{ "id": 3489612, "name": "GALE HOLBROOK, Plaintiff-Appellant, v. MILAN PERIC et al., Defendants-Appellees", "name_abbreviation": "Holbrook v. Peric", "decision_date": "1984-12-28", "docket_number": "No. 83\u20141691", "first_page": "996", "last_page": "1002", "citations": [ { "type": "official", "cite": "129 Ill. App. 3d 996" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "459 N.E.2d 1131", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560276 ], "pin_cites": [ { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0574-01" ] }, { "cite": "104 Ill. 2d 444", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146903 ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0444-01" ] }, { "cite": "419 N.E.2d 918", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. 2d 461", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3046895 ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0461-01" ] }, { "cite": "45 N.E.2d 665", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "381 Ill. 300", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2558729 ], "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill/381/0300-01" ] }, { "cite": "117 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1971, "opinion_index": 0 }, { "cite": "2 Ill. 2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12121670 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "80" }, { "page": "84" }, { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/2/0074-01" ] }, { "cite": "301 N.E.2d 307", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1971, "opinion_index": 0 }, { "cite": "54 Ill. 2d 539", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933898 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "541" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0539-01" ] }, { "cite": "92 S. Ct. 2847", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "33 L. Ed. 2d 766", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "408 U.S. 943", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782728, 1782820, 1782772, 1782766 ], "opinion_index": 0, "case_paths": [ "/us/408/0943-03", "/us/408/0943-04", "/us/408/0943-02", "/us/408/0943-01" ] }, { "cite": "272 N.E.2d 497", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "48 Ill. 2d 580", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906340 ], "year": 1972, "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0580-01" ] }, { "cite": "392 N.E.2d 675", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 89", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3268766 ], "year": 1971, "pin_cites": [ { "page": "93-94" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0089-01" ] }, { "cite": "169 N.E.2d 73", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "19 Ill. 2d 593", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2743913 ], "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/19/0593-01" ] }, { "cite": "240 N.E.2d 699", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 2d 146", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5323744 ], "pin_cites": [ { "page": "149-50" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/99/0146-01" ] }, { "cite": "152 N.E.2d 576", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2770664 ], "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0284-01" ] } ], "analysis": { "cardinality": 803, "char_count": 14906, "ocr_confidence": 0.77, "pagerank": { "raw": 3.673506527864999e-07, "percentile": 0.8910650775392697 }, "sha256": "66d6669734bc2945beaeab9252bf722f8818e06bb8ae79e26dde0f2a761494d1", "simhash": "1:aee67b0718ff6e19", "word_count": 2447 }, "last_updated": "2023-07-14T19:09:03.101627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GALE HOLBROOK, Plaintiff-Appellant, v. MILAN PERIC et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nPlaintiff Gale Holbrook appeals from the trial court\u2019s entry of summary judgment in favor of both defendants. Plaintiff\u2019s complaint sought damages for personal injuries sustained when his vehicle collided with a truck operated by defendant Milan Peric and owned by defendant Elgin Sweeping Services, Inc. (Elgin). The circuit court granted defendants\u2019 motion for summary judgment based on the pleadings, affidavits and depositions, stating that no fair-minded person could infer that defendants breached a duty. Plaintiff filed a timely notice of appeal; he contends that the existence of a genuine issue of material fact precluded summary judgment and that defendants were not entitled to judgment as a matter of law. Plaintiff also claims that the trial court abused its discretion in refusing leave to file a supplemental affidavit opposed to the motion. We summarize the record as follows.\nElgin\u2019s agents were sweeping the left shoulder of the northbound lanes of the Kennedy Expressway shortly before midnight on September 19, 1979. Three vehicles comprised the sweeping operation: a lead truck, a sweeper, and an escort truck. Michael DeVito\u2019s role as driver of the lead truck was to pick up heavy debris ahead of the sweeper, which was operated that night by Pete Mohoevich. Defendant Milan Peric drove the escort truck, which displayed a yellow Mars light, two yellow \u201cwigwag\u201d flashers and white mud flaps. The tailgate had reflecting red and white diagonal striped tape stuck to it, and mounted upon it was a four-by-four-foot reflecting orange sign which read \u201cLeft lane closed 1500 ft.\u201d Plaintiff collided with the escort truck and sustained serious injuries, including loss of memory of a time before and after the collision.\nIn his deposition, Milan Peric stated that his escort truck had been stopped for several minutes about 1,500 feet behind the sweeper at the time of the accident. He said that he was near the Ainslie overpass and that he saw the sweeper and lead truck in a straight line, not on the curve nearer the rapid transit station. Michael DeVito stated at deposition that he had stopped to retrieve some large debris, that the sweeper was stopped 50 feet behind him, and that the escort truck was stopped about 1,000 feet behind the sweeper. DeVito said that he saw plaintiff\u2019s vehicle approach, half in the left lane and half on the shoulder, and saw it strike the right rear of the escort truck. Peric and DeVito both stated that the escort truck was completely on the shoulder.\nCount I of plaintiff\u2019s complaint recited that defendants were negligent in that they operated a truck straddling the highway, far below the minimum speed, without sufficient warning. Plaintiff alleged in count II that defendants knowingly and wilfully violated the Road Construction Injuries Act by failing to mark a closed portion of the highway at a sufficient distance with safe and suitable warning signs, signals and barricades. Defendants filed their motion for summary judgment on grounds that all fair minds would agree defendants exercised reasonable care, and that plaintiff\u2019s acts alone proximately caused his injuries.\nAt the hearing on defendants\u2019 motion, plaintiff requested leave to file the supplemental affidavit of a licensed surveyor, to the effect that the lead truck was 425 to 450 feet from the escort truck. The lower court denied leave to file the affidavit because \u201cit would be immaterial to the issues in this case.\u201d The court granted the motion for summary judgment, and stated that \u201cno fair minded person could draw an inference of breach of duty ***.\u201d Plaintiff appeals.\nOpinion\nSummary judgment is a salutary procedure designed to alleviate the personal and societal burdens of unnecessary litigation (Allen v. Meyer (1958), 14 Ill. 2d 284, 292, 152 N.E.2d 576), but it is a procedure which must be employed cautiously so as not to deprive a party of the right to trial by jury or the opportunity to fully present the facts where a material dispute may exist. (Ruby v. Wayman (1968), 99 Ill. App. 2d 146, 149-50, 240 N.E.2d 699.) Summary judgment should be granted:\n\u201c*** if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ***\u201d (Ill. Rev. Stat. 1983, ch. 110, par. 2-1005(c).)\nThe purpose of summary judgment is not to decide the facts, but to ascertain whether a real factual dispute exists (Ray v. City of Chicago (1960), 19 Ill. 2d 593, 599, 169 N.E.2d 73), and in so doing, courts must construe the evidential material strictly against the movant and liberally in favor of the opponent. (Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App. 3d 89, 93-94, 392 N.E.2d 675.) \u201c[I]f what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence *** the court would be required to direct a verdict, then a summary judgment should be entered.\u201d Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.\nPlaintiff contends that there was and is a factual dispute in that Peric testified the escort truck was 1,500 feet behind the sweeper, DeVito said the vehicles were 1,000 feet apart, and plaintiff\u2019s surveyor estimated the distance at 425 to 450 feet. In addition, plaintiff points to the undisputed fact that the warning sign was surrounded by contrasting stripes. From these facts, plaintiff argues, a reasonable person could infer that defendants -wilfully violated the Road Construction Injuries Act (the Act) (Ill. Rev. Stat. 1979, ch. 121, par. 314.1 et seq.) and failed to give plaintiff adequate warning of the roadway hazard. According to plaintiff, the statutory violation indicates a breach of duty, and defendants were not entitled to judgment as a matter of law.\nDefendants respond that the Act does not apply because plaintiff\u2019s injury was not within the class of injuries sought to be prevented by the Act. Defendants maintain that all reasonable minds would agree that the escort truck was an obvious hazard, and coupled with the undisputed fact that the truck was outside the regularly traveled lanes of traffic, the lower court correctly concluded as a matter of law that defendants breached no duty. Alternatively, defendants argue that summary judgment was proper because no act of defendants proximately caused plaintiff\u2019s injury; they assert that plaintiff\u2019s inattention to the road was the sole independent cause of collision.\nPlaintiff replies that he was within the class of persons protected by the Act, and defendants\u2019 violations constituted at least prima facie evidence of negligence. Plaintiff notes that there may be more than one proximate cause of an injury, and that proximate cause is a fact question, particularly under comparative negligence.\nIn order to prevail on a claim on common law negligence, a plaintiff must show a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately caused by the breach. (Mieher v. Brown (1973), 54 Ill. 2d 539, 541, 301 N.E.2d 307; Prosser, Torts sec. 30, at 143 (4th ed. 1971).) \u201cThe law of probable cause holds that an injury which is the natural and probable consequence of an act of negligence is actionable and such an act is the proximate cause of the injury. The injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either a remote cause, or no cause whatever of the injury.\u201d (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 80, 117 N.E.2d 74.) Dean Prosser also distinguished between \u201ccause in fact\u201d and \u201clegal cause,\u201d writing of the former, \u201can act or an omission is not regarded as a cause of an event if the particular event would have occurred without it.\u201d (Prosser, Torts sec. 41, at 238 (4th ed. 1971).) Our supreme court in Mieher v. Brown (1973), 54 Ill. 2d 539, 544, 301 N.E.2d 307, quoted the description of legal cause provided in section 435(2) of the Restatement (Second) of Torts: \u201cThe actor\u2019s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor\u2019s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.\u201d\nAssuming facts most favorable to plaintiff, and assuming further that defendants violated the Act, we find that no reasonable person could infer that defendants' alleged negligent acts proximately caused plaintiff\u2019s injuries. We recognize that proximate cause is ordinarily a question of fact (see Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 84, 117 N.E.2d 74), but it becomes a question of law where there can be no difference in the inferences drawn by reasonable men from undisputed facts. Merlo v. Public Service Co. (1942), 381 Ill. 300, 318, 45 N.E.2d 665.\nPlaintiff posits that because defendants\u2019 vehicles were too close to one another and the tailgate sign was nonconforming, he became confused and disoriented, causing him to leave the roadway and collide with the escort truck. We believe that such purported causalities could have been neither the cause in fact nor the legal cause of plaintiff\u2019s injuries. The distance between defendants\u2019 vehicles was irrelevant to plaintiffs\u2019 collision with the rear end of the rear vehicle; the only condition of defendants\u2019 vehicles even arguably connected to the occurrence was the location of the escort truck. Yet, plaintiff does not allege that the escort truck was negligently located, and the necessary implication of plaintiff\u2019s argument is that the location of the escort truck would be proper when the sweeper advanced another 1,000 feet. It simply does not matter whether the sweeper was 425 or 1,500 feet ahead of the escort truck. Paraphrasing Dean Prosser\u2019s test for cause in fact, the collision would have occurred regardless of the distance between the escort truck and the sweeper.\nMoreover, the argument that plaintiff became confused and disoriented indicates that defendants\u2019 acts were not the legal cause of the plaintiff\u2019s injuries. To say that the collision was caused by a psychological attraction resulting from the proximity of two lighted trucks and the configuration of a tailgate warning seems to us highly extraordinary. Alternatively stated, defendants could not have foreseen or reasonably anticipated that such negligent acts would result in someone\u2019s colliding with the rear of the escort truck. We believe all reasonable minds would conclude that the acts alleged by plaintiff were \u201ca remote cause, or no cause whatever of the injury.\u201d See Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 80, 117 N.E.2d 74.\nPlaintiff argues that causation is a fact question, and particularly under comparative negligence, the jury should be allowed to apportion fault. Although there is reason to doubt the applicability of comparative negligence in cases arising under the Act (compare Vegich v. McDougal Hartmann Co. (1981), 84 Ill. 2d 461, 419 N.E.2d 918 (Road Construction Injuries Act parallels Structural Work Act) and Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444 (strict liability as opposed to comparative negligence applied under Structural Work Act)), our disposition does not require a decision on this issue. It is true, as plaintiff suggests, that the doctrine of comparative negligence diminishes the need to protect remotely negligent defendants from liability; nevertheless, proximate cause remains an essential element of liability for negligence. (See Michalak v. County of La Salle (1984), 121 Ill. App. 3d 574, 578, 459 N.E.2d 1131.) Had this case been tried before a jury, no comparison of liability could have been made, because the court would have been required to direct a verdict in favor of defendants based on proximate cause.\nOur decision is fully consistent with that of the lower court concerning the absence of proximate cause. In ruling on plaintiff\u2019s supplemental affidavit, the judge stated, \u201c[T]he distance between the two vehicles or the fact that *** the striping or signing of the escort vehicle sign detracted from the maintenance vehicle in front of it has no materiality to the issue in this case.\u201d Because we agree with the circuit judge that these facts were immaterial, we cannot say that his denial of leave to file the affidavit amounted to an abuse of discretion. However, where a party submits an affidavit opposing summary judgment before such judgment has been rendered, and especially where, as here, the court considers the content of the affidavit, we believe the better procedure would be to grant leave to file.\nFinally, we address the one argument advanced by plaintiff which requires statutory interpretation. Plaintiff argues that \u201cthe use of the stripes on the rear of the truck constitutes a barricade and therefore in accordance with the Manuel [sic] should come within the requirements for a safe and suitable barricade. The failure to bring the escort truck within this provision could be seen as a proximate cause of plaintiffs injury, and so we must determine whether defendants breached a duty by failing to do so. In Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307, our supreme court held that a manufacturer of trucks was under no duty to design or build a truck so as to minimize the injuries of one who collides with it. We believe that Mieher negates the proposition that defendants\u2019 escort truck was or should have been a yielding barricade, and we reject any such interpretation of the Act. Therefore, we agree with the lower court that defendants breached no duty in this respect.\n\u201c \u2018Barricades are located adjacent to traffic and therefore subject to impact by errant vehicles. Because of their vulnerable position and the possible hazard they could create, they should be constructed of light weight materials and have no rigid stay ***.\u2019 [(Illinois Department of Transportation, Manual of Uniform Traffic Control Devices for Streets and Highways 6C\u2014 5.)]\u201d\nFor the foregoing reasons, we affirm the judgment of the circuit court.\nAffirmed.\nSULLIVAN and PINCHAH, JJ., concur.\nJustice Kenneth E. Wilson heard oral argument in this case, and following Justice Wilson\u2019s death, Justice R. Eugene Pincham was substituted, listened to the tapes of the oral argument, and read the briefs and record.", "type": "majority", "author": "JUSTICE LORENZ" } ], "attorneys": [ "Stephen R. Murray, of Senechalle & Murray, P.C., of Chicago, for appellant.", "Jacobs, Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, Richard W. Schumacher, and Lloyd E. Williams, Jr., of counsel), for appel-lees." ], "corrections": "", "head_matter": "GALE HOLBROOK, Plaintiff-Appellant, v. MILAN PERIC et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 83\u20141691\nOpinion filed December 28, 1984.\nStephen R. Murray, of Senechalle & Murray, P.C., of Chicago, for appellant.\nJacobs, Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, Richard W. Schumacher, and Lloyd E. Williams, Jr., of counsel), for appel-lees." }, "file_name": "0996-01", "first_page_order": 1018, "last_page_order": 1024 }