1

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

RICHARD P. VANCURA, Appellee, v. PETER KATRIS et al.,

(Kinko’s Inc., Appellant).

SUMMARY of Opinion filed October 7, 2010.

Kinko’s argues that the common law duty of care for employers of notaries is defined by

the Illinois Notary Public Act (the Act) (5 ILCS 312/7–102). Thus, it maintains that

where its training and supervision adhered to the standards set forth in the Act, it cannot

be liable. Kinko’s further asserts that it had no statutory duty to train its notary

employees, and therefore that its liability is limited to the scope of its undertaking by the

voluntary undertaking doctrine.

Plaintiff responds that the Act is not the only source of common law duty for a notary’s

employer, and that Kinko’s training and supervision were negligent regardless of the

extent of Kinko’s duty.

Analysis

We first address the appellate court’s determination that Kinko’s waived review of

the common law claim by failing to appropriately support its argument. Supreme

Court Rule 341(h) sets out the requirements for appellants’ briefs. The rule lists the

sections of the brief that shall be included, as well as requirements for each section.

Consistent with the plain language of the rule, this court has repeatedly held that the

failure to argue a point in the appellant’s opening brief results in forfeiture of the issue.

The appellate court has further held that even where the brief includes both argument and

citation, a party may nonetheless forfeit review if the cited authority is irrelevant and

does not represent a sincere attempt to comply with the rule.

In the present case, with respect to Kinko’s argument on the negligence claims, the court

found that “[t]he cited case law has no bearing on the judge’s finding of negligence and

does not warrant further discussion.” Thus, the court concluded, Kinko’s forfeited

consideration of the argument.

As the appellate court noted, most of Kinko’s citations are not directly on point. Instead,

the cited cases arise from violations of statutes, and they generally discuss the use of

statutory violations as evidence of negligence. With respect to the negligent-supervision

claim specifically, Kinko’s relied on Van Horne, in which the plaintiff alleged that the

defendant radio station was vicariously liable and directly liable for damages caused

when a disc jockey made defamatory statements about the plaintiff on air.

While the cited language of Van Horne may be unpersuasive on the issues in this case,

we disagree with the appellate court’s conclusion that Van Horne has “no bearing.”

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Although we acknowledge that citation to completely irrelevant authority may, in some

cases, be so inadequate as to run afoul of Rule 341(h)(7), the case at bar is not such a

case. In our view, citation to cases that are merely unpersuasive or inapposite, as the

appellate court apparently found Kinko’s cited authorities to be, is not tantamount to

failing to cite relevant authority altogether. We therefore find that Kinko’s has not

forfeited review of the common law negligence claim, and we will review it on its merits.

• While Rule 318(a) provides that an appellee may seek and obtain any relief

warranted by the record on appeal without filing a separate appeal or petition for

leave to appeal, Rule 341 nonetheless requires that the appellee provide adequate

argument and citation to authority for any such relief. Aside from two sentences,

plaintiff makes no reference to the statutory liability claim and devotes no portion

of his argument to supporting that claim. In contrast to the sections of Kinko’s

brief …, plaintiff’s brief contains no argument and no citations to authority on this

point. … [A] claim of error that is merely listed but not “argued” will not satisfy

the requirements of Rule 341. We find that plaintiff has failed to comply with our

rules, and he has therefore forfeited review of the statutory liability count.

Consequently, with respect to the statutory claim, we affirm the appellate

court and reverse the trial court’s judgment against Kinko’s.

Plaintiff’s remaining claim against Kinko’s alleges that Kinko’s “negligently trained

and supervised and failed to properly control its employee, Albear, resulting in the

improper notarization of the Assignment of Mortgage.” To succeed in a claim for

negligence, a plaintiff must establish the existence of a duty, a breach of the duty, and an

injury to the plaintiff that was proximately caused by the breach. Breach of duty and

causation are generally findings of fact, which we will reject only when they are against

the manifest weight of the evidence.

Although plaintiff formulated his common law claim as a single claim of negligent

supervision and negligent training, we note that it in fact raises two distinct theories of

negligence on the part of Kinko’s: liability for negligent supervision and liability for

negligent training. We evaluate each in turn.

• [A]ccording to Kinko’s, an employer cannot be liable on the basis of a duty found

outside the Act. Plaintiff responds that although the Act establishes and fixes the

duties of a notary public, the statute does not “preempt” a common law cause of

action based on the employer’s own negligence. Thus, plaintiff maintains, he may

assert a common law claim that is unaffected by the statute. Plaintiff relies

primarily on general assertions of negligence on the part of Kinko’s and the

testimony of Professor Closen.

• [A]t common law, an employee’s malfeasance may generally create liability for

his or her employer in two ways: vicarious liability for the acts of the employee,

or direct liability for the employer’s own acts. Where the employee is acting

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within the scope of the employment, the plaintiff generally need not establish any

malfeasance on the part of the employer to claim vicarious liability. In contrast, a

claim of direct negligence, such as the plaintiff’s claim in this case, alleges that

the employer was itself negligent. As in any claim for negligence, a plaintiff must

establish the existence of 1) a duty, 2) a breach of the duty, and 3) an injury to the

plaintiff that was proximately caused by the breach.

• In support of its argument that the Act alone fixes the scope of the employer’s

legal duty, Kinko’s cites Noyola, arguing that the imposition of a standard of care

that is higher than that prescribed by the statute violates the principle expressed in

Noyola and similar cases.

We disagree. The mere existence of a statute establishing legal duties for

employers of notaries does not foreclose the possibility of a common law

negligence action based on an extra-statutory duty of care.

However, the legislature may intentionally foreclose or limit such an action

through the statute by altering the common law. Here, the statute provides that an

employer may be found liable for the acts of a notary only where “the employer

consented to the notary public’s official misconduct.” The legislature therefore

intended for the employer of a notary to be liable where the employer has some

minimum threshold of knowledge of the notary public’s conduct. This represents

a clear conflict with common law claims of either vicarious liability or direct

negligence. A common law vicarious liability claim typically requires no proof of

the employer’s knowledge, consent, or culpability.

• We therefore hold that section 7–102 of the Act was intended to modify common

law liability for employers of notary publics. Plaintiffs who raise a common law

claim against the employer of a notary public must show, at a minimum, that the

employer had some knowledge of the notary public’s misconduct. In other words,

the minimum duty of an employer of notaries at common law extends only as far

as the duty established by section 7–102 of the Act; the employer has a duty to

not consent to the official misconduct of its employees.

• Applying these holdings to the present case, plaintiff does not argue that Kinko’s

had any knowledge of Albear’s misconduct, nor did the evidence at trial reveal

any such knowledge. On the contrary, the evidence established that Kinko’s never

received any complaints about Albear’s conduct as a notary. Plaintiff has claimed

only a general negligence in failing to discover defects in Albear’s performance.

Even if we assume that such allegations establish a cause of action for negligent

supervision of an employee generally, section 7–102 makes clear the legislature’s

intent to require some knowledge on the part of the employer as a prerequisite to

imposing liability. Therefore, the judgment of the circuit court imposing

liability against Kinko’s for negligent supervision must be reversed.

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Plaintiff also alleges that Kinko’s was negligent in its training of Albear. Initially, we

note that plaintiff has not argued that Kinko’s breached a generalized duty to provide

training. Instead, plaintiff has alleged that Kinko’s was negligent because the training

Kinko’s did provide was insufficient or defective in several enumerated ways. In other

words, although plaintiff acknowledges that Kinko’s provided training, it argues that

Kinko’s did so negligently. Kinko’s responds that its liability for training should be

limited in light of the voluntary undertaking doctrine.

• Kinko’s argues that, because it was under no duty to train its notary public

employees, the training program it provided should be subject to the provisions of

Frye and section 323. We disagree …. Instead, whether and to what extent

Kinko’s had a duty to train its notary employees is best analyzed under principles

generally applicable to negligence cases.

• Plaintiff urges us to adopt a duty that would require employers to train notary

employees in the best practices of notaries generally, as expressed in Closen’s

testimony. However, the legislature of Illinois has never adopted the Model

Notary Act. Though it could have done so when it considered and revised the

Act in both 1986 and 2008, it did not enact any of the provisions of the Model

Acts into law. The stated purpose of the Act includes “to simplify, clarify, and

modernize the law governing notaries public,” and the legislature may well have

declined some of the more stringent requirements, including those in Closen’s

testimony, in the interests of simplicity and clarity. We note also that the Act’s

reduced requirements makes it easier to obtain a notarization, thus allowing more

of the public access to notary services. If we were to impose a duty on employers

who provide training that required such training to teach proposed and model

standards rather than the standards selected by our legislature and expressed in the

Act, we would be undermining the legislature’s careful determination of

what should be required of a notary. This we will not do. Instead, we hold

that where an employer provides training to notary public employees, it has

a duty to ensure that its training conforms to the provisions adopted by the

Illinois legislature in the Act.

• Having determined that once Kinko’s undertook training, it had a duty to train its

employees consistently with the Act, we next evaluate plaintiff’s claim that

Kinko’s breached its duty. (The trial court found that “Kinko’s failed to meet the

necessary standard of care.” However, it did not directly explain the factual

findings that led it to this conclusion.)

1. Kinko’s was not under a duty to provide notary training classes taught

exclusively by notaries. As we have stated, all that was required of Kinko’s

training program was that it teach notaries in a manner consistent with the Act.

The credentials of the trainer are therefore irrelevant, so long as he or she teaches

the class in conformity with this duty.

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2. The court’s finding that Kinko’s breached its duty by failing to teach Albear to

keep a journal is against the manifest weight of the evidence. Even if it were not,

however, the Act did not require notaries to maintain a journal or logbook of any

kind in 1995. Therefore Kinko’s was under no duty to train Albear to keep a

journal. Similarly, Kinko’s was under no duty to train its notary employees to

secure or preserve the logbook. With respect to the security and preservation of

the seal, the Act contains no requirements about either.

3. We find that under the 1991 Illinois Notary Public Act, Albear was not required

to obtain photographic identification to have “satisfactory evidence” of a person’s

identity, and the trial court’s reliance on Closen’s testimony to the contrary was

incorrect as a matter of law. As a result, Kinko’s was not under a duty to teach

its notary employees that a photo identification was required; its duty was

simply to teach notaries that they could use identification documents to fulfill

their statutory obligation to receive “satisfactory evidence” of identity.

The evidence at trial therefore supports Kinko’s claim that it fulfilled its duty to ensure

that its training program complied with the requirements of the Act. To the extent that the

trial court found that Kinko’s breached its duty, we conclude that such a finding is against

the manifest weight of the evidence. Thus, the trial court’s finding of liability against

Kinko’s for negligent training is reversed.

Conclusion

Based on the foregoing, we find that:

• the trial court’s determination that Kinko’s was liable on the basis of negligent

supervision and training is against the manifest weight of the evidence, and

• with respect to the statutory liability claim, we find that plaintiff has forfeited

review of the appellate court’s judgment.

Thus, we affirm in part and reverse in part the judgment of the appellate court, reverse

the judgment of the circuit court against Kinko’s in its entirety and remand to the circuit

court with directions to enter judgment in favor of Kinko’s on both counts.

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BACKGROUND

Trial and Appeal

Each of the three complaints against Kinko’s included a claim based on common law

theories of negligent supervision and negligent training, as well as a statutory claim based

on section 7–102 of the Illinois Notary Public Act. After seven days of trial proceedings

held between September 2005 and January 2006, the court found defendants jointly and

severally liable to Vancura for the damages. Relevant to this appeal, the court found

Kinko’s liable to Vancura, Glenn Brown, and Katris under both the statutory and

common law claims.

Following trial, the appellate court reversed in part and affirmed in part, with one justice

dissenting.

• With respect to the statutory claim, the majority concluded that “the material facts

regarding Albear’s conduct are undisputed.” It noted Kinko’s acknowledgment

that either Albear notarized Vancura’s signature despite Vancura’s absence, or

Albear knowingly or unknowingly allowed someone to apply his notary stamp.

Under either scenario, the court reasoned, Albear was guilty of negligent or

reckless conduct sufficient to constitute “official misconduct” under section 7–

104 of the Act. However, the court found that Kinko’s did not “consent” to

Albear’s official misconduct, and therefore the court rejected the trial court’s

determination that Kinko’s was liable under the Act.

• With respect to the common law claim, the majority initially found that Kinko’s

had waived review by failing to cite relevant authority, in violation of Supreme

Court Rule 341(h)(7)4. Nonetheless, the majority conducted an extensive review

of the common law theories, concluding that “the negligence judgment is

consistent with the manifest weight of the evidence,” and that it would have

affirmed even if Kinko’s had complied with the rule.

• The majority agreed with Kinko’s that Kinko’s was under no statutory obligation

to train its notary employees, but noted that Kinko’s chose to provide training and

then showed “no concern” for whether the training was sufficient. The court

opined that Kinko’s had no regard for whether Albear understood his

responsibilities and adhered to them. According to the majority, “[t]his is

negligence.”

• The dissenting justice would have found that Kinko’s was not liable on either the

statutory claim or the common law negligent training and supervision claim.

Although the dissent agreed with the majority that the common law standard of

care was one of “reasonableness,” the dissent opined that the Act establishes what

is reasonable. The dissent criticized the majority and the trial court for relying on

the Model Notary Act, noting that the Illinois legislature has declined to adopt the

Model Notary Act into either current Illinois notary law or the Act as in effect in

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1995. The dissent opined that the scope of Kinko’s duties can be defined only by

the Act or its own voluntary undertakings.

The dissent also found that Closen’s interpretation of the Act was incorrect.

According to the dissent, the phrase “identification documents” [plural] in section

6–102 of the Act means only that “identification can be ascertained from a variety

of different documents that various individuals may present, such as a driver’s

license, state identification, immigration documents, passport, etc.” It does not

mean that more than one document must be presented for identification purposes.

Docket No. 108652.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

RICHARD P. VANCURA, Appellee, v. PETER KATRIS et al.,

(Kinko’s Inc., Appellant).

Opinion filed October 7, 2010.

JUSTICE GARMAN delivered the judgment of the court, withopinion.

Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,Karmeier, and Burke concurred in the judgment and opinion.

OPINION

Plaintiff Richard Vancura brought an action against Peter Katris,Glenn Brown, and Randall Boatwright, alleging that the defendantshad colluded to deprive Vancura of his interest in a mortgage note byforging Vancura’s signature on an assignment of that interest.Vancura also sued Gustavo Albear, the notary public whose seal wasused to notarize the fraudulent mortgage assignment, and Albear’semployer, Kinko’s, Inc. (Kinko’s). Relevant to this appeal, the circuitcourt of Cook County held a bench trial and found Kinko’s liable toVancura based on a violation of section 7–102 of the Illinois NotaryPublic Act (Act) (5 ILCS 312/7–102 (West 1996)) and a common lawclaim based on theories of negligent training and negligentsupervision. The appellate court reversed the finding of liability underthe Act, but it affirmed the judgment of the trial court on the common

1Robert Brown was not a party to this case, nor did he appear as awitness; the record does not explain his absence. To avoid confusion, werefer to Robert Brown and Glenn Brown, who are not related, with their first

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law negligence claim. We granted Kinko’s petition for leave to appealpursuant to Supreme Court Rule 315 (210 Ill. 2d R. 315).

Kinko’s argues that the common law duty of care for employersof notaries is defined by the Act. Thus, it maintains that where itstraining and supervision adhered to the standards set forth in the Act,it cannot be liable. Kinko’s further asserts that it had no statutory dutyto train its notary employees, and therefore that its liability is limitedto the scope of its undertaking by the voluntary undertaking doctrine.See Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32 (1992).Plaintiff responds that the Act is not the only source of common lawduty for a notary’s employer, and that Kinko’s training andsupervision were negligent regardless of the extent of Kinko’s duty.

For the reasons given below, we reverse the trial court’s judgmentagainst Kinko’s and remand with directions to enter judgment in favorof Kinko’s on both counts.

BACKGROUND

Plaintiff Vancura, a real estate investor, agreed to help defendantGlenn Brown finance the purchase and rehabilitation of a single-familyhome in Wheaton, Illinois, as an investment. Vancura loaned $100,000to a land trust Brown established, and in return the trust executed a$110,000 installment note that was secured by a first mortgage on theinvestment property. Brown also personally guaranteed the note.However, Brown had difficulty selling the Wheaton house, and whenthe note matured he did not have the money to repay Vancura.Vancura and Brown each sought advice from defendant RandallBoatwright, another real estate investor, who offered suggestions onhow to improve the property. Boatwright then left town to look forinvestors for his own project, a new video transmission companycalled Multi Path Communications.

When Boatwright returned from his trip, his business partner,Robert Brown, told him that Vancura was willing to trade theinstallment note for a share of Multi Path Communications.1

names.

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Boatwright told Glenn Brown about the potential trade with Vancuraand offered to accept $90,000 in payment for the note, which wasthen worth $117,333. Glenn Brown then asked another businessacquaintance, defendant Peter Katris, to pay Boatwright in exchangefor $90,000 and half of the profits from the sale of the Wheatonhouse, whenever that occurred. Katris agreed, and Glenn Brownarranged for his attorney, Karl Park, to conduct a real estate closingto reflect the transactions. Thus, Glenn Brown understood thatVancura would receive a share of Multi Path Communications and inreturn he would assign the installment note and accompanyingmortgage to Boatwright, who would accept $90,000 in satisfaction ofboth. Glenn Brown then paid the $90,000 to Boatwright with moneyborrowed from Peter Katris, whom Glenn Brown repaid with$90,000, plus half of the profits from the sale of the house.

Prior to the closing, Park drafted an “Assignment of Mortgage”for Vancura to sign, along with a loan discount agreement forBoatwright and Glenn Brown to sign and a release deed forBoatwright to sign. According to Boatwright, against whom a defaultjudgment was entered in this case and who testified by way of anevidence deposition, Robert Brown took the assignment of mortgageto Vancura for his signature the night before the closing. WhenBoatwright and Robert Brown met the next morning, they realizedthat the assignment of mortgage and the release deed requirednotarization, and they took the documents to the Kinko’s store in OakLawn, Illinois. Later, when the closing was conducted, both theassignment of mortgage and the release deed bore the apparentsignature and notary seal of Kinko’s employee Gustavo D. Albear, anIllinois notary.

At the bench trial in this case, it was undisputed that Vancuranever signed the mortgage assignment, and he was not present whenthe document was notarized. According to Boatwright, when he andRobert Brown arrived at the Oak Lawn Kinko’s, he went to makesome photocopies while Robert Brown greeted an employee he knewas “Gus.” When Boatwright approached Gus and Robert Brown at thecounter, the employee asked for Boatwright’s driver’s license.

2Albear’s seal, which appears on both the assignment of mortgage and therelease deed, lists his name as simply “Gustavo Albear.”

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Boatwright provided his license, and Gus notarized the release deedbearing Boatwright’s signature. Boatwright did not remember whetherhe signed the deed in Gus’s presence. Boatwright claimed to knownothing about how the mortgage assignment bearing Vancura’s forgedsignature was notarized.

At the trial, 10 years after the occurrence, Gustavo Albear, theKinko’s employee whose notary seal appears on the notarizations,testified that he did not remember specifically notarizing theassignment of mortgage or the release deed. When presented withboth documents, he acknowledged that the notary stamp on eachappeared to be his. Similarly, he testified that the signature on therelease deed appeared to be his. However, he was “pretty certain” thatthe notary signature on the forged assignment of mortgage was nothis. According to Albear, the two signatures appeared slightlydifferent from one another, and the assignment of mortgage signatureread “Gustavo David Albear” rather than “Gustavo D. Albear.” Albearexplained that he never signed anything with his middle name “forsome private reasons and religious reasons,” and that he had not usedhis middle name for an official purpose since he had become a UnitedStates citizen.2 Albear also testified that he had kept a logbook of allnotarizations he performed while working for Kinko’s, but thatlogbook could not be located for trial.

The closing occurred as planned, and when Vancura discoveredthe fraudulent mortgage assignment, he brought suit againstBoatwright, Glenn Brown, Katris, Albear, and Kinko’s. Glenn Brownand Katris also filed claims against Albear and Kinko’s. Only theclaims against Kinko’s are at issue in this appeal, and we thereforereview only the facts that are relevant to those claims.

Each of the three complaints against Kinko’s included a claimbased on common law theories of negligent supervision and negligenttraining, as well as a claim based on section 7–102 of the IllinoisNotary Public Act (5 ILCS 312/7–102 (West 1996)). Section 7–102provides:

“§7–102. Liability of Employer of Notary. The employerof a notary public is also liable to the persons involved for all

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damages caused by the notary’s official misconduct, if:

(a) the notary public was acting within the scope of thenotary’s employment at the time the notary engaged in theofficial misconduct; and

(b) the employer consented to the notary public’s officialmisconduct.” 5 ILCS 312/7–102 (West 1996).

“Official misconduct” under the Act is defined in section 7–104:

“The term ‘official misconduct’ generally means thewrongful exercise of a power or the wrongful performance ofa duty and is fully defined in Section 33–3 of the CriminalCode of 1961. The term ‘wrongful’ as used in the definition ofofficial misconduct means unauthorized, unlawful, abusive,negligent, reckless, or injurious.” 5 ILCS 312/7–104 (West1996).

Albear, who settled with Vancura before trial, testified that hebecame a notary at the request of Kinko’s in 1995, and participated ina required notary training course taught by a Kinko’s trainer.According to Albear, he learned at the training that there were threetypes of notarizations. First, “notarization through identification, acard or some type of written identification”; second, notarization ofa person known personally to Albear; and third, notarization based onan identification made by someone known personally to Albear.However, Albear testified that he always requested identification to“feel comfortable with a situation.” According to Albear, Kinko’staught him to ask for identification with a signature, but theidentification need not include a photograph. When asked how anidentification with a signature but no photo would enable him to verifythat the bearer of the identifying document was the person he claimedto be, Albear responded, “Well, that is not my job. My job is to verifyyour signature based on what I have in front of me.”

With respect to the training program itself, Albear testified that itwas a two- or three-day program that was “more marketing thananything else.” The instructor taught Albear to keep a logbook of hisnotarizations, and Albear did. He was also instructed to keep hisnotary seal and logbook safe, so Albear arranged to keep his materialsin the manager’s desk at the Oak Lawn Kinko’s when they were notin use. Neither the office nor the drawer in which he kept his seal andlogbook were consistently locked, but if either or both of them were

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locked, Albear would have to ask a manager to open them if anotarization was requested. Although the layout of the Oak LawnKinko’s was “[v]ery open,” the manager’s office was the most securepart of the store. Albear also testified that when he transferred to adifferent Kinko’s store in early 1996, he turned his seal and spiral-bound logbook over to the Oak Lawn manager.

Daniel Behnke, who was the manager of the Oak Lawn Kinko’sin 1995, denied taking possession of Albear’s notary seal or logbook.He testified that the Oak Lawn store employed two or three notariesat the time, including Albear, and that he did not review any notaryacts. He also stated that the store never received any complaints orallegations of improper notarizations, nor was he ever asked toapprove any notarizations. He agreed with Albear that the manager’sdesk was the most secure part of the Oak Lawn facility.

Al Yamnitz testified that he was a regional training manager atKinko’s in 1995, and he developed and conducted Albear’s notarytraining. Prior to working at Kinko’s, Yamnitz had been a trainer ata number of restaurants and retail stores, including Walgreens and T.J.Maxx. Although he was not a notary, Yamnitz was asked to developa notary training program for employees who elected to become partof Kinko’s new notary service in mid-1995. He reviewed the Act andobtained a copy of the Notary Public Handbook from the IllinoisSecretary of State’s office. Using these materials, Yamnitz created ateaching manual for the notary class and a student workbook. He alsopurchased three videotapes from the National Notary Association foruse in the training. When he had completed his development of thetraining program, he sent a copy of his materials to Kinko’s corporateoffices, but he did not hear back from them. After he had developedthe class, Yamnitz also put in a request to attend a “traveling shelf”notary training program at a cost of $300 or $400, but his request wasdenied.

Yamnitz told the court that the classes he taught consisted oflectures, the videos, and class discussions about “different aspects ofnotarial acts.” He “typically” taught students to identify people on thebasis of “a state ID, driver’s license, or some type of ID that had apicture, a description, and the signature on it.” Although he testifiedthat he taught students to look for a photo, he acknowledged that healso taught them that only one form of identification was required.Yamnitz also recommended that students keep logbooks of their

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notarial acts. With respect to the security of the logbook and seal,Yamnitz stated that he told students, “[I]f they were in the store, theyshould keep the stamp on their person ***. When they left thebuilding, if they didn’t have a place they could lock it up, take it withthem because they were the ones that [were] responsible for what wasin the book.” On cross-examination, Yamnitz also acknowledged thatthe class was not graded, and no testing was performed to ensurecomprehension.

Vancura also presented the testimony of Michael Closen, anexpert on notary law and practice. Closen, a licensed Illinois attorney,retired from John Marshall Law School after 27 years. He is a memberof the National Notary Association, and he served on the draftingcommittees for the Notary Code of Professional Responsibility and theModel Notary Act of 2002. Closen has written extensively on thesubject of notary law and practice, and he served as an Illinois notaryfrom approximately 1990 until he left the state in 2003.

Closen testified that, in his expert opinion, the standard of care fornotaries is “reasonableness,” and Kinko’s training of Albear wasinadequate in a number of ways. According to Closen, there were onlytwo prevailing views about the proper way to identify a documentsigner in 1995. In one view, only one form of identification wasrequired, but that identification needed to include at least a signatureand a photograph. In the other view, adopted by the Model NotaryAct of 1984, two or more forms of identification were required, atleast one of which needed to include a signature, photograph, andphysical description. Closen opined that Illinois had adopted the latterview, pointing to the version of the Illinois Notary Public Act in forcein 1995. The relevant portion of that statute stated:

“A notary public has satisfactory evidence that a person isthe person whose true signature is on a document if thatperson:

(1) is personally known to the notary;

(2) is identified upon the oath or affirmation of acredible witness personally known to the notary; or

(3) is identified on the basis of identificationdocuments.” (Emphasis added.) 5 ILCS 312/6–102(d)(West 1996).

According to Closen, the plural “documents” means that more than

3Although Kinko’s twice unsuccessfully moved to exclude Closen’stestimony about the proper interpretation of the statute, it has not pursuedthis issue on appeal.

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one form of identifying document was required.3

Based on his review of the depositions of Albear and Yamnitz anda summary of Albear’s trial testimony, Closen concluded that Yamnitzwas “unqualified and unfamiliar with sound notary practice.” He notedthat Yamnitz apparently emphasized the need for just one form ofidentification with a signature, but “more importantly” he foundAlbear’s focus on the signature alone troubling. Based on Albear’stestimony, Closen speculated that Albear would not have paid anyattention to a photo or physical description even if one had beenprovided.

Closen also found that the training and supervision of Albear wasdeficient with respect to the format and contents of the notarylogbook Albear kept. According to Closen, a spiral-bound notebookwas an unacceptable format for a notary logbook, because pagescould easily be removed. He testified that the information Albearrecorded about each notarization was also “woefully incomplete,” inthat Albear did not require signers to sign the logbook. In addition,Closen noted that the logbook should be kept in a secure location, andthe manager’s office in which Albear kept his logbook was notsufficiently secure. Closen also opined that Albear had not beenproperly trained on the disposal of his seal and logbook. For support,Closen noted that Albear had simply turned the notary seal over to hismanager when he left the Oak Lawn store, rather than defacing ordestroying the seal.

After seven days of trial proceedings held between September2005 and January 2006, the court found defendants jointly andseverally liable to Vancura for the damages. Relevant to this appeal,the court found Kinko’s liable to Vancura, Glenn Brown, and Katrisunder both the statutory and common law claims.

The appellate court reversed in part and affirmed in part, with onejustice dissenting. 391 Ill. App. 3d 350. With respect to the statutoryclaim, the majority concluded that “the material facts regardingAlbear’s conduct are undisputed.” 391 Ill. App. 3d at 365. It notedKinko’s acknowledgment that either Albear notarized Vancura’s

4The appellate court opinion cites Rule 341(e)(7), the provisions of whichbecame Rule 341(h)(7) in 2006. We refer to the current version of the rule.

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signature despite Vancura’s absence, or Albear knowingly orunknowingly allowed someone to apply his notary stamp. Under eitherscenario, the court reasoned, Albear was guilty of negligent orreckless conduct sufficient to constitute “official misconduct” undersection 7–104 of the Act. However, the court found that Kinko’s didnot “consent” to Albear’s official misconduct, and therefore the courtrejected the trial court’s determination that Kinko’s was liable underthe Act. 391 Ill. App. 3d at 379-80.

With respect to the common law claim, the majority initially foundthat Kinko’s had waived review by failing to cite relevant authority,in violation of Supreme Court Rule 341(h)(7)4 (210 Ill. 2d R.341(h)(7)). 391 Ill. App. 3d at 368. Nonetheless, the majorityconducted an extensive review of the common law theories,concluding that “the negligence judgment is consistent with themanifest weight of the evidence,” and that it would have affirmed evenif Kinko’s had complied with the rule. 391 Ill. App. 3d at 369.

The majority agreed with Kinko’s that Kinko’s was under nostatutory obligation to train its notary employees, but noted thatKinko’s chose to provide training and then showed “no concern” forwhether the training was sufficient. 391 Ill. App. 3d at 369. Accordingto the court, the evidence showed that Yamnitz did not effectivelytrain Albear in sound notary practices; although Yamnitz testified thatthe training he developed was consistent with the Act and the NotaryPublic Handbook, the court found that Albear’s clear misapprehensionof his duties conflicted with Yamnitz’s claims. The court noted thatAlbear asked customers to “swear or affirm” that they were who theyclaimed to be, although the Act includes no such identificationprocess. The court also addressed Albear’s testimony that aphotographic identification was not required, opining withoutreference: “In this day and age, an adequate identification documentunder the circumstances is one that includes at least a photograph andsignature.” 391 Ill. App. 3d at 371. The majority pointed out that itsopinion on this matter was consistent with the Model Notary Act of1984. It also referred to the comments to the 2002 Model Notary Act,which it called “particularly pertinent” to this case. The majority

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expressly declined to comment on whether, as Professor Closentestified, two forms of identification were required by the Act in 1995.Instead, it found that Albear’s testimony established a practice ofaccepting an oath or affirmation and “signature exemplar,” and sucha practice would be insufficient under the Act regardless of whetherthe law required one or two forms of identification. 391 Ill. App. 3dat 373.

With respect to Kinko’s supervision of Albear, the majority foundthat a reasonably careful employer would have:

“ensured that supervisory personnel at the Oak Lawn storeunderstood Albear’s responsibilities such that they never tookpossession of his seal at the 24-hour store, that they provideda secure storage place that only Albear could access, and thatthey refused possession of the seal on a permanent basis whenAlbear transferred to a Peoria store.” 391 Ill. App. 3d at 374.

Thus, the court opined, Kinko’s had no regard for whether Albearunderstood his responsibilities and adhered to them. According to themajority, “[t]his is negligence.” 391 Ill. App. 3d at 374.

The dissenting justice would have found that Kinko’s was notliable on either the statutory claim or the common law negligenttraining and supervision claim. Although the dissent agreed with themajority that the common law standard of care was one of“reasonableness,” the dissent opined that the Act establishes what isreasonable. 391 Ill. App. 3d at 385 (O’Malley, P.J., dissenting). Thedissent criticized the majority and the trial court for relying on theModel Notary Act, noting that the Illinois legislature has declined toadopt the Model Notary Act into either current Illinois notary law orthe Act as in effect in 1995. The dissent opined that the scope ofKinko’s duties can be defined only by the Act or its own voluntaryundertakings.

The dissent also found that Closen’s interpretation of the Act wasincorrect. According to the dissent, the phrase “identificationdocuments” in section 6–102 of the Act means only that“identification can be ascertained from a variety of differentdocuments that various individuals may present, such as a driver’slicense, state identification, immigration documents, passport, etc.”391 Ill. App. 3d at 386. Thus, the dissent concluded, Yamnitz’stestimony that he trained Albear to require one form of photo

5The Act was substantially amended in 2008. Because the operative factsof this case occurred in 1995 and 1996, we refer to and cite only the versionof the Act in effect at that time.

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identification demonstrates that Kinko’s properly trained Albear.

ANALYSIS

Illinois Notary Public Act

Several provisions of the Illinois Notary Public Act are relevant.5

Although we have already made some references to those provisions,we now reproduce them in full.

Section 6–102 establishes the function and duty of a notary public.

“§ 6–102. Notarial Acts. (a) In taking an acknowledgment,the notary public must determine, either from personalknowledge or from satisfactory evidence, that the personappearing before the notary and making the acknowledgmentis the person whose true signature is on the instrument.

(b) In taking a verification upon oath or affirmation, thenotary public must determine, either from personal knowledgeor from satisfactory evidence, that the person appearing beforethe notary and making the verification is the person whosetrue signature is on the statement verified.

(c) In witnessing or attesting a signature, the notary publicmust determine, either from personal knowledge or fromsatisfactory evidence, that the signature is that of the personappearing before the notary and named therein.

(d) A notary public has satisfactory evidence that a personis the person whose true signature is on a document if thatperson:

(1) is personally known to the notary;

(2) is identified upon the oath or affirmation of acredible witness personally known to the notary; or

(3) is identified on the basis of identificationdocuments.” 5 ILCS 312/6–102 (West 1996).

Section 7–101 establishes the liability of the notary: “Liability ofNotary and Surety. A notary public and the surety on the notary’s

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bond are liable to the persons involved for all damages caused by thenotary’s official misconduct.” 5 ILCS 312/7–101 (West 1996).

The vicarious liability of the notary public’s employer is set forthin section 7–102:

“§7–102. Liability of Employer of Notary. The employerof a notary public is also liable to the persons involved for alldamages caused by the notary’s official misconduct, if:

(a) the notary public was acting within the scope of thenotary’s employment at the time the notary engaged in theofficial misconduct; and

(b) the employer consented to the notary public’s officialmisconduct.” 5 ILCS 312/7–102 (West 1996).

Section 7–104 defines “official misconduct” as it appears in theabove-quoted portions of the Act:

“§7–104. Official Misconduct Defined. The term ‘officialmisconduct’ generally means the wrongful exercise of a poweror the wrongful performance of a duty and is fully defined inSection 33–3 of the Criminal Code of 1961. The term‘wrongful’ as used in the definition of official misconductmeans unauthorized, unlawful, abusive, negligent, reckless, orinjurious.” 5 ILCS 312/7–104 (West 1996).

Compliance with Supreme Court Rule 341

We first address the appellate court’s determination that Kinko’swaived review of the common law claim by failing to appropriatelysupport its argument. In reaching that determination, the court brieflyreviewed Kinko’s arguments. It noted that Kinko’s argued the trialcourt had erroneously expected Albear to be trained to a higherstandard than that set forth in the Act, supporting its argument withcases “indicating violation of a statute may be a basis for a tort claim.”As the court recognized, Kinko’s maintained that it could not be liablefor negligence in this case because its training was consistent with thestatute. With respect to the negligent-supervision claim, the courtopined that Kinko’s had cited authority “regarding an entirely differenttype of tort, negligent hiring and retention of an unfit employee,”referring to Kinko’s citation to Van Horne v. Muller, 185 Ill. 2d 299(1999).

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Supreme Court Rule 341(h) sets out the requirements forappellants’ briefs. The rule lists the sections of the brief that shall beincluded, as well as requirements for each section. With respect toarguments, the rule states that the briefs shall contain:

“Argument, which shall contain the contentions of theappellant and the reasons therefor, with citation of theauthorities and the pages of the record relied on. Evidenceshall not be copied at length, but reference shall be made tothe pages of the record on appeal or abstract, if any, whereevidence may be found. Citation of numerous authorities insupport of the same point is not favored. Points not argued arewaived and shall not be raised in the reply brief, in oralargument, or on petition for rehearing.” 210 Ill. 2d R.341(h)(7).

Consistent with the plain language of the rule, this court hasrepeatedly held that the failure to argue a point in the appellant’sopening brief results in forfeiture of the issue. See, e.g., ElementarySchool District 159 v. Schiller, 221 Ill. 2d 130, 143 n.2 (2006) (issueforfeited where it was raised for the first time at oral argument);Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 237 (2000) (affirmativedefense forfeited where it was not raised in brief). Both argument andcitation to relevant authority are required. An issue that is merelylisted or included in a vague allegation of error is not “argued” andwill not satisfy the requirements of the rule. See, e.g., People v.Phillips, 215 Ill. 2d 554, 565 (2005) (issue forfeited where defendantraised it but failed to make any argument or citation to relevantauthority); People v. Franklin, 167 Ill. 2d 1, 20 (1995) (issuesforfeited where defendant provided no argument to support claims oferror); People v. Guest, 166 Ill. 2d 381, 413-14 (1995) (one sentencein brief indicating that defendant “incorporated” all claims made inearlier proceedings not sufficient to satisfy Rule 341, resulting inforfeiture of claims). Moreover, an argument that is developed beyondmere list or vague allegation may be insufficient if it does not includecitations to authority. See, e.g., Dillon v. Evanston Hospital, 199 Ill.2d 483, 493 (2002) (three-paragraph argument insufficient to satisfyRule 341 where argument did not include any citations to authority).

The appellate court has further held that even where the briefincludes both argument and citation, a party may nonetheless forfeitreview if the cited authority is irrelevant and does not represent a

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sincere attempt to comply with the rule. See, e.g., Britt v. FederalLand Bank Ass’n of St. Louis, 153 Ill. App. 3d 605, 608 (1987) (“Wedo not view the inclusion of citations to irrelevant authority scatteredthroughout [the plaintiffs’] brief to constitute even an attempt tocomply with the rule”). In the present case, with respect to Kinko’sargument on the negligence claims, the court found that “[t]he citedcase law has no bearing on the judge’s finding of negligence and doesnot warrant further discussion.” Thus, the court concluded, Kinko’sforfeited consideration of the argument. 391 Ill. App. 3d at 368.

Kinko’s brief to the appellate court contained more than eightpages of argument on the common law claim and citations to 17 cases,along with statutes and secondary authority. Kinko’s argued there, asit does here, that the Act governs an employer’s duty to train andsupervise notary employees, citing cases in which this court and othershave discussed the role of statutes in negligence cases. See, e.g., FirstSpringfield Bank & Trust v. Galman, 188 Ill. 2d 252 (1999); Bier v.Leanna Lakeside Property Ass’n, 305 Ill. App. 3d 45 (1999). As theappellate court noted, most of Kinko’s citations are not directly onpoint. Instead, the cited cases arise from violations of statutes, andthey generally discuss the use of statutory violations as evidence ofnegligence. See, e.g., Calloway v. Kinkelaar, 168 Ill. 2d 312, 319(1995) (“If the plaintiff is a member of the protected class and his orher injury is of the type the statute was intended to protect against, theplaintiff may recover upon establishing that the defendant’s violationof the ordinance or statute proximately caused plaintiff’s injury”).

With respect to the negligent-supervision claim specifically,Kinko’s relied on Van Horne, as noted above. In Van Horne, theplaintiff alleged that the defendant radio station was vicariously liableand directly liable for damages caused when a disc jockey madedefamatory statements about the plaintiff on air. Van Horne, 185 Ill.2d at 303-04. The plaintiff alleged direct liability against the station fordefamation based on its publication of the defamatory statements, butthe plaintiff also alleged direct liability based on the station’s actionsas an employer. Under the heading “Negligent and Reckless Hiring,Supervision, and Retention,” this court explained that “[c]ounts Vthrough VIII [of the plaintiff’s complaint] purport to allege claims fornegligent and reckless hiring and negligent and reckless supervision.”Van Horne, 185 Ill. 2d at 308-09. Specifically, the court noted that theplaintiff alleged “that the defendants had a duty to supervise their disc

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jockeys,” along with allegations of negligent hiring and retention. VanHorne, 185 Ill. 2d at 310.

In discussion, however, this court focused solely on negligenthiring and retention; the plaintiff’s claim of negligent supervision wasnot separately discussed. Noting that “Illinois law recognizes a causeof action against an employer for negligently hiring, or retaining in itsemployment, an employee it knew, or should have known, was unfitfor the job so as to create a danger of harm to third persons,” the VanHorne court went on to explain that liability “in this context” arisesonly when the employee has a “particular unfitness” that gives rise toa “particular danger of harm to third parties.” (Emphasis omitted.)Van Horne, 185 Ill. 2d at 310, 313. It is this language that Kinko’scited in its brief to the appellate court. While the cited language maybe unpersuasive on the issues in this case, we disagree with theappellate court’s conclusion that Van Horne has “no bearing.”

Thus, although we acknowledge that citation to completelyirrelevant authority may, in some cases, be so inadequate as to runafoul of Rule 341(h)(7), the case at bar is not such a case. In our view,citation to cases that are merely unpersuasive or inapposite, as theappellate court apparently found Kinko’s cited authorities to be, is nottantamount to failing to cite relevant authority altogether. Wetherefore find that Kinko’s has not forfeited review of the commonlaw negligence claim, and we will review it on its merits.

We note that although Rule 341(h)(7) applies on its face only toappellants’ briefs before the appellate court, it also applies toappellees’ briefs through Rule 341(i) and to briefs before this courtthrough Rule 315 (210 Ill. 2d R. 315). Thus, while Rule 318(a)provides that an appellee may seek and obtain any relief warranted bythe record on appeal without filing a separate appeal or petition forleave to appeal (155 Ill. 2d R. 318(a)), Rule 341 nonetheless requiresthat the appellee provide adequate argument and citation to authorityfor any such relief.

In his appellee’s brief to this court, plaintiff Vancura includes asection entitled “Additional Issue Presented for Review,” which reads,in total, “Whether the First District properly vacated the trial court’sruling that Kinko’s impliedly consented to its employee’s officialmisconduct in notarizing the forged Assignment of Mortgage.”Similarly, plaintiff’s “Conclusion” section includes the sentence, “The

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First District should not have vacated the trial court’s finding thatKinko’s was liable for Albear’s official misconduct.” Aside from thesetwo sentences, however, plaintiff makes no reference to the statutoryliability claim and devotes no portion of his argument to supportingthat claim. In contrast to the sections of Kinko’s brief discussedabove, plaintiff’s brief contains no argument and no citations toauthority on this point. As discussed above, a claim of error that ismerely listed but not “argued” will not satisfy the requirements of Rule341. See, e.g., Phillips, 215 Ill. 2d at 565. We find that plaintiff hasfailed to comply with our rules, and he has therefore forfeited reviewof the statutory liability count. Consequently, with respect to thestatutory claim, we affirm the appellate court and reverse the trialcourt’s judgment against Kinko’s.

Standard of Review

Plaintiff’s remaining claim against Kinko’s alleges that Kinko’s“negligently trained and supervised and failed to properly control itsemployee, Albear, resulting in the improper notarization of theAssignment of Mortgage.” To succeed in a claim for negligence, aplaintiff must establish the existence of a duty, a breach of the duty,and an injury to the plaintiff that was proximately caused by thebreach. Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 228(2000). Whether a duty exists in a particular case is a question of law,which we review de novo. Happel v. Wal-Mart Stores, Inc., 199 Ill.2d 179, 186 (2002); Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280(2007). Breach of duty and causation are generally findings of fact,which we will reject only when they are against the manifest weight ofthe evidence. Jones v. Chicago & Northwestern Transportation Co.,206 Ill. App. 3d 136, 139 (1990); Corral v. Mervis Industries, Inc.,217 Ill. 2d 144, 151-52 (2005). A finding is against the manifestweight of the evidence when an opposite conclusion is apparent orwhen the findings appear to be unreasonable, arbitrary, or not basedon the evidence. Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002).

Although plaintiff formulated his common law claim as a singleclaim of negligent supervision and negligent training, we note that itin fact raises two distinct theories of negligence on the part ofKinko’s: liability for negligent supervision and liability for negligenttraining. We evaluate each in turn.

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Negligent Supervision

The central question we must resolve is whether, in light ofgeneral common law principles and the statutory scheme establishedby the Act, Kinko’s can be liable for negligent supervision of Albear.Kinko’s, as appellant, begins its argument by conceding that thestatutory remedy provided in section 7–102 of the Act does notpreempt a common law cause of action for negligent supervision.Instead, Kinko’s argues, the Act fixes the measure of the common lawduty owed by employers of notaries. Thus, according to Kinko’s, anemployer cannot be liable on the basis of a duty found outside the Act.Plaintiff responds that although the Act establishes and fixes the dutiesof a notary public, the statute does not “preempt” a common lawcause of action based on the employer’s own negligence. Thus,plaintiff maintains, he may assert a common law claim that isunaffected by the statute. Plaintiff relies primarily on generalassertions of negligence on the part of Kinko’s and the testimony ofProfessor Closen, described above.

Because plaintiff asserts a common law claim, we note that atcommon law an employee’s malfeasance may generally create liabilityfor his or her employer in two ways: vicarious liability for the acts ofthe employee, or direct liability for the employer’s own acts. Underthe theory of vicarious liability, or respondeat superior, an employercan be liable for the torts of an employee that are committed withinthe scope of the employment. Wright v. City of Danville, 174 Ill. 2d391, 405 (1996); Pyne v. Witmer, 129 Ill. 2d 351, 359 (1989). Theemployee’s liability is imputed to the employer; that is, where theemployee is acting within the scope of the employment, the plaintiffgenerally need not establish any malfeasance on the part of theemployer. See Darner v. Colby, 375 Ill. 558, 560 (1941).

In contrast, a claim of direct negligence, such as the plaintiff’sclaim in this case, alleges that the employer was itself negligent. As inany claim for negligence, a plaintiff must establish the existence of aduty, a breach of the duty, and an injury to the plaintiff that wasproximately caused by the breach. Hills, 195 Ill. 2d at 228. In directnegligence, the plaintiff must prove that the employer’s breach–notsimply the employee’s malfeasance–was a proximate cause of theplaintiff’s injury. In a claim of negligent supervision such as the oneplaintiff has pleaded in this case, where there is no assertion of aparticular duty to supervise, the duty upon which plaintiff relies must

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be based on the general relationship between employer and employee.The scope of that duty in this case, however, is the heart of thedispute between the parties.

In support of its argument that the Act alone fixes the scope of theemployer’s legal duty, Kinko’s cites several cases in which Illinoiscourts have discussed the relationship between statutes designed toprotect life or property and negligence actions. See Noyola v. Boardof Education of the City of Chicago, 179 Ill. 2d 121, 130 (1997);Dunn v. Baltimore & Ohio R.R. Co., 127 Ill. 2d 350, 367 (1989);Price v. Hickory Point Bank & Trust, 362 Ill. App. 3d 1211, 1216-17(2006). Kinko’s relies primarily on Noyola, citing that case’s assertionthat “statutes and ordinances designed to protect human life orproperty establish the standard of conduct required of a reasonableperson. [Citation.] In other words, they fix the measure of legal duty.”Noyola, 179 Ill. 2d at 130. According to Kinko’s, the imposition of astandard of care that is higher than that prescribed by the statuteviolates the principle expressed in Noyola and similar cases. Wedisagree.

In Noyola, this court considered whether section18–8(A)(5)(i)(1)(a) of the School Code, which set forth the mannerin which certain school funds could be expended, created an impliedcause of action against the defendant school board for failing tocomply with the statute. Noyola, 179 Ill. 2d at 124-28. The courtobserved that in the state courts of this country,

“judges have come to identify the implied statutory action withmodern tort actions based on the law of the reasonable person.Their view is that conduct violating legislated rules isnegligent, and if a statutory violation proximately causes aninjury of the kind the legislature had in mind when it enactedthe statute, the offending party is civilly liable for that injury.”Noyola, 179 Ill. 2d at 129.

“In Illinois,” the court noted, “this approach is reflected in those casesholding that the violation of a statute or ordinance designed to protecthuman life or property is prima facie evidence of negligence.” Noyola,179 Ill. 2d at 129. Thus, although Noyola went on to explain that“statutes and ordinances designed to protect human life or propertyestablish the standard of conduct required of a reasonable person,” thecourt meant only what it asserted in the remainder of the quoted

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paragraph: “Where a defendant violates one of these statutes orordinances, a plaintiff who belongs to the class intended to beprotected by that statute or ordinance and whose injury is of the typethe statute or ordinance was intended to protect against may recoverupon establishing that the defendant’s violation proximately causedplaintiff’s injury.” (Emphasis added.) Noyola, 179 Ill. 2d at 130.Kinko’s reliance on Noyola for the inverse proposition–that is, thatcompliance with a statute precludes a finding of negligence–ismisplaced. See, e.g., Indianapolis & St. Louis R.R. Co. v. Stables, 62Ill. 313, 317-18 (1872) (“Because the statute has imposed specifiedduties, it does not follow that the employees of [railroads] are releasedfrom the dictates of humanity or the common legal duty of regardingthe rights of others”); Christou v. Arlington Park-Washington ParkRace Tracks Corp., 104 Ill. App. 3d 257, 261 (1982) (“Compliancewith statutes and safety regulations is not conclusive evidence on thequestion of negligence”); Belvidere National Bank & Trust Co. v.Leisher, 83 Ill. App. 3d 179, 186 (1980) (“Although violation ofstatutes, ordinances or codes is conclusive to show defendant’s breachof duty (leaving only the question of proximate cause), compliancewith codes and safety regulations is not conclusive evidence on thequestion of negligence”).

Clearly, then, the mere existence of a statute establishing legalduties for employers of notaries does not foreclose the possibility ofa common law negligence action based on an extra-statutory duty ofcare. However, the legislature may intentionally foreclose or limit suchan action through the statute by altering the common law. “A statutewill be construed as changing the common law only to the extent theterms thereof warrant, or as necessarily implied from what isexpressed.” Cedar Park Cemetery Ass’n v. Cooper, 408 Ill. 79, 82(1951). To determine whether the legislature has modified thecommon law liability of employers of notaries, we first examine thestatute.

Section 7–102 establishes a cause of action against the employerof a notary for an employee’s official misconduct where: (1) thenotary public was acting within the scope of his employment, and (2)the employer consented to the notary’s official misconduct. Thesection is titled “Liability of Employer of Notary.” 5 ILCS 312/7–102(West 1996). With respect to the second prong of the statute, theappellate court concluded that for an employer to be found to have

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“consented” to a notary’s official misconduct, there must be ashowing that the employer had some knowledge of the notary’smisconduct. We agree.

Where the language of a statute is clear, it must be given its plainand ordinary meaning. King v. First Capital Financial Services Corp.,215 Ill. 2d 1, 26 (2005). Here, the statute provides that an employermay be found liable for the acts of a notary only where “the employerconsented to the notary public’s official misconduct.” 5 ILCS312/7–102(b) (West 1996). The statute does not define “consent,” butBlack’s Law Dictionary defines the term in relevant part as“[a]greement, approval, or permission as to some act or purpose.”Black’s Law Dictionary 323 (8th ed. 2009). Whatever the proofrequired to establish “consent” on the part of an employer, it is clearthat an employer cannot “[a]gree[ ], approv[e], or [grant] permission”for an act or purpose of which the employer has no knowledge.

The legislature therefore intended for the employer of a notary tobe liable where the employer has some minimum threshold ofknowledge of the notary public’s conduct. This represents a clearconflict with common law claims of either respondeat superior ordirect negligence. A common law vicarious liability claim typicallyrequires no proof of the employer’s knowledge, consent, orculpability. See Alms v. Baum, 343 Ill. App. 3d 67, 74 (2003) (Anaction for respondeat superior, “is brought against a master based onallegedly negligent acts of the servant[,] and no independent wrong ischarged on behalf of the master”). Similarly, in a direct liability claim,the plaintiff may allege that the employer merely should have knownof the employee’s malfeasance. We presume that the legislature wasfamiliar with the common law requirements. See People v. Hickman,163 Ill. 2d 250, 262 (1994) (“it must be presumed that the legislatureacted with knowledge of the prevailing case law”). We therefore holdthat section 7–102 was intended to modify common law liability foremployers of notary publics. Plaintiffs who raise a common law claimagainst the employer of a notary public must show, at a minimum, thatthe employer had some knowledge of the notary public’s misconduct.In other words, the minimum duty of an employer of notaries atcommon law extends only as far as the duty established by section7–102 of the Act; the employer has a duty to not consent to theofficial misconduct of its employees.

Our conclusion today is consistent with the Act as a whole. The

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Illinois Notary Public Act was enacted “to simplify, clarify, andmodernize the law governing notaries public” and to “promote, serve,and protect the public interest.” 5 ILCS 312/1–102(b)(1) (West1996). The office of notary public, however, extends well intocommon law history. Black’s Law Dictionary (9th ed. 2009), citing J.Proffatt, The Office and Duties of Notaries Public §1, at 1 (2d ed.1892) (“A notary public is an officer long known to the civil law”).Under the Act and common law, the notary public “serves as a publicwitness of facts transacted by private parties.” Black’s Law Dictionary(9th ed. 2009), quoting S. Litvinoff, 5 Louisiana Civil Law Treatise:The Law of Obligations 296-97 (2d ed. 2001). Thus, the notary publicgives his or her personal seal and signature when completing a notarialact, and in so doing he or she assumes personal liability for theaccuracy of his or her notarization. 5 ILCS 312/3–101, 3–102 (West1996) (setting forth the requirements for the notary’s official seal andsignature); 5 ILCS 312/6–105 (West 1996) (setting forth therequirements for certificates of notarial acts); 5 ILCS 312/7–101(West 1996) (“A notary public and the surety on the notary’s bond areliable to the persons involved for all damages caused by the notary’sofficial misconduct”). In this way, the Act codifies a long tradition ofimposing burdens and liabilities on a notary public that are personal tothe notary, rather than shared with his or her employer. Thus, underthe Act, when a notary public wrongfully or negligently exercises thepowers of the office, it is the notary alone who becomes liable. Undersection 7–102, the employer is liable only if the employer “consentedto” the misconduct of the notary; that is, if the employer committedsome malfeasance of its own.

Applying these holdings to the present case, plaintiff does notargue that Kinko’s had any knowledge of Albear’s misconduct, nordid the evidence at trial reveal any such knowledge. On the contrary,the evidence established that Kinko’s never received any complaintsabout Albear’s conduct as a notary. Plaintiff has claimed only ageneral negligence in failing to discover defects in Albear’sperformance. Even if we assume that such allegations establish a causeof action for negligent supervision of an employee generally, section7–102 makes clear the legislature’s intent to require some knowledgeon the part of the employer as a prerequisite to imposing liability.Therefore, the judgment of the circuit court imposing liability againstKinko’s for negligent supervision must be reversed.

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Negligent Training

Plaintiff also alleges that Kinko’s was negligent in its training ofAlbear. Initially, we note that plaintiff has not argued that Kinko’sbreached a generalized duty to provide training. Instead, plaintiff hasalleged that Kinko’s was negligent because the training Kinko’s didprovide was insufficient or defective in several enumerated ways. Inother words, although plaintiff acknowledges that Kinko’s providedtraining, it argues that Kinko’s did so negligently. Kinko’s respondsthat its liability for training should be limited in light of the voluntaryundertaking doctrine, relying on Frye v. Medicare-Glaser Corp., 153Ill. 2d 26 (1992).

In Frye, this court addressed the question of whether a pharmacistwho was under no duty to attach warning stickers to dispensedmedication could be liable for negligence when she undertook toattach stickers. Frye, 153 Ill. 2d at 28-29. The plaintiff alleged that thepharmacist was negligent because she attached a sticker indicating thatthe medication may cause drowsiness, but she did not attach a stickerindicating that the medication should not be taken with alcohol,although she knew that drinking alcohol with the medication wasdangerous. Frye, 153 Ill. 2d at 29. This court noted that, although thepharmacist was initially under no duty to warn patients, “[p]ursuantto the voluntary undertaking theory of liability, one who gratuitouslyor for consideration renders services to another is subject to liabilityfor bodily harm caused to the other by one’s failure to exercise duecare or ‘ “such competence and skill as [one] possesses.” ’ ” Frye, 153Ill. 2d at 32, quoting Cross v. Wells Fargo Alarm Services, 82 Ill. 2d313, 317 (1980); Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86(1964). The court also applied section 323 of the Restatement(Second) of Torts, which provides:

Ҥ323. Negligent Performance of Undertaking to RenderServices

One who undertakes, gratuitously or for consideration, torender services to another which he should recognize asnecessary for the protection of the other’s person or things, issubject to liability to the other for physical harm resulting fromhis failure to exercise reasonable care to perform hisundertaking, if

(a) his failure to exercise such care increases the risk of

6Section 324A of the Restatement, which this court applied in Pippin v.Chicago Housing Authority, 78 Ill. 2d 204, 210-11 (1979), does provide forlimited liability to third persons based on the negligent performance of aservice or undertaking. However, like section 323, section 324A providesliability only where the provision of services results in “physical harm,” andKinko’s has not claimed that section 324A applies.

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such harm, or

(b) the harm is suffered because of the other’s relianceupon the undertaking.” Restatement (Second) of Torts §323(1965).

Kinko’s argues that, because it was under no duty to train itsnotary public employees, the training program it provided should besubject to the provisions of Frye and section 323. We disagree forseveral reasons. First, both the Restatement and Frye contemplate theliability of a service provider for the provision of services. In our view,the training of an employee cannot reasonably be viewed as theemployer’s “render[ing] services” to an employee. Moreover, section323 and our precedents explicitly limit themselves to situations inwhich the plaintiff has suffered “physical” or “bodily” harm. In thepresent case, plaintiff has suffered only economic damages. Finally,section 323 provides for liability of the service provider in favor of theperson to whom the services were negligently rendered. Here, even ifwe could view Kinko’s training as providing a service “gratuitously orfor consideration,” that service was clearly not provided to plaintiff.6

We therefore reject Kinko’s argument that plaintiff’s negligent trainingclaim is controlled by Frye or section 323 of the Restatement.

Instead, whether and to what extent Kinko’s had a duty to train itsnotary employees is best analyzed under principles generally applicableto negligence cases. As we have stated, whether a duty exists in aparticular case is a question of law, which we review de novo. Happelv. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186 (2002), quoting Wardv. K mart Corp., 136 Ill. 2d 132, 140 (1990); Forsythe v. Clark USA,Inc., 224 Ill. 2d 274, 280 (2007). “The touchstone of the duty analysisis to ask whether the plaintiff and defendant stood in such arelationship to one another that the law imposes on the defendant anobligation of reasonable conduct for the benefit of the plaintiff.”Krywin v. Chicago Transit Authority, No. 108888, slip op. at 8 (July

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15, 2010). The inquiry involves four factors: (1) the reasonableforeseeability of the injury; (2) the likelihood of the injury; (3) themagnitude of the burden of guarding against the injury; and (4) theconsequences of placing the burden on the defendant. Marshall v.Burger King Corp., 222 Ill. 2d 422, 436-37 (2006).

Initially, we note that the Act imposes no duty on the employer ofa notary public, except to refrain from consenting to the notary’smisconduct, as discussed above. Consistent with the Act’s overallemphasis on the personal responsibility of the notary, the notary’semployer is not charged with providing training, supplies, or any otherassistance to the notary. Indeed, the notary is not required to undergoany special training before or during his or her tenure as a notary.Moreover, plaintiff has not asked us to impose a general duty onemployers to train notary employees; as noted above, plaintiff hasalleged that Kinko’s training was negligent, not that Kinko’s breacheda general duty to train. We therefore express no opinion on whethera general duty to train exists, and we move instead to defining thescope of the employer’s duty once training has been provided.

Plaintiff urges us to adopt a duty would require employers to trainnotary employees in the best practices of notaries generally, asexpressed in Closen’s testimony. Closen based his testimony almostentirely on the Model Notary Acts of 1984 and 2002, opining thatKinko’s was negligent for failing to teach Albear about severalpractices required under the Model Acts but not mentioned in theIllinois Notary Public Act, including maintaining a logbook anddestroying the notary seal when he resigned his commission.However, the legislature of Illinois has never adopted the ModelNotary Act. Though it could have done so when it considered andrevised the Act in both 1986 and 2008, it did not enact any of theprovisions of the Model Acts into law. The stated purpose of the Actincludes “to simplify, clarify, and modernize the law governingnotaries public,” and the legislature may well have declined some ofthe more stringent requirements, including those in Closen’stestimony, in the interests of simplicity and clarity. 5 ILCS312/1–102(b) (West 1996). We note also that the Act’s reducedrequirements makes it easier to obtain a notarization, thus allowingmore of the public access to notary services. If we were to impose aduty on employers who provide training that required such training toteach proposed and model standards rather than the standards selected

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by our legislature and expressed in the Act, we would be underminingthe legislature’s careful determination of what should be required ofa notary. This we will not do.

Instead, we hold that where an employer provides training tonotary public employees, it has a duty to ensure that its trainingconforms to the provisions adopted by the Illinois legislature in theAct. This holding is consistent with the four factors we haveenumerated: (1) the reasonable foreseeability of the injury; (2) thelikelihood of the injury; (3) the magnitude of the burden of guardingagainst the injury; and (4) the consequences of placing the burden onthe defendant. First, where an employer trains notaries as part of aprogram to offer that notary’s services to its customers, it is highlyforeseeable that errors in the training program could lead to injuriessuch as those that occurred in this case. With respect to the secondfactor, where the training is incorrect or misleading, the likelihood ofa resultant injury is also relatively high. Notary publics are routinelyasked to witness instruments of great legal and financial significance,including loan documents, mortgages, and property transactions. Thepotential for fraud in such transactions is great, and parties to thetransactions rely on the proper performance of the notary. If theemployer provides incorrect or inadequate instruction, the potentialfor injury is present.

Furthermore, where the employer has already undertaken toprovide training, the burden imposed on the employer by requiringthat the training comply with the Act is minimal. The Act should bethe starting point of any training program for notary publics in Illinois,and we expect that any employer who seeks to train Illinois notarieswould attempt to conform the training to the Act. The last factor, theconsequences of placing this burden on employers of notaries, issimilarly not a concern. Although some employers may decide not toprovide training programs to their notary employees, notary publicsare not required to undergo any training under the Act.

Having determined that once Kinko’s undertook training, it had aduty to train its employees consistently with the Act, we next evaluateplaintiff’s claim that Kinko’s breached its duty. Breach of duty is afinding of fact, which we will reject only when it is against themanifest weight of the evidence. Corral v. Mervis Industries, Inc.,217 Ill. 2d 144, 151-52 (2005). A finding is against the manifestweight of the evidence when an opposite conclusion is apparent or

7The court also found that Kinko’s managers were not trained “in theresponsibilities of notaries.” Although this is framed in terms of training,plaintiff’s argument was that the lack of managerial training was a factor inthe negligent supervision of Albear. We therefore need not consider thatfinding here.

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when the findings appear to be unreasonable, arbitrary, or not basedon the evidence. Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002).

The trial court found that “Kinko’s failed to meet the necessarystandard of care.” However, it did not directly explain the factualfindings that led it to this conclusion. Instead, the court reviewedseveral portions of Professor Closen’s testimony, noting that thetestimony was “not impeached” and that Kinko’s offered no expertwitness of its own. The court specified several ways in which Closenopined that Kinko’s failed to meet the standard of care: the instructorof the notary training program, Yamnitz, “was not a notary at the timehe trained Albear and had never been a notary”; Yamnitz did not teachAlbear “that information regarding notarizations was to be kept in ajournal”; Yamnitz did not teach notaries about “steps to take to securethe notary seals and journal”; Yamnitz did not instruct Kinko’snotaries “on the need to preserve the notary seal and logbook”; andYamnitz did not properly train Albear about the procedures for“identifying document signers.”7

First, Kinko’s was not under a duty to provide notary trainingclasses taught exclusively by notaries. As we have stated, all that wasrequired of Kinko’s training program was that it teach notaries in amanner consistent with the Act. The credentials of the trainer aretherefore irrelevant, so long as he or she teaches the class inconformity with this duty.

With respect to the journal, we note that both Albear and Yamnitztestified that Albear was taught to maintain a journal of hisnotarizations, and Professor Closen referred to their testimony on thematter when he opined that the journal Albear kept was insufficient.Thus, the court’s finding that Kinko’s breached its duty by failing toteach Albear to keep a journal is against the manifest weight of theevidence. Even if it were not, however, the Act did not requirenotaries to maintain a journal or logbook of any kind in 1995.Therefore Kinko’s was under no duty to train Albear to keep one.

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Similarly, Kinko’s was under no duty to train its notary employeesto secure or preserve the logbook. With respect to the security andpreservation of the seal, the Act contains no requirements abouteither. Although section 7–107 of the Act makes it a misdemeanor tounlawfully possess a notary’s seal, the Act makes no command,specific or general, about the need to secure the seal. The Act alsocontains no requirement that the seal of a notary who resigns hiscommission be preserved or destroyed, as Closen suggested wasrequired.

Finally, the trial court also found that Kinko’s breached its dutybecause Yamnitz did not properly train Albear about “identifyingdocument signers.” Although Professor Closen found several faultswith Albear’s identification process, the court repeated just one suchdeficiency in its summary of Closen’s testimony: “Albear did notrequire photo identification from a document signer.”

Where the language of a statute is clear, it must be given its plainand ordinary meaning. King v. First Capital Financial Services Corp.,215 Ill. 2d 1, 26 (2005). In addition, the statute “should be read as awhole with all relevant parts considered.” Kraft, Inc. v. Edgar, 138 Ill.2d 178, 189 (1990). As we have already discussed, the notary publicgives his or her personal seal and signature when completing a notarialact, and in so doing he or she assumes personal liability for theaccuracy of his or her notarization. 5 ILCS 312/3–101, 3–102 (West1996) (setting forth the requirements for the notary’s official seal andsignature); 5 ILCS 312/6–105 (West 1996) (setting forth therequirements for certificates of notarial acts); 5 ILCS 312/7–101(West 1996) (“A notary public and the surety on the notary’s bond areliable to the persons involved for all damages caused by the notary’sofficial misconduct”).

It is in this context that the Act provides that a notary mustdetermine, “either from personal knowledge or satisfactory evidence,”that the person seeking notarization is the person whose true signatureis on the document. “Satisfactory evidence” is generally defined as“[e]vidence that is sufficient to satisfy an unprejudiced mind seekingthe truth.” Black’s Law Dictionary 639 (9th ed. 2009). Thus, underthe Act a notary public, whose inherent function is to serve as anunprejudiced witness, must satisfy himself of the truth of a signer’sidentity. The specific manner in which the notary should do so is leftto the notary, but as noted above, the Act establishes that a notary

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who does so in a negligent or reckless manner has committed “officialmisconduct” and is liable for any damages so caused. 5 ILCS312/7–101 (West 1996).

Closen cited the Model Notary Act of 1984 as establishing that aphotograph was required, and the appellate court accepted thisassertion, noting that Illinois courts have occasionally turned to suchpersuasive authority to define a statutory term. See Lohr v. Havens,377 Ill. App. 3d 233 (2007); Hasemann v. White, 177 Ill. 2d 414(1997). Thus, the appellate court indicated that reading in therequirements of the Model Notary Act was appropriate to help define“satisfactory evidence.” In our view, however, adopting the ModelNotary Act’s approach in this manner would not merely define“satisfactory evidence,” a term that is clear as it is used in the Act, butwould instead supply additional requirements not indicated by thestatute’s plain language. Where the Act did not specify that onlyphotographic identification could provide “satisfactory evidence” ofidentity, we decline to read in such a requirement.

We therefore find that under the 1991 Illinois Notary Public Act,Albear was not required to obtain photographic identification to have“satisfactory evidence” of a person’s identity, and the trial court’sreliance on Closen’s testimony to the contrary was incorrect as amatter of law. Instead, the Act required Albear to satisfy himself ofthe signer’s identity in a nonnegligent manner, either by personalknowledge or on the basis of “identification documents.” As a result,Kinko’s was not under a duty to teach its notary employees that aphoto identification was required; its duty was simply to teach notariesthat they could use identification documents to fulfill their statutoryobligation to receive “satisfactory evidence” of identity. The evidenceclearly establishes that they did so.

Yamnitz testified that he instructed his notary students to look fora photo, saying:

“Typically what I told my students or my participants was toask for a state ID, driver’s license, or some type of ID that hada picture, a description, and the signature on it so that theycould use a picture to verify, use a description to more or lessverify height and weight, and then be able to compare thesignature.”

Although Albear testified that he was taught a photograph was not

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required, he nonetheless corroborated Yamnitz’s claim that he wastaught to ask for identification. He testified, “I ask for identification.The majority of the times I ask people for a driver’s license. If at thattime there were driver’s licenses with photos on it, that is what Ireceived. If not, then I received other identification.” Albear’stestimony was corroborated by Boatwright, who testified that onDecember 20, 1995, when he approached the counter for thenotarization of his signature, Albear asked him to show a driver’slicense.

Albear also testified that Kinko’s trained him to make sure theperson whose signature he was notarizing was the person appearingbefore him. When asked “So you wouldn’t notarize a signature unlessthat person was physically in your presence?” Albear responded,“That is the way we were taught.” Moreover, although heacknowledged that the Act permitted him to personally identify asigner or to allow a person known to him to swear or affirm anidentification, he testified that he always asked for identificationbecause he felt more comfortable that way. He also testified that heasked all of his customers to “swear or affirm” that they were whothey claimed to be, because that was his “preference.”

Closen also expressed concerns about one answer Albear gave inwhich he stated that his job was merely to “verify [a] signature” basedon the identification provided, not to determine that the personproviding the identification was the person whose name appeared onthe identification. After positing a hypothetical situation in whichcounsel appeared before Albear and provided a social security card foridentification, counsel asked, “How would you know that I amactually Richard Hirsh?” and Albear responded, “Well, that is not myjob. My job is to verify your signature based on what I have in frontof me.” Closen criticized this answer, noting that Albear’s focus onsignature rather than identification was inappropriate. However, inAlbear’s next answer, he clarified his statement, saying, “Well, my jobwas to receive identification and verify based on the signature and thesignature on the identification that it was the person they said theywere.”

The evidence at trial therefore supports Kinko’s claim that itfulfilled its duty to ensure that its training program complied with therequirements of the Act. To the extent that the trial court found thatKinko’s breached its duty, we conclude that such a finding is against

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the manifest weight of the evidence. Thus, the trial court’s finding ofliability against Kinko’s for negligent training is reversed.

CONCLUSION

Based on the foregoing, we find that the trial court’sdetermination that Kinko’s was liable on the basis of negligentsupervision and training is against the manifest weight of the evidence.With respect to the statutory liability claim, we find that plaintiff hasforfeited review of the appellate court’s judgment. Thus, we affirm inpart and reverse in part the judgment of the appellate court, reversethe judgment of the circuit court against Kinko’s in its entirety andremand to the circuit court with directions to enter judgment in favorof Kinko’s on both counts.

Appellate court judgment affirmed in part

and reversed in part;

circuit court judgment reversed;

cause remanded with directions.

Employers of Notaries Must Train and Supervise or

Face Direct Liability for Failure to Prevent

Harm to Third Parties

Arthur F. Silbergeld, Esq. February 2009

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I. EXECUTIVE SUMMARY

In Vancura v. Katris,1 a recent decision by the Illinois Appellate Court that might have national implications for notary employers, Kinko’s was held directly liable for damages resulting from its notary employee’s notarization of a forged signature on a mortgage assignment. A case of first impression, the key issue in Vancura was whether Kinko’s was directly liable for failing to prevent the notary employee’s misconduct under a common law theory of negligence. The Court recognized the notarization of a forged signature caused by an incompetent and unsupervised notary as a foreseeable harm that a notary employer has a duty to prevent.

Anyone who employs a notary would be well-served to identify the many reported missteps taken by Kinko’s — the notary employer — in order to avoid potential liability for the negligent acts of its notary employees. The notary employee in Vancura did not understand and did not adequately perform his duties as a notary. He was unaware that his purpose as a notary was actually to confirm that the person signing the document was the person he purported to be — a duty that cannot be fulfilled simply by matching the signature on a signed document with any exemplar found on an identification document. Moreover, supervisors were not trained in how to properly notarize a document or what to look for in order to determine whether the notaries were performing their duties properly. Indeed, the manager in Vancura testified that he never actually observed his employees perform a notarization.

1 Richard P. Vancura v. Peter Katris, Gustavo Albear, Glenn S. Brown, Randall Boatwright, Old Kent Bank, as Trustee Under Trust Agreement 6927, and Kinko’s, Inc. 1-06-2750, LEXIS 1317 (Ill.App.12-26-2008). This slip opinion also is available at 2008 WL 5423357.

Employers of Notaries Must Train and Supervise or Face Direct

Liability for Failure to Prevent Harm to Third Parties

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II. EXPANDED EMPLOYER DUTY WITH RESPECT TO NOTARY EMPLOYEES AND AGENTS

Common Law Duty to Prevent Harm to Third Parties Caused A. by Inadequately Trained and Supervised Notary Employees

“A claim for negligent training and supervision concerns the employer’s own negligence rather than the negligence of its employee, meaning that the employer’s liability is direct, not vicarious.”2 This duty is owed to the public generally and not to the negligent employee. Thus, in order to hold any employer liable for an injury to a third person resulting from the negligent training or supervision of an employee, it must be established that “the employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and that the employer, having this knowledge, failed to supervise the employee adequately, or take other action to prevent the harm.”3

Consistent with the principles set forth in Restatement (Second) of Agency § 213 and relying on Cutter v. Town of Farmington,4 the Vancura Court ruled that loss from the notarization of a forged signature is a foreseeable risk resulting from an insufficiently trained or supervised notary employee, such that employers have an affirmative duty to ensure that the notary understands and follows these notarial responsibilities. The Restatement (Second) of Agency § 213, which has been widely cited by courts throughout the United States,5 sets forth three bases of liability that are pertinent to organizations employing notaries or using notaries as agents:

A person conducting an activity through servants or other agents is subject to liability for harm resulting from this conduct if he is negligent or reckless:

(a) in giving improper or ambiguous orders of [sic] in failing to make proper regulations; or

(b) in the employment of improper persons or instrumentalities in work involving risk or harm to others; or

(c) in the supervision of the activity. . . .

In Vancura, the negligent training cause of action effectively encompassed paragraphs (a) and (b) of this rule. The negligent supervision cause of action is reflected in paragraph (c).

2 Id. at 23.3 Id. at 23, citing 30 C.J.S. Employer-employee § 205 at 1; Kresin v. Sears, Robuck & Co., 316 Ill.

App. 3d 433, 441 (2000).4 126 N.H. 836, 498 A.2d 316, 320 (1985).5 See case citations to § 213 of the Restatement (Second) of Agency (the American Law Institute) (2008).

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Applying this Restatement section to allegations of negligence in the hiring, training, and supervision of public officers, the New Hampshire Supreme Court in Cutter v. Town of Farmington stated: “It seems clear to us that the rule is applicable in situations where the untutored agent unwittingly caused injury which was a risk of harm attendant to the employment which the principal had reason to foresee.”6 Citing Comment (d) to this Restatement section, the Cutter court also noted that a “dangerous quality” of an employee that causes harm may encompass the agent’s “incompetence or unskillfulness … with reference to the act to be performed.”7

Negligent Training1.

Although Illinois has no mandatory education requirement for notaries as part of the commissioning process, the Court nevertheless held Kinko’s liable for negligence after noting that Kinko’s “chose to train [its employees] and it showed no concern for whether its instruction did actually ‘imbue its employees with their [notary] duties under Illinois law.’”8 “Thus the weight of evidence indicates Kinko’s had no regard for whether [the notary employee] understood his responsibilities and adhered to them. This is negligence.”9

A notary employer faces liability for both incorrect instruction and failure to instruct. “The principal or master may be negligent in that he fails to use due care to give or in giving directions to the agent or servant as to the act to be done. See § 509 and the Restatement of Torts § 311. Such directions may be negligently given either because they contain misstatements or because, in view of what the employer should know concerning the capacities of the one employed, they are incomplete. Likewise, the directions may be negligent because the principal does not anticipate circumstances which he should realize are likely to arise.”10

In Vancura, the Court affirmed the trial court’s determination that the notary did not understand his statutory and common law responsibilities and, therefore, had been inadequately trained by the employer.11 Specifically, the notary did not understand the responsibilities to positively identify document signers and secure the seal.12 Moreover, the employer affirmatively gave incorrect instructions concerning

6 Cutter v. Town of Farmington, 126 N.H. at 841.7 Id.8 Vancura at 29.9 Id. at 37.10 Restatement (Second) Agency § 213, Comment c.11 Id. at 27 and 38.12 Id. at 26 and 38. Interestingly, while the trial court referenced the failure to keep proper jour-

nal records of each notarial act as a breach of the notary’s standard of conduct, the appellate court did not cite this as a basis for affirming the common law cause of action. Id. at 26. How-ever, based on the uncontroverted expert testimony of Professor Closen, the appellate court did note as fact that the employer had insufficiently instructed the notary to keep the journal records in a bound book and to make complete entries, including signature samples, name, and address of each document signer. Id.at 17.

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the proper standard of conduct in identifying a signer.13 “Kinko’s knew or should have known that [the notary’s] failure to positively identify persons requesting notarizations through pictorial identification and signature documents such as local driver’s licenses would, sooner or later, permit fraud or forgery to occur. When the purpose of notarization is to prevent fraud and forgery, adequate identification involves more than accepting a customer’s personal statement and signature exemplar.”14

Negligent Supervision2.

The court in Vancura concluded that Kinko’s failed to satisfy the duty to adequately supervise its notary employees. Employers should be aware of the additional obligations such a duty may impose. Vancura noted with disapproval that Kinko’s “made no attempt to supervise [the notary’s] practices and it helped [the notary] store his notary seal improperly.”15 The Court further noted “Kinko’s did not instruct [the notary’s] supervisors about sound notarial practices or how to supervise an employee to ensure he or she was adhering to the basic rules of proper notarization.”16

The Court’s reference to Kinko’s deficient acts is notable in several respects. First, if an employer offers notary services to third parties, it assumes an ongoing duty to ensure that the notary employees are competent and perform their notary services properly. Second, an employer is obligated to instruct its managers and supervisors on sound notarial practices and/or on how to properly supervise a notary employee to ensure that the notary is adhering to basic rules of proper notarization.

The Court concluded that Kinko’s failed to satisfy that duty after noting that its managers did not monitor the conduct of its notary employees on a routine basis or even through random auditing of their journals. Moreover, the Court noted, even if a manager had been aware of the notary employee’s practices, the manager still had no way of knowing what was or was not an acceptable practice because the managers had never received any instruction on those practices.

Employer Liability Extends to Notaries Acting As B. Independent Contractors

Although Vancura does not address the circumstance of independent contractor notaries, the case suggests that an employer has a duty to protect third persons from the potential harm attendant to the job of notarization regardless of whether the notary is an employee or an independent contractor. While general agency law does not confer an affirmative duty on employers to train independent contractors, an employer may be liable under Restatement 13 Id. at 34-35.14 Id. at 35.15 Id. at 29.16 Id. at 36.

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Agency (Second) § 213 if the employer entrusts a notarial service to an incompetent independent contractor.

Cutter demonstrates that an employer may be liable for failure to train under an agency theory. If fraud results from an improperly trained notary independent contractor, the victim of the fraud will likely file a claim against the employer. Even if the employer ultimately prevails in defending against such claims, it would spend considerable time and energy, as well as financial resources, in order to have the case dismissed. Thus, notary employers should adopt policies to ensure that their notary independent contractors are adequately trained and properly performing their notary services at all times.

The Standard of Conduct for Notaries Is Based on Statutory C. and Common Law Sources, Including the Model Notary Act

What is perhaps most significant about the Vancura decision is the extent to which the holding relies on an application of the standards set forth in the National Notary Association’s Model Notary Act of 2002 (the “Model Act”). The Court relied on the standards set forth in the Model Act with respect to what constitutes satisfactory evidence of identification, proper maintenance of a notary’s seal, and what constitutes consent of an employer to a notary employee’s misconduct. The Court reasoned that because the state statutes were silent on those issues, it was reasonable to look to industry standards to determine what is considered reasonable conduct by a notary. In citing the Model Notary Act as a “persuasive authority” comparable to the American Institute of Law’s Restatement (Second) of Agency and the American Bar Association’s Model Business Corporations Act, the majority noted the expertise and representative breadth of the Act’s drafters.17

Where the statute is incomplete or a term is left undefined, however, a court may turn to the Model Act, as it did in Vancura. Compliance with a statutory or administrative requirement is merely evidence of having met a minimum standard of conduct and does not preclude a finding of negligence for having failed to follow professional codes or common law requirements.18 Accordingly, employers of notaries should be familiar with the Model Notary Act, particularly if the employer provides notary services in a state that has a fairly general notary act or one that is limited in scope.

STEPS EMPLOYERS MAY TAKE TO REDUCE LIABILITY EXPOSUREIII.

Employers of notaries should take care to document that each notary has been effectively trained, that supervisors understand notarial responsibilities, and that each notary is complying with all statutory and common law duties. An

17 Id. at 32, 33, 34, and 40.18 Christou v. Arlington Park-Washington Park Race Tracks Corp., 104 Ill.App.3d 257, 60 Ill.

Dec.21, 432 N.E.2d 920 (1982).

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employer need maintain objective indicators of adequate training and supervision, including such items as certifications, test results, and journal records.

A. Negligent Training

Even though the Court in Vancura did not specify what an adequate training program would consist of, the case provides some guidance to notary employers. First, if an employer elects to provide in-house notary training courses, it should engage a professional who is well-versed in the applicable state law statutes as well as sound notarial practices in order to prepare training materials to ensure that they adequately convey the duties and responsibilities of a notary.19

Second, the training program should include objective indicators to show an employee mastered the training material. For example, the Court opined that training courses should incorporate a testing component to ensure that employees actually understand the materials being taught. In addition to a written question and answer section, the testing component should include a live simulation of the notary process. Employees should be graded on this process and be required to repeat the process if they do not obtain a passing score.

Third, after the notary employees have been trained, the employers should follow up periodically to determine whether the employees are actually performing their notary duties properly.

In the alternative, employers should consider outsourcing the training portion to a reputable notary training service, and then requiring its notary employees to attend follow-up courses to ensure that they are up to date on the most recent developments in the industry.

B. Negligent Supervision

While Vancura does not clearly define the extent to which an employer has a duty to supervise its notary employees, the case provides direction for notary employers. First, an employer is obligated to instruct its managers and supervisors on sound notarial practices and/or on how to properly supervise a notary employee to ensure that the notary is adhering to basic rules of proper notarization. Such basic rules of notarization include, but are not limited to the following:

A notary should carefully and positively identify each document signer;•

A notary should keep his or her seal and journal in a safe place;•

A notary should keep a record or journal of all notarial acts;•

A notary should not notarize a document unless the signator is •19 Vancura at 25 and 30-38.

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present at the time of notarization; and

A notary should not lend his or her notary seal and journal to •anyone, including his or her employer.

While this list is not exhaustive, it provides some guidance regarding what is expected of employers in order to satisfy their duty to supervise. A notary employer would be wise to provide some form of training (through a reputable educator or notary of indisputable credentials) on sound notarial practices to its managers. Further, employers should consider revising their review process for notary employees by including random audits to determine whether the notary’s seal and journal are secure and to periodically observe the notary employees while notarizing documents or monitor proper completion of journal entries to determine whether they are performing their notary services properly.

C. Additional Non-Statutory Sources of the Notary’s Standard of Conduct

Vancura demonstrates that a state’s notary statute may not provide all the guidance a notary needs to thoroughly perform his or her duties. The court looked to the Model Notary Act to define what constitutes “satisfactory evidence of identity” and for the minimum characteristics an identification document should contain to identify a document signer when the Illinois Notary Public Act did not provide this direction.

Therefore, employers should include instruction in widely-held notary best practices to guide notaries in responsible conduct when statutes are unclear or fall short.

In a related and important development, The Notary Public Code of Professional Responsibility20 has emerged as an additional source of the standard of conduct owed by notaries. The state of Hawaii recently adopted administrative regulations that expressly reference The Notary Public Code of Professional Responsibility in its entirety as defining the duties and standard of conduct for notaries.21 Similarly, the territory of American Samoa has formally adopted the ten guiding principles of The Notary Public Code of Professional Responsibility.22

20 The Notary Public Code of Professional Responsibility (Nat’l Notary Ass’n 1998).21 Hawaii Administrative Rules, Title 5, Department of the Attorney General, Chapter 11, Notaries

Public §5-11-3 (adopted April 17, 2008).22 American Samoa’s Notary Act of 2007 (Public Law 30-18 as amended by Public law 30-21) became

effective October 29, 2008, and created a new Chapter 30 (“Notary Public”) in Title 31 of the American Samoa Code Annotated. The ten guiding principles are: 1) the Notary shall, as a govern-ment officer and public servant, serve all of the public in an honest, fair and unbiased manner; 2) the Notary shall act as an impartial witness and not profit or gain from any document or transac-tion requiring a notarial act, apart from the fee allowed by statute; 3) the Notary shall require the presence of each signer and oath-taker in order to carefully screen each for identity and willing-ness, and to observe that each appears aware of the significance of the transaction requiring a notarial act; 4) the Notary shall not execute a false or incomplete certificate, nor be involved with any document or transaction that is false, deceptive or fraudulent; 5) the Notary shall give prece-

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CONCLUSIONIV.

Setting a precedent for expanded notary employer liability, the Court in Vancura affirmed the finding of employer direct liability for negligent training and supervision based on common law theories. Significantly, the Court determined that an inadequately trained or supervised notary employee poses the type of danger or risk of harm from which employers have a duty to protect third parties. Of additional importance to notary employers in defining the applicable standard of conduct for notaries and notary employers, the Court looked beyond statutory language to available notarial professional codes and other common law sources.

dence to the rules of law over the dictates or expectations of any person or entity; 6) the Notary shall act as a ministerial officer and not provide unauthorized advice or services; 7) the Notary shall affix a seal on every notarized document and not allow this universally recognized symbol of office to be used by another or in an endorsement or promotion; 8) the Notary shall record every notarial act in a bound journal or other secure recording device and safeguard it as an impor-tant public record; 9) the Notary shall respect the privacy of each signer and not divulge or use personal or proprietary information disclosed during execution of a notarial act for other than an official purpose; and 10) the Notary shall seek instruction on notarization, and keep current on the laws, practices and requirements of the notarial office.

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