FOURTH DIVISION February 8, 2007
1-05-2950
CAROLYN PHILLIPS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) BUDGET RENT-A-CAR SYSTEMS, INC., ) AND RANGER SECURITY, INC., ) Honorable ) Michael J. Hogan, Defendants-Appellees. ) Judge Presiding.
PRESIDING JUSTICE QUINN delivered the opinion of the court:
Plaintiff Carolyn Phillips appeals from the judgment of the
circuit court of Cook County granting summary judgment for
defendants Budget Rent-A-Car Systems, Inc. (Budget), and Ranger
Security (Ranger). In addition, she appeals the circuit court's
denial of her motion for reconsideration of summary judgment in
favor of Budget. For the following reasons, we affirm.
BACKGROUND
This case arises from an automobile accident that occurred
on July 2, 1997. The accident resulted from a high-speed police
chase during which an unidentified driver of a stolen Budget
rental vehicle collided with plaintiff's vehicle as the driver 1-05-2950
fled from police. Plaintiff suffered multiple injuries as a
result of the vehicular collision.
The procedural history of this case shows that plaintiff
filed an initial suit on August 15, 1997, and filed an amended
complaint on August 24, 1998. Thereafter, on May 19, 2000, the
circuit court granted plaintiff's motion to voluntarily dismiss
the initial action and dismissed plaintiff's case without
prejudice.
On May 18, 2001, plaintiff filed the current action. In her
complaint, plaintiff alleged two counts of negligence against
Budget and one count of negligence against Ranger. Specifically,
plaintiff alleged that Budget breached its duty to maintain
control over its vehicle so as to prevent harm to persons
lawfully on public streets, and that Budget and Ranger breached
their duties to prevent unauthorized personnel access to that
vehicle so as to prevent harm to members of the general public.
Budget filed its answer on July 26, 2001, and Ranger filed its
answer on September 7, 2001.
Following discovery, Budget filed a motion for summary
judgment on August 19, 2004. With permission of the court,
plaintiff conducted further discovery and on December 21, 2004,
filed a response to Budget's motion. Therein, she stated that
special circumstances, specifically that Budget had gone to great
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lengths to prevent vehicular thefts by hiring a security company
and installing "tiger teeth," existed to make the accident
foreseeable.
During discovery, Budget disclosed that to facilitate the
movement of its vehicles, it kept the keys of its vehicles in the
vehicles' ignitions. Budget also employed "hikers" to transport
rental vehicles between facilities to maintain proper inventory.
Hikers moved 200 to 250 vehicles per day among Budget facilities.
When demand for vehicles at locations was great, Budget would
have other employees such as service agents, mechanics, and bus
drivers act as hikers.
In order to transport a vehicle from the O'Hare facility to
another facility, a hiker needed to show a nonrevenue transport
ticket (NRT) to Ranger security before exiting the facility. The
on-duty manager or other distribution personnel provided the
hiker with blank NRTs and would instruct him to select a
particular class of vehicle to transport. The hiker would then
record the vehicle's identification information on the NRT,
including the vehicle identification number, license plate
number, vehicle's owning city, and the sending and destination
cities. The hiker would also record his identification number
and the vehicle's milage before signing the NRT.
Pursuant to the security guard agreement, the primary
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responsibility of Ranger was "to [ensure] that no vehicles are
taken from the facility without the proper authorizations." The
agreement procedures specifically provided that a Ranger guard
could permit a service agent or customer service representative
to remove a vehicle not on a rental contract from the Budget
facility only if the driver presented an NRT signed by a Budget
manager. The security guard was then to cross-reference the
signature with a list of names that Budget was to provide the
guards and to make sure the correct date was on the NRT. The
guard kept a copy of the NRT. The parties agree, however, that
Budget never provided Ranger personnel with a list of names of
Budget managers who could authorize an NRT.
That said, the agreed facts in this case show that about
5:37 a.m. on June 24, 1997, an unidentified driver of a Budget
1997 Ford Explorer presented an NRT signed by James Dawson, a
courtesy bus driver and service agent stationed at the Budget
O'Hare facility, and initialed by Les Holiday, a lead hiker, to a
Ranger guard. Although the NRT had the correct sending and
receiving locations listed, it had erroneous vehicle milage,
where it listed 13,467 miles while Budget computer data showed
7,490 miles, an improper date, where it was marked June 24, 1996,
instead of June 24, 1997, and the wrong identification number
for Dawson. Despite those errors, the Ranger guard permitted the
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unidentified driver to exit the facility with the vehicle.
Subsequently, around June 30, 1997, Budget's Midway Airport
facility manager Rica Hernandez received an inactive report
alerting her that the Midway facility never received the 1997
Ford Explorer. After investigating the matter, Hernandez
prepared a "Missing Vehicle Report" and faxed it to Daniel
Martin, Budget's security manager, on June 30, 1997. Martin, who
had been on vacation, reviewed the fax on July 1, 1997.
Martin further investigated the matter. When he questioned
Dawson as to his alleged signature on the NRT used to remove the
missing Ford Explorer, Dawson denied that the signature was his.
Dawson's supervisor Bryant Small confirmed that the signature on
the NRT was not Dawson's. Subsequently, Martin reported the
vehicle stolen to the Chicago police department. Budget also
notified LoJack, which electronically monitored Budget vehicle
movements through its vehicle tracking system.
On July 2, 1997, LoJack located the stolen Ford Explorer at
6750 South Normal Boulevard in Chicago, which was approximately
26 miles from the Budget O'Hare facility. Police found the
vehicle, and after observing an unidentified individual enter it,
they attempted to stop him. A high-speed police chase ensued
during which the stolen Ford Explorer hit plaintiff, who was
walking across the intersection at 69th Street and Halsted
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Street. The driver of the stolen vehicle fled on foot and was
never arrested or identified. Plaintiff suffered a fractured
pelvis, a broken left arm and leg, and several head injuries.
Based on the pleadings and this record, the circuit court
granted Budget's motion for summary judgment on January 21, 2005.
The circuit court also denied plaintiff's motion for reconsidera-
tion on August 16, 2005.
On February 17, 2005, Ranger also filed a motion for summary
judgment. Plaintiff filed a response on August 3, 2005, and on
August 16, 2005, the circuit court also granted Ranger's motion.
Plaintiff appeals from those orders granting summary
judgment.
ANALYSIS
The purpose of summary judgment is to determine whether a
genuine issue of material fact exists. Adams v. Northern
Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment
is appropriate where the pleadings, affidavits, depositions,
admissions, and exhibits on file, when viewed in the light most
favorable to the nonmovant, reveal that there is no genuine issue
of material fact and that the nonmovant is entitled to judgment
as a matter of law. Adams, 211 Ill. 2d at 43, citing 735 ILCS
5/2-1005(c) (West 2004). In determining whether a genuine issue
of material fact exists, all evidence before the court
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considering summary judgment should be construed in the light
most favorable to the nonmoving party. Adams, 211 Ill. 2d at 43.
Since summary judgment is a drastic remedy, it should only be
granted when the right of the movant is clear and free from
doubt. Adams, 211 Ill. 2d at 43. A review of a circuit court's
grant of summary judgment is de novo. Adams, 211 Ill. 2d at 43.
In the case at bar, plaintiff alleged claims of negligence
against both defendants. To prevail, plaintiff had to show that
each defendant owed her a duty of care, that defendants breached
their duties of care, and that plaintiff incurred injuries
proximately caused by those breaches. Adams, 211 Ill. 2d at 43.
The primary issue here is whether defendants, Budget and Ranger
Security, owed plaintiff a duty of care. Since the question of
whether a duty of care exists is a question of law (Adams, 211
Ill. 2d at 43), it constituted a proper issue for summary
In this court, plaintiff challenges the circuit court's
order granting summary judgment for defendants by asserting that
Budget owed a duty to prevent the accident in this case where it
left the keys in the ignition of the unattended vehicle.
Plaintiff further asserts that Ranger breached its duty to
prevent the accident where it failed to take the necessary
precautions to prevent the stolen vehicle from leaving Budget's
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facility.
We first address the issue of whether Budget owed plaintiff
a duty of care. In doing so, we recognize that plaintiff's
claims against Budget are premised on the "key in the ignition"
theory due to Budget's ownership of the stolen Ford Explorer.
Illinois courts have recognized two classes of cases involving
the duty of a vehicle owner to lock his vehicle and to remove the
keys from the ignition after parking the vehicle.
The first class of cases involves a defendant's statutory
violation. In Ney v. Yellow Cab Co., 2 Ill. 2d 74 (1954), the
defendant's servant, a taxicab driver, left his taxicab
unattended on the street with the keys in the ignition. He
thereby violated a statute which provided in pertinent part that
a driver was prohibited from leaving his vehicle unattended
without first turning off the engine, locking the ignition, and
removing the key. A thief thereafter stole the taxicab and,
while in flight, collided with the plaintiff's vehicle. Our
supreme court noted that the defendant's violation of the statute
constituted prima facie evidence of negligence. Ney, 2 Ill. 2d
at 78-79. The court further found that an intervening act, even
one that was criminal in nature, did not relieve the defendant of
liability from the consequences resulting from the taxicab
driver's negligence. Ney, 2 Ill. 2d at 83-84.
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Similarly, the automobile dealer defendant in Kacena v.
George W. Bowers Co., 63 Ill. App. 2d 27 (1965), violated the
same statute as in Ney where it had a practice of leaving its
vehicles parked on a public street with the keys in the
ignitions. Subsequently, thieves stole one of the defendant's
vehicles, and the stolen vehicle was involved in an accident with
the plaintiff a day later. The plaintiff filed suit against the
dealer, and the circuit court entered judgment for the plaintiff.
On appeal, this court, like the supreme court in Ney, stated
that a statutory violation was prima facie evidence of
negligence. Kacena, 63 Ill. App. 2d at 33. Further, despite the
remoteness in time and distance of the accident from the
defendant dealer, this court found that a question of fact
existed as to probable cause, and thus affirmed the circuit
court's ruling denying the defendant's motions for a directed
verdict and judgment notwithstanding the verdict. Kacena, 63
Ill. App. 2d at 39.
In both Ney and Kacena, the defendants' vehicles were stolen
while parked on public property in violation of a state statute.
In analyzing the liability of the defendants, the courts
determined that the statutory violations were prima facie
evidence of negligence, and thus confined their discussion to the
existence of proximate cause. As noted in Ruyle v. Reynolds, 43
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Ill. App. 3d 905, 907 (1976), the rule in Ney, and consequently
Kacena, and the statute therein have been limited to cases
involving public streets.
The second class of cases involves a claim of common law
negligence where the defendant leaves his keys in the ignition of
his vehicle on private property rather than public property, thus
negating the application of the statute at play in Ney and
Kacena. In this second class of cases, Illinois courts have held
that no duty exists to a third party injured by the defendant's
stolen vehicle absent special circumstances that made the theft
foreseeable. Hallmark Insurance Co. v. Chicago Transit
Authority, 179 Ill. App. 3d 260 (1989); Hensler v. Renn, 166 Ill.
App. 3d 819 (1988); Ruyle v. Reynolds, 43 Ill. App. 3d 905
(1976).
In Reynolds, the defendant's agent left his vehicle unlocked
and unattended with the keys in the ignition in a parking lot.
The vehicle was subsequently stolen and involved in an accident
with the plaintiff's vehicle. Although the circuit court
dismissed the plaintiff's complaint, the reviewing court reversed
that dismissal where it determined that the plaintiff's complaint
stated a sufficient claim. The appellate court found that
plaintiff stated a valid claim based on the defendant's violation
of a city ordinance prohibiting a person from leaving a vehicle
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unattended with keys in the ignition in a "public place"
(Reynolds, 43 Ill. App. 3d at 907-09), as well as a valid claim
under the common law theory of negligence (Reynolds, 43 Ill. App.
3d at 909). In discussing the common law claim, the court noted
that given the neighborhood in which the defendant's agent left
the vehicle unattended, it was foreseeable that a theft would
occur. Reynolds, 43 Ill. App. 3d at 909. As such, the reviewing
court held that the plaintiff sufficiently alleged special
circumstances which made the theft foreseeable and that the issue
of proximate cause was for a jury to decide. Reynolds, 43 Ill.
App. 3d at 909. Thus, it reversed the lower court's motion to
dismiss. Reynolds, 43 Ill. App. 3d at 909.
In Hallmark Insurance Co., 179 Ill. App. 3d 260, a thief
stole a Chicago Transit Authority (CTA) bus that was located in
the defendant CTA's bus barn. The thief subsequently drove the
bus into a building owned by the plaintiffs, who alleged that the
defendant left the bus unattended without first turning off the
engine and removing the keys from the ignition. After the
plaintiff filed suit, the defendant filed for summary judgment
without filing any pleading or answering the plaintiff's
complaint. This court reversed the circuit court's order
granting summary judgment for the defendant where it determined
that special circumstances existed to raise a genuine issue of
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material fact as to the defendant's duty. Hallmark Insurance
Co., 179 Ill. App. 3d at 267. In finding that special
circumstances existed, this court determined that plaintiff's
uncontested claim that defendant knew of prior thefts stated a
sufficient claim. In addition, this court considered the
document that the plaintiff attached to its motion for
reconsideration, which detailed 27 bus thefts from CTA
facilities, including three in three months from the facility in
that case.
In the case at bar, Budget's rental vehicles were parked in
a private lot. Consequently, this case falls within the second
class of Illinois cases involving keys left in the ignition of
unattended vehicles. Plaintiff, however, merely alleged that
Budget was negligent for failing to restrict access to its
vehicles and in its administration of its NRT process without
alleging any special circumstances, i.e., previous vehicular
thefts at the O'Hare Budget facility. Although plaintiff
referenced special circumstances in her response to Budget's
motion for summary judgment and asserted therein that Budget took
security precautions, she made none of the special circumstance
arguments in the circuit court that she proffers in her briefs
before this court. As such, those arguments are waived. Daniels
v. Anderson, 162 Ill. 2d 47, 56-58 (1994).
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Nonetheless, even if we considered plaintiff's allegations
of special circumstances, we find that she failed to establish
that Budget owed her a duty to prevent the theft of its vehicle
and the ensuing police chase which ultimately led to a collision
in which plaintiff sustained multiples injuries. Unlike Ruyle
and Hallmark Insurance Company, upon which plaintiff relies, she
failed to sufficiently state facts establishing special
circumstances that made the theft foreseeable. Conversely, we
find Renn, 166 Ill. App. 3d 819, apposite to the case at bar.
In Renn, 166 Ill. App. 3d 819, the defendant left his
vehicle unattended with the keys in the ignition in a store
parking lot. A thief then stole the vehicle and collided with
the plaintiff's vehicle as he drove away. The reviewing court
affirmed the circuit court's order granting the defendant's
motion for summary judgment where it determined that the
plaintiff failed to establish the existence of special
circumstances to sustain a common law negligence claim against
the defendant where plaintiff merely claimed that the defendant
left the vehicle unattended in a high-crime area. Renn, 166 Ill.
App. 3d at 824. In doing so, the court stated that it was
unwilling to extend the ruling in Reynolds to find a duty on the
defendant's behalf absent additional allegations showing that a
theft was likely to occur where the public place in which
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defendant parked his vehicle was a heavy traffic area. Renn, 166
Ill. App. 3d at 824.
Here, plaintiff argues before this court that special
circumstances existed in the case at bar that made the theft of
Budget's vehicle foreseeable by asserting that Budget employees
spend 200 days a year in court litigating criminal activity
involving their vehicles, that Martin testified in his deposition
that five previous police chases had occurred following the theft
of Budget vehicles, and that three of those chases resulted in
accidents. That said, plaintiff fails to assert whether those
past thefts occurred at the Budget O'Hare facility and within
what time frame. Further, plaintiff cites only one other
instance in which a forged NRT was used to steal a vehicle from a
Budget facility. As such, as in Renn, we find that plaintiff
fails to establish special circumstances that made the theft in
this case reasonably foreseeable, and thus she fails to establish
that Budget owed her a duty of care.
Moreover, foreseeability is only one factor for a court to
consider when it seeks to determine whether a duty of care
exists. Duty also depends on the likelihood of injury, the
magnitude of the burden on a defendant to prevent an injury, and
the consequences of placing such a burden on a defendant. Adams,
211 Ill. 2d at 44; Rowe v. State Bank of Lombard, 125 Ill. 2d
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203, 227-28 (1988). The cases cited above involving keys left in
the ignitions of vehicles, whether on public or private property,
focused on foreseeability and bypassed important public policy
questions.
Here, an unknown individual was able to forge an NRT and
remove a vehicle from Budget's lot, which the record reveals has
only happened on one other occasion. Although Budget was
arguably negligent in the administration of its security measures
to protect against vehicular thefts, we do not find that those
errors created a duty of care to plaintiff with regard to an
accident involving Budget's stolen vehicle. To conclude
otherwise would place a significant burden on Budget and would
expose all rental car companies to third-party criminal liability
involving their vehicles. We do not find such a broad duty of
care to the general public to be a prudent or reasonable holding.
As such, we find that summary judgment was appropriate for
Budget.
Having reached that conclusion, we next address the issue of
whether Ranger owed plaintiff a duty of care. Plaintiff contends
that by entering into a contract with Budget, Ranger "undertook
to perform a duty that Budget owed to the public in this area to
protect against the streets being filled with thieves operating
its stolen rental cars." The basis of plaintiff's argument is
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section 324A of the Restatement (Second) of Torts, which
provides:
"One who undertakes, gratuitously or
for consideration, to render services to
another which he should recognize as
necessary for the protection of a third
person or his things, is subject to
liability to the third person for physical
harm resulting from his failure to exercise
reasonable care to protect his undertaking,
if
(a) his failure to exercise reasonable
care increases the risk of such harm, or
(b) he has undertaken to perform a duty
owed by the other to the third person, or
(c) the harm is suffered because of
reliance of the other or the third person
upon the undertaking." Restatement (Second)
of Torts §324A (1965).
Plaintiff argues that by entering into the contract with Budget,
Ranger assumed a duty to protect her pursuant to section 324A
where the high speed chase and accident would have been
foreseeable as a result of the theft. For support, plaintiff
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relies upon Pippin v. Chicago Housing Authority, 78 Ill. 2d 204
(1979).
In Pippin, a mother brought an action against the Chicago
Housing Authority (CHA) and Interstate Service Corporation
(Interstate) for the wrongful death of her son, who was allegedly
stabbed by a tenant during an argument within the common area of
the CHA's building. The record showed that the CHA entered into
a contract with Interstate to provide for the protection of CHA's
property and "persons thereon." Our supreme court held that
given the contract, Interstate owed Pippin a duty of care
pursuant to section 324A(c). Pippin, 78 Ill. 2d at 210-12. The
supreme court thus affirmed this court's ruling reversing the
circuit court's grant of summary judgment for defendants.
Pippin, 78 Ill. 2d at 212.
Unlike Pippin, however, the contract between Budget and
Ranger did not appear to provide for the protection of third
parties. Rather, as previously stated, the contract merely
provided that Ranger was to ensure that "no vehicles are taken
from the facility without proper authorizations." This language
arguably only pertained to Budget's property, not the protection
of unforeseen third parties, and thus did not create a duty of
care to plaintiff. See Bourgonje v. Machev, 362 Ill. App. 3d
984, 1003 (2005) ("In those cases where the agreements specified
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that the guards were intended to protect the tenants, liability
attached; but, where it was specified that the guards' function
was only to protect property, no liability attached").
Nonetheless, even if we accepted plaintiff's argument that
the contractual language could create a duty to an innocent third
party, we find that plaintiff's reliance on Pippin seeks to
expand the concept of foreseeability beyond that found in Pippin.
Unlike in Pippin, the criminal action in this case did not occur
on the premises Ranger was hired to protect but rather resulted
from the criminal use of Budget property outside the Budget
premises. Furthermore, as discussed above, the accident in this
case resulted from a forged NRT, which allegedly occurred in only
one other circumstance. Accordingly, we find that the accident
in this case was not foreseeable, and thus Ranger owed plaintiff
no duty of care.
In reaching these conclusions, we further find that even if
a genuine issue of material fact had existed as to defendants'
duties of care, summary judgment was appropriate in the case at
bar due to lack of proximate cause. Although proximate cause is
ordinarily a question of fact for the trier of fact to resolve,
our supreme court has noted that it is well settled that it may
be determined as a matter of law where the facts presented show
that plaintiff would never recover as a matter of law. Abrams v.
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City of Chicago, 211 Ill. 2d 251, 257-58 (2004).
Proximate cause consists of two distinct requirements: cause
in fact and legal cause. Abrams, 211 Ill. 2d at 258. Cause in
fact concerns whether the defendant's conduct is a material
factor in bringing about the injury if the injury would not have
occurred absent the defendant's conduct. Abrams, 211 Ill. 2d at
258. Legal cause consists largely of a question of foreseea-
bility. Abrams, 211 Ill. 2d at 258.
In Abrams, the plaintiff, a pregnant mother in labor, called
the City's 911 service to request ambulance services. The City's
911 dispatcher declined to send an ambulance, however, due to her
classification of the plaintiff's situation as not being an
emergency. Subsequently, the plaintiff's friend drove her to the
hospital. During that transport, the plaintiff's friend
attempted to drive through a red light when she did not see any
traffic. As she entered the intersection, however, another
vehicle, which was speeding at the time, collided with her
vehicle. The driver of the second vehicle later admitted in a
handwritten statement to police that he was driving on a
suspended license and that he had a beer, two shots of rum, and
crack cocaine before getting behind the wheel of his vehicle. As
a result of the accident, plaintiff suffered in a coma for two
weeks and lost her baby. Thereafter, plaintiff sued the City of
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Chicago for the negligent failure to provide ambulance services.
Our supreme court reversed the ruling of this court and
reinstated the circuit court's judgment granting the City of
Chicago summary judgment in Abrams after determining that based
on the alleged facts, the plaintiff could not establish that the
City's refusal to send an ambulance was the proximate cause of
her injuries. Abrams, 211 Ill. 2d at 264. Specifically, the
court held that the City's refusal was not the legal cause of the
plaintiff's injuries because it could not have reasonably
anticipated that its refusal to send the ambulance would result
in the plaintiff's friend driving through a red light and
colliding with another vehicle driven by a substance-impaired
driver. Abrams, 211 Ill. 2d at 261-62.
The record here shows that only one other alleged incident
involving an NRT had resulted in the theft of a vehicle from a
Budget facility. As such, defendants could not have reasonably
foreseen that the accident in this case would result from their
decision to leave the keys in the ignition of the 1997 Ford
Explorer and the subsequent release of the vehicle pursuant to a
forged NRT.
Moreover, the accident in the case at bar occurred eight
days after the theft and 26 miles from the Budget O'Hare
facility. In Stanko v. Zilien, 33 Ill. App. 2d 364 (1961), a
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case similar to the one at bar, the defendant, a used automobile
dealer, left the keys of its vehicles in the keys of their
ignition during business hours while the vehicles were parked on
the defendant's private lot. Consequently, a thief substituted
the keys of one of defendant's vehicles during the day and
returned at night to steal the vehicle. Twelve days later and
forty-one and a half blocks away from defendant's place of
business, the stolen vehicle driven by the thief struck the
plaintiff's vehicle. On appeal, this court upheld the circuit
court's grant of summary judgment. In reaching that holding,
this court stated:
"The final point raised by appellant is that
even if there was no violation of the statute
there was a clear case of negligence at
common law. This contention cannot be
sustained for the reason that there was no
causal connection between leaving the key in
the car and the accident twelve days later
and 41 ½ blocks from the scene of the theft.
To hold the original owner liable in this
case would be beyond the bounds of proximate
cause." Stanko, 33 Ill. App. 2d at 369.
Like Stanko, we find that the remoteness of time and distance
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prevented the establishment of proximate cause.
CONCLUSION
For the foregoing reasons, we affirm the grant of summary
judgment for defendants by the circuit court of Cook County. In
doing so, we also find that the circuit court did not abuse its
discretion in denying plaintiff's motion to reconsider the grant
of summary judgment for Budget.
Affirmed.
CAMPBELL and MURPHY, JJ., concur.
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