Mroz v. Waste Management of Illinois, Inc.

                                                                SIXTH DIVISION
                                                              February 7, 1997









No. 1-95-4324


PETER MROZ, Administrator of the        )
Estate of ERIC MROZ, Deceased,          )
                                        )         Appeal from
     Plaintiff,                         )      the Circuit Court
                                        )       of Cook County.
               v.                       )
                                        )
WASTE MANAGEMENT OF ILLINOIS, INC.,     )
                                        )
     Defendant.                         )
                                        )
________________________________________)       No.  91-L-20219
                                        )    
WASTE MANAGEMENT OF ILLINOIS, INC.,     )
                                        )
     Third-Party Plaintiff-Appellant,   )
                                        )
               v.                       )          Honorable
                                        )     Gary L. Brownfield,
CHARLOTTE M. COOK,                      )      Judge Presiding.
                                        )
     Third-Party Defendant-Appellee.    )



     JUSTICE THEIS delivered the opinion of the court:

     Third-party plaintiff, Waste Management of Illinois, Inc. (Waste
Management), appeals the trial court's order granting third-party
defendant's motion for summary judgment.  We affirm.
     While driving her car, third-party defendant Charlotte Cook
encountered a garbage truck which she could not pass.  Cook and the
truck driver repeatedly gestured at each other to move.  After several
minutes, the driver of the truck finally reversed.  In doing so, the
truck hit and killed the minor son of plaintiff Peter Mroz.  
     Plaintiff Peter Mroz sued the truck driver's employer, Waste
Management.  Waste Management then filed a third-party action for
contribution against Cook.  Waste Management alleged that:  (1) Cook
blocked the roadway and prevented the truck from proceeding; (2) Cook
failed to keep a lookout; (3) her conduct caused the driver to back
up; (4) she failed to sound her horn to warn the driver of the child's
presence; and (5) Cook's negligence was the proximate cause of the
death of plaintiff Peter Mroz's son.  
     Cook denied the allegations and filed a motion for summary
judgment based upon deposition testimony.  In her deposition
testimony, Cook stated that she turned left onto Ridgeway, a sloped
street, where she encountered the garbage truck.  While she originally
believed there was room for the two vehicles to proceed, it soon
became apparent that the street was too narrow.  The truck was at a
45-degree angle and the driver's door was open.  Cook waited for the
driver, Thomas Slotowski, to move into the cab of his truck. 
Slotowski entered the truck and drove it forward, within a few feet of
Cook's car.  Slotowski motioned for Cook to reverse her car.  Cook
stated that she was afraid to reverse, as shrubs on the corner behind
her blocked her view of oncoming traffic, and gestured at Slotowski to
reverse.  
     The two parties repeatedly gestured at each other to reverse
their vehicles.  Finally, Slotowski reversed his truck.  As Cook
proceeded, she noticed something under the truck's wheels.  Cook could
see under the truck, as she was in a small car downhill from
Slotowski.  The two drivers exited their vehicles and Slotowski looked
under the truck.  When the truck had reversed, it had run over the
plaintiff's minor son.    
     In his deposition testimony, Slotowski stated that Cook started
the gesturing, pointing her finger at him to move.  Slotowski then
pulled his vehicle toward Cook's, as an attempt to "get [Cook] to
move."  Instead of reversing, Cook made a call on her cellular phone. 
Slotowski described the situation as a stalemate.  Finally, Slotowski
checked his mirrors and reversed.  Slotowski acknowledged that most
accidents occurred while reversing.  Despite this knowledge, Slotowski
failed to get out of his truck to check behind him, as required by
Waste Management regulations.  Slotowski stated that he believed
everything was clear behind him, or else Cook would not be gesturing
for him to reverse.  However, Slotowski admitted that he did not
believe that Cook was guiding or instructing him on how to reverse. 
     The trial court granted Cook's motion on two grounds.  The court
determined that Cook owed no duty to the decedent under these facts. 
In addition, the court concluded that Cook's conduct was not the
proximate cause of the accident.  Waste Management appeals.  Because
we find that the trial court properly determined that Cook had not
voluntarily assumed a duty of care toward Slotowski, we need not reach
the issue of proximate cause.
     We review orders granting summary judgment under a de novo
standard.  Summary judgment is appropriate where there is no genuine
issue of material fact and the moving party is entitled to judgment as
a matter of law.  Ignarski v. Norbut, 271 Ill. App. 3d 522, 648 N.E.2d 285 (1995).  All reasonable inferences are drawn in favor of the non-
moving party.  However, the court is not required to make a
"speculative leap" based upon evidence which is "too conjectural to
support a reasonable inference."  Turgeon v. Commonwealth Edison Co.,
258 Ill. App. 3d 234, 252, 630 N.E.2d 1318, 1331 (1994).  While Waste
Management is not required to prove its case at this stage,
unsupported allegations in the complaint will not save Waste
Management from summary judgment.  Ralston v. Casanova, 129 Ill. App.
3d 1050, 473 N.E.2d 444 (1984).
     On appeal, Waste Management argues that the trial court erred in
ruling that Cook did not owe a duty to carefully guide the truck
driver as he reversed.  The existence of a duty of care is a
prerequisite to a plaintiff's recovery.  Turgeon v. Commonwealth
Edison Co., 258 Ill. App. 3d 234, 252, 630 N.E.2d 1318, 1331 (1994). 
"Factors relevant in determining whether a duty exists include:  the
foreseeability of injury, the likelihood of injury, the magnitude of
the burden of guarding against the injury, the consequence of placing
that burden on the defendant, and the possible seriousness of the
injury."  Diaz v. Krob, 264 Ill. App. 3d 97, 99, 636 N.E.2d 1231, 1233
(1994).
     The parties do not dispute that, under common law, a motorist
typically owes no duty to signal or warn another driver as to whether
its safe to proceed.  See Luna v. Pizzas by Marchelloni, 279 Ill. 
App. 3d 402, 664 N.E.2d 1112 (1996).  However, Illinois courts have
recognized that even in the absence of a duty imposed by law, one may
assume a duty where she gratuitously renders services to another. 
Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 665 N.E.2d 1260
(1996). 
     In determining whether to impose a duty where none exists at law,
Illinois courts limit the scope of an assumed duty to the extent of
the undertaking.  Rhodes, 172 Ill. 2d 213, 665 N.E.2d 1260.  For
example, the Illinois Supreme Court found that a railroad conductor's
phone calls to the police about the presence of an injured man in a
railroad station did not justify imposing a burden upon the railroad
to rescue the man.  Rhodes, 172 Ill. 2d 213, 665 N.E.2d 1260.  In
evaluating such claims, the intent of the party who allegedly assumed
the duty and the extent of the guidance she offered are relevant
considerations.  Petersen v. U.S. Reduction Co., 267 Ill. App. 3d 775,
641 N.E.2d 845 (1994).  Finally, before imposing such a duty, we must
examine its impact upon public policy.  Rhodes, 172 Ill. 2d 213, 665 N.E.2d 1260. 
     Two Illinois cases address the issue of whether a motorist has
voluntarily assumed a duty to safely signal another:  Luna v. Pizzas
by Marchelloni, 279 Ill. App. 3d 402, 664 N.E.2d 1112 (1996); and Diaz
v. Krob, 264 Ill. App. 3d 97, 636 N.E.2d 1231 (1994).  In Diaz v.
Krob, a pedestrian was crossing an intersection when the crosswalk
sign started flashing "Don't Walk."  264 Ill. App. 3d at 100, 636 N.E.2d  at 1233.  The pedestrian ran to the median where she made eye
contact with a school bus driver stopped immediately north of the
crosswalk.  The bus driver motioned to the pedestrian to continue
walking in front of the bus.  The pedestrian was struck by another
vehicle. 
     The pedestrian sued the bus driver and the school district,
alleging that, by his gesturing, the bus driver voluntarily undertook
to guide her safely across the street.  The court dismissed the
action, finding the gesture could only be interpreted as a mere
courtesy allowing the pedestrian to pass in front of the bus.  The
court rejected the pedestrian's claim that a duty should be imposed
because the bus driver was in a better position to see the oncoming
traffic.  The court noted that "whether a legal duty exists involves
more than just foreseeability of possible harm; it also involves legal
and social policies.  ***  [T]he magnitude of guarding against the
injury and the consequence of placing that burden on the defendant
weigh heavily in favor of finding no duty."  Diaz, 264 Ill. App. 3d
97, 100, 636 N.E.2d 1231, 1233-34.  
     In Luna v. Pizzas by Marchelloni, 279 Ill. App. 3d 402, 664 N.E.2d 1112 (1996), plaintiffs were driving westbound along Route 30. 
Defendant Luenemann was driving eastbound along Route 30 and was
attempting to make a left-hand turn.  Plaintiffs alleged that
defendant Jacobson, stopped at a nearby railroad crossing, made eye
contact with Luenemann and signalled that it was safe to make the
turn.  While turning, Luenemann struck the plaintiff's vehicle. 
     The plaintiffs sued both Luenemann and Jacobson.  Jacobson filed
a motion to dismiss, claiming that he owed the plaintiffs no duty. 
The trial court granted the motion.  The appellate court reversed,
finding the pleadings demonstrated that Jacobson's purpose in waving
was to communicate to Luenemann it was safe to proceed.  The court
stated that "[p]laintiffs may be able to prove a set of facts
establishing that defendants failed to act with due care after
voluntarily undertaking to signal Luenemann that it was safe ***."  
(Emphasis added.)  Luna, 279 Ill. App. 3d 402, 405, 664 N.E.2d 1112,
1115.
     Initially, we note that the procedural distinction between the
instant case and Diaz and Luna is significant.  Because we are
reviewing an order granting summary judgment, not a motion to dismiss,
we must find evidence indicating that Cook had undertaken to signal
defendant that it was safe to reverse in order to survive this motion
for summary judgment.  
     We find that the facts in the instant case more closely parallel
those in Diaz rather than Luna.  In Luna, the pleadings alleged that
Jacobson's gesture constituted an unspoken agreement that it was safe
to proceed.  However, the Diaz court found the bus driver's gesture
was a mere courtesy.  The exchange between Cook and Slotowski was
anything but courteous.  Cook's purpose in gesturing was not to signal
Slotowski that it was safe to proceed, but rather to convince him to
clear the road.  We cannot infer any agreement or communication
between the two that it was safe to reverse.     
     Accordingly, we find that an interpretation of Cook's gesturing
which assumes a willingness to safely guide Slotowski is too
expansive.  In her deposition testimony, Cook stated that she was
gesturing to Slotowski, not in an effort to guide his reversal, but to
communicate her displeasure with her inability to proceed.  Slotowski
admitted that Cook did not provide him with guidance or assistance. 
Slotowski further acknowledged that Waste Management policies required
him to exit the truck before reversing, as most accidents were caused
while reversing.  Slotowski stated that he was annoyed by Cook's
behavior and described the situation as a stalemate.  
     Finally, it would be contrary to public policy concerns to impose
an assumed duty in the instant case.  We cannot find that Cook's
conduct justifies imposing a duty upon her to safely assist Slotowski,
where Slotowski disregarded established safety procedures.
     Affirmed.
     GREIMAN, P.J., and ZWICK, J., concur.