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10/19/87 Lillian Burrgess Kosrow, v. Robert W. Smith

October 19, 1987

MARY ANN HOFFMAN, DECEASED, ET AL., PLAINTIFFS-APPELLANTS

v.

ROBERT W. SMITH, DEFENDANT-APPELLEE (RONALD S. ACKER ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

LILLIAN BURRGESS KOSROW, Personal Adm'r of the Estate of

514 N.E.2d 1016, 162 Ill. App. 3d 120, 113 Ill. Dec. 104 1987.IL.1560

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. DUNN and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Plaintiff brought suit against defendants for money damages for the deaths of three women who died as a result of an automobile collision with defendant Ronald S. Acker. Defendant Robert Smith filed a motion to dismiss the three counts of the complaint which were directed against him. The trial court granted his motion to dismiss with prejudice, and plaintiff appealed pursuant to Supreme Court Rule 304(a)(107 Ill. 2d R. 304(a)).

Plaintiffs originally filed a complaint in which two counts, counts X and XI, were directed against Robert Smith. On February 27, 1987, counts X and XI were dismissed for their failure to state a cause of action. On March 20, 1987, plaintiffs filed an amended complaint. Count IX of that complaint alleged that: defendant Robert Smith had actual knowledge of defendant Acker's propensity to become intoxicated; defendant Robert Smith knew that Acker's driving license had been suspended or revoked by the State of Illinois by reason of Acker's conviction for driving under the influence; that defendant Robert Smith knew that Acker had taken and used one or more motor vehicles owned and possessed by defendant Robert Smith or members of his immediate family during the period of time for which Acker's license had been suspended or revoked; that defendant Robert Smith had given his son, Jeffrey Smith, a 1974 Cadillac, and Robert Smith had the ability to control his son's actions in the use, entrustment, and control of the vehicle; and defendant Robert Smith had the duty to manage and control his home and household in such a manner as to prevent Acker from obtaining access to the use of any of the family cars, including that of the Cadillac owned by Robert Smith's son, Jeffrey, who still resided at home. The complaint alleged that defendant Acker resided with the Smith family, and count IX premised defendant Robert Smith's liability on his failure to prohibit Acker from using the vehicle possessed by Jeffrey Smith; his failure to set proper guidelines for his family as to defendant's access to the motor vehicles; his failure to prevent Acker's access to the keys of Jeffrey's car; his failure to warn members of the household of Acker's propensity to drive while intoxicated; and his failure to supervise Jeffrey's actions so that Acker would not obtain access to Jeffrey's vehicle. As a result of these acts and omissions, plaintiff alleged that Acker drove Jeffrey Smith's automobile while intoxicated, and he drove the car in a manner so as to cause a head-on collision with a car driven by Beverly Robinson, in which Mary Ann Hoffman and Colleen R. Byrne were passengers, thereby causing their deaths.

Count X of the complaint alleged that defendant Robert Smith voluntarily undertook a duty to prevent defendant's access to the use of vehicles owned by members of the Smith household. This count was premised on the same negligent omissions and acts of Smith in regard to his alleged voluntary duty. Count XI was premised on the same facts, but liability was alleged as a family expense. See Ill. Rev. Stat. 1985, ch. 40, par. 1015.

Defendant Robert Smith moved to dismiss the three counts of the complaint which were directed against him on the basis that they failed to state a cause of action. The trial court granted the motion to dismiss with prejudice. In denying plaintiffs' motion to reconsider, the trial court issued a memorandum opinion stating that defendant Robert Smith had no duty to control the actions of Acker, who was not Smith's son and who was characterized as a "house guest" in the complaint. The trial court entered an order of dismissal and found no just reason for delay of enforcement or appeal. This appeal followed.

Plaintiffs argue that since facts were alleged in the complaint that defendant Robert Smith knew of Acker's prior acts of driving under the influence, Robert Smith's failure to prevent Acker from obtaining access to Jeffrey Smith's car amounted to negligence. We do not agree.

To state a cause of action for negligence, plaintiffs' allegations must establish the existence of a duty of care owed by defendant to plaintiffs, a breach of that duty, and an injury proximately resulting from that breach. On a motion to dismiss, all well-pleaded facts within the complaint must be regarded as admitted and true, and all reasonable inferences which can fairly be drawn from the facts alleged must also be considered as true. A dismissal of a complaint for failure to state a cause of action should be affirmed on appeal only when no set of facts can be proved under the pleadings which would entitle plaintiff to relief. Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 190-91.

We note at the outset that Ronald Acker was identified as being Robert Smith's brother-in-law, and that Acker was living in Smith's house at the time of the collision. Jeffrey Smith, the person who owned the car used by Acker, was Robert Smith's 16-year-old son. Count IX of the complaint is premised on a theory that Robert Smith had a duty to control both his son and his son's automobile so that Ronald Acker would not have access to the automobile. Plaintiff has not cited any cases, nor have we found any, which suggest that a father has a duty to control a vehicle owned by his son. Plaintiff cites the case of Giers v. Anten (1978), 68 Ill. App. 3d 535, 538-39, for the proposition that liability may arise from the entrustment of an automobile to one who is known by the owner to be incompetent or reckless in his driving. However, here, as pleaded in plaintiffs' complaint, Jeffrey Smith, not Robert Smith, owned the vehicle. There is no allegation that Robert Smith had any ownership interest in the vehicle at the time of the fatal accident. Thus, the fact that Ronald Acker used Jeffrey Smith's automobile would mean that any liability on the part of Robert Smith for the entrustment of the automobile by Jeffrey Smith would have to derive from Robert Smith's duty to control his son's behavior.

We turn, then, to the question of whether Robert Smith had a duty to control his son Jeffrey, so that Jeffrey did not make his keys available to Ronald Acker. We conclude that Robert Smith had no duty to control Jeffrey's actions in such a manner as to preclude Ronald Acker from obtaining control of Jeffrey's car. The general rule in Illinois is that parents are not liable for the torts of their minor child merely because of parent-child relationship. An exception to that rule is set forth in the Restatement (Second) of Torts sec. 316 (1965). That section provides that a parent is under a duty to exercise reasonable care to control his minor child to prevent him or her from intentionally harming others or from conducting himself or herself as to create an unreasonable risk of bodily harm to the public if the parent knows or has reason to know that he can control his child, and the parent knows or should know of the necessity and the opportunity for exercising such control. In order to hold the parent liable for a child's acts, a complaint must allege specific instances of prior conduct sufficient to put the parents on notice that the act complained of was likely to ...


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