Benner v. Bell, 4-91-0738

• Decision Date: 29 October 1992
• Docket Number: No. 4-91-0738,4-91-0738
• Citation: 236 Ill.App.3d 761,177 Ill.Dec. 1,602 N.E.2d 896
• Parties: , 177 Ill.Dec. 1 Jill M. BENNER, Cara Burwell, Dustin J. Benner, a minor by Jill M. BENNER, his Mother and Next Friend, and Eric L. Benner, a minor by Jill M. Benner, his Mother and Next Friend, Plaintiffs-Appellants, v. Roger C. BELL and Martha K. Yeakel, Defendants (Levi E. Schrock, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 896

602 N.E.2d 896

236 Ill.App.3d 761, 177 Ill.Dec. 1

Jill M. BENNER, Cara Burwell, Dustin J. Benner, a minor by Jill M. BENNER, his Mother and Next Friend, and Eric L. Benner, a minor by Jill M Benner, his Mother and Next Friend, Plaintiffs-Appellants, v. Roger C. BELL and Martha K. Yeakel, Defendants (Levi E Schrock, Defendant-Appellee).

No. 4-91-0738.

Appellate Court of Illinois Fourth District.

Oct. 29, 1992.

Gregory D. Fombelle, James E. Zachry, Bruger, Fombelle, Zachry & Rathbun, P.C., Decatur, for plaintiffs-appellants.

Marc J. Ansel, Erwin, Martinkus, Cole & Ansel, Ltd., Champaign, for defendant-appellee.

Justice COOK delivered the opinion of the court:

Plaintiffs brought this action to recover damages allegedly occasioned by defendant Schrock's operation of his horse-drawn buggy. The circuit court of Moultrie County entered summary judgment in favor of Schrock. Plaintiffs appeal, arguing that Schrock's failure to illuminate his buggy was a proximate cause of their injuries. We affirm.

The facts are, unless indicated, agreed upon by the parties. About 6 p.m. on February 3, 1989, plaintiffs Jill Benner, her sons Eric and Justin, and Cara Burwell were south-bound on the Arthur-Atwood Road, approximately 2 1/2 miles north of Arthur, Illinois. Defendant Schrock was operating a horse-drawn buggy, also southbound, a short distance ahead of Benner on the paved portion of the highway. Defendant Bell's pickup truck was also southbound on the Arthur-Atwood Road, one-quarter to one-half mile behind the Benner vehicle. Defendant Yeakel and her daughter were northbound on the same road. Deposition testimony as to the conditions of the road varies slightly, but the parties generally agreed the road was icy in patches and the sky was dark with a light mist falling. The Arthur-Atwood Road is a two-lane highway with a 55-mile-per-hour speed limit. The road is straight and level in the area where the incident occurred.

Schrock's buggy was traveling at approximately 10 to 15 miles per hour on the paved portion of the road; the shoulder was not wide enough at that point to accommodate it. Schrock stated his buggy was equipped with "slow moving vehicle" signs on the front and back of the buggy, reflective tape outlining the buggy's front and rear, battery-operated clear lights in front and amber lights in the rear of the buggy, and two flashing yellow lights higher at the back. The buggy is black.

Schrock testified that, just prior to the occurrence, he observed in his rearview mirror that the Benner vehicle's headlights approached him, then slowed to his pace directly behind him. Plaintiff Jill Benner also testified that, upon seeing the buggy, she slowed her vehicle to a comparable speed and remained approximately one to two car lengths behind the buggy. Benner stated that she saw the orange triangle "slow moving vehicle" reflector but did not see any lights on the buggy. Schrock testified that soon after the Benner vehicle slowed behind him he saw the Yeakel vehicle approaching in the northbound lane. Benner also testified that she saw Yeakel approaching. Benner had a conversation with her passenger, Cara Burwell, about whether she should pass the buggy or wait until the approaching car had passed. Burwell responded that they were in no hurry and "it was better to be safe than sorry" and to let the car pass.

Approximately 10 to 15 seconds after Benner had slowed down to the pace of the buggy, defendant Bell's pickup truck, which had been traveling behind Benner at some distance, crashed into the rear end of the Benner vehicle. The force of the collision caused Benner to swerve into the northbound lane of oncoming traffic, where it was struck by Yeakel. Defendant Schrock's buggy did not contact any other vehicle in the accident. Schrock testified that he saw Bell approaching behind Benner and that Bell did not appear to be slowing before the impact. Benner stated that she had seen Bell's vehicle following some distance behind her but did not see his vehicle in her rear-view mirror just prior to impact.

Bell received a ticket for failing to reduce his speed and was arrested for driving under the influence. He later pleaded guilty in court. Charles Hess, a Moultrie County deputy sheriff, testified during his deposition that Bell's blood alcohol test showed a level of .25, well over the legal limit. Hess also testified that he saw no apparent reason for Bell not to be able to slow down and no apparent reason for him to collide with the rear end of a slow-moving vehicle.

Bell testified he was traveling about 40 miles per hour, as opposed to the 55-mile-per-hour speed limit, due to patches of ice on the road. He stated that as he approached the Benner and Schrock vehicles he saw only Benner's taillights. Bell testified he could see for three-eighths of a mile, normal visibility being one-half to three-fourths of a mile. Bell said he first saw the Benner vehicle about one-fourth of a mile away and thought it to be traveling at a normal speed. He then glanced in his rearview mirror and, when he returned his eyes to the road in front of him, the Benner vehicle was only 600 or 700 feet away. At this point he thought the vehicle was stopped but then quickly realized it was moving at a very slow speed. Bell said he applied his brakes to avoid colliding with Benner, but his truck hit a patch of ice and skidded into the rear of Benner's car. Bell stated that he had been traveling about 35 miles per hour and hit Benner at a speed of approximately 25 miles per hour.

Plaintiffs filed suit against Schrock, Bell, and Yeakel. Dale Cordt, the proprietor of the bar where Bell was drinking prior to the accident, is also a dramshop defendant. Yeakel's motion for summary judgment was granted. The claim against Bell was discharged in bankruptcy. The only remaining defendant involved in this appeal is Schrock, in whose favor the summary judgment was entered.

Plaintiffs allege that Schrock's failure to have operating taillights was a proximate cause of the collision because Bell was not properly alerted to the slow-moving vehicle situation and could not slow his vehicle in time to avoid collision with Benner. Defendant Schrock moved for summary judgment after the depositions of all relevant parties had been taken. Because there was an issue of fact as to his lights Schrock conceded, for purposes of his summary judgment motion, that his lights were not working at the time of the accident. He argued that the deposition testimony established that the time interval between Benner's slowing down to the speed of the buggy and Bell's coming upon the scene and striking Benner was long enough to eliminate any sudden decrease in speed of the Benner vehicle as a causative factor of the collision. Plaintiffs responded that if the buggy had been properly lit, Bell would have seen the lighted buggy in front of Benner and would have been better able to slow his vehicle down and avoid collision. On September 11, 1991, the trial court granted summary judgment to Schrock, finding the absence of lighting on Schrock's buggy was not a proximate cause of plaintiffs' injuries as a matter of law. This appeal followed.

In order to prevail in an action for negligence, the plaintiff must prove that the defendant owed a duty, that defendant breached that duty, and that defendant's breach was the proximate cause of injury to the plaintiff. (American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill.2d 14, 25, 171 Ill.Dec. 461, 466, 594 N.E.2d 313, 318.) A dismissal (Ill.Rev.Stat.1991, ch. 110, par. 2-615) or a summary judgment (Ill.Rev.Stat.1991, ch. 110, par. 2-1005) is the likely result where there is no duty; whether a duty exists in a particular case is a question of law to be determined by the court. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill.2d 507, 525, 111 Ill.Dec. 944, 952-53, 513 N.E.2d 387, 395-96; Ward v. K mart Corp. (1990), 136 Ill.2d 132, 140, 143 Ill.Dec. 288, 291, 554 N.E.2d 223, 226.) In determining the existence of a duty the "reasonable foreseeability" of injury is one important factor. Other considerations include the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant--questions of policy. Ward, 136 Ill.2d at 140-41, 143 Ill.Dec. at 291-92, 554 N.E.2d at 226-27; Rowe v. State Bank (1988), 125 Ill.2d 203, 227-28, 126 Ill.Dec. 519, 530-31, 531 N.E.2d 1358, 1369-70.

While the issue of duty is a question of law, the issues of breach of that duty and proximate cause are said to be questions of fact for the jury. (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill.2d 378, 393, 98 Ill.Dec. 1, 7, 493 N.E.2d 1022, 1028; American National, 149 Ill.2d at 29-30, 171 Ill.Dec. at 468, 594 N.E.2d at 320.) Courts have been criticized for sometimes defining duty very specifically, and affirming summary judgments on the basis of the absence of a duty of care, when the issue could more properly be considered one of breach of duty. (4 R. Michael, Illinois Practice § 40.5, at 285-86 (1989).) That criticism appears unfounded. The issues of duty, breach, and proximate cause are not completely separate. Foreseeability is a factor both in determining duty and in determining proximate cause. It is possible to deal with most of the questions which arise in a negligence case in terms of duty. (W. Keeton, Prosser & Keeton on Torts § 53, at 356 (5th ed. 1984).) Such an approach may in fact be helpful because it may direct attention to the policy issues which determine the extent of the original obligation, rather than to the mechanical sequence of events which goes to make up causation in fact. (W. Keeton, Prosser & Keeton on Torts § 42, at 274 (5th ed. 1984).) The same policy questions which must be addressed in determining duty must be addressed, although more narrowly, in determining proximate cause. Cause in...