Shank v. Fields

SUPREME COURT CASES

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Shank v. Fields

State: Illinois

Court: 4th District Appellate

Docket No: 4-06-0340 Rel

Case Date: 05/02/2007

Preview:NO. 4-06-0340 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Filed 5/2/07

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 roadconstruction 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. 2001, was the Friday before Memorial Day. May 25,

A major multivehicle Only The

accident occurred on that date at approximately 3:35 p.m. one of the highway's right two lanes of traffic was open.

reason for the delay was that conveyor-type equipment being used

to remove debris from the highway, an "Athey loader," unexpectedly broke down. At the time of the accident, traffic, which was required 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 Cautionary road-construction signs

place for the lane closure.

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 - 2 -

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 opportunity 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 The

discard any asphalt, than to risk an accident or injury."

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 required warning signs posted; Mr. Nichols had - 3 -

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 possible; 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, depositions, 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. 1005(c) (West 2004). 735 ILCS 5/2-

"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] - 4 -

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 When

Hospital, 137 Ill. 2d 332, 337, 561 N.E.2d 18, 20 (1990).

"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 interrelated, and in many ways, it is possible to deal with most of the issues that arise in a negligence case in terms of duty. - 5 W.

Keeton, Prosser & Keeton on Torts

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