Johnson v. Ill. State Toll Highway Auth.

• Docket Number: 1-21-0941,1-21-0958,1-21-0959,1-21-0961
• Decision Date: 08 February 2024
• Citation: 2024 IL App (1st) 210941 U
• Parties: MICHAEL JOHNSON, ROBERT ROSA, DON CORNING, LOIS CORNING, and KEVIN W. SCHMIDT, individually and as special administrator for the Estate of TERRI L. SCHMIDT, Plaintiffs, v. ILLINOIS STATE TOLL HIGHWAY AUTHORITY; EXP U.S. SERVICE, INC.; PLOTE CONSTRUCTION INC.; TRAFFIC CONTROL &PROTECTION, INC.; OMEGA & ASSOCIATES INCORPORATED; ALFRED BENESCH & COMPANY; V3 COMPANIES OF ILLINOIS LTD; BV3 JOINT VENTURE; AECOM TECHNICAL SERVICES, INC.; THE RODERICK GROUP INC., PC; HNTB CORP.; CHASTAIN & ASSOCIATES LLC; THOMAS ENGINEERING GROUP, LLC; CHASTAIN/THOMAS JV; KENNY CONSTRUCTION COMPANY; EDWARD KRAEMER &SONS, INC.; KENNY-KRAEMER JOINT VENTURE; ROADSAFE TRAFFIC SYSTEMS, INC.; TRAFFIC SERVICES, INC.; STV INCORPORATED; LORIG CONSTRUCTION COMPANY; STANLEY CONSULTANTS INC.; AARON NASH; AND LYONS LIMOUSINE LLC, Defendants, Michael Johnson and Robert Rosa, Plaintiffs-Appellants, v. Illinois State Toll Highway Authority; EXP U.S. Service, Inc.; Plote Construction Inc.; Traffic Control &Protection, Inc.; Omega &Associates Incorporated; Alfred Benesch &Company; V3 Companies of Illinois LTD; BV3 Joint Venture; Aecom Technical Services, Inc.; The Roderick Group Inc., PC; HNTB Corp.; Chastain &Associates LLC; Thomas Engineering Group, LLC; Chastain/Thomas JV; Kenny Construction Company; Edward Kraemer &Sons, Inc.; Kenny-Kraemer Joint Venture; Roadsafe Traffic Systems, Inc.; Traffic Services, Inc.; STV Incorporated; Lorig Construction Company; and Stanley Consultants, Inc. Defendants-Appellees).
• Court: Appellate Court of Illinois

1

2024 IL App (1st) 210941-U

MICHAEL JOHNSON, ROBERT ROSA, DON CORNING, LOIS CORNING, and KEVIN W. SCHMIDT, individually and as special administrator for the Estate of TERRI L. SCHMIDT, Plaintiffs, v. ILLINOIS STATE TOLL HIGHWAY AUTHORITY; EXP U.S. SERVICE, INC.; PLOTE CONSTRUCTION INC.; TRAFFIC CONTROL &PROTECTION, INC.; OMEGA & ASSOCIATES INCORPORATED; ALFRED BENESCH & COMPANY; V3 COMPANIES OF ILLINOIS LTD; BV3 JOINT VENTURE; AECOM TECHNICAL SERVICES, INC.; THE RODERICK GROUP INC., PC; HNTB CORP.; CHASTAIN & ASSOCIATES LLC; THOMAS ENGINEERING GROUP, LLC; CHASTAIN/THOMAS JV; KENNY CONSTRUCTION COMPANY; EDWARD KRAEMER &SONS, INC.; KENNY-KRAEMER JOINT VENTURE; ROADSAFE TRAFFIC SYSTEMS, INC.; TRAFFIC SERVICES, INC.; STV INCORPORATED; LORIG CONSTRUCTION COMPANY; STANLEY CONSULTANTS INC.; AARON NASH; AND LYONS LIMOUSINE LLC, Defendants, Michael Johnson and Robert Rosa, Plaintiffs-Appellants, v. Illinois State Toll Highway Authority; EXP U.S. Service, Inc.; Plote Construction Inc.; Traffic Control &Protection, Inc.; Omega &Associates Incorporated; Alfred Benesch &Company; V3 Companies of Illinois LTD; BV3 Joint Venture; Aecom Technical Services, Inc.; The Roderick Group Inc., PC; HNTB Corp.; Chastain &Associates LLC; Thomas Engineering Group, LLC; Chastain/Thomas JV; Kenny Construction Company; Edward Kraemer &Sons, Inc.; Kenny-Kraemer Joint Venture; Roadsafe Traffic Systems, Inc.; Traffic Services, Inc.; STV Incorporated; Lorig Construction Company; and Stanley Consultants, Inc. Defendants-Appellees).

Nos. 1-21-0941, 1-21-0958, 1-21-0959, 1-21-0961

Court of Appeals of Illinois, First District, Fourth Division

February 8, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County. 18L 008881 Honorable Rena Van Tine, Judge, Presiding.

JUSTICE MARTIN delivered the judgment of the court. Presiding Justice Rochford and Justice Hoffman concurred in the judgment.

ORDER

MARTIN, JUSTICE

¶ 1 Held: The trial court erred in granting summary judgment in favor of appellees on the issue of proximate cause. In addition, since the trial court never considered or ruled on the alternative issues appellees raised in their motions for summary judgment, we remand these issues to give counsels the opportunity to present their arguments so the trial court can then make its findings and enter its determination. Accordingly, we reverse the trial court's order granting summary judgment on the issue of proximate cause and remand for further proceedings consistent with this order.

¶ 2 This consolidated appeal stems from a single-vehicle accident involving a limousine that crashed into an impact attenuator and overturned onto its roof.^[1] The accident occurred on Interstate 90 (I-90) in Kane County after the vehicle failed to shift lanes and drove into an active construction and renovation project. Plaintiffs Michael Johnson, Robert Rosa, Don Corning, Lois Corning, Kevin W Schmidt, and Terri L. Schmidt were passengers in the limousine, which was driven by codefendant Aaron Nash (Nash). All were injured, and Terri L. Schmidt was killed.

¶ 3 The trial court entered summary judgment in favor of appellees based upon its finding that Nash's negligent driving was the sole proximate cause of the accident. For the reasons that follow, we reverse and remand for further proceedings.^[2]

¶ 4 I. BACKGROUND

¶ 5 A. Roadway Reconstruction Project

¶ 6 In 2015, construction work commenced on a stretch of the Jane Addams Memorial Tollway (I-90). The construction project was divided into construction corridors and each corridor was subdivided into sections, one of which was section 4104 where the accident occurred.

¶ 7 Pursuant to the Original Maintenance of Traffic Plan (MOT) eastbound traffic through section 4104 followed a lane split configuration where the far left lane was designated an express lane that continued straight, while the center and right lanes shifted to the right. The original MOT also called for the erection of a temporary continuous curved concrete barrier leading to the lane shift.

¶ 8 In 2016, the configuration of section 4104 was changed to the one in place at the time of the accident. The left express lane was eliminated, and all three lanes shifted right. In addition, the decision was made not to erect the temporary continuous curved concrete barrier at the beginning of the lane shift, but instead leave a gap between the median and lane shift and install an impact attenuator at the end of the existing barrier, exposing oncoming eastbound traffic to the blunt end of the impact attenuator. These revisions to the original MOT are at the heart of appellants' claims. See Johnson v. Nash, 2019 IL App (1st) 180840, ¶ 12.

¶ 9 B. The Accident

¶ 10 In the early morning hours of March 25, 2016, Nash was driving the plaintiffs from Madison, Wisconsin to O'Hare International Airport in Chicago, Illinois. Nash was proceeding in the left-hand lane, eastbound on I-90, at or near milepost 55.8 in the city of Elgin, Kane County, when he missed a lane shift to the right and drove into the active highway construction zone. The limousine struck an orange construction barrel and then the impact attenuator, causing the vehicle to overturn onto its roof. Nash, 2019 IL App (1st) 180840, ¶¶ 1, 5-6. Terri L. Schmidt was killed in the accident and Robert Rosa was rendered a paraplegic. The remaining passengers and Nash suffered injuries.^[3]

¶ 11 C. The Complaints and Court Proceedings

¶ 12 Plaintiffs filed amended complaints asserting two theories of negligence. The first was predicated on the alleged omission of warning signs preceding the roadway curve; the second was based on the alleged omission of proper roadway barriers.

¶ 13 Plaintiffs alleged that the removal of lane shift warning signs-in advance of the roadway curve-mandated by the federal Manual on Uniform Traffic Control Devices (MUTCD), as well as the proj ect contract, caused Nash to miss the lane shift. Plaintiffs further alleged that the accident could have been avoided if appellees had followed the original MOT. Plaintiffs alleged that the placement of the impact attenuator at the end of the far left lane of eastbound traffic just prior to lane shift, rather than a curved concrete barrier, was one of the proximate causes of the accident.

¶ 14 The amended complaints made allegations of negligence common to all appellees. The allegations asserted that appellees: failed "to provide adequate barriers to deflect oncoming traffic at or near the area of Mile Post 55.8;" allowed "a traffic configuration or pattern at or near the area of Mile Post 55.8 to exist that was unreasonably dangerous;" failed "to place temporary traffic control in advance of the lane shift at or near the area of Mile Post 55.8;" and allowed "the removal of temporary traffic control that warned motorists of the lane shift at or near the area of Mile Post 55.8."

¶ 15 Additional allegations of negligence were made against the appellees who were contracted to design, evaluate, and approve plans for the reconstruction project^[4]: "[d]esigned, reviewed and/or approved traffic plans for project 4104 that were dangerous and unsafe;" "[d]esigned, reviewed and/or approved traffic plans for project 4104 which had an impact attenuator and an area of ingress/egress instead of temporary concrete barrier intersecting or tapering with the median barrier wall;" failed "to do an analytical evaluation for the placement of the impact attenuator;" failed "to do a Barrier Warrant Analysis for the placement of the impact attenuator;" and failed "to provide adequate barriers to deflect oncoming traffic at or near the area of Mile Post 55.8."

¶ 16 Appellees filed separate motions for summary judgment based on various grounds, including lack of duty and proximate cause. Regarding proximate cause, appellees argued that Nash's reckless driving was an intervening and superseding cause of the crash, which broke any causal connection between their alleged negligence and the accident. Appellees pointed out that not only was Nash recklessly speeding, with the sun in his eyes, at the time of the crash, but Nash did not possess a commercial driver's license (CDL) to operate a limousine in Illinois. Plaintiffs, in turn, filed a joint response arguing that appellees' acts and omissions were a concurrent proximate cause of the accident, and appellees filed a joint reply.

¶ 17 On June 25, 2021, the trial court scheduled a hearing on appellees' motions for summary judgment, limited to the issue of proximate cause. Following the July 14, 2021 hearing, the trial court granted summary judgment to all appellees, finding that Nash's negligence was the sole proximate cause of the accident. The court stated in part:

"So as I said, it's undisputed that Nash was a cause of the accident. Was it reasonably foreseeable to his co-defendants that he was underage to be driving a limousine? Was it reasonably foreseeable that he was not properly qualified to do so, that he was not old enough to legally obtain a CDL, and that he was not familiar with the basic principal that he had to slow down when the sun was in his eyes?

So all this together with going more than the designated 45 miles per hour in the construction zone while he was tired despite being warned by Mr. Corning that he was going way too fast, he also ignored the visual cues to change lanes. So was it reasonably foreseeable to the defendants that this kid driving the limo would fail to slow down despite his passenger requesting him to do so?

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There is a continuum here, and it is more - there's no case that has exactly the same fact pattern, but I think I find that it is in the part

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