APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
HALLMARK INSURANCE COMPANY, as Subrogee of Exchange
534 N.E.2d 501, 179 Ill. App. 3d 260, 128 Ill. Dec. 319 1989.IL.96
Appeal from the Circuit Court of Cook County; the Hon. Odas J. Nicholson, Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Plaintiffs seek to recover property damages they sustained when the driver of a stolen Chicago Transit Authority bus lost control of the vehicle and struck their building. They appeal from the trial court's granting of summary judgment in favor of defendant.
Plaintiffs' second amended complaint contains two counts of negligence against the CTA, the first based on a violation of the City of Chicago's municipal code and the second on common law negligence. Plaintiffs allege that on January 12, 1982, an unnamed individual took unauthorized control of a CTA bus which was located in a bus barn owned and operated by defendant, and, after removing the bus from the property, drove it into a building owned by plaintiffs, causing damage thereto. Plaintiffs further allege that defendant had left the bus unattended, without first stopping the engine, locking the ignition and removing the key.
Choosing not to file an answer, defendant moved for summary judgment instead, attaching a stipulation between the parties that defendant's bus was removed from its property without the permission, authorization, consent or knowledge of defendant. In response, plaintiffs argued that they had sufficiently alleged special circumstances to put in issue that defendant knew or should have known of a great likelihood that the bus would be stolen, thus raising a genuine issue of material fact. Following a hearing the trial court dismissed plaintiffs' cause with prejudice, stating:
"But, counsel, these allegations are rather conclusory. There are no facts to support this allegation, certainly not in your amended second complaint or, indeed, in your response to the motion for summary judgment.
I don't see the allegation of special circumstances here."
Plaintiff then filed a motion for rehearing and reconsideration, to which it attached as an exhibit a document previously produced by defendant: a study of bus thefts from defendant's property. After questioning plaintiffs' counsel on why this document was not furnished to the court previously, the trial Judge denied their motion. Plaintiffs now appeal.
We first note that defendant brought a motion for summary judgment in order to challenge the legal sufficiency of plaintiffs' complaint. It seems needless to point out that this is not the ...