NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 210451-U
Order filed June 3, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
STEVEN PALMER, ) Appeal from the Circuit Court ) of the 9th Judicial Circuit, Plaintiff-Appellant, ) McDonough County, Illinois. ) v. ) Appeal No. 3-21-0451 ) Circuit No. 20-L-18 ELBE AUTO SALES, LLC, ) ) Defendant-Appellee. ) Honorable Heidi A. Benson, ) Judge, Presiding. ____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court. Justices Holdridge and Lytton concurred in the judgment.
ORDER
¶1 Held: Plaintiff failed to allege a claim of negligent hiring; the trial court did not err when it dismissed his complaint. Plaintiff forfeited his challenge to the trial court’s denial of his motion to strike.
¶2 Plaintiff, Steven Palmer, appeals the dismissal of his fifth amended complaint against
defendant, Elbe Auto Sales, LLC. Plaintiff contends he sufficiently alleged that defendant
negligently hired an employee who caused plaintiff’s injuries in a motor vehicle accident. We
affirm. ¶3 I. BACKGROUND
¶4 On November 23, 2020, plaintiff filed a complaint for damages he sustained as a result of
a motor vehicle accident with Ray Etter, an employee of defendant. Plaintiff filed a first amended
complaint. Two of the seven counts of the complaint are relevant to this appeal. The complaint
alleged a claim against defendant for the negligent hiring of Ray Etter. The complaint also sought
relief under a theory of respondeat superior against defendant.
¶5 Defendant filed a motion to dismiss, arguing that plaintiff’s complaint failed to state a cause
of action. The court granted the motion to dismiss and allowed plaintiff to file an amended
complaint.
¶6 Plaintiff did not file a second amended complaint. Instead, plaintiff filed a third amended
complaint. Then, plaintiff filed a motion to file a fourth amended complaint. Plaintiff attached a
proposed fourth amended complaint to the motion. The two-count complaint, again, raised claims
of negligent hiring and respondeat superior. Defendant objected. Defendant argued that the fourth
amended complaint suffered from the same factual insufficiencies as the complaints previously
dismissed by the court. The court found that the proposed amended complaint still failed to
properly plead a cause of action. However, the court gave plaintiff leave to file a fifth amended
¶7 On July 1, 2021, plaintiff filed his fifth amended complaint. The complaint brought only
one claim against defendant for the negligent hiring of Etter. According to the complaint,
defendant hired Etter when he was around 80 years old. At the time of the accident in question,
Etter was 86 years old. While driving at defendant’s direction, Etter crossed the centerline of the
road into oncoming traffic. Etter collided with plaintiff’s vehicle. Etter died in the accident. The
complaint cited scientific studies showing that “older drivers continue to have higher rates of fatal
-2- crashes than most other age groups.” In addition, plaintiff alleged that “[s]pecific physical,
cognitive and visual abilities may decline with advancing age for some people” and “[h]igher
levels of physical, cognitive or visual impairment among older drivers are associated with
increased risk of crash involvement.” Plaintiff claimed Etter (an 86-year-old) experienced physical
and mental disabilities of “some nature, and to some degree” when defendant hired him. The
complaint did not make any specific allegation regarding Etter’s personal ability to drive. Instead,
plaintiff asserted generally that Etter was not fit to perform his duties as a driver due to his age.
Therefore, plaintiff claimed that defendant negligently hired Etter.
¶8 Defendant filed a motion to dismiss pursuant to section 2-615 of the Illinois Code of Civil
Procedure (735 ILCS 5/2-615 (West 2020)). Defendant argued that the complaint failed to allege
sufficient facts to support a cause of action. Specifically, defendant contended that the negligent
hiring claim lacked support because the complaint failed to alleged facts to establish that Etter had
a particular unfitness for his employment with defendant.
¶9 Plaintiff filed a response to defendant’s motion to dismiss. In addition, plaintiff filed a
motion to strike defendant’s motion to dismiss. Plaintiff claimed that the motion to dismiss
contained false or misleading statements and should be stricken in its entirety.
¶ 10 Ultimately, the trial court denied plaintiff’s motion to strike. Additionally, the court granted
defendant’s motion to dismiss and dismissed plaintiff’s complaint with prejudice. Plaintiff appeals.
¶ 11 II. ANALYSIS
¶ 12 On appeal, plaintiff contends the trial court erred when it granted defendant’s motion to
dismiss. A section 2-615 motion to dismiss attacks the legal sufficiency of a complaint by asserting
it is facially defective. Id.; Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). When
reviewing the sufficiency of a complaint, the court must take as true all well-pled facts and
-3- reasonable inferences flowing from those facts. Id. In addition, the complaint’s allegations must
be construed in the light most favorable to the plaintiff. Id. “Thus, a cause of action should not be
dismissed pursuant to section 2-615 unless it is clearly apparent that no set of facts can be proved
that would entitle the plaintiff to recovery.” Id. While a plaintiff need not include evidence in the
complaint, “the plaintiff must allege facts sufficient to bring a claim within a legally recognized
cause of action [citation], not simply conclusions [citation].” Id. at 429-30. We review a circuit
court’s ruling on a section 2-615 motion to dismiss under the de novo standard. Id. at 429.
¶ 13 Plaintiff contends that his fifth amended complaint sufficiently alleged claims of negligent
hiring and respondeat superior. Plaintiff’s fifth amended complaint only contains one claim
against defendant: negligent hiring. The respondeat superior claim appeared in plaintiff’s prior
complaints, but he failed to include that claim in his fifth amended complaint. Plaintiff abandoned
the respondeat superior claim by failing to include it in his fifth amended complaint. “[A] party
who files an amended pleading waives any objection to the trial court’s ruling on the former
complaints.” Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153-54
(1983). Therefore, any argument regarding plaintiff’s claim of respondeat superior is not properly
before this court. We limit our analysis to plaintiff’s claim of negligent hiring.
¶ 14 An action for negligent hiring or retention of an employee requires the plaintiff to
“plead and prove (1) that the employer knew or should have known that the
employee had a particular unfitness for the position so as to create a danger
of harm to third persons; (2) that such particular unfitness was known or
should have been known at the time of the employee’s hiring or retention;
and (3) that this particular unfitness proximately caused the plaintiff’s
injury.” Van Horne v. Muller, 185 Ill. 2d 299, 311 (1998).
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NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 210451-U
Order filed June 3, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
STEVEN PALMER, ) Appeal from the Circuit Court ) of the 9th Judicial Circuit, Plaintiff-Appellant, ) McDonough County, Illinois. ) v. ) Appeal No. 3-21-0451 ) Circuit No. 20-L-18 ELBE AUTO SALES, LLC, ) ) Defendant-Appellee. ) Honorable Heidi A. Benson, ) Judge, Presiding. ____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court. Justices Holdridge and Lytton concurred in the judgment.
ORDER
¶1 Held: Plaintiff failed to allege a claim of negligent hiring; the trial court did not err when it dismissed his complaint. Plaintiff forfeited his challenge to the trial court’s denial of his motion to strike.
¶2 Plaintiff, Steven Palmer, appeals the dismissal of his fifth amended complaint against
defendant, Elbe Auto Sales, LLC. Plaintiff contends he sufficiently alleged that defendant
negligently hired an employee who caused plaintiff’s injuries in a motor vehicle accident. We
affirm. ¶3 I. BACKGROUND
¶4 On November 23, 2020, plaintiff filed a complaint for damages he sustained as a result of
a motor vehicle accident with Ray Etter, an employee of defendant. Plaintiff filed a first amended
complaint. Two of the seven counts of the complaint are relevant to this appeal. The complaint
alleged a claim against defendant for the negligent hiring of Ray Etter. The complaint also sought
relief under a theory of respondeat superior against defendant.
¶5 Defendant filed a motion to dismiss, arguing that plaintiff’s complaint failed to state a cause
of action. The court granted the motion to dismiss and allowed plaintiff to file an amended
complaint.
¶6 Plaintiff did not file a second amended complaint. Instead, plaintiff filed a third amended
complaint. Then, plaintiff filed a motion to file a fourth amended complaint. Plaintiff attached a
proposed fourth amended complaint to the motion. The two-count complaint, again, raised claims
of negligent hiring and respondeat superior. Defendant objected. Defendant argued that the fourth
amended complaint suffered from the same factual insufficiencies as the complaints previously
dismissed by the court. The court found that the proposed amended complaint still failed to
properly plead a cause of action. However, the court gave plaintiff leave to file a fifth amended
¶7 On July 1, 2021, plaintiff filed his fifth amended complaint. The complaint brought only
one claim against defendant for the negligent hiring of Etter. According to the complaint,
defendant hired Etter when he was around 80 years old. At the time of the accident in question,
Etter was 86 years old. While driving at defendant’s direction, Etter crossed the centerline of the
road into oncoming traffic. Etter collided with plaintiff’s vehicle. Etter died in the accident. The
complaint cited scientific studies showing that “older drivers continue to have higher rates of fatal
-2- crashes than most other age groups.” In addition, plaintiff alleged that “[s]pecific physical,
cognitive and visual abilities may decline with advancing age for some people” and “[h]igher
levels of physical, cognitive or visual impairment among older drivers are associated with
increased risk of crash involvement.” Plaintiff claimed Etter (an 86-year-old) experienced physical
and mental disabilities of “some nature, and to some degree” when defendant hired him. The
complaint did not make any specific allegation regarding Etter’s personal ability to drive. Instead,
plaintiff asserted generally that Etter was not fit to perform his duties as a driver due to his age.
Therefore, plaintiff claimed that defendant negligently hired Etter.
¶8 Defendant filed a motion to dismiss pursuant to section 2-615 of the Illinois Code of Civil
Procedure (735 ILCS 5/2-615 (West 2020)). Defendant argued that the complaint failed to allege
sufficient facts to support a cause of action. Specifically, defendant contended that the negligent
hiring claim lacked support because the complaint failed to alleged facts to establish that Etter had
a particular unfitness for his employment with defendant.
¶9 Plaintiff filed a response to defendant’s motion to dismiss. In addition, plaintiff filed a
motion to strike defendant’s motion to dismiss. Plaintiff claimed that the motion to dismiss
contained false or misleading statements and should be stricken in its entirety.
¶ 10 Ultimately, the trial court denied plaintiff’s motion to strike. Additionally, the court granted
defendant’s motion to dismiss and dismissed plaintiff’s complaint with prejudice. Plaintiff appeals.
¶ 11 II. ANALYSIS
¶ 12 On appeal, plaintiff contends the trial court erred when it granted defendant’s motion to
dismiss. A section 2-615 motion to dismiss attacks the legal sufficiency of a complaint by asserting
it is facially defective. Id.; Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). When
reviewing the sufficiency of a complaint, the court must take as true all well-pled facts and
-3- reasonable inferences flowing from those facts. Id. In addition, the complaint’s allegations must
be construed in the light most favorable to the plaintiff. Id. “Thus, a cause of action should not be
dismissed pursuant to section 2-615 unless it is clearly apparent that no set of facts can be proved
that would entitle the plaintiff to recovery.” Id. While a plaintiff need not include evidence in the
complaint, “the plaintiff must allege facts sufficient to bring a claim within a legally recognized
cause of action [citation], not simply conclusions [citation].” Id. at 429-30. We review a circuit
court’s ruling on a section 2-615 motion to dismiss under the de novo standard. Id. at 429.
¶ 13 Plaintiff contends that his fifth amended complaint sufficiently alleged claims of negligent
hiring and respondeat superior. Plaintiff’s fifth amended complaint only contains one claim
against defendant: negligent hiring. The respondeat superior claim appeared in plaintiff’s prior
complaints, but he failed to include that claim in his fifth amended complaint. Plaintiff abandoned
the respondeat superior claim by failing to include it in his fifth amended complaint. “[A] party
who files an amended pleading waives any objection to the trial court’s ruling on the former
complaints.” Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153-54
(1983). Therefore, any argument regarding plaintiff’s claim of respondeat superior is not properly
before this court. We limit our analysis to plaintiff’s claim of negligent hiring.
¶ 14 An action for negligent hiring or retention of an employee requires the plaintiff to
“plead and prove (1) that the employer knew or should have known that the
employee had a particular unfitness for the position so as to create a danger
of harm to third persons; (2) that such particular unfitness was known or
should have been known at the time of the employee’s hiring or retention;
and (3) that this particular unfitness proximately caused the plaintiff’s
injury.” Van Horne v. Muller, 185 Ill. 2d 299, 311 (1998).
-4- ¶ 15 Plaintiff’s fifth amended complaint generally alleged that elderly individuals suffer from
mental and physical declines due to their age. Plaintiff alleged scientific studies showed the natural
aging process and cognitive decline compromise a person’s ability to drive. Since Etter was 86
years old at the time of the accident, plaintiff claimed Etter could not safely drive. Therefore,
plaintiff claimed that defendant negligently hired Etter.
¶ 16 We find the facts alleged in plaintiff’s complaint are insufficient to support a claim of
negligent hiring. “To successfully plead a cause of action for negligent hiring or retention, it is not
enough for the plaintiff to simply allege that the employee was generally unfit for employment.”
Id. at 313. Rather, “[t]he particular unfitness of the employee must have rendered the plaintiff’s
injury foreseeable to a person of ordinary prudence in the employer’s position.” Id. Plaintiff did
not allege that Etter himself suffered from any specific age-based decline. Although the complaint
relied on scientific studies showing the natural aging process may cause physical and mental
decline, the complaint failed to allege that Etter suffered from these declines. In other words, the
complaint failed to allege facts to support plaintiff’s claim that Etter suffered from a particular
unfitness for his position. Plaintiff’s complaint does nothing more than assume that Etter’s age
compromised his ability to drive. These conclusory allegations are insufficient to support a claim
of negligent hiring. The trial court did not err when it dismissed plaintiff’s fifth amended
¶ 17 Despite this, plaintiff contends that “[e]ven though it may not have been possible for
[plaintiff] to have identified with specificity and exactitude the precise nature of Etter’s unfitness
to drive, [plaintiff]’s failure to do so is not fatal to the legal sufficiency of his Amended
Complaint.” According to plaintiff, “generic, non-specific, identification of an unfitness, i.e.,
consequences of the natural aging process, is sufficient to satisfy the threshold pleading
-5- requirements.” We disagree. Conclusory allegations are insufficient to support a cause of action.
There is no factual allegation that Etter’s age prevented him from driving safely. The generic
scientific studies quoted in the complaint do not support plaintiff’s conclusory allegations. Plaintiff
simply assumes that all elderly individuals cannot safely drive.
¶ 18 Finally, it is unclear from his brief whether plaintiff is challenging the court’s denial of his
motion to strike defendant’s motion to dismiss. Our confusion arises from the discrepancies in
plaintiff’s appellate brief. The table of contents does not contain a heading for an argument on this
issue, but the points and authorities’ section has a heading challenging the denial of his motion to
strike. However, there is no corresponding heading in the argument section of his brief. There is a
brief reference to a motion to strike in the argument section, but it is mentioned in passing in an
argument challenging whether he sufficiently pled a cause of action. It is unclear whether plaintiff
is pursuing this argument. Regardless, the argument is not developed in any meaningful way. A
party must clearly define the issues to be decided and set forth cogent arguments in support of their
position. Maday v. Township High School District 211, 2018 IL App (1st) 180294, ¶ 50. A party
forfeits an argument when they fail to adequately develop it. Id. We find the issue is forfeited.
¶ 19 III. CONCLUSION
¶ 20 For the foregoing reasons, we affirm the judgment of the circuit court of McDonough
County.
¶ 21 Affirmed.
-6-