Illinois Official Reports 

Appellate Court 

Parks v. Brinkman, 2014 IL App (2d) 130633

Appellate Court 

Caption 

PENNY PARKS, Plaintiff-Appellee, v. DENNIS BRINKMAN and 

LAKESIDE LEGACY FOUNDATION, Defendants (Crystal Lake 

Jaycees, Defendant-Appellant). 

District & No. Second District 

Docket No. 2-13-0633 

Filed May 2, 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 the injuries plaintiff suffered while she was 

volunteering to help the Jaycees at an Oktoberfest event and another 

volunteer hugged her and attempted to throw her over his shoulder but 

fell down and landed on top of her, the trial court erred in entering the 

jury’s finding that the Jaycees were vicariously liable for the conduct 

of the other volunteer and judgment was entered for the Jaycees, since 

plaintiff failed to present a prima facie case for imposing vicarious 

liability, especially in the absence of sufficient evidence that the kind 

of conduct involved in plaintiff’s injury was the kind the volunteer 

was employed to perform and that the volunteer’s conduct was 

motivated by a purpose to serve the Jaycees. 

Decision Under 

Review 

Appeal from the Circuit Court of McHenry County, No. 07-LA-464; 

the Hon. Thomas A. Meyer, Judge, presiding. 

Judgment Reversed. 
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Counsel on 

Appeal 

Daniel E. Compton, of Compton Law Group, of Elgin, for appellant. 

Mark J. Vogg, Hans A. Mast, and Thomas J. Popovich, all of Law 

Offices of Thomas J. Popovich, P.C., of McHenry, for appellee. 

Panel JUSTICE SCHOSTOK delivered the judgment of the court, with 

opinion. 

Justices Hutchinson and Spence concurred in the judgment and 

opinion. 

 OPINION 

¶ 1 This appeal arises from an incident in which Dennis Brinkman, a volunteer at an event 

staffed by the defendant, the Crystal Lake Jaycees, hugged and picked up another volunteer, 

the plaintiff, Penny Parks. Brinkman lost his balance and fell to the ground, injuring Parks. 

Parks sued, and the case went to a jury trial. The jury found the Jaycees vicariously liable for 

Brinkman’s conduct. The Jaycees appeal, arguing that the verdict was against the manifest 

weight of the evidence. We reverse, holding that the Jaycees were entitled to judgment 

notwithstanding the verdict. 

¶ 2 I. BACKGROUND 

¶ 3 A. Factual Background 

¶ 4 The following facts are drawn from the trial testimony and other evidence submitted by the 

parties and are undisputed except as noted. One of the central issues at trial, as in this appeal, 

was whether hugging was “within the scope” of Brinkman’s employment as a volunteer for the 

Jaycees. Thus, much of the evidence summarized here concerns the extent to which hugging 

was either customary or encouraged at Jaycee events. Other evidence that relates only to a 

specific issue on appeal is summarized elsewhere, when that issue is discussed. Finally, 

evidence regarding other issues that are not raised in this appeal, such as Parks’ injuries and 

damages, is largely omitted. 

¶ 5 On September 28, 2007, the Lakeside Legacy Foundation held an Oktoberfest event at the 

Dole mansion in Crystal Lake. There was a carnival on the grounds, and the Jaycees provided 

volunteers for the ticket booth, the beer tent, and security. The event began at 5 p.m. on Friday 

and continued through the weekend. 

¶ 6 The plaintiff was in her late thirties at the time of the accident. She was not a member of the 

Jaycees, but she was familiar with the group and had participated in Jaycee events before, 

beginning in 1994. The plaintiff had lived in Minnesota for several years. She also had lived in 

Illinois at various times, however, and she moved back to Illinois a few months before the 
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accident. At the time of the accident, she was working in a sub sandwich shop as a 

management trainee. Her boss, Roger (“Chip”) Whitman II, was a member of the Lakeside 

Legacy Foundation. He asked her if she would volunteer at the Oktoberfest event. He himself 

attended the Oktoberfest on Friday evening as a volunteer for Lakeside Legacy. 

¶ 7 Noni Valicenti, the plaintiff’s sister, had been a member of the Jaycees for about 14 years. 

She was in charge of recruiting and organizing volunteers for the Oktoberfest event. She also 

asked the plaintiff to come volunteer at the event.

¶ 8 The plaintiff arrived at the event at about 7:15 p.m. She checked in with Valicenti, who was 

at the ticket booth, and then toured the area around the beer tent, taking pictures of volunteers 

and guests with her camera. In some of the pictures she took, Jaycees had their arms around 

each other. The plaintiff saw a number of Jaycees she knew, including Brinkman. Brinkman 

was working as a Jaycee volunteer in the beer tent, either pouring or serving beer. The plaintiff 

greeted several of the Jaycees, hugging them as she did so. She and Brinkman did not greet 

each other at that time, as he was busy. 

¶ 9 There was conflicting evidence regarding the extent to which the plaintiff knew Brinkman 

prior to the accident. At trial, the plaintiff testified that she met Brinkman for the first time only

a few weeks before the accident, at a wedding they both attended. After giving this testimony, 

the plaintiff was impeached with her deposition testimony that she first met Brinkman in 2004 

or 2005. The plaintiff also testified at trial that, at the wedding as well as at a Jaycee event they 

both attended shortly before the Oktoberfest, Brinkman hugged her and she hugged him back. 

Whitman testified that the plaintiff told him after the accident that she knew Brinkman well. 

¶ 10 After the plaintiff took some pictures, she picked up her Jaycee volunteer’s T-shirt and 

went to the bathroom to change into it. As she was returning to the beer tent to start her shift, 

she encountered Brinkman. Brinkman greeted her and hugged her. According to the plaintiff, 

her arms were at her sides during the hug because she was not expecting the hug. Brinkman 

then picked her up in the air so that she was on his shoulder. The two of them fell over, 

Brinkman landing on top of the plaintiff. The plaintiff testified that this was not the sort of hug 

that she usually received from Jaycees; she had never been picked up before when hugging a 

Jaycee. 

¶ 11 The plaintiff was dazed and injured, and after she picked herself up off the ground, she 

went to rest nearby. While she was resting, Whitman (who had heard that she had been injured) 

came and spoke with her. Whitman initially testified that the plaintiff said she had been hurt 

when Brinkman picked her up and tried to sling her over his shoulder; the plaintiff did not say 

that Brinkman embraced her. On cross-examination, however, Whitman stated that the 

plaintiff might have mentioned a hug; he did not recall. The plaintiff testified that she told 

Whitman that Brinkman hugged her and picked her up and they fell over. 

¶ 12 The plaintiff then went to tell her sister what happened. Valicenti asked a fellow volunteer 

to take the plaintiff to the hospital. The plaintiff testified that she was in pain throughout the 

weekend and afterward. She returned to the Oktoberfest twice on Saturday but could not work. 

The plaintiff sustained injuries to her shoulder, neck, and back. 
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¶ 13 Various witnesses testified at trial regarding the role of hugging within the Jaycees. The 

plaintiff testified that she knew many Jaycees, who were like a second family to her. It was 

common for them to greet one another with hugs, although Jaycees also greeted each other 

with handshakes. She would hug Jaycees to greet them when she knew them well. The plaintiff 

testified that she allowed Brinkman to hug her at the Oktoberfest because Jaycees “always 

embraced.” When asked why, in her experience, Jaycees were “commonly greeting and 

hugging and–welcoming each other,” the plaintiff responded that it was done to show that the 

Jaycees were a friendly and warm group that others would want to be a part of. 

¶ 14 Valicenti testified that the mission of the Jaycees was to promote business skills within its 

members, who were between 21 and 40 years old. (The name “Jaycees” was derived from the 

description of it as a “Junior Chamber of Commerce.”) This mission involved providing 

“opportunities for individuals to gain leadership skills, social responsibility skills, education 

skills, so that they can through their fellowship do good within the community.” The Jaycees 

sponsored a variety of community service events. The group also had a social purpose, 

promoting close relationships among its members by sponsoring purely social events, and this 

was historically one of the group’s purposes. In Valicenti’s experience, building bonds 

between the members was just as important as the community service and skill improvement 

activities. 

¶ 15 At any Jaycee function, people would be greeted “by a hello, a handshake, a hug.” This 

bonding would create a positive and inviting environment. When asked whether the hugs and 

handshakes were just in “the nature of working together over time and getting to know each 

other” or whether there was also a “Jaycee purpose” to them, Valicenti responded that it was 

the nature of the Jaycee organization and also many other organizations to foster this type of 

bonding and inviting atmosphere. On cross-examination, Valicenti agreed that all similar 

organizations had a social aspect, because no one would want to join an organization full of 

unfriendly people. The friendly atmosphere encouraged by the Jaycees was expressed by 

different people in different ways; some people hugged, some did not. Jaycees who served as 

recruiters at an event were instructed to be warm and friendly, not to hug people. The Jaycees 

had no written policy of encouraging hugging. 

¶ 16 Ann Brophy, a past president and vice president of the Crystal Lake Jaycees, testified that 

the Jaycees was founded to develop business and leadership skills among its members. 

Jaycee-sponsored events included training to improve members’ skills at writing and public 

speaking, leadership skills, and networking. The Jaycees also sponsored community service 

events and social events for members and prospective members. The Jaycees was an all-male 

organization until the mid-1980s, when it began accepting women members. The Jaycees had 

no policy encouraging hugging or physical contact. Greetings, handshakes, and hugs were 

common among members of the Jaycees. Picking people up was not commonly done by 

Jaycees; she had never seen this occur between Jaycees. 

¶ 17 Brophy herself had many close friends among the Jaycees, and she would hug them when 

she saw them. However, that was because of the friendship, not because of any Jaycee policy. 

She would do the same even if she had gotten to know these friends through a different 

organization. There were other Jaycees whom she did not hug, because she was not as close 
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with them. She had never hugged or embraced anyone for the purpose of recruiting him or her 

to join the Jaycees. 

¶ 18 Brophy had known Brinkman through the Jaycees for several years; he hugged people at 

both Jaycee and non-Jaycee events. At the Oktoberfest in September 2007, Brinkman’s job as 

a volunteer was to pour or serve cups of beer; embracing people was not part of his role. 

¶ 19 B. Procedural History 

¶ 20 In December 2007, the plaintiff filed a personal injury lawsuit against Brinkman, the 

Jaycees, and the Lakeside Legacy Foundation. The plaintiff’s claim against Brinkman alleged 

that he negligently caused her personal injuries in that he “attempted to pick [her] up *** 

without the ability to do so safely”; failed to warn her that he was going to make physical 

contact with her; and “man-handled [her] in an unreasonable and unauthorized manner.” The 

claim against the Jaycees and the Lakeside Legacy Foundation alleged that Brinkman was 

acting as their agent at the time of the accident and that they negligently failed to train and 

supervise him properly. 

¶ 21 The plaintiff amended her complaint in November 2009. She added the following 

allegations about Brinkman’s conduct toward her on the day of the accident: that he attempted 

to pick her up without her consent; that he committed battery by making unauthorized contact 

with her; that he was intoxicated to the point that he could not appreciate the risks of his 

conduct toward others; and that he failed to control his actions so as to avoid harm to others. 

She also added a new count II that asserted a vicarious liability claim against the Jaycees. 

Finally, she amended count III (formerly count II) to allege that the Jaycees and the Lakeside 

Legacy Foundation negligently hired, trained, and supervised Brinkman, and failed to warn 

other volunteers about Brinkman based upon his past conduct. A trial date was set, along with 

dates for the close of discovery, the filing of motions in limine, and a pretrial conference. 

¶ 22 In November 2010, the attorney for Brinkman filed a motion in limine seeking to bar the 

introduction of any evidence or argument regarding any prior bad conduct by Brinkman, on the 

grounds that it would be unfairly prejudicial and irrelevant to the claim against him (Brinkman 

admitted that he had been drinking beer on the night of the accident). Brinkman also moved to 

sever the trial of the claim against him from the trial of the negligent supervision claim against 

the two organizations, because if the claims were tried together, evidence of Brinkman’s prior 

bad acts would be admissible to show the organizations’ prior notice of Brinkman’s alleged 

conduct of drinking and inappropriate touching, even though that evidence would be 

inadmissible as to Brinkman’s own liability. 

¶ 23 The plaintiff opposed both motions. The Jaycees opposed the motion to sever but 

supported the motion in limine. The Lakeside Legacy Foundation also opposed severance. The 

trial court granted the motion in limine, and as a result, Brinkman withdrew his motion to 

sever. 

¶ 24 On March 16, 2011, the plaintiff voluntarily dismissed Brinkman from her suit. As part of 

the dismissal, Brinkman agreed to appear and testify at trial for any party that requested him to 

do so. In April 2011, the trial court granted the Lakeside Legacy Foundation’s motion for 
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summary judgment, finding that there was no evidence that Brinkman was acting as an agent 

of that organization at the time of the accident. The trial court denied the Jaycees’ motion for 

summary judgment on count III, the negligent supervision claim. 

¶ 25 In May 2011, the plaintiff filed a motion to vacate the trial court’s November 2010 order 

barring evidence regarding Brinkman’s prior misconduct. The plaintiff argued that, in its 

recent ruling denying the Jaycees’ motion for summary judgment on count III, the trial court 

had referred to evidence that the Jaycees had notice that Brinkman had misbehaved in the past. 

The plaintiff sought to vacate the earlier order so that she could present evidence at trial to 

support count III. The Jaycees opposed the motion, arguing that the evidence about 

Brinkman’s prior misconduct was vague or based on hearsay. 

¶ 26 On July 14, 2011, the trial court granted the plaintiff’s motion in part, vacating its previous 

ruling but only as to certain evidence. Specifically, the trial court lifted its blanket ban on 

evidence regarding Brinkman’s history of physical contact with people, the fact that Brinkman 

had been warned not to touch women, and Brinkman’s history of flirting with women and 

initiating physical contact. The trial court stated that it would rule on the admissibility of such 

evidence “as it came in” at trial. 

¶ 27 About two weeks before trial, the Jaycees (hereafter, the defendant) filed a series of 

motions in limine. The trial court granted the defendant’s request to bar evidence of any “prior 

reprimands or discipline” of Brinkman by the defendant and to bar any mention of Brinkman’s 

consumption of alcohol. The defendant also asked to bar evidence that Brinkman “may have 

been known as one who was prone to hug other persons.” The trial court reserved its ruling on 

this issue. 

¶ 28 A few days later, the plaintiff informed the trial court that she was dismissing count III. 

Reversing her previous position, the plaintiff then moved to bar all evidence of Brinkman’s 

misconduct on other occasions, “including unwanted contact, flirtation, advances, touching 

*** whether before or after the accident.” The defendant did not object, and the trial court 

granted the plaintiff’s motion in limine. 

¶ 29 Prior to trial, the plaintiff filed an agreed “plaintiff’s statement of the case,” stating that she 

“maintain[ed] that she was injured while serving at the event *** when *** Brinkman[ ] 

picked her up and caused her to fall to the ground.” 

¶ 30 The trial commenced on September 17, 2012, on the sole remaining claim: that the 

defendant should be held vicariously liable for Brinkman’s conduct that caused the plaintiff’s 

injuries. The first witness for the plaintiff was Valicenti. After the plaintiff’s attorney had 

begun to elicit testimony from Valicenti about the Jaycees’ methods of recruiting new 

members, the defendant objected and asked for a sidebar. The defendant objected that the 

plaintiff had never disclosed that she would be presenting any evidence suggesting that the 

accident “was somehow associated with recruitment.” The trial court eventually overruled the 

objection and Valicenti’s direct examination continued. 
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¶ 31 The second sidebar at issue occurred during the cross-examination of Valicenti.1

 The 

defendant’s attorney indicated that he wished to elicit testimony regarding the fact that, before 

Brinkman started work in the beer tent on the evening of the accident, Valicenti had instructed 

him not to touch anyone. The defendant sought the trial court’s permission to inquire, because 

the court had stated that it would decide the admissibility of such evidence at trial. The plaintiff 

objected on the ground that such testimony would indicate that Brinkman was treated 

differently than other volunteers because of his prior bad acts, and testimony about his prior 

bad acts had been barred. 

¶ 32 The trial court said that it thought it had ruled on the issue. The defendant pointed out that 

the ruling had occurred when the plaintiff moved to vacate the trial court’s previous order on 

the issue, and that Valicenti’s instruction to Brinkman was the type of evidence that the trial 

court ruled it might admit, depending on the course of the trial. The defendant then argued that 

Valicenti’s instruction that Brinkman should not touch anyone had become highly relevant in 

light of the plaintiff’s theory that the Jaycees encouraged hugging among their members. The 

trial court stated that, if it allowed the testimony the defendant wanted to elicit, then it would 

also have to allow the plaintiff to inquire about why Brinkman was given that instruction, 

which it believed would reopen “an issue that I had previously resolved in your favor.” The 

trial court therefore barred the inquiry into Valicenti’s instruction to Brinkman. The plaintiff 

rested her case after presenting testimony by Valicenti, herself, and her treating physician, Dr. 

George Nahra (by reading his evidence deposition into the record). 

¶ 33 The defendant moved for a directed verdict, arguing that the plaintiff had not presented 

evidence that the accident was caused by conduct within the scope of Brinkman’s 

employment. Referring to the three-part test from the Second Restatement of Agency 

(Restatement) (Restatement (Second) of Agency § 228 (1958)), adopted in Bagent v. Blessing 

Care Corp., 224 Ill. 2d 154, 164 (2007), the defendant argued that two of the three 

requirements were not met: the plaintiff had not shown (1) that Brinkman’s conduct in picking 

her up was “of the kind he [was] employed to perform,” or (2) that Brinkman’s conduct was 

motivated even partly by a desire to serve the defendant. As to the last of these requirements, 

the defendant argued that the plaintiff had presented no evidence whatsoever about 

Brinkman’s motivation for his acts. The trial court denied the motion, stating that the 

circumstantial evidence that the Jaycees commonly hugged each other at events (and so 

Brinkman’s hug was a foreseeable occurrence) could support an inference that Brinkman’s 

conduct was in part motivated by a desire to serve the defendant. 

¶ 34 After the trial court denied its motion for a directed verdict and prior to the start of its case, 

the defendant asked the trial court once again to allow it to call Valicenti to testify regarding 

her instruction to Brinkman not to touch anyone. The defendant argued that the plaintiff’s 

theory that “the Jaycees is a huggin’ organization was never pled and was never disclosed,” 

and that the defendant was entitled to present Valicenti’s testimony to counter this theory. The 

 

1

For some reason, this portion of the transcript was not included in the report of proceedings. 

However, it is contained in the common-law record, having been filed in connection with the posttrial 

motion. 
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trial court reviewed the allegations of the amended complaint and concluded that it adequately 

put the defendant on notice that some type of physical contact by Brinkman was at issue. The 

trial court then declined to allow the defendant to present Valicenti’s testimony: 

 “That being said, I’m going to again deny your request to get into prior acts because 

if I were to do that, I think I’d guarantee a mistrial *** based on my prior ruling. 

 So I’m–I’m not going to permit you to do what I have denied the plaintiff the ability 

to do.” 

Trial then resumed with the defendant’s case, which included the testimony of Brophy and the 

video deposition of Dr. Antonio Yuk, the defendant’s expert witness regarding the plaintiff’s 

injuries.

¶ 35 Prior to resting, the defendant made an offer of proof regarding Valicenti’s likely 

testimony about her instruction to Brinkman at the start of his shift in the beer tent on the night 

of the accident. The defendant read into the record a portion of Valicenti’s deposition 

testimony, in which Valicenti stated that, “before the incident,” she spoke with Brinkman 

about not “touching people”–not only women, but anybody. When asked why she told 

Brinkman specifically not to touch anybody, Valicenti said, “[Brinkman] is a gregarious and 

friendly physical contact kind of person.” The trial court reiterated that it believed that the 

defendant’s attorney had “previously asked this court to bar reference to prior bad acts of Mr. 

Brinkman” and that it had granted that request:

“So from my perspective, *** I couldn’t allow you to introduce evidence that touched 

on prior acts while at the same time barring plaintiff from introducing evidence that 

touched on prior acts of Mr. Brinkman. 

 So I–yes, it *** is preventing you from introducing evidence that he was 

specifically warned not to touch. But you ultimately, as I see it, *** that is as a direct 

result of the request that *** you or your predecessor filed with this court. So from my 

perspective, you can’t have it both ways. 

 So I–I don’t see any other way to resolve the conflict other than to bar her from 

testifying as to what you just offered by way of an offer of proof from her deposition 

***.”

¶ 36 Following closing arguments, the jury returned a verdict finding the defendant vicariously 

liable for the plaintiff’s injuries and awarding her damages of $253,051.69 plus costs. In 

addition to the general verdict forms, the jury also received special interrogatory forms asking 

it to make specific findings as to whether Brinkman’s conduct (1) “was of the kind he was 

employed to perform or reasonably could be said to have been contemplated as part of his 

employment”; (2) was “motivated, at least in part, by a purpose to serve the Crystal Lake 

Jaycees”; and (3) took place substantially within the time and space limits of his employment 

duties. The jury answered “yes” to each of these special interrogatories. 

¶ 37 The defendant filed a timely posttrial motion for judgment notwithstanding the verdict 

(judgment non obstante veredicto, or judgment n.o.v.) or, in the alternative, for a new trial. The 

defendant argued that the verdict was against the manifest weight of the evidence, as the 

plaintiff had not proven the elements necessary for vicarious liability. It also argued that the 
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trial court had erred in permitting the plaintiff to elicit testimony on undisclosed topics (the 

Jaycees’ alleged use of hugging to promote camaraderie and to recruit new members) and in 

barring the defendant from eliciting Valicenti’s testimony that, before the accident, she 

instructed Brinkman not to touch anyone. 

¶ 38 The trial court denied the posttrial motion. As to its rulings barring the defendant from 

presenting Valicenti’s testimony that she told Brinkman not to touch anyone, the court 

commented that the testimony would have been relevant and important to the defendant’s 

case and that it continued to be “troubled” by the issue. However, it continued, it could not 

have permitted the testimony without also allowing the plaintiff to inquire about the reason 

Valicenti said this to Brinkman (Brinkman’s huggy nature), and it had already barred such 

inquiry at the defendant’s request. The defendant appealed. 

¶ 39 II. ANALYSIS 

¶ 40 On appeal, the defendant raises several challenges to the judgment. It first contends that 

the trial court erred in denying the motions for a directed verdict and for judgment n.o.v., 

because the plaintiff failed to present a prima facie case of vicarious liability. The defendant 

also contends that the trial court should have granted its motion for a new trial because of 

certain errors in the trial court’s evidentiary rulings. As we agree with the defendant’s first 

argument, we do not reach the second. 

¶ 41 A. General Principles 

¶ 42 At the close of the plaintiff’s case, the defendant moved for a directed verdict, arguing 

that the plaintiff had failed to present a prima facie case that it should be held vicariously 

liable for Brinkman’s conduct. The defendant also moved, posttrial, for a judgment n.o.v. on 

the same ground. The trial court denied both motions. The defendant contends that both 

rulings were error. 

¶ 43 A motion for a directed verdict will be granted only where “all of the evidence so 

overwhelmingly favors the movant that no contrary verdict based on that evidence could ever 

stand.” Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 225 (2010). A directed verdict 

may be granted to a defendant where the plaintiff has failed to make out a prima facie case; 

that is, the plaintiff has failed to present at least some evidence on every necessary element of 

his or her cause of action. Hemminger v. LeMay, 2014 IL App (3d) 120392, ¶ 17. “In ruling 

on a motion for a directed verdict[,] ‘a court does not weigh the evidence, nor is it concerned 

with the credibility of the witnesses; rather, it may only consider the evidence, and any 

inferences therefrom, in the light most favorable to the party resisting the motion.’ ” Id. 

(quoting Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992)). Although a motion for a directed 

verdict and a motion for judgment n.o.v. are made at different times, they raise the same 

issues and are governed by the same standards. Gustafson, 151 Ill. 2d at 453 n.1. 

¶ 44 The test for vicarious liability found in the Restatement was formally adopted by our 

supreme court in Bagent, 224 Ill. 2d at 164. That test asks three questions. First, was the 

conduct of the employee of the kind that he or she is ordinarily employed to perform? 
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Second, did the employee’s conduct occur substantially within the time and place of his or 

her employment? Third, was the employee’s conduct motivated, partly or wholly, by a 

purpose to serve the employer? Id. All three of these criteria must be met to hold the 

employer vicariously liable for the employee’s conduct, and the plaintiff bears the burden of 

proving that all of the requirements are met. Id. at 165.2

¶ 45 Applying this test in the context of the defendant’s motions for a directed verdict and a 

judgment n.o.v., the question becomes whether the evidence presented by the plaintiff, when 

viewed most favorably to the plaintiff, was totally lacking on any of the three requirements. 

See York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 178 (2006). It is 

undisputed that Brinkman’s conduct toward the plaintiff occurred during the time and at the 

place of his employment as an Oktoberfest volunteer. Thus, the issue is whether the plaintiff 

presented sufficient evidence to make out a prima facie case as to both of the other two 

requirements: that Brinkman’s conduct was of the type he was employed to perform and that, 

in picking up the plaintiff, he was motivated partly or wholly by a desire to serve the 

defendant’s interests rather than by personal desire or whim. 

¶ 46 Like the parties’ arguments, our analysis of these issues relies heavily on two recent 

supreme court cases involving vicarious liability. The first case is Bagent, which involved a 

hospital employee’s disclosure of confidential medical information to the sister of a patient. 

The hospital had a policy of protecting confidential medical information (as required by 

federal law) and trained its employees that such information should not be disclosed to 

anyone outside of the medical staff caring for the patient, not even the patient’s family. 

Bagent, 224 Ill. 2d at 157-58. The employee at issue acknowledged that she knew the 

hospital’s policy. However, when she saw the patient’s sister (who was also her best friend) 

at a bar, she mentioned that the patient was pregnant. The patient’s sister had not been aware 

of the pregnancy before that, and the employee testified that she immediately realized that 

she should not have shared the information with the sister. Id. at 158. 

¶ 47 The patient sued the employee and also the hospital, claiming vicarious liability. The trial 

court granted summary judgment in favor of the hospital, holding that the evidence showed 

that, when the employee disclosed the confidential information, she was acting outside the 

scope of her employment. Id. at 160-61. The plaintiff appealed and the appellate court 

reversed the grant of summary judgment. Although the appellate court found that the 

evidence showed that the disclosure was not the kind of conduct the employee was employed 

to perform, it believed there was a question of fact about whether the disclosure was 

motivated, at least in part, by a purpose to serve the hospital. Id. at 161. 

 

2We note that, in discussing these requirements, we use the terms “employment,” “employee,” and 

“employer” broadly to include the scenario present here, in which the “employee” is an unpaid 

volunteer performing services for a nonprofit organization. There is no dispute that a volunteer’s 

conduct can give rise to vicarious liability. Alms v. Baum, 343 Ill. App. 3d 67, 71 (2003) (fact that 

allegedly negligent person was a “volunteer worker for a charitable organization does not necessarily 

preclude a finding” of an employment relationship between the worker and the organization). 
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¶ 48 The hospital appealed to the supreme court. Adopting the three-part test of the 

Restatement, the supreme court held that all three requirements must be satisfied in order to 

create vicarious liability. Id. at 165. The supreme court then analyzed the evidence as to each 

requirement to determine whether summary judgment was appropriate. As to whether the 

disclosure was the kind of conduct that the employee was employed to perform, the supreme 

court found that it was not, as the employee was a phlebotomist whose job was to draw blood 

and keep records. No part of her job included disclosing confidential information to 

nonmedical personnel. Id. at 167. The fact that the hospital explicitly forbade such disclosure 

was relevant evidence that confirmed the conclusion that the employee’s act was not the type 

of conduct that the employee was employed to perform. Id. at 168. 

¶ 49 Turning to the third criterion, the employee’s motivation for the conduct, the supreme 

court found that the appellate court had improperly focused on the interests of the employer

when it found that the employee’s duty of nondisclosure was “ ‘actuated by the needs and 

requirements of the employer.’ ” (Emphasis omitted.) Id. at 169 (quoting Bagent v. Blessing 

Care Corp., 363 Ill. App. 3d 916, 924 (2006)). The supreme court held that this approach 

was incorrect and that, for this criterion, “it is the state of mind of the employee that is 

material.” (Emphasis in original.) Id. at 170. The supreme court then found that there was no 

material dispute that the employee was not motivated, even partly, by a desire to serve the 

hospital, because the employee herself had testified that she simply spoke out of an 

assumption that the patient had already shared the information with her sister. The supreme 

court noted that, in the ordinary case in which there was no direct evidence of the employee’s 

intent, that intent could be gleaned “from the manifestations of the employee and the 

surrounding circumstances.” Id. The fact that the employer forbade the employee to engage 

in the complained-of conduct would be a relevant circumstance to consider in determining 

the employee’s intent, as it would make it less likely that the employee’s conduct was 

motivated by a desire to serve the employer. Id. 

¶ 50 The supreme court in Bagent therefore reversed the appellate court and affirmed the trial 

court’s grant of summary judgment for the hospital. Id. at 172. (The supreme court did not 

address the second requirement–that the disclosure was made within the time and place of 

employment–because it was clear that neither the first nor the third requirement was met.) 

¶ 51 The supreme court issued the second leading case on vicarious liability, Adames v. 

Sheahan, 233 Ill. 2d 276 (2009), two years after Bagent. Adames involved the accidental 

killing of the plaintiffs’ son when his friend, the son of a sheriff’s deputy, found three of the 

deputy’s guns in the house and discharged one of them toward the plaintiffs’ son while they 

were playing. The plaintiffs sued (among others) the sheriff, arguing that he should be held 

vicariously liable because the deputy’s keeping of the guns in his home was related to his 

employment. As in Bagent, the trial court entered summary judgment in favor of the 

employer; the appellate court affirmed in part and reversed in part; and the case went to the 

supreme court. Id. at 290-95. 

¶ 52 Applying the three-part Restatement test, the supreme court found that the sheriff was not 

vicariously liable for the deputy’s conduct. Id. at 303-04. As to the first requirement, the 

supreme court found that the deputy’s negligent storage of his guns was not the kind of 
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conduct he was employed to perform. Although at one time the deputy had been required to 

carry a gun at work and had owned one of the guns for that purpose, at the time of the 

accident he was not required to, and did not, carry a gun for employment purposes. Id. at 304. 

The fact that the deputy’s negligence was foreseeable by the sheriff–the sheriff’s office 

trained deputies in the proper storage of guns at home and disciplined deputies for improper 

storage–would have been relevant if the deputy were required to carry a gun for work, but as 

he was not, the first requirement was not met. Id. at 304-05. Similarly, although the deputy 

was required to be certified annually in the use of a firearm, he did not need to own a gun in 

order to be certified, and thus the deputy’s ownership of the guns was not required by the 

sheriff. Id. at 304. 

¶ 53 The second requirement–that the complained-of conduct occurred within the time and 

place limits of the employment–also was not met: the negligent storage of the guns occurred 

at the deputy’s home, and unlike the defendant police officer in a similar case upon which the 

appellate court had relied (Gaffney v. City of Chicago, 302 Ill. App. 3d 41 (1998)), the deputy 

was not on call 24 hours per day and was not required to attempt to stop a crime even when 

off duty. Adames, 233 Ill. 2d at 304-05. 

¶ 54 Finally, there was no evidence that the deputy was motivated “by a desire to serve his 

employer when he negligently stored his gun.” Id. at 305. The deputy had testified that he 

kept the guns at home for his own protection and in case he needed them in the future. Id. In 

this respect, the case again differed from Gaffney because the police officer in Gaffney

testified that he kept his gun in an unlocked cabinet in his home so that he could respond 

quickly in the event of an emergency, including one related to his employment as a police 

officer. Id. For all of these reasons, the deputy was not acting within the scope of his 

employment when he negligently stored the guns in his home, and the sheriff could not be 

held vicariously liable for that conduct. Id. at 306. 

¶ 55 Bagent and Adames contain the most recent guidance from the supreme court on the 

subject of vicarious liability. We note that the parties to this appeal also cite several earlier 

cases in their arguments. While there is no doubt that many of those earlier cases remain 

good law to the extent that they are consonant with Bagent and Adames, to the extent that 

they apply a different analysis we must follow the controlling cases of Bagent and Adames. 

We therefore look primarily to Bagent and Adames, along with any relevant later cases, in 

deciding this appeal. 

¶ 56 B. Whether Brinkman’s Conduct Was of the Kind He Was Employed to Perform 

¶ 57 The first requirement of the Restatement’s three-part test asks a court to determine, as a 

factual matter, “whether the complained-of act of the employee, although not authorized by 

the employer, is nevertheless so similar or incidental to employer-authorized conduct as to be 

within the scope of employment.” Bagent, 224 Ill. 2d at 166. Thus, even if Brinkman’s acts

of hugging the plaintiff and picking her up were not among his authorized job duties, 

vicarious liability might properly be imposed if the acts were sufficiently “similar or 

incidental to” his assigned duties. 
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¶ 58 In considering this issue, we note that the supreme court, in both Bagent and Adames, 

began by looking at the tasks the employee was required to perform as part of his or her 

regular job duties, and then compared the complained-of conduct with those duties. See id. at 

167 (listing the employee’s typical daily tasks as a phlebotomist and concluding that she was 

“not employed to divulge confidential patient information while off duty and after hours in a 

tavern”); Adames, 233 Ill. 2d at 303-04 (noting testimony that correctional officers such as 

the deputy were not required to own or carry guns and did not need weapons to perform their 

duties, and finding that the deputy’s “negligent storage of his guns was not the kind of 

conduct [he] was employed to perform, nor was it incidental to his employment”). Here, 

there is no dispute that the tasks that Brinkman was required to perform at the Oktoberfest 

were limited to pouring or serving cups of beer. Although there was copious testimony that 

the defendant was a “huggy” organization whose members commonly greeted one another 

with hugs, the record is clear that such hugs were not required as part of the job duties that 

Jaycee volunteers were assigned to perform that night. (At oral argument, the plaintiff’s 

attorney stated that hugging was one of the founding purposes of the Jaycees, but we regard 

this statement as an unwarranted exaggeration of the evidence that, in general, the defendant 

encouraged the strengthening of social bonds among its members.) Brophy testified that the 

defendant had no policy of promoting hugging among its members, and Brophy, Parks, and 

Valicenti all testified that they greeted some Jaycees with hugs but did not hug others. All of 

them testified that the hugs they exchanged with other Jaycees were based on their closeness 

to those Jaycees, not on any organizational requirement. None of these witnesses testified 

that hugging other volunteers was part of their assigned job duties at the Oktoberfest. Finally, 

there was absolutely no evidence that Brinkman’s conduct of lifting the plaintiff into the air 

following their hug was part of his assigned job duties that night. 

¶ 59 Thus, it is clear that Brinkman’s conduct at the time of the accident was outside of his 

assigned job duties. We therefore turn to the question of whether the plaintiff produced 

evidence that Brinkman’s conduct toward her (hugging her and lifting her off the ground) 

was “so similar or incidental to” his assigned job duties that vicarious liability should be 

imposed. See Bagent, 224 Ill. 2d at 166. In considering this question, we bear in mind that 

“an act is outside of the scope of employment if it has no connection with the conduct the 

employee is required to perform.” Id. at 168. 

¶ 60 The plaintiff argues that conduct “similar or incidental to” employer-authorized conduct 

includes any conduct that “reasonably could be said to have been contemplated as part of” 

the employment, citing the relevant jury instruction (Illinois Pattern Jury Instructions, Civil, 

No. 50.06.01 (2011)). While we acknowledge that the jury instruction indeed contains that 

phrase, we also note that the sole citation for that instruction is Bagent (see id., comment), 

and that Bagent itself does not contain that phrase or any variant of it. Accordingly, we 

decline to adopt this phrase as the appropriate standard. 

¶ 61 The plaintiff also argues that we should look to the factors enumerated in section 229 of 

the Restatement (Restatement (Second) of Agency § 229(2)(a) (1958)), which include such 

factors as “whether or not the act is one commonly done” by employees like the one who 

caused the injury and whether the employer had reason to expect that the particular act would 
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be done. These factors suggest a broader standard under which an employer may be held 

vicariously liable if it reasonably should have foreseen that its employee might engage in the 

complained-of conduct. 

¶ 62 It is unclear whether the supreme court has in fact approved this broader standard. In 

Bagent, the court suggested that the factors in section 229 could be considered in determining 

whether the complained-of conduct was within the scope of employment. Bagent, 224 Ill. 2d 

at 166. However, the court did not itself apply those factors in Bagent to determine whether 

the complained-of conduct was “of the kind” that the employee was employed to perform. 

Moreover, the supreme court appeared to reject this broader foreseeability approach in 

Adames. In that case, there was evidence that the sheriff could have foreseen (and in fact did 

foresee) that deputies might store guns improperly in their homes, because the sheriff 

provided training on the proper storage of guns and had adopted a policy of disciplining 

employees who stored guns improperly. Adames, 233 Ill. 2d at 304. However, the court 

found that the foreseeability of the deputy’s negligent storage of his guns was not relevant, 

because the deputy was not required to own a gun at all for his employment. Id. Applying a 

similar analysis here, Brinkman was not required to hug anyone at all as part of his 

employment, and so the fact that the defendant might have “ha[d] reason to expect that such 

an act [would] be done” (Restatement (Second) of Agency § 229(2)(f) (1958)) was not 

relevant in determining whether his conduct was “of the kind” he was employed to perform. 

¶ 63 However, even if this broader standard of foreseeability were applied here, the plaintiff 

has not presented evidence that Brinkman’s conduct met this standard. While his act of 

hugging the plaintiff might have been foreseeable by the defendant, given that Jaycees 

customarily greeted each other in a friendly manner, there was no evidence that the defendant 

had “reason to expect” Brinkman’s act of lifting the plaintiff off the ground. As identified by 

the plaintiff in her complaint and her initial descriptions of the accident, Brinkman’s lifting 

of her, not the initial hug, was the act that caused her injury. There was no evidence that 

Brinkman’s act of hoisting the plaintiff into the air was a foreseeable outgrowth of his duties, 

or even that it was a foreseeable extension of the hug. The plaintiff herself testified that this 

was an unusual act by a Jaycee; indeed, she had never experienced this or seen other Jaycees 

greet each other this way. Accordingly, we reject the argument that the plaintiff presented 

evidence that the defendant had reason to expect Brinkman’s conduct. The jury’s finding that 

the conduct that caused the injury was “of the kind” he was employed to perform was against 

the manifest weight of the evidence. 

¶ 64 C. Whether Brinkman’s Conduct Was Motivated by a Desire to Serve the Defendant 

¶ 65 Regardless of whether the plaintiff made out a prima facie case as to the first requirement 

(that Brinkman’s conduct was “of the kind” he was employed to perform), the plaintiff also 

was required to present evidence to meet the third requirement for vicarious liability–that 

Brinkman’s conduct was motivated, either partly or wholly, by a desire to serve the 

defendant. Bagent, 224 Ill. 2d at 165 (all three requirements of the three-part test must be met 

in order to impose vicarious liability). A plaintiff may present either direct or circumstantial 

evidence of this motivation. Id. at 170. However, the plaintiff may not rely on evidence about
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the employer’s needs or interests, but must offer evidence of the employee’s own state of 

mind. Id. 

¶ 66 Here, the sole evidence of Brinkman’s motivation offered by the plaintiff was the 

evidence that Jaycees sometimes hugged one another in greeting. The plaintiff and Valicenti 

stated that they believed that such hugs advanced the purposes of the organization by 

showing that it was a friendly and welcoming group. However, neither of them testified that 

she herself, when she hugged other Jaycees, was motivated by a desire to advance the 

interests of the Jaycees. To the contrary, they both testified that they hugged other Jaycees 

whom they knew well, and did not hug all Jaycees. Brophy testified similarly. The 

implication of this testimony is that the witnesses’ own motivation in hugging other Jaycees 

was personal: they wanted to express their closeness to particular people. Where an 

employee’s conduct is actuated by a personal purpose rather than a purpose to serve the 

employer, it is not within the scope of employment. Id. at 169-70; cf. Deloney v. Board of 

Education of Thornton Township, 281 Ill. App. 3d 775, 783-86 (1996) (collecting cases 

expressing the general rule that acts of sexual misconduct are viewed as having been 

undertaken solely for the employee’s personal reasons). Moreover, even if there was 

testimony that some Jaycees intended to advance the defendant’s interests when they hugged 

other Jaycees, that testimony would do nothing to establish that Brinkman was himself 

motivated by a desire to serve the defendant when he hugged and picked up the plaintiff. 

¶ 67 The plaintiff argues that she was not required to call Brinkman as a witness in order to 

establish that his acts were motivated, at least in part, by a desire to serve the defendant. This 

is certainly true: intent or motivation can be proved by circumstantial evidence as well as 

direct evidence. People v. Lattimore, 2011 IL App (1st) 093238, ¶ 44. Here, however, the 

plaintiff presented no evidence, either circumstantial or direct, about Brinkman’s actual 

motivation for hugging and picking up the plaintiff. Her argument that, given the Jaycees’ 

interest in maintaining a welcoming and friendly environment, Brinkman could have been 

motivated by a desire to serve the defendant is simply speculation. Speculation cannot take 

the place of evidence. Billman v. Frenzel Construction Co., 262 Ill. App. 3d 681, 687 (1993) 

(summary judgment proper where speculation would be necessary to establish element of 

plaintiff’s claim). 

¶ 68 In arguing that she presented a prima facie case on this requirement, the plaintiff cites to 

numerous cases decided before Bagent and Adames were issued. However, in addition to 

being distinguishable to the extent that they applied a different analysis instead of the 

three-part Restatement test, none of these cases discusses the third requirement at issue here: 

the employee’s own motivation for his or her conduct. Accordingly, the plaintiff’s reliance 

on them is misplaced. 

¶ 69 Our conclusion that Brinkman’s conduct was not within the scope of his employment is 

bolstered by evidence that we believe was improperly excluded by the trial court–Valicenti’s 

testimony that, a few hours before the accident, she told Brinkman not to touch anyone at the 

Oktoberfest. The trial court barred the defendant from eliciting this testimony because it 

believed that allowing the testimony to come in would prejudice the plaintiff, given the 
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court’s prior rulings barring evidence of Brinkman’s past misconduct. We think that the trial 

court erred in reaching this conclusion. 

¶ 70 “The basic rule is that all relevant evidence is admissible unless otherwise provided by 

law.” People v. Cruz, 162 Ill. 2d 314, 348 (1994). Relevant evidence is any evidence that 

tends to make the existence of any fact material to the determination of the case either more 

probable or less probable. People v. Harvey, 211 Ill. 2d 368, 392 (2004). In Bagent, the 

supreme court made it clear that the type of evidence at issue here is relevant in determining 

whether vicarious liability should be imposed on an employer. Bagent, 224 Ill. 2d at 168, 170 

(that an employer forbade certain conduct is relevant to two requirements of the three-part 

test for vicarious liability: whether the employee’s wrongful act was the kind of act that he or 

she was employed to perform, and whether the employee’s wrongful act was motivated by a 

desire to serve the employer). Thus, Valicenti’s testimony that she told Brinkman not to 

touch anyone on the night of the accident was unquestionably relevant to the vicarious 

liability analysis. The exclusion of this evidence seriously damaged the defendant’s ability to 

defend against the vicarious liability claim. 

¶ 71 Moreover, the exclusion of this highly relevant evidence was not necessary to avoid 

unfair prejudice to the plaintiff. First, according to Valicenti’s deposition testimony, her 

instruction to Brinkman contained no express reference to any previous bad behavior by 

Brinkman: Valicenti simply told Brinkman not to touch anyone. The trial court could easily 

have permitted the introduction of this testimony without allowing inquiry into the reason for 

the instruction. It was not as if either party wanted or needed to introduce evidence of 

Brinkman’s past misconduct; the plaintiff herself had moved successfully to bar such 

evidence, and indeed such evidence was irrelevant to the elements of vicarious liability. 

Second, the plaintiff does not identify any way in which the admission of the testimony at 

issue would have unfairly prejudiced her. Cf. Harvey, 211 Ill. 2d at 392 (a trial court may 

exclude evidence that is remote, uncertain, or unfairly prejudicial). Although the testimony 

would have strengthened the defendant’s case and damaged her own, this is a natural effect 

of relevant evidence, and is not in itself a reason to bar that evidence. Finally, the timing of 

the evidence would not have prejudiced the plaintiff. The defendant first asked to elicit this 

evidence during its cross-examination of Valicenti. As Valicenti was the plaintiff’s first 

witness, the plaintiff would have had ample opportunity to make her own case thereafter. 

¶ 72 While we give proper deference to the trial court’s inherent power to control the 

presentation of evidence at trial, the exclusion of relevant evidence must rest on some legally 

sufficient ground. Cruz, 162 Ill. 2d at 348; see also People ex rel. Noren v. Dempsey, 10 Ill. 

2d 288, 293 (1957) (“The basic principle that animates our law of evidence is that what is 

relevant is admissible. Exceptions to that principle must justify themselves.”). Here, no such 

legally sufficient basis for excluding the evidence has been identified. Thus, the trial court 

erred in excluding Valicenti’s testimony that she told Brinkman not to touch anyone. Had the 

evidence come in, it would have provided additional support for our conclusion that 

Brinkman’s conduct was not within the scope of his employment by the defendant. 

¶ 73 In summary, the plaintiff failed to put forward a prima facie case for imposing vicarious 

liability on the defendant. Bagent, 224 Ill. 2d at 165 (all three requirements of the three-part 
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test must be met in order to impose vicarious liability). A directed verdict or a judgment 

n.o.v. may be granted to a defendant where the plaintiff has failed to make out a prima facie

case; that is, the plaintiff has failed to present at least some evidence on every necessary 

element of his or her cause of action. Hemminger, 2014 IL App (3d) 120392, ¶ 17. As the 

plaintiff did not present evidence of either the first or the third requirement of the three-part 

test for vicarious liability, we find that the trial court erred in denying the defendant’s 

motions for a directed verdict and judgment n.o.v.

¶ 74 III. CONCLUSION 

¶ 75 The judgment of the circuit court of McHenry County is reversed, and judgment is 

entered in favor of the defendant, the Crystal Lake Jaycees. 

¶ 76 Reversed.