{
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  "name": "DANIELLE JANIA, a Minor, By and Through Her Mother, Michelle Canales, et al., Plaintiffs-Appellants, v. JOEL AGUILERA, JR., et al., Defendants-Appellees",
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  "casebody": {
    "judges": [],
    "parties": [
      "DANIELLE JANIA, a Minor, By and Through Her Mother, Michelle Canales, et al., Plaintiffs-Appellants, v. JOEL AGUILERA, JR., et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE McNULTY\ndelivered the opinion of the court:\nPlaintiffs Danielle Jania and Annette Oszczepinski brought this personal injury action against defendants, the Chicago Board of Education (the Board), Joel Aguilera, Jr., and Louis Shannon to recover damages for injuries plaintiffs sustained when they were hit by a driver\u2019s education car driven by Aguilera. The trial court granted summary judgment in favor of the Board, the owner of the car, and Shannon, the driver\u2019s education teacher, on the basis that the action against these defendants was barred by section 3 \u2014 108(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3 \u2014 108(a) (West 1994)). We reverse and remand.\nOn March 24, 1994, Aguilera was driving the driver\u2019s education car and Shannon was seated in the front passenger seat. Shannon was employed by the Board and taught a driver\u2019s education course at Prosser High School. The car was equipped with \"dual control brakes,\u201d meaning that there is a brake pedal on the passenger side for the instructor to use. Shannon checked the passenger side brake prior to going out on the road with Aguilera and determined that the brake was working properly.\nAs they traveled east on Belmont Avenue toward the intersection of Belmont and Long Avenues, two pedestrians, the plaintiffs, stepped off the curb on the southwest corner and began crossing the street. While Shannon claims that plaintiffs crossed against the red light, an independent witness testified that it was defendants who had the red light. Shannon claims that he reminded Aguilera about \"smooth braking\u201d and he saw Aguilera apply the brakes. Shannon also pressed down on the instructor side brake and grabbed the steering wheel. The brakes did not respond and the car struck and injured plaintiffs. After the accident, the car did not have any braking problems.\nPlaintiffs brought suit against Aguilera, the Board and Shannon, alleging that defendants negligently: (a) operated, maintained and controlled the car at a speed greater than was reasonable; (b) failed to stop in compliance with traffic control signals; (c) failed to keep a proper lookout; and (d) owned, operated, maintained and controlled the car without adequate brakes. Plaintiffs also alleged that Shannon negligently failed to instruct and supervise Aguilera on the safe operation of the car.\nThe Board and Shannon filed a motion for summary judgment alleging that plaintiffs\u2019 claims against them were barred by section 3 \u2014 108 of the Tort Immunity Act, which provides that \"neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.\u201d 745 ILCS 10/3 \u2014 108(a) (West 1994). The trial court granted summary judgment in favor of the Board and Shannon, finding that since Shannon was not driving the car at the time of the accident, any negligence plaintiffs attribute to Shannon arose from his supervision of Aguilera and was therefore immunized under section 3 \u2014 108 of the Tort Immunity Act. The claims against Aguilera remain pending and are not at issue in this appeal.\nSummary judgment is appropriate where the defendant owed no duty to the plaintiff (Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 592 N.E.2d 1098 (1992)) or is immunized against liability by the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1 \u2014 101 through 9 \u2014 107 (West 1994)). Barnett v. Zion Park District, 171 Ill. 2d 378, 665 N.E.2d 808 (1996).\nPlaintiffs concede that summary judgment was properly granted as to their allegation that Shannon negligently failed to instruct and supervise the student on the safe operation of the car. Plaintiffs also concede their claim that defendants negligently maintained the brakes. However, plaintiffs assert that summary judgment was improperly granted on their allegations that Shannon negligently operated and controlled the vehicle at a speed greater than was reasonable, failed to stop in compliance with traffic control signals, and failed to keep a proper lookout. Plaintiffs contend that defendants are not immunized from these claims since the claims are based not on Shannon\u2019s negligent supervision of the student\u2019s driving, but on Shannon\u2019s personal failure as co-driver of the car to prevent it from crashing into plaintiffs.\nWe are not persuaded by plaintiffs\u2019 argument that Shannon\u2019s duty to plaintiffs arose by virtue of Shannon being a co-driver of the car. Nor are we persuaded by defendants\u2019 claim that because Shannon was not the driver of the car, he owed no duty to plaintiffs. As defendants point out in their brief, there are circumstances in which a passenger in a vehicle owes a duty to a third person. A passenger in a car has a duty to keep a proper lookout or control the driver if the passenger knows or should know that such actions are essential to his or her safety. Bauer v. Johnson, 79 Ill. 2d 324, 403 N.E.2d 237 (1980); Seeger v. Canale, 241 Ill. App. 3d 177, 607 N.E.2d 687 (1993).\nWe find that Shannon, as a passenger of a vehicle equipped with a dual control brake, owed a duty to plaintiffs that was independent of Shannon\u2019s duty as a driving instructor. When Shannon saw that an accident was imminent, Shannon had a duty to use reasonably available means to prevent the vehicle from hitting plaintiffs. In this case, the means available to Shannon involved the use of the passenger side brake. A passenger side brake serves two purposes. One such purpose is to instruct the student driver in operating the vehicle. Any actions by Shannon in using the passenger side brake to instruct the student driver are clearly immunized by section 3 \u2014 108 of the Tort Immunity Act. However, the more critical purpose served by the passenger side brake is to allow the passenger to use the brake to stop the vehicle in order to avoid an accident. Certainly when a passenger is in a vehicle with an inexperienced driver, and the vehicle is equipped with a passenger side brake, it is foreseeable that the passenger may need to use his brake in order to avoid an accident. To place such a duty upon a passenger in a car equipped with a passenger side brake benefits the public significantly more than it burdens the passenger.\nIn the instant case, when it became apparent to Shannon that an accident was imminent unless the vehicle was stopped, Shannon had a duty to use whatever means were reasonably available, such as using the passenger side brake to avoid the accident. See Greenway v. Craft, 258 Md. 1, 264 A.2d 818 (1970) (where driving instructor fails to take proper precautions, he may be liable for injuries to a third person). Shannon\u2019s actions in using the brake for this purpose are not immunized by section 3 \u2014 108, since these actions do not concern instructing or supervising the student driver. We thus conclude that the trial court improperly granted summary judgment in defendants\u2019 favor since a genuine issue of material fact exists as to whether Shannon breached his duty to use the means uniquely available to him, the passenger side brake, to avoid the accident. We, therefore, reverse and remand for further proceedings consistent with the conclusions set forth herein.\nReversed and remanded.\nRAKOWSKI and TULLY, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE McNULTY"
      }
    ],
    "attorneys": [
      "Martin J. Healy, Jr., & Associates, of Chicago (Daniel B. Malone, of counsel), for appellants.",
      "Marilyn F. Johnson, of Board of Education, of Chicago (William A. Morgan, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "DANIELLE JANIA, a Minor, By and Through Her Mother, Michelle Canales, et al., Plaintiffs-Appellants, v. JOEL AGUILERA, JR., et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1\u201496\u20143453\nOpinion filed December 16, 1997.\nMartin J. Healy, Jr., & Associates, of Chicago (Daniel B. Malone, of counsel), for appellants.\nMarilyn F. Johnson, of Board of Education, of Chicago (William A. Morgan, of counsel), for appellees."
  },
  "file_name": "0940-01",
  "first_page_order": 960,
  "last_page_order": 963
}