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07/18/89 David King, Adm'r of the v. Karen Sue Petefish

July 18, 1989





541 N.E.2d 847, 185 Ill. App. 3d 630, 133 Ill. Dec. 636 1989.IL.1117

Appeal from the Circuit Court of Cass County; the Hon. Fred W. Reither, Judge, presiding.


JUSTICE KNECHT delivered the opinion of the court. SPITZ, J., concurs. PRESIDING JUSTICE McCULLOUGH, Dissenting.


Plaintiff David King, administrator of the estate of Tammy King, appeals a final summary judgment by the circuit court of Cass County. Judgment was entered in favor of defendant Susan Petefish in a tort action based on the theory of her negligent entrustment of an automobile to plaintiff's decedent Tammy King. In her motion for summary judgment, defendant argued that historically Illinois has allowed recovery under the theory of negligent entrustment only to third persons who have been injured by a negligent entrustee and sue the entrustor for those injuries. Again on appeal defendant asserts Illinois does not recognize a cause of action by the entrustee against the entrustor. Regardless, defendant maintains plaintiff's claim was self-defeating because the negligence of his decedent was the proximate cause of her own injuries and subsequent death. Plaintiff urges he is entitled to a comparative negligence trial. Both parties acknowledge this is a case of first impression. We are not aware of an Illinois decision in which the doctrine of negligent entrustment was applied to a case where the suing party was the entrustee.

The pleadings and depositions on file in this case reveal the following facts. Early in the evening of October 1, 1983, the decedent, Tammy King (Tammy), went to the home of the defendant, Susan Petefish (Susan), armed with two bottles of wine, which belonged to her adult sister. Tammy and Susan shared the wine before Susan drove them, in a car belonging to her mother, to a party in rural Ashland, Illinois. Susan could not recall how much wine each girl drank, but remembered Tammy took the last drink from a bottle on the way to the party.

On the night in question, Susan was 16 years old and a licensed driver. Susan indicated she did not know Tammy's age, her birthdate, or whether she was a licensed driver. In fact, Tammy was 15 years old and unlicensed. The girls had known each other since grade school, but did not become close friends until their junior year of high school. Their class contained approximately 24 students.

The girls went separate ways upon arriving at the party, which was large, outdoors and, for the most part, attended by local teenagers. After an unknown period of time, Tammy and Karen Schmidt, also age 15 and unlicensed, approached Susan and asked to borrow her car. Schmidt testified it was Tammy who obtained the keys from Susan and drove the car from the party. Susan did not remember which girl took the car keys, nor did she notice whether the girls appeared intoxicated.

According to Schmidt's deposition testimony, Tammy drove from the party to town, where Schmidt then took the wheel. Schmidt indicated Tammy had no difficulty driving as they left the party; however, she denied telling an insurance adjuster that the girls switched drivers because Tammy "wasn't in good shape, she had been drinking." Just prior to the accident, Tammy accelerated to what Schmidt estimated was 60 miles per hour. Further details are unknown because the accident occurred while Schmidt was turned to retrieve a hairbrush from the backseat. Tammy was apparently thrown from the car when it flipped over once in the ditch. Schmidt was not hurt.

Two empty wine bottles were retrieved from the wreckage. Tammy died four days later from a severe head injury. Her blood-alcohol level was measured at 0.11.

A motion for summary judgment should be granted only "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005(c); see also Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) Summary judgment is a drastic method of disposing of litigation and should be allowed only where the evidence, when construed strictly against the movant and liberally in favor of the opponent, establishes the right of the moving party is free and clear from doubt. (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871; Beals v. Huffman (1986), 146 Ill. App. 3d 30, 496 N.E.2d 281; Handley v. Unarco Industries, Inc. (1984), 124 Ill. App. 3d 56, 463 N.E.2d 1011.) A genuine issue of material fact exists and summary judgment is inappropriate if a reasonable man could draw different inferences from the facts presented. (Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App. 3d 482, 448 N.E.2d 1042.) An order allowing summary judgment will be reversed on appeal if the reviewing court determines that a genuine issue of material fact exists. Addison v. Whittenberg (1988), 124 Ill. 2d 287, 529 N.E.2d 552.

The trial court allowed summary judgment in this case after viewing the facts as follows: Susan, age 16, loaned her mother's car to Tammy, age 15, knowing Tammy was unlicensed to drive and intoxicated. From the deposition of Tammy's passenger, Karen Schmidt, the trial court concluded Tammy drove the vehicle in a negligent manner, which resulted in a one-car accident and Tammy's death. The trial court held:

"The evidence shows clearly that it was the negligence of the decedent which was the proximate cause of her injury and death. . . .

Illinois does not presently recognize a cause of action by a bailee for negligent entrustment against a bailor. This court also agrees that if the plaintiff can recover for negligent entrustment, her claim is self-defeating as a matter of law since the depositions show deceased was more than 50 percent responsible for her own injuries."

Plaintiff filed a motion to reconsider on the grounds the trial court erroneously applied the modified form of comparative negligence law (Ill. Rev. Stat. 1987, ch. 110, par. 2-1116), rather than the law in effect at the time of Tammy's death, which was the pure form as enunciated in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886. In a subsequent order, the trial court admitted it mistakenly applied the law as though Tammy's 50% responsibility for her injuries would bar her recovery; however, it adhered to the original order. The court remained concerned about the proximate cause issue. It stated:

"How would the fact finder compare the negligence of the entrustor with that of the entrustee and how would a jury determine the issue of proximate cause? One argument might be if the entrustment had not been made, no accident would have occurred. The other argument [is] that if the vehicle had not been driven in a negligent manner, the entrustment would have been of no consequence. This court is of the opinion you cannot program cause and effect into such a process and expect a jury to make that type of decision."

The only question presented is the correctness of the trial court's award of summary judgment to defendant. To answer this question, we must decide whether to recognize a cause of action for negligent entrustment by the entrustee against the entrustor and allow a jury to weigh the relative fault of each under the doctrine of comparative negligence.

As we noted almost a decade ago in State Farm Fire & Casualty Co. v. McGlawn (1980), 84 Ill. App. 3d 107, 110, 404 N.E.2d 1122, 1124, "Illinois has long recognized the tort of negligent entrustment. (Bensman v. Reed (1939), 299 Ill. App. 531, 20 N.E.2d 910; Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 370 N.E.2d 1235; Giers v. Anten (1978), 68 Ill. App. 3d 535, 386 N.E.2d 82.)." In Bensman, the plaintiff was injured when an automobile driven by defendant's son turned in front of and collided with a motorcycle on which plaintiff was riding as a guest. Plaintiff complained the defendant-automobile owner negligently entrusted ...

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