Trujillo v. Apple Computer, Inc. et al

Filing 1117

No. 01 C 5536 I N THE U N I T ED STATES DISTRICT COURT F O R THE NO R T H E R N DISTRICT OF ILLINOIS E A S TE R N DIVISION __________________________________________________________________ __________________________________________________________________ B O N N I E JONES, as the parent and nex t friend of ZACHARY JONES, a Minor, and JOSEPH PRESSLEY, Plaintiffs, ) ) ) ) ) vs. ) No. 01 C 5536 ) P A T R I C K & ASSOCIATES, ) Honorable Paul Plunkett, ) Presiding Defendan ts. ) __________________________________________________________________ __________________________________________________________________

P L A I N T I F F S ' CORRECTED RESPONSE TO DEFENDANT'S M O T IO N FOR SUMMARY JUDGMENT N O W COME the Plaintiffs, by and through their attorneys, Thomas P e t e r s, Kevin Peters, and Mary DeSloover, and in response to the Defend ant's Motion for Summary Judgment, state as follows: C a s e History Th is case arose out of a beating of the Plaintiffs by Louis Pratt, a security guard employed by Patrick and Associates Jones v. Patrick & A s s o c i a t e s, 442 F3d 533, 534 (7 th Cir. 2000). Defendant Pratt was working at Prairie View apartments and encountered Joseph Pressley whom Pratt

1

b e l ie v e d had a small bag of marijuana in his hand. A chase ensued and P r e s s l e y ran away, leaving his car behind. Later that night, Pressley returned to the apartment complex, and Pratt again tried to apprehend him, a scuffle took place, and Pratt's finger got injured in Pressley's car door. Id. Pratt r e p o r te d the incident to the North Chicago Police Department, as required by h i s employer, and the NCPD apprehended Pressley. Later, Pratt went to the N o r t h Chicago Police Station to drop off his written report and persuaded a polic e officer, Berg, to allow him entry to the lock-up area. Id. Once inside t h e cell area, Pratt used mace and his billy club to beat a juvenile, Plaintiff Jon es, whom he apparently mistook for Pressley. Id. After having beaten and macing, Pratt proceeded to beat and mace Pressley. Id. P l ai n ti ff s filed a lawsuit and presented federal claims under 42 USC § 1 9 8 3 against North Chicago and Officer Berg and state claims for battery and negligence against Pratt and his employer, Patrick & Associates. Id. On June 24, 2003, North Chicago and Officer Berg settled with the Plaintiffs a n d were dismissed from suit. On October 28, 2004, Pratt proceeded to trial wh ere he was found liable. Subsequently, having been found liable at a b e n c h trial, Pratt entered into a release and settlement agreement with the Plain tiffs as to the amount of damages.

2

P r i o r to Pratt's trial, on February 9, 2004, this Court granted De fend ant Patrick & Associates' Motion for Summary Judgment Id. On February 7, 2005, this Court entered a final and appealable judgm ent. Plaintiffs appealed and the Seventh Circuit reversed this Court's g r a n t of summary judgment on the Plaintiffs' respondent superior claim and rem and ed the case to this Court. Id, at 538. Argument Th e Defendant, after having fully briefed their position to the Seventh C i r c u it Court of Appeals, having appeared for oral argument before the Sev enth Circuit, and having lost at the Seventh Circuit, now cite to this C o u r t a rule from American National Bank & Trust Company v. ColumbusC u n e o - C a b r i n i Medical Center, 154 Ill 2 nd 347, 355, 609 N.E.2d 285 (1992). Based on American National Bank, Defendant asks this Court to ignore the S e v e n t h Circuit's remand, and to grant summary judgment (again). D e f e n d a n t does not explain the context or the reasoning of the American Na tiona l Bank & Trust court, and for good reason. Once the reasoning of A m e r i c a n National Bank and its related cases is reviewed and applied to the facts, the Defendant's renewed motion is hollow and totally without merit. I n American National Bank, the plaintiff brought suit against a med ical center on the theory of vicarious liability due to the acts of its

3

e m p l o y e e s . Pursuant to a pre-trial settlement agreement reached between t h e plaintiff and the employees before trial, the employees were dismissed f r o m the suit. The court held that the pre-trial settlement between the agent a n d plaintiff extinguished the principal's liability. In reaching its conclusion, t h e court cited both the reasoning and the outcome of Bristow v. Griffiths C o n s t r u c ti o n Company, 140 Ill. App. 3d 191, 488 N.E.2d 332 (1986) with a p p r o v a l and adopted its reasoning. So, to understand American National B a n k , the court first must examine the holding and the reasoning in Bristow. In Bristow, a suit was brought against an employee and his employer, G r i f f it t s Construction Company. The plaintiffs sought recovery from the c o n s t ru c t io n company based solely on the acts of its employee under the d o c t r in e of respondent superior. The plaintiffs, prior to trial, executed a c o v e n a n t not to sue the employee in exchange for $20,000, and the employer m o v e d for summary judgment contending that the covenant not to sue the emp loyer discharged the employer's liability. The Bristow court granted the employer's motion for summary j u d g m e n t , and stated... "Because we find an action for indemnity remains viab le in cases involving vicarious liability, the employee in this case would g a i n nothing in return for the $20,000.00 and relinquishing his right to d e fe n d (emphasis added) unless the covenant not to sue also extinguished

4

t h e employer's vicarious liability..." Thus, the critical fact in Bristow and in American National Bank, was that the agent gave up his right to defend as to liability. In forfeiting that right, the agent got nothing in return so the courts i n Bristow and American National Bank held that to protect the agent from an indemnification suit, the employer must also be discharged. The rule of American National is not absolute, it must be viewed and applied to the specific facts of each case. (See, for example, Equistar C h e m i c a l s , L.P. v. BMW Constructors, Inc., 353 Ill. App. 3d 593, 817 N.E .2d 534, 288 Ill. Dec. 175, (Ill. App. 3 Dist. March 26, 2004), Fortae v. H o l l a n d, 334 Ill. App. 3d 705, 778 N.E.2d 159, 268 Ill. Dec. 173. (Ill. App. 5 Dist. Jul 18, 2002) ) The specific facts before this court remove this case f r o m the general holding in American National. Although the Illinois S u p r e m e Court held that a pre-trial settlement with the agent should result i n an order extinguishing the principal's vicarious liability, that case did not p e r t a i n to a case where the agent went to trial on the merits, was held liable, and entered into an agreement after the entry of the judgment. American N a t i o n a l's holding does not apply because here the employee is not r e l i n q u i sh i n g his right to defend. Pratt exercised his right to defend himself, we nt to trial, and he was found liable. The settlement Pratt entered into with t h e Plaintiffs simply capped the amount of Pratt's damages, and thus was not

5

a detriment to him. To the contrary, the settlement agreement protects Pratt b y capping the damages after the finding of liability. Since Plaintiff cannot s e c u r e a verdict against Patrick that exceeds the amount owed by Pratt, he has limited his exposure, even though he lost the trial. Further, there are additional facts, which distinguish Plaintiffs' case f r om American National and Bristow. At the time of trial of the agent, Pratt, a n d the subsequent settlement, the principal had been granted summary judgmen t and was no longer a party to the case. Under these circumstances, w h e r e the principal has been dismissed, is the agent required not to enter a settlem ent? Is the agent required to wait out the period of an appeal to see if the principal will be reinstated? The application of the rule on these facts wou ld discourage settlements after trial, and waste precious resources, i n c l u d i n g judicial resources, unnecessarily. The application of the American N a t i o n a l rule in this way, would prove to be contradictory to the purpose of t h e American National rule. F i n a l l y , Patrick & Associates has waived this argument. They had amp le opportunity in their brief and oral argument before the Seventh C i r c u it to argue this position. They did not argue it because when the

p r o c e d u r a l facts of this case are examined, the American National rule does n o t apply. By not arguing this position at the Seventh Circuit, Patrick &

6

A s s o c i a te s saved it for this "Hail Mary" pass at this juncture. To grant the d e f e n d a n t ' s Motion for Summary Judgment, after the Seventh Circuit has r e v e r se d and remanded it for a hearing on the respondent superior issue w o u l d be in error. R e s p e c t f u l ly Submitted s / M a r y DeSloover T h o m a s Peters K e v i n Peters M a r y DeSloover A t t o r n e y s for the Plaintiffs 4 0 7 S Dearborn, Suite 1675 C h i c a g o , Illinois 60605 ( 3 1 2 ) 697-0022

7