The opinion of the court was delivered by: Justice Buckley
Appeal from the Circuit Court of Cook County.
The Honorable Robert P. Bastone, Judge Presiding.
Plaintiffs, Rita and Dennis Largosa, brought this action against defendant, Arizona Bungee, Inc., d/b/a Bungee over Chicago (Arizona Bungee), for damages sustained as a result of the alleged negligence of defendant in operating its business in close proximity to a busy highway. On August 15, 1997, the trial court entered summary judgment in favor of defendant, on the grounds that defendant owed no duty of care to plaintiffs.
Following the trial court's decision to non-suit co-defendant, Ford Motor Company (Ford), on November 4, 1997, plaintiffs filed this timely appeal and maintain the circuit court was incorrect in finding defendant owed no duty of care to plaintiffs.
The relevant facts are as follows: Plaintiffs were injured on May 29, 1992, when Rita Largosa lost control of her car and collided with the median divider wall on northbound Interstate 294. Her husband, Dennis Largosa, was a passenger in the car at the time of the accident.
On July 30, 1993, plaintiffs filed a complaint naming Ford, the Village of Bridgeview and Arizona Bungee as defendants. Arizona Bungee filed a motion to dismiss pursuant to section 2-615 of the Illinois Code of Civil Procedure on September 9, 1993. 735 ILCS 5/2-615 (West 1992). The lower court denied the motion to dismiss on November 15, 1993, and ruled that a duty did exist because the foreseeability of injury was great and the burden of moving the bungee-jumping business was small. Plaintiffs then filed their first-amended complaint against Ford and Arizona Bungee on December 3, 1993. *fn1 Counts IV, V and VI of the first-amended complaint alleged that while driving northbound on Interstate 294 plaintiffs were "cut off by an unknown vehicle whose driver was gaping at bungee-jumpers adjacent to and over Interstate Highway 294 forcing the Plaintiff to turn suddenly to avoid a collision with the unknown vehicle." This complaint further alleged that Arizona Bungee's "careless and negligent acts" in operating a bungee-jumping business in close proximity to a busy highway without any warning to the public were a proximate cause of plaintiffs' injuries.
Defendant's bungee-jumping business allowed customers, outfitted with a harness and elastic cord, to jump from the top of a crane to a swimming pool below. As the person dropped toward the ground, the cord would extend and allow the person to approach, but not come in contact with, the swimming pool water. As pled in plaintiffs' first-amended complaint, defendant's business was duly authorized and licensed to operate at this location. However, the complaint did not allege that the land adjacent to the southbound lanes of Interstate 294 was owned by defendant. *fn2
At a deposition on November 15, 1995, Rita Largosa testified that as she drove northbound on Interstate 294 she noticed the bungee jumping to her left across the highway. She stated that as the northbound traffic slowed to watch the bungee jumping, the driver and passenger of a black Honda to her left were looking up at the bungee jumping. According to Mrs. Largosa, the black Honda then crossed into her lane, causing her to lose control of her own car and crash into the median wall.
Defendant filed a motion for summary judgment on February 27, 1997, which the trial court granted on August 15, 1997.
Plaintiffs maintain that the circuit court erred in granting defendant's motion for summary judgment. Specifically, plaintiffs argue that since the proximity of defendant's business to a busy highway increased the likelihood of serious injury to Interstate 294 motorists, and defendant's burden of placing its business in a less conspicuous location was small, defendant owed plaintiffs a duty of care.
It is well settled that summary judgment should be granted only when the pleadings, depositions, affidavits, and admissions show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1105(c) (West 1996); Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 374 (1998). On a motion for summary judgment, the court must consider all the evidence before it strictly against the movant for summary judgment and liberally in favor of the non-movant. Zekman, 182 Ill. 2d at 374. When reviewing a trial court's order granting a motion for summary judgment, the standard of review is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
In order to prevail on a negligence claim, a plaintiff must show a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. Ward v. K- mart Corp., 136 Ill. 2d 132, 140 (1990). When deciding whether to impose a duty, Illinois courts consider (1) the foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing the burden upon the defendant. Ward v. K-mart Corp., 136 Ill. 2d at 140-41. In a negligence action, the determination of whether a duty exists is an issue of law and depends upon whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47 (1991).
Although the specific fact scenario in the case at bar presents a case of first impression, Illinois courts have previously addressed the analogous question of the duty owed by a property owner to people using an adjacent highway. Whittaker v. Honegger, 284 Ill. App. 3d 739, 741-42 (1996); Ziemba v. Mierzwa, 142 Ill. 2d 42, 45 (1991); Abdo v. Trek Transportation Co., 221 Ill. App. 3d 493, 496 (1991). In those cases, the courts have focused on the reasonable foreseeability of the injury before deciding whether to impose a duty on the property owner. See Ziemba, 142 Ill. 2d at 49; Abdo, 221 Ill. App. 3d at 496. Accordingly, our analysis begins by examining the reasonable foreseeability of a highway motorist losing control of her car when another car crosses into her lane of traffic because this second car may have been distracted by an uncommon sight along the highway. See Ward, 136 Ill. 2d at 151-52 (proper inquiry is whether the alleged condition was inherently dangerous under the specific facts of the case, not in the abstract).
Section 368 of the Restatement (Second) of Torts is instructive on the duty of a landowner to travelers on adjacent highways: "A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who (a) are travelling on the highway, or (b) foreseeably deviate from it in the ordinary course of travel." Restatement (Second) of Torts §368, at 268 (1965). Numerous cases have applied this principle to accidents caused by accumulations of snow, ice and gravel moving from adjacent property to a well-traveled highway. For example, in Whittaker, the court found that an accumulation of loose gravel from defendant/land-owner's driveway on an adjacent highway, which caused the plaintiff to lose control of his motorcycle, created a duty on the part of the defendant to prevent or remedy any conditions arising by virtue of the driveway. Whittaker, 284 Ill. App. 3d at 743. However, the court made clear that its decision relied on defendant having allowed a condition to develop "that was literally on the highway ...