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04/30/87 Larry J. Moore, v. Debra S. Hill Et Al.

April 30, 1987

LARRY J. MOORE, PLAINTIFF-APPELLANT

v.

DEBRA S. HILL ET AL., DEFENDANTS-APPELLEES

SUMMARY JUDGMENT IS PROPER ONLY WHEN THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT AND THE MOVING PARTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW. ILL. RE

v.

STAT. 1981, CH. 110, PAR. 2-1005(C); DEPARTMENT OF REVENUE

v.

HARTIGAN'S FINER FOODS, INC. (1985), 106 ILL. 2D 19, 476 N.E.2D 413.

WHEN PLAINTIFF USES THE TERM "PROXIMATE CAUSE" IT INVOKES CONNOTATIONS OF BOTH QUESTIONS OF LAW AND QUESTIONS OF FACT. AS WE HAVE STATED IN KERNS

v.

ENGELKE (1979), 54 ILL. APP. 3D 323, 333, 369 N.E.2D 1284, 1292, AFF'D IN PART AND REV'D IN PART (1979), 76 ILL. 2D 154, 390 N.E.2D 859:



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

507 N.E.2d 1314, 155 Ill. App. 3d 1, 107 Ill. Dec. 945 1987.IL.564

Appeal from the Circuit Court of Perry County; the Hon. Robert Bastien, Judge, presiding.

APPELLATE Judges:

JUSTICE JONES delivered the opinion of the court. KARNS, P.J., and KASSERMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JONES

Plaintiff appeals the entry of summary judgments in favor of both defendants in his action for damages for personal injuries he received when he was knocked or fell from a farm wagon during the course of a hayride. We affirm.

The plaintiff was a guest at a hayride and hot dog roast given by defendant Debra Hill and her husband Charles Allen Hill. Charles Allen Hill was not made a defendant to plaintiff's action. Charles Allen Hill borrowed a tractor from his brother, defendant Norman Hill, and borrowed two hay wagons from the Du Quoin fairgrounds manager. The wagons were hooked to the tractor in tandem. Charles Allen Hill drove the tractor and wagons with their guests to a cabin belonging to him and Debra where the hot dog roast was held. Defendant Norman Hill attended the hot dog roast but left early in his car. Charles Allen Hill drove the tractor and wagons on the return trip home, but, about one-quarter of a mile from their destination, Debra Hill sat on Charles Allen's lap and drove the tractor. At some time during the return trip some of the young adults that were along started throwing things, in a sort of "war between the wagons." At first it was shelled corn, but some of them began throwing ears of corn and ice from the coolers and "other things" not otherwise described. The plaintiff had called down one of the boys who was about to throw a chunk of ice from a cooler. Shortly after that he was struck by a thrown object, which could have been corn or ice or something else. In any event, the object knocked plaintiff off the wagon. He landed on his feet but was unable to maintain his balance. Plaintiff fell and was run over by the wagons and received serious injuries to his legs.

Plaintiff filed a two-count complaint. Count I was directed at Debra Hill and alleged that she drove the tractor in a negligent manner in that she drove it at an excessive rate of speed and failed to keep a proper lookout for the safety of her passengers. Count II was directed at defendant Norman Hill and alleged that he knew or had reason to know that defendant Debra Hill was untrained and unable to operate a tractor and that he was negligent in failing to ensure that defendant Debra was capable of operating the tractor. Each defendant filed a motion for summary judgment. After considering the pleadings, depositions and other discovery materials and hearing oral argument, the court entered separate summary judgments for each defendant, finding as to each that no triable issues of fact were presented. Plaintiff's motions for reconsideration followed and were denied, and plaintiff brings this appeal.

Plaintiff contends that the negligent acts or omissions of the defendants, Debra Hill and Norman Hill, and the foreseeable intervening acts of third parties were the proximate cause of the plaintiff's injuries. Plaintiff cites the case of Felty v. New Berlin Transit, Inc. (1978), 71 Ill. 2d 126, 374 N.E.2d 203, for the proposition that it is a well-established rule in Illinois that proximate cause is a question for the jury and asserts that it was error for the court to grant the summary judgments.

In order to recover damages from defendants in this negligence action, the plaintiff must establish that defendants had a duty to conform to a certain standard of conduct as established by law, that defendants failed to meet that standard by a negligent act, and that their failure was the cause of plaintiff's injury. Ferentchak v. Village of Frankfort (1985), 105 Ill. 2d 474, 475 N.E.2d 822.

The summary judgments entered by the trial court centered upon the question of whether there was a genuine issue of a material fact, and it found none. The court's finding could be based upon a finding that defendants owed no duty to plaintiff on this occasion, that defendants had committed no negligent breach of the duty owed, or that if there had been a negligent breach of the duty owed, such breach was not the cause of plaintiff's injuries.

The plaintiff argues in his brief that "[t]he facts of the present case raise issues of proximate cause, and the defendants have not, and cannot, show that the aforementioned intervening acts were unforeseeable as a matter of law." The plaintiff also contends, with ample citation of authority, that "proximate cause" is a question of fact for the jury.

" 'Proximate cause' is a term of art which encompasses the distinct concepts of cause in fact and legal cause. Determining whether the defendant's conduct was a cause of plaintiff's injury involves nothing more than an analysis of the facts. Once it is established that the defendant's conduct has in fact been a cause of the injury, however, there remains the question whether the defendant should be legally responsible for what he has caused. As otherwise stated, the question is whether the policy of the law will extend defendant's responsibility to the consequences which have in fact occurred.

Two tests are generally applied in determining the issue of causation in fact. Under the 'substantial factor' test, the defendant's conduct is a cause of an event if it was a material element and a substantial factor in bringing it about. Under the second test, commonly called the 'but for' rule, the defendant's conduct is ...


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