                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                       Foreman v. Gunite Corp., 2012 IL App (1st) 091644




Appellate Court            ROBIN R. FOREMAN, Plaintiff-Appellant, v. GUNITE
Caption                    CORPORATION, a Delaware Corporation, Defendant-Appellee and
                           Third-Party Plaintiff (Dedicated Service, Inc., and Distribution Services,
                           Inc., Third-Party Defendants).



District & No.             First District, Sixth Division
                           Docket No. 1-09-1644


Rule 23 Order filed        March 9, 2012
Rule 23 Order
withdrawn                  May 16, 2012
Opinion filed              June 8, 2012


Held                       In an action for the injuries suffered by plaintiff truck driver when his
(Note: This syllabus       truck rolled over while hauling a load for defendant, the entry of
constitutes no part of     summary judgment for defendant based on the finding that there were no
the opinion of the court   genuine issues of material fact and that plaintiff could not establish that
but has been prepared      defendant proximately caused plaintiff’s injuries was reversed, since there
by the Reporter of         was an issue of fact as to whether defendant caused the accident by
Decisions for the          loading the trailer with pallets down the middle and at half capacity in a
convenience of the         manner that resulted in the truck rolling over.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 06-L-7740; the Hon.
Review                     Eileen M. Brewer, Judge, presiding.


Judgment                   Reversed; cause remanded.
Counsel on                  William T. Cacciatore and Eileen J. McCabe, both of Rockford, for
Appeal                      appellant.

                            Langhenry, Gillen, Lundquist & Johnson, LLC, of Joliet (Stacy K. Shelly,
                            Troy A. Lundquist, and Mohammed Nofal, of counsel), for appellee.


Panel                       JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
                            Presiding Justice R. Gordon and Justice Garcia concurred in the judgment
                            and opinion.



                                               OPINION

¶1          Plaintiff, Robin Foreman, appeals the trial court’s order granting summary judgment in
        favor of defendant, Gunite Corporation, on the issue of proximate cause in the underlying
        negligence action. Plaintiff contends the trial court erred in finding that there were no
        genuine issues of material fact and that he could not establish that defendant proximately
        caused his injuries as a matter of law. Based on the following, we reverse and remand for
        further proceedings.

¶2                                                FACTS
¶3           According to plaintiff’s complaint, on May 18, 2001, he was employed as a truck driver
        by Distribution Services, Inc. (DSI),1 to transport a load from defendant’s Illinois facility to
        its Indiana facility. While traveling eastbound on Interstate 290 on the ramp for southbound
        Interstate 294, the load in plaintiff’s trailer shifted causing the truck to roll over, resulting in
        injuries to plaintiff. Plaintiff alleged that defendant failed to properly clean, load, and tie
        down, fasten, or otherwise secure the items in the truck. Defendant responded to plaintiff’s
        complaint by denying the allegations and asserting the affirmative defenses of contributory
        negligence and lack of joint and several liability.
¶4           In his deposition, plaintiff testified he had no recollection of the accident because of a
        brain injury that he sustained. Plaintiff, however, recalled that his truck was loaded with
        pallets at half of the truck’s capacity and that those pallets were loaded down the middle of
        the truck. A bill of lading confirms plaintiff’s testimony as to the weight of the haul. Plaintiff
        further testified at his deposition that he did not recall ever having his truck loaded with
        pallets down the middle prior to the date in question. At the time of the accident, plaintiff had
        been driving the route between defendant’s facilities approximately five to six times per


                1
                  Dedicated Service, Inc. (Dedicated), was the sister company of DSI. Dedicated leased the
        drivers through DSI.

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     week for one year. Plaintiff never raised any safety complaints against defendant. Plaintiff
     acknowledged that it was his obligation as a driver to inspect his load prior to leaving a
     facility. Specifically, plaintiff would ensure there was no loose material and that the floor of
     the truck was clean. Plaintiff did not recall inspecting the load on the date in question;
     however, he assumed that he did. Plaintiff’s first memory following the accident was in the
     hospital. Plaintiff received traffic tickets due to the accident to which he pled guilty and paid
     related fines.
¶5       Illinois State Trooper Anthony Wise submitted an affidavit averring that he had no
     independent recollection of the accident and his testimony would be based on the traffic
     accident report that he authored upon responding to the crash, in which he provided that “the
     driver stated while traveling on the s/b ramp to I-294 the trailer started leaning to the side.
     He lost control striking the sound wall on the right shoulder. This caused the truck tractor
     semi-trailer to overturn resting on its right side.”
¶6       Joseph Grossman testified at his deposition that he was a truck driver for DSI at the time
     in question and also drove between defendant’s facilities. Defendant filed a motion to strike
     Grossman’s deposition; however, the trial court never ruled on the motion. Grossman
     testified that, on the morning in question, defendant’s employees loaded all of the trucks,
     including plaintiff’s and Grossman’s, with half loads, placing the pallets in a straight line
     down the middle of the truck. Grossman had never hauled a truck loaded in the same manner
     prior to that date. According to Grossman, loading a truck in that manner without any
     securement could cause a load to shift “just going down the road.” On the date of the
     accident, Grossman found that his truck was leaning when he arrived at defendant’s Indiana
     facility. In addition, two other drivers that arrived before Grossman had trucks that were
     leaning so severely that, when docked next to each other, the trailers were touching.
     Grossman observed that those drivers’ loads had shifted inside of the trucks. Grossman
     testified that he informed his supervisor that the only reason plaintiff’s truck rolled over was
     because the items were loaded down the middle of the truck, adding that Grossman’s load
     had shifted on that date as well.
¶7       Following plaintiff’s accident, DSI formed an investigation committee, which included
     James Erickson, DSI’s safety director; Robert Wiest, DSI’s operations manager and
     plaintiff’s supervisor; and Mike Zezza, DSI’s vice president of operations. After reviewing
     photographs of the scene and plaintiff’s truck, consulting the traffic accident report, and
     speaking to plaintiff and other drivers with trucks loaded at the same time, the committee
     concluded that the cause of the accident was due to driver error resulting from excessive
     speed. A letter indicating the committee’s conclusion was written by Weist two years after
     the accident.
¶8       Erickson testified at his deposition that a driver is responsible for inspecting and securing
     his load and driving in a safe and reasonable manner. Erickson did not believe the accident
     was caused by a load shift or defendant’s error. Erickson testified that plaintiff was hired
     despite having four personal speeding tickets.
¶9       Wiest testified at his deposition that a driver is responsible for ensuring a load complies
     with weight restrictions and that the trailer is clean and free from any and all debris.


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       According to Wiest, a driver could ask that his truck be reloaded if he felt it was not safely
       loaded. Wiest testified that he spoke to plaintiff, who stated that his load shifted and caused
       the accident.
¶ 10       Zezza testified at his deposition that it is a driver’s responsibility to use the most
       appropriate load-securing method. Zezza testified that plaintiff voluntarily quit driving for
       DSI on October 18, 2000. Prior to leaving, plaintiff had no safety issues indicated on his
       record. Plaintiff returned to his employment with DSI sometime thereafter. According to
       Zezza, plaintiff ultimately was terminated following the accident for operating a company
       vehicle in an unsafe manner. Zezza, however, could not be sure that excessive speed was the
       sole factor in plaintiff’s accident.
¶ 11       The trial court granted summary judgment in favor of defendant, finding that plaintiff
       could not identify the cause of his accident and there were “a number of inferences that could
       be drawn” as to the cause of the truck rollover. The trial court subsequently denied plaintiff’s
       motion to reconsider, including language pursuant to Illinois Supreme Court Rule 304(a)
       (eff. Feb. 26, 2010) such that the summary judgment order was “the final judgment with no
       just reason to delay enforcement or appeal.”

¶ 12                                         DECISION
¶ 13        Summary judgment is proper where there are no genuine issues of material fact and the
       moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2000).
       When considering a motion for summary judgment, a court must consider all of the evidence
       strictly against the movant and in a light most favorable to the nonmoving party. General
       Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284, 769 N.E.2d 18 (2002). We review a
       trial court’s grant of summary judgment de novo. McNamee v. State, 173 Ill. 2d 433, 438,
       672 N.E.2d 1159 (1996).
¶ 14        Proximate cause is an essential element of a negligence claim that, if not proven, will
       prevent the plaintiff from establishing a prima facie case. Bermudez v. Martinez Trucking,
       343 Ill. App. 3d 25, 29, 796 N.E.2d 1074 (2003). Although proximate cause generally is an
       issue of fact, if the alleged facts show that plaintiff “would never be entitled to recover,
       proximate cause can be determined by a court as a matter of law.” Strutz v. Vicere, 389 Ill.
       App. 3d 676, 678-79, 906 N.E.2d 1261 (2009). At the summary judgment stage, a plaintiff
       is not required to prove his case; however, he must present evidence to support the cause of
       action. Id. at 678. “Liability cannot be predicated on conjecture; rather, proximate cause is
       established when there is reasonable certainty that the defendant’s acts or omissions caused
       the injury.” Id. at 679.
¶ 15        Proximate cause may be established through circumstantial evidence so long as “the
       circumstances are so related to each other that it is the only probable, and not merely
       possible, conclusion that may be drawn.” Keating v. 68th & Paxton, L.L.C., 401 Ill. App. 3d
       456, 473, 936 N.E.2d 1050 (2010). Accordingly, “where the proven facts demonstrate that
       the nonexistence of the fact to be inferred appears to be just as probable as its existence, then
       the conclusion that exists is a matter of speculation, surmise, and conjecture, and the trier of
       fact cannot be permitted to make that inference.” Id.

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¶ 16       The question before us is whether the facts alleged by plaintiff “affirmatively and
       positively” showed with “reasonable certainty” that defendant’s method of loading the haul
       down the middle of plaintiff’s truck caused the truck to tip over resulting in plaintiff’s
       injuries. We conclude that plaintiff provided sufficient facts to state a prima facie case.
       Viewing the pleadings, depositions, and affidavits in a light most favorable to plaintiff, we
       find that the evidence established that the accident was probably, not merely possibly, caused
       by the leaning of plaintiff’s truck as a result of the haul having been loaded at half capacity
       down the middle of the truck. Defendant did not present any evidence suggesting the road
       conditions were a factor in the accident or that plaintiff had a history of recklessly driving
       his truck. Rather, defendant solely relied on DSI’s internal conclusion, without physically
       having investigated the crash sight or the truck, that the accident was caused by plaintiff’s
       excessive speed. Erickson, Wiest, and Zezza were not truck drivers and had no accident
       reconstruction education, training, or knowledge. Moreover, there were no witnesses to the
       crash to support an inference that the accident resulted from driver error.
¶ 17       In contrast, Illinois State Trooper Wise attested that, based on review of his accident
       report, plaintiff informed him that the truck began leaning to one side, which forced plaintiff
       to lose control and caused the truck to roll over. Plaintiff’s statement qualifies as an excited
       utterance admissible as evidence of proximate cause. Mangan v. F.C. Pilgrim & Co., 32 Ill.
       App. 3d 563, 574, 336 N.E.2d 374 (1975). At his deposition, plaintiff testified that, although
       he did not recall the details surrounding the accident, he did recall that his truck was loaded
       with pallets down the middle to half capacity for the first time in his career. The bill of lading
       confirmed his truck was loaded at half capacity. Grossman further confirmed that all of the
       trucks were loaded on the date in question down the middle and that his truck, along with
       two others, experienced leaning due to shifting loads. We recognize that defendant filed a
       motion to strike Grossman’s deposition; however, defendant failed to obtain a ruling on its
       motion and, therefore, any objection thereto has been waived. Woolums v. Huss, 323 Ill. App.
       3d 628, 633, 752 N.E.2d 1219 (2001). Additionally, although it is unclear from the record
       when the complaint was lodged, Wiest testified at his deposition that plaintiff reported that
       his load shifted and caused the accident.
¶ 18       Contrary to defendant’s repeated inferential argument, plaintiff is not barred from
       presenting a prima facie case on the issue of proximate cause merely because he does not
       remember the accident. Essentially, under defendant’s argument, a plaintiff may never bring
       a negligence claim if he does not remember the circumstances surrounding the event because
       the proximate cause argument would necessarily be based on surmise and conjecture.
¶ 19       We find that Bermudez and Strutz, as relied upon by the trial court in granting summary
       judgment and by defendant on appeal, are distinguishable, as is Majetich v. P.T. Ferro
       Construction Co., 389 Ill. App. 3d 220, 906 N.E.2d 713 (2009). In Bermudez, this court
       concluded that “there [was] a lack of any identifiable cause in the record for [the] plaintiff’s
       accident.” Bermudez, 343 Ill. App. 3d at 33. The plaintiff in Bermudez alleged that he lost
       control of his truck and collided with a barrier wall because the defendant was asleep instead
       of monitoring the plaintiff’s driving. Id. at 30. The plaintiff, however, had no recollection of
       the accident and there was no other evidence presented demonstrating how the accident
       happened or why the plaintiff lost control. Id. at 27. Consequently, this court held that it was

                                                  -5-
       reasonable to conclude that any number of things caused the accident besides lack of
       supervision. Id. at 31-32. Similarly, there was no evidence presented as to what caused the
       plaintiff in Strutz to fall down the stairs in the defendant’s apartment building. Strutz, 389
       Ill. App. 3d at 681. The plaintiff died shortly thereafter. There were no witnesses to the fall.
       Id. at 680. An architect averred that the steps were dangerous, but there was testimony that
       the plaintiff had health conditions and was walking down the stairs backwards. Id. This court
       concluded that the plaintiff’s statement that he “fell down over the railing” did not provide
       an explanation for the cause of the fall and, thus, could not create a genuine issue of material
       fact as to causation. Id. at 681. In Majetich, the plaintiff fell in the defendant’s parking lot
       and later died. The plaintiff’s estate alleged the defendant’s were negligent in maintaining
       the lot. Majetich, 389 Ill. App. 3d at 224. There were no witnesses to the plaintiff’s fall and
       the only thing she allegedly said after falling was she noticed a high step, reached for a pole,
       and fell. Id. at 227. The plaintiff, however, had preexisting health conditions. Id. The court
       concluded that there was no evidence presented from which it could be inferred that the
       defendant caused the plaintiff’s injuries. Id.
¶ 20        Here, in contrast, there was evidence presented that defendant loaded plaintiff’s truck
       down the middle of the trailer and at half capacity; that the truck was loaded in that manner
       for the first time on the date in question; that the truck was leaning just prior to the accident;
       and that plaintiff suffered injuries as a result of the truck rolling over. In sum, we find there
       is an issue of fact as to whether defendant proximately caused plaintiff’s accident and
       injuries.

¶ 21                                      CONCLUSION
¶ 22      We conclude that plaintiff’s complaint presented a triable issue of fact and, consequently,
       we reverse the trial court’s order granting summary judgment in favor of defendant.

¶ 23       Reversed; cause remanded.




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