by his employer Imperial Construction Associates, Inc. (“Imperial”), and to which he was required by Imperial to bring his own tools for use on the job. As he was on his way to work, Mesich crossed the center line and crashed into the vehicle driven by Pamela Watson. Pamela Watson and her husband Darryl Watson sued Mesich, alleging negligence, and later added Imperial, alleging respondeat superior liability. The issue here was not raised by the pleadings, and no jury trial took place. Imperial moved for summary judgment, alleging it owed no duty to plaintiffs as Mesich was acting outside the scope of his employment at the time of the crash. The trial court granted Imperial’s motion.

ISSUE PRESENTED

Whether defendant Daniel Mesich was acting within his scope of employment in driving to a jobsite assigned by his employer Imperial where:

1)                     Imperial required Mesich to bring his own tools needed to conduct his work at changing jobsites, though it did not pay him for travel time;

2)                     Mesich was driving with his tools directly to the jobsite that morning, with only the possible exception of a coffee stop; and

3)                     Imperial was required by its contract on the job to furnish all materials and supplies as well as labor and supervision to complete its work at the jobsite.

JURISDICTION

In granting summary judgment to Imperial, the trial court ordered its ruling “final and appealable pursuant to Illinois Supreme Court Rule 304(a).” (A2)

STATEMENT OF FACTS

On August 28, 2006 at about 5:28 a.m., Daniel Mesich was driving south on Rt. 59 in Plainfield, Illinois, at the intersection with Lockport Street. (A12-13, A15) Mesich testified in deposition that his Chevy Tahoe crossed into the northbound lane and crashed into plaintiff Pamela Watson’s vehicle, and that he had swerved to avoid a dump truck that pulled in front of him at the intersection. (A15)

At the time of the accident, Mesich was going directly to the jobsite from his home though he may have stopped for coffee. (A19-20). His home was in Plainfield. (A3a) He had travelled only a few minutes that morning. (A27) He had his tools for work with him at the time of the crash. (A20)

Mesich worked for Imperial Construction Associates as an Ironworker involved in the erection of steel structures. (A5) As a condition of his work, Imperial required him to bring his own tools to the jobsites. (A6) He purchased those tools himself. (A6) He had been employed as a full-time employee for Imperial for about seven years at the time of the crash. (A3-4) That morning, he was assigned to work at McCormick Place in Chicago. (A28)

Mesich was assigned to “drive to a job site, a different job site every morning.” (A26) He typically had to arrive by 7 a.m. (A11) He suspected location assignments were made by office workers throwing darts at a board. (A7) Mesich usually used Mapquest to learn the route to the jobsite. (A23) He was paid by Imperial each week for the number of hours worked at the jobsites. (A8-9) He received no reimbursement for mileage or gas, but was free to turn down a job if he deemed it to be too far away. (A24) His hourly pay and medical insurance were his only compensation for his work, including his provision of his own tools at the jobsites. (A24-25)

As a subcontractor at the McCormick Place jobsite, Imperial was, among other things, required to “provide all supervision, and materials and perform all labor necessary” to complete its work at the site. (A29-30)

ARGUMENT

Standard of Review

Summary judgment is only appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2006). “‘In addition, the court must draw all reasonable inferences from the record in favor of the nonmoving party.’” BlueStar Energy Services, Inc. v. Illinois Commerce Comm’n, 374 Ill. App. 3d 990, 993-94 (2007), quoting Delaney Electric Co. v. Schiessle, 235 Ill. App. 3d 258, 262 (1992). Summary judgment is a drastic method of disposing of litigation and should only be granted where the movant’s right to judgment is clear and free from doubt. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). Summary judgment rulings are reviewed de novo on appeal. Id. at 418.

To be held vicariously liable under the doctrine of respondeat superior for an employee’s torts, the tort must have been committed within the scope of employment. Pyne v. Witmer, 129 Ill. 2d 351, 359 (1989). Where the scope of employment is at issue, summary judgment

is generally inappropriate. … 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.

Id.; accord Restatement (Second) of Agency § 228, Comment d, at 505 (1958). Where reasonable persons could draw divergent inferences from the undisputed facts, “an issue should be decided by the trier of fact and summary judgment denied”. Pyne, 129 Ill.2d at 359.

The trial court erred in finding that Mesich’s trip to work was not within the scope of his employment.

Overview

Substantial case law concerning employees who travel to and from work while carrying tools required for the job show the trial court erred in finding that, as a matter of law, Mesich was not acting within the scope of his employment at the time of the crash in issue. Indeed, the cases show that Mesich was within the scope of his employment while driving to work on the morning of the crash. Even if the fact that Mesich was not paid for driving time were given weight toward finding that he was not acting within the scope of his employment, the opposing facts that he was required to bring his tools and was required to drive to different jobsites daily as assigned by Imperial would at least present a jury question as to the scope.

A.        Taking ladders home for possible use on job made trip within scope of employment.

In Jacks v. Woodruff, 9 Ill. App. 2d 224 (1st Dist. 1956), Clarence Woodruff employed his brother Vern to help paint Clarence’s Evanston house and to assist in remodeling its shop in the rear. Vern left the job at the end of the day, hauling two extension ladders on the top of his car to his home in Des Plaines, thinking that the ladders would be available if they were needed at the next day’s job in Des Plaines. Id. at 232. On the drive, Vern ran into Edmund Jacks, a pedestrian, who sued. At trial, Clarence denied authorizing the use of the ladders at his house or even knowing about them, and Jacks presented evidence of admissions to the contrary. The jury rendered its verdict in favor of Jacks. The trial court entered a judgment notwithstanding the verdict in Clarence’s favor, finding as a matter of law that Vern was not acting as Clarence’s agent as he drove home after work on the evening of the crash. The scope of Vern’s employment, as reflected in the evidence presented at trial, was the only issue on appeal. The appellate court reinstated the verdict, finding that the jury had been presented with competent evidence that Vern was his brother’s agent at the time of the occurrence. Id.

In this case, in contrast to Jacks, the evidence is undisputed that Mesich was transporting tools that he was required to take to work. Imperial admitted this. (A28-28a) Just as it was appropriate for the jury to find that Vern was his brother’s agent, acting within the scope of his employment at the time of the crash, it would be appropriate for a jury to reach the same conclusion in this case, if a jury would have to consider the matter at all. Like Vern, Mesich was driving while carrying equipment for the job at the time of the crash. Unlike Vern, Mesich was specifically required to bring his tools to work. That requirement suggests that, as a matter of law, Mesich was acting within the scope of his employment at the time of the crash, not vice- versa, as found by the trial court in granting summary judgment to Imperial.

  1. B. Picking up supplies for next day made drive within scope, despite after-work drinking binge.

Sloma v. Pfluger, 125 Ill.App.2d 347 (2d Dist. 1970), also shows the error the trial court made in this case. Sloma involved two employees of Wood Construction Company, Richard Lee Carpenter, a skilled worker who was assigned to various job sites, and James Sloma, a laborer-apprentice assigned by the company to work with Carpenter. Sloma lived about a half block from Carpenter, and rode with Carpenter in the latter’s pickup truck to and from the various jobsites assigned by Wood. On the day in question, Carpenter and Sloma finished the job, left the jobsite at about 3:30 p.m., and drove to a tavern near Belvidere where they often stopped while working in the area. Over the course of about two and a half hours, Carpenter drank five or six bottles of beer in the tavern. After leaving, Carpenter crashed his pickup and died. Sloma was seriously injured.

Whether Carpenter and Sloma were acting within the scope of their employment at the time of the crash were at issue in the case. Sloma testified that Carpenter said he was on his way to pick up supplies needed for work the next day. Wood maintained trailers in different locations – one of which was near Carpenter’s home — from which company superintendents or employees would obtain supplies which they would carry to jobsites. Only Carpenter, not Sloma, was authorized and expected to pick up supplies for jobsites, and no evidence showed Sloma had that obligation. Thus, the court found the facts suggested that Sloma’s own

scope of employment began and ended at the jobsite; that there was nothing to take him out of the normal rule that travel to and from the place of employment is beyond the realm of the employment relationship; and that one injured in the course of such travel is not injured as an employee.

Id. at 356, citing Urban v. Industrial Commission, 34 Ill2d 159, 161, 214 NE2d 737 (1966); Christian v. Chicago & I. M. Ry. Co., 412 Ill 171, 175, 105 NE2d 741 (1952).

Accordingly, the court found that Sloma was not acting as Wood’s agent at the time of the crash (and thus was not barred from bringing a personal injury claim against Wood).

But the court found that whether Carpenter – even after his drinking binge — was acting within the scope of his employment presented a question that was properly put to the jury to decide. Though the court acknowledged that Carpenter was “on a lark of his own” at the tavern, it upheld the verdict against Wood. It found:

The mere fact that Carpenter was driving his own truck and not one belonging to Wood, is not decisively significant. Unlike most employees, Carpenter brought the supplies needed for a particular day’s work to the jobsite, and Wood provided a supply trailer, near Carpenter’s home, for his use. Carpenter had a pickup truck so that he could carry these supplies. Ignoring for a moment the personal lark of Carpenter and the question of the effect of the deviation from the course of his employment, inasmuch as he was intending to get his supplies for the next day, he was driving his pickup truck with the implied authority of Wood.

The lack of immediate supervision over Carpenter in picking up his supplies, appeared no less than that exercised over him at the jobsite. Wood knew that Carpenter picked up his own supplies and provided a special trailer for this purpose. Thus, Carpenter’s use of his own vehicle for his employer’s business was not only with the latter’s knowledge and consent, but also with his encouragement. When so driven, it was within the course of Carpenter’s employment.

Id. at 356-357, citing Hogan v. City of Chicago, 319 Ill. App. 531, 539, 543-546, 49 NE2d 861 (1943).

In this case, too, Mesich used his own vehicle for his employer’s business. Instead of picking up materials needed for the next day’s work for subsequent transport to the employer’s job site, Mesich took his own tools to each job site assigned on a daily basis. Not only did Imperial know of and consent to this arrangement, it required Mesich to so transport his tools to the ever changing job sites. On the day of the accident at issue, Imperial assigned Mesich to a job where Imperial itself was contractually required to bring all the materials necessary to complete its work. Mesich’s tools were, by reasonable inference, among those materials necessary for the company to fulfill its contract.

  1. C. A possible coffee stop would make no difference.

The “critical” and difficult issue in Sloma, which the court found appropriate for the jury to resolve, was whether Carpenter had discontinued his extended deviation from his course of employment, and returned to acting within the scope of employment when he left the bar to pick up supplies. Here, no such difficult issue exists. Mesich’s testimony establishes he was heading directly to work on the morning of the crash, with only the possibility of a stop for coffee on the way. Such a stop – if one even occurred – would amount to no more than a minor deviation which could not, as a matter of law, take Mesich’s trip outside the scope of his employment since “[a]n 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. … Where an employee’s deviation from the course of employment is slight and not unusual, a court may find as a matter of law that the employee was still executing the employer’s business.” Pyne, supra, 129 Ill.2d at 361.

Given that in Sloma, the employee’s travel in his own vehicle, with the employer’s concurrence, after the end of the workday to pick up tools for the next day’s job was deemed to be within the scope of employment, so, too, must an employee’s travel to work and delivery of tools, at the employer’s demand, be within the scope of employment. Thus, Mesich was acting within the scope of his employment as he drove, with the required tools in his truck, towards that day’s jobsite.

  1. D. Employee’s plan to pick up tool created issue of fact for jury.

Fakhoury v. Vapor Corporation, 154 Ill.App.3d 531 (1st Dist. 1987), also involved a question of tools and scope of employment. In Fakhoury, James Guyon was a serviceman employed by Vapor. Like Mesich, he drove his own car, and like Mesich he was regularly assigned to work at different job sites. On the day of the accident, Guyon was working at Vapor’s plant in Chicago. He had been assigned to drive to Madison, Wisconsin the following day, and planned to leave his home at 6 a.m. When Guyon left work in Chicago at 4:30 p.m., he stated he drove to a hardware store to buy a carpenter’s square for his use the next day. When the square wasn’t available, Guyon returned to his car and was on the way to a lumber store in the area when the accident occurred. Guyon did not purchase the carpenter’s square that day, and used the customer’s square the next day in Madison. On these facts, the appellate court determined that the trial court erred in directing a verdict on respondeat superior in plaintiff’s favor since “verdicts ought to be directed and judgments notwithstanding the verdict entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand.” Id. at 536. On retrial, after hearing Guyon’s testimony concerning his intended personal use of the square, the jury decided in favor of Vapor, which contended that Guyon was on a personal trip at the time of the accident. Fakhoury v. Vapor Corporation, 218 Ill.App.3d 20, 24 (1st Dist. 1991).

E.        Trip to unload equipment was within scope.

In Leszinske v. Grebner, 89 Ill.App.2d 470 (2d Dist. 1967), the court determined as a matter of law that the passenger of a vehicle was within the scope of his employment when he died in a car crash. Otto Grebner, the driver, employed Lyle Leszinske to paint houses. The crash occurred when Grebner lost control of his vehicle and swerved into oncoming traffic about 6:30 p.m. The two had finished painting for the day and were on their way to unload equipment. That was enough, the court found, to make the incident within the scope of Leszinske’s employment. The court explained:

It is generally held that accidents which occur while an employee is going to and from his place of employment do not arise out of and in the course of employment. [citations omitted] This general rule, however, is not applicable where the employee’s trip is determined by the demands of his employment or where his duties as employee take him to the place of his injury. [citations omitted]

In the case at bar, the general “going to and coming from work” rule obviously cannot be applied. Leszinske’s employment for the day had not ended if he was going to Grebner’s workshop to help unload the station wagon. To fulfill this obligation of his employment, Leszinske was riding with his employer, Grebner, at a time when and at a place where he might reasonably be expected to be. Leszinske was “in the course of his employment.”

Id. at 476.

In this case, while Mesich did not have his employer at his side at the time of the accident, he was carrying required equipment to the day’s jobsite. That fact alone is adequate to at least create an issue for the jury to decide under Jacks, Sloma, Fakhouri, and Leszinske.

F.         Assignment to different job sites creates fact issue.

Furthermore, Mesich did not supply his tools each day to the same jobsite. Rather, he was assigned to a different jobsite on a daily basis. (A 26) That is why he had to carry his tools with him. If he never changed jobsites, there would be no need to transport the tools. He could simply leave them. This fact, too, shows the trial court’s error in determining as a matter of law that Mesich was not acting within the scope of his employment as he drove to the assigned jobsite on the morning of the crash.  Leszinske noted the importance of the assignment not being to a regular place of work since

there is a critical distinction between travel that results from the employee’s decision as to where he wants to live, and travel that is required by the exigencies of the job. This distinction suggests to us the possible application of the [Worker’s] Compensation Act [as the work would have been within the scope of employment] even if Grebner and Leszinske were only returning to Grebner’s house.

Leszinske, 89 Ill.App.2d at 477. Thus, Leszinske indicates that Mesich’s travel to different worksites on a daily basis alone is enough to at least create an issue of fact as to whether he was within the scope of his employment on his drive to work on the morning of the crash.

  1. G. Travel incident to test was partly for employer’s purpose.

In Pyne v. Witmer, supra, the Illinois Supreme Court also focused upon the issue of whether plaintiff’s deceased was on a frolic outside his scope of employment after he took a test for which his employer at least temporarily paid. As in Sloma, however, the discussion concerning scope of employment strongly suggests that Mesich was acting within the scope of his employment at the time of the crash.

William Witmer left his workplace in Streamwood near the end of a scheduled workday and drove to Rockford to take an evening test to be certified as an automobile mechanic. His employer D.R.W. Enterprises, Inc., which operated a gas station, did not pay him wages, mileage or expenses for his trip. D.R.W. did issue a check to cover the test fee, though it may have expected to be reimbursed by Witmer. Nonetheless, the parties agreed that Witmer was within the scope of his employment while he took the test, and during “travel incident thereto.” Pyne, supra, 129 Ill.2d at 356. By the same measure, Mesich was within the scope of his employment while on a trip incident to transporting his ironworker tools and essential work equipment to his employer’s jobsite.

About two and a half hours after Witmer completed the test, Witmer crashed the car he was driving. It was 10:30 p.m. Blood tests showed Witmer was drunk. The issue was whether he was still in the scope of employment at the time of the crash. The high court upheld the appellate court’s reversal of summary judgment in favor of D.R.W., finding that factual issues precluded a determination that Witmer was on a “frolic” that took him outside the scope of employment during the two and a half hours subsequent to the test.

In its discussion, the court stated,

Generally, an employee traveling to or from work outside actual working hours is not in the scope of employment, but an exception exists for employees who are caused by their employers to travel away from a regular workplace or whose travel is at least partly for their employers’ purposes rather than simply serving to convey the employees to or from a regular jobsite. [citations omitted]

Pyne, 129 Ill.2d at 356. (emphasis added)

In this case, the exception to the general rule applies. In transporting his essential ironworker trade tools (welding equipment) to that day’s worksite, Mesich was “at least partly” traveling for his employer’s purposes, rather than simply getting to work. Imperial required Mesich to carry his equipment to the jobsite because it knew that, without it, Mesich could not perform the work he was employed to do.

H.        Restatement criteria met as to scope of employment.

In Pyne, the court cited the guidance offered by the broad criteria set forth in the Second Restatement of Agency for determining whether an employee’s action falls within the scope of employment. The Restatement provides:

(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.

Second Restatement of Agency §228 (1958).

Here, each of the Restatement criteria applies. Mesich was employed to work at daily assigned jobsites, and to bring his tools for use at the sites. Thus, his transportation of his tools was inextricably linked to the work he was employed to perform at that day’s assigned jobsite. Since he was required to bring his tools with him, the area of travel was necessarily within employer-authorized time and space limits, just as the travel area was found to be within authorized limits — or at least an issue of fact existed as to whether it was within authorized limit — in the scope of duty cases involving travel and discussed above.

In Korczak v. Sedeman, 2005 U.S. App. Lexis 21531 (N.D. Ill. 2004), the court found an issue of fact suitable for trial as to whether an employee who transported a co-worker back to his hotel at the end of the work day was acting within the scope of his employment. The employer argued that he was free to do his own business once he clocked off work, and therefore the ensuing accident was outside the scope. But the court noted that the employee not only would transport three or four employees to the jobsite in the minivan lent to him by the employer, but that it was his responsibility to take a particular co-worker back to the hotel at the end of the day because that worker had no other method of returning to the hotel after work. Id. at *10. The court concluded that Thermal Solutions, the employer,

clearly benefited from Sedeman’s use of the minivan. First, Sedeman provided transportation to three to four workers on a daily basis. Without relying on Sedeman to provide this service, Thermal Solutions could not have enjoyed the services of the other workers. Second, by renting a minivan and relying on one worker to provide transportation for others, Thermal Solutions was able to save money on rental costs and gasoline. Moreover, if Thermal Solutions directed Sedeman to provide transportation to other workers, then the act of traveling to and from work is of the kind Sedeman was hired to perform and occurred within the time and scope of his employment.

Id. at *12-13. Similarly, Imperial benefited from Mesich’s use of his truck to transport his tool to jobsites. Had he not done so, Imperial itself would have had to transport Mesich and his tools to the day’s assigned jobsite. Thus, Mesich’s act of traveling to work in his personal vehicle in order to transport his essential trade tools was, in fact, part of the work that Mesich was required to perform for Imperial.

I.          Requirement at least creates issue of fact.

Like sales agents and other employees required to carry their wares to travel to different locations on a daily basis, Mesich had to carry his trade tools as he traveled to assigned jobsites that changed daily at the direction of Imperial. Sales agents and other traveling employees have been found to have acted within the scope of their employment as they made their rounds, even where they were sidetracked with alleged frolics. See Laird v. Baxter Health Care Corp., 272 Ill. App. 3d 280, 298 (Ill. App. Ct. 1st Dist. 1994) (noting “the leniency Illinois courts afford travelling employees.”); Urban v. Industrial Commission, supra, and cases cited therein. At the least, courts have found the scope of agency presents an issue of fact for the jury to decide. See e.g. Nattens v. Grolier Soc., Inc., 195 F.2d 449, 453 (7th Cir. Ill. 1952), Katsinas v. Colgate-Palmolive-Peet Co., 299 Ill. App. 347, 350 (Ill. App. Ct. 1939); See also Reilly v. Peterson Furniture Co., 314 Ill. App. 46 (Ill. App. Ct. 1942).

In the trial court, Imperial emphasized Sloma in arguing that Mesich was acting outside the scope of his agency when he drove to work. But unlike the passenger apprentice in that case, who had no duties with regard to unloading materials after work, and like Carpenter, the employee who had such duties, Mesich was required to drive his truck and transport his essential trade tools to the ever changing jobsite. Mesich’s doing so in a direct drive without any frolics was at least as much within the scope of his work as was Carpenter’s driving to pick up materials after a day of work and a lengthy bout of drinking. Sloma, Jacks and other cases discussed above show that Mesich was acting within the scope of his employment as he transported himself and his tools to Imperial’s jobsite on the morning of the crash at issue. At the very least, it cannot be said that “no reasonable person could conclude” this to be the case. Pyne, supra, 129 Ill.2d at 359. Thus, the trial court erred in finding that Mesich was acting outside the scope of his employment and granting Imperial’s motion for summary judgment.

CONCLUSION

WHEREFORE, plaintiffs Pamela J. Watson and Darryl Watson respectfully request this Court find the trial court erred in granting summary judgment to Imperial Construction Associates, Inc., remand the case for trial, and provide guidance to the trial court that Daniel Mesich was acting within the scope of his employment with Imperial on the morning of the crash.

Respectfully submitted,

____________________________

William Lazarus

Law office of Wiliam Lazarus                       Law office of Gregory T. Mitchell, P.C.

18300 Dixie Highway                                   18141 Dixie Highway, Suite 111

Homewood, Illinois 60430                          Homewood, Illinois 60430

CERTIFICATE OF COMPLIANCE

I, William Lazarus, an attorney, certify that this brief conforms to the requirements of Supreme Court Rules 341(a) and (b). The length of this brief, excluding the appendix pages containing the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a), is 18 pages.

________________________________________

William Lazarus

CERTIFICATE OF SERVICE

I, William Lazarus, an attorney, certify that I caused copies of the foregoing Appellants’ Brief to be served upon the persons listed below by mailing, first class postage prepaid, by placing a copy of the brief in a U.S. Postal Service mail receptacle located at 18300 Dixie Highway, Homewood, Illinois before 4 p.m. on September 9th, 2009.

Craig D. Queen, Esq.

Grant, Ross & Fanning

10 South Riverside Plaza

Suite 1770

Chicago, Illinoiis 60606

Bill Porter, Esq.

Chilton Yambert & Porter, LLP

2000 S. Batavia Avenue, 2nd Floor

Geneva, Illinois 60234

_________________________

William Lazarus