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Robin R. Foreman v. Gunite Corporation

June 8, 2012

ROBIN R. FOREMAN,
PLAINTIFF-APPELLANT,
v.
GUNITE CORPORATION, A DELAWARE CORPORATION,
DEFENDANT-APPELLEE AND THIRD-PARTY PLAINTIFF (DEDICATED SERVICE, INC., AND DISTRIBUTION SERVICES, INC.,
THIRD-PARTY DEFENDANTS).



Appeal from the Circuit Court of Cook County. No. 06 L 7740 The Honorable Eileen M. Brewer, Judge Presiding.

The opinion of the court was delivered by: Justice Lampkin

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

Presiding Justice Robert E. Gordon and Justice Garcia concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Robin Foreman, appeals the trial court's order granting summary judgment in favor of defendant, Gunite Corporation, on the issue of proximate cause in the underlying negligence action. Plaintiff contends the trial court erred in finding that there were no genuine issues of material fact and that he could not establish that defendant proximately caused his injuries as a matter of law. Based on the following, we reverse and remand for further proceedings.

¶ 2 FACTS

¶ 3 According to plaintiff's complaint, on May 18, 2001, he was employed as a truck driver by Distribution Services, Inc. (DSI),*fn1 to transport a load from defendant's Illinois facility to its Indiana facility. While traveling eastbound on Interstate 290 on the ramp for southbound Interstate 294, the load in plaintiff's trailer shifted causing the truck to rollover, resulting in injuries to plaintiff. Plaintiff alleged that defendant failed to properly clean, load, and tie down, fasten, or otherwise secure the items in the truck. Defendant responded to plaintiff's complaint by denying the allegations and asserting the affirmative defenses of contributory negligence and lack of joint and several liability.

¶ 4 In his deposition, plaintiff testified he had no recollection of the accident because of a brain injury that he sustained. Plaintiff, however, recalled that his truck was loaded with pallets at half of the truck's capacity and that those pallets were loaded down the middle of the truck. A bill of lading confirms plaintiff's testimony as to the weight of the haul. Plaintiff further testified at his deposition that he did not recall ever having his truck loaded with pallets down the middle prior to the date in question. At the time of the accident, plaintiff had been driving the route between defendant's facilities approximately five to six times per week for one year. Plaintiff never raised any safety complaints against defendant. Plaintiff acknowledged that it was his obligation as a driver to inspect his load prior to leaving a facility. Specifically, plaintiff would ensure there was no loose material and that the floor of the truck was clean. Plaintiff did not recall inspecting the load on the date in question; however, he assumed that he did. Plaintiff's first memory following the accident was in the hospital. Plaintiff received traffic tickets due to the accident to which he pled guilty and paid related fines.

¶ 5 Illinois State Trooper Anthony Wise submitted an affidavit averring that he had no independent recollection of the accident and his testimony would be based on the traffic accident report that he authored upon responding to the crash, in which he provided that "the driver stated while traveling on the s/b ramp to I-294 the trailer started leaning to the side. He lost control striking the sound wall on the right shoulder. This caused the truck tractor semi-trailer to overturn resting on its right side."

¶ 6 Joseph Grossman testified at his deposition that he was a truck driver for DSI at the time in question and also drove between defendant's facilities. Defendant filed a motion to strike Grossman's deposition; however, the trial court never ruled on the motion. Grossman testified that, on the morning in question, defendant's employees loaded all of the trucks, including plaintiff's and Grossman's, with half loads, placing the pallets in a straight line down the middle of the truck. Grossman had never hauled a truck loaded in the same manner prior to that date. According to Grossman, loading a truck in that manner without any securement could cause a load to shift "just going down the road." On the date of the accident, Grossman found that his truck was leaning when he arrived at defendant's Indiana facility. In addition, two other drivers that arrived before Grossman had trucks that were leaning so severely that, when docked next to each other, the trailers were touching. Grossman observed that those drivers' loads had shifted inside of the trucks. Grossman testified that he informed his supervisor that the only reason plaintiff's truck rolled over was because the items were loaded down the middle of the truck, adding that Grossman's load had shifted on that date as well.

¶ 7 Following plaintiff's accident, DSI formed an investigation committee, which included James Erickson, DSI's safety director; Robert Wiest, DSI's operations manager and plaintiff's supervisor; and Mike Zezza, DSI's vice president of operations. After reviewing photographs of the scene and plaintiff's truck, consulting the traffic accident report, and speaking to plaintiff and other drivers with trucks loaded at the same time, the committee concluded that the cause of the accident was due to driver error resulting from excessive speed. A letter indicating the committee's conclusion was written by Weist two years after the accident.

¶ 8 Erickson testified at his deposition that a driver is responsible for inspecting and securing his load and driving in a safe and reasonable manner. Erickson did not believe the accident was caused by a load shift or defendant's error. Erickson testified that plaintiff was hired despite having four personal speeding tickets.

¶ 9 Wiest testified at his deposition that a driver is responsible for ensuring a load complies with weight restrictions and that the trailer is clean and free from any and all debris. According to Wiest, a driver could ask that his truck be reloaded if he felt it was not safely loaded. Wiest testified that he spoke to plaintiff, who stated that his load shifted and caused the accident.

ΒΆ 10 Zezza testified at his deposition that it is a driver's responsibility to use the most appropriate load-securing method. Zezza testified that plaintiff voluntarily quit driving for DSI on October 18, 2000. Prior to leaving, plaintiff had no safety issues indicated on his record. Plaintiff returned to his employment with DSI sometime thereafter. According to Zezza, plaintiff ultimately was terminated following the accident for operating a company vehicle ...


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