Norman v. Brandt

Filed 2/4/10 NO. 4-09-0246
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
DAVID NORMAN and RICHARD NORMAN, ) Appeal from
Plaintiffs-Appellants, ) Circuit Court of
v. ) McLean County
SAMUEL BRANDT, ) No. 07L97
Defendant-Appellee. )
) Honorable
) Thomas M. Harris,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In June 2007, plaintiffs, David Norman and Richard
Norman (collectively, Norman), sued defendant, Samuel Brandt,
alleging that pursuant to section 876 of the Restatement (Second)
of Torts (Restatement (Second) of Torts §876, at 315 (1977)),
Brandt drove his vehicle "in concert" with the driver of the
vehicle from which David was thrown to cause David's injuries.
In October 2008, Brandt filed a motion for summary judgment. In
February 2009, the trial court granted Brandt's summary-judgment
motion, ruling that section 876 of the Restatement (Second) of
Torts did not apply.
Norman appeals, arguing that the trial court erred by
granting Brandt's summary-judgment motion. We disagree and
affirm.
I. BACKGROUND
The following facts were gleaned from (1) the parties'
pleadings and depositions, (2) the January 2009 hearing on
Brandt's motion for summary judgment, and (3) the trial court's
memorandum of decision.
In August 2005, Brandt, David, Jacob Martin, Matt Drew,
Brad Scott, and Amanda Leggett were celebrating Brad's eighteenth
birthday at Jacob's mother's Normal, Illinois, apartment. As
part of the birthday celebration, the group decided to travel to
Brandt's relative's lake house for a swim in Lake Bloomington.
Because none of the other members of the group had been to the
lake house, Brandt volunteered to lead Amanda, who elected to
drive separately. Matt and Brad rode with Brandt, while David
and Jacob rode with Amanda.
Amanda followed Brandt out of town and onto a narrow
country road. Amanda was following closely behind Brandt when
her vehicle careened from the road and rolled over several times
coming to rest in a soybean field. David was thrown from Amanda-
's vehicle during the rollover and experienced serious injury and
paralysis. David later died as a result of these injuries.
In June 2007, Norman sued Brandt, alleging that Brandt
was responsible for David's injuries because Brandt acted "in
concert" with Amanda. Specifically, Norman claimed that because
Brandt (1) volunteered to lead Amanda to the lake house, (2)
forced Amanda to exceed the speed limit to maintain visual
contact with his vehicle, and (3) knew but failed to warn Amanda
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that the country road was narrow and gravel-strewn, Brandt was
responsible for David's injuries.
In October 2008, Brandt filed a motion for summary
judgment pursuant to section 2-1005 of the Code of Civil Proce-
dure (Civil Code) (735 ILCS 5/2-1005 (West 2008)), asserting that
he was not acting in concert with Amanda and, thus, did not owe
David a duty. In February 2009, the trial court granted Brandt's
motion, explaining its findings in a memorandum of decision, as
follows:
"[Brandt] has moved for summary judgment
claiming that the evidence, when viewed in
the light most favorable to [Norman], does
not establish a genuine issue of material
fact, and that he is entitled to judgment as
a matter of law. [Brandt] asserts [that] the
evidence does not establish a duty owed by
[Brandt] to [David] under [s]ection 876 of
the Restatement ***, and argues that [Norman
is] unable to establish that [Brandt's] ac-
tions were the cause of [Amanda] losing con-
trol of her vehicle. [Brandt's] [m]otion
[f]or [s]ummary [j]udgment as to duty is
allowed.
*** [Norman] ask[s] that a duty be found
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under [s]ection 876 of the Restatement[.]
Section 876 provides as follows:
[']For harm resulting to a third person
from the tortious conduct of another, one is
subject to liability if he[:]
(a) does a tortious act in
concert with the other pursuant to
a common design with him, or
(b) knows that the other's
conduct constitutes a breach of
duty and gives substantial assis-
tance or encouragement to the other
so to conduct himself, or
(c) gives substantial assis-
tance to the other in accomplishing
a tortious result and his own con-
duct, separately considered, con-
stitutes a breach of duty to the
third person.[']
In [his c]omplaint [Norman] assert[s that
Brandt] 'encouraged or gave substantial as-
sistance to Amanda *** in that he drove his
motor vehicle at a high rate of speed, there-
by encouraging Amanda *** to drive her motor
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vehicle at a high rate of speed in order to
keep up with him.' *** This allegation
appears to invoke subparagraphs (b) and (c)
of [s]ection 876 where the focus is on wheth-
er the [d]efendant gives 'substantial assis-
tance or encouragement' to the third per-
son[.] However, at paragraphs 16 and 17 of
[his] written response to the summary judg-
ment motion[, Norman] appear[s] to abandon an
application of sub[]paragraphs (b) and (c) of
[s]ection 876 and instead assert application
of sub[]paragraph (a):
['] 16. In this case, [Nor-
man] is alleging that *** Brandt
committed a tortious act (speeding)
in concert with Amanda *** who was
also speeding, pursuant to a common
design between the two of them to
transport their group of teenage
friends to the lake house for the
purpose of going swimming.
17. [Brandt], in his [m]otion
for [s]ummary [j]udgment, focuses
upon subparagraphs (b) and (c) of
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the Restatement [(Second)] of Torts
and argues that *** Brandt's con-
duct does not fit within those
parameters. Most of the cases
cited by [Brandt] in support of his
position are cases distinguishing,
for example, what constitutes sub-
stantial assistance or encourage-
ment which is not an issue in this
case. [Norman] believes that the
negligent act of speeding by ***
Brandt puts him squarely within the
established liability for in[-]
concert liability. ([E]mphasis
added[.])[']
The question here then is whether [Brandt]
did 'a tortious act in concert with [Amanda]
or pursuant to a common design with [her]'
per sub[]paragraph (a) of [s]ection 876.
This court believes he did not.
The evidence [that Norman] assert[s]
establishes in[-]concert liability, viewed in
the light most favorable to [Norman], con-
sists of the following:
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(a) The group of young people decided to
go swimming at [Brandt's] relative's lake
house;
(b) Only [Brandt] knew how to get to the
lake house;
(c) Amanda *** was an inexperienced
driver and prior to leaving on the trip told
[Brandt] to 'go slow';
(d) The speed limit on the roadway was
55 [miles per hour];
(e) Amanda['s] speed at the time of the
accident was 70-75 [miles per hour];
(f) Amanda *** was following [Brandt]
and thus by inference [Brandt's] speed was
also 70-75 [miles per hour].
It is undisputed that the only agreement
that day between [Brandt] and [Amanda] was
that [Amanda] would follow [Brandt] to the
lake house. There is no evidence of a common
design to speed. There is no evidence that
[Brandt] and [Amanda] were racing or engaged
in horseplay. There is no evidence that the
group had to arrive by a time certain. There
is no evidence that [Brandt] was trying to
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'lose' [Amanda]. The evidence of a 'common
design' is that they agreed to go swimming as
a group and that one car would follow the
other. There is nothing tortious about that
common design. The only evidence of an act
done 'in concert' was that one car was trav-
eling in front of the other. *** In this
case[,] there is no evidence of a mutually
contrived or agreed[-]on plan between [Brand-
t] and [Amanda] to commit a tortious act.
The only plan was for [Amanda] to follow
[Brandt] to the lake house. That is not a
plan to commit a tortious act. The only
claimed tortious act is [Brandt's] act of
speeding but there is no evidence that there
was a plan to speed.
In addition, even if [Norman] ha[d] not
abandoned a claim based on sub[]paragraphs
(b) [and] (c) of section 876, the court finds
[that] insufficient evidence exists that
[Brandt] gave [Amanda] 'substantial assis-
tance' or 'encouragement' to act tortiously.
'The elements of section 876 require [***]
affirmative conduct that one's own actions
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create a duty. Under section 876, liability
may be imposed only in instances where the
defendant's conduct is more than benign.'
Sanke v. Bechina, 216 Ill. App. 3d 962, 971[,
576 N.E.2d 1212, 1218 (1991)]. Certainly no
evidence exists here of express encouragement
or assistance given by [Brandt] to [Amanda].
And even if it was given in an implied fash-
ion, the court finds it to be insubstantial.
To hold otherwise would come dangerously
close to imposing 'but for' liability [(]Win-
ters v. W[]angler, [386 Ill. App. 3d 788,
798,] 898 [N.E.2d] 776, 784 [(2008)] ([Cook,
J.,] special[ly] concurr[ing])[)]. ***
Under a traditional duty analysis[,] a
duty of care arises when the parties stand in
such a relationship to one another that the
law imposes upon [the] defendant an obliga-
tion of reasonable conduct for the benefit of
the plaintiff. [Citation.] Relevant factors
include: the foreseeability of injury, the
likelihood of injury, magnitude of the burden
of guarding against the injury, the conse-
quences of placing the burden on the defen-
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dant, and the possible seriousness of the
injury. [Citation.] The only claimed wrong-
ful act by [Brandt] is that he was traveling
between 70 and 75 [miles per hour] on a road
where the speed limit was 55 [miles per hour-
]. The [c]ourt does not find it foreseeable
that [Amanda] would not be paying attention
and instead would be singing to music on the
radio with her passengers when she lost con-
trol of her vehicle as the evidence suggests.
Further, if [Norman's] theory of liability is
adopted, at what point would [Brandt's] lia-
bility terminate? What if he was traveling
at 65 [miles per hour]? What about 55 [miles
per hour]? [Norman's] expert opined in his
report that 'a safe northbound approach speed
to the area of this crash would be 30 [to] 35
[miles per hour].' Could [Brandt] be liable
if he was instead traveling below the speed
limit? The burden of imposing such a duty is
not reasonable under a traditional duty anal-
ysis."
This appeal followed.
II. NORMAN'S CLAIM THAT THE TRIAL COURT ERRED BY
GRANTING BRANDT'S MOTION FOR SUMMARY JUDGMENT
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Norman argues that the trial court erred by granting
Brandt's motion for summary judgment for two reasons. First,
Norman contends that Brandt owed David a duty of reasonable care
pursuant to section 876 of the Restatement (Second) of Torts.
Alternatively, Norman argues that section 324A of the Restatement
(Second) of Torts (Restatement (Second) of Torts §324A, at 147
(1977))--which imposes a duty of reasonable care upon an individ-
ual who renders services that "he should recognize as necessary
for the protection of a third person"--imposed a duty upon Brandt
to use reasonable care, given Brandt volunteered to lead the two-
car caravan at a slow speed. We disagree that the court erred by
granting summary judgment.
A. The Doctrines of Waiver and Forfeiture
As They Apply to This Case
Initially, we note that Norman has (1) waived a portion
of his contention that section 876 of the Restatement applies to
the facts of this case because he affirmatively represented to
the trial court that subsections (b) and (c) of section 876 were
"not at issue in this case" (see People v. Houston, 229 Ill. 2d
1, 10, 890 N.E.2d 424, 429-30 (2008) (the defendant's counsel
waived the presence of the court reporter by affirmatively
agreeing that the reporter's presence was unnecessary)) and (2)
forfeited his contention that section 324A of the Restatement
applies to the facts of this case because he has raised it for
the first time on appeal (see People v. Williams, 384 Ill. App.
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3d 327, 340, 892 N.E.2d 620, 632 (2008) (the defendant forfeited
appeal on ground that an allegedly improper jury instruction was
given when he failed to object to the instruction at the trial
level)).
In spite of Norman's waiver, we nonetheless elect to
review his section 876 contention in toto because the trial court
acknowledged Norman's waiver but went on to consider and dispose
of the otherwise waived portions of Norman's section 876 claim.
Put another way, we will review Norman's otherwise waived asser-
tions because the trial court was presented with them, and the
court addressed them. Conversely, although we likewise have
authority to review Norman's section 324A contention--which we
again note was an argument never presented to the trial court--
such authority should be exercised exceedingly sparingly. See
People v. Robinson, 223 Ill. 2d 165, 174, 860 N.E.2d 1101, 1106
(2006) (recognizing that forfeiture is a limit on the parties and
not the court but nonetheless refusing to address the merits of
the defendant's forfeited contentions). In this case, Norman has
provided no reason why we should not apply this sound doctrine to
his apparently newly discovered section 324A contention. Accord-
ingly, we elect not to review his section 324A contention.
B. Summary Judgment and the Standard of Review
Summary judgment is proper when no genuine issue of
material fact exists and the moving party is entitled to judgment
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as a matter of law. Virginia Surety Co. v. Northern Insurance
Co. of New York, 224 Ill. 2d 550, 556, 866 N.E.2d 149, 153
(2007). When deciding whether a genuine issue of material fact
exists, a court must construe the pleadings, depositions, admis-
sions, and affidavits strictly against the movant and liberally
in favor of the opponent. Williams v. Manchester, 228 Ill. 2d
404, 417, 888 N.E.2d 1, 9 (2008). Given this standard, we accept
for purposes of our review that (1) Amanda's actions were tortio-
us and (2) Brandt was exceeding the speed limit at the time of
the accident.
We review de novo a party's appeal from a trial court's
entry of summary judgment. Virginia Surety Co., 224 Ill. 2d at
556, 866 N.E.2d at 153.
C. Norman's Contention That Section 876
Imposed a Duty Upon Brandt
1. Section 876 of the Restatement (Second) of Torts
Section 876 of the Restatement states as follows:
"For harm resulting to a third person
from the tortious conduct of another, one is
subject to liability if he[:]
(a) does a tortious act in
concert with the other or pursuant
to a common design with him, or
(b) knows that the other's
conduct constitutes a breach of
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duty and gives substantial assis-
tance or encouragement to the other
so to conduct himself, or
(c) gives substantial assis-
tance to the other in accomplishing
a tortious result and his own con-
duct, separately considered, con-
stitutes a breach of duty to the
third person." Restatement (Sec-
ond) of Torts §876, at 315 (1977).
2. Section 876 As Applied to This Case
a. Section 876(a): A Tortious Act in Concert
or Pursuant to a Common Design
Under section 876(a) of the Restatement, a person is
liable for the injuries of a third person from the tortious
conduct of another when the person acted "in concert" or "pursu-
ant to a common design" with the person who acted tortiously--
that is, the parties acted together to commit the tortious
conduct. Restatement (Second) of Torts §876(a), at 315 (1977).
Section 876(a) requires that (1) the party's own actions, sepa-
rately considered, constitute a tort and (2) such action was
conducted together with another party. Winters, 386 Ill. App. 3d
at 796, 989 N.E.2d at 783 (Cook, J., specially concurring).
The authors of the Restatement (Second) of Torts
provided, in pertinent part, the following illustrations to
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describe when section 876(a) could potentially be implicated:
"2. A and B are driving automobiles on
the public highway. A attempts to pass B. B
speeds up his car to prevent A from passing.
A continues in his attempt and the result is
a race for a mile down the highway, with the
two cars abreast and both travelling at dan-
gerous speed. At the end of the mile, A's
car collides with a car driven by C and C
suffers harm. Both A and B are subject to
liability to C.
* * *
3. A is drunk and disorderly on the
public street. B, C[,] and D, who are all
police officers, attempt to arrest A for the
misdemeanor committed in their presence. A
resists arrest. B and C take hold of A,
using no more force than is reasonable under
the circumstances. A breaks away and at-
tempts to escape. D draws a pistol and shoo-
ts A in the back. B and C are not liable to
A for the shooting." Restatement (Second) of
Torts §876, Illustrations a, c, at 316-17
(1977).
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This case falls somewhere between the implicit agree-
ments in the illustrations outlined above. In the first illus-
tration, the party--B in that case--(1) acted tortiously by
increasing the speed of his vehicle so that the other party could
not safely pass and, by doing so, (2) implicitly agreed to "race"
at "dangerous speeds." Conversely, in the second illustration, B
and C--the two officers who acted entirely reasonably--did not
commit a tortious act, because they did not by their actions
alone implicitly agree to act together with the third officer to
act tortiously by shooting the suspect in the back.
Here, construing the facts liberally in favor of
Norman, Brandt, like officers B and C from the second illustra-
tion, did not agree to commit a tortious act, despite Brandt
arguably having acted unreasonably by exceeding the speed limit.
However, unlike the scenario in the first illustration, Brandt
did not agree with Amanda to commit a tortious act. Indeed, the
record shows that (1) Brandt was not attempting to race with
Amanda and (2) neither party was engaged in horseplay sufficient
to demonstrate an implicit agreement to commit a tort. Accord-
ingly, we view the facts of this case more akin to the scenario
in the second illustration than the scenario in the first illus-
tration and conclude that Brandt did not act in concert with
Amanda for purposes of section 876(a).
b. Section 876(b): Knowledge of the Tortious Act in Conjunction
with Substantial Assistance or Encouragement
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Under section 876(b) of the Restatement (Second) of
Torts, a person is liable for the injuries of a third person from
the tortious conduct of another when that person gives the
tortfeasor substantial assistance or encouragement. Restatement
(Second) of Torts §876(b), at 315 (1977). Put another way,
section 876(b) applies when "the person did not commit an act
that would be a tort, but that person gave substantial assistance
or encouragement to another party whose actions constituted a
tort and that person knew that the other person's conduct consti-
tuted a tort." (Emphasis in original.) Winters, 386 Ill. App.
3d at 796, 989 N.E.2d at 783 (Cook, J., specially concurring).
The authors of the Restatement (Second) of Torts also
provided multiple illustrations to describe when section 876(b)
could potentially be implicated. However, before proceeding to
those illustrations, we deem it helpful to define the roots of
the terms "assistance" and "encouragement," which are terms the
authors of the Restatement (Second) of Torts used deliberately.
To "assist" another is to "help" or "give support or aid [to]"
(Merriam-Webster's Collegiate Dictionary 69 (10th ed. 2000)),
whereas, to "encourage" is to "spur on" or "give help *** to"
another (Merriam-Webster's Collegiate Dictionary 380 (10th ed.
2000)). The illustrations provided are, in pertinent part, as
follows:
"6. A and B are members of a hunting
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party. Each of them in the presence of the
other shoots across a public road at an ani-
mal, which is negligent toward persons on the
road. A hits the animal. B's bullet strikes
C, a traveler on the road. A is subject to
liability to C.
* * *
11. A supplies B with wire cutters to
enable B to enter the land of C to recapture
chattels belonging to B, who, as A knows, is
not privileged to do this. In the course of
the trespass upon C's land, B intentionally
sets fire to C's house. A is not liable for
the destruction of the house." Restatement
(Second) of Torts §876, Illustrations 6, 11,
at 318 (1977).
In light of the aforementioned definitions and illus-
trations, we conclude that Brandt did not lend substantial
assistance or encouragement to Amanda in this case. The record
shows that Brandt did not communicate with Amanda in any way
while the group was traveling to the lake house. Further,
although Brandt apparently exceeded the speed limit from time to
time, Brandt did not drive in such a way so as to encourage
Amanda to drive tortiously. Like the party who supplied the
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tortfeasor with the wire cutters in the fourth illustration,
Brandt's actions in this case were insufficient to be considered
"substantial assistance or encouragement" to Amanda's tortious
conduct. Accordingly, we also view section 876(b) as inapplica-
ble to the facts of this case.
c. Section 876(c): Substantial Assistance and Conduct,
Separately Considered, Constitute a Breach of Duty
Under section 876(c) of the Restatement (Second) of
Torts, a person is liable for the injuries of a third person from
the tortious conduct of another when a party's act substantially
assisted another to commit a tort and that party's action by
itself could have constituted a breach of duty. Restatement
(Second) of Torts §876(c), at 315 (1977). In other words,
section 876(c) requires that (1) the party's own actions, sepa-
rately considered, constituted a breach of duty and (2) the party
gave substantial assistance in accomplishing a tortious act.
Winters, 386 Ill. App. 3d at 796, 989 N.E.2d at 783 (Cook, J.,
specially concurring).
As they did with sections 876(a) and (b), the authors
of the Restatement (Second) of Torts provided, in pertinent part,
the following illustrations to describe when section 876(c) could
potentially be implicated:
"12. A and B hunt together but not in
the prosecution of a joint enterprise. It is
not negligent to hunt where they are, and
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neither of them has reason to believe that
the other will be negligent. Under the un-
reasonable belief that it is an animal, A
shoots at a moving object that proves to be a
man. B is not liable for A's negligent act.
* * *
14. A supplies B with wrecking tools,
knowing that B is going to use them on a
specific tract of land but having no reason
to know that B is planning to burglarize a
building on the land. A is not liable to C,
the owner of the building burglarized by B
through the use of the wrecking tools."
Restatement (Second) of Torts §876, Illustra-
tions 12, 14, at 319 (1977).
Here, similar to the fifth and sixth illustrations,
Brandt and Amanda were not prosecuting a joint enterprise to
commit a tort. Indeed, Amanda simply decided to follow Brandt to
his relative's lake house. Neither had reason to know that the
other would act tortiously. Nevertheless, Amanda apparently
acted tortiously. As previously stated, we do not view Brandt's
(1) agreement to allow Amanda to follow him and (2) driving in
excess of the speed limit sufficient to establish that he sub-
stantially assisted Amanda in performing that tort. Therefore,
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we conclude that section 876(c), like sections 876(a) and (b),
does not offer a legal basis upon which to hold Brandt liable for
David's injuries.
Accordingly, the trial court did not err by granting
Brandt's summary-judgment motion.
III. EPILOGUE
In closing, we note that in his brief to this court
Norman cited several cases from other states purporting to
interpret section 876 of the Restatement in his favor. We are
skeptical of Norman's interpretation of the holdings in those
cases. Nonetheless, to the extent that our view of section 876
of the Restatement conflicts with that of other jurisdictions, we
decline to follow those interpretations.
We also commend the trial court for its thoughtful and
thorough written judgment order in this case.
IV. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
APPLETON and POPE, JJ., concur.
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