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May 23, 1996


Appeal from Circuit Court of Macoupin County. Nos. 91L59, 92L50. Honorable Thomas P. Carmody, Judge Presiding.

Rehearing Denied August 2, 1996. Released for Publication August 2, 1996. As Corrected August 29, 1996.

Honorable Frederick S. Green, J., Honorable Rita B. Garman, J., Concurring, Honorable Robert W. Cook, P.j., Dissenting. Justice Green delivered the opinion of the court:

The opinion of the court was delivered by: Green

The Honorable Justice GREEN delivered the opinion of the court:

This appeal is taken by defendant-counterplaintiff Thelma R. Stone from a summary judgment entered in favor of plaintiff-counterdefendant Michael Redmon as to Stone's counterclaim. The evidence at the motion for summary judgment, considered most favorably to Stone (see Barnes v. Washington, 56 Ill. 2d 22, 26, 305 N.E.2d 535, 538 (1973)),presents a close question of tort law in regard to duty. Based upon the latest precedent of the Supreme Court of Illinois and what we consider to be the best policy, we hold that Redmon did not breach any duty to Stone, and we affirm the summary judgment.

The factual situation presented was substantially as follows: (1) on September 16, 1990, Laurie A. Jones was driving an automobile on a two-lane highway when her motor stopped; (2) leaving the vehicle on the road, Jones went to Redmon's house for help, and he drove her to a gasoline station where they obtained gasoline; (3) they drove back to where the stalled automobile was located, arriving after dark; (4) the stated vehicle was unlighted; (5) Redmon neither turned on any of the vehicle's lights nor attempted to remove it from the road; (6) rather, Redmon opened the hood of the stalled car and attempted to start the car by manipulation of the carburetor and infusion of gasoline; (7) after Redmon spent 10 or 15 minutes attempting to do so, Stone drove along the road and ran into the rear of the stalled car; (8) Stone was injured in the collision; and (9) Redmon could have pushed the vehicle off the road and turned on the hazard lights prior to the collision.

These proceedings were initiated when Redmon filed a complaint in the circuit court of Macoupin County on June 29, 1991, against Stone seeking compensation for injuries he allegedly received from the collision (case No. 91-L-59). Subsequently, Jones filed a complaint in the same court against Stone seeking compensation for her alleged injuries (case No. 92-L-50). The cases were consolidated and, in each case, the defendant filed a counterclaim against that plaintiff. Redmon moved for a summary judgment as to Stone's counterclaim, maintaining he had not breached any duty to Stone and, if he had, any such conduct was not a proximate cause of her injuries. On July 25, 1995, the circuit court allowed that motion and made a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), which made that summary judgment appealable. Stone then filed the instant appeal.

A summary judgment should only be granted when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1992); Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871, 95 Ill. Dec. 305 (1986). Summary judgment is proper when the evidence properly before the court shows that, if the cause of action were to go to trial, there would be no issues for the trier of fact to decide and the proponent would be entitled to judgment as a matter of law. Barnes, 56 Ill. 2d at 26-27, 305 N.E.2d at 538; Fooden v. Board of Governors of State Colleges & Universities, 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500 (1971).

Here, the basis of the summary judgment was the testimony in the depositions of Stone, Jones, Redmon, and Paula Marie Mitchell. The latter was a friend of Stone's who testified she drove past the stalled vehicle shortly before Stone did and, at that time, the vehicle was on the highway and unlighted. The other testimony indicated the existence of a factual question as to the situation of the vehicle. The evidence was undisputed that Redmon did not enter the vehicle but had lifted the hood of that vehicle and was attempting to get it started. The parties acknowledge that under the voluntary-undertaking theory, one who volunteers to assist another can be liable for the negligent performance of the undertaking. Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 74, 199 N.E.2d 769, 773-74 (1964); Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32, 605 N.E.2d 557, 560, 178 Ill. Dec. 763 (1992). The parties also seem to acknowledge that the duty imposed depends upon the extent of the volunteer's undertaking. Frye, 153 Ill. 2d at 26, 605 N.E.2d at 560.

The parties dispute whether the voluntary undertaking of Redmon to help Jones start her car included a duty to protect users of the highway from the danger of the stalled car alleged to be on the highway by taking affirmative steps to alleviate the situation, and whether his failure to do so was a proximate cause of Stone's injuries. We have little problem with the proximate cause issue, but, as we have indicated, we find the duty question difficult. We consider the duty question first.

Many tort cases which arise from action by a volunteer concern injury to the person the volunteer seeks to help and the duty the volunteer owes to that person. Here, the injured party is a third person. In Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 415-16, 583 N.E.2d 538, 544, 164 Ill. Dec. 622 (1991), the supreme court indicated that in such a case, section 324A of the Restatement (Second) of Torts (Restatement (Second) of Torts ยง 324A (1965) (hereinafter Restatement)) states an appropriate standard. Section 324A of the Restatement states:

"Liability to Third Person for Negligent Performance of Undertaking.

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking." ...

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