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06/22/94 DENNIS E. TAITT AND MARCELLA LOU LACY v.

June 22, 1994

DENNIS E. TAITT AND MARCELLA LOU LACY, PLAINTIFFS-APPELLANTS,
v.
DAVID K. ROBINSON AND LEROY ROBINSON, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Williamson County. No. 91-L-91. Honorable William H. Wilson, Presiding Judge.

Petition for Leave to Appeal Denied December 6, 1994.

Maag, Goldenhersh, Rarick

JUSTICE MAAG delivered the opinion of the court:

This is a personal injury action filed by the plaintiffs, Dennis Taitt and Marcella Lou Lacy, against the defendants, David Robinson and Leroy Robinson. On December 7, 1989, David Robinson was operating a pickup truck on the Colp Blacktop in Williamson County, traveling in an easterly direction. The truck belonged to David's father, Leroy Robinson. At the same time, Dennis Taitt was operating his own pickup truck on the Colp Blacktop and traveling in a westerly direction. Marcella Lacy was riding as a passenger in the Taitt vehicle. A collision occurred between the vehicles, and Taitt and Lacy allege that they were injured.

Taitt and Lacy sued David Robinson and Leroy Robinson as a result of the collision. David was sued in counts I, II, and III on a negligence theory premised upon his own alleged acts or omissions. Leroy Robinson was sued in counts IV, V, and VI on a negligent entrustment theory.

Discovery proceeded in the case, and ultimately a summary judgment motion was filed on behalf of Leroy Robinson with respect to all counts directed against him. The motion alleged that at the time of the collision, David Robinson was operating the truck ownedby Leroy Robinson without any permission, either express or implied. Therefore, it was claimed that no entrustment had occurred.

In an order entered January 14, 1993, and filed the next day, the circuit court granted the motion and entered judgment in favor of Leroy Robinson on all counts directed against him. Thereafter, in an order entered on February 22, 1993 and filed the next day, the circuit court made a finding pursuant to Supreme Court Rule 304 (134 Ill. 2d R. 304) with respect to the summary judgment order, and plaintiffs appealed. For reasons which follow, we affirm in part, reverse in part, and remand.

For purposes of this decision we need not recite the facts dealing with the accident itself. Nor is it necessary to review the facts that are claimed to constitute a bad driving record on David's part. The sole issue we are confronted with in this appeal is whether the undisputed facts and inferences to be drawn therefrom entitle Leroy Robinson to summary judgment on the element of entrustment.

Summary judgment is proper only in those cases where the undisputed evidence and inferences to be drawn therefrom, when viewed in the light most favorable to the opponent of the motion, establish the movant's right to judgment as a matter of law. ( Pelczynski v. J.W. Peters & Sons, Inc. (1989), 178 Ill. App. 3d 882, 533 N.E.2d 1137, 128 Ill. Dec. 49.) Any doubt as to the movant's right to summary judgment should be resolved by trial rather than summary judgment. ( Wegener v. Anna (1973), 11 Ill. App. 3d 316, 296 N.E.2d 589.) It is only when the party seeking summary judgment demonstrates that his right to judgment is clear, free from doubt, and determinable solely as a matter of law that the summary judgment should be entered. Plastics & Equipment Sales Co. v. De Soto, Inc. (1980), 91 Ill. App. 3d 1011, 415 N.E.2d 492, 47 Ill. Dec. 487.

A negligent entrustment cause of action arises where a person entrusts an automobile to another whose incompetency is known or should be known to the entruster and the incompetence of the person receiving the automobile causes injury to another. ( Giers v. Anten (1978), 68 Ill. App. 3d 535, 386 N.E.2d 82, 24 Ill. Dec. 878; Bensman v. Reed (1939), 299 Ill. App. 531, 20 N.E.2d 910.) In a negligent entrustment action there are two primary considerations: (1) Whether the owner entrusted his car to an incompetent or unfit driver, and (2) Whether the incompetency was a proximate cause of the accident. The negligent act of giving the car to the unfit driver, not the scope of the consent, is the basis of the cause of action. Pelczynski, 178 Ill. App. 3d at 886, 533 N.E.2d at 1140.

A necessary prerequisite for finding an entrustment is the matter of consent. Consent to use the automobile may be either express or implied. Kosrow v. Acker (1989), 188 Ill. App. 3d 778, 544 N.E.2d 804, 136 Ill. Dec. 118.

In the case at bar, the plaintiffs claimed that Leroy Robinson gave both express and implied permission to David to use his truck. We will discuss these separately.

Plaintiffs argue that express permission was given to use the truck at the time of the collision. Both David and Leroy Robinson dispute this. It is undisputed that David was given permission to use the truck earlier in the day, but only in the farm fields.

Taitt and Lacy argue that this amounts to express consent because the issue is not the scope of the consent but only whether any consent for use was given. They rely upon Pelczynski for this proposition. Leroy Robinson points to his own discovery deposition and that of his son, David, to support the claim that no express consent was given. We have reviewed the record and conclude that no express permission was given to operate the truck at the time of the accident. While it is true that David used the truck earlier in the day on the farm and with permission, he had returned it to his father prior to the accident and no further express permission was given prior to the accident. There was express ...


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