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BRADLEY v. AVIS RENTAL CAR SYS.

October 10, 1995

WALLACE BRADLEY, Plaintiff,
v.
AVIS RENTAL CAR SYSTEM, INC., a Delaware Corporation licensed to do business in Illinois, Defendant.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff, Wallace Bradley, brings this diversity jurisdiction action against defendant, Avis Rental Car System, Inc., asserting claims for negligence, negligent infliction of emotional distress, defamation per se, malicious prosecution and willful and wanton misconduct. Defendant has moved for summary judgment on all counts pursuant to Fed. R. Civ. P. 56(b). For the reasons stated below, the court denies the defendant's motion for summary judgment with respect to Counts I (negligence) and V (willful and wanton misconduct), and grants defendant's motion for summary judgment on Counts II, III, and IV (negligent infliction of emotional distress, defamation per se, and malicious prosecution, respectively).

 FACTS

 On July 25, 1993, plaintiff presented a drivers license and passport to an agent of defendant, Linda Wilson ("Wilson"), at O'Hare International Airport and requested to rent an Avis vehicle. Plaintiff did not possess a credit card and intended to pay for the vehicle by personal check. Wilson, however, would not rent the vehicle to plaintiff without some security. John Davi ("Davis"), an acquaintance of plaintiff who was with him at the time, provided a WBBM Television Station Company Travel Voucher to secure the rental of a vehicle. Davis signed a Rental Agreement which listed Davis of WBBM as the renter of a red Cadillac. Plaintiff's name does not appear anywhere on the July 25, 1993, Rental Agreement or on an additional driver form. Nonetheless, plaintiff provided defendant with a personal check for the rental, which was ultimately deposited in defendant's corporate account.

 On August 23, 1993, plaintiff returned the red Cadillac to defendant at its O'Hare International Airport location. Plaintiff returned the vehicle alone and Wilson was, once again, the rental agent on duty. At that time, plaintiff obtained a white Cadillac, providing another WBBM Television Station Company Travel Voucher to secure payment. Wilson manually created the August 23, 1993, Rental Agreement because defendant's computer system was inoperable. The August 23, 1993, agreement again listed WBBM as the renter. Plaintiff's name did not appear on the Rental Agreement, nor was he listed as an additional driver. Wilson nonetheless gave plaintiff the keys to the white Cadillac. Defendant misplaced the manually created Rental Agreement before the computer system became operable the next day.

 After Collins and Branstiter were unable to locate the vehicle, Ronald Van Raalte, an Avis Security and Safety Manager for the Great Lakes Zone, authorized the filing of a stolen vehicle report with the Chicago Police Department on November 8, 1993. On November 24, 1994, plaintiff was arrested while in possession of the white Cadillac and subsequently charged with criminal trespass to a vehicle. On the same day, November 24, 1993, Carl Fiel, an Avis employee, signed a criminal complaint against plaintiff. On March 16, 1994, the criminal charge of trespass to a vehicle was stricken from the docket with leave to reinstate.

 SUMMARY JUDGMENT STANDARDS

 Under Fed. R. Civ. P 56(c), a court should grant a summary judgment motion if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The burden rests on the moving party to identify portions of the pleadings, answers to interrogatories, and affidavits that demonstrate an absence of a genuine issue of material fact. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The court reviewing a summary judgment motion must read the facts in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986).

 If the party opposing summary judgment bears the burden of proof on a dispositive issue, it must offer specific evidence demonstrating a factual basis on which it is entitled to relief. Id., at 256, 106 S. Ct. at 2514. The party opposing summary judgment may not rely on conclusory allegations or speculation. Anderson v. Stauffer Chemical Co., 965 F.2d 397, 402 (7th Cir., 1992). Instead, the non-moving party must set forth specific facts, through affidavits or other materials, that demonstrate disputed material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S. Ct. at 2514. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id., 477 U.S. at 247-248, 106 S. Ct. at 2510.

 COUNT I - NEGLIGENCE

 Count I of plaintiff's complaint alleges a claim for negligence. To prevail on a negligence claim a plaintiff must prove: 1) the existence of a duty owed by the defendant to the plaintiff; 2) a breach of that duty; and 3) an injury proximately caused by the breach of duty. Teter v. Clemens, 112 Ill. 2d 252, 97 Ill. Dec. 467, 492 N.E.2d 1340 (1986). Defendant argues that it does not owe a duty to plaintiff and is therefore entitled to judgment as a matter of law.

 Plaintiff contends that defendant owed him several duties:

 
1) to exercise reasonable care in maintaining their records and similar data;
 
2) to exercise reasonable care in the administration of their procedures to ensure that all automobiles are correctly accounted for and able to be located;
 
3) to demand in writing the return of any rented automobile before reporting the automobile stolen;
 
4) to research thoroughly the location of any automobile before reporting the automobile stolen;
 
5) not to act in any manner that would injure plaintiff's reputation or well being;
 
6) to act with reasonable diligence to confirm the validity of any evidence that would exculpate plaintiff against charges of auto theft or trespass to vehicle;

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