Illinois Official Reports

Appellate Court

O’Rourke v. McIlvaine, 2014 IL App (2d) 131191

Appellate Court 

Caption

ROSEMARY O’ROURKE, Plaintiff-Appellant, v. BRUCE 

McILVAINE and McILVAINE ENTERPRISES, INC., DefendantsAppellees.

District & No. Second District

Docket No. 2-13-1191

Filed September 30, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

In an action for negligent hiring and retention alleging that a man who 

worked for defendants’ residential construction firm in the course of 

completing an insulation job at plaintiff’s house broke into her house a 

few weeks after the job, restrained her and stole some items from the 

house, the appellate court upheld the trial court’s entry of summary 

judgment for defendants based on section 317 of the Restatement 

(Second) of Torts, since defendants’ work relationship with the man 

ended several weeks before the home invasion, plaintiff’s home could 

no longer be considered defendants’ jobsite for purposes of her claim 

for negligent hiring and retention, plaintiff did not allege the man used 

any of defendants’ instrumentalities in the home invasion, defendants 

did not have any right to control the man when he invaded plaintiff’s 

home, and there was no allegation of a failure to warn plaintiff of the 

man’s criminal record.

Decision Under 

Review

Appeal from the Circuit Court of Lake County, No. 11-L-906; the 

Hon. Diane E. Winter, Judge, presiding.

Judgment Affirmed.
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Counsel on

Appeal

Donald J. Morrison, of Morrison & Morrison, P.C., of Waukegan, for 

appellant.

Bradley E. Puklin and Robert K. Scott, both of Scott, Halsted & 

Babetch, P.C., of Chicago, for appellees.

Panel JUSTICE BIRKETT delivered the judgment of the court, with 

opinion.

Presiding Justice Burke and Justice Hutchinson concurred in the 

judgment and opinion.

OPINION

¶ 1 The trial court granted summary judgment against plaintiff, Rosemary O’Rourke, on her 

negligence complaint against defendants, Bruce McIlvaine and McIlvaine Enterprises, Inc.

Plaintiff’s complaint sought to hold defendants accountable for a home invasion committed 

against her by Alejandro Requena, who had previously worked under defendants’

supervision on an insulation project inside plaintiff’s home. The trial court reasoned that 

defendants could not be held responsible for the crime, because the work relationship 

between defendants and Requena had ended several weeks before and thus plaintiff’s home 

could no longer be considered defendants’ jobsite. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 In November 2011, plaintiff filed her complaint for negligent hiring and retention. As 

later brought out in summary-judgment proceedings, the uncontested facts of this case are as 

follows. In 2010, defendant Bruce McIlvaine (Bruce) was president of defendant McIlvaine 

Enterprises (McIlvaine), a residential construction firm. Plaintiff hired McIlvaine to replace 

insulation in the attic of her home in Bannockburn, where she lived alone. On January 12, 

2010, Bruce began the insulation project, accompanied by an independent contractor he 

frequently retained to assist him with projects. On the first day of the job, Bruce realized that 

he needed additional help to finish the project within the agreed time frame. Bruce consulted 

an associate, who recommended a laborer named Santiago Waight. Bruce contacted Waight 

and asked if he could assist with the insulation project and if he could find others to help as 

well. Waight agreed to help and said that he would bring two others. The next day, January 

13, Waight arrived at plaintiff’s home with two men, Requena and Alan Romero. McIlvaine 

did not inquire into Requena’s background. In fact, Requena had criminal convictions for 

unlawful possession of a motor vehicle and for theft from, and abuse of, an elderly person.

McIlvaine permitted Waight, Romero, and Requena to work on the project, which they 

completed the next day.
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¶ 4 On March 9, 2010, a man rang plaintiff’s doorbell. Plaintiff did not recognize the man 

and addressed him through a second-story window. The man said that he was there to clean 

the furnace. Plaintiff said that he had the wrong house, and then she phoned the police. Later 

that day, plaintiff heard a noise inside her house. She stepped out of her bedroom to see a 

man whom she later identified as Requena. She had not invited Requena into her home. The 

record suggests that he broke into the house through an outside door. Requena restrained 

plaintiff, beat her, and stole items from the house.

¶ 5 Plaintiff’s complaint alleged that defendants were negligent for failing to investigate 

Requena’s background before allowing him into plaintiff’s home. Plaintiff asserted that 

defendants’ negligence permitted Requena to learn “intimate details” about plaintiff and her 

home and so was the proximate cause of plaintiff’s injury.

¶ 6 In January 2012, defendants filed a motion for judgment on the pleadings (see 735 ILCS 

5/2-615 (West 2012)). Defendants contended that, as a matter of law, they had no 

responsibility for Requena’s actions occurring two months after their work relationship with 

him was terminated. The motion was heard by the Honorable David M. Hall, who entered a 

written order in April 2012 denying the motion “for the reasons stated in the record.” The 

record, however, contains no transcript of the motion hearing or other indication of Judge 

Hall’s reasoning.

¶ 7 In April 2013, defendants filed a motion for summary judgment (see 735 ILCS 5/2-1005 

(West 2012)). Defendants again contended that, as a matter of law, they had no duty to 

plaintiff when the home invasion occurred. In response, plaintiff asserted that Judge Hall’s 

denial of defendants’ motion for judgment on the pleadings was the law of the case and, 

accordingly, required denial of the motion for summary judgment. Alternatively, plaintiff 

addressed the merits, contending that there was an issue of material fact as to whether 

defendants were negligent. In arguing that defendants had a duty of care toward her, plaintiff 

commented that “[t]he rule of law regarding employee liability for criminal acts of 

employees originates from the Restatement (Second) of Torts § 317 (1965).” Plaintiff 

contended that the requisites of section 317 for the existence of a duty of care were satisfied 

in this case.

¶ 8 The summary-judgment motion was heard by the Honorable Diane E. Winter. Judge 

Winter concluded that she was not bound by Judge Hall’s denial of defendants’ motion for 

judgment on the pleadings, as facts had developed since that ruling. Reaching the merits of 

the summary-judgment motion, Judge Winter applied the principles of section 317 of the 

Restatement (Second) of Torts, as summarized by the First District Appellate Court in 

Escobar v. Madsen Construction Co., 226 Ill. App. 3d 92, 95 (1992):

“[A]n employer may be liable for harm caused by an employee acting outside the 

scope of his employment if the employee is on the employer’s premises or using 

chattel of the employer, and the employer has reason to know of the need and 

opportunity for exercising control over the employee.”

¶ 9 Judge Winter found that plaintiff’s home could not be considered defendants’ premises, 

or jobsite, once the work relationship between Requena and defendants had ended. Judge 

Winter also found that Requena was not using any chattel or instrumentality of defendants’

when he committed the home invasion. Consequently, Judge Winter held that, as a matter of 

law, defendants were not responsible for Requena’s actions.

¶ 10 Plaintiff filed this timely appeal.
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¶ 11 II. ANALYSIS

¶ 12 The purpose of a summary-judgment proceeding is not to adjudicate a question of fact 

but, rather, to determine whether an issue of fact exists that would preclude judgment as a 

matter of law. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary 

judgment is appropriate only where “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 2012). Our review of summary-judgment rulings is de novo. Adams, 211 Ill. 2d at 43.

¶ 13 “To prevail in an action for negligence, the plaintiff must establish that the defendant 

owed a duty of care, that the defendant breached that duty, and that the plaintiff incurred 

injuries proximately caused by the breach.” Id. The existence of a duty is a question of law 

for the court to decide. Id. Where a defendant owes no duty, he cannot be found negligent.

Washington v. City of Chicago, 188 Ill. 2d 235, 239 (1999).

¶ 14 The parties frame the issue on appeal as whether an employer may be held liable for the 

posttermination wrongful acts of an employee. Judge Winter did not determine whether 

Requena was defendants’ employee, or rather an independent contractor, in performing the 

insulation work at plaintiff’s home. She found the distinction immaterial to her analysis. The 

parties assume for purposes of this appeal that Requena was defendants’ employee, though 

defendants stress that they are not thereby conceding that fact.

¶ 15 Plaintiff’s initial contention is that Judge Winter misapplied the law-of-the-case doctrine 

by refusing to defer to Judge Hall’s denial of defendants’ motion for judgment on the 

pleadings. We disagree. “The law-of-the-case doctrine binds a court only where a court’s 

prior order was final.” Commonwealth Edison Co. v. Illinois Commerce Comm’n, 368 Ill. 

App. 3d 734, 742-43 (2006) (appellate court’s denial of motion to dismiss appeal for lack of 

jurisdiction was interlocutory and, therefore, not subject to the law-of-the-case doctrine). The 

denial of a motion for judgment on the pleadings is interlocutory, or nonfinal. Fabian v. 

Norman, 138 Ill. App. 3d 507, 509 (1985). Consequently, Judge Hall’s decision did not bind 

Judge Winter.

¶ 16 Moving to the merits, we note that the issue of whether an employer is liable for the 

posttermination torts of an employee was raised before this court quite recently in Doe v. Boy 

Scouts of America, 2014 IL App (2d) 130121. In Doe, the defendants were sued in negligence 

for a sexual assault that their employee committed several months after his employment was 

terminated. The plaintiff urged this court to find that an employer’s duty of care can extend 

to its employee’s posttermination acts. The issue was apparently one of first impression in 

Illinois, but we declined to decide it where the plaintiff failed to develop it properly:

“Plaintiff has cited no authority, Illinois or otherwise, for holding an employer liable, 

under the tort of negligent hiring and retention, for an employee’s posttermination 

acts. Our own research has disclosed no Illinois decision where a 

negligent-hiring-and-retention claim was based on posttermination acts. Our cursory 

research outside Illinois shows that the issue is controversial enough to have 

generated a split of authority. Compare Abrams v. Worthington, 169 Ohio App. 3d 94, 

2006-Ohio-5516, 861 N.E.2d 920, at ¶ 16 (no liability, because employment 

relationship had terminated before the wrongful act occurred), with Marquay v. Eno, 

662 A.2d 272, 280 (N.H. 1995) (‘The requirement of causal connection to 
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employment does not mean, however, that the employee’s criminal conduct must 

have been performed within the scope of employment, during working hours, or even 

while the perpetrator was an employee.’). Without considering the issue deeply, we 

can appreciate why courts would deem the termination of employment a logical and 

practical boundary for employer liability. Plaintiff suggests that ‘public policy *** 

dictates’ that ‘liability should extend beyond the temporal bounds of the employment 

relationship.’ We think it unadvisable to weigh the wisdom of such a policy where 

plaintiff marshals not even one source of authority to her cause and fails to recognize 

the controversy in other jurisdictions.” Id. ¶ 41.

¶ 17 We did, however, express our skepticism of the plaintiff’s position:

“Though we decline to make a definitive statement today, we note that the law of 

negligent hiring and retention in this state appears to afford little scope for liability for 

posttermination acts of employees. We consider first the following representative 

statement of the tort: ‘Liability for negligent hiring arises only when a particular 

unfitness of an applicant creates a danger of harm to a third person which the 

employer knew, or should have known, when he hired and placed this applicant in 

employment where he could injure others.’ (Emphasis added.) Fallon v. Indian Trail 

School, Addison Township School District No. 4, 148 Ill. App. 3d 931, 935 (1986).

This language suggests that the purpose of the tort is to prevent injuries that occur 

during the term of employment and, consequently, suggests that the employer’s duty 

of care does not extend beyond the cessation of employment.

Significant also is the rigorous standard of proximate causation applied in 

negligent-hiring-and-retention cases. Illinois courts require that the injury itself must 

have ‘occurred by virtue of the servant’s employment (i.e., “because of the 

employment”).’ (Internal quotation marks omitted.) Carter v. Skokie Detective 

Agency, Ltd., 256 Ill. App. 3d 77, 80 (1993). Though Illinois courts are careful to 

maintain that an employer may be liable ‘even though the employee commits the 

criminal or intentional act outside the scope of employment’ (internal quotation 

marks omitted) (id.), liability for out-of-the-scope acts will rest only where ‘the 

employee is on the employer’s premises or using the chattel of the employer, and the 

employer has reason to know of the need and opportunity for exercising control over 

the employee’ (MacDonald v. Hinton, 361 Ill. App. 3d 378, 387 (2005)). MacDonald

relied on Escobar v. Madsen Construction Co., 226 Ill. App. 3d 92, 95 (1992), which 

in turn relied on the Restatement (Second) of Torts, section 317 (1965). Courts have 

applied this rule to find liability lacking as a matter of law where, though the plaintiff 

came to know the employee only through the employment, the injury neither occurred 

on the employer’s premises nor involved the instrumentalities of employment. See

MacDonald, 361 Ill. App. 3d at 388 (‘Plaintiff alleged that Maust killed James 

outside the scope of their employment at Trophies Are Us, but failed to allege that 

Maust killed James on defendant’s premises or with the instrumentalities of the 

employment.’); Escobar, 226 Ill. App. 3d at 95 (when the employee shot his 

coworker, the shooter ‘was not on [the employer’s] jobsite, not doing [the 

employer’s] work, and not using [the employer’s] gun’). In such a case, the 

employment only ‘provided a condition for [the] attack’ (by introducing the employee 

to the victim) and did not ‘proximately cause[ ]’ it. Escobar, 226 Ill. App. 3d at 95.
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We do not opine on the wisdom of this approach, but note only that the policy exists 

and presents a formidable obstacle that plaintiff does not begin to address. Under this 

strict concept of causation, if the injury occurs–as here–after the actor’s employment 

has ended, then a fortiori the injury cannot be connected to that employment.” 

(Emphasis in original.) Id. ¶¶ 42-43.

¶ 18 Thus, in Doe, we observed–without rendering a holding on the matter–that Illinois courts 

have regarded section 317 as placing a significant restriction on an employer’s liability for 

the acts of an employee that exceed the scope of the employment. We further commented 

that section 317 appears to assume that the employment relationship was ongoing when the 

acts occurred on which liability is claimed. Now again we are asked to consider the 

possibility of liability under Illinois law for the posttermination acts of an employee. We 

stress, however, that plaintiff posits no ground for such liability apart from section 317.

Plaintiff’s briefs do, we note, cite several foreign decisions that find liability for 

posttermination acts, and some of these courts rely on such sources as section 302B of the 

Restatement (Second) of Torts (1965), which states: “An act or an omission may be negligent 

if the actor realizes or should realize that it involves an unreasonable risk of harm to another 

through the conduct of the other or a third person which is intended to cause harm, even 

though such conduct is criminal.” See, e.g., McGuire v. Arizona Protection Agency, 609 P.2d 

1080, 1081-82 (Ariz. Ct. App. 1980) (applying section 302B to the acts of an ex-employee).

Nevertheless, plaintiff’s briefs assume that, in Illinois, no liability for beyond-the-scope acts 

of an employee rests apart from section 317. Moreover, at oral argument, counsel for plaintiff 

was asked directly whether he was claiming any authority but section 317, and he 

unequivocally denied that any other source governed here.

¶ 19 Our analysis begins with the rule that one has no duty to protect another from the 

wrongful actions of a third party. Simpkins v. CSX Transportation, Inc., 2012 IL 110662, 

¶ 19; MacDonald v. Hinton, 361 Ill. App. 3d 378, 382 (2005). One exception to this rule is 

where a special relationship exists. The relationship may be between the injured party and the 

party alleged to owe the duty, e.g., “ ‘common carrier and passenger, innkeeper and guest, 

custodian and ward, and possessor of land who holds it open to the public and member of the 

public who enters in response to the possessor’s invitation.’ ” Simpkins, 2012 IL 110662, 

¶ 20 (quoting Marshall v. Burger King Corp., 222 Ill. 2d 422, 438 (2006)). Alternatively, the 

relationship may exist between the party who is the source of the harm and the party alleged 

to owe the duty, “such as a parent-child relationship [citations] and a master-servant or 

employer-employee relationship [citations].” Id.

¶ 20 Section 317 has been adopted by our supreme court (see Hills v. Bridgeview Little League 

Ass’n, 195 Ill. 2d 210, 229 (2000)), and it states:

“§ 317. Duty of Master to Control Conduct of Servant

A master is under a duty to exercise reasonable care so to control his servant 

while acting outside the scope of his employment as to prevent him from intentionally 

harming others or from so conducting himself as to create an unreasonable risk of 

bodily harm to them, if

(a) the servant

(i) is upon the premises in possession of the master or upon which the servant 

is privileged to enter only as his servant, or
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(ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control his servant, 

and

(ii) knows or should know of the necessity and opportunity for exercising such 

control.” Restatement (Second) of Torts § 317 (1965).

¶ 21 Illinois courts have condensed section 317 as follows:

“[A]n employer may be liable for harm caused by an employee acting outside the 

scope of his employment if the employee is on the employer’s premises or using 

chattel of the employer, and the employer has reason to know of the need and 

opportunity for exercising control over the employee.” Escobar, 226 Ill. App. 3d at 

95.

¶ 22 The trial court determined that Requena committed the harm neither on defendants’

premises nor with defendants’ instrumentalities. As Escobar recognizes, an employer’s 

jobsite may be considered its premises for purposes of this rule. See id. Plaintiff does not 

contend that Requena used defendants’ instrumentalities, but does assert that plaintiff’s home 

was still defendants’ jobsite when Requena broke in and injured her. Plaintiff urges us to 

define premises “geographically, rather than temporally.” According to plaintiff, “[t]here 

simply is no authority to suggest that a site ceases to be a ‘jobsite’ when the job is complete.” 

Plaintiff, however, has the burden of persuasion on appeal, and she cites no authority to 

suggest that an area does remain the employer’s jobsite for purposes of section 317 once the 

job is complete. Certainly, the notion is not self-evidently true, and it would seem to raise 

many questions, such as how to assign responsibility for hazards that might remain on the 

jobsite. Plaintiff also suggests no limit on how long an area must or can be deemed an 

employer’s jobsite once the job is complete. The fiction that plaintiff proposes certainly 

would benefit her in this case, but she evidently has given little thought to its ramifications.

Therefore, we find no error in the trial court’s determination that plaintiff’s home was not a 

jobsite when Requena broke in and injured her.

¶ 23 Even if we accepted the curious notion that plaintiff’s home was still defendants’ jobsite 

when the home invasion occurred, plaintiff’s claim would still fail as a matter of law because 

defendants no longer had a right of control over Requena when he committed the crime. The 

right of control has long been the dominant element that defines an employment relationship.

See Darner v. Colby, 375 Ill. 558, 561 (1941) (“The right to control the manner of doing the 

work is of principal importance in the consideration of the question whether the worker is an 

employee or an independent contractor.”); Landers-Scelfo v. Corporate Office Systems, Inc., 

356 Ill. App. 3d 1060, 1069-70 (2005) (“Under the common law, the most important factor in 

deciding whether a putative employer is a common-law employer is whether it has the right 

to control the manner and method in which the work is to be carried out.”).

¶ 24 Indeed, the employer’s right to control the employee’s conduct is essential for liability 

under the doctrine of respondeat superior, according to which an employer is responsible for 

the acts of an employee committed within the scope of employment. See Wilson v. Edward 

Hospital, 2012 IL 112898, ¶ 18 (respondeat superior liability “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) 
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the alleged conduct of the agent or employee fell within the scope of the agency or 

employment”); Harding v. St. Louis National Stockyards, 242 Ill. 444, 450 (1909) (“The 

doctrine of respondeat superior is applicable where the person sought to be charged has the 

right to control the action of the person committing the injury.”).

¶ 25 Moreover, the doctrine of respondeat superior requires that the right to control exist 

contemporaneously with the injury on which the employer’s liability is premised. The 

principles are well established:

“The general rule is that a person[ ] who is injured by the negligence of another 

individual[ ] must seek his remedy for damages against the person who caused the 

injury. However, the doctrine of [r]espondeat superior is an exception to this rule of 

law. Under this exception, the negligence of the employee is imputable to the 

employer, if the relationship of principal[-]agent existed at the time of and in respect to 

the transaction out of which the specific injury arose. [Citation.]

However, it is of little consequence that the negligent employee was usually the 

agent of his employer if, at the time of his tortious conduct toward the third party, the 

relationship of principal-agent was temporarily discontinued. If he was not acting as 

his employer’s agent at the time of the tort, the employer cannot be held liable for his 

negligent act. It is the burden of the plaintiff, who asserts this agency, to show that the 

employee was acting as the agent of the defendant-employer when the injury was 

inflicted. [Citation.]

In order to meet this burden the plaintiff must show not only that the tortfeasor 

was an employee, but that the relationship of principal and agent was not suspended 

at the time of the injury and that this relationship existed with respect to the particular 

transaction from which the tort arose. [Citations.] If the plaintiff is unable to sustain 

each of these factors, the question of agency need not be submitted to the jury.” 

(Emphasis added.) Bolwin v. El Kay Manufacturing Co., 32 Ill. App. 3d 138, 140-41

(1975).

See also Mosley v. Northwestern Steel & Wire Co., 76 Ill. App. 3d 710, 718 (1979) (“[I]f the 

employee was not acting as the employer’s agent at the time of the injury, the employer 

cannot be held liable for the employee’s acts.”).

¶ 26 The “borrowed employee” cases in Illinois highlight that accountability for an 

employee’s wrong rests with the employer who was then in control of the employee with 

respect to the particular task that the employee was performing when he committed the 

wrong. For instance, in Haight v. Aldridge Electric Co., 215 Ill. App. 3d 353, 366 (1991), a 

worker who was employed by Ald-Cass Electric, Inc., for several years was “contracted” out 

to another firm, Aldridge Electric Company, Inc., on a temporary basis. When Ald-Cass 

“contracted” out an employee to Aldridge, the understanding was that the employee was 

under Aldridge’s direction and did not answer to Ald-Cass for the work performed during the 

assignment. Several days into the Aldridge assignment, the worker negligently caused a car 

accident while driving an Aldridge vehicle and conducting Aldridge business. Id. at 366-67.

This court affirmed the jury verdict holding Aldridge, not Ald-Cass, liable for the worker’s 

negligent act, as Aldridge was functionally the worker’s employer at the time of the injury.

Id.

¶ 27 Thus, respondeat superior liability requires, at a minimum, that the employer had the 

right to control the employee when the injury occurred. The same minimal requirement of a 
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right to control exists in cases where the employee’s action falls outside the scope of 

employment. An express element of liability under section 317 is that the employer failed to 

exercise control over the employee. Plaintiff would have us hold in this case that defendants’

breach was complete when they hired Requena and retained him long enough for him to 

work at plaintiff’s home and become acquainted with her living situation. That approach is 

foreclosed by the text of section 317 and its comments. The text grounds liability on an 

employer’s failure “to control [the] servant while acting outside the scope of his employment 

as to prevent him from intentionally harming others or from so conducting himself as to 

create an unreasonable risk of bodily harm to them.” (Emphasis added.) Restatement 

(Second) of Torts § 317 (1965). A failure of control implies the capacity and authority to

control, and “scope of employment” implies an existing employment relationship. The text 

contemplates an injurious act that, though committed outside the scope of employment, is 

still committed during the employment, that is, while the employee is subject to the 

employer’s control. When Requena worked on plaintiff’s home, he acted within the scope of 

his employment while under defendants’ control. When Requena committed the act for 

which plaintiff claims defendants are accountable, defendants no longer had the right to 

control his conduct.

¶ 28 Comment c reinforces the plain meaning of the text:

“c. Retention in employment of servants known to misconduct themselves. There 

may be circumstances in which the only effective control which the master can 

exercise over the conduct of his servant is to discharge the servant. Therefore the 

master may subject himself to liability under the rule stated in this Section by 

retaining in his employment servants who, to his knowledge, are in the habit of

misconducting themselves in a manner dangerous to others. This is true although he 

has without success made every other effort to prevent their misconduct by the 

exercise of his authority as master. Thus a railroad company which knows that the 

crews of its coal trains are in the habit of throwing coal from the cars as they pass 

along tracks laid through a city street, to the danger of travelers, is subject to liability 

if it retains the delinquents in its employment, although it has promulgated rules 

strictly forbidding such practices.” Restatement (Second) of Torts § 317 cmt. c 

(1965).

¶ 29 The clear message here is that, failing all lesser attempts to control an errant employee, 

the employer must exert the ultimate control, which is to fire the employee. The implied 

lesson is that the employer fulfills its duty of care by terminating the employee before he can 

harm others in connection with the employment (i.e., while on the employer’s premises or 

while using the employer’s instrumentalities). The lesson of comment c’s hypothetical is that, 

if the railroad company fired the delinquent employees, it would not be responsible if they 

returned afterward, stole onto a railway car, and flung more coal. In the same way, 

defendants are not liable for Requena’s postemployment decision to injure plaintiff.

¶ 30 Moreover, there is no principled basis for holding that an employer’s right of control 

must be contemporaneous with the within-the-scope act that is the alleged basis of 

respondeat superior liability–which Illinois case law clearly requires–while holding that an 

out-of-the-scope act need not stem from a contemporaneous failure to control.

¶ 31 We conclude, therefore, that section 317 presumes that the actor committed the wrongful 

act while still employed and, hence, while the employer still had the right of control. See 
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San Benito Bank & Trust Co. v. Landair Travels, 31 S.W.3d 312, 319 (Tex. App. 2000) 

(rejecting the possibility of employer liability for the posttermination acts of employee, 

noting that under section 317 “control is the critical factor”). Here, since the employment 

relationship had ended, defendants had no authority, and therefore no duty, to control 

Requena when he injured plaintiff. As the undisputed facts show that defendants had no duty 

of care toward plaintiff when the injury occurred, plaintiff’s negligence action fails as a 

matter of law.

¶ 32 Without commenting on the potential merits of such a claim, we note that plaintiff’s 

cause of action is not based on any alleged failure by defendants to warn plaintiff of 

Requena’s criminal background.

¶ 33 III. CONCLUSION

¶ 34 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 35 Affirmed.