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01/30/98 MARY ELLEN UMBLE v. SANDY MCKIE AND SONS

MARY ELLEN UMBLE, PLAINTIFF-APPELLANT,
v.
SANDY MCKIE AND SONS, INC., DEFENDANT-APPELLEE.



No. 95--L--167 Appeal from the Circuit Court of Lake County. Honorable Bernard E. Drew, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN delivered the opinion of the court:

Plaintiff, Mary Ellen Umble, appeals the order of the circuit court of Lake County dismissing her complaint against defendant, Sandy McKie & Sons, Inc. Plaintiff contends that the court should not have dismissed her complaint because it sufficiently stated causes of action for concert of action and negligent entrustment.

I. Background

Plaintiff's second amended complaint alleges that, on December 27, 1994, Jerome Butzen brought his car to defendant for service. Butzen was intoxicated at the time, and this condition was apparent to defendant's employees. Defendant repaired Butzen's car, including fixing a leaking tire and replacing a burned-out headlight. Butzen paid for the repairs, and defendant returned the car to him. Shortly thereafter, Butzen's car collided with one driven by plaintiff's decedent, Phillip Umble. Plaintiff alleges that defendant was negligent in giving car keys to an obviously intoxicated driver and that this negligence proximately caused Phillip Umble's death.

The trial court granted defendant's motion to dismiss the complaint, holding that defendant owed no duty to plaintiff's decedent to prevent Butzen from continuing to drive. After the court denied her motion to reconsider, plaintiff filed a timely notice of appeal.

The trial court dismissed plaintiff's complaint pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1994)). In considering a motion to dismiss, all well-pleaded facts must be taken as true and all inferences drawn in favor of the nonmovant. Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 473 (1990). A complaint should not be dismissed for failing to state a claim unless it clearly appears that no set of facts could be proved under the allegations that would entitle the plaintiff to relief. Meerbrey, 139 Ill. 2d at 473. We review de novo the dismissal of a complaint under section 2--615. In re Estate of Vogel, 291 Ill. App. 3d 1044, 1046 (1997).

II. Substantial Assistance

Plaintiff first contends that the court erroneously dismissed her complaint because it adequately states a cause of action under a "concert of action" or "substantial assistance" theory. Section 876 of the Restatement of Torts provides:

"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person." Restatement (Second) of Torts §876 (1979).

Plaintiff contends that by fixing Butzen's car, defendant rendered him "substantial assistance or encouragement" in his activity of driving drunk. We disagree.

The complaint contains no allegation that any of defendant's employees actively encouraged Butzen to get back in his car and drive. We do not equate failing to prevent certain conduct from actively encouraging that conduct. Moreover, the complaint's allegations do not establish that defendant provided substantial assistance to Butzen. There is no allegation that Butzen's car was inoperable before defendant made the repairs. The most reasonable inference from the complaint is that Butzen drove the car into the dealership. Had defendant refused to make the repairs, Butzen could ...


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