No. 2--96--0713
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
WILLIAM BURSE, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellant, )
)
v. ) No. 92--LKA--0080
)
CR INDUSTRIES, INC.; CR )
INVESTMENTS, INC.; and CHICAGO )
RAWHIDE MANUFACTURING COMPANY, ) Honorable
) R. Peter Grometer,
Defendants-Appellees. ) Judge, Presiding.
________________________________________________________________
PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, William Burse, appeals from the May 13, 1996,
order of the circuit court of Kane County denying his motion to
reconsider an earlier order granting summary judgment on behalf of
the defendants, CR Industries, Inc., CR Investments, Inc., and
Chicago Rawhide Manufacturing Company (collectively referred to as
Chicago Rawhide). In granting summary judgment, the trial court
found that Chicago Rawhide owed no duty to the plaintiff as a
matter of law. We affirm.
The facts necessary to the disposition of this appeal are as
follows. In February 1990, the plaintiff was a truck driver
employed by Wheeling Transportation (Wheeling). Wheeling had
contracted for the exclusive right to haul Chicago Rawhide's goods
and freight. The plaintiff's primary job responsibility was to
haul Chicago Rawhide's freight from Chicago Rawhide's plant in
Elgin to locations in Oklahoma, Ohio, Toronto, North Carolina,
South Carolina, South Dakota, and Illinois.
Under the written transportation agreement between Wheeling
and Chicago Rawhide, Wheeling's transportation services were
described as those of an independent contractor. The agreement
provided that Wheeling would furnish drivers and tractors to
Chicago Rawhide for the purpose of shipping its goods to various
destinations. The agreement further provided that Chicago Rawhide
would load and unload the goods from the trailer at the points of
pick up and delivery.
On February 5, 1990, Wheeling's dispatcher instructed the
plaintiff to pick up a Wheeling tractor and go to Chicago Rawhide's
Elgin plant. Once at the plant, the plaintiff was to tarp a load
of steel pallet racks and to haul the load to Toronto. Tarping is
a process in which a tarp is rolled over the load and secured at
all sides. Although Chicago Rawhide was responsible for
determining whether a load was to be tarped, Wheeling was
responsible for performing the actual tarping. The plaintiff had
tarped and hauled steel for Chicago Rawhide on numerous prior
occasions and was familiar with the operation of the Elgin plant
and yard. The plaintiff understood that Chicago Rawhide employees
were forbidden to provide assistance in the tarping of any loads.
After the plaintiff arrived at the yard, he hooked his tractor
to a Chicago Rawhide flatbed trailer that had already been loaded
with steel. He then backed the truck into the loading bay of the
receiving dock, so that he could have a place to stand while
tarping the load. The dock, however, was not of a sufficient
height for the plaintiff to reach the top of the load; the dock was
3 feet above the ground, while the top of the load was 13 feet
above the ground. Due to this height difference, the plaintiff
encountered difficulty in tarping the load.
After making several unsuccessful attempts at tarping the
load, the plaintiff went to speak with Orley Cain, who was Chicago
Rawhide's traffic manager. The plaintiff told Cain that the load
was very high for a flatbed trailer and that there was no suitable
platform or other place for tarping. He asked Cain whether it
would be necessary to tarp the load before leaving the yard. Cain
replied that the load had to be tarped and that, if the plaintiff
needed help he should contact Wheeling.
Two other Wheeling drivers, who happened to be at the Elgin
plant at the time, assisted the plaintiff with the tarping
procedure for 15 or 20 minutes. Even with this assistance,
however, the plaintiff was only able to tarp a small portion of the
load. After the other drivers departed, the plaintiff contacted
Wheeling's dispatcher and explained that it was almost impossible
to tarp the load. The dispatcher told the plaintiff to "do the
best you can."
At no time did the plaintiff ask Cain or any other Chicago
Rawhide employee for assistance in tarping the load. Nor did he
ever request any type of support device or equipment from Chicago
Rawhide. The plaintiff did not make such requests because it was
his understanding that Wheeling personnel were to "keep a low
profile" and were not to bother Chicago Rawhide personnel.
Wheeling had instructed the plaintiff to keep Chicago Rawhide happy
"or else you walk."
It took the plaintiff approximately five hours to tarp the
load. In order to tarp the load, the plaintiff allegedly had to
climb up on top of the load, place his shoulder against part of the
steel, and brace himself with one foot while holding the tarp with
one hand. Although plaintiff slipped several times while climbing
on the load, he never fell to the ground. The plaintiff asserts
that he suffered a wrenching injury to his back from twisting and
turning his body while standing with one foot on the dock and one
foot up on the load.
On January 31, 1992, the plaintiff filed a negligence action
against Chicago Rawhide. On February 5, 1996, he filed a second
amended complaint. In the second amended complaint, he alleges
that Chicago Rawhide breached its duty to provide him with a safe
place to work. He alleges that this duty arose when Chicago
Rawhide, through its employees, became aware that he was having
difficulty tarping the load and that he did not have a platform of
sufficient height to perform his work. He alleges that Chicago
Rawhide knew or should have known that he had no alternative but to
climb on top of the load and that such a practice was dangerous.
On January 12, 1996, Chicago Rawhide filed a motion for
summary judgment, asserting that it had no control over the
plaintiff's tarping activities. Relying on Jackson v. Hilton
Hotels Corp., 277 Ill. App. 3d 457, 464-65 (1995), Chicago Rawhide
argued that it owed no duty to assist the plaintiff in the
performance of his work and that there was no evidence
demonstrating that it had breached its duty to provide the
plaintiff a safe work area. On February 27, 1996, the trial court
granted the motion for summary judgment, ruling that the case fell
squarely within the rule of law articulated in Jackson. On May 13,
1996, the trial court denied the plaintiff's motion for
reconsideration. The plaintiff filed a timely notice of appeal.
The plaintiff's sole contention on appeal is that the trial
court erred in entering summary judgment when there existed genuine
issues of material fact as to whether Chicago Rawhide had control
over the plaintiff's work and whether it breached its duty to
provide the plaintiff a safe place to work. The plaintiff also
argues that the trial court erred in relying on Jackson, asserting
that Jackson is distinguishable from the instant case.
The purpose of a motion for summary judgment is to determine
whether a genuine issue of triable fact exists (Purtill v. Hess,
111 Ill. 2d 229, 240 (1986)), and should be granted only when "the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law" (735 ILCS 5/2--1005(c) (West 1994)). An order
granting summary judgment should be reversed if the evidence shows
that a genuine issue of material fact exists or if the judgment was
incorrect as a matter of law. In re Estate of Herwig, 237 Ill.
App. 3d 737, 741 (1992). The disposition of a summary judgment
motion is not discretionary, and the standard of review is de novo.
Quinton v. Kuffer, 221 Ill. App. 3d 466, 471 (1991).
A complaint based upon negligence must allege facts sufficient
to show the existence of a duty owed by the defendant to the
plaintiff, the breach of that duty, and injury proximately
resulting from the breach. Ward v. K mart Corp., 136 Ill. 2d 132,
140 (1990). Whether a duty exists is a question of law for the
court and depends upon whether the parties stood in such a
relationship that the law would impose an obligation upon the
defendant to act reasonably for the plaintiff's protection. Gouge
v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542
(1991).
It is clear that the general duty of a possessor of land is to
exercise reasonable care for the safety of those who lawfully enter
his premises. Richardson v. Vaughn, 251 Ill. App. 3d 403, 407
(1993). Traditionally, a landowner's duty of reasonable care is
generally held not to encompass hazardous conditions of which the
entrant had been made aware and which are open and obvious.
Genaust v. Illinois Power Co., 62 Ill. 2d 456, 469 (1976). In the
leading case of Ward v. K mart Corp., 136 Ill. 2d 132, 145-46
(1990), our supreme court held that section 343 of the Restatement
(Second) of Torts (hereinafter, Restatement) accurately sets forth
Illinois law with regard to the liability of landowners. Section
343 provides:
"A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but only
if, he:
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize
the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them
against the danger." Restatement (Second) of Torts §343, at
215-16 (1965).
In Ward, the supreme court also embraced section 343A of the
Restatement (Second) of Torts. Ward, 136 Ill. 2d at 148-51.
Section 343A(1) provides:
"A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or condition on
the land whose danger is known or obvious to them, unless the
possessor should anticipate the harm despite such knowledge or
obviousness." Restatement (Second) of Torts §343A(1), at 218
(1965).
Liability under this subsection will arise when the landowner can
foresee that the invitee's attention will be distracted at the time
he encounters the obvious condition, such that he will not discover
the danger and will be unable to protect himself against it.
Richardson, 251 Ill. App. 3d at 407.
Comment f to section 343A of the Restatement also imposes
liability on the landowner in instances where the landowner can
anticipate that the invitee will purposefully encounter the open
and obvious hazard because, to a reasonable man in the invitee's
position, the advantages of doing so would outweigh the apparent
risks. Courtney v. Allied Filter Engineering, Inc., 181 Ill. App.
3d 222, 227 (1989). This rule of law has been identified as the
"deliberate encounter exception" and arises in circumstances where
the landowner has placed the invitee in the position of having to
choose between encountering the obvious danger or foregoing his
employment. Jackson, 277 Ill. App. 3d at 464.
In Jackson v. Hilton Hotels Corp., 277 Ill. App. 3d 457, 459
(1995), the plaintiff injured his back when he attempted to lift a
heavy box from the defendant's loading dock to the back of his
truck. At the time of his injury, the plaintiff was lawfully on
the defendant's premises in the course of performing his duties for
his employer. Jackson, 277 Ill. App. 3d at 459. As in the instant
case, the plaintiff in Jackson alleged that his injury occurred
because the loading dock was not of a sufficient height in relation
to the trailer bed and that the defendant did not provide him the
supervision and assistance necessary to safely perform his job.
277 Ill. App. 3d at 459. The plaintiff alleged that, despite the
admittedly obvious difference in height between the truck and the
loading dock, the injury was reasonably foreseeable because his
" 'only alternative to taking the risk of lifting the gang box by
hand onto the bed of the truck was to forego his employment.' "
Jackson, 277 Ill. App. 3d at 464. The trial court dismissed the
plaintiff's complaint, finding that it did not state a cause of
action. Jackson, 277 Ill. App. 3d at 459.
The Illinois Appellate Court, First District, affirmed the
dismissal, holding that "the deliberate encounter exception" did
not apply to the case as the plaintiff had failed to demonstrate
that his injury was the result of a dangerous condition on the
defendant's premises. Jackson, 277 Ill. App. 3d at 465. The court
explained:
"[The plaintiff's] injury did not result from any contact
or interfacing with the defendant's property. The injury
occurred because of the defendant's failure to provide such
amenities on its loading dock which might have obviated his
need to manually lift the gang box. The differential in
height between the bed of the truck and the loading dock did
not of itself cause any injury to [the plaintiff]. Thus, it
was not a dangerous condition on the premises that caused the
injury. Rather, the danger was in the task that plaintiff
performed by lifting objects that were too heavy." Jackson,
277 Ill. App. 3d at 465-66.
We agree with the trial court that the facts presented in this
case squarely fall within the rule of law articulated in Jackson.
The plaintiff has failed to provide any evidence demonstrating that
Chicago Rawhide's premises were defective or contained an open and
obvious danger. There is no evidence that the loading dock in
question was slippery, cracked, or otherwise dangerous at the time
that it was used by the plaintiff. As in Jackson, the plaintiff's
sole allegation is that the dock was not of a height that would
allow him to reach the top of his load. See 277 Ill. App. 3d at
464. Lacking any evidence of a defective condition, we hold that
such an allegation does not state a cause of action against Chicago
Rawhide as a landowner.
For this same reason, the "deliberate encounter exception" is
not applicable to the circumstances presented in this case.
Lacking any defect or dangerous condition in the premises, Chicago
Rawhide has not created the type of hazard referred to in section
343A of the Restatement as a "deliberate encounter." See Jackson,
277 Ill. App. 3d at 464. Moreover, we do not believe that Chicago
Rawhide placed the plaintiff into such a position that he was
forced to choose between purposefully encountering the danger or
foregoing his employment with Wheeling. When the plaintiff spoke
with Cain to determine whether the load had to be tarped, Cain told
him that if he needed help tarping the load he should contact
Wheeling. We believe that it was reasonable for Chicago Rawhide to
refer the plaintiff to Wheeling for assistance, especially in light
of the fact that Wheeling was hired to provide these specific
services. The plaintiff has presented no evidence tending to show
that Chicago Rawhide could foresee that Wheeling would not assist
its employee, or that the plaintiff would lose his job if he did
not tarp the load without assistance.
The plaintiff argues that the trial court's holding is
inconsistent with the analysis in Flath v. Madison Metal Services,
Inc., 212 Ill. App. 3d 367, 374 (1991), wherein the Illinois
Appellate Court, Fifth District, held that a landowner's loading
area was dangerous. In Flath, the defendant's loading area was
obstructed with debris, forcing the plaintiff to stand on his truck
bed rather than on the ground while securing his load. 212 Ill.
App. 3d at 370-71. As a result, the plaintiff was injured when the
load suddenly slackened, and he fell to the ground. Flath, 212
Ill. App. 3d at 371. We find Flath distinguishable from the
instant case, as Flath involved a physically dangerous condition on
the land (i.e., debris on the loading dock). As detailed above,
the plaintiff does not allege that there was anything wrong with
the surface of Chicago Rawhide's loading dock.
There is also no evidence that Chicago Rawhide had control
over the plaintiff's work so as to impose upon it a special duty of
care to the plaintiff. The plaintiff's employer, Wheeling, had
been specifically hired to tarp and ship Chicago Rawhide's goods.
The plaintiff testified that Wheeling employees were customarily
required to tarp the loads before departing the yard. As Chicago
Rawhide had contracted out this responsibility, it was under no
obligation to supervise or assist the plaintiff with the tarping of
the load. See Pagano v. Occidental Chemical Corp., 257 Ill. App.
3d 905, 910 (1994). It was therefore up to the plaintiff, and his
employer, to provide the necessary equipment to safely perform the
tarping and shipping tasks they had been hired to perform. Lacking
any identifiable defect in its premises, we fail to understand how
Chicago Rawhide has breached its duty to provide plaintiff a safe
place to work.
Additionally, although the plaintiff spoke with Cain to
inquire whether the load had to be tarped, he never made a specific
request for equipment or assistance. Cain explicitly told the
plaintiff that if he needed help tarping the load he should contact
Wheeling. Chicago Rawhide therefore had no knowledge of, or
control over, the manner in which the plaintiff selected to tarp
the load, or his decision to tarp the load on his own.
For this reason, we find Stemen v. Avon Products, Inc., 234
Ill. App. 3d 300, 307 (1992), inapposite to the instant case. In
Stemen, a truck driver was injured while inspecting a truck trailer
in the defendant's crowded parking lot. 234 Ill. App. 3d at 301.
Because of the close proximity of the other trucks on the lot, the
driver was required to leave a trailer door only partially open.
Stemen, 234 Ill. App. 3d at 301. The unlatched door swung back
around and hit the driver's head and back. Stemen, 234 Ill. App.
3d at 301. The court held that the defendant's conduct of parking
the trucks so closely together created an unreasonable risk of harm
because it was foreseeable that truck drivers would have to open
the truck doors for inspection before the trucks could be moved.
Stemen, 234 Ill. App. 3d at 304.
Unlike Stemen, in the present case there was direct
communication between the invitee and the landowner. As detailed
above, Cain told the plaintiff to contact Wheeling if he needed
assistance in tarping the load. The plaintiff understood that
Chicago Rawhide had hired Wheeling to tarp the load and that
Chicago Rawhide employees were not to assist in the tarping
process. Therefore, although Chicago Rawhide was made aware that
plaintiff was having difficulty tarping the load, it was reasonable
for Chicago Rawhide to refer him to Wheeling for any necessary
equipment or assistance. See Pagano, 257 Ill. App. 3d at 910.
Lacking any knowledge of, or control over, the plaintiff's conduct,
we decline to impose a duty on Chicago Rawhide. We therefore
conclude that the trial court properly entered summary judgment in
favor of Chicago Rawhide.
For the foregoing reasons, the judgment of the circuit court
of Kane County is affirmed.
Affirmed.
COLWELL and THOMAS, JJ., concur.