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Buffa v. Haideri11/16/2005
In these consolidated appeals, plaintiff, Cynthia Buffa, as special administrator of the estate of Gregory Buffa, appeals from an order of the circuit court of Du Page County entering summary judgment for the defendant Illinois State Toll Highway Authority (Authority) in plaintiff's wrongful death lawsuit. Defendants Liaquat Haideri and A & H Transportation, Inc. (A & H, or, together with Haideri, the A & H defendants) appeal from that order and from the dismissal of their counterclaim for contribution from the Authority. We affirm.
Plaintiff's four-count complaint alleged that, on December 2, 2001, while riding a motorcycle on Interstate 355, a toll road operated by the Authority, decedent suffered fatal injuries in a collision with a vehicle operated by Haideri. Count I sought recovery from Haideri for negligence. Count II sought recovery from A & H on the basis that, under agency principles, it was liable for Haideri's negligence. Counts III and IV alleged that icy conditions on the roadway caused decedent's death and that the Authority caused or created the hazard or failed to properly remove the ice or warn motorists of the hazard. Count III claimed that the Authority acted negligently. Count IV claimed that the Authority acted with reckless disregard for decedent's safety.
After unsuccessfully moving to dismiss counts III and IV for failure to state a cause of action, the Authority moved for summary judgment on those counts. In support of the motion, the Authority submitted a copy of the deposition of Reed Dewey, who was a friend of decedent and who partially witnessed the accident. Dewey testified that on the morning of the accident he and decedent set out from Mount Prospect on their motorcycles. They proceeded along Route 53 to Interstate 355. Dewey noticed fog as he and decedent rode, and he observed that ice was forming on his chaps. He also noticed that bridges and overpasses were icing up. According to Dewey, as they went through the I-PASS lane at the Army Trail Road Toll Plaza, decedent's motorcycle started to fishtail, and Dewey realized that they were riding on ice. Dewey saw decedent's motorcycle begin to fall over, but he did not see decedent's actual impact or his collision with Haideri's vehicle. According to Dewey, the toll plaza was essentially constructed on an overpass.
In support of its summary judgment motion, the Authority argued, in essence, that there was no evidence that the ice that caused decedent's accident was anything but a natural accumulation, and that the Authority had no duty to protect decedent from the risk of harm from a natural accumulation of ice. In response, plaintiff conceded that the ice was a natural occurrence. However, she argued that liability should be imposed based on the Authority's own undertaking to remove snow and ice from the roads under its control. Plaintiff acknowledged the holding of Chisolm v. Stephens, 47 Ill. App. 3d 999 (1977), that a gratuitous undertaking to remove ice does not give rise to a continuing duty to do so; thus, liability ordinarily can be imposed only for misfeasance, i.e. performing the undertaking negligently, rather than nonfeasance, i.e. failing to perform the undertaking altogether. Chisolm, 47 Ill. App. 3d at 1006 (a person who has gratuitously assumed to protect others against injury is under no obligation to continue that protection indefinitely). However, plaintiff argued that Chisolm recognized that liability for nonfeasance in connection with a gratuitous undertaking may arise where the beneficiaries had relied on its performance. Chisolm, 47 Ill. App. 3d at 1007. In opposition to the Authority's motion, plaintiff submitted a copy of literature placed on the Internet
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