1

Rule 23 order filed NO. 5-06-0231 August 5, 20 08; Motion to publish gran

ted IN T HE September 18, 2008. AP PEL LA TE C OU RT OF ILLIN OIS FIF TH DIST RICT

________________________________________________________________________ HO LL YW OO D T RU CK IN G, I NC ., ) Appeal from the ) Circui t Court of Plaintiff-A ppella nt, ) Sa line C oun ty. ) v. ) No. 06 -L-1 ) RO GE R W AT TE RS , M .D., ) PRIMA RY C ARE G ROU P, and ) JAMES ATKI NSON, ) Ho nora ble ) Bru ce D . Stew art, Defendan ts-Appellees. ) Judge, presi ding.

________________________________________________________________________ JUS TIC E D ON OV AN delive red the opin ion o f the c ourt: The plaintiff, Hollywood Trucking, Inc. (Hollywoo d), file d a three -count compl aint in the circuit

court of Saline County, against the defend ants, Rog er Wa tters, M.D., Prim ary Care Grou p (Primary Ca re), a nd J am es A tkin son . In the compl aint, Hollywood alleged t hat Dr. Wa tters neg ligently certif ied A tkinso n's physica l fitness to operate a commercialmotor vehic le under regul ations establ ished b y the U nited St ates Depart ment of Transportati on (DOT) (count I ); t

hat Dr. Watt ers fr audulent ly certi fiedthat A tkinso n w as ph ysically fit to oper ate a com mercial m otor vehicle un der DO T regu lations (count II); that J ames Atkinson fraud ulently misrepr esented hi s medicalhist oryin that he fail ed to dis close prior back surgeri es during the DOT certifi cati on exam ination (coun t III); and that if it had been a ware of Atkinson' s back condition, i t would not have hired A tkinso n and it wo uld not hav e be come liable to pro vide b enefits to him und er the Illin ois Work er s' Compe nsati on Ac t ( 820 ILCS 305/1 et se q. (West 2 002)). All the defendants file d motions to dis miss the counts aga inst them pursuant

to section2

2-619 of the Illinois C ode o f Civ il Pro ced ure (Co de) (73 5 IL CS 5/2 -61 9 (W est 2 004 )). After considering the pa rties' argum ents, the circuit co urt dis miss ed with prej udice count I and countIII but

let c ount II stand. The court expre ssly foun d that th ere w as no just reas on to delaythe enforc emen t or appeal of its rulings. Hollywood filed this appeal p urs uant t o Illinois Suprem e Cou rt Rule 304 (a) (210 Ill. 2d R. 30 4(a)). Hollywood is an inters tate motor carri er located in Eldorado, Il linois. Its operati ons
are regulat ed by t

he DOT. The D OT imposes a number of rules on interstate m otor carriers and the pe rsons wh o driv e com merc ial mo to r vehicl es for th ose car

ri er s. See 49 C. F. R. §§391.1, 391.11(a) (2005). Each motor carrier is re quiredto inves tigat e and make inquiries with r espectto th e ba ckg ro und s a nd qual if ic at io ns o f the dri ver

it empl oy s. 49 C. F. R. §391.23 et

seq. (2005). Each driver is re quired t o periodi call y submi t to r oad te st s ( 49 C. F. R. §391.31 (2005)) and physical e xam ination s (49 C .F.R. § 391 .41 (2 005 )) in order to establi sh the driver 's com peten ce to ope rate a nd c ont rol a com me rcial mo tor v ehic le. A driver is al so requir ed to pres ent a c opy of a me dical e xam iner's certif icate statin g that th e drive r is physically qualif

ied to ope rate and con tro l acomme rc ia l mo to r v ehi cl e s afe ly . 4 9 C. F. R. §§391 .41(a), 391.45 (2005) . Sect ion 391.41(b) of Tit le 49 of the Code of Federal Regulati ons (49 C .F.R. § 391 .41(b ) (200 5)) ide ntifies th e physica l and m edica l cond itions to be evaluat ed during t

he examinati on. The st andardiz ed medical e valuat ion form includes a secti on noting th e driver' s healt h hist oryand a sect ion deta iling the phy sicalexaminati on. Section391.43 ide ntifi es the qual ific ations of the m edic al examiner s and provi des the
exam iners with instruc tions f or pe rform ing the exam ination and r ecord ing the result s. 49 C.F.R. §3 91.43 (20 05).

"The medical examiner must be aware of the r igo rous physi cal, mental, and emot ional de ma nds plac ed o n th e dr iver of a com me rcial mo tor v ehic le. In the interest of pu blic safe ty , the m edica l exam iner is req uir ed to certi fy t hat the driver3

does not have any

physi cal, mental, or organi c condit ion that mi ght affect the dr iv er 's ability to operat e a comm ercial motor ve hicle safely." (Emph asis added .) 49 C. F. R. §391.43 (f) (2005). Section391.47 provi des a proces s for a r esolut ion in t he ev ent of

a dis agreement bet

ween the physician for the drive r and the ph ysician for t he m ot or ca rri er re ga rd in g t he dr iv er 's physical fitness to operate a c omm ercial vehicle. 49 C .F.R. §391 .47 (2005 ). On January 9, 2004, Atkinso n present ed to Pri mary Care to undergo a medi cal
exam inati on for p urpo ses of determ ining h is fitness to drive a com merc ial mo tor veh icle under49 C .F
. R. §391.41 (2005) . According to the "MedicalExamination Repor t for Commercial Dri ve r F it

ne ss Det ermi na ti on" (DOT medical report), Atki nson was seeking a
new certi ficat ion of his physi cal qual ific ations to operat e a commercial motor ve hicle. Dr. Watters, an employ ee of Primar y Care, conducted t

he phys ical examinati on and completed the DO T me dical report. Dr. Watters f ound that Atkinson had no abnormali ties or conditions in t he body s yst ems lis ted in t he DOT's standar dized form. Dr. Watter s deter mined that Atkinsonmet th e physica l qualif ication s to op erate a com merc ial veh icle acc ordin g to 49 C.F.R. §391. 41(b) (2005) and that Atkinson qual ifie d for a two-y ear certifi cate. Some ti me after

Atkinson was medical ly ce rti fied t o operate a commercialmotor vehicl e, he was hired by Hollywood. On June 22, 2004, Atkins on was securi ng a tarp ove r
a load of lum ber when he fell approximat ely 10 to 12 feet , from the top of a t ractor -tr aile r to the ground, and i njured hi s back. On July 26, 2004, Atkinson fil ed a workers' compensati on clai m. Afterthe cl aim was file d, Hollywood disclose d that it had not obt ained workers ' compensation insurance and that it wo uld be person ally li able for an y award of m edica l expe nses, tem pora ry total disab ility benefits, and permanent di sabil ity benefit s that

were found to be attributa ble to the inc ident
on June 22, 20 04. H ollywo od p aid a porti on of Atkinson' s medicalbill s and temporar y t otal1 A tk in so n's wo rkers' co mp ensa tion cla im w as pe ndin g w hen H oll yw ood filed its

com plaint. A tkinso n's claim wa s unre solve d as o f the d ate of oral arg um ents o n app eal. 4 dis ability benefit s but then denied l iabil ity and ceased fur

ther pay ments. I n defend ing it s decisi on to stop paying b enefits, Ho llywoo d initially claim ed tha t Atk inson had s ustaine d his injuries at home and that hi s inj uries did not arise out of and in the cour se of

his em ployme nt. Several months lat er, Hollywood asser tedthat A tkinso n w as no t eligible for benefits because he ha d m ade false rep resen tations re gard ing h is med ical histo ry in the D OT fitness repo rt. On January

9, 2006, Hollywood fil ed a thr ee-countcomplaint against Dr. Watters, Primary Care, and Atkinsonin th e c irc ui t co ur t o f S ali ne C ou nt y. 1 Hollywood brought count I against Dr. Watter s and Primar y Care. Hollywood alleged t hat Dr. Watt ers per formed a DOT exam ination on A tkinson on January 9, 2004 ; that Dr. W atters and Prim ary Care owed "Holly wood Trucking, Inc.[, ] and other employe rs who might hi re Atkins on as a tr uck driver and the ge neral m otoring pub lic a du ty to exa mi ne Atkinson and t o report his phy sical conditi on using that degree of skil l and car e normall y employed by t hose with l ike training, edu catio n[,] and ex perience"; an d that Dr. Wa tters viola ted his d uty of care and was negl igent in that ( a) he fai led to r ecognize and report that Atk inson had o bvio us su rgical sc ars on his back, (b) he fail ed to rec ognize and r eport t hat Atkins on had lie d when he reporte d that he
neverhad a spinalinjur y, spinaldiseas e, or chronic lower ba ck pain, (c) he r eported t hat Atkinson hadno prev ious surgery to his back or spi ne, no defor miti es to hi s back or spine,
no limitation of mo tion to his back o r sp ine, and no tender ness to hi s back or spine, when, had he ex am in ed A tk in so n's back, he coul d have seen the surgic al scar s, and ( d) he repor ted that Atk inson met th e stand ards o f 49 C.F .R. §3 91.41 (200 5), w hen h e did n ot m eet tho se standards. Hol ly

woodfur

th eral le gedth atas a pr oxi mat e cause of o ne o r mo re of the neglige nt omissions, it hired Atkinso n and the reafter became liable t o defend against A tk in so n's workers' compensati on clai m and to paybenefit s forinjuries and disabi lities t hat2 The circuit court denied Dr. Watt ers' motion t o dismis s count I I, bu t it s tay ed the action pend ing the dispo sition o f this ap peal. 5 are ca usally con necte d to the June 22, 20 04, inc ident. Hollywood brought count II agai nst Dr. Watters and alle ged fraudul ent misre prese nta tion in regard t o the perf ormance of the DOT medical exami nation and the certifica tion of

the driv er. Co unt II is n ot at issu e in this a ppea l. 2 Hollywood brought count III a gainst

its employe e. Holl ywood all eged that Atkinson fraud ulently misrepr esented hi s medicalconditi on in that he indic ated that he had no prior history of

spinalinjur

y, diseas e, orlo wer

ba ckpa ininth e p at ie nthi st oryse ct io n of th e DOT medical report

when he knew that he had undergone back surger y and had e xperienc ed a prior limi tati on of motion, chronic l ow back pain , and tend ern ess in his s pin e. Hollywood
reasse rtedthe el emen ts of damages set f orth i n count I, and it made a c laim for puniti ve damages. The defendants moved to dismiss the count s fil ed against them pursuant

to section 2- 619 of the Code. The circui t court determi ned that

under the circumst ances al leged i n count I, a p hys ic ian owes no duty to a prospective employer, such as Hollywood, to exercise ordinary care i n physi call y exami ning an individual to determi ne wh ether h e or sh e is physically qualif

ied to drive a c om merc ia l motor vehi cle purs uant to DOT regulations set forth in 49 C.F.R. §391. 41 et seq. (2005). The court di smissedcount I wit h prejudi ce. The court al so d et ermin ed t

hat th e I ll in oi s Worker s' Co mp ensa ti on Commission had exclusive juri sdict ion over the m atters desc ribed in coun t III, and it d ismisse d cou nt III w ith prejudi ce. This appealfollowed. A motion for an involunt ary dismis sal fi led purs uant to s ect ion 2 -619 raises c ertain defe cts or de fens es to the actio n. 7 35 I LC S 5/2-619 (West 2004). I n considering a trial
co ur t's decisi on to grant

a motion for

an involuntary di smissal, a r eviewing court must accept6

all well-pl eaded facts as tr ue and view them in a l ight most favorabl e to the plaintiff. Bartow
v. FordMotor Co. , 342 Il l. App. 3d 480, 483, 794 N.E.2d 1027, 10 29 (200 3). The stand ard of review is de novo

. Bartow , 342 Il l. App. 3d at 483, 794 N.E. 2d at 1030. The first issue is wh ether th e circu it court e rred in dism issing c oun t I on the ground that Dr. Watter s and Primar

y Care ha d no duty

to prospe ctive employe rs, such as Holl ywood, to exerci se ordi nary

care i n performing a DOT me dica l exa min ation pur sua nt to 49 C .F.R §391.41 (2005). In order to stat e a leg ally

suffici ent cause of acti on for negli gence, t he complaint

must set out fact s that

establ ish the exist ence of a duty owed by the de fend ant to the plaintiff, a breach of t he duty , and an i njury

proximate ly

caused by

the bre ach

. Kirk v. Michael Reese Hospital & Medical Center , 117 Ill. 2d 507 , 525 , 513 N.E .2d 3 87, 3 95-9 6 (1987). The exist ence of a dut y is a qu estio n of law to b e de term ined by the cou rt. Kirk , 117 Ill. 2d at 525, 513 N.E.2d at 396. The court must determi ne whether the defendant and t he plaintiff stood i n such a relations hip to ea ch other t hat the law imposed upon the de fendant
an obliga tion of

reaso nable con duc t for the b ene fit of a pla intiff. Kirk , 117 Il l. 2d at 525, 513 N.E.2d at 396. The Ill inois Supreme Court has instruc ted that the e xist enc e an d the scope of a lega l duty sho uld n ot rest o nly on t he fore see abili ty of th e oc cur ren ce. Cunis v. Brennan , 56 Ill. 2d 372 , 375, 308 N .E.2d 617 , 618-19 (1 974). A court shou ld con sider th e reaso nable fores eeab ilityof the i njury , the likel ihood of inj ury , the burden of guarding ag ain st t he in

ju ry, and the conseque nces of pla cing that bu rd en u pon the d efe nda nt. Kirk , 117 Il l. 2d at 526, 513 N.E.2d at 396. The nature of the relati onship between the parties is athresh old q uestion in the d uty analysi s. I n this case, Hollywood has nei ther al leged nor argued that there i s a dir ect relation ship between itself and Dr. Watter s and Primar y Care. Hollywood has not asser ted that Dr. Watter s and Primar y Care pe rformed A tkinso n's DO T fitn ess ex amin ation a t its requ est. Hollywood has not asser ted that it direct s it s drive rs and pros pecti ve hires to obtain7

their DOT fitne ss examinations at Primary Care orthat

it pay s for examinations performed atPr im aryCar e. Hol ly woo d a cknow l edge s that Atkinson was not one of its employe es at the time he pr esented to Primary Care forhis DOT fitne ss examination. The abs ence of a spec ial, i ntimat e relations hip between Atki nson and Holly wood eliminat es from consider ationa duty ow ed by D r. Wa tters and Prim ary Care to H oll ywood under the trans ferred- neglige nce theory discuss ed in Rens low v. Mennonite Hospital , 67 Il l. 2d 348, 367 N.E.2d 1250 (1977), and Tedrick v. Comm unity Res ource Center, Inc. , 373 Il l. App. 3d 761, 869 N.E.2d 421 ( 2007 ), appeal all owed , 225 Ill. 2d 677, 87 5 N.E .2d 1125 (2007). Likewise, the absenc e of a speci al rel ations hip between Atki nson and Dr. Watter s eli minates from consider ationany of t he recogni zed excepti ons to the generalrule t hat a per son has no duty to control the conduct of a third party

to prevent

him from causi ng harm to another. See Restate ment (Second) of Tort s §§315 through 3 19 (1965) ; Esta te of Jo hnso n v. C ond ell Memorial Hospital , 119 Ill. 2d 496, 50 9-10, 520 N.E.2d 37, 42-43 (1988). H ol lyw oo d's difficulties in defining the duties of D r. Watters and Primary Care a re reveal ed in its plea ding s in the c ircuit co urt and its written and o ral argu men ts befo re this
cour t. With in the p eriod b etwe en the filing o f the c om plaint in the circ uit court and t he filing of th e brief

s in thi s c ourt, th e theo ry al le gedincountI wa s gr adu al ly tr ans for med f ro m a general neglige nce theor y t o a more speci fic theory of n e gligent

misrepr esentation. Nev ertheless, the nature an d scope of D r. Watters' duty remains un clear. Hollywood suggests that Dr. Watters s hould be hel d liabl e for n eglige ntly misrepr esenti ng the res ults of the DOT fitness e xaminati on because he i s an approved evaluat or who undertook to examine Atkinsonand record t he resul ts of t

he examinati on for the spec ific pu rpose of d irectly benefit ing prospect ive employ ers. Hollywood contends that i t wa s an in t en de d b en ef i ci ar yof t he r el ati on sh i p b et

we enDr
. Wat

t er s andAt ki ns on . We disa gre e. The circu mstance s of this case d o not fit within the parame ters of cases w here a3 Perhaps un der other circumst ances, one could make a com pelling argument that t hose travel ing on pub li c hi ghway s ar e di rec t and i nte ndedbene fic iari es o f th e DOT m ed ical examination, but that i ssue is not before us. 8 profe ssionalhas been hir ed by a c lient to render

servi ces for t

he specif

ic p urpose o f conferring a be ne fit on a th ird pa rty. See , e.g. , Pelham v. Grieshe imer , 92 Il l. 2d 13, 20-21, 440 N.E.2d 96, 99-10 0 (1982 ); Stins on v. Physi cians I mmediate Care, Lt

d. , 269 Il l. App. 3d 659, 646 N.E.2d 930 (19 95). In this case, Atkinson wen t t o Dr . Watt er s f orth e p ri mar

ypur pos e o f o bt ai ni ng a

DOT medical certi ficat e so that he could drive commercial motor vehicles. Atkinson was a di rect beneficiary of the examination. The DOT regulations gover ning the medi cal examination of driver s speci fical ly

provide t

hat the examiner 's dut

y i s to evaluate the driver 's pr esent physi cal cond ition fo r purp oses o f dete rminin g w hethe r he h as an y infirmity that is likely to inter fere wit h his abilit

y to operat e and control a commercial vehicle safely , and they al so provide that

the exam ination and c ertification of physical fitness are required in the int erest of pub lic sa fety. 4 9 C .F.R . §§3 91.4 1, 39 1.43 (f) (2 005 ). It i s cl ear that the DOT medical examinati on was implemented for the safe ty

of the traveling public, 3 and not for pur poses of insul ating an employ er from ever y cl aim of inj uryan employe e sustain s in the c ourse of h is emp loymen t. Count I fail s to al lege fact ual alle gations to est ablis h that Hollywood was an intende d benefici ary

of the profe ssionalservi ces that Dr. Watter s provide d to Atkins on. Hollywood al so su ggests that in con ducting the D OT medica l examina tion, Dr. Wa tters assumed a duty to provi de informat ion to empl oyer s of phy sical ly unsafe d river s "whose hiring may cause finan cial loss to the em ployer an d ph ysical injury an d dam age to drivers and othe rs" o n the highway . It contends t

hat Dr. Watt ers shoul d be held l iable for neglig ently misrepre senti ng the res ults of the DOT medical examination because he knew that prospective employ ers would be guided by the results i n making hiring decisions.9

Negligent

misrepr esentation involves th e brea ch of a duty to u se reas onab le care in obtaining and co mm unicating info rmation up on w hich others may reasonably be expe cted to rel y i n the conduct

of thei r busine ss tr ansacti ons. Rest atement ( Second) of Tort s §552 (1977); Cahill v . Easte rn Benefi t Systems, Inc. , 236 Il l. App. 3d 517 , 603 N .E.2d 788 (1992). Section552(3) of the Restatement (Second) of Torts s tates tha t the liability of o ne w ho is undera public duty t o give information extends to the loss suffered by a person or

a limi ted grou p of perso ns fo r wh ose b enefit and g uidan ce the inform ation is in tende d, in anyof the trans acti ons in which it

is i ntended t o protect

them. Rest atement ( Second) of Tort s §552(3) (197 7); Ca hill , 236 Il l. App. 3d 517, 603 N.E.2d 788. In this case, Dr. Watters c onducted a DOT medical examination on Atkins on for the purpose of deter

mining whether

he ha d any co ndition or infirm itythat wou ld likely interfere with his ab ility to operate and controla commercialmotorvehicle on the public highways. The DO T medical examination was no t performed for the purpose of cert ify ing that he wo uld not reinj ure or aggr avate hi s back while pe rforming hi s work-rel ated dut ies, and the resul t of the examination was not expec ted or i ntended t o be used to as sess t he like liho od that Atkinson would suffer an on- the-j ob injur y and t o calcul ate the potent ial e xposure t o a prospect ive emp loyer und er the W orke rs' Com pens ation A ct if it hir ed Atkinson. A dd itio na lly, we note that the complaint does not

alle ge that

Hollywood actuall y r elie d upon the results of Dr. Watter s' e xaminati on or that it would be r equired to accept t he opinion of
a prospective e mployee's physician und er the federa l regulations (49 C .F.R. §391 .47 (2005 )). Having libera lly

constr ued the fact

ual al legat ions i n count I and t he theori es of liability and d uty deve loped in the a ppella te arguments, we conclude that Hollywood has not alle ged facts t o establ ish that Dr. Watt ers andPrimary Care o wed it a duty of care under the circumst ances of th is ca se. The circui t court did noterr i n dismis sing count I with pr ejudic e. We next c onsid er w hethe r the circ uit cou rt erred in dism issing c oun t III on th e bas is10

of a lack of jurisdiction. T he cou rt found the Il linoi s Workers' CompensationCommission (Commission) has e xclus ive jurisd iction o ver the matte rs desc ribed in count II I, and theref ore, it di smissed wit

h prejudi ce Holly

wood's fraud

count against Atkinson. Hollywood contends that the cour t's ruling ign ores th e fac t that the f raud alle gat ions in coun t III are based upon events which pr edate Atki nson's employment with Holly

wood and his all eged on-the- job injur y. Hollywood insist s the pending acti on was filed for the pur pose of obtaining a remedyfor the harm that resul ted from Atki nson's fraudule nt misr epresent ations prior to his employment

and not for pur

poses of liti gating the merits of Atkinson' s workers' compensati on case. Hollywood contends that t here a re no p rovisions within the Workers' CompensationAct which indi cate that the C om missio n is ex pecte d to au thorize or to adjud icate matte rs con cernin g restitu tion or the repayment o f w orke rs' com pens ation b enefits and that t he acti on can only

be brought i n the ci rcuit court as a common law action for fraud. We disagree. Section18 o f the Illin ois W orke rs' Com pens ation A ct (A ct) (820 ILCS 30 5/18 (West 2002)) spec ifically states, "All questions ar isi ng under thi s Act, i f not set tled by agreement of the pa rtie s int er ested t

herein, shall , except

as other wise provi ded, be det ermined by the Co mm issio n." The Ill inois Supreme Cour t ha s deter mined that

the ci rcuit

courts have no origi nal jurisdi ction in cases involving a determination of workers' compensation benefits. Ha rtlein v. Illinois Power Co. , 151 I ll. 2d 142 , 158, 601 N .E.2d 720 , 727 (199 2). How ever, the Illinois S upre me C ourt h as he ld that th ere are certain inst ances in which the Commission and the circ uit cou rt have conc urren t jurisdictio n to d ecide a que stion ra ised in a wo rkers ' compensati on case. For example, in Employers Mutual Cos. v. Ski lling , 163 Ill. 2d 284, 644 N.E.2d 1163 (1994), the Il linoi s Supreme Court det ermined t hat the Commission and th e circuit court had c oncurrent juri sdict ion to cons ider an insurance i ssue regardi ng the scope of cov erag e affor ded und er a w ork ers' co mp ens ation pol icy. Skilling , 163 Il l. 2d at 286-87,11

644 N.E.2d at 1165. According to the factualalle gations set for th in count

III of the complaint , Holly

wood is seeking t o recoup the benefit s it has paid t o Atkinson under the Act, on th e th eo ry that Atkinsonfraudule ntly

misrepr esented hi s phys ical conditi on at the time of hi s hiring. The alle gations in cou nt III inv olve factua l issues re gard ing ac ciden t, causa l c onnecti on, the nature and extent

of the i njury , and the employ er' s potent ial defense s, and these are proper subject s for the Commission in t he firs t ins tance. In cases involving a deter minati on of an
em pl oye e's entitlem ent to w orke rs' com pens ation b enefits and th e em ployer's de fens es to the cl ai m, the circu it cou rt's role is ap pella te on ly. Gu nne ls v. In dus trial C om m'n , 30 Il l. 2d 181, 185, 195 N.E .2d 60 9, 611 (196 4). A ccord ingly, we find th at the c ircuit cour t did not err in dismis sing count

III f or a lac k of juri sdict ion. A cc or di ng ly, th e circ uit cour t' s decis ion to di smiss count I and count I II of t

he complaint with prejudice is affi rmed, and the cause is remanded for further proceedings.
Affirmed; caus e remanded.

SPOM ER, J., concurs.

JUS TIC E G OL DE NH ER SH , conc urring in part a nd d issentin g in p art: I concu r with the m ajority' s disposition w ith regard to cou nt III. As to coun t I, how ever, I re spec tfully dissen t. In general , a phy sici an does notow e a du ty to a non patien t third pa rty in regard to his
or hertreat

ment of a pa tient

. Brewster v. Rush-Presbyterian- St. Luke 's Medical Center , 361 Ill. App . 3d 32, 36, 83 6 N.E .2d 635, 63 8 (2005 ). However, the i nstant case does not

present
a physi cian-patient

relationship. Dr. Watters and Primary Care were not acting as t reating12

physi cians but, rath er, we re certif yi ng that Atkinson was phys ical ly qualif ied to drive a commercial motor vehic le. Section 391. 11 of Titl e 49 of the Code of Federal Regulati ons sets forth t

he general qualificati ons of drivers as follows: "(a) A person shallnot dri ve a commer cial m otor v ehicle unles s he/sh e is qualif iedto drive a com merc ial mo tor veh icle . Ex cep t as p rov ided in § 391 .63, a motorcarri ershall no t require or pe rmit a pers on to drive a com merc ial mo tor veh icle unless t hat pers on is qual ifie d to dri ve a commercialmotor vehic le. (b) Except as pr ovidedin sub part G of this part, a p erson is qua lified to drive a motor vehi cle i f he/she– * * * (4) Is physically qu alified to drive a com merc ial mo tor veh icle in accor dance with subpart E–P hysical Qualifications an d Exa minations o f this part[.]" 49 C. F. R. §391.11 (a), (b)(4) (2005). In order for

a cert ific ate of phy sicalexaminati on to be issued, a medical e xaminer i s requi red to examine a pros pecti ve drive r and re cord the results in accordance with several instructi ons, including in pertin ent pa rt the fo llow ing: " Spine , mu sculo skelet al . P re vi ou s s ur ge ry, deformities, limi tat ion of m otion, a nd ten dern ess sh ould be no ted. Fin ding s ma y indicate additional testing and evaluation sh ould be c onduc ted." 49 C .F.R. §391 .43(f) (2005 ). This was a preemploy

ment examinat ion with t he intende d recipi ent consumer being
a prospect ive employ er, s uch as plaintiff . In t he inst ant case, Dr. Watters' exam ination report spec ifically notedthat Atkinson had no previ ous spinalinjur y or diseas e, no chroni c low back pain, and no previous surgery , deformi ties , limitat ion of motion, or tender ness in hi s spine
or oth er m usc ulo ske letal a reas . Ac cord ing to th e plea ding s, wh ich w e are re quired to accept
as true at th is stage in the p rocee ding s, Atk inson has "o bvio us scars " on his ba ck fro m h is previous back surgeries. Accordingly , Dr. Watt ers, upon examinati on, would have13

discover ed that Atkinso n misrepres ented his history about no previ ous spinalinjuries and no chro nic low ba ck pain. Plaintiff a lleges that Dr. W atters is a partner, employe e, and agent of Primary

Care, t hereby premisi ng liabi lit

y on a respondeat

superior basis. Af te r careful cons ideratio n, I belie ve tha t the alleg ed inju ry was re ason ably foreseeabl e. Dr. W atters w as aw are tha t the ex amin ation h e w as pe rform ing o n A tk i nson
was to certi fy hi m as medically fi t to oper ate acommercial mot or vehicl e. Dr. Watt ers knew that if he cert ifie d Atk inson as m edica lly fit to perfo rm the job, po tential em ployers w ould rely on that c erti ficat ion. Conv ers ely , Dr. Watt ers was aware t hat if he refused t o certi fy Atkins on as medical ly

fit, potenti al employ ers would re fuse to empl oy Atki nson on tha t basis. In Renslow v. Mennonite Hospital , 67 Ill. 2d 348, 367 N.E.2d 1250 (197 7), the Illin ois Supreme Cour t all owed a nonpatient thir d party

with no pati ent-hos pitalor pati ent-doctor relation ship to maint ain a caus e of acti on against a hospit al and doct or. I n Renslow , a child not yet conceived at

the time negligent

acts were c ommittedagainst its mother by

a doctor and hospit al employ ees wa s allow ed to s ue fo r that ne gligen ce dire cted a gains t its mother. A wrong against

one person may

invade the pro tect ed right s of one who has a speci al relation ship with the f

irst party because the law recogni zes a limi ted are a of transferr ed neg ligen ce. Renslow , 67 I ll. 2d at 35 7, 36 7 N .E.2 d at 1 255
. This is not

a sit uation in which the pl ainti ff is an uni dentif iable t hird par ty. Dr. Wa tters was aware of the nat ure of thi s examinat ion a nd kne w that a potenti al employ er
wo uld rely on the results o f the e xam ination in mak ing a d ecision with regard to hiri ng or not hiri ng Atkinson. I, t

herefore, find the relationship between Dr. Watte rs, Primary Care, and plaintiff to be the type of re lationsh ip in w hich it is re ason able to impose a duty. The injury t o p laintiff in hiring a prosp ective emp loyee w ith und isclose d pre viou s bac k pro blem s is clear. If plaintiff had been made aware of Atkinson' s previ ous back probl ems, it might not14

have hired h im an d m ight no t have beco me lia ble to A tkinso n un der the Ac t. I d isagr ee with Dr. Watt ers' and Primary Care's assertion that

by fi nding they

owed
a duty to plaintiff , they wo uld be required to guard p laintiff from ev ery conceivable injury thatA tkins on could inc ur duri ng the cours e of his empl oyment. However, hiring a drive r with previous back proble ms increas es the l ikelihood of another back injury to that driver. The medical examination was intended to disclose anyprevious back injuries, deformities, surgeries, or p ain. This burden i s not oner ous. I t requires a doct or to exercise due c are when perform ing an ex amination o n a prosp ective com mercial truck d river. After consi dering the circ um stance s here in w hich A tkinso n alleg edly injure d his back while w orking fo r plaintiff, I would find that D r. Watters and Primary Care owed a duty to plaintiff

to exe rcise d ue ca re w hen p erfor min g the physi cal examination on Atkinson. Accordingly , I would find the trial c ourt er red in gr anting the motion t o dismis s count I on the basis that Dr. Watters a nd Primary

Care owed no du ty to pl ain tif f in re ga rd to A tk in so n's medical examinati on.NO. 5-06-0231
IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

___________________________________________________________________________________ HO LL YW OO D T RU CK IN G, I NC ., ) Appeal from the ) Circui t Court of Plaintiff-A ppella nt, ) Sa line C oun ty. ) v. ) No. 06 -L-1 ) RO GE R W AT TE RS , M .D., ) PRIMA RY C ARE G ROU P, and ) JAMES ATKI NSON, ) Ho nora ble ) Bru ce D . Stew art, Defendan ts-Appellees. ) Judge, presi ding.

___________________________________________________________________________________ Rule 23 Order Filed: August 5, 2008 Motion to Publi sh Granted: September 18, 2008 Opinion Filed : September 18, 2008

___________________________________________________________________________________ Justice s : Honorable James K . Donovan, J.

Ho nor able Ste phe n L . Sp om er, J., Concurring Ho nor able Ric har d P . Go lden her sh, J ., Con curring in part an d dissenting in p art

___________________________________________________________________________________ Attorney Ge org e R . Rip plin ger , Rip plin ger & Zim me r, LL C, 2 215 W est M ain S treet , for Bellevi lle, IL 62226-6692 Appell ant

___________________________________________________________________________________ Atto rneys Ro nald E. Osman, Ronald E. Osman & Associat es, Lt d., 1602 W. Kimmel, P.O. Box for 939, Marion, IL 62959 ( for R oger W atters, M.D . & Prim ary Care G roup); Jay Schafer, Appellees Winters, Brewster, Crosby and Schafer, LLC, 111 West Main, P. O. Box 700, Marion,

IL 62959 (for J ames Atkinson)

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