APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
520 N.E.2d 1110, 166 Ill. App. 3d 819, 117 Ill. Dec. 759 1988.IL.269
Appeal from the Circuit Court of St. Clair County; the Hon. John J. Hoban, Judge, presiding.
JUSTICE LEWIS delivered the opinion of the court. HARRISON, P.J., and WELCH, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS
The plaintiff, Cathy Hensler, brought an action to recover damages from defendant, Ronald Dean Renn, for personal injuries and property damage she sustained when her vehicle was struck by defendant's van. Defendant's vehicle had been stolen and, at the time of the collision, was driven by the auto thief. The circuit court granted defendant's motion for summary judgment and plaintiff appealed.
Plaintiff's original complaint, filed September 12, 1983, alleged the following facts. On September 17, 1982, defendant parked his van at the Super America store in Belleville, Illinois, and left the van unlocked and unattended with the keys in the ignition. The van was stolen and ultimately driven through a red traffic light and into an intersection where it struck plaintiff's vehicle broadside. The complaint alleged that defendant acted negligently when he left his van unattended with the keys in the ignition "in a public place" in violation of section 11-1401 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-1401).
On October 7, 1986, defendant filed a motion for summary judgment noting that Super America was privately owned and arguing that "the taking of a vehicle from a private lot is inactionable as there is no statute because [ sic ] there is no common law liability." Defendant cited Childers v. Franklin (1964), 46 Ill. App. 2d 344, 197 N.E.2d 148, and Ruyle v. Reynolds (1976), 43 Ill. App. 3d 905, 357 N.E.2d 804, as supporting authority.
Defendant's motion for summary judgment was denied on the condition that plaintiff file an amended complaint. Specifically, the court directed plaintiff to amend paragraph eight of her original complaint. Paragraph eight alleged a violation of section 11-1401 of the Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-1401), which provides:
"No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the ignition, effectively setting the brake thereon and, when standing upon any perceptible grade, turning the front wheels to the curb or side of the highway."
Section 11 -- 1401 of the Code has been held to impose liability only where a person parks on a public street. Ruyle, 43 Ill. App 3d at 907, 357 N.E.2d at 806.
On October 12, 1986, plaintiff filed an amendment to her complaint, striking paragraph eight and inserting the following:
"The Defendant negligently and carelessly left the said stepvan unattended late in the evening on a Friday night with the keys in the ignition in a public place that has a continuous stream of people arriving and departing on foot as well as by vehicle."
On October 22, 1986, defendant filed an additional motion for summary judgment noting, inter alia, that the defendant's van had been parked in a private lot owned by Super America and that at common law there was no duty on a driver to remove his keys from a vehicle parked on ...