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Kawaguchi v. Gainer9/16/2005
at, however, we pause to set out the standard of review.
B. Standard of Review
As noted, the trial court dismissed plaintiff's claims pursuant to section 2--619 of the Code. Section 2--619 provides litigants with an opportunity to dispose of issues of law or easily proved issues of fact. Northern Trust Co. v. County of Lake, 353 Ill. App. 3d 268, 275 (2004). In ruling on a section 2--619 motion, the trial court may consider pleadings, depositions, and affidavits. Estate of Heune v. Edgcomb, 355 Ill. App. 3d 645, 647-48 (2005). When supporting affidavits have not been challenged or contradicted by counteraffidavits or other appropriate means, the facts contained in the supporting affidavits are deemed admitted. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 262 (2004); see also Miller v. Highway Commissioner of North Otter Township Road District, 344 Ill. App. 3d 1157, 1166 (2003) ("A court will accept as true those evidentiary facts in a defendant's supporting affidavit if the plaintiff fails to refute those facts in a counteraffidavit, notwithstanding contrary, unsupported allegations in the plaintiff's complaint"). With this in mind, we review de novo the dismissal of a claim pursuant to section 2--619. See Northwest Millwork Co. v. Komperda, 338 Ill. App. 3d 997, 1000 (2003). The question on appeal is whether there exists a genuine issue of material fact that should have precluded judgment in favor of the moving party. Carroll v. Paddock, 199 Ill. 2d 16, 22 (2002).
C. Borrowed Employees
Plaintiff argues that, as a state trooper assigned to patrol the tollway, Trooper Gainer was a borrowed employee of the Authority. Thus, plaintiff argues that the Authority is vicariously liable for Trooper Gainer's alleged negligence. Moreover, plaintiff argues that the Authority has waived sovereign immunity. That is, plaintiff argues that, assuming Trooper Gainer was a borrowed employee of the Authority, the circuit court has jurisdiction. We will discuss sovereign immunity in more detail in Part II D below. For now, it is sufficient to note that, as indicated above, if sovereign immunity applies, the circuit court does not have jurisdiction. See 745 ILCS 5/1 (West 2002); 705 ILCS 505/8(d) (West 2002). In response to plaintiff's claims, the Authority concedes that, in some circumstances, it has waived sovereign immunity as to its employees. However, the Authority argues that Trooper Gainer was not its employee. Moreover, the Authority argues that, even if Trooper Gainer was its employee, under the circumstances of this case it has not waived sovereign immunity as to her actions. Because we find that Trooper Gainer was not a borrowed employee of the Authority, it is unnecessary to discuss the Authority's additional argument. What is necessary, however, is that we begin our treatment of this issue by exploring some confusion that surrounds this area of law.
1. The Law of Borrowed Employees
When it comes to the law of borrowed employees, there are a few pretty basic propositions. First, an employee in the general employment of one employer may be loaned to another for the performance of work and, while performing that work, become the employee of the employer to whom he or she has been loaned. Haight v. Aldridge Electric Co., 215 Ill. App. 3d 353, 365 (1991). Second, as noted, an employer who borrows an employee assumes liability in respondeat superior for the actions of that employee. 27 Am. Jur. 2d Employment Relationship §377 (2004). Put another way, if an employee was a borrowed employee at the time of some alleged tortious conduct, that employee's general employer is not liable for that conduct. 27 Am. Jur. 2d Employment Relationship §
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