dissenting:
I respectfully dissent. The majority wants to make new Illinois law based on the California case of Mettelka v. Superior Court (1985), 173 Cal. App. 3d 1245, 219 Cal. Rptr. 697, a case that extends negligent entrustment to co-owners. It should be noted that Mettelka is based largely on a statute, section 17150 of the California Vehicle Code, setting out liability to “every owner of a motor vehicle *** for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle *** by any person using or operating the same with the permission, express or implied, of the owner.” (Cal. Vehicle Code §17150 (Deering 1984).) Illinois has no such statute.
In the instant case, the majority says: “absent the financial assistance from Robert, Daniel would have been unable to purchase the Dodge Shadow he was driving at the time of the accident.” (248 Ill. App. 3d at 781.) Thus, the majority reasons, Robert had total “control” over whether he would assist his son in obtaining possession of the vehicle. The majority concludes that Robert’s failure to “just say no” is sufficient to satisfy the control aspect of the negligent entrustment doctrine. This is a real stretch and a novel theory for a finding of control.
This is also an apparent attempt to enlarge the defendants’ pool by creating this new policy. As the court stated in Fugate v. Galvin (1980), 84 Ill. App. 3d 573, 406 N.E.2d 19:
“The fortuitous circumstance of one driver’s inability to pay for damages he has caused should not be a reason to open new arenas of liability in search of perfect compensation schemes. *** The policy of requiring individuals to take responsibility for their own acts militates against the creation of a new duty.” (Fugate, 84 Ill. App. 3d at 577, 406 N.E.2d at 22.)
Under the reasoning of the majority, where do we stop? Who else should have said no to the adult co-owner in the instant case: the bank, the dealer, the Secretary of State? Moreover, as a matter of public policy, how does one who co-signs or, as the majority says, fails to say “no” for an adult co-owner insure against this newly created liability?
The rule in Illinois regarding joint ownership is well established: each joint tenant is entitled to use and enjoy joint tenancy property as though he were sole owner thereof, subject to the right of his cotenant. (Clark v. Covington (1982), 107 Ill. App. 3d 845, 847, 438 N.E.2d 628, 629.) Under Illinois law, Robert did not have the right to prevent Daniel from the use of the car after co-ownership was established. With this opinion, the majority has not only changed joint tenancy law as it relates to the ownership rights of cotenants, but has also expanded the law of joint tenancy as it relates to the duties of the co-tenant over the tenancy property. For example, must a husband who jointly owns a vehicle with his wife now take the keys away from his wife after she has an accident for fear of liability for negligent entrustment if she has another accident?
In Tosh v. Scott (1984), 129 Ill. App. 3d 322, 472 N.E.2d 591, the reviewing court affirmed the dismissal of a negligent entrustment complaint brought against a father, for injuries resulting from an automobile accident involving the father’s adult son. The plaintiff alleged in her complaint that the father negligently sold the automobile to his son, knowing that he did not have a valid driver’s license, that he had a severe and extreme drinking problem, that he had been convicted on at least three prior occasions of driving under the influence of alcohol, and that there was a reasonable likelihood that the son would operate that vehicle while under the influence of intoxicating liquor. The court held that the cause of action could not be supported because an essential element of the negligent entrustment case is the defendant’s ownership or right to control the vehicle and this element was missing in that case. Under the reasoning of the majority in the instant case, the father in Tosh would have been liable because the father had the power to prevent the acquisition of the vehicle by refusing to sell it to his son who had prior convictions for reckless driving and DUI.
I would also find in the instant case that, because Daniel and Robert had equal rights to possession of the vehicle and Robert had no legal right to deprive Daniel of the vehicle’s use, the cause of action for negligent entrustment could not be supported because Robert had no right to control Daniel’s use of the vehicle. For the above reasons, I would affirm the October 25, 1991, order of the circuit court of Jackson County dismissing count II of plaintiffs’ first amended complaint.