Appeal from the Circuit Court of Madison County; the Hon.
Horace L. Calvo, Judge, presiding.
PRESIDING JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Defendant Metro East Disposal, Inc. filed an interlocutory appeal from an order overruling its motion to dismiss plaintiffs' second amended complaint. The question, which was raised by the pleadings and certified by the trial court for appeal pursuant to Supreme Court Rule 308, is whether defendant's motion to dismiss should have been sustained as a matter of law. For the following reasons, we affirm the trial court's decision.
Plaintiffs' second amended complaint alleged that on December 15, 1980, at approximately 3 p.m., 10-year-old Michelle Lemings attempted to cross Harvard Street in Madison County, Illinois. She left the State Park School grounds on her way to a girl scout meeting. The complaint further alleged that, as she moved past a trash dumpster owned and positioned on the school grounds by Metro East Disposal, Inc., she was struck and seriously injured by an automobile driven by defendant Donald Delashmit. In count III of the complaint against Metro East Disposal, Inc., the plaintiff stated the following:
"7. The defendant, Metro East Disposal, Inc., through its agents, servants and employees was then and there guilty of the following negligent act or omission, to wit: Having had knowledge or through the reasonable exercise of care would have knowledge that school children would be crossing at or near a dumpster placed at or near State Park School, failed to place the dumpster at a location where it would not act as a barrier and hinderance of the view of automobile drivers driving on Harvard Street, and/or in view of pedestrians, namely the plaintiff, crossing Harvard Street at or near State Park School.
8. As a direct and proximate result of the negligent act or omission of the defendant, the plaintiff, Michelle Lemings was permanently and severely injured in and about her body and has been incapacitated and will remain so for the duration of her natural life during all of which time she has and will incur great pain and suffering; further, upon reaching majority, the plaintiff, Michelle Lemings, will become liable for substantial medical expenses and expenses for the daily care of her being."
Count VII of the complaint contained substantially the same allegations.
The issue on appeal is whether plaintiffs' second amended complaint states a cause of action against Metro East Disposal, Inc. Defendant contends that the alleged obstruction, the trash dumpster, created nothing more than a condition which made the accident possible. It maintains that the obstruction cannot be considered a proximate cause of the child's injuries because the proximate cause was her own negligence and that of the driver of the automobile. Defendant therefore requests that this court reverse the trial court's ruling and enter an order directing the trial court to dismiss Metro East with prejudice.
In response to the argument that defendant's conduct was not the proximate cause of the accident, plaintiffs cite several cases in which proximate cause is discussed. Although the cases are factually dissimilar to the present case, the discussions contained therein are relevant to our determination. For example, Davis v. Marathon Oil Co. involved a suit by a gasoline delivery-truck driver against the owner of a service station, the station attendant and the oil company who owned and installed the gasoline pumps. (Davis v. Marathon Oil Co. (1976), 64 Ill.2d 380, 356 N.E.2d 93.) The driver sued for injuries he received when a pump failed to shut off, spilling gasoline onto the pavement. Experts testified that the gasoline was ignited either by sparks from a space heater inside the station or by sparks passing between plaintiff and the nozzle of the pump. In deciding that Marathon could be held liable for its negligent installation of the pumps if the other intervening events were foreseeable, the court quoted from Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380-81:
"`What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character an [sic] an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from this act. [Citations.] An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. [Citations.] The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable. [Citations.] What is the proximate cause of an injury is ordinarily a question of fact to be determined by a jury from a consideration of all of the evidence. [Citation.]'" Davis v. Marathon Oil Co. (1976), 64 Ill.2d 380, 394-95.
• 1 The same concept was applied in Bentley v. Saunemin Township (1980), 83 Ill.2d 10, 413 N.E.2d 1242, in which the supreme court held that the township was negligent for not trimming the branches at an intersection. It said the negligence was a proximate cause of the death of a passenger in an automobile which collided with another vehicle at the intersection. In spite of the jury's special finding that the driver's negligence was the cause of the passenger's death, the Bentley court held that there "may be more than one proximate cause of an injury [citations], and that may well be the case here." (Bentley v. Saunemin Township (1980), 83 Ill.2d 10, 17.) It also cited Neering, for the proposition that
"The negligence of a defendant will not constitute a proximate cause of a plaintiff's injuries if some intervening act supersedes the defendant's negligence, but if the defendant could reasonably foresee the intervening act, that act will not relieve the defendant of liability." 83 Ill.2d 10, 15.
• 2 This court recently discussed proximate and intervening cause, in the context of a premise liability suit. (Bak v. Burlington Northern, Inc. (1981), 93 Ill. App.3d 269, 417 N.E.2d 148.) In Bak the plaintiff died from an overdose of pain-killers she took for relief from injuries received in a fall on defendant's property. In deciding that a material question of fact regarding causation still existed, the court reversed a summary judgment granted in favor of defendant and stated that "`* * * it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act.' [Citation.] The intervention of a new, independent intervening cause does not necessarily relieve one of responsibility for a negligent act `when the intervening cause of an injury is of such a nature as could reasonably have been anticipated, * * *.'" Bak v. Burlington Northern, Inc. (1981), 93 Ill. App.3d 269, 271.
• 3, 4 With these principles in mind, we reject defendant's contention that its motion to dismiss should have been sustained as a matter of law. After careful examination of the pleadings, we agree with the trial court that the plaintiffs have stated a cause of action against defendant. The complaint alleges that Metro East had a duty to exercise reasonable care and caution for the safety of others. It alleges that this duty was violated by the placement of the dumpster in such a manner that it hindered the view of both pedestrians and drivers on Harvard Street. It states that, as a direct and proximate result of the negligent placement of the dumpster, the plaintiffs incurred severe and permanent injuries. As the court in Davis decided, the actual proximate cause of injury is a question of fact which must be determined by a jury after consideration of all the evidence. (Davis v. Marathon Oil Co. (1976), 64 Ill.2d 380, 395.) We make no determination on the merits at this time. We hold merely that plaintiffs' complaint is sufficient to state a cause of action.
Consequently, the order of the circuit court of Madison County denying defendant Metro East Disposal, Inc.'s motion to dismiss is hereby affirmed.
JUSTICE JONES, specially concurring:
In holding that plaintiffs' second amended complaint is sufficient to state a cause of action against defendant, Metro East Disposal, Inc. (Metro), the majority reaches what I believe to be the correct result in the case, but I respectfully disagree with the basis for its decision.
The issue on appeal is presented by Metro's claim that its act in placing the dumpster was not the proximate cause of plaintiff's injury and that its dumpster did nothing more than create a condition that made plaintiff's injury possible through the independent negligent act of a third party, the driver of the automobile that hit the plaintiff. Metro contends that, as a matter of law, it cannot be held liable for plaintiff's injury. Countering, the plaintiffs contend that the complaint is sufficient to raise a factual issue as to whether Metro's actions in the case were a proximate cause of plaintiff's injury and that the case against Metro thus cannot be concluded at the pleading stage as a matter of law.
Despite the arguments that have been framed and presented by the parties in terms of the issue of "proximate cause," it seems obvious that the real contention of Metro is that the plaintiffs' second amended complaint is insufficient to show that it was under any duty to take measures to guard against an injury to the plaintiff and that, accordingly, under any set of facts that might be disclosed by the evidence, there can be no liability imposed upon Metro for plaintiff's injury. Could the majority have decided in this case that, as a matter of law, the injury plaintiff received was not the foreseeable consequence of Metro's placement of the dumpster and, accordingly, could not have been the proximate cause of plaintiff's injury? Yes, they could have, because the real issue in the case at this point is one of law for the determination of the court: was the plaintiff at the time of her injury, as shown by the facts alleged in her complaint, within the scope or range of protection of a duty owed by Metro to the plaintiff?
If the injury should have been "foreseen" by Metro, the majority writes, then the act of Metro in placing the dumpster was the "proximate cause" of plaintiff's injury, and the case must go back for trial on the "foreseeability" issue. In my opinion, the majority should not have decided this case on the basis of "proximate cause" or its cousin, "creation of a condition," or on the basis of the foreseeability" of the plaintiff's injury by Metro.
The question of whether a duty exists in a particular case and the scope or range of protection thereof is a question of law. The terms "foreseeable" and "proximate cause," however, are properly used with reference to questions of fact. Whether an injury was "foreseeable" is the test used by a jury to determine whether a defendant was guilty of a breach of duty (see Mieher v. Brown (1973), 54 Ill.2d 539, 301 N.E.2d 307); whether a defendant's conduct was the "proximate cause" of a plaintiff's injury is the test used by a jury to determine whether there was a causal connection between a defendant's conduct and a plaintiff's injury. Nevertheless, Illinois courts> regularly use the terms "foreseeable" and "proximate cause" to decide as a matter of law whether a plaintiff's injury falls within the scope of a duty the defendant owed the plaintiff on the occasion in question. The use of the two terms in this way is unfortunate because it is misleading, tending to obscure the real issue — one of law, not of fact — the court has actually been asked to decide. When a court uses terms that refer to questions of fact to decide a question of law, vagueness, uncertainty, and misunderstanding are a sure consequence. The use of such fact-oriented terms as "proximate cause" and "foreseeability" to determine issues related to the scope of duty obscures the fact that the court is dealing with an issue of law and suggests that the scope of a duty is a question of fact for the jury when it is not. It is simply confusing to use the same terms that are commonly known to relate to questions for the trier of fact in order to determine the question of law of the scope of a duty.
It can be said with easy certainty that whether a defendant is under a duty to a plaintiff on a particular occasion is a question of law for the determination of the court alone, and a multitude of Illinois cases so hold without a contrary voice. (E.g., Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538; Mieher v. Brown.) In negligence cases in which Illinois courts> have considered the existence, as distinguished from the scope, of a duty, there has been no difficulty in discounting the prominence of "foreseeability" and "proximate cause" and concentrating on policy considerations that underlie the finding of a duty.
"In many negligence cases no more than foreseeability is involved. And because so many actions grounded upon negligence involve familiar patterns of conduct, it is easy to forget that implicit in an allegation of negligence is the assertion of a failure to comply with the standard of care that the law requires — the assertion of a duty and its breach. [Citations.] * * *
After the event, hindsight makes every occurrence forseeable, [sic] but whether the law imposes a duty does not depend upon forseeability [sic] alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken ...