{ "id": 35440, "name": "MARY ELLEN UMBLE, Plaintiff-Appellant, v. SANDY McKIE AND SONS, INC., Defendant-Appellee", "name_abbreviation": "Umble v. Sandy McKie & Sons, Inc.", "decision_date": "1998-01-27", "docket_number": "No. 2\u201497\u20140231", "first_page": "449", "last_page": "455", "citations": [ { "type": "official", "cite": "294 Ill. App. 3d 449" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "673 F. Supp. 981", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 6813649 ], "year": 1987, "pin_cites": [ { "page": "982" } ], "opinion_index": 0, "case_paths": [ "/f-supp/673/0981-01" ] }, { "cite": "247 Cal. Rptr. 663", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 207", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381824 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0207-01" ] }, { "cite": "931 P.2d 544", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10318544 ], "year": 1996, "pin_cites": [ { "page": "545", "parenthetical": "parents not liable for returning to adult son rifle which had been stored at their house" } ], "opinion_index": 0, "case_paths": [ "/p2d/931/0544-01" ] }, { "cite": "559 So. 2d 291", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7515902 ], "year": 1990, "pin_cites": [ { "page": "292", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/so2d/559/0291-01" ] }, { "cite": "253 Cal. Rptr. 365", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1988, "pin_cites": [ { "page": "367", "parenthetical": "valet parking service not liable for returning keys to intoxicated patron" } ], "opinion_index": 0 }, { "cite": "206 Cal. App. 3d 69", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4408092 ], "year": 1988, "pin_cites": [ { "page": "75", "parenthetical": "valet parking service not liable for returning keys to intoxicated patron" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/206/0069-01" ] }, { "cite": "524 P.2d 255", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1974, "pin_cites": [ { "page": "259", "parenthetical": "driver had duty to return control of car to rightful owner upon demand" } ], "opinion_index": 0 }, { "cite": "11 Wash. App. 509", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1853609 ], "year": 1974, "pin_cites": [ { "page": "515", "parenthetical": "driver had duty to return control of car to rightful owner upon demand" } ], "opinion_index": 0, "case_paths": [ "/wash-app/11/0509-01" ] }, { "cite": "86 Nev. 724", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 4846452 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "726", "parenthetical": "when owner claimed car and paid parking charges, bailment ended and defendant no longer had right to control car" }, { "page": "674", "parenthetical": "when owner claimed car and paid parking charges, bailment ended and defendant no longer had right to control car" } ], "opinion_index": 0, "case_paths": [ "/nev/86/0724-01" ] }, { "cite": "269 N.J. Super. 36", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 614292 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "53" }, { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nj-super/269/0036-01" ] }, { "cite": "611 S.W.2d 333", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9933992 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "334" }, { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/sw2d/611/0333-01" ] }, { "cite": "165 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483559 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "186" }, { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0181-01" ] }, { "cite": "129 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490468 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0322-01" ] }, { "cite": "116 Ill. App. 3d 749", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520871 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0749-01" ] }, { "cite": "220 Ill. App. 3d 537", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5276032 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0537-01" ] }, { "cite": "216 Ill. App. 3d 962", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5289245 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "966" }, { "page": "970-71" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0962-01" ] }, { "cite": "291 Ill. App. 3d 1044", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456137 ], "year": 1997, "pin_cites": [ { "page": "1046" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/1044-01" ] }, { "cite": "139 Ill. 2d 455", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5574428 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "473" }, { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0455-01" ] } ], "analysis": { "cardinality": 745, "char_count": 12093, "ocr_confidence": 0.762, "pagerank": { "raw": 1.1685102220551703e-07, "percentile": 0.5857513314482814 }, "sha256": "66e1ea23f262c18faaf6fef164a918666003f3cb6a19308834018e407d195d99", "simhash": "1:aded81b7d880a029", "word_count": 1970 }, "last_updated": "2023-07-14T15:05:51.326352+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARY ELLEN UMBLE, Plaintiff-Appellant, v. SANDY McKIE AND SONS, INC., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nPlaintiff, 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.\nI. Background\nPlaintiff\u2019s 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\u2019s employees. Defendant repaired Butzen\u2019s 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\u2019s car collided with one driven by plaintiff\u2019s 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\u2019s death.\nThe trial court granted defendant\u2019s motion to dismiss the complaint, holding that defendant owed no duty to plaintiff\u2019s decedent to prevent Butzen from continuing to drive. After the court denied her motion to reconsider, plaintiff filed a timely notice of appeal.\nThe trial court dismissed plaintiff\u2019s complaint pursuant to section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 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 nova the dismissal of a complaint under section 2 \u2014 615. In re Estate of Vogel, 291 Ill. App. 3d 1044, 1046 (1997).\nII. Substantial Assistance\nPlaintiff first contends that the court erroneously dismissed her complaint because it adequately states a cause of action under a \"concert of action\u201d or \"substantial assistance\u201d theory. Section 876 of the Restatement of Torts provides:\n\"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he\n(a) does a tortious act in concert with the other or pursuant to a common design with him, or\n(b) knows that the other\u2019s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or\n(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.\u201d Restatement (Second) of Torts \u00a7876 (1979).\nPlaintiff contends that by fixing Butzen\u2019s car, defendant rendered him \"substantial assistance or encouragement\u201d in his activity of driving drunk. We disagree.\nThe complaint contains no allegation that any of defendant\u2019s employees actively encouraged Butzen to get back in his car and drive. We do not equate failing to prevent certain conduct with actively encouraging that conduct. Moreover, the complaint\u2019s allegations do not establish that defendant provided substantial assistance to Butzen. There is no allegation that Butzen\u2019s 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\u2019s repair of the tire and headlight made Butzen\u2019s car safer rather than more dangerous.\nIn Sanke v. Bechina, 216 Ill. App. 3d 962 (1991), plaintiffs\u2019 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\u2019s acts of repairing a tire and a headlight were not inherently wrongful and defendant did not actively encourage Butzen to engage in wrongful activity.\nPlaintiff 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\u2019s car to him. Secondly, whether or not someone has a driver\u2019s license is in most cases objectively verifiable. Asking to see a driver\u2019s license is a common practice in almost every segment of the retail industry and requiring a prospective car purchaser to show a driver\u2019s 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.\nIII. Negligent Entrustment\nPlaintiff next contends that her complaint states a cause of actian for negligent entrustment. Negligent entrustment occurs where one entrusts to another something under the actor\u2019s 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 \u00a7 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.\nAlthough 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\u2019 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.\u201d Sampson, 611 S.W.2d at 334.\nThe 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.\nIn 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\u2019s car to Niemeyer\u2019s 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:\n\"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.\nFurther, such an over-broad duty would open a Pandora\u2019s 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\u2019s 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\u2019s 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.\u201d Lombardo, 269 N.J. Super, at 53, 634 A.2d at 559.\nOther 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, 726, 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, 515, 524 P.2d 255, 259 (1974) (driver had duty to return control of car to rightful owner upon demand); Knighten v. Sam\u2019s 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 Ltd. 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).\nThe relatively few cases finding bailees to be potentially liable are factually distinguishable. In West v. Granny\u2019s 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\u2019Toole 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\u2019Toole, 247 Cal. Rptr. at 663 n.*\nFinally, in Murray v. Whit Tatum Motors, Inc., 673 F. Supp. 981, 982 (W.D. Ark. 1987), the federal district court denied a car dealer\u2019s 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.\nIn 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\u201d it to him. Accordingly, the trial court did not err in dismissing the complaint on this ground.\nThe judgment of the circuit court of Lake County is affirmed.\nAffirmed.\nINGLIS and DOYLE, JJ\u201e concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "James J. Hermann, Jr., and James R. Hermann, both of James J. Hermann, Jr., & Associates, P.C., of Waukegan, for appellant.", "Michael Resis, of O\u2019Hagan, Smith & Amundsen, of Chicago, for appellee." ], "corrections": "", "head_matter": "MARY ELLEN UMBLE, Plaintiff-Appellant, v. SANDY McKIE AND SONS, INC., Defendant-Appellee.\nSecond District\nNo. 2\u201497\u20140231\nOpinion filed January 27, 1998.\nJames J. Hermann, Jr., and James R. Hermann, both of James J. Hermann, Jr., & Associates, P.C., of Waukegan, for appellant.\nMichael Resis, of O\u2019Hagan, Smith & Amundsen, of Chicago, for appellee." }, "file_name": "0449-01", "first_page_order": 467, "last_page_order": 473 }