Hutchings v. Bauer

• Decision Date: 30 July 1992
• Docket Number: No. 71963,71963
• Citation: 599 N.E.2d 934,174 Ill.Dec. 850,149 Ill.2d 568
• Parties: , 174 Ill.Dec. 850 Michael HUTCHINGS, Appellee, v. Eugene BAUER et al., Appellants.
• Court: Illinois Supreme Court

Page 934

599 N.E.2d 934

149 Ill.2d 568, 174 Ill.Dec. 850

Michael HUTCHINGS, Appellee, v. Eugene BAUER et al., Appellants.

No. 71963.

Supreme Court of Illinois.

July 30, 1992.

Rehearing Denied Oct. 5, 1992.

Michael Resis, Ellen Martin and Glen E. Amundsen, Querrey & Harrow, Ltd., Chicago, for appellants.

Robert H. Hanaford, Chicago, for amicus curiae Illinois Trial Lawyers Assoc.

Rudolph F. Magna, Magna and Hauser, Gurnee, for appellee.

Justice HEIPLE delivered the opinion of the court:

Defendants, Eugene and Elizabeth Bauer, operated a horse training business located on an 80-acre farm in Wauconda Township, Lake County, along Callahan Road. In order to allow grazing, the pasture had fencing around the perimeter. Immediately outside the fencing was a training lane which was utilized almost every day. Defendants were aware of the fact that, over the years, numerous vehicles had left the travelled way while driving around the curve on Callahan Road and crashed through their fence. Accordingly, they asked the township to install a guardrail to protect themselves, their fence and the horses on their property. However, the township declined. Thus, the defendants constructed their own barrier which consisted of vertical posts with horizontal posts or logs running between the uprights. After constructing this barrier, defendants notified the Lake County highway department by letter that they had built a "barricade of large posts" on their property to stop drivers who failed to make the curve.

On May 30, 1986, the plaintiff, Michael Hutchings, and several of his friends were driving their motorcycles along Callahan Road. The speed limit for this area was 35 miles per hour, but the "advisory" speed limit as posted for the curve they were entering was 25 miles per hour. In order to warn motorists of the curve, several signs were posted along the road, including: chevron signs, a sign indicating an upcoming bend in the road, and the advisory speed limit sign of 25 miles per hour. Plaintiff was negotiating the curve at a speed which he estimated to be 35 to 37 miles per hour when he hit some loose gravel, slid across the gravel shoulder for 10 or 15 feet, and then went onto the grass to the right of the shoulder where he travelled some 50 to 100 yards. Then, still upright and traveling on the grassy area at a speed between 15 and 20 miles per hour, plaintiff felt that he was still going too fast to safely turn back onto the road. Instead of either slowing or stopping, he decided to drive between two of the defendants' vertical posts. As plaintiff attempted to pass through the posts at a speed of about 15 miles per hour, he hit a horizontal log or post which ran between the vertical posts. Plaintiff was unable to see the log due to the grass which had grown up around it. As a result of striking the barrier, plaintiff sustained severe and permanent injuries.

Plaintiff, in a two-count complaint, alleged negligence and willful and wanton conduct on the part of defendants in constructing the barrier. Defendants moved for summary judgment arguing that they did not owe a duty to plaintiff. The trial court granted summary judgment to defendants. On appeal, the appellate court reversed the trial court, concluding that "it was reasonably foreseeable to defendants under the present facts that plaintiff would deviate from the road as he did in the normal incident of travel." (212 Ill.App.3d 172, 179, 156 Ill.Dec. 582, 571 N.E.2d 169.) The issue in this case, however, is not foreseeability. The issue is duty. In other words, whether defendants, by erecting the barrier, breached a duty which they owed to plaintiff. We conclude that no duty was breached. Accordingly, we reverse the appellate court and reinstate the judgment of the trial court.

As this court noted in Lamkin v. Towner (1990), 138 Ill.2d 510, 522-23, 150 Ill.Dec. 562, 563 N.E.2d 449, while the foreseeability of an injury is an important factor in determining whether a duty exists, the existence of a legal duty is not to be bottomed on the factor of foreseeability alone. Instead, we must balance the foreseeability of the harm against the burdens and consequences that would result from the recognition of a duty. (See also Cunis v. Brennan (1974), 56 Ill.2d 372, 375, 308 N.E.2d 617.) Similarly, both this court and the appellate court have considered other artificial conditions which were placed near roadways which, although foreseeable, did not give rise to a duty on the part of the landowner. (See Gouge v. Central Illinois Public Service Co. (1991), 144 Ill.2d 535, 163 Ill.Dec. 842, 582 N.E.2d 108 (utility pole approximately 15 feet from the paved surface); Battisfore v. Moraites (1989), 186 Ill.App.3d 180, 133 Ill.Dec. 938, 541 N.E.2d 1376 (cement pillar two feet from roadway); Hoffman v. Vernon Township (1981), 97 Ill.App.3d 721, 53 Ill.Dec. 135, 423 N.E.2d 519 (utility pole placed 12 to 16 feet from roadway); West v. Faurbo (1978), 66 Ill.App.3d 815, 23 Ill.Dec. 663, 384 N.E.2d 457 (concrete block four or five feet off public sidewalk).) If foreseeability, standing alone, were sufficient to give rise to a duty, a landowner would be exposed to liability in every case, since the mere fact of injury means that the accident was foreseeable. In retrospect, everything is foreseeable.

Defendants had a right to operate their horse training farm and to take reasonable precautions to protect themselves, their fencing and their horses from incursions of motor vehicles over and across their land. The defendants were under no duty to dedicate and donate their land to the public without compensation for use as a travelled way. To hold otherwise would constitute a denial of substantive due process under our Federal and State Constitutions (U.S. Const., amend. V; Ill. Const.1970, art. I, § 2).

It is also to be noted that the barrier which the defendants constructed was a reasonable barrier. It was not designed to cause injury or harm. It was not a pit or a trap. Except for the bottom horizontal log which was obscured by tall grass, it was quite visible. It was intended solely to stop the movement of vehicles across the defendants' property for the protection of the defendants. It was not dangerous, save in the sense that it was a barrier. Needless to say, when a moving vehicle strikes any immovable or fixed object with sufficient force, some damage or injury from the collision would be expected, the extent of damage depending on a variety of factors including speed.

It is also to be noted that the plaintiff chose to drive his motorcycle around the curve at a speed 10 to 12 miles above the "advisory" speed limit posted for the curve. Then, after sliding off the travelled way and driving for some 50 to 100 yards on the grassy area, he chose to drive his bike between the defendants' posts rather than to slow or stop his bike before returning to the travelled way. As already noted, the defendants had a right to construct the barrier. The plaintiff had no right to drive across the defendants' land.

Accordingly, we reverse the decision of the appellate court and reinstate the judgment of the trial court.

Appellate court reversed; circuit court affirmed.

Justice FREEMAN, specially concurring:

I agree with the conclusion reached in this case. I write separately to address what I believe are valid concerns raised in the dissent regarding the analysis used in reaching that conclusion. Additionally, I think it important to address the unreasonable burden which would be placed upon owners of land adjacent to a highway if the duty owed to travelers deviating therefrom was extended to include the type of deviation and condition encountered here.

Foreseeability of the harm resulting from an action, as the dissent correctly notes, is one of the factors to be weighed in determining, as here, the scope of an existing duty owed or the existence of a duty based on a new relationship. (See M. Polelle & B. Ottley, Illinois Tort Law 396 (1985).) Although none of the factors is independently determinative of duty, the factor of foreseeability is most frequently cited in determining the issue. (See M. Polelle & B. Ottley, Illinois Tort Law 397 (1985).) That is so because, as the dissent also correctly notes, existence of a legal duty is "inextricably linked" to the issue of foreseeability of the harm caused. More accurately, however, duty is understood properly to be but a term used to state a conclusion as to whether a defendant should be held responsible for the consequences of his own negligent acts. W. Keeton, Prosser & Keeton on Torts § 43, at 281 (5th ed. 1984).

As it relates to duty, foreseeability, in both the abstract and in application to a particular set of facts, remains a troublesome concept. (See W. Keeton, Prosser & Keeton on Torts § 43, at 281 (5th ed. 1984); Zimmermann v. Netemeyer (1984), 122 Ill.App.3d 1042, 78 Ill.Dec. 383, 462 N.E.2d 502.) In hindsight, everything is foreseeable. (Lance v. Senior (1967), 36 Ill.2d 516, 224 N.E.2d 231.) For that reason, the question of foreseeability is best answered when approached as a matter of fundamental policy in the law. (See W. Keeton, Prosser & Keeton on Torts § 43, at 281 (5th ed. 1984).) The question then becomes whether such policy is fostered by holding the owner of land adjacent to a public highway responsible for injury to a traveller deviating therefrom where the injury is caused by a structure on the land intended to prevent such deviation and so to promote use and enjoyment of the property.

Section 368 of the Restatement (Second) of Torts aids in that analysis, returning us to concerns of foreseeability. Section 368 provides that an adjacent property owner should be so responsible when the deviation is foreseeable in the ordinary course of travel. (Restatement (Second) of Torts § 368 (1965).) Official comments e and h of section 368 indicate that the concern is twofold. Courts should examine whether the...