2024 IL App (1st) 210941-U (consolidated with Nos. 21-0958, 21-0959 & 21-0961) Order filed February 8, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
MICHAEL JOHNSON, ROBERT ROSA, DON CORNING, ) Appeal from the LOIS CORNING, and KEVIN W. SCHMIDT, individually and ) Circuit Court of as special administrator for the Estate of TERRI L. SCHMIDT, ) Cook County. ) Plaintiffs, ) ) v. ) ) ILLINOIS STATE TOLL HIGHWAY AUTHORITY; EXP U.S. ) SERVICE, INC.; PLOTE CONSTRUCTION INC.; ) TRAFFIC CONTROL & PROTECTION, INC.; OMEGA ) & ASSOCIATES INCORPORATED; ALFRED BENESCH & ) COMPANY; V3 COMPANIES OF ILLINOIS LTD; BV3 JOINT ) VENTURE; AECOM TECHNICAL SERVICES, INC.; THE ) RODERICK GROUP INC., PC; HNTB CORP.; CHASTAIN & ) ASSOCIATES LLC; THOMAS ENGINEERING GROUP, LLC; ) CHASTAIN/THOMAS JV; KENNY CONSTRUCTION ) COMPANY; EDWARD KRAEMER & SONS, INC.; ) KENNY-KRAEMER JOINT VENTURE; ROADSAFE ) TRAFFIC SYSTEMS, INC.; TRAFFIC SERVICES, INC.; STV ) INCORPORATED; LORIG CONSTRUCTION COMPANY; ) STANLEY CONSULTANTS INC.; AARON NASH; AND ) 18 L 008881 LYONS LIMOUSINE LLC, ) ) Defendants, ) ) (Michael Johnson and Robert Rosa, ) ) Plaintiffs-Appellants, ) Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
v. ) ) Illinois State Toll Highway Authority; EXP U.S. Service, Inc.; ) Plote Construction Inc.; Traffic Control & Protection, Inc.; ) Honorable Omega & Associates Incorporated; Alfred Benesch & Company; ) Rena Van Tine, V3 Companies of Illinois LTD; BV3 Joint Venture; Aecom ) Judge, Presiding. Technical Services, Inc.; The Roderick Group Inc., PC; HNTB ) Corp.; Chastain & Associates LLC; Thomas Engineering Group, ) LLC; Chastain/Thomas JV; Kenny Construction Company; ) Edward Kraemer & Sons, Inc.; Kenny-Kraemer Joint Venture; ) Roadsafe Traffic Systems, Inc.; Traffic Services, Inc.; STV ) Incorporated; Lorig Construction Company; and Stanley ) Consultants, Inc. ) ) Defendants-Appellees). )
JUSTICE MARTIN delivered the judgment of the court. Presiding Justice Rochford and Justice Hoffman concurred in the judgment.
ORDER
¶1 Held: The trial court erred in granting summary judgment in favor of appellees on the issue of proximate cause. In addition, since the trial court never considered or ruled on the alternative issues appellees raised in their motions for summary judgment, we remand these issues to give counsels the opportunity to present their arguments so the trial court can then make its findings and enter its determination. Accordingly, we reverse the trial court’s order granting summary judgment on the issue of proximate cause and remand for further proceedings consistent with this order.
¶2 This consolidated appeal stems from a single-vehicle accident involving a limousine that
crashed into an impact attenuator and overturned onto its roof. 1 The accident occurred on Interstate
90 (I-90) in Kane County after the vehicle failed to shift lanes and drove into an active construction
and renovation project. Plaintiffs Michael Johnson, Robert Rosa, Don Corning, Lois Corning,
Kevin W. Schmidt, and Terri L. Schmidt were passengers in the limousine, which was driven by
codefendant Aaron Nash (Nash). All were injured, and Terri L. Schmidt was killed.
1 An impact attenuator, or crash cushion, is a barrier installed on a roadway to lessen the impact of a vehicle collision.
2 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
¶3 The trial court entered summary judgment in favor of appellees based upon its finding that
Nash’s negligent driving was the sole proximate cause of the accident. For the reasons that follow,
we reverse and remand for further proceedings.2
¶4 I. BACKGROUND
¶5 A. Roadway Reconstruction Project
¶6 In 2015, construction work commenced on a stretch of the Jane Addams Memorial Tollway
(I-90). The construction project was divided into construction corridors and each corridor was
subdivided into sections, one of which was section 4104, where the accident occurred.
¶7 Pursuant to the Original Maintenance of Traffic Plan (MOT), eastbound traffic through
section 4104 followed a lane split configuration where the far left lane was designated an express
lane that continued straight, while the center and right lanes shifted to the right. The original MOT
also called for the erection of a temporary continuous curved concrete barrier leading to the lane
shift.
¶8 In 2016, the configuration of section 4104 was changed to the one in place at the time of
the accident. The left express lane was eliminated, and all three lanes shifted right. In addition, the
decision was made not to erect the temporary continuous curved concrete barrier at the beginning
of the lane shift, but instead leave a gap between the median and lane shift and install an impact
attenuator at the end of the existing barrier, exposing oncoming eastbound traffic to the blunt end
of the impact attenuator. These revisions to the original MOT are at the heart of appellants’ claims.
See Johnson v. Nash, 2019 IL App (1st) 180840, ¶ 12.
¶9 B. The Accident
2 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon entry of a separate written order.
3 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
¶ 10 In the early morning hours of March 25, 2016, Nash was driving the plaintiffs from
Madison, Wisconsin to O’Hare International Airport in Chicago, Illinois. Nash was proceeding in
the left-hand lane, eastbound on I-90, at or near milepost 55.8 in the city of Elgin, Kane County,
when he missed a lane shift to the right and drove into the active highway construction zone. The
limousine struck an orange construction barrel and then the impact attenuator, causing the vehicle
to overturn onto its roof. Nash, 2019 IL App (1st) 180840, ¶¶ 1, 5-6. Terri L. Schmidt was killed
in the accident and Robert Rosa was rendered a paraplegic. The remaining passengers and Nash
suffered injuries. 3
¶ 11 C. The Complaints and Court Proceedings
¶ 12 Plaintiffs filed amended complaints asserting two theories of negligence. The first was
predicated on the alleged omission of warning signs preceding the roadway curve; the second was
based on the alleged omission of proper roadway barriers.
¶ 13 Plaintiffs alleged that the removal of lane shift warning signs—in advance of the roadway
curve—mandated by the federal Manual on Uniform Traffic Control Devices (MUTCD), as well
as the project contract, caused Nash to miss the lane shift. Plaintiffs further alleged that the accident
could have been avoided if appellees had followed the original MOT. Plaintiffs alleged that the
placement of the impact attenuator at the end of the far left lane of eastbound traffic just prior to
lane shift, rather than a curved concrete barrier, was one of the proximate causes of the accident.
¶ 14 The amended complaints made allegations of negligence common to all appellees. The
allegations asserted that appellees: failed “to provide adequate barriers to deflect oncoming traffic
at or near the area of Mile Post 55.8;” allowed “a traffic configuration or pattern at or near the area
3 Four lawsuits were filed as result of the accident: Johnson v. Nash, Case No. 16 L 3443; Corning v. Nash, Case No. 16 L 5389; Schmidt v. Nash, Case No. 16 L 10574; and Nash v. Edward Kraemer & Sons, Inc., Case No. 17 L 7057. These lawsuits were amended several times and subsequently consolidated.
4 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
of Mile Post 55.8 to exist that was unreasonably dangerous;” failed “to place temporary traffic
control in advance of the lane shift at or near the area of Mile Post 55.8;” and allowed “the removal
of temporary traffic control that warned motorists of the lane shift at or near the area of Mile Post
55.8.”
¶ 15 Additional allegations of negligence were made against the appellees who were contracted
to design, evaluate, and approve plans for the reconstruction project 4: “[d]esigned, reviewed and/or
approved traffic plans for project 4104 that were dangerous and unsafe;” “[d]esigned, reviewed
and/or approved traffic plans for project 4104 which had an impact attenuator and an area of
ingress/egress instead of temporary concrete barrier intersecting or tapering with the median
barrier wall;” failed “to do an analytical evaluation for the placement of the impact attenuator;”
failed “to do a Barrier Warrant Analysis for the placement of the impact attenuator;” and failed “to
provide adequate barriers to deflect oncoming traffic at or near the area of Mile Post 55.8.”
¶ 16 Appellees filed separate motions for summary judgment based on various grounds,
including lack of duty and proximate cause. Regarding proximate cause, appellees argued that
Nash’s reckless driving was an intervening and superseding cause of the crash, which broke any
causal connection between their alleged negligence and the accident. Appellees pointed out that
not only was Nash recklessly speeding, with the sun in his eyes, at the time of the crash, but Nash
did not possess a commercial driver’s license (CDL) to operate a limousine in Illinois. Plaintiffs,
in turn, filed a joint response arguing that appellees’ acts and omissions were a concurrent
proximate cause of the accident, and appellees filed a joint reply.
¶ 17 On June 25, 2021, the trial court scheduled a hearing on appellees’ motions for summary
Illinois State Toll Highway Authority, Alfred Benesch & Co., V3 Companies of Illinois Ltd., BV3 4
Joint Venture, AECOM Technical Services, Inc., HNTB Corp., and Stanley Consultants, Inc.
5 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
judgment, limited to the issue of proximate cause. Following the July 14, 2021 hearing, the trial
court granted summary judgment to all appellees, finding that Nash’s negligence was the sole
proximate cause of the accident. The court stated in part:
“So as I said, it’s undisputed that Nash was a cause of the accident. Was it
reasonably foreseeable to his co-defendants that he was underage to be driving a limousine?
Was it reasonably foreseeable that he was not properly qualified to do so, that he was not
old enough to legally obtain a CDL, and that he was not familiar with the basic principal
that he had to slow down when the sun was in his eyes?
So all this together with going more than the designated 45 miles per hour in the
construction zone while he was tired, despite being warned by Mr. Corning that he was
going way too fast, he also ignored the visual cues to change lanes. So was it reasonably
foreseeable to the defendants that this kid driving the limo would fail to slow down despite
his passenger requesting him to do so?
***
There is a continuum here, and it is more – there’s no case that has exactly the same
fact pattern, but I think I find that it is in the part of the continuum that the defendants cite.
Nash’s intervening action was so beyond the ordinary expectation of drivers, that I find
that his co-defendants could not be reasonably expected to anticipate them.
So I don’t reach the question of whether the co-defendants were negligent, because
even if they were, and I don’t – well, other issues raised about the duty, because the gap in
the proximate cause chain rises to the level of granting the motion for summary judgment
on the proximate cause part of the case, vis-a-vis Nash.”
6 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
¶ 18 The trial court entered a written order reflecting this finding on July 16, 2021. The order
included Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) language finding there was no just
reason for delaying enforcement or appeal of the order. These consolidated appeals followed.
¶ 19 Appellants subsequently filed a motion in this court requesting an order limiting the issues
on appeal to the trial court’s ruling on proximate cause and excluding the issues the trial court held
in abeyance, such as duty and breach. In an order entered August 8, 2022, another panel of this
court denied appellants’ request to restrict the scope of this appeal to the trial court’s ruling on
proximate cause. Upon our sua sponte reconsideration, we find the order was improvidently
entered and therefore we vacate it.
¶ 20 Here, the trial court determined at the summary judgment hearing that Nash’s conduct was
the sole proximate cause of the accident as a matter of law. The court never ruled on or considered
any of the alternative issues raised in the motions for summary judgment. We decline to address
these issues in the first instance on appeal. See Kramer v. Szczepaniak, 2018 IL App (1st) 171411,
¶ 77. “Our function as an appellate court is to review the rulings, orders or judgments of the court
below.” Board of Education of the City of Chicago v. Chicago Teachers Union, Local 1, 26 Ill.
App. 3d 806, 813 (1975). “[W]e will not consider issues that the trial court refused to decide unless
we are asked to decide whether the refusal to act was an abuse of judicial discretion, which we
have not been asked to do.” (Internal citation omitted.) Peppers Construction Company v.
Palmolive Tower Condominiums, LLC, 2016 IL App (1st) 142754, ¶ 81. Therefore, we decide this
appeal only on the issue of proximate cause.
¶ 21 II. ANALYSIS
¶ 22 The trial court granted summary judgment in favor of appellees based on its finding that
Nash’s negligence was the sole proximate cause of the accident.
7 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
¶ 23 A. Summary Judgment
¶ 24 “The purpose of summary judgment is to determine whether a genuine issue of material
fact exists that would require a trial.” Hodges v. St. Clair County, 263 Ill. App. 3d 490, 492 (1994).
“While use of the summary judgment procedure is to be encouraged as an aid in the expeditious
disposition of a lawsuit, it is a drastic means of disposing of litigation and therefore should be
allowed only where the right of the moving party is clear and free from doubt.” (Internal citation
omitted.) Purtill v. Hess, 111 Ill. 2d 229, 240 (1986).
¶ 25 Summary judgment is appropriate where “the pleadings, depositions, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” 735 ILC 5/2-1005(c) (West
2012). “In determining whether a genuine issue as to any material fact exists, a court must construe
the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in
favor of the opponent.” Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 518 (1993).
¶ 26 “A triable issue precluding summary judgment exists where the material facts are disputed,
or where, the material facts being undisputed, reasonable persons might draw different inferences
from the undisputed facts.” Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004).
“Although the plaintiff need not prove his case at the summary judgment stage, he must present
sufficient evidence to create a genuine issue of material fact.” Keating v. 68th & Paxton, L.L.C.,
401 Ill. App. 3d 456, 470 (2010). Our review of a summary judgment order is de novo. Adams,
211 Ill. 2d at 43.
¶ 27 B. Proximate-Cause Element of Negligence
¶ 28 “Proximate cause is one of three elements a plaintiff must prove to succeed in a negligence
action.” Hooper v. County of Cook, 366 Ill. App. 3d 1, 6 (2006). “To recover damages based upon
8 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
negligence, a plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant
breached that duty, and that the breach was the proximate cause of the plaintiff’s injury.” Krywin
v. Chicago Transit Authority, 238 Ill. 2d 215, 225 (2010). “The issue of proximate cause is
ordinarily a question of fact to be determined by the trier of fact.” Schultz v. St. Clair County, 2022
IL 126856, ¶ 37. The issue, however, “may be determined as a matter of law by the court where
the facts as alleged show that the plaintiff would never be entitled to recover.” Id.
¶ 29 “Proximate cause has been defined as that cause which, in natural or probable sequence,
produces the complained of injury.” Bogovich v. Nalco Chemical Co., 213 Ill. App. 3d 439, 441
(1991). Proximate cause “describes two distinct requirements: cause in fact and legal cause, which
is a policy decision that limits how far a defendant’s legal responsibility should be extended for
conduct that, in fact, caused the harm.” Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455
(1992). Here, we are concerned with legal cause, which is an objective inquiry. Stanphill v.
Ortberg, 2018 IL 122974, ¶ 34. “The touchstone of legal causation is foreseeability.” Kramer v.
Szczepaniak, 2018 IL App (1st) 171411, ¶ 36. “Legal cause is established if an injury was
foreseeable as the type of harm that a reasonable person would expect to see as a likely result of
his or her conduct.” Hooper, 366 Ill. App. 3d at 7.
¶ 30 There can be more than one proximate cause of a plaintiff’s injury. Ghostanyans v.
Goodwin, 2012 IL App (1st) 192125, ¶ 93. When a fact pattern gives rise to the possible concurrent
negligence of multiple parties, our supreme court has recognized a subset of proximate cause cases
involving injuries caused by the intervening acts of third parties. See Schultz, 2022 IL 126856,
¶ 38; Abrams v. City of Chicago, 211 Ill. 2d 251, 259 (2004); First Springfield Bank & Trust v.
Galman, 188 Ill. 2d 252, 259 (1999). These cases “distinguish between the cause of an injury and
a condition that merely made the injury possible.” Inman v. Howe Freightways, Inc., 2019 IL App
9 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
(1st) 172459, ¶ 64.
¶ 31 “[I]f the negligence charged does nothing more than furnish a condition by which the injury
is made possible, and that condition causes an injury by the subsequent, independent act of a third
person, the creation of the condition is not the proximate cause of the injury.” Galman, 188 Ill. 2d
at 257 (citing Briske v. Village of Burnham, 379 Ill. 193, 199 (1942); Merlo v. Public Service Co.,
381 Ill. 300, 316 (1942); and Thompson v. County of Cook, 154 Ill. 2d 374, 383 (1993)). “The
subsequent independent act becomes the effective intervening cause which breaks the causal
connection, and itself becomes the proximate cause.” Kemp v. Sisters of the Third Order of St.
Francis, 143 Ill. App. 3d 360, 361 (1986).
¶ 32 The test is whether the first wrongdoer should have reasonably foreseen the intervening act
as a natural and probable result of its own negligence. Galman, 188 Ill. 2d at 257; Cahnman v.
Timber Court LLC, 2021 IL App (1st) 200338, ¶ 89; Kramer v. Szczepaniak, 2018 IL App (1st)
171411, ¶ 37. An intervening act will not break the chain of legal causation “if the intervening act
was itself probable, or foreseeable by the first wrongdoer.” Green v. Welts, 130 Ill. App. 2d 600,
604 (1970). “To escape liability, defendant must demonstrate that the intervening event was
unforeseeable as a matter of law.” Mack v. Ford Motor Co., 283 Ill. App. 3d 52, 57 (1996). In
determining whether an intervening act was foreseeable, “the precise nature of the intervening act
need not be foreseen and where varying inferences are possible, foreseeability is a question for the
jury.” (Internal citation omitted.) Id., at 57.
¶ 33 Appellees contend they could not have reasonably foreseen Nash’s negligent driving as a
natural and probable result of the presence of an impact attenuator or “the decision not to install
lane shift signs on the left lane at locations 500 and 1,000 feet west of the lane shift.” Appellees
argue that the presence of the impact attenuator and absence of lane shift signs did nothing more
10 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
than furnish a condition which made the accident possible, and that Nash’s reckless driving was
the sole legal cause of the accident.
¶ 34 In support of this argument, appellees claim they could not have reasonably foreseen that
Nash would miss the lane shift where he had successfully driven through it on three occasions
prior to the accident and where the highway pavement was painted to indicate the lane shift.
Appellees point out that Nash testified that on the day of the accident, he did not pay attention to
the pavement markings and admitted that he would not have adjusted his driving speed if he had
seen the sign indicating a forty-five miles per hour speed limit. From this, appellees argue that it
is speculative to assume that Nash would have observed and reacted to the lane shift sign if it had
been posted on the roadway.
¶ 35 It is true that “[m]ere speculation is not enough to create a genuine issue of material fact
sufficient to survive a motion for summary judgment.” Jordan v. Knafel, 378 Ill. App. 3d 219, 228
(2007). However, “[i]n considering a motion for summary judgment, all reasonable inferences
must be drawn strictly against the moving party and liberally in favor of the opponent.” Weedon
v. Pfizer, Inc., 332 Ill. App. 3d 17, 20 (2002).
¶ 36 Nash testified at his deposition that at approximately 7a.m. on the day of the accident, he
was driving his limousine in the far left-hand lane going eastbound on I-90 when he entered the
construction zone. According to Nash, traffic had slowed to approximately 65 miles per hour. The
road was dry and the sun was rising in the east. Nash put his hand up to shield his eyes from the
sun. Nash maintained that although the rising sun interfered with his vision, he was not “blinded”
by it, as appellees claimed.
¶ 37 Traffic was “moderate to heavy,” with vehicles to Nash’s right and ahead of him. Nash
testified that just before the accident, he observed a sign to his left which read: “STAY IN YOUR
11 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
LANE.” When the vehicle ahead of Nash shifted to the right, he thought it was improperly merging
or switching lanes. Nash stayed in the left lane and drove into an orange construction barrel and
then struck the impact attenuator, causing the limousine to overturn.
¶ 38 Nash testified that if lane shift warnings signs had been posted on the left side of the
roadway, in advance of the lane shift, he would “have been able to negotiate the turn.” The original
renovation plans had called for the warning signs to be posted near the spot where the “STAY IN
YOUR LANE” sign was posted.
¶ 39 Appellants presented unrebutted evidence that the MUTCD, MOT, and project contracts
called for six warning signs to be posted in advance of the lane shift. Appellants’ engineering
expert Rowland Lamb opined that “contract plans required the signs to be placed at 1000 feet, 500
feet, and 300 feet in advance of the start of the lane shift.” William Schaefer, a resident engineer
employed by EXP U.S. Service, Inc. (EXP), testified at his deposition that lane shift signs are
typically posted 500 and 1000 feet in advance of a lane shift. Lamb stated that the correct
placement of warning signs was critical, as the roadway curved and “shifted traffic 80 feet laterally
north to south which was the equivalent of almost seven lanes of traffic.”
¶ 40 Lamb added that the Illinois State Toll Highway Authority’s (ISTHA) manual on Roadway
Traffic Control and Communications adhered to the principle of “redundancy” in the placement
of roadway warning signs. According to Lamb “[r]edundancy is a means of providing the motorist
with additional opportunities to obtain the requisite information …. The sign series provides
essential information even though some signs may not be observed.” Schaefer predicted that the
absence of warning signs “could become critical as warning signs are typically placed in advance
of the situation to which they apply to provide adequate time for drivers to recognize the situation
and take appropriate action.” Nevertheless, Schaefer and others agreed to revise the MOT and not
12 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
place the warning signs in advance of the lane shift. See Nash, 2019 IL App (1st) 180840, ¶ 12.
¶ 41 Lamb opined that “[t]o a reasonable degree of engineering probability, had advanced
warning signage been placed in advance of the lane shift, it would have provided Aaron Nash
information to allow him to safely anticipate and negotiate the lane shift.” Lamb further opined
that “[d]espite sun conditions the morning of March 25, 2016, placement of advanced warning
signs on the left side of the roadway would have provided Aaron Nash the required information
for him to negotiate the lane shift.”
¶ 42 Lamb, and appellants’ other engineering expert, Scott Sebastian, disagreed with appellees’
contention that there was no room to place the warning signs. Lamb stated there was no evidence
that field conditions did not allow for placement of the warning signs and added that their absence
violated standard traffic control practices. Sebastian stated that plans provided “adequate room to
place advanced warning signage on the left-hand side of the roadway by straddling the median
barrier wall or post-mounting signs on the median barrier wall.” Lamb opined that the elimination
of the advanced warning signs was dangerous, and that the danger should have been reasonably
foreseeable to the appellees.
¶ 43 Evidence was presented concerning prior accidents at or near Mile Post 55.8, where the
instant accident occurred. There was a text exchange between personnel from EXP and the
Roderick Group Inc., PC (Roderick Group), about a vehicle hitting a barrier wall at Mile Post 57
in January 2016. And evidence was presented demonstrating that Plote Construction Inc. (Plote),
was aware of a vehicle crash in the same location as the accident at issue, which required the
construction company to make repairs to the temporary barrier.
¶ 44 Taken together, the above evidence raises a reasonable inference that it was foreseeable
that the absence of lane shift signs, in advance of the shift, might cause a driver to miss a lane shift.
13 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
See, e.g., Lee, 152 Ill. 2d at 456 (fact that Chicago Transit Authority placed warning signs at
crossing supported finding that it was foreseeable that injuries would result from failure to warn
of danger); Martinelli v. City of Chicago, 2013 IL App (1st) 113040, ¶ 31 (“City should have
foreseen that, having blocked a traffic lane and implemented safety measures, the removal of those
safety measures would negate the ability of the common distracted driver to react to danger created
by the City’s conduct”); Parsons v. Carbondale Township, 217 Ill. App. 3d 637, 649 (risk of
motorist being unable to brake vehicle to avoid accident on dangerous hill at night because of his
inability to see nonconforming warning sign was a foreseeable consequence of municipality
installing warning sign that did not meet State Manual specifications). Here, Nash’s alleged
confusion in negotiating the lane shift was the very conduct the lane shift warning signs were
designed to prevent.
¶ 45 Although appellees suggest that appellants’ evidence is speculative, we find it creates a
genuine issue of material fact that should be decided by the trier of fact and not on summary
judgment. In light of the inferences we are required to draw in appellants’ favor at this stage of the
proceedings, we find that Nash’s testimony and the opinion testimony of appellants’ engineering
experts create factual issues as to whether it was reasonably foreseeable that the absence of the
mandated lane shift signs might cause Nash to miss the lane shift. The credibility and weight of
Nash’s testimony, as well as the expert opinion testimony of the engineers, should be decided by
the trier of fact.
¶ 46 Foreseeability is not only an objective inquiry, but it is also context dependent. Inman,
2019 IL App (1st) 172459, ¶ 71. We distinguish the instant case from other cases relied upon by
the appellees. See Thompson, 154 Ill. 2d at 377-78 (intoxicated driver was speeding to elude police
when he drove off a highway that lacked proper warning signs); Nelson v. Thomas, 282 Ill. App.
14 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
3d 818, 819-23 (1996) (driver ran red light while fleeing from police); see also Abrams, 211 Ill.
2d at 255-56 (city’s refusal to send an ambulance for a pregnant mother in labor was not the legal
cause of accident when she was killed after running a red light while intoxicated driver sped
through the intersection); In re Estate of Elfayer, 325 Ill. App. 3d 1076, 1078-79 (2001)
(intoxicated driver hit median and crossed over unmaintained traffic barrier). 5
¶ 47 The parties presented conflicting evidence as to how far over the speed limit Nash was
traveling at the time of the accident. Evidence was presented that immediately before the crash,
Nash was traveling 20 miles over the posted speed limit. However, evidence was also presented
that he was traveling only 5 miles over the speed limit. Nash testified that he decided to drive with
the “speed of traffic,” though it was in excess of the posted speed limit of 45 miles per hour, as he
believed that driving slower would be unsafe. Chris Tierney, a firefighter and paramedic who
drove the route daily, was four or five car lengths behind Nash when the accident occurred. Like
Nash, he drove with the flow of traffic and added that no one was driving the posted speed limit.
Another witness, Zbigniew Rzucidlo, was traveling behind Nash at 50 or 55 miles per hour. He
stated that Nash was traveling with the speed of traffic.
¶ 48 Courts have held that “[i]t is common knowledge that some drivers of automobiles exceed
the posted speed limit on public highways.” Huff v. Goldcoast Jet Ski Rentals, Inc., 515 So. 2d
1349, 1351 (Fla. 4th DCA 1987). In light of this common knowledge and the conflicting evidence
regarding Nash’s speed at the time of the accident, we find that the trier of fact should be permitted
to determine if it was reasonably foreseeable that Nash might drive over the posted speed limit and
whether his speed was excessive under the circumstances. See, e.g., Chevrie v. Gruesen, 208 Ill.
5 Appellees’ suggestion that Nash was fatigued because he drank an energy drink is disputable. Evidence was presented that Nash had a good night’s sleep prior to the day of the accident and that he had a bowl of cereal for breakfast along with an energy drink. 15 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
App. 3d 881, 884 (1991) (“Both the question of a proper lookout and of speed appropriate to
conditions are generally questions for the jury”).
¶ 49 Appellees contend that Nash’s lack of a commercial driver’s license (CDL) meant that he
lacked the proper training to operate the limousine. Nash was employed by Lyons Limousine,
LLC, and testified that he did not possess a CDL because he was not required to have one in
Wisconsin. Nash, who was a Wisconsin resident and 20 years old at the time of the accident,
claimed he was unaware that drivers were required to possess a CDL to operate a limousine in
Illinois, or that you had to be 21 to obtain a CDL. 6
¶ 50 Our courts have held that possession of a driver’s license is irrelevant to the issue of
negligence. See Riley v. Johnson, 98 Ill. App. 3d 688, 693 (1981); see also Westefer v. Rybacki,
125 Ill. App. 2d 66, 69 (1970) (evidence concerning lack of a driver’s license is irrelevant to the
issue of proximate cause); Wilson v. Hobrock, 344 Ill. App. 147, 152 (1951) (evidence concerning
lack of driver’s license was properly excluded as it had no causal connection with, and was
immaterial to the question of plaintiff’s due care).
¶ 51 Appellees’ contention that Nash lacked the proper training to operate the limousine is a
conclusion. It is incumbent upon appellees to prove that Nash’s lack of a CDL contributed to the
accident. Here, appellees presented no evidence that points to Nash’s failure to possess a CDL as
a causal factor of the accident and therefore we cannot find, as a matter of law, that such failure
was a proximate cause of the accident. In other words, we cannot conclude that had Nash possessed
a CDL, the accident would not have occurred. See, e.g., Burroughs v. McGinness, 63 Ill. App. 3d
664, 668 (plaintiff’s failure to activate turn signal not a proximate cause of collision where court
could not conclude from the evidence that the collision would not have occurred if the turn signal
6 Nash pled guilty to not possessing a CDL. 16 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
was activated)
¶ 52 The facts of this case, along with the conclusions reached in the above cited cases, raise
questions of material fact as to the relevance of Nash’s failure to possess a CDL. They also raise
questions of material fact as to whether it should have been reasonably foreseeable that limousine
drivers from neighboring states, using the Illinois interstate highway system to access O’Hare
Airport, might not possess a CDL.
¶ 53 We further find that genuine issues of material fact exist as to whether it was reasonably
foreseeable that on a sunny morning, eastbound drivers on the stretch of I-90—where the accident
occurred—might have their vision partially obstructed by the rising sun. See, e.g., Borden v.
Creamland Dairies, Inc., 82 N.M. 628, 630, 485 P.2d 739, 741 (Ct. App. 1971) (whether motorist
who claimed his vision was interfered with by rising sun was contributorily negligent in colliding
with rear of parked vehicle presented jury question involving factors such as extent to which sun
interfered with vision, speed and precaution taken to avoid accident, and the amount of advanced
warning available to the motorist).
¶ 54 III. CONCLUSION
¶ 55 We find the trial court erred in granting summary judgment in favor of appellees based on
its finding that Nash’s conduct was the sole proximate cause of the accident as a matter of law. In
addition, because the trial court never considered or ruled on the alternative issues appellees raised
in their motions for summary judgment, we find it prudent to remand these issues and give counsels
the opportunity to present their arguments so that the trial court may make its findings and enter
its determination accordingly. We reverse the trial court’s order granting interlocutory summary
judgment on the issue of proximate cause and remand for further proceedings consistent with this
order.
17 Nos. 1-21-0941, 1-21-0958, 1-21-0959 & 1-21-0961 (cons.)
¶ 56 Reversed and remanded with directions.