No. 2--03--0936

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

On the afternoon of January 9, 2001, decedent, Dean Raffen, was killed when he was thrownfrom the car in which he was a passenger. The driver of the car was his sister, Mellody Spatafora. Mellody's car was traveling on a frontage road when it collided with a car driven by defendantMichael Brophy. Brophy was exiting the driveway of defendant International Contractors, Inc. (ICI). Next to the driveway was a snow pile that prevented Brophy and Mellody from seeing each other. Plaintiff, Rosemarie Raffen, decedent's wife and special administrator of his estate, filed a wrongfuldeath negligence suit against Brophy and ICI. ICI moved to dismiss her complaint (see 735 ILCS5/2--615 (West 2002)), contending that, as a landowner, it owed no duty to travelers on an adjacentroadway. The trial court granted the motion. Plaintiff moved to reconsider and to file an amendedcomplaint, adding, among other things, additional defendants. The trial court denied the motion toreconsider and the motion to file an amended complaint against ICI. Plaintiff appeals, and we reverseand remand.

Plaintiff alleged that on January 9, 2001, Mellody's car was traveling north on Frontage Roadin Elmhurst and approaching 977 Frontage Road, which is where ICI is located. At that location onFrontage Road, Mellody's and Brophy's cars collided.

In her claim against Brophy (count I), plaintiff alleged that a buildup of snow preventedBrophy and Mellody from seeing each other in enough time to avoid an accident. Plaintiff claimedthat Brophy was negligent because he failed to yield to traffic on Frontage Road, to decrease hisspeed, and to keep a proper and sufficient lookout. Plaintiff alleged that these negligent acts werethe direct and proximate cause of decedent's death. In her claim against ICI (count II), plaintiffrealleged that the snow pile prevented Brophy and Mellody from seeing each other. She claimed thatICI was negligent because it failed to properly remove snow from its premises, piled snow at the edgeof its property that impaired the visibility of people entering and exiting ICI, and provided an unsafeingress to and egress from its premises. Plaintiff claimed that these negligent acts were the direct andproximate cause of decedent's death.

Around the same time that plaintiff filed her complaint, Mellody filed a negligence suit againstBrophy and ICI for injuries she sustained in the same accident. The trial court consolidated the twocases. Mellody subsequently died of cancer, and her claims were being prosecuted by her son,Michael Spatafora, as special administrator of Mellody's estate

ICI filed a third-party complaint for contribution against the City of Elmhurst, which movedto dismiss plaintiff's complaint pursuant to section 2--615 of the Code of Civil Procedure (Code) (735ILCS 5/2--615 (West 2002)). ICI joined in Elmhurst's motion to dismiss, alleging, pursuant toZiemba v. Mierzwa, 142 Ill. 2d 42 (1991), that it owed no duty to decedent and Mellody. The trialcourt granted ICI's motion to dismiss, finding that, pursuant to Ziemba, ICI had no duty to ensureagainst Brophy's negligent acts. Plaintiff and Michael moved to reconsider, and plaintiff sought tofile an amended complaint, naming the City of Elmhurst and Michael, as special administrator ofMellody's estate, as additional defendants. In the amended count against ICI, plaintiff alleged thatBrophy was cautious when he exited ICI's driveway. She also claimed that ICI violated a localordinance that prohibited encroachment on or obstruction of a public way.

The trial court denied the motion to reconsider and the motion to file an amended complaintagainst ICI, but it granted the motion to file an amended complaint against the remaining defendants. On appeal, plaintiff raises two issues. She first claims that ICI's motion to dismiss should have beendenied because ICI had a duty to provide a safe means of ingress to and egress from its property. Secondly, she contends that the trial court erred when it denied her motion to file an amendedcomplaint that alleged, in the alternative, that Brophy was cautious and that ICI violated a localordinance prohibiting the obstruction of public ways.

A motion to dismiss a complaint pursuant to section 2--615 of the Code should be grantedonly when the allegations in the complaint, construed in the light most favorable to the plaintiff, failto state a cause of action upon which relief can be granted. Oliveira v. Amoco Oil Co., 201 Ill. 2d134, 147 (2002). In making this assessment, all well-pleaded facts and inferences drawn from thosefacts are accepted as true. Oliveira, 201 Ill. 2d at 147. We review de novo a trial court's dismissalpursuant to section 2--615 of the Code. Oliveira, 201 Ill. 2d at 147-48.

A successful negligence claim must establish that the defendant owed a duty to the plaintiff,the defendant breached that duty, and the breach proximately caused the injury the plaintiff sustained. Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 754 (1999). When deciding whether the defendantowed a duty to the plaintiff, courts consider (1) the foreseeability of the injury, (2) the likelihood ofthe injury, (3) the magnitude of the burden in guarding against the injury, and (4) the consequencesof placing the burden on the defendant. Ward v. K mart Corp., 136 Ill. 2d 132, 140-41 (1990). Whether a duty exists is a question of law, and the answer hinges on whether the parties stood in sucha relationship to each other that the law would impose an obligation on the defendant to actreasonably for the protection of the plaintiff. Ziemba, 142 Ill. 2d at 47.

In cases such as this one, where it is alleged that a landowner owes a duty to travelers on anadjacent roadway, courts first focus on the foreseeability of the injury. Gouge v. Central IllinoisPublic Service Co., 144 Ill. 2d 535, 544 (1991); Ziemba, 142 Ill. 2d at 49. Thus, we will firstconsider whether it is reasonably foreseeable that snow at the edge of Frontage Road and next toICI's driveway would prevent motorists from seeing each other and would lead to a collision betweena car driving on the adjacent roadway and one exiting the driveway.

In addressing the foreseeability of the injury in this case, we must consider whether thecondition giving rise to the injury, i.e., the snow pile, was unreasonably dangerous given the facts ofthe case. Ward, 136 Ill. 2d at 151-52; Largosa, 303 Ill. App. 3d at 754. In resolving that issue, weare guided by the notion that "[f]oreseeability of harm, in connection with a duty, is not a magicalconcept that ignores common sense." St. Paul Insurance Co. of Illinois v. Estate of Venute, 275 Ill.App. 3d 432, 436 (1995). Rather, foreseeability arises when the injury is likely enough to occur thata reasonably thoughtful person would take it into account in guiding his practical conduct. Venute,275 Ill. App. 3d at 436.

Here, common sense tells us that a snow pile large enough to block one's view of oncomingtraffic may indeed interfere with a motorist's ability to see cross-traffic and avoid an accident. Webelieve that a reasonably thoughtful person piling snow at the edge of a frontage road would take thatinto account and would alter his actions accordingly.

In reaching this conclusion, we find support in Ziencina v. County of Cook, 188 Ill. 2d 1(1999). In Ziencina, a snow mound piled at the corner of an intersection blocked the plaintiff's viewof traffic traveling on a cross-street. The plaintiff "edged out" into the intersection and was struckby an oncoming car. Ziencina, 188 Ill. 2d at 3. The plaintiff sued the defendant, a municipality,which maintained the intersection. The case was presented to a jury, which found for the plaintiff.

On appeal to our supreme court, the defendant contended that it was immune from liabilitypursuant to the Local Governmental and Governmental Employees Tort Immunity Act (see 745 ILCS10/1--101 et seq. (West 2002)). Our supreme court disagreed, concluding that the defendant had aduty to exercise due care once it undertook to plow the snow. Ziencina, 188 Ill. 2d at 13-14. Thecourt determined that the defendant breached this duty when it piled snow at the corner of theintersection and in such a manner that it obstructed the view of motorists on the roadway. Ziencina,188 Ill. 2d at 14.

The only factual difference we see between Ziencina and this case is that ICI is not amunicipality and, thus, has no statutory immunity defense. This distinction is immaterial for purposesof this appeal. As this court has previously stated, the issues of duty and immunity are separate anddistinct. Barnett v. Zion Park District, 267 Ill. App. 3d 283, 288 (1994). " '[G]overnmental units areliable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunityimposes conditions upon that liability.' " Barnett, 267 Ill. App. 3d at 288 quoting LaMonte v. Cityof Belleville, 41 Ill. App. 3d 697, 705 (1976). The plaintiff in Ziencina maintained a successfulnegligence action against the defendant based on evidence quite similar to the allegations here. Basedon that fact, we cannot conclude that decedent's death was unforeseeable.

ICI contends that Ziemba controls this case. We disagree. In Ziemba, the plaintiff was ridinghis bike when he was struck by a dump truck exiting the defendant's property. Ziemba, 142 Ill. 2dat 45-46. The plaintiff alleged that foliage growing on the defendant's property prevented peopletraveling on the adjacent road from seeing the defendant's driveway. The defendant moved to dismissthe plaintiff's complaint, claiming that he did not owe a duty to the plaintiff. The trial court grantedthe motion, and our supreme court affirmed. Ziemba, 142 Ill. 2d at 52.

In reaching this conclusion, our supreme court commented on what the plaintiff alleged, andfailed to claim, in his complaint. Specifically, the plaintiff alleged that the driver of the dump truckwas negligent when he exited the driveway without warning and without yielding the right of way totraffic on the roadway. Ziemba, 142 Ill. 2d at 50. The plaintiff also failed to allege that the foliageprevented the dump truck driver from seeing oncoming traffic. Ziemba, 142 Ill. 2d at 50. Viewingthese allegations in a light most favorable to the plaintiff, the court held that the accident was notforeseeable because the defendant could not reasonably foresee that the dump truck driver would exitthe driveway without first ascertaining whether there was traffic on the roadway. Ziemba, 142 Ill.2d at 50, 52.

Although plaintiff here, like the plaintiff in Ziemba, alleged that Brophy was negligent, plaintiffalso claimed, in the counts against both Brophy and ICI, that ICI's snow pile obstructed Brophy'sview of oncoming traffic, which was not similarly claimed in Ziemba. In Ziemba, the plaintiff allegedthat the foliage impaired his ability to see the dump truck exiting the defendant's driveway and thatthe defendant had a duty to maintain his property so that travelers on the adjacent roadway could seethe driveway. Those claims were irrelevant because, as alleged, the dump truck driver's independentnegligent acts caused the accident. "Because the driver of the truck could see [the adjacent road],the fact that [the] plaintiff could not see the driveway does not affect the determination of whetherit was reasonably foreseeable that the driver would violate his own statutory duty, and ultimatelywhether the injury was a reasonably foreseeable result of the condition of the driveway." Ziemba, 142Ill. 2d at 51. This distinction between the phrasing of the allegations here and those in Ziemba iscrucial because, unlike in Ziemba, the allegations here present a set of facts under which ICI's actionof maintaining the snow pile at least contributed to Brophy's conduct and decedent's injury.

Although we determine that the injury was foreseeable, we also must address the likelihoodof the injury, the magnitude of the burden in guarding against the injury, and the consequences ofplacing the burden on the defendant. See Abdo v. Trek Transportation Co., 221 Ill. App. 3d 493,499 (1991). We first consider whether the injury was likely. Likelihood in this context is not acertainty or a possibility, but a probability. Trevino v. Flash Cab Co., 272 Ill. App. 3d 1022, 1032(1995) (Cahill, J., concurring in part and dissenting in part). We believe that the injury was probablebecause the snow pile prevented Brophy and Mellody from seeing each other. If motorists areprevented from seeing approaching traffic, the risk of colliding with other drivers is quite probable. Second, addressing the magnitude of the burden in guarding against the injury, we believe that theinjury could have been avoided if ICI had piled the snow somewhere other than at the edges of itsdriveway. Piling the snow in one location instead of another is certainly not a great burden.

Last, we consider the consequence of placing the burden on ICI. Generally, a landownerowes a duty to those traveling on an adjacent roadway by virtue of his landowner status and thetheory that the landowner is in the best position to prevent the injury. Abdo, 221 Ill. App. 3d at 499. However, if a third party was in the best position to guard against the plaintiff's injury, there is nojustification for imposing liability on the landowner. Abdo, 221 Ill. App. 3d at 499.

Here, pursuant to count II of plaintiff's complaint, we determine that ICI was in the bestposition to prevent decedent's death. As other appellate courts have observed, property ownersroutinely enter and exit their own property, and, thus, they are in the best position to observepotential hazards and effectively eliminate them. Whittaker v. Honegger, 284 Ill. App. 3d 739, 744(1996). The courts that have found third parties in the best position to avoid the injury are clearlydistinguishable. See, e.g., Ziemba, 142 Ill. 2d at 52-53 (noting that dump truck driver was in bestposition to avoid injury because foliage on the defendant's land did not impair driver's vision, and,thus, the accident would not have occurred absent the driver's negligent driving); Abdo, 221 Ill. App.3d at 495, 500 (concluding that truck driver who blocked traffic lanes of street adjacent to thedefendant's business was in best position to prevent decedent's death because truck driver decidedto block lanes of traffic). Thus, viewing the allegations in a light most favorable to plaintiff, we holdthat ICI's motion to dismiss should have been denied.

Plaintiff contends that the trial court erred when it denied her motion to file an amendedcomplaint against ICI. In the amended complaint, plaintiff alleged, in the alternative, that Brophy wascautious and that ICI negligently maintained the snow pile alongside its driveway. However, asplaintiff acknowledges, we need not review the propriety of the trial court's order denying plaintiff'smotion to amend the complaint with these allegations because we have determined that plaintiff'soriginal complaint alleged facts sufficient to state a cause of action.

Plaintiff also sought to add the allegation that ICI owed a duty of reasonable care to decedentpursuant to a local ordinance, which allegedly prohibited property owners from encroaching on orblocking public ways. However, because plaintiff has not provided this court with a copy of thatordinance, we have no means by which to determine whether the ordinance was violated or whetherthat law provides a basis for ICI's liability. Thus, we cannot determine that the trial court erred whenit denied plaintiff's motion to amend the complaint in this respect. See Thiede v. Tambone, 196 Ill.App. 3d 253, 258-59 (1990).

For the reasons stated above, we reverse the judgment of the circuit court of Du Page Countyand remand this cause for further proceedings.

Reversed and remanded.

GROMETER and CALLUM, JJ., concur.