The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
On the morning of September 2, 2004, a two-vehicle collision occurred on the Indiana Toll Road in Laporte County, Indiana. One of the vehicles, owned by defendant Falcon Transport Co. ("Falcon"), was heading eastbound when it collided with a truck parked on the right shoulder of the eastbound lanes. Third-party defendant Roadco Transport Services, Inc. ("Roadco") operated the parked truck. The driver of the Roadco truck, Frank Campfield, was killed. Campfield's widow, Gail Campfield, brought this suit against Falcon alleging that her husband's death resulted from Falcon's negligence. Falcon filed a third-party complaint against Roadco under the Illinois Joint Tortfeasor's Contribution Act, alleging that Roadco's own negligence proximately caused Campfield's death, and seeking contribution from Roadco for Roadco's pro rata share of any judgment against Falcon. Roadco has moved for summary judgment on the third-party complaint, arguing that -- as a matter of law -- no reasonable person could find that Roadco's alleged negligence was a proximate cause of Campfield's death. For the reasons stated below, the Court denies Roadco's motion.
Though there are questions at this point as to the admissibility of certain of the matters set forth in the parties' Rule 56 statements (particularly Falcon's), the Court can deduce the following to provide an overview of the relevant facts. Roadco is a full-service trucking company operating primarily on the East Coast and in the Midwest. A few days prior to the September 2, 2004 accident, Roadco hired plaintiff Campfield as a truck driver. On the night of September 2, Roadco called Campfield into work to haul a load of cooking oil from Cicero, Illinois to Brecksville, Ohio.
Soon after departing on the route, Campfield encountered a fuel problem while on the Indiana Toll Road. Roadco trucks, including the one driven by Campfield, are equipped with a Qualcomm communication system that allows drivers to communicate with the company and enables the company to pinpoint the precise location of each truck. According to a toll receipt found in the Roadco truck, Campfield entered the Toll Road at 2:00 a.m. and sent a Qualcomm transmission to Roadco seeking assistance at 3:07 a.m. It appears that Campfield sent further transmissions indicating a problem with the truck at 3:08 a.m. and at 6:21 a.m. Around 8:00 a.m., Indiana Senior Trooper Maggie C. Shortt was dispatched to Campfield's location after the state police received a call of a broken down truck and an individual walking away. Campfield apparently told Trooper Shortt that he had run out of fuel and had been sitting on the side of the road since around 3:30 a.m. Campfield also indicated that he had received no response from the company to the three Qualcomm messages he had sent. Trooper Shortt allowed Campfield to use her cell phone to call Roadco.
Around 9:36 a.m., Campfield was standing outside the Roadco truck on the left side of the vehicle, which was still parked on the right shoulder of the road. An eastbound truck, owned by Falcon and driven by Arthur Johnson, veered off the roadway and struck Campfield as it made contact with the side of the parked Roadco truck. Campfield was killed, and Johnson was severely injured. An accident investigator concluded, among other things, that Campfield had not placed any emergency triangles or lighted devices around the parked Roadco truck. The investigator further concluded from personal observation that the door latch inside the Roadco truck that would have given Campfield access to the emergency triangles was inoperable. Campfield could have accessed this equipment, although he would have had to crawl into the storage compartment from the other side of the truck. According to the accident investigator's report, a post-mortem toxicology screen performed by the coroner showed that Campfield had a blood alcohol level of .049% at the time of the accident.
As the Court stated at the outset, certain of these facts are likely inadmissible, at least for present purposes, because Falcon failed to cite to admissible evidence as required by Rule 56. For example, Falcon cited the accident investigation report to support its assertion that Campfield had a blood alcohol level of .049%, but did not attach the toxicology report itself, deposition testimony from the individual at the Laporte County Coroner's Office who performed the lab analysis, or an affidavit. Rather, Falcon merely cited to the accident investigation report, which makes reference to the toxicology report. Roadco is correct that the accident investigation report is inadmissible for the purpose of demonstrating Campfield's blood alcohol level, because the individual who prepared the report had nothing to do with performing the toxicology screen. See Miller v. Field, 35 F.3d 1088, 1091 (6th Cir. 1994) ("police reports have generally been excluded except to the extent to which they incorporate observations of the officer.") Several other facts cited by Falcon suffer the same infirmity. However, the Court can and will decide this motion without reliance on any of the facts cited by Falcon (including Campfield's alleged blood alcohol level) that do not appear to have a proper foundation for admissibility.
Summary judgment is proper when the evidence, viewed in the light most favorable to the non-moving party, presents "no genuine issue as to any material fact" such that "the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court must construe all facts and any reasonable inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Falcon's claim for contribution has two required elements: first, all parties must be liable in tort to the injured party, and second, all parties must be liable for the same injury. 740 ILCS 100/2(a). Vroegh v. J & M Forklift, 165 Ill. 2d 523, 529, 651 N.E.2d 121, 125 (1995); see also, e.g., Alper v. Altheimer & Gray, 257 F.3d 680, 684 (7th Cir. 2001). The second element is not at issue because all the claims in this action concern the same injury. The dispute between the parties is whether or not Roadco is liable in tort to Campfield, thereby giving Falcon a right of contribution.
Roadco's liability depends on whether it had, and breached, a duty of care to Campfield, proximately causing Campfield's injury. Springfield Bank and Trust v. Galman, 188 Ill. 2d 252, 256, 720 N.E.2d 1068, 1071 (1999); Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455, 605 N.E.2d 493, 502 (1992); Cannon v. Commonwealth Edison Co., 250 Ill. App. 3d 379, 381, 621 N.E.2d 53, 54 (1993). Proximate cause has two requirements: cause in fact and legal cause. See Springfield Bank and Trust, 188 Ill. 2d at 256, 720 N.E.2d at 1071; Lee, 152 Ill. 2d at 455, 605 N.E.2d at 502; Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 549, 836 N.E.2d 640, 651 (2005). Cause in fact is proven by showing that the defendant's action was a material element and a substantial factor in bringing about plaintiff's injury. Springfield Bank and Trust, 188 Ill. 2d at 257, 720 N.E.2d at 1071.
Legal cause "is essentially a question of foreseeability: a negligent act is a proximate cause of an injury if the injury is of a type which a reasonable man would see as a likely result of his conduct." Lee, 152 Ill. 2d at 456, 605 N.E.2d at 503 (quoting Masotti v. Console, 195 Ill. App. 3d 838, 845, 552 N.E.2d 1292 (1990)). In cases in which the subsequent negligent act of a third party (in this case Falcon) is claimed to have directly caused the injury, assessment of whether a party (in this case Roadco) that committed some earlier negligent act can be held liable turns on whether that party's conduct "was a material and substantial element in bringing about the injury" and whether "the intervening efficient cause was of a type that a reasonable person would see as a likely result of his or her conduct." Springfield Bank and Trust, 188 Ill. 2d at 259, 720 N.E.2d at 1072. Roadco has conceded that its conduct was a cause in fact of Campfield's death, i.e., but for Campfield being stranded on the side of the road without fuel, he could not have been struck by the Falcon truck. See Motion for Summary Judgment at 7.
Roadco argues, however, that its conduct was not the legal cause of Campfield's death because it could not foresee that the Falcon truck would strike Campfield while his truck was parked on the shoulder. Falcon's argument misses the mark.
Proximate cause is generally an issue for a jury to decide. It can, however, be determined as a matter of law if reasonable persons would not differ on the inferences to be drawn from the uncontested facts. Lee, 152 Ill. 2d at 455, 605 N.E.2d at 503; Merlo v. Public Svc. Co. of Northern Ill., 381 Ill. 300, 318, 45 N.E.2d 665, 675 ...