FOURTH DIVISION 

 February 8, 2007

1-05-2950

CAROLYN PHILLIPS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Cook County.

)

v. )

)

BUDGET RENT-A-CAR SYSTEMS, INC., )

AND RANGER SECURITY, INC., ) Honorable

) Michael J. Hogan,

Defendants-Appellees. ) Judge Presiding.

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Plaintiff Carolyn Phillips appeals from the judgment of the

circuit court of Cook County granting summary judgment for

defendants Budget Rent-A-Car Systems, Inc. (Budget), and Ranger

Security (Ranger). In addition, she appeals the circuit court's

denial of her motion for reconsideration of summary judgment in

favor of Budget. For the following reasons, we affirm.

BACKGROUND

This case arises from an automobile accident that occurred

on July 2, 1997. The accident resulted from a high-speed police

chase during which an unidentified driver of a stolen Budget

rental vehicle collided with plaintiff's vehicle as the driver
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fled from police. Plaintiff suffered multiple injuries as a

result of the vehicular collision. 

The procedural history of this case shows that plaintiff

filed an initial suit on August 15, 1997, and filed an amended

complaint on August 24, 1998. Thereafter, on May 19, 2000, the

circuit court granted plaintiff's motion to voluntarily dismiss

the initial action and dismissed plaintiff's case without

prejudice. 

On May 18, 2001, plaintiff filed the current action. In her

complaint, plaintiff alleged two counts of negligence against

Budget and one count of negligence against Ranger. Specifically,

plaintiff alleged that Budget breached its duty to maintain

control over its vehicle so as to prevent harm to persons

lawfully on public streets, and that Budget and Ranger breached

their duties to prevent unauthorized personnel access to that

vehicle so as to prevent harm to members of the general public. 

Budget filed its answer on July 26, 2001, and Ranger filed its

answer on September 7, 2001. 

Following discovery, Budget filed a motion for summary

judgment on August 19, 2004. With permission of the court,

plaintiff conducted further discovery and on December 21, 2004,

filed a response to Budget's motion. Therein, she stated that

special circumstances, specifically that Budget had gone to great
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lengths to prevent vehicular thefts by hiring a security company

and installing "tiger teeth," existed to make the accident

foreseeable.

During discovery, Budget disclosed that to facilitate the

movement of its vehicles, it kept the keys of its vehicles in the

vehicles' ignitions. Budget also employed "hikers" to transport

rental vehicles between facilities to maintain proper inventory. 

Hikers moved 200 to 250 vehicles per day among Budget facilities. 

When demand for vehicles at locations was great, Budget would

have other employees such as service agents, mechanics, and bus

drivers act as hikers. 

In order to transport a vehicle from the O'Hare facility to

another facility, a hiker needed to show a nonrevenue transport

ticket (NRT) to Ranger security before exiting the facility. The

on-duty manager or other distribution personnel provided the

hiker with blank NRTs and would instruct him to select a

particular class of vehicle to transport. The hiker would then

record the vehicle's identification information on the NRT,

including the vehicle identification number, license plate

number, vehicle's owning city, and the sending and destination

cities. The hiker would also record his identification number

and the vehicle's milage before signing the NRT. 

Pursuant to the security guard agreement, the primary
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responsibility of Ranger was "to [ensure] that no vehicles are

taken from the facility without the proper authorizations." The

agreement procedures specifically provided that a Ranger guard

could permit a service agent or customer service representative

to remove a vehicle not on a rental contract from the Budget

facility only if the driver presented an NRT signed by a Budget

manager. The security guard was then to cross-reference the

signature with a list of names that Budget was to provide the

guards and to make sure the correct date was on the NRT. The

guard kept a copy of the NRT. The parties agree, however, that

Budget never provided Ranger personnel with a list of names of

Budget managers who could authorize an NRT. 

That said, the agreed facts in this case show that about

5:37 a.m. on June 24, 1997, an unidentified driver of a Budget

1997 Ford Explorer presented an NRT signed by James Dawson, a

courtesy bus driver and service agent stationed at the Budget

O'Hare facility, and initialed by Les Holiday, a lead hiker, to a

Ranger guard. Although the NRT had the correct sending and

receiving locations listed, it had erroneous vehicle milage,

where it listed 13,467 miles while Budget computer data showed

7,490 miles, an improper date, where it was marked June 24, 1996,

instead of June 24, 1997, and the wrong identification number

for Dawson. Despite those errors, the Ranger guard permitted the
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unidentified driver to exit the facility with the vehicle. 

Subsequently, around June 30, 1997, Budget's Midway Airport

facility manager Rica Hernandez received an inactive report

alerting her that the Midway facility never received the 1997

Ford Explorer. After investigating the matter, Hernandez

prepared a "Missing Vehicle Report" and faxed it to Daniel

Martin, Budget's security manager, on June 30, 1997. Martin, who

had been on vacation, reviewed the fax on July 1, 1997. 

Martin further investigated the matter. When he questioned

Dawson as to his alleged signature on the NRT used to remove the

missing Ford Explorer, Dawson denied that the signature was his. 

Dawson's supervisor Bryant Small confirmed that the signature on

the NRT was not Dawson's. Subsequently, Martin reported the

vehicle stolen to the Chicago police department. Budget also

notified LoJack, which electronically monitored Budget vehicle

movements through its vehicle tracking system.

 On July 2, 1997, LoJack located the stolen Ford Explorer at

6750 South Normal Boulevard in Chicago, which was approximately

26 miles from the Budget O'Hare facility. Police found the

vehicle, and after observing an unidentified individual enter it,

they attempted to stop him. A high-speed police chase ensued

during which the stolen Ford Explorer hit plaintiff, who was

walking across the intersection at 69th Street and Halsted
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Street. The driver of the stolen vehicle fled on foot and was

never arrested or identified. Plaintiff suffered a fractured

pelvis, a broken left arm and leg, and several head injuries.

Based on the pleadings and this record, the circuit court

granted Budget's motion for summary judgment on January 21, 2005. 

The circuit court also denied plaintiff's motion for reconsideration on August 16, 2005.

On February 17, 2005, Ranger also filed a motion for summary

judgment. Plaintiff filed a response on August 3, 2005, and on

August 16, 2005, the circuit court also granted Ranger's motion. 

Plaintiff appeals from those orders granting summary

judgment. 

ANALYSIS 

The purpose of summary judgment is to determine whether a

genuine issue of material fact exists. Adams v. Northern

Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment

is appropriate where the pleadings, affidavits, depositions,

admissions, and exhibits on file, when viewed in the light most

favorable to the nonmovant, reveal that there is no genuine issue

of material fact and that the nonmovant is entitled to judgment

as a matter of law. Adams, 211 Ill. 2d at 43, citing 735 ILCS

5/2-1005(c) (West 2004). In determining whether a genuine issue

of material fact exists, all evidence before the court
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considering summary judgment should be construed in the light

most favorable to the nonmoving party. Adams, 211 Ill. 2d at 43. 

Since summary judgment is a drastic remedy, it should only be

granted when the right of the movant is clear and free from

doubt. Adams, 211 Ill. 2d at 43. A review of a circuit court's

grant of summary judgment is de novo. Adams, 211 Ill. 2d at 43. 

In the case at bar, plaintiff alleged claims of negligence

against both defendants. To prevail, plaintiff had to show that

each defendant owed her a duty of care, that defendants breached

their duties of care, and that plaintiff incurred injuries

proximately caused by those breaches. Adams, 211 Ill. 2d at 43. 

The primary issue here is whether defendants, Budget and Ranger

Security, owed plaintiff a duty of care. Since the question of

whether a duty of care exists is a question of law (Adams, 211

Ill. 2d at 43), it constituted a proper issue for summary

judgment. 

In this court, plaintiff challenges the circuit court's

order granting summary judgment for defendants by asserting that

Budget owed a duty to prevent the accident in this case where it

left the keys in the ignition of the unattended vehicle. 

Plaintiff further asserts that Ranger breached its duty to

prevent the accident where it failed to take the necessary

precautions to prevent the stolen vehicle from leaving Budget's
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facility. 

We first address the issue of whether Budget owed plaintiff

a duty of care. In doing so, we recognize that plaintiff's

claims against Budget are premised on the "key in the ignition"

theory due to Budget's ownership of the stolen Ford Explorer. 

Illinois courts have recognized two classes of cases involving

the duty of a vehicle owner to lock his vehicle and to remove the

keys from the ignition after parking the vehicle. 

The first class of cases involves a defendant's statutory

violation. In Ney v. Yellow Cab Co., 2 Ill. 2d 74 (1954), the

defendant's servant, a taxicab driver, left his taxicab

unattended on the street with the keys in the ignition. He

thereby violated a statute which provided in pertinent part that

a driver was prohibited from leaving his vehicle unattended

without first turning off the engine, locking the ignition, and

removing the key. A thief thereafter stole the taxicab and,

while in flight, collided with the plaintiff's vehicle. Our

supreme court noted that the defendant's violation of the statute

constituted prima facie evidence of negligence. Ney, 2 Ill. 2d

at 78-79. The court further found that an intervening act, even

one that was criminal in nature, did not relieve the defendant of

liability from the consequences resulting from the taxicab

driver's negligence. Ney, 2 Ill. 2d at 83-84. 
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Similarly, the automobile dealer defendant in Kacena v.

George W. Bowers Co., 63 Ill. App. 2d 27 (1965), violated the

same statute as in Ney where it had a practice of leaving its

vehicles parked on a public street with the keys in the

ignitions. Subsequently, thieves stole one of the defendant's

vehicles, and the stolen vehicle was involved in an accident with

the plaintiff a day later. The plaintiff filed suit against the

dealer, and the circuit court entered judgment for the plaintiff.

On appeal, this court, like the supreme court in Ney, stated

that a statutory violation was prima facie evidence of

negligence. Kacena, 63 Ill. App. 2d at 33. Further, despite the

remoteness in time and distance of the accident from the

defendant dealer, this court found that a question of fact

existed as to probable cause, and thus affirmed the circuit

court's ruling denying the defendant's motions for a directed

verdict and judgment notwithstanding the verdict. Kacena, 63

Ill. App. 2d at 39.

In both Ney and Kacena, the defendants' vehicles were stolen

while parked on public property in violation of a state statute. 

In analyzing the liability of the defendants, the courts

determined that the statutory violations were prima facie

evidence of negligence, and thus confined their discussion to the

existence of proximate cause. As noted in Ruyle v. Reynolds, 43
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Ill. App. 3d 905, 907 (1976), the rule in Ney, and consequently

Kacena, and the statute therein have been limited to cases

involving public streets. 

The second class of cases involves a claim of common law

negligence where the defendant leaves his keys in the ignition of

his vehicle on private property rather than public property, thus

negating the application of the statute at play in Ney and

Kacena. In this second class of cases, Illinois courts have held

that no duty exists to a third party injured by the defendant's

stolen vehicle absent special circumstances that made the theft

foreseeable. Hallmark Insurance Co. v. Chicago Transit

Authority, 179 Ill. App. 3d 260 (1989); Hensler v. Renn, 166 Ill.

App. 3d 819 (1988); Ruyle v. Reynolds, 43 Ill. App. 3d 905

(1976). 

In Reynolds, the defendant's agent left his vehicle unlocked

and unattended with the keys in the ignition in a parking lot. 

The vehicle was subsequently stolen and involved in an accident

with the plaintiff's vehicle. Although the circuit court

dismissed the plaintiff's complaint, the reviewing court reversed

that dismissal where it determined that the plaintiff's complaint

stated a sufficient claim. The appellate court found that

plaintiff stated a valid claim based on the defendant's violation

of a city ordinance prohibiting a person from leaving a vehicle
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unattended with keys in the ignition in a "public place"

(Reynolds, 43 Ill. App. 3d at 907-09), as well as a valid claim

under the common law theory of negligence (Reynolds, 43 Ill. App.

3d at 909). In discussing the common law claim, the court noted

that given the neighborhood in which the defendant's agent left

the vehicle unattended, it was foreseeable that a theft would

occur. Reynolds, 43 Ill. App. 3d at 909. As such, the reviewing

court held that the plaintiff sufficiently alleged special

circumstances which made the theft foreseeable and that the issue

of proximate cause was for a jury to decide. Reynolds, 43 Ill.

App. 3d at 909. Thus, it reversed the lower court's motion to

dismiss. Reynolds, 43 Ill. App. 3d at 909.

In Hallmark Insurance Co., 179 Ill. App. 3d 260, a thief

stole a Chicago Transit Authority (CTA) bus that was located in

the defendant CTA's bus barn. The thief subsequently drove the

bus into a building owned by the plaintiffs, who alleged that the

defendant left the bus unattended without first turning off the

engine and removing the keys from the ignition. After the

plaintiff filed suit, the defendant filed for summary judgment

without filing any pleading or answering the plaintiff's

complaint. This court reversed the circuit court's order

granting summary judgment for the defendant where it determined

that special circumstances existed to raise a genuine issue of
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material fact as to the defendant's duty. Hallmark Insurance

Co., 179 Ill. App. 3d at 267. In finding that special

circumstances existed, this court determined that plaintiff's

uncontested claim that defendant knew of prior thefts stated a

sufficient claim. In addition, this court considered the

document that the plaintiff attached to its motion for

reconsideration, which detailed 27 bus thefts from CTA

facilities, including three in three months from the facility in

that case. 

In the case at bar, Budget's rental vehicles were parked in

a private lot. Consequently, this case falls within the second

class of Illinois cases involving keys left in the ignition of

unattended vehicles. Plaintiff, however, merely alleged that

Budget was negligent for failing to restrict access to its 

vehicles and in its administration of its NRT process without

alleging any special circumstances, i.e., previous vehicular

thefts at the O'Hare Budget facility. Although plaintiff

referenced special circumstances in her response to Budget's

motion for summary judgment and asserted therein that Budget took

security precautions, she made none of the special circumstance

arguments in the circuit court that she proffers in her briefs

before this court. As such, those arguments are waived. Daniels

v. Anderson, 162 Ill. 2d 47, 56-58 (1994). 
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Nonetheless, even if we considered plaintiff's allegations

of special circumstances, we find that she failed to establish

that Budget owed her a duty to prevent the theft of its vehicle

and the ensuing police chase which ultimately led to a collision

in which plaintiff sustained multiples injuries. Unlike Ruyle

and Hallmark Insurance Company, upon which plaintiff relies, she

failed to sufficiently state facts establishing special

circumstances that made the theft foreseeable. Conversely, we

find Renn, 166 Ill. App. 3d 819, apposite to the case at bar. 

In Renn, 166 Ill. App. 3d 819, the defendant left his

vehicle unattended with the keys in the ignition in a store

parking lot. A thief then stole the vehicle and collided with

the plaintiff's vehicle as he drove away. The reviewing court

affirmed the circuit court's order granting the defendant's

motion for summary judgment where it determined that the

plaintiff failed to establish the existence of special

circumstances to sustain a common law negligence claim against

the defendant where plaintiff merely claimed that the defendant

left the vehicle unattended in a high-crime area. Renn, 166 Ill.

App. 3d at 824. In doing so, the court stated that it was

unwilling to extend the ruling in Reynolds to find a duty on the

defendant's behalf absent additional allegations showing that a

theft was likely to occur where the public place in which
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defendant parked his vehicle was a heavy traffic area. Renn, 166

Ill. App. 3d at 824.

Here, plaintiff argues before this court that special

circumstances existed in the case at bar that made the theft of

Budget's vehicle foreseeable by asserting that Budget employees

spend 200 days a year in court litigating criminal activity

involving their vehicles, that Martin testified in his deposition

that five previous police chases had occurred following the theft

of Budget vehicles, and that three of those chases resulted in

accidents. That said, plaintiff fails to assert whether those

past thefts occurred at the Budget O'Hare facility and within

what time frame. Further, plaintiff cites only one other

instance in which a forged NRT was used to steal a vehicle from a

Budget facility. As such, as in Renn, we find that plaintiff

fails to establish special circumstances that made the theft in

this case reasonably foreseeable, and thus she fails to establish

that Budget owed her a duty of care. 

Moreover, foreseeability is only one factor for a court to

consider when it seeks to determine whether a duty of care

exists. Duty also depends on the likelihood of injury, the

magnitude of the burden on a defendant to prevent an injury, and

the consequences of placing such a burden on a defendant. Adams,

211 Ill. 2d at 44; Rowe v. State Bank of Lombard, 125 Ill. 2d
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203, 227-28 (1988). The cases cited above involving keys left in

the ignitions of vehicles, whether on public or private property,

focused on foreseeability and bypassed important public policy

questions.

Here, an unknown individual was able to forge an NRT and

remove a vehicle from Budget's lot, which the record reveals has

only happened on one other occasion. Although Budget was

arguably negligent in the administration of its security measures

to protect against vehicular thefts, we do not find that those

errors created a duty of care to plaintiff with regard to an

accident involving Budget's stolen vehicle. To conclude

otherwise would place a significant burden on Budget and would

expose all rental car companies to third-party criminal liability

involving their vehicles. We do not find such a broad duty of

care to the general public to be a prudent or reasonable holding. 

As such, we find that summary judgment was appropriate for

Budget. 

Having reached that conclusion, we next address the issue of

whether Ranger owed plaintiff a duty of care. Plaintiff contends

that by entering into a contract with Budget, Ranger "undertook

to perform a duty that Budget owed to the public in this area to

protect against the streets being filled with thieves operating

its stolen rental cars." The basis of plaintiff's argument is
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section 324A of the Restatement (Second) of Torts, which

provides:

"One who undertakes, gratuitously or 

for consideration, to render services to 

another which he should recognize as 

necessary for the protection of a third 

person or his things, is subject to 

liability to the third person for physical 

harm resulting from his failure to exercise 

reasonable care to protect his undertaking, 

if 

(a) his failure to exercise reasonable

care increases the risk of such harm, or

(b) he has undertaken to perform a duty

owed by the other to the third person, or

(c) the harm is suffered because of

reliance of the other or the third person

upon the undertaking." Restatement (Second)

of Torts §324A (1965).

Plaintiff argues that by entering into the contract with Budget,

Ranger assumed a duty to protect her pursuant to section 324A

where the high speed chase and accident would have been

foreseeable as a result of the theft. For support, plaintiff
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relies upon Pippin v. Chicago Housing Authority, 78 Ill. 2d 204

(1979). 

In Pippin, a mother brought an action against the Chicago

Housing Authority (CHA) and Interstate Service Corporation

(Interstate) for the wrongful death of her son, who was allegedly

stabbed by a tenant during an argument within the common area of

the CHA's building. The record showed that the CHA entered into

a contract with Interstate to provide for the protection of CHA's

property and "persons thereon." Our supreme court held that

given the contract, Interstate owed Pippin a duty of care

pursuant to section 324A(c). Pippin, 78 Ill. 2d at 210-12. The

supreme court thus affirmed this court's ruling reversing the

circuit court's grant of summary judgment for defendants. 

Pippin, 78 Ill. 2d at 212.

Unlike Pippin, however, the contract between Budget and

Ranger did not appear to provide for the protection of third

parties. Rather, as previously stated, the contract merely

provided that Ranger was to ensure that "no vehicles are taken

from the facility without proper authorizations." This language

arguably only pertained to Budget's property, not the protection

of unforeseen third parties, and thus did not create a duty of

care to plaintiff. See Bourgonje v. Machev, 362 Ill. App. 3d

984, 1003 (2005) ("In those cases where the agreements specified
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that the guards were intended to protect the tenants, liability

attached; but, where it was specified that the guards' function

was only to protect property, no liability attached"). 

Nonetheless, even if we accepted plaintiff's argument that

the contractual language could create a duty to an innocent third

party, we find that plaintiff's reliance on Pippin seeks to

expand the concept of foreseeability beyond that found in Pippin. 

Unlike in Pippin, the criminal action in this case did not occur

on the premises Ranger was hired to protect but rather resulted

from the criminal use of Budget property outside the Budget

premises. Furthermore, as discussed above, the accident in this

case resulted from a forged NRT, which allegedly occurred in only

one other circumstance. Accordingly, we find that the accident

in this case was not foreseeable, and thus Ranger owed plaintiff

no duty of care.

In reaching these conclusions, we further find that even if

a genuine issue of material fact had existed as to defendants'

duties of care, summary judgment was appropriate in the case at

bar due to lack of proximate cause. Although proximate cause is

ordinarily a question of fact for the trier of fact to resolve,

our supreme court has noted that it is well settled that it may

be determined as a matter of law where the facts presented show

that plaintiff would never recover as a matter of law. Abrams v.
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City of Chicago, 211 Ill. 2d 251, 257-58 (2004). 

Proximate cause consists of two distinct requirements: cause

in fact and legal cause. Abrams, 211 Ill. 2d at 258. Cause in

fact concerns whether the defendant's conduct is a material

factor in bringing about the injury if the injury would not have

occurred absent the defendant's conduct. Abrams, 211 Ill. 2d at

258. Legal cause consists largely of a question of foreseeability. Abrams, 211 Ill. 2d at 258. 

In Abrams, the plaintiff, a pregnant mother in labor, called

the City's 911 service to request ambulance services. The City's

911 dispatcher declined to send an ambulance, however, due to her

classification of the plaintiff's situation as not being an

emergency. Subsequently, the plaintiff's friend drove her to the

hospital. During that transport, the plaintiff's friend

attempted to drive through a red light when she did not see any

traffic. As she entered the intersection, however, another

vehicle, which was speeding at the time, collided with her

vehicle. The driver of the second vehicle later admitted in a

handwritten statement to police that he was driving on a

suspended license and that he had a beer, two shots of rum, and

crack cocaine before getting behind the wheel of his vehicle. As

a result of the accident, plaintiff suffered in a coma for two

weeks and lost her baby. Thereafter, plaintiff sued the City of
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Chicago for the negligent failure to provide ambulance services. 

Our supreme court reversed the ruling of this court and

reinstated the circuit court's judgment granting the City of

Chicago summary judgment in Abrams after determining that based

on the alleged facts, the plaintiff could not establish that the

City's refusal to send an ambulance was the proximate cause of

her injuries. Abrams, 211 Ill. 2d at 264. Specifically, the

court held that the City's refusal was not the legal cause of the

plaintiff's injuries because it could not have reasonably

anticipated that its refusal to send the ambulance would result

in the plaintiff's friend driving through a red light and

colliding with another vehicle driven by a substance-impaired

driver. Abrams, 211 Ill. 2d at 261-62.

The record here shows that only one other alleged incident

involving an NRT had resulted in the theft of a vehicle from a

Budget facility. As such, defendants could not have reasonably

foreseen that the accident in this case would result from their

decision to leave the keys in the ignition of the 1997 Ford

Explorer and the subsequent release of the vehicle pursuant to a

forged NRT.

Moreover, the accident in the case at bar occurred eight

days after the theft and 26 miles from the Budget O'Hare

facility. In Stanko v. Zilien, 33 Ill. App. 2d 364 (1961), a
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case similar to the one at bar, the defendant, a used automobile

dealer, left the keys of its vehicles in the keys of their

ignition during business hours while the vehicles were parked on

the defendant's private lot. Consequently, a thief substituted

the keys of one of defendant's vehicles during the day and

returned at night to steal the vehicle. Twelve days later and

forty-one and a half blocks away from defendant's place of

business, the stolen vehicle driven by the thief struck the

plaintiff's vehicle. On appeal, this court upheld the circuit

court's grant of summary judgment. In reaching that holding,

this court stated: 

"The final point raised by appellant is that

even if there was no violation of the statute

there was a clear case of negligence at

common law. This contention cannot be

sustained for the reason that there was no

causal connection between leaving the key in

the car and the accident twelve days later

and 41 1⁄2 blocks from the scene of the theft. 

To hold the original owner liable in this 

case would be beyond the bounds of proximate

cause." Stanko, 33 Ill. App. 2d at 369.

Like Stanko, we find that the remoteness of time and distance
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prevented the establishment of proximate cause. 

CONCLUSION 

For the foregoing reasons, we affirm the grant of summary

judgment for defendants by the circuit court of Cook County. In

doing so, we also find that the circuit court did not abuse its

discretion in denying plaintiff's motion to reconsider the grant

of summary judgment for Budget. 

Affirmed.

CAMPBELL and MURPHY, JJ., concur.