## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Forem an v. Gunit

e Corp. , 2012 IL App (1st) 091644

Appellate Court Caption R O B I N R

. F O R E M A N
, P l a i n t i f f

- A p p e l l a n t , v

. G U N I T E CORPORATI ON, a Delaw are Corporation, Def endant- Appellee and Third-Party Plaintiff (De dicated Service
, Inc., and Distribution Service s, Inc., Third- Party

Def endants).

District & N o. First District, Six th Division Docke t No. 1-09-1644

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed Marc h 9, 2012

May 16, 2012
J une 8, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action for the injuries suffe red by plaintiff truck driver when his truck rolled o v er wh ile hauling a load for defe ndant, the entry of
summary judgme nt for defe ndant based on the finding that there wer e no g enuine issues of material fa ct and that plaintiff could not e stablish that defe ndant proxi ma

te ly c a u s e d p lain ti f f ’ s in ju rie s was reve rsed, since there

was an issue of fac t as to whether defe ndant cause d the acc iden t by loading the trailer with pallets down the middle a nd at half capa city in a

manner that resulted in the truc k rolling ove r.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 06-L -7740; the Hon. Eileen M. B rew er, Judge , presiding

.

J udg ment Reverse d; cause rema nded.Counsel on

Appea l Wil liam T. Cacc iatore and Eileen J

. McCabe, both of Roc k ford, for appellant.

L anghenry
, Gillen, L

undquist & J ohnson, L L C, of J oliet (Stacy K. Shelly
, Troy A. Lundquist, and Mohammed Nofa l, of counsel) , for a ppellee.

Panel J USTI CE LAMPKI N delivere d the judgme nt of the court, with opinion. Presi d in g J ustice R. Gordon and J ustice Gar cia concur red in the judgme nt and opinion.

OP INION

¶ 1 Plaintiff, Robin For eman, appea ls the trial court’s order g ranting summary judgme nt in favor of defendant, Gunite Corporation, on the i s s u e o f proxi mate cause in the underlying
neg lige nce action. Plaintiff contends the trial court err ed in finding that t h er e we re no g enuine issues of materia l fac t and that he could not establis h t h at d ef endant proxi mately

cause d his injuries as a matter of law. Ba sed o n the following
, we reve rse and rema nd for further proce eding s.

¶ 2 FACTS ¶ 3 Acc ording to plaintiff’s complaint, on May 18, 2001, he was employed as a truck drive r by Distribution Service s, Inc. (DSI ), to transport a load from defe ndant’s I llinois fac ility to 1 its Indiana fac ility

. Whil e trave ling eastbound on Interstate 290 on the ramp for southbound Interstate 294, the load in plaintiff’s trailer shifted causing the truck to roll over, resulting in injuries to plaintiff. Plaintiff all ege d t h at defe ndant failed to proper ly clea n, load, and tie down, fasten, or otherwise secur e the items in the truck. Def endant responde d to plaintiff’s complaint by denying the alleg ations and asser ting the aff

irmative defe nses of contributory
neg lige nce a

nd lack of joint and severa l liabilit y

. ¶ 4 In his deposition, plaintiff testified he had no rec ollection of the acc i d ent beca use of a brain injury that he sustained. Plain t i ff
, h oweve r, rec alled that his truck was loaded with pallets at half of the truck’s capa city and that those pallets wer e loaded down the middle of the truck. A bill of lading confirms plaintiff’s testimony as to the weight of the haul. Plaintiff further testified at his deposition that he did not rec al l ever having his truck loaded with pallets down the middle prior to the date in question. At the time of the acc ident, plaintiff had been driving the route betwee n defe nd ant’s fac iliti es approximately five to six times per

Dedi cat ed Ser vice, I nc. (De dic at ed)
, was the si st er company of DSI

. Dedi cat ed le ase d the 1 dri vers t hro ugh DSI

.
-2-wee k for one y ear

. Plaintiff never raised a ny safe ty complaints ag ainst defe ndant. P laintiff ackn o wl edged that it was his obligation as a driver to inspect his load prior to leaving a fac ility

. Specifica lly
, plaintiff would ensure there was no loose materia l and that the floor of the truck was clea

n. Plaintiff did not rec all inspecting th e load on the date in question; howeve r, he assumed that he did. Plaintiff’s first memory following the acc ident was in the hospital. Plaintiff rec eived traff ic tickets due to the acc ident to which he pled guilty and paid related fines. ¶ 5 I llinois State Trooper Anthony Wis e submitt ed an aff idavit aver

ring t h at h e h ad n o independe n t re co l l ec t ion of the acc ident and his testimony would be based on the traff ic

acc ident repor

t that he authore d upon responding to the cra sh, in which he provided that “the driver stated while t rave ling on the s /b ramp to I -294 the tra iler starte d leaning to the s ide. He lost control st riking the s ound wall on the right shoulder. T h i s ca u s ed t he truck trac tor semi-trailer

to overturn r estingon its right side.” ¶ 6 J oseph Grossman testified at his deposition that he was a truck driver for DSI at the time in question and also drove betwee n defe ndant’s fac iliti es. Def endant filed a motion to strike Grossman’s d ep o s i tion; howeve r, the trial court never ruled on the motion. Grossman testified that, on the morning in question, defe ndant’s employ ees loaded al l o f the trucks, including plaintiff’s and Grossman’s, with half loads, placing the pallets in a straig ht line down the middle of the truck. Grossman had never hauled a truck loaded in the same manner prior to that date. Acc ording to Grossman, loading a truck i n t hat manner without any

secur eme n t could cause a load to shift “just g oing down the road.” On the date of the

acc ident, Grossman found that his truck was leaning when he arr ived at defe ndant’s Indiana fac ility

. I n addition, two other drivers that arr ived befor e Grossman had trucks that wer e leaning so sever ely t h at , wh en docked next to eac h other, the trailers wer e touching

. Gro s s m an o b s erve d that those drivers’ loads had shifted inside of the trucks. Grossman testified that he informed his supervisor that the only rea son plaintiff’s truck rolled over was beca use t he items wer e loade d down t he mi ddle of the t ruck, adding that Grossman’s load had shifted on that date as we ll. ¶ 7 Following plaintiff’s acc ident, DSI formed an investigation committee, which included J ames Erickson, DSI ’s safe ty direc tor; Robert Wiest, DSI ’s operat i o n s m anag er and plaintiff’s supervisor; and Mike Z ezza, DSI ’s vice president of opera tions. After revie wing photogr aphs of the scene and plaintiff’s truck
, co n s u lting the traff ic acc ident repor

t, and speaking to plaintiff and other drivers wi t h t ru cks loaded at the same time, the committee conclude d that the cause of the acc ident wa s due to driver err or resulting from excessive speed. A letter indicating the committee’s conc lusion was written by Weist two y ear s afte r the ac cident. ¶ 8 Erickson testified at his deposition that a driver is responsible for inspecting and sec uring his load and driving in a safe and rea sonable manner

. Erickson did not believe the acc ident

was caused by a load shift or defe ndant’s err or. Erickson testified that plaintiff was hired despite havingfour pe rsonal spee ding ticke ts. ¶ 9 Wiest testified at his deposition that a driver is responsible for ensuring a load complies with weig ht restric tions and that the trailer is clea n and fre e from any and all debris.

-3-Acc ording to Wiest, a driver could ask that his truck be reloa ded if he felt it wa s not sa fely

loaded. Wiest testified that he spoke to plaintiff, who stated that his load shifted and cause d the ac cident. ¶ 10 Z ezza testified at h i s d ep o s i t i o n t h at i t i s a driver’ s responsibility to use the most
appropr iate load- secur ing me thod. Z ezza testified that plaintiff voluntarily quit driving for DSI on October 18, 2000. Prior to leaving
, plain tiff had no safe ty issues indicated on his

rec ord. Plaintiff returne d to his employ ment with DSI sometime t h er ea ft er. Acc ording to Z ezza, plaintiff ul timately was terminated following the accident for operating a company vehicle in an unsafe manner

. Z ezza, howeve r, could not be sure that excessive speed was the sole fac tor in plaintiff’s ac cident. ¶ 11 T he trial court g rante d summary judgme nt in favor of defe ndant, finding that plaintif f could not identify the cause of his acc ident and there wer e “a number of infere nces that could be drawn” as to the cause of the truck rollover. The trial court subsequently denied plaintiff’s motion to rec onsider, including languag e purs u an t t o I llinois Supreme Court Rule 304(a) (ef f. Fe b. 26, 2010) such that the summary judgme nt order was “the final judgme nt with no just reason to dela

y enfor ceme nt or appe al.”

¶ 12 DECI SI ON ¶ 13 Summary judgme nt is proper wher e there are no g enuine issues of materia l fac t and the moving party is entitled to judgme nt as a m at t er of law. 735 I L CS 5/2-1005 (West 2000). When considering a motion for summary judgme nt, a court must consider all of the evidenc e strictly ag ainst the movant and in a light most favor able to the nonmoving party

. Gene ral Casualty I

nsurance Co. v

. Lacey
, 199 I ll. 2d 281, 284, 769 N.E.2d 18 (2002). We r eview a trial court’s g rant of sum mary judgme nt de novo

. McName e v. State
, 173 I ll. 2d 433, 438, 672 N.E.2d 1159 (1996)

. ¶ 14 Prox imate cause is an essential element of a neg lige nce claim that, if no t p ro ven, will
preve nt the plaintiff from establishing a prima facie case

. Bermude z v. Martinez Trucking
, 343 I ll. App. 3d 25, 29, 796 N.E.2d 1074 (2003). Although proxi mate cause g ener ally is an issue of fac t, if the alleg ed fac ts show that plaintiff “would never be en t i t l ed t o rec over, proxi mate ca

use ca n be dete rmined by

a court as a matter of law.” Strutz v. Vicere , 389 I ll. App. 3d 676, 678-79, 906 N.E.2d 1261 (2009). At the summary judgme nt stag e, a plaintiff is not require d to prove his case ; howeve r, he must prese nt evidenc e to support the cause of action. Id . at 678. “L iability cannot be predic ated on c onjecture ; rather , proxi mate ca use is established when there is rea sonable cer tainty that the defe ndant’s acts or omissions cause d the injury .” Id . at 679. ¶ 15 Prox imate cause may be estab l i s h ed t hrough circ umstantial evidenc e so long as “the circu m s t an ce s ar e so related to eac h other that it is the only probable
, and not mere ly possible, conclusion that may be drawn.” Keating v. 68th & Paxton, L.L.C

. , 401 I ll. App. 3d 456, 473, 936 N.E.2d 1050 (2010). Acc ording ly
, “whe re the prove n fac ts demonstrate that the nonexis tence of the fac t to be inferr ed appea rs to be just as probable as its exis tence , then the conclusion that exis ts is a matter of specula tion, surmise, and conjec ture, and the trier of fac t cannot be pe rmitted to make that infer ence .” Id

.

-4-¶ 16 The question befor e us is whether t h e fa ct s al l ege d b y p l ai n tiff “af firmatively

and positively ” showed with “re asonable cer tainty ” that defe ndant’s method of loading the haul down the middle of plaintiff’s t ru ck ca u s ed the truck to tip over resulting in plaintiff’s injuries. We conclude that plaintiff p ro v i d ed sufficie nt fac ts to state a prima facie case

. Viewing the pleading s, depositions, a nd aff idavits in a light most fa

vorable to pla intiff, we find that the evidenc e established that the acc ident was probably
, not mere ly possibly
, cause d by the leaning of plaintiff’s truck as a result of the haul having been loaded at half capa city down t he mi ddle of the t ruck. Defe ndant di d n ot prese nt any evidenc e sugg esting the road

co n d i t i ons wer e a fac tor in the accident or that plaintiff had a his tory of recklessly driving his truck. Rather, d efendant solely relied on DSI ’s internal conclusion, without phy sically having investigated t he crash si g ht or t he truck, that the accident was cause d by plaintiff’s excessive speed. Erickson, Wiest, and Z ezza wer e not tru ck drivers and had no acc ident

rec onstruction education, training
, or knowledg e. Moreove r, there wer e no witnesses to the

cra sh to support an infer ence that the ac cident re sulted from driver err or. ¶ 17 In contra st, I llinois State Trooper Wis e attested that, based on re v i ew o f h is acc ident
repor t, plaintiff informed him that the truck beg an leaning to one side, which forc ed plaintiff
to lose control and cause d the truck to roll over. Plaintiff’s statement qualifies as an excited
utteranc e admissible as evidenc e of proxi mate cause

. Mangan v. F.C. Pilgrim & Co.
, 32 I ll. App. 3d 563, 574, 336 N.E.2d 374 (1975). At his deposition, plaintiff testified that, althoug h he did not rec all the details surrounding the acc ident, he did rec all that his truck was loaded with pallets down the middle to half capa city for the first time in his car eer

. The bill of lading confirme d his truck was loaded at half capa city

. Grossman further confirme d that all of the trucks were loaded on the date i n qu es t i o n d own t he mi ddle and that his truck, along with
two others, ex p er i en ced leaning due to shifting loads. We rec og nize that defe ndant fil ed a motion to strike Grossman’s deposition; howeve r, defe ndant failed to obtain a ruling on its motion and, there fore
, any objection there to has been waived. W oolums v. Huss
, 323 I ll. App. 3d 628, 633, 752 N.E.2d 1219 (2001). Additionally
, althoug h it is unclea r from the record when the complaint was lodge d, Wiest testified at his deposition that plaintiff repor ted that his load shifted and c aused the acc ident. ¶ 18 Contrary to defe ndant’s repe ated infere ntial argument, plai n t i ff i s n o t b ar re d from
prese nting a prima facie case on the issue of proxi mate cause mere ly beca use h e d o es not

reme mber the acc ident. Essentially
, under defe ndant’s argument, a plaintiff may never bring

a neg lige nce claim if he does not reme mber the circ umstances surrounding the event beca use the proxim ate c ause a

rgument would nece ssarily be base d on surmise and c onjecture

. ¶ 19 We find that Bermude z and Strutz
, as relied upon by the trial court in g rantingsummary judgme nt and by defe ndant on appeal
, ar e d i stinguishable, as is Majetich v. P.T. Ferro Construction Co.
, 389 I ll. App. 3d 220, 906 N.E.2d 713 (2009). In B er mu dez , t his court conclude d that “ther e [was] a lack of any identifiable cause in the rec ord for [t he] plaintiff’s

acc ident.” Bermude

z , 343 I ll. App. 3d at 33. The plainti ff in Bermude z alleg ed that he lost control of his truck and collided with a barr ier wall beca use the defe ndant was aslee p instead of monitoring the plaintiff’s driving

. Id

. at 30. The plaintiff, howeve r, had no rec ollection of the acc ident and there was no other evidence prese nted demonstrating how the acc ident happene d or why the plaintiff lost control. Id

. at 27. Consequently
, this court held that it was

-5-re as o n ab l e to conclude that any number of things cause d the acc ident besides lack o f

supervision. Id . at 31-32. Similarly
, there was no evidenc e prese nted as to what ca used the plaintiff i n Strutz to fall down the s tairs i n t h e defenda nt’s apar tment building. Strutz
, 389 I ll. App. 3d at 681. The plaintiff died shortly there afte r. There wer e no witnesses to the fall. Id

. at 680. An arc hitect aver red that the steps wer e dang erous, but there was testimony that the plaintiff had health conditions and was walking down the stairs backw ards. Id

. This court conclude d that the plaintiff’s statement that he “fe ll down over the railing ” did not provide

an explanation for the cause of the fall and, thus, could not cre ate a g enuine issue of materia l fac t as t o causation. Id

. at 681. In Majeti ch
, the pl aintiff fell in the defendant’s parking lot and later died. The plaintiff’s estate alleg ed the defe ndant’s were neg lige nt in m aintaining the lot. Majetich
, 389 I ll. App. 3d at 224. There wer e no witnesses to the plaintiff’s fall and the only thing she alleg edly said afte r falling was she noticed a high step, rea ched for a pole, and fell. Id

. at 227. The plaintiff, howeve r, had pree x isting health conditions. Id

. The court

co ncluded that there was no evidenc e prese nted from which it could be inferr ed that t h e defe ndant ca

used the plaintiff’ s injuries. Id

. ¶ 20 Her e, i n co n t ra s t, there was evidenc e prese nted that defe ndant loaded plaintiff’s truc k down the middle of the trailer and at half capa city ; that the truck was loaded in that manner for the first time on the date in question; that the truck was leaning just prior to the acc ident; and that plaintiff suffe red injuries as a result of the truck rolling over. In sum, we find there is an issue of fac t as to whether defe ndant proxi mately cause d plaintiff’s acc ident and injuries.

¶ 21 CONCLUSI ON ¶ 22 We conclude that plaintiff’s complaint prese nted a tri a b le issue of fac t and, conse quently
, we r ever se the trial c ourt’s orde r g rantingsummary judgme nt in favor of

defe ndant.

¶ 23 Reverse d; cause rema nded.

-6-