ILLINOIS OFFICIAL REPORTS

Appellate Court

Foreman v. Gunite Corp., 2012 IL App (1st) 091644

Appellate Court

Caption

ROBIN R. FOREMAN, Plaintiff-Appellant, v. GUNITE

CORPORATION, a Delaware Corporation, Defendant-Appellee and

Third-Party Plaintiff (Dedicated Service, Inc., and Distribution Services,

Inc., Third-Party Defendants).

 District & No. First District, Sixth Division

Docket No. 1-09-1644

Rule 23 Order filed

Rule 23 Order

withdrawn

Opinion filed

March 9, 2012

May 16, 2012

June 8, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In an action for the injuries suffered by plaintiff truck driver when his

truck rolled over while hauling a load for defendant, the entry of

summary judgment for defendant based on the finding that there were no

genuine issues of material fact and that plaintiff could not establish that

defendant proximatelycaused plaintiff’sinjurieswas reversed, since there

was an issue of fact as to whether defendant caused the accident by

loading the trailer with pallets down the middle and at half capacity in a

manner that resulted in the truck rolling over.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 06-L-7740; the Hon.

Eileen M. Brewer, Judge, presiding.

Judgment Reversed; cause remanded.
Counsel on

Appeal

William T. Cacciatore and Eileen J. McCabe, both of Rockford, for

appellant.

Langhenry, Gillen, Lundquist & Johnson, LLC, of Joliet (StacyK. Shelly,

Troy A. Lundquist, and Mohammed Nofal, of counsel), for appellee.

Panel JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

Presiding Justice R. Gordon and Justice Garcia concurred in the judgment

and opinion.

OPINION

¶ 1 Plaintiff, Robin Foreman, appeals the trial court’s order granting summary judgment in

favor of defendant, Gunite Corporation, on the issue of proximate cause in the underlying

negligence action. Plaintiff contends the trial court erred in finding that there were no

genuine issues of material fact and that he could not establish that defendant proximately

caused his injuries as a matter of law. Based on the following, we reverse and remand for

further proceedings.

¶ 2 FACTS

¶ 3 According to plaintiff’s complaint, on May 18, 2001, he was employed as a truck driver

by Distribution Services, Inc. (DSI), to transport a load from defendant’s Illinois facility to 1

its Indiana facility. While traveling 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 alleged that defendant failed to properly clean, load, and tie

down, fasten, or otherwise secure the items in the truck. Defendant responded to plaintiff’s

complaint by denying the allegations and asserting the affirmative defenses of contributory

negligence and lack of joint and several liability.

¶ 4 In his deposition, plaintiff testified he had no recollection of the accident because of a

brain injury that he sustained. Plaintiff, however, recalled that his truck was loaded with

pallets at half of the truck’s capacity and that those pallets were 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 recall ever having his truck loaded with

pallets down the middle prior to the date in question. At the time of the accident, plaintiff had

been driving the route between defendant’s facilities approximately five to six times per

Dedicated Service, Inc. (Dedicated), was the sister company of DSI. Dedicated leased the 1

drivers through DSI.

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week for one year. Plaintiff never raised any safety complaints against defendant. Plaintiff

acknowledged that it was his obligation as a driver to inspect his load prior to leaving a

facility. Specifically, plaintiff would ensure there was no loose material and that the floor of

the truck was clean. Plaintiff did not recall inspecting the load on the date in question;

however, he assumed that he did. Plaintiff’s first memory following the accident was in the

hospital. Plaintiff received traffic tickets due to the accident to which he pled guilty and paid

related fines.

¶ 5 Illinois State Trooper Anthony Wise submitted an affidavit averring that he had no

independent recollection of the accident and his testimony would be based on the traffic

accident report that he authored upon responding to the crash, in which he provided that “the

driver stated while traveling on the s/b ramp to I-294 the trailer started leaning to the side.

He lost control striking the sound wall on the right shoulder. This caused the truck tractor

semi-trailer to overturn resting on its right side.”

¶ 6 Joseph Grossman testified at his deposition that he was a truck driver for DSI at the time

in question and also drove between defendant’s facilities. Defendant filed a motion to strike

Grossman’s deposition; however, the trial court never ruled on the motion. Grossman

testified that, on the morning in question, defendant’s employees loaded all of the trucks,

including plaintiff’s and Grossman’s, with half loads, placing the pallets in a straight line

down the middle of the truck. Grossman had never hauled a truck loaded in the same manner

prior to that date. According to Grossman, loading a truck in that manner without any

securement could cause a load to shift “just going down the road.” On the date of the

accident, Grossman found that his truck was leaning when he arrived at defendant’s Indiana

facility. In addition, two other drivers that arrived before Grossman had trucks that were

leaning so severely that, when docked next to each other, the trailers were touching.

Grossman observed that those drivers’ loads had shifted inside of the trucks. Grossman

testified that he informed his supervisor that the only reason plaintiff’s truck rolled over was

because the items were loaded down the middle of the truck, adding that Grossman’s load

had shifted on that date as well.

¶ 7 Following plaintiff’s accident, DSI formed an investigation committee, which included

James Erickson, DSI’s safety director; Robert Wiest, DSI’s operations manager and

plaintiff’s supervisor; and Mike Zezza, DSI’s vice president of operations. After reviewing

photographs of the scene and plaintiff’s truck, consulting the traffic accident report, and

speaking to plaintiff and other drivers with trucks loaded at the same time, the committee

concluded that the cause of the accident was due to driver error resulting from excessive

speed. A letter indicating the committee’s conclusion was written by Weist two years after

the accident.

¶ 8 Erickson testified at his deposition that a driver is responsible for inspecting and securing

his load and driving in a safe and reasonable manner. Erickson did not believe the accident

was caused by a load shift or defendant’s error. Erickson testified that plaintiff was hired

despite having four personal speeding tickets.

¶ 9 Wiest testified at his deposition that a driver is responsible for ensuring a load complies

with weight restrictions and that the trailer is clean and free from any and all debris.

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According to Wiest, a driver could ask that his truck be reloaded if he felt it was not safely

loaded. Wiest testified that he spoke to plaintiff, who stated that his load shifted and caused

the accident.

¶ 10 Zezza testified at his deposition that it is a driver’s responsibility to use the most

appropriate load-securing method. Zezza testified that plaintiff voluntarily quit driving for

DSI on October 18, 2000. Prior to leaving, plaintiff had no safety issues indicated on his

record. Plaintiff returned to his employment with DSI sometime thereafter. According to

Zezza, plaintiff ultimately was terminated following the accident for operating a company

vehicle in an unsafe manner. Zezza, however, could not be sure that excessive speed was the

sole factor in plaintiff’s accident.

¶ 11 The trial court granted summary judgment in favor of defendant, finding that plaintiff

could not identify the cause of his accident and there were “a number of inferences that could

be drawn” as to the cause of the truck rollover. The trial court subsequently denied plaintiff’s

motion to reconsider, including language pursuant to Illinois Supreme Court Rule 304(a)

(eff. Feb. 26, 2010) such that the summary judgment order was “the final judgment with no

just reason to delay enforcement or appeal.”

¶ 12 DECISION

¶ 13 Summary judgment is proper where there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2000).

When considering a motion for summary judgment, a court must consider all of the evidence

strictly against the movant and in a light most favorable to the nonmoving party. General

Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284, 769 N.E.2d 18 (2002). We review a

trial court’s grant of summary judgment de novo. McNamee v. State, 173 Ill. 2d 433, 438,

672 N.E.2d 1159 (1996).

¶ 14 Proximate cause is an essential element of a negligence claim that, if not proven, will

prevent the plaintiff from establishing a prima facie case. Bermudez v. Martinez Trucking,

343 Ill. App. 3d 25, 29, 796 N.E.2d 1074 (2003). Although proximate cause generally is an

issue of fact, if the alleged facts show that plaintiff “would never be entitled to recover,

proximate cause can be determined by a court as a matter of law.” Strutz v. Vicere, 389 Ill.

App. 3d 676, 678-79, 906 N.E.2d 1261 (2009). At the summary judgment stage, a plaintiff

is not required to prove his case; however, he must present evidence to support the cause of

action. Id. at 678. “Liability cannot be predicated on conjecture; rather, proximate cause is

established when there is reasonable certainty that the defendant’s acts or omissions caused

the injury.” Id. at 679.

¶ 15 Proximate cause may be established through circumstantial evidence so long as “the

circumstances are so related to each other that it is the only probable, and not merely

possible, conclusion that may be drawn.” Keating v. 68th & Paxton, L.L.C., 401 Ill. App. 3d

456, 473, 936 N.E.2d 1050 (2010). Accordingly, “where the proven facts demonstrate that

the nonexistence of the fact to be inferred appears to be just as probable as its existence, then

the conclusion that exists is a matter of speculation, surmise, and conjecture, and the trier of

fact cannot be permitted to make that inference.” Id.

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¶ 16 The question before us is whether the facts alleged by plaintiff “affirmatively and

positively” showed with “reasonable certainty” that defendant’s method of loading the haul

down the middle of plaintiff’s truck caused the truck to tip over resulting in plaintiff’s

injuries. We conclude that plaintiff provided sufficient facts to state a prima facie case.

Viewing the pleadings, depositions, and affidavits in a light most favorable to plaintiff, we

find that the evidence established that the accident was probably, not merelypossibly, caused

by the leaning of plaintiff’s truck as a result of the haul having been loaded at half capacity

down the middle of the truck. Defendant did not present any evidence suggesting the road

conditions were a factor in the accident or that plaintiff had a history of recklessly driving

his truck. Rather, defendant solely relied on DSI’s internal conclusion, without physically

having investigated the crash sight or the truck, that the accident was caused by plaintiff’s

excessive speed. Erickson, Wiest, and Zezza were not truck drivers and had no accident

reconstruction education, training, or knowledge. Moreover, there were no witnesses to the

crash to support an inference that the accident resulted from driver error.

¶ 17 In contrast, Illinois State Trooper Wise attested that, based on review of his accident

report, plaintiff informed him that the truck began leaning to one side, which forced plaintiff

to lose control and caused the truck to roll over. Plaintiff’s statement qualifies as an excited

utterance admissible as evidence of proximate cause. Mangan v. F.C. Pilgrim & Co., 32 Ill.

App. 3d 563, 574, 336 N.E.2d 374 (1975). At his deposition, plaintiff testified that, although

he did not recall the details surrounding the accident, he did recall that his truck was loaded

with pallets down the middle to half capacity for the first time in his career. The bill of lading

confirmed his truck was loaded at half capacity. Grossman further confirmed that all of the

trucks were loaded on the date in question down the middle and that his truck, along with

two others, experienced leaning due to shifting loads. We recognize that defendant filed a

motion to strike Grossman’s deposition; however, defendant failed to obtain a ruling on its

motion and, therefore, anyobjection thereto has been waived. Woolums v. Huss, 323 Ill. App.

3d 628, 633, 752 N.E.2d 1219 (2001). Additionally, although it is unclear from the record

when the complaint was lodged, Wiest testified at his deposition that plaintiff reported that

his load shifted and caused the accident.

¶ 18 Contrary to defendant’s repeated inferential argument, plaintiff is not barred from

presenting a prima facie case on the issue of proximate cause merely because he does not

remember the accident. Essentially, under defendant’s argument, a plaintiff may never bring

a negligence claim if he does not remember the circumstances surrounding the event because

the proximate cause argument would necessarily be based on surmise and conjecture.

¶ 19 We find that Bermudez and Strutz, as relied upon by the trial court in granting summary

judgment and by defendant on appeal, are distinguishable, as is Majetich v. P.T. Ferro

Construction Co., 389 Ill. App. 3d 220, 906 N.E.2d 713 (2009). In Bermudez, this court

concluded that “there [was] a lack of any identifiable cause in the record for [the] plaintiff’s

accident.” Bermudez, 343 Ill. App. 3d at 33. The plaintiff in Bermudez alleged that he lost

control of his truck and collided with a barrier wall because the defendant was asleep instead

of monitoring the plaintiff’s driving. Id. at 30. The plaintiff, however, had no recollection of

the accident and there was no other evidence presented demonstrating how the accident

happened or why the plaintiff lost control. Id. at 27. Consequently, this court held that it was

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reasonable to conclude that any number of things caused the accident besides lack of

supervision. Id. at 31-32. Similarly, there was no evidence presented as to what caused the

plaintiff in Strutz to fall down the stairs in the defendant’s apartment building. Strutz, 389

Ill. App. 3d at 681. The plaintiff died shortly thereafter. There were no witnesses to the fall.

Id. at 680. An architect averred that the steps were dangerous, but there was testimony that

the plaintiff had health conditions and was walking down the stairs backwards. Id. This court

concluded that the plaintiff’s statement that he “fell down over the railing” did not provide

an explanation for the cause of the fall and, thus, could not create a genuine issue of material

fact as to causation. Id. at 681. In Majetich, the plaintiff fell in the defendant’s parking lot

and later died. The plaintiff’s estate alleged the defendant’s were negligent in maintaining

the lot. Majetich, 389 Ill. App. 3d at 224. There were no witnesses to the plaintiff’s fall and

the only thing she allegedly said after falling was she noticed a high step, reached for a pole,

and fell. Id. at 227. The plaintiff, however, had preexisting health conditions. Id. The court

concluded that there was no evidence presented from which it could be inferred that the

defendant caused the plaintiff’s injuries. Id.

¶ 20 Here, in contrast, there was evidence presented that defendant loaded plaintiff’s truck

down the middle of the trailer and at half capacity; 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 accident;

and that plaintiff suffered injuries as a result of the truck rolling over. In sum, we find there

is an issue of fact as to whether defendant proximately caused plaintiff’s accident and

injuries.

¶ 21 CONCLUSION

¶ 22 We conclude that plaintiff’s complaint presented a triable issue of fact and, consequently,

we reverse the trial court’s order granting summary judgment in favor of defendant.

¶ 23 Reversed; cause remanded.

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