Baker v. Walker

528 N.E.2d 5, 173 Ill. App. 3d 836
CourtAppellate Court of Illinois
DecidedAugust 16, 1988
Docket87-2962
StatusPublished
Cited by11 cases

This text of 528 N.E.2d 5 (Baker v. Walker) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Walker, 528 N.E.2d 5, 173 Ill. App. 3d 836 (Ill. Ct. App. 1988).

Opinion

173 Ill. App.3d 836 (1988)
528 N.E.2d 5

LIZZIE BAKER et al., Plaintiffs-Appellants,
v.
RICHARD WALKER, Defendant-Appellee.

No. 87-2962.

Illinois Appellate Court — First District (2nd Division).

Opinion filed August 16, 1988.

*837 Sam Cuba, of Jeffrey D. Schultz, Ltd., of Chicago (David A. Novoselsky, Kathleen M. Krist, and David A. Novoselsky & Associates, of counsel), for appellants.

Marsha Kay Ross and Michael R. Orlando, both of Haskell & Perrin, of Chicago, for appellee.

Order affirmed.

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Plaintiffs appeal from a circuit court order dismissing their complaint with prejudice. We are asked to determine whether the circuit court erred in: (1) dismissing plaintiffs' complaint for failure to state a cause of action; and (2) denying plaintiffs' motion to amend their complaint.

On March 29, 1984, an automobile driven by Clarita Pagal struck plaintiff Lizzie Baker as she stood in a bus shelter at the southeast corner of Western Avenue and 35th Street in Chicago, Illinois. In a complaint filed March 27, 1986, Lizzie Baker and coplaintiff Tom Baker alleged that, on the day of the accident, Pagal was proceeding south on Western Ave. when, at or near the intersection of 35th Street, Pagal's car collided with a truck owned by Prime, Inc., and driven by Merle Dee Matts, a Prime employee, who was not made a defendant in this case and from whom no relief is sought. The collision then caused Pagal's car to hit Lizzie Baker.

Plaintiffs further asserted: (1) defendant Richard Walker, also a Prime employee acting in the scope of his employment, accompanied Matts that day in the truck; (2) Prime, by and through Walker, and Walker, individually, "had the duty, in the maintenance and operation * * * of said vehicle, to exercise all due care and caution to avoid injury to persons lawfully upon the thoroughfare, including [Lizzie Baker]"; and (3) Prime, by and through Walker, and Walker, individually, breached this duty "in one or more of the following ways":

"a. Carelessly and negligently failed to warn the driver of the truck as to the presence of another car which was in his sight but not visible to the driver of the vehicle owned by [Prime].
b. Carelessly and negligently was trained in the methods of *838 safety available by a passenger to a driver of a vehicle;
c. Carelessly and negligently failed to maintain a proper and sufficient lookout for other vehicles that were in the driver's `blind spot' or not noticed by said driver especially the vehicle driven by [Pagal];
d. Carelessly and negligently aided in the operation of said motor vehicle so that Defendant [sic] [Pagal] was caused to strike the Plaintiff, LIZZIE BAKER;
e. Otherwise carelessly, negligently and improperly rode and acted as lookout of said motor vehicle."

The resulting accident, plaintiffs continued, caused Lizzie Baker "external and internal" injuries. Plaintiffs sought damages for those injuries and for loss of consortium.

On March 16, 1987, Walker moved to dismiss plaintiffs' action with prejudice pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615), arguing that plaintiffs failed to allege facts establishing any duty owed by Walker to Lizzie Baker. A response and reply thereto followed and after a hearing on August 18, 1987, the circuit court dismissed plaintiffs' action with prejudice. Plaintiffs appeal.

I

Plaintiffs maintain that they alleged sufficient facts to establish the existence of a joint venture between Walker and Matts, rendering the former liable for Matts' harmful acts which caused injury to third parties; therefore, the circuit court erred in dismissing this action.

• 1 Generally, an automobile passenger is not liable for the negligent acts of the driver unless the passenger owns the automobile or a special relationship exists between them. (Martino v. Leiva (1985), 133 Ill. App.3d 1006, 1007, 479 N.E.2d 955; Fugate v. Galvin (1980), 84 Ill. App.3d 573, 574, 575, 406 N.E.2d 19.) The special relationship of a joint venture (Campanella v. Zajic (1978), 62 Ill. App.3d 886, 887, 379 N.E.2d 866; Bridgewater v. Wagoner (1960), 28 Ill. App.2d 201, 208, 170 N.E.2d 785) endows the association with the characteristics of a partnership (Prassas v. Nicholas W. Prassas & Co. (1981), 94 Ill. App.3d 311, 315, 418 N.E.2d 904), making each venturer an agent of the other.

• 2 Citing Grubb v. Illinois Terminal Co. (1937), 366 Ill. 330, 339, 8 N.E.2d 934, plaintiffs suggest they need only show that Walker and Matts were engaged in a business enterprise, in which they shared a mutual interest, to establish a joint venture. (See also Smith v. Bishop (1965), 32 Ill.2d 380, 385, 205 N.E.2d 461; Galliher v. Holloway *839 (1985), 130 Ill. App.3d 628, 633, 474 N.E.2d 797; Fugate v. Galvin, 84 Ill. App.3d at 576; Campanella v. Zajic, 62 Ill. App.3d at 887; Babington v. Bogdanovic (1972), 7 Ill. App.3d 593, 598-99, 600, 288 N.E.2d 40.) Plaintiffs correctly portray the nature of a joint venture, but neglect other elements necessary to establish the relationship, namely: a community of interest in the business purpose; an expectation of profit and a concomitant duty to share all profits and losses; a shared proprietary interest in the subject matter of the venture; and the right of each venturer to direct and control the conduct of each other member of the enterprise. Pinkowski v. Coglay (7th Cir.1965), 347 F.2d 411, 413; Carroll v. Caldwell (1957), 12 Ill.2d 487, 496-97, 147 N.E.2d 69; Pros v. Mid-America Computer Corp. (1986), 142 Ill. App.3d 453, 467, 491 N.E.2d 851; Prassas v. Nicholas W. Prassas & Co., 94 Ill. App.3d at 315; Bridgewater v. Wagoner, 28 Ill. App.2d at 208.

Plaintiffs maintain the inferences reasonably derived from their complaint establish that: (1) Walker and Matts, as agents of Prime, pursued a "mutual business purpose" by driving together in a Prime-owned vehicle; (2) their agency status conferred on each man the right to control the truck; and (3) they fulfilled their employment duties in exchange for "profit," i.e., their wages. The complaint fails to demonstrate, however, a community of interest to accomplish anything other than their employer's instructions; any agreement to evenly divide profits and losses, assuming wages are "profits"; or any proprietary interest in the subject matter of the alleged joint venture, the truck. The mere fact that Walker may have possessed control over the vehicle, as asserted by plaintiffs, does not lead inexorably to the conclusion that Walker also maintained control over Matts. Coemployees possess no inherent right to direct the conduct of each other. (Andres v. Lauer

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Bluebook (online)
528 N.E.2d 5, 173 Ill. App. 3d 836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-walker-illappct-1988.