D'Amico v. D'Amico

Filing 31

ORDER granting 22 Motion for Summary Judgment. The Clerk is directed to enter judgment accordingly. Signed by Judge David R. Herndon on 3/29/18. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

VICKY D’AMICO, as Special
Administration of the Estate
of Alexis M. D'Amico, deceased,
Plaintiff,
v.
DANTE D’AMICO,

No. 16-cv-910-DRH-SCW

Defendant.

MEMORANDUM AND ORDER

HERNDON, District Judge:
I.

INTRODUCTION

Now before the Court is a motion for summary judgment brought by
defendant Dante D'Amico (Doc. 22). Defendant seeks summary judgment in his
favor as to plaintiff Vicky D’Amico’s, as Special Administrator of the Estate of
Alexis D’Amico, deceased, two-count complaint alleging negligent entrustment and
negligence under the Illinois Wrongful Death Act, 740 Ill. Comp. Stat. Ann. 180/1
et seq. (Doc. 1-2). Plaintiff opposes the motion (Doc. 29). For the following
reasons, defendant’s motion is GRANTED.
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II.

BACKGROUND

On the evening of August 29, 2014, at approximately 7:33 p.m., Alexis
D'Amico, daughter of both the plaintiff and defendant, was involved in an
automobile accident near the intersection of Michael Road and Michael Drive in
Highland, Illinois. As a result of the accident, Alexis sustained fatal injuries.
Vicky and Dante were married in 1997 and divorced in 2010. Alexis lived
with Vicky until February 2013 when she moved in with Dante. From February
2013, until her death on August 29, 2014, Alexis lived with Dante and did not
spend a single night at Vicky’s home. (Doc. 23-1). Alexis obtained her driver’s
license two months before the accident, in June 2014. At the time of the accident,
she was driving a 1987 Chevrolet Corvette owned by the defendant (Doc. 29-1, pg.
10).
On August 12, 2016, defendant removed this case from the Circuit Court of
Madison County, Illinois asserting diversity jurisdiction under 28 U.S.C. § 1332
(Doc. 1). 1 Plaintiff’s complaint alleges in Count I that defendant negligently
entrusted his Corvette to Alexis and that his negligent entrustment proximately
caused Alexis’ death. (Doc. 1-2). Specifically, plaintiff alleges in Count I that
defendant had a duty to refrain from entrusting his Corvette to Alexis when he
knew or should have known that she lacked the experience, competence and
skills to operate the Corvette. Id. In Count II, plaintiff alleges that defendant was
negligent in allegedly failing to properly maintain the Corvette when he knew or

1

At the time this case was filed, plaintiff Vicky D’Amico, was a citizen of North Carolina, and
defendant Dante D’Amico was a citizen of Missouri (Doc. 1).

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should have known of the unsafe conditions of the vehicle, including the brakes,
steering mechanism, tires, wheels and other mechanical problems. Id. Plaintiff
seeks recovery under the Wrongful Death Act (740 ILCS 180.1 et seq.) for
pecuniary loss, including loss of companionship, society, love and affection
arising out of Alexis’ death. On July 24, 2017, defendant filed the underlying
motion seeking summary judgment on both counts of plaintiff’s complaint (Doc.
22), to which plaintiff responded (Doc. 29). The Court will address each count in
turn.
III.

LEGAL STANDARD

Summary judgment is proper when the pleadings, discovery, and
disclosures establish that there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. Winsley v. Cook Cnty., 563 F.3d
598, 602–03 (7th Cir. 2009); Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986). All reasonable inferences are drawn in favor of the
nonmovant and all factual disputes are resolved in favor of the nonmovant. Scott

v. Harris, 550 U.S. 372 (2007); Fischer v. Avanade, Inc., 519 F.3d 393, 401 (7th
Cir. 2008). The movant bears the burden of establishing the absence of fact issues
and entitlement to judgment as a matter of law. Santaella v. Metro. Life Ins. Co.,
123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex, 477 U.S. at 323). In response,
the non-moving party may not rest on bare pleadings alone, but instead must
highlight specific material facts to show the existence of a genuine issue to be
resolved at trial. Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000).
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A genuine dispute as to a material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of

Attica, Indiana, 259 F.3d 619, 625 (7th Cir. 2001). The Court will enter summary
judgment against a party who does not “come forward with evidence that would
reasonably permit the finder of fact to find in [its] favor on a material question.”

McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995).
IV.

LAW AND APPLICATION 2

Based on the automobile accident that occurred on August 29, 2014,
plaintiff brings the present two-count complaint alleging a negligent entrustment
claim in Count I and a negligence claim in Count II, both pursuant to the Illinois
Wrongful Death Act, 740 ILCS 180/1. The purpose of the Illinois Wrongful Death
Act is to compensate the parents and siblings of the deceased family member for
pecuniary losses resulting from that family member's death. Elliott v. Willis, 92
Ill.2d 530, 65 Ill.Dec. 852, 442 N.E.2d 163, 168 (1982).
a. Negligent Entrustment
Plaintiff claims that defendant is liable for negligently entrusting his
Corvette to their daughter, Alexis. In Illinois, 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 an unreasonable risk of

The parties agree that Illinois law applies. See Auto–Owners Ins. Co. v. Websolv
Computing, Inc., 580 F.3d 543, 547 (7th Cir.2009) (“When a federal court hears a case in
diversity, it applies the choice-of-law rules of the forum state to determine which state's
substantive law applies.”); Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915 (7th
Cir.2006) (Illinois courts apply the most significant relationship test to choice of law
disputes).
2

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harm to others.” Zedella v. Gibson, 165 Ill.2d 181, 185, 650 N.E.2d 1000, 1002
(Ill.1995). The negligent act of giving an automobile to an incompetent driver
forms the basis of the tort. Pelczynski v. J.W. Peters & Sons, Inc., 178 Ill.App.3d
882, 886 (1989). “[A] person may be liable for the negligent entrustment of a
vehicle ‘where that person entrusts the vehicle to one whose incompetency,
inexperience, or recklessness is known or should have been known by the
entrustor of the vehicle.’ ” Watson v. Enter. Leasing Co., 325 Ill.App.3d 914, 921,
258 Ill.Dec. 915, 757 N.E.2d 604 (2001).
In the context of motor vehicles, Illinois courts focus on two primary
considerations in a negligent entrustment analysis: (1) whether the owner of the
vehicle entrusted his car to an incompetent or unfit driver, and (2) whether the
incompetency of that other person proximately caused plaintiff's injury. Evans v.

Shannon, 201 Ill. 2d 424, 434, 776 N.E.2d 1184, 1190 (2002); see also McGath
v. Price, 342 Ill.App.3d 19, 27–28, 276 Ill.Dec. 42, 793 N.E.2d 801 (2003). The
case law provides, when considering a negligent entrustment claim, the driver's
driving record is highly relevant. See Lockett v. Bi-State Transit Authority, 94 Ill.
2d 66, 74 (1983). For this reason, a plaintiff must provide proof that the
entrusting defendant knew or should have known that the entrusted driver was
“incompetent, inexperienced or reckless.” Lulay v. Parvin, 359 Ill. App. 3d 653,
658 (2005).
In this case, defendant’s ownership of the 1987 Corvette, driven by Alexis
on the date of the accident, is undisputed. It is also undisputed that Alexis was a

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licensed driver when her father entrusted the Corvette to her, and that she was
speeding at the time of the accident. According to the plaintiff, Alexis had obtained
her driver’s license two months before the accident in June 2014. Defendant
asserts that the undisputed facts establish that Alexis possessed the competence,
experience and skill necessary to drive the Corvette, and in fact, Alexis’ own
contributory negligence accounted for more than 50% of the total proximate cause
of the accident. In light of Alexis’ contributory negligence, defendant argues that
plaintiff’s negligent entrustment claims “are “self-defeating and cannot exist and
cannot exist as a matter of law”.
In contrast, plaintiff contends that there is a genuine issue of material fact
concerning whether the defendant negligently entrusted a car to Alexis because of
Alexis’ alleged impulsivity, proclivity for speeding, and lack of maturity. In
addition, plaintiff asserts there is a question of fact as to whether defendant
should have been aware of Alexis’ lack of competence or recklessness. The Court
disagrees.
Upon review of the record, the Court finds that plaintiff has not come
forward with evidence to support her claim for negligent entrustment. There is
simply no evidence adduced by, or produced by, the plaintiff that supports the
theory that Alexis was inexperienced, incompetent or reckless, let alone attaches
notice of such to the defendant. The undisputed facts show that Alexis obtained
her learner’s permit, passed her driver’s education course, received driver
training from both the plaintiff and defendant in their Explorer, Corvette and

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Civic, and met the requirements necessary for obtaining an Illinois driver’s license
without issue (Doc. 30-1. pg. 61; 64). Defendant notes that Alexis completed 50
hours of behind-the-wheel driver training and continued to drive with him after
she got her license. (Id. at 61; 69). This included Alexis driving the Corvette 2-3
times each week without issue. (Id. at 83-84).
Plaintiff’s response to the defendants' motion for summary judgment is
completely devoid of specific facts showing that Alexis was an incompetent or
reckless driver, and that defendant knew or should have known of such. Plaintiff
admits that she never had problems with Alexis’s driving while riding with her,
before or after she obtained her license. Also, she was not aware of any problems
with Alexis’ driving when she was with the defendant. (Doc. 30, pg. 102; 108).
Further, plaintiff admits that had she felt Alexis was not competent enough to
obtain her driver’s license, then she would have objected and not have taken her
to the DMV. (Id. at 104).

Plaintiff does not present any evidence of tickets,

accidents or any other evidence establishing a record of reckless or incompetent
actions by the decedent prior to her fatal accident.
Plaintiff relies on her theory of the case that it is negligent to entrust "a
hotrod car" to a 16-year-old, because a teenager will push the limits of the vehicle
and the standard concepts of safe driving (Doc. 30, pg. 118). This includes
alleging that teenagers drive differently depending on whether or not a parent is in
the car with them. However, this argument is simply based on speculation, and
plaintiff offers no evidence to support such a claim. For example, despite plaintiff

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alluding to speeding, Alexis was never cited for speeding, nor did the plaintiff ever
observe an issue with Alexis speeding while she was in the vehicle with her. (Id. at
113). Plaintiff does not contend that defendant had knowledge of any episodes of
speeding.

Furthermore, nobody came forward after the accident to inform

plaintiff that they observed Alexis speeding (Doc. 30, pg. 118). Plaintiff concludes
the reason that she never heard about Alexis speeding is because “the only people
that would have seen that would have been kids, and I don’t think they are going
to tell me.” (Id. at 118-119). The Court infers from plaintiff’s assertion that the
same applies to Alexis’s other parent, the defendant.
Specific “facts” require more than just speculation or conclusory
statements. See Heft v. Moore, 351 F.3d 278, 283 (7th Cir.2003) (stating that
“summary judgment is proper when the plaintiff's case consists of factually
unsupported claims ...,” that the plaintiff cannot merely rest on the pleadings, and
that the plaintiff must show specific facts that are not merely speculation of
conclusory statements). Although there was an entrustment of the Corvette from
defendant to Alexis, there is simply no evidence in the record exhibiting
incompetence or unfitness on the part of Alexis that was, or should have been,
known by defendant prior entrusting the Corvette to his daughter. See, e.g.

McGath v. Price, 342 Ill. App. 3d 19, 793 N.E. 2d 801, 803 (1st Dist. 2003);
Jones v. Beker, 260 Ill. App. 3d 481, 487, 632 N.E. 2d 273 (1994). Finally, given
the Court’s disposition above, the Court finds that it unnecessary to address the

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issue of contributory negligence, as plaintiff’s theory of the case is based on
speculation, and there is no evidence to support plaintiff's cause of action.
Construing the evidence and all reasonable inferences in plaintiffs' favor,
the Court finds that the evidence presented on the motion for summary judgment
does not create a genuine issue of fact on plaintiff’s negligent entrustment claim.
Accordingly, the Court GRANTS summary judgment on Count I.

b. Negligence
In Count II, plaintiff claims that defendant was negligent in failing to
properly maintain the Corvette when he knew or should have known of unsafe
conditions, including but not limited to unsafe brakes, tires, wheels, steering
mechanism, or other mechanical problems. (Doc. 1-2, pg. 7). Defendant moves for
summary judgment on Count II arguing that plaintiff has failed to set forth any
evidence to establish that the Corvette was improperly maintained, that the
Corvette had any unsafe conditions at the time of the accident, or that defendant
knew or should have known of any aforementioned alleged unsafe conditions
(Doc. 23). In her response, plaintiff concedes this assertion (Doc. 29).
Therefore, given that no genuine issue of material fact exists with respect to
plaintiff’s negligence claim for failure to properly maintain the Corvette, the Court
GRANTS summary judgment on Count II.
V.

CONCLUSION

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For the reasons stated above, the Court GRANTS defendants’ motion for
summary judgment (Doc. 22). The Clerk is directed to enter judgment
accordingly.
IT IS SO ORDERED.

Judge Herndon
2018.03.29 12:12:55
-05'00'
United States District Judge

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