specially concurring:
Although I agree in the outcome reached by this court, I disagree with the majority’s conclusion that Champaign Asphalt owed no duty to plaintiff to open the lanes at 3 p.m. despite the provision in its contract that provides that it must have all lanes open by 3 p.m. I believe that Champaign Asphalt did owe plaintiff a duty. That duty was to exercise reasonable care in carrying out its construction on a public highway. However, I also believe that Champaign Asphalt was not negligent in failing to open all the lanes by 3 p.m. The majority states that Champaign Asphalt “would not have acted reasonably” if it had opened the lanes before it were ready. 373 Ill. App. 3d at 293. Whether Champaign Asphalt acted reasonably is not a duty question, but rather a question of breach. See J. Goldberg & B. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657, 713-15 (2001) (courts, both knowingly and unwittingly, sometimes decide what are surely breach questions under the guise of deciding the question of “duty” in its primary sense). If Champaign Asphalt had no duty, as the majority concludes, whether it acted reasonably would be immaterial.
Champaign Asphalt owed a general duty of care to the motorists on the highway. Section 107.09 of the specifications in Champaign Asphalt’s contract with IDOT states:
“The Contractor shall at all times conduct the work in such a manner as to ensure the least obstruction to vehicular and pedestrian traffic. The convenience of the general public and residents along the highway shall be provided for in an adequate and satisfactory manner. *** No broken pavement, open holes, trenches, barricades, cones, or drums will remain on or adjacent to the traveled way and all lanes shall be opened to traffic during any legal holiday period, except where stage construction with traffic control is provided.”
The specifications in the contract designated that the holiday period at issue in this case began at 3 p.m. on Friday. Section 107.14 of the specifications in the contract states:
“When work zone traffic control is required along the route under construction, or when any section of road is closed for construction operations of any type, or when any section of the road is opened to traffic prior to completion of all work, the Contractor shall protect the workers and provide for safe and convenient public travel by providing adequate traffic control.”
Champaign Asphalt assumed the duty to use reasonable care for the safety of the motorists on the highway by virtue of the contract. See Moss, 344 Ill. App. 3d at 779, 801 N.E.2d at 617 (stating that the construction company’s contract with IDOT established a duty to control safety); Chandradat v. State, Indiana Department of Transportation, 830 N.E.2d 904, 909 (Ind. 2005) (“The State [Indiana] has a general duty to the traveling public to exercise reasonable care in the design, construction, and maintenance of its highways for the safety of public users. [Citation.] The [plaintiffs] were part of the traveling public. Furthermore, by statute, an Indiana governmental agency that is responsible for the signing, marking, and erection of traffic control devices on streets and highways within Indiana has a duty to follow the Indiana Manual on Uniform Traffic Control Devices for Streets and Highways (‘Traffic Manual’). [Citation.] Wfiiile the Traffic Manual is not a legal basis for a statutory negligence action [citation], the Traffic Manual is evidence bearing upon the general duty to exercise reasonable care”).
The terms of Champaign Asphalt’s contract with IDOT in this case, therefore, serve as evidence of the standard of care to be employed when conducting construction projects on a public road. Snyder v. Curran Township, 167 Ill. 2d 466, 472, 657 N.E.2d 988, 992 (1995) (“In light of the applicable regulations and statutes, we agree with the plaintiffs that the issue of compliance or noncompliance with the Illinois Manual was a question properly before the jury. Section 11 — 304, by mandating compliance with the Illinois Manual, establishes defendant’s duty of reasonable care. Whether that duty was breached is a jury question, turning on an examination of the applicable provisions of the Illinois Manual and the facts of a particular case”); Indiana State Highway Comm’n v. Daily Express, Inc., 503 N.E.2d 1237, 1240 (Ind. 1987) (“We held that the [Indiana State Highway Manual] is only evidence bearing upon the general duty to exercise reasonable care. [Citation.] Accordingly, if a failure to comply with the Manual’s provisions is only evidence of negligence, the jury should be instructed to treat the Manual as any other evidence of negligence going into the ultimate factual determination of liability” (emphasis in original)). Not complying with the provisions of the contract in this case may constitute a breach of this duty if defendant’s failure to comply was unreasonable.
The majority states that if the contract’s provision to have all lanes open by 3 p.m. constituted a legal duty, it would result in Champaign Asphalt being held liable for accidents that occur after 3 p.m. but not liable for accidents that occurred before 3 p.m. The majority characterizes this as creating an “uncertain” duty. 373 Ill. App. 3d at 293. However, nothing is uncertain about the duty to comply with a specific provision in the contract. Moreover, the provision in the contract that requires all the lanes to be open by 3 p.m. does not create strict liability. Champaign Asphalt may even be hable for accidents that occur before 3 p.m. if it failed to act with due care for the safety of the public in carrying out its construction work. After 3 p.m., Champaign Asphalt may also be liable for accidents that occur if its failure to open all of the lanes as required was unreasonable.
Additionally, using the terms of construction companies’ contracts with IDOT as evidence of the standard of care construction companies should exercise while performing work on public highways does not create an undue burden. In determining whether a legal duty exists, courts consider the following factors: (1) the reasonable foreseeability of injury, (2) the reasonable likelihood of injury, (3) the magnitude of the burden that guarding against injury places on the defendant, and (4) the consequences of placing that burden on the defendant. Miller v. Highway Commissioner of North Otter Township Road District, 344 Ill. App. 3d 1157, 1164, 801 N.E.2d 599, 606 (2003).
In its analysis of the policy considerations involved in determining whether Champaign Asphalt owed plaintiff a duty in this case, the majority states, “The magnitude of the burden of preventing reckless drivers from causing harm and the consequences of placing that burden on the defendant doing the work justify a finding of no duty in this case.” 373 Ill. App. 3d at 293. However, the duty question in this case is not whether Champaign Asphalt had a duty to protect against reckless drivers causing harm. Rather, the duty was to have the roadway clear by 3 p.m. at the beginning of a holiday weekend that is associated with high volumes of highway traffic. It is certainly foreseeable and likely that this type of accident could result from a congested and backed-up highway during a period of heavy traffic. Considering the third and fourth prongs in Miller, clearing the highway by 3 p.m. was not a burden on Champaign Asphalt. Had its machine not broken, it would have had all the lanes open on the highway by 3 p.m. Finally, given that IDOT requires the construction company to be off the highway by 3 p.m. on a holiday weekend unless it obtained special permission from IDOT, placing the foreseeable consequences for accidents that result from the company’s failure to clear the highway is not unreasonable. Holding construction companies liable for reckless drivers, as the majority suggests, would be unsound public policy. The benefits of road construction to society are great and holding companies who perform such tasks liable for all accidents that result is too high of a burden. However, Champaign Asphalt had a duty to exercise due care in carrying out its project. It is sound policy to require companies performing work on public roads to exercise due care in performing their task. In this case, Champaign Asphalt did exercise due care even though it was not off the highway by 3 p.m. However, if evidence had been presented that it had not acted reasonably, it may have been liable for causing this type of accident that resulted from the highway congestion caused by its lane closure.
The majority makes the distinction that the contract provision regarding the lane closures was concerned with traffic flow during a holiday weekend as opposed to a safety provision. The majority’s distinction between a contract provision rooted in safety and a contract provision rooted in convenience should not be dispositive of whether Champaign Asphalt owed a legal duty to the motorists on the highway.
A provision in the contract incorporates the guidelines of the IDOT manual that includes the requirement that Champaign Asphalt be off the road by 3 p.m. Although the contract provision is not a statute or an administrative rule, it is an agency-created regulation. I conclude public policy supports a finding that failure to abide by this regulation may create liability on the part of Champaign Asphalt. The supreme court has held in order for a plaintiff to recover for injuries sustained as a result of a failure to follow a statute or rule the plaintiff must show “(1) the violation proximately caused the injury; (2) plaintiff belonged to the class of persons whom the rule was intended to protect from injury; (3) the kind of injury suffered by plaintiff was the kind of injury which the rule sought to prevent.” Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 543, 582 N.E.2d 108, 112 (1991).
The first two prongs of the test in Gouge are easily met. First, but for the backup on the highway, this accident would not have occurred. Second, the rule is for the convenience and safety of the drivers on the highway, a class of persons to which plaintiff belonged. With respect to the third prong in Gouge, even if IDOT’s primary interest in having a contract provision providing that all the lanes be open by 3 p.m. was primarily a concern about traffic flow, motorists’ safety is always a consideration in making decisions to impede tráffic on a public road. Making a distinction between provisions in a road construction contract based on whether the provision is primarily for safety or if it is primarily for convenience creates confusion in the law. Construction companies’ liability in tort should not rest on such a distinction. Whether the guidelines set by IDOT are for safety or convenience, construction companies should be held to those standards in determining liability.
Having determined that Champaign Asphalt owed plaintiff a duty to exercise reasonable care in performing work on a public road, I conclude the issue in this case is whether Champaign Asphalt breached this duty. Although the issue of whether a defendant breached its duty is usually a factual matter reserved for the fact finder, summary judgment is proper when there is no genuine issue of material fact regarding defendant’s alleged breach. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323, 1326 (1995).
As part of our de novo review of this case, relying on the undisputed facts, Champaign Asphalt was entitled to judgment as a matter of law. The facts of this case reveal that two days before the accident, May 23, 2001, Champaign Asphalt received a memo from IDOT that said “It has been previously discussed that, in extreme circumstances, if the lanes could not be opened by 3:00 p.m. on Friday, Champaign Asphalt would be allowed to work on Saturday to remove hazards and open the lane.” The facts also reveal that the machine used to remove debris from the highway unexpectedly broke, and opening the lanes would have created an increased hazard to the motorists on the highway due to the presence of debris. Therefore, although Champaign Asphalt had a duty to abide by its contract, which required that the lanes be open by 3 p.m. that afternoon, it did not breach that duty because it acted reasonably under the circumstances. Opening the lanes before the debris was removed would have been unreasonable since it created a greater hazard to the motorists on the highway. Therefore, Champaign Asphalt’s decision not to open the lanes by 3 p.m. due to the debris was objectively reasonable and, as a matter of law, cannot constitute a breach of its duty.
Most troubling to me is the precedent that may result from the holding in this case. Although the majority and I agree that Champaign Asphalt acted reasonably, I believe that setting the precedent that construction companies have no duty to comply with the terms of its contracts with IDOT sets a dangerous and undesirable precedent. In Marshall v. Burger King Corp., 222 Ill. 2d 422, 424, 856 N.E.2d 1048, 1050 (2006), decedent was killed when an out-of-control car crashed through the window of the Burger King restaurant where he was eating. Decedent’s estate sued Burger King for negligence based on the fact that there were no safety devices in place to prevent this type of accident. The supreme court addressed the appellate court’s finding of no duty as follows:
“ ‘Rules declaring that no duty exists can easily be made too broad or too narrow. Because they are rules of law, not decisions about particular cases, they cover all cases in the category to which they are addressed. They are expressions of “global” policy rather than evaluations of specific facts of the case. Consequently, no-duty rules should be invoked only when all cases they cover fall substantially within the policy that frees the defendant of liability.’ ” Marshall, 222 Ill. 2d at 441-42, 806 N.E.2d at 1060, quoting 1 D. Dobbs, Torts §227, at 579 (2001).
The court in Marshall held that by defining the duty narrowly, defendants were actually asking the court to decide as a matter of law that they did not breach its duty. The court found that instead of defendant owing a fact-specific duty to install poles at its restaurants, defendants owed a general duty to exercise reasonable care for the safety of its customers. Marshall, 222 Ill. 2d at 443, 856 N.E.2d at 1061. The supreme court held:
“It is inadvisable for courts to conflate the concepts of duty and breach in this manner. Courts could, after all, ‘state an infinite number of duties if they spoke in highly particular terms,’ and while particularized statements of duty may be comprehensible, ‘they use the term duty to state conclusions about the facts of particular cases, not as a general standard.’ ” Marshall, 222 Ill. 2d at 443, 856 N.E.2d at 1061, quoting 1 D. Dobbs, Torts §226, at 577 (2001).
See also 54 Vand. L. Rev. at 712-17 (discussing problems associated with using the duty element of negligence to render decisions that no breach occurred as a matter of law).
In this case, holding that defendant did not have a specific duty to open all the lanes of the highway by 3 p.m. creates the situation in which a similar defendant who unreasonably does not comply with the terms of its contract with IDOT may escape liability when its conduct was unreasonable and caused an injury to a third person. For these reasons, I concur in the result reached by the majority, but not its reasoning.