{
  "id": 3490468,
  "name": "ANNA TOSH, Plaintiff-Appellant, v. SAMUEL D. SCOTT et al., Defendants (Martin J. Scott, Defendant-Appellee); SANDRA J. MALLDER, Adm'x of the Estate of Cynthia Jo Mallder, Deceased, Plaintiff-Appellant, v. SAMUEL D. SCOTT et al., Defendants (Martin J. Scott, Defendant-Appellee)",
  "name_abbreviation": "Tosh v. Scott",
  "decision_date": "1984-12-14",
  "docket_number": "Nos. 3\u201484\u20140094, 3\u201484\u20140139 cons.",
  "first_page": "322",
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  "last_updated": "2023-07-14T19:09:03.101627+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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    "judges": [],
    "parties": [
      "ANNA TOSH, Plaintiff-Appellant, v. SAMUEL D. SCOTT et al., Defendants (Martin J. Scott, Defendant-Appellee). SANDRA J. MALLDER, Adm\u2019x of the Estate of Cynthia Jo Mallder, Deceased, Plaintiff-Appellant, v. SAMUEL D. SCOTT et al., Defendants (Martin J. Scott, Defendant-Appellee)."
    ],
    "opinions": [
      {
        "text": "JUSTICE SCOTT\ndelivered the opinion of the court:\nThe captioned cases present a single issue and are consolidated for the purpose of determination. The issue presented for review is whether a cause of action exists for the negligent sale of an automobile. The trial court determined that no cause of action existed and granted in each case the defendant Martin J. Scott\u2019s motion for a summary judgment.\nThese cases arose out of an automobile accident which involved an automobile driven by the plaintiff Anna Tosh in which plaintiff Mallder\u2019s decedent, namely Cynthia Jo Mallder, was a passenger. The vehicle was involved in a collision with an automobile operated by Samuel D. Scott. As the result of the accident, plaintiff Tosh was injured and Cynthia Jo Mallder died of injuries sustained. Multicount complaints were filed, and certain counts were directed against the defendant Martin J. Scott.\nThe counts pertinent to this appeal allege that the defendant sold his automobile to his adult son, Samuel D. Scott, and that the father, Martin, was negligent in that at the time he effected the sale he knew or should have known that his son, the purchaser, did not have a valid license to operate the vehicle; that his son had a severe and extreme drinking problem; that his son had been convicted on at least three prior occasions of operating a vehicle while under the influence of intoxicating beverages, and that there was a reasonable likelihood that the son would operate the vehicle he purchased from his father while under the influence of intoxicating liquor. The alleged liability of Martin J. Scott was predicated on the negligent sale of the automobile to his son.\nIn confronting the issue presented in these appeals, it should be noted at the outset that there are no Illinois cases imposing liability for the negligent sale of an automobile. The plaintiffs attempt to equate the sale of a motor vehicle with negligent entrustment cases. Such theory cannot be supported, since an essential element of a negligent en-trustment cause of action is the defendant\u2019s ownership or right to control the vehicle. This element in the instant cases is missing. In the instant cases, it is uncontested that the father\u2019s sale to his son was a bona fide arms-length transaction which occurred three weeks before the accident. That it was a bona fide sale is attested to by a cancelled check and certificate of title. At the time of the sale, the defendant removed his license plates from the vehicle and his son attached to the vehicle an \u201cIllinois License Applied For\u201d and an Illinois temporary registration permit. It is further noted that the son also owned another vehicle, a van. The decision as to which vehicle he should drive on the date of the accident was entirely within the son\u2019s discretion.\nAs a matter of public policy, liability should not be extended to a seller as the plaintiffs seek to do in the instant cases. In a similar case, the appeals court of the State of Tennessee made the following observation:\n\u201cIf a father incurs liability by giving an automobile to his son, knowing him to be [a] drunken or incompetent driver, when would it end? Would it last for the life of the automobile? Would it apply to a new automobile in the event of a trade-in? Or would liability attach to a dealer who sold an automobile to a known incompetent or drunken driver? Or to a filling station operator who sold such person gas, knowing of his propensity?\n*** The very paucity of authorities on this interesting question leads to the belief that such liability is not recognized in other jurisdictions.\u201d Brown v. Harkleroad (1955), 39 Tenn. App. 657, 665, 287 S.W.2d 92, 96.\nWhile, as heretofore stated, there is no Illinois case dealing precisely with the cause of action for a negligent sale of an automobile, an indication of our court\u2019s views on such an issue can be found in the case of Fugate v. Galvin (1980), 84 Ill. App. 3d 573, 406 N.E.2d 19. In that case it was held by the reviewing court that a passenger in another\u2019s car cannot be liable when, knowing that the owner-driver is intoxicated, nevertheless asks the owner-driver to take him home, only to have the owner-driver run down a pedestrian.\nThe court in Fugate stated as follows:\n\u201cThe Illinois rule is well settled, and is in accord with that of other jurisdictions. The liability for the damage caused by the negligent act of a driver does not attach against a person other than the driver, unless that person is the owner or has the right to control the vehicle. [Citations.]\u201d 84 Ill. App. 3d 573, 575, 406 N.E.2d 19, 21.\nThe court in Fugate, in addressing the policy question, stated as follows:\n\u201cWhile creating a new duty would assist injured plaintiffs by spreading the loss among a new class of defendants, up to now society has been satisfied to rely upon the liability of the driver alone to adequately compensate injured plaintiffs. The fortuitous circumstance of one driver\u2019s inability to pay for damages he has caused should not be a reason to open new arenas of liability in search of perfect compensation schemes. Finally, as discussed above, the driver in this case bore final responsibility for the consequences of his decision. The policy of requiring individuals to take responsibility for their own acts militates against the creation of a new duty.\u201d 84 Ill. App. 3d 573, 577, 406 N.E.2d 19, 22.\nFor the reasons set forth, the action of the circuit court of Rock Island County in granting summary judgment to the defendant in the instant cases is affirmed.\nAffirmed.\nSTOUDER and BARRY, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE SCOTT"
      }
    ],
    "attorneys": [
      "Dennis R. Fox, of Califf, Harper, Fox, Dailey & Slover, of Moline, for appellant Anna Tosh.",
      "Raymond J. Conklin, of Braud, Warner, Neppl & Westensee, Ltd., of Rock Island, for appellant Sandra J. Mallder.",
      "Samuel S. MeHard, of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island, for appellee."
    ],
    "corrections": "",
    "head_matter": "ANNA TOSH, Plaintiff-Appellant, v. SAMUEL D. SCOTT et al., Defendants (Martin J. Scott, Defendant-Appellee). SANDRA J. MALLDER, Adm\u2019x of the Estate of Cynthia Jo Mallder, Deceased, Plaintiff-Appellant, v. SAMUEL D. SCOTT et al., Defendants (Martin J. Scott, Defendant-Appellee).\nThird District\nNos. 3\u201484\u20140094, 3\u201484\u20140139 cons.\nOpinion filed December 14, 1984.\nDennis R. Fox, of Califf, Harper, Fox, Dailey & Slover, of Moline, for appellant Anna Tosh.\nRaymond J. Conklin, of Braud, Warner, Neppl & Westensee, Ltd., of Rock Island, for appellant Sandra J. Mallder.\nSamuel S. MeHard, of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island, for appellee."
  },
  "file_name": "0322-01",
  "first_page_order": 344,
  "last_page_order": 346
}