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April 20, 1995


The Honorable Justice Miller delivered the opinion of the court:

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

Plaintiff, John Zedella, brought an action in the circuit court of Jackson County seeking to recover for injuries he sustained in an automobile accident. In one count of his amended complaint, Zedella sought recovery under a negligent entrustment theory from the father of the driver of the car in which Zedella had been riding. The circuit court granted the father's motion to dismiss that portion of the complaint. With one justice dissenting, the appellate court reversed the dismissal order and remanded the cause for further proceedings. (248 Ill. App. 3d 777.) We allowed the father's petition for leave to appeal (145 Ill. 2d R. 315(a)), and we now reverse the judgment of the appellate court.

The present case arises from an automobile accident that occurred in Carbondale on April 4, 1990. Zedella, a passenger in a 1987 Dodge Shadow vehicle being driven by Daniel Gibson, was injured when the Gibson vehicle collided with a vehicle being driven by Steven Grist. Zedella filed a complaint against the drivers of the two vehicles. Zedella later amended his complaint by adding Robert Gibson, Daniel's father, as a defendant. Zedella based his claim against Robert on a negligent entrustment theory. Specifically, count II of Zedella's first-amended complaint alleged that Robert Gibson was the owner of the automobile and had negligently entrusted its possession, use, and operation to Daniel. Alternatively, Zedella alleged that Robert was in control of the vehicle because Robert was a cosigner of the purchase money loan on the vehicle and provided financing and guarantees essential to its purchase, arranged and provided payment of insurance for the car, and retained the ability and means to deny Daniel access to the car. Zedella further alleged that Robert knew or should have known that Daniel was a dangerous and reckless driver, and in support of those allegations Zedella specified Daniel's prior traffic accident and his record of traffic convictions, including a conviction for the illegal transportation of alcohol and a disposition of supervision for driving while intoxicated. Zedella also alleged that Daniel was in violation of a number of traffic laws at the time of the accident.

Robert moved to dismiss count II of Zedella's first-amended complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-619). Robert asserted that he and Daniel were listed on the title of the vehicle as co-owners and that he therefore could not deprive his son of the possession and use of the car. Robert further argued that he never had control over the automobile and thus could not have entrusted it to his son.

An affidavit by Robert submitted in support of the dismissal motion set forth the following undisputed facts. At the time of the accident in 1990, Daniel Gibson was 23 years old, lived in Carbondale, and was a student at Southern Illinois University. Daniel kept the car at his residence in Carbondale. Robert lived in Wisconsin, owned a business in McHenry County, Illinois, and was not present at the time of the accident. Robert and Daniel were listed as co-owners on the title of the vehicle, purchased in May 1987. Daniel had asked his father to cosign merely to facilitate the purchase and loan agreement. Both intended that the vehicle was to be purchased, used, and possessed by Daniel. Robert did not participate in the negotiations for the purchase, and he did not provide any portion of the down payment. After the purchase, Daniel was responsible for making the payments on the loan and on the insurance for the vehicle. On a few occasions, however, Robert gave Daniel money to make such payments or made such payments directly on his behalf, either as a gift or for services rendered by Daniel in the family business.

In opposition to Robert's motion, Zedella submitted Robert's discovery deposition, together with a motor vehicle report from the Secretary of State setting forth Daniel's driving record. Among other things, the deposition described Daniel's employment in the family business, his ownership of a car prior to the vehicle at issue here, and Robert's knowledge of his son's driving record.

Following a hearing, the circuit court granted Robert's motion to dismiss count II of Zedella's first-amended complaint. In a written order, the circuit judge stated that "such a cause of action is too hernial to survive this Motion to Dismiss." The judge made the same ruling with respect to similar counts of negligent entrustment brought against Robert by the occupants of the other vehicle involved in the accident; their claims are not involved in the present appeal. The trial judge later made the finding necessary under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) to permit Zedella to prosecute an immediate appeal of the adverse ruling.

A divided appellate court reversed. The majority concluded that the allegations of the amended complaint stated a cause of action for negligent entrustment. (248 Ill. App. 3d at 781-82.) The court thought that Robert's assistance with the financing for the purchase was sufficient to demonstrate his control over the vehicle, and that an entrustment occurred at that time. The dissenting justice disagreed, believing that no cause of action for negligent entrustment had been stated because the co-owners had equal rights to use and possess the automobile. 248 Ill. App. 3d at 784 (Welch, J., dissenting).

The purpose of a motion to dismiss under section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-619) is to afford litigants a means to dispose of issues of law and easily proved issues of fact at the outset of a case, reserving disputed questions of fact for a jury trial. (Ill. Ann. Stat., ch. 110, par. 2-619, Historical & Practice Notes, at 662 (Smith-Hurd 1983).) Section 2-619(a)(9) allows dismissal when "the claim asserted *** is barred by other affirmative matter avoiding the legal effect of or defeating the claim." (Ill. Rev. Stat. 1991, ch. 110, par. 2-619(a)(9).) In ruling on a motion to dismiss under section 2-619, the trial court may consider pleadings, depositions, and affidavits. ( Torcasso v. Standard Outdoor Sales, Inc. (1993), 157 Ill. 2d 484, 486, 193 Ill. Dec. 192, 626 N.E.2d 225.) When supporting affidavits have not been challenged or contradicted by counter-affidavits or other appropriate means, the facts stated therein are deemed admitted. ( Kedzie & 103rd Currency Exchange, Inc. v. Hodge (1993), 156 Ill. 2d 112, 116, 189 Ill. Dec. 31, 619 N.E.2d 732.) The question on appeal is "whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law." ( Kedzie & 103rd Currency Exchange, 156 Ill. 2d at 116-17, citing 4 R. Michael, Illinois Practice § 41.9 (1989).) We believe that dismissal in this case was proper.

An action for negligent entrustment "'consists of entrusting a dangerous article to another whom the lender knows, or should know, is likely to use it in a manner involving an unreasonable risk of harm to others.'" ( Teter v. Clemens (1986), 112 Ill. 2d 252, 257, 97 Ill. Dec. 467, 492 N.E.2d 1340, quoting 1 J. Dooley, Modern Tort Law § 23.01, at 513(1977).) An automobile is not a dangerous article per se but may become one if it is operated by a person who is unskilled in its use. (See Union Bank v. Kalkhurst (1932), 265 Ill. App. 254, 259.) Thus, a person may be liable for negligently entrusting an automobile to one whom the person knows or should know is incompetent, inexperienced, or reckless. See Kosrow v. Acker (1989), 188 Ill. App. 3d 778, 783, 136 Ill. Dec. 118, 544 N.E.2d 804; Giers v. Anten (1978), 68 Ill. App. 3d 535, 538, 24 Ill. Dec. 878, 386 N.E.2d 82; Bensman v. Reed (1939), 299 Ill. App. 531, 534, 20 N.E.2d 910.

In support of their respective positions, both parties cite the general rule of liability for negligent entrustment set forth in section 308 of the Restatement (Second) of Torts. Section 308 provides:

"It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an ...

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