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John Lewis v. Chica Trucking

March 31, 2011

JOHN LEWIS, PLAINTIFF-APPELLANT,
v.
CHICA TRUCKING, INC., AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE DEFENDANTS.



Appeal from the Circuit Court of Cook County. No. 06 L 13436 Honorable (SRF P.C. Trucking Corporation, Acorn Garage, Inc., Thomas P. Quinn, and Midway Auto Truck Service, Inc., ) Judge Presiding.

The opinion of the court was delivered by: Justice Robert E. Gordon

JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Presiding Justice Garcia and Justice McBride concurred in the judgment and opinion.

OPINION

Plaintiff John Lewis brought suit for negligence against defendants Chica Trucking, Inc., SRF P.C. Trucking Corp., Acorn Garage, Inc., and Midway Auto Truck Service, Inc., after plaintiff sustained injury in an accident on December 29, 2004, when the brakes failed on the truck he was driving. Defendant Chica Trucking (Chica) filed a motion for summary judgment, claiming that it did not owe plaintiff a duty to inspect or repair his truck. The trial court granted summary judgment in Chica's favor, finding that Chica did not owe plaintiff a duty as a matter of law. Plaintiff appeals, arguing that Chica owed him a duty to inspect and repair the truck based on its voluntarily undertaking to inspect and repair the truck. We affirm the grant of summary judgment.

BACKGROUND

The facts of this case come primarily from the deposition testimony of the parties. SRF P.C. Trucking Corporation (SRF) was an Illinois corporation organized in June or July 2004 for the purpose of purchasing and running a truck to transport goods. Fred Rabinowitz, the president of SRF and a partner at the law firm of Schaffner Rabinowitz & Feinartz, P.C., formed the company with David Feinartz, a law partner at the firm, and Jeff Hollingshead. Rabinowitz and Feinartz knew Hollingshead as client of the law firm, and it was Hollingshead's idea to start the company. Rabinowitz had no experience with trucks, but testified at his deposition that Hollingshead "was more into that" and knew drivers and how to run the trucking business. Rabinowitz testified that "the idea was to run the truck, lease it out, and hopefully make some side money."

Hollingshead was friends with John Spina, who was married to Patricia Cortez, the owner, president, and treasurer of Chica. Chica, like SRF, was a trucking broker that contracted to haul debris from construction sites. Rabinowitz testified, "[a]s far as the trucking company is concerned, we didn't have any real contact with [Spina] other than he knew the trucking business. I don't know if Jeff [Hollingshead] spoke with him about where do you find drivers, where do you dispatch and stuff like that." Spina testified that he did not have any conversations with Hollingshead about providing assistance for SRF in purchasing a truck other than advising Hollingshead to look in magazines.

On July 12, 2004, after SRF purchased a used Mack truck, SRF sent it to Acorn Garage (Acorn) for a "complete inspection and overhaul." Spina had taken trucks to Acorn in the past, but did not suggest to Hollingshead that he take SRF's truck there; Spina testified that Hollingshead "knew Acorn himself" from "being in the neighborhood." Rabinowitz did not deal with Acorn directly, but found out from Hollingshead that the repair work, mostly involving the truck's brakes, was costing more money than they had anticipated. Rabinowitz gave Hollingshead "an okay to go ahead and do what they had to do."

SRF owned only one truck and plaintiff was its only driver. At the time of the December 29, 2004, accident, plaintiff had been employed by SRF for approximately five months. At his deposition, plaintiff testified that his duties were to take SRF's truck to jobsites and "haul[] spoils and pick[] up gravel." The truck was kept in the "yard," which was a lot located in Chicago that was large enough to hold 10 to 15 trucks. The trucks in the yard were owned by various companies and individuals, including SRF and Chica. The yard was fenced and had a gate that had to be unlocked with a key. Plaintiff testified that "[t]he lady" from Chica provided him with a key to the gate.

Hollingshead hired plaintiff to drive the truck; Rabinowitz had no involvement in interviewing or hiring him, and did not meet plaintiff until after he had been hired. Rabinowitz testified that when plaintiff had problems with the paperwork after he was hired, he was assisted by Spina. Rabinowitz also believed that Cortez assisted plaintiff in filling out paperwork and Cortez confirmed that she did. Plaintiff testified that Spina was present when he began working for SRF and provided plaintiff with instructions.

Rabinowitz testified that the procedure for truck hauling assignments was that plaintiff would call Luise Trucking (Luise), a company that contracted to remove debris, and receive his assignment. The people at Luise were people whom Hollingshead knew, and Rabinowitz recalled going to Luise's office with Hollingshead near the time SRF purchased the truck. Spina also worked for Luise at one time, and Chica contracted its business to Luise, which would call Chica to direct it to jobsites. Rabinowitz testified that plaintiff was to contact Luise directly for assignments. Plaintiff testified that he received a daily telephone call from Chica, informing him what hours he was to work the next day and where he would be working.*fn1 Plaintiff did not receive any assignments from anyone other than Spina or Cortez. Based on plaintiff's telephone records, attached to his response to the motion for summary judgment, plaintiff's telephone and Cortez's telephone made contact approximately 127 times between July 16, 2004, and December 29, 2004, and plaintiff's telephone and Spina's telephone communicated approximately 111 times during that same period.

Plaintiff also testified that he was told to "[f]ollow Johnny," meaning that he was to drive his truck to the same locations as the Chica trucks, and that he and the drivers for Chica's two trucks would normally meet at the yard and "ran together."

Plaintiff would fill out two sets of paperwork for each job: one for Luise and one for SRF. Rabinowitz testified that Hollingshead usually picked up plaintiff's time sheets but that sometimes plaintiff dropped them off himself. However, plaintiff testified that when he went on assignments, someone at the work site would provide him with a voucher, which plaintiff left in the truck at the end of the day for Spina to pick up.

Rabinowitz testified that if plaintiff had any problems with the truck, he was to call Hollingshead. Plaintiff testified that the only regular contact he had with Hollingshead was to pick up his weekly paycheck and that he called Spina or Cortez in case of emergencies, such as when "something was wrong with the truck or [plaintiff] needed some information." Plaintiff estimated that over the five months he worked at SRF, he telephoned Spina or Cortez approximately 10 to 15 times concerning the truck. Rabinowitz generally did not become aware of repairs made to the truck until he was billed for the repairs.

Plaintiff testified that he had heard air leaking from the brakes of the truck several times prior to the accident. He also had problems with the brakes at least twice before December 2004, in approximately September and October 2004. When the first incident occurred in September 2004, he reported it to Spina, who directed him to take the truck to the repair shop. Plaintiff brought the truck to Midway Auto Truck Service (Midway) to be repaired. He told a man that he identified as the owner of Midway that the truck was leaking air and that "something is wrong." He also said that "I want to make sure that nothing happens to me in this truck." In response, the owner told plaintiff that he would "check it out." The owner later told plaintiff that Midway "made a few adjustments with the lines and a couple of pins or something in it, you know, to stop the air leakage and stuff." Plaintiff later testified that he observed someone under the truck, inspecting the brake lines and observed the person putting in new brake lines. Plaintiff testified that the repair took approximately one hour, and it was paid for by charging it to the account that Chica kept with Midway; plaintiff testified that Spina directed him to charge the repair to Chica's account.

The second incident also involved plaintiff hearing air leaking from the brakes, as well as the clutch being "too low" and problems with the truck cab's heater; there was also a problem with the door opening when plaintiff drove over bumps in the road. He brought it to Midway again, where the owner said it would take the entire day to inspect the truck. Plaintiff spoke to Hollingshead on the telephone and he told plaintiff not to leave the truck with Midway, so plaintiff drove the truck back to the yard. Midway worked on the truck slightly during that visit and made some adjustments to the clutch and fixed the heater; plaintiff did not think that any work was done on the brakes. Plaintiff knew that the clutch adjustment had been made because the owner of Midway told him so and plaintiff could tell that an adjustment had been made when he drove the truck. Again, plaintiff testified that the work was charged to Chica's account. Plaintiff further testified that he also informed Hollingshead of the problems with the air leaking, but that it was Spina who told him to take the truck to Midway.

Conversation With Cortez

Approximately two days before the accident, plaintiff testified, he took the truck to Acorn, located directly across the street from the yard, and told someone there that "something was wrong with the brakes." While he had been driving the truck, plaintiff noticed "[s]lippage" with the brakes, which he described as "[s]ometimes they stopped, sometimes they didn't." Plaintiff described an incident in which he was trying to slow the truck, but the brakes "went to the floor" and he was only able to stop the truck by using the clutch; plaintiff observed that the brakes were slowing the truck down and were not immediately responding. Plaintiff testified that when the slippage occurred, "that's when I knew something was wrong with [the brakes]."

Plaintiff did not report the problem to SRF, because he had been instructed by Hollingshead to report everything to Spina; however, plaintiff later testified that he brought the problem to Hollingshead's attention. Plaintiff called Spina, who told him to take the truck to Acorn, and he did. Plaintiff testified that he spoke directly with someone at Acorn concerning the problems with the brakes, and he testified that the person at Acorn told him to "put it in the yard" because there was no room for the truck in the garage. Plaintiff then received a call back from Cortez, who also told him to "put it in the yard" and said "they'll look at it." Someone from Acorn told plaintiff that Acorn would examine the truck later; plaintiff testified that the Acorn employee "told me they was going to look at it." Plaintiff later testified that Cortez "said they'll look at it. She said they said they going to look at the brakes."

The next day, plaintiff received a phone call from Cortez. Plaintiff testified that he "got a phone call from Chica saying that they couldn't find anything wrong with the truck. That's my last time I had anything to do with Acorn over there, when she told me that Acorn couldn't find anything wrong with the brakes." When asked whether the Acorn employee looked at the truck, plaintiff responded, "[n]o, not that I know of."

In her deposition, Cortez testified that she did not arrange for any service or maintenance for any truck other than the two Chica trucks in 2004, and she did not have any knowledge of any service or maintenance performed on plaintiff's truck. There was a phone log introduced during Cortez's deposition showing that her cell phone had made a call to plaintiff's phone on December 26, 2004. However, neither of the phone numbers belonging to Cortez had communication with plaintiff either the day before or the day of the accident.

Additionally, Acorn answered several requests to admit propounded by Chica:

"1. Admit that at no time prior to December 29, 2004, did any agent, representative, employee or officer of Chica Trucking, Inc. ever request or order that any work be performed on a truck owned by SRF P.C. known as SRF Truck No. 177 .

RESPONSE:

Defendant admits that at no time prior to December 29, 2004 did any employee or representative of Chica Trucking request or order Acorn Garage to perform work on SRF P.C. Truck No. 177. As to balance of request, Defendant cannot admit or deny whether Chica Trucking requested or ordered work from any other entity.

2. Admit that at no time prior to December 29, 2004, did any agent, representative, employee or officer of Chica Trucking, Inc. ever pay for any work that was performed on a truck owned by SRF P.C. known as SRF Truck No. 177 ***.

RESPONSE:

Defendant admits that at no time prior to December 29, 2004, that any employee or representative of Chica Trucking paid Acorn Garage in connection with SRF P.C. Truck No. 177. As to the remainder of request, Defendant cannot admit or deny whether Chica paid any other entity for work on SRF P.C. Truck No. 177.

3. Admit that at no time prior to December 29, 2004, did any agent, representative, employee or officer of Chica Trucking, Inc. ever recommend that any work be performed on a truck owned by SRF P.C. known as SRF Truck No. 177 .

RESPONSE:

Defendant admits that Chica Trucking did not recommend to Acorn Garage that any work be performed on a SRF P.C. Truck No. 177. As to remainder of request, Defendant cannot admit or deny whether Chica Trucking recommended work be performed on subject truck to any other entity.

4. Admit that at no time prior to December 29, 2004, did any agent, representative, employee or officer of Chica Trucking, Inc. ever deliver such a truck for work owned ...


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