Filed 11/26/08              NO. 4-07-1044

                       IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

DEBORAH K. WINTERS, Administratrix of )     Appeal from
the Estate of KENNETH L. KELLER,       )    Circuit Court of
          Plaintiff-Appellant,         )    Jersey County
          v.                           )    No. 05L17
ROGER WANGLER,                         )
          Defendant-Appellee,          )    Honorable
          and                          )    Lois A. Bell,
ROGER D. SNIDER and JEANE WANGLER,     )    Judge Presiding.
          Defendants.                  )
_________________________________________________________________

          JUSTICE STEIGMANN delivered the opinion of the court:

          In July 2006, plaintiff, Deborah K. Winters,

administratrix of the estate of Kenneth L. Keller, filed a

complaint alleging that defendants Roger D. Snider, Roger Wangle-

r, and Jeane Wangler negligently caused an accident that resulted

in Keller's death.    In August 2006, Roger Wangler (hereinafter

Wangler) filed a motion to dismiss under section 2-619(a)(4) of

the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-619(a)(4)

(West 2004)), arguing that because the trial court had previously

granted Snider's motion to strike a portion of Winters' initial

complaint, Winters was "precluded from re-litigating" the same

issues against him.    In August 2007, the trial court granted

Wangler's motion, reaffirming its earlier ruling against Snider

that section 15-102 of the Illinois Vehicle Code (Vehicle Code)

(625 ILCS 5/15-102 (West 2004)) did not apply to this case and
finding that Winters failed to state a cause of action based on

an in-concert liability theory.

          Winters appeals, arguing that the trial court erred by

(1) granting Wangler's motion to dismiss and (2) ruling that

section 15-102 of the Vehicle Code did not apply.   We reverse and

remand for further proceedings.

                          I. BACKGROUND

          In April 2005, Winters filed a complaint, alleging, in

part, that in May 2004, Snider (1) negligently caused an accident

that resulted in Keller's death and (2) operated a tractor and

planter on a highway after sunset in violation of section 15-102

of the Vehicle Code (625 ILCS 5/15-102 (West 2004)).   In June

2005, Snider filed a motion to strike the portion of Winters'

complaint alleging that he operated the tractor and planter in

violation of section 15-102.   The trial court later granted

Snider's motion upon determining that section 15-102 of the

Vehicle Code did not apply because Snider's tractor and planter

were exempt under section 15-101 of the Vehicle Code (625 ILCS

5/15-101 (West 2004)).

          In July 2006, Winters filed a second amended complaint,

alleging that in May 2004 (1) Snider negligently caused an

accident that resulted in Keller's death (count I) and (2) Roger

and Jeane Wangler, while engaged in a "joint enterprise" with

Snider, negligently drove escort vehicles that contributed to


                               - 2 -
Keller's death (counts II and III, respectively).

          Winters included the following factual allegations in

her second amended complaint: (1) Keller died as a result of an

automobile accident involving all three defendants, who were

transporting farm equipment from one farm to another; (2) Snider

employed Wangler; (3) on May 9, 2004, at 9:05 p.m., Snider drove

his farm tractor while pulling an approximately 22-foot-wide

planter across a 24-foot-wide bridge; (4) at Snider's request,

Wangler drove Snider's truck as a "[l]ead [e]scort"; (5) Keller's

vehicle collided with the planter and farm tractor; and (6)

Wangler did not (a) have the proper signage required for a lead

vehicle, which negated his ability to warn oncoming traffic that

a wide load or oversized transport followed, (b) have adequate

lighting on his vehicle, (c) prevent the fatal collision, (d)

communicate "accurately" with Snider or the rear escort vehicle,

(e) advise Snider to cross the bridge only after the stoplight on

the bridge had stopped all oncoming traffic, and (f) maintain the

proper distance between his vehicle and the tractor.

          In August 2006, Wangler filed a motion to dismiss under

section 2-619(a)(4) of the Civil Code (735 ILCS 5/2-619(a)(4)

(West 2004)), arguing that because the trial court had previously

granted Snider's motion to strike the portion of Winters' initial

April 2005 complaint that alleged Snider operated a farm tractor

and planter on a highway after sunset, in violation of section


                              - 3 -
15-102 of the Vehicle Code, she was "precluded from relitigating"

the same issue against him.    In August 2007, the court granted

Wangler's motion, (1) reaffirming that section 15-102 of the

Vehicle Code did not apply and (2) finding that "there was no

duty alleged by [Winters] against [Wangler]."

       In September 2007, Winters filed a motion to reconsider.

In October 2007, Wangler filed a memorandum of law in response to

Winters' motion to reconsider, in which he stated the following:

                  "During the *** argument on the [m]otion

          for [r]econsideration, [Winters] argued the

          facts and read from portions of the deposi-

          tion of *** Wangler taken in this case.     By

          doing so, apparently [Winters] sought to

          prove to the [c]ourt that *** Wangler pro-

          vided 'substantial assistance' to *** Snider

          and therefore was liable to [Winters] based

          on 'in-concert liability.'     However, this

          [m]otion to [d]ismiss is based on the

          [c]omplaint on file, not on depositions.       For

          that reason, [Wangler] objected to this argu-

          ment.

                                 * * *

                  For purposes of the pending motion, the

          facts before the [c]ourt are found in the


                                 - 4 -
           pleadings.   It is inappropriate to argue

           facts outside the pleadings.    As argued by

           [Wangler], the [c]omplaint against [him] does

           not state a cause of action."

However, in the same memorandum, Wangler argued the following

facts--not included in the pleadings--to demonstrate that the

circumstances of this case did not support Winters' in-concert

liability theory:

           "The proximate cause of *** Keller's death is

           *** Keller's *** failure to observe the on-

           coming traffic, *** fail[ure] to take precau-

           tions for his own safety, *** failure to keep

           his own vehicle under control, and *** fail-

           ure to observe any of the warning signs that

           a reasonably careful person would observe."

In November 2007, the trial court denied Winters' motion to

reconsider.   (Snider and Jeane Wangler are not parties to this

appeal.)

           This appeal followed.

           II. WINTERS' CLAIM THAT THE TRIAL COURT ERRED
               BY GRANTING WANGLER'S MOTION TO DISMISS

           Winters argues that the trial court erred by granting

Wangler's motion to dismiss.    Specifically, Winters contends that

the court erred by determining that her second amended complaint

was legally insufficient because (1) she failed to allege that

                                - 5 -
Wangler owed Keller a duty and (2) section 15-102 of the Vehicle

Code did not apply to the tractor and planter.

          Prior to addressing the merits of Winters' contentions,

we emphasize that these contentions are separate and independent.

That is, whether section 15-102 of the Vehicle Code applies to

this case has nothing to do with whether a common-law duty under

an in-concert liability theory may also apply.   In addition,

Winters may make these claims either alternatively or conjunc-

tively.   Thus, although we conclude (for reasons explained later)

that section 15-102 of the Vehicle Code does not apply, that

conclusion does not preclude Winters from arguing a common-law

duty under an in-concert liability theory.

                 A. The Nature of Wangler's Motion

          Initially, we must decide the nature of the motion that

gave rise to the order we are reviewing.   When making a section

2-619(a) motion to dismiss, a defendant (for purposes of the

motion) admits the legal sufficiency of the complaint, yet

asserts the existence of an external defect or defense that

defeats the cause of action.   Burton v. Airborne Express, Inc.,

367 Ill. App. 3d 1026, 1029, 857 N.E.2d 707, 711 (2006); 735 ILCS

5/2-619(a) (West 2004).   Essentially, the defendant is saying in

such a motion, "Yes, the complaint was legally sufficient, but an

affirmative matter exists that defeats the claim."   See Smith v.

Waukegan Park District, 231 Ill. 2d 111, 121, __ N.E.2d __, __


                               - 6 -
(2008) ("a defendant moving for dismissal under section 2-

619(a)(9) otherwise admits the legal sufficiency of the plain-

tiff's cause of action"); see also Cwikla v. Sheir, 345 Ill. App.

3d 23, 29, 801 N.E.2d 1103, 1109 (2003) (a section 2-619 motion

assumes a cause of action has been stated, but asserts an affir-

mative matter that avoids the legal effect of the plaintiff's

claims).   This is why a section 2-619(a) motion is sometimes

referred to as a "Yes, but" motion.

           Conversely, in a section 2-615 motion, a party denies

the legal sufficiency of the complaint.   Northern Trust Co. v.

County of Lake, 353 Ill. App. 3d 268, 278, 818 N.E.2d 389, 398

(2004); 735 ILCS 5/2-615 (West 2004).   In other words, the

defendant in such a motion is saying, "So what?   The facts the

plaintiff has pleaded do not state a cause of action against me."

This is why a section 2-615 motion is sometimes referred to as a

"So what" motion.   See Worley v. Barger, 347 Ill. App. 3d 492,

494, 807 N.E.2d 1222, 1224 (2004) (noting that a section 2-615

motion challenges the legal sufficiency of the complaint on its

face).

           Here, despite Wangler's designation that his motion to

dismiss was brought under section 2-619(a)(4), it actually was a

section 2-615 motion to dismiss because Wangler essentially

asserted that Winters failed to allege facts in her second

amended complaint that showed Wangler owed Keller a duty, either


                               - 7 -
under the in-concert liability theory or pursuant to section 15-

102 of the Vehicle Code (625 ILCS 5/15-102 (West 2004)).

           Although Wangler improperly labeled his motion to

dismiss as a section 2-619(a)(4) motion, we will review the

substance of Wangler's motion under section 2-615 of the Civil

Code, the section under which it should have been filed.    See

Worley, 347 Ill. App. 3d at 494, 807 N.E.2d at 1224 (choosing to

analyze the defendant's section 2-619 motion to dismiss as if it

had been filed pursuant to section 2-615 because the defendant's

motion attacked the legal sufficiency of the complaint); see also

Loman v. Freeman, 375 Ill. App. 3d 445, 448, 874 N.E.2d 542, 545

(2006) (noting that the substance of a motion, not its label,

determines what it is).



                       B. Standard of Review

           A section 2-615 motion to dismiss presents the question

of whether the facts alleged in the complaint, viewed in the

light most favorable to the plaintiff, are sufficient to entitle

the plaintiff to relief as a matter of law.    Chandler v. Illinois

Central R.R. Co., 207 Ill. 2d 331, 348, 798 N.E.2d 724, 733

(2003).   When reviewing a section 2-615 motion, the trial court

must presume that the motion admits all well-pleaded facts and

all reasonable inferences that reasonably flow therefrom.

Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 320, 891 N.E.2d


                               - 8 -
839, 853 (2008).

           When ruling on a section 2-615 motion, the trial court

may consider only the allegations in the pleadings.     Hadley v.

Ryan, 345 Ill. App. 3d 297, 300-01, 803 N.E.2d 48, 52 (2003).

Further, the trial court should dismiss a cause of action only

when it is clearly apparent that no set of facts can be proved

that will entitle a plaintiff to recovery.    Hadley, 345 Ill. App.

3d at 300-01, 803 N.E.2d at 52.    Because a section 2-615 motion

raises issues of law, we review orders granting section 2-615

dismissals de novo.    Heastie v. Roberts, 226 Ill. 2d 515, 530-31,

877 N.E.2d 1064, 1075 (2007).

C. Winters' Claim That the Trial Court Erred by Finding That She
        Failed To Allege That Wangler Owed Keller a Duty

           Winters first contends that the trial court erred by

finding that she failed to allege that Wangler owed Keller a

duty.   Specifically, Winters claims that she included sufficient

facts to show that Wangler owed Keller a duty under an in-concert

liability theory.    We agree.

           "In-concert liability" is defined as follows:

           "For harm resulting to a third person from

           the tortious conduct of another, one is sub-

           ject to liability if he[:]

                (a) does a tortious act in concert with

           the other or pursuant to a common design with

           him, or

                                 - 9 -
                  (b) knows that the other's conduct con-

          stitutes a breach of duty and gives substan-

          tial assistance or encouragement to the other

          so to conduct himself, or

                  (c) gives substantial assistance to the

          other in accomplishing a tortious result and

          his own conduct, separately considered, con-

          stitutes a breach of duty to the third per-

          son."     (Emphasis added.)    Restatement (Sec-

          ond) of Torts §876, at 315 (1977).

          Thus, pursuant to the Restatement, Winters first had to

plead facts sufficient to show that a jury could find Snider

negligent--that is, Winters had to show that (1) Wangler provided

substantial assistance to Snider and (2) Wangler's individual

conduct, separately considered, constituted a breach of duty as

to Keller.   The elements of common-law negligence are duty,

breach, and injury caused by that breach.       Price v. Hickory Point

Bank & Trust, 362 Ill. App. 3d 1211, 1216, 841 N.E.2d 1084, 1088-

89 (2006).

          In her second amended complaint, Winters alleged, in

part, that Wangler, as Snider's employee, agreed to act as a lead

escort and was negligent for failing to "accurately" communicate

certain information to Snider, causing a "miscalculation."      Based

on this allegation, we conclude Winters pleaded sufficient facts


                                - 10 -
to show that a jury could find that Wangler (1) substantially

assisted Snider in committing a tortious act and (2) individually

breached a duty to Keller.

          We emphasize that our holding in this case should in no

way be construed to suggest drivers of escort vehicles may be

liable merely because they escorted a negligent driver of a farm

implement.   Instead, we merely conclude that Winter's allegation

that Wangler provided (1) inaccurate information and (2) substan-

tial assistance, if proved, could be construed by a jury suffi-

cient to find that Wangler acted "in concert" with Snider.    Thus,

Winters could arguably demonstrate duty, breach, and legal

causation as to Wangler under an "in-concert" liability theory.

Accordingly, Winters' allegation is sufficient to establish that

liability may attach and, therefore, survives a section 2-615

motion to dismiss.

    D. Winters' Claim That the Trial Court Erred by Finding
     That Section 15-102 of the Vehicle Code Did Not Apply

          Winters next contends that the trial court erred by

determining that section 15-102 of the Vehicle Code (625 ILCS

5/15-102 (West 2004)) did not apply to the tractor and planter.

We disagree.

          In her initial complaint, Winters alleged that Snider

was negligent in that he operated a tractor and planter more than

one-half hour after sunset in violation of section 15-102 of the

Vehicle Code (625 ILCS 5/15-102 (West 2004)).   Section 15-102 of

                              - 11 -
the Vehicle Code provides, in pertinent part, that a vehicle may

not exceed eight feet in width, with the following two excep-

tions:

               "(1) Loads of hay, straw[,] or other

          similar farm products provided that the load

          is not more than 12 feet wide.

               (2) Implements of husbandry being trans-

          ported on another vehicle and the transport-

          ing vehicle while loaded."    625 ILCS 5/15-

          102(b)(1), (b)(2) (West 2004).

However, section 15-101(b) of the Vehicle Code (625 ILCS 5/15-

101(b) (West 2004)) provides that the provisions of chapter 15 of

the Vehicle Code do not apply to implements of husbandry tempo-

rarily operated or towed upon a highway.    Implements of husbandry

are defined under the Vehicle Code as "vehicle[s] designed and

adapted exclusively for agricultural *** operations."     625 ILCS

5/1-130 (West 2004)).

          Here, Snider was temporarily towing the planter with

his tractor--as opposed to transporting it on his tractor--from

one farm to another.    Thus, we conclude that the tractor and

planter are implements of husbandry, which, under the circum-

stances, are not subject to the specific provisions of section

15-102 because they were being temporarily operated.     Accord-

ingly, section 15-102 of the Vehicle Code does not apply in this


                               - 12 -
case.

                          III. EPILOGUE

          We note that despite previously arguing in his memoran-

dum of law to the trial court that Winters' attempt to argue

facts outside the pleadings was inappropriate, Wangler did just

that in that same memorandum and again in his brief to this

court.

          The following is a list of facts not included in the

pleadings but included in Wangler's brief to this court: (1)

Wangler first saw Keller's vehicle when it was between 1 and 1

1/2 and 2 miles away; (2) Wangler immediately used the radio in

his truck to inform Snider of the oncoming vehicle; (3) Wangler

pulled his truck halfway into Keller's lane to warn him of the

presence of the tractor and planter; (4) Wangler alternated his

headlights as he was in Keller's lane in an effort to warn Keller

of the presence of the tractor and planter; (5) Wangler ran his

hazard lights; (6) Wangler checked all the lights on his vehicle

to insure that they were working before beginning the trip with

Snider; (7) Wangler's experience had been that the combination of

flashing his lights and pulling into the other lane had always

worked to warn oncoming traffic of the danger; (8) Wangler saw

that Keller's vehicle was not going to stop unless it collided

with his truck; (9) Wangler observed that Keller's vehicle did

not slow down; (10) Wangler moved out of Keller's lane; and (11)


                             - 13 -
Keller's vehicle did not stop until it collided with the tractor

and planter.

          All of the above-listed facts are contained in various

other documents, like depositions, none of which was properly

before (1) the trial court or (2) this court on appeal.    As

earlier pointed out, the focus of a motion to dismiss under

section 2-615 of the Civil Code must be upon the facts alleged in

the complaint to determine whether they state a cause of action.

Therefore, in resolving this case, we have disregarded the above-

mentioned averments.   We mention this error so that (1) counsel

will not repeat it and (2) the trial court will sua sponte

disregard these types of improper averments when ruling on future

section 2-615 motions.

                          IV. CONCLUSION

          For the reasons stated, we reverse the trial court's

dismissal under section 2-615 of the Civil Code and remand for

further proceedings in accordance with the views expressed

herein.

          Reversed and remanded for further proceedings.

          TURNER, J., concurs.

          COOK, J., specially concurs.




                              - 14 -
          JUSTICE COOK, specially concurring:

          Section 876 of the Restatement (Second) of Torts

discusses when one person can be liable for the tortious conduct

of another when that conduct harms a third person.    Section 876

does not expand negligence liability or create a new form of

liability but rather sets forth three instances where more than

one person can be a contributing tortfeasor for one negligent

act.

          To paraphrase section 876, a person is liable for harm

resulting to a third from the tortious conduct of another when

               (1) the parties acted together to commit

          the tort;

               (2) one party

                      (a) knows another party's

               conduct is tortious; and

                      (b) gives that party substan-

               tial assistance or encouragement;

               (3) one party's act substantially as-

          sisted another to commit a tort and that

          party's action by itself could have consti-

          tuted a tort.

          The first and third examples involve instances where

the party's own actions constituted a tort.   The second example

involves a case where the person did not commit an act that would


                               - 15 -
be a tort, but that person gave substantial assistance or encour-

agement to another party whose actions constituted a tort and

that person knew that the other person's conduct constituted a

tort.

          Substantial assistance alone is never enough to open a

person to liability.    If substantial assistance alone were

enough, the result would be "but for" liability; had it not been

for the person's substantial assistance, the injury would not

have occurred.   This would expand negligence liability well

beyond what section 876 of the Restatement describes.    The court

in Fortae v. Holland, 334 Ill. App. 3d 705, 778 N.E.2d 159

(2002), teetered on just that expansion.

          The Fortae court first approved of "in-concert liabil-

ity" jury instructions submitted to the jury noting that "Illi-

nois courts have not fully colored in the law regarding in-

concert liability ***.    There was no requirement that plaintiff

prove that [defendant's] actions fit under the standard defini-

tion of negligence, in addition to proving that [defendant]

violated a duty to not act in concert with a tortfeasor who

caused harm to plaintiff."     Fortae, 334 Ill. App. 3d at 716, 778

N.E.2d at 168-69.    While the jury instructions accurately summa-

rized subsections (b) and (c) of section 876, the instructions

were unnecessary as "in-concert" liability does not create a new

form of liability.     The court could have simply instructed the


                                - 16 -
jury based on the Illinois Pattern Jury Instructions, Civil, No.

10.01 (2006) defining negligence:

                  "When I use the word 'negligence' in these

            instructions, I mean the failure to do some-

            thing which a reasonably careful person

            would do, or the doing of something which a

            reasonably careful person would not do,

            under circumstances similar to those shown

            by the evidence.   The law does not say how

            a reasonably careful person would act under

            those circumstances.   That is for you to

            decide."

            After approving the jury instructions, the Fortae court

went on to describe how defendant was liable under subsection (b)

of section 876.    The court concluded that a driver escorting a

semitruck carrying a mobile home was liable under "in concert"

liability because the escort driver "(b) [knew] that [the

semitruck driver's] conduct constitute[d] a breach of duty and

[gave] substantial assistance or encouragement to the [semitruck

driver]."    Restatement (Second) of Torts, §876(b), at 315 (1977).

 While the Fortae court claimed to support the idea that "in-

concert liability is not a panoply for liability whenever one

party's actions would not have occurred but for the actions of

another," the court went on to find the escort driver liable


                                - 17 -
merely for giving the semitruck driver "substantial assistance."

          The first problem with Fortae's reasoning is that the

court essentially determined that it was the escort driver's role

that gave rise to "substantial assistance."    The court stated:

               "[P]laintiff presented evidence that Holland

          [(the escort driver)] gave substantial assis-

          tance to Akers [(the semitruck driver)].    The

          nature of the act of negligently driving is

          directly connected to the relationship be-

          tween Holland and Akers.     Holland's relation

          to the other (Akers) as an escort vehicle

          weighs in favor of the assistance being sub-

          stantial.   Akers' testimony that he had

          previously warned Holland on the radio that

          he could not make abrupt stops also indi-

          cates a state of mind on the part of

          Holland which supports a finding of sub-

          stantial assistance.   In addition, Holland's

          presence was necessary for the commission of

          the tort, and indeed, he was physically in-

          volved in the traffic accident.    Therefore,

          the jury had sufficient evidence to conclude

          that Holland substantially assisted Akers in

          acting negligently."   (Emphasis added.)


                              - 18 -
          Fortae, 334 Ill. App. 3d at 720, 778 N.E.2d

          at 171-72.

The court found substantial assistance not because the escort

driver did something beyond escorting the semitruck driver.     The

court found substantial assistance because he was the escort

driver and part of the accident.

          The bigger issue is that the Fortae court failed to

address whether the escort driver knew that the semitruck driver-

's conduct constituted a breach of duty.     The court concluded the

jury had "sufficient evidence to conclude that Holland substan-

tially assisted Akers in acting negligently."     Fortae, 334 Ill.

App. 3d at 720, 778 N.E.2d at 172.     Substantial assistance by

itself is not enough.   Under subsection (b) of section 876, the

court must also show that when the escort driver was substan-

tially assisting the semitruck driver, the escort driver knew

that the semitruck driver's conduct constituted a breach of duty.

Ultimately, the court found that "but for" the escort driver's

"act" of failing to prevent the semitruck driver from driving too

closely, the harm would not have resulted.     This expansion of

vicarious liability was never intended under section 876.

          In the two Illinois cases cited in Fortae, Wolf v.

Liberis, 153 Ill. App. 3d 488, 505 N.E.2d 1202 (1987), and Umble

v. Sandy McKie & Sons, Inc., 294 Ill. App. 3d 449, 690 N.E.2d 157

(1998), the courts recognized that "in-concert" liability did not


                              - 19 -
expand liability to include "but for" liability.    The Fortae

court, while acknowledging Wolf and Umble, failed to follow their

reasonings.

          In Umble, the court noted that the defendant's acts of

repairing a tire for an obviously intoxicated person who injured

another did not qualify for in-concert liability.    The court

noted that the act of repairing the tire was not "inherently

wrongful" and the repair man "did not actively encourage" the

intoxicated person to engage in wrongful activity.    Umble, 294

Ill. App. 3d at 452, 690 N.E.2d at 159.   In Wolf, the court

recognized that the defendant's act of getting intoxicated and

causing her fiancé to follow her as she drove home did not make

her liable when, after she was no longer with her fiancé, he was

involved in a car accident in his own vehicle that killed a third

person.   While the injuries to the third persons in both of these

cases would not have happened "but for" the acts of the defen-

dants, that alone should not open the defendants to liability.

          To avoid inappropriately expanding negligence liabil-

ity, a person who provides substantial assistance to one who

commits a tort may also be liable only if that person knew the

other was committing the tort or that person's substantial

assistance by itself constituted a breach of duty.

          Plaintiff may state a cause of action in this case if

plaintiff alleges facts indicating the escort driver did some-


                              - 20 -
thing that a reasonable escort driver would not have done.

Plaintiff does not state a cause of action, however, if plaintiff

simply alleges that the escort driver provided substantial

assistance.




                             - 21 -
