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Bermudez v. Martinez Trucking

August 25, 2003


Appeal from the Circuit Court of Cook County. No. 99 L 4344 The Honorable Sharon Johnson Coleman, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Gordon


Plaintiff-appellant Gregorio Bermudez, a/k/a Sergio Tavizon (plaintiff), appeals from a directed verdict entered by the trial court for defendants-appellees Martinez Trucking, D. Martinez Trucking Corporation and Pedro Rodriguez (defendants or as named). Plaintiff had been driving as a trainee with Rodriguez in a tractor-trailer truck owned by Martinez Trucking and D. Martinez Trucking Corporation when, while Rodriguez was asleep in the truck's cab, plaintiff lost control and hit a highway barrier wall, sustaining injuries. Upon defendants' motion, the trial court directed a verdict in their favor, concluding that plaintiff presented no evidence that defendants' conduct was a proximate cause of the accident that resulted in his injuries. On appeal, plaintiff contends that the trial court erred in entering the directed verdict because there was evidence from which the jury could have concluded that the accident would have been avoided had Rodriguez remained awake. For the following reasons, we affirm.


Plaintiff testified that in May 1998, he met David Martinez (Martinez), *fn1 the president of Martinez Trucking, a corporation based in Franklin Park, Illinois, that hauls materials in tractor-trailer trucks. Plaintiff, who had a commercial driver's license permit (CDLP), asked Martinez if he could train at his corporation in order to learn to drive a tractor-trailer truck and gain experience to obtain a commercial driver's license (CDL). Plaintiff testified that Martinez told him he could train with his employee Rodriguez, and that if plaintiff passed his CDL test, he would hire plaintiff to work at Martinez Trucking. Plaintiff stated that for the next month, he rode in a tractor-trailer truck with Rodriguez on Rodriguez's route hauling waste to and from the Illinois-Iowa border three to six times per week. Rodriguez would drive through the city areas and then would pull over and allow plaintiff to drive on the highway portion of the route, which always encompassed the same stretch of Interstate 88 (I-88). Plaintiff testified that while he would drive, Rodriguez would sometimes go into the cab of the truck immediately behind the front seats and sleep. Plaintiff stated he had no problem with Rodriguez going to sleep while he was driving.

Plaintiff testified that on June 27, 1998, he met Rodriguez as he usually did at Martinez Trucking around 2 or 3 a.m. to begin the day's route. Rodriguez drove the truck through the city areas and, once they reached I-88, moved to the passenger seat and allowed plaintiff to drive the truck. After a while, Rodriguez climbed into the cab directly behind plaintiff and went to sleep. Plaintiff testified that he was comfortable driving that day and did not feel the need to pull the truck to the side of the road and wait for Rodriguez to wake up. Plaintiff stated that at the time, he was not scared to drive the truck by himself and he was not sleepy. Plaintiff testified that he continued driving for approximately 2 ½ hours at the posted speed limit, between 50 and 55 miles per hour. Plaintiff further testified that, all of a sudden, he lost control of the truck and hit a highway barrier wall. He stated that he has no memory of the accident: he cannot remember the road, traffic or weather conditions, which lane he was in, or anything that happened immediately before he hit the wall. Plaintiff testified that his only memory is waking up in the hospital. He sustained multiple injuries, including the amputation of his leg.

Defendant Rodriguez testified that he was hired by Martinez Trucking after he received his CDL, about four months before the accident in question. Rodriguez stated that Martinez asked him to train the plaintiff to drive the truck, but gave him no further instructions on how to do this. Rodriguez testified that he taught plaintiff how to start, stop and turn the truck, and gave him information about the truck's gauges, tires and brakes. He allowed plaintiff to drive the truck on I-88 when plaintiff accompanied him on his daily route, which was three to six times per week. Rodriguez stated that as of June 1998, plaintiff was not yet ready to drive alone in the city areas, but was capable of driving alone on I-88. Rodriguez averred that on the morning of the accident, he drove through the city areas of the route and, upon reaching I-88, moved to the passenger seat and allowed plaintiff to drive the truck. After a while, Rodriguez moved to the back of the cab behind plaintiff and went to sleep, as he had done several times before. Rodriguez stated that he woke up about two hours later when the truck hit the highway barrier wall. At that point, Rodriguez knew the truck was out of control and tried to grab the steering wheel, but could not. Rodriguez testified that he did not know how the accident happened and that plaintiff never expressed any concern about his ability to drive the truck on I-88 nor demonstrated any problem when he did so. Rodriguez further testified that he had no concerns about his own safety when plaintiff drove the truck on I-88.

Plaintiff presented the expert testimony of George Beaulieu, the president of a tractor-trailer driving school. Beaulieu opined that Rodriguez was negligent when he went to sleep instead of supervising and training plaintiff while he was driving the truck on I-88. He stated that tractor-trailer trainees get physically and mentally exhausted when driving the trucks and oftentimes make mistakes. While they are usually too focused on driving to fall asleep, trainees can lose comfort in their driving ability. Beaulieu stated that from his review of the accident report, it was his opinion that plaintiff had been driving in the left lane of the highway at the time of the accident and that this indicated that he lacked comfort while driving the truck. However, when asked what he believed was the cause of the accident, Beaulieu testified that there was no way to reconstruct the accident because there was "a lot of information missing" and "there is no evidence to tell" how the accident happened.

Defendants moved for a directed verdict on two grounds: that plaintiff failed to show that defendants breached a duty owed to him, and that plaintiff failed to show that defendants' actions were a proximate cause of the accident that caused his injuries. The trial court denied defendants' motion based on the first ground of breach, but granted the motion based on the second ground of lack of proximate causation. The court stated that the only evidence presented with respect to the cause of the accident was that plaintiff lost control of the truck and hit something; other than this, there was no evidence to indicate how the accident happened.


Plaintiff's sole contention on appeal is that the trial court's entry of a directed verdict in favor of defendants here was improper because sufficient circumstantial evidence had been presented from which a jury could conclude that the accident might have been avoided had Rodriguez remained awake and next to plaintiff in the truck so as to monitor and warn him that his driving might lead to a loss of control and result in an accident. For their part, defendants contend that the directed verdict was properly entered because plaintiff failed to present any evidence to establish the negligence element of proximate cause, i.e., that there was a causal connection between the defendants' alleged negligence and plaintiff's injuries. Based on the record before us, we agree with defendants.

We review the entry of a directed verdict on a de novo basis. See Sullivan v. Edward Hospital, 335 Ill. App. 3d 265, 272, 781 N.E.2d 649, 655 (2002); accord Susnis v. Radfar, 317 Ill. App. 3d 817, 825, 739 N.E.2d 960. 966 (2000). We will uphold a directed verdict where "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967); see also Thompson v. County of Cook, 154 Ill. 2d 374, 382, 609 N.E.2d 290, 293 (1993), and Sullivan, 335 Ill. App. 3d at 272, 781 N.E.2d at 655 (both citing and adopting the Pedrick standard for reviewing directed verdicts).

To properly state a cause of action for negligence, a plaintiff must show that the defendant owed a duty to him, that the defendant breached that duty, and that this breach was the proximate cause of the plaintiff's resulting injuries. See Barham v. Knickrehm, 277 Ill. App. 3d 1034, 1037, 661 N.E.2d 1166, 1169 (1996); Salinas v. Werton, 161 Ill. App. 3d 510, 514, 515 N.E.2d 142, 144 (1987). Proximate cause is an essential element of a negligence claim. See Pedersen v. Joliet Park District, 136 Ill. App. 3d 172, 175, 483 N.E.2d 21, 23 (1985). The burden rests with the plaintiff to "affirmatively and positively show" that the defendant's alleged negligence caused the injuries for which the plaintiff seeks recovery. McInturff v. Chicago Title & Trust Co., 102 Ill. App. 2d 39, 48, 243 N.E.2d 657, 662 (1968) (the plaintiff must show "a relationship between the act or omission and the injury or damage suffered that the act or omission may be said to be the proximate cause of such injury or damage"); see Geelan v. City of Kankakee, 239 Ill. App. 3d 528, 530, 605 N.E.2d 1015, 1016 (1992); Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 817, 416 N.E.2d 328, 331 (1981). While proximate cause is generally a question of fact, it becomes a question of law when the facts alleged indicate that a party would never be entitled to recover. See Barham, 277 Ill. App. 3d at 1039, 661 N.E.2d at 1170; Salinas, 161 Ill. App. 3d at 514-15, 515 N.E.2d at 144. Accordingly, if the plaintiff fails to establish the element of proximate cause, he has not sustained his burden of making a prima facie case and a directed verdict is proper. See Salinas, 161 Ill. App. 3d at 515, 515 N.E.2d at 144; Kimbrough, 92 Ill. App. 3d at 817, 416 N.E.2d at 331; accord Friedman v. Safe Security Services, Inc., 328 Ill. App. 3d 37, 47, 765 N.E.2d 104, 113 (2002) (directed verdict was proper where the plaintiff failed to prove proximate cause in negligence action).

As plaintiff in the instant case notes, the proximate cause element of a negligence action may be established through the presentation of circumstantial, rather than direct, evidence that supports more than one logical conclusion. See Nowak v. Coghill, 296 Ill. App. 3d 886, 896, 695 N.E.2d 532, 539 (1998) (defining circumstantial evidence as proof of facts from which other connected facts may be inferred, "according to the common experience of mankind"). However, the conclusion or inference that arises from this circumstantial evidence must be one that can reasonably be drawn. See Nowak, 296 Ill. App. 3d at 896, 695 N.E.2d at 539-40; Geelan, 239 Ill. App. 3d at 530, 605 N.E.2d at 1016. This is because liability on a negligence basis cannot be predicated upon mere surmise, guess or conjecture as to the cause of the injury. See Geelan, 239 Ill. App. 3d at 530, 605 N.E.2d 1016; accord Monaghan v. DiPaulo Construction Co., 140 Ill. App. 3d 921, 924-25, 489 N.E.2d 409, 411 (1986) ("an inference of negligence cannot be established on inferences which are merely speculative in nature"). Rather, "[p]roximate cause can only be established when there is a reasonable certainty that the defendant's acts caused the injury." Salinas, 161 Ill. App. 3d at 514, 515 N.E. 2d at 144; accord Kimbrough, 92 Ill. App. 3d at 817, 416 ...

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