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LORIO v. CARTWRIGHT

July 19, 1991

CHARLOTTE LORIO, Special Administrator of the Estate of SAMUEL B. LORIO, Deceased, Plaintiff,
v.
TED CARTWRIGHT, RANGER TRANSPORTATION, INC., JOSEPH SHONK and PIONEER TRANSPORTATION SYSTEMS, INC., Defendants. JOSEPH SHONK, Cross-Plaintiff, v. TED CARTWRIGHT and RANGER TRANSPORTATION, INC., a Delaware Corporation, Cross-Defendants


George W. Lindberg, United States District Judge.


The opinion of the court was delivered by: LINDBERG

GEORGE W. LINDBERG, UNITED STATES DISTRICT JUDGE

 Cross-defendants, Ranger Transportation, Inc., and Ted Cartwright, have moved to dismiss Count III of cross-plaintiff Joseph Shonk's cross-claim. The parties filed memoranda in support of and opposition to this motion.

 Cross-defendants argued:

 
2. Counts I and II are directed against defendants CARTWRIGHT and RANGER TRANSPORTATION, INC., respectively. Count II alleges the existence of agency relationship between defendants CARTWRIGHT and RANGER TRANSPORTATION, INC.
 
3. The defendants have filed their Answers to Counts I and II wherein they admit that TED CARTWRIGHT was acting within the scope of his employment when the motor vehicle collision occurred.
 
4. Count III of the Amended Counterclaim [sic] is directed solely against RANGER TRANSPORTATION, INC., and seeks recovery under a negligent entrustment theory.
 
5. In view of the fact that defendant RANGER TRANSPORTATION, INC., has admitted that its agent, TED CARTWRIGHT, was acting within the scope of his employment when the accident occurred, the negligent entrustment count must fall.

 Cross-defendants rely upon the holding and reasoning of Neff v. Davenport Packing Company. Neff v. Davenport Packing Company, 131 Ill. App. 2d 791, 268 N.E.2d 574 (1971). See also Ledesma v. Cannonball, Inc., 182 Ill. App. 3d 718, 538 N.E.2d 655, 131 Ill. Dec. 280 (1989). The court requested the parties to submit supplemental memoranda on the effect that the adoption of comparative negligence in Illinois has on the viability of the holding and reasoning of Neff. See Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886, 52 Ill. Dec. 23 (1981); Neff v. Davenport Packing Company, 131 Ill. App. 2d 791, 268 N.E.2d 574 (1971). The parties have submitted the requested memoranda, and the court is now prepared to rule on cross-defendants' motion to dismiss Count III of the cross-claim.

 In Neff, the court reasoned:

 
Issues relating to negligent entrustment become irrelevant when the party so charged has admitted his responsibility for the conduct of the negligent actor. The liability of the third party in either case is predicated initially upon the negligent conduct of the driver and absent the driver's negligence the third party is not liable. Permitting evidence of collateral misconduct such as other automobile accidents or arrests for violation of motor vehicle laws would obscure the basic issue, namely, the negligence of the driver, and would inject into the trial indirectly, that which would otherwise be irrelevant.

 Neff v. Davenport Packing Company, 131 Ill App 2d 791, 792, 268 N.E.2d 574, 575 (1971). The Illinois Supreme Court, in a case recognizing that the holding in Neff should not be applied overly broadly, explained the rule in Neff as follows:

 Lockett v. Bi-State Transit Authority, 94 Ill 2d 66, 73, 445 N.E.2d 310, 313-14, 67 ...


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