Thompson v. Gordon
| Decision Date | 03 February 2010 |
| Docket Number | No. 2-07-0667.,2-07-0667. |
| Citation | 923 N.E.2d 808 |
| Parties | Corinne THOMPSON, Indiv. and as Independent Administrator of the Estate of Trevor Thompson, Deceased, and as Independent Administrator of the Estate of Amber Thompson, Deceased, Plaintiff-Appellant, v. Christie GORDON; Grand Avenue Properties, Inc.; Gurnee Mills (MLP) Limited Partnership, f/k/a Gurnee Mills Limited Partnership; Gurnee Properties Associated Limited Partnership; Western Development Corporation; The Mills Corporation; The Mills Limited Partnership; Gurnee Mills II LLC; and Gurnee Mills LLC, Defendants (Jack E. Leisch and Associates, Inc.; and CH2M Hill, Inc., Defendants-Appellees). |
| Court | United States Appellate Court of Illinois |
COPYRIGHT MATERIAL OMITTED
David G. Pribyl, Salvi, Schostoc & Pritchard, P.C., Waukegan, for appellant.
Steven L. Larson, John A. Terselic, Linda E. Spring, Swanson, Martin & Bell, LLP, Libertyville, for appellee.
Modified Upon Denial of Rehearing
1
Plaintiff, Corinne Thompson, both individually and as administrator of the estates of her husband, Trevor Thompson, and their daughter, Amber Thompson, appeals the trial court's order granting summary judgment on her claims against defendants, Jack E. Leisch and Associates, Inc., and CH2M Hill, Inc., the engineering companies that designed the bridge and traffic interchange in the area where Trevor and Amber were killed in a motor vehicle accident.2 For the reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.
In January 1991, defendants entered into a contract with WDC to design a roadway interchange and a replacement for a bridge deck in connection with a larger project WDC was overseeing, to construct a new shopping mall. In a contract attachment describing the scope of defendants' services for "Phase I, Stage A I-94/Grand Avenue interchange improvements," the contract stated that defendants would provide WDC the following services:
Defendants' contract also contained a provision stating that "the standard of care for defendants' services will be the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services."
Defendants proposed structural designs for the bridge deck replacement on the Grand Avenue bridge with a median that was four feet wide and approximately seven inches tall. (The median had been four feet wide and approximately six inches tall.) Defendants completed their designs in April 1991, and the Illinois Department of Transportation (Department) approved of defendants' proposed designs before it issued a permit to allow construction work to begin.
In November 1998, a vehicle traveling east on Grand Avenue lost control, hit the median separating eastbound and westbound traffic, vaulted into the air, and hit the westbound vehicle in which Trevor and Amber were traveling. After Trevor and Amber died as a result of the accident, plaintiff brought suit against defendants for what she alleged was defendants' negligence in designing the bridge deck without considering or designing a median barrier that would have prevented the eastbound vehicle from becoming airborne and causing the accident.
During discovery, plaintiff submitted an affidavit from Andrew Ramisch, a civil engineer who had reviewed the litigation materials and determined that application of "the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services" as laid out in defendants' contract dictated that defendants consider, submit, and design a median barrier to prevent the type of accident that underlies this case.3 Ramisch also expressed his opinion that "the standard of care * * * as it pertained to an assessment for the need of a median barrier for crossover protection was the same whether the design drawings were for a repair or replacement of the bridge deck." Ramisch opined that defendants "failed to properly consider and analyze all of the available data provided by their consultants * * * pertaining to traffic capacities, weave lane failures and decreases in operational service at the interchange" that would result from WDC's overall project. Ramisch said WDC had information that the project would increase traffic by 200% and "create a burden on the interchange." According to Ramisch, if the design work on the bridge deck had been performed within the standard of care, "more probably than not" a barrier would have been designed that would have prevented the accident, and defendants "were aware, or should have been aware, of the vaulting characteristic of the existing median" and "should have been on notice that the proposed work was dangerous and likely to cause injury."
Following a hearing, the trial court granted defendant's motion for summary judgment on the ground that the contract, which controlled defendants' duties, "did not call for an assessment of the sufficiency of the median barrier" and "did not require the defendants to modify or redesign the road surface or the raised median," but instead indicated that "the road surface was to be removed and replaced by others without modification of the existing design." The trial court discounted Ramisch's opinion that the standard of care required consideration of a median barrier, because, according to the trial court, the duties actually laid out in the contract, performed with the requisite care, did not include the study or design of a median barrier. The trial court entered an order making its decision immediately appealable pursuant to Rule 304(a) (210 Ill.2d R. 304(a)), and plaintiff timely appealed.
On appeal, plaintiff challenges the propriety of the trial court's decision to grant summary judgment to defendants. Summary judgment is proper when the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2006). Summary judgment is a drastic means of resolving litigation and should be allowed only when the moving party's right to judgment is clear and free from doubt. Jackson v. TLC Associates, Inc., 185 Ill.2d 418, 424, 235 Ill.Dec. 905, 706 N.E.2d 460 (1998). Thus, in adjudicating a summary judgment motion, a trial court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Jackson, 185 Ill.2d at 423-24, 235 Ill.Dec. 905, 706 N.E.2d 460. Whether summary judgment is proper in a given case is a question of law, to be reviewed de novo. Founders Insurance Co. v. Munoz, 389 Ill.App.3d 744, 748-49, 329 Ill.Dec. 64, 905 N.E.2d 902 (2009).
Illinois law is well settled that, to succeed on an action for negligence, the plaintiff must establish that the defendant had a duty to conform to a certain standard of conduct, the defendant failed to meet that standard, and the defendant's failure was a proximate cause of the plaintiff's injuries. Ferentchak v. Village of Frankfort, 105 Ill.2d 474, 480, 86 Ill.Dec. 443, 475 N.E.2d 822 (1985).
The parties' primary dispute centers on whether defendants breached a duty by failing to consider or design an improved median barrier. Whether a duty exists is normally a question of law, and "the answer hinges on whether the parties stood in such a relationship to each other that the law would impose an obligation on the defendant to act reasonably for the protection of the plaintiff." Raffen v. International Contractors, Inc., 349 Ill.App.3d 229, 233, 284 Ill.Dec. 934, 811 N.E.2d 229 (2004). When a defendant is accused of negligence due to its failure to perform an act allegedly required by a contractual obligation, the existence of a duty will be determined by the terms of the contract, and the scope of the defendant's duty will not be extended beyond those terms. Gilley v. Kiddel, 372 Ill.App.3d 271, 275, 309 Ill.Dec. 899, 865 N.E.2d 262 (2007). Therefore, in order to determine whether and to what extent defendants owed plaintiff a duty in this case, we must interpret defendants' contractual obligations.
For a court interpreting a contract, the primary objective is to give effect to the intent of the parties. Gallagher v. Lenart, 226 Ill.2d 208, 232, 314 Ill.Dec. 133, 874 N.E.2d 43 (2007). The best indication of the parties' intent is the contract's language, given its plain and ordinary meaning. Gallagher, 226 Ill.2d at 233, 314 Ill.Dec. 133, 874 N.E.2d 43. Because words derive part of their meaning from the context in which they are used, a court construing a contract must look at the contract as a whole, by viewing each part of the contract in light of the others. Gallagher, 226 Ill.2d at 233, 314 Ill.Dec. 133, 874 N.E.2d 43. If the language of a contract is unambiguous, then the court must derive the parties' intent from the writing itself, without resort to matters extrinsic to the contract. Paul B. Episcope, Ltd. v. Law Offices...
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