dissenting:
I respectfully dissent. I would reverse the decision of the trial court and direct defendant to answer counts iy y and VI.
The majority recites the rule to be applied in this case but then ignores it. “ ‘A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover.’ ” 312 Ill. App. 3d at 523, quoting Vernon, 179 Ill. 2d at 344, 688 N.E.2d at 1175. It is certainly possible that plaintiff could prove the following facts in this case: (1) at the time of the accident William Seehausen was an unemancipated minor, living with his parents, on whom he was dependent for support; (2) the automobile William was driving was purchased for him with the assistance of his parents and was garaged at their home; (3) William’s parents knew of his poor driving habits and knew of his inclination to drive after consuming alcohol; and (4) notwithstanding these facts, William’s parents placed no restrictions on his driving. Recovery would be possible under these facts. Zedella v. Gibson, 165 Ill. 2d 181, 650 N.E.2d 1000 (1995).
In Zedella, the supreme court affirmed the dismissal of a negligententrustment action against the driver’s father, but stressed that the father neither gave nor sold the car to his son, the father never had possession of the vehicle, the son made his own insurance payments, the son was an emancipated 23-year-old adult, had a residence away from home at Southern Illinois University where the vehicle was located (the father lived in Wisconsin), and provided some means of support for himself. Zedella, 165 Ill. 2d at 189-92, 650 N.E.2d at 1004-06.
It is a mistake to enforce the rigors of common-law pleading in the 21st century. “Pleadings shall be liberally construed with a view to doing substantial justice between the parties.” 735 ILCS 5/2 — 603(c) (West 1998). “Today the function of informing an opponent of one’s position is largely accomplished through discovery, a function that was largely fulfilled by the pleadings at an earlier time.” 3 R. Michael, Illinois Practice § 23.1, at 300 (1989) (Civil Procedure Before Trial). Motions to dismiss are useful to weed out, at an early stage, cases where it is clearly apparent that no set of facts can be proved that will entitle a plaintiff to recovery. Wright v. City of Danville, 174 Ill. 2d 391, 398, 675 N.E.2d 110, 115 (1996). Meritless litigation should be brought to a conclusion as soon as possible, but where merit is dependent upon the facts, a motion for summary judgment and not a motion to dismiss is the procedure that must be employed. Yuretich v. Sole, 259 Ill. App. 3d 311, 314, 631 N.E.2d 767, 770 (1994). Especially where the facts are exclusively within the knowledge of the opponent, it may be error to deny discovery before ruling on a motion to dismiss. Yuretich, 259 Ill. App. 3d at 317, 631 N.E.2d at 772; Winfrey v. Chicago Park District, 274 Ill. App. 3d 939, 949, 654 N.E.2d 508, 516 (1995).
It is interesting to compare the approach taken in Zedella with the approach taken here. In Zedella, the parties took discovery, and defendant’s motion was filed under section 2 — 619, where the court considers pleadings, depositions, and affidavits. Zedella, 165 Ill. 2d at 185-86, 650 N.E.2d at 1002. The court was very familiar with the potential evidence in Zedella. In the present case, by contrast, no discovery was taken, and we are almost completely ignorant of the potential evidence. At oral argument, the attorneys were uncertain how old William was, although they believed him to be in high school. The attorneys believed title to the car was in William’s name and that he had a separate insurance policy with his parent’s insurer, but they did not know whether the parents had purchased the car and paid for the insurance. The attorneys did not know whether the parents had taken any steps to restrict William’s driving privileges.
The argument is made that no case in' Illinois has ever imposed liability in this situation. The reason for that supposed dearth of cases is that the standard automobile policy covers those driving the automobile with the express or implied permission of the insured and covers related individuals resident of the same household. See 625 ILCS 5/7 — 317(a), (b) (West 1998); 215 ILCS 5/143.13(a) (West 1998). It is usually unnecessary to plead negligent entrustment or agency or some other theory to reach the parent’s insurance policy; the child is insured under that policy in any case. It is only in unusual situations, e.g., where the child is not a resident of the household, that such pleadings are required. That was the situation in Zedella. In the present case, we are told that the car was titled in the name of the child and the child had a separate insurance policy. It would be interesting to know why that was done. Car dealers and insurance companies are usually reluctant to deal with minors, who have the right to disaffirm their contracts. Separate policies for parents and an unemancipated child raise the question whether those policies “stack,” particularly where the child’s negligence caused the accident and the parents committed a separate act of negligence in allowing the child to drive the car.
The fact that the car was titled in the child does not bar a cause of action for negligent entrustment. Zedella, 165 Ill. 2d at 188-92, 650 N.E.2d at 1004-05, citing Golembe v. Blumberg, 262 A.D. 759, 27 N.Y.S.2d 692 (1941) (father gave car to adult son); Vince v. Wilson, 151 Vt. 425, 561 A.2d 103 (1989) (grandaunt funded purchase of car for grandnephew); McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982) (co-owner father negligently entrusted vehicle to minor son).
The majority provides an extensive discussion of parental liability and section 316 of the Restatement. The cases the majority cites that refuse to impose parental liability are, however, very different from the present case. Pesek involved a child who committed rape. Barth involved a child who bought a stolen gun, committed a burglary, and shot a police officer. Duncan, where liability was imposed, involved a child who set off a bank alarm and, six days later, did the same thing again. The majority may be correct that parental liability should not be imposed in those situations. Farents clearly have a responsibility, however, to supervise their children as those children are beginning to drive motor vehicles. For that reason, most automobile insurance policies provide coverage for children without questioning the particular situation. The majority’s message, that parents do not need to concern themselves with their children’s driving habits, is a startling one, one that is contrary to logic and policy. It may be that the facts would disclose these parents did everything they could have to prevent this accident. The majority, however, is not interested in any facts.
Sometimes we see trial courts stretch to dismiss a case where it is unlikely that plaintiff will be able to recover. See Yuretich, 259 Ill. App. 3d at 314, 631 N.E.2d at 770. Sometimes it is tempting to dismiss a case at an early stage to prevent expenditure of attorney fees, congestion of the courts, and unnecessary stress of litigation. This is not a case where expenditures will be prevented. This case comes to us on a Rule 304(a) finding. If the majority’s decision stands, the parties will return to the trial court, where they will take discovery on the remaining counts. If that discovery turns up evidence that the parents were at fault, will the majority’s decision prevent parental responsibility counts from being refiled? In my view, it would not.