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Scott v. Aldi

November 13, 1998

DONNETTE SCOTT, PLAINTIFF-APPELLANT,
v.
ALDI, INC., A CORPORATION, DEFENDANT-APPELLEE, JOHN SPANN, ESTATE OF RETHA M. JONES, DECEASED, BY MARK DEBOFSKY, SPECIAL ADMINISTRATOR, DEFENDANTS.



The opinion of the court was delivered by: Presiding Justice Campbell

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY.

HONORABLE EDWARD R. BURR, JUDGE PRESIDING.

Plaintiff Donnette Scott appeals the dismissal of count III of her three count amended complaint against defendant Aldi, Inc. (Aldi) in a personal injury action. Defendants John Spann and the Estate of Retha M. Jones, deceased, by Mark Debofsky as special administrator, are not parties to this appeal.

The record on appeal indicates that plaintiff initially filed suit on May 9, 1996. The amended complaint at issue here was filed on October 4, 1996.

Plaintiff's amended complaint contains the following allegations. Aldi is an Indiana corporation that owned and operated a supermarket near the intersection of 63rd Street and Lowe Avenue in Chicago, Illinois. Aldi, through its agents or employees, allegedly entered into an agreement, arrangement, combination or conspiracy with other parties to operate an unlawful vehicle-for-hire or livery or taxi business on its premises.

Aldi's employees allegedly allowed and permitted to operate the unlawful taxi business upon its premises and parking lot. Aldi allegedly encouraged, allowed and permitted persons within the store to solicit Aldi customers for the unlawful taxi business. Aldi also permitted its employees to escort check-out customers from the store to for-hire vehicles lined up in the parking lot. Aldi also allowed a person wearing a uniform or other apparel to stand in front of the main exit, direct for-hire vehicles to the front of the store and to escort customers into these vehicles.

Plaintiff also alleged that Aldi knew or should have known that the owners or drivers of the for-hire vehicles were engaged in an unlawful vehicle-for-hire or livery or taxi business, because it was allegedly obvious that the owners or drivers were soliciting business and were not licensed by the City of Chicago, lacked proper liability insurance, failed to have the vehicles properly inspected, failed to have a proper emblem, and failed to have valid chauffeur's licenses, in violation of the Chicago Municipal Code and the Illinois Vehicle Code. See 625 ILCS 5/1-111, 8-101 et seq. (West 1996); Chicago Municipal Code §§ 9-112-020, 9-112-030, 9-112-050, 9-112-170, 9-112-220, 9-112-240, 9-112-340 (1990).

Plaintiff further alleged that on May 27, 1994, she was escorted by an individual working in the supermarket from the check-out counter to the front of the store where the uniformed person summoned a for-hire vehicle driven by Jones. This vehicle then became involved in a collision with a car driven by defendant Spann, killing Jones and injuring plaintiff. Although Jones carried an insurance policy on her vehicle, her insurer denied coverage on the ground that the car was being used in a for-hire business at the time of the collision.

Counts I and II of the amended complaint allege negligence on the part of Spann and Jones, respectively. Count III alleges civil conspiracy on the part of Aldi. On October 29, 1996, Aldi filed a motion to dismiss for failure to state a claim. On January 15, 1997, following briefing of the matter, the trial court granted Aldi's motion to dismiss, along with a finding that there was no just reason to delay enforcement or appeal of the order. Plaintiff filed a motion for rehearing on January 31, 1997. The trial court denied the motion for rehearing on April 14, 1997. Plaintiff filed a timely Notice of Appeal to this court.

The sole issue on appeal is whether the trial court erred in dismissing count III of plaintiff's amended complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)(Code). It is well settled that when reviewing the trial court's ruling on a section 2-615 motion, this court accepts as true all well-pleaded facts and draws from those facts all reasonable inferences which may be deemed favorable to the non-moving party. Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp., 218 Ill. App. 3d 383, 388, 577 N.E.2d 1344, 1349 (1991). This court is not required to defer to the trial court's judgment in considering the motion; the question of whether a motion was properly granted or denied is one of law and is reviewed de novo. T & S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1084, 634 N.E.2d 306, 308 (1994).

Count III of the amended complaint alleges civil conspiracy, which consists of a combination of two or more persons for the purpose of accomplishing by some concerted action either an unlawful purpose or a lawful purpose by unlawful means. Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62, 645 N.E.2d 888, 894 (1994). The function of a conspiracy claim is to extend liability in tort beyond the active wrongdoer to those who have merely planned, assisted or encouraged the wrongdoer's acts. Adcock, 164 Ill. 2d at 62, 645 N.E.2d at 894, citing W. Prosser, Torts § 46, at 293 (4th ed. 1971). Once a defendant knowingly agrees with another to commit an unlawful act or a lawful act in an unlawful manner, that defendant may be held liable for any tortious act committed in furtherance of the conspiracy, whether such tortious act is intentional or negligent in nature. Adcock, 164 Ill. 2d at 64, 645 N.E.2d at 894.

However, an agreement to commit a wrongful act is not a tort, even if it might be a crime. Adcock, 164 Ill. 2d at 63, 645 N.E.2d at 894, citing W. Prosser, Torts § 46, at 293 (4th ed. 1971). A cause of action for civil conspiracy exists only if one of the parties to the agreement commits some act in furtherance of the agreement, which is itself a tort. Adcock, 164 Ill. 2d at 63, 645 N.E.2d at 894, citing W. Prosser, Torts § 46, at 293 (4th ed. 1971). The gist of a civil conspiracy claim is not the agreement itself, but the tortious acts performed in furtherance of the agreement. Adcock, 164 Ill. 2d at 63, 645 N.E.2d at 894, citing W. Prosser, Torts § 46, at 293 (4th ed. 1971). "It is only where means are employed, or purposes are accomplished, which are themselves tortious, that the conspirators who have not acted but have promoted the act will be held liable." Adcock, 164 Ill. 2d at 63, 645 N.E.2d at 894, quoting W. Prosser, Torts § 46, at 293 (4th ed. 1971).

In this case, the trial court dismissed count III of the amended complaint on the ground that the alleged conspiracy "was to do something which is prohibited by law but which does not constitute a tort." The trial court had concluded that the "tort was the negligent driving of the vehicle and the conspiracy was not one which was created so that somebody could operate a vehicle negligently." In support of this ruling, Aldi relies on the aforementioned rule from Adcock that an agreement to commit a wrongful act is not a tort, even if it might be a crime. Aldi also relies on Galinski v. Kessler, 134 Ill. App. 3d 602, 480 N.E.2d 1176 (1985), in which this court held that the plaintiff could not state a cause of action for conspiracy to commit barratry -- a criminal offense -- because there is no civil cause of action for barratry.

Thus, the question is whether the operation of an unlicensed, uninsured for-hire vehicle service is not only illegal, but also tortious conduct. The word "tortious" generally describes conduct which may subject a defendant to liability under the law of torts. Restatement (Second) of Torts ยง 6 (1977). Plaintiff notes that the violation of a statute or ordinance designed to protect human life or property is prima facie ...


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