Vosbein v. E.T. Simonds Construction Co.

                               NO. 5-97-0220

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

PATRICIA A. VOSBEIN, As Administrator   )  Appeal from the 
of the Estate of SHAUN T. PARROTT,      )  Circuit Court of 
                                        )  Franklin County.
     Plaintiff-Appellant,               )  
                                        )   
v.                                      )  No. 94-L-36
                                        )
E.T. SIMONDS CONSTRUCTION COMPANY, INC.,)
                                        )
     Defendant-Appellee.                )
----------------------------------------)
STEPHEN WILLIS,                         )
                                        )
     Plaintiff-Appellant,               )
                                        )
v.                                      )  No. 95-L-21
                                        )
E.T. SIMONDS CONSTRUCTION COMPANY, INC.,)  Honorable
                                        )  Loren P. Lewis, 
     Defendant-Appellee.                )  Judge, presiding.  
_________________________________________________________________

     JUSTICE CHAPMAN delivered the opinion of the court:  
     Shaun T. Parrott was killed and Stephen Willis was severely
injured when the light pickup truck that Willis was driving and in
which Parrott was a passenger left the roadway of Interstate 57,
entered the grassy median between the southbound and northbound
lanes of the interstate, and struck cement barrier segments being
stored there by defendant, E.T. Simonds Construction Co., Inc.
(Simonds).  Simonds had been engaged in rebuilding a bridge near
the accident site.  Plaintiff argues that the cement barrier
segments were no longer being used at the construction site but had
been placed in the median of the interstate for storage.  The
barrier segments were not parallel with the interstate but were at
an angle almost perpendicular to the interstate.  As Willis was
driving southbound on interstate 57, he lost control of his vehicle
for reasons unknown, drove into the grassy median between the
interstate lanes, and struck the barrier segments, which were
approximately 27 feet from the lane of traffic that Willis had
left.
     In separate complaints filed in the circuit court of Franklin
County, Patricia A. Vosbein, as administrator of the estate of
Shaun T. Parrott, brought suit against Simonds for the death of her
decedent, and Stephen Willis brought suit against Simonds for his
injuries.  The cases were consolidated by the circuit court.  Both
complaints alleged negligence by Simonds and claimed that Simonds
had breached its duty to exercise reasonable care toward the
plaintiffs.  
     Simonds filed a motion, pursuant to section 2-619 of the Code
of Civil Procedure (735 ILCS 5/2-619 (West 1996)), to dismiss the
complaints for failure to state a cause of action.  Simonds argued
that the complaints failed to allege sufficient facts to establish
a legal duty owed by Simonds to the plaintiffs.  The trial court
agreed and, on April 4, 1997, dismissed plaintiffs' complaints with
prejudice.  Plaintiffs appeal.  We reverse and remand.
     When ruling on a motion to dismiss under section 2-619 of the
Code of Civil Procedure, the trial court must interpret all
pleadings and supporting documents in the light most favorable to
the nonmoving party.  Toombs v. City of Champaign, 245 Ill. App. 3d
580, 583, 615 N.E.2d 50, 51 (1993).  The court should grant the
motion only if plaintiff can prove no set of facts that would
support a cause of action.  Toombs, 245 Ill. App. 3d at 583, 615 N.E.2d  at 51.  Because this process does not require the court to
weigh facts or determine credibility, appellate courts do not give
a trial court's judgment deference but instead review the matter de
novo.  Toombs, 245 Ill. App. 3d at 583, 615 N.E.2d  at 51.
     The single question presented for our review is whether
Simonds owed a legal duty of care to plaintiffs under the
circumstances of this case.  The answer is yes.  
     Necessary to any recovery based on negligence is the existence
of a duty to conform to a certain standard of conduct for the
protection of the plaintiff.  Battisfore v. Moraites, 186 Ill. App.
3d 180, 187-88, 541 N.E.2d 1376, 1381 (1989).  Whether a duty
exists is a question of law to be determined by the court, and the
answer depends on whether the parties stood in such a relationship
to one another that the law imposes an obligation on the defendant
to act reasonably for the protection of the plaintiff.  Gouge v.
Central Illinois Public Service Co., 144 Ill. 2d 535, 542, 582 N.E.2d 108, 112 (1991).
     In Gouge, our supreme court held that the electric utility
owed no common law duty of reasonable care to ensure that if an
automobile leaves the traveled portion of a roadway and strikes a
utility pole, the pole will fall away from the roadway.  Our
supreme court pointed out that generally the liability of a utility
company for injuries to a motorist resulting from a collision with
a utility pole depends on whether the pole is located in or so
close to the traveled portion of the highway as to constitute an
obstruction dangerous to anyone properly using the highway.  Gouge,
144 Ill. 2d  at 544, 582 N.E.2d  at 112-13.  Our supreme court held: 
     "Because plaintiffs cannot show the cited [Illinois Commerce
     Commission] rules were intended to protect against this type
     of injury, we disagree with plaintiffs' contention that CIPS
     owed them a duty to properly install the utility pole pursuant
     to Rules 261C and 282A of the National Electric Safety Code." 
     (Emphasis added.)  Gouge, 144 Ill. 2d  at 544, 582 N.E.2d  at
     112.  
     In Hoffman v. Vernon Township, 97 Ill. App. 3d 721, 423 N.E.2d 519 (1981), plaintiff's automobile went out of control, left the
roadway, and struck a utility pole that was located 27 feet from
the centerline of the roadway and 12 to 16 feet from the easterly
boundary line of the roadway.  The court affirmed the grant of
summary judgment in defendant's favor, noting the particular
circumstances of this case:
     "There was a protective barrier, a curb, between the highway
     and the pole; the pole was located not immediately adjacent to
     the road, but some 12 to 16 feet away; there was a cautionary
     sign giving advance warning of a curve in the road; there was
     a `STOP AHEAD' sign near the curve; there were double yellow
     lines dividing the two lanes going into and at the curve;
     there is no pleading or evidence of any prior accidents at the
     curve giving notice of a dangerous condition to Edison; the
     pole was installed at that location with the approval of the
     State Department of Transportation; and there is no evidence
     that the pole itself created an illusory effect."  (Emphasis
     added.)  Hoffman, 97 Ill. App. 3d at 726, 423 N.E.2d  at 523. 
     We believe that given the facts of this case, it was
reasonably foreseeable that a vehicle would leave the interstate
highway and strike the concrete barrier.  Our decision is not
inconsistent with Gouge or Hoffman, given the circumstances alleged
by the plaintiffs.  Consider the following.
     Why are interstate highways divided?  Why are they separated
by grassy medians?  Why do they have paved shoulders?  Because, not
only is it possible, it is reasonably foreseeable that a vehicle
might leave the traveled portion of the interstate and travel some
distance into the grassy median.  
     At 65 miles per hour, a vehicle is traveling at approximately
95 feet per second at a 30-degree angle.  At that speed, a vehicle
could leave the highway, cross the inner shoulder, and drive 27
feet into the median in less than one second, less than the time it
takes to look down to change a radio station.  The speed of modern
cars, coupled with the volume of traffic on the interstate highway
system, furnishes the reason for the division of the highways and
the grassy median between the lanes.  The designers of the system
foresaw the likelihood of cars occasionally leaving the travelled
lanes, and they built into the system a margin of safety for driver
error.  
     That margin of safety is sometimes reduced and occasionally
eliminated.  We are all familiar with portions of the interstate
system that are not separated by grassy medians.  Some lose the
safety factor of separations because of topographic considerations;
mountain passes may not allow the lanes to be separated.  Some lose
the separation because of economic considerations; urban real
estate may be too expensive to allow for it.  But in each of these
examples there was either a necessity to eliminate the safety
factor, as in the case of the mountain pass, or a balanced
consideration of alternatives, as in the case of exorbitant costs
for urban real estate as compared to a reduction of a known hazard,
that led to the decision to reduce the level of safety afforded the
men, the women, and their families who travel the interstate
system.
     The balancing of considerations is, at least as of this time,
almost completely lacking in this case, and it is the balancing
process that allows the imposition of a duty under these facts as
alleged in the complaint.  Obviously, the alleged facts must be
taken as true for purposes of a section 2-619 motion (735 ILCS 5/2-
619 (West 1996)).  What are those facts?  Plaintiffs allege:
          "7. *** Such placement of barrier materials within the
     median strip of an Interstate Highway is contrary to good,
     reasonable and prudent engineering practices as are outlined
     in "A Policy on Design Standards, Interstate System" as
     prepared by the American Association of State Highway
     Officials.  This policy calls for an unobstructed median, in
     rural areas with flat and rolling terrain, with a width of at
     least thirty-six feet (36'), and that if obstructions within
     that width are necessary, then the obstruction shall be
     protected by guardrails or other energy absorbing devices." 
     (Emphasis added.)
     Defendant's section 2-619 motion admits that paragraph 7's
statement of the American Association of State Highway Officials
policy is true for purposes of this appeal.  The statement of the
policy certainly appears to be a recognition of responsibility by
some of those involved most intimately with highways.  The policy's
call for "unobstructed medians" is reinforced by its exception that
allows protections by guardrails for obstructions within the median
but only if those obstructions are "necessary."  
     Thus, unlike Gouge, in which plaintiffs were unable to show
that the Illinois Commerce Commission's rules were intended to
protect against the type of injury alleged, and also unlike
Hoffman, in which the pole involved was installed with the approval
of the State Department of Transportation, in this case, the
plaintiff has pled that the barriers were placed in violation of
similar regulations. 
     There is no indication that it was necessary to store these
barriers in the median.  Plaintiff has argued that construction was
complete at the time of the accident.  If this is so, the concrete
barriers were simply being stored in the median and served no
public benefit.  A crane is needed to move the concrete barriers. 
Instead of placing the barriers on a flatbed trailer and moving
them to an off-road storage site, where the foreseeability of
injury from interstate vehicular traffic was nonexistent, the
defendant is charged with placing the barriers in the median for
storage purposes.
     If we assume that construction was not complete, we then
examine paragraph 8 of the complaint.
          "8. At that time, the Illinois Department of
     Transportation had in force policies and guidelines relative
     to placement of maintenance and construction equipment and
     materials within the median areas on interstate highways for
     the purpose of protecting the traveling public of which the
     decedent was a member.  These requirements were included in
     construction contracts to all contractors performing
     construction upon interstate highways of the State of
     Illinois, including Defendant, E.T. Simonds Construction Co.,
     Inc.[,] [t]hereby making it the duty of the Defendant to
     comply with the requirements in order to prevent accidents
     such as the one complained of."  (Plaintiff Vosbein's third
     amended complaint.)
     The Illinois Department of Transportation guidelines provide,
"The barrier shall be removed by the Contractor and transported to
an area behind [sic] guardrail in the median to be stored for use
on a future contract."  FAI Route 57, Section 28(5B-
1,5B,2B,1B)D;28(5VB,3VB-1)I, Franklin County, 9-616D4-88.  
     Therefore, as noted in paragraph 7, the American Association
of State Highway Officials prohibits obstructing the median in
general and requires guardrails if there is a necessary
obstruction.  The Illinois Department of Transportation provides
that barriers in the median shall be protected by guardrails. 
Thus, both national and state authorities prohibit the conduct
engaged in by defendants.  And the conduct is prohibited presumably
because it is foreseeable that drivers will enter the medians.  
     Foreseeability, of course, is not the only consideration in a
judge's decision to impose a duty in a particular case.  Kirk v.
Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 526, 513 N.E.2d 387, 396 (1987).  Other considerations that are relevant to
the existence of a duty include the likelihood of injury, the
magnitude of the burden of guarding against it, and the
consequences of placing that burden upon the defendant.  Ward v. K
Mart Corp., 136 Ill. 2d 132, 151, 554 N.E.2d 223, 226-27 (1990);
Harnischfeger Corp. v. Gleason Crane Rentals, Inc., 223 Ill. App.
3d 444, 585 N.E.2d 166 (1991).    
     Under the facts of this case, the likelihood of injury is
apparent.  Shaun Parrott was killed and Stephen Willis was severely
injured.  But even before this accident there would be little room
for argument that great injury is likely if one drives a vehicle at
any speed near the speed limit of 65 miles per hour into concrete
barrier segments.  Further, under the circumstances of this case,
both the magnitude of the burden of guarding against injury and the
consequences of placing that burden upon the defendant are slight. 
This hazard could have been eliminated completely by moving the
barriers from the median, a move that obviously had to be done
anyway if the construction project was complete.  If the
construction was complete, the burden on the defendant would have
been minimal.  If the construction had not been completed, the
burden on the defendant to store the barriers at a spot less
exposed to a heavily traveled, high-speed highway would have been
greater, but when it is balanced against the likelihood of injury
and the foreseeable, serious nature of the injury, it is
appropriate to impose a duty of reasonable care upon the defendant
to either eliminate the hazard or appropriately guard against it. 
     Although areas off the highway are not ordinarily traveled,
there may be certain circumstances, like those at bar, where the
defendant may reasonably be expected to anticipate the danger of
storing construction materials in the median of an interstate
highway.  The defendant's duty of reasonable care extends to a risk
that a traveler would collide with the concrete barriers left in
the median.  The trier of fact may consider whether the plaintiffs
were guilty of negligence contributing in whole or in part to their
injury, and it may adjust the verdict accordingly.   

     Reversed and remanded.

     MAAG, J., concurs.

     PRESIDING JUSTICE WELCH, dissents:
     The majority characterizes the single question presented for
our review as whether Simonds owed a legal duty of care to
plaintiffs.  More precisely, the question is whether Simonds owes
a duty of care to the occupants of a vehicle that leaves a straight
and level interstate highway at a point where there is no access or
exit road, crosses over the shoulder, enters the grassy median, and
strikes a concrete barrier placed 27 feet from the driving lane. 
I agree with the trial court that the answer to this question is
no.
     Necessary to any recovery based on negligence is the existence
of a duty to conform to a certain standard of conduct for the
protection of the plaintiff.  Battisfore v. Moraites, 186 Ill. App.
3d 180, 187-88 (1989).  Whether a duty exists is a question of law
to be determined by the court, and the answer depends on whether
the parties stood in such a relationship to one another that the
law imposes an obligation on the defendant to act reasonably for
the protection of the plaintiff.  Gouge v. Central Illinois Public
Service Co., 144 Ill. 2d 535, 542 (1991). 
     While the existence of a legal duty is ordinarily considered
in terms of foreseeability, the duty is not bottomed on
foreseeability alone.  Hoffman v. Vernon Township, 97 Ill. App. 3d
721, 724 (1981).  Other factors to be taken into consideration,
besides the foreseeability of the possible harm, are the likelihood
of injury from the existence of a condition, the magnitude of
guarding against it, and the consequences of placing the burden
upon the defendant.  Hoffman, 97 Ill. App. 3d at 724.  In terms of
foreseeability, the court will consider whether the risk of harm to
the plaintiff was reasonably foreseeable.  Gouge, 144 Ill. 2d  at
542.  
     As our supreme court stated in Cunis v. Brennan, 56 Ill. 2d 372, 376 (1974), "The creation of a legal duty requires more than
a mere possibility of occurrence."  Quoting from Prosser (W.
Prosser, Torts 31 at 146 (4th ed. 1971)), our supreme court
stated, "`No man can be expected to guard against harm from events
which are not reasonably to be anticipated at all, or are so
unlikely to occur that the risk, although recognizable, would
commonly be disregarded.'"  Cunis, 56 Ill. 2d  at 376.
     I agree with the trial court in the case at bar that Simonds
owed no common law duty to protect plaintiffs from the harm they
suffered.  This case is remarkably similar to Gouge v. Central
Illinois Public Service Co., 144 Ill. 2d 535 (1991), in which our
supreme court held that the electric utility owed no common law
duty of reasonable care to ensure that if an automobile leaves the
traveled portion of a roadway and strikes a utility pole, the pole
will fall away from the roadway.  Our supreme court pointed out
that generally the liability of a utility company for injuries to
a motorist resulting from a collision with a utility pole depends
on whether the pole is located in or so close to the traveled
portion of the highway as to constitute an obstruction dangerous to
anyone properly using the highway.  Gouge, 144 Ill. 2d  at 544.  Our
supreme court held that utility companies owe no duty to motorists
who collide with utility poles unless it is reasonably foreseeable
that the vehicles would leave the roadway in the ordinary course of
travel and strike the utility poles.  In Gouge, the utility pole
was located 15 feet from the roadway.  No facts were alleged which
would indicate that it was reasonably foreseeable that plaintiff
would deviate from the roadway as a normal incident of travel and
strike the utility pole.  
     Similarly, in Hoffman v. Vernon Township, 97 Ill. App. 3d 721,
(1981), plaintiff's automobile went out of control, left the
roadway, and struck a utility pole that was located 27 feet from
the centerline of the roadway and 12 to 16 feet from the easterly
boundary line of the roadway.  The court found that it was not
reasonably foreseeable by defendant that plaintiff would deviate
from the road as he did as a normal incident of travel.  Hoffman,
97 Ill. App. 3d at 726.  "While it is foreseeable that any driver
could, for a number of reasons, leave the paved highway surface[,]
it must be reasonably foreseeable to create a duty.  [Citation.] 
For a duty to attach[,] the person must foreseeably deviate in the
ordinary course of travel ***."  (Emphasis added.)  Hoffman, 97
Ill. App. 3d at 726.  See also Boylan v. Martindale, 103 Ill. App.
3d 335 (1982).
     I do not believe that it was reasonably foreseeable by
defendant that plaintiffs' vehicle would leave the travelled
portion of the interstate where there is no access or exit road and
travel 27 feet into the grassy median in the ordinary course of
travel or as a normal incident of travel.  While it is possible,
and even foreseeable, that a vehicle might so leave the highway, I
do not believe that it is reasonably foreseeable that a vehicle
will do so in the normal course of travel.
     Nor is section 368 of the Restatement (Second) of Torts of any
assistance to plaintiff.  That section provides:  
     "A possessor of land who creates or permits to remain thereon
     an excavation or other artificial condition so near an
     existing highway that he realizes or should realize that it
     involves an unreasonable risk to others accidentally brought
     into contact with such condition[,] while traveling with
     reasonable care upon the highway, is subject to liability for
     physical harm thereby caused to persons who (a) are traveling
     on the highway[] or (b) foreseeably deviate from it in the
     ordinary course of travel."  Restatement (Second) of Torts
     368, at 268 (1965).
For a duty to arise under section 368, the person to whom it is
owed must foreseeably deviate from the roadway in the ordinary
course of travel, and the distinction is not one between
inadvertent and intentional deviations, but between those which are
normal incidents of travel and those which are not.  Swope v.
Northern Illinois Gas Co., 251 Ill. App. 3d 850, 854 (1993). 
     Again, I believe that deviating from the interstate highway
where there is no access or exit road, entering the grassy median
between the interstate lanes, and traveling 27 feet therein is not
a normal incident of travel and is not reasonably foreseeable by
defendant.  It is simply not reasonably foreseeable that, in the
ordinary course of travel, a vehicle will deviate from the highway
to such an extent as in the case at bar.  See also Battisfore v.
Moraites, 186 Ill. App. 3d 180 (1989).  
     Whether a legal duty exists is a question of law and is
determined by reference to whether the parties stood in such a
relationship to each other that the law imposes an obligation on
one to act for the protection of the other.  Rhodes v. Illinois
Central Gulf R.R., 172 Ill. 2d 213, 238 (1996).  In my opinion,
plaintiffs here have failed to allege such a relationship between
plaintiffs and defendant that the law imposes a duty on defendant
to act for the protection of plaintiffs.  Industry standards, cited
by the majority, while evidence of a standard of care, do not
create such a relationship.  
     In my opinion, plaintiffs have failed to allege a legal duty
of care owed by defendant to plaintiffs by virtue of statute,
contract, or common law.  Accordingly, I dissent.