Tolentino v. Clifford's Towing & Recovery, LLC

Summary

The Illinois Appellate Court affirmed summary judgment for a towing company in a negligence action arising from the plaintiff’s fall while exiting a tow truck. The court held that the tow-truck operator did not owe an affirmative duty to assist or warn the plaintiff because the operator did not create the risk of harm and no recognized special relationship existed. The court also rejected the plaintiff’s argument that the towing company was acting as a common carrier of passengers.

Holdings

1. A defendant whose conduct did not create the risk of harm owes no affirmative duty to aid or protect another absent a legally recognized special relationship. Because Tolentino's complaint alleged that the risk arose from poor lighting, his vision problems, the truck's steps, and his unfamiliarity with them, rather than from conduct by the driver, the special-relationship requirement applied.
2. Clifford's Towing was not operating as a common carrier of passengers when it allowed Tolentino to ride in the tow truck. The ride was an unpaid accommodation incidental to the carriage of the Mercedes, and the company was not licensed or regularly engaged to transport passengers for hire.
3. Tolentino could not obtain reversal based on a theory that defendant owed him an ordinary duty of care because his complaint pleaded only a heightened duty of care as a common carrier and did not allege facts showing that defendant negligently created an unsafe condition or otherwise owed an ordinary duty.
4. Tolentino forfeited his voluntary-undertaking theory by raising it for the first time on appeal. In any event, the record established no undertaking to assist him in exiting the truck, and Tolentino did not rely on any promise of such assistance.

Questions Presented

1. Whether the tow-truck operator owed Tolentino an affirmative duty to warn or assist him in exiting the tow truck based on a common-carrier-and-passenger special relationship.
2. Whether the defendant could be held to the standard of care applicable to a common carrier or a quasi-common carrier of passengers.
3. Whether Tolentino's complaint preserved a theory that defendant owed him an ordinary duty of care.
4. Whether Tolentino preserved and established a voluntary-undertaking theory of liability based on the driver's agreement to transport him.

Disposition

affirmed