Umble v. Sandy McKie & Sons, Inc.

No. 2--97--0231
__________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_________________________________________________________________

MARY ELLEN UMBLE, ) Appeal from the Circuit Court
) of Lake County.
)
Plaintiff-Appellant, )
) No. 95--L--167
v. )
)
SANDY McKIE AND SONS, INC., ) Honorable
) Bernard E. Drew,
Defendant-Appellee. ) Judge, Presiding.
)
_________________________________________________________________

JUSTICE McLAREN delivered the opinion of the court:

Plaintiff, Mary Ellen Umble, appeals the order of the circuit
court of Lake County dismissing her complaint against defendant,
Sandy McKie & Sons, Inc. Plaintiff contends that the court should
not have dismissed her complaint because it sufficiently stated
causes of action for concert of action and negligent entrustment.
I. Background
Plaintiff's second amended complaint alleges that, on December
27, 1994, Jerome Butzen brought his car to defendant for service.
Butzen was intoxicated at the time, and this condition was apparent
to defendant's employees. Defendant repaired Butzen's car,
including fixing a leaking tire and replacing a burned-out
headlight. Butzen paid for the repairs, and defendant returned the
car to him. Shortly thereafter, Butzen's car collided with one
driven by plaintiff's decedent, Phillip Umble. Plaintiff alleges
that defendant was negligent in giving car keys to an obviously
intoxicated driver and that this negligence proximately caused
Phillip Umble s death.
The trial court granted defendant's motion to dismiss the
complaint, holding that defendant owed no duty to plaintiff's
decedent to prevent Butzen from continuing to drive. After the
court denied her motion to reconsider, plaintiff filed a timely
notice of appeal.
The trial court dismissed plaintiff's complaint pursuant to
section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615
(West 1994)). In considering a motion to dismiss, all well-pleaded
facts must be taken as true and all inferences drawn in favor of
the nonmovant. Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455,
473 (1990). A complaint should not be dismissed for failing to
state a claim unless it clearly appears that no set of facts could
be proved under the allegations that would entitle the plaintiff to
relief. Meerbrey, 139 Ill. 2d at 473. We review de novo the
dismissal of a complaint under section 2--615. In re Estate of
Vogel, 291 Ill. App. 3d 1044, 1046 (1997).
II. Substantial Assistance
Plaintiff first contends that the court erroneously dismissed
her complaint because it adequately states a cause of action under
a "concert of action" or "substantial assistance" theory. Section
876 of the Restatement of Torts provides:
"For harm resulting to a third person from the tortious
conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or
pursuant to a common design with him, or
(b) knows that the other's conduct constitutes a breach
of duty and gives substantial assistance or encouragement to
the other so to conduct himself, or
(c) gives substantial assistance to the other in
accomplishing a tortious result and his own conduct,
separately considered, constitutes a breach of duty to the
third person." Restatement (Second) of Torts 876 (1979).
Plaintiff contends that by fixing Butzen's car, defendant
rendered him "substantial assistance or encouragement" in his
activity of driving drunk. We disagree.
The complaint contains no allegation that any of defendant's
employees actively encouraged Butzen to get back in his car and
drive. We do not equate failing to prevent certain conduct from
actively encouraging that conduct. Moreover, the complaint's
allegations do not establish that defendant provided substantial
assistance to Butzen. There is no allegation that Butzen's car was
inoperable before defendant made the repairs. The most reasonable
inference from the complaint is that Butzen drove the car into the
dealership. Had defendant refused to make the repairs, Butzen
could simply have continued driving. At least arguably,
defendant's repair of the tire and headlight made Butzen's car
safer rather than more dangerous.
In Sanke v. Bechina, 216 Ill. App. 3d 962 (1991), plaintiffs'
decedent was a passenger in a car driven by Schwartz while he
engaged in a drag race with Bechina. Although defendant Bechina
was not driving the car in which decedent was riding, plaintiffs
alleged that he actively encouraged Schwartz to participate in the
drag race. Bechina allegedly encouraged Schwartz to drive at an
excessive speed and disobey a stop sign. Sanke, 216 Ill. App. 3d
at 966. We held that Bechina could be liable for his own conduct
under section 876. Sanke, 216 Ill. App. 3d at 970-71. Here,
unlike in Sanke, defendant's acts of repairing a tire and a
headlight were not inherently wrongful and defendant did not
actively encourage Butzen to engage in wrongful activity.
Plaintiff also relies on cases in which defendants were found
liable for selling cars to unlicensed and incompetent drivers. See
Small v. St. Francis Hospital, 220 Ill. App. 3d 537 (1991); Seward
v. Griffin, 116 Ill. App. 3d 749 (1983). But see Tosh v. Scott,
129 Ill. App. 3d 322 (1984). These cases are distinguishable for
two important reasons. First, unlike the case of a seller,
defendant here merely returned to the driver the car he already
owned. As discussed in the next section, defendant had no right to
refuse to return Butzen's car to him. Secondly, whether or not
someone has a driver's license is in most cases objectively
verifiable. Asking to see a driver's license is a common practice
in almost every segment of the retail industry and requiring a
prospective car purchaser to show a driver's license would not be
unduly burdensome. Conversely, determining whether someone is
intoxicated is much more problematic. A person may display erratic
behavior for a number of reasons other than intoxication. Unless
we were to require all car dealers, mechanics, gas station
employees and parking lot attendants to have breathalyzers, there
would be no way to determine with any certainty whether a given
patron was in fact intoxicated to the point that his ability to
drive was impaired.
III. Negligent Entrustment
Plaintiff next contends that her complaint states a cause of
action for negligent entrustment. Negligent entrustment occurs
where one entrusts to another something under the actor's control
if the actor knows that the third person will use the thing to
create an unreasonable risk of harm to others. Zedella v. Gibson,
165 Ill. 2d 181, 186 (1995); Restatement (Second) of Torts 308
(1965). Thus, an essential element of a negligent entrustment
cause of action is that the person charged with liability have a
superior right to control the property. Zedella held that a father
who cosigned a loan for his son to purchase a car could not be held
liable when the son was involved in an accident. The court noted
that the father never had possession of the car. The son was an
adult, was a licensed driver, had a residence of his own, and
supported himself. Zedella, 165 Ill. 2d at 189.
Although no Illinois case apparently has decided this precise
issue, a majority of courts from other jurisdictions have held that
a bailee for hire is not liable for returning the property to the
bailor. Most nearly on point is Sampson v. W.F. Enterprises, 611 S.W.2d 333 (Mo. App. 1980). The complaint in that case alleged
that plaintiffs' decedent, Earl Anthony Sampson, while obviously
intoxicated, went to defendant Allen Chevrolet to pick up his
pickup truck, which he apparently had left there for repairs. The
complaint alleged that defendant "negligently and carelessly
permitted [the decedent] to pick up his truck and drive from Allen
Chevrolet Company to the place of his death." Sampson, 611 S.W.2d
at 334.
The court held that Allen Chevrolet could not be liable for
negligent entrustment. The court noted that the truck with which
Earl Sampson was entrusted was his own truck and defendant had a
duty to return the truck to Sampson upon demand. Had defendant
refused delivery, it would have been liable for conversion.
Sampson, 611 S.W.2d at 338.
In Lombardo v. Hoag, 269 N.J. Super. 36, 634 A.2d 550 (1993),
Hoag went to the beach with several friends, including Niemeyer.
After Hoag became intoxicated, Niemeyer drove Hoag's car to
Niemeyer's house. Hoag then attempted to drive to his home but was
involved in an accident. The superior court, appellate division,
declined to impose a duty on Niemeyer to prevent his drunken friend
from reclaiming his car. In language appropriate to this case, the
court explained its reasons for refusing to impose such a duty as
follows:
"One problem with such an extension of that particular
form of a duty is that the standard is so broad that it would
conceivably apply to gas station attendants, toll booth
collectors, parking lot attendants, repair services, and
onlookers who may have observed the participants get into a
vehicle driven by an intoxicated person. ***
"Further, such an over-broad duty would open a Pandora's
Box of potential liability and responsibility problems.
Potential liability would then exist (on the passenger
attempting to prevent the owner from driving) for conversion
of another's property, or even theft or robbery charges.
There has been no indication or consideration of a concomitant
privilege for the actor for being honestly mistaken about a
person's sobriety if one takes the keys or automobile from the
rightful owner of a vehicle. There is also the potential
mischief of affording a defense to potential or actual
perpetrators of criminal acts." Lombardo, 269 N.J. Super. at
__, 634 A.2d at 559.
Other courts, faced with similar factual scenarios, have held
that one cannot be liable for returning bailed property to its
rightful owner. Mills v. Continental Parking Corp., 86 Nev. 724,
___, 475 P.2d 673, 674 (1970) (when owner claimed car and paid
parking charges, bailment ended and defendant no longer had right
to control car); Hulse v. Driver, 11 Wash. App. 509, ___, 524 P.2d 255, 259 (1974) (driver had duty to return control of car to
rightful owner upon demand); Knighten v. Sam's Parking Valet, 206 Cal. App. 3d 69, 75, 253 Cal. Rptr. 365, 367 (1988) (valet parking
service not liable for returning keys to intoxicated patron);
Blocker v. WJA Realty Limited Partnership, 559 So. 2d 291, 292
(Fla. App. 1990) (same); Payberg v. Harris, 931 P.2d 544, 545
(Colo. App. 1996) (parents not liable for returning to adult son
rifle which had been stored at their house).
The relatively few cases finding bailees to be potentially
liable are factually distinguishable. In West v. Granny's Rocker
Niteclub, Inc., 268 Ill. App. 3d 207 (1994), which plaintiff cites,
a towing service returned a motorcycle to someone who was not the
true owner. In O'Toole v. Carlsbad Shell Service Station, 247 Cal. Rptr. 663 (Cal. App. 1988), the gas station was found potentially
liable for furnishing gasoline to an intoxicated motorist on the
theory that the gasoline itself was a chattel with which the driver
was negligently entrusted. We note that the opinion, which
contradicted prior law, drew one dissent. Moreover, the California
Supreme Court ordered that it not be officially published, thus
diminishing its precedential value. See O'Toole, 247 Cal. Rptr. at
663 n.
Finally, in Murray v. Whit Tatum Motors, Inc., 673 F. Supp. 981, 982 (W.D. Ark. 1987), the federal district court denied a car
dealer's motion for summary judgment on the ground that the
customer had not paid for the repairs. Thus, the bailee was not
obligated to return the vehicle.
In light of these precedents, defendant was clearly a bailee
for hire. Once Butzen paid for the repairs and demanded the return
of his keys, defendant had no discretion to refuse without being
found liable for conversion. Because Butzen already owned the car,
defendant cannot be liable for negligently "entrusting" it to him.
Accordingly, the trial court did not err in dismissing the
complaint on this ground.
The judgment of the circuit court of Lake County is affirmed.
Affirmed.
INGLIS and DOYLE, JJ., concur.