DEBORAH K. WINTERS, Adm‘x of the Estate of Kenneth L. Keller v. ROGER WANGLER (Roger D. Snider et al., Defendants)
No. 4-07-1044
Fourth District
November 26, 2008
386 Ill. App. 3d 788
Barbara A. Fritsche and Ryan D. Byers, both of Rammelkamp Bradney, P.C., of Jacksonville, for appellee.
JUSTICE STEIGMANN delivered the opinion of the court:
In July 2006, plaintiff, Deborah K. Winters, administratrix of the estate of Kenneth L. Keller, filed a complaint alleging that defendants Roger D. Snider, Roger Wangler, and Jeane Wangler negligently caused an accident that resulted in Keller‘s death. In August 2006, Roger Wangler (hereinafter Wangler) filed a motion to dismiss under
Winters appeals, arguing that the trial court erred by (1) granting Wangler‘s motion to dismiss and (2) ruling that
I. BACKGROUND
In April 2005, Winters filed a complaint, alleging, in part, that in May 2004, Snider (1) negligently caused an accident that resulted in Keller‘s death and (2) operated a tractor and рlanter on a highway after sunset in violation of
In July 2006, Winters filed a second amended complaint, alleging that in May 2004 (1) Snider negligently caused an accident that resulted in Keller‘s death (count I) and (2) Roger and Jeane Wangler, while engaged in a “joint enterprise” with Snider, negligently drove escort vehicles that contributed to Keller‘s death (counts II and III, respectively).
Winters included the following factual allegations in her second amended complaint: (1) Keller died as a result of an automobile accident involving all three defendants, who were transporting farm equipment from one farm to another; (2) Snider employed Wangler; (3) on May 9, 2004, at 9:05 p.m., Snider drove his farm tractor while pulling an approximately 22-foot-wide planter across a 24-foot-wide bridge; (4) at Snider‘s request, Wangler drove Snider‘s truck as a “[l]ead [e]scort“; (5) Keller‘s vehicle collided with the planter and farm tractor; and (6) Wanglеr did not (a) have the proper signage required for a lead vehicle, which negated his ability to warn oncoming traffic that a wide load or oversized transport followed, (b) have adequate lighting on his vehicle, (c) prevent the fatal collision, (d) communicate “accurately” with Snider or the rear escort vehicle, (e) advise Snider to cross the bridge only after the stoplight on the bridge had stopped all oncоming traffic, and (f) maintain the proper distance between his vehicle and the tractor.
In August 2006, Wangler filed a motion to dismiss under
In September 2007, Winters filed a motion to reconsider. In October 2007, Wangler filed a memorandum of law in response to Winters’ motion to reconsider, in which he stated the following:
“During the *** argument on the [m]otion for [r]econsideration, [Winters] argued the facts and read from portions of the deposition of *** Wangler taken in this case. By doing so, apparently [Winters] sought to prove to the [c]ourt that *** Wangler provided ‘substantial assistance’ to *** Snider and therefore was liable to [Winters] based on ‘in-concert liability.’ However, this [m]otion to [d]ismiss is based on the [c]omplaint on file, not on depositions. For that reason, [Wangler] objected to this argument.
***
For purposes of the pending motion, the facts before thе [c]ourt are found in the pleadings. It is inappropriate to argue facts outside the pleadings. As argued by [Wangler], the [c]omplaint against [him] does not state a cause of action.”
However, in the same memorandum, Wangler argued the following facts—not included in the pleadings—to demonstrate that the circumstances of this case did not support Winters’ in-concert liability theory:
“The proximate cause of *** Kellеr‘s death is *** Keller‘s *** failure to observe the oncoming traffic, *** fail[ure] to take precautions for his own safety, *** failure to keep his own vehicle under control, and *** failure to observe any of the warning signs that a reasonably careful person would observe.”
In November 2007, the trial court denied Winters’ motion to reconsider. (Snider and Jeane Wangler are not parties to this appeal.) This appeal followеd.
II. WINTERS’ CLAIM THAT THE TRIAL COURT ERRED BY GRANTING WANGLER‘S MOTION TO DISMISS
Winters argues that the trial court erred by granting Wangler‘s motion to dismiss. Specifically, Winters contends that the court erred by determining that her second amended complaint was legally insufficient because (1) she failed to allege that Wangler owed Keller a duty and (2)
A. The Nature of Wangler‘s Motion
Initially, we must decide the nature of the motion that gave rise to the order we are reviewing. When making a
Conversely, in a
Here, despite Wangler‘s designation that his motion to dismiss was brought under
Although Wangler improperly labeled his motion to dismiss as a
B. Standard of Review
A
When ruling on a
C. Winters’ Claim That the Trial Court Erred by Finding That She Failed To Allege That Wangler Owed Keller a Duty
Winters first contends that the trial court erred by finding that she failed to allege that Wangler owed Keller a duty. Specifically, Winters claims that she included sufficient facts to show that Wangler owed Keller a duty under an in-concert liability theory. We agree.
“In-concert liability” is defined as follows:
“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he[:]
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other‘s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.” (Emphasis added.) Restatеment (Second) of Torts §876, at 315 (1977).
Thus, pursuant to the Restatement, Winters first had to plead facts sufficient to show that a jury could find Snider negligent—that is, Winters had to show that (1) Wangler provided substantial assistance to Snider and (2) Wangler‘s individual conduct, separately considered, constituted a breach of duty as to Keller. The elements of common-law negligence are duty, breach, and injury caused by that breach. Price v. Hickory Point Bank & Trust, 362 Ill. App. 3d 1211, 1216, 841 N.E.2d 1084, 1088-89 (2006).
In her second amended complaint, Winters alleged, in part, that Wangler, as Snider‘s employee, agreed to act as a lead escort and was negligent for failing to “accurately” communicate certain information to Snider, causing a “miscalculation.” Based on this allegation, we conclude Winters pleaded sufficient facts to show that a jury could find that Wangler (1) substantially assisted Snider in committing a tortious act and (2) individually breachеd a duty to Keller.
We emphasize that our holding in this case should in no way be construed to suggest drivers of escort vehicles may be liable merely because they escorted a negligent driver of a farm implement. Instead, we merely conclude that Winter‘s allegation that Wangler provided (1) inaccurate information and (2) substantial assistance, if proved, could be construed by a jury sufficient to find that Wangler acted “in conсert” with Snider. Thus, Winters could arguably demonstrate duty, breach, and legal causation as to Wangler under an “in-concert” liability theory. Accordingly, Winters’ allegation is sufficient to establish that liability may attach and, therefore, survives a
D. Winters’ Claim That the Trial Court Erred by Finding That Section 15-102 of the Vehicle Code Did Not Apply
Winters next contends that the trial court erred by determining that
In her initial complaint, Winters alleged that Snider was negligent in that he operated a tractor and planter more than one-half hour after sunset in violation of
“(1) Loads of hay, straw[,] or other similar farm products provided that the load is not more than 12 feet wide.
(2) Implemеnts of husbandry being transported on another vehicle and the transporting vehicle while loaded.”
625 ILCS 5/15-102(b)(1) ,(b)(2) (West 2004) .
However,
Here, Snider was temporarily towing the planter with his tractor—as opposed to transporting it on his tractor—from one farm to another. Thus, we conclude that the tractor and planter are implements of husbandry, which, under the circumstances, are not subject to the specific provisions of
III. EPILOGUE
We note that despite previously arguing in his memorandum of law to the trial court that Winters’ attempt to argue facts outside the рleadings was inappropriate, Wangler did just that in that same memorandum and again in his brief to this court.
The following is a list of facts not included in the pleadings but included in Wangler‘s brief to this court: (1) Wangler first saw Keller‘s vehicle when it was between 1 and 1 1/2 and 2 miles away; (2) Wangler immediately used the radio in his truck to inform Snider of the oncoming vehicle; (3) Wangler pulled his truck halfway into Keller‘s lane to warn him of the presence of the tractor and planter; (4) Wangler alternated his headlights as he was in Keller‘s lane in an effort to warn Keller of the presence of the tractor and planter; (5) Wangler ran his hazard lights; (6) Wangler checked all the lights on his vehicle to insure that they were working before beginning the trip with Snider; (7) Wangler‘s experience had been that the combination of flashing his lights and pulling into the other lane had always worked to warn oncoming traffic of the danger; (8) Wаngler saw that Keller‘s vehicle was not going to stop unless it collided with his truck; (9) Wangler observed that Keller‘s vehicle did not slow down; (10) Wangler moved out of Keller‘s lane; and (11) Keller‘s vehicle did not stop until it collided with the tractor and planter.
All of the above-listed facts are contained in various other documents, like depositions, none of which was properly before (1) the trial
IV. CONCLUSION
For the reasons stated, we reverse the trial court‘s dismissal under
Reversed and remanded for further proceedings.
TURNER, J., concurs.
JUSTICE COOK, specially concurring:
Section 876 of the Restatement (Second) of Torts discusses when one person can be liable for the tortious conduct of another when that conduct harms a third person. Section 876 does not expand negligence liability or create a new form of liability but rather sets forth three instances where more than one person can be a contributing tortfeasor for one negligent act.
To paraphrase section 876, a person is liable for harm resulting to a third from the tortious conduct of another when
- the parties acted together to commit the tort;
- one party
- knows another party‘s conduct is tortious; and
- gives that party substantial assistance or encouragement;
- one party‘s act substantially assisted another to commit a tort and that party‘s action by itself could have constituted a tort.
The first and third examples involve instancеs where the party‘s own actions constituted a tort. The second example involves a case where the person did not commit an act that would be a tort, but that person gave substantial assistance or encouragement to another party whose actions constituted a tort and that person knew that the other person‘s conduct constituted a tort.
Substantial assistance alone is never enough to open a person to liability. If substantial assistance alone were еnough, the result would be “but for” liability; had it not been for the person‘s substantial assistance, the injury would not have occurred. This would expand negligence liability well beyond what section 876 of the Restatement
The Fortae court first approved of “in-concert liability” jury instructions submitted to the jury noting that “Illinois courts have not fully colored in the law regarding in-concert liability ***. There was no requirement that plaintiff prove that [defendant‘s] actions fit under the standard definition of negligence, in addition to proving that [defendant] violated a duty to not act in concert with a tortfeasor who caused harm to plaintiff.” Fortae, 334 Ill. App. 3d at 716, 778 N.E.2d at 168-69. While the jury instructions accurately summarized subsections (b) and (c) of section 876, the instructions were unnecessary as “in-concert” liability does not create a new form of liability. The court could have simply instructed the jury based on the Illinois Pattern Jury Instructions, Civil, No. 10.01 (2006), defining negligence:
“When I use the word ‘negligence’ in these instructions, I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.”
After approving the jury instructions, the Fortae court went on to desсribe how defendant was liable under subsection (b) of section 876. The court concluded that a driver escorting a semi truck carrying a mobile home was liable under “in concert” liability because the escort driver “(b) [knew] that [the semi truck driver‘s] conduct constitute[d] a breach of duty and [gave] substantial assistance or encouragement to the [semi truck driver].” Restatement (Second) of Torts §876(b), at 315 (1977). While the Fortae court claimed to support the idea that “in-concert liability is not a panoply for liability whenever one party‘s actions would not have occurred but for the actions of another,” the court went on to find the escort driver liable merely for giving the semi truck driver “substantial assistance.”
The first problem with Fortae‘s reasoning is that the court essentially determined that it was the escort driver‘s role that gave rise to “substantial assistance.” The court stated:
“[P]laintiff presented evidence that Holland [(the escort driver)] gave substantial assistance to Akers [(the semi truck driver)]. The nature of the act of negligently driving is directly connected to the relationship between Holland and Akers. Holland‘s relation to the other (Akers) as an escort vehicle weighs in favor of the assistance being substantial. Akers’ testimony that he had previously warned Holland on the radio that he could not make abrupt stops also
indicates a state of mind on the part of Holland which supports a finding of substantial assistance. In addition, Holland‘s presence was necessary for the commission of the tort, and indeed, he was physically involved in the traffic accident. Therefore, the jury had sufficient evidence to conclude that Holland substantially assisted Akers in acting negligently.” (Emphasis added.) Fortae, 334 Ill. App. 3d at 720, 778 N.E.2d at 171-72.
The court found substantial assistance not because the escort driver did something beyond escorting the semi truck driver. The court found substantial assistance because he was the escort driver and part of the accident.
The bigger issue is that the Fortae court failed to address whether the escort driver knew that the semi truck driver‘s conduct constituted a breach of duty. The court concluded the jury had “sufficient evidence to conclude that Holland substantially assisted Akers in acting negligently.” Fortae, 334 Ill. App. 3d at 720, 778 N.E.2d at 172. Substantial assistance by itself is not enough. Under subsection (b) of section 876, the court must also show that when the escort driver was substantially assisting the semi truck drivеr, the escort driver knew that the semi truck driver‘s conduct constituted a breach of duty. Ultimately, the court found that “but for” the escort driver‘s “act” of failing to prevent the semi truck driver from driving too closely, the harm would not have resulted. This expansion of vicarious liability was never intended under section 876.
In the two Illinois cases cited in Fortae, Wolf v. Liberis, 153 Ill. App. 3d 488, 505 N.E.2d 1202 (1987), and Umble v. Sandy McKie & Sons, Inc., 294 Ill. App. 3d 449, 690 N.E.2d 157 (1998), the courts recognized that “in-concert” liability did not expand liability to include “but for” liability. The Fortae court, while acknowledging Wolf and Umble, failed to follow their reasonings.
In Umble, the court noted that the defendant‘s acts of repairing a tire for an obviously intoxicated person who injured another did not qualify for in-concert liability. The court noted that the act of repairing the tire was not “inherently wrongful” and the repair man “did not actively encourage” the intoxicated person to engage in wrongful activity. Umble, 294 Ill. App. 3d at 452, 690 N.E.2d at 159. In Wolf, the court recognized that the defendant‘s act of getting intoxicated and causing her fiancé to follow her as she drove home did not make her liable when, after she was no longer with her fiancé, he was involved in a car accident in his own vehicle that killed a third person. While the injuries to the third persons in both of these cases would not have happened “but for” the acts of the defendants, that alone should not open the defendants to liability.
Plaintiff may state a cause of action in this case if plaintiff alleges facts indicating the escort driver did something that a reasonable escort driver would not have done. Plaintiff does not state a cause of action, however, if plaintiff simply alleges that the escort driver provided substantial assistance.