Smith v. Armor Plus Co., Inc.

617 N.E.2d 1346, 187 Ill. Dec. 625, 248 Ill. App. 3d 831
CourtAppellate Court of Illinois
DecidedAugust 9, 1993
Docket2 — 92—0861
StatusPublished
Cited by54 cases

This text of 617 N.E.2d 1346 (Smith v. Armor Plus Co., Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Armor Plus Co., Inc., 617 N.E.2d 1346, 187 Ill. Dec. 625, 248 Ill. App. 3d 831 (Ill. Ct. App. 1993).

Opinion

JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Jane Smith, as personal representative and administrator of the estate of David Smith (Smith), appeals from a grant of summary judgment in favor of defendants, Armor Plus Company, Inc. (Armor), a corporation headquartered in Wisconsin, and its former employee, Richard Grouleau, in a suit under the Wrongful Death Act (740 ILCS 180/1 et seq.) (West 1992)). Smith was killed when a car in which he was riding drove off the highway and onto the shoulder, where it collided with a disabled Armor truck that Grouleau, the driver, had abandoned there. The trial court held, as a matter of law, that Grouleau’s alleged negligence did not proximately cause Smith’s fatal injuries.

On appeal, plaintiff argues that she raised genuine factual issues as to all elements of negligence, including proximate cause. She maintains that the trial court ignored evidence that Joshua Block would not have driven the car onto the shoulder had Grouleau warned adequately of the truck’s presence. Defendants reply that the record demonstrates that the presence of the truck entirely off the roadway was only a condition and not a proximate cause of the collision, and that Block’s erratic driving was the sole proximate cause of the accident. In rejoinder, plaintiff argues that the safety statutes Grouleau violated assume that the sort of occurrence here was sufficiently foreseeable so that Grouleau’s violation of his statutory duties could be a proximate cause of the collision even though the truck was off the roadway at the time of the collision.

The fatal collision occurred at about 12:40 a.m. on November 18, 1989, on the right shoulder of Interstate 94 in Lake County just north of milepost 66. The complaint alleged that on November 17, 1989, Grouleau parked and abandoned the truck on the east emergency shoulder of Interstate 94 after the truck became disabled. Block’s vehicle collided with the rear of the truck, causing Smith’s injuries.

Plaintiff alleged that the collision and Smith’s injuries proximately resulted from one or more of the following negligent acts or omissions by Grouleau: (1) failure to remove the truck from the shoulder' within a reasonable time of abandoning it; (2) failure to carry emergency warning devices as required by the Illinois Vehicle Code (625 ILCS 5/ 12 — 702(a) (West 1992)); (3) failure to place emergency warning devices behind the truck, as required by law (625 ILCS 5/12 — 702(e)) (West 1992)); (4) failure to place emergency warning devices on the curve in the roadway directly south of the collision site (625 ILCS 5/ 12 — 702(d) (West 1992)); (5) abandoning the truck without insuring that it was removed from the shoulder; and (6) failure to park the truck at the nearest tollway oasis when Grouleau knew or should have known that the truck was about to become disabled.

Defendants moved for summary judgment, contending that their alleged negligence was at most a condition and not a proximate cause of the accident. They argued that when Grouleau stopped the truck at the nearest oasis, the truck was operating properly. When the truck developed mechanical difficulties, Grouleau parked it on the shoulder, entirely off any lane of vehicular traffic. Prior to the collision, emergency flashers on the truck were activated. Before the collision, defendant’s agents advised the State Police of the truck’s location. Joshua Block, the driver, could not remember the collision or any of the events leading up it.

Defendants maintained that these facts entitled them to summary judgment based on the lack of any issue of proximate cause. They reasoned that because the truck was parked well off the roadway, out of the area intended for motor vehicle traffic, the truck’s presence was at most a condition of the accident. It was not a proximate cause of the accident because the truck did not cause Block to drive off the roadway; Block’s improper departure from the road, whatever the cause, was an intervening efficient cause of the crash.

Defendants filed several documents in support of their motion for summary judgment. An affidavit of Phil Weber (not further identified in the record) stated that at an unspecified time on November 18, 1989, he was headed north on the Illinois Tollway near milepost 66. He discovered the abandoned Armor Plus truck, which was parked on the east shoulder, entirely off the part of the tollway designated for travel. Before he departed, Weber activated the truck’s emergency flashers.

Defendants also submitted Grouleau’s March 28, 1991, deposition. At the time of the accident, Grouleau worked as a roofer for Armor. On November 17, 1989, he and Tony Cortez took turns driving the truck back from a jobsite in Michigan." As they rode into Illinois, sleet and snow began to fall. It became colder, and ice patches started forming on the road. When the two men stopped at the Lake Forest Oasis, the truck was “running fine.” At about 3 or 4 p.m., as Grouleau drove north, the truck started to overheat, indicating to Grouleau that a fan belt had broken. The power steering was impaired and an “idiot light” came on, indicating overheating or problems with oil pressure. .

Because the engine was overheating, Grouleau pulled the truck onto the right shoulder of the road. As he recalled at his deposition, the truck was completely off the roadway. In fact, the rear wheels of the truck were in the grass, with the right rear double tires on the edge of the grass not far from a ditch. Grouleau went as far off the roadway as he considered safe. Grouleau and Cortez turned on the flashers on the truck. An individual whom Grouleau did not recognize came along to assist the men. The truck had no radio, so Cortez and the other man walked north to call for a tow truck. After a half hour, Cortez returned and told Grouleau he had asked a State Police officer to call a tow truck. The officer agreed to do so but said that it would take a while because there had been so many accidents.

About a half hour later, Tom Pulda, an Armor sales representative, drove along and offered Grouleau and Cortez help. The snow was increasing, the temperature was falling, and ice was on the roadway. At about 4:30 or 5 p.m., Pulda, Grouleau, and Cortez rode back to Wisconsin in Pulda’s car. Pulda called the State Police by car phone and arranged for them to send a tow truck to remove the Armor truck as soon as possible. Pulda also called Armor’s owner. Grouleau did not recall whether this was before or after the call to the police. The owner told Pulda to leave the truck there; in the morning, someone would come to repair the truck unless it had been towed away. The men drove off, leaving the truck where it was parked. En route to the Wisconsin border, Grouleau noticed the aftereffects of three accidents that Cortez had mentioned. These accidents involved both multivehicle collisions and cars sliding off the roadway into ditches.

Grouleau admitted that before he left in Pulda’s vehicle he turned off the truck’s flashers. He put no warning devices behind the truck as he knew that his truck contained no such devices. He did not believe Pulda’s car had any such warning devices either.

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Cite This Page — Counsel Stack

Bluebook (online)
617 N.E.2d 1346, 187 Ill. Dec. 625, 248 Ill. App. 3d 831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-armor-plus-co-inc-illappct-1993.