• 1 Under Illinois law, parents may be held liable under an agency theory for their child's negligent driving if, at the time of the accident, the child was engaged in doing the parents' business. ( Graham v. Page (1921), 300 Ill. 40, 43; Ritter v. Taucher (1978), 65 Ill. App.3d 464, 468; O'Haran v. Leiner (1940), 306 Ill. App. 230, 233-35.) Parents are not liable if they merely allow the child to use the car for his own purposes rather than for a family errand.

In fact, one court stated that "mere proof of [the] * * * ownership of an automobile driven by another defendant is prima facie proof of agency." ( Ritter v. Taucher (1978), 65 Ill. App.3d 464, 467-68.) As a result, if the driver was merely running a "family errand," agency was established and the driver's negligence would be imputed to the owner-passenger.

Palmer, 380 Ill. at 259-60, 43 N.E.2d at 975. See also Summers v. Summers (1968), 40 Ill.2d 338, 343-44, 239 N.E.2d 795, 799 (action by plaintiff, owner-passenger, against defendant, who was driving plaintiff's car at time of accident); Martino v. Leiva (1985), 133 Ill. App.3d 1006, 1007, 479 N.E.2d 955, 956 (holding there is no duty imposed upon passenger to prevent driver from causing physical harm to another, unless a special relationship exists between driver and passenger); Sewell v. Wofford (1985), 131 Ill. App.3d 62, 64-65, 475 N.E.2d 575, 577-78 (bases for finding owner-passenger liable in negligence for third party's injuries); Fugate v. Galvin (1980), 84 Ill. App.3d 573, 575-76, 406 N.E.2d 19, 21 (passenger not liable for owner-driver's negligence though he asked intoxicated owner-driver to take him home); Campanella v. Zajic (1978), 62 Ill. App.3d 886, 887, 379 N.E.2d 866, 867 (no joint enterprise); Ritter v. Taucher (1978), 65 Ill. App.3d 464, 467, 382 N.E.2d 343, 345 (appeal from directed verdict for defendant owner-passenger discussing bases on which owner-passenger can be held liable for injuries resulting from her son's driving). IV. APPLICATION OF CONTRIBUTORY NEGLIGENCE AGAINST OWNER-PASSENGER REQUIRES EVIDENCE OF NEGLIGENT FAILURE TO CONTROL CONDUCT OF DRIVER, WHICH MANDATES EVIDENCE OF FORESEEABLE RISK AND OWNER KNOWLEDGE THEREOF: BAUER v. JOHNSON (1980), 79 Ill.2d 324, 403 N.E.2d 237 • 7 Palmer was further discussed in Bauer, which involved a suit by the owner-passenger against the driver of a second vehicle, and an appeal from the denial of judgment n.o.v. where the jury answered a special interrogatory finding plaintiff contributorily negligent.

The vast majority of cases purporting to apply the Palmer principle have also involved a negligent failure to control negligent conduct. Crucial to these cases were foreseeable risks like, for example, the driver's excessive speed ( Coakley v. Nichols (1972), 8 Ill. App.3d 973, 976; Wassmann v. Ritchason (1978), 63 Ill. App.3d 770) or intoxication ( Kitch v. Adkins (1952), 346 Ill. App. 342, 344), out-of-the-ordinary road conditions ( Koch v. Lemmerman (1956), 12 Ill. App.2d 237, 241; Ritter v. Taucher (1978), 65 Ill. App.3d 464, 466, 471) or the known fact that the automobile operator lacked a driver's license ( Hodge v. Bzdon (1975), 33 Ill. App.3d 192). In such cases, if no reasonable precautionary measures were taken by the passenger, a finding of contributory negligence would be appropriate.

• 4 The parties have placed major significance upon the alleged employer-employee relationship between Fillmore and Randolph; however, the presumption of agency often arises in situations other than those where there is at issue a question of employer-employee status. (See generally McElroy v. Force (1967), 38 Ill.2d 528, 232 N.E.2d 708 (owner-driver, unrelated passenger); Parrino v. Landon (1956), 8 Ill.2d 468, 134 N.E.2d 311 (owner-nonpassenger, related driver); Ritter v. Taucher (1978), 65 Ill. App.3d 464, 382 N.E.2d 343 (owner-passenger, related driver).) Plaintiffs need not necessarily prove an employer-employee relationship for the presumption to obtain.

They have not found a joint enterprise established in some situations where there is some joint purpose, and even some sharing of trip expenses, but where a business purpose has been lacking. Smith v. Bishop (1965), 32 Ill.2d 380, 205 N.E.2d 461; Andes v. Lauer (1980), 80 Ill. App.3d 411, 399 N.E.2d 990; Ritter v. Taucher (1978), 65 Ill. App.3d 464, 382 N.E.2d 343; Campanella v. Zajic (1978), 62 Ill. App.3d 886, 379 N.E.2d 866; Babington v. Bogdanovic (1972), 7 Ill. App.3d 593, 288 N.E.2d 40. • 2 It was the defense position, in opposing the motion in limine, that the evidence would show that there was a joint enterprise between Judevine and Matesevac on the automobile trip to view the farmhouse they were interested in renting.

The liability for the damage caused by the negligent act of a driver does not attach against a person other than the driver, unless that person is the owner or has the right to control the vehicle. ( Palmer v. Miller (1942), 380 Ill. 256, 260, 43 N.E.2d 973, 975; Ritter v. Taucher (1978), 65 Ill. App.3d 464, 467, 382 N.E.2d 343, 345; Kitch v. Adkins (1952), 346 Ill. App. 342, 344-45, 105 N.E.2d 527, 528.) If the passenger is the owner or controller of the car, his negligence lies in the entrustment of driving duties to an incompetent ( Scott v. Valentine (1971), 132 Ill. App.2d 101, 104, 268 N.E.2d 485, 487; Staken v. Shanle (1959), 23 Ill. App.2d 269, 278, 162 N.E.2d 604, 608-09; see Bohnen v. Wingereid (1979), 80 Ill. App.3d 232, 239, 398 N.E.2d 1204, 1209), for the owner may at any time force the driver to surrender the wheel and thus avoid the accident. Where the passenger does not own the car, however, the final decision to permit an intoxicated driver to take the car upon the road is never the passenger's, and so there can be no duty on him. Sloan v. Flack (La. App. 1963), 150 So.2d 646, 648.