Cox v. Poe

1

2024 IL App (4th) 231487-U

MICHAEL COX and SUSAN COX, Plaintiffs-Appellants, v. DONALD POE; POE ENTERPRISES, INC; and MITCHELL CLARK, Defendants

(Donald Poe and Poe Enterprises, Inc., Defendants-Appellees).

No. 4-23-1487

Court of Appeals of Illinois, Fourth District

September 5, 2024

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Sangamon County No. 20L30 Honorable Gail L. Noll, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Zenoff and Knecht concurred in the judgment.

ORDER

HARRIS, JUSTICE.

¶ 1 Held: The trial court did not err in granting the Poe defendants' motion for summary judgment where no genuine issues of material fact existed regarding plaintiffs' claims that those defendants were vicariously or directly liable for plaintiffs' alleged injuries.

¶ 2 Plaintiffs, Michael and Susan Cox, filed a negligence action against defendants, Donald Poe, Poe Enterprises, Inc. (Poe Enterprises), and Mitchell Clark, seeking to recover money damages for injuries Michael sustained after his motorcycle allegedly slid on grass clippings that accumulated on a public roadway. The clippings were adjacent to property defendant Clark leased from defendant Poe, who was also part owner of Clark's employer, Poe Enterprises. The trial court granted summary judgment in favor of Poe and Poe Enterprises (collectively, the Poe defendants) as to all counts against them, and plaintiffs appeal. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On September 23, 2019, Michael was involved in a single-vehicle motorcycle accident at the intersection of Sherman and Guest Roads in Sherman, Illinois. Defendant Clark resided at 4872 Sherman Road on one corner of the same intersection in a residence he leased from Poe, who owned the property. Clark also worked as a farmhand for Poe Enterprises, which Poe owned along with his wife and son. At the time of the accident, Clark was mowing the lawn of the Sherman Road property. The property consisted of a house yard, gravel driveway, small shed, large shed, and grain bin. It was surrounded by 160 acres of farmland that Poe also owned.

¶ 5 In February 2020, plaintiffs filed their original eight-count complaint against defendants Clark and Poe raising claims of negligence. In counts I and II, they alleged Clark was negligent in causing grass clippings to be deposited onto Guest Road when he mowed, littering onto Guest Road, failing to warn of the dangerous condition of the grass clippings, and failing "to remedy or fix the grass clippings." Plaintiffs further alleged the grass clippings caused Michael's motorcycle to slide and go into a ditch as he turned from Sherman Road onto Guest Road resulting in Michael sustaining "severe and lasting bodily injuries" and other damages. Plaintiffs alleged Poe was both (1) vicariously liable for Clark's negligent acts or omissions based on Clark's status as Poe's employee, agent, or servant (counts III and IV) and (2) directly liable due to his ownership of the Sherman Road property (counts V and VI) and his failure to properly supervise Clark's mowing (counts VII through VIII).

¶ 6 In February 2021, plaintiffs filed a 12-count first amended complaint, adding Poe Enterprises as a defendant and raising four counts (counts IX through XII) against it that alleged negligence. In particular, plaintiffs alleged that Poe Enterprises was vicariously liable for Clark's negligent conduct as its employee, agent, or servant and that it was directly liable based on its failure to supervise Clark as he mowed. Plaintiffs' claims against Clark (counts I and II) and Poe (counts III through VIII) remained substantially the same as those set forth in its original complaint.

¶ 7 In July 2023, the Poe defendants filed a third motion for summary judgment, which is the subject of this appeal. They asserted they were entitled to judgment as a matter of law as to each count against them in plaintiffs' first amended complaint. Specifically, the Poe defendants argued (1) they did not have a duty to supervise Clark as he mowed his own leased lawn, requiring the dismissal of counts VII, VIII, XI, and XII, (2) Clark was not acting within the scope of any agency relationship with them at the time of the accident, requiring the dismissal of counts III, IV, IX, and X, and (3) Poe did not retain control of the Sherman Road property and did not owe a duty to Michael based on Clark's activities, requiring the dismissal of counts V and VI. To their motion, plaintiffs attached exhibits that contained Poe's and Clark's depositions, a lease agreement for the Sherman Road property, photographs of the site of the accident, and the deposition of Mark Ezra, a mechanical engineer and accident reconstructionist.

¶ 8 The same month, plaintiffs filed their own motion for summary judgment as to their vicarious liability counts against the Poe defendants (counts III, IV, IX, and X). They asserted evidence showed Clark was acting as the Poe defendants' agent or employee at the time of the accident and while mowing the grass at the Sherman Road property and that he was acting within the scope of his agency or employment as a farmhand when he mowed. In August 2023, plaintiffs also filed a response to the Poe defendants' third motion for summary judgment, challenging defendants' claims that they were entitled to a judgment as a matter of law on each count against them. Attachments to plaintiffs' filings included the lease agreement for the Sherman Road property and the depositions of Poe, Clark, and Robert Manley, a second Poe Enterprises employee.

¶ 9 The parties' evidence showed Poe owned farmland that he rented to Poe Enterprises. Since approximately October 2015, Clark worked for Poe Enterprises as a farmhand and was a salaried employee. Clark testified that as part of "the deal of [his] employment," he also rented a residence from Poe located at 4872 Sherman Road. The property included a large shed and grain bin used by Poe and a smaller shed that Clark described as his "personal shed." It was also surrounded by 160 acres of farmland that Poe also owned.

¶ 10 Clark's rental of the Sherman Road property was governed by a lease agreement he entered into with Poe and Poe's wife, Carol. The agreement, dated October 1, 2015, identified the property covered by the lease as "real property and improvements located at 4872 Sherman [Road]." It required the premises to "be used and occupied solely by [Clark and his immediate family] exclusively, as a private single family dwelling." According to the terms of the lease, Clark was required to pay rent of $1 per month, and the lease would terminate upon the "termination of [his] employment." The lease also contained a provision entitled "Maintenance, Repair, and Rules," which stated, "Tenant will, at its sole expense, keep and maintain the Premises and appurtenances in good and sanitary condition and repair during the term of" the lease agreement.

¶ 11 During his deposition, Clark initially testified that the lease covered "[t]he residence at 4872" but not anything else. However, he later clarified that he considered "[t]he grass, the house, and the little shed" to all be encompassed within the property he leased. Clark agreed that his lease for the Sherman Road residence would terminate when his employment terminated and that it was "part of [his] compensation." Clark also testified that he did not lease any farmland connected to the Sherman Road property. According to Poe, the leased portion of the Sherman Road property consisted of the residence and the yard. He agreed the lease with Clark was part of Clark's employment compensation and tied to Clark's employment.

¶ 12 Poe testified that, as a farmhand, Clark had no set schedule but usually worked from 9 a.m. to 5 p.m. Clark described his work schedule as being "different throughout the year." He also testified that as a farmhand, his job duties involved working with farm equipment and farm animals. Regarding whether he mowed lawns at the Poe defendants' various properties, Clark testified as follows:

"A. I don't, no. I use the tractor and the bigger mower. But just roadside ditches and that kind of thing.

Q. You do roadside ditches at these different properties?

A. We haven't recently, no. But yes, I have.

Q. In the past, in your four to five years of employment with *** Poe, have you mowed roadside ditches at these different properties?

A. Yes."

When mowing roadside ditches, Clark used "a tractor and brush hog."

¶ 13 On the day of the motorcycle accident, Clark was mowing the lawn of the Sherman Road property with a "Dixie Chopper" lawnmower that Poe owned. Clark had witnessed Poe using the lawnmower to mow at his properties. Clark testified he used the Dixie Chopper lawnmower "solely for [his] own yard at [his] residence," and he stated he only mowed "after hours on [his] own time." He denied using the lawnmower at any different properties while employed by Poe as a farmhand. Also, he maintained that he did not mow his yard "if [he] was at work," and that he mowed the grass at the Sherman Road property because it was his "preference not to have tall grass."

¶ 14 The lawnmower at issue was stored in a shed at Poe's son's house, and Clark transported the mower to the Sherman Road property using a vehicle and trailer that Poe also owned. Maintenance on the lawnmower was done by Poe's employees at Poe's large shed on the Sherman Road property. When asked if such maintenance was performed during work hours, Clark responded as follows: "It just depends. If we get to it during the work hours, we do. If we stay late or I do [it] on my own time or whatever." Clark...