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SECOND DIVISION
FEBRUARY 15, 2005

JUSTICE GARCIA delivered the opinion of the court.

This is a wrongful death and survival action resulting froman incident in which the decedent, Brooks Mann, was struck by avehicle driven by Romaus Mesa while he was crossing Route 59 inBarrington, Illinois, after truck driver James Bartow, anemployee of Producer's Chemical Company (PCC), allegedly signaledto Mann that it was safe to cross the street. Mann ultimatelydied of the resultant injuries.

The plaintiff, Mann's mother, brought a four-count suitagainst Mesa, Bartow and PCC. Counts II and IV are directedsolely at Mesa, who is not a party to this appeal. Two countsare directed at PCC and Bartow, count I for wrongful death andcount III, a survival action. The two counts are based on theallegation that Bartow signaled to Mann that it was safe to crossthe street and that Bartow's signal was a voluntary undertaking,negligently performed.

PCC and Bartow moved for summary judgment based on thetestimony of witnesses elicited in the discovery depositions. OnMay 23, 2001, the trial court granted the motion, finding theplaintiff could not show, as a matter of law, that PCC and Bartowproximately caused Mann's injuries. For the following reasons,we affirm.

BACKGROUND

On September 2, 1997, Mann and another high school student,Audrey Fox, were walking home from Barrington High School. Foxwas walking ahead of Mann. The accident occurred where Route 59intersects with Caitlow Court, right next to the railroad tracks. There is no pedestrian crosswalk at this intersection.

Fox crossed Route 59 and stopped to sit on a wall on theother side of the street. She "looked back and saw a truck cometo a stop just north of the tracks, and saw [Mann] begin to crossthe street." Mann crossed Route 59 in front of the truck. According to Fox, "as [Mann] was in front of the truck [she saw]the truck driver wave at him." Fox testified that she sawBartow, the truck driver, wave Mann through and that Mann waslooking at Bartow when Bartow signaled. "The truck [driver]waved him through and he went through." Fox also testified thatshe did not see Bartow look around to see if it was safe beforehe signaled to Mann. After Bartow's wave, Fox saw Mann continuehis path across the street. As soon as Mann stepped past thetruck, he was struck by a speeding vehicle driven by Mesa, whichcame around the truck through a yellow-marked, no-drive zone.

Gail Dixon was in the second car behind Bartow's truck. Traffic was at a full stop, "just lined up." She first observedMann as he approached Route 59 from what appeared to be a sidestreet. As Mann approached the street, he "made a pause when hewas looking toward the cars that were stopped. He did looktoward us, I believe, and it was my feeling that he saw thateveryone was stopped. I don't know - - he didn't stop and wait,but he did pause." As he entered the street, "he was movingquickly." She lost sight of Mann as he passed in front ofBartow's truck.

Pamela Kunz was in the car directly in front of Bartow'struck, headed in the same direction. She saw Mann through herrear-view mirror cross behind her car. "[H]e wasn't walking, hewasn't running, like a kid would go across the street fast." Shenext saw Mann through her side-view mirror, saw the other vehiclecoming up fast, and "knew the kid was going to get hit." She"never saw the truck motion him across."

Terrence Niven was driving the first car headed southboundon Route 59 in the traffic line waiting at the red light. Thefirst time he saw Mann was when he, Mann, emerged from the lineof traffic, immediately prior to being struck by Mesa's vehicle. He never saw the driver of PCC's "tractor-trailer" prior to theimpact.

Bartow testified that he was stopped at a light just northof the railroad tracks and was facing southbound on Route 59. While he was stopped there, he saw Fox pass in front of histruck, cross the street, and sit on the wall on the other side.When Bartow first saw Mann, Mann was in front of Bartow's truck. Bartow saw Mann "running" across the street at the same time hesaw the green arrow indicating left-turning southbound trafficcould proceed. Also at the same time, Mesa's vehicle came aroundthe truck, through the yellow-marked, no-drive zone, headed forthe left-turn lane that had the green arrow. Bartow testifiedthat he did not signal to Mann, but he did reach for his air-horncord over his left shoulder when he saw that Mann would be hit byMesa's vehicle. Additionally, Bartow testified that he nevermade eye contact with Mann; nor did he see Mann look in hisdirection.

On March 9, 2001, PCC and Bartow filed a motion for summaryjudgment, supported by exhibits A through N, which included thediscovery depositions of Fox, Bartow, Dixon, Kunz, and Niven,among others. On May 23, 2001, the trial court granted themotion based on the pleadings and the depositions, finding theplaintiff could not prove proximate cause because Mann continuedto cross the street without doing anything different from what hehad been doing before he supposedly saw Bartow "wave." Inreaching its ruling, the trial court addressed the only testimonyregarding the alleged wave by Bartow: that of Fox, who statedthat Mann just went on crossing the street when the truck driverwaved at him. Regarding Fox's testimony, the trial court stated:

"And what [Fox's testimony] means is this: It's, yesreasonable inferences could be made but based on thatparticular statement; in order to make that reasonableinference, it would have to be pure speculation on thejury's part because nobody can say when [Mann] waslooking that he relied in any way on the [Bartow'sgesture], if in fact the gesture was made and if [thejury] came to that conclusion that the gesture was awave, what [Fox] says is [Mann] didn't do anythingdifferent. He just walked across the street. Hecontinued doing what he was doing. And in order to getto that point, it would be pure speculation and thecase law says that speculation isn't good enough. Sobased on that, the motion for summary judgment as toProducer's Chemical and James Bartow will be allowed."

The plaintiff appealed pursuant to Supreme Court Rule 304(a).ANALYSIS

The plaintiff argues the trial court erred in enteringsummary judgment in favor of PCC and Bartow because the trialcourt improperly resolved, as a matter of law, the "factual"question of whether Mann relied on Bartow's signal in crossingthe street.

PCC and Bartow contend summary judgment was appropriatebecause: (1) Bartow owed no duty of care to Mann; (2) Mann failedto create a genuine issue of material fact as to whether Bartowbreached a duty of care; and (3) Mann failed, as a matter of law,to prove the alleged negligence of Bartow was a proximate causeof Mann's accident. Because we affirm the trial court's rulingand likewise find that the plaintiff cannot prove proximatecause, we need not address the other issues raised on appeal. McCullough v. Gallaher & Speck, 254 Ill. App. 3d 941, 948, 627N.E.2d 202 (1993), citing Kennedy v. Joseph T. Ryerson & Sons,Inc., 182 Ill. App. 3d 914, 918, 538 N.E.2d 748 (1989) (theplaintiff must establish the necessary element of proximate causeotherwise he has not sustained his burden of making a prima faciecase and summary judgment is proper).

This appeal challenges the propriety of summary judgment andtherefore will be reviewed de novo. McCullough, 254 Ill. App. 3dat 948; Retzler v. Pratt & Whitney Co., 309 Ill. App. 3d 906,912, 723 N.E.2d 345 (1999). Summary judgment is proper when thepleadings, depositions, affidavits, and admissions on file showthere is no genuine issue as to any material fact and that themovant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (c)(West 1998). "Where a defendant moves for summaryjudgment, the plaintiff has an affirmative duty to present factsand evidence to establish the existence of a cognizable cause ofaction. [Citation.] Summary judgment can be granted only wherethe right of the moving party is clear and free from doubt." Kennedy, 182 Ill. App. 3d at 918. Factual disputes cannot bedecided as a matter of law (McCullough, 254 Ill. App. 3d at 948);therefore, where reasonable persons could draw divergentinferences from the undisputed material facts or where there is adispute as to a material fact, summary judgment should be deniedand the issue decided by the trier of fact (Retzler, 309 Ill.App. 3d at 913).

In a negligence action, such as this one, the plaintiff isrequired to prove: (1) the defendant owed a duty of reasonablecare to the plaintiff; (2) the defendant breached that duty; and(3) the breach was the proximate cause of the plaintiff's injury. Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d789, 795, 721 N.E.2d 614 (1999); Wojtowicz v. Cervantes, 284 Ill.App. 3d 524, 531, 672 N.E.2d 357 (1996). The issue of proximatecause is usually a question of fact for a jury. Wojtowicz, 284Ill. App. 3d at 531. However, a plaintiff must demonstrateproximate cause otherwise he has failed to establish a primafacie case and a directed verdict is proper. And, "where thepleadings, depositions, and other evidence before the court showthat at trial a verdict would have to be directed, entry ofsummary judgment is proper." Kennedy, 182 Ill. App. 3d at 918.

Proximate cause has two components: cause in fact (a matterof reasonable certainty) and legal cause (a question offoreseeability). First Springfield Bank & Trust v. Galman, 188Ill. 2d 252, 257-58 (1999). Cause in fact exists where there isa reasonable certainty that a defendant's acts caused the injuryor damage. "A defendant's conduct is a cause in fact of theplaintiff's injury only if that conduct is a material element anda substantial factor in bringing about the injury. [Citation.] Adefendant's conduct is a material element and a substantialfactor in bringing about an injury if, absent that conduct, theinjury would not have occurred. [Citation.]" First Springfield,188 Ill. 2d at 258.

In this case, the plaintiff rests her claim on section 324Aof the Restatement (Second) of Torts, which states:

"One who undertakes, gratuitously or forconsideration, to render services to another which heshould recognize as necessary for the protection of athird person or his things, is subject to liability tothe third person for physical harm resulting from hisfailure to exercise reasonable care to protect hisundertaking, if
(a) his failure to exercise reasonable careincreases the risk of such harm, or
(b) he has undertaken to perform a duty owed bythe other to the third person, or
(c) the harm is suffered because of reliance ofthe other or the third person upon the undertaking." Restatement (Second) of Torts.