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04/24/89 Yvette Ledesma, A Minor By v. Cannonball

April 24, 1989

YVETTE LEDESMA, A MINOR BY HER MOTHER AND NEXT FRIEND, JULIETTE LEDESMA, PLAINTIFF-APPELLANT

v.

CANNONBALL, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

538 N.E.2d 655, 182 Ill. App. 3d 718, 131 Ill. Dec. 280 1989.IL.589

Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.

As Amended August 3, 1989.

APPELLATE Judges:

JUSTICE QUINLAN* delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The plaintiff, Yvette Ledesma, a minor, by her mother and next friend, Juliette Ledesma, filed suit against Alan Sherman and his employer, Cannonball, for personal injuries Yvette sustained in an accident with Sherman when he was driving a leased vehicle for Cannonball. During the course of the litigation, plaintiff settled with Sherman, and thereafter she filed a second amended complaint against Cannonball, alleging negligent operation of a motor vehicle by Cannonball under a theory of respondeat superior (count I), wilful and wanton operation of a motor vehicle by Cannonball under a theory of respondeat superior (count II), negligent entrustment of a motor vehicle to Sherman (count III), and wilful and wanton entrustment of a motor vehicle to Sherman (count IV). Defendant Cannonball moved to dismiss all four counts, and the trial court granted defendant's motion with prejudice as to counts I, II, and III. Defendant then moved for summary judgment on count IV and the trial

On August 7, 1979, the plaintiff was riding her bicycle with a group of cyclists east on Wellington Street in Chicago. While crossing Ashland Avenue, the plaintiff collided with a motor vehicle driven by Alan Sherman, a Cannonball employee who was, Cannonball admitted, acting within the scope of his employment at the time. It is disputed whether Sherman or Yvette had the right of way at the intersection.

The defendant Cannonball is a common carrier messenger and delivery service. Just prior to December 20, 1978, Sherman had applied for a position as a driver with Cannonball. Sherman filled out a job application with Cannonball prior to being hired by Cannonball. His job application established that he had a valid Illinois driver's license and that he had insurance on his personal motor vehicle. In answer to a question on the application concerning whether his license had ever been suspended or revoked, Sherman responded that it had. Additionally, in response to another question concerning whether he had had any traffic violations in the past year, Sherman wrote "Yes . . . License revoked for accident. Traffic ticket for speeding." After completing the application, Sherman was interviewed by Cannonball's personnel assistant, Patricia Vecchio. Ms. Vecchio, in her deposition, stated that Sherman's prior license revocation was not a determinative factor in the decision to hire Sherman, and went on to explain that the decision to hire a driver/messenger was based upon various other factors, such as his or her knowledge of the Chicago area, communication skills, physical appearance, and driving record. There was, she said, no policy in effect at that time to investigate a potential employee's prior driving record beyond the information in the application when the applicant had a valid driver's license.

On or about December 20, 1978, Cannonball hired Sherman. Thereafter, Sherman used his personal vehicle while working for Cannonball, and Cannonball leased it from him and allowed him to operate the vehicle under its authority.

As stated above, the accident between plaintiff and Sherman took place on August 7, 1979, while Sherman was driving for Cannonball. On March 19, 1982, plaintiff sued Cannonball for personal injuries sustained in the accident, and on January 20, 1983, amended her complaint to include Sherman as a defendant. During the course of the litigation, there were numerous dismissals and amendments to various counts of plaintiff's original complaint, which are not pertinent to this appeal. On December 15, 1986, plaintiff executed a "release" of Sherman and accepted $25,000, which was the limit of Sherman's insurance policy, in settlement of her claim against Sherman. The "release" was a form document, but there was additional language typed into the form which stated: "This release does not effect [ sic ] Yvette Ledesma's cause of action against Cannonball, Inc. or any other party." Based upon the settlement and release, the trial court dismissed Yvette's claims against Sherman with prejudice.

After this dismissal of plaintiff's claims, there were further attempted amendments and subsequent dismissals of various counts of plaintiff's complaint, and, eventually, on June 24, 1987, plaintiff filed a completely new amended complaint against Cannonball. This amended complaint, as stated earlier, set forth four counts against Cannonball: negligent operation of a motor vehicle based on respondeat superior (count I); wilful and wanton operation of a motor vehicle based on respondeat superior (count II); negligent entrustment of a motor vehicle of Sherman (count III); and wilful and wanton entrustment of a motor vehicle to Sherman (count IV).

Thereafter, on November 6, 1987, the trial court, on defendant's motion, dismissed counts I through III of this complaint with prejudice. *fn1 Defendant then moved for summary judgment on the only remaining count, count IV, for wilful and wanton entrustment of a motor vehicle. On January 21, 1988, the trial court granted defendant's motion on count IV. Subsequently, plaintiff moved the court to vacate its prior order of

Plaintiff raises three issues on appeal: (1) whether the trial court erred when it dismissed counts I and II of plaintiff's complaint for negligent and wilful and wanton operation of a motor vehicle based on respondeat superior, as well as its denial of her motion to vacate the dismissal of those counts; (2) whether the trial court erred when it dismissed count III of plaintiff's complaint for negligent entrustment, as well as its denial of her motion to vacate the dismissal on that count; and (3) whether the trial court ...


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