Shank v. Fields

NO. 4-06-0340 Filed 5/2/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
JASON A. SHANK, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Champaign County
H.C. FIELDS, ) No. 02L20
Defendant, )
and ) Honorable
CHAMPAIGN ASPHALT COMPANY, ) Michael Q. Jones,
Defendant-Appellee. ) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Plaintiff, Jason A. Shank, appeals the circuit court's
entry of summary judgment in favor of defendant Champaign Asphalt
Company (Champaign Asphalt). We affirm.
I. BACKGROUND
On May 25, 2001, Champaign Asphalt was doing road-
construction work on Interstate Highway 74, near exit 192, in
Champaign County, Illinois. Champaign Asphalt's contract with
the Illinois Department of Transportation (IDOT) incorporated
IDOT's standard specifications, one of which was that all lanes
of traffic shall be open on any legal holiday period, including
the Friday before Memorial Day, beginning at 3 p.m. May 25,
2001, was the Friday before Memorial Day. A major multivehicle
accident occurred on that date at approximately 3:35 p.m. Only
one of the highway's right two lanes of traffic was open. The
reason for the delay was that conveyor-type equipment being used
to remove debris from the highway, an "Athey loader," unexpect-
edly broke down.
At the time of the accident, traffic, which was re-
quired to merge from two lanes to one lane, was backed up for
1.34 miles. Rex A. Nichols, driving a semi-truck with a 40,000-
pound load, struck the line of vehicles, hitting the car in which
plaintiff was a passenger and the car driven by defendant H.C.
Fields. Nichols had been driving about 57 miles per hour and,
according to witnesses, did not reduce his speed before colliding
with the vehicles. The road was level and the weather was clear.
Nichols knew in advance that traffic would be stalled due to road
construction; he had driven that same stretch of highway three
times in the last two months and he was warned over his radio an
hour in advance. The proper traffic-control devices were in
place for the lane closure. Cautionary road-construction signs
indicated an upcoming lane merger in three miles and two miles,
respectively. Lane-closure signs were also one-half mile before
the construction zone.
Plaintiff was seriously injured in the accident.
Plaintiff's parents entered into a settlement agreement with
Nichols and his employer in the amount of $427,500. Subse-
quently, upon reaching the age of majority, plaintiff brought
this action against Champaign Asphalt. Count I, sounding in
negligence, alleged that Champaign Asphalt failed in its duty to
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reopen all lanes of traffic by 3 p.m., resulting in the injury to
plaintiff. Count II, sounding in contract, alleged that plain-
tiff was a third-party beneficiary of the contract between IDOT
and Champaign Asphalt requiring that all lanes of travel be open
from 3 p.m. on May 25, 2001, to midnight on May 28.
IDOT had imposed a monetary sanction for a lane closure
the weekend of May 11-13. A May 24 memo states that the reason
for the sanction was that Champaign Asphalt was given the oppor-
tunity to work Saturday to remove the lane closure and declined
to do so. In a May 23 memo, IDOT complained that Champaign
Asphalt worked after dark on Friday, May 18, and did not remove
traffic control and open the lane until 9:30 p.m. The memo also
discussed a May 3 incident, where Champaign Asphalt had worked 45
minutes after dark and been warned that work after dark would not
be paid for. "It would be better to quit for the day, and
discard any asphalt, than to risk an accident or injury." The
memo further stated, "It had been previously discussed that, in
extreme circumstances, if the lanes could not be opened by 3:00
p.m. on Friday, Champaign Asphalt would be allowed to work on
Saturday to remove hazards and open the lane."
Champaign Asphalt filed a motion for summary judgment.
The trial court granted the motion, stating:
"The day was clear; IDOT did have the re-
quired warning signs posted; Mr. Nichols had
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been down this road before and was, should
have been aware of the construction work;
Mr. Nichols didn't slow down, but plowed
into a stationary car. These things, I think,
are not in dispute; and I believe they add
to the conclusion that the Court is compelled
to draw, which is the alleged negligence of
Champaign Asphalt did nothing more than
create a condition making this accident possi-
ble; and the intervening negligence of Mr.
Nichols broke that causal chain; and therefore,
it was the sole proximate cause."
The court also stated that the facts and the inferences to be
drawn therefrom failed to demonstrate duty or breach of duty.
Plaintiff appeals.
II. ANALYSIS
Summary judgment is proper if, when viewed in the light
most favorable to the nonmoving party, the pleadings, deposi-
tions, admissions, and affidavits on file demonstrate that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-
1005(c) (West 2004). "To succeed in an action for negligence, a
plaintiff must prove facts that establish the existence of a
duty, a breach of the duty, and an injury to the plaintiff [that]
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was proximately caused by the breach." Hills v. Bridgeview
Little League Ass'n, 195 Ill. 2d 210, 228, 745 N.E.2d 1166, 1178
(2000).
A. Duty
As to count I, plaintiff argues that it is foreseeable
that accidents will occur when traffic lanes are closed, and
therefore Champaign Asphalt had a duty to have the lane open.
Whether a duty of care exists is a question of law,
which must be resolved by the court. O'Hara v. Holy Cross
Hospital, 137 Ill. 2d 332, 337, 561 N.E.2d 18, 20 (1990). When
"considering whether a duty exists in a particular case, a court
must weigh the foreseeability of the injury, the likelihood of
the injury, the magnitude of the burden of guarding against [the
injury,] and the consequences of placing that burden on the
defendant." Gouge v. Central Illinois Public Service Co., 144
Ill. 2d 535, 542, 582 N.E.2d 108, 112 (1991); Kirk v. Michael
Reese Hospital & Medical Center, 117 Ill. 2d 507, 526, 513 N.E.2d
387, 396 (1987). "[F]oreseeability alone provides an inadequate
foundation upon which to base the existence of a legal duty."
Ward v. K mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226
(1990).
The issues of duty and proximate cause are interre-
lated, and in many ways, it is possible to deal with most of the
issues that arise in a negligence case in terms of duty. W.
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Keeton, Prosser & Keeton on Torts §53, at 356 (5th ed. 1984). In
fact, approaching negligence cases from the duty prong may be
preferable because such an approach directs the court's attention
to policy issues that determine the extent of the original
obligation and away from the "mechanical" sequence of events that
goes to make up causation in fact. W. Keeton, Prosser & Keeton
on Torts §42, at 274 (5th ed. 1984).
Many Illinois cases have refused to impose a duty in
situations where an accident was foreseeable. It is not a breach
of duty to supply electricity to a community knowing that, over
time, electrocution is likely. "The benefits of electricity
outweigh the disadvantages." Tinder v. Illinois Power Co., 325
Ill. App. 3d 606, 610, 758 N.E.2d 483, 487 (2001). Employers do
not have the duty to insure that their employees working long
overtime hours drive home safely and sufficiently rested. The
burden of placing that duty on employers would be enormous and
outweigh any benefits. Behrens v. Harrah's Illinois Corp., 366
Ill. App. 3d 1154, 1157-58, 852 N.E.2d 553, 556 (2006). Munici-
palities are not required to build medians that would be suffi-
cient to prevent a drunk driver from crossing over into oncoming
traffic. "[T]he magnitude of guarding against this injury and
the consequences of placing that burden on defendant would be too
great." In re Estate of Elfayer, 325 Ill. App. 3d 1076, 1082,
757 N.E.2d 581, 586 (2001). A utility owes no duty to insure
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that if an automobile leaves the traveled portion of a roadway
and strikes a utility pole, the pole will fall away from the
highway. Gouge, 144 Ill. 2d at 544, 582 N.E.2d at 112.
Road-construction projects make travel conditions more
dangerous for motorists, and accidents are certainly foreseeable.
But what is the alternative? Not repairing the roads? Com-
pletely closing any highway that is undergoing repairs? The
magnitude of the burden of preventing reckless drivers from
causing harm and the consequences of placing that burden on the
defendant doing the work justify a finding of no duty in this
case. Certainly highway authorities have a duty to act reason-
ably in preventing harm to the public, even harm caused by third-
party negligent drivers. Champaign Asphalt complied with that
general duty here, by posting all the required warning signs.
Plaintiff argues for an absolute specific duty that all lanes be
open by 3 p.m. Champaign Asphalt was required by its contract to
attempt to have all lanes open by 3 p.m., but Champaign Asphalt
would not have acted reasonably if it had opened the lanes before
they were ready. Under plaintiff's theory, Champaign Asphalt had
no duty a minute before 3 p.m. but had a duty a minute after 3
p.m. A court's determination whether a duty exists should not be
so uncertain. The provisions at issue here should not make
Champaign Asphalt liable for every accident that might have
occurred after 3 p.m. We may consider the provisions of the
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contract in determining the standard of care, but they are not
controlling in our determination whether a legal duty exists.
B. Cause
Plaintiff argues that not opening the second lane by
3 p.m. was the proximate cause of his injury.
Proximate cause has two components: (1) cause in fact
and (2) legal cause. First Springfield Bank & Trust v. Galman,
188 Ill. 2d 252, 257-58, 720 N.E.2d 1068, 1072 (1999). "Cause in
fact" requires the plaintiff to show that defendant's negligence
was the actual cause of his injury; "but for the defendant's
conduct, the accident would not have occurred." McCraw v.
Cegielski, 287 Ill. App. 3d 871, 873, 680 N.E.2d 394, 396 (1996).
"Cause in fact" is not enough to impose liability. The fact that
an accident would not have happened, but for a child's request
that her mother drive her to school, is not enough to impose
liability on the child. Tinder, 325 Ill. App. 3d at 609, 758
N.E.2d at 486. There must also be "legal cause."
"Legal cause" can be established only if a defendant's
acts are "'so closely tied to the plaintiff's injury that he
should be held legally responsible for it.'" Simmons v. Garces,
198 Ill. 2d 541, 558, 763 N.E.2d 720, 732 (2002), quoting McCraw,
287 Ill. App. 3d at 873. "The question is one of public policy--
How far should a defendant's legal responsibility extend for
conduct that did, in fact, cause the harm?" Young v. Bryco Arms,
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213 Ill. 2d 433, 446, 821 N.E.2d 1078, 1086 (2004). In Young,
the supreme court held that the defendants' lawful manufacture
and sale of handguns was not the legal cause of harm brought
about by the intervening criminal acts of third parties. Young,
213 Ill. 2d at 454-55, 821 N.E.2d at 1090-91. Although a police
officer's conduct in following a suspect may have served as the
impetus ("cause in fact") for the suspect to flee the scene,
there was no "legal cause" where the officer was stuck in traffic
20 to 25 cars behind the suspect, keeping a safe distance and
driving at a constant speed, when the suspect drove up onto the
sidewalk and struck the plaintiff. Wade v. City of Chicago, 364
Ill. App. 3d 773, 784, 847 N.E.2d 631, 641 (2006).
The cases have distinguished between conduct that is
the cause of an accident, and conduct that does nothing more than
furnish a passive condition by which the injury is made possible.
Galman, 188 Ill. 2d at 257, 720 N.E.2d at 1071. The doctrine has
been criticized but is recognized to have validity where the
forces set in operation by the defendant have come to rest in a
position of apparent safety, and some new force intervenes. "But
even in such cases, it is not the distinction between 'cause' and
'condition' which is important, but the nature of the risk and
the character of the intervening cause." W. Keeton, Prosser &
Keeton on Torts §42, at 278 (5th ed. 1984).
It is not clear this accident would not have happened,
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"but for" the lane being closed. It is possible that traffic
would have been backed up even if the lanes were open. As noted
by the trial judge, it is fair to infer the traffic backup did
not suddenly materialize at exactly 3 p.m. A completely inatten-
tive driver is a threat at any time, even if traffic is slow-
moving but not stopped. Even if we assume the accident would not
have happened "but for" the closure, that is not enough for
liability. The accident would not have happened if the authori-
ties had not built the road in the first place, but that also is
no basis for liability.
"Legal cause" is required for the imposition of liabil-
ity, and there was no "legal cause" in this case. The failure to
have both lanes open was not so closely tied to plaintiff's
injury that Champaign Asphalt should have responsibility for it.
As the trial court found, the failure to have the lane open was
only a condition that allowed this accident to happen, not a
cause. The actions of Champaign Asphalt in closing the lane did
not promote or encourage Nichols to act in the way he did. Cf.
Long v. Friesland, 178 Ill. App. 3d 42, 55-56, 532 N.E.2d 914,
923 (1988) (allowing brush to overhang road would force driver to
cross centerline); Yates v. Shackelford, 336 Ill. App. 3d 796,
804, 784 N.E.2d 330, 336 (2002) (distinguishing cases where
alleged intervening act was not an unreasonable response).
Champaign Asphalt should not be the insurer of every accident
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that happened while a lane was closed.
C. The IDOT Contract
Count II of Shank's complaint alleges that he was a
third-party beneficiary of the contract between Champaign Asphalt
and IDOT, and Champaign Asphalt accordingly owed him a duty to
open all lanes by 3 p.m. A third party may only sue for breach
of contract if the contract was entered into for the party's
direct benefit; if the third party's benefit is merely inciden-
tal, he has no right of recovery on the contract. Yakubinis v.
Yamaha Motor Corp., U.S.A., 365 Ill. App. 3d 128, 140, 847 N.E.2d
552, 563 (2006). There is a strong presumption against creating
contractual rights in third parties. Estate of Willis v.
Kiferbaum Construction Corp., 357 Ill. App. 3d 1002, 1007, 830
N.E.2d 636, 642 (2005).
Count II does not seek typical contract relief but
seems more to allege the voluntary assumption of a duty in
negligence. See Bourgonje v. Machev, 362 Ill. App. 3d 984, 1000,
841 N.E.2d 96, 110-11 (2005); see also Rogers v. Clark Equipment
Co., 318 Ill. App. 3d 1128, 1134, 744 N.E.2d 364, 368 (2001)
(mistake to muddy waters of voluntary undertaking by failing to
distinguish between two separate concepts of voluntary undertak-
ing and assuming a duty to a third party through contract).
The contract incorporated IDOT's "Standard Specifica-
tions for Road and Bridge Construction," including a provision
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entitled "Public Convenience and Safety":
"No broken pavement, open holes, trenches,
barricades, cones, or drums will remain on
or adjacent to the traveled way and all
lanes shall be open to traffic during any
legal holiday period, except where stage
construction with traffic control is pro-
vided. *** The legal holidays include: ***
Memorial Day *** 3 p.m. Friday [to] 12
midnight Sunday."
The Fifth District has held that a road contractor
working on a nearby bridge had a duty not to obstruct a grassy
median with concrete barrier segments, which were later struck by
a vehicle that lost control and left the roadway. In imposing
that duty, the court relied on IDOT guidelines included in
construction contracts that prohibited obstructing the median in
general and required guardrails if there was a necessary obstruc-
tion. Vosbein v. E.T. Simonds Construction Co., 295 Ill. App. 3d
427, 432, 693 N.E.2d 500, 503 (1998). Presiding Justice Welch
dissented, noting that the question was whether the law imposed a
duty, and industry standards, while evidence of a standard of
care, do not create such a relationship. Vosbein, 295 Ill. App.
3d at 435, 693 N.E.2d at 506 (Welch, P.J., dissenting). In any
event, Vosbein involved a situation different from our case.
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There is a difference between allowing unguarded open holes,
trenches, or barricades on or adjacent to a highway and closing a
lane to traffic after posting proper warnings. An unguarded open
hole is a danger even to careful drivers; a properly marked lane
closing is only a danger when encountered by a completely inat-
tentive driver.
It is useful to compare this case involving IDOT's
standard specifications to cases involving general department
directives for police officers. Violation of self-imposed rules
or internal guidelines, such as police department general orders,
do not normally impose a legal duty, let alone constitute evi-
dence of negligence. Wade, 364 Ill. App. 3d at 781, 847 N.E.2d
at 639 ("pursuit," contrary to guidelines, in an unmarked vehicle
without notifying dispatcher).
"Where the law does not impose a duty, one
will not generally be created by a defendant's
rules or internal guidelines. Rather, it is
the law which, in the end, must say what is
legally required. See Blankenship v. Peoria
Park District, 269 Ill. App. 3d 416, 422[,
647 N.E.2d 287, 291] (1994) (park district's
internal rules requiring one lifeguard to
remain on duty at all times did not create a
legal duty to have one lifeguard on duty);
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Fillpot v. Midway Airlines, Inc., 261 Ill.
App. 3d 237, 244[, 633 N.E.2d 237, 242] (1994)
(where airline owed no legal duty to remove
snow or ice, airline's policy manual requiring
the clearing of walkways did not create such
a duty); Mattice v. Goodman, 173 Ill. App.
3d 236, 240[, 527 N.E.2d 469, 472] (1988)
(where building owners owed no legal duty to
assist elderly person through door, no such
duty was created by building owner's employ-
ment of an employee who, in accordance with
his job description, customarily assisted
elderly persons through the door)." Rhodes v.
Illinois Central Gulf R.R., 172 Ill. 2d 213,
238, 665 N.E.2d 1260, 1272 (1996) (no duty to
promptly assist intoxicated individual dis-
covered in warming house of commuter train
system).
The requirement in this case that "all lanes shall be
open to traffic during any legal holiday period" appears to
relate more to public convenience, traffic flow, than it does to
safety. There was no requirement that lanes be opened whenever
traffic began to back up. The traffic backup that occurred in
this case could easily have occurred on a nonholiday. A similar
- 14 -
analysis was made in Rowe v. State Bank of Lombard, 125 Ill. 2d
203, 531 N.E.2d 1358 (1988). The outside lighting and buzzers at
the property were not provided for security but, instead, are
common for apartment buildings as a convenience. Their installa-
tion at the property cannot reasonably be regarded as an assump-
tion of a duty to protect against third-party criminal acts.
Rowe, 125 Ill. 2d at 218, 531 N.E.2d at 1365.
Plaintiff cites our decision in Moss v. Rowe Construc-
tion Co., 344 Ill. App. 3d 772, 801 N.E.2d 612 (2003), to support
his argument that a legal duty for purposes of negligence was
created by the contract between Champaign Asphalt and IDOT. Moss
began with the rule that a general contractor was not liable for
the work of a subcontractor unless the general contractor re-
tained control of some part of the work, and it was not enough
for liability that the general contractor had some general right,
for example to order the work stopped. Moss, 344 Ill. App. 3d at
777-78, 801 N.E.2d at 616. Under the contract in Moss, the
general contractor was required to maintain control of safety on
the project, which we held to be a retention of control of some
part of the work, making the general contractor responsible for
the actions of the subcontractor. The Moss contract did not
create a duty in negligence where none had existed before; the
contract simply designated who had that duty, who retained the
control of some part of the work. The plaintiff's right to
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protection under the contract was never at issue; the question
was whether the duty was owed by the general contractor, the
subcontractor, or both. See Moss, 344 Ill. App. 3d at 780, 801
N.E.2d at 617-18.
III. CONCLUSION
The trial court properly concluded that Champaign
Asphalt had no duty, either as a matter of general legal princi-
ple or by virtue of its contract with IDOT, to prevent the
independent intervening act that occurred here. The trial court
properly concluded that Champaign Asphalt's conduct was not a
proximate cause of the injuries to plaintiff. Accordingly, we
affirm the trial court's judgment.
Affirmed.
STEIGMANN, P.J., concurs.
MYERSCOUGH, J., specially concurs.
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JUSTICE MYERSCOUGH, specially concurring:
Although I agree in the outcome reached by this court,
I disagree with the majority's conclusion that Champaign Asphalt
owed no duty to plaintiff to open the lanes at 3 p.m. despite the
provision in its contract that provides that it must have all
lanes open by 3 p.m. I believe that Champaign Asphalt did owe
plaintiff a duty. That duty was to exercise reasonable care in
carrying out its construction on a public highway. However, I
also believe that Champaign Asphalt was not negligent in failing
to open all the lanes by 3 p.m. The majority states that Cham-
paign Asphalt "would not have acted reasonably" if it had opened
the lanes before it were ready. Slip op. at 7. Whether Champaign
Asphalt acted reasonably is not a duty question, but rather a
question of breach. See J. Goldberg & B. Zipursky, The Restate-
ment (Third) & the Place of Duty in Negligence Law, 54 Vand. L.
Rev. 657, 713-15 (2001) (courts, both knowingly and unwittingly,
sometimes decide what are surely breach questions under the guise
of deciding the question of "duty" in its primary sense). If
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Champaign Asphalt had no duty, as the majority concludes, whether
it acted reasonably would be immaterial.
Champaign Asphalt owed a general duty of care to the
motorists on the highway. Section 107.09 of the specifications in
Champaign Asphalt's contract with IDOT states:
"The Contractor shall at all times conduct
the work in such a manner as to ensure the
least obstruction to vehicular and pedestrian
traffic. The convenience of the general pub-
lic and residents along the highway shall be
provided for in an adequate and satisfactory
manner. *** No broken pavement, open holes,
trenches, barricades, cones, or drums will
remain on or adjacent to the traveled way and
all lanes shall be opened to traffic during
any legal holiday period, except where stage
construction with traffic control is
provided."
The specifications in the contract designated that the
holiday period at issue in this case began at 3 p.m. on Friday.
Section 107.14 of the specifications in the contract states:
"When work zone traffic control is required
along the route under construction, or when
any section of road is closed for construc-
- 18 -
tion operations of any type, or when any sec-
tion of the road is opened to traffic prior
to completion of all work, the Contractor
shall protect the workers and provide for
safe and convenient public travel by provid-
ing adequate traffic control."
Champaign Asphalt assumed the duty to use reasonable
care for the safety of the motorists on the highway by virtue of
the contract. See Moss, 344 Ill. App. 3d at 779, 801 N.E.2d at
617 (stating that the construction company's contract with IDOT
established a duty to control safety); Chandradat v. State,
Indiana Department of Transportation, 830 N.E.2d 904, 909 (Ind.
2005) ("The State [Indiana] has a general duty to the traveling
public to exercise reasonable care in the design, construction,
and maintenance of its highways for the safety of public users.
[Citation.] The [plaintiffs] were part of the traveling public.
Furthermore, by statute, an Indiana governmental agency that is
responsible for the signing, marking, and erection of traffic
control devices on streets and highways within Indiana has a duty
to follow the Indiana Manual on Uniform Traffic Control Devices
for Streets and Highways ('Traffic Manual'). [Citation.] While
the Traffic Manual is not a legal basis for a statutory negligence
action [citation], the Traffic Manual is evidence bearing upon the
general duty to exercise reasonable care").
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The terms of Champaign Asphalt's contract with IDOT in
this case, therefore, serve as evidence of the standard of care to
be employed when conducting construction projects on a public
road. Snyder v. Curran Township, 167 Ill. 2d 466, 472, 657 N.E.2d
988, 992 (1995) ("In light of the applicable regulations and
statutes, we agree with the plaintiffs that the issue of compli-
ance or noncompliance with the Illinois Manual was a question
properly before the jury. Section 11-304, by mandating compliance
with the Illinois Manual, establishes defendant's duty of reason-
able care. Whether that duty was breached is a jury question,
turning on an examination of the applicable provisions of the
Illinois Manual and the facts of a particular case"); Indiana
State Highway Comm'n v. Daily Express, Inc., 503 N.E.2d 1237, 1240
(Ind. 1987) ("We held that the [Indiana State Highway Manual] is
only evidence bearing upon the general duty to exercise reasonable
care. [Citation.] Accordingly, if a failure to comply with the
Manual's provisions is only evidence of negligence, the jury
should be instructed to treat the Manual as any other evidence of
negligence going into the ultimate factual determination of
liability" (emphasis in original)). Not complying with the
provisions of the contract in this case may constitute a breach of
this duty if defendant's failure to comply was unreasonable.
The majority states that if the contract's provision to
have all lanes open by 3 p.m. constituted a legal duty, it would
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result in Champaign Asphalt being held liable for accidents that
occur after 3 p.m. but not liable for accidents that occurred
before 3 p.m. The majority characterizes this as creating an
"uncertain" duty. Slip op. at 7. However, nothing is uncertain
about the duty to comply with a specific provision in the con-
tract. Moreover, the provision in the contract that requires all
the lanes to be open by 3 p.m. does not create strict liability.
Champaign Asphalt may even be liable for accidents that occur
before 3 p.m. if it failed to act with due care for the safety of
the public in carrying out its construction work. After 3 p.m.,
Champaign Asphalt may also be liable for accidents that occur if
its failure to open all of the lanes as required was unreasonable.
Additionally, using the terms of construction compa-
nies' contracts with IDOT as evidence of the standard of care
construction companies should exercise while performing work on
public highways does not create an undue burden. In determining
whether a legal duty exists, courts consider the following fac-
tors: (1) the reasonable foreseeability of injury, (2) the reason-
able likelihood of injury, (3) the magnitude of the burden that
guarding against injury places on the defendant, and (4) the
consequences of placing that burden on the defendant. Miller v.
Highway Commissioner of North Otter Township Road District, 344
Ill. App. 3d 1157, 1164, 801 N.E.2d 599, 606 (2003).
In its analysis of the policy considerations involved
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in determining whether Champaign Asphalt owed plaintiff a duty in
this case, the majority states, "The magnitude of the burden of
preventing reckless drivers from causing harm and the consequences
of placing that burden on the defendant doing the work justify a
finding of no duty in this case." Slip op. at 6. However, the
duty question in this case is not whether Champaign Asphalt had a
duty to protect against reckless drivers causing harm. Rather,
the duty was to have the roadway clear by 3 p.m. at the beginning
of a holiday weekend that is associated with high volumes of
highway traffic. It is certainly foreseeable and likely that this
type of accident could result from a congested and backed-up
highway during a period of heavy traffic. Considering the third
and fourth prongs in Miller, clearing the highway by 3 p.m. was
not a burden on Champaign Asphalt. Had its machine not broken, it
would have had all the lanes open on the highway by 3 p.m.
Finally, given that IDOT requires the construction company to be
off the highway by 3 p.m. on a holiday weekend unless it obtained
special permission from IDOT, placing the foreseeable consequences
for accidents that result from the company's failure to clear the
highway is not unreasonable. Holding construction companies
liable for reckless drivers, as the majority suggests, would be
unsound public policy. The benefits of road construction to
society are great and holding companies who perform such tasks
liable for all accidents that result is too high of a burden.
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However, Champaign Asphalt had a duty to exercise due care in
carrying out its project. It is sound policy to require companies
performing work on public roads to exercise due care in performing
their task. In this case, Champaign Asphalt did exercise due care
even though it was not off the highway by 3 p.m. However, if
evidence had been presented that it had not acted reasonably, it
may have been liable for causing this type of accident that
resulted from the highway congestion caused by its lane closure.
The majority makes the distinction that the contract
provision regarding the lane closures was concerned with traffic
flow during a holiday weekend as opposed to a safety provision.
The majority's distinction between a contract provision rooted in
safety and a contract provision rooted in convenience should not
be dispositive of whether Champaign Asphalt owed a legal duty to
the motorists on the highway.
A provision in the contract incorporates the guidelines
of the IDOT manual that includes the requirement that Champaign
Asphalt be off the road by 3 p.m. Although the contract provision
is not a statute or an administrative rule, it is an agency-
created regulation. I conclude public policy supports a finding
that failure to abide by this regulation may create liability on
the part of Champaign Asphalt. The supreme court has held in
order for a plaintiff to recover for injuries sustained as a
result of a failure to follow a statute or rule the plaintiff must
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show "(1) the violation proximately caused the injury; (2) plain-
tiff belonged to the class of persons whom the rule was intended
to protect from injury; (3) the kind of injury suffered by plain-
tiff was the kind of injury which the rule sought to prevent."
Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535,
543, 582 N.E.2d 108, 112 (1991).
The first two prongs of the test in Gouge are easily
met. First, but for the backup on the highway, this accident
would not have occurred. Second, the rule is for the convenience
and safety of the drivers on the highway, a class of persons to
which decedent belonged. With respect to the third prong in
Gouge, even if IDOT's primary interest in having a contract
provision providing that all the lanes be open by 3 p.m. was
primarily a concern about traffic flow, motorists' safety is
always a consideration in making decisions to impede traffic on a
public road. Making a distinction between provisions in a road
construction contract based on whether the provision is primarily
for safety or if it is primarily for convenience creates confusion
in the law. Construction companies' liability in tort should not
rest on such a distinction. Whether the guidelines set by IDOT
are for safety or convenience, construction companies should be
held to those standards in determining liability.
Having determined that Champaign Asphalt owed plaintiff
a duty to exercise reasonable care in performing work on a public
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road, I conclude the issue in this case is whether Champaign
Asphalt breached this duty. Although the issue of whether a
defendant breached its duty is usually a factual matter reserved
for the fact finder, summary judgment is proper when there is no
genuine issue of material fact regarding defendant's alleged
breach. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d
107, 114, 649 N.E.2d 1323, 1326 (1995).
As part of our de novo review of this case, relying on
the undisputed facts, Champaign Asphalt was entitled to judgment
as a matter or law. The facts of this case reveal that two days
before the accident, May 23, 2001, Champaign Asphalt received a
memo from IDOT that said "It has been previously discussed that,
in extreme circumstances, if the lanes could not be opened by 3:00
p.m. on Friday, Champaign Asphalt would be allowed to work on
Saturday to remove hazards and open the land." The facts also
reveal that the machine used to remove debris from the highway
unexpectedly broke, and opening the lanes would have created an
increased hazard to the motorists on the highway due to the
presence of debris. Therefore, although Champaign Asphalt had a
duty to abide by its contract, which required that the lanes be
open by 3 p.m. that afternoon, it did not breach that duty because
it acted reasonably under the circumstances. Opening the lanes
before the debris was removed would have been unreasonable since
it created a greater hazard to the motorists on the highway.
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Therefore, Champaign Asphalt's decision not to open the lanes by 3
p.m. due to the debris was objectively reasonable and, as a matter
of law, cannot constitute a breach of its duty.
Most troubling to me is the precedent that may result
from the holding in this case. Although the majority and I agree
that Champaign Asphalt acted reasonably, I believe that setting
the precedent that construction companies have no duty to comply
with the terms of its contracts with IDOT sets a dangerous and
undesirable precedent. In Marshall v. Burger King Corp., 222 Ill.
2d 422, 424, 856 N.E.2d 1048, 1050 (2006), decedent was killed
when an out-of-control car crashed through the window of the
Burger King restaurant where he was eating. Decedent's estate
sued Burger King for negligence based on the fact that there were
no safety devices in place to prevent this type of accident. The
supreme court addressed the appellate court's finding of no duty
as follows:
"'Rules declaring that no duty exists can
easily be made too broad or too narrow. Be-
cause they are rules of law, not decisions
about particular cases, they cover all cases
in the category to which they are addressed.
They are expressions of "global" policy
rather than evaluations of specific facts of
the case. Consequently, no-duty rules should
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be invoked only when all cases they cover
fall substantially within the policy that
frees the defendant of liability.'" Mar-
shall, 222 Ill. 2d at 441-42, 806 N.E.2d at
1060, quoting 1 D. Dobbs, Torts §227, at 579
(2001).
The court in Marshall held that by defining the duty
narrowly, defendants were actually asking the court to decide as a
matter of law that they did not breach its duty. The court found
that instead of defendant owing a fact-specific duty to install
poles at its restaurants, defendants owed a general duty to
exercise reasonable care for the safety of its customers. Mar-
shall, 222 Ill. 2d at 443, 856 N.E.2d at 1061. The supreme court
held:
"It is inadvisable for courts to conflate the
concepts of duty and breach in this manner.
Courts could, after all, 'state an infinite
number of duties if they spoke in highly par-
ticular terms,' and while particularized
statements of duty may be comprehensible,
'they use the term duty to state conclusions
about the facts of particular cases, not as a
general standard.'" Marshall, 222 Ill. 2d at
443, 856 N.E.2d at 1061, quoting 1 D. Dobbs,
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Torts §226, at 577 (2001).
See also 54 Vand. L. Rev. at 712-17 (discussing problems associ-
ated with using the duty element of negligence to render decisions
that no breach occurred as a matter of law).
In this case, holding that defendant did not have a
specific duty to open all the lanes of the highway by 3 p.m.
creates the situation in which a similar defendant who unreason-
ably does not comply with the terms of its contract with IDOT may
escape liability when its conduct was unreasonable and caused an
injury to a third person. For these reasons, I concur in the
result reached by the majority, but not its reasoning.
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