Baker v. Walker, 87-2962

• Decision Date: 16 August 1988
• Docket Number: No. 87-2962,87-2962
• Citation: 123 Ill.Dec. 621,173 Ill.App.3d 836,528 N.E.2d 5
• Parties: , 123 Ill.Dec. 621 Lizzie BAKER and Tom Baker, Plaintiffs-Appellants, v. Richard WALKER, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 5

528 N.E.2d 5 173 Ill.App.3d 836, 123 Ill.Dec. 621 Lizzie BAKER and Tom Baker, Plaintiffs-Appellants,
v.
Richard WALKER, Defendant-Appellee. No. 87-2962. Appellate Court of Illinois,
First District, Second Division. Aug. 16, 1988.

Page 6

[173 Ill.App.3d 837] [123 Ill.Dec. 622] Sam Cuba, Jeffrey D. Schultz, Ltd., Chicago (David A. Novoselsky, Kathleen M. Krist, David A. Novoselsky & Associates, of counsel), for plaintiffs-appellants.

Marsha Kay Ross, Michael R. Orlando and Haskell & Perrin, Chicago, for defendant-appellee.

Presiding Justice HARTMAN delivered the opinion of the court:

Plaintiffs appeal from a circuit court order dismissing their complaint with prejudice. We are asked to determine whether the circuit court erred in: (1) dismissing plaintiffs' complaint for failure to state a cause of action; and (2) denying plaintiffs' motion to amend their complaint.

On March 29, 1984, an automobile driven by Clarita Pagal struck plaintiff Lizzie Baker as she stood in a bus shelter at the southeast corner of Western Avenue and 35th Street in Chicago, Illinois. In a complaint filed March 27, 1986, Lizzie Baker and co-plaintiff Tom Baker alleged that, on the day of the accident, Pagal was proceeding south on Western Ave. when, at or near the intersection of 35th Street, Pagal's car collided with a truck owned by Prime, Inc. and driven by Merle Dee Matts, a Prime employee, who was not made a defendant in this case and from whom no relief is sought. The collision then caused Pagal's car to hit Lizzie Baker.

Plaintiffs further asserted: (1) defendant Richard Walker, also a Prime employee acting in the scope of his employment, accompanied Matts that day in the truck; (2) Prime, by and through Walker and Walker, individually, "had the duty, in the maintenance and operation * * * of said vehicle, to exercise all due care and caution to avoid injury to persons lawfully upon the thoroughfare, including [Lizzie Baker]"; and (3) Prime, by and through Walker, and Walker, individually, breached this duty "in one or more of the following ways:"

"a. Carelessly and negligently failed to warn the driver of the truck as to the presence of another car which was in his sight but not visible to the driver of the vehicle owned by [Prime].

"b. Carelessly and negligently was trained in the methods of [173 Ill.App.3d 838] safety available by a passenger to a driver of a vehicle;

"c. Carelessly and negligently failed to maintain a proper and sufficient lookout for other vehicles that were in the driver's 'blind spot' or not noticed by said driver especially the vehicle driven by [Pagal];

"d. Carelessly and negligently aided in the operation of said motor vehicle so that Defendant [sic] [Pagal] was caused to strike the Plaintiff, LIZZIE BAKER;

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[123 Ill.Dec. 623] "e. Otherwise carelessly, negligently and improperly rode and acted as lookout of said motor vehicle."

The resulting accident, plaintiffs continued, caused Lizzie Baker "external and internal" injuries. Plaintiffs sought damages for those injuries and for loss of consortium.

On March 16, 1987, Walker moved to dismiss plaintiffs' action with prejudice pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-615), arguing that plaintiffs failed to allege facts establishing any duty owed by Walker to Lizzie Baker. A response and reply thereto followed and after a hearing on August 18, 1987, the circuit court dismissed plaintiffs' action with prejudice. Plaintiffs appeal.

I.

Plaintiffs maintain that they alleged sufficient facts to establish the existence of a joint venture between Walker and Matts, rendering the former liable for Matts' harmful acts which caused injury to third parties; therefore, the circuit court erred in dismissing this action.

Generally, an automobile passenger is not liable for the negligent acts of the driver unless the passenger owns the automobile or a special relationship exists between them. (Martino v. Leiva (1985), 133 Ill.App.3d 1006, 1007, 88 Ill.Dec. 935, 479 N.E.2d 955; Fugate v. Galvin (1980), 84 Ill.App.3d 573, 574, 575, 40 Ill.Dec. 318, 406 N.E.2d 19.) The special relationship of a joint venture (Campanella v. Zajic (1978), 62 Ill.App.3d 886, 887, 20 Ill.Dec. 33, 379 N.E.2d 866; Bridgewater v. Wagoner (1960), 28 Ill.App.2d 201, 208, 170 N.E.2d 785), endows the association with the characteristics of a partnership (Prassas v. Nicholas W. Prassas & Co. (1981), 94 Ill.App.3d 311, 315, 49 Ill.Dec. 884, 418 N.E.2d 904), making each venturer an agent of the other.

Citing Grubb v. Illinois Terminal Co. (1937), 366 Ill. 330, 339, 8 N.E.2d 934, plaintiffs suggest they need only show that Walker and Matts were engaged in a business enterprise, in which they shared a mutual interest, to establish a joint venture (see also...