dissenting:
The majority characterizes the single question presented for our review as whether Simonds owed a legal duty of care to plaintiffs. More precisely, the question is whether Simonds owes a duty of care to the occupants of a vehicle that leaves a straight and level interstate highway at a point where there is no access or exit road, crosses over the shoulder, enters the grassy median, and strikes a concrete barrier placed 27 feet from the driving lane. I agree with the trial court that the answer to this question is no.
Necessary to any recovery based on negligence is the existence of a duty to conform to a certain standard of conduct for the protection of the plaintiff. Battisfore v. Moraites, 186 Ill. App. 3d 180, 187-88 (1989). Whether a duty exists is a question of law to be determined by the court, and the answer depends on whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542 (1991).
While the existence of a legal duty is ordinarily considered in terms of foreseeability, the duty is not bottomed on foreseeability alone. Hoffman v. Vernon Township, 97 Ill. App. 3d 721, 724 (1981). Other factors to be taken into consideration, besides the foreseeability of the possible harm, are the likelihood of injury from the existence of a condition, the magnitude of guarding against it, and the consequences of placing the burden upon the defendant. Hoffman, 97 Ill. App. 3d at 724. In terms of foreseeability, the court will consider whether the risk of harm to the plaintiff was reasonably foreseeable. Gouge, 144 Ill. 2d at 542.
As our supreme court stated in Cunis v. Brennan, 56 Ill. 2d 372, 376 (1974), “The creation of a legal duty requires more than a mere possibility of occurrence.” Quoting from Prosser (W. Prosser, Torts § 31 at 146 (4th ed. 1971)), our supreme court stated, “ ‘No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.’ ” Cunis, 56 Ill. 2d at 376.
I agree with the trial court in the case at bar that Simonds owed no common law duty to protect plaintiffs from the harm they suffered. This case is remarkably similar to Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535 (1991), in which our supreme court held that the electric utility owed no common law duty of reasonable care to ensure that if an automobile leaves the traveled portion of a roadway and strikes a utility pole, the pole will fall away from the roadway. Our supreme court pointed out that generally the liability of a utility company for injuries to a motorist resulting from a collision with a utility pole depends on whether the pole is located in or so close to the traveled portion of the highway as to constitute an obstruction dangerous to anyone properly using the highway. Gouge, 144 Ill. 2d at 544. Our supreme court held that utility companies owe no duty to motorists who collide with utility poles unless it is reasonably foreseeable that the vehicles would leave the roadway in the ordinary course of travel and strike the utility poles. In Gouge, the utility pole was located 15 feet from the roadway. No facts were alleged that would indicate that it was reasonably foreseeable that plaintiff would deviate from the roadway as a normal incident of travel and strike the utility pole.
Similarly, in Hoffman v. Vernon Township, 97 Ill. App. 3d 721 (1981), plaintiffs automobile went out of control, left the roadway, and struck a utility pole that was located 27 feet from the centerline of the roadway and 12 to 16 feet from the easterly boundary line of the roadway. The court found that it was not reasonably foreseeable by defendant that plaintiff would deviate from the road as he did as a normal incident of travel. Hoffman, 97 Ill. App. 3d at 726. “While it is foreseeable that any driver could, for any number of reasons, leave the paved highway surface!,] it must be reasonably foreseeable to create a duty. [Citation.] For a duty to attach [,] the person must foreseeably deviate in the ordinary course of travel ***.” (Emphasis in original.) Hoffman, 97 Ill. App. 3d at 726. See also Boylan v. Martindale, 103 Ill. App. 3d 335 (1982).
I do not believe that it was reasonably foreseeable by defendant that plaintiffs’ vehicle would leave the travelled portion of the interstate where there is no access or exit road and travel 27 feet into the grassy median in the ordinary course of travel or as a normal incident of travel. While it is possible, and even foreseeable, that a vehicle might so leave the highway, I do not believe that it is reasonably foreseeable that a vehicle will do so in the normal course of travel.
Nor is section 368 of the Restatement (Second) of Torts of any assistance to plaintiff. That section provides:
“A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition!,] while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway! ] or
(b) foreseeably deviate from it in the ordinary course of travel.” Restatement (Second) of Torts § 368, at 268 (1965).
For a duty to arise under section 368, the person to whom it is owed must foreseeably deviate from the roadway in the ordinary course of travel, and the distinction is not one between inadvertent and intentional deviations, but between those which are normal incidents of travel and those which are not. Swope v. Northern Illinois Gas Co., 251 Ill. App. 3d 850, 854 (1993).
Again, I believe that deviating from the interstate highway where there is no access or exit road, entering the grassy median between the interstate lanes, and traveling 27 feet therein is not a normal incident of travel and is not reasonably foreseeable by defendant. It is simply not reasonably foreseeable that, in the ordinary course of travel, a vehicle will deviate from the highway to such an extent as in the case at bar. See also Battisfore v. Moraites, 186 Ill. App. 3d 180 (1989).
Whether a legal duty exists is a question of law and is determined by reference to whether the parties stood in such a relationship to each other that the law imposes an obligation on one to act for the protection of the other. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 238 (1996). In my opinion, plaintiffs here have failed to allege such a relationship between plaintiffs and defendant that the law imposes a duty on defendant to act for the protection of plaintiffs. Industry standards, cited by the majority, while evidence of a standard of care, do not create such a relationship.
In my opinion, plaintiffs have failed to allege a legal duty of care owed by defendant to plaintiffs by virtue of statute, contract, or common law. Accordingly, I dissent.