Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 10 L 6670. The Honorable Michael Panter and William E. Gomolinski, Judges, presiding.
For Plaintiff-Appellant: David A. Novoselsky, Jonathon P. Novoselsky, Novoselsky Law Offices, Chicago, Illinois.
For Defendants-Appellee: Jason Orleans, Bradley A. Bertkau, Chilton Yambert Porter LLP, Waukegan, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
[¶1] Plaintiff, Himzo Rahic, a truck driver, suffered a serious head injury while picking up a load of freight from defendant, Satellite Air-Land Motor Service, Inc., but has no memory of the incident. Robert Kruse, the Satellite employee who loaded Rahic's truck and was the only person with Rahic immediately before he was injured, claims ignorance regarding how the injury occurred. Rahic sued Satellite, Kruse, and Cousin Properties, LLC, the owner of the property where the injury occurred, on negligence, premises liability, and spoliation of evidence. The trial court granted summary judgment in favor of Satellite and Kruse on Rahic's negligence claim, finding that because the cause of Rahic's injury remained a matter of speculation, Rahic failed to produce a genuine issue of material fact on causation. Rahic amended his complaint and again raised a negligence claim against Satellite and Kruse and added a new claim against both parties under the doctrine of res ipsa loquitur. The trial court granted Satellite and Kruse's motion to dismiss the negligence and res ipsa loquitur claims on res judicata grounds and denied Rahic's motion to reconsider.
[¶2] Rahic argues the trial court erred in granting summary judgment on his negligence claims. He contends that despite no direct evidence as to how his injury happened, the circumstantial evidence created
a genuine issue of material fact for the jury to decide whether Satellite and Kruse caused his injuries. Rahic also contends the trial court erred in dismissing his negligence and res ipsa loquitur claims on res judicata grounds because the summary judgment order was not a final order and res ipsa loquitur constitutes a separate and distinct claim from ordinary negligence.
[¶3] We affirm. Nothing in the record indicates how Rahic injured his head, and, accordingly, he is unable to show that defendants were the cause and thus unable to make a claim for negligence. And res ipsa loquitur cannot be invoked here in light of the absence of any evidence that the injury resulted from an instrumentality under defendants' control or that defendants failed to exercise ordinary care.
[¶5] On April 8, 2009, Rahic, an owner-operator truck driver for R& M Trucking, drove to R& M Trucking's office in Bensenville, Illinois, to pick up his tractor-trailer and get his assignment. Rahic was dispatched to Joliet and then to Schaumburg, Illinois, before returning to Joliet for an empty 20-foot shipping container which needed to be taken to Satellite's facility in Wood Dale, Illinois. Arriving at about 1:30 p.m., Rahic parked his truck in the Satellite lot and went inside. After giving a Satellite employee the pickup number, Rahic was instructed to park in dock five. Rahic opened the rear doors of his container and backed up to the assigned dock. Rahic got out of his truck to make sure he was parked correctly. He then returned to his truck and sat inside talking on the phone to another truck driver, Enes Karic, for about a half hour. Karic stated that he did not notice anything out of the ordinary about Rahic while they talked. Meanwhile, Robert Kruse, a Satellite employee, loaded the container.
[¶6] The container loaded, Rahic signed some papers and, at Kruse's request, moved his truck forward about five feet so the container doors could be closed. Rahic then got out of his truck and walked toward the back with Kruse to close the doors. While he was at the back of his truck, Rahic injured his head, but does not remember how. In his deposition, which was taken with the assistance of an interpreter, Rahic initially said Kruse helped him close the back left door of the container. Later, however, Rahic said " I don't know if [Kruse] was helping me with something, but I had an accident." Rahic also said " I don't know what [Kruse] was trying to help me with. I only know that something hit me." And, " I don't know what hit me." Rahic then got back in his truck and called his friend Enes Karic and told him he had pain in his head. Karic sent a friend, Elez Salihbegovic, to Satellite to check on Karic. Salihbegovic noticed that Rahic was holding his head, was pale, and had a lump on his head but he did not see any blood or wounds.
[¶7] The Satellite employee, Kruse, stated in his deposition that after he loaded the truck, he went to the office to grab some paperwork then went outside to talk to Rahic, who was in the truck. According to Kruse, after Rahic pulled his truck forward a bit, Rahic got out of the truck, walked to the back and closed the doors. Kruse said he did not help Rahic close the doors and did not see him strike his head on the door, fall down, or injure himself in any way. Kruse claimed he was unaware anything was wrong with Rahic until more than an hour later when his boss asked him if Rahic's truck ...