Kramer v. Szczepaniak
Kramer v. Szczepaniak
Opinion
*705 ¶ 1 After a late night at the movies, Jasmine Vega and Sean Kramer requested *706 *435 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 *707 *436 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 could establish how Kessanti's wrongful ejection was the proximate cause of Vega's and Kramer's injuries. The dismissal of the third amended complaint was with prejudice. However, after extensive procedural wrangling that we need not detail here, the circuit court reconsidered its order of dismissal and permitted plaintiffs to further amend, ultimately resulting in the filing of a seventh amended complaint against Uber and Kessanti (among others).
¶ 10 In Count 5 of his seventh amended complaint, Kramer alleged that Uber "knew or reasonably should have known that it was not safe to wrongfully eject" Vega and Kramer in the area of 44th Street and Homan Avenue because, among other things, (1) they were unfamiliar with the area, (2) it was "dark, poorly illuminated and *** certain street lights were not operating[,]" (3) there was no "visible police or other law enforcement presence[,]" (4) the area "presented an increased risk of injury *** from other traffic, from other third parties, from the roadway or sidewalks that may have been in a state of disrepair, and from not having immediate, alternative transportation available to exit the locale[,]" (5) there was a "high volume of traffic and limited traffic control devices[,]" (6) "third parties departing various drinking establishments and in a various states of insobriety, aggression or other unsafe state of mind were present[,]" (7) "motor vehicles were speeding and driving dangerously," creating "an increased risk of personal injury to pedestrians;" and (8) the area "presented an increased risk of being a victim of a crime or other accident inflicted by a third party or another motor vehicle."
¶ 11 Kramer alleged that Uber breached its duty of care to Vega and Kramer by, among other things, (1) kicking Vega and Kramer out of his car before reaching their destination after he voluntarily agreed to transport them home, (2) allowing Kessanti to utilize the Uber app to transport customers despite knowing that Kessanti was mentally and physically unfit and had "a history of confrontation, wrongful discharges, and arguments with other [Uber] customers," (3) failing to "do the appropriate background check on Kessanti before allowing him to transport customers in the City of Chicago[,]" and (4) failing to train Kessanti to ensure that he "would never drop a passenger off at a destination other than the destination directed by the customer[.]" With respect to causation, Kramer alleged, "[i]t was reasonably foreseeable that one or more of the foregoing acts or omissions would cause, in whole or in part," the injuries to plaintiffs.
¶ 12 Counts 6 and 7 were largely duplicative of Count 5. Count 6, which incorporated Count 5 by reference, purported to state a claim for negligence based on an alleged violation of section 9112.010 of the Chicago Municipal Code. Section 9-112.010 regulates taxicab services and specifically requires that taxicab drivers obtain a chauffeur's license to operate a cab in the City of Chicago. Kramer alleged that Kessanti never obtained a chauffeur's license, and that Uber's act of permitting Kessanti *708 *437 to drive for Uber despite not having a chauffeur's license was a proximate cause of their injuries.
¶ 13 In a similar vein, Count 7 alleged that (1) Uber voluntarily undertook to drive Vega and Kramer home, (2) Uber breached that undertaking, and (3) Vega and Kramer's injuries were proximately caused by Uber's breach of its voluntary undertaking. Likewise, Counts 2 and 3, which were against Kessanti for negligence based upon a voluntary undertaking and common law negligence, were functionally indistinguishable from Counts 5 and 7. Count 4, which was against Bachir, alleged that Bachir negligently entrusted his vehicle to Kessanti when, among other things, he knew that Kessanti was unfit, in general and specifically for Uber, and that Vega and Kramer were injured as a proximate result of Bachir's negligence.
¶ 14 On April 17, 2017, Uber moved to dismiss Counts 5 through 7 of Kramer's seventh amended complaint. The same day, Bachir and Cab Investment Group, Inc. moved to dismiss Count 4. A week later, Kessanti followed suit and moved to dismiss Counts 2 and 3. Each motion sought relief pursuant to section 2-615 of the Code of Civil Procedure. See 735 ILCS 5/2-615 (West 2016). In its motion, Uber urged that Vega's and Kramer's injuries were not proximately caused by Kessanti's alleged negligence-that Kessanti's conduct, at most, "furnished a condition making possible the injury caused by the independent illegal acts" of the negligent driver, Szczepaniak.
¶ 15 In his motion, Kessanti raised the same argument. He reasoned that "the fact that the Plaintiffs would be hit by a speeding driver while [plaintiffs] were crossing the street in a crosswalk a number of blocks from where the alleged wrongful ejection occurred, was not foreseeable to Mr. Kessanti," and that the negligent driver's conduct "was the superseding, intervening, and sole proximate cause of the accident." Bachir's motion followed the same trajectory, arguing that "the negligent driving of co-defendant John Szczepaniak striking the plaintiffs with his vehicle while they were crossing Kedzie Avenue on foot was the intervening act of a third person which broke the causal connection between the alleged negligent entrustment of a vehicle to *** Kessanti and the injuries caused by Szczepaniak."
¶ 16 On May 8, 2017, the circuit court granted each motion. It reasoned that it was not foreseeable that dropping off plaintiffs "in a different location than the requested location would result in them being hit by a negligent driver when they attempted to cross the street blocks away from where they were dropped off without incident." The trial court ruled that the actions of Szczepaniak, in "driving his vehicle negligently so as to strike the Plaintiffs as they were crossing the street in a crosswalk blocks away from where they exited the vehicle was an intervening, superseding cause of the Plaintiffs' injuries that broke any causal chain stemming from the acts of the Co-Defendants ***." The court thus dismissed the complaint with prejudice as to defendants Uber, Kessanti, Bachir, and Cab Investment Group. The court entered a finding 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 *438 *709 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
,
¶ 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
,
¶ 24 Proximate cause is a two-part inquiry.
First Springfield Bank v. Galman
,
¶ 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,
¶ 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.
*710
*439
Lee v. Chicago Transit Authority
,
¶ 28 There can be more than one cause of a plaintiff's injury.
Douglas v. Arlington Park Racecourse, LLC
,
¶ 29 The complaint more than adequately pleads cause in fact. The only reason Kramer and Vega were crossing Kedzie Avenue at two in the morning is that they were forced to walk home, after being kicked out of the Uber vehicle. "Absent that conduct" in wrongfully expelling Kramer and Vega from the Uber vehicle, "the injury would not have occurred."
Galman
,
¶ 30 Defendants invoke the " 'condition vs. cause' dichotomy." Under the condition/cause analysis, when a plaintiff is injured by the intervening act of a third party, the defendant can be held liable for the plaintiff's injury if the defendant's actions actually brought about the injury, but not if the defendant's actions only created a condition that made the injury possible.
Galman
,
¶ 31 We can style the analysis by any name; it's the same cause-in-fact analysis. As our supreme court explained: "When
Briske, Merlo,
and
Thompson
ask whether the defendant's conduct was a cause of the injury or simply furnished a condition by which the injury was made possible, they are in effect asking whether the defendant's conduct was a material and substantial element in bringing about the injury."
Galman
,
¶ 32
Galman
itself is a good example. There, a tanker truck was parked illegally on Lawrence Avenue in Springfield, close to an intersection.
Galman
,
¶ 33 The defendants argued that the illegal parking of the vehicle was merely a condition by which the injury was made possible, and the intervening, superseding negligence of the decedent in jaywalking across Lawrence was the proximate cause of her injuries.
Id.
at 256-57,
¶ 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
,
¶ 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
,
¶ 38 So at bottom, the question is whether the intervening, negligent driving of Szczepaniak, in speeding and failing to yield to pedestrians in a crosswalk, was reasonably foreseeable to Kessanti (and thus by extension to Uber) after Kessanti ejected Kramer and Vega from the vehicle far away from their agreed-upon destination.
*712
*441
¶ 39 In so deciding, we must keep in mind our procedural posture. We are at the pleading stage, where we take the facts as true and draw all reasonable inferences in favor of the plaintiff; indeed, we may not dismiss a complaint under section 2-615"unless it clearly appears that no set of facts can be proved that would entitle the plaintiff to recovery."
Henderson Square Condominium Ass'n v. LAB Townhomes, LLC,
¶ 40 Again, the complaint alleges that the neighborhood where Kramer and Vega were ejected was "dark" and "poorly illuminated," and that "certain street lights were not operating." The complaint alleges a "high volume of traffic and limited traffic control devices" in this neighborhood.
¶ 41 The complaint also alleges that, as the events happened at two in the morning, this neighborhood included "third parties departing various drinking establishments and in *** various states of insobriety, aggression or unsafe state of mind," where cars "were speeding and driving dangerously." And this neighborhood "lacked a visible police or law enforcement presence."
¶ 42 The complaint thus alleges that, when Kramer and Vega were wrongly expelled from the Uber vehicle at two in the morning, they were forced to walk through a poorly-lit area with limited traffic-control devices at a time when a fair number of intoxicated individuals were leaving bars and taverns. They were forced to cross streets in a high-traffic area where drivers were proceeding aggressively, and the likelihood of intoxicated drivers was as high as it would be at any time of the day or night. In this context, drawing all reasonable inferences in favor of plaintiffs, can we say that the danger of being hit by a car was so remote as to be unforeseeable as a matter of law? Our answer is no.
¶ 43 What, after all, would a reasonable person consider to be a foreseeable fear for someone who was abandoned on the side of the road under the circumstances alleged here-a dark, high-traffic urban area populated with bars and taverns at a time when individuals are leaving those drinking establishments?
¶ 44 One obvious concern would be the fear of crime-an assault or mugging. Another might be exposure to the elements, if the weather were sufficiently severe; say, for example, the passenger was forced to walk the rest of the way to her destination on an icy sidewalk and, while doing so, slipped and fell and sustained injuries. See,
e.g.
,
Trevino v. Flash Cab Co.
,
¶ 45 But a reasonable person might be concerned, as well, with being forced to cross major city streets (such as Kedzie Avenue, where the accident occurred) under these circumstances. It is no stretch to imagine that people leaving bars and taverns in "various states of insobriety" (as alleged here) might get behind the wheel of a car, and the risks of that unfortunate combination is not at all hard to imagine. See,
e.g.
,
Westin Operator, LLC v. Groh
,
¶ 46 Most of us have urged those close to us (or been urged by them) to take greater care on the roads late at night or in the wee hours of the morning, especially on weekends as here, some version of the "you-never-who-might-be-driving-at-that-time-of-night" speech. That concern would be at its peak if the route the expelled passenger was forced to take, by foot, was a poorly-lit, high-traffic area were people were leaving bars and taverns, and where cars were already speeding and operating recklessly, as alleged here.
¶ 47 The context matters. The facts matter. The danger to a pedestrian of being hit by a car would undoubtedly vary if we posited, for example, a passenger being expelled from the Uber vehicle in the middle of an interstate highway at midnight, versus being stranded in a deserted, rural town in broad daylight. This case obviously falls between those extremes. But taking the allegations here as true and drawing all reasonable inferences in favor of plaintiffs, we cannot say that the risk to Kramer and Vega of being hit by a reckless driver's car was so clearly unforeseeable as to be something we can decide at the pleading stage.
¶ 48 Our holding is consistent with the voluminous case law on the subject of intervening causation. Defendants rely heavily on two decisions of our supreme court, neither of which is inconsistent with our conclusion.
¶ 49 One that we already discussed above, in our cause-in-fact analysis, is
Galman
,
¶ 50 That well-reasoned decision is perfectly compatible with our holding. The decedent there easily could have used the crosswalk; the parked tanker truck didn't prevent her from doing so. Her decision to *714 *443 jaywalk, and to do so while being obscured by the truck, was the decedent's decision alone, not caused in any way by the presence of the truck. The presence of the truck did nothing to set in motion a sequence of events. Here, in contrast, while Kessanti did not cause Szczepaniak to drive recklessly, he absolutely forced Kramer and Vega into a position where 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
,
¶ 52 On the way to the hospital, the friend's car approached the intersection of King Drive and Pershing.
¶ 53 The plaintiff sued the City of Chicago for refusing to provide her with ambulance service.
"[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 261-62,285 Ill.Dec. 183 ,811 N.E.2d 670 .
¶ 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 *715 *444 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.
¶ 55 The gist of defendants' argument, citing those supreme court cases and others we will address, is that "negligent driving" breaks the causal chain between the first defendant's negligence and a plaintiff's injuries "as a matter of law." That is often the case. But it's not always the case. And it's certainly not always a conclusion we can reach at the pleading stage. Like Galman and Abrams , most of the cases that find a lack of foreseeability "as a matter of law" do so at the summary judgment stage or after trial-that is, after the parties have had the opportunity to develop a record and put forth their best evidence.
¶ 56 First of all, as to the intervening cause: "Negligent driving" is not some one-size-fits-all proposition. It is not a talismanic phrase that will break every causal chain in every situation. Some driving, to be sure, is so negligent that we might say it was beyond reasonable anticipation. For example, a driver's negligence in driving on a prohibited portion of the road under construction, followed by an illegal U-turn into oncoming traffic that caused an accident, could not be a reasonably foreseeable result of a city doing nothing more than performing construction work on the road and narrowing down the lanes of traffic to a single lane in each direction.
Newsome v. Thompson
,
¶ 57 The likelihood that a driver would be so negligent as to swerve over a median and cross onto the other side of the road was so minimal as to be unforeseeable as a matter of law-though we so held in affirming summary judgment, after the parties had taken extensive discovery, including fact and expert testimony.
In re Estate of Elfayer
,
¶ 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
,
¶ 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 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 16,46 Ill.Dec. 129 ,413 N.E.2d 1242 (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
,
¶ 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
,
*717 *446 ¶ 63 So it's not enough to simply argue that the driver who struck Kramer and Vega was "driving negligently," that Uber and its driver could not be expected to foresee negligent driving, and thus the causal chain was snapped the moment a negligent driver entered the picture. We must consider, among other things, the particulars of the "negligent driving."
¶ 64 Here, because we have an undeveloped record and only a complaint's allegations, we know very little about Szczepaniak's alleged negligence. The complaint tells us he struck Kramer and Vega as they were walking across Kedzie Avenue in a crosswalk. It tells us the driver drove his car "at a speed greater than reasonable and proper with regard to traffic conditions and the use of the roadway," that he "failed to decrease speed to avoid colliding with" Kramer and Vega, and he failed to yield to pedestrians. The complaint later adds that Szczepaniak was "traveling over the speed limit," but we don't know if he exceeded the limit by five miles or 45 miles per hour. We don't even know what the speed limit was.
¶ 65 The complaint tells us that the driver failed to yield to pedestrians in the sidewalk, but we don't know the details. Did he blow through a red light? Disobey a stop sign? How visible were the pedestrians to the driver? If that intersection didn't have a traffic-control device, and if it was dark, Szczepaniak might argue that he was unable to see the pedestrians until it was too late.
¶ 66 We can't pretend that those details don't matter. Of course, they do. The amount we do not know about this accident far exceeds what we do. Ruling as a matter of law without knowing these details is not appropriate. See,
e.g.
,
Chevrie v. Gruesen
,
¶ 67 In addition to considering the nature of the so-called intervening cause, we must also consider the nature of the wrongdoing of the first defendant in the causal chain. In the cases we have discussed above that absolved the first wrongdoer of liability because of a break in the causal chain, the original actor merely failed to do something, like failing to erect a crash-proof median (
Elfayer
), failing to warn of a curve in the road or of
*718
*447
the possibility of an illegal U-turn (
Thompson
,
Newsome
), failing to send an ambulance in a non-emergent situation (
Abrams
), or simply parking a truck illegally (
Galman
). Nothing those defendants did, or failed to do, set in motion a chain of events of any kind. Indeed, no danger was within reasonable contemplation until a new force intervened-and a rather unusual and dramatic intervening force, at that. To use the vernacular of the condition/cause case law, " 'the forces set in operation by the defendant ha[d] come to a rest in a position of apparent safety, and some new force intervene[d].' "
Orrico v. Beverly Bank
,
¶ 68 Consider, on the other hand, the cases we discussed above that found that the intervening act of negligent driving did not absolve the original tortfeasor of liability. In those cases, the effects of the negligence of the first actor had not come to rest in a position of safety.
¶ 69 For example, the failure to trim branches to avoid obscuring a stop sign led the driver to not realize he was supposed to stop at the state highway, even though the driver shared some of the blame for not making that determination on his own.
Bentley
,
¶ 70 The wrongdoing alleged here by Kessanti is nothing like the negligence of those defendants who were absolved of liability in the cases above and is far more analogous to the decisions that refused, as a matter of law, to find the causal chain broken. Kessanti's negligence wasn't passive. He didn't merely fail to warn of a danger or park his car illegally. His wrongdoing was active. He dumped two passengers on the side of the road in the city of Chicago in the middle of the night amid dark, high-traffic streets. He materially
worsened
their position. At the time they were struck by the vehicle, Kramer and Vega were still "dealing with a situation created by [Kessanti's] own negligence."
Bentley
,
*719
*448
¶ 71 To repeat, there can be more than one proximate cause of an injury.
Bentley
,
¶ 72 Here, at least so far as we can discern from nothing more than a complaint, a jury could reasonably conclude that both defendants were at fault. Szczepaniak could be liable for unsafe, reckless driving, but Uber and its driver could be liable for thrusting Kramer and Vega into a position where they had to cross that street in the first place.
¶ 73 In sum, we know far too little about the details of the "negligent driving" of Szczepaniak, as well as the conditions that night, to hold that Szczepaniak's conduct was so beyond the pale as to be unforeseeable as a matter of law, at the pleading stage. And because Kessanti's wrongful ejection of Kramer and Vega forced them into the very situation that required them to cross a 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.
¶ 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.
,
¶ 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 *720 *449 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.
Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment and opinion.
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
,
Reference
- Full Case Name
- Sean KRAMER and Nancy Coronel, Plenary Guardian of the Estate and Person of Jasmine Vega, a Disabled Person, Plaintiffs-Appellants, v. John SZCZEPANIAK, A/K/A John Szcpenqniak; Farid Kessanti; Salah Bachir; Cab Investment Group, Inc. ; And Uber Technologies, Defendants (Farid Kessanti; Salah Bachir; Cab Investment Group, Inc. ; And Uber Technologies, Defendants-Appellees).
- Cited By
- 9 cases
- Status
- Unpublished