Kramer v. Szczepaniak

2018 IL App (1st) 171411

123 N.E.3d 431

428 Ill.Dec. 702

Sean KRAMER and Nancy Coronel, Plenary Guardian of the Estate and Person of Jasmine Vega, a Disabled Person, Plaintiffs-Appellants,

v.John SZCZEPANIAK, a/k/a John Szcpenqniak; Farid Kessanti; Salah Bachir; Cab Investment Group, Inc. ; and Uber Technologies, Defendants

(Farid Kessanti; Salah Bachir; Cab Investment Group, Inc. ; and Uber Technologies, Defendants-Appellees).

No. 1-17-1411

Appellate Court of Illinois, First District, THIRD DIVISION.

December 19, 2018

Kevin J. Golden, of Dudley & Lake, LLC, of Chicago, and Lynn D. Dowd and Jennifer L. Barron, of Naperville, for appellants.

Kimberly A. Jansen, Peter A. Walsh, and Albert C. Angelo, of Hinshaw & Culbertson LLP, of Chicago, for appellee Farid Kessanti.

Melissa A. Murphy-Petros and Loren S. Cohen, of Wilson Elser Moskowitz Edelman & Dicker LLP, of Chicago, for appellee Uber Technologies.

No brief filed for other appellees.

JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 After a late night at the movies, Jasmine Vega and Sean Kramer requested a ride home using the popular ride-sharing app Uber. Defendant Farid Kessanti responded to the request, and with that, Vega and Kramer began their journey home. According to the complaint, Kessanti proved to be a less than able driver: He did not know how to get to Vega's and Kramer's intended destination, took several wrong turns, and got lost. When Kramer pointed this out to Kessanti and offered to help with directions, Kessanti became irate and kicked Vega and Kramer out of his car—at around two in the morning.

¶ 2 Unable to find another ride and thus left to walk the rest of the way home, Vega and Kramer departed and, in due course, arrived at the intersection of 43rd Street and Kedzie Street. While crossing Kedzie in a crosswalk, Vega and Kramer were hit by a driver—defendant John Szczepaniak—who was speeding and failing to keep a proper lookout, resulting in significant injuries to Kramer and Vega.

¶ 3 Kramer and Nancy Coronel, in her capacity as Vega's guardian, filed this negligence action against Szczepaniak, Kessanti, Uber, Cab Investment Group, Inc., and Salah Bachir, the person who lent Kessanti the car he was driving. In response, all defendants but Szczepaniak moved to dismiss, claiming that plaintiffs failed to state a claim because they did not—and could not—allege facts that, if proved, would establish that the car accident causing Vega's and Kramer's injuries were reasonably foreseeable. The circuit court agreed and dismissed those portions of the complaint with prejudice.

¶ 4 We reverse. Proximate cause is typically a question of fact. It is here, as well, at least at this preliminary stage. Taking the allegations as true and drawing all reasonable inferences in plaintiffs' favor, reasonable minds could differ as to whether the car accident was a foreseeable result of Kessanti ejecting Vega and Kramer from his vehicle in the middle of the night, abandoning them in a dimly-lit, high-traffic area where cars were driving recklessly and patrons were leaving a number of bars and taverns. We cannot say, as a matter of law, that the negligence of Kessanti (and thus Uber) bore no causal relationship to Kramer and Vega's injuries. The complaint should not have been dismissed.

¶ 5 BACKGROUND

¶ 6 The following facts are taken from plaintiffs' seventh amended complaint, the operative pleading in this case. On the night of October 4, 2014, Vega and Kramer went to a movie theater located at 322 East Illinois Street in Chicago. After the movie was over, at approximately 1:30 a.m. on the morning of October 5, 2014, Vega used the Uber application on her smart phone to request a ride for her and Kramer to their home at 4138 South Albany Street in Chicago. At approximately 2 a.m., Kessanti accepted Vega's ride-request.

¶ 7 Suffice it to say, the ride did not go smoothly. Kessanti "did not drive the proper route to 4138 South Albany." Instead, he made multiple wrong turns and got lost. When Kramer pointed this out to Kessanti and attempted to give him directions, Kessanti became angry, stopped the car, and kicked Vega and Kramer out, even though they had not yet arrived at their destination. Vega and Kramer acceded to Kessanti's demand and left his car in an area near 44^th Street and Homan Avenue, an area the complaint alleges to be a "high-crime area."

¶ 8 Vega and Kramer began walking home. Their path eventually led them to the intersection of 43rd Street and Kedzie Street. While crossing Kedzie Street, Vega and Kramer were struck by a vehicle traveling southbound on Kedzie driven by defendant John Szczepaniak. Szczepaniak's vehicle was speeding, and he failed to yield to pedestrians in the crosswalk. Szczepaniak did not stop after hitting Vega and Kramer. He was apprehended the following day and is currently incarcerated. Kramer was injured, and Vega was severely injured by the hit-and-run.

¶ 9 On October 15, 2014, plaintiffs sued Szczepaniak for negligence. On March 5, 2015, they filed their first amended complaint, adding Uber as a defendant. Second and third amended complaints followed. With respect to Uber and Kessanti, the circuit court dismissed plaintiffs' first, second, and third amended complaints, reasoning that Kramer had not alleged facts that could establish how Kessanti's wrongful ejection was the proximate cause of Vega's and Kramer's injuries. The dismissal of the third amended complaint was with prejudice. However, after extensive procedural wrangling that we need not detail here, the circuit court reconsidered its order of dismissal and permitted plaintiffs to further amend, ultimately resulting in the filing of a seventh amended complaint against Uber and Kessanti (among others).

¶ 10 In Count 5 of his seventh amended complaint, Kramer alleged that Uber "knew or reasonably should have known that it was not safe to wrongfully eject" Vega and Kramer in the area of 44th Street and Homan Avenue because, among other things, (1) they were unfamiliar with the area, (2) it was "dark, poorly illuminated and *** certain street lights were not operating[,]" (3) there was no "visible police or other law enforcement presence[,]" (4) the area "presented an increased risk of injury *** from other traffic, from other third parties, from the roadway or sidewalks that may have been in a state of disrepair, and from not having immediate, alternative transportation available to exit the locale[,]" (5) there was a "high volume of traffic and limited traffic control devices[,]" (6) "third parties departing various drinking establishments and in a various states of insobriety, aggression or other unsafe state of mind were present[,]" (7) "motor vehicles were speeding and driving dangerously," creating "an increased risk of personal injury to pedestrians;" and (8) the area "presented an increased risk of being a victim of a crime or other accident inflicted by a third party or another motor vehicle."

¶ 11 Kramer alleged that Uber breached its duty of care to Vega and Kramer by, among other things, (1) kicking Vega and Kramer out of his car before reaching their destination after he voluntarily agreed to transport them home, (2) allowing Kessanti to utilize the Uber app to transport customers despite knowing that Kessanti was mentally and physically unfit and had "a history of confrontation, wrongful discharges, and arguments with other [Uber] customers," (3) failing to "do the appropriate background check on Kessanti before allowing him to transport customers in the City of Chicago[,]" and (4) failing to train Kessanti to ensure that he "would never drop a passenger off at a destination other than the destination directed by the customer[.]" With respect to causation, Kramer alleged, "[i]t was reasonably foreseeable that one or more of the foregoing acts or omissions would cause, in whole or in part," the injuries to plaintiffs.

¶ 12 Counts 6 and 7 were largely duplicative of Count 5. Count 6, which incorporated Count 5 by reference, purported to state a claim for negligence based on an alleged violation of section 9112.010 of the Chicago Municipal Code. Section 9-112.010 regulates taxicab services and specifically requires that taxicab drivers obtain a chauffeur's license to operate a cab in the City of Chicago. Kramer alleged that Kessanti never obtained a chauffeur's license, and that Uber's act of permitting Kessanti to drive for Uber despite not having a chauffeur's license was a proximate cause of their injuries.

¶ 13 In a similar vein, Count 7 alleged that (1) Uber voluntarily undertook to drive Vega and Kramer home, (2) Uber breached that undertaking, and (3) Vega and Kramer's injuries were proximately caused by Uber's breach of its voluntary undertaking. Likewise, Counts 2 and 3, which were against Kessanti for negligence based upon a voluntary undertaking and common law negligence, were functionally indistinguishable from Counts 5 and 7. Count 4, which was against Bachir, alleged that Bachir negligently entrusted his vehicle to Kessanti when, among other things, he knew that Kessanti was unfit, in general and specifically for Uber, and that Vega and Kramer were injured as a proximate result of Bachir's negligence.

¶ 14 On April 17, 2017, Uber moved to dismiss Counts 5 through 7 of Kramer's seventh amended complaint. The same day, Bachir and Cab Investment Group, Inc. moved to dismiss Count 4. A week later, Kessanti followed suit and moved to dismiss Counts 2 and 3. Each motion sought relief pursuant to section 2-615 of the Code of Civil Procedure. See 735 ILCS 5/2-615 (West 2016). In its motion, Uber urged that Vega's and Kramer's injuries were not proximately caused by Kessanti's alleged negligence—that Kessanti's conduct, at most, "furnished a condition making possible the injury caused by the independent illegal acts" of the negligent driver, Szczepaniak.

¶ 15 In his motion, Kessanti raised the same argument. He reasoned that "the fact that the...