No. 3--01--0217

IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

JUSTICE HOLDRIDGE delivered the Opinion of the Court:

Plaintiff, Brandy A. Eyrich, appeals from a judgment ofthe circuit court of Tazewell County granting defendant's,Grayboy Cycle Center, Inc. (Grayboy), motion for summary judgmenton plaintiff's negligent sale and entrustment claim. The trialcourt determined that no genuine issue of material fact existedand that Grayboy was entitled to judgment as a matter of law. Forthe following reasons, we affirm the judgment of the trial court.

This cause arose out of an accident which involved amotorcycle driven by Cory L. Waldemar colliding with anautomobile driven by Jana M. Ridings. Plaintiff, Brandy A.Eyrich, was a passenger on Waldemar's motorcycle. Theallegations of the complaint are that Waldemar was attempting topass a row of vehicles when Ridings made a left turn intoWaldemar's path, causing Waldemar to collide with Ridings'vehicle. Waldemar died as a result of injuries sustained in theaccident, and Eyrich sustained serious injuries.

Eyrich filed a multi-count complaint. The countpertinent to this appeal alleges that Grayboy, a retail seller ofmotorcycles, was negligent in the sale and entrustment of themotorcycle to Waldemar some 10 days prior to the accident. Specifically, Eryich claimed that Grayboy knew or should haveknown that Waldemar did not have a valid license to operate amotorcycle at the time he purchased the motorcycle from Grayboy,and that Waldemar, due to inadequate training, education andexperience, was not competent to safely operate a motorcycle onpublic highways. Eryich further alleged that it was foreseeableon the part of Grayboy that the sale of the motorcycle toWaldemar posed a risk of injury to others, including Eryich.

Grayboy moved for summary judgment, maintaining that nogenuine issue of material fact existed as to whether it knew orshould have known at the time it sold the motorcycle to Waldemarthat he was not competent to operate the motorcycle or that thesale posed a risk of injury to others. Attached to the motionwere several discovery deposition transcripts, which establishedthe following uncontested facts:(1) Waldemar was 20 years old atthe time he purchased the motorcycle from Grayboy; (2) Waldemarhad a valid Illinois driver's license, however he did not have aclassification (class M) to operate a motorcycle; (3) Waldemarowned an automobile, which was insured through a policy issued tohim by American Family Insurance; (4) Waldemar was employed; (5)Walemar negotiated the purchase of the motorcycle from Grayboyand obtained a loan for the funds necessary to make the purchase;(6) Waldemar's mother accompanied him to pick up the motorcyclefrom Grayboy and did not express concern about her son'soperation of the motorcycle; (7) Waldemar had prior experienceoperating both motorcycles and automobiles; and (8) Waldemar hadone prior ticket for speeding and had never been involved in avehicular accident.

In addition to the above uncontested facts, Alfred A.Gray, sales manager and co-owner of Grayboy, testified atdeposition that the state of Illinois does not require a personto have a license to operate a motorcycle in order to purchase amotorcycle; nor does the State require motorcycle dealers toverify that a purchaser is licensed to operate a motorcycle.

Eyrich maintained that Waldemar's age, driving record(1 ticket for speeding), and lack of a class M driver's licensewere sufficient to establish a genuine issue of material fact asto whether Grayboy knew or should have known that Waldemar was not competent to safely operate a motorcycle on public highways,and that the sale of the motorcycle to Waldemar posed a risk ofinjury to others. The trial court granted summary judgment toGrayboy. Eyrich appealed.

Appeals from a trial court's grant of a motion forsummary judgment are reviewed de novo. In re Estate of Lind, 248Ill. App. 3d 339 (2000). Summary judgment is appropriate where"the pleadings and depositions on file, together with theaffidavits, if any, demonstrate there is no genuine issue as toany material fact and that the moving party is entitled tojudgment as a matter of law." Verkruysse v. Neese, 252 Ill. App.3d 831 (1993). For the purpose of summary judgment, "[a]n issueof fact is not material, even if disputed, unless it has legalprobative force as to the controlling issue." First of AmericaBanku, Rockford v. Netch, 166 Ill. 2d 165, 171 (1995).

An action for negligent entrustment consists of"entrusting a dangerous article to another whom the lender knows,or should know, is likely to use it in a manner involving anunreasonable risk of harm to others." Zedella v. Gibson, 165Ill.2d 181 (1995). An automobile is not a dangerous article perse but may become one if it is operated by a person who isunskilled in its use. See Union Bank v. Kalkhurst, 265 Ill. App.254, 259 (1932). Thus, a person may be liable for negligentlyentrusting an automobile to one whom the person knows or shouldknow is incompetent, inexperienced, or reckless. See Kosrow v.Acker, 188 Ill. App. 3d 778, 783 (1989).

Eyrich maintains that a genuine issue of material factexists as to whether Grayboy knew or should have known thatWaldmar was incompetent, inexperienced or reckless. Eyrichrelies heavily upon Small v. St. Francis Hospital, 220 Ill. App.3d 537 (1991), where the court held that an allegedly negligentsale of an automobile can sustain a cause of action for negligententrustment. In Small, the defendant car dealership sold anautomobile to an unlicensed 15-year-old minor. In holding thatthe plaintiff could proceed with a negligent entrustment actionagainst the seller, the court in Small noted that:

"[w]e emphasize that our holding does notrequire that a seller of a car, whethercommercial or private, must ask for adriver's license or investigate drivingproficiency in every case; however, when acar seller has reason to know that aprospective buyer is underage, unlicensed orotherwise incompetent, a cause of action fornegligent entrustment exists." Small, 220Ill. App. 3d at 542.

In Small, the fact that the person to whom the seller soldthe car was a minor without a driver's license was sufficient tostate a cause of action for negligent entrustment. In theinstant matter, however, Waldemar, at the time he purchased themotorcycle, was 20 years old (i.e., not a minor), held a validdriver's license, was gainfully employed, owned an automobilewhich was properly insured, and had previously owned and operateda motorcycle. The evidence indicated that Waldemar had onespeeding ticket and that Grayboy may have been aware of thatfact. In sum, Waldemar presented himself to Grayboy as acompetent adult and a responsible driver. The record is void ofany fact which placed Grayboy on notice that Waldemar wasreckless, incompetent or inexperienced. We reiterate theadmonition in Small that a seller of a vehicle is under noobligation to investigate the driving abilities of a customer.

Eyrich argues that the fact that Waldemar did not havean M classification on his driver's license should be sufficientto suggest that Grayboy knew or should have known that Waldemarwas incompetent, inexperienced or reckless in the operation of amotorcycle. We disagree. Failure of a motorcyclist to have avalid operator's license is not evidence of negligence. Frenchv. City of Springfield, 65 Ill. 3d 74, 80-81 (1976) ("licensingstatutes do not set forth specific standards of care and the factthat a driver has not submitted to the State for testing of hisdriving skills is not evidence that he was driving negligentlywhen involved in an accident"). If failure to have an Mclassification on his driver's license could not stand asevidence of Waldemar's negligence, it could not stand as evidencethat Grayboy knew or should have known that he would operate themotorcycle in a negligent manner.

Eyrich also asserts that Waldemar had "a poor drivingrecord" which should have alerted Grayboy that he would operatethe motorcycle in a negligent manner. The record does notsupport that contention. The only evidence in the recordconcerning Waldemar's prior driving record comes from his motherwho testified that her son had previously received one speedingticket and one ticket for having tinted windows. It cannot bereasonably concluded that a 20-year-old adult, with one priorspeeding ticket, posed a risk of harm to others.

Reviewing the record de novo, we find no evidence thatwould create a genuine issue of material fact concerning whetherGrayboy knew or should have known that Waldemar would operate themotorcycle in a negligent manner. Nothing in the record couldsupport an inference that Grayboy was on notice that Waldemarwould operate the motorcycle in a dangerous manner. Therefore,we find that the trial court was correct in granting Grayboy'smotion for summary judgment.

For the foregoing reasons, we affirm the judgment ofthe circuit court of Tazewell County granting defendant's motionfor summary judgment.

Affirmed.

SLATER, J., concurs.

LYTTON, P.J., dissents.

PRESIDING JUSTICE LYTTON dissenting:

I respectfully dissent. The majority asserts that there areno genuine issues of material fact. There are.

The majority acknowledges that a cause of action fornegligent entrustment exists when the seller of a vehicle "hasreason to know that a prospective buyer is underage, unlicensedor otherwise incompetent." (Emphasis added) Small, 220 Ill. App.3d at 542. However, having correctly stated the three possiblebases for a negligent entrustment claim, the majority speculatesthat one of them is not a factor after all, and proceeds toexcise it from the law. The majority permanently removesentrustment of a vehicle to an unlicensed driver from thoseaffected by this cause of action.

The majority holds that since a buyer's lack of a validlicense is not evidence of negligence in an accident, it cannever be evidence of negligent entrustment. We are dealing inapples and oranges here.

The plaintiff must prove Waldemar's actual negligence inoperating the motorcycle. Once negligence is shown, however, thecausal connection between Grayboy's negligent entrustment and theplaintiff's injuries is established. See Seward v. Griffin, 116Ill. App. 3d 749, 755 (1983). A mere showing that Waldemar wasunlicensed does not make him negligent (See, e.g., French v. Cityof Springfield, 65 Ill. 2d 74 (1976)), but a dealer's independentnegligence in entrusting the vehicle to a generally incompetentdriver is very different than the driver's negligence in anyparticular accident. If the plaintiff can establish Waldemar'snegligence through other evidence, Grayboy's knowledge thatWaldemar was unlicensed becomes relevant to the question ofGrayboy's negligence.

In reaching the opposite conclusion, the majority overlooksthis court's holding in Seward, where we stated, "[E]ntrusting acar to an unlicensed driver is tantamount to entrusting a car toan incompetent driver ***." Seward, 116 Ill. App. 3d at 754. InSeward, a driver was negligent in causing an accident. We heldthat a car dealer was independently negligent in entrusting avehicle to that driver when the dealer had actual knowledge thatthe driver was unlicensed. Seward, 116 Ill. App. 3d at 755. There is no reason for this court to overrule Seward.

The essential issues before the court on summary judgmentwere whether Waldemar was unlicensed and inexperienced when hebought his motorcycle, and, if so, did Grayboy have reason toknow it?

Conflicting facts presented at the motion for summaryjudgment show the need for a trial. While Waldemar held a validlicense to drive an automobile, there was evidence that he didnot hold a license to operate a motorcycle. There was alsoevidence that Grayboy regularly inquired into prospective buyers'licensing status and riding experience. Further, there wasdeposition testimony that Waldemar had operated small, off-roadmotorcycles before he purchased a street motorcycle from Grayboy,but that he had never operated any motorcycles on the road. Finally, there was evidence that the motorcycle purchased byWaldemar was an especially powerful sports model capable ofattaining a top speed of 160 to 180 miles per hour within tenseconds of a standing start. A fact finder could easily inferthat Grayboy sold a powerful motorcycle to Waldemar knowing thathe was unlicensed, inexperienced and thus incompetent to operatesuch a vehicle on the open road.

Because the majority failed to apply the law stated inSeward to this case, and because there was evidence that Grayboyknew that Waldemar was incompetent to operate the motorcycle hepurchased, genuine issues of material fact exist. I wouldreverse and remand.