308 N.E.2d 617 (Ill. 1974), 45441, Cunis v. Brennan

Docket Nº:45441.
Citation:308 N.E.2d 617, 56 Ill.2d 372
Party Name:Frank CUNIS, Appellee, v. James M. BRENNAN et al. Appeal of VILLAGE OF LaGRANGE
Case Date:January 23, 1974
Court:Supreme Court of Illinois

Page 617

308 N.E.2d 617 (Ill. 1974)

56 Ill.2d 372

Frank CUNIS, Appellee,


James M. BRENNAN et al.


No. 45441.

Supreme Court of Illinois.

January 23, 1974.

Rehearing Denied March 28, 1974.

[56 Ill.2d 373] Baker & McKenzie, Chicago (Lee M. Burkey, William Joseph Linklater, Francis D. Morrissey, and John T. Coleman, Chicago, of counsel), for appellants.

Matgang, Levine & Schwartz, Chicago (John B. Schwartz, Chicago, of counsel), for appellee.

WARD, Justice.

Frank Cunis, a minor, whose age does not appear in the record, was riding as a passenger in an automobile traveling north on Brainard Street in the Village of LaGrange on December 15, 1967. At the intersection

Page 618

of Brainard and Ogden Avenue the automobile in which he was riding was struck by an automobile traveling west on Ogden, and being driven by James Brennan, one of the defendants. At the collision Cunis was thrown from the automobile approximately 30 feet to the parkway, where one of his legs was impaled upon an object protruding from the ground. The object, later identified as the remains of a drain pipe, was located four and one-half feet west of the west curb of Brainard and five and one-half feet north of the north edge of the north walk on Ogden. The injury necessitated the amputation of the leg.

[56 Ill.2d 374] Through his father as his next friend, Cunis brought an action in the circuit court of Cook County for personal injury against James M. Brennan, Waldo, Inc., a corporation d/b/a Waldo's, Waldo R. Koehler, Alex Bodel, d/b/a Big Al's, O. Schneider, and the Village of LaGrange, a municipal corporation. Count V of his complaint alleged that the defendant village (hereafter, the Village) was under a duty to maintain its parkways in a safe condition and that it had 'failed in its duty toward the plaintiff' by permitting a dangerous and broken drain pipe to remain on the parkway. It alleged that the plaintiff sustained his injury as a 'proximate result of the negligence' of the Village. On the Village's motion count V was dismissed on the ground that it failed to state a cause of action. The trial court authorized an appeal under our Rule 304(a), and the appellate court reversed the judgment on appeal by the plaintiff (7 Ill.App.3d 204, 287 N.E.2d 207.) We granted the Village's petition for leave to appeal.

A complaint for negligence must set out: the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from the breach. (Mieher v. Brown, 54 Ill.2d 539, 541, 301 N.E.2d 307.) The character of the duty of the defendant which must be established was described in Prosser, Handbook of the Law of Torts (4th ed. 1971), section 53: 'In other words, 'duty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff * * *.' This question, I.e., whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the plaintiff's benefit, is one of law for determination by the court. Mieher v. Brown, 54 Ill.2d 539, 541, 301 N.E.2d 307; Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 162 N.E. 99; see also Prosser (4th ed. 1971), sec. 52.

The plaintiff contends that the Village, to avoid liability, must show that it could not have foreseen the [56 Ill.2d 375] collision of the automobiles and the ejection of an occupant onto the parkway, causing injury. He argues that the ejection of an occupant of an automobile involved in an intersection collision was a foresseable occurrence and therefore the Village had a duty to maintain the parkway so as to prevent the plaintiff's injury. In support of this contention of foreseeability the plaintiff cites National Safety Council statistics indicating that 32.2% Of the 12,000,000 two-car collisions in 1969 occurred at intersections. Also, he argues the foreseeability of his injury from a report published in 1958 (which incidentally was prior to the common use of safety belts) which states that out of 3,261 automobile accidents studied, 13.6% Of all persons riding as passengers were ejected upon collision from the automobiles in which they had been riding (73 Public Health Reports (1958), at 381--391), and from two other reports which describe passenger ejection as one of the most dangerous consequences of an automobile collision.

However, the existence of a legal duty is not to be bottomed on the factor of foreseeability alone. We stated this in Mieher v. Brown, 54 Ill.2d 539, 544, 301 N.E.2d 307, 309, and there quoted Dean Leon Green's observation: "(H) owever

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valuable the foreseeability formula may be in aiding a jury or judge to reach a decision on the negligence issue, it is altogether inadequate for use by the judge as a basis of determining the duty issue and its scope. The duty issue, being one of law, is broad in its implication; the negligence issue is confined to the particular case and has no implications for other cases. There are many factors other than foreseeability that may condition a judge's imposing or not imposing a duty in the particular case * * *.' Green, Foreseeability in Negligence Law, 61 Colum.L.Rev. 1401, 1417--18.' See also Conway v. O'Brien (2d Cir. 1940), 111 F.2d 611, 612, 118 U.Pa.L.Rev. 299, 300: Harper and James, Law of Torts (1956).

In addition, in determining whether there was a legal duty, the occurrence involved must not have been simply [56 Ill.2d 376] foreseeable, as the plaintiff contends; it must have been reasonably foreseeable. The creation of a legal duty requires more than a mere possibility of occurrence. Negligence as defined in the Restatement (Second) of Torts (1965), section 282, is conduct which falls below the standard established for the protection of others 'against unreasonable risk of harm.' Harper and James, in their Law of Torts, observe: 'Not what actually happened, but what the reasonably prudent person Would then have foreseen as likely to happen, is the key to the question of reasonableness.' (2 Law of Torts (1956), sec. 16.9, at 929.) And Prosser (Handbook of the Law of Torts (4th ed. 1971), sec. 31, at 146) comments: 'No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.' In judging whether harm was legally foreseeable we consider what was apparent to the defendant at the time of his now complained of conduct, not what may appear through exercise of hindsight. We will not look back, as it was felicitously put by Justice Cardozo, 'at the mishap with the wisdom born of the event * * *.' (Greene v. Sibley, Lindsay & Curr Co. (1931), 257 N.Y. 190, 192, 177 N.E. 416, 417.) But courts will be retrospective for another purpose....

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