luthern ministry of bloomington normal saying all this event jellicoe lutheran church roberts illinois hearing for it all on his attorney jacob band say is that right is that how you pronounce your last name at the time of the year at the time of the accident matthew gear's was on the phone with larry thorndyke his boss he was employed by st paul's church and also by going to normal there's evidence that he was on the phone discussing an issue of a plumbing issue at his house which was owned by the church he was adding the x and he was on his way to perform services for his other employer bloomington normal so it moving to st paul's summary judgment should have absolutely not been under in the circuit court because there's a jury issue as to whether matthew gears acting in the scope of his employment for st paul's at the time of the accident as he was on the phone discussing church issues with his employer at the time excess the only way that summary judgment should be granted in a scope employment issue is if the court finds as a matter of law that no reasonable juror could find that he was acting in the scope of his employment that is not the case here  use the restatement section two twenty eight of towards to analyze whether an agent is acting in the scope of the employment in our case all three of the criteria which is used the satisfied want to go over them one by one the first so that  first point of the first factor is is the conduct of the kind that he was employed to do he was employed to be a pastor a preacher that i think it is clear however he had duties other than and requirements other than preaching to the people of robert's own oil the first factor is broad and it includes not only authorized conduct but all three also conduct which is incidental to the work he was hired to do section two twenty nine the restatement shed some light on the factors to consider for not unauthorized exits are nevertheless found to be within the scope of employment but in this case we don't even have to go there because the act of calling and getting authority thorndyke for the repair was required of him was required of him by his employer he was satisfying and obligation the only supreme court badge and the blessing in holding that the defendant nurse was not acting in the scope for her employment or that no jury could find that she was reason that divulging confidential information was explicitly not allowed forbidden by her employer contrast that with this court's holding and rudman v c s court this court held that there was a jury issue as to whether the defendant was acting in the scope was employment when he was striving to clock out at the end of his workday because the reasoning that uses clocking out was required of him by the his employer as is the case in our matter getting authority for this repair it was required of them by the church it cannot be said that it has nothing to do his employment therefore that is why the first fact satisfied the second receive in fact so they hired him to make phone calls letting someone know don't repair person was coming out to the parsonage to do some work ad they hired him to be a preacher however he had duties and responsibilities in requirements which came along with his employment with the church the church as a part of his employment allowed him to live in this house they have an interest in making sure that the house is up top and that they  say and how much is spent on repairs and things of that nature moving out of the second we seem in factor that the context had to have occurred within the authorised time and space limitations was authorised to preach on sundays and besides that he had free range to visit people there is testimony he both thorndyke and gears testified that he would visit people throughout the week  employer actually had no set schedule for him he had an extremely wide and i would argue carte blanche type of time and space limitations as far as preaching he got a phone call in the middle of the night  that this call getting authority was required of him was within these authorized time space limitations finally the third statement factor is that the act must be in some way at least in part to benefit the employer i believe this is also satisfied and for two reasons one and most obvious the church owns the house the church has an interest in making sure that the house of cab and the repairs are made is get him getting authority repairing the house directly benefits the church secondly that the process of getting authority as a defendant or a testified they want to know what's going on with the church or with the house because they own it the process of getting authority allows the church to control what is done to their property how much is spent on repairs and things of that nature therefore it cannot be said that we are going as them it was not motivated by a desire to serve as employer for those reasons i believe all three of the same infections are clearly satisfied his living in the house and the repairs were so incidental and intertwined with the with his employment for the church that analyzed through illinois law and scope of employment law it just cannot is it absolutely cannot be said there reasonable jury cannot find that he was acting in the suburbs employment as he was on the phone with his employer regarding a church own property and therefore this case in duty is whether the defendant has an obligation to conform its conduct this is not the place another person on reasonable harm in the terminal where their duty exists illinois illinois courts typically balance the reasonable force the ability of an injury occurring the likelihood of the injury occurring and the balance that against the magnitude of the burden of guarding against injury and the consequences of placing that burden on the defendant  backdrop of public policy concerns i would posit and this case the reasonable foreseeability and the likelihood of injury of placing a phone call to somebody that he knows or should know is driving an automobile and dividing their attention between the road and the phone is catastrophic and the reach of the foreseeability is obvious and monumental balance that against the burden placed on the fan then of not placing a phone call i would posit is minimal well count you've cited some out of state decisions are you aware of any illinois decision and holding someone to this type of duty i am not know as far as i know there is no illinois case as a right now that would hold a remote remote caller liable on the obvious question is how would a person making a phone call even know that someone is operating a motor vehicle that is a great question as it wouldn't be on someone when they're making randomly making a phone call and they have no knowledge no at everton absolutely not i would i that is not what i'm arguing as the as the court in new jersey held to be an extremely limited duties limited to people who know or have special knowledge that the person is driving his counsel are going to argue that this this case is going to come down to whether there's any evidence as to whether larry thorndyke knew or should have known that curious was driving in that brings me to the second question let's assume that one does no doesn't that driver have the opportunity to either not answer the phone or answer the phone yes and i would say that as the as the new jersey court held the duty would apply when the person knows that the person is going to the new jersey court had to do with texting they held that there would be a limited duty when the person has reason to know that the person would text back so i would argue that there's reason to know that the person would answer the phone in our situation defendant thorndyke was returning a phone call i would argue he had reasons reason to know that matthew gear's was going to answer the call as he had in this call from him a couple minutes ago placing the call in and of itself is negligent as it's placing others namely the other motorists on the road in unreasonable harm in his brief counsel argues that we can't he relies on the some book case that we cannot guard against others other people's negligence harbor i would posit that applying this duty would hold the caller liable for his own negligence because of it being in and of itself that the phone calls negligent call i would say yes evidence you know what i'm arguing is that that if there should be an inference allowed to be made by jury that he didn't know or should have known that he was driving any knowledge of where the free sybian is located would constitute or will constitute negligence and that's not along the state of illinois this is a negligence cause of action so you've got to set forth extra step duty one of the elements of the duty is reasonable foreseeability in the plane of his failed them and so i believe the evidence supports the trial court's ruling there is no evidence of the support proximate cause there is no evidence to advertisements roadside signs to directions you turn left here and it is their obligation to make sure that they are operating in compliance with the rules in that they are not regards to the actions of larry thorndyke and the second is in regards to the actions of man here it is now i'm going to start with mr curtis because i think plaintiff's counsel has kind of focused in on the actions of mr curtis in regards to what he was doing at the time of this accident also i believe that counsel has already told you why mr thorndyke should not be held negligent and of course under responded s factors that must be fulfilled in order to show that an employee is acting within the scope of his employment at the time of an accident or injury the first of those is is it the type or kind of service that the employee is employed to perform and i think that's where the biggest problem in this case is matthew good this is not hired to take your property he's not a maintenance man he's not a this is a minister and one of those benefits of being a minister is yes he gets to live in a parsonage that's one way churches get ministers to come work for them it's a big benefit but it's incidental to his employment it's really more of a pin to more like a landlord tenant relationship but the consideration being the service he's providing to the church not the payment of rent like under a typical relationship so in this case we have to look at what mr curtis is doing at the time when this accident occurred and he's operating his own personal personal automobile he's not going to see a parishioner he's not going to a church meeting he's not driving from the parish to the church he's driving to another church that he's employed by totally unrelated to st paul  yes mr curtis apparently chooses to make a phone call with his personal cell phone while he's operating the vehicle and is there a whole row of them so the gates were there but he was on a phone call her correct and i think even several cases cited by plaintiff indicate that i think it's the c x ace c s x case where the employee is driving on property input and owned by the employer because he has to go from one building location to a second building location and they said yes that's within the scope of employment the employer knows that they do that and some of the employers have even or supervisors had even required a park at one location but clock out at different so they said yes that's clearly within the scope of employment but that's not what we have here we have this mr curtis leaving really his personal residence and going to a second job and i don't think we want to extend element then the dismissal based on the summary judgment should be upheld i mean briefly looking at the second elements and regards to does the action occur substantially with an authorised time space and limits i think it's the same argument yes he's a minister so he has no set time other than the services he provides on sunday morning but that he is not doing any action at this time on behalf of the church again might be different even if he was going to visit a parishioner in the hospital but he's not he's driving to a second job taking him outside the scope of needed to occur and i understand that and and again i'd respectfully disagree with counsel and that we can't control what when people decide to make phone calls or what people decide to do when they're operating their automobile when we start doing that then we take away the responsibility of the operator of an automobile to know their limitations and that kind of gets back to  have any idea that mr garrett as one was operating a car too would choose to answer the phone if he's operating car and three well those are the basic ones but oh the third one was he was returning a call for mr curtis he may not have had any idea that mr curtis chose to call him while operating an automobile there's no evidence to show that whatsoever so again i think the scope of the client is probably the stronger argument but i also think based on the fact that he is going to a second job he's left his personal residence it takes it out of the scope of time of his employment the same as the third factor it in regards to is it actually to buy a purpose to serve the master this one you know what it may be a little bit but i think it's more personal service in this case if you live in a residence on by another and it's the obligation of the owner of that residence to fix problems maintain the property then you're serving as health and so i think looking at all the factors in this case it's thorndyke does not have to be liable at all to his the liability or acting in the scope of the employment does not have to do with the church being liable for the acts of geared as as in the scopes employment because it doesn't change whether or not he's liable doesn't change the fact that he's an agent of the church and that he's years employer and these have in this phone call with on the question of st paul's liability is directly is so we've tied to whether gear doesn't change the fact that they're just his conduct was in the scope of employment and that therefore the respondents appear your liability attaches second quick point from pine view winner employee may combine personal business with the employer's business at the time of the negligence personal business in this case driving to bloomington employer's business on the phone regarding employment issues  i would argue there could be there could be two proximate there could be two proximate causes of an accident i would posit that the phone call is one of them finally to quickly it's the touch on counsel counsel for thorndyke's point regarding distraction it's true that the gears testified that he was not distracted i don't see why he would i don't see why he would say that he was distracted whether he knows he was distracted or not i think distraction can be inferred as one who fails to yield at a yield sign in a wide open farm road for those reasons i would ask the court reversed summary judgment ok