JASON A. SHANK, Plaintiff-Appellant, v. H.C. FIELDS, Defendant (Champaign Asphalt Company, Defendant-Appellee), 373 Ill. App. 3d 290

JUSTICE COOK delivered the opinion of the court: Plaintiff, Jason A. Shank, appeals the circuit court’s entry of

summary judgment in favor of defendant Champaign Asphalt Company (Champaign Asphalt). We affirm. I. BACKGROUND On May 25, 2001, Champaign Asphalt was doing road-construction work on Interstate Highway 74, near exit 192, in Champaign County, Illinois. Champaign Asphalt’s contract with the Illinois Department of Transportation (IDOT) incorporated IDOT’s standard specifications, one of which was that all lanes of traffic shall be open on any legal holiday period, including the Friday before Memorial Day, beginning at 3 p.m. May 25, 2001, was the Friday before Memorial Day.

A major multivehicle accident occurred on that date at approximately 3:35 p.m. Only one of the highway’s right two lanes of traffic was open. The reason for the delay was that conveyor-type equipment being used to remove debris from the highway, an “Athey loader,” unexpectedly broke down. At the time of the accident, traffic, which was required to merge from two lanes to one lane, was hacked up for 1.34 miles. Rex A. Nichols, driving a semitruck with a 40,000-pound load, struck the line of vehicles, hitting the car in which plaintiff was a passenger and the car driven by defendant H.C. Fields.

Nichols had been driving about 57 miles per hour and, according to witnesses, did not reduce his speed before colliding with the vehicles. The road was level and the weather was clear. Nichols knew in advance that traffic would be stalled due to road construction; he had driven that same stretch of highway three times in the last two months and he was warned over his radio an hour in advance. The proper traffic-control devices were in place for the lane closure. Cautionary road-construction signs indicated an upcoming lane merger in three miles and two miles, respectively.

Lane-closure signs were also one-half mile before the construction zone. Plaintiff was seriously injured in the accident. Plaintiffs parents entered into a settlement agreement with Nichols and his employer in the amount of $427,500. Subsequently, upon reaching the age of majority, plaintiff brought this action against Champaign Asphalt. Count I, sounding in negligence, alleged that Champaign Asphalt failed in its duty to reopen all lanes of traffic by 3 p.m., resulting in the injury to plaintiff.

Count II, sounding in contract, alleged that plaintiff was a third-party beneficiary of the contract between IDOT and Champaign Asphalt requiring that all lanes of travel be open from 3 p.m. on May 25, 2001, to midnight on May 28. IDOT had imposed a monetary sanction for a lane closure the weekend of May 11-13. A May 24 memo states that the reason for the sanction was that Champaign Asphalt was given the opportunity to work Saturday to remove the lane closure and declined to do so.

In a May 23 memo, IDOT complained that Champaign Asphalt worked after dark on Friday, May 18, and did not remove traffic control and open the lane until 9:30 p.m.

The memo also discussed a May 3 incident, where Champaign Asphalt had worked 45 minutes after dark and been warned that work after dark would not be paid for. “It would be better to quit for the day, and discard any asphalt, than to risk an accident or injury.” The memo further stated, “It had 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.” Champaign Asphalt filed a motion for

summary judgment. The trial court granted the motion, stating: “The day was clear; IDOT did have the required warning signs posted; Mr. Nichols had been down this road before and was, should have been aware of the construction work; Mr. Nichols didn’t slow down, but plowed into a stationary car. These things, I think, are not in dispute; and I believe they add to the conclusion that the Court is compelled to draw, which is the alleged negligence of Champaign Asphalt did nothing more than create a condition making this accident possible; and the intervening negligence of Mr.

Nichols broke that causal chain; and therefore, it was the sole proximate cause.” The court also stated that the facts and the inferences to be drawn therefrom failed to demonstrate duty or breach of duty. Plaintiff appeals. II. ANALYSIS

Summary judgment is proper if, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 — 1005(c) (West 2004). “To succeed in an action for negligence, a plaintiff must prove facts that establish the existence of a duty, a breach of the duty, and an injury to the plaintiff [that] was proximately caused by the breach.” Hills v.

Bridgeview Little League Ass’n, 195 Ill. 2d 210, 228, 745 N.E.2d 1166, 1178 (2000). A. Duty As to count I, plaintiff argues that it is foreseeable that accidents will occur when traffic lanes are closed, and therefore Champaign Asphalt had a duty to have the lane open. Whether a duty of care exists is a question of law, which must be resolved by the court. O’Hara v. Holy Cross Hospital, 137 Ill. 2d 332, 337, 561 N.E.2d 18, 20 (1990).

When “considering whether a duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against [the injury,] and the consequences of placing that burden on the defendant.” Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542, 582 N.E.2d 108, 112 (1991); Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 526, 513 N.E.2d 387, 396 (1987). “[F]oreseeability alone provides an inadequate foundation upon which to base the existence of a legal duty.” Ward v.

K mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990). The issues of duty and proximate cause are interrelated, and in many ways, it is possible to deal with most of the issues that arise in a negligence case in terms of duty. W. Keeton, Prosser & Keeton on Torts §53, at 356 (5th ed. 1984). In fact, approaching negligence cases from the duty prong may be preferable because such an approach directs the court’s attention to policy issues that determine the extent of the original obligation and away from the “mechanical” sequence of events that goes to make up causation in fact.

W Keeton, Prosser & Keeton on Torts §42, at 274 (5th ed. 1984). Many Illinois cases have refused to impose a duty in situations where an accident was foreseeable. It is not a breach of duty to supply electricity to a community knowing that, over time, electrocution is likely. “The benefits of electricity outweigh the disadvantages.” Tinder v. Illinois Power Co., 325 Ill. App. 3d 606, 610, 758 N.E.2d 483, 487 (2001). Employers do not have the duty to insure that their employees working long overtime hours drive home safely and sufficiently rested.

The burden of placing that duty on employers would be enormous and outweigh any benefits. Behrens v. Harrah’s Illinois Corp., 366 Ill. App. 3d 1154, 1157-58, 852 N.E.2d 553, 556 (2006). Municipalities are not required to build medians that would be sufficient to prevent a drunk driver from crossing over into oncoming traffic. “[T]he magnitude of guarding against this injury and the consequences of placing that burden on defendant would be too great.” In re Estate of Elf ayer, 325 Ill. App. 3d 1076, 1082, 757 N.E.2d 581, 586 (2001).

A utility owes no duty to insure that if an automobile leaves the traveled portion of a roadway and strikes a utility pole, the pole will fall away from the highway. Gouge, 144 Ill. 2d at 544, 582 N.E.2d at 112. Road-construction projects make travel conditions more dangerous for motorists, and accidents are certainly foreseeable. But what is the alternative? Not repairing the roads? Completely closing any highway that is undergoing repairs?

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. Certainly highway authorities have a duty to act reasonably in preventing harm to the public, even harm caused by third-party negligent drivers. Champaign Asphalt complied with that general duty here, by posting all the required warning signs. Plaintiff argues for an absolute specific duty that all lanes be open by 3 p.m.

Champaign Asphalt was required by its contract to attempt to have all lanes open by 3 p.m., but Champaign Asphalt would not have acted reasonably if it had opened the lanes before they were ready. Under plaintiffs theory, Champaign Asphalt had no duty a minute before 3 p.m. but had a duty a minute after 3 p.m. A court’s determination whether a duty exists should not be so uncertain. The provisions at issue here should not make Champaign Asphalt hable for every accident that might have occurred after 3 p.m.

We may consider the provisions of the contract in determining the standard of care, but they are not controlling in our determination whether a legal duty exists. B. Cause Plaintiff argues that not opening the second lane by 3 p.m. was the proximate cause of his injury. Proximate cause has two components: (1) cause in fact and (2) legal cause. First Springfield Bank & Trust v.

Galman, 188 Ill. 2d 252, 257-58, 720 N.E.2d 1068, 1072 (1999). “Cause in fact” requires the plaintiff to show that defendant’s negligence was the actual cause of his injury; “but for the defendant’s conduct, the accident would not have occurred.” McCraw v. Cegielski, 287 Ill. App. 3d 871, 873, 680 N.E.2d 394, 396 (1996). “Cause in fact” is not enough to impose liability. The fact that an accident would not have happened, but for a child’s request that her mother drive her to school, is not enough to impose liability on the child. Tinder, 325 Ill. App. 3d at 609, 758 N.E.2d at 486.

There must also be “legal cause.” “Legal cause” can be established only if a defendant’s acts are “ ‘so closely tied to the plaintiffs injury that he should be held legally responsible for it.’ ” Simmons v. Garces, 198 Ill. 2d 541, 558, 763 N.E.2d 720, 732 (2002), quoting McCraw, 287 Ill. App. 3d at 873. “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, 821 N.E.2d 1078, 1086 (2004).

In Young, the supreme court held that the defendants’ lawful manufacture and sale of handguns was not the legal cause of harm brought about by the intervening criminal acts of third parties. Young, 213 Ill. 2d at 454-55, 821 N.E.2d at 1090-91. Although a police officer’s conduct in following a suspect may have served as the impetus (“cause in fact”) for the suspect to flee the scene, there was no “legal cause” where the officer was stuck in traffic 20 to 25 cars behind the suspect, keeping a safe distance and driving at a constant speed, when the suspect drove up onto the sidewalk and struck the plaintiff.

Wade v. City of Chicago, 364 Ill. App. 3d 773, 784, 847 N.E.2d 631, 641 (2006). The cases have distinguished between conduct that is the cause of an accident, and conduct that does nothing more than furnish a passive condition by which the injury is made possible. Galman, 188 Ill. 2d at 257, 720 N.E.2d at 1071.

The doctrine has been criticized but is recognized to have validity where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes. “But even in such cases, it is not the distinction between ‘cause’ and ‘condition’ which is important, but the nature of the risk and the character of the intervening cause.” W. Keeton, Prosser & Keeton on Torts §42, at 278 (5th ed. 1984). It is not clear this accident would not have happened, “but for” the lane being closed. It is possible that traffic would have been backed up even if the lanes were open.

As noted by the trial judge, it is fair to infer the traffic backup did not suddenly materialize at exactly 3 p.m. A completely inattentive driver is a threat at any time, even if traffic is slow-moving but not stopped. Even if we assume the accident would not have happened “but for” the closure, that is not enough for liability. The accident would not have happened if the authorities had not built the road in the first place, but that also is no basis for liability. “Legal cause” is required for the imposition of liability, and there was no “legal cause” in this case.

The failure to have both lanes open was not so closely tied to plaintiffs injury that Champaign Asphalt should have responsibility for it. As the trial court found, the failure to have the lane open was only a condition that allowed this accident to happen, not a cause. The actions of Champaign Asphalt in closing the lane did not promote or encourage Nichols to act in the way he did. Cf. Long v. Friesland, 178 Ill. App. 3d 42, 55-56, 532 N.E.2d 914, 923 (1988) (allowing brush to overhang road would force driver to cross centerline); Yates v. Shackelford, 336 Ill.

App. 3d 796, 804, 784 N.E.2d 330, 336 (2002) (distinguishing cases where alleged intervening act was not an unreasonable response). Champaign Asphalt should not be the insurer of every accident that happened while a lane was closed. C. The IDOT Contract Count II of Shank’s complaint alleges that he was a third-party beneficiary of the contract between Champaign Asphalt and IDOT, and Champaign Asphalt accordingly owed him a duty to open all lanes by 3 p.m.

A third party may only sue for breach of contract if the contract was entered into for the party’s direct benefit; if the third party’s benefit is merely incidental, he has no right of recovery on the contract. Yakubinis v. Yamaha Motor Corp., U.S.A., 365 Ill. App. 3d 128, 140, 847 N.E.2d 552, 563 (2006). There is a strong presumption against creating contractual rights in third parties. Estate of Willis v. Kiferbaum Construction Corp., 357 Ill. App. 3d 1002, 1007, 830 N.E.2d 636, 642 (2005). Count II does not seek typical contract relief but seems more to allege the voluntary assumption of a duty in negligence.

See Bourgonje v. Machev, 362 Ill. App. 3d 984, 1000, 841 N.E.2d 96, 110-11 (2005); see also Rogers v. Clark Equipment Co., 318 Ill. App. 3d 1128, 1134, 744 N.E.2d 364, 368 (2001) (mistake to muddy waters of voluntary undertaking by failing to distinguish between two separate concepts of voluntary undertaking and assuming a duty to a third party through contract).

The contract incorporated IDOT’s “Standard Specifications for Road and Bridge Construction,” including a provision entitled “Public Convenience and Safety”: “No broken pavement, open holes, trenches, barricades, cones, or drums will remain on or adjacent to the traveled way and all lanes shall be open to traffic during any legal holiday period, except where stage construction with traffic control is provided. *** The legal holidays include: *** Memorial Day *** 3 p.m.

Friday [to] 12 midnight Sunday.” The Fifth District has held that a road contractor working on a nearby bridge had a duty not to obstruct a grassy median with concrete barrier segments, which were later struck by a vehicle that lost control and left the roadway. In imposing that duty, the court relied on IDOT guidelines included in construction contracts that prohibited obstructing the median in general and required guardrails if there was a necessary obstruction. Vosbein v. E.T. Simonds Construction Co., 295 Ill. App. 3d 427, 432, 693 N.E.2d 500, 503 (1998).

Presiding Justice Welch dissented, noting that the question was whether the law imposed a duty, and industry standards, while evidence of a standard of care, do not create such a relationship. Vosbein, 295 Ill. App. 3d at 435, 693 N.E.2d at 506 (Welch, PJ., dissenting). In any event, Vosbein involved a situation different from our case. There is a difference between allowing unguarded open holes, trenches, or barricades on or adjacent to a highway and closing a lane to traffic after posting proper warnings.

An unguarded open hole is a danger even to careful drivers; a properly marked lane closing is only a danger when encountered by a completely inattentive driver. It is useful to compare this case involving IDOT’s standard specifications to cases involving general department directives for police officers. Violation of self-imposed rules or internal guidelines, such as police department general orders, do not normally impose a legal duty, let alone constitute evidence of negligence. Wade, 364 Ill.

App. 3d at 781, 847 N.E.2d at 639 (“pursuit,” contrary to guidelines, in an unmarked vehicle without notifying dispatcher). “Where the law does not impose a duty, one will not generally be created by a defendant’s rules or internal guidelines. Rather, it is the law which, in the end, must say what is legally required. See Blankenship v. Peoria Park District, 269 Ill. App. 3d 416, 422[, 647 N.E.2d 287, 291] (1994) (park district’s internal rules requiring one lifeguard to remain on duty at all times did not create a legal duty to have one lifeguard on duty); Fillpot v. Midway Airlines, Inc., 261 Ill.

App. 3d 237, 244[, 633 N.E.2d 237, 242] (1994) (where airline owed no legal duty to remove snow or ice, airline’s policy manual requiring the clearing of walkways did not create such a duty); Mattice v. Goodman, 173 Ill. App. 3d 236, 240[, 527 N.E.2d 469, 472] (1988) (where building owners owed no legal duty to assist elderly person through door, no such duty was created by building owner’s employment of an employee who, in accordance with his job description, customarily assisted elderly persons through the door).” Rhodes v.

Illinois Central Gulf R.R., 172 Ill. 2d 213, 238, 665 N.E.2d 1260, 1272 (1996) (no duty to promptly assist intoxicated individual discovered in warming house of commuter train system). The requirement in this case that “all lanes shall be open to traffic during any legal holiday period” appears to relate more to public convenience, traffic flow, than it does to safety. There was no requirement that lanes be opened whenever traffic began to back up. The traffic backup that occurred in this case could easily have occurred on a nonholiday. A similar analysis was made in Rowe v.

State Bank of Lombard, 125 Ill. 2d 203, 531 N.E.2d 1358 (1988). The outside lighting and buzzers at the property were not provided for security but, instead, are common for apartment buildings as a convenience. Their installation at the property cannot reasonably be regarded as an assumption of a duty to protect against third-party criminal acts. Rowe, 125 Ill. 2d at 218, 531 N.E.2d at 1365. Plaintiff cites our decision in Moss v. Rowe Construction Co., 344 Ill.

App. 3d 772, 801 N.E.2d 612 (2003), to support his argument that a legal duty for purposes of negligence was created by the contract between Champaign Asphalt and IDOT. Moss began with the rule that a general contractor was not liable for the work of a subcontractor unless the general contractor retained control of some part of the work, and it was not enough for liability that the general contractor had some general right, for example to order the work stopped. Moss, 344 Ill. App. 3d at 777-78, 801 N.E.2d at 616.

Under the contract in Moss, the general contractor was required to maintain control of safety on the project, which we held to be a retention of control of some part of the work, making the general contractor responsible for the actions of the subcontractor. The Moss contract did not create a duty in negligence where none had existed before; the contract simply designated who had that duty, who retained the control of some part of the work. The plaintiffs right to protection under the contract was never at issue; the question was whether the duty was owed by the general contractor, the subcontractor, or both.

See Moss, 344 Ill. App. 3d at 780, 801 N.E.2d at 617-18. III. CONCLUSION The trial court properly concluded that Champaign Asphalt had no duty, either as a matter of general legal principle or by virtue of its contract with IDOT, to prevent the independent intervening act that occurred here. The trial court properly concluded that Champaign Asphalt’s conduct was not a proximate cause of the injuries to plaintiff. Accordingly, we affirm the trial court’s judgment. Affirmed. STEIGMANN, EJ, concurs.