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02/07/97 PETER MROZ v. WASTE MANAGEMENT ILLINOIS

February 7, 1997

PETER MROZ, ADMINISTRATOR OF THE ESTATE OF ERIC MROZ, DECEASED, PLAINTIFF,
v.
WASTE MANAGEMENT OF ILLINOIS, INC., DEFENDANT. WASTE MANAGEMENT OF ILLINOIS, INC., THIRD-PARTY PLAINTIFF-APPELLANT, V. CHARLOTTE M. COOK, THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 91-L-20219. Honorable Gary L. Brownfield, Judge Presiding.

Released for Publication March 13, 1997.

The Honorable Justice Theis delivered the opinion of the court. Greiman, P.j., and Zwick, J., concur.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Third-party plaintiff, Waste Management of Illinois, Inc. (Waste Management), appeals the trial court's order granting third-party defendant's motion for summary judgment. We affirm.

While driving her car, third-party defendant Charlotte Cook encountered a garbage truck which she could not pass. Cook and the truck driver repeatedly gestured at each other to move. After several minutes, the driver of the truck finally reversed. In doing so, the truck hit and killed the minor son of plaintiff Peter Mroz.

Plaintiff Peter Mroz sued the truck driver's employer, Waste Management. Waste Management then filed a third-party action for contribution against Cook. Waste Management alleged that: (1) Cook blocked the roadway and prevented the truck from proceeding; (2) Cook failed to keep a lookout; (3) her conduct caused the driver to back up; (4) she failed to sound her horn to warn the driver of the child's presence; and (5) Cook's negligence was the proximate cause of the death of plaintiff Peter Mroz's son.

Cook denied the allegations and filed a motion for summary judgment based upon deposition testimony. In her deposition testimony, Cook stated that she turned left onto Ridgeway, a sloped street, where she encountered the garbage truck. While she originally believed there was room for the two vehicles to proceed, it soon became apparent that the street was too narrow. The truck was at a 45-degree angle and the driver's door was open. Cook waited for the driver, Thomas Slotowski, to move into the cab of his truck. Slotowski entered the truck and drove it forward, within a few feet of Cook's car. Slotowski motioned for Cook to reverse her car. Cook stated that she was afraid to reverse, as shrubs on the corner behind her blocked her view of oncoming traffic, and gestured at Slotowski to reverse.

The two parties repeatedly gestured at each other to reverse their vehicles. Finally, Slotowski reversed his truck. As Cook proceeded, she noticed something under the truck's wheels. Cook could see under the truck, as she was in a small car downhill from Slotowski. The two drivers exited their vehicles and Slotowski looked under the truck. When the truck had reversed, it had run over the plaintiff's minor son.

In his deposition testimony, Slotowski stated that Cook started the gesturing, pointing her finger at him to move. Slotowski then pulled his vehicle toward Cook's, as an attempt to "get [Cook] to move." Instead of reversing, Cook made a call on her cellular phone. Slotowski described the situation as a stalemate. Finally, Slotowski checked his mirrors and reversed. Slotowski acknowledged that most accidents occurred while reversing. Despite this knowledge, Slotowski failed to get out of his truck to check behind him, as required by Waste Management regulations. Slotowski stated that he believed everything was clear behind him, or else Cook would not be gesturing for him to reverse. However, Slotowski admitted that he did not believe that Cook was guiding or instructing him on how to reverse.

The trial court granted Cook's motion on two grounds. The court determined that Cook owed no duty to the decedent under these facts. In addition, the court concluded that Cook's conduct was not the proximate cause of the accident. Waste Management appeals. Because we find that the trial court properly determined that Cook had not voluntarily assumed a duty of care toward Slotowski, we need not reach the issue of proximate cause.

We review orders granting summary judgment under a de novo standard. Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ignarski v. Norbut, 271 Ill. App. 3d 522, 648 N.E.2d 285, 207 Ill. Dec. 829 (1995). All reasonable inferences are drawn in favor of the nonmoving party. However, the court is not required to make a "speculative leap" based upon evidence which is "too conjectural to support a reasonable inference." Turgeon v. Commonwealth Edison Co., 258 Ill. App. 3d 234, 252, 630 N.E.2d 1318, 1331, 197 Ill. Dec. 194 (1994). While Waste Management is not required to prove its case at this stage, unsupported allegations in the complaint will not save Waste Management from summary judgment. Ralston v. Casanova, 129 Ill. App. 3d 1050, 473 N.E.2d 444, 85 Ill. Dec. 76 (1984).

On appeal, Waste Management argues that the trial court erred in ruling that Cook did not owe a duty to carefully guide the truck driver as he reversed. The existence of a duty of care is a prerequisite to a plaintiff's recovery. Turgeon v. Commonwealth Edison Co., 258 Ill. App. 3d 234, 252, 630 N.E.2d 1318, 1331, 197 Ill. Dec. 194 (1994). "Factors relevant in determining whether a duty exists include: the foreseeability of injury, the likelihood of injury, the magnitude of the burden of guarding against the injury, the consequence of placing that burden on the defendant, and the possible seriousness of the injury." Diaz v. Krob, 264 Ill. App. 3d 97, 99 636 N.E.2d 1231, 1233, 201 Ill. Dec. 799 (1994).

The parties do not dispute that, under common law, a motorist typically owes no duty to signal or warn another driver as to whether its safe to proceed. See Luna v. Pizzas by Marchelloni, 279 Ill. App. 3d 402, 664 N.E.2d 1112, 216 Ill. Dec. 184 (1996). However, Illinois courts have recognized that even in the absence of a duty imposed by law, one may assume a duty where she gratuitously renders services to ...


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