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06/12/96 CONSTITUTIONAL CASUALTY COMPANY v. CLAUDE

June 12, 1996

CONSTITUTIONAL CASUALTY COMPANY, A CORPORATION, PLAINTIFF-APPELLEE,
v.
CLAUDE SODER, JOAN SODER, SPICIE BOCARDO AND VERONICA BARNES, A MINOR, BY SPICIE BOCARDO, HER MOTHER AND NEXT FRIEND, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Lester Foreman, Judge Presiding.

Presiding Justice Tully delivered the opinion of the court: Rizzi and Greiman, JJ., concur.

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

Defendants, Claude Soder (hereinafter Claude), Joan Soder (hereinafter Joan), Spicie Bocardo, individually and as mother and next friend of Veronica Barnes (hereinafter Veronica), a minor, appeal from an order of the circuit court of Cook County denying their motion for summary judgment under section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 1992)) against plaintiff, Constitutional Casualty Company, a corporation, and granting plaintiff's cross-motion for summary judgment against defendants. Jurisdiction is vested in this court pursuant to section 6 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, ยง 6) and Supreme Court Rule 301 (155 Ill. 2d R. 301).

For the reasons which follow, we reverse and remand.

FACTUAL BACKGROUND

On April 9, 1990, Joan was babysitting 3 1/2-year-old Veronica and a second child named Anthony. On that date, Joan arranged to drop Anthony off at his home and then drive Veronica to the park. When Joan reached Anthony's home, she left Veronica in the car while she took Anthony into his house. Joan was in Anthony's home for about 5 minutes. During that time the car caught fire and Veronica was burned. Joan does not know how the fire began. The automobile belonged to Claude and Joan was a permissive user of it. At the time of this incident the vehicle was insured under a policy of insurance, number PAO 0086378, underwritten by plaintiff.

On June 7, 1991, Bocardo, Individually and as mother and next friend of Veronica, filed a two-count complaint against Joan. Count I alleged that Joan negligently committed one or more of the following acts or omissions:

"a) left a cigarette lighter in the vehicle when she knew of the dangerous propensity of said lighter;

b) left a cigarette lighter in the vehicle when she knew or should have known of the propensity of the minor plaintiff to play with the object;

c) left the minor plaintiff in the vehicle by herself;

d) left the minor plaintiff in the vehicle when she knew the minor plaintiff was entrusted to her care;

e) failed to take the minor plaintiff with her into [Anthony's] residence ***;

f) was otherwise careless or negligent in her actions ...


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