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06/08/95 MARIA TREVINO v. FLASH CAB CO.

June 8, 1995

MARIA TREVINO, PLAINTIFF-APPELLANT,
v.
FLASH CAB CO., A CORPORATION, AND LEWIS CARMICHAEL, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ODAS NICHOLSON, JUDGE PRESIDING.

Presiding Justice Hoffman delivered the opinion of the court. S. O'brien, J., concurs. Justice Cahill, concurring in part and dissenting in part.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

In this case, we examine the propriety of orders of summary judgment entered against the plaintiff, Maria Trevino, in an action seeking damages for injuries sustained as an alleged consequence of her wrongful ejection from the defendants' taxi.

In her original complaint for negligence, the plaintiff sought recovery for injuries sustained when she slipped and fell on an accumulation of ice and snow after being ejected from the defendants' cab. Counts I and II of the original complaint, pled in the alternative, differed only in the duty of care allegedly owed by the defendants to the plaintiff: count I alleged that the highest duty of care was owed, while count II alleged a duty of ordinary care.

On April 5, 1993, the trial court granted the defendants' motion for summary judgment on both counts. On April 16, 1993, the plaintiff filed a motion to vacate that order, and sought leave to file an amended complaint containing counts I and II of her original complaint, and adding count III alleging willful and wanton misconduct and count IV alleging false imprisonment. On August 26, 1993, the trial court denied the plaintiff's motion to vacate and denied leave to file counts I and II of her proposed amended complaint, but granted the plaintiff leave to file counts III and IV of her amended complaint, which she did on August 30, 1993.

On January 5, 1994, the trial court granted the defendants' motion for summary judgment on counts III and IV of the plaintiff's amended complaint. The plaintiff has appealed the summary judgment entered on counts I and II of her original complaint, the denial of her motion to vacate that order, and the summary judgment granted on counts III and IV of her amended complaint. For the reasons which follow, we affirm in part, reverse in part, and remand this action to the circuit court for further proceedings.

Because our review of the summary judgments entered in this action is de novo ( In re Estate of Hoover (1993), 155 Ill. 2d 402, 615 N.E.2d 736, 185 Ill. Dec. 866), we have examined all of the pleadings and evidentiary material on file at the time of the entry of the orders appealed from in their light most favorable to the plaintiff ( Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397, 47 Ill. Dec. 392). From that evidentiary material taken with its inferences most favorable to the plaintiff ( Lapidot v. Memorial Medical Center (1986), 144 Ill. App. 3d 141, 494 N.E.2d 838, 98 Ill. Dec. 716), we adduce the following facts relevant to the disposition of this appeal.

Due to inclement weather conditions existing in Chicago on January 5, 1991, the plaintiff arranged to be driven from her home at 1243 West Nelson to Illinois Masonic Hospital located at 836 West Wellington, which was a distance of about four city blocks. When she arrived at the hospital for a scheduled physical check-up at about 8:00 a.m., it was cold, windy, and snowing; about two inches of snow had accumulated on the ground.

Upon completion of her examination at 11:00 a.m., the plaintiff telephoned the defendant, Flash Cab Co., and requested that a taxi be dispatched to take her from the hospital to her home. At 11:15 a.m., a Flash cab driven by the defendant, Lewis Carmichael, arrivedat the hospital in response to the plaintiff's call. The plaintiff entered the defendants' taxi, announced her destination as 1243 West Nelson, and offered Carmichael directions. After declining the plaintiff's offer, Carmichael, who was unfamiliar with the area, took several wrong turns. With each wrong turn, the plaintiff offered directions, but Carmichael ignored her.

When the taxi reached Racine and Diversey, five blocks from the plaintiff's intended destination, Carmichael stopped the vehicle and ordered the plaintiff out. Not wishing to walk through the snow, the plaintiff again offered Carmichael directions to her home, but he profanely ordered her out of the cab. The plaintiff complied and Carmichael drove off. When she exited the vehicle there was snow, ice, and slush throughout the entire vicinity. The streets and sidewalks had not been cleared and about three inches of snow had accumulated on the ground.

Upon exiting the vehicle, the plaintiff walked to the corner of Racine and Diversey where she attempted to find another taxi. After waiting eight minutes, she decided to walk home. She proceeded north on the west sidewalk of Racine. After walking approximately 560 feet, the plaintiff slipped on ice beneath the snow on the sidewalk, fell, and was injured.

Before analyzing the propriety of the summary judgments granted in this case, we will address the defendants' claim that the plaintiff waived her right to appeal the summary judgment entered on counts I and II of her original complaint by filing an amended complaint. The defendants are correct in stating that the filing an amended complaint without incorporating the original complaint acts as a waiver of any objection to the dismissal of the original complaint. ( Pfaff v. Chrysler Corp. (1992), 155 Ill. 2d 35, 610 N.E.2d 51, 182 Ill. Dec. 627; Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 449 N.E.2d 125, 70 Ill. Dec. 251.) However, we disagree with the defendants' application of that principal to the facts of this case for three reasons: (1) counts I and II of the plaintiff's original complaint were not dismissed, but rather, the trial court granted summary judgment thereon; (2) the plaintiff sought and was denied leave to file an amended complaint incorporating counts I and II; and (3) counts III and IV of the amended complaint refer to and incorporate a number of the factual allegations contained in count I of the plaintiff's original complaint. Consequently, we find no waiver in this case.

In moving for summary judgment on counts I and II, the defendants argued that: (1) they cannot be held liable for injuries sustained from a slip and fall on a natural accumulation of ice andsnow; (2) their duty to the plaintiff ended when she safely alighted from the cab and had a reasonable opportunity to reach a place of safety; (3) a common carrier is not liable to a discharged passenger who slips on premises not owned by the carrier; and (4) as a matter of law, their conduct was not a proximate cause of the plaintiff's injury. The defendants made essentially the same arguments in moving for summary judgment on counts III and IV. We will address the summary judgment granted as to Count IV, ...


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