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06/09/95 DANIEL L. RAINEY v. STANLEY J. PITERA

June 9, 1995

DANIEL L. RAINEY, JR., A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, DANIEL L. RAINEY, SR., AND DANIEL L. RAINEY, SR., INDIV., PLAINTIFFS-APPELLANTS,
v.
STANLEY J. PITERA, JR., A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, STANLEY J. PITERA, SR., DARLENE C. MESKO, AND ELAINE MESKO, DEFENDANTS, (STANLEY J. PITERA, SR., DEFENDANT-APPELLEE).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE WILLARD J. LASSERS, JUDGE PRESIDING.

Presiding Justice Cousins delivered the opinion of the court: Gordon and McNULTY, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

The plaintiffs, Daniel L. Rainey, Jr., and Daniel L. Rainey, Sr., filed a complaint which included three counts against the defendant, Stanley J. Pitera, Sr. Rainey Jr. was a passenger on defendant's motorcycle when defendant's son drove the motorcycle and had an accident. The plaintiffs' complaint alleged two counts against the defendant for negligent entrustment of the motorcycle and one count of negligence stemming from social host liability. The defendant moved for summary judgment on all three counts pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 1992)), arguing that he had not entrusted his motorcycle to his son or abetted his alcohol use. The trial court granted summary judgment to the defendant on all counts, from which the plaintiffs now appeal.

We affirm.

BACKGROUND

On March 14, 1990, Rainey Jr. was a passenger on defendant's motorcycle as it was driven by defendant's son, Stanley J. Pitera, Jr. As it was turning, the motorcycle was struck by an automobile. Rainey Jr. suffered a brain stem injury in the accident.

Plaintiffs filed their third amended complaint on October 22, 1991. Counts II, VIII, and XIII were directed against the defendant. Counts II and VIII both alleged negligent entrustment by the defendant in allowing his son to use the motorcycle, with the counts differing only in the relief prayed for. Count XIII sounded in social host liability, alleging negligence by the defendant in allowing his minor son access to alcohol.

Defendant filed his first amended motion for summary judgment as to counts II, VIII, and XIII on July 26, 1993. Defendant's motion set out the following facts about the accident, supported by depositions.

Prior to allowing his son to drive the motorcycle, defendant registered his son for a class in motorcycle safety at Northern Illinois University. The son completed the class prior to getting his motorcycle driver's license. Defendant gave his son keys to the motorcycle, but established four rules for its use: the son had to get prior permission from defendant, he had to wear a helmet, he could not use the motorcycle with a passenger on back, and he could only use the motorcycle in good weather. Before the accident, the son had never violated any of these rules.

On the day of the accident, March 14, 1990, defendant was at work from noon until 8 p.m. At around 6 P.M. that day, defendant's son called defendant to ask permission to drive the motorcycle to a skating rink. Defendant gave his permission, telling his son, "Just go to the roller rink, show everybody and come right home with it."

At the rink, defendant's son met Rainey Jr. They went back to defendant's house at 6:30 p.m. At defendant's house they took a bottle of scotch out of a cabinet and made some drinks.

At 8 p.m. defendant's son, without permission, started driving the motorcycle with Rainey Jr. as a passenger. They were driving to Rainey Jr.'s girlfriend's house. A car struck the motorcycle while it was turning at 8:15 p.m. A blood alcohol test was performed on defendant's son at the hospital, and the test revealed a trace of alcohol, "less than the amount from taking a dose of cough syrup" according to the technician.

Defendant argued that these facts established that no negligent entrustment took place because either (1) there was no entrustment; or (2) defendant had no knowledge of any alleged incompetence in his son's driving; or (3) defendant's son was not an incompetent driver. Defendant also argued that the social host liability count did not state a legally recognizable claim and that defendant had not abetted his son's alcohol use. The plaintiffs did not dispute the defendant's facts, and the trial court heard oral argument on the motion on October 7, 1993. The court agreed with all three of defendant's contentions as to the negligent entrustment counts, as well as defendant's arguments as to the ...


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