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Giers v. Anten





APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.


Rehearing denied February 9, 1979.

Plaintiff appeals from an order of the trial court striking and dismissing counts III and IV of his complaint for failure to state causes of action. These counts seek recovery on theories of negligent and willful and wanton entrustment of an automobile. On appeal he contends that the trial court erred in striking and dismissing counts III and IV of his complaint.

The following facts pertinent to the disposition of this appeal are contained in the record.

Plaintiff alleged in count I of his complaint that on October 29, 1974, he was driving his automobile in a westward direction upon Dundee Road near its intersection with Ranch Mart Drive. At the same time defendant Donna Anten, who was driving an automobile in an eastward direction upon Dundee Road, turned left in a northerly direction across Dundee Road, in an attempt to enter Ranch Mart Drive. Plaintiff alleged that Donna Anten, in so turning, negligently entered the westbound lanes of traffic on Dundee Road, thereby colliding with his automobile. Specifically, plaintiff alleged that Donna Anten was negligent in that she: (1) failed to yield the right-of-way to his automobile; (2) failed to keep a proper lookout for approaching traffic; and (3) drove her automobile into that part of the roadway reserved for traffic moving in the opposite direction. As a result of Donna Anten's aforesaid negligence, plaintiff claims that he suffered both personal injury and damage to his property.

In Count II of his complaint plaintiff repeated the allegations of count I and further alleged that Donna Anten's actions constituted both reckless driving and willful and wanton misconduct. In this count he sought both compensatory and exemplary damages.

Counts III and IV of the complaint were directed at Donald Anten, husband of Donna Anten. In count III plaintiff alleged that on the date of the accident Donald Anten permitted Donna Anten to drive his automobile even though he knew or should have known her to be a "negligent, reckless or incompetent driver." As the basis for this characterization of Donna Anten as being a "negligent, reckless or incompetent driver," plaintiff alleged three separate incidents where she negligently or recklessly caused collisions with other automobiles. The first incident occurred on June 23, 1971, when Donna Anten negligently or recklessly failed to observe proper lane usage and/or operated her automobile at an excessive rate of speed, thereby causing a collision with and damage to another automobile. Secondly, plaintiff alleged that on August 13, 1971, Donna Anten again negligently or recklessly operated an automobile at such an excessive rate of speed as to cause a collision with another automobile. Thirdly, plaintiff alleged that on November 22, 1971, Donna Anten, while intoxicated, caused her automobile to once again collide with another automobile. Plaintiff also alleged that on December 17, 1971, Donna Anten pleaded guilty to and was convicted of the offense of driving a motor vehicle while having been intoxicated on November 22, 1971. As a result of that plea her driving license was suspended until September 27, 1974.

Plaintiff alleged further that Donald Anten's negligent entrustment of his automobile to his wife on October 29, 1974, proximately caused the collision and injuries which he received as described in count I of the complaint.

In count IV plaintiff reasserted the allegations of count III and further alleged that by entrusting the automobile to Donna Anten on October 29, 1974, Donald Anten was guilty of willful and wanton misconduct, again seeking exemplary as well as compensatory damages.

In her answer to counts I and II of the complaint, Donald Anten admitted that a collision occurred between plaintiff's automobile and the automobile driven by her, but denied that she negligently drove into the westbound lanes of traffic. She specifically denied that she was guilty of the negligent, reckless or willful and wanton acts or omissions described by plaintiff in counts I and II. She also denied that her conduct proximately caused the collision with plaintiff's automobile and that plaintiff had exercised due care for the safety of his person and property.

Defendant Donald Anten filed a motion to strike counts III and IV of the complaint for failure to state causes of action for negligent or willful and wanton entrustment of his automobile to Donna Anten. In support of his motion, Donna Anten argued that because the alleged negligent acts of Donna Anten occurred three years prior to the entrustment, they were irrelevant and immaterial to the skill of Donna Anten and to his own knowledge of her driving skill on the date of the entrustment. He also argued that plaintiff had failed to claim "that any particular alleged incompetency of Donna Anten allegedly involved in prior occurrences proximately caused the incident in 1974."

On November 15, 1977, the trial court granted the motion to strike. The order striking counts III and IV with prejudice stated in pertinent part that:

"* * * the three year intervening period between the incidents of 1971 and the incident of 1974 out of which this lawsuit arises creates an insulating period, precluding as a matter of law, a finding that Donald J. Anten could or would have been guilty of negligence in ...

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