## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Dowe v. Birm ingh am Steel Corp. , 2011 IL App (1st) 091997

Appellate Court Caption DEB RA DOWE, Independe nt Administrator of the Est at e of Sheena Dowe, Dec ease d, AMAUSAE A. DOWE, a minor, by an d t h ro u g h his Custodial Guar dian, DEB R A DOWE, SHALAI NE J OHNSON, SHALAI NE JOHNSON, as Mother and Ne x t Frie nd of Jodeon Rouser,

a Minor, ROBERT MUNSON, Independe nt Administrator of the Estate of Marie Alvina Munson, Dec ease d, KEL L EY WHI TAKER, P ersonal Represe ntative of the Estate J essica L ane Tickle, Dec ease d, MI CHEL L E PI ETTE and WARR EN PI ETTE, M AX BO NNI N, Personal Represe ntative of the Estate of J une Bonnin, Dec ease d, MAX BO NNI N,

as Fa ther and Next Fr iend of Ashley Bonnin, a Minor, BI L LY E. ADKI NS
, Personal Represe ntative of the Estate of Helena R. Adkins, Dec ease d, BLANCHE R. J ONES and DERRI CK J ONES, CHARL ENE A. HEMPFL I

NG, NANCY D. HAI GH, MARY MOSL EY, Individually and as Mother and Next Fr iend of Ashley Mosley
, a Minor, J OH N S. VANT, Ex ecutor of the Estate o f Virg il Vant, Dec ease d, J OHN S. VANT, Ex ecutor of the Estate of L eona Vant, Dec eas ed
, J OHN S. VANT, Ex ecutor o f the Estate of Wendy Vant Dec ease d, MI NNI E C. STEWAR T, R AY STEWAR T, J R., CEDRI C STEWAR T, RAY STEWAR T as Conservator of the Estate of Orra n Stewart, Dec ease d, GA I L GORDON- AL L EN and AARON AL L EN, SARAH DUDL E Y, GREGORY HERMAN, Individually
, L I SA D. HERMAN, Individually
, L I SA D. HERMAN, Mother and Next Fr iend of Kristen E. Her man, a Minor, Mother and Next Friend of Ka i t l i n G. Her man, a Minor, and Mo t h er and Next Fr iend of David G. Her man, a Minor, NANCY M. SCHAFL E, DOL ORES BELL and ROBERT BEL L
, SUASAN FAL L S, J ENNIFER FAL L S, J OHN FALL S, ANDREA SHI DL E, J OS EPH SHI DL E, MARI LYN SHI DL E, J OHN STOL FA, CAMI L L E STOL FA, BLANCHE FORTUNE
, Plaintiffs-Appellants and Cross-Appellee s, v. BI RMI NGHAM STEEL

CORPORATI ON, De fenda nt-Appellee andCross-Appellant.–NA TI ONAL RAI L ROAD PASSENGER CORPORATI ON, d/b/a Amtrak, Plaintiff-Appellant and CrossAppellee , v. BI RMI

NGHAM STEEL

CORPORATI ON, De fendantAppellee and Cross-Appe llant (Melco Tr ansfe r, Inc., and John St okes, Def endants).

District & N o. First District, F irst Division
Docke t Nos. 1-09-1997, 1-09- 2006 cons.

Filed Dec ember 19, 2011

Held (Note : Th is syl lab us

con s ti tut es no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt 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 arising from a collision be tween a semi tractor -trailer

and a
passeng er train at a crossing that resulted in multipl e fata lities and injuries, plaintiff’s notice of appea l from the entry of summary judgme nt ag ainst plaintiff was sufficie nt to confe r appellate jurisdiction over all of the 31 other plaintiffs, even though the orig inal purpose for consolidating the actions was to conduct discovery and mo t i o n p ra ctice related to liability
, and the entry of summary judgme nt for the manufa cture r of the steel being hauled on the truck was upheld on the g rounds that the truck driver was not acting as the manufa cture r’s ag ent, plai ntiffs failed to establish that the manufa cture r had a duty to preve nt the alleg edly sleepdeprive d driver from l eaving the s teel mi ll, and the transportation of an oversized load of steel did not cre ate a “pec uliar risk” of harm that would

war rant ig noringthe driver ’s status as an inde pendent c ontrac tor.

Dec ision Under Review Appea l from the Circuit Court of C ook County
, Nos. 99-L -3 194, 01-L

3100 cons.; the Hon. Willi am D. Maddux, J udg e, pre siding.

J udg ment Affir med.

-2-Counsel on

Appea l Michae l K. Demetr io, of Corboy & Demetrio, of Chicag o, and Micha el T. Reag an of Her

bolsheimer, L annon, Henson, Dunca n & Reag an, P.C., of Ottawa , for a

ppellants.

David F. R y an an d Denise Keliuotis, both of Patten & Ry an L L C, and Robert J . Fr anco, V incent P.Tomkiewicz, and Christopher M. Cano, all of Bolling er, Ruberry & Gar vey , both of C h i ca go, for appellee Birmingham Steele Corp.

Susan K. L ang and Diane I

. J enning s both of Ander son, Rasor & Partners, L L P, of Chicag o, for a ppellee Amtrak.

Panel J USTI CE HAL Ldelivere d the judg ment of the c ourt, with opinion. Presiding J ustice Hoffma n and J ustice Kar

nezis con cu rr ed in the judgme nt and opinion.

OP INION

¶ 1 This consolidated appeal a ri s es o u t of a collision betwee n a semi trac tor-tra iler and an Amtrak passeng er train at a railroa d crossing in Bour bonnais, I llinois
, on Marc h 15, 1999, 1 at appr ox imately

9:47 p.m. For the r easons that f ollow, we af

firm.

¶ 2 BA CKGROUND ¶ 3 The trac tor-tra iler at issue was driven by J ohn Stokes. Stokes is em p l o y ed b y M el co Transf er, Inc. (Me lco). Melc o is an independent ca rrier that employ s drivers to haul g oods for various companies. J ust prior to the collision, Stokes had picked up a larg e load of 3/4- inch-thick, 6 0 -foot-long steel reinfor cing bars, commonly known as reba r, from the Birmingham Steel Corporation (B irmingha m Steel). Rebar is a bar or rod o f s teel used to reinfor ce concr ete. Stokes was schedule d to transport and deliver the reba r to Gem City Steel in Day ton, Ohio. ¶ 4 The Amtrak passeng er train collided with the rea r of the trac tor-tra iler as Stokes ignored flashing war

ning lights at the railroa d crossing and attempted to dr ive throug h the crossing ahea d of the oncoming train. The collision cause d piece s of reba r to be t h ro wn o n t o t h e trac ks dera iling t h e locomotives and most of the passeng er car s. Eleven passeng ers wer e killed and many

others we re injure d in the dera ilment and resultingfire.

Amtr ak is off

ic ia ll y k nown a s t he Na ti ona l Ra il roa d Pa sse nger Corpor at ion

. 1

-3-¶ 5 The acc ident led to the filing of numerous lawsuits that wer e l i t i gat ed i n the Northe rn

District of I llinois and the circ uit court of Cook Count y . In fede ral c ourt, Debr a Dowe and a number of ot her plaintiffs (Do we p laintiffs) filed suit ag ainst Amtrak. Dowe v. National R.R. Passenger Corp.
, No. 01 C 5808, 2003 WL 22383016 (N.D. I ll. Oct. 17, 2003). Amtrak, in turn, filed a thi rd -p arty action for contribution ag ainst Birmingham Steel, Melco, and Stokes based on the theory that Stokes was ac ting as an age nt for Birming ham S teel at the time of t he collision there by making the steel company vicar iously liable for Stokes’
neg lige nt conduct. ¶ 6 Meanwhile, in the circuit court, Ange la W ilson-McCr ay , suing indivi dually and as the mother and next frie nd of her minor son, filed a single persona l injury suit ag ainst Amtrak, Birmingham Steel, Melco, Stokes and various ot h er enti ties. Amtrak remove d the case to fede ral court. Wil son-McCra y v. Stokes, No. 01 C 1929. Amtrak and Birmingham Steel filed third-par ty actions ag ainst eac h other for contribution alleg ing that the other wa s liable for the neg lige nt acts of Stokes base d on theories of ag ency

. ¶ 7 The two fede ral case s wer e consolidated for pretria l purposes. W ilson-McCray v. Stoke

s , No. 01 C 1929, 2003 WL 22901569, at *1 (N.D. I ll. Dec

. 9, 2003). Birmingham Steel moved for summary

judgme nt on the consolidated fe dera l case s. ¶ 8 During the penden cy o f t h e fede ral case s, Dowe and a number of other plaintiffs filed
separ ate lawsuits in the circ uit court ag ainst Birmingham Steel and the other defe ndants for
p e r s o n a l in

ju r y , wr o n g f u l d e a th
, and survival claims. The separ ate lawsuits wer e consolidated in the circ uit court for purposes of conducting discovery and motion p ra ct i ce

. Dowe v. Birmingha m Steel Co., No. 99 L 3194 (Cir. Ct. Cook Co.) Amtrak filed suit in the circ uit
court ag ainst Birmingham Steel, Melco, and Stokes for the economic losses it incurre d as a result of the incident. National R.R. Passeng er Corp. v. B irmingha m Steel Corp., No. 01 L 3100 (Cir. Ct. Cook C o.) ¶ 9 Ba ck in fede ral court, the district court g rante d partial summary judgme nt i n fa v o r o f Birmingham Steel. In reg ard to the ag ency issue broug ht by Amtrak and Wil son-McCra y , the dis t ri ct co u rt deter

mined that Birmingham Steel was entitled to summary judgme nt on all claims premised on the theory of ag ency afte r the court conclude d that Stokes was not acting

as Birmingham Steel’s ag ent at the time of the acc ident. W ilson-McCray v. Stokes
, 2003 WL 22901569, at *6. ¶ 10 The district c ourt also found that Birmingham Steel was entitled to summar y judgme nt reg arding the claims made by Wil son-M cC ray that Birmingham Steel was liable for alleg edly : overloa ding the trac tor-tra iler; placing near by railca rs in positions that obstructed Stokes’ view of r ailroad tra ffic; f ailing to a ssist S tokes in safe ly leavingthe steel mill; and
neg lige ntly entrusting the load of steel to Stokes when it either knew or should have known that Stokes was too sleep-de prived to drive safe ly

. The district court found that Birmingham Steel was entitled to summar y judgme nt on these claims beca use Wil son-McCra

y failed to ref ute the steel company ’s contentions that it was not liable on these claims. W ilson-McCray v. Stoke s , 2003 WL22901569, at *2. ¶ 11 The district court further conclude d, howeve r, that Birmingham Steel was not entitled to summary judgme nt concerning Amtrak’s cross-c laims of direc t neg lige nce ag ainst

-4-Birmingham Steel beca use Birmingham Steel’s motion for s u m m ary judgme nt failed to addre ss these claims, and its reply brief in which these claims wer e addre ssed, came too late. W ilson-McCray v. Stokes
, 2003 WL 22901569, at *2. As a result, the district court held that Amtrak’s cross-c laims of direc t neg lige nce ag ainst Birmingham Steel rema ined pending for trial. W ilson-McCray v. Stokes
, 2003 WL 22901569, at *6. Be fore these cross-c laims could be tried, Amtrak settled the pe rsonal injury actions pendingin fede ral c ourt. ¶ 12 On J uly 1, 2009, the circ uit court gra n t ed s u mmary judgme nt in favor of B irmingha m Steel and ag ainst Amtrak and the Dowe plaintiffs. The circ uit court held that: Stokes was not acting as Bi rm i n gh am Steel’s ag ent at the time of the acc ident; the plaintiffs failed to establish a claim for neg lige nt entrustment beca use they failed to show that Birmingham Steel had a duty to pr event an alleg edly sleep-de prived Stokes from driving out of the steel mill with the load of steel; and the transportation of the oversized load of steel did not cre ate

a “pec ul i ar ri s k ” of harm to others such that Stokes’ status as an independe nt contra ctor should be ig nored. ¶ 13 Howeve r, the circ uit court denied t h at p o rt i o n o f Bi rm i n gh am Steel’s motion for
summary judgme nt pre m ised on the doctrines of res judicata and collater al estoppel. The circ uit court’s resolution of Birmingham Steel’s motion for summary judgme nt left

rema ining Amtra

k’s claims ag ainst Melco and Stokes. ¶ 14 Amtrak filed a ti mely notice of appea l pursuant t o I llinois Supreme Court Rule 304(a) (I ll. S. Ct. R. 304(a) (ef

f. J an. 1, 2006)), afte r the circ uit court enter ed an order finding that there was no just rea son to delay enfor ceme nt or appea l of its ruling granting summary judgme nt in favor of Birmingham Steel. The Dowe plaintiffs’ not i ce of appea l and Birmingham Steel’s notice of cross-a p p eal wer e timely filed pursuant to I llinois Supreme Court Rules 301 and 303(a) (3). I ll. S. Ct. R. 301 (ef f. Fe b. 1, 1994); R. 303( a) (ef f. J une 4, 2008). These appea ls wer e consolidated for our revie w. The following issues are prese nted
on appea l. ¶ 15 Birmingham Steel argues that the notice of appea l filed by Debr a Dowe on behalf of the Dowe plaintiffs was only sufficie nt to confe r appellate jurisdiction over Debr a Dowe, as the administrator of the estate of Sheena Dowe, dece ased, and was insufficient to confe r jurisdi ct i o n o v er the other Dowe plaintiffs. The steel company further contends that the circ uit court err ed in denying that portion of its motion for summary judgme nt premised on the doctrine s of res judicata and collate ral e stoppel. ¶ 16 Amtrak contends that the circ uit court err ed in grantingsummary judgme nt in favor of Birmingham Steel bec ause there were g enuine issues of material fa ct as to whe ther Stokes

was acting as the steel company ’s ag ent rathe r than an independe nt contra ctor when he drove his truck ac ross the ra ilroad cr ossing a nd collided with the train. ¶ 17 Amtrak an d t h e Dowe plaintiffs argue that the circuit court erre d in g rantingsummary judgme nt in favor of

Birmingham S teel because there wer e g enuine issues of material fa ct

as to whether Birmingham Steel neg lige ntly entrusted the load of reba r to Stokes and whether it should be held liable for the actions of Stokes under the principles set forth in sections 413, 416, and 427 of the Restatement (Second) of Torts (these sections contain exceptions to the
g ener al rule that an employ er is not liable for the neg lige nce of its independent contra ctor)

-5-(Restateme nt (Second) of Torts §§ 413, 416, 427 (1965))

. Finally
, the Dowe plaintiffs

contend that Birmingham Steel voluntarily as s u m ed the duty to scrutinize its drivers and

ensure that its product was saf ely secur ed on the truc ks. Ag ain, we a ffirm.

¶ 18 ANALYSI S ¶ 19 Birmingham Steel initially challeng es our ju ris d ic ti o n over the Dowe plaintiffs other than Debr a Dowe. The steel company contends that the notice of appea l filed by Debr a Dowe on behalf of the Dowe plaintiffs was only sufficie nt to confe r appellate jurisdiction over Debr a Dowe, as the administrator of the estate of Sheena Dowe, dece ased, but w as insufficient to confe r jurisdiction over the 31 othe r Dowe plaintiffs. ¶ 20 Bi rm i n gham Steel argues that eac h of the 32 separ ate lawsuits orig inally fi l ed i n t h e circ uit court re tained its separ ate identity and that the order consoli dating the cases for the
purposes of discovery and motion prac tice did n o t d ep rive the case s of their separ ate identities. Birmingham Steel maintains there fore that separ ate notices of appeal wer e require d to be filed under Rule 303 fo r ea ch o f the separ ate bodily injury lawsuits. We disag ree

. ¶ 21 Actions pending in the same court may be consolidated “as an ai d t o co n v enience, whene ver it can be done without prejudice to a substantial rig ht.” 735 I L CS 5/2-1006 (West 2002). Our courts have rec og nized three differ ent forms of consolidation: (1) wher e sever al

case s are pending involving substantia l l y t he same subject matter, the court may stay the
proce eding s in all but one and then see whether the dispositi on of the one case may settle the others, there by avoiding multipl e trials on the same issues; ( 2) wher e sever al case s involve

an inquiry into the same event in its g ener al aspec ts, the case s may be tried toge ther, but with
separ ate docket entries, verdic ts and judgme nts, the consol i d at i o n being limit ed to a joint trial ; and (3) wher e sever al actions are pending that might have been broug ht as a single action, the case s may be merg ed int o one action, there by losin g t h ei r i ndividual identities, and be disposed of in one suit. Black Hawk Motor Transit Co. v. Illinois Commerce Comm’n
, 383 I ll. 57, 67, 48 N.E.2d 341 (1943); Turner v. W illiams
, 326 I ll. App. 3d 541, 547, 762 N.E.2d 70 (2001)

. ¶ 22 Our revie w of the rec ord indicates that even though the orig inal stated purposes for the consolidation was to conduct discovery and motion prac ti ce as i t related to liability
, the consolidation was much broade r and actua lly comes within the third cate g ory

. To deter mine whether a particula

r consolidation was for dispositi on, the test is whether the case s might have been the subject of a single proce eding or could have been broug ht as one action. Vitale v. Dorgan , 25 I ll. App. 3d 941, 944, 323 N.E.2d 616 (1975). ¶ 23 Her e, the circ uit court consolidated the 32 separ ate bodily injury lawsuits for dispositi on by summary judgme nt. The circ uit court’s ord er g ranting summary judgme nt in favor of Birmingham Steel and ag ainst Amtrak and the Dowe p l ai n t i ff s appli ed to all of the consolidated c ases a

nd it ga ve rise to only

one judg ment to be appe aled f rom. ¶ 24 I f we acc epted Birmingham Steel’s position, this would g o ag ainst the stated purpose of consolidation, which is to expedite the resolution of lawsuits, conser ve time, an d av oid duplicating eff

orts and unnece ssary expenses. See J.S.A. v. M.H.
, 384 I ll. App. 3d 998, 1004-

-6-05, 384 N.E.2d 682 (2008). We find that the notice of appea l filed by Debr a Dowe on behalf

of the Dowe plaintiffs was sufficie nt to confe r appellate jurisdiction over the 31 other Dowe plaintiffs. ¶ 25 We also note t h at , as a p ro ce du ra l m att er, Birmingham Steel’s cross-a ppeal wa s improper. Our

supreme c ourt has held that “[a] party cannot complain of err or which doe s not prejudicia lly aff

ect it, and one who has obtained by judgme nt all that has been asked for in the trial court c annot appe al from the judg ment.” Material Servic e Corp. v. De partment of R eve nue , 98 I ll. 2d 382, 386, 457 N.E.2d 9 (1983). In the proce eding s below, the circ uit
court g rante d summary judgme nt in favor of Bi rming ham Steel as to all claims pending
ag ainst it, g iving it all of the relief asked for in the motion, and there fore its cross-a ppeal was improper. See Evans v. Lima Lima Flight Team, Inc.
, 373 I ll. App. 3d 407, 418, 869 N.E.2d 195 (2007). ¶ 26 Turning to the merits of the appea l, Am t ra k an d t h e Dowe plaintiffs contend that the circ uit court erre d in g ranting summary judgm en t i n favor of Birmingha m Steel beca

use a number of g enuine issues of materia l fac t rema in in dispute. Summary judgme nt is
appropr iate wher e t h e p leading s, depositions, and admissions on file, toge ther with any aff idavits an d exhibi ts, when viewed in the light most favor able to the nonmoving party , indicate that no g enuine issues of materia l fac t exis t and that the moving party is entitled to judgme nt as a matter of law. 735 I L CS 5/2-1005(c) (West 2000); Bier v. Leanna Lakeside Property Ass’n , 305 I ll. App. 3d 45, 50, 711 N.E.2d 773 (1999). ¶ 27 In ruling on the motion, the circ uit c ourt is r equire d to c onstrue all evidentiar y materia l strictly ag ainst the movant and liberally in favor of the nonmovant. Tolve v. Ogden Chrysler Plymouth, Inc.
, 324 I ll. App. 3d 485, 489, 755 N.E.2d 536 (2001). Our revie w o f a ci rcuit court’s order gr anting summary judgme nt is de n o vo

. Sears Roebuck & Co. v. Acceptanc e InsuranceCo. , 342 I ll. App. 3d 167, 171, 793 N.E.2d 736 (2003). ¶ 28 Amtrak argues that g ranting summary judgme nt in fa v o r o f Bi rm ingha m Steel was improper beca

use a g enuine issue of materia l fac t exis ts as to whether Stokes was acting as the s t ee l company ’s ag ent rathe r than an independe nt contra ctor when he drove his truck

acr oss the railroa d crossingand collided with the tra in. We mustdisag ree

. ¶ 29 The test of whether an individual is an ag ent or i n d ep endent contra ctor is g ener ally a question of fac t for the trier of fac t. Doyle v. Shlensky
, 120 I ll. App. 3d 807, 821, 458 N.E.2d 1120 (1983). Howeve r, when the fac ts are not in dispute, the trial court is permitted to decide the issue as a matter of law and g rant summary judgme nt. Stewart v. Jones
, 318 I ll. App. 3d 552, 561, 742 N.E.2d 896 (2001)

. ¶ 30 Among the fac tors to be considere d in deter mining this issue are : the right to control the

manner in which the work is perf ormed; the rig ht to discharg e; the method of pay ment; who provides the tools, mate rials, or equipment; the level of skill re quired to pe rfor m the work; and who deducts or pay s for insurance
, social secur ity
, and taxes on the employ ee’ s behalf

. Lang v. Silva , 306 I ll. App. 3d 960, 972, 715 N.E.2d 708 (1999); W heaton v. Suwana , 355 I ll. App. 3d 506, 511, 823 N.E.2d 993 (2005). No single fac tor is deter minative, but the rig ht
to control the manner in which the work is perf ormed is considere d to be the most important fac tor. Lang
, 306 I ll. App. 3d at 972; Shoemak er v. Elmhurst-C

h i ca g o Stone Co.
, 273 I ll.

-7-App. 3d 916, 920, 652 N.E.2d 1037 (1994); Simich v. Edgewater Beac h Apartments Corp.
,

368 I ll. App. 3d 394, 402, 857 N.E.2d 934 (2006) (“[t] he righ t t o co n t ro l the manner in which wor

k is perfor

med is considere d the ‘ha llmark of ag ency ’ ”)

. ¶ 31 In this case , the evidenc e establishes that Birmingham Steel did not re t ain the rig ht to control the manner in which Stokes ha uled steel from the steel mill. Stokes: c hose his own route; controlled his own h o u rs; provided and maintained his own equipment; was paid direc tly by Melco, which also paid his liability and car g o insurance ; a nd perf ormed his job pursuant to rules he rec eived from Melco. I n addition, Birmingham S t eel had no authority to discharg e Stokes from his employ ment with Melco. ¶ 32 Amtrak a

rgues that an ag ency relationship was established betwee n Birmingham S teel and Stokes through the following : the volume of hauling that Stokes perf ormed for Birmingham steel; Stokes’ asser tion t h at h e deeme d himself to be Birmingham Steel’s “house” truck; the fac t that Stokes hauled all of Birmingham Steel’s oversized loads of reba r; the fac t that Melco had a written agree ment with Birmingham Steel under which Melco

ex cl u sively assig ned drivers and trucks; the fac t that Birmingham Steel had written rules
g overning the conduct of drivers at the steel mill and the manner for loading the trucks; and the fac t that Birmingham Steel had the rig ht to terminate the service s of a driver if it believed the driver was not per formingthe work in a safe manner , he wa s impaired, or it re ceive d a customer’ s complaint. ¶ 33 None of these fac tors g ave Birmingham S t ee l t h e authority to control the manner in which Stokes hauled steel from the steel m i ll. See W ilson-McCray v. Stokes
, 2003 WL 22901569, at *3-6. Rather, the evidenc e shows that no ag ency relationship exis ted betwee n Birmingham Steel and Stokes. ¶ 34 Amtrak and the Dowe plaintiffs contend that g enuine issues o f m ater ial fac t rema in as
to whether Birmingham Steel neg lige ntly entrusted the load of reba r to Stokes. They cite to the g ener al rules of liability for neg lige nt entrustment set forth in sections 307 and 308 of the Restatement (Sec ond) of Tor ts. ¶ 35 Section 307 provides:

“It is neg lige nce to use an instrumentality
, whether a human being or a thing, which the actor knows or should know t o be so incompetent, inappropriate, or defe ctive, that its use involves an unrea sonable risk of harm to others.” Restatement (Second) of Torts § 307 (1965). ¶ 36 The Dowe plaintiffs claim that in this case the “i n s t ru m en t al i t y” was a human being
, Stokes himself. They argue that Birmingham Steel was neg lige nt in using Stokes to transport the load of reba

r when it knew or in the exercise of rea sonable car e should have known that he wa s too phy sically

impaired by

a lac k of sleep to dr ive safe ly

. ¶ 37 “The re can be no rec overy in tort for neg lige nce unless defe ndant brea ched a duty owed.” Starr v. W

ard
, 289 I ll. App. 3d 299, 304, 681 N.E.2d 1064 (1997). There fore
, the threshold inquiry is whether Birmingham Steel had a duty to preve nt an al l ege d ly sleep-de prived Stokes from leaving the steel mill with the load of reba r. Whether a duty exis ts is a question of law for the court to decide

. Gallagher Corp. v. Russ
, 309 I ll. Ap p

. 3d 192, 197, 721 N.E.2d 605 (1999)

.

-8-¶ 38 The Dowe plaintiffs alleg e that Birmingham Steel h ad s u ch a du t y stemming from its

authority to refuse to load a truc k or issue a bill of ladingwher e it deter mined that a drive r

was too impaired to drive safe ly

. We disag ree

. Under the circ umstances in this case , we find that Birmingham Steel’s authority to ref use to load Stokes’ truck or issue a bill of lading did
not cre ate a duty on the part of t he st eel company to preve nt Sto k es fr o m leaving the s teel mill wit h the load of r ebar based on his alleg ed impairment due to fatigue. ¶ 39 Deposition testimony was prese nted t h at Birmingham Steel had previously ref used to load a truck beca

use of a driver’ s impairment due to intox ication and drunkenne ss. Howeve r, there is no objective means of measuring fatigue like there is for alcohol and drug intox ication. And even if we assumed that fatigue was a fac tor in the acc ident, the evidenc e indicates that Stokes either did not know the extent of his own fatigue or he ignor ed the risk and continued dr iving de spite experiencingsy mptoms of fatigue. ¶ 40 S t o k es indicated that he was not tired at the time of the acc ident. M s

. C h ar l en e L

. Cannon, Birmingham Steel’s shipping cler k, who was one of the last persons to see Stokes leave the steel mill prior to acc ident, testified at her deposition that Stokes told her that if he beca me tired he would pull off the road. Ms. Cannon testified that on previous occa sions she had seen other drivers come to the steel mill looking tired, but that Stokes did not look tired. More o v er , M s. Cannon had no information conce rning the number of hours Stokes had worke d prior to arr iving at t h e steel company

. In addition, evidenc e was prese nted that Stokes did not appea

r to be tired afte r the acc ident. Under these circ umstances, Birming ham Steel should not be char g ed with having knowled ge o f Stokes’ alleg ed impairment due to fatigue. ¶ 41 We also note that Stokes w as an experience d trucke r. He was there fore the person who

was in the best position to assess whether he was too fatigue d t o drive safe ly

. See, e.g. , Behrens v. Harrah’s Illinois Corp.
, 366 I ll. App. 3d 1154, 1157, 852 N.E.2d 553 (2006) (“[a] n em p l o y er should be able to presume that the person in the best position to avoid driving while excessively fatigued, the employ ee, will either ask for a ride from someone or pull off the roadw ay and rest if nece ssary ”). “Ac cording ly
, on these fac ts, we do not find that

a leg al duty exis ted on the part of Birmingham Steel for which a neg lige nce claim could be
proper ly assert ed

. ” Ma r tin v. Illinois Central R.R. Co.
, 2006-1495, at 6 (L a. App. 4 Cir. 12/19/07); 974 So. 2d 741, 745. ¶ 42 Section 308 of the Restate ment (Second) of Torts provide s:

“It i s n eglig ence to permit a third person to use a thing or to eng ag e in an activ i t y which is under the control of the actor , if t he actor knows or should know that such person intends or i s lik el y to use t he thi ng or t o conduct hims elf in the activity in such

a manner as to cre ate an unrea sonable risk of harm to others.” Restatement (Second) of Torts § 308 (1965). ¶ 43 Amtrak and the Dowe plaintiffs co n t en d t h at Bi rm i n g ham Steel was neg lige nt in entrustingStokes with the “ac tivity ” of dr iving the loa d of re bar out of the s teel mill when it knew or in the exercise of rea sonable car e should ha ve known that he was too phy sically impaired by a lack of sleep to drive safe ly

. This argument fails for the same rea son discussed above: Birmingham Steel’s authority to ref use to load Stokes’ truck or issue a bill of lading

-9-did not cre ate a duty on the part of the steel company to preve nt Stokes from eng ag ing in the

“ac tivity ” of leaving the steel mill with the load of reba r based on his alleg ed impairment due
to fatigue, wher e Birmingham Steel could not be char g ed with having knowledg e of Stokes’ alleg ed impairment and Stokes himself was in the best position to deter mine whether he was too fatigued to drive sa fely

. ¶ 44 Amtrak and t h e Do we plaintiffs next contend that summary judgme nt was improper beca use questions of fac t exis t as to whether Birmingham Steel should be held liable for the actions of Stokes under the principles set forth in sections 413
, 4 1 6
, an d 427 of the Restatement (Second) of Torts. These secti o n s contain ex ceptions t o the gene ral rule that 2 an employer is not liable for the neg lige nce of its indepe ndent contra ctor. See Restateme nt (Second) of To rt s § 409 (1965). The questions here are whether the transporta tion of an oversized load of steel over the highw ay s was a peculiar risk within the meaning of sections 413 and 416 of the Restatement (Second) of Torts, or an inhere ntly dang erous activity within the meaning of section 427 of the Restatement (Second) o f T o rts. We must answe r in the
neg ative. ¶ 45 The Restate ment define s “pec uliar risk” a s follows:

“[A] risk differing fr o m the common risks to which persons in g ener al are commonly subjected by the ordinary forms of neg lige nce which are usual in the community

. I t must involve some specia l hazard resulting from the nature of the work done, which calls for specia l prec autions. (See § 413, Comment b .) Thus if a con t ra ctor is employ ed to transport the employ er’ s g oods by truck over the public high wa y , the employ er is not liable for the contra ctor’s failure to inspect the brake s on his truc k, or for his dr iving in

Sec ti on 4 13 p rovid es: 2 “One who employs an ind epe nde nt con tr act or to do work whic h t h e employer sho uld re cognize as li kely to cr eat e, dur ing it s pro gress , a pec uli ar unr eas onable ri sk of physic al har m to oth er s unl ess spe ci al pre cau ti ons a r e t a ke n , is sub j ect to li abi li ty for physic al har m

ca use d t o t hem by

th e abse nce of

suc h pr eca uti ons if

th e e m plo yer (a ) fa il s to pro vide in the con tr act tha t the con tr act or sha ll ta ke suc h pre cau ti ons , or (b) fa il s to exe rc is e re aso nab le car e to pro vide in some oth er m ann er for the ta king of suc h pr ecauti ons .” Re st at ement ( Sec ond) of T ort s § 413 (19 65)

. Sec ti on 4 16 p rovid es: “One who employs an ind epe nde nt con tr act or to do work whic h t h e employer sho uld re cognize as li kely t o cr eat e dur ing it s pro gress a pec uli ar ri sk o f p hysic al har m to oth er s unle ss spe ci al pre cau ti ons ar e taken, is subj ect to li abi li ty for physic al har m cau sed
to the m by the fa il ure of the con tr act or to exe rc is e re aso nab le car e to ta ke suc h pre cau ti ons , even though the em

plo yer has pro vided for suc h pre cau ti ons in the con tr act or oth erwis e.” Rest at ement ( Sec ond) of

T ort s § 416 (19 65)

. Sec ti on 4 27 p rovid es: “One who employs an ind epe nde nt con tr act or to do work invol ving a spe ci al dan ger to oth er s whic h the employer knows or has re aso n to know to be inh er ent in or nor m al to the work, or whic h he con te m pla te s or has re aso n to con te m pla te when m aking the con tr act , is sub j ect to li abi li ty for physic al harm cau sed to suc h oth er s by the con tr act or’ s fa il ure to ta ke

re aso nab le pre cau ti ons agains t suc h dan ger.” Rest at ement (Se con d) of T ort s § 427 (19 65)

.
-10-excess of the speed limit
, beca use the risk is in no way a peculia r o ne, and only an ordinary prec aution is called for. But if the contra ctor is employ ed to transport g iant logs weig hing sever al tons over the highw ay , the employer will be subject to liability for the
contra ctor’s failure to take specia l prec auti o n s to anchor them on his trucks.” Restatement (Sec ond) of Tor ts § 416 cmt. d, at 397 (1965). ¶ 46 Amtrak and the Dowe p l ai n t i ff s argue that Birmingham Steel was neg lige nt in using
nylon straps, rathe r than stee l chains, to a nchor the load of stee l reba r to the flatbe d trailer. We disag ree

. ¶ 47 The manner in which the load of reba r was anchor ed and secur ed to the flatbed trailer had nothing to do with the cause of the acc ident. The acc ident arose fr o m S t o k es ’ conduct in ignor ing the flashing war

ning lights at the railroa d crossing and attempting to drive throug h the crossing ahea d of an oncoming tr ain trave ling at near ly 80 miles per hour, wher e the resulting collision cause d piece s of reba r to be thrown onto the trac ks dera iling the train. In this case , the activity of transporting the oversized load of steel was not a peculiar risk within the meaningof sec tions 413 and 416 of the Restateme nt (Second) of Torts. ¶ 48 In addition, such activity was not inhere ntly dang erous within the meaning of section 427 of the Restatement (Second ) of Torts. Inhere ntly dang erous “wor k involves the use of instrumentalities, such as fire or high explos ives, which requir e constant attention and skillful manag ement in order that they may not be harmful to others. *** It is not, howeve r, limit ed to such highly dang erous activities. The rule applies equally to work which, althoug h
not highly dang erous, involves a risk rec og nizable in advanc e that dang er inhere nt in the work itself, or in the ordinary or presc ribed way of doing it, may cause harm to others.” Restatement (Second) of Torts § 427 cmt. c, at 416 (1965). Transpor ting a proper ly secur ed oversized load of stee l over the highway does not fall within this categ ory

. ¶ 49 The Dow e plaintiffs ne x t contend that B irmingha m Steel voluntarily

assumed the duty
to sc rutiniz e its drive rs and to e nsure that its produc t was saf ely secur ed on the trucks. The Dowe plaintiffs maintain that Birmingham Steel assumed such a duty based on its authority
to ref use to load a truck or issue a bi l l o f l ad i ng wher e it deter mined that a driver was too impaired to drive safe ly

. Ag ain, we m u s t d isag ree

. There is no evidenc e that Birmingham Steel undertook any duty in reg ard to S tokes. Moreove r, the rec ord indicates that Stokes’
neg lige nt driving was the proxi mate cause of the acc ident, not the manner in which his truck was loade d or the load se cure d. ¶ 50 For

the fore g oing r easons, the judg ments of the cir cuit court a re a ffirme d.

¶ 51 Affir

med.

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