Collier v. Avis Rent A Car System, Inc.

• Decision Date: 23 June 1993
• Docket Number: 1-92-0221,Nos. 1-92-0220,s. 1-92-0220
• Parties: , 188 Ill.Dec. 201 Heather COLLIER, Gary Collier and Elizabeth Collier, a minor, by her father and next friend, Gary Collier, Plaintiffs-Appellees, v. AVIS RENT A CAR SYSTEM, INC., a corporation, and Joseph Murray, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 771

618 N.E.2d 771

248 Ill.App.3d 1088, 188 Ill.Dec. 201

Heather COLLIER, Gary Collier and Elizabeth Collier, a

minor, by her father and next friend, Gary

Collier, Plaintiffs-Appellees, v. AVIS RENT A CAR SYSTEM, INC., a corporation, and Joseph

Murray, Defendants-Appellants.

Nos. 1-92-0220, 1-92-0221.

Appellate Court of Illinois,

First District, Third Division.

June 23, 1993.

Hinshaw & Culbertson, D. Kendall Griffith and Bruce L. Carmen, Chicago, for appellant, Avis Rent A Car System, Inc.

Raymond Roffi, Chicago, for appellant, Joseph Murray.

Joseph R. Curcio, Ltd. and David A. Novoselsky & Assoc., Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellees.

Presiding Justice TULLY delivered the opinion of the court:

This cause of action arises out of an automobile collision that occurred on April 20, 1986, between plaintiff Gary Collier's (Gary) vehicle and an automobile owned by defendant Avis Rent A Car System, Inc., (Avis) that was being driven by Avis' employee, defendant Joseph Murray. Gary had two passengers in the car with him that day: in the front seat was his wife, plaintiff Heather Collier (Heather) and in the back seat was his daughter, plaintiff Elizabeth Collier (Elizabeth). Subsequent to the accident, plaintiffs filed suit against Murray and Avis to recover damages for injuries they sustained as a result of the incident. It is only Heather's injuries that are the subject of the instant appeals.

After a jury trial, the trial court entered judgment in favor of Heather and against Murray and Avis for $1,495,755 on November 22, 1991, nunc pro tunc to October 25, 1991. On December 10, 1991, the trial court denied the individual post-trial motions of both Avis and Murray. It is from the judgment and the order of December 10, 1991, that defendants appealed separately to this court pursuant to Supreme Court Rule 301. (134 Ill.2d R. 301.) Subsequently, this court consolidated defendants' appeals.

FACTUAL BACKGROUND

Avis is an automobile rental agency, operating through numerous facilities. In April of 1986, Murray was employed by Avis in the capacity of a shuttler for its facility located at O'Hare International Airport in Chicago, Illinois. A shuttler is an employee who drives cars from one Avis facility to another. Avis shuttlers are hourly employees who typically work two to three days per week. Every time a shuttler moves an Avis vehicle it is done so on the basis of a nonrevenue or vehicle transfer contract. Accordingly, a lengthy document indicating the vehicle being moved, the vehicle's mileage, and where the vehicle is being taken to and from is prepared.

Avis had a policy known as a "dead-head" procedure available to employees in good standing. Under this policy if a shuttler's home facility had a car belonging to another Avis facility, and that other facility had a car belonging to the home facility, a shuttler could obtain permission to move the cars between the two facilities and have use of the home facility's vehicle for his or her own use on the return trip.

When Murray was hired by Avis, he was given a set of rules and regulations involving shuttlers and the moving of Avis vehicles. Avis company policy and procedures required that when one of its cars was involved in a collision that an accident report be prepared. The report was then to be reviewed for completeness and signed by an Avis manager. In April of 1986, Carol Forsyth was employed as a distribution manager for Avis at O'Hare; one of her duties as manager was to supervise shuttlers, including Murray.

On April 17, 1986, Murray noticed that the O'Hare facility had in its parking lot a car belonging to an Avis facility in Moline, Illinois. Murray asked Forsyth if there was an O'Hare vehicle in Moline. Forsyth checked a computer report which showed that the Moline facility had an O'Hare car. According to Murray, he asked Forsyth if he could have use of the O'Hare car he would obtain in Moline after dead-heading the Moline car to that facility. Forsyth stated that Murray had said that he wished to go to Moline to visit a friend. Subsequently, a nonrevenue transfer was executed which indicated that the return date on the transfer from Moline to O'Hare as April 18, 1986, at 11 p.m.

In the early afternoon of April 18, 1986, Murray picked up the O'Hare vehicle from the Moline facility and went to a brother-in-law's home in Hanover Park, Illinois. Murray used the car on April 18 and 19, 1986.

By the early afternoon of April 20, 1986, Murray had consumed seven to eight beers. At trial, Murray said that he received a telephone call informing him that his brother in Dolton, Illinois suffered a heart attack and, consequently, he left to visit him.

In Hanover Park, Murray drove east on Lake Street towards Interstate 290. Murray Officer Mark Walford of the Hanover Park police department was the first officer to arrive at the scene. Walford had been a police officer for 10 1/2 years and while not specifically trained at estimating speed from the amount of damage to vehicles, he had been trained and experienced in the observation of the extent of damage to vehicles and has seen collisions at varying speeds. In Walford's opinion, Murray's vehicle was going approximately 35 miles per hour at the time of impact.

[188 Ill.Dec. 204] estimated that he was traveling at 30 to 35 miles per hour as he neared Gary Avenue, which runs perpendicular to Lake Street. At that time, Gary, Heather and Elizabeth were in their stopped car at the intersection of Gary Avenue and Lake Street. Murray estimated that as he approached the Colliers' car he was between 20 to 35 feet from the rear of the Collier car when he applied the brakes before hitting it in the rear.

Subsequently, Deputy Sheriff Marshall Norby of the Du Page County sheriff's department arrived and took charge of the investigation. Norby testified that after surveying the situation and speaking to the other officers present at the scene, he approached Murray, who was still in the Avis vehicle, and explained that the car would have to be towed due to the extensive damage it incurred. According to Norby, Murray responded that he worked for Avis, that the car was owned by Avis, and that he was taking it back to the O'Hare facility. Murray stated that he could not recall his conversation with Norby.

While speaking to Norby about ordering a tow truck, Norby smelled the odor of alcohol coming from the car's window. Murray's speech was slurred and he mumbled. When the tow truck arrived, Norby got Murray out of the vehicle and directed him towards a squad car. At that time, Norby noticed that Murray's gait was unstable. Consequently, Norby concluded that Murray was intoxicated and transported him to the Bloomingdale police department.

At the police station, Murray refused to take a breathalizer test, balance and walking tests, or answer questions for the interview portion of the alcohol influence report form. Norby asked Murray what his occupation was, to which Murray answered that he was a shuttler for Avis. When asked by Norby when the last time he worked, Murray responded, "right now". Murray never indicated to Norby that he was headed out to Dolton to visit a brother that he believed had had a heart attack.

On the morning of April 21, 1986, Forsyth received a telephone call from Murray from the Du Page county jail. Forsyth testified that Murray told her that while driving the O'Hare car he had been in a collision, received a traffic citation, and that the car had been towed. Forsyth explained that at the time it was Avis policy to take a report whenever an employee got into an accident. Thus, she took down the information provided by Murray over the telephone and entered it onto an Avis accident report form. On the line that stated for whom and what purpose the vehicle was being used at the time the accident occurred, Forsyth wrote "dead-heading" from Moline to O'Hare "own time". Later that day, Forsyth had Murray sign the form.

Murray was suspended from Avis pending the outcome of the criminal charges against him for driving under the influence of alcohol. Subsequently, Murray appeared in court and pled guilty to the charge. Consequently, Murray was discharged on June 15, 1986.

Murray testified that it was his intention, immediately prior to the collision, to go over to Interstate 290. If Murray were to have taken Interstate 290 going north it would have taken him to O'Hare, where he was to have dropped off the Avis vehicle. Nevertheless, at trial Murray asserted that he was going to Dolton to see his brother whom he thought had suffered a heart attack.

However, at trial plaintiffs introduced evidence that Murray's brother had not been hospitalized on the date of the collision. Plaintiffs further introduced evidence to show that Murray's brother had Murray testified that it was his understanding that while he was driving an Avis vehicle from one locale to another, regardless of whether being paid for the trip, that he was still in Avis' employ as he was moving its car. Moreover, Murray stated that it was his understanding that the use of an automobile itself was a form of pay. Furthermore, in its answer to plaintiffs' original complaint, Avis admitted agency. Subsequently, in amended pleadings, Avis denied this allegation of plaintiffs.

[188 Ill.Dec. 205] worked at his job from April 21, 1986, through April 26, 1986, the date of his heart attack and subsequent death.

Heather was transported by ambulance to Glendale Community Heights Hospital after the collision. At the hospital, Heather complained of pain in her head, neck, and upper right shoulder. X rays were taken of Heather's spine. She was advised to apply ice, given a prescription and sent home.

Heather's physical condition did not improve. Dr. Matias Castro, a board-certified neurosurgeon and board-eligible neurologist, examined Heather on April 26, 1986. Castro noted that Heather had...