Smolucha v. PSNergy, LLC

2025 IL App (4th) 240690-U

• Court: Appellate Court of Illinois
• Decided: February 24, 2025
• Docket: 4-24-0690
• Status: Unpublished

Opinion

NOTICE 2025 IL App (4th) 240690-U This Order was filed under FILED Supreme Court Rule 23 and is February 24, 2025 NO. 4-24-0690 Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

BRUCE SMOLUCHA, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Livingston County PSNERGY, LLC, a Limited Liability Company; PTC ) No. 18L31 TUBULAR PRODUCTS, 2010, LLC, a Limited Liability ) Company; and BLUCHIP INDUSTRIAL SERVICES, ) Honorable INC., a Corporation, ) Jennifer H. Bauknecht, Defendants ) Judge Presiding. (PSNRGY, LLC, Defendant-Appellee).

JUSTICE VANCIL delivered the judgment of the court. Justices Zenoff and Grischow concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed the trial court’s order striking the Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013) affidavit of the plaintiff’s expert witness, finding the witness’s opinions were based on conjecture and speculation and affirmed the award of summary judgment to defendant, finding defendant’s duties were limited to its contracts and voluntary undertakings and plaintiff had failed to raise a genuine issue of material fact regarding the contents of those contracts and undertakings and regarding defendant’s contribution to plaintiff’s injuries.

¶2 In early 2018, plaintiff, Bruce Smolucha, suffered carbon monoxide (CO)

poisoning while working at a factory owned by defendant, PTC Tubular Products, 2010, LLC, a

Limited Liability Company (PTC). He sued multiple companies, including defendant, PSNergy,

LLC, a Limited Liability Company (PSN), alleging PSN negligently serviced a certain furnace at

the factory, causing the furnace to emit dangerous concentrations of CO. PSN moved for summary

judgment, arguing it provided only limited “combustion tuning” services, not comprehensive repair and maintenance for the furnace and it did not cause Smolucha’s injuries. Smolucha offered

an affidavit of John G. Green II, P.E., to provide expert opinion testimony on PSN’s

responsibilities and failures and on the cause of Smolucha’s injuries. The trial court struck Green’s

affidavit, finding he was not qualified as an expert and his opinions were based on conjecture or

speculation. It also granted summary judgment for PSN, finding PSN had no duty to repair,

maintain, or service the furnace and Smolucha had not shown that CO from the combustion system

caused his injuries.

¶3 Smolucha appeals, arguing the trial court erred by striking Green’s affidavit and

that genuine issues of material fact remain concerning PSN’s duties, whether it breached those

duties, and whether those breaches caused or contributed to his injuries. He asks us to reverse the

court’s order.

¶4 For the following reasons, we affirm the trial court’s holding.

¶5 I. BACKGROUND

¶6 In early 2018, Smolucha was employed at PTC’s factory located in Fairbury,

Illinois, where it manufactures steel pipes for a variety of purposes. On four separate days, during

his shifts, Smolucha began feeling ill. He sought medical treatment, and blood tests indicated he

had suffered CO poisoning.

¶7 Smolucha’s workstation was close to a “Roller Hearth Tube Annealing Furnace”

(Subject Furnace). This Subject Furnace exposes the steel pipes to very high heat, in a process

called “annealing.” Oxygen inside the Subject Furnace can interfere with this process, so carbon

rich gas is used to force oxygen out, and the remaining gas vents into the general atmosphere. The

Subject Furnace’s combustion system produces the high temperatures necessary to heat the pipes

through a chemical reaction involving natural gas and oxygen, which produces explosions in tubes

-2- inside the Subject Furnace. The gas that remains after this reaction, often including CO, moves

into exhaust stacks, where it is diluted with air before being vented into the atmosphere. The

Subject Furnace was not the only machine at PTC’s Fairbury factory that used or produced CO.

¶8 In October 2018, Smolucha initiated this lawsuit against PSN and other defendants.

In his third amended complaint, he alleged PSN’s employees or agents worked on the Subject

Furnace before January 27, 2018, and PSN’s negligence caused his CO poisoning, resulting in

brain damage. Specifically, Smolucha alleged PSN negligently failed to inspect the Subject

Furnace, test for unsafe conditions, discover unsafe conditions, repair unsafe conditions, and warn

the operator of the unsafe conditions and it otherwise breached its duty of care.

¶9 During a deposition, Smolucha testified that about a week before January 27, 2018,

close to the end of his shift, he began feeling dizzy, lightheaded, and nauseous. After he went

home, his symptoms faded. He went to work on January 26, but PTC sent the staff home because

CO detectors were “going off all over the place.” He had never seen CO detectors at work before.

When he returned on January 27, he saw no CO detectors. About halfway through his shift, he

started to feel ill, and his condition deteriorated. After his shift, he went to the emergency room

(ER), where he was diagnosed with CO poisoning. On January 29, he felt ill again, and he returned

to the ER. His final shift was on February 16, 2018, and he went to the ER again afterwards.

¶ 10 Smolucha was asked if he ever learned the source of the CO. He answered that he

was told the Subject Furnace was the source, but he does not remember who told him this.

Throughout this period, he did not see anything that led him to believe someone was working on

the Subject Furnace. He did not know if PTC called in anyone to address the CO issue. He

suspected not, because the problem persisted “for quite awhile.” At the time, he was not familiar

with PSN, and he did not know if PSN workers were at the factory during his shift.

-3- ¶ 11 The record includes PSN’s invoices and service reports, which document its

services to PTC. All the invoices listed “Combustion Efficiency Tuning,” or some similar phrase,

as the service provided. A January 30, 2018, invoice stated, “New quote as of Jan 24, 2018,

Emergency Call work verified by B. Roof.” The service reports detailed what work PSN completed

on the visit. All the reports listed “Combustion Efficiency Tuning—Furnace #1,” or some similar

phrase, as the service performed. A January 26, 2018, service report included measurements of the

concentrations of CO gas in each of the Subject Furnace’s burners, before and after the tuning.

Before tuning, most burners had 0ppm CO, but one had 150ppm, one 1500ppm, one 2000ppm,

another 3000ppm, and finally, one measurement stated, “MAX.” After tuning, the report stated

each burner was emitting 0ppm CO.

¶ 12 The service report also documented conditions of the Subject Furnace and PSN’s

recommendations. For example, a December 2014 service report recommended that the Subject

Furnace “be tuned bi-annually or at the very least annually.” The report for the services provided

on January 26, 2018, recommended repairing or replacing a certain butterfly valve, with a note

that this had been recommended for two years. It also recommended that certain parts be removed

at the next shutdown, cleaned, inspected, and repaired or replaced if necessary. The report stated,

“The CO levels in the plant being high can be attributed mainly to lack of/poor ventilation.” It

noted that 4 of the 28 tubes in the Subject Furnace’s combustion system had high CO readings,

but this “would have contributed only slightly to the plant CO issue.” It further noted that the

“exhaust stacks” had no “exhaust hoods,” nor did a “furnace/cooling exit,” so “[t]he atmosphere

coming out of this exit is rich in CO and is just dissipating into the plant.”

¶ 13 Orders for PSN’s services from PTC’s records are also part of the record. One

states, “Date Ordered: 01/03/2018.” The description provided is “tuning of all burners on the

-4- annealing furnace.” The due date listed is January 29, 2018. At the bottom is a handwritten

signature and date, with a date of “1/3/17 [sic].” Another, otherwise identical, work order adds,

“Price is changed due to Emergency call[.] New quote as of Jan 24 /20018 [sic],” and the price has

increased. The handwritten date at the bottom is January 25, 2018.

¶ 14 Two PSN employees were deposed. Christopher Wyant, vice president of

technology for PSN, testified PSN began providing combustion tuning services on the Subject

Furnace in December 2014. Wyant explained that for the Subject Furnace, “the air-to-fuel ratio is

extremely critical to get proper combustion or optimal combustion.” Over time, he continued, the

Subject Furnace degrades because of, for example, the accumulation of dirt, rust, or carbon

deposits, and these degradations can affect the air-to-fuel ratio. This is not a result of negligence,

he added, but it is natural and expected. If the proportion of air is too high, “it becomes inefficient.”

If the system is “rich” in gas, then there is not enough oxygen in the system for full combustion,

which can result in CO, smoke, soot, or even fire. If the air-to-fuel ratio is even slightly off, there

will be “excess CO.” He stated that, ideally, the air-to-fuel ratio is 11.5 to 1, and this results in

“excess oxygen” production of 3%, the industry standard. Wyant explained that regular

combustion tuning ameliorates this degradation. Before tuning, PSN technicians put a probe in the

“exhaust *** stack” to measure various levels in the Subject Furnace, including CO. The

technician then adjusts the amounts of air and gas to reach the proper ratio. PSN ensures that the

CO concentration in the tube is no greater than 500ppm after tuning.

¶ 15 Wyant explained that PTC and PSN did not sign any contracts except for purchase

orders. To his understanding, “the extent of [PSN’s] services [to PTC] are to provide combustion

tuning.” He testified they are not hired to perform “any sort of repair or maintenance to the furnace

or the combustion system.” But he acknowledged, in PSN’s reports, they recommended

-5- maintenance on the combustion system. PSN probably never told PTC in writing that tuning should

take place every six months, although Wyant was not sure. PSN’s service reports are e-mailed to

the customer within two weeks of the service call. Wyant confirmed that PSN had not trained

PTC’s staff on how to set the air-to-fuel ratio or fix excess CO production without needing PSN’s

assistance. PSN offered training, including a manual describing how the Subject Furnace is tuned.

Wyant was familiar with PTC’s Fairbury factory and knew that other machinery there used or

produced CO. He agreed that CO is a safety hazard “[a]t certain levels.”

¶ 16 Wyant testified he was present at prior service calls to PTC but not on January 26,

2018. He acknowledged that as early as December 2014, the Subject Furnace produced “excess”

CO. When he last visited PTC, he did not record or report his measurements to PTC because PTC

had not requested those numbers, and PSN generally did not make a record unless asked to do so.

However, Wyant testified they had never encountered a situation where CO was at a “dangerous

level,” but the customer told them not to report it. Wyant was asked if anyone at PSN ever told

PTC that the Subject Furnace was producing unsafe levels of CO. He answered, “There have been

no unsafe levels of carbon dioxide [sic] around this furnace.” He explained that the “excess carbon”

he referred to was “in the stack of the furnace, not outside.” Inside the Subject Furnace, 500ppm

“is allowable,” but even higher concentrations inside the Subject Furnace do not result in unsafe

concentrations outside it. PSN staff wear CO monitors when they work on the Subject Furnace.

He accepted that the PTC factory had an unsafe concentration of CO in the atmosphere, but he

insisted it did not come from the Subject Furnace’s combustion system. In recommending to

customers how often to tune a furnace, he considered the cost of the services and the efficiency of

the furnace. CO emissions do not affect the determination, because even if the Furnace is not

running well, it will result in lower CO concentrations than a car sitting in traffic. Concerning the

-6- report for the January 26 visit, Wyant testified that any CO coming from the combustion system

was normal. Especially six months after the previous tuning, some of the tubes would produce

over 10,000ppm CO, but this would not result in CO “issues around the furnace.”

¶ 17 Brian Stallard was also deposed. He performed the service call to PTC on January

26, 2018. He explained that in the “suggestions/recommendations” section of PSN’s service

reports, whoever worked on the Subject Furnace would make notes if they observed parts in need

of repairs, but PSN did not handle these repairs. The service report, including the

recommendations, were eventually given to the customer “in a number of weeks.” PSN did not

verify if the client follows up on their recommendations.

¶ 18 Stallard testified that in January 2018, he was in the early parts of completing the

“learning phase” of his employment. He explained that the purpose of the January 26 service call

was “to verify the condition of the furnace and, kind of, make a determination of if that was where

their main—their CO problem was coming from.” PTC called PSN for both their “semiannual

tuning” and to “investigate the [CO] problems the plant was having.” This was the only call

Stallard knew about where PSN “specifically address[ed] CO.” PSN normally did not work on

“atmosphere generators,” but on this call, because this equipment “[made] an atmosphere that’s

rich in CO,” they looked at PTC’s atmosphere generator. Stallard was asked why the service call

report did not list “[CO] inspection” in either the services performed or service call description.

He answered that he did not know why, but “[i]t should have been—it was kind of an emergency

call, but not really, because it was close to being scheduled anyway, but it was different than your

basic tuning.” But he also said that looking for CO problems was a “favor” for PTC. He later

admitted that he did not know what specifically PTC requested and he did not schedule the service

call, but he was told to see if the Subject Furnace was contributing to the CO problem.

-7- ¶ 19 Stallard did not know when PTC first contacted PSN regarding the CO problems.

He testified PSN classified a call as an “emergency” if the customer said it had a “major problem”

and it needed PSN the next day instead of in a month. The January 26 call was classified as an

emergency because the date was moved forward. Smolucha’s counsel asked, “So PTC first reached

out about this [CO] issue on January 3rd, 2018, true?” Stallard answered, “Yes.” Later, Stallard

testified he did not know when PTC asked PSN to move up the appointment, but looking at the

purchase order, he believed that on January 3, the visit was scheduled for January 29, and then on

January 24, PTC asked PSN to come earlier, so PSN classified the visit as an “emergency” and

came on January 26.

¶ 20 Reviewing the January 26 service call, Stallard explained that his recommendations

mostly related to the combustion tuning, but a few of the issues could have contributed a small

amount to the CO problems in the factory. He did not recommend that the Subject Furnace be shut

down until the problems were addressed. He explained, “Shutdowns are avoided at all costs.” He

agreed that PSN had not made many of these recommendations until the January 26 visit but that

was because they had never addressed a CO problem until this call. They only addressed the

air-to-gas ratio. He confirmed that he authored the report, which would have been reviewed by

Wyant and then sent to PTC. He also testified that PSN was “beholden” to PTC on how often they

perform tunings and PSN cannot help it if the client does not follow through with PSN’s

recommendations.

¶ 21 PSN moved for summary judgment. It argued that its responsibilities were limited

to tuning the Subject Furnace and Smolucha produced no evidence it acted negligently in providing

tuning services. It further argued that some CO emission was an expected and safe byproduct of

the combustion process and the emissions from the Subject Furnace were within the safe and

-8- normal range. Therefore, PSN claimed, Smolucha had not shown that CO emissions from the

Subject Furnace caused his injuries.

¶ 22 In opposition to PSN’s motion, Smolucha submitted an affidavit from John G.

Green II, P.E. Green testified he was a mechanical engineering expert. He was a licensed

professional engineer in 25 states, including Illinois. His curriculum vitae was attached to the

affidavit, further detailing his engineering credentials. Green indicated that he personally visited

PTC’s factory and inspected the Subject Furnace and he based his opinions on that visit, the

depositions, and other discovery documents produced during this court case.

¶ 23 Green opined that PSN’s carelessness caused CO accumulation in the PTC factory.

He asserted that PSN was obligated to “act as a reasonable combustion tuning company,” including

properly repairing, maintaining, testing, and inspecting the Subject Furnace, as well as discovering

any unsafe conditions and warning Smolucha or his employer. He stated that PSN carelessly failed

to fulfill these obligations, and he listed specific failures. For example, Green explained: Wyant

knew the Subject Furnace was producing “excess [CO],” but he never reported any CO

measurements to PTC; Wyant failed to recommend in writing that PTC’s Subject Furnace be tuned

every six months; PSN sent Stallard, instead of Wyant, to the January 2018 service call, even

though Stallard was in the “learning phase” of his employment; and PSN never confirmed that

PTC could tune the Subject Furnace without PSN’s services. Green further stated, “Despite the

fact that PTC called PSN to address [CO] accumulation problems on January 3, 2018, PSN did not

arrive to the PTC factory until January 26, 2018.” He also asserted that Smolucha suffered CO

poisoning on January 27, the day after PSN left PTC’s factory, “indicating that PSN did not

properly and adequately tune the Subject Furnace to eliminate the production of excess [CO], nor

did it address any of the ventilation issues it described in its service report.” Green concluded that

-9- PSN’s negligent acts or omissions caused CO accumulation in the PTC factory, resulting in

Smolucha’s injuries.

¶ 24 PSN moved to strike Green’s affidavit, and the trial court granted the motion. It

found that Green was not qualified to opine on combustion tuning or the standard of care for a

reasonably careful combustion technician because he had no education, experience, or training on

these matters and, although he visited the Subject Furnace, he did not identify anything he learned

from his inspections. The court further found Green’s opinions were conclusory, speculative, or

misstated the evidence because, for example, he failed to identify what, if anything, he learned

from viewing the Subject Furnace, failed to refute or completely ignored testimony concerning

industry standards, failed to state what the standards for a reasonable combustion tuning were, in

his opinion, and misused keys terms from the record, such as “excessive amounts of carbon” or

“combustion tuning.”

¶ 25 The trial court also granted PSN’s motion for summary judgment. It found PSN

“was hired to complete combustion tuning services” and “its duty was to perform those combustion

tuning services with reasonable care.” The court reasoned that all the evidence indicated PSN acted

within the standard of care. Although Smolucha argued PSN had additional duties, the court

determined that the existence and scope of PSN’s duties was a question of law and that PSN’s

duties did not include “maintenance, repair, and/or service of the Subject Furnace or its ventilation

system.” Finally, the court concluded, “[I]t is unrefuted that the emission of combustion

byproducts, including CO, from the exhaust stacks of the Subject Furnace were within industry

standards, expected and a safe result of the combustion process. [Smolucha] has failed to show

that the CO byproduct from the combustion process caused [his] injuries.”

- 10 - ¶ 26 Smolucha filed a motion to reconsider, as well as a motion asking the trial court to

take judicial notice of certain CO standards promulgated by the National Fire Protection

Association (NFPA). These standards list risks of CO exposure based on the concentration of CO

and duration of exposure. For example, two to three hours of exposure to 200ppm can cause mild

headaches, and one to three minutes of exposure to 12,800ppm can cause unconsciousness and

risk of death. The court granted the motion for judicial notice, but it denied the motion to

reconsider.

¶ 27 This appeal followed.

¶ 28 II. ANALYSIS

¶ 29 Smolucha asks us to reverse the trial court’s order striking Green’s affidavit and

granting summary judgment and to remand for further proceedings. PSN asks us to affirm.

¶ 30 A. Green’s Affidavit

¶ 31 We begin with the trial court’s decision to strike Green’s affidavit. The court found

Green did not qualify as an expert and that his testimony was based, not on facts, but on speculation

and conjecture. Smolucha asks us to reverse this order, or at least to strike only the offending

portions instead of the entire affidavit.

¶ 32 Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013) governs the admissibility of

affidavits in support of a motion for summary judgment. This rule “provides that an affidavit must

be (i) made on the affiant’s personal knowledge, (ii) not consist of conclusions but facts admissible

in evidence, and (iii) affirmatively show that the affiant could testify competently about those

facts.” Kreczko v. Triangle Package Machinery Co., 2016 IL App (1st) 151762, ¶ 18. “[T]he rule

is satisfied if from the document as a whole it appears that the affidavit is based upon the personal

knowledge of the affiant and there is a reasonable inference that the affiant could competently

- 11 - testify to its contents at trial.” Burks Drywall, Inc. v. Washington Bank & Trust Co., 110 Ill. App.

3d 569, 576 (1982). Strict compliance with Rule 191(a) is necessary, and “[a]ffidavits in opposition

to motions for summary judgment must consist of facts admissible in evidence as opposed to

conclusions, and conclusory matters may not be considered in opposition to motions for summary

judgment.” Berke v. Manilow, 2016 IL App (1st) 150397, ¶ 21. The court should strike only the

improper portions of a Rule 191(a) affidavit. Roe v. Jewish Children’s Bureau of Chicago, 339 Ill.

App. 3d 119, 128 (2003). We review a motion to strike affidavits in conjunction with an order

granting summary judgment de novo. Jackson v. Graham, 323 Ill. App. 3d 766, 773-74 (2001);

see Bailey v. Graham Enterprises, Inc., 2019 IL App (1st) 181316, ¶ 21; see also Collins v. St.

Paul Mercury Insurance Co., 381 Ill. App. 3d 41, 46 (2008); Brettman v. Virgil Cook & Son, Inc.,

2020 IL App (2d) 190955, ¶¶ 54-56; but cf. McDonald v. Lipov, 2014 IL App (2d) 130401, ¶ 34

(reviewing for abuse of discretion).

¶ 33 Smolucha offered Green’s affidavit to provide expert opinion testimony. Courts

apply a “more stringent” standard for admission of an expert’s Rule 191 affidavit than we would

apply for expert testimony at trial, “in that Rule 191 requires the expert to disclose the specific

facts (or personal knowledge) supporting his or her opinion in an affidavit, whereas, at trial, the

expert may give an opinion without disclosing the facts underlying that opinion.” Brettman, 2020

IL App (2d) 190955, ¶ 4 (citing Robidoux v. Oliphant, 201 Ill. 2d 324, 334-35, 338 (2002)). “An

expert’s opinion is only as valid as the reasons for the opinion.” Hudson v. City of Chicago, 378

Ill. App. 3d 373, 400 (2007). “Expert opinions relying on speculation, conjecture, or guess as to

what the witness believed might have happened are inadmissible.” Berke, 2016 IL App (1st)

150397, ¶ 21. “When experts (i) fail to take into consideration a party’s actions, (ii) base their

opinions on facts not in evidence, (iii) base their opinions on what might have happened, and

- 12 - (iv) ignore significant factors, the court will reject the experts’ opinions as mere speculation and

conjecture.” Id.

¶ 34 We agree with the trial court’s conclusion that Green’s opinions were conclusory,

speculative, and relied on facts not in evidence. Although Green stated, generally, that his opinions

were based on the record, his own background, and his personal knowledge of the case, including

his own visit to the Subject Furnace, he provided no explanation of how each of these informed

his opinion. For example, he opines:

“That each and every time PSN was onsite to perform maintenance and inspect the

Subject Furnace, PSN was required to act as a reasonable combustion tuning

company that would include properly and adequately repairing, maintaining,

testing, and inspecting the Subject Furnace, as well as properly and adequately

discovering and warning the Plaintiff and/or his employer of the unsafe and

dangerous condition of the Subject Furnace and its inadequate venting.”

Green provides no basis for his opinion that the standard of care for reasonable combustion tuning

includes all these responsibilities. He did not base this opinion on anything in the record, because

the only evidence of the standard of care came from Wyant and Stallard, who indicated that their

combustion tuning responsibilities did not include general inspections, repairs, and maintenance

of Subject Furnace. But Green provided no other facts from outside the record to support his

conclusion.

¶ 35 Moreover, in listing the ways he believed PSN failed in its responsibilities, Green

relies on the record to support propositions that the evidence does not support. For example, Green

opines PSN failed in its responsibilities because both Wyant and Stallard testified the combustion

system was producing “excess [CO].” Green declines to note that, as both Wyant and Stallard used

- 13 - this phrase, “excess” CO simply referred to inefficient concentrations of CO. Both Wyant and

Stallard clearly testified that this “excess” was an expected, unavoidable part of the combustion

tuning process, not a result of PSN’s conduct. Similarly, he claims PSN was negligent in failing to

respond more quickly to PTC’s request for services on January 3, 2018. As we explain below, the

record does not support this view. If Green’s conclusions about PSN’s responsibilities on these

matters depend on facts outside the record, he failed to provide those facts.

¶ 36 Additionally, Green states, “After PSN left the premises on January 26, 2018, the

Plaintiff suffered another [CO] poisoning the next day, indicating that PSN did not properly and

adequately tune the Subject Furnace to eliminate the production of excess [CO].” This is

speculation. The only available evidence indicates that when Stallard left the factory after his

January 26 visit, the Subject Furnace’s combustion system was emitting no CO. The mere fact that

Smolucha suffered an injury the following day does not prove PSN acted incompetently,

particularly when other machinery in the factory used or produced CO. Once again, if Green knew

facts not in the record that convinced him the combustion system was still emitting CO, despite

the evidence suggesting otherwise, he failed to provide those facts in his affidavit.

¶ 37 Smolucha relies on Brettman. There, the plaintiff alleged the defendants negligently

placed temporary traffic control lights, leading to an automobile crash. Brettman, 2020 IL App

(2d) 190955, ¶ 10. The defendants moved for summary judgment, and the plaintiff submitted a

Rule 191(a) affidavit from an expert, who testified that the improper placement of the temporary

lights contributed to the crash. Id. ¶¶ 27, 34-40. The trial court struck the expert’s affidavit, finding

that he had provided opinions but not facts, and granted summary judgment for the defendants. Id.

¶ 3. The plaintiff appealed, and the appellate court reversed. The court found that the expert had

based his opinion on specific facts and his personal knowledge, so his opinion was admissible. Id.

- 14 - ¶ 4. Smolucha claims that Green’s affidavit here is comparable to the expert’s affidavit in

Brettman.

¶ 38 We find Brettman distinguishable. Indeed, the affidavit in Brettman provided just

the sort of specific facts or personal knowledge that was lacking here. The Brettman affidavit

included a 17-page report detailing the factual bases for the expert’s conclusion. For example, he

“opined that the road curvature impeded visibility, and he attached a picture of the curve.” Id. ¶ 78.

He provided detailed calculations showing precisely how long the driver had to respond to warning

signs, and the calculations were supported by witness testimony. Id. ¶ 79. When explaining his

conclusions, he cited and quoted relevant scientific authority, including research on “inattentional

blindness.” Id.

¶ 39 Here, Green provided no such facts to support his opinion. Although he baldly

asserted an opinion on the standard of care for a reasonable combustion tuner, he provided no

research, no details of his personal experience, nor any specific reference to his training to specify

his basis for asserting this opinion. Likewise, if something in his own background or personal

knowledge led him disagree with Wyant and Stallard on the acceptable minimal presence of CO

in combustion tuning, he failed to specify what that would be.

¶ 40 Smolucha is correct, however, that only the offending portions of Green’s affidavit

should be struck. The offending portion includes any portion of the affidavit in which Green opines

on the standard of care of a reasonably responsible combustion tuner and on PSN’s failure to satisfy

that standard. We therefore strike all of paragraphs 11, 16, 17, 18, and 19. The remaining portions

of the affidavit do not affect our summary judgment analysis, so we need not consider whether

Green was properly qualified as an expert.

¶ 41 B. Summary Judgment

- 15 - ¶ 42 We now consider the award of summary judgment. Summary judgment is proper

when the pleadings, depositions, admissions on file, and affidavits, if any, establish that no genuine

issue of material fact exists and the moving party is entitled to judgment as a matter of law. 735

ILCS 5/2-1005(c) (West 2022). “All facts should be construed in favor of the nonmovant, and

‘where reasonable persons could draw divergent inferences from the undisputed material facts or

where there is a dispute as to a material fact,’ summary judgment should not be granted.”

Biancorosso v. Troy Community. Consolidated School District No. 30C, 2019 IL App (3d) 180613,

¶ 12 (quoting Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114 (1995)). “Although

the burden is on the moving party to establish that summary judgment is appropriate, the

nonmoving party must present a bona fide factual issue and not merely general conclusions of

law.” Morrissey v. Arlington Park Racecourse, LLC, 404 Ill. App. 3d 711, 724 (2010). Our review

is de novo. Id.

¶ 43 “To state a cause of action for negligence, the plaintiff must establish that the

defendant owed a duty of care, that the defendant breached that duty, and that the plaintiff incurred

injuries proximately caused by the breach.” Espinoza, 165 Ill. 2d at 114. Whether a duty exists is

a question of law, but breach and causation “are factual matters for a jury to decide, provided there

is a genuine issue of material fact regarding those issues.” Id.

¶ 44 1. Duty

¶ 45 We begin with PSN’s duties. Smolucha contends that PSN had duties to him based

on its contracts with PTC, its voluntary undertakings, and the common law. PSN acknowledges

some minimal duty to provide combustion tuning services but disputes the scope of that duty.

¶ 46 a. Contract

- 16 - ¶ 47 First, Smolucha argues PSN’s contracts with PTC created a duty. Although PSN

and PTC did not have a standing contractual relationship, PSN regularly contracted with PTC to

service the Subject Furnace. Smolucha claims these agreements created a professional duty to

exercise reasonable care in responding promptly, investigating, and correcting dangerous

conditions. He especially emphasizes the fact that PSN did not tune the Subject Furnace until

January 26, 2018, despite PTC’s request for emergency services. He further contends, citing

Illinois Pattern Jury Instructions, Civil, No. 105.01 (revised April 2020), that the applicable

professional standards are a factual issue which must be established by expert testimony, so

summary judgment is inappropriate. See id. (“The law does not say how a reasonably careful

[professional] would act under the circumstances. That is for you to decide.”); see also Advincula

v. United Blood Services, 176 Ill. 2d 1, 24 (1996).

¶ 48 PSN acknowledges it had a duty to provide combustion tuning services. However,

PSN contends that, as a matter of law, this duty did not include comprehensive repairs or

maintenance on the Subject Furnace. Citing Eichengreen v. Rollins, Inc., 325 Ill. App. 3d 517, 525

(2001), it argues that in a negligence action based on contract, “the scope of duty is determined by

the terms of the contract.” PSN acknowledges that “industry standards are generally admissible to

help establish the requisite standard of care.” See Murphy v. Messerschmidt, 41 Ill. App. 3d 659,

661 (1976). Nevertheless, PSN claims it did not contract to perform the repair and maintenance

services that Smolucha relies on, so it had no duty to perform them. PSN further claims the

testimony does not establish that it failed in its duty to respond in a timely fashion to PTC’s request

for services.

¶ 49 We agree with PSN. “An allegation of negligence based upon a contractual

obligation, although sounding in tort rather than contract, is nonetheless defined by the contract.”

- 17 - Eichengreen, 325 Ill. App. 3d at 525. Therefore, the contract defines the scope of the duty. Id.

“Whether a contract exists, its terms, and the intent of the parties are questions of fact for the trier

of fact.” (Emphasis in original.) Mulliken v. Lewis, 245 Ill. App. 3d 512, 516 (1993). However,

when no factual dispute exists and reasonable people would agree as to the inferences drawn from

them, this question becomes a question of law. Commonwealth Edison Co. v. Industrial Comm’n,

167 Ill. App. 3d 229, 233 (1988).

¶ 50 Beginning with PSN’s services prior to 2018, Smolucha has not produced any

evidence that remotely suggests PSN contracted to provide the sort of holistic inspections, repairs,

and maintenance on the Subject Furnace that he relies on. Wyant testified that PSN and PTC had

no written agreement other than purchase orders. He also testified PSN’s services to PTC were

limited to “combustion tuning” and they did not include repairs or maintenance. Stallard testified

the January 2018 service call was the first call concerning CO in the atmosphere. The purchase

orders, service reports, and invoices from before January 2018 describe the contracted-for services

as “Combustion Efficiency Tuning.” Smolucha has introduced no evidence that these contracts

created any duty for PSN other than providing combustion tuning services.

¶ 51 Smolucha focuses especially on PSN’s agreement to provide services in January

2018, so we consider this agreement separately. Smolucha claims that in January 2018, PSN agreed

to “address” PTC’s “[CO] problem” and thereby accepted a duty to exercise reasonable care “in

providing timely services to investigate and correct a dangerous condition and to prevent the risk

of harm to Smolucha or any other PTC employees.”

¶ 52 We see no basis in the record to conclude that PSN agreed to “correct” PTC’s CO

problems. Nor do we see any evidence PSN agreed to protect PTC’s employees from any risks of

CO. However, Stallard acknowledged that PSN’s January 26, 2018, services were “different than

- 18 - your basic tuning.” He testified that the purpose of this particular service call “was to verify the

condition of the furnace and, kind of, make a determination of if that was where their main—their

CO problem was coming from.” When asked why PSN’s documentation of the visit did not list

“[CO] inspection” as a service provided, he answered that he did not know, but it should have.

Construing the record in Smolucha’s favor, Stallard’s testimony could indicate PSN agreed, in

January 2018, to inspect the Subject Furnace for potential contributions to the factory’s CO

problems, a service it had not provided before, although this still does not establish that PSN

contracted to remedy PTC’s CO problems or comprehensively repair the Subject Furnace.

¶ 53 Furthermore, Smolucha’s incorrect assertion that PSN agreed to provide

“emergency” services on January 3, 2018, does not raise a bona fide factual dispute. See

Morrissey, 404 Ill. App. 3d at 724. During Stallard’s deposition, Smolucha’s attorney asked, “So

PTC first reached out about this [CO] issue on January 3rd, 2018, true?” Stallard answers, “Yes.”

Based on this response, Smolucha claims PSN knew PTC needed emergency services on January

3 but did nothing for three weeks.

¶ 54 But Stallard’s other comments throughout the deposition clarify that this is not what

happened. He first testified he did not know when PTC first contacted PSN about the CO problem.

He explained that PSN labels a call an “emergency” whenever a client asks to move up the date of

a previously scheduled appointment. After viewing a purchase order for the visit, he indicated that,

on January 24, 2018, PTC asked PSN to move up the date of the visit. The record contains two

PTC purchase orders for the January 26 visit. The first, dated January 3, listed a due date of January

29, and it said nothing about any emergency. Instead, the first reference to any “emergency”

appeared on an edited purchase order, which stated a new quote was offered on January 24. The

record also contains a PSN invoice, dated January 30, 2018, which stated, “New quote as of Jan

- 19 - 24, 2018, Emergency Call work verified by B. Roof.” Considering Stallard’s deposition as a whole,

his testimony does not raise a genuine issue of material fact regarding when PSN agreed to come

to PTC’s facility. See 800 South Wells Commercial LLC v. Cadden, 2018 IL App (1st) 162882,

¶¶ 39-41 (reading the defendant’s deposition “as a whole,” and rejecting the plaintiff’s attempt to

create a genuine issue of material fact through “evidentiary cherry-picking”). Instead, the evidence,

even construed in Smolucha’s favor, could show that PSN agreed only on January 24, 2018, to

provide “emergency” services and that it provided such services two days later.

¶ 55 To summarize, we find Smolucha has provided enough evidence to support a

finding that PSN contracted to perform combustion tuning services, provide expedited services as

of January 24, 2018, and, perhaps, inspect the Subject Furnace on January 26, 2018. However, he

has raised no genuine issue of material fact on the standard of care for such professional services.

To the extent that expert testimony is necessary to establish a standard of care, because we have

struck the portions of Green’s affidavit concerning the standard of care as speculative and without

sufficient factual basis, Smolucha has produced no evidence to contest the deposition testimony of

Wyant and Stallard regarding what constitutes reasonable services.

¶ 56 b. Voluntary Undertaking

¶ 57 Second, Smolucha claims PSN voluntarily undertook a duty to him. According to

the Restatement (Second) of Torts § 324A (1965):

“One who undertakes, gratuitously or for consideration, to render services

to another which he should recognize as necessary for the protection of a third

person or his things, is subject to liability to the third person for physical harm

resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

- 20 - (b) he has undertaken to perform a duty owed by the other to the third

person, or

(c) the harm is suffered because of reliance of the other or the third person

upon the undertaking;”

See Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 217-18 (1988); see also Bourgonje v. Machey,

362 Ill. App. 3d 984, 996 (2005). Liability based on a voluntary undertaking can result from

“misfeasance,” meaning, “the negligent performance of the undertaking,” or from “nonfeasance,”

meaning “failure by omission to perform the voluntary undertaking.” Bourgonje, 362 Ill. App. 3d

at 996.

¶ 58 Smolucha contends PSN undertook a relationship with PTC to provide specialized

services and then negligently performed those services. He argues PSN is liable for misfeasance

because it, for example, failed to inform PTC in writing that tuning should occur every six months,

failed to provide CO measurements to PTC unless explicitly asked to do so, required PTC to

purchase a training manual to understand how its Subject Furnace worked, sent a technician who

had only recently completed the “learning phrase” of his employment, failed to notify PTC of

inadequate venting before January 2018, and failed to recommend the Subject Furnace be shut

down until such venting was installed.

¶ 59 Smolucha further claims PSN committed nonfeasance after prompting PTC to rely

on PSN to address its CO problems, resulting in PTC forgoing other potential arrangements or

precautions. He relies on Illustration 4 from the Restatement, which states:

“A Company employs B Company to inspect the elevator in its office building. B

Company sends a workman, who makes a negligent inspection and reports that the

elevator is in good condition. Due to defects in the elevator, which a proper

- 21 - inspection would have disclosed, the elevator falls and injuries [sic] C, a workman

employed by A Company. B Company is subject to liability to C.” Restatement

(Second) Torts § 324A, Illustration 4 (1965).

Smolucha contends that PSN negligently inspected the Subject Furnace by arriving three weeks

after PTC scheduled services and that, after Stallard found problems with the Subject Furnace that

could have contributed to the CO problem in the factory, he did not alleviate the problems or warn

PTC about the dangers to its employees. Smolucha contends PSN acted just like Company B in

the illustration, so it is liable for nonfeasance.

¶ 60 Just as we found regarding PSN’s contractual duties, we find there is enough

evidence, when it is construed in Smolucha’s favor, to permit the conclusion that PSN had certain

limited duties. “The duty of care imposed upon a defendant under a voluntary undertaking theory

of liability is limited to the extent of the undertaking.” Elam v. O’Connor & Nakos, Ltd., 2019 IL

App (1st) 181123, ¶ 41. “This theory is narrowly construed.” Id. Prior to January 26, 2018, PSN

agreed only to perform tuning services. There is no evidence this included all the other obligations

Smolucha seeks to impose. For example, PSN did not undertake to inspect PTC’s vents, at least

not before January 2018. Likewise, PSN did not volunteer to provide CO measurements beyond

what PTC requested. The record simply does not support a finding that PSN undertook a duty to

repair and maintain the Subject Furnace or, prior to January 26, even to inspect it.

¶ 61 Smolucha’s citation to Illustration 4 is misplaced. Unlike in the illustration, before

January 2018, PTC did not hire PSN to inspect the Subject Furnace, but only to perform

combustion tuning. This limited undertaking did not include general safety inspections of the entire

Subject Furnace. Perhaps PSN agreed to conduct a more general inspection in January 2018. If so,

there is no evidence that either PTC or Smolucha relied on any assurance from PSN that the Subject

- 22 - Furnace had no defects or that they rejected other possible remedies. See Bourgonje, 362 Ill. App.

3d at 997 (“Under Illinois law, a plaintiff’s reliance on the defendant’s promise is an independent,

essential element in cases of nonfeasance.”). For example, there is no evidence that Stallard

assured PTC on January 26, 2018, that the Subject Furnace was not contributing CO to the

atmosphere. Instead, Stallard recommended maintenance or repairs that could have helped

ameliorate the CO problems. Nor is there evidence that PTC declined some other inspection that

would have disclosed problems that PSN failed to disclose. Furthermore, in Smolucha’s

deposition, he testified he did not know about PSN at the time of his injuries. See Restatement

(Second) Torts § 324A, Illustration 4 (1965). Indeed, at the time of his injury, he suspected that

PTC had not hired anyone to address the CO problems at the factory. Without any evidence of

reliance, Smolucha cannot show “nonfeasance.”

¶ 62 Ultimately, we find PSN’s duties based on voluntary undertaking were the same as

those based on contract: to perform combustion tuning services, provide expedited services as of

January 24, 2018, perhaps inspect the Furnace on January 26, 2018, and act in a professional

manner in providing these services.

¶ 63 c. Common Law

¶ 64 Finally, Smolucha contends PSN owed him a common law duty of reasonable care.

“It is well settled that every person owes a duty of ordinary care to all others to

guard against injuries which naturally flow as a reasonably probable and

foreseeable consequence of an act, and such a duty does not depend upon contract,

privity of interest or the proximity of relationship, but extends to remote and

unknown persons.” Widlowski v. Durkee Foods, Division of SCM Corp., 138 Ill. 2d

369, 373 (1990).

- 23 - “This does not establish a ‘duty to the world at large.’ ” Simpkins v. CSX Transportation, Inc.,

2012 IL 110662, ¶ 19. Instead, “[a] legal duty refers to a relationship between the defendant and

the plaintiff such that the law imposes on the defendant an obligation of reasonable conduct for

the benefit of the plaintiff.” Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 22. In

determining whether a defendant owed a plaintiff a duty of care, we consider the following four

factors: “(1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the

magnitude of the burden of guarding against the injury, and (4) the consequences of placing that

burden on the defendant.” Quiroz v. Chicago Transit Authority, 2022 IL 127603, ¶ 13.

¶ 65 Smolucha claims the four factors support finding a duty here. He argues that

(1) PSN’s failure to promptly respond to PTC’s CO issues created a foreseeable risk of injury,

(2) an injury was likely after PSN delayed responding, (3) it would not have been burdensome for

PSN to respond more quickly, and (4) the burden of expecting PSN to solve PTC’s CO problems

was low, because they were hired to do just that. Citing Melchers v. Total Electric Construction,

311 Ill. App. 3d 224, 228 (1999), Smolucha contends that contractors have a duty to protect others

from injury and that the same analysis applies here. He argues that PSN owed him a duty “to

protect him from the dangers of [CO] poisoning.”

¶ 66 PSN disagrees. It contends no injury was foreseeable or likely because the

undisputed evidence indicates CO exhaust from the combustion system could not cause any injury

and the combustion system exhausts CO in safe concentrations by design. It further contends that

the costs of placing the burden of guarding against any potential CO poisoning on PSN, rather than

PTC, is high, because PTC owns the facility and the Subject Furnace.

¶ 67 Once again, we agree with PSN. “Generally, individuals (and businesses) do not

owe an affirmative duty to protect or rescue a stranger.” Simpkins, 2012 IL 110662, ¶ 19.

- 24 - Smolucha’s discussion of the four factors does not convince us to find otherwise here. Admittedly,

with the Subject Furnace emitting CO gas by design and possessing some of the problems Stallard

recognized in the service report, it is at least somewhat foreseeable that an employee could suffer

CO poisoning from the insufficient inspection, maintenance, or repair of the Subject Furnace. See

Marshall v. Burger King Corp., 222 Ill. 2d 422, 442 (2006) (“As one court has observed, ‘what is

required to be foreseeable is the general character of the event or harm *** not its precise nature

or manner of occurrence.’ ” (quoting Bigbee v. Pacific Telephone & Telegraph Co., 34 Cal. 3d 49,

57-58 (1983)). We also agree with Smolucha that there was at least a reasonable likelihood of an

injury. Wyant and Stallard both knew that CO could be a dangerous gas. PSN staff had been

informed, at least by the time Stallard arrived at PTC’s factory, that PTC was having CO problems.

PSN staff knew that the Subject Furnace emitted at least low levels of CO, by design. It also knew

about various imperfections in the Subject Furnace, such as the suboptimal vents. Considering all

of this, it was reasonably likely that an employee of PTC could suffer a CO-related injury.

¶ 68 However, we find the last two factors strongly persuade us not to impose an

additional duty on PSN. In claiming that PSN had a duty to “protect him from the dangers of [CO]

poisoning,” Smolucha asks us to find PSN was obligated to correct any possible CO-related defect

in its client’s factory and to respond to any request for services immediately, or at least more

quickly than it did. If we found PSN had such a duty, every contract for combustion tuning would

entail added duties to inspect, maintain, and repair the client’s machinery. Such a burden would

dramatically increase PSN’s responsibilities, not only each time it arrived at a client’s facility, but

each time any client requested services.

¶ 69 Moreover, the consequences of placing that burden on PSN would be extreme. PSN

does not own the factory or the Subject Furnace. PSN sends technicians to PTC’s factory only

- 25 - about twice per year to perform a specific task. For PSN to ensure that PTC’s factory and

equipment were constantly maintained and repaired, PSN would need much greater access to

PTC’s facility, perhaps even to take control of that factory and equipment. Smolucha’s only basis

for imposing such responsibilities on PSN is PSN’s agreements with PTC. But those agreements

are for specific, limited services, and they do not provide a basis for a separate, comprehensive

duty to protect PTC’s employees from harm. To find otherwise would completely eliminate the

well-established principle that businesses do not owe an affirmative duty to protect strangers.

Simpkins, 2012 IL 110662, ¶ 19.

¶ 70 We do not find Smolucha’s citation to Melchers compelling. There, Riverside

Construction Company (Riverside) was hired to excavate at a construction site, and the plaintiff

worked as an electrician for another subcontractor assisting with the construction. Melchers, 311

Ill. App. 3d at 226. Riverside’s employees dug a trench, and they used wood planks and

wheelbarrows to move dirt away from the site. Id. They then left the site and the equipment to

employees of other companies to use. Id. at 230. Another worker at the site was moving a

wheelbarrow when he lost control of it. The wheelbarrow and the clay inside it fell off the plank

and struck the plaintiff. Id. at 227. The plaintiff sued, and the defendant filed a third-party

complaint against Riverside for negligence. Riverside moved for summary judgment, arguing it

had no duty to supervise employees of other subcontractors, and the trial court agreed. Id.

¶ 71 The appellate court agreed that Riverside’s contract did not require it to supervise

the employees of other subcontractors. Id. at 228. However, the court found Riverside had a

common law duty to perform its work with reasonable care. Id. The court found it foreseeable that

employees of other companies would use Riverside’s equipment and the likelihood of an injury to

workers in the trench was great. It also found that the magnitude of the burden and consequences

- 26 - of placing it on Riverside were minimal because Riverside could have required that only skilled

workers use the wheelbarrow or that the wheelbarrow not be used while workers were in the trench.

Id. at 230. The court concluded that Riverside “had a duty to exercise reasonable care to protect

plaintiff from injury caused by its equipment or apparatus.” Id.

¶ 72 Melchers’s reasoning does not apply here. First, Smolucha does not ask us to find

that PSN had a duty to protect him “from injury caused by its equipment or apparatus.” Id. Instead,

he asks us to find that PSN had a duty to protect him from injury caused by PTC’s equipment or

apparatus. We decline to extend Melchers’s holding so dramatically. The burden of Smolucha’s

proposed duty on PSN would be much more than simply waiting to use a wheelbarrow until

another worker moves. Instead, he expects PSN to assume responsibility for the safety of another

company’s factory. Melchers involved no such burden, and we are not persuaded to find that PSN

had such a duty here.

¶ 73 d. Scope of Duty

¶ 74 In response to PSN’s claim that its duties were strictly limited, Smolucha generally

responds that once the existence of a duty is established, whether the defendant’s specific acts or

omissions breached that duty is a question for a jury and summary judgment is inappropriate. He

argues the trial court improperly conflated duty with breach, and he urges us not to repeat the

mistake.

¶ 75 Smolucha primarily relies on Marshall. There, the trial court dismissed the

plaintiff’s negligence claim, finding the defendant fast food restaurant did not have a duty to

protect its customers from a car crashing through the restaurant wall. Marshall, 222 Ill. 2d at 427.

The supreme court reversed. It reasoned that the “the special relationship between a business

invitor and invitee does indeed give rise to a duty of reasonable care,” including a duty to protect

- 27 - the invitee from the negligent acts of a third party. Id. at 437, 441. The four factors typically used

to determine the existence of a common law duty did not create an exception to this rule for the

dangers posed by “out-of-control drivers.” Id. at 441-42. The court distinguished the questions of

whether a duty of care exists and what precautions are necessary to satisfy that duty. It explained:

“It is inadvisable for courts to conflate the concepts of duty and breach in this

manner. Courts could, after all, ‘state an infinite number of duties if they spoke in

highly particular terms,’ and while particularized statements of duty may be

comprehensible, ‘they use the term duty to state conclusions about the facts of

particular cases, not as a general standard.’ 1 D. Dobbs, Torts § 226, at 577 (2001);

see also [J. Goldberg, Introduction to the Restatement (Third) of Torts: General

Principles and the John W. Wade Conference, 54 Vand. L. Rev. 639, 712-17

(2001)] (discussing problems associated with using the duty element of negligence

to render decisions that no breach occurred as a matter of law). Thus, the issue in

this case is not whether defendants had a duty to install protective poles, or a duty

to prevent a car from entering the restaurant, or some such other fact-specific

formulation. Because of the special relationship between defendants and the

decedent, they owed the decedent a duty of reasonable care. The issue is whether,

in light of the particular circumstances of this case, defendants breached that duty.”

Id. at 443-44.

See also Stearns v. Ridge Ambulance Services, Inc., 2015 IL App (2d) 140908, ¶ 13 (“[I]n

Marshall, our supreme court recognized that purely ad hoc determinations that a defendant has a

duty to perform or refrain from performing particular acts improperly conflate the concepts of duty

and breach.”). Based on Marshall, Smolucha argues that, once we determine PSN had any duty of

- 28 - care, the proper standard to satisfy that duty is a disputed question of fact and summary judgment

is not proper.

¶ 76 Smolucha overlooks that neither Marshall nor Stearns concerned duties based on a

contract or voluntary undertaking. Instead, both cases depended on common law duties of

reasonable care. In such cases, the court first considers, as a question of law, whether the defendant

owed the plaintiff a duty of care. See Marshall, 222 Ill. 2d at 430 (“Whether a duty exists in a

particular case is a question of law for the court to decide.”). If so, what specifically constitutes a

breach of that duty is a question of fact. See Stearns, 2015 IL App (2d) 140908, ¶ 19 (Because the

defendant owed the deceased a duty of care, “[w]hat [the defendant] should or could have done to

protect [the deceased] bears on the question of whether [the defendant] breached its duty. And on

the record here, that is a question of fact.” (Emphasis in original)).

¶ 77 But when the defendant’s duty is based on a contract or voluntary undertaking, the

duty is limited to the extent of the agreement or undertaking. See Eichengreen, 325 Ill. App. 3d at

525 (“A defendant’s duties will not be expanded beyond the scope of duties required by the

contract.”); see also Elam, 2019 IL App (1st) 181123, ¶ 41. Evidence of industry standards is also

relevant. See Murphy, 41 Ill. App. 3d at 661. Of course, the terms of the contract, extent of the

undertaking, and professional standards are also questions of fact. See Mulliken, 245 Ill. App. 3d

at 516; see also Elam, 2019 IL App (1st) 181123, ¶¶ 48-52 (surveying the record for evidence that

the defendant voluntarily undertook the specific duties alleged and finding no such evidence); Bell

v. Hutsell, 2011 IL 110724, ¶ 25 (“[W]e first look to the factual allegations of plaintiff’s complaint

to ascertain the scope of the duty plaintiff may reasonably claim defendants intended to undertake,

and to determine whether performance was commenced.”); Advincula, 176 Ill. 2d at 24 (“[W]e

note that in professional negligence cases, unlike negligence actions in general, the plaintiff bears

- 29 - a burden to establish the standard of care through expert witness testimony.”). These specific

factual inquiries determine the scope of the contractual or undertaken duty.

¶ 78 Here, Smolucha has provided enough evidence, when it is construed in his favor,

to show that PSN agreed and contracted only to provide combustion tuning services, to provide

expedited services as of January 24, 2018, perhaps to inspect the furnace on January 26, 2018, and

to act in a professional manner in so doing. We see no evidence in the record that PSN agreed to

accept duties beyond these or to refute Wyant and Stallard’s account of the applicable standards

for such services.

¶ 79 2. Causation

¶ 80 Having established PSN’s duties, we now consider whether Smolucha can prove

PSN’s breach of those duties caused or contributed to his injuries. “Generally, proximate cause is

a question of fact; however, it becomes a question of law when the facts alleged indicate that a

party would never be entitled to recover.” Keating v. 68th & Paxton, L.L.C., 401 Ill. App. 3d 456,

472 (2010).

¶ 81 According to PSN, no evidence shows it caused Smolucha’s injuries. It argues the

combustion system was never exhausting unsafe levels of CO. Wyant testified that the combustion

system emits some amount of CO by design and that the concentration of CO changes over time.

But, he explained, tuning addresses this problem, and monitoring the concentration of CO is solely

a matter of efficiency, not safety. Wyant testified that inadequate tuning can never result in unsafe

levels of CO. PSN claims that this testimony is undisputed and that no evidence indicates the

combustion systems ever emitted unsafe levels of CO, so its servicing of the combustion system

cannot have resulted in Smolucha’s injuries.

- 30 - ¶ 82 Smolucha relies on the abundant evidence that the combustion system was

exhausting CO prior to PSN’s tuning on January 26, 2018. When PSN’s technicians arrived that

day and took initial CO readings, they found CO levels of 1500ppm, 2000ppm, 3000ppm, and

“MAXppm,” indicating CO in excess of 9000ppm. Wyant acknowledged that the industry standard

allowed 500ppm and the Subject Furnace was producing “excess” CO. Smolucha further

references NFPA’s exposure standards, which indicate the increasing dangers of CO exposure as

concentrations increase.

¶ 83 We find Smolucha cannot demonstrate PSN caused his injuries. First, he misstates

the evidence. Wyant’s use of 500ppm and the word “excess” clearly pertained only to efficiency,

not safety. Furthermore, PSN’s CO readings measured the concentration of CO in the “stacks” of

the Subject Furnace, before the gas was diluted with air from the general atmosphere. The CO

concentrations in PSN’s measurements must be higher than the concentration of CO actually

emitted into the atmosphere after dilution. Smolucha’s attempt to juxtapose the NFPA standards

against PSN’s readings is misleading.

¶ 84 More importantly, as discussed above, whatever duty PSN might have had on

January 26, PSN had no duties to inspect the Subject Furnace for contributions to CO in the

atmosphere or to repair the Subject Furnace before that date. There is no evidence that PSN’s

combustion tuning services before January 2018 damaged the Subject Furnace or otherwise

contributed to unsafe levels of CO in the factory. Instead, all the evidence indicates that PSN

appropriately tuned the Subject Furnace to achieve the preferred air-to-fuel ratio necessary for

efficient combustion. Therefore, PSN’s conduct before January 2018 cannot be a cause of

Smolucha’s injury.

- 31 - ¶ 85 Of course, Smolucha experienced CO poisoning on January 27, January 29, and

February 16, 2018. Nevertheless, he cannot show that PSN’s negligence in any inspection on

January 26 caused these injuries, either. The only alleged defects in the Subject Furnace—such as

inadequate venting or suboptimal tubing—are those PSN’s technician identified. There is no

evidence of some other defect that PSN should have identified but did not. Smolucha claims PSN’s

failure to recommend that PTC immediately shut down the Subject Furnace after Stallard identified

these defects contributed to his injury, but he did not provide any evidence that PSN accepted such

a responsibility, that it was part of the professional standard of care, or that PTC would have

followed such a recommendation. Moreover, the only evidence in the record indicates that during

its January 26 service call, PSN reduced the CO emissions from the combustion system to 0ppm.

Smolucha’s only argument that PSN is responsible for CO in the atmosphere is that he suffered

injuries after PSN’s January 26 visit. But this does not prove the CO in the atmosphere came from

the combustion system, or even from the Subject Furnace, when other machinery in the factory

also used or produced CO. Nor does it prove that PSN negligently failed to identify some unknown

defect in the Subject Furnace. Indeed, Smolucha identifies no such defect.

¶ 86 Smolucha relies on Ferrell v. Esparza, 332 Ill App. 3d 518 (2001). There, a

warehouse employee suffered CO poisoning while two different companies were using

steam-cleaning machines to clean the warehouse. Id.at 519-21. He sued one of the companies,

alleging that the company’s employees negligently operated the steam-cleaning machine inside

the warehouse, despite clear instructions that the machine should be operated out of doors. Id. at

519-20. The trial court granted summary judgment for the plaintiff, and the appellate court

affirmed. Id. at 519, 527. The defendant’s own expert acknowledged that CO from the

steam-cleaning machine spread through the warehouse. Id. at 522. The defendant was “liable

- 32 - because its tortious conduct was an actual and proximate cause of the plaintiff’s injury, and the

fact that another individual or entity also contributed to the plaintiff’s injury does not alter the

concurring tortfeasor’s responsibility for the entire indivisible injury.” Id. at 526. Based on Ferrell,

Smolucha claims that if least some amount of CO in the factory atmosphere can be attributed to

PSN, a question of material fact on the extent of PSN’s liability remains.

¶ 87 This case is not like Ferrell. In Ferrell, the undisputed evidence indicated that the

defendant’s negligence contributed to CO in the warehouse. Here, no evidence indicates that

PSN’s negligence contributed to CO in the factory. Although there is evidence that the combustion

system emitted at least some CO, PSN’s negligence did not cause these emissions. Instead, some

CO emissions were simply a feature of the combustion system, even when it functioned properly.

Nor did PSN cause the combustion system to become untuned. This was inevitable in between

tunings. The evidence also does not show that PSN’s inspection on January 26 caused CO

accumulation. Therefore, Ferrell is inapplicable.

¶ 88 Smolucha has failed to raise a genuine issue of material fact showing that PSN’s

breach of any of its duties caused his injury. Therefore, the trial court properly granted summary

judgment for PSN.

¶ 89 III. CONCLUSION

¶ 90 For the reasons stated, we affirm the trial court’s judgment.

¶ 91 Affirmed.

- 33 -