Colonial Inn Motor Lodge, Inc. v. Gay
Annotate this Case
No. 2--96--0316
___________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
COLONIAL INN MOTOR LODGE, ) Appeal from the Circuit Court
INC., for the Use and ) of Winnebago County.
Benefit of the Cincinnati )
Insurance Company, )
)
Plaintiff-Appellant, ) Nos. 93--L--73
) 94--L--394
v. )
)
GREG GAY, )
)
Defendant-Appellee )
)
(Stash O'Neil's/Hard Times, )
Inc., Defendant (Joanne Lubrano )
and Antonio Lubrano, Plaintiffs,)
v. Colonial Inn Motor Lodge, )
Defendant and Third-Party )
Plaintiff and Third-Party )
Defendant; and Greg Gay, )
Defendant and Third-Party ) Honorable
Defendant and Third-Party ) Ronald L. Pirrello,
Plaintiff)). ) Judge, Presiding.
__________________________________________________________________
PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Colonial Inn Motor Lodge, Inc., on behalf of
its insurance carrier, the Cincinnati Insurance Company, sued Greg
Gay (the defendant) and Stash O'Neil's/Hard Times, Inc. (Stash
O'Neil's), in case No. 93--L--73 for damages from an explosion the
defendant allegedly caused by driving into the plaintiff's
building, the Colonial Inn. The plaintiff sued the defendant in
negligence and sought recovery against Stash O'Neil's under the
Dramshop Act (235 ILCS 5/6--21 (West 1994)). In case No. 94--L--
394, Antonio and Joanne Lubrano sued the plaintiff and the
defendant to recover for injuries from the explosion. The
plaintiff and the defendant sued each other for contribution toward
any damages awarded the Lubranos. The cases were consolidated for
discovery purposes only.
The plaintiff appeals (see 155 Ill. 2d R. 304(a)) a grant of
summary judgment (see 735 ILCS 5/2--1005(c) (West 1994)) for the
defendant in case No. 93--L--73. The plaintiff argues that the
defendant owed it a duty of care and that whether the defendant's
negligence caused the plaintiff's damages is a jury issue. We
agree. Therefore, we reverse and remand for further proceedings.
Count I of the plaintiff's second amended complaint alleges
the following. The Colonial Inn was a "hotel/motel" at 4850 East
State Street in Rockford. On October 30, 1992, the defendant
caused a vehicle he was driving to come into contact with the
building. The defendant was negligent in: (a) failing to keep a
proper lookout; (b) failing to apply his brakes so as to avoid
striking the building; and (c) driving his vehicle into the
building. As a result, the building caught fire and exploded,
causing the plaintiff property damage and lost income. The
Cincinnati Insurance Company paid the plaintiff under an insurance
policy, and the plaintiff was suing on the insurer's behalf.
The Lubranos' first amended complaint sought recovery in
negligence against both the plaintiff and the defendant. Its
allegations against the defendant essentially paralleled those in
count I of the plaintiff's complaint, asserting that his negligent
driving caused the contact that led to the explosion. Neither the
plaintiff's complaint nor the Lubranos' complaint asserted that the
defendant breached any duty to inspect the accident scene, inform
anyone of the contact, or warn of any resultant danger.
The defendant moved for summary judgment on both the
plaintiff's complaint and the Lubranos' complaint insofar as each
applied to him. The defendant argued that, because the explosion
was not a reasonably foreseeable consequence of the slight contact
his car made with the building, he did not owe the plaintiff a
duty. For the same reason, he maintained, his conduct could not be
considered the proximate cause of the calamity. The defendant
relied on excerpts from the deposition testimony of himself, Leann
Johnson, and Michael Woodring.
The defendant's motion referred to yet another negligence suit
that arose from his accident, viz., a 1992 action by Stash O'Neil's
against the defendant and Frank Gay, d/b/a Frank Gay's Marquee.
There, the complaint as amended alleged that the accident occurred
after the defendant exited Stash O'Neil's and got into his car
behind the restaurant. Stash O'Neil's asserted both that the
defendant was negligent in causing the initial contact with the
Colonial Inn air-conditioning or heating unit and that he breached
a duty to stop immediately and locate the owner of the damaged
property. The complaint alleged that had the defendant fulfilled
this duty to warn, he would have discovered that he had severed
certain gas lines. The complaint also alleged that the explosion
and the fire that followed from the ignition caused the fire
department to close Stash O'Neil's, resulting in lost business.
The circuit court dismissed Stash O'Neil's suit for failure to
state a cause of action (see 735 ILCS 5/2--615(a) (West 1992)).
The plaintiff's response to the defendant's summary judgment
motion relied in part on the arguments the Lubranos made in their
response to the defendant's motion. The plaintiff also made use of
(and attached) an excerpt from Woodring's deposition testimony. We
summarize the relevant deposition testimony.
The defendant testified that he was backing his car up in the
parking lot immediately before the contact. Before he started to
back up, he looked into the rearview mirror and saw only the brick
building. The defendant drove no faster than two miles per hour.
When he felt a bump, he activated his brakes and again looked into
the rearview mirror, seeing only the brick building and not any
air-conditioning or heating unit protruding therefrom. The
defendant figured he had caused no damage, so he stayed in his car
and exited the parking lot. The car suffered very little damage.
Later that evening, the police told the defendant of the explosion.
Leann Johnson testified that, on October 30, 1992, she was an
employee of Stash O'Neil's, which is located at 4846 East State
Street in Rockford. Some time that afternoon, her friend Robert
Reed drove her there so she could get her paycheck. Reed parked
the car in Stash O'Neil's lot. As Johnson walked south toward
Stash O'Neil's, she heard something that sounded like "someone
hitting something." Johnson turned in the direction of the sound
and saw the defendant's car near the west wall of a building.
Johnson did not see the collision itself.
Johnson testified that she was not sure how far from the
defendant's car she was when she heard the collision. (Diagrams
that Johnson marked are not in the record on appeal.) Johnson also
equivocated on how loudly the defendant's car collided with the
air-conditioning or heating unit. Although she described the sound
as a "bang," she conceded that earlier she accurately said that "
'it wasn't very loud, but it was loud enough that we heard it
good.' " The defendant's vehicle was stationary for a short time
and drove off. At some point after she heard the collision,
Johnson saw a dent in the "air-conditioning thing, the little thing
that's hanging outside," this unit being about 12 to 15 inches high
and perhaps 20 inches wide. Johnson did not recall how big or deep
the dent was or exactly where it was on the face of the unit.
Johnson never saw the unit move, never saw anything fall away from
the unit, and observed no damage to the defendant's car. She
entered Stash O'Neil's to get her check and left roughly 15 minutes
after she heard the collision. She did not see the explosion.
Michael Woodring, a fire investigator for the City of
Rockford, gave his opinion of what caused the explosion. Woodring
believed that, because the air-conditioning or heating unit
protruded from the wall and apparently overhung the lot, it could
be hit by a car that stayed within the parking lot--as, to the best
of Woodring's knowledge, the defendant's car did. The collision
caused a break in the gas line, which in turn made gas collect and
flow until it made contact with an ignition source. Woodring
explained that normally some time passes between breakage to a gas
line and a resultant fire. Here, the ignition source could have
been the pilot light on one of the large dryers in the hotel's
laundry room. According to a deposition excerpt the plaintiff
attached to its response to the summary judgment motion, Woodring
opined that the gas accumulated in room 101 of the hotel, escaped,
and eventually made contact with the ignition source, a pilot light
in the hotel basement's washer/dryer system.
The trial court granted the defendant's motion. The court's
letter opinion defined the pivotal issue as "whether or not there
was a duty on the part of Defendant Gay to do something which he
subsequently failed to do. The duty which is expressed is one to
warn Colonial Inn or someone of the possible damage of an explosion
which subsequently occurred." The letter opinion then stated that,
because the defendant had been driving very slowly and the impact
was slight, it was impossible to say whether any damage would have
been visible to the exterior of the air-conditioning/heating unit
he struck. Also, because the unit was so low off the ground, the
defendant was unaware even that he struck it. Thus, the court
reasoned, the danger of a gas explosion involving (as yet unknown)
collection and ignition points was not reasonably foreseeable and
the defendant was entitled to summary judgment.
The plaintiff moved to reconsider. Relying in large measure
on Leann Johnson's deposition testimony, the plaintiff argued that,
given the force of the contact (as shown by the sound it made and
the dent that it left), the resultant harm was reasonably
foreseeable. Therefore, the defendant owed the plaintiff a duty to
exit his car, look for damage, and tell one of the plaintiff's
agents what had happened. The plaintiff argued that, had the
defendant inspected the scene, he would have noticed the damage and
realized he needed to alert the plaintiff.
At the hearing on the motion to reconsider, the plaintiff's
lawyer stated that counsel had finally managed to contact Robert
Reed and had sent Reed an affidavit that Reed signed and returned
but did not get notarized. Counsel requested that the court
consider the Reed affidavit and stated he would get it notarized.
The defendant's counsel received a copy of the affidavit and said
he had not seen it before. However, after the plaintiff's attorney
requested "mov[ing] forward with argument right now," the
defendant's attorney said he had "no objection to proceeding with
argument, and we can consider those facts with the understanding
that there is an original affidavit somewhere that will be
notarized and--and submitted to the court record."
Argument commenced. The plaintiff's attorney asserted that
Reed's affidavit tended to show that the explosion was a reasonably
foreseeable consequence of the collision. The trial judge
interjected that he did not have a copy of the affidavit. The
plaintiff's counsel quoted from the affidavit and completed his
argument, urging that the defendant breached his duties "to not hit
other people's property" and to notify someone of the collision.
Counsel continued that there was a genuine issue of fact whether
the defendant's conduct proximately caused the explosion.
After further argument, the trial judge stated that the
arguments here were essentially those raised before the original
ruling. The court denied the motion to reconsider and stated there
was no just reason to delay the enforcement or appeal of its order
(see 155 Ill. 2d R. 304(a)). The plaintiff timely appealed.
On appeal, the plaintiff argues that (1) the court erred in
concluding the defendant owed no duty to the plaintiff and (2)
whether the defendant's conduct proximately caused the explosion
cannot be decided as a matter of law. Both arguments hinge on the
plaintiff's assertion that the trial court misapplied the concept
of "reasonable foreseeability" that underlies both duty and
proximate cause. The defendant responds that he is entitled to
summary judgment on either ground because the explosion was not a
reasonably foreseeable consequence of his conduct.
Before delving into the merits, we address whether to consider
the affidavit of Robert Reed in deciding whether summary judgment
was proper. We decline to do so. Although the record is
admittedly less than clear, it shows that the plaintiff did not
even proffer Reed's affidavit until after it moved to reconsider
the grant of summary judgment. When the plaintiff sought to rely
in part on Reed's affidavit, the court had not yet been presented
with a copy; from the transcript of the hearing on the motion to
reconsider, we conclude that the judge did not have the affidavit
before him when he heard arguments. Moreover, the affidavit had
not yet been notarized. It appears from the judge's explanation of
his decision that he did not consider the Reed affidavit. Under
all the circumstances, we decline to consider evidence which was
not in proper form, was not submitted and could not have been
considered until after the grant of summary judgment, and appears
not to have been before the trial judge. See Rayner Covering
Systems, Inc. v. Danvers Farmers Elevator Co., 226 Ill. App. 3d
507, 510-11 (1992) (party may not expect trial court to consider
evidence not introduced until motion to reconsider summary
judgment). In any event, we do not believe our holding would
differ significantly were we to factor in the Reed affidavit.
Whether the court erred in granting summary judgment is a
question of law that we review de novo. In re Estate of Hoover,
155 Ill. 2d 402, 410-11 (1993). Summary judgment is proper if the
pleadings, depositions, and other matters on file show that there
is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. 735 ILCS 5/2--
1005(c)(West 1994). A court should not grant summary judgment
unless the movant's right to it is clear and free from doubt, and
the court must construe the evidence strictly against the movant
and liberally in favor of the nonmovant. Colvin v. Hobart
Brothers, 156 Ill. 2d 166, 170 (1993). The nonmovant need not
prove his case at this stage, but he must present some factual
basis that would arguably entitle him to judgment. Smith v. Tri-R
Vending, 249 Ill. App. 3d 654, 657 (1993).
In a negligence action, the plaintiff must plead and prove (1)
the existence of a duty owed by the defendant to the plaintiff; (2)
the breach of that duty; and (3) an injury proximately caused by
that breach. Ziemba v. Mierzwa, 142 Ill. 2d 42, 45 (1991); Ward
v. K Mart Corp., 136 Ill. 2d 132, 140 (1990). Here, the parties
dispute whether there is a genuine factual issue as to both the
first element, duty, and the third element, proximate cause.
We consider the duty issue first. The parties and the trial
court appear to have intermingled two possible duties or breaches
thereof--(1) the defendant's duty to drive safely to avoid
colliding with the building and (2) the defendant's alleged duty
to warn or inform the plaintiff after the collision. However, we
shall consider only the first of these possible duties because
nothing in the plaintiff's complaint alleges that the defendant had
a duty to warn or inform the plaintiff of the accident. The only
duty alleged in that complaint, or in the Lubranos' complaint as it
relates to the defendant, is the defendant's duty to use due care
to avoid the collision. As far as we can tell from the record, the
plaintiff waited until its motion to reconsider the judgment to
assert that there was any duty to warn. (It appears the only time
before the judgment that a party here even obliquely mentioned a
possible duty to warn was when the defendant's motion for summary
judgment attached a copy of Stash O'Neil's' complaint, which does
assert that the defendant owed such a duty to the plaintiff.)
The plaintiff never properly pleaded the existence of a duty
to warn. The defendant could not contest the existence of this
duty by way of his motion for summary judgment. The plaintiff may
not recover under a theory never set forth in its complaint, for,
as we have stated, proof without pleadings is as defective as
pleadings without proof. Estate of Welliver v. Alberts, 278 Ill.
App. 3d 1028, 1040 (1996). Thus, we consider whether the defendant
had a duty to avoid the collision but not whether he had any duty
to inform the plaintiff afterward. We conclude that the defendant
owed the plaintiff a duty of due care to avoid the initial contact.
The existence of a duty is a question of law and depends on
whether the defendant and the plaintiff stood in such a
relationship that the defendant is obliged to conform to a certain
standard of conduct for the benefit of the plaintiff. Ziemba, 142 Ill. 2d at 47; Widlowski v. Durkee Foods, 138 Ill. 2d 369, 373
(1990). To decide whether a duty exists in a particular case, a
court considers the foreseeability that the defendant's conduct may
injure another, the likelihood of an injury resulting, the burden
to the defendant of imposing a duty, and the consequences of
imposing this burden. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 452-53 (1992).
In finding that the defendant did not owe the plaintiff a
duty, the trial court relied on its conclusion that the explosion
was not a reasonably foreseeable consequence of the contact between
the car and the building. Although reasonable foreseeability is an
important consideration in the duty equation, we believe that the
trial court erred by using as its touchstone the foreseeability of
the particular injury or damages rather than the foreseeability of
an injury to the particular plaintiff. We believe the latter is
crucial to the legal determination of duty, while the former is
more appropriately considered in determining the factual issue of
proximate causation. True, the case law is less than perfectly
lucid or consistent in its treatment of the densely intertwined
ideas of duty, proximate causation, and reasonable foreseeability.
However, it appears that, because duty is based on the relationship
of the plaintiff and the defendant, that relationship, and not the
type of injury that resulted, is crucial.
Illinois courts have on the whole supported this view.
Although "reasonable foreseeability" is crucial to both duty and
proximate cause, courts must take care to keep duty and proximate
cause analytically independent by differentiating between "two
distinct problems in negligence theory--the unforeseen plaintiff
problem and the problem of the foreseeable injury resulting from
unforeseen means." Nelson v. Commonwealth Edison Co., 124 Ill.
App. 3d 655, 660 (1984). This approach is consistent with the
long-standing principle that the particular manner or method by
which the plaintiff is injured is generally not germane to the
determination of the existence of a duty. See Nelson, 124 Ill.
App. 3d at 660-63 (and cases cited therein). The general standards
we have recited focus on the preaccident relationship between the
parties and the foreseeability of an injury to the particular
plaintiff, not on the foreseeability of the actual injury or the
specific means by which it was brought about. This is true even
where courts have declined to impose a duty because certain
"freakish" or "fantastic" injuries could not reasonably have been
foreseen. In each case, what was "unforeseeable" was not merely
the particular injury, but the initial contact--the fact of injury
to the particular plaintiff.
Thus, in Cunis v. Brennan, 56 Ill. 2d 372 (1974), the
plaintiff, a passenger in a car, was injured when a collision with
another car threw him 30 feet onto a parkway, where he was impaled
on part of a drain pipe allegedly left there as a result of the
defendant municipality's negligence. The supreme court held that
the municipality owed the plaintiff no duty of due care.
Emphasizing the importance of analyzing the parties' relationship
(Cunis, 56 Ill. 2d at 374), the court concluded that it was not
reasonably foreseeable the alleged negligence should have brought
about the plaintiff's injury. Although the court observed that the
particular injury was not reasonably foreseeable, it also stressed
that the initial contact--and thus any injury to the particular
plaintiff from the protruding drain pipe--was "tragically
bizarre." Cunis, 56 Ill. 2d at 377. The "remote possibility of
the occurrence" did not give rise to a duty from the municipality
to the plaintiff. Cunis, 56 Ill. 2d at 377-78.
Cunis did not present a situation where the particular
plaintiff or his initial contact with the defendant was reasonably
foreseeable but the ultimate injury or damages were arguably not
so. Rather, that the misplaced drain pipe would cause any injury
to someone riding in a car 30 feet away was an example of " 'the
freakish and the fantastic.' " Cunis, 56 Ill. 2d at 378, quoting
W. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 27 (1953).
In Widlowski, the plaintiff, a nurse, alleged that the
defendant's employee was made delirious by nitrogen gas to which he
was exposed on the job; as a result, he was transported to the
hospital, where his delirium caused him to bite off the plaintiff's
finger. Refusing to find that the employer owed the plaintiff a
duty, the supreme court explained that it could not say that "the
risk of harm to [the] plaintiff, who was removed in time and place,
was reasonably foreseeable." Widlowski, 138 Ill. 2d at 374. The
court also explained that the likelihood of the initial harmful
contact (the bite) was small and that the burden of guarding
against such an occurrence was great because the employee could
have harmed anyone with whom he came into contact while he was
delirious. Widlowski, 138 Ill. 2d at 374-75.
In Ziemba, the plaintiff was riding a bicycle on a road when
he was hit by a truck exiting the defendant's driveway. The
supreme court refused to find that the defendant owed the plaintiff
a duty to keep his driveway from being obscured by foliage.
Emphasizing the importance of the relationship between the parties
in its duty inquiry (Ziemba, 142 Ill. 2d at 48), the court
explained that it was not reasonably foreseeable that the alleged
breach of duty would result in "this type of accident" (Ziemba, 142
Ill. 2d at 49). The court noted further that the obscured driveway
posed a danger to the plaintiff only because of the truck driver's
intervening negligent act. Ziemba, 142 Ill. 2d at 49-50. Thus,
Ziemba is consistent with the rule that there is no duty when the
plaintiff is not reasonably foreseeable.
Cases from other jurisdictions the defendant cites also
demonstrate that, where "unforeseeability" bars the imposition of
a duty, both the particular injury and the particular plaintiff
(i.e., the initial contact with the plaintiff) are "unforeseeable."
See Diamond State Telephone Co. v. Atlantic Refining Co., 205 F.2d 402 (3d Cir. 1953); Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928); Radigan v. W.J. Halloran Co., 196 A.2d 160
(R.I. 1963).
We believe that the relationship of the parties here was such
that the law could require the defendant to exercise due care on
behalf of the plaintiff. Focusing on the potential for injury
rather than on the specifics of the harm that did occur, we find
the duty problem is relatively simple. The defendant was a
motorist operating his vehicle in the vicinity of the plaintiff's
building. He had an obligation to use due care to avoid driving
his car into the building. The building was not remote in time or
space from the defendant (apparently it was all too close); the
collision itself was a simple result of the defendant's action and
had no intervening causes like the independent negligent acts of
the motorists in Cunis or Ziemba; and the specific types of duty
the complaint alleges--to keep a proper lookout, to apply brakes
when necessary, and generally to take care to avoid an accident--
are anything but unusual.
This is not a case involving an unforeseeable plaintiff, and
we find no policy considerations that would negate the ordinary and
routine duty of a motorist to drive his car carefully so as not to
cause other parties injury or property damage. The court erred in
holding that the defendant owed the plaintiff no duty. Whether the
unusual facts here absolve the defendant of liability is something
we now address under the rubric of proximate cause.
The plaintiff argues that proximate cause is a jury question
because there is a genuine issue of whether the damage to the
building was the natural and probable consequence of the
defendant's careless driving. The plaintiff maintains that there
is at least some evidence that the defendant's car struck the air-
conditioning or heating unit with great force. Thus, the plaintiff
asserts, the explosion was not inherently unforeseeable and
proximate cause should not be decided as a matter of law. The
defendant responds that the explosion was too bizarre to be a
natural and probable consequence of slowly backing a car into the
building. We conclude that the evidence on the issue is not so
one-sided that it entitles the defendant to summary judgment.
Whether an injury proximately resulted from the defendant's
breach of a duty is ordinarily a question of fact. Lee, 152 Ill. 2d at 454; Ward, 136 Ill. 2d at 156-57. Proximate cause consists
of (1) cause in fact--whether there is a reasonable certainty that
the defendant's actions caused the injury--and (2) legal cause--
whether the injury was of a type that was a reasonably foreseeable
result of the defendant's conduct. Lee, 152 Ill. 2d at 455-56;
Yager v. Illinois Bell Telephone Co., 281 Ill. App. 3d 903, 909
(1996). We agree with the plaintiff that the expert testimony of
the fire investigator and the fact of the collision itself provide
an evidentiary basis for cause in fact. The more difficult issue
is whether the plaintiff set forth a sufficient factual basis that
the injury was reasonably foreseeable. We believe it did so.
We cannot say as a matter of law that it was not reasonably
foreseeable that a collision between an automobile and the side of
a building could cause the sort of injury here. Construing the
evidence liberally in favor of the plaintiff, we see some basis to
conclude that the impact was substantial. The sound made a person
some distance off shift her attention toward the defendant.
Moreover, even a slow-moving car is a large instrumentality capable
of causing significant harm. The possibility that colliding with
a building will disrupt a gas line or create a fire hazard is not
so inherently farfetched as to merit the label "freakish" or
"fantastic." Gas lines and ignition sources such as appliances are
common features of buildings, including large buildings used for
residential purposes. Importantly, this case does not involve
the intervention of an unforeseeable third party as an intervening
or additional cause. It is at least fairly arguable that, once the
defendant's car hit the plaintiff's building, the sequence of
events that caused the explosion was set in motion with no further
action needed to bring about the injury.
Illinois courts are reluctant to deny liability where an
injury is merely indirect or surprising, even if an actor other
than the defendant helps to bring about the accident. Thus, in
Davis v. Marathon Oil Co., 64 Ill. 2d 380 (1976), the court upheld
a verdict for the plaintiff, who was injured by a gasoline
explosion at the defendant's service station. The plaintiff, who
was on the property to deliver gasoline, alleged that the
defendant's negligent storage of the gasoline caused an explosion
that occurred when the plaintiff exited the sales area, saw that
gasoline he had pumped was flowing onto the ground, and was injured
by the explosion as he tried to shut off his truck's pump. The
supreme court held that the jury could conclude the negligent
storage of the gasoline proximately caused the plaintiff's injury
even though the explosion also required the presence, in the sales
area, of a space heater that ignited the fumes when a breeze blew
them into the structure as the plaintiff opened the door. Davis,
64 Ill. 2d at 395-96.
In Bak v. Burlington Northern, Inc., 93 Ill. App. 3d 269
(1981), this court reversed summary judgment for the defendant on
one count of a complaint that alleged that the plaintiff's
decedent's death from an overdose of a painkilling drug was
proximately caused by the defendant's negligent maintenance of its
staircase. The plaintiff alleged that the defendant's negligence
caused the plaintiff's decedent serious injuries, without which she
would not have been taking the drug at all. Nine months passed
between the accident and the decedent's overdose. This court held
that the passage of time and the decedent's act of taking the
overdose did not mean that, as a matter of law, the defendant's
negligence did not proximately cause her death. Bak, 93 Ill. App.
3d at 271-72.
In Mangan v. F.C. Pilgrim & Co., 32 Ill. App. 3d 563 (1975),
the jury found that the defendant landlord's negligent upkeep of
its apartment building proximately caused injuries to the
plaintiff, a tenant who fell and was injured when a mouse jumped
out of her oven. The appellate court affirmed, explaining that the
landlord could reasonably foresee that the unexpected presence of
mice on the property could startle the plaintiff into having her
accident. Mangan, 32 Ill. App. 3d at 570.
As these cases illustrate, a "natural and probable"
consequence need not be "easily predictable" or "highly probable."
Neither a high degree of contingency nor a substantial lapse of
time between the negligent act and the injury establishes as a
matter of law that the former did not proximately cause the latter.
If the defendant's conduct is a substantial factor in bringing
about the injury, it is not necessary that the extent of the harm
or the exact manner in which it occurred could reasonably have been
foreseen. Blue v. St. Clair Country Club, 7 Ill. 2d 359, 364
(1955); Jefferson v. City of Chicago, 269 Ill. App. 3d 672, 676
(1995); Mangan, 32 Ill. App. 3d at 570; Restatement (Second) of
Torts 435(1)(1965). A negligence defendant must take the
plaintiff as he finds him, even if the plaintiff's "eggshell skull"
results in his suffering an injury that ordinarily would not be
reasonably foreseeable. W. Keeton, Prosser & Keeton on Torts 43,
at 291-92 (5th ed. 1984). Here, the evidence suggests that a
building rather than a person may have had an "eggshell skull."
That possibility alone does not foreclose liability for the injury.
The judgment of the circuit court of Winnebago County is
reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
INGLIS and HUTCHINSON, JJ., concur.
___________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
COLONIAL INN MOTOR LODGE, ) Appeal from the Circuit Court
INC., for the Use and ) of Winnebago County.
Benefit of the Cincinnati )
Insurance Company, )
)
Plaintiff-Appellant, ) Nos. 93--L--73
) 94--L--394
v. )
)
GREG GAY, )
)
Defendant-Appellee )
)
(Stash O'Neil's/Hard Times, )
Inc., Defendant (Joanne Lubrano )
and Antonio Lubrano, Plaintiffs,)
v. Colonial Inn Motor Lodge, )
Defendant and Third-Party )
Plaintiff and Third-Party )
Defendant; and Greg Gay, )
Defendant and Third-Party ) Honorable
Defendant and Third-Party ) Ronald L. Pirrello,
Plaintiff)). ) Judge, Presiding.
__________________________________________________________________
PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Colonial Inn Motor Lodge, Inc., on behalf of
its insurance carrier, the Cincinnati Insurance Company, sued Greg
Gay (the defendant) and Stash O'Neil's/Hard Times, Inc. (Stash
O'Neil's), in case No. 93--L--73 for damages from an explosion the
defendant allegedly caused by driving into the plaintiff's
building, the Colonial Inn. The plaintiff sued the defendant in
negligence and sought recovery against Stash O'Neil's under the
Dramshop Act (235 ILCS 5/6--21 (West 1994)). In case No. 94--L--
394, Antonio and Joanne Lubrano sued the plaintiff and the
defendant to recover for injuries from the explosion. The
plaintiff and the defendant sued each other for contribution toward
any damages awarded the Lubranos. The cases were consolidated for
discovery purposes only.
The plaintiff appeals (see 155 Ill. 2d R. 304(a)) a grant of
summary judgment (see 735 ILCS 5/2--1005(c) (West 1994)) for the
defendant in case No. 93--L--73. The plaintiff argues that the
defendant owed it a duty of care and that whether the defendant's
negligence caused the plaintiff's damages is a jury issue. We
agree. Therefore, we reverse and remand for further proceedings.
Count I of the plaintiff's second amended complaint alleges
the following. The Colonial Inn was a "hotel/motel" at 4850 East
State Street in Rockford. On October 30, 1992, the defendant
caused a vehicle he was driving to come into contact with the
building. The defendant was negligent in: (a) failing to keep a
proper lookout; (b) failing to apply his brakes so as to avoid
striking the building; and (c) driving his vehicle into the
building. As a result, the building caught fire and exploded,
causing the plaintiff property damage and lost income. The
Cincinnati Insurance Company paid the plaintiff under an insurance
policy, and the plaintiff was suing on the insurer's behalf.
The Lubranos' first amended complaint sought recovery in
negligence against both the plaintiff and the defendant. Its
allegations against the defendant essentially paralleled those in
count I of the plaintiff's complaint, asserting that his negligent
driving caused the contact that led to the explosion. Neither the
plaintiff's complaint nor the Lubranos' complaint asserted that the
defendant breached any duty to inspect the accident scene, inform
anyone of the contact, or warn of any resultant danger.
The defendant moved for summary judgment on both the
plaintiff's complaint and the Lubranos' complaint insofar as each
applied to him. The defendant argued that, because the explosion
was not a reasonably foreseeable consequence of the slight contact
his car made with the building, he did not owe the plaintiff a
duty. For the same reason, he maintained, his conduct could not be
considered the proximate cause of the calamity. The defendant
relied on excerpts from the deposition testimony of himself, Leann
Johnson, and Michael Woodring.
The defendant's motion referred to yet another negligence suit
that arose from his accident, viz., a 1992 action by Stash O'Neil's
against the defendant and Frank Gay, d/b/a Frank Gay's Marquee.
There, the complaint as amended alleged that the accident occurred
after the defendant exited Stash O'Neil's and got into his car
behind the restaurant. Stash O'Neil's asserted both that the
defendant was negligent in causing the initial contact with the
Colonial Inn air-conditioning or heating unit and that he breached
a duty to stop immediately and locate the owner of the damaged
property. The complaint alleged that had the defendant fulfilled
this duty to warn, he would have discovered that he had severed
certain gas lines. The complaint also alleged that the explosion
and the fire that followed from the ignition caused the fire
department to close Stash O'Neil's, resulting in lost business.
The circuit court dismissed Stash O'Neil's suit for failure to
state a cause of action (see 735 ILCS 5/2--615(a) (West 1992)).
The plaintiff's response to the defendant's summary judgment
motion relied in part on the arguments the Lubranos made in their
response to the defendant's motion. The plaintiff also made use of
(and attached) an excerpt from Woodring's deposition testimony. We
summarize the relevant deposition testimony.
The defendant testified that he was backing his car up in the
parking lot immediately before the contact. Before he started to
back up, he looked into the rearview mirror and saw only the brick
building. The defendant drove no faster than two miles per hour.
When he felt a bump, he activated his brakes and again looked into
the rearview mirror, seeing only the brick building and not any
air-conditioning or heating unit protruding therefrom. The
defendant figured he had caused no damage, so he stayed in his car
and exited the parking lot. The car suffered very little damage.
Later that evening, the police told the defendant of the explosion.
Leann Johnson testified that, on October 30, 1992, she was an
employee of Stash O'Neil's, which is located at 4846 East State
Street in Rockford. Some time that afternoon, her friend Robert
Reed drove her there so she could get her paycheck. Reed parked
the car in Stash O'Neil's lot. As Johnson walked south toward
Stash O'Neil's, she heard something that sounded like "someone
hitting something." Johnson turned in the direction of the sound
and saw the defendant's car near the west wall of a building.
Johnson did not see the collision itself.
Johnson testified that she was not sure how far from the
defendant's car she was when she heard the collision. (Diagrams
that Johnson marked are not in the record on appeal.) Johnson also
equivocated on how loudly the defendant's car collided with the
air-conditioning or heating unit. Although she described the sound
as a "bang," she conceded that earlier she accurately said that "
'it wasn't very loud, but it was loud enough that we heard it
good.' " The defendant's vehicle was stationary for a short time
and drove off. At some point after she heard the collision,
Johnson saw a dent in the "air-conditioning thing, the little thing
that's hanging outside," this unit being about 12 to 15 inches high
and perhaps 20 inches wide. Johnson did not recall how big or deep
the dent was or exactly where it was on the face of the unit.
Johnson never saw the unit move, never saw anything fall away from
the unit, and observed no damage to the defendant's car. She
entered Stash O'Neil's to get her check and left roughly 15 minutes
after she heard the collision. She did not see the explosion.
Michael Woodring, a fire investigator for the City of
Rockford, gave his opinion of what caused the explosion. Woodring
believed that, because the air-conditioning or heating unit
protruded from the wall and apparently overhung the lot, it could
be hit by a car that stayed within the parking lot--as, to the best
of Woodring's knowledge, the defendant's car did. The collision
caused a break in the gas line, which in turn made gas collect and
flow until it made contact with an ignition source. Woodring
explained that normally some time passes between breakage to a gas
line and a resultant fire. Here, the ignition source could have
been the pilot light on one of the large dryers in the hotel's
laundry room. According to a deposition excerpt the plaintiff
attached to its response to the summary judgment motion, Woodring
opined that the gas accumulated in room 101 of the hotel, escaped,
and eventually made contact with the ignition source, a pilot light
in the hotel basement's washer/dryer system.
The trial court granted the defendant's motion. The court's
letter opinion defined the pivotal issue as "whether or not there
was a duty on the part of Defendant Gay to do something which he
subsequently failed to do. The duty which is expressed is one to
warn Colonial Inn or someone of the possible damage of an explosion
which subsequently occurred." The letter opinion then stated that,
because the defendant had been driving very slowly and the impact
was slight, it was impossible to say whether any damage would have
been visible to the exterior of the air-conditioning/heating unit
he struck. Also, because the unit was so low off the ground, the
defendant was unaware even that he struck it. Thus, the court
reasoned, the danger of a gas explosion involving (as yet unknown)
collection and ignition points was not reasonably foreseeable and
the defendant was entitled to summary judgment.
The plaintiff moved to reconsider. Relying in large measure
on Leann Johnson's deposition testimony, the plaintiff argued that,
given the force of the contact (as shown by the sound it made and
the dent that it left), the resultant harm was reasonably
foreseeable. Therefore, the defendant owed the plaintiff a duty to
exit his car, look for damage, and tell one of the plaintiff's
agents what had happened. The plaintiff argued that, had the
defendant inspected the scene, he would have noticed the damage and
realized he needed to alert the plaintiff.
At the hearing on the motion to reconsider, the plaintiff's
lawyer stated that counsel had finally managed to contact Robert
Reed and had sent Reed an affidavit that Reed signed and returned
but did not get notarized. Counsel requested that the court
consider the Reed affidavit and stated he would get it notarized.
The defendant's counsel received a copy of the affidavit and said
he had not seen it before. However, after the plaintiff's attorney
requested "mov[ing] forward with argument right now," the
defendant's attorney said he had "no objection to proceeding with
argument, and we can consider those facts with the understanding
that there is an original affidavit somewhere that will be
notarized and--and submitted to the court record."
Argument commenced. The plaintiff's attorney asserted that
Reed's affidavit tended to show that the explosion was a reasonably
foreseeable consequence of the collision. The trial judge
interjected that he did not have a copy of the affidavit. The
plaintiff's counsel quoted from the affidavit and completed his
argument, urging that the defendant breached his duties "to not hit
other people's property" and to notify someone of the collision.
Counsel continued that there was a genuine issue of fact whether
the defendant's conduct proximately caused the explosion.
After further argument, the trial judge stated that the
arguments here were essentially those raised before the original
ruling. The court denied the motion to reconsider and stated there
was no just reason to delay the enforcement or appeal of its order
(see 155 Ill. 2d R. 304(a)). The plaintiff timely appealed.
On appeal, the plaintiff argues that (1) the court erred in
concluding the defendant owed no duty to the plaintiff and (2)
whether the defendant's conduct proximately caused the explosion
cannot be decided as a matter of law. Both arguments hinge on the
plaintiff's assertion that the trial court misapplied the concept
of "reasonable foreseeability" that underlies both duty and
proximate cause. The defendant responds that he is entitled to
summary judgment on either ground because the explosion was not a
reasonably foreseeable consequence of his conduct.
Before delving into the merits, we address whether to consider
the affidavit of Robert Reed in deciding whether summary judgment
was proper. We decline to do so. Although the record is
admittedly less than clear, it shows that the plaintiff did not
even proffer Reed's affidavit until after it moved to reconsider
the grant of summary judgment. When the plaintiff sought to rely
in part on Reed's affidavit, the court had not yet been presented
with a copy; from the transcript of the hearing on the motion to
reconsider, we conclude that the judge did not have the affidavit
before him when he heard arguments. Moreover, the affidavit had
not yet been notarized. It appears from the judge's explanation of
his decision that he did not consider the Reed affidavit. Under
all the circumstances, we decline to consider evidence which was
not in proper form, was not submitted and could not have been
considered until after the grant of summary judgment, and appears
not to have been before the trial judge. See Rayner Covering
Systems, Inc. v. Danvers Farmers Elevator Co., 226 Ill. App. 3d
507, 510-11 (1992) (party may not expect trial court to consider
evidence not introduced until motion to reconsider summary
judgment). In any event, we do not believe our holding would
differ significantly were we to factor in the Reed affidavit.
Whether the court erred in granting summary judgment is a
question of law that we review de novo. In re Estate of Hoover,
155 Ill. 2d 402, 410-11 (1993). Summary judgment is proper if the
pleadings, depositions, and other matters on file show that there
is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. 735 ILCS 5/2--
1005(c)(West 1994). A court should not grant summary judgment
unless the movant's right to it is clear and free from doubt, and
the court must construe the evidence strictly against the movant
and liberally in favor of the nonmovant. Colvin v. Hobart
Brothers, 156 Ill. 2d 166, 170 (1993). The nonmovant need not
prove his case at this stage, but he must present some factual
basis that would arguably entitle him to judgment. Smith v. Tri-R
Vending, 249 Ill. App. 3d 654, 657 (1993).
In a negligence action, the plaintiff must plead and prove (1)
the existence of a duty owed by the defendant to the plaintiff; (2)
the breach of that duty; and (3) an injury proximately caused by
that breach. Ziemba v. Mierzwa, 142 Ill. 2d 42, 45 (1991); Ward
v. K Mart Corp., 136 Ill. 2d 132, 140 (1990). Here, the parties
dispute whether there is a genuine factual issue as to both the
first element, duty, and the third element, proximate cause.
We consider the duty issue first. The parties and the trial
court appear to have intermingled two possible duties or breaches
thereof--(1) the defendant's duty to drive safely to avoid
colliding with the building and (2) the defendant's alleged duty
to warn or inform the plaintiff after the collision. However, we
shall consider only the first of these possible duties because
nothing in the plaintiff's complaint alleges that the defendant had
a duty to warn or inform the plaintiff of the accident. The only
duty alleged in that complaint, or in the Lubranos' complaint as it
relates to the defendant, is the defendant's duty to use due care
to avoid the collision. As far as we can tell from the record, the
plaintiff waited until its motion to reconsider the judgment to
assert that there was any duty to warn. (It appears the only time
before the judgment that a party here even obliquely mentioned a
possible duty to warn was when the defendant's motion for summary
judgment attached a copy of Stash O'Neil's' complaint, which does
assert that the defendant owed such a duty to the plaintiff.)
The plaintiff never properly pleaded the existence of a duty
to warn. The defendant could not contest the existence of this
duty by way of his motion for summary judgment. The plaintiff may
not recover under a theory never set forth in its complaint, for,
as we have stated, proof without pleadings is as defective as
pleadings without proof. Estate of Welliver v. Alberts, 278 Ill.
App. 3d 1028, 1040 (1996). Thus, we consider whether the defendant
had a duty to avoid the collision but not whether he had any duty
to inform the plaintiff afterward. We conclude that the defendant
owed the plaintiff a duty of due care to avoid the initial contact.
The existence of a duty is a question of law and depends on
whether the defendant and the plaintiff stood in such a
relationship that the defendant is obliged to conform to a certain
standard of conduct for the benefit of the plaintiff. Ziemba, 142 Ill. 2d at 47; Widlowski v. Durkee Foods, 138 Ill. 2d 369, 373
(1990). To decide whether a duty exists in a particular case, a
court considers the foreseeability that the defendant's conduct may
injure another, the likelihood of an injury resulting, the burden
to the defendant of imposing a duty, and the consequences of
imposing this burden. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 452-53 (1992).
In finding that the defendant did not owe the plaintiff a
duty, the trial court relied on its conclusion that the explosion
was not a reasonably foreseeable consequence of the contact between
the car and the building. Although reasonable foreseeability is an
important consideration in the duty equation, we believe that the
trial court erred by using as its touchstone the foreseeability of
the particular injury or damages rather than the foreseeability of
an injury to the particular plaintiff. We believe the latter is
crucial to the legal determination of duty, while the former is
more appropriately considered in determining the factual issue of
proximate causation. True, the case law is less than perfectly
lucid or consistent in its treatment of the densely intertwined
ideas of duty, proximate causation, and reasonable foreseeability.
However, it appears that, because duty is based on the relationship
of the plaintiff and the defendant, that relationship, and not the
type of injury that resulted, is crucial.
Illinois courts have on the whole supported this view.
Although "reasonable foreseeability" is crucial to both duty and
proximate cause, courts must take care to keep duty and proximate
cause analytically independent by differentiating between "two
distinct problems in negligence theory--the unforeseen plaintiff
problem and the problem of the foreseeable injury resulting from
unforeseen means." Nelson v. Commonwealth Edison Co., 124 Ill.
App. 3d 655, 660 (1984). This approach is consistent with the
long-standing principle that the particular manner or method by
which the plaintiff is injured is generally not germane to the
determination of the existence of a duty. See Nelson, 124 Ill.
App. 3d at 660-63 (and cases cited therein). The general standards
we have recited focus on the preaccident relationship between the
parties and the foreseeability of an injury to the particular
plaintiff, not on the foreseeability of the actual injury or the
specific means by which it was brought about. This is true even
where courts have declined to impose a duty because certain
"freakish" or "fantastic" injuries could not reasonably have been
foreseen. In each case, what was "unforeseeable" was not merely
the particular injury, but the initial contact--the fact of injury
to the particular plaintiff.
Thus, in Cunis v. Brennan, 56 Ill. 2d 372 (1974), the
plaintiff, a passenger in a car, was injured when a collision with
another car threw him 30 feet onto a parkway, where he was impaled
on part of a drain pipe allegedly left there as a result of the
defendant municipality's negligence. The supreme court held that
the municipality owed the plaintiff no duty of due care.
Emphasizing the importance of analyzing the parties' relationship
(Cunis, 56 Ill. 2d at 374), the court concluded that it was not
reasonably foreseeable the alleged negligence should have brought
about the plaintiff's injury. Although the court observed that the
particular injury was not reasonably foreseeable, it also stressed
that the initial contact--and thus any injury to the particular
plaintiff from the protruding drain pipe--was "tragically
bizarre." Cunis, 56 Ill. 2d at 377. The "remote possibility of
the occurrence" did not give rise to a duty from the municipality
to the plaintiff. Cunis, 56 Ill. 2d at 377-78.
Cunis did not present a situation where the particular
plaintiff or his initial contact with the defendant was reasonably
foreseeable but the ultimate injury or damages were arguably not
so. Rather, that the misplaced drain pipe would cause any injury
to someone riding in a car 30 feet away was an example of " 'the
freakish and the fantastic.' " Cunis, 56 Ill. 2d at 378, quoting
W. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 27 (1953).
In Widlowski, the plaintiff, a nurse, alleged that the
defendant's employee was made delirious by nitrogen gas to which he
was exposed on the job; as a result, he was transported to the
hospital, where his delirium caused him to bite off the plaintiff's
finger. Refusing to find that the employer owed the plaintiff a
duty, the supreme court explained that it could not say that "the
risk of harm to [the] plaintiff, who was removed in time and place,
was reasonably foreseeable." Widlowski, 138 Ill. 2d at 374. The
court also explained that the likelihood of the initial harmful
contact (the bite) was small and that the burden of guarding
against such an occurrence was great because the employee could
have harmed anyone with whom he came into contact while he was
delirious. Widlowski, 138 Ill. 2d at 374-75.
In Ziemba, the plaintiff was riding a bicycle on a road when
he was hit by a truck exiting the defendant's driveway. The
supreme court refused to find that the defendant owed the plaintiff
a duty to keep his driveway from being obscured by foliage.
Emphasizing the importance of the relationship between the parties
in its duty inquiry (Ziemba, 142 Ill. 2d at 48), the court
explained that it was not reasonably foreseeable that the alleged
breach of duty would result in "this type of accident" (Ziemba, 142
Ill. 2d at 49). The court noted further that the obscured driveway
posed a danger to the plaintiff only because of the truck driver's
intervening negligent act. Ziemba, 142 Ill. 2d at 49-50. Thus,
Ziemba is consistent with the rule that there is no duty when the
plaintiff is not reasonably foreseeable.
Cases from other jurisdictions the defendant cites also
demonstrate that, where "unforeseeability" bars the imposition of
a duty, both the particular injury and the particular plaintiff
(i.e., the initial contact with the plaintiff) are "unforeseeable."
See Diamond State Telephone Co. v. Atlantic Refining Co., 205 F.2d 402 (3d Cir. 1953); Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928); Radigan v. W.J. Halloran Co., 196 A.2d 160
(R.I. 1963).
We believe that the relationship of the parties here was such
that the law could require the defendant to exercise due care on
behalf of the plaintiff. Focusing on the potential for injury
rather than on the specifics of the harm that did occur, we find
the duty problem is relatively simple. The defendant was a
motorist operating his vehicle in the vicinity of the plaintiff's
building. He had an obligation to use due care to avoid driving
his car into the building. The building was not remote in time or
space from the defendant (apparently it was all too close); the
collision itself was a simple result of the defendant's action and
had no intervening causes like the independent negligent acts of
the motorists in Cunis or Ziemba; and the specific types of duty
the complaint alleges--to keep a proper lookout, to apply brakes
when necessary, and generally to take care to avoid an accident--
are anything but unusual.
This is not a case involving an unforeseeable plaintiff, and
we find no policy considerations that would negate the ordinary and
routine duty of a motorist to drive his car carefully so as not to
cause other parties injury or property damage. The court erred in
holding that the defendant owed the plaintiff no duty. Whether the
unusual facts here absolve the defendant of liability is something
we now address under the rubric of proximate cause.
The plaintiff argues that proximate cause is a jury question
because there is a genuine issue of whether the damage to the
building was the natural and probable consequence of the
defendant's careless driving. The plaintiff maintains that there
is at least some evidence that the defendant's car struck the air-
conditioning or heating unit with great force. Thus, the plaintiff
asserts, the explosion was not inherently unforeseeable and
proximate cause should not be decided as a matter of law. The
defendant responds that the explosion was too bizarre to be a
natural and probable consequence of slowly backing a car into the
building. We conclude that the evidence on the issue is not so
one-sided that it entitles the defendant to summary judgment.
Whether an injury proximately resulted from the defendant's
breach of a duty is ordinarily a question of fact. Lee, 152 Ill. 2d at 454; Ward, 136 Ill. 2d at 156-57. Proximate cause consists
of (1) cause in fact--whether there is a reasonable certainty that
the defendant's actions caused the injury--and (2) legal cause--
whether the injury was of a type that was a reasonably foreseeable
result of the defendant's conduct. Lee, 152 Ill. 2d at 455-56;
Yager v. Illinois Bell Telephone Co., 281 Ill. App. 3d 903, 909
(1996). We agree with the plaintiff that the expert testimony of
the fire investigator and the fact of the collision itself provide
an evidentiary basis for cause in fact. The more difficult issue
is whether the plaintiff set forth a sufficient factual basis that
the injury was reasonably foreseeable. We believe it did so.
We cannot say as a matter of law that it was not reasonably
foreseeable that a collision between an automobile and the side of
a building could cause the sort of injury here. Construing the
evidence liberally in favor of the plaintiff, we see some basis to
conclude that the impact was substantial. The sound made a person
some distance off shift her attention toward the defendant.
Moreover, even a slow-moving car is a large instrumentality capable
of causing significant harm. The possibility that colliding with
a building will disrupt a gas line or create a fire hazard is not
so inherently farfetched as to merit the label "freakish" or
"fantastic." Gas lines and ignition sources such as appliances are
common features of buildings, including large buildings used for
residential purposes. Importantly, this case does not involve
the intervention of an unforeseeable third party as an intervening
or additional cause. It is at least fairly arguable that, once the
defendant's car hit the plaintiff's building, the sequence of
events that caused the explosion was set in motion with no further
action needed to bring about the injury.
Illinois courts are reluctant to deny liability where an
injury is merely indirect or surprising, even if an actor other
than the defendant helps to bring about the accident. Thus, in
Davis v. Marathon Oil Co., 64 Ill. 2d 380 (1976), the court upheld
a verdict for the plaintiff, who was injured by a gasoline
explosion at the defendant's service station. The plaintiff, who
was on the property to deliver gasoline, alleged that the
defendant's negligent storage of the gasoline caused an explosion
that occurred when the plaintiff exited the sales area, saw that
gasoline he had pumped was flowing onto the ground, and was injured
by the explosion as he tried to shut off his truck's pump. The
supreme court held that the jury could conclude the negligent
storage of the gasoline proximately caused the plaintiff's injury
even though the explosion also required the presence, in the sales
area, of a space heater that ignited the fumes when a breeze blew
them into the structure as the plaintiff opened the door. Davis,
64 Ill. 2d at 395-96.
In Bak v. Burlington Northern, Inc., 93 Ill. App. 3d 269
(1981), this court reversed summary judgment for the defendant on
one count of a complaint that alleged that the plaintiff's
decedent's death from an overdose of a painkilling drug was
proximately caused by the defendant's negligent maintenance of its
staircase. The plaintiff alleged that the defendant's negligence
caused the plaintiff's decedent serious injuries, without which she
would not have been taking the drug at all. Nine months passed
between the accident and the decedent's overdose. This court held
that the passage of time and the decedent's act of taking the
overdose did not mean that, as a matter of law, the defendant's
negligence did not proximately cause her death. Bak, 93 Ill. App.
3d at 271-72.
In Mangan v. F.C. Pilgrim & Co., 32 Ill. App. 3d 563 (1975),
the jury found that the defendant landlord's negligent upkeep of
its apartment building proximately caused injuries to the
plaintiff, a tenant who fell and was injured when a mouse jumped
out of her oven. The appellate court affirmed, explaining that the
landlord could reasonably foresee that the unexpected presence of
mice on the property could startle the plaintiff into having her
accident. Mangan, 32 Ill. App. 3d at 570.
As these cases illustrate, a "natural and probable"
consequence need not be "easily predictable" or "highly probable."
Neither a high degree of contingency nor a substantial lapse of
time between the negligent act and the injury establishes as a
matter of law that the former did not proximately cause the latter.
If the defendant's conduct is a substantial factor in bringing
about the injury, it is not necessary that the extent of the harm
or the exact manner in which it occurred could reasonably have been
foreseen. Blue v. St. Clair Country Club, 7 Ill. 2d 359, 364
(1955); Jefferson v. City of Chicago, 269 Ill. App. 3d 672, 676
(1995); Mangan, 32 Ill. App. 3d at 570; Restatement (Second) of
Torts 435(1)(1965). A negligence defendant must take the
plaintiff as he finds him, even if the plaintiff's "eggshell skull"
results in his suffering an injury that ordinarily would not be
reasonably foreseeable. W. Keeton, Prosser & Keeton on Torts 43,
at 291-92 (5th ed. 1984). Here, the evidence suggests that a
building rather than a person may have had an "eggshell skull."
That possibility alone does not foreclose liability for the injury.
The judgment of the circuit court of Winnebago County is
reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
INGLIS and HUTCHINSON, JJ., concur.
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