Docket No. 86739–Agenda 28–May 1999.

FIRST SPRINGFIELD BANK & TRUST, as Special Adm’r of the

Estate of May F. Phillippart, Deceased, Appellee, v. ANGELA S. 

								GALMAN et al. (Howard C. Dobson et al., Appellants).

Opinioin filebnn filed October 21, 1999.

	JUSTICE RATHJE delivered the opinion of the court:

	The primary issue in this case is whether defendants’

negligence was the proximate cause of May Phillippart’s fatal

injuries. We hold that it was not.

	BACKGROUND

	The relevant facts are not in dispute. Howard C. Dobson

drove a tanker truck for ADM Trucking, Inc. (hereinafter, ADM).

Around 3 p.m. on Tuesday, November 21, 1989, Dobson parked

his truck on the north side of Lawrence Avenue, 41 feet from the

intersection of English Street, in Springfield. Although Lawrence

Avenue is a four-lane designated truck route on which parking is

permitted at certain times of the day, parking is not permitted on

the north side of Lawrence Avenue between the hours of 7 a.m.

and 6 p.m., Monday through Saturday.

	Shortly after Dobson parked his truck, May Phillippart, an 18-

year-old foreign exchange student from France, began walking

south on English Street. At the intersection of English and

Lawrence, Phillippart did not cross Lawrence in the marked

crosswalk. Instead, she turned right and headed west on Lawrence,

walking 41 feet plus the full length of the truck before deciding to

cross. When she reached the front of Dobson’s parked truck at

mid-block, Phillippart entered Lawrence Avenue, walked to the

front driver’s side of the truck, and waited for traffic to clear so

that she could cross to south side of the street. After taking 11⁄2

slow steps into the center westbound lane of Lawrence Avenue,

Phillippart began running at a 45-degree angle across the street. At

about the center line of Lawrence Avenue, Phillippart was struck

by the front passenger’s side of a car driven by Angela Galman.

Section 80.04 of the City of Springfield Code provides that

“[p]edestrian crossings between intersections shall be prohibited in the interest of public safety, except where there may be a marked

crosswalk.”

	Phillippart remained in a near comatose state until July 7,

1991, when she died from her injuries. Following Phillippart’s

death, the National Health Service of France paid her estate

$452,794.82 as compensation for Phillippart’s medical expenses.

	First Springfield Bank & Trust, acting on behalf of

Phillippart’s estate, sued Galman, Dobson, and ADM for

negligence. In addition, First Springfield sued Dobson and ADM

for violating section 5 of the Public Nuisance Act, which makes it

a public nuisance “[t]o obstruct or encroach upon public

highways.” Ill. Rev. Stat. 1989, ch. 1001⁄2, par. 26(5) (now 720

ILCS 5/47–5(5) (West 1998)). The jury entered a general verdict,

finding that Phillippart’s damages totaled $1 million and that

Phillippart was 45% at fault. Accordingly, the jury awarded First

Springfield $550,000. Pursuant to section 2–1205.1 of the Code of

Civil Procedure (735 ILCS 5/2–1205.1 (West 1998)), Dobson and

ADM moved to reduce the jury award to reflect the amount paid

to Phillippart’s estate by the National Health Service of France.

Dobson and ADM also moved for judgment notwithstanding the

verdict on all counts. The trial court denied the motions.

	 The Aappellate cCourt affirmed the trial court’s judgment. First Springfield Bank & Trust v. Galman, 299

Ill. App. 3d 751 (1998). In dissent, Justice Steigmann concluded that

Dobson and ADM are entitled to judgment notwithstanding the

verdict because the illegally parked tanker truck was not the

proximate cause of Phillippart’s injuries. Instead, the truck constituted merely a condition that allowed Phillippart’s injuries to

occur. First Springfield, 299 Ill. App. 3d at 764 (Steigmann, J., disssenting).

	ADM and Dobson now appeal from the Aappellate Ccourt’s

judgment, arguing that they are entitled to a judgment

notwithstanding the verdict on (1) all claims because the illegally

parked truck was not the proximate cause of Phillippart’s injuries;

(2) the negligence claim because they owed no duty of care to

Phillippart, who was illegally jaywalking when the accident

occurred; and (3) the public nuisance claim because plaintiff failed

to establish the existence of either a public nuisance or a private

right of action under section 5 of the Public Nuisance Act. In the

alternative, ADM and Dobson argue that they are entitled to a reduction in the jury award to reflect the amount paid to

Phillippart’s estate by the National Health Service of France. First

Springfield also appeals, arguing that the jury’s award should not

have been reduced by 45% because, although comparative

negligence is a defense to a negligence claim, it is not a defense to

a public nuisance claim.

	This court granted leave to appeal (182 Ill. 2d 549), and jurisdiction exists

under Supreme Court Rule 315 (177 Ill. 2d R. 315). 

	ANALYSIS

	To recover damages based upon a defendant’s alleged

negligence, a plaintiff must allege and prove that the defendant

owed a duty to the plaintiff, that defendant breached that duty, and

that the breach was the proximate cause of the plaintiff’s injuries. Thompson v. County of Cook, 154 Ill. 2d 374, 382 (1993). To recover damages based upon a defendant’s alleged statutory

violation, a plaintiff must show that (1) she belongs to the class of

persons that the statute was designed to protect; (2) her injury is

of the type that the statute was designed to prevent; and (3) the

violation proximately caused her injury. Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434-35 (1991).

	Dobson and ADM argue that they are entitled to a judgment

notwithstanding the verdict on all counts because the illegally

parked tanker truck was not a proximate cause of plaintiff’s

injuries. Because proximate cause ordinarily is a question for the

trier of fact, a judgment notwithstanding the verdict cannot be

granted on that basis unless “all of the evidence, when viewed in its

aspect most favorable to the opponent, so overwhelmingly favors

movant that no contrary verdict based on that evidence could ever

stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967).

	In arguing that the illegally parked tanker truck was not a proximate cause of Phillippart’s injuries, Dobson and ADM

correctly observe that Illinois courts draw a distinction between a

condition and a cause. Indeed, if the negligence charged does

nothing more than furnish a condition by which the injury is made

possible, and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is

not the proximate cause of the injury. Briske v. Village of Burnham, 379 Ill. 193, 199 (1942); Merlo v. Public Service Co., 381 Ill. 300, 316 (1942); see also Thompson, 154 Ill. 2d at 383. The test that should be applied in all proximate cause cases is

whether the first wrongdoer reasonably might have anticipated the

intervening efficient cause as a natural and probable result of the

first party's own negligence. Merlo, 381 Ill. at 317. According to Dobson and ADM, the illegally parked tanker truck constituted

only a passive condition that provided an opportunity for the active

causal agencies (i.e., Galman’s negligent driving and Phillippart’s negligent decision to jaywalk) to interact.

	First Springfield, by contrast, urges us to abandon the

“condition vs. cause” dichotomy altogether and instead embrace

the proximate cause standard articulated in Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455 (1992). In Lee, wethe court held that the term “proximate cause” describes two distinct requirements:

cause in fact and legal cause. Lee, 152 Ill. 2d at 455. Cause in fact exists where there is a reasonable certainty that a defendant’s acts

caused the injury or damage. Lee, 152 Ill. 2d at 455. A defendant’s conduct is a cause in fact of the plaintiff’s injury only if that

conduct is a material element and a substantial factor in bringing

about the injury. Lee, 152 Ill. 2d at 455. A defendant’s conduct is a material element and a substantial factor in bringing about an

injury if, absent that conduct, the injury would not have occurred. Lee, 152 Ill. 2d at 455. “Legal cause,” by contrast, is essentially a question of foreseeability. Lee, 152 Ill. 2d at 456. The relevant inquiry here is whether the injury is of a type that a reasonable

person would see as a likely result of his or her conduct. Lee, 152 Ill. 2d at 456. 

	According to First Springfield, the illegally parked tanker

truck was a cause in fact of Phillippart’s fatal injuries because

“Angela Galman admitted that the presence of the truck prevented

her from going to the right to avoid a collision with May Phillippart

at the center line.”	 Moreover, First Springfield contends that the illegally parked tanker truck was the legal cause of Phillippart’s

fatal injuries because “it was readily foreseeable that at school

closing time school children might be crossing the street, and 16- year-old Angela Galman might need both lanes of traffic to avoid

an accident.”

	In raising their respective arguments, the parties appear to be

operating under the mistaken assumption that Briske, Merlo, and Thompson are distinct from and wholly incompatible with Lee. This is not the case. Although Briske, Merlo, and Thompson clearly employ a vocabulary different from that employed in Lee, all of these cases ask the same question: Was the defendant’s negligence

a material and substantial element in bringing about the injury, and,

if so, was the injury of a type that a reasonable person would see

as a likely result of his or her conduct? While Lee sets forth this principle in general terms, Briske, Merlo, and Thompson address a particular subset of cases, namely, those in which the plaintiff’s

injury results not from the defendant’s negligence directly but from

the subsequent, independent act of a third person.1 Thus, when  Briske, Merlo, and Thompson ask whether the defendant’s conduct was a cause of the injury or simply furnished a condition by which

the injury was made possible, they are in effect asking whether the

defendant’s conduct was a material and substantial element in

bringing about the injury. Similarly, when Briske, Merlo, and Thompson ask whether the defendant might have reasonably anticipated the intervening efficient cause as a natural and probable

result of his or her own negligence, they are in effect asking

whether the intervening efficient cause was of a type that a

reasonable person would see as a likely result of his or her conduct.

Far from conflicting, Briske, Merlo, Thompson, and Lee uniformly embrace the traditional proximate cause test that has governed

Illinois for the better part of this century. See, e.g., Hartnett v. Boston Store of Chicago, 265 Ill. 331, 334 (1914) (describing relationship between “condition vs. cause” standard and Lee standard).

	Turning to the facts of this case, we first must decide whether

the illegally parked tanker truck was a cause in fact of Phillippart’s

fatal injuries. We hold that it was, though not for the reason that

First Springfield suggests. In arguing cause in fact, First Springfield

relies exclusively upon Angela Galman’s testimony that, had the

tanker truck not been parked illegally on Lawrence Avenue, she could have swerved to the right to avoid hitting Phillippart. The

problem with this argument is that the portion of Galman’s

testimony upon which First Springfield relies exclusively was

admissible only in First Springfield’s case against Galman and was

specifically excluded from evidence in their case against Dobson and ADM. Thus, although Galman’s testimony is undeniably

relevant to the question of cause in fact, we simply cannot consider

it.

	Nevertheless, the portions of the record that relate to Dobson

and ADM provide a more than sufficient basis for concluding that

the tanker truck was a cause in fact of Phillippart’s injuries. Again,

in deciding whether a defendant’s conduct was a material and

substantial element in bringing about an injury, we ask whether,

absent the defendant’s conduct, that injury still would have

occurred. Lee, 152 Ill. 2d at 455. In this case, had Dobson not parked his truck illegally on Lawrence Street, Phillippart’s injuries

almost certainly would not have occurred. To be sure, Phillippart

still would have chosen to cross Lawrence Avenue at mid-block

and in clear violation of the law, but she would have had an

unobstructed view of the roadway and presumably would have

timed her crossing to avoid a collision with oncoming traffic. 

	The question thus becomes whether the illegally parked tanker

truck was the legal cause of Phillippart’s injuries. We hold that it

was not. The relevant inquiry here is whether the injury is of a type

that a reasonable person would see as a likely result of his or her conduct. Lee, 152 Ill. 2d at 456. We have no quarrel with First Springfield’s assertion that “it was readily foreseeable that at

school closing time school children might be crossing the street,

and 16-year-old Angela Galman might need both lanes of traffic to

avoid an accident.” That, however, is not the question. The

question is whether it was reasonably foreseeable that violating a “no parking” sign at mid-block would likely result in a pedestrian’s

ignoring a marked crosswalk at the corner, walking to mid-block,

and attempting to cross a designated truck route blindly and in

clear violation of the law. Clearly, it would not. May Phillippart’s

decision to jaywalk, while undeniably tragic and regrettable, was

entirely of her own making. Dobson and ADM neither caused

Phillippart to make that decision, nor reasonably could have

anticipated that decision as a likely consequence of their conduct.

One simply does not follow from the other.

	In reaching this decision, we note that the facts of this case

differ significantly from those in Scerba v. City of Chicago, 284 Ill. App. 3d 435 (1996), a case upon which both the appellate court

and First Springfield rely heavily. In Scerba, a Chicago Transit Authority (CTA) bus driver stopped his bus in the middle of the

block’s designated crosswalk, blocking it completely. As a result,

a 12-year-old boy walking home from school was forced to cross

the street by walking in front of the bus and outside the crosswalk.

His view obscured, the boy was struck by an approaching car. The

trial court entered summary judgment in favor of the CTA, in part

because the bus constituted a condition rather than a cause of the

boy’s injures. 

	 In reversing that judgment, the appellate court

properly concluded that a reasonable jury could have found that the

boy’s decision to walk around the bus and outside the crosswalk

was a foreseeable consequence of the bus driver’s decision to block

the crosswalk. Scerba, 284 Ill. App. 3d at 439-41. 

	We have no quarrel with the decision in Scerba, as the CTA driver in that case parked his bus in the one place on the block

specifically designated for pedestrian crossing. Of course it was

likely that, as a result, pedestrians would be forced to cross the

street somewhere other than in the designated crosswalk. They had

no other choice. In this case, by contrast, Dobson parked his tanker

truck at mid-block, 41 feet from the nearest designated crosswalk

and in a place that parking was specifically permitted at other times

of the day. Nothing in Dobson’s conduct increased the likelihood

that a pedestrian would forego an open and designated crosswalk in favor of an obstructed and unlawful mid-block crossing.2 

CONCLUSION

	We agree with Dobson and ADM that the illegally parked

tanker truck was not a proximate cause of May Phillippart’s

injuries. We therefore reverse the judgment of the appellate court

ansd that portion of the circuit court judgment denying Dobson and

ADM’s motion for judgment notwithstanding the verdict and we

enter judgment in favor of Dobson and ADM on all counts.

Because this ruling is dispositive of all claims raised in this appeal,

we need not address the remaining issues.

Judgments reversed.

	JUSTICE BILANDIC took no part in the consideration or

dcidecision of this case.

	JUSTICE HARRISON, dissenting:

	May Phillippart is dead because ADM’s driver, Howard

Dobson, made the supremely careless decision to leave his tanker

truck in a no-parking zone on a busy street by Springfield’s most

dangerous intersection near 10 schools, including Phillippart’s, just

as classes were letting out. Dobson had no compelling reason for

parking where he did. The location just happened to be near his

home, and he wanted to take a shower and make some phone calls.

	There was no question as to the illegality of Dobson’s actions.

He left his truck directly in front of a “No Parking” sign, which he

admits that he saw and read. Nor was there any genuine issue as to

the danger Dobson created. Expert testimony established that the vehicle presented a major obstruction to traffic and was a hazard

to pedestrians who wanted to cross the street. This appraisal was

supported by those present on the scene when Phillippart was

fatally injured. For the motorists and pedestrians who were forced

to maneuver past Dobson’s truck, the risks were readily apparent.

From the materials before us, it appears that the only one oblivious

to the danger was Dobson himself.

	My colleagues’ decision to defy the jury’s verdict and

exonerate Dobson and ADM is indefensible. Although it is true

that Phillippart was jaywalking at the time she was struck,

jaywalking does not strip a pedestrian of the law’s protection.

Contrary to ADM’s contention, every motorist has a duty of care

to pedestrians, notwithstanding the rights and responsibilities that

may be imposed under other provisions of the Vehicle Code. Ill.

Rev. Stat. 1989, ch. 951⁄2, par. 11–1003.1 Consistent with this

provision, the courts in Illinois have long recognized that a

pedestrian is not barred from recovery as a matter of law for failing

to cross a thoroughfare in a marked crosswalk. See Newton v. Meissner, 76 Ill. App. 3d 479, 490 (1979); Moore v. Checker Taxi Co., 133 Ill. App. 2d 588, 591 (1971).

	Plaintiff’s theory was that Phillippart was justified in crossing

outside of the marked crosswalk because the location of Dobson’s

truck obscured her view of traffic and made use of the crosswalk

unsafe. Although my colleagues draw a different conclusion based

on the evidence, they misconstrue the facts. Contrary to their

characterization, Phillippart’s view of traffic was not entirely

obstructed at the point of her attempted crossing. Phillippart could

still assess westbound traffic by looking around the front of

Dobson’s truck, and that location actually provided a better view

of the eastbound lanes than she would have had at the crosswalk.

Under these circumstances, crossing the street at the front of the

truck rather than behind it at the crosswalk was, on balance, the

safest course for Phillippart to have taken. That is what the

evidence showed and that is what the jury found. To the extent that

Phillippart should have maintained a closer lookout before stepping

into the traffic lane, her lack of due care was reflected in the jury’s

apportionment of comparative fault. It is not the province of this

court to reweigh the evidence and substitute its judgment for the jury’s. Maple v. Gustafson, 151 Ill. 2d 445, 452 (1992).

	If the jurors who heard and decided this case ever read the

majority’s disposition, I feel certain that they will be as surprised

as I was by what my colleagues have made of the facts and the law.

Seeing their findings and conclusions so readily disregarded, they

are apt to wonder why they even bothered to report for service. I

cannot blame them. Their work, their attention, their adherence to

the law have all been rendered meaningless, and for no legitimate

reason.

	ADM Trucking is a division of Archer Daniels Midland

Company, an international agribusiness, the self-styled

“supermarket to the world.” Phillippart was a high school student.

In focusing on Phillippart’s conduct rather than on the carelessness

of ADM’s driver and his flagrant violation of the law, what the

majority is ultimately saying is that a teenager should be held to a

higher standard of care than a multinational corporation. This

perverse conception of justice has been expressed before. See, e.g., Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110 (1995). I still cannot accept it.

	The majority’s position stems, I think, from an antiquated and

misguided deference to the demands of private industry. Unlike my

colleagues, I do not believe that corporate enterprise must be given

precedence over human welfare in order to flourish. If the success

of Illinois commerce depends on enabling multinational

corporations to maim and kill schoolchildren with impunity, we are

lost.

	For the foregoing reasons, I respectfully dissent.