May 02, 2022


May 02, 2022

Prior to the Illinois Supreme Court’s holding in McQueen v. Green et al., 2022 IL 126666, an employer who was sued for its own direct negligence and for the negligence of an employee pursuant to a vicarious liability theory could expect to have the direct liability theory dismissed if the employer admitted vicarious liability. In McQueen, the Illinois Supreme Court overturned long-standing precedent that barred a plaintiff from maintaining an independent cause action against an employer for its direct negligence where the employer admitted it was vicariously liable for the conduct of an employee under a theory of respondeat superior or vicarious liability.

The McQueen Court’s decision hinged on the fact that the evidence supported both direct and vicarious liability theories against the employer. There, an employee of defendant was asked by his supervisor to haul heavy construction equipment. The equipment was loaded onto a trailer by a third party, and before transport, the employee realized that the equipment was improperly loaded. He called his supervisor to ask what should be done. The supervisor did not ask follow-up questions to fully assess the problem and instead ordered the employee to transport the equipment despite the fact that it was not loaded properly. During transport, the employee was not able to control his trailer, and the trailer struck and injured the plaintiff.

The jury returned a verdict for the plaintiff and against the employer, while also finding that the employee was not guilty of negligence. The employer had admitted that the employee was its agent and was acting within the scope of his agency at all relevant times. Thus, the employer argued that this verdict was inconsistent with Gant v. L.U. Transp., which held that a plaintiff’s direct liability claim against an employer must be dismissed where the employer admits that it is vicariously liable for the conduct of its employee. 331 Ill. App. 3d 924, 928 (1st Dist. 2002). Numerous Illinois cases since Gant have held similarly, and the employer argued that the verdict could not stand for this and other reasons.

The Illinois Supreme Court disagreed and held that a plaintiff may hold an employer responsible for its own misconduct (i.e., a direct negligence claim) even if the jury finds that its employee was not negligent and even if the employer admits it is vicariously liable for the employee’s wrongdoing. The Court reasoned that a potentially meritorious cause of action against the employer should not be barred simply because an employer acknowledges that an agency relationship exists with its employee. The Court rejected the argument that permitting a direct liability claim against an employer could allow for a potential double recovery for the same injury.

This holding has many implications for employers in Illinois. Employers must now be prepared to defend against both claims, increasing the topics and scope of discovery allowed in a case. Employers must now also consider more carefully whether the same counsel can represent both the employer and employee because doing so may be a conflict. At the same time, there are efficiencies and cost savings in having the same counsel for both, in addition to ensuring a unified defense. Further, the Supreme Court’s ruling emphasizes the importance of the jury instructions and proper objections at trial. Should you have any questions on this case and the impact on your business, please contact Rachel Nevarez at or any of the attorneys at Wiedner & McAuliffe.