Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. Nicholas J. Bua, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 28, 1974.
Frank Cunis, a minor, whose age does not appear in the record, was riding as a passenger in an automobile traveling north on Brainard Street in the Village of LaGrange on December 15, 1967. At the intersection of Brainard and Ogden Avenue the automobile in which he was riding was struck by an automobile traveling west on Ogden, and being driven by James Brennan, one of the defendants. At the collision Cunis was thrown from the automobile approximately 30 feet to the parkway, where one of his legs was impaled upon an object protruding from the ground. The object, later identified as the remains of a drain pipe, was located four and one-half feet west of the west curb of Brainard and five and one-half feet north of the north edge of the north walk on Ogden. The injury necessitated the amputation of the leg.
Through his father as his next friend, Cunis brought an action in the circuit court of Cook County for personal injury against James M. Brennan, Waldo, Inc., a corporation d/b/a Waldo's, Waldo R. Koehler, Alex Bodel, d/b/a Big Al's, O. Schneider, and the Village of LaGrange, a municipal corporation. Count V of his complaint alleged that the defendant village (hereafter, the Village) was under a duty to maintain its parkways in a safe condition and that it had "failed in its duty toward the plaintiff" by permitting a dangerous and broken drain pipe to remain on the parkway. It alleged that the plaintiff sustained his injury as a "proximate result of the negligence" of the Village. On the Village's motion count V was dismissed on the ground that it failed to state a cause of action. The trial court authorized an appeal under our Rule 304(a), and the appellate court reversed the judgment on appeal by the plaintiff (7 Ill. App.3d 204). We granted the Village's petition for leave to appeal.
A complaint for negligence must set out: the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from the breach. (Mieher v. Brown 54 Ill.2d 539, 541.) The character of the duty of the defendant which must be established was described in Prosser, Handbook of the Law of Torts (4th ed. 1971), section 53: "In other words, `duty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff * * *." This question, i.e., whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the plaintiff's benefit, is one of law for determination by the court. Mieher v. Brown, 54 Ill.2d 539, 541; Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 162 N.E. 99; see also Prosser (4th ed. 1971), sec. 52.
The plaintiff contends that the Village, to avoid liability, must show that it could not have foreseen the collision of the automobiles and the ejection of an occupant onto the parkway, causing injury. He argues that the ejection of an occupant of an automobile involved in an intersection collision was a foreseeable occurrence and therefore the Village had a duty to maintain the parkway so as to prevent the plaintiff's injury. In support of this contention of foreseeability the plaintiff cites National Safety Council statistics indicating that 32.2% of the 12,000,000 two-car collisions in 1969 occurred at intersections. Also, he argues the foreseeability of his injury from a report published in 1958 (which incidentally was prior to the common use of safety belts) which states that out of 3,261 automobile accidents studied, 13.6% of all persons riding as passengers were ejected upon collision from the automobiles in which they had been riding (73 Public Health Reports (1958), at 381-391), and from two other reports which describe passenger ejection as one of the most dangerous consequences of an automobile collision.
However, the existence of a legal duty is not to be bottomed on the factor of foreseeability alone. We stated this in Mieher v. Brown, 54 Ill.2d 539, 544, and there quoted Dean Leon Green's observation: "`[H]owever valuable the foreseeability formula may be in aiding a jury or judge to reach a decision on the negligence issue, it is altogether inadequate for use by the judge as a basis of determining the duty issue and its scope. The duty issue, being one of law, is broad in its implication; the negligence issue is confined to the particular case and has no implications for other cases. There are many factors other than foreseeability that may condition a judge's imposing or not imposing a duty in the particular case * * *.' Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401, 1417-18." See also Conway v. O'Brien (2d Cir. 1940), 111 F.2d 611, 612, 118 U. Pa. L. Rev. 299, 300; Harper and James, Law of Torts (1956).
In addition, in determining whether there was a legal duty, the occurrence involved must not have been simply foreseeable, as the plaintiff contends; it must have been reasonably foreseeable. The creation of a legal duty requires more than a mere possibility of occurrence. Negligence as defined in the Restatement (Second) of Torts (1965), section 282, is conduct which falls below the standard established for the protection of others "against unreasonable risk of harm." Harper and James, in their Law of Torts, observe: "Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness." (2 Law of Torts (1956), sec. 16.9, at 929.) And Prosser (Handbook of the Law of Torts (4th ed. 1971), sec. 31, at 146) comments: "No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded." In judging whether harm was legally foreseeable we consider what was apparent to the defendant at the time of his now complained of conduct, not what may appear through exercise of hindsight. We will not look back, as it was felicitously put by Justice Cardozo, "at the mishap with the wisdom born of the event * * *." (Greene v. Sibley, Lindsay & Curr Co. (1931), 257 N.Y. 190, 192, 177 N.E. 416, 417.) But courts will be retrospective for another purpose. Section 435(2) of the Restatement (Second) of Torts (1965) provides: "The actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm."
We recently considered a negligence action where the question was whether a truck manufacturer had a duty to guard against an unusual occurrence which caused the death of the driver of an automobile. In that case (Mieher v. Brown, 54 Ill.2d 539) Kathryn Mieher was killed when the automobile she was driving collided with the right rear corner of an International Harvester truck. The administrator of her estate brought a wrongful death action against the manufacturer of the truck on the theory that the truck had been negligently designed because there were no bumper guards or shield on the rear of the truck. The complaint set out that such alleged defect caused the rear of the truck to penetrate Mieher's windshield causing her death. On the manufacturer's motion, the counts which charged it with negligence were dismissed for failure to state a cause of action. The appellate court reversed (3 Ill. App.3d 802), and we in turn reversed the appellate court (54 Ill.2d 539).
In doing so, we said: "Although the injury complained of may have been, in a sense, foreseeable, we do not consider that the alleged defective design created an unreasonable danger or an unreasonable risk of injury. In the words of section 435(2) of the Restatement (Second) of Torts, `looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm' for which recovery is now sought. Public policy and the social requirements do not require that a duty be placed upon the manufacturer of this truck to design his vehicle so as to prevent injuries from the extraordinary occurrences of this case." Mieher v. Brown, 54 Ill.2d 539, 545.
Thus it was held that the claimed defect in design did not create an unreasonable danger or risk of injury. We consider that what we held in Mieher applies here. There the decedent had driven into the rear of the truck, which is certainly one of the most frequently occurring types of vehicle collision. There was no duty on the defendant, we said, to have designed the truck so as to prevent injury from what occurred, which we described as extraordinary. The circumstance here of the plaintiff's being thrown 30 feet upon the collision with a third person's automobile and having his leg impaled upon the pipe was tragically bizarre and may be unique. We hold that the remote possibility of the occurrence did not give rise to a legal duty on the part of the Village to the plaintiff to provide against his injury. "No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded." (Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 31, at 146.) The same author has also commented: "[L]iability must stop somewhere short of the freakish and the fantastic." Palsgraf Revisited, 52 Mich. L. Rev. 1, 27 (1953).
Accordingly, we judge that count V of the complaint did not state a cause of action against the Village.
For the reasons given, the judgment of the appellate court is reversed and the judgment of the circuit ...