Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

07/16/87 Jack E. Loftus, v. Robert Mingo Et Al.

July 16, 1987

JACK E. LOFTUS, PLAINTIFF-APPELLANT

v.

ROBERT MINGO ET AL., DEFENDANTS-APPELLEES (LARRY MITCHELL, DEFENDANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

511 N.E.2d 203, 158 Ill. App. 3d 733, 110 Ill. Dec. 368 1987.IL.998

Appeal from the Circuit Court of Sangamon County; the Hon. Jerry S. Rhodes, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SPITZ delivered the opinion of the court. GREEN and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

On October 24, 1984, plaintiff, Jack E. Loftus, filed a complaint in the circuit court of Sangamon County against defendants, Robert Mingo, Larry Mitchell, and the village of Riverton, Illinois. The complaint alleged damages resulting from an automobile collision which occurred when plaintiff backed his vehicle out of his garage and down the driveway adjoining his residence in Riverton, Illinois, thereupon colliding with a vehicle parked in the driveway with no lights illuminated. The latter vehicle was occupied by Robert Mingo, a police officer employed by the village of Riverton.

Counts I, III and VI of plaintiff's seven-count complaint were directed against Robert Mingo and alleged negligence, wilful and wanton misconduct, and a civil rights violation, respectively. Counts II and VII of plaintiff's complaint were directed against the village of

On November 26, 1984, defendants petitioned the United States District Court for the Central District of Illinois to remove this action to that court based upon Federal jurisdiction over the civil rights claims. On April 16, 1985, the United States District Court entered an order denying the petition for removal.

On September 13, 1985, plaintiff's original complaint was dismissed by agreement of the parties and plaintiff was granted leave to amend his complaint.

Then on October 3, 1985, plaintiff filed his first amended complaint. On October 22, 1985, defendants moved to dismiss the first-amended complaint. Following a hearing, the motions to dismiss were allowed and plaintiff was granted leave to amend his complaint.

On February 4, 1986, plaintiff filed his second-amended complaint, alleging five counts. This complaint omitted the two counts against former defendant Larry Mitchell and alleged negligence, wilful and wanton misconduct and civil rights violations against Mingo and the village of Riverton. Mingo and the village of Riverton moved to dismiss the second-amended complaint. Following a hearing, defendants' motions to dismiss plaintiff's second-amended complaint were allowed and plaintiff was granted leave to file another amended complaint.

On October 15, 1986, plaintiff filed his third-amended complaint. Count I of the six-count complaint was directed against Mingo and alleged that Mingo had a duty to use reasonable care in the operation and use of his motor vehicle and to make his presence known by the use of headlights or parking lights due to the darkness existing at the time of the collision. Count I further alleged that Mingo had breached this duty by failing to indicate his presence to plaintiff by the use of lights, failing to operate his vehicle with proper lights or warning devices in violation of sections 12-201 and 12-203 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 12-201, 12-203), failing to take action to avoid the collision, and obstructing plaintiff's driveway. Count II of the complaint was directed against the village of Riverton, and alleged that Mingo, as a village employee, was an agent of the village and was acting within the scope of his employment at the time of the alleged negligent act or omission. Count III of the complaint was directed against Mingo and alleged that Mingo engaged in wilful and wanton misconduct by failing to indicate his presence to plaintiff with the use of headlights or parking lights, failing to operate his headlights or parking lights or warning devices, in violation of sections 12-201 and 12-203 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 12-201, 12-203), placing himself in a situation where he was unable to take action to avoid the collision, and obstructing plaintiff's driveway. This count sought punitive damages against Mingo. Counts IV and V of the complaint were directed against Mingo and the village of Riverton, respectively, and alleged a violation of plaintiff's civil rights pursuant to the United States Constitution and sections 1983, 1985, and 1988 of the Civil Rights Act of 1964 (42 U.S.C. secs. 1983, 1985, 1988 (1982)). Finally count IV of plaintiff's complaint, directed against Mingo, alleged that plaintiff sustained damages resulting from Mingo's uninvited presence on property owned by the plaintiff. Mingo and the village of Riverton filed motions to dismiss the third-amended complaint. After a hearing, the trial court granted the defendants' motions and dismissed plaintiff's complaint. Further, the court denied leave to amend the complaint and the cause was stricken. Plaintiff now appeals.

Plaintiff's primary contention is that the trial court erred in dismissing his third-amended complaint. When considering a motion to dismiss, the trial court must assume the truth of all facts properly pleaded (Vaught v. General Motors Corp. (1984), 102 Ill. 2d 431, 466 N.E.2d 195; Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93, 187 N.E.2d 722), and all reasonable inferences which can be drawn from those facts (Horwath v. Parker (1979), 72 Ill. App. 3d 128, 390 N.E.2d 72). However, mere Conclusions of law, argumentative matter, or Conclusions of fact unsupported by allegations of specific facts upon which such Conclusions rest are irrelevant and must be disregarded by the trial court in ruling on a motion to dismiss. (Pierce v. Carpentier (1960), 20 Ill. 2d 526, 169 N.E.2d 747); Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976).) In order to survive a motion to dismiss, a complaint must allege facts which, when considered together, establish the cause of action which the plaintiff seeks to state. (Segall v. Berkson (1985), 139 Ill. App. 3d 325, 328, 487 N.E.2d 752, 754.) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 466 N.E.2d 224; Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790.) The standard of review on appeal is whether the complaint alleged facts which sufficiently state a cause of action. Carlinville National Bank v. Rhoads (1978), 63 Ill. App. 3d 502, 380 N.E.2d 63.

Plaintiff contends that the trial court erred in dismissing counts I and II of his third-amended complaint, claiming that the counts sufficiently

Based upon these facts, plaintiff alleged that Mingo had a duty to make his presence known to plaintiff by the use of headlights or parking lights because of the darkness existing at the time of the collision. Plaintiff further alleged that Mingo breached this duty by failing to indicate his presence to plaintiff with the use of headlights or parking lights; failing to use his headlights, parking lights, or other warning devices in violation of sections 12-201 and 12-203 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 12-201, 12-203); failing to avoid the collision; and obstructing plaintiff's driveway.

We have reviewed these allegations with the aforementioned legal principles in mind and conclude that the trial court erred in dismissing counts I and II of plaintiff's third-amended complaint. Initially, we note that plaintiff's reliance upon sections 12-201 and 12-203 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 12-201, 12-203) is misplaced. Section 12-201 articulates when lighted lamps are required in the operation of motorcycles and motor vehicles "upon any highway in this State." (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 12-201.) Similarly, section 12-203 articulates when parking lights must be displayed by motorcycles or motor vehicles which are parked on "highways." (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 12-203.) Contrary to plaintiff's suggestion, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.