Winters v. Wangler

• Decision Date: 26 November 2008
• Docket Number: No. 4-07-1044.,4-07-1044.
• Citation: Winters v. Wangler, 898 N.E.2d 776, 386 Ill. App. 3d 788, 325 Ill.Dec. 729 (Ill. App. 2008)
• Parties: Deborah K. WINTERS, Administratrix of the Estate of Kenneth L. Keller, Plaintiff-Appellant, v. Roger WANGLER, Defendant-Appellee, and Roger D. Snider and Jeane Wangler, Defendants.
• Court: United States Appellate Court of Illinois

898 N.E.2d 776

Deborah K. WINTERS, Administratrix of the Estate of Kenneth L. Keller, Plaintiff-Appellant, v.Roger WANGLER, Defendant-Appellee, and Roger D. Snider and Jeane Wangler, Defendants.

No. 4-07-1044.

Appellate Court of Illinois, Fourth District.

November 26, 2008.

Justice STEIGMANNdelivered the opinion of the court:

In July 2006, plaintiff, Deborah K. Winters, administratrix of the estate of Kenneth L. Keller, filed a complaint alleging that defendantsRoger D. Snider, Roger Wangler, and Jeane Wangler negligently caused an accident that resulted in Keller's death.In August 2006, Roger Wangler(hereinafter Wangler) filed a motion to dismiss under section 2-619(a)(4) of the Code of Civil Procedure(Civil Code)(735 ILCS 5/2-619(a)(4)(West 2004)), arguing that because the trial court had previously granted Snider's motion to strike a portion of Winters' initial complaint, Winters was "precluded from re-litigating" the same issues against him.In August 2007, the trial court granted Wangler's motion, reaffirming its earlier ruling against Snider that section 15-102 of the Illinois Vehicle Code(Vehicle Code)(625 ILCS 5/15-102(West 2004)) did not apply to this case and finding that Winters failed to state a cause of action based on an in-concert liability theory.

Winters appeals, arguing that the trial court erred by (1) granting Wangler's motion to dismiss and (2) ruling that section 15-102 of the Vehicle Code did not apply.We reverse and remand for further proceedings.

I.BACKGROUND

In April 2005, Winters filed a complaint, alleging, in part, that in May 2004, Snider (1) negligently caused an accident that resulted in Keller's death and (2) operated a tractor and planter on a highway after sunset in violation of section 15-102 of the Vehicle Code(625 ILCS 5/15-102(West 2004)).In June 2005, Snider filed a motion to strike the portion of Winters' complaint alleging that he operated the tractor and planter in violation of section 15-102.The trial court later granted Snider's motion upon determining that section 15-102 of the Vehicle Code did not apply because Snider's tractor and planter were exempt under section 15-101 of the Vehicle Code(625 ILCS 5/15-101(West 2004)).

In July 2006, Winters filed a second amended complaint, alleging that in May 2004(1) Snider negligently caused an accident that resulted in Keller's death (count I) and (2) Roger and Jeane Wangler, while engaged in a "joint enterprise" with Snider, negligently drove escort vehicles that contributed to Keller's death (counts II and III, respectively).

Winters included the following factual allegations in her second amended complaint: (1) Keller died as a result of an automobile accident involving all three defendants, who were transporting farm equipment from one farm to another; (2) Snider employed Wangler; (3) on May 9, 2004, at 9:05 p.m., Snider drove his farm tractor while pulling an approximately 22-foot-wide planter across a 24-foot-wide bridge; (4) at Snider's request, Wangler drove Snider's truck as a "[l]ead [e]scort"; (5) Keller's vehicle collided with the planter and farm tractor; and (6) Wangler did not (a) have the proper signage required for a lead vehicle, which negated his ability to warn oncoming traffic that a wide load or oversized transport followed, (b) have adequate lighting on his vehicle, (c) prevent the fatal collision, (d) communicate "accurately" with Snider or the rear escort vehicle, (e) advise Snider to cross the bridge only after the stoplight on the bridge had stopped all oncoming traffic, and (f) maintain the proper distance between his vehicle and the tractor.

In August 2006, Wangler filed a motion to dismiss under section 2-619(a)(4) of the Civil Code(735 ILCS 5/2-619 (a)(4)(West 2004)), arguing that because the trial court had previously granted Snider's motion to strike the portion of Winters' initial April 2005 complaint that alleged Snider operated a farm tractor and planter on a highway after sunset, in violation of section 15-102 of the Vehicle Code, she was "precluded from relitigating" the same issue against him.In August 2007, the court granted Wangler's motion, (1) reaffirming that section 15-102 of the Vehicle Code did not apply and (2) finding that "there was no duty alleged by [Winters] against [Wangler]."

In September 2007, Winters filed a motion to reconsider.In October 2007, Wangler filed a memorandum of law in response to Winters' motion to reconsider, in which he stated the following:

"During the * * * argument on the [m]otion for [r]econsideration, [Winters] argued the facts and read from portions of the deposition of * * * Wangler taken in this case.By doing so, apparently [Winters] sought to prove to the [c]ourt that * * * Wangler provided `substantial assistance' to * * * Snider and therefore was liable to [Winters] based on `in-concert liability.'However, this [m]otion to [d]ismiss is based on the [c]omplaint on file, not on depositions.For that reason, [Wangler] objected to this argument.

* * *

For purposes of the pending motion, the facts before the [c]ourt are found in the pleadings.It is inappropriate to argue facts outside the pleadings.As argued by [Wangler], the [c]omplaint against [him] does not state a cause of action."

However, in the same memorandum, Wangler argued the following facts—not included in the pleadings—to demonstrate that the circumstances of this case did not support Winters' in-concert liability theory:

"The proximate cause of * * * Keller's death is * * * Keller's * * * failure to observe the oncoming traffic, * * * fail[ure] to take precautions for his own safety, * * * failure to keep his own vehicle under control, and * * * failure to observe any of the warning signs that a reasonably careful person would observe."

In November 2007, the trial court denied Winters' motion to reconsider.(Snider and Jeane Wangler are not parties to this appeal.)

This appeal followed.

II.WINTERS' CLAIM THAT THE TRIAL COURT ERRED BY GRANTING WANGLER'S MOTION TO DISMISS

Winters argues that the trial court erred by granting Wangler's motion to dismiss.Specifically, Winters contends that the court erred by determining that her second amended complaint was legally insufficient because (1)she failed to allege that Wangler owed Keller a duty and (2)section 15-102 of the Vehicle Code did not apply to the tractor and planter.

Prior to addressing the merits of Winters' contentions, we emphasize that these contentions are separate and independent.That is, whether section 15-102 of the Vehicle Code applies to this case has nothing to do with whether a common-law duty under an in-concert liability theory may also apply.In addition, Winters may make these claims either alternatively or conjunctively.Thus, although we conclude (for reasons explained later) that section 15-102 of the Vehicle Code does not apply, that conclusion does not preclude Winters from arguing a common-law duty under an in-concert liability theory.

A.The Nature of Wangler's Motion

Initially, we must decide the nature of the motion that gave rise to the order we are reviewing.When making a section 2-619(a) motion to dismiss, a defendant(for purposes of the motion) admits the legal sufficiency of the complaint, yet asserts the existence of an external defect or defense that defeats the cause of action.Burton v. Airborne Express, Inc.,367 Ill. App.3d 1026, 1029, 306 Ill.Dec. 308, 857 N.E.2d 707, 711(2006);735 ILCS 5/2-619(a)(West 2004).Essentially, the defendant is saying in such a motion, "Yes, the complaint was legally sufficient, but an affirmative matter exists that defeats the claim."SeeSmith v. Waukegan Park District,231 Ill.2d 111, 121, 324 Ill.Dec. 446, 896 N.E.2d 232, 238(2008)("a defendant moving for dismissal under section 2-619(a)(9) otherwise admits the legal sufficiency of the plaintiff's cause of action");see alsoCwikla v. Sheir,345 Ill.App.3d 23, 29, 280 Ill.Dec. 158, 801 N.E.2d 1103, 1109(2003)(a section 2-619 motion assumes a cause of action has been stated, but asserts an affirmative matter that avoids the legal effect of the plaintiff's claims).This is why a section 2-619(a) motion is sometimes referred to as a "Yes, but" motion.

Conversely, in a section 2-615 motion, a party denies the legal sufficiency of the complaint.Northern Trust Co. v. County of Lake,353 Ill.App.3d 268, 278, 288 Ill.Dec. 701, 818 N.E.2d 389, 398(2004);735 ILCS 5/2-615(West 2004).In other words, the defendant in such a motion is saying, "So what?The facts the plaintiff has pleaded do not state a cause of action against me."This is why a section 2-615 motion is sometimes referred to as a "So what" motion.SeeWorley v Barger,347 Ill.App.3d 492, 494, 283 Ill. Dec. 381, 807 N.E.2d 1222, 1224(2004)(noting that a section 2-615 motion challenges the legal sufficiency of the complaint on its face).

Here, despite Wangler's designation that his motion to dismiss was brought under section 2-619(a)(4), it actually was a section 2-615 motion to dismiss because Wangler essentially asserted that Winters failed to allege facts in her second amended complaint that showed Wangler owed Keller a duty, either under the in-concert liability theory or pursuant to section 15-102 of the Vehicle Code(625 ILCS 5/15-102(West 2004)).

Although Wangler improperly labeled his motion to dismiss as a section 2-619(a)(4) motion, we will review the substance of Wangler's motion under section 2-615 of the Civil Code, the section under which it should have been filed.SeeWorley,347 Ill.App.3d at 494, 283 Ill.Dec. 381, 807 N.E.2d at 1224(choosing to analyze the defendant's section 2-619 motion to dismiss as if it had been filed pursuant to section 2-615 because the defendant's motion attacked the legal sufficiency of the complaint);see alsoLoman v. Freeman,375 Ill.App.3d 445, 448, 314 Ill.Dec. 446, 874 N.E.2d 542, 545(2006)(noting that the substance of a motion, not...