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08/16/88 Lizzie Baker Et Al., v. Richard Walker

August 16, 1988

LIZZIE BAKER ET AL., PLAINTIFFS-APPELLANTS

v.

RICHARD WALKER, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

528 N.E.2d 5, 173 Ill. App. 3d 836, 123 Ill. Dec. 621 1988.IL.1259

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARTMAN delivered the opinion of the court. BILANDIC and EGAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Plaintiffs appeal from a circuit court order dismissing their complaint with prejudice. We are asked to determine whether the circuit court erred in: (1) dismissing plaintiffs' complaint for failure to state a cause of action; and (2) denying plaintiffs' motion to amend their complaint.

On March 29, 1984, an automobile driven by Clarita Pagal struck plaintiff Lizzie Baker as she stood in a bus shelter at the southeast corner of Western Avenue and 35th Street in Chicago, Illinois. In a complaint filed March 27, 1986, Lizzie Baker and co-plaintiff Tom Baker alleged that, on the day of the accident, Pagal was proceeding south on Western Ave. when, at or near the intersection of 35th Street, Pagal's car collided with a truck owned by Prime, Inc., and driven by Merle Dee Matts, a Prime employee, who was not made a defendant in this case and from whom no relief is sought. The collision then caused Pagal's car to hit Lizzie Baker.

Plaintiffs further asserted: (1) defendant Richard Walker, also a Prime employee acting in the scope of his employment, accompanied Matts that day in the truck; (2) Prime, by and through Walker, and Walker, individually, "had the duty, in the maintenance and operation . . . of said vehicle, to exercise all due care and caution to avoid injury to persons lawfully upon the thoroughfare, including [Lizzie Baker]"; and (3) Prime, by and through Walker, and Walker, individually, breached this duty "in one or more of the following ways":

"a. Carelessly and negligently failed to warn the driver of the truck as to the presence of another car which was in his sight but not visible to the driver of the vehicle owned by [Prime].

b. Carelessly and negligently was trained in the methods of safety available by a passenger to a driver of a vehicle;

c. Carelessly and negligently failed to maintain a proper and sufficient lookout for other vehicles that were in the driver's 'blind spot' or not noticed by said driver especially the vehicle driven by [Pagal];

d. Carelessly and negligently aided in the operation of said motor vehicle so that Defendant [ sic ] [Pagal] was caused to strike the Plaintiff, LIZZIE BAKER;

e. Otherwise carelessly, negligently and improperly rode and acted as lookout of said motor vehicle."

The resulting accident, plaintiffs continued, caused Lizzie Baker "external and internal" injuries. Plaintiffs sought damages for those ...


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