Seeger v. Canale

• Decision Date: 28 January 1993
• Docket Number: No. 2-91-1436,2-91-1436
• Citation: 607 N.E.2d 687,241 Ill.App.3d 177,180 Ill.Dec. 618
• Parties: , 180 Ill.Dec. 618 Juanita SEEGER, Plaintiff-Appellant, v. Thomas CANALE, Jr., and Keith N. Chapman, Defendants (Robert Seeger, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 687

607 N.E.2d 687

241 Ill.App.3d 177, 180 Ill.Dec. 618

Juanita SEEGER, Plaintiff-Appellant, v. Thomas CANALE, Jr., and Keith N. Chapman, Defendants (Robert Seeger, Defendant-Appellee).

No. 2-91-1436.

Appellate Court of Illinois Second District.

Jan. 28, 1993.

Michael J. Walkup, Palatine for Juanita Seeger.

Grace Elizabeth Wein, Wein & Associates, P.C., Chicago, Kathleen M. Kenny, Myron J. Hall, Myron J. Hall, Ltd., Waukegan, for Thomas Canale, Jr., Keith N. Chapman, Robert Seeger.

Justice BOWMAN delivered the opinion of the court:

Plaintiff, Juanita Seeger, appeals the order of the circuit court granting summary judgment in favor of defendant Robert Seeger in plaintiff's action for personal injuries. On appeal, plaintiff contends that the court erred in holding that defendant's negligence should be imputed to her.

Plaintiff and defendant are husband and wife. On the night of December 6, 1987, they were returning from a church function in Round Lake to their home in Crystal Lake. Defendant was driving the car, of which the parties were co-owners, westbound on Rollins Road. Defendant was aware that the road's surface was covered with ice and snow. He headed into a curve at about 35 miles per hour. As he rounded the curve, he saw a car stopped in the middle of the road, straddling both lanes. He attempted to stop, but could not. As a result, the car ran into the other car, which was owned by defendant Mark Canale. Canale's car had previously collided with one driven by Keith Chapman, apparently causing both vehicles to remain disabled in the middle of Rollins Road.

Plaintiff sustained personal injuries as a result of the accident. She filed a complaint against defendant, Canale and Chapman. Defendant moved for summary judgment on the ground that plaintiff was an owner-passenger of the vehicle and thus any negligence of the driver (i.e., defendant) should be imputed to plaintiff. The court granted the motion, finding that there was no just reason to delay enforcement or appeal of its order. (See 134 Ill.2d R. 304(a).) Plaintiff timely appealed.

On appeal, plaintiff contends that the court erred in imputing defendant's negligence to her. She further contends that, even if she is chargeable with negligence, the advent of comparative negligence in Illinois requires that defendant's motion be denied and the jury be given an opportunity to assess plaintiff's degree of comparative fault. (See Alvis v. Ribar (1981), 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886.) Defendant responds that the court properly applied the doctrine of imputed negligence.

Defendant argued in the trial court, as he does on appeal, that when the owner of a vehicle is a passenger in it, courts will impute the negligence of the driver to the owner-passenger in three situations: (1) if the owner and driver were engaged in a joint enterprise and the driver was negligent; (2) if the driver was acting as the agent of the owner, the owner had a right to control his actions, and the driver was negligent; and (3) if the owner negligently fails to control the actions of the driver. (Palmer v. Miller (1942), 380 Ill. 256, 260, 43 N.E.2d 973; Wassmann v. Ritchason (1978), 63 Ill.App.3d 770, 775, 20 Ill.Dec. 813, 380 N.E.2d 1022.) The rationale for this rule, as explained by Palmer, was that where "the owner of the car is riding in it, he has not only the right to possession of it but has such possession and he necessarily retains the power and the right of controlling the manner in which it is being driven unless it is shown that he has contracted away or abandoned that right. He likewise has the duty to control the driver." Palmer, 380 Ill. at 260, 43 N.E.2d 973.

Defendant contends that either he was plaintiff's agent or they were engaged in a joint enterprise. He cites to older cases in which the concepts of agency and joint enterprise were defined quite broadly. In fact, one court stated that "mere proof of [the] * * * ownership of an automobile driven by another defendant is prima facie proof of agency." (Ritter v. Taucher (1978), 65 Ill.App.3d 464, 467-68, 22 Ill.Dec. 23, 382 N.E.2d 343.) As a result, if the driver was merely running a "family errand," agency was established and the driver's negligence would be imputed to the owner-passenger. (Ritter, 65 Ill.App.3d at 468, 22 Ill.Dec. 23, 382 N.E.2d 343.) In Ritter, the plaintiff and her son were driving the son back to college. (Ritter, 65 Ill.App.3d at 466, 22 Ill.Dec. 23, 382 N.E.2d 343; see also Graham v. Page (1921), 300 Ill. 40, 132 N.E. 817 (16-year-old driver who picked up a pair of her shoes was agent of her father).) Defendant maintains that since the parties were returning from a church function which they both attended--clearly a family outing--that defendant was plaintiff's agent and his negligence must be imputed to her.

Plaintiff contends that the imputed negligence doctrine in this form is no longer the law in Illinois. She points out that the rule has been "heavily criticized" in recent opinions and that we should decline to apply it here.

The imputed negligence doctrine arose as a means of supplying financially responsible defendants for victims of automobile accidents. The theory was that, since cars are expensive, the owner of a car was more likely to have the financial resources to pay a judgment. (Watson v. Regional Transportation District (Colo.1988), 762 P.2d 133, 138, citing W. Keeton, Prosser & Keeton on Torts § 73, at 522 (5th ed. 1984).) Subsequently, in order to provide symmetry between cases involving defendants' and plaintiffs' negligence, courts came to apply the doctrine in cases where the owner-passenger sought recovery from a third party, or from the driver himself. Watson, 762 P.2d at 138-39.

Indeed, the theory of imputed negligence and the underlying justification of the owner's right to control have come under increasing criticism in the past 30 years and a number of State high courts have abandoned them altogether. In Kalechman v. Drew Auto Rental, Inc. (1973), 33 N.Y.2d 397, 353 N.Y.S.2d 414, 308 N.E.2d 886, for example, the New York Court of Appeals abolished imputed negligence as the law of New York. The court noted that the doctrine had its genesis in horse-and-buggy days, when the owner of a team could take the reins away from a driver whom he distrusted. " 'Actual control was a possibility, not a fiction.' " (Kalechman, 33 N.Y.2d at 402-03, 353 N.Y.S.2d at 418, 308 N.E.2d at 889, quoting Note, Imputed Negligence in Automobile Accident Cases, 16 St. John's L.Rev. 222, 222 (1942).) The court suggested that in the age of automobiles the assumption that the owner could actually assert control of the car has little basis in reality. (Kalechman, 33 N.Y.2d at 402-03, 353 N.Y.S.2d at 418, 308 N.E.2d at 889.) The supreme court of Minnesota previously reached the same conclusion in a traditional master-servant context, stating:

"We can think of nothing more dangerous in these days of congested travel on high-speed highways than to permit a master riding as a passenger in a car driven by his servant constantly to interfere with the servant's driving, or his attempt to exercise a theoretic right of control. To do so would be the clearest evidence of active negligence on the part of the master, for which he would be chargeable without imputing the negligence of his servant." (Weber v. Stokely-Van Camp, Inc. (1966), 274 Minn. 482, 491, 144 N.W.2d 540, 545.)

In a similar vein, the Louisiana Supreme Court noted:

"It is unrealistic to hold, in the present day uses of motor vehicles when heavy traffic is the rule and not the exception, that the occupant of a motor vehicle has factually any control * * * over the driving of the operator." (Gaspard v. LeMaire (1963), 245 La. 239, 253, 158 So.2d 149, 154.)

The Pennsylvania Supreme Court also commented on this absurdity:

"We have serious doubt that, in the ordinary situation, the mutual understanding of the owner-passenger and the driver is that the owner-passenger reserves a right to control over the physical details of driving or that the driver consents to submit himself to the control of a 'back-seat driver.' " Smalich v. Westfall (1970), 440 Pa. 409, 416, 269 A.2d 476, 482.

Other courts have noted the rule's logical infirmities, pointing out that it is inconsistent with the general policy of tort law that every person be responsible for his own conduct (Watson, 762 P.2d at 138-40) and, more specifically, with the rules of conduct governing nonowner-passengers (Cole v. Woods (Tenn.1977), 548 S.W.2d 640, 645).

For these same reasons, the Illinois Supreme Court has slowly backed away from the broad application of imputed negligence. Palmer v. Miller apparently was the first case to set forth the rule that negligence could only be imputed where a relationship such as master-servant or principal-agent existed. (Palmer, 380 Ill. at 259-60, 43 N.E.2d 973.) As noted previously, however, some cases defined the principal-agent relationship broadly. In Palmer, the owner-passenger drove the car to a dance, where he was injured. He enlisted a friend, Park, to drive him to the hospital. Plaintiff, a nurse, came along to assist. Park drove the car into a tree, injuring plaintiff. (Palmer, 380 Ill. at 257-58, 43 N.E.2d 973.) The Palmer court reversed a verdict for plaintiff, but the basis for doing so is not entirely clear. The court seemed to hold that since plaintiff was a minor, he was legally incapable of entering into a contract, so a principal-agent relationship could not exist. In later cases, the court explained that cases such as Palmer "turn on the failure of the [owner-passenger] to exercise or attempt to exercise his right of control over the operation of the car." (Guthrie v. Van Hyfte (1966), 36 Ill.2d 252, 258-59, 222 N.E.2d 492.) In Guthrie, the owner-passenger twice told the 17-year-old driver to slow down and let the owner drive, but the driver ignored him. Guthrie, 36 Ill.2d at...