The opinion of the court was delivered by: Justice Burke
Appeal from the Circuit Court of Cook County. Honorable David R. Donnersberger, Judge Presiding
Plaintiff Fonzy Watson, special administrator of the Estate of Latonia Fleming, deceased, and unborn Baby Fleming, appeals from an order of the circuit court granting defendant Enterprise Leasing Company's motion to dismiss plaintiff's complaint pursuant to section 2--619 of the Code of Civil Procedure (725 ILCS 5/2--619 (West 1998)). *fn1 On appeal, plaintiff contends that the trial court erred in granting defendant summary judgment because there was ample evidence creating a material question of fact on the issue of proximate cause; specifically, on the question of foreseeability that the automobile in which decedent Latonia Fleming was a passenger would be operated by someone other than the individual who rented it from defendant. Plaintiff also contends that the trial court erred in denying her request to file a second amended complaint. For the reasons set forth below, we affirm.
On June 26, 1998, Milton Pillow, on behalf of Dawn Monroe, *fn2 rented a car from defendant, *fn3 through its agent Erika Brown, who knew Dawn's brother Dan Monroe. On July 3, the rental car was taken from Dawn, either with or without permission, *fn4 by her brother-in-law Arenzo Borden. Later that evening, the car was taken from Borden, with or without permission, *fn5 by Henry Merchant, a 17-year-old. While driving the car under the influence of alcohol and marijuana and with Latonia Fleming as a passenger, Merchant crossed two lanes of traffic on the expressway and slammed into a wall, killing Fleming.
On July 29, 1998, plaintiff filed a complaint against Enterprise, Merchant, and Borden, alleging negligent entrustment against Enterprise and negligence against Merchant and Borden, contending that Enterprise rented the car to Borden who allowed Merchant to operate it. On October 6, defendant filed a motion to dismiss, contending that it did not negligently entrust the vehicle to Merchant, but rather had only entrusted the car to Pillow. On October 15, the trial court entered an order, pursuant to plaintiff's motion, voluntarily dismissing Borden as a defendant and granting plaintiff leave to file an amended complaint. On the same day, plaintiff filed an amended complaint against Enterprise and Merchant, alleging negligent entrustment against Enterprise, in that it leased the vehicle to Pillow, and that Merchant was negligent.
On October 6, 1999, plaintiff filed her response to defendant's motion to dismiss. On November 20, defendant filed its reply, on December 29, plaintiff filed her surresponse, and on January 4, 2000, defendant filed its surreply.
Various deposition testimony was offered in support of and in opposition to defendant's motion. Erika Brown testified that she was the branch manager for defendant's car leasing office located in Worth, Illinois. She knew Dan Monroe because they had worked together. Brown had been trained not to lease a car to anyone under the age of 21, but defendant would rent to an individual who possessed a traffic ticket only if the ticket was valid, i.e., the court date had not yet expired, the individual possessed a picture identification, and the ticket was not for driving under the influence.
Brown further testified that Dan called her in March 1993, stating that his sister Dawn would be calling to rent a car. According to Brown, this call was made so that Dawn could receive the 33% family discount. Brown also stated that she never met Dawn until June 26, 1998, when Dawn walked into the office. Brown further stated that Dawn had not called prior to this time to reserve a car.
On June 26, Dawn came into the Worth office with Milton Pillow. According to Brown, it was her understanding that Dawn was to rent a car. However, when she asked Dawn for her license, Dawn handed her a traffic ticket and state identification card. Because the ticket was old and Dawn was under 21, Brown advised Dawn that she could not rent a car to her. Dawn then asked Pillow to rent the car, which he agreed to do. Brown filled out the contract and included Dan's name as an additional driver. She also wrote in Dan's driver's license number, which she retrieved from a computer. Brown stated that she included Dan as an authorized driver because Dawn said she needed the car to help him move. Brown gave Pillow an employee discount. Both Dawn and Pillow gave her money, after which she went out to the car to write down the mileage and gas level. Brown then gave the keys to the car to Pillow, who drove the car off the lot. Dawn drove the car in which the two had arrived in at the Worth office. Brown denied knowing that Dawn was going to subsequently drive the leased car and stated that Dawn advised her that Dan would be driving it. Brown specifically stated that she told both Pillow and Dawn that Dawn was not to drive the car.
Subsequently, Brown received a telephone call from Pillow extending the rental period until July 3. A couple of days after July 3, Brown received a call from a state trooper during which he informed her that the leased car had been in an accident. On July 6, Dan called her, stating that he knew nothing about the rental agreement. Because of this, Brown crossed Dan's name off the contract and took his name out of the computer. When she learned the car had been in an accident, Brown computed the additional charges for the car at the regular price, without the family discount. On July 7, Brown spoke with Dawn, who stated that she borrowed the car from Pillow and that her brother-in-law, who was riding with her, had taken the car from her and left her at a store.
Dawn Monroe testified that Pillow was a friend of her mother's. Dawn possessed an Illinois driver's license, but had received a traffic ticket, which she never "followed up on." At the time of her deposition, she did not know the status of her driver's license. She further stated that Borden was her brother-in-law and she did not know Merchant or Fleming.
Dawn also testified that she first met Brown on June 26, but had spoken with her on the telephone prior to that time. She further stated that Dan had told her to call Brown. When Dawn first spoke to Brown at the end of April, she told Brown she wanted to rent four cars because a group of individuals wanted to go to Atlanta to see "Freaknic." Dawn did not rent a car at that time because the group flew to Atlanta. Dawn also stated that, in April, she advised Brown of her age, i.e., that she was 20. Dawn next spoke with Brown approximately one week prior to renting the car in June. Dawn told Brown that she needed to rent a car for approximately one week. Dawn stated that she did not tell Brown that she needed the car to help her brother move and that, at this time, she reminded Brown that she did not have a driver's license and she only had a traffic ticket.
Dawn further testified that on June 26, Pillow drove her to the rental office. Upon arriving there, Dawn again reminded Brown that she did not have a driver's license. Brown stated that that was "okay." After proceeding to the rental counter, Brown told Dawn that she could not rent the car to her, so Dawn asked Pillow to rent the car. Pillow agreed and the paperwork was filled out. Brown advised the two that Dawn could not drive the car off the lot, that Pillow had to do so. Dawn paid Brown $140, after getting $20 from Pillow. According to Dawn, there was never any discussion of whether Dan was to be listed as an additional driver and she denied that Brown stated that she could not drive the car; Brown only stated that Dawn could not drive the car off the lot. Dawn also stated that she specifically told Brown that she would be driving the car and also told her that, if she needed the car for a longer period of time, she would call Brown and let her know.
Dawn further stated that after she and Pillow left the rental lot, they proceeded to a cash station where she retrieved the money she owed Pillow. Dawn then drove the rental car and Pillow drove his own car. Subsequently, Dawn had Pillow call and extend the rental period. She had ...