dissenting:
Plaintiff’s cause of action was premised exclusively on the provisions of chapter 12 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 100 et seq.). Specifically, plaintiff sought to establish a prima facie case of negligence by showing (1) that the tractor and trailer involved in the collision were operated on the highway without displaying the slow-moving-vehicle emblem required by section 12— 709 of the Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 709) and (2) that those vehicles had been driven or moved on the highway during the period from a half hour after sunset until a half hour before sunrise (Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 201(b)) without exhibiting either the taillights or amber signal lamp required by Code sections 12-205 and 12-205.1 (Ill. Rev. Stat. 1989, ch. 95^2, pars. 12-205, 12-205.1).
There is no dispute that defendant was not directly involved in the events which culminated in the collision. He was not the driver of the tractor and trailer. He was not a passenger. He was nowhere near the scene. His sole connection with the incident was that the tractor and trailer belonged to him. Plaintiff argued that he should nevertheless be held liable because he “knowingly permitted” those vehicles to be driven or moved on the highway with the foregoing safety deficiencies. (Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 101(a).) The circuit court correctly found this argument to be devoid of evidentiary support.
Prior to the accident, defendant was certainly aware that his tractor and trailer did not have the specified equipment. The mere absence of that equipment, however, does not violate the law. The unambiguous language of the statutes makes clear that the equipment is required only when a vehicle is operated on a highway, and lights are necessary only at night. Accordingly, if a tractor and trailer are simply moved over land from one field to another, the statutes invoked by plaintiff are completely inapplicable. Likewise, if they are operated during the period from one-half hour before sunrise to one-half hour after sunset, the law does not require that they display lights.
Because applicability of the statutory prohibitions turns on the circumstances under which a vehicle is operated, defendant could not possibly be held liable unless he was aware that the tractor and trailer here were going to be used at a time and in a place which would result in a violation of the law. There was no evidence that defendant had such knowledge. The testimony recited by the majority shows at most that defendant had become aware that his equipment had been used improperly sometime before the end of the night on which the collision occurred or by the following morning. That testimony does not show that defendant had knowledge that the equipment would be used in a prohibited fashion, or even that it would be used at all, prior to when the accident actually took place.
During the argument on the directed verdict motion, counsel for plaintiff actually conceded that there was no evidence that defendant knew that the tractor “was moved from his house to his daughter’s house until after it was done.” The most plaintiff’s counsel could make of the evidence was that once defendant became aware that the vehicle had been moved, he should reasonably have inferred that it would have to be returned and that he should have called his daughter prior to its return to warn her not to bring it back on the highway after dark. The problem with this argument, as the circuit court recognized, was that there was no evidence that the accident occurred when the tractor and trailer were being returned.
The majority looks past all of this and contends that the evidence as to when defendant first had knowledge of the prohibited use of the vehicles was, at least, ambiguous. Given this perceived ambiguity, the majority contends that the jury could have inferred that defendant knew in advance that the vehicles might be operated in violation of the law just as easily as it could have inferred that he had no such advance knowledge. The majority contends that the existence of two such equally possible inferences precludes the entry of a directed verdict. I disagree. What the majority fails to appreciate is that there was no factual basis in the record for selecting one of these possibilities over the other. The jury could have chosen between them only through surmise or conjecture. This is fatal to plaintiffs cause, for it is fundamental that in a negligence action the jury must base its decision on evidence, not guess or speculation. Morton v. F.B.D. Enterprises (1986), 141 Ill. App. 3d 553, 560, 490 N.E.2d 995, 999.
Even if there had been evidence to support plaintiff’s claim of prior knowledge, a directed verdict was nevertheless proper. Plaintiff’s theory was that defendant “knowingly permitted” the use of the vehicles in an improper way in that he failed to warn his daughter that the tractor and trailer should not be operated on the highway without a slow-moving-vehicle emblem and that they should not be operated on a highway after dark at all since they did not have the necessary lights. In other words, plaintiff’s negligence theory was essentially that defendant had breached a duty to warn. Plaintiff, however, has not cited, and we have not found, any authority under which the “knowingly permit” language of the statute can be interpreted to embrace an affirmative obligation to warn.
In any case, the existence of such a duty still could not aid plaintiff here. Indeed, her claim would fail even under the standards set forth in section 405 of the Restatement (Second) of Torts (1965), which follows the standards set forth in section 388 of the Restatement (Second) of Torts (1965), dealing with suppliers of “chattel known to be dangerous for intended use.” Under those provisions, one who gives or lends a chattel for another to use, knowing or having reason to know that it is or is likely to be dangerous for the use for which it is given or lent, must exercise reasonable care to inform those for whose use the chattel is supplied of its dangerous condition or the facts which make it likely to be dangerous if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved. (Restatement (Second) of Torts §388, Comment on Clause (b), at 306 (1965).) This requirement was not met here. The tractor and trailer were borrowed from defendant by a relative who was, herself, a farmer. Based on the record before us, I see nothing which would have given defendant any reason to believe that she would not fully appreciate the dangers involved in operating those vehicles under the circumstances which led to the collision. The majority cites nothing which would support a contrary finding.
For the foregoing reasons, I believe that the directed verdict entered by the circuit court was entirely proper. I therefore dissent.