Rainey Ex Rel. Rainey v. Pitera Ex Rel. Pitera

651 N.E.2d 747, 273 Ill. App. 3d 234, 209 Ill. Dec. 569, 1995 Ill. App. LEXIS 412
CourtAppellate Court of Illinois
DecidedJune 9, 1995
Docket1-93-4059
StatusPublished
Cited by7 cases

This text of 651 N.E.2d 747 (Rainey Ex Rel. Rainey v. Pitera Ex Rel. Pitera) 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
Rainey Ex Rel. Rainey v. Pitera Ex Rel. Pitera, 651 N.E.2d 747, 273 Ill. App. 3d 234, 209 Ill. Dec. 569, 1995 Ill. App. LEXIS 412 (Ill. Ct. App. 1995).

Opinion

JUSTICE COUSINS

delivered the opinion of the court:

The plaintiffs, Daniel L. Rainey, Jr., and Daniel L. Rainey, Sr., filed a complaint which included three counts against the defendant, Stanley J. Pitera, Sr. Rainey Jr. was a passenger on defendant’s motorcycle when defendant’s son drove the motorcycle and had an accident. The plaintiffs’ complaint alleged two counts against the defendant for negligent entrustment of the motorcycle and one count of negligence stemming from social host liability. The defendant moved for summary judgment on all three counts pursuant to section 2 — 1005 of the Code of Civil Procedure (735 ILCS 5/2 — 1005 (West 1992)), arguing that he had not entrusted his motorcycle to his son or abetted his alcohol use. The trial court granted summary judgment to the defendant on all counts, from which the plaintiffs now appeal.

We affirm.

BACKGROUND

On March 14, 1990, Rainey Jr. was a passenger on defendant’s motorcycle as it was driven by defendant’s son, Stanley J. Pitera, Jr. As it was turning, the motorcycle was struck by an automobile. Rainey Jr. suffered a brain stem injury in the accident.

Plaintiffs filed their third amended complaint on October 22, 1991. Counts II, VIII, and XIII were directed against the defendant. Counts II and VIII both alleged negligent entrustment by the defendant in allowing his son to use the motorcycle, with the counts differing only in the relief prayed for. Count XIII sounded in social host liability, alleging negligence by the defendant in allowing his minor son access to alcohol.

Defendant filed his first amended motion for summary judgment as to counts II, VIII, and XIII on July 26, 1993. Defendant’s motion set out the following facts about the accident, supported by depositions.

Prior to allowing his son to drive the motorcycle, defendant registered his son for a class in motorcycle safety at Northern Illinois University. The son completed the class prior to getting his motorcycle driver’s license. Defendant gave his son keys to the motorcycle, but established four rules for its use: the son had to get prior permission from defendant, he had to wear a helmet, he could not use the motorcycle with a passenger on back, and he could only use the motorcycle in good weather. Before the accident, the son had never violated any of these rules.

On the day of the accident, March 14, 1990, defendant was at work from noon until 8 p.m. At around 6 p.m. that day, defendant’s son called defendant to ask permission to drive the motorcycle to a skating rink. Defendant gave his permission, telling his son, "Just go to the roller rink, show everybody and come right home with it.”

At the rink, defendant’s son met Rainey Jr. They went back to defendant’s house at 6:30 p.m. At defendant’s house they took a bottle of scotch out of a cabinet and made some drinks.

At 8 p.m. defendant’s son, without permission, started driving the motorcycle with Rainey Jr. as a passenger. They were driving to Rainey Jr.’s girlfriend’s house. A car struck the motorcycle while it was turning at 8:15 p.m. A blood-alcohol test was performed on defendant’s son at the hospital, and the test revealed a trace of alcohol, "less than the amount from taking a dose of cough syrup” according to the technician.

Defendant argued that these facts established that no negligent entrustment took place because either (1) there was no entrustment; or (2) defendant had no knowledge of any alleged incompetence in his son’s driving; or (3) defendant’s son was not an incompetent driver. Defendant also argued that the social host liability count did not state a legally recognizable claim and that defendant had not abetted his son’s alcohol use. The plaintiffs did not dispute the defendant’s facts, and the trial court heard oral argument on the motion on October 7,1993. The court agreed with all three of defendant’s contentions as to the negligent entrustment counts, as well as defendant’s arguments as to the nonexistence of a claim for social host liability. The court granted the summary judgment motion as to counts II, VIII, and XIII on October 7, 1993, from which the plaintiffs appeal.

OPINION

I

In summary judgment cases, we conduct a de novo review. (In re Estate of Hoover (1993), 155 Ill. 2d 402, 411, 615 N.E.2d 736.) If the court finds that the record contains any material issues of genuine fact, the motion for summary judgment must be denied. (Hoover, 155 Ill. 2d at 411.) Although the use of summary judgment aids in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation. (Hoover, 155 Ill. 2d at 410.) Summary judgment is, therefore, proper only when the resolution of a case hinges on a question of law and the moving party’s right to judgment is clear and free from doubt. Hoover, 155 Ill. 2d at 410.

As to counts II and VIII for negligent entrustment, we find that the facts demonstrate a total lack of any permission or knowledge on the part of the defendant. A person may be liable for negligent entrustment of a vehicle where that person entrusts the vehicle to one whose incompetency, inexperience, or recklessness is known or should have been known by the entrustor of the vehicle. (Bishop v. Morich (1993), 250 Ill. App. 3d 366, 369, 621 N.E.2d 43; Johnson v. Ortiz (1993), 244 Ill. App. 3d 384, 387, 614 N.E.2d 408.) Entrustment can be shown through the giving of express or implied permission. (Bishop, 250 Ill. App. 3d at 369; Kosrow v. Acker (1989), 188 Ill. App. 3d 778, 784, 544 N.E.2d 804.) The parties in this case do not dispute that the defendant did not give his son express permission to use the motorcycle.

We also believe there is no issue of material fact that the defendant did not give implied permission to his son in the instant case. Implied permission exists when a course of conduct or relationship between the parties includes a mutual acquiescence or lack of objection under circumstances signifying permission. (Bishop, 250 Ill. App. 3d at 369; Johnson, 244 Ill. App. 3d at 387.) The defendant had never allowed his son to drive previously without permission. The son even called earlier on the day of the accident to obtain express permission, demonstrating that the necessity of express permission was still the standard course of conduct between the parties. No evidence exists of any previous mutual acquiescence or lack of objection, and we find the evidence is overwhelming to the contrary.

The plaintiffs argue that the defendant’s act of providing keys to his son for the motorcycle was enough to create a factual question as to implied permission. We disagree, as this court has repeatedly held that making keys available does not alone create implied permission. In Bishop, the defendant’s daughter had taken keys from a shelf in the kitchen before driving without permission.

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651 N.E.2d 747, 273 Ill. App. 3d 234, 209 Ill. Dec. 569, 1995 Ill. App. LEXIS 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rainey-ex-rel-rainey-v-pitera-ex-rel-pitera-illappct-1995.