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SECOND DIVISION

September 18, 2001

No. 1--00--3766

JUSTICE BURKE delivered the opinion of the court:

Plaintiff Fonzy Watson, special administrator of the Estate ofLatonia Fleming, deceased, and unborn Baby Fleming, appeals from anorder of the circuit court granting defendant Enterprise LeasingCompany's motion to dismiss plaintiff's complaint pursuant tosection 2--619 of the Code of Civil Procedure (725 ILCS 5/2--619(West 1998)).⁽¹⁾ On appeal, plaintiff contends that the trial courterred in granting defendant summary judgment because there wasample evidence creating a material question of fact on the issue ofproximate cause; specifically, on the question of foreseeabilitythat the automobile in which decedent Latonia Fleming was apassenger would be operated by someone other than the individualwho rented it from defendant. Plaintiff also contends that thetrial court erred in denying her request to file a second amendedcomplaint. For the reasons set forth below, we affirm.

On June 26, 1998, Milton Pillow, on behalf of Dawn Monroe,⁽²⁾rented a car from defendant,⁽³⁾ through its agent Erika Brown, whoknew Dawn's brother Dan Monroe. On July 3, the rental car wastaken from Dawn, either with or without permission,⁽⁴⁾ by herbrother-in-law Arenzo Borden. Later that evening, the car wastaken from Borden, with or without permission,⁽⁵⁾ by Henry Merchant,a 17-year-old. While driving the car under the influence ofalcohol and marijuana and with Latonia Fleming as a passenger,Merchant crossed two lanes of traffic on the expressway and slammedinto a wall, killing Fleming.

On July 29, 1998, plaintiff filed a complaint againstEnterprise, Merchant, and Borden, alleging negligent entrustmentagainst Enterprise and negligence against Merchant and Borden,contending that Enterprise rented the car to Borden who allowedMerchant to operate it. On October 6, defendant filed a motion todismiss, contending that it did not negligently entrust the vehicleto Merchant, but rather had only entrusted the car to Pillow. OnOctober 15, the trial court entered an order, pursuant toplaintiff's motion, voluntarily dismissing Borden as a defendantand granting plaintiff leave to file an amended complaint. On thesame day, plaintiff filed an amended complaint against Enterpriseand Merchant, alleging negligent entrustment against Enterprise, inthat it leased the vehicle to Pillow, and that Merchant wasnegligent.

On October 6, 1999, plaintiff filed her response todefendant's motion to dismiss. On November 20, defendant filed itsreply, on December 29, plaintiff filed her surresponse, and onJanuary 4, 2000, defendant filed its surreply.

Various deposition testimony was offered in support of and inopposition to defendant's motion. Erika Brown testified that shewas the branch manager for defendant's car leasing office locatedin Worth, Illinois. She knew Dan Monroe because they had workedtogether. Brown had been trained not to lease a car to anyoneunder the age of 21, but defendant would rent to an individual whopossessed a traffic ticket only if the ticket was valid, i.e., thecourt date had not yet expired, the individual possessed a pictureidentification, and the ticket was not for driving under theinfluence.

Brown further testified that Dan called her in March 1993,stating that his sister Dawn would be calling to rent a car. According to Brown, this call was made so that Dawn could receivethe 33% family discount. Brown also stated that she never met Dawnuntil June 26, 1998, when Dawn walked into the office. Brownfurther stated that Dawn had not called prior to this time toreserve a car.

On June 26, Dawn came into the Worth office with MiltonPillow. According to Brown, it was her understanding that Dawn wasto rent a car. However, when she asked Dawn for her license, Dawnhanded her a traffic ticket and state identification card. Becausethe ticket was old and Dawn was under 21, Brown advised Dawn thatshe could not rent a car to her. Dawn then asked Pillow to rentthe car, which he agreed to do. Brown filled out the contract andincluded Dan's name as an additional driver. She also wrote inDan's driver's license number, which she retrieved from a computer. Brown stated that she included Dan as an authorized driver becauseDawn said she needed the car to help him move. Brown gave Pillowan employee discount. Both Dawn and Pillow gave her money, afterwhich she went out to the car to write down the mileage and gaslevel. Brown then gave the keys to the car to Pillow, who drovethe car off the lot. Dawn drove the car in which the two hadarrived in at the Worth office. Brown denied knowing that Dawn wasgoing to subsequently drive the leased car and stated that Dawnadvised her that Dan would be driving it. Brown specificallystated that she told both Pillow and Dawn that Dawn was not todrive the car.

Subsequently, Brown received a telephone call from Pillowextending the rental period until July 3. A couple of days afterJuly 3, Brown received a call from a state trooper during which heinformed her that the leased car had been in an accident. On July6, Dan called her, stating that he knew nothing about the rentalagreement. Because of this, Brown crossed Dan's name off thecontract and took his name out of the computer. When she learnedthe car had been in an accident, Brown computed the additionalcharges for the car at the regular price, without the familydiscount. On July 7, Brown spoke with Dawn, who stated that sheborrowed the car from Pillow and that her brother-in-law, who wasriding with her, had taken the car from her and left her at astore.

Dawn Monroe testified that Pillow was a friend of hermother's. Dawn possessed an Illinois driver's license, but hadreceived a traffic ticket, which she never "followed up on." Atthe time of her deposition, she did not know the status of herdriver's license. She further stated that Borden was her brother-in-law and she did not know Merchant or Fleming.

Dawn also testified that she first met Brown on June 26, buthad spoken with her on the telephone prior to that time. Shefurther stated that Dan had told her to call Brown. When Dawnfirst spoke to Brown at the end of April, she told Brown she wantedto rent four cars because a group of individuals wanted to go toAtlanta to see "Freaknic." Dawn did not rent a car at that timebecause the group flew to Atlanta. Dawn also stated that, inApril, she advised Brown of her age, i.e., that she was 20. Dawnnext spoke with Brown approximately one week prior to renting thecar in June. Dawn told Brown that she needed to rent a car forapproximately one week. Dawn stated that she did not tell Brownthat she needed the car to help her brother move and that, at thistime, she reminded Brown that she did not have a driver's licenseand she only had a traffic ticket.

Dawn further testified that on June 26, Pillow drove her tothe rental office. Upon arriving there, Dawn again reminded Brownthat she did not have a driver's license. Brown stated that thatwas "okay." After proceeding to the rental counter, Brown toldDawn that she could not rent the car to her, so Dawn asked Pillowto rent the car. Pillow agreed and the paperwork was filled out. Brown advised the two that Dawn could not drive the car off thelot, that Pillow had to do so. Dawn paid Brown $140, after getting$20 from Pillow. According to Dawn, there was never any discussionof whether Dan was to be listed as an additional driver and shedenied that Brown stated that she could not drive the car; Brownonly stated that Dawn could not drive the car off the lot. Dawnalso stated that she specifically told Brown that she would bedriving the car and also told her that, if she needed the car fora longer period of time, she would call Brown and let her know.

Dawn further stated that after she and Pillow left the rentallot, they proceeded to a cash station where she retrieved the moneyshe owed Pillow. Dawn then drove the rental car and Pillow drovehis own car. Subsequently, Dawn had Pillow call and extend therental period. She had Pillow call because she was on her "wayout" and did not have time to call.

Dawn also stated that on Friday, July 3, she and Borden wentto a store and, while she was in the store, Borden took the carfrom her and drove off, leaving her stranded. Dawn denied givingBorden permission to drive the car. Dawn did not report the carstolen because she believed Borden would return with it soon.

On cross-examination, Dawn testified that Brown advised hershe could not rent the car to her because another person was in theoffice at the time.

Milton Pillow testified that it was his understanding, when hetook Dawn to the car rental office, that she would sign for thecar. However, when they began the process, Brown advised Dawn shecould not rent to her because she had a ticket. Pillow denied thatBrown stated it was because Dawn was under 21 years old. Pillowdid not recall Dan ever being mentioned when he signed thecontract, and he believed that Dawn would be the primary driver. Pillow signed the contract only as a favor. Pillow denied Brownever stated that Dawn could not drive the car, although she didindicate that Pillow had to drive the car off the lot. When Pillowsaw "Dan's" name on the contract, he assumed it meant Dawn.

Arenzo Borden testified that he never possessed a validdriver's license. He knew both Dawn and Merchant. On July 3,Borden drove Dawn to a store, at her request, in the rental car. En route, he picked up a friend. Because the friend was drunk,Borden intended to take him home. While driving to the friend'shouse, Dawn saw another friend driving by. According to Borden,Dawn jumped out of the car, got into the friend's car, and leftwith him. Rather than taking his friend home, Borden decided tostop by his brother's house. After speaking to his brother, Bordenbegan talking to Merchant and Fleming, who invited him intoMerchant's apartment. There were others already present in theapartment, drinking. Borden remained at the apartment with thegroup, drinking and smoking marijuana. Approximately two and one-half hours later, "Pumpkin" came down and asked Borden to drive herto a restaurant and then to her boyfriend's home. The group talkedfor approximately one-half hour and then Borden, "Heath," Merchant,and Pumpkin left. After stopping at a sub shop, Borden droppedPumpkin off and then went to a liquor store. Merchant and Bordenwent into the store, while Heath remained in the car because he wastoo drunk to walk. En route back to Merchant's apartment, Bordendropped Heath off. Borden and Merchant returned to the apartment,where the other ladies had remained, and the group resumed drinkingand smoking marijuana.

At some point in the late evening, Borden used the restroom. Before doing so, he removed his key chain from his neck, whichcontained the key to the rental car, and put it in his hat. Hethen placed the hat on top of a speaker or radio. When he came outof the bathroom, Merchant and Fleming were gone. The group toldhim they had gone to a restaurant. At this time, Borden noticedthat his hat was on the floor and his keys were gone. Borden wasmad and upset when he learned Merchant had taken the car because itwas not his and Dawn did not know these people so she would nothave given Merchant permission to drive the car.

On cross-examination, Borden stated that when the group firstwent out that day, he had allowed Merchant to drive the car througha park.

Katrice Merchant, Merchant's cousin, was among the group ofpeople at the apartment on July 3. She stated that Fleming washungry and asked Borden to take her to a restaurant. At this time,Merchant stated that he would drive her. While Borden was givingMerchant the keys, Katrice attempted to grab them, stating shewould drive Fleming because Merchant and Borden were too drunk todrive. Merchant took the keys in any event. Katrice denied thatMerchant stole the keys and reiterated that Borden put the keys inMerchant's hand.

Henry Merchant testified that Borden had given him the keys tothe car so that he and Fleming could go to a restaurant. Accordingto Merchant, he asked Borden 15 times to take them, but Bordenrefused. Katrice then volunteered to take them, but she wasrefused. Merchant admitted that he was intoxicated, but statedthat he was capable of walking, seeing, and driving a car. Merchant also admitted that prior to this time, the group had beendrinking and smoking marijuana. Merchant and Fleming went to arestaurant, got food, went to a store to buy liquor and cigars, andthen intended to go to his house and "chill" for awhile. The lastthing he remembered was getting on the expressway ramp--he blankedout as they entered it. Thereafter he remembered waking up in thehospital. Merchant did not know that the car was a rental andstated that Borden told him it was his. Merchant never had adriver's license and learned to drive by stealing cars as ajuvenile. Merchant denied that he took the keys.

On February 18, the trial court dismissed plaintiff's amendedcomplaint with prejudice. At the hearing, the court stated that,even assuming plaintiff alleged that defendant entrusted thevehicle to Dawn, which it did not believe plaintiff had done, andthat Dawn was incompetent, it was not Dawn's incompetence that wasa proximate cause of the accident since Merchant was driving underthe influence which was the proximate cause of the accident.

On February 24, defendant filed a motion for a Rule 304(a)finding and, on February 28, plaintiff filed a motion for"rehearing" and a motion for leave to file a second amendedcomplaint. On May 25, the trial court denied plaintiff's motionfor rehearing and her motion for leave to amend her complaint. Atthis hearing, plaintiff indicated that, at the hearing on February18, the court indicated that it had a doubt whether plaintiff'scomplaint alleged a connection between Enterprise and Dawn and shecontended that the amended complaint remedied that concern. Thecourt then indicated that the question was whether the secondamended complaint cured the defect. The court concluded that thesecond amended complaint did not cure the defect, finding that thecomplaint alleged negligent entrustment to Dawn but that this hadno effect on the court's prior dismissal of plaintiff's firstamended complaint because the court found that even if plaintiffalleged negligent entrustment to Dawn, Dawn's incompetency was notthe proximate cause of the accident--Merchant's intoxication was. On October 19, an agreed order was entered, granting defendant'smotion to add Rule 304(a) language to the court's February 18order. This appeal followed.

A motion for summary judgment is properly granted when thepleadings, depositions, admissions, and affidavits on fileestablish that no genuine issue as to any material fact exists and,therefore, the moving party is entitled to judgment as a matter oflaw. 735 ILCS 5/2--1005(c) (West 1998); Cramer v. InsuranceExchange Agency, 174 Ill. 2d 513, 530, 675 N.E.2d 897 (1996). Wereview the trial court's granting of such a motion de novo. McNamee v. State of Illinois, 173 Ill. 2d 433, 438, 672 N.E.2d 1159(1996).

Section 390 of Restatement (Second) of Torts provides:

"One who supplies directly or through a thirdperson a chattel for the use of another whomthe supplier knows or has reason to know to belikely because of his youth, inexperience, orotherwise, to use it in a manner involvingunreasonable risk of physical harm to himselfand others whom the supplier should expect toshare in or be endangered by its use, issubject to liability for physical harmresulting to them." Restatement (Second) ofTorts