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Kawaguchi v. Gainer9/16/2005
hority paid Trooper Gainer's salary and because Trooper Gainer had filed her worker's compensation claim with the Authority. Additionally, plaintiff stressed that the Authority had provided Trooper Gainer with a uniform, squad car, and radio. Plaintiff argued that these facts, coupled with District 15 troopers' enforcement of tollway regulations, created a genuine issue of material fact as to whether Trooper Gainer was a borrowed employee of the Authority.
The trial court found that Trooper Gainer was not a borrowed employee of the Authority and granted the motion to dismiss. At that point, the cases against Trooper Gainer and the Authority had been disposed of, but the case against Effinger was still pending. So that plaintiff could appeal the decision as to Trooper Gainer and the Authority, the trial court entered an order in which it stated that there was no just reason to delay an appeal. See 155 Ill. 2d R. 304(a). This timely appeal followed.
II. ANALYSIS
A. Introduction
Plaintiff argues that the circuit court erred in granting Trooper Gainer's motion to dismiss because a genuine issue of material fact exists as to whether Trooper Gainer was acting in a way unique to her position as a state trooper at the time of the accident. Thus, plaintiff questions whether sovereign immunity deprived the trial court of jurisdiction over her claim against Trooper Gainer. With regard to the Authority, plaintiff argues that the trial court erred in dismissing her claim because a genuine issue of material fact exists as to whether Trooper Gainer was a borrowed employee of the Authority. For her part, Trooper Gainer argues that, in addition to sovereign immunity, public official immunity bars plaintiff's claim against her. For its part, the Authority, while conceding that under some circumstances it has waived sovereign immunity, argues that Trooper Gainer was not its employee and that, even if she was, it has not waived sovereign immunity under the circumstances of this case.
Although the parties discuss plaintiff's claim against the Authority last, we do not believe this is the most analytically cohesive way to proceed. If Trooper Gainer was a borrowed employee of the Authority at the time of the accident, then the State Police could not be liable for any negligence on her part. 27 Am. Jur. 2d Employment Relationship §377, at 829 (2004) ("If an employee was a borrowed servant at the time of the allegedly tortious conduct, the employee's general employer can escape liability for such conduct"). Instead, any vicarious liability would rest on the Authority. 27 Am. Jur. 2d Employment Relationship §377, at 829 (2004) ("The employer who temporarily borrows and exercises control over another's employee assumes liability in respondeat superior for the activities of the borrowed employee"). Thus, if Trooper Gainer was a borrowed employee of the Authority, the next question would be whether, under the circumstances of this case, the Authority has waived sovereign immunity as to her conduct; only after answering that question could we proceed, if necessary, to a substantive analysis of the sovereign immunity issue. On the other hand, there is no suggestion that the State has waived sovereign immunity over the actions of State Police employees. Thus, if, at the time of the accident, Trooper Gainer was an employee of the State Police, rather than a borrowed employee of the Authority, the question immediately becomes whether, pursuant to sovereign immunity, the circuit court lacked jurisdiction over plaintiff's suit.
Accordingly, we believe the most analytically correct first step to take is to determine the identity of Trooper Gainer's employer. Before getting to th
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