                          NO. 4-06-0340        Filed 5/2/07

                     IN THE APPELLATE COURT

                              OF ILLINOIS

                         FOURTH DISTRICT

JASON A. SHANK,                         )    Appeal from
          Plaintiff-Appellant,          )    Circuit Court of
          v.                            )    Champaign County
H.C. FIELDS,                            )    No. 02L20
          Defendant,                    )
          and                           )    Honorable
CHAMPAIGN ASPHALT COMPANY,              )    Michael Q. Jones,
          Defendant-Appellee.           )    Judge Presiding.
_________________________________________________________________

          JUSTICE COOK delivered the opinion of the court:

          Plaintiff, Jason A. Shank, appeals the circuit court's

entry of summary judgment in favor of defendant Champaign Asphalt

Company (Champaign Asphalt).    We affirm.

                          I. BACKGROUND

          On May 25, 2001, Champaign Asphalt was doing road-

construction work on Interstate Highway 74, near exit 192, in

Champaign County, Illinois.    Champaign Asphalt's contract with

the Illinois Department of Transportation (IDOT) incorporated

IDOT's standard specifications, one of which was that all lanes

of traffic shall be open on any legal holiday period, including

the Friday before Memorial Day, beginning at 3 p.m.    May 25,

2001, was the Friday before Memorial Day.    A major multivehicle

accident occurred on that date at approximately 3:35 p.m.     Only

one of the highway's right two lanes of traffic was open.     The

reason for the delay was that conveyor-type equipment being used
to remove debris from the highway, an "Athey loader," unexpect-

edly broke down.

           At the time of the accident, traffic, which was re-

quired to merge from two lanes to one lane, was backed up for

1.34 miles.   Rex A. Nichols, driving a semi-truck with a 40,000-

pound load, struck the line of vehicles, hitting the car in which

plaintiff was a passenger and the car driven by defendant H.C.

Fields.   Nichols had been driving about 57 miles per hour and,

according to witnesses, did not reduce his speed before colliding

with the vehicles.   The road was level and the weather was clear.

Nichols knew in advance that traffic would be stalled due to road

construction; he had driven that same stretch of highway three

times in the last two months and he was warned over his radio an

hour in advance.   The proper traffic-control devices were in

place for the lane closure.   Cautionary road-construction signs

indicated an upcoming lane merger in three miles and two miles,

respectively.   Lane-closure signs were also one-half mile before

the construction zone.

           Plaintiff was seriously injured in the accident.

Plaintiff's parents entered into a settlement agreement with

Nichols and his employer in the amount of $427,500.   Subse-

quently, upon reaching the age of majority, plaintiff brought

this action against Champaign Asphalt.   Count I, sounding in

negligence, alleged that Champaign Asphalt failed in its duty to


                               - 2 -
reopen all lanes of traffic by 3 p.m., resulting in the injury to

plaintiff.    Count II, sounding in contract, alleged that plain-

tiff was a third-party beneficiary of the contract between IDOT

and Champaign Asphalt requiring that all lanes of travel be open

from 3 p.m. on May 25, 2001, to midnight on May 28.

            IDOT had imposed a monetary sanction for a lane closure

the weekend of May 11-13.    A May 24 memo states that the reason

for the sanction was that Champaign Asphalt was given the oppor-

tunity to work Saturday to remove the lane closure and declined

to do so.    In a May 23 memo, IDOT complained that Champaign

Asphalt worked after dark on Friday, May 18, and did not remove

traffic control and open the lane until 9:30 p.m.    The memo also

discussed a May 3 incident, where Champaign Asphalt had worked 45

minutes after dark and been warned that work after dark would not

be paid for.    "It would be better to quit for the day, and

discard any asphalt, than to risk an accident or injury."      The

memo further stated, "It had been previously discussed that, in

extreme circumstances, if the lanes could not be opened by 3:00

p.m. on Friday, Champaign Asphalt would be allowed to work on

Saturday to remove hazards and open the lane."

            Champaign Asphalt filed a motion for summary judgment.

The trial court granted the motion, stating:

            "The day was clear; IDOT did have the re-

            quired warning signs posted; Mr. Nichols had


                                - 3 -
          been down this road before and was, should

          have been aware of the construction work;

          Mr. Nichols didn't slow down, but plowed

          into a stationary car.   These things, I think,

          are not in dispute; and I believe they add

          to the conclusion that the Court is compelled

          to draw, which is the alleged negligence of

          Champaign Asphalt did nothing more than

          create a condition making this accident possi-

          ble; and the intervening negligence of Mr.

          Nichols broke that causal chain; and therefore,

          it was the sole proximate cause."

The court also stated that the facts and the inferences to be

drawn therefrom failed to demonstrate duty or breach of duty.

Plaintiff appeals.

                           II. ANALYSIS

          Summary judgment is proper if, when viewed in the light

most favorable to the nonmoving party, the pleadings, deposi-

tions, admissions, and affidavits on file demonstrate that there

is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.    735 ILCS 5/2-

1005(c) (West 2004).   "To succeed in an action for negligence, a

plaintiff must prove facts that establish the existence of a

duty, a breach of the duty, and an injury to the plaintiff [that]


                               - 4 -
was proximately caused by the breach."     Hills v. Bridgeview

Little League Ass'n, 195 Ill. 2d 210, 228, 745 N.E.2d 1166, 1178

(2000).

                              A. Duty

          As to count I, plaintiff argues that it is foreseeable

that accidents will occur when traffic lanes are closed, and

therefore Champaign Asphalt had a duty to have the lane open.

          Whether a duty of care exists is a question of law,

which must be resolved by the court.     O'Hara v. Holy Cross

Hospital, 137 Ill. 2d 332, 337, 561 N.E.2d 18, 20 (1990).       When

"considering whether a duty exists in a particular case, a court

must weigh the foreseeability of the injury, the likelihood of

the injury, the magnitude of the burden of guarding against [the

injury,] and the consequences of placing that burden on the

defendant."   Gouge v. Central Illinois Public Service Co., 144

Ill. 2d 535, 542, 582 N.E.2d 108, 112 (1991); Kirk v. Michael

Reese Hospital & Medical Center, 117 Ill. 2d 507, 526, 513 N.E.2d

387, 396 (1987).   "[F]oreseeability alone provides an inadequate

foundation upon which to base the existence of a legal duty."

Ward v. K mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226

(1990).

          The issues of duty and proximate cause are interre-

lated, and in many ways, it is possible to deal with most of the

issues that arise in a negligence case in terms of duty.    W.


                               - 5 -
Keeton, Prosser & Keeton on Torts §53, at 356 (5th ed. 1984).          In

fact, approaching negligence cases from the duty prong may be

preferable because such an approach directs the court's attention

to policy issues that determine the extent of the original

obligation and away from the "mechanical" sequence of events that

goes to make up causation in fact.       W. Keeton, Prosser & Keeton

on Torts §42, at 274 (5th ed. 1984).

           Many Illinois cases have refused to impose a duty in

situations where an accident was foreseeable.      It is not a breach

of duty to supply electricity to a community knowing that, over

time, electrocution is likely.    "The benefits of electricity

outweigh the disadvantages."     Tinder v. Illinois Power Co., 325

Ill. App. 3d 606, 610, 758 N.E.2d 483, 487 (2001).      Employers do

not have the duty to insure that their employees working long

overtime hours drive home safely and sufficiently rested.      The

burden of placing that duty on employers would be enormous and

outweigh any benefits.    Behrens v. Harrah's Illinois Corp., 366

Ill. App. 3d 1154, 1157-58, 852 N.E.2d 553, 556 (2006).      Munici-

palities are not required to build medians that would be suffi-

cient to prevent a drunk driver from crossing over into oncoming

traffic.   "[T]he magnitude of guarding against this injury and

the consequences of placing that burden on defendant would be too

great."    In re Estate of Elfayer, 325 Ill. App. 3d 1076, 1082,

757 N.E.2d 581, 586 (2001).    A utility owes no duty to insure


                                 - 6 -
that if an automobile leaves the traveled portion of a roadway

and strikes a utility pole, the pole will fall away from the

highway.    Gouge, 144 Ill. 2d at 544, 582 N.E.2d at 112.

            Road-construction projects make travel conditions more

dangerous for motorists, and accidents are certainly foreseeable.

But what is the alternative?    Not repairing the roads?    Com-

pletely closing any highway that is undergoing repairs?      The

magnitude of the burden of preventing reckless drivers from

causing harm and the consequences of placing that burden on the

defendant doing the work justify a finding of no duty in this

case.    Certainly highway authorities have a duty to act reason-

ably in preventing harm to the public, even harm caused by third-

party negligent drivers.    Champaign Asphalt complied with that

general duty here, by posting all the required warning signs.

Plaintiff argues for an absolute specific duty that all lanes be

open by 3 p.m.    Champaign Asphalt was required by its contract to

attempt to have all lanes open by 3 p.m., but Champaign Asphalt

would not have acted reasonably if it had opened the lanes before

they were ready.    Under plaintiff's theory, Champaign Asphalt had

no duty a minute before 3 p.m. but had a duty a minute after 3

p.m.    A court's determination whether a duty exists should not be

so uncertain.    The provisions at issue here should not make

Champaign Asphalt liable for every accident that might have

occurred after 3 p.m.    We may consider the provisions of the


                                - 7 -
contract in determining the standard of care, but they are not

controlling in our determination whether a legal duty exists.

                              B. Cause

          Plaintiff argues that not opening the second lane by

3 p.m. was the proximate cause of his injury.

          Proximate cause has two components:    (1) cause in fact

and (2) legal cause.   First Springfield Bank & Trust v. Galman,

188 Ill. 2d 252, 257-58, 720 N.E.2d 1068, 1072 (1999).     "Cause in

fact" requires the plaintiff to show that defendant's negligence

was the actual cause of his injury; "but for the defendant's

conduct, the accident would not have occurred."      McCraw v.

Cegielski, 287 Ill. App. 3d 871, 873, 680 N.E.2d 394, 396 (1996).

"Cause in fact" is not enough to impose liability.     The fact that

an accident would not have happened, but for a child's request

that her mother drive her to school, is not enough to impose

liability on the child.    Tinder, 325 Ill. App. 3d at 609, 758

N.E.2d at 486.   There must also be "legal cause."

          "Legal cause" can be established only if a defendant's

acts are "'so closely tied to the plaintiff's injury that he

should be held legally responsible for it.'"    Simmons v. Garces,

198 Ill. 2d 541, 558, 763 N.E.2d 720, 732 (2002), quoting McCraw,

287 Ill. App. 3d at 873.   "The question is one of public policy--

How far should a defendant's legal responsibility extend for

conduct that did, in fact, cause the harm?"     Young v. Bryco Arms,


                                - 8 -
213 Ill. 2d 433, 446, 821 N.E.2d 1078, 1086 (2004).   In Young,

the supreme court held that the defendants' lawful manufacture

and sale of handguns was not the legal cause of harm brought

about by the intervening criminal acts of third parties.   Young,

213 Ill. 2d at 454-55, 821 N.E.2d at 1090-91.   Although a police

officer's conduct in following a suspect may have served as the

impetus ("cause in fact") for the suspect to flee the scene,

there was no "legal cause" where the officer was stuck in traffic

20 to 25 cars behind the suspect, keeping a safe distance and

driving at a constant speed, when the suspect drove up onto the

sidewalk and struck the plaintiff.    Wade v. City of Chicago, 364

Ill. App. 3d 773, 784, 847 N.E.2d 631, 641 (2006).

          The cases have distinguished between conduct that is

the cause of an accident, and conduct that does nothing more than

furnish a passive condition by which the injury is made possible.

Galman, 188 Ill. 2d at 257, 720 N.E.2d at 1071.   The doctrine has

been criticized but is recognized to have validity where the

forces set in operation by the defendant have come to rest in a

position of apparent safety, and some new force intervenes.    "But

even in such cases, it is not the distinction between 'cause' and

'condition' which is important, but the nature of the risk and

the character of the intervening cause."   W. Keeton, Prosser &

Keeton on Torts §42, at 278 (5th ed. 1984).

          It is not clear this accident would not have happened,


                              - 9 -
"but for" the lane being closed.   It is possible that traffic

would have been backed up even if the lanes were open.   As noted

by the trial judge, it is fair to infer the traffic backup did

not suddenly materialize at exactly 3 p.m.   A completely inatten-

tive driver is a threat at any time, even if traffic is slow-

moving but not stopped.   Even if we assume the accident would not

have happened "but for" the closure, that is not enough for

liability.   The accident would not have happened if the authori-

ties had not built the road in the first place, but that also is

no basis for liability.

          "Legal cause" is required for the imposition of liabil-

ity, and there was no "legal cause" in this case.   The failure to

have both lanes open was not so closely tied to plaintiff's

injury that Champaign Asphalt should have responsibility for it.

As the trial court found, the failure to have the lane open was

only a condition that allowed this accident to happen, not a

cause.   The actions of Champaign Asphalt in closing the lane did

not promote or encourage Nichols to act in the way he did.     Cf.

Long v. Friesland, 178 Ill. App. 3d 42, 55-56, 532 N.E.2d 914,

923 (1988) (allowing brush to overhang road would force driver to

cross centerline); Yates v. Shackelford, 336 Ill. App. 3d 796,

804, 784 N.E.2d 330, 336 (2002) (distinguishing cases where

alleged intervening act was not an unreasonable response).

Champaign Asphalt should not be the insurer of every accident


                              - 10 -
that happened while a lane was closed.

                       C. The IDOT Contract

          Count II of Shank's complaint alleges that he was a

third-party beneficiary of the contract between Champaign Asphalt

and IDOT, and Champaign Asphalt accordingly owed him a duty to

open all lanes by 3 p.m.   A third party may only sue for breach

of contract if the contract was entered into for the party's

direct benefit; if the third party's benefit is merely inciden-

tal, he has no right of recovery on the contract.     Yakubinis v.

Yamaha Motor Corp., U.S.A., 365 Ill. App. 3d 128, 140, 847 N.E.2d

552, 563 (2006).   There is a strong presumption against creating

contractual rights in third parties.     Estate of Willis v.

Kiferbaum Construction Corp., 357 Ill. App. 3d 1002, 1007, 830

N.E.2d 636, 642 (2005).

          Count II does not seek typical contract relief but

seems more to allege the voluntary assumption of a duty in

negligence.   See Bourgonje v. Machev, 362 Ill. App. 3d 984, 1000,

841 N.E.2d 96, 110-11 (2005); see also Rogers v. Clark Equipment

Co., 318 Ill. App. 3d 1128, 1134, 744 N.E.2d 364, 368 (2001)

(mistake to muddy waters of voluntary undertaking by failing to

distinguish between two separate concepts of voluntary undertak-

ing and assuming a duty to a third party through contract).

          The contract incorporated IDOT's "Standard Specifica-

tions for Road and Bridge Construction," including a provision


                              - 11 -
entitled "Public Convenience and Safety":

          "No broken pavement, open holes, trenches,

          barricades, cones, or drums will remain on

          or adjacent to the traveled way and all

          lanes shall be open to traffic during any

          legal holiday period, except where stage

          construction with traffic control is pro-

          vided.   *** The legal holidays include: ***

          Memorial Day *** 3 p.m. Friday [to] 12

          midnight Sunday."

          The Fifth District has held that a road contractor

working on a nearby bridge had a duty not to obstruct a grassy

median with concrete barrier segments, which were later struck by

a vehicle that lost control and left the roadway.    In imposing

that duty, the court relied on IDOT guidelines included in

construction contracts that prohibited obstructing the median in

general and required guardrails if there was a necessary obstruc-

tion.   Vosbein v. E.T. Simonds Construction Co., 295 Ill. App. 3d

427, 432, 693 N.E.2d 500, 503 (1998).   Presiding Justice Welch

dissented, noting that the question was whether the law imposed a

duty, and industry standards, while evidence of a standard of

care, do not create such a relationship.    Vosbein, 295 Ill. App.

3d at 435, 693 N.E.2d at 506 (Welch, P.J., dissenting).    In any

event, Vosbein involved a situation different from our case.


                              - 12 -
There is a difference between allowing unguarded open holes,

trenches, or barricades on or adjacent to a highway and closing a

lane to traffic after posting proper warnings.   An unguarded open

hole is a danger even to careful drivers; a properly marked lane

closing is only a danger when encountered by a completely inat-

tentive driver.

          It is useful to compare this case involving IDOT's

standard specifications to cases involving general department

directives for police officers.   Violation of self-imposed rules

or internal guidelines, such as police department general orders,

do not normally impose a legal duty, let alone constitute evi-

dence of negligence.   Wade, 364 Ill. App. 3d at 781, 847 N.E.2d

at 639 ("pursuit," contrary to guidelines, in an unmarked vehicle

without notifying dispatcher).

          "Where the law does not impose a duty, one

          will not generally be created by a defendant's

          rules or internal guidelines.   Rather, it is

          the law which, in the end, must say what is

          legally required.   See Blankenship v. Peoria

          Park District, 269 Ill. App. 3d 416, 422[,

          647 N.E.2d 287, 291] (1994) (park district's

          internal rules requiring one lifeguard to

          remain on duty at all times did not create a

          legal duty to have one lifeguard on duty);


                              - 13 -
           Fillpot v. Midway Airlines, Inc., 261 Ill.

           App. 3d 237, 244[, 633 N.E.2d 237, 242] (1994)

           (where airline owed no legal duty to remove

           snow or ice, airline's policy manual requiring

           the clearing of walkways did not create such

           a duty); Mattice v. Goodman, 173 Ill. App.

           3d 236, 240[, 527 N.E.2d 469, 472] (1988)

           (where building owners owed no legal duty to

           assist elderly person through door, no such

           duty was created by building owner's employ-

           ment of an employee who, in accordance with

           his job description, customarily assisted

           elderly persons through the door)."   Rhodes v.

           Illinois Central Gulf R.R., 172 Ill. 2d 213,

           238, 665 N.E.2d 1260, 1272 (1996) (no duty to

           promptly assist intoxicated individual dis-

           covered in warming house of commuter train

           system).

           The requirement in this case that "all lanes shall be

open to traffic during any legal holiday period" appears to

relate more to public convenience, traffic flow, than it does to

safety.   There was no requirement that lanes be opened whenever

traffic began to back up.   The traffic backup that occurred in

this case could easily have occurred on a nonholiday.     A similar


                              - 14 -
analysis was made in Rowe v. State Bank of Lombard, 125 Ill. 2d

203, 531 N.E.2d 1358 (1988).   The outside lighting and buzzers at

the property were not provided for security but, instead, are

common for apartment buildings as a convenience.   Their installa-

tion at the property cannot reasonably be regarded as an assump-

tion of a duty to protect against third-party criminal acts.

Rowe, 125 Ill. 2d at 218, 531 N.E.2d at 1365.

          Plaintiff cites our decision in Moss v. Rowe Construc-

tion Co., 344 Ill. App. 3d 772, 801 N.E.2d 612 (2003), to support

his argument that a legal duty for purposes of negligence was

created by the contract between Champaign Asphalt and IDOT.     Moss

began with the rule that a general contractor was not liable for

the work of a subcontractor unless the general contractor re-

tained control of some part of the work, and it was not enough

for liability that the general contractor had some general right,

for example to order the work stopped.   Moss, 344 Ill. App. 3d at

777-78, 801 N.E.2d at 616.   Under the contract in Moss, the

general contractor was required to maintain control of safety on

the project, which we held to be a retention of control of some

part of the work, making the general contractor responsible for

the actions of the subcontractor.   The Moss contract did not

create a duty in negligence where none had existed before; the

contract simply designated who had that duty, who retained the

control of some part of the work.   The plaintiff's right to


                               - 15 -
protection under the contract was never at issue; the question

was whether the duty was owed by the general contractor, the

subcontractor, or both.   See Moss, 344 Ill. App. 3d at 780, 801

N.E.2d at 617-18.

                          III. CONCLUSION

          The trial court properly concluded that Champaign

Asphalt had no duty, either as a matter of general legal princi-

ple or by virtue of its contract with IDOT, to prevent the

independent intervening act that occurred here.   The trial court

properly concluded that Champaign Asphalt's conduct was not a

proximate cause of the injuries to plaintiff.   Accordingly, we

affirm the trial court's judgment.

          Affirmed.

          STEIGMANN, P.J., concurs.

          MYERSCOUGH, J., specially concurs.




                              - 16 -
          JUSTICE MYERSCOUGH, specially concurring:

          Although I agree in the outcome reached by this court,

I disagree with the majority's conclusion that Champaign Asphalt

owed no duty to plaintiff to open the lanes at 3 p.m. despite the

provision in its contract that provides that it must have all

lanes open by 3 p.m.   I believe that Champaign Asphalt did owe

plaintiff a duty.   That duty was to exercise reasonable care in

carrying out its construction on a public highway.    However, I

also believe that Champaign Asphalt was not negligent in failing

to open all the lanes by 3 p.m.   The majority states that Cham-

paign Asphalt "would not have acted reasonably" if it had opened

the lanes before it were ready.   Slip op. at 7.   Whether Champaign

Asphalt acted reasonably is not a duty question, but rather a

question of breach.    See J. Goldberg & B. Zipursky, The Restate-

ment (Third) & the Place of Duty in Negligence Law, 54 Vand. L.

Rev. 657, 713-15 (2001) (courts, both knowingly and unwittingly,

sometimes decide what are surely breach questions under the guise

of deciding the question of "duty" in its primary sense).    If


                               - 17 -
Champaign Asphalt had no duty, as the majority concludes, whether

it acted reasonably would be immaterial.

          Champaign Asphalt owed a general duty of care to the

motorists on the highway.     Section 107.09 of the specifications in

Champaign Asphalt's contract with IDOT states:

          "The Contractor shall at all times conduct

          the work in such a manner as to ensure the

          least obstruction to vehicular and pedestrian

          traffic.    The convenience of the general pub-

          lic and residents along the highway shall be

          provided for in an adequate and satisfactory

          manner.    ***   No broken pavement, open holes,

          trenches, barricades, cones, or drums will

          remain on or adjacent to the traveled way and

          all lanes shall be opened to traffic during

          any legal holiday period, except where stage

          construction with traffic control is

          provided."

          The specifications in the contract designated that the

holiday period at issue in this case began at 3 p.m. on Friday.

Section 107.14 of the specifications in the contract states:

          "When work zone traffic control is required

          along the route under construction, or when

          any section of road is closed for construc-


                                - 18 -
          tion operations of any type, or when any sec-

          tion of the road is opened to traffic prior

          to completion of all work, the Contractor

          shall protect the workers and provide for

          safe and convenient public travel by provid-

          ing adequate traffic control."

          Champaign Asphalt assumed the duty to use reasonable

care for the safety of the motorists on the highway by virtue of

the contract.   See Moss, 344 Ill. App. 3d at 779, 801 N.E.2d at

617 (stating that the construction company's contract with IDOT

established a duty to control safety); Chandradat v. State,

Indiana Department of Transportation, 830 N.E.2d 904, 909 (Ind.

2005) ("The State [Indiana] has a general duty to the traveling

public to exercise reasonable care in the design, construction,

and maintenance of its highways for the safety of public users.

[Citation.]   The [plaintiffs] were part of the traveling public.

Furthermore, by statute, an Indiana governmental agency that is

responsible for the signing, marking, and erection of traffic

control devices on streets and highways within Indiana has a duty

to follow the Indiana Manual on Uniform Traffic Control Devices

for Streets and Highways ('Traffic Manual'). [Citation.]   While

the Traffic Manual is not a legal basis for a statutory negligence

action [citation], the Traffic Manual is evidence bearing upon the

general duty to exercise reasonable care").


                              - 19 -
           The terms of Champaign Asphalt's contract with IDOT in

this case, therefore, serve as evidence of the standard of care to

be employed when conducting construction projects on a public

road.   Snyder v. Curran Township, 167 Ill. 2d 466, 472, 657 N.E.2d

988, 992 (1995) ("In light of the applicable regulations and

statutes, we agree with the plaintiffs that the issue of compli-

ance or noncompliance with the Illinois Manual was a question

properly before the jury.   Section 11-304, by mandating compliance

with the Illinois Manual, establishes defendant's duty of reason-

able care.   Whether that duty was breached is a jury question,

turning on an examination of the applicable provisions of the

Illinois Manual and the facts of a particular case"); Indiana

State Highway Comm'n v. Daily Express, Inc., 503 N.E.2d 1237, 1240

(Ind. 1987) ("We held that the [Indiana State Highway Manual] is

only evidence bearing upon the general duty to exercise reasonable

care. [Citation.]   Accordingly, if a failure to comply with the

Manual's provisions is only evidence of negligence, the jury

should be instructed to treat the Manual as any other evidence of

negligence going into the ultimate factual determination of

liability" (emphasis in original)).    Not complying with the

provisions of the contract in this case may constitute a breach of

this duty if defendant's failure to comply was unreasonable.

           The majority states that if the contract's provision to

have all lanes open by 3 p.m. constituted a legal duty, it would


                              - 20 -
result in Champaign Asphalt being held liable for accidents that

occur after 3 p.m. but not liable for accidents that occurred

before 3 p.m.   The majority characterizes this as creating an

"uncertain" duty.   Slip op. at 7.   However, nothing is uncertain

about the duty to comply with a specific provision in the con-

tract.   Moreover, the provision in the contract that requires all

the lanes to be open by 3 p.m. does not create strict liability.

Champaign Asphalt may even be liable for accidents that occur

before 3 p.m. if it failed to act with due care for the safety of

the public in carrying out its construction work.   After 3 p.m.,

Champaign Asphalt may also be liable for accidents that occur if

its failure to open all of the lanes as required was unreasonable.

          Additionally, using the terms of construction compa-

nies' contracts with IDOT as evidence of the standard of care

construction companies should exercise while performing work on

public highways does not create an undue burden.    In determining

whether a legal duty exists, courts consider the following fac-

tors: (1) the reasonable foreseeability of injury, (2) the reason-

able likelihood of injury, (3) the magnitude of the burden that

guarding against injury places on the defendant, and (4) the

consequences of placing that burden on the defendant.    Miller v.

Highway Commissioner of North Otter Township Road District, 344

Ill. App. 3d 1157, 1164, 801 N.E.2d 599, 606 (2003).

          In its analysis of the policy considerations involved


                              - 21 -
in determining whether Champaign Asphalt owed plaintiff a duty in

this case, the majority states, "The magnitude of the burden of

preventing reckless drivers from causing harm and the consequences

of placing that burden on the defendant doing the work justify a

finding of no duty in this case."    Slip op. at 6.   However, the

duty question in this case is not whether Champaign Asphalt had a

duty to protect against reckless drivers causing harm.     Rather,

the duty was to have the roadway clear by 3 p.m. at the beginning

of a holiday weekend that is associated with high volumes of

highway traffic.   It is certainly foreseeable and likely that this

type of accident could result from a congested and backed-up

highway during a period of heavy traffic.     Considering the third

and fourth prongs in Miller, clearing the highway by 3 p.m. was

not a burden on Champaign Asphalt.      Had its machine not broken, it

would have had all the lanes open on the highway by 3 p.m.

Finally, given that IDOT requires the construction company to be

off the highway by 3 p.m. on a holiday weekend unless it obtained

special permission from IDOT, placing the foreseeable consequences

for accidents that result from the company's failure to clear the

highway is not unreasonable.   Holding construction companies

liable for reckless drivers, as the majority suggests, would be

unsound public policy.   The benefits of road construction to

society are great and holding companies who perform such tasks

liable for all accidents that result is too high of a burden.


                               - 22 -
However, Champaign Asphalt had a duty to exercise due care in

carrying out its project.   It is sound policy to require companies

performing work on public roads to exercise due care in performing

their task.   In this case, Champaign Asphalt did exercise due care

even though it was not off the highway by 3 p.m.    However, if

evidence had been presented that it had not acted reasonably, it

may have been liable for causing this type of accident that

resulted from the highway congestion caused by its lane closure.

          The majority makes the distinction that the contract

provision regarding the lane closures was concerned with traffic

flow during a holiday weekend as opposed to a safety provision.

The majority's distinction between a contract provision rooted in

safety and a contract provision rooted in convenience should not

be dispositive of whether Champaign Asphalt owed a legal duty to

the motorists on the highway.

          A provision in the contract incorporates the guidelines

of the IDOT manual that includes the requirement that Champaign

Asphalt be off the road by 3 p.m.    Although the contract provision

is not a statute or an administrative rule, it is an agency-

created regulation.   I conclude public policy supports a finding

that failure to abide by this regulation may create liability on

the part of Champaign Asphalt.    The supreme court has held in

order for a plaintiff to recover for injuries sustained as a

result of a failure to follow a statute or rule the plaintiff must


                                - 23 -
show "(1) the violation proximately caused the injury; (2) plain-

tiff belonged to the class of persons whom the rule was intended

to protect from injury; (3) the kind of injury suffered by plain-

tiff was the kind of injury which the rule sought to prevent."

Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535,

543, 582 N.E.2d 108, 112 (1991).

           The first two prongs of the test in Gouge are easily

met.   First, but for the backup on the highway, this accident

would not have occurred.   Second, the rule is for the convenience

and safety of the drivers on the highway, a class of persons to

which decedent belonged.   With respect to the third prong in

Gouge, even if IDOT's primary interest in having a contract

provision providing that all the lanes be open by 3 p.m. was

primarily a concern about traffic flow, motorists' safety is

always a consideration in making decisions to impede traffic on a

public road.   Making a distinction between provisions in a road

construction contract based on whether the provision is primarily

for safety or if it is primarily for convenience creates confusion

in the law.    Construction companies' liability in tort should not

rest on such a distinction.   Whether the guidelines set by IDOT

are for safety or convenience, construction companies should be

held to those standards in determining liability.

           Having determined that Champaign Asphalt owed plaintiff

a duty to exercise reasonable care in performing work on a public


                               - 24 -
road, I conclude the issue in this case is whether Champaign

Asphalt breached this duty.   Although the issue of whether a

defendant breached its duty is usually a factual matter reserved

for the fact finder, summary judgment is proper when there is no

genuine issue of material fact regarding defendant's alleged

breach.   Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d

107, 114, 649 N.E.2d 1323, 1326 (1995).

          As part of our de novo review of this case, relying on

the undisputed facts, Champaign Asphalt was entitled to judgment

as a matter or law.   The facts of this case reveal that two days

before the accident, May 23, 2001, Champaign Asphalt received a

memo from IDOT that said "It has been previously discussed that,

in extreme circumstances, if the lanes could not be opened by 3:00

p.m. on Friday, Champaign Asphalt would be allowed to work on

Saturday to remove hazards and open the land."   The facts also

reveal that the machine used to remove debris from the highway

unexpectedly broke, and opening the lanes would have created an

increased hazard to the motorists on the highway due to the

presence of debris.   Therefore, although Champaign Asphalt had a

duty to abide by its contract, which required that the lanes be

open by 3 p.m. that afternoon, it did not breach that duty because

it acted reasonably under the circumstances.   Opening the lanes

before the debris was removed would have been unreasonable since

it created a greater hazard to the motorists on the highway.


                              - 25 -
Therefore, Champaign Asphalt's decision not to open the lanes by 3

p.m. due to the debris was objectively reasonable and, as a matter

of law, cannot constitute a breach of its duty.

          Most troubling to me is the precedent that may result

from the holding in this case.   Although the majority and I agree

that Champaign Asphalt acted reasonably, I believe that setting

the precedent that construction companies have no duty to comply

with the terms of its contracts with IDOT sets a dangerous and

undesirable precedent.   In Marshall v. Burger King Corp., 222 Ill.

2d 422, 424, 856 N.E.2d 1048, 1050 (2006), decedent was killed

when an out-of-control car crashed through the window of the

Burger King restaurant where he was eating.   Decedent's estate

sued Burger King for negligence based on the fact that there were

no safety devices in place to prevent this type of accident.   The

supreme court addressed the appellate court's finding of no duty

as follows:

          "'Rules declaring that no duty exists can

          easily be made too broad or too narrow. Be-

          cause they are rules of law, not decisions

          about particular cases, they cover all cases

          in the category to which they are addressed.

          They are expressions of "global" policy

          rather than evaluations of specific facts of

          the case.   Consequently, no-duty rules should


                              - 26 -
          be invoked only when all cases they cover

          fall substantially within the policy that

          frees the defendant of liability.'"         Mar-

          shall, 222 Ill. 2d at 441-42, 806 N.E.2d at

          1060, quoting 1 D. Dobbs, Torts §227, at 579

          (2001).

          The court in Marshall held that by defining the duty

narrowly, defendants were actually asking the court to decide as a

matter of law that they did not breach its duty.   The court found

that instead of defendant owing a fact-specific duty to install

poles at its restaurants, defendants owed a general duty to

exercise reasonable care for the safety of its customers.     Mar-

shall, 222 Ill. 2d at 443, 856 N.E.2d at 1061.   The supreme court

held:

          "It is inadvisable for courts to conflate the

          concepts of duty and breach in this manner.

          Courts could, after all, 'state an infinite

          number of duties if they spoke in highly par-

          ticular terms,' and while particularized

          statements of duty may be comprehensible,

          'they use the term duty to state conclusions

          about the facts of particular cases, not as a

          general standard.'"    Marshall, 222 Ill. 2d at

          443, 856 N.E.2d at 1061, quoting 1 D. Dobbs,


                                - 27 -
          Torts §226, at 577 (2001).

See also 54 Vand. L. Rev. at 712-17 (discussing problems associ-

ated with using the duty element of negligence to render decisions

that no breach occurred as a matter of law).

          In this case, holding that defendant did not have a

specific duty to open all the lanes of the highway by 3 p.m.

creates the situation in which a similar defendant who unreason-

ably does not comply with the terms of its contract with IDOT may

escape liability when its conduct was unreasonable and caused an

injury to a third person.   For these reasons, I concur in the

result reached by the majority, but not its reasoning.




                              - 28 -
