{
  "id": 3072714,
  "name": "EMANUEL STEIN, Plaintiff-Appellee, v. BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant-Appellant",
  "name_abbreviation": "Stein v. Burns International Security Services, Inc.",
  "decision_date": "1981-12-23",
  "docket_number": "No. 80-2866",
  "first_page": "776",
  "last_page": "782",
  "citations": [
    {
      "type": "official",
      "cite": "102 Ill. App. 3d 776"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "401 N.E.2d 1196",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "81 Ill. App. 3d 894",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        3226954
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-3d/81/0894-01"
      ]
    },
    {
      "cite": "203 N.E.2d 460",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "54 Ill. App. 2d 111",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        5282844
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-2d/54/0111-01"
      ]
    },
    {
      "cite": "371 N.E.2d 315",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "55 Ill. App. 3d 921",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        3405410
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-3d/55/0921-01"
      ]
    },
    {
      "cite": "23 N.E.2d 720",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "372 Ill. 286",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2526527
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/372/0286-01"
      ]
    },
    {
      "cite": "387 N.E.2d 1241",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "weight": 2,
      "opinion_index": 0
    },
    {
      "cite": "69 Ill. App. 3d 920",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        3241127
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-3d/69/0920-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 647,
    "char_count": 14657,
    "ocr_confidence": 0.909,
    "pagerank": {
      "raw": 6.735981053651043e-08,
      "percentile": 0.40849099696546015
    },
    "sha256": "8c05ebe2f0932521aa2dc30908c715c6412b956d913325679174fd6381e1a238",
    "simhash": "1:93c4178e7ba74ccb",
    "word_count": 2387
  },
  "last_updated": "2023-07-14T17:07:42.734695+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "EMANUEL STEIN, Plaintiff-Appellee, v. BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE LINN\ndelivered the opinion of the court:\nPlaintiff, Emanuel Stein, brought this action in the circuit court of Cook County seeking damages from defendant, Burns International Security Services, Inc. In count I of the complaint, plaintiff sought compensatory damages for injuries incurred as a result of the negligent or intentional conduct of defendant\u2019s employee, Lish Garner. In count II plaintiff sought punitive damages charging that defendant had wilfully and wantonly failed to perform an adequate background investigation of its employee Garner before defendant hired Garner as a security guard. Following a jury trial, the jury returned a verdict for plaintiff on count I of the complaint and found defendant liable for $175,000 in compensatory damages. The jury returned a verdict in favor of defendant on count II of the complaint.\nOn appeal, defendant contends: (1) there was no evidence to support the wilful and wanton count of the complaint (count II) and the trial court\u2019s submitting that count to the jury for determination prejudiced its verdict on count I of the complaint; (2) defendant was denied a fair trial by the admission of evidence relating to plaintiff\u2019s charitable works; and (3) defendant was denied a fair trial by improper comments of plaintiff\u2019s counsel during closing argument.\nWe affirm.\nBackground\nCount I\nIn count I of the complaint, plaintiff charged that he had suffered injury as a result of the negligent or intentional conduct of defendant\u2019s employee, Garner. Garner was a security guard employed by defendant, a licensed detective agency. The theory of liability was based on the general grounds of defendant\u2019s vicarious liability for the acts of its servant and on section 10b (10) of the Detectives and Investigators Act (Ill. Rev. Stat. 1979, ch. 111, par. 2622(10)) which provides that defendant, as a licensed detective agency, is \u201clegally responsible for the good conduct\u201d of its security guards.\nAs to count I, the evidence presented at trial showed that on the evening of October 15, 1975, plaintiff and his wife drove to the Edge-water Hospital in Chicago to visit his daughter. Plaintiff parked his car on the lot of a vacant gas station near the hospital. Plaintiff and his wife were inside the hospital for an hour and then returned to the car. They discovered that another car had parked behind their car, blocking plaintiff\u2019s exit.\nPlaintiff waited a few minutes and then tried to open the front door of the other car so that he could push the car out of the way. At that moment, plaintiff was struck in the back of the neck by Garner, defendant\u2019s employee, who was on duty as a security guard at the hospital. Garner then grabbed plaintiff\u2019s left arm and pinned it behind plaintiff, forcing plaintiff\u2019s left hand up towards the back of his neck. Garner accused plaintiff of attempting to steal the car. Garner then dragged plaintiff one-half block back to the hospital. While doing so, Garner repeatedly struck plaintiff on the back of the neck. Garner forced plaintiff into the hospital lobby where they were met by another security guard. An argument ensued and plaintiff and his wife departed and went back to their car. The car that was blocking their exit was gone and plaintiff drove home.\nLater that night, plaintiff\u2019s wife took him to a hospital in Skokie. Over the next couple of years, plaintiff spent several weeks in the hospital. As a result of the incident, plaintiff suffered permanent nerve damage to his neck and arm and his arm is partially disabled today. As a result of the injuries, plaintiff was required to close his solely owned business which was a small discount store selling clothes, rugs, draperies and other related goods. The business frequently required plaintiff to lift heavy objects and he could no longer do so. Plaintiff has also suffered frequent bouts of depression since the incident and no longer engages in sexual relations with his wife.\nAt the time of the incident, plaintiff was 66 years old. Garner was in his early twenties. The day of the incident was Garner\u2019s first day of employment with defendant. Garner disappeared immediately after the incident and has never been located. The jury returned a verdict for plaintiff on count I and awarded him $175,000 in compensatory damages.\nCount II\nIn count II of the complaint, plaintiff sought punitive damages alleging that defendant had wilfully and wantonly failed to perform a proper background investigation of Garner. Plaintiff alleged that if the background investigation had been properly performed, Garner would not have been hired and the incident would not have occurred.\nThe only thing of importance plaintiff showed defendant had failed to do was to check with Garner\u2019s previous employer, another detective agency, to ascertain whether that agency would have recommended Garner\u2019s employment. Plaintiff showed that Garner\u2019s prior employer would not have recommended employment because Garner had failed to show up for work one day and was terminated as a result. The day before Garner was terminated, Garner had arrived for work intoxicated and was sent home. Defendant admitted that if it had checked with Garner\u2019s previous employer defendant probably would not have hired Garner.\nAt the conclusion of plaintiff\u2019s case-in-chief, defendant moved for a directed verdict on count II. The motion was denied. At the jury instructions conference, defendant objected to the submission of instructions based on count II. These objections were overruled and instructions concerning count II were submitted to the jury. The jury returned a verdict for defendant on count II.\nOpinion\nI\nAllowing Jury to Consider Wilful and Wanton Count\nWe agree with defendant that the evidence was legally insufficient to support a verdict on count II of the complaint, and thus defendant\u2019s motion for a directed verdict should have been granted and the count should not have been submitted for the jury\u2019s determination.\nThe mere failure to check an applicant\u2019s background does not give rise to an action for punitive damages against defendant. For liability to exist, the conduct of defendant in failing to check the background must be wilful and the conduct must exhibit a reckless disregard for the plaintiff\u2019s safety. (Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 387 N.E.2d 1241.) It is not enough to merely show that the applicant would not have been hired. Plaintiff must show that if a proper background investigation had been pursued, the defendant would have discovered facts indicating the propensity of the applicant to do harm. (See Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 387 N.E.2d 1241.) In the present case, plaintiff at best showed that defendant was negligent in performing a background investigation, and even if a proper investigation had been performed, defendant would not have discovered any facts indicating a propensity on Garner\u2019s part to do harm. Intoxication during one day of prior employment and termination because of Garner\u2019s failure to show up for work are not facts, standing alone, that indicate Garner had a propensity to do harm.\nThough it was error to submit the wilful-and-wanton count to the jury, we believe the error caused no prejudice to defendant. Defendant cites Greene v. Noonan (1939), 372 Ill. 286, 23 N.E.2d 720, as support for the proposition that the submission of instructions to the jury on theories of both negligence and wiful misconduct demands reversal when there is no evidence to support the wilful misconduct charge because it must be presumed that the jury\u2019s verdict was adversely affected by the wilful misconduct charge.\nTo begin with, Greene v. Noonan does not stand for the proposition defendant argues. Green held only that when a jury returns a general verdict for plaintiff and it cannot be determined whether the verdict was based on the negligence charge or the wilful misconduct charge, then a presumption arises that the jury\u2019s verdict was based on the wilful misconduct charge. Thus, if there is no evidence supporting the wilful misconduct charge, defendant is entitled to a new trial. In the present case, the presumption of prejudice does not arise because the jury returned separate verdicts and found for defendant on the wilful misconduct charge, thus clearly indicating its verdict for plaintiff on count I was not affected by the wilful misconduct charge. See Stark v. D & F Paving Co. (1977), 55 Ill. App. 3d 921, 371 N.E.2d 315.\nNext, the rule of Greene v. Noonan is itself of doubtful applicability today. In 1955, section 68(4) was added to the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68(4)) and provides that a verdict shall not be \u201cset aside or reversed for the reason that the evidence in support of any ground is insufficient to sustain a recovery thereon, unless before the case was submitted to the jury a motion was made to withdraw that ground from the jury on account of insufficient evidence and it appears that the denial of the motion was prejudicial.\u201d The Committee Comments to this section state that one of the reasons for enacting section 68(4) was to modify the rule of Green v. Noonan so that no presumption of prejudice should arise when the jury returns a general verdict for plaintiff when it has been properly instructed as to negligence but improperly instructed on wilful misconduct. (See Ill. Ann. Stat., ch. 110, par. 68, Committee Comments, at 8 (Smith-Hurd 1968).) Thus, under section 68(4), a jury\u2019s verdict should not be presumed to have resulted from the improper wilful misconduct charge, as was held in Greene, but a determination of prejudice should be made on a case by case basis. In the present case, defendant has been unable to show how it was prejudiced by the wilful misconduct charge especially since the jury returned a verdict in its favor on that charge.\nAccordingly, we hold that defendant was not prejudiced by the court\u2019s submission of count II of the complaint to the jury for determination.\nII\nImproper Evidence\nOne of plaintiff\u2019s witnesses was Bishop John Kennelly of the Chicago Archdiocese. The Bishop was plaintiff\u2019s friend and had visited plaintiff at his place of business on frequent occasions before the incident. Plaintiff called the Bishop to rebut evidence brought out on cross-examination that plaintiff had had an automobile accident in 1972 and had suffered injuries that may have accounted for his present incapacity. The Bishop testified that he had frequently seen plaintiff at his place of business before the present incident and had seen plaintiff lift heavy objects without difficulty and had never seen plaintiff exhibit the physical problems he now has before the present incident.\nBefore the Bishop was called, defendant moved to prevent the Bishop from testifying that one of the reasons he would visit plaintiff was because plaintiff always had clothes and other goods to be picked up as donations to charity. Defendant wanted to prevent any mention of plaintiff\u2019s charitable works. The trial court told plaintiff\u2019s counsel that it would not allow the admission of any statements pertaining to plaintiff\u2019s charitable works.\nOn three occasions during the Bishop\u2019s direct testimony, the Bishop mentioned that he usually saw plaintiff when plaintiff had donations for charity. The Bishop\u2019s comments were not solicited by plaintiff\u2019s counsel but were part of his answers to general questions concerning the specific dates that the Bishop saw plaintiff. No objection or motion to strike was made by defendant to the Bishop\u2019s comments. On two occasions during cross-examination by defendant, the Bishop also made comments concerning plaintiff\u2019s charitable works. On one of these occasions the response was invited by defendant\u2019s question. No motion to strike these comments was made by defendant.\nDefendant claims it was prejudiced by the Bishop\u2019s comments. Though defendant made no objection to the comments, it alleges that if it had done so, greater prejudice would have occurred because an objection would have merely emphasized the improper comments. However, we believe that if defendant had made an immediate objection when the Bishop first commented on plaintiff\u2019s charitable works, it could have avoided any possible repeat of such comments and could have avoided any possible prejudice caused by the comments. Therefore, we believe its failure to make a timely objection waived any error in the Bishop\u2019s making the comments. See Schoolfield v. Witkowski (1964), 54 Ill. App. 2d 111, 203 N.E.2d 460.\nEven assuming no waiver, we also believe that the comments did not deny defendant a fair trial. The evidence as to liability under count I was overwhelming. The evidence as to damages showed that plaintiff suffered permanent injury as a result of the incident, that he has spent several weeks in the hospital, and that he is under continuous care of a doctor and shall continue under a doctor\u2019s care in the future. Plaintiff has suffered the loss of his business and has psychological problems as a result of the incident. Plaintiff frequently suffers pain in the affected area. Clearly, there was sufficient evidence to support the verdict and the amount of damages awarded on count I of the complaint, and defendant has been unable to show the verdict would have been different if the comments had not been made.\nIll\nClosing Argument\nDefendant alleges it was denied a fair trial by certain comments of plaintiff\u2019s counsel during closing argument. Defendant first points to two occasions on which plaintiff\u2019s counsel referred to defendant as a large, international corporation. No objection was made to these comments and thus the issue is waived. See Grabner v. American Airlines, Inc. (1980), 81 Ill. App. 3d 894, 401 N.E.2d 1196.\nDefendant next points to comments by counsel which accused defendant of not being interested in the case and accused defendant, by implication, of making no effort to find Garner. We believe that defendant was not prejudiced by these remarks. As we have already indicated, the evidence on liability and damages in this case was overwhelming, and there is no indication the comments denied defendant a fair trial. Accordingly, for the reasons noted, we affirm.\nAffirmed.\nROMITI, P. J., and JOHNSON, J\u201e concur.",
        "type": "majority",
        "author": "JUSTICE LINN"
      }
    ],
    "attorneys": [
      "Francis J. Marasa, Joan M. Engeman, and Marvin Riman, all of Sweeney and Riman, Ltd., of Chicago, for appellant.",
      "Robert L. Lesak, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "EMANUEL STEIN, Plaintiff-Appellee, v. BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant-Appellant.\nFirst District (4th Division)\nNo. 80-2866\nOpinion filed December 23, 1981.\nFrancis J. Marasa, Joan M. Engeman, and Marvin Riman, all of Sweeney and Riman, Ltd., of Chicago, for appellant.\nRobert L. Lesak, of Chicago, for appellee."
  },
  "file_name": "0776-01",
  "first_page_order": 798,
  "last_page_order": 804
}