Milz v. M.J. Meadows, Inc.

• Decision Date: 27 August 1992
• Docket Number: No. 1-91-1517,1-91-1517
• Citation: 175 Ill.Dec. 276,234 Ill.App.3d 281,599 N.E.2d 1290
• Parties: , 175 Ill.Dec. 276 Douglas MILZ, Plaintiff-Appellant, v. M.J. MEADOWS, INC., an Illinois Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1290

599 N.E.2d 1290

234 Ill.App.3d 281, 175 Ill.Dec. 276

Douglas MILZ, Plaintiff-Appellant, v. M.J. MEADOWS, INC., an Illinois Corporation, Defendant-Appellee.

No. 1-91-1517.

Appellate Court of Illinois First District, Fourth Division.

Aug. 27, 1992.

James E. Pancratz, Chicago, for plaintiff-appellant.

Robert Marc Chemers, Robert J. Franco and Andrew G. Witik, Pretzel & Stouffer, Chartered, Chicago, for defendant-appellee.

Justice McMORROW delivered the opinion of the court:

This is an appeal from the dismissal of count III of plaintiff's second amended complaint seeking recovery for personal injuries and property damages. On appeal, plaintiff contends that the trial court erred in finding that defendant owed no duty to plaintiff, and that defendant's motion to dismiss under section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-619) (the Code) was procedurally improper.

On November 29, 1989, plaintiff, Douglas Milz, brought suit against defendant, M.J. Meadows, Inc., and codefendants PNP Landscaping, Inc. (PNP) and PNP's president, Matthew Pecora, for injuries plaintiff sustained when the motorcycle he was driving collided with a parked, flatbed construction trailer at approximately 11 p.m. on August 11, 1989, in the Village of Arlington Heights (the Village).

Count III of plaintiff's complaint alleged that defendant owned, controlled and maintained two residential lots on the 300 block of North Douglas Avenue on which defendant was constructing single family houses; that sometime prior to the date of the collision, defendant contracted with PNP to provide grading and landscaping services on the lots; that as part of the construction project a utility trailer was parked by defendant and PNP facing south along the east side of Douglas Avenue at or near one of defendant's lots; and that plaintiff was injured when his northbound motorcycle collided with the front of the trailer.

Plaintiff further alleged that defendant owed him a legal duty to exercise due care in the operation, control, maintenance and use of construction vehicles on or about the construction site and to not obstruct traffic on public ways with such vehicles. The complaint alleged that defendant breached its duty to plaintiff by carelessly and negligently: controlling and supervising the use of the trailer; failing to adequately supervise the use and placement of construction vehicles on or near the construction site; allowing the trailer to be illegally parked by facing the wrong direction; and allowing on or near the construction site the use of construction vehicles which were unsafe and not equipped with devices designed to warn motorists. Plaintiff alleged that these acts and omissions were the proximate cause of his injuries and damages.

On March 22, 1990, defendant filed an answer in which it admitted ownership of the lots, that it had hired PNP to perform grading work, and that the trailer was parked in front of or near its lot at 309 North Douglas. Defendant denied, however, that it owed a duty to plaintiff with respect to the matters alleged in the complaint, and also denied that it controlled or used the trailer involved in the collision. Defendant also asserted that plaintiff had failed to exercise reasonable care for his own safety by failing to drive in a cautionary manner, to maintain a proper lookout and to otherwise protect himself from dangers on the roadway.

On December 7, 1990, defendant filed a motion to dismiss plaintiff's complaint pursuant to section 2-619 of the Code on the ground that it owed no duty to plaintiff in connection with the accident. In a memorandum attached to the motion, defendant stated, inter alia, the following: that the trailer involved in the collision was owned by PNP; that prior to the date of the accident defendant had hired PNP to perform excavating, grading and garbage removal on certain of defendant's lots in the subdivision; and that at no time did defendant supervise PNP in its work, nor did defendant ever maintain control over the placement of PNP's vehicles.

Also attached to the motion to dismiss was the affidavit of defendant's president, Martin Meadow. Meadow averred that he was required by law to be, and was, licensed as a general contractor; that on August 11, 1989, a home was under construction at defendant's lot at 309 North Douglas Avenue; that on the date of the accident, the work performed by PNP for defendant was the removal of trash from lot 3 on Hickory Avenue; and that PNP used its own equipment, and at no time did defendant possess or control the trailer, or supervise PNP's work, nor did defendant authorize, supervise or control the placement of the trailer by PNP or any of its employees.

In support of dismissal, defendant argued that it owed no duty to plaintiff to keep public streets clear of property not owned, possessed or controlled by it, and that general contractors are not liable for the acts of a subcontractor when the general contractor does not control the details of the subcontractor's work. Defendant asserted that because plaintiff failed to allege any facts to support his conclusion that defendant owed him a legal duty, the complaint was deficient as a matter of law.

In response, plaintiff argued that the motion to dismiss did not raise affirmative matters as required by section 2-619(9)(a) of the code, but merely attacked the sufficiency of the complaint. plaintiff asserted that the motion was, therefore, actually a motion pursuant to section 2-615 of the Code; and that because section 2-615 does not allow inclusion of supporting affidavits, the court should strike Meadow's affidavit and deny the motion to dismiss for lack of any affirmative matter defeating plaintiff's claim.

Attached to plaintiff's response were excerpts from the depositions of Meadow and Pecora, and defendant's application for a contractor's license from the Village. Plaintiff asserted that a duty was imposed upon defendant by the Village ordinance which required all contractors to keep the site of construction activities free of unguarded, dangerous implements, and prohibited contractors from obstructing traffic on public walks and streets. Plaintiff maintained that by applying for a license as a general contractor, defendant accepted the duty of conforming to the Village code, which was enacted for the public safety, and that, at the very least, there was a question of fact as to whether defendant breached that duty by allowing the trailer to be improperly parked on Douglas Avenue. Plaintiff further argued that as the owner of lot 6, defendant owed plaintiff a duty to keep the street abutting its property free from vehicles and conditions which could create a hazard to motorists such as plaintiff. Plaintiff also asserted that Meadow admitted having made inspections of the construction project at least once a week, and, by undertaking such inspections, he acknowledged the obligation of defendant to comply with the Village ordinances and assumed a duty to exercise reasonable care in conducting inspections.

Defendant filed a reply disputing plaintiff's arguments. Following a hearing, the transcript of which is not contained in the record, the trial court granted defendant's motion to dismiss with prejudice. This appeal followed.

We first consider plaintiff's contention that defendant's motion to dismiss pursuant to section 2-619 was improper because it did not raise affirmative matters but merely attacked the factual sufficiency of count III of the complaint. The purpose of section 2-619 is primarily that of affording a means to obtain summary disposition of issues of law or easily proven issues of fact at the outset of a case. (Ill.Ann.Stat., ch. 110, par. 2-619, Historical & Practice Notes, at 662 (Smith-Hurd 1983).) Subparagraph (a)(9) provides for the raising of affirmative matter which avoids or defeats a claim or cause of action. (Ill.Rev.Stat.1989, ch. 110, par. 2-619(a)(9).) "Affirmative matter" must be more than an assertion that the complaint fails to plead sufficient facts to state a cause of action, or evidence offered to refute a well-pleaded fact. However, Illinois case law holds that "affirmative matter" may be "something in the nature of a defense that negates the cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint." Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill.App.3d 127, 134-35, 94 Ill.Dec. 624, 629, 488 N.E.2d 623, 628.

It is fundamental that a complaint for negligence must set out the existence of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the defendant's breach of duty. (Cunis v. Brennan (1974), 56 Ill.2d 372, 308 N.E.2d 617.) Whether a duty exists is a question of law to be determined by the court (Perkaus, 140 Ill.App.3d at 132, 94 Ill.Dec. 624, 488 N.E.2d 623); and the nonexistence of a duty may be the basis for a section 2-619 motion to dismiss (Johnson v. Hilton Hotel Corp. (1989), 190 Ill.App.3d 197, 137 Ill.Dec. 672, 546 N.E.2d 617; Perkaus v. Chicago Catholic High School Athletic League, 140 Ill.App.3d 127, 94 Ill.Dec. 624, 488 N.E.2d 623; Cross v. Moehring (1989), 188 Ill.App.3d 830, 136 Ill.Dec. 484, 544 N.E.2d 1259).

In the instant case, plaintiff alleges that defendant owed him both a statutory and common law duty stemming from defendant's alleged control and supervision of the use and placement of the trailer with which plaintiff collided. Defendant's motion and accompanying affidavit averred that defendant did not own the trailer, nor did it maintain, supervise or otherwise control the use of it or the placement of it upon the public roadway where the collision occurred, and consequently defendant owed no duty to plaintiff. Since the absence of a duty wholly...