NOTICE 2024 IL App (4th) 231487-U FILED This Order was filed under Supreme Court Rule 23 and is September 5, 2024 NO. 4-23-1487 Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
MICHAEL COX and SUSAN COX, ) Appeal from the Plaintiffs-Appellants, ) Circuit Court of v. ) Sangamon County DONALD POE; POE ENTERPRISES, INC; and ) No. 20L30 MITCHELL CLARK, ) Defendants ) Honorable (Donald Poe and Poe Enterprises, Inc., Defendants- ) Gail L. Noll, Appellees). ) Judge Presiding. ______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court. Justices Zenoff and Knecht concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in granting the Poe defendants’ motion for summary judgment where no genuine issues of material fact existed regarding plaintiffs’ claims that those defendants were vicariously or directly liable for plaintiffs’ alleged injuries.
¶2 Plaintiffs, Michael and Susan Cox, filed a negligence action against defendants,
Donald Poe, Poe Enterprises, Inc. (Poe Enterprises), and Mitchell Clark, seeking to recover money
damages for injuries Michael sustained after his motorcycle allegedly slid on grass clippings that
accumulated on a public roadway. The clippings were adjacent to property defendant Clark leased
from defendant Poe, who was also part owner of Clark’s employer, Poe Enterprises. The trial court
granted summary judgment in favor of Poe and Poe Enterprises (collectively, the Poe defendants)
as to all counts against them, and plaintiffs appeal. We affirm.
¶3 I. BACKGROUND ¶4 On September 23, 2019, Michael was involved in a single-vehicle motorcycle
accident at the intersection of Sherman and Guest Roads in Sherman, Illinois. Defendant Clark
resided at 4872 Sherman Road on one corner of the same intersection in a residence he leased from
Poe, who owned the property. Clark also worked as a farmhand for Poe Enterprises, which Poe
owned along with his wife and son. At the time of the accident, Clark was mowing the lawn of the
Sherman Road property. The property consisted of a house, yard, gravel driveway, small shed,
large shed, and grain bin. It was surrounded by 160 acres of farmland that Poe also owned.
¶5 In February 2020, plaintiffs filed their original eight-count complaint against
defendants Clark and Poe, raising claims of negligence. In counts I and II, they alleged Clark was
negligent in causing grass clippings to be deposited onto Guest Road when he mowed, littering
onto Guest Road, failing to warn of the dangerous condition of the grass clippings, and failing “to
remedy or fix the grass clippings.” Plaintiffs further alleged the grass clippings caused Michael’s
motorcycle to slide and go into a ditch as he turned from Sherman Road onto Guest Road, resulting
in Michael sustaining “severe and lasting bodily injuries” and other damages. Plaintiffs alleged
Poe was both (1) vicariously liable for Clark’s negligent acts or omissions based on Clark’s status
as Poe’s employee, agent, or servant (counts III and IV) and (2) directly liable due to his ownership
of the Sherman Road property (counts V and VI) and his failure to properly supervise Clark’s
mowing (counts VII through VIII).
¶6 In February 2021, plaintiffs filed a 12-count first amended complaint, adding Poe
Enterprises as a defendant and raising four counts (counts IX through XII) against it that alleged
negligence. In particular, plaintiffs alleged that Poe Enterprises was vicariously liable for Clark’s
negligent conduct as its employee, agent, or servant and that it was directly liable based on its
failure to supervise Clark as he mowed. Plaintiffs’ claims against Clark (counts I and II) and Poe
-2- (counts III through VIII) remained substantially the same as those set forth in its original
complaint.
¶7 In July 2023, the Poe defendants filed a third motion for summary judgment, which
is the subject of this appeal. They asserted they were entitled to judgment as a matter of law as to
each count against them in plaintiffs’ first amended complaint. Specifically, the Poe defendants
argued (1) they did not have a duty to supervise Clark as he mowed his own leased lawn, requiring
the dismissal of counts VII, VIII, XI, and XII, (2) Clark was not acting within the scope of any
agency relationship with them at the time of the accident, requiring the dismissal of counts III, IV,
IX, and X, and (3) Poe did not retain control of the Sherman Road property and did not owe a duty
to Michael based on Clark’s activities, requiring the dismissal of counts V and VI. To their motion,
plaintiffs attached exhibits that contained Poe’s and Clark’s depositions, a lease agreement for the
Sherman Road property, photographs of the site of the accident, and the deposition of Mark Ezra,
a mechanical engineer and accident reconstructionist.
¶8 The same month, plaintiffs filed their own motion for summary judgment as to their
vicarious liability counts against the Poe defendants (counts III, IV, IX, and X). They asserted
evidence showed Clark was acting as the Poe defendants’ agent or employee at the time of the
accident and while mowing the grass at the Sherman Road property and that he was acting within
the scope of his agency or employment as a farmhand when he mowed. In August 2023, plaintiffs
also filed a response to the Poe defendants’ third motion for summary judgment, challenging
defendants’ claims that they were entitled to a judgment as a matter of law on each count against
them. Attachments to plaintiffs’ filings included the lease agreement for the Sherman Road
property and the depositions of Poe, Clark, and Robert Manley, a second Poe Enterprises
employee.
-3- ¶9 The parties’ evidence showed Poe owned farmland that he rented to Poe
Enterprises. Since approximately October 2015, Clark worked for Poe Enterprises as a farmhand
and was a salaried employee. Clark testified that as part of “the deal of [his] employment,” he also
rented a residence from Poe located at 4872 Sherman Road. The property included a large shed
and grain bin used by Poe and a smaller shed that Clark described as his “personal shed.” It was
also surrounded by 160 acres of farmland that Poe also owned.
¶ 10 Clark’s rental of the Sherman Road property was governed by a lease agreement he
entered into with Poe and Poe’s wife, Carol. The agreement, dated October 1, 2015, identified the
property covered by the lease as “real property and improvements located at 4872 Sherman
[Road].” It required the premises to “be used and occupied solely by [Clark and his immediate
family] exclusively, as a private single family dwelling.” According to the terms of the lease, Clark
was required to pay rent of $1 per month, and the lease would terminate upon the “termination of
[his] employment.” The lease also contained a provision entitled “Maintenance, Repair, and
Rules,” which stated, “Tenant will, at its sole expense, keep and maintain the Premises and
appurtenances in good and sanitary condition and repair during the term of” the lease agreement.
¶ 11 During his deposition, Clark initially testified that the lease covered “[t]he
residence at 4872” but not anything else. However, he later clarified that he considered “[t]he
grass, the house, and the little shed” to all be encompassed within the property he leased. Clark
agreed that his lease for the Sherman Road residence would terminate when his employment
terminated and that it was “part of [his] compensation.” Clark also testified that he did not lease
any farmland connected to the Sherman Road property. According to Poe, the leased portion of
the Sherman Road property consisted of the residence and the yard. He agreed the lease with Clark
was part of Clark’s employment compensation and tied to Clark’s employment.
-4- ¶ 12 Poe testified that, as a farmhand, Clark had no set schedule but usually worked from
9 a.m. to 5 p.m. Clark described his work schedule as being “different throughout the year.” He
also testified that as a farmhand, his job duties involved working with farm equipment and farm
animals. Regarding whether he mowed lawns at the Poe defendants’ various properties, Clark
testified as follows:
“A. I don’t, no. I use the tractor and the bigger mower. But just roadside
ditches and that kind of thing.
Q. You do roadside ditches at these different properties?
A. We haven’t recently, no. But yes, I have.
Q. In the past, in your four to five years of employment with *** Poe, have
you mowed roadside ditches at these different properties?
A. Yes.”
When mowing roadside ditches, Clark used “a tractor and brush hog.”
¶ 13 On the day of the motorcycle accident, Clark was mowing the lawn of the Sherman
Road property with a “Dixie Chopper” lawnmower that Poe owned. Clark had witnessed Poe using
the lawnmower to mow at his properties. Clark testified he used the Dixie Chopper lawnmower
“solely for [his] own yard at [his] residence,” and he stated he only mowed “after hours on [his]
own time.” He denied using the lawnmower at any different properties while employed by Poe as
a farmhand. Also, he maintained that he did not mow his yard “if [he] was at work,” and that he
mowed the grass at the Sherman Road property because it was his “preference not to have tall
grass.”
¶ 14 The lawnmower at issue was stored in a shed at Poe’s son’s house, and Clark
transported the mower to the Sherman Road property using a vehicle and trailer that Poe also
-5- owned. Maintenance on the lawnmower was done by Poe’s employees at Poe’s large shed on the
Sherman Road property. When asked if such maintenance was performed during work hours, Clark
responded as follows: “It just depends. If we get to it during the work hours, we do. If we stay late
or I do [it] on my own time or whatever.” Clark testified he used his own string trimmer at the
Sherman Road property.
¶ 15 Clark further stated that Poe never directed him regarding when or how to mow the
lawn at the Sherman Road property. To his knowledge, Poe did not know that he was mowing on
the day of the accident. However, Clark believed that Poe could make him get off the lawnmower
if he was using it at a time that Poe stated he needed it. If Poe told him the Sherman Road residence
needed to be mowed once a week, Clark would follow the instruction “[i]f it needed mowed.”
Clark also testified that because he lived at the Sherman Road residence and took care of the yard,
he mowed the grass to a height that he liked. If Poe asked him to mow the grass to a certain height,
Clark stated he would not directly tell Poe, “ ‘No, I’m going to mow to the height I like.’ ”
¶ 16 Clark recalled that in September 2019, he worked for Poe “Monday through
Friday.” He did not remember what time he finished work on the date of the accident. However,
at some point, after he was “off the clock” and no longer working, he began mowing the lawn at
his residence. He started with the east side of the house before moving to the west side toward
Guest Road. Clark testified that as he mowed along Guest Road, it was dusk and the “chute” on
the lawnmower was closed but pointed toward the road. He stated that when the motorcycle
accident occurred “it was dark” and he was “halfway through the west side” of the lawn. Clark did
not see the accident but did hear “crashing.” He immediately called 911 and attempted to assist
Michael, who was lying in a ditch.
¶ 17 Once the scene was clear after the accident, Clark spoke with the police and
-6- observed grass on Guest Road in the northbound lane of travel. As a result of the accident, Clark
received a citation “for grass clippings on the road.” The same night, Clark called Poe and told
him about the accident “[b]ecause it happened in front of [Poe’s] house.” Clark denied that anyone
was supervising him while he mowed at the Sherman Road property on September 23, 2019.
¶ 18 Poe testified that although he owned the Sherman Road property, he did not tell
Clark when or how to mow the lawn on the property. He agreed that, for appearance reasons, he
did not want the grass at the property to be tall.
¶ 19 Robert Manley testified that beginning in 1978, he worked for Poe Enterprises as a
farm laborer. His job duties included driving a tractor or truck and “general repair.” He testified
he had no set work schedule and the times that he worked depended on the type of work that he
had to do. Manley denied ever using the Dixie Chopper lawnmower to cut grass but stated he had
repaired it while working for Poe Enterprises. Additionally, although he mowed fields as part of
his job for Poe Enterprises, he used a tractor with a piece of equipment attached to it and not the
Dixie Chopper lawnmower. Manley stated he had seen Clark using the Dixie Chopper lawnmower
at Clark’s residence “after hours” when they had “already left work for the day.”
¶ 20 Manley also testified that he had resided at the Sherman Road property in the past.
He lived there for 8 to 10 years pursuant to a lease. He stated his lease was separate from his
employment, and he recalled that he paid rent of $500 per month. Manley further asserted that he
never used a lawnmower owned by Poe while living at that residence.
¶ 21 In August 2023, the trial court conducted a hearing at which it heard arguments on
both the Poe defendants’ third motion for summary judgment as to all counts against them and
plaintiffs’ motion for summary judgment in their favor on the vicarious liability counts. In
September 2023, the court entered a written order denying plaintiffs’ motion, granting the Poe
-7- defendants’ motion, and entering judgment as to counts III through XII of plaintiffs’ first amended
complaint in the Poe defendants’ favor. The court found no genuine issue of material fact existed
with respect to those counts and that the Poe defendants were entitled to judgment as a matter of
law.
¶ 22 First, as to counts III, IV, IX, and X, alleging the Poe defendants were vicariously
liable for Clark’s actions, the trial court found the undisputed facts did not support a finding of an
agency relationship between Clark and the Poe defendants outside of Clark’s employment as a
farmhand and concluded there was “no evidence of any agency relationship related to the mowing
of the grass at Clark’s personal residence.” Second, as to counts V and VI, alleging direct liability
by Poe based upon his ownership of the Sherman Road property, the court found “no evidence to
support a finding that Defendant Poe retained control of the leased yard or of his tenant’s mowing
activities.” It concluded that as a matter of law, Poe, a landlord, did not owe plaintiffs a duty of
care under the facts presented. Third, regarding counts VII, VIII, XI, and XII, alleging the Poe
defendants were directly negligent for failing to supervise Clark, the court stated the undisputed
facts showed “Clark was mowing his own leased yard after work.” It stated that although he was
employed by the Poe defendants, there was no evidence to support a finding that Clark mowing
his own residential yard was a part of his employment responsibilities “or that any other duty to
supervise existed.”
¶ 23 Plaintiffs filed a motion to reconsider the trial court’s rulings. Following a hearing
in November 2023, the court entered a written order denying the motion. In its order, the court
also made a finding that there was no just reason for delaying the enforcement or appeal, or both,
of its order.
¶ 24 This appeal followed.
-8- ¶ 25 II. ANALYSIS
¶ 26 On appeal, plaintiffs argue the trial court erred in granting summary judgment in
the Poe defendants’ favor as to counts III through XII of their first amended complaint. They
contend genuine issues of material fact exist as to whether the Poe defendants were vicariously
liable for Clark’s actions because evidence in the record supported findings that (1) the Poe
defendants formed an agency relationship with Clark to act as property manager of the Sherman
Road property and (2) Clark was acting within the scope of his employment as a farmhand when
mowing that property. Plaintiffs also contend that genuine issues of material fact exist with respect
to whether the Poe defendants were directly liable based upon a duty to supervise Clark’s mowing
activities and Poe retaining control over the Sherman Road property.
¶ 27 Summary judgment is proper “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
2022). “Summary judgment is a drastic means of disposing of litigation and should be allowed
only when the right of the moving party is clear and free from doubt.” Beaman v. Freesmeyer,
2021 IL 125617, ¶ 72, 183 N.E.3d 767.
¶ 28 “The purpose of summary judgment is not to try a question of fact but, rather, to
determine whether a genuine issue of material fact exists.” Lewis v. Lead Industries Ass’n, 2020
IL 124107, ¶ 14, 178 N.E.3d 1046. When making such a determination, “a court must construe the
pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor
of the opponent.” Id. ¶ 15. “A genuine issue of material fact precluding summary judgment exists
where the material facts are disputed or, if the material facts are undisputed, reasonable persons
might draw different inferences from the undisputed facts.” Id.
-9- ¶ 29 “[T]o survive a motion for summary judgment, a plaintiff need not prove her case,
but she must present a factual basis that would arguably entitle her to a judgment.” Bruns v. City
of Centralia, 2014 IL 116998, ¶ 12, 21 N.E.3d 684. “If the plaintiff fails to establish any element
of the cause of action, summary judgment for the defendant is appropriate.” Lewis, 2020 IL
124107, ¶ 15. On appeal, the trial court’s summary judgment rulings are subject to de novo review.
Id.
¶ 30 Additionally, here, plaintiffs filed a cross-motion for summary judgment with
respect to their vicarious liability counts (counts III, IV, IX, and X). “When parties file
cross-motions for summary judgment, they mutually agree that there are no genuine issues of
material fact and that only a question of law is involved.” Jones v. Municipal Employees’ Annuity
& Benefit Fund, 2016 IL 119618, ¶ 26, 50 N.E.3d 596. However, “[t]he mere filing of
cross-motions for summary judgment and the invitation to the trial court to decide the issue on the
record does not establish there is no issue of a material fact.” Giannetti v. Angiuli, 263 Ill. App. 3d
305, 306, 635 N.E.2d 1083, 1085 (1994). Under such circumstances, a de novo standard of review
continues to apply. Id.
¶ 31 A. Vicarious Liability—Counts III, IV, IX, and X
¶ 32 In counts III, IV, IX, and X of their first amended complaint, plaintiffs alleged the
Poe defendants were vicariously liable for Clark’s actions under the doctrine of
respondeat superior. On appeal, they argue that genuine issues of material fact exist as to those
counts because the record contains evidence showing that (1) as a part of Clark’s employment, the
Poe defendants formed an agency relationship with Clark to act as “property manager” of the
Sherman Road property and (2) Clark was acting within the scope of his employment as a
farmhand when he mowed the Sherman Road property at the time of the accident.
- 10 - ¶ 33 “Generally, a person injured by the tortious action of another must seek his or her
remedy from the person who caused the injury.” Lawlor v. North American Corp. of Illinois, 2012
IL 112530, ¶ 42, 983 N.E.2d 414. “The principal-agent relationship is an exception to this general
rule.” Id. “Under the doctrine of respondeat superior, an agent’s wrongful conduct may be imputed
to the principal.” Sperl v. Henry, 2018 IL 123132, ¶ 27, 124 N.E.3d 936.
“Proof of actual agency, or respondeat superior, requires a showing that (1) a
principal/agent, master/servant, or employer/employee relationship existed; (2) the
principal controlled or had the right to control the conduct of the alleged employee
or agent; and (3) the alleged conduct of the agent or employee fell within the scope
of the agency or employment.” Wilson v. Edward Hospital, 2012 IL 112898, ¶ 18,
981 N.E.2d 971.
¶ 34 “The test for determining whether an agency relationship exists is whether the
alleged principal has the right to control the manner and method in which work is carried out by
the alleged agent and whether the alleged agent can affect the legal relationships of the principal.”
Bowyer v. Adono, 2020 IL App (3d) 180685, ¶ 37, 156 N.E.3d 594. “The ability or right to control
the work is a key element in the determination, regardless of whether the principal actually
exercises the right to control.” Id.
¶ 35 Additionally, “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). The
Restatement “identifies three general criteria” for consideration. Id. at 299. Specifically, the
Restatement provides as follows:
“(1) Conduct of a servant is within the scope of employment if, but only if:
- 11 - (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).
¶ 36 All three criteria from section 228 of the Restatement “must be met in order to
conclude that an employee was acting within the scope of employment.” Adames, 233 Ill. 2d at
299. “Whether an employee was acting within the course of the employment depends on the
employment contract and the nature of the relationship, which must exist at the time of and in
respect to the particular facts out of which the injury arose.” Bagent v. Blessing Care Corp., 224
Ill. 2d 154, 165, 862 N.E.2d 985, 992 (2007).
¶ 37 “The party seeking to impose liability on the principal has the burden of proving
the existence and scope of the alleged agency relationship.” Bowyer, 2020 IL App (3d) 180685,
¶ 39, 156 N.E.3d 594.
“Although the resolution of those two issues (existence and scope) is usually a
question of fact for the trier of fact to decide, it may be decided by the trial court as
a question of law when the material facts relating to the relationship are undisputed
and only one reasonable conclusion may be drawn from the undisputed facts or
- 12 - where no liability exists as a matter of law.” Id.
¶ 38 Here, as to counts III, IV, IX, and X of plaintiffs’ first amended complaint, the trial
court found the facts were undisputed and did “not support a finding of any agency relationship
between Clark and the Poe Defendants outside [of] Clark’s employment as a farmhand.” It also
found “no evidence of any agency relationship related to the mowing of the grass at Clark’s
personal residence.” We agree and find no genuine issues of material fact exist regarding plaintiffs’
vicarious liability counts and that the Poe defendants were entitled to summary judgment in their
favor as a matter of law.
¶ 39 1. Existence of an Agency Relationship for
Clark’s Upkeep of the Sherman Road Property
¶ 40 As noted, plaintiffs first argue the Poe defendants were vicariously liable for
Clark’s mowing activities at the Sherman Road property by virtue of an agency relationship
through which Clark, in addition to his role as farmhand, “effectively act[ed] as the property
manager” of the Sherman Road property on defendants’ behalf. They assert that evidence in the
record, including deposition testimony and the lease agreement, established that “living at and
upkeeping [the Sherman Road property] was a part of *** Clark’s employment.” Plaintiffs
maintain that, as a result, the Poe defendants had a right to control the manner in which Clark
performed his mowing activities, even if they did not exercise such control.
¶ 41 Here, the only reasonable conclusion from the undisputed facts is that Clark was
not acting as the Poe defendants’ employee or agent when he was mowing at the Sherman Road
property just prior to the motorcycle accident. Evidence presented in connection with the parties’
summary judgment motions showed Clark was employed by Poe Enterprises as a farmhand.
Additionally, he entered into a lease agreement for the Sherman Road property with Poe and his
- 13 - wife. That agreement allowed Clark to use the Sherman Road property as his personal residence
for a nominal amount of rent, $1 per month. Both Clark and Poe testified that the cheap rent in the
lease agreement was part of Clark’s employment compensation. As argued by the Poe defendants,
the evidence supports the finding that the lease agreement was a benefit of Clark’s employment,
not a requirement or condition of it.
¶ 42 Also, no evidence showed that the Poe defendants had or retained control over
Clark’s mowing activities on the leased property. We note “[t]he status of landlord and tenant of
itself does not create an agency relationship.” People of Kane County v. Midway Landfill, Inc., 23
Ill. App. 3d 1080, 1083, 321 N.E.2d 91, 94 (1974). Further, “the *** distinguishing characteristic
of a lease is the surrender of possession and control of the property to the tenant for the agreed
upon term.” Millennium Park Joint Venture, LLC v. Houlihan, 241 Ill. 2d 281, 310, 948 N.E.2d 1,
19 (2010); see Nida v. Spurgeon, 2013 IL App (4th) 130136, ¶ 29, 998 N.E.2d 938 (“[T]he lease
transfers the lessor’s control over the property to the lessee.”). “The landlord’s liability for the
leased premises is extinguished because the lessee acquires an estate in the land and temporarily
becomes both owner and occupier, subject to all of the responsibilities of one in possession to
those who enter upon the land and those outside of its boundaries.” Klitzka ex rel. Teutonico v.
Hellios, 348 Ill. App. 3d 594, 597, 810 N.E.2d 252, 256 (2004).
¶ 43 Here, the lease agreement created a landlord and tenant relationship between Poe
and Clark. It also transferred control over the Sherman Road property to Clark for use as his
personal residence. Notably, the lease contained a specific provision that stated Clark was required
to “keep and maintain” the property “in good and sanitary condition and repair.” Nothing in the
lease agreement or the other evidence presented indicates Poe retained any control over the yard
of the Sherman Road property or the way in which Clark maintained that yard. Plaintiffs raise no
- 14 - challenge to the validity of the lease agreement, and we find it shows that Clark, not the Poe
defendants, had control over the Sherman Road property and its upkeep.
¶ 44 Plaintiffs cite authority for the proposition that “[a] written contract is not
conclusive of the nature of the relationship between the parties.” Bruntjen v. Bethalto Pizza, LLC,
2014 IL App (5th) 120245, ¶ 80, 18 N.E.3d 215. In particular, “the declaration of the parties is not
controlling where the conduct of the parties demonstrates the existence of an agency relationship.”
Oliveira-Brooks v. Re/Max International, Inc., 372 Ill. App. 3d 127, 134, 865 N.E.2d 252, 258
(2007). Here, the parties’ conduct did not show the existence of an agency relationship with respect
to Clark’s mowing activities. Rather, Clark testified that because he lived at the Sherman Road
property and took care of the yard, he mowed the grass to a height he liked. Clark mowed the grass
“on [his] own time” and because it was his “preference not to have tall grass.” He stated that Poe
did not direct him regarding when or how to mow. Nor is there any evidence in the record that Poe
directed Clark with respect to any aspect of the property’s upkeep. Poe similarly testified that he
did not tell Clark when or how to mow the grass at the Sherman Road property. Under the facts
presented, the parties’ conduct regarding Clark’s mowing activities also fails to support the
existence of an agency relationship.
¶ 45 Plaintiffs further argue that the existence of an agency relationship was shown
through evidence that the property Clark mowed was not part of the lease agreement. They point
to testimony from Clark that the lease agreement covered “[t]he residence at 4872” and not
anything else. However, although Clark initially provided such testimony, he later clarified during
his deposition that the lease agreement covered “[t]he grass, the house, and the little shed.” Poe
similarly testified that the leased portion of the Sherman Road property consisted of the residence
and the yard. Further, the lease agreement establishes that he leased property consisting of the “real
- 15 - property and improvements located at 4872 Sherman [Road].” As the Poe defendants note on
appeal, “real property” means “[l]and and anything growing on, attached to, or erected on it,
excluding anything that may be severed without injury to the land.” (Internal quotation marks
omitted.) (citing Black’s Law Dictionary (12th ed. 2024)). Accordingly, not only was it Poe’s and
Clark’s belief that the leased property included the yard and the residence at the Sherman Road
property, but the lease agreement also supports their understanding.
¶ 46 Finally, plaintiffs also argue that factors used to determine whether a person is
acting as an agent or an independent contractor are relevant to the present case and that they weigh
in favor of finding that an agency relationship existed between Clark and the Poe defendants. Such
factors include “the right to control the manner in which the work is performed; the right to
discharge; the method of payment; whether taxes are deducted from the payment; the level of skill
required to perform the work; and the furnishing of the necessary tools, materials, or equipment.”
Lang v. Silva, 306 Ill. App. 3d 960, 972, 715 N.E.2d 708, 716 (1999). We note an independent
contractor is “[s]omeone who is entrusted to undertake a specific project but who is left free to do
the assigned work and to choose the method for accomplishing it.” Black’s Law Dictionary (12th
ed. 2024). Here, the question is not whether Clark was an agent versus an independent contractor,
but whether he was an agent versus someone acting in furtherance of his own interests by mowing
the grass at his personal residence.
¶ 47 Nevertheless, even assuming that these additional factors apply, we would find they
do not establish the existence of an agency relationship. Of the above factors, no single factor is
determinative. Lang, 306 Ill. App. 3d at 972. However, “the right to control the manner in which
the work is performed is considered to be the predominant factor.” Id. Here, the evidence supported
a finding that Clark, as the lessee of the Sherman Road property, was in control of the mowing
- 16 - activities at the property. Clark was not hired to mow or maintain the Sherman Road property and
was not paid for such work. Rather, his ability to lease the property as his own personal residence,
at a low rental rate, was part of his compensation as a farmhand. Additionally, while the
lawnmower Clark used to mow the property belonged to Poe, Clark testified he also used his own
string trimmer when mowing at the property.
¶ 48 In this case, the evidence showed the Poe defendants could not and, in fact, did not
control Clark’s mowing activities at the Sherman Road property. As the trial court determined, the
undisputed facts did not support a finding of an agency relationship between Clark and the Poe
defendants outside of Clark’s employment as a farmhand.
¶ 49 2. The Scope of Clark’s Employment as a Farmhand
¶ 50 Plaintiffs alternatively argue that even if Clark’s employment did not include a duty
“to effectively act as the property manager” for the Poe defendants at the Sherman Road property,
the evidence in the record supports a finding that his mowing activities were within the scope of
his employment as a farmhand. They contend the record supports a finding that Clark’s mowing
activities were the kind he was employed to perform, occurred within the authorized time and
space limits of his employment, and were motivated by a purpose to serve the Poe defendants.
Again, we disagree.
¶ 51 At the time the accident occurred, Clark was mowing the yard of his personal,
leased residence, and the evidence established such activity was not the kind Clark was employed
to perform. Specifically, he testified that as a farmhand, his duties involved working with farm
equipment and animals. Although he had mowed “roadside ditches” in the past with “a tractor and
brush hog,” he was not required to mow the lawns of the Poe defendants’ properties.
¶ 52 Additionally, the evidence established Clark was not mowing within the authorized
- 17 - time and space limits of his employment. Although Clark’s work hours varied, he testified that
when mowing at the Sherman Road property, he only did so “after hours on [his] own time.” He
explicitly stated he did not mow his yard “if [he] was at work.” On the day of the accident, Clark
did not begin mowing at his residence until he was “off the clock” and no longer working. When
Manley observed Clark mowing at the Sherman Road property, it was only “after hours,” when
they had “already left work for the day.”
¶ 53 Finally, the evidence also showed Clark was motivated by his own interests rather
than those of the Poe defendants. Specifically, as the lessee of the Sherman Road property, Clark
was responsible for maintaining the property, and he testified he mowed because it was his
“preference not to have tall grass.”
¶ 54 Here, Clark’s mowing activities at the Sherman Road property were not within the
scope of his employment as a farmhand. Accordingly, the trial court was correct in finding the
record contained “no evidence of any agency relationship related to the mowing of the grass at
Clark’s personal residence.” We find the court properly granted summary judgment in favor of the
Poe defendants with respect to the vicarious liability counts of plaintiffs’ first amended complaint
and that it committed no error by denying plaintiffs’ motion to reconsider that ruling.
¶ 55 B. Negligent Supervision—Counts VII, VIII, XI, and XII
¶ 56 In counts VII, VIII, XI, and XII of plaintiffs’ first amended complaint, they raised
direct negligence claims against the Poe defendants for negligent supervision. On appeal, they
contend the trial court erred in ruling as a matter of law that the Poe defendants did not have a duty
to supervise Clark at the time of the accident. They contend the evidence before the court supported
a finding that mowing the lawn of the Sherman Road property was both (1) a task Clark was
expected to perform as the effective property manager of the Sherman Road property and
- 18 - (2) incidental to his work as a farmhand.
¶ 57 “[A]t common law an employee’s malfeasance may generally create liability for
his or her employer in two ways: vicarious liability for the acts of the employee, or direct liability
for the employer’s own acts.” Vancura v. Katris, 238 Ill. 2d 352, 375, 939 N.E.2d 328, 343 (2010).
“[A] claim of direct negligence *** alleges that the employer was itself negligent.” (Emphasis
omitted.) Id. “As in any claim for negligence, a plaintiff must establish the existence of a duty, a
breach of the duty, and an injury to the plaintiff that was proximately caused by the breach.” Id.
¶ 58 “In a cause of action for negligent supervision against a tortfeasor’s employer, a
plaintiff must establish that (1) the employer had a duty to supervise its employee, (2) the employer
negligently supervised its employee, and (3) such negligence proximately caused the plaintiff’s
injuries.” Lewis v. OSF Healthcare System, 2022 IL App (4th) 220016, ¶ 42, 233 N.E.3d 238; see
Doe v. Coe, 2019 IL 123521, ¶¶ 52, 61, 135 N.E.3d 1. “An employer has a duty to supervise all
employees; the extent to which she must do so depends on many factors, such as the work
performed, the employees performing it, the size of the business, the type of work, and the
employer’s clientele, among others.” Coe, 2019 IL 123521, ¶ 58.
¶ 59 “Whether a duty exists is a question of law to be determined by the court.” (Internal
quotation marks omitted.) Id. ¶ 36. “[T]o impose a duty to supervise, only general foreseeability
is required in an employment context.” Id. ¶ 61.
¶ 60 Here, in granting the Poe defendants’ motion for summary judgment as to these
direct negligence counts, the trial court reiterated its finding that “[t]he undisputed facts
establish[ed] Clark was mowing his own leased yard after work.” It stated that although Clark was
employed by the Poe defendants, the evidence did not “support a finding that mowing his own
residential yard was a part of his employment responsibilities with the Poe defendants or that any
- 19 - other duty to supervise existed.” The court committed no error in reaching these determinations.
¶ 61 Plaintiffs’ argument on appeal is that the Poe defendants had a duty to supervise
Clark’s mowing activities at the Sherman Road property by virtue of Clark’s status as an effective
“property manager” for the Sherman Road property or because mowing was a part of Clark’s tasks
as a farmhand. For the reasons already expressed above, the evidence in the record supported
neither conclusion. Instead, it showed Clark leased the Sherman Road property from Poe to use as
his own personal residence. As lessee, Clark was the party responsible for its care and maintenance
and, at the time of the motorcycle accident, Clark was not under the Poe defendants’ control.
Further, although the Poe defendants employed Clark as a farmhand, his job duties did not include
mowing lawns. Instead, Clark’s lawn mowing activities occurred after work and on his own
personal time.
¶ 62 Plaintiffs’ arguments on appeal—that the Poe defendants had a duty to supervise
Clark because mowing was a task Clark was required to perform as a property manager or
incidental to his job duties as a farmhand—lack merit. Accordingly, they have failed to establish
any error by the trial court in finding the Poe defendants had no duty to supervise, granting
summary judgment in the Poe defendants’ favor as to counts VII, VIII, XI, and XII, or denying
plaintiffs’ motion to reconsider.
¶ 63 C. Control Over the Sherman Road Property—Counts V and VI
¶ 64 Finally, in counts V and VI of their first amended complaint, plaintiffs alleged Poe
was directly negligent based upon his ownership of the Sherman Road property. They argue the
trial court erred by ruling as a matter of law that such claims could not be sustained because Poe
did not retain control over the property.
¶ 65 As set forth above, “the *** distinguishing characteristic of a lease is the surrender
- 20 - of possession and control of the property to the tenant for the agreed upon term.” Millennium Park,
241 Ill. 2d at 310; see Nida, 2013 IL App (4th) 130136, ¶ 29 (“[T]he lease transfers the lessor’s
control over the property to the lessee.”). “[A] landlord is not liable for injuries caused by a
defective condition on the premises leased to a tenant and under the tenant’s control.” Rowe v.
State Bank of Lombard, 125 Ill. 2d 203, 220-21, 531 N.E.2d 1358, 1366 (1988). However, “if a
landlord retains control of a portion of the premises leased to the tenant it has the duty, as the party
in control, to use ordinary care in maintaining that part of the premises in a reasonably safe
condition.” Id. at 220.
¶ 66 Plaintiffs argue a triable issue of fact existed regarding whether Poe retained control
of the yard at the Sherman Road property. In particular, they assert the lease was silent as to what
portion of the Sherman Road property Clark actually rented and that Clark’s understanding of the
lease was that he rented only the house.
¶ 67 Here, as stated, the lease agreement provided that the leased property consisted of
the “real property and improvements located at 4872 Sherman [Road],” suggesting that the yard
surrounding the Sherman Road residence was included within the lease. See Black’s Law
Dictionary (12th ed. 2024) (defining “real property” as “[l]and and anything growing on, attached
to, or erected on it, excluding anything that may be severed without injury to the land”). Further,
contrary to plaintiffs’ assertions on appeal, both Clark’s and Poe’s testimony showed that they
understood the lease to include the yard. Although Clark initially indicated that he thought the
lease agreement covered only “[t]he residence at 4872,” he later clarified that the lease also covered
“[t]he grass, the house, and the little shed.” Poe testified similarly, asserting that Clark leased both
the residence and the yard of the Sherman Road property.
¶ 68 Moreover, the lease contained a specific provision that stated Clark was required to
- 21 - “keep and maintain” the leased property “in good and sanitary condition and repair.” Although
there were a larger shed, a grain bin, and surrounding acres of farmland that were also associated
with the Sherman Road property and not covered by the lease, the evidence shows Clark was in
control of the residence and the yard of the property.
¶ 69 In granting the Poe defendants’ motion for summary judgment as to the direct
negligence counts against Poe, the trial court found “no evidence to support a finding that
Defendant Poe retained control of the leased yard or of his tenant’s mowing activities” and, thus,
as a matter of law he did not owe a duty of care under the facts presented. Again, we find no error
in the court’s determination. The court properly granted the Poe defendants’ motion for summary
judgment and denied plaintiffs’ motion for reconsideration of that summary judgment ruling.
¶ 70 III. CONCLUSION
¶ 71 For the reasons stated, we affirm the trial court’s judgment.
¶ 72 Affirmed.
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