Kramer v. Szczepaniak

JUSTICE ELLIS delivered the judgment of the court, with opinion.

Appeal from the Circuit Court of Cook County. No. 14 L 10679 Honorable Kathy M. Flanagan, Judge Presiding. JUSTICE ELLIS delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment and opinion.

OPINION

¶ 1 After a late night at the movies, Jasmine Vega and Sean Kramer requested a ride home using the popular ride-sharing app Uber. Defendant Farid Kessanti responded to the request, and with that, Vega and Kramer began their journey home. According to the complaint, Kessanti proved to be a less than able driver: He did not know how to get to Vega's and Kramer's intended destination, took several wrong turns, and got lost. When Kramer pointed this out to Kessanti and offered to help with directions, Kessanti became irate and kicked Vega and Kramer out of his car—at around two in the morning. ¶ 2 Unable to find another ride and thus left to walk the rest of the way home, Vega and Kramer departed and, in due course, arrived at the intersection of 43rd Street and Kedzie Street. While crossing Kedzie in a crosswalk, Vega and Kramer were hit by a driver—defendant John Szczepaniak—who was speeding and failing to keep a proper lookout, resulting in significant injuries to Kramer and Vega. ¶ 3 Kramer and Nancy Coronel, in her capacity as Vega's guardian, filed this negligence action against Szczepaniak, Kessanti, Uber, Cab Investment Group, Inc., and Salah Bachir, the person who lent Kessanti the car he was driving. In response, all defendants but Szczepaniak moved to dismiss, claiming that plaintiffs failed to state a claim because they did not—and could not—allege facts that, if proved, would establish that the car accident causing Vega's and Kramer's injuries were reasonably foreseeable. The circuit court agreed and dismissed those portions of the complaint with prejudice. ¶ 4 We reverse. Proximate cause is typically a question of fact. It is here, as well, at least at this preliminary stage. Taking the allegations as true and drawing all reasonable inferences in plaintiffs' favor, reasonable minds could differ as to whether the car accident was a foreseeable result of Kessanti ejecting Vega and Kramer from his vehicle in the middle of the night, abandoning them in a dimly-lit, high-traffic area where cars were driving recklessly and patrons were leaving a number of bars and taverns. We cannot say, as a matter of law, that the negligence of Kessanti (and thus Uber) bore no causal relationship to Kramer and Vega's injuries. The complaint should not have been dismissed.

¶ 5 BACKGROUND

¶ 6 The following facts are taken from plaintiffs' seventh amended complaint, the operative pleading in this case. On the night of October 4, 2014, Vega and Kramer went to a movie theater located at 322 East Illinois Street in Chicago. After the movie was over, at approximately 1:30 a.m. on the morning of October 5, 2014, Vega used the Uber application on her smart phone to request a ride for her and Kramer to their home at 4138 South Albany Street in Chicago. At approximately 2 a.m., Kessanti accepted Vega's ride-request. ¶ 7 Suffice it to say, the ride did not go smoothly. Kessanti "did not drive the proper route to 4138 South Albany." Instead, he made multiple wrong turns and got lost. When Kramer pointed this out to Kessanti and attempted to give him directions, Kessanti became angry, stopped the car, and kicked Vega and Kramer out, even though they had not yet arrived at their destination. Vega and Kramer acceded to Kessanti's demand and left his car in an area near 44^th Street and Homan Avenue, an area the complaint alleges to be a "high-crime area." ¶ 8 Vega and Kramer began walking home. Their path eventually led them to the intersection of 43rd Street and Kedzie Street. While crossing Kedzie Street, Vega and Kramer were struck by a vehicle traveling southbound on Kedzie driven by defendant John Szczepaniak. Szczepaniak's vehicle was speeding, and he failed to yield to pedestrians in the crosswalk. Szczepaniak did not stop after hitting Vega and Kramer. He was apprehended the following day and is currently incarcerated. Kramer was injured, and Vega was severely injured by the hit-and-run. ¶ 9 On October 15, 2014, plaintiffs sued Szczepaniak for negligence. On March 5, 2015, they filed their first amended complaint, adding Uber as a defendant. Second and third amended complaints followed. With respect to Uber and Kessanti, the circuit court dismissed plaintiffs' first, second, and third amended complaints, reasoning that Kramer had not alleged facts that pursuant to Supreme Court Rule 304(a). See Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). This appeal followed.

¶ 17 ANALYSIS

¶ 18 On appeal, plaintiffs claim that the circuit court erred by dismissing Counts 2 through 7 of his seventh amended complaint pursuant to section 2-615. We must first address the issue of forfeiture. In their respective briefs, Uber and Kessanti maintain that plaintiffs forfeited the proximate cause issue by failing to file a written response to defendants' motions to dismiss the seventh amended complaint. ¶ 19 The complaint in this case went through several iterations. Defendants filed multiple motions to dismiss, and plaintiffs responded, raising arguments that were the same or similar to the arguments raised in defendants' motions to dismiss the seventh amended complaint. Through those many iterations, the trial court consistently ruled that Kramer's and Vega's injuries were not reasonably foreseeable, and thus plaintiffs could not establish proximate cause as a matter of law. The trial court had dismissed the sixth amended complaint on that ground as well. ¶ 20 Thus, when the viability of the seventh amended complaint came before the trial court, the court explicitly deemed additional briefing unnecessary, as the trial court was clearly well versed with the case law, the allegations, and the parties' respective positions by that point. It would be grossly unfair to thus blame plaintiffs for "failing" to respond to the motion to dismiss the seventh amended complaint or to suggest that they forfeited arguments that they vigorously contested throughout this lengthy pleading process. We find no forfeiture and turn to the merits.

¶ 21 I

¶ 22 A section 2-615 motion tests the legal sufficiency of a complaint. Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 27. When ruling on a 2-615 motion, we must take as true all well-pleaded facts in the complaint. Id. "The critical inquiry is whether the allegations of the complaint, when considered in a light favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted." Id. Our review is de novo. Id. ¶ 23 Kramer's negligence claims against Uber and Kessanti were based on three theories of liability: common-law negligence, statutory negligence, and voluntary undertaking. Though each theory differs in some respects, they all share one feature in common: Each requires that the plaintiff plead and prove that the defendant's alleged negligence was the proximate cause of the plaintiff's injury. Thompson v. Gordon, 241 Ill. 2d 428, 438 (2011) (common-law negligence); Munizza v. City of Chicago, 222 Ill. App. 3d 50, 56 (1991) (statutory negligence); Bruntjen v. Bethalto Pizza, LLC, 2014 IL App (5th) 120245, ¶ 60 (voluntary undertaking). ¶ 24 Proximate cause is a two-part inquiry. First Springfield Bank v. Galman, 188 Ill. 2d 252, 257-58 (1999). First, the defendant's act or omission must be the cause in fact of the plaintiff's injury. Id. Second, the defendant's conduct must be the legal cause of the plaintiff's injury. Id.

¶ 25 A

¶ 26 The trial court did not base its dismissal on the absence of cause in fact. Uber conceded in its brief, and at oral argument, that plaintiffs had adequately pleaded cause in fact. But Kessanti does not, and because we may affirm the dismissal on any basis in the record (CNA International, Inc. v. Baer, 2012 IL App (1st) 112174, ¶ 31), we will consider the question of cause in fact. ¶ 27 A defendant's negligence is the cause in fact of a plaintiff's injuries if there is a "reasonable certainty" that a defendant's acts caused the injury or damage. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455 (1992). When, as here, the plaintiff's injury "results not from the defendant's negligence directly but from the subsequent, independent act of a third ¶ 34 So whatever verbiage defendants use, the analysis ultimately remains the same. Without question, the accident here would not have occurred absent Kessanti's conduct in expelling Kramer and Vega from the Uber vehicle, leaving them to walk home instead of being driven to their destination. The complaint adequately alleges that Kessanti's negligence was a material and substantial factor in causing the injuries alleged here. The complaint sufficiently pleads cause in fact.

¶ 35 B

¶ 36 "A defendant's acts are a legal cause only if they are 'so closely tied to the plaintiff's injury that he should be held legally responsible for it.' " Simmons v. Garces, 198 Ill. 2d 541, 558 (quoting McCraw v. Cegielski, 287 Ill. App. 3d 871, 873 (1996)). "The question is one of public policy—how far should a defendant's legal responsibility extend for conduct that did, in fact, cause the harm?" Young v. Bryco Arms, 213 Ill. 2d 433, 446 (2004). The touchstone of legal causation is foreseeability. City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 395 (2004). ¶ 37 In cases such as this, where the plaintiff was actually injured by the intervening act of a third party, the inquiry "is whether the first wrongdoer reasonably might have anticipated the intervening efficient cause as a natural and probable result of the first party's own negligence." Galman, 188 Ill. 2d at 257. That remains true even if, as here, a defendant argues the condition/cause theory, which again merely restates the law of proximate cause and is not a distinct doctrine. See id. at 259 ("[W]hen Briske, Merlo, and Thompson ask whether the defendant might have reasonably anticipated the intervening efficient cause as a natural and probable result of his or her own negligence, they are in effect asking whether the intervening efficient cause was of a type that a reasonable person would see as a likely result of his or her conduct."). they would be vulnerable to that negligent driving. And we would add that Galman was decided after a trial, after a full airing of all available and relevant evidence, unlike here. ¶ 51 Defendants also cite Abrams v. City of Chicago, 211 Ill. 2d 251 (2004). The plaintiff called 9-1-1 to request an ambulance, as she was going into labor, with labor pains 10 minutes apart. Id. at 253. The dispatcher told the plaintiff that the situation was not an emergency and ended the call. Id. After the plaintiff's sister placed a second 9-1-1 call, a different dispatcher explained that labor pains at 10-minute intervals was not a medical emergency. Id. at 253-54. The plaintiff then unsuccessfully tried to enlist the services of a private ambulance company. Id. at 254-55. At that point, the plaintiff called a friend, who agreed to drive the plaintiff to the hospital. Id. at 255. ¶ 52 On the way to the hospital, the friend's car approached the intersection of King Drive and Pershing. Id. Holding down the car horn to announce her approach, the friend entered the intersection on a red light, where she collided with a vehicle driven by Gregory Jones. Id. Jones was driving between 75 to 80 miles per hour at the time of the collision, and he admitted that prior to the accident, he'd ingested crack cocaine, a beer, and two shots of rum. Id. As a result of the accident, the plaintiff was severely injured and spent two weeks in a coma; her baby died after delivery. Id. ¶ 53 The plaintiff sued the City of Chicago for refusing to provide her with ambulance service. Id. The circuit court awarded summary judgment to the City, reasoning that the City's conduct was not the proximate cause of the plaintiff's injuries. The appellate court reversed on the issue of proximate cause, but our supreme court reversed the appellate court and affirmed summary judgment for the city, reasoning:

"[W]e conclude as a matter of law that the City could not have reasonably anticipated that a refusal to send an ambulance when labor pains are 10 minutes apart would likely result in plaintiff's driver running a red light at the same time that a substance-impaired driver was speeding through the intersection on a suspended license. Millions of women in labor make it safely to the hospital each year by private transportation. Thus, plaintiff was in no peril greater than that faced by women each day who make it safely to the hospital without the aid of an ambulance. The legal causes of the injury here were the two drivers in willful violation of the traffic laws, and not anything the City did or did not do. While all traffic accidents are to some extent remotely foreseeable [citation], this is not the kind of harm that was sufficiently foreseeable from the refusal to send an ambulance so as to satisfy the 'legal cause' portion of a proximate cause analysis." Id. at 261-62.

¶ 54 Abrams is easily distinguishable. First and most obviously, Abrams arrived in the supreme court in a different procedural posture; the circuit court resolved the issue of proximate cause at summary judgment, not the pleading stage. Second, the intervening negligence there involved not one but two different drivers—one a drunk driver going at least twice the speed limit, the other who deliberately ran a red light. And third, it was difficult to see how this negligence could be foreseen as a result of a hospital's failure to send an ambulance. As the court noted, women in labor routinely use private transportation, and the evidence showed that the plaintiff was not in a medical emergency. The hospital's conduct did not set in motion a chain of events; it did nothing to worsen the plaintiff's position. As we have already explained, we cannot say the same of Kessanti's negligence here. ¶ 58 In those cases, the intervening actions of the driver were so beyond the ordinary expectation of drivers that the defendant municipalities could not be expected to reasonably anticipate them. ¶ 59 But some "negligent driving" could be reasonably foreseeable. Take Bentley v. Saunemin Township, 83 Ill. 2d 10 (1980). The plaintiff's decedent was driving on a gravel road when he approached State Highway 47. Id . at 12-13. Despite the obvious nature of the major intersection, the driver failed to stop, entered the highway, and collided with an oncoming vehicle. Id. at 12. Plaintiff blamed the township, because there was a stop sign, but it was obscured by branches of a tree. Id. Nevertheless, a jury found the driver's negligence, in failing to yield at the intersection, to be the sole proximate cause of the collision and returned a verdict for the township. Id. at 11. ¶ 60 Despite the deferential standard accorded to a jury verdict, our supreme court reversed and held that, while the driver's conduct was negligent, it was not the only cause of the accident. The court rejected the township's argument that the negligent driving was a superseding, intervening cause relieving the township of liability, holding instead that the driver's negligence in failing to appreciate the upcoming hazard was a foreseeable result of the township's failure to provide a fully-visible stop sign. Id. at 15. The court did "not consider it reasonable to absolve defendants of responsibility because of [the driver's] shortcomings in dealing with a situation created by defendants' own negligence." Id. The court elaborated, quoting Professor Prosser:

" 'The risk created by the defendant may include the intervention of the foreseeable negligence of others. * * * (T)he standard of reasonable conduct may require the defendant to protect the plaintiff against 'that occasional negligence which is one of the ordinary incidents of human life, and therefore to be anticipated.' Thus a defendant

who blocks the sidewalk and forces the plaintiff to walk in a street where he will be exposed to the risks of heavy traffic becomes liable when he is run down by a car, even though the car is negligently driven; and one who parks his automobile on the highway without lights at night is not relieved of responsibility when another negligently drives into it. By the same token, one who spills gasoline can expect it to be negligently set afire, and when a drunken passenger is ejected from a bus into the midst of traffic it may be anticipated that he will be negligently run down.' " Id. at 16 (quoting Prosser, Torts, § 44, at 272-74 (4th ed. 1971)).

¶ 61 Likewise, we held that a driver's negligence in failing to yield to an emergency vehicle—a police car—could be viewed by a jury as a foreseeable result of a defendant's activation of a false alarm at a bank that caused the squad car to respond, and thus dismissal at the pleading stage was inappropriate. Duncan v. Rzonca, 133 Ill. App. 3d 184, 204 (1985). We have noted that distracted driving, for another example, "can supply a basis for calling a driver negligent or careless, and no rational thinker could think such conduct would be legally unforeseeable" in a legal causation analysis. Martinelli v. City of Chicago, 2013 IL App (1st) 113040, ¶ 30. ¶ 62 We also held that the negligence of a driver in failing to see (and thus obey) a stop sign, resulting in a collision, could be a foreseeable result of a church's sponsorship of a treasure hunt that allowed participants to drive to various clue locations and encouraged fast and distracted driving by rewarding the first team to finish. See Indlecoffer v. Village of Wadsworth, 282 Ill. App. 3d 933, 942-43 (1996). Thus, we said there, "under the facts of this case as alleged in the *** amended complaint, we cannot say, as a matter of law, that the purported intervening acts were the kind of new and independent force which would break the causal connection between [defendant's] alleged negligence and plaintiffs' injuries." Id. at 943. major, dimly-lit street at the two in the morning, it would be premature to hold, as a matter of law, that Kessanti's conduct played no role whatsoever in their injuries. ¶ 74 We are not holding that Szczepaniak's alleged negligent driving was reasonably foreseeable, or that Kessanti's actions were a proximate cause of this incident. At this early stage, with so many critical facts missing, it would be inappropriate to reach a conclusion as a matter of law, one way or the other. We hold only that questions of fact exist, precluding dismissal. We reverse the dismissal of counts 2 through 7 and remand for further proceedings.

Defendants tell us that Szczepaniak was driving while intoxicated at the time of the accident. The complaint says nothing of that fact, and we are limited at this stage to its well-pleaded allegations. Provenzale v. Forister, 318 Ill. App. 3d 869, 878 (2001). Defendants say that we can judicially notice that Szczepaniak is incarcerated. So we can, but the only entry we have found from the Illinois Department of Corrections (IDOC) indicates that Szczepaniak was convicted of failing to report an accident involving injury, which is consistent with the complaint's allegations that Szczepaniak left the scene after his vehicle struck Kramer and Vega. The IDOC entry says nothing about intoxication. So at this stage, we don't "know" that the driver was intoxicated. We highly doubt that defendants are attempting to mislead us, which only underscores that there is still much to know about the details of this case. --------

¶ 75 II

¶ 76 Three final points. First, although Kramer appealed the dismissal of the counts against Bachir and Cab Investment Group, Inc., neither of those defendants appeared in this court or otherwise participated in the appeal. But the dismissal of the counts against them were based on the same argument as those against Uber and Kessanti. We can decide an appeal without the benefit of an appellee's brief, particularly when we have excellent briefs on the same issue from the other appellees. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). Our disposition of this appeal applies to all counts dismissed. ¶ 77 Second, we note that Uber has advanced arguments in its appellate brief that Kramer's claims arising under various provisions of the Chicago Municipal Code are defective for reasons other than lack of proximate cause. The circuit court never ruled on those arguments, and we decline to do so in the first instance. ¶ 78 Third, we note Kramer's argument on appeal that dismissal was inappropriate because certain documents that he believes were relevant to the issue of foreseeability were not produced by Uber. As we have reversed the judgment below for a different reason, that question is not necessary for us to decide here. We trust that the circuit court's limitation on discovery was grounded in the fact that the discovery was taking place at the pleading stage, before the parties were even at issue. Now that we have remanded for further proceedings, and more traditional and liberal discovery will soon commence, we assume the trial court would revisit any discussion about limitations on discovery.

¶ 79 CONCLUSION

¶ 80 The circuit court's judgment is reversed. The cause is remanded for further proceedings. ¶ 81 Reversed and remanded.