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08/30/89 Lillian Burrgess Kosrow, v. Ronald S. Acker

August 30, 1989

MARY ANN HOFFMAN, DECEASED, ET AL., PLAINTIFFS-APPELLEES

v.

RONALD S. ACKER, DEFENDANT (JEFFREY C. SMITH, DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

LILLIAN BURRGESS KOSROW, Personal Adm'r of the Estate of

544 N.E.2d 804, 188 Ill. App. 3d 778, 136 Ill. Dec. 118 1989.IL.1338

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. INGLIS and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiffs, administrators of the estates of Mary Hoffman, Beverly Robinson, and Colleen Byrne, brought suit against Ronald Acker and Jeffrey Smith. Decedents were killed in an auto accident when their car was hit by a Cadillac owned by Smith and driven by Acker. Acker, who was the only occupant of the Cadillac at the time of the accident, admitted liability and does not appeal.

Plaintiffs sued Smith for negligent entrustment of his automobile. At the close of plaintiffs' case, Smith moved for a directed verdict. This was denied, as was Smith's motion for directed verdict at the close of all the evidence. The jury found Smith liable for negligent entrustment and awarded Mary Hoffman's estate $1,005,481; Beverly Robinson's estate, $504,429; and Colleen Byrne's estate, $535,233. In a post-trial motion, Smith moved to vacate the denial of his motion for directed verdict and grant judgment in his favor notwithstanding the verdict. Smith appeals the denial of this motion, raising three issues: (1) whether the jury's verdict was against the manifest weight of the evidence; (2) whether the court erred in allowing testimony of grief and sorrow of the next of kin; and (3) whether the court erred in instructing the jury as to the elements of damage. We address only appellant's first issue as we find, for the reasons stated below, that the jury verdict cannot stand.

The evidence relevant to this issue includes the following.

Defendant, Jeffrey Smith, testified as follows: At the time of the accident, he was 16. His father had purchased a Cadillac for him in June 1984. He had two sets of keys to the car. No other family members had a set. He kept one set in a locked box in his bedroom closet, and he usually kept the other set with him.

On March 1, he was at home from 3:30 p.m. to 7 p.m. At 7 p.m. he went out with some friends. He did not drive the Cadillac. Instead, he took his father's Bronco because it had a cassette player. He left his Cadillac keys on his bedroom dresser that night, according to a statement he later made to a police officer. At trial he stated he left his keys in an area in the dresser that was five inches high and deep, not a flat surface of a top of a dresser. He did not talk to Acker at all on March 1. Later that night, during the early morning hours of March 2 while returning home, he came to traffic stopped on Route 176. He saw lights indicating an accident, but he did not see any damaged vehicles. He turned around and took a different route home. Arriving home, he parked the Bronco about 25 feet from where the Cadillac had been parked. He went inside and went to bed. He did not see the Cadillac when he parked the Bronco, but he did not recall looking for it when he came home.

The next morning he was told that Acker had been in an accident with his car. He rode his bicycle to work. After he returned home from work at 4 p.m., he went with his father, at his father's request, to report the Cadillac stolen. He did not want Acker prosecuted, but he wanted a public record that the car was reported stolen.

Defendant testified that Acker, his stepbrother, lived in his family's house from November 1984 to March 1985. The family house had two bedrooms upstairs and one bedroom downstairs. There was also a room upstairs that had previously been a bedroom and was now a closet. He shared the downstairs bedroom with his brother, Robert, until Robert moved out sometime before March 1, 1985. Defendant did not share his bedroom with Acker. He said Acker slept on the couch in the living room.

Defendant said there were no times when he let Acker drive his car. Acker asked for the car a number of times, but he refused him permission. Specifically, he did not let Acker drive them to a Union 76 station. Defendant did drive Acker places on a number of occasions. He knew Acker's license had been suspended for driving under the influence, but ...


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