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Nos. 2--05--0319 & 2--05--0426 cons.

JUSTICE BYRNE delivered the opinion of the court:

In these consolidated appeals, plaintiff, Cynthia Buffa, as special administrator of the estateof Gregory Buffa, appeals from an order of the circuit court of Du Page County entering summaryjudgment for the defendant Illinois State Toll Highway Authority (Authority) in plaintiff's wrongfuldeath lawsuit. Defendants Liaquat Haideri and A & H Transportation, Inc. (A & H, or, together withHaideri, the A & H defendants) appeal from that order and from the dismissal of their counterclaimfor contribution from the Authority. We affirm.

Plaintiff's four-count complaint alleged that, on December 2, 2001, while riding a motorcycleon Interstate 355, a toll road operated by the Authority, decedent suffered fatal injuries in a collisionwith a vehicle operated by Haideri. Count I sought recovery from Haideri for negligence. Count IIsought recovery from A & H on the basis that, under agency principles, it was liable for Haideri'snegligence. Counts III and IV alleged that icy conditions on the roadway caused decedent's deathand that the Authority caused or created the hazard or failed to properly remove the ice or warnmotorists of the hazard. Count III claimed that the Authority acted negligently. Count IV claimedthat the Authority acted with reckless disregard for decedent's safety.

After unsuccessfully moving to dismiss counts III and IV for failure to state a cause of action,the Authority moved for summary judgment on those counts. In support of the motion, the Authoritysubmitted a copy of the deposition of Reed Dewey, who was a friend of decedent and who partiallywitnessed the accident. Dewey testified that on the morning of the accident he and decedent set outfrom Mount Prospect on their motorcycles. They proceeded along Route 53 to Interstate 355. Dewey noticed fog as he and decedent rode, and he observed that ice was forming on his chaps. Healso noticed that bridges and overpasses were icing up. According to Dewey, as they went throughthe I-PASS lane at the Army Trail Road Toll Plaza, decedent's motorcycle started to fishtail, andDewey realized that they were riding on ice. Dewey saw decedent's motorcycle begin to fall over,but he did not see decedent's actual impact or his collision with Haideri's vehicle. According toDewey, the toll plaza was essentially constructed on an overpass.

In support of its summary judgment motion, the Authority argued, in essence, that there wasno evidence that the ice that caused decedent's accident was anything but a natural accumulation, andthat the Authority had no duty to protect decedent from the risk of harm from a natural accumulationof ice. In response, plaintiff conceded that the ice was a natural occurrence. However, she arguedthat liability should be imposed based on the Authority's own undertaking to remove snow and icefrom the roads under its control. Plaintiff acknowledged the holding of Chisolm v. Stephens, 47 Ill.App. 3d 999 (1977), that a gratuitous undertaking to remove ice does not give rise to a continuingduty to do so; thus, liability ordinarily can be imposed only for misfeasance, i.e. performing theundertaking negligently, rather than nonfeasance, i.e. failing to perform the undertaking altogether. Chisolm, 47 Ill. App. 3d at 1006 (a person who has gratuitously assumed to protect others againstinjury is under no obligation to continue that protection indefinitely). However, plaintiff argued thatChisolm recognized that liability for nonfeasance in connection with a gratuitous undertaking mayarise where the beneficiaries had relied on its performance. Chisolm, 47 Ill. App. 3d at 1007. Inopposition to the Authority's motion, plaintiff submitted a copy of literature placed on the Internetby the Authority, which boasted of the Authority's commitment to providing "safe, well-maintainedroads" and of its "[n]early 400 roadway maintenance employees *** located at 11 facilitiesthroughout the [tollway] system to provide exemplary 24-hour snow and ice removal, bridgemaintenance, minor pavement repair, incident management, and other roadway related activities." Plaintiff also submitted a copy of the Authority's "Snow and Ice Control Manual," which set forthdetailed procedures for clearing roads of ice and snow, including the use of "Dawn Patrols" to check for frost buildup on bridges prior to morning rush hours.

The trial court entered summary judgment for the Authority on count IV, allegingrecklessness, but denied summary judgment as to count III, the simple negligence count. Thereafter,the A & H defendants filed a counterclaim against the Authority, seeking contribution based uponallegations similar to those of count III of plaintiff's complaint. The Authority moved to dismiss thecounterclaim pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West2004)). The Authority also moved for reconsideration of the denial of its motion for summaryjudgment on count III. Among other things, the Authority took issue with the notion that decedentcould have relied on the Authority's Internet literature or its snow removal policy. The Authoritysubmitted affidavits indicating that the Internet document submitted by plaintiff was not placed onthe Internet until almost a year after the accident and that the Authority's Snow and Ice ControlManual is an internal document that is not disseminated to the public.

On August 10, 2004, the trial court entered an order (1) granting the motion to reconsider andentering summary judgment for the Authority on count III, and (2) granting the Authority's motionto dismiss the A & H defendants' counterclaim. The order recited that it was "final and appealable." Plaintiff and the A & H defendants filed separate notices of appeal, but the Authority successfullymoved to dismiss the appeals on the basis that the language of the August 10, 2004, order wasinsufficient to confer jurisdiction under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). Thereafter, on March 17, 2005, the trial court entered an order providing, in pertinent part, asfollows:

"This Court's order granting the [Authority's] Motion to Reconsider, and enteringsummary judgment in favor of [the Authority] *** on August 24, 2004, and this Court's orderof August 24, 2004 dismissing *** [the A & H defendants'] Counterclaim for Contribution*** are made final and appealable under Supreme Court Rule 304(a), with the Court makingthe express finding(s), that no just cause exists to delay the enforcement of or appeal fromthis order of summary judgment and this order of dismissal." (Emphasis added.)

On March 30, 2005, the trial court entered an order correcting "typographical errors" in the March17, 2005, order by changing "August 24, 2004," to "August 10, 2004." The A & H defendants fileda notice of appeal on March 31, 2005. Plaintiff filed her notice of appeal on April 26, 2005. Plaintiff and the A & H defendants jointly moved to consolidate the appeals, and we granted themotion. Plaintiff has not filed an appellate brief, but in connection with the motion to consolidate,plaintiff stated her intention to adopt the briefs submitted by the A & H defendants.

Initially the Authority challenges this court's jurisdiction to hear plaintiff's appeal. We notethat we have an independent obligation to verify our jurisdiction over every appeal that is filed inthis court. Fligelman v. City of Chicago, 264 Ill. App. 3d 1035, 1037 (1994). If our examinationreveals jurisdiction to be lacking, we must dismiss the appeal. Fligelman, 264 Ill. App.3d at 1037. These appeals are governed by Supreme Court Rule 304(a), which provides, in pertinent part, that"[i]f multiple parties or multiple claims for relief are involved in an action, an appeal may be takenfrom a final judgment as to one or more but fewer than all of the parties or claims only if the trialcourt has made an express written finding that there is no just reason for delaying either enforcementor appeal or both." 155 Ill. 2d R. 304(a). The time for filing the notice of appeal is governed bySupreme Court Rule 303 (Official Reports Advance Sheet No. 7 (March 30, 2005), R. 303, eff.March 18, 2005), and "[i]n computing the time provided in Rule 303 for filing the notice of appeal,the entry of the required finding shall be treated as the date of the entry of final judgment." 155 Ill.2d R. 304(a).

The trial court initially entered a Rule 304(a) finding on March 17, 2005. That findingincorrectly referred to the underlying summary judgment/dismissal order as having been filed onAugust 24, 2004, rather than August 10, 2004, when it was actually entered. The Authority arguesthat, despite the error, the Rule 304(a) finding sufficiently identified the order, thus triggering the30-day period for filing a notice of appeal. Thus, according to the Authority, plaintiff's notice ofappeal, filed on April 26, 2005, was untimely. We disagree.

The trial court entered the incorrect order on March 17, 2005, expressly finding no reasonto delay enforcement or appeal, which apparently rendered the judgment immediately appealableunder Rule 304(a). However, a postjudgment "Motion to Correct Typographical Error" was timelyfiled within 30 days, tolling the time for appeal under Rule 303. See McCorry v. Gooneratne, 332Ill. App. 3d 935, 939-40 (2002). Therefore, the period for filing a notice of appeal commenced onMarch 30, 2005, when the motion was granted, and plaintiff's April 26, 2005, notice of appeal wastimely filed within 30 days.

The Authority does not dispute that the A & H defendants properly perfected their appeal andthat they have standing to seek review of the summary judgment against plaintiff. As noted, plaintiffhas not filed her own briefs, but instead has adopted the A & H defendants' briefs. In sum, regardlessof whether plaintiff's notice of appeal was timely, the order she seeks to review is properly beforeus, as are the arguments she seeks to advance.

Turning to the merits, summary judgment is appropriate where "the pleadings, depositions,and admissions on file, together with the affidavits, if any, show that there is no genuine issue as toany material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS5/2--1005(c) (West 2004). Summary judgment is a drastic remedy and should be allowed only whenthe right of the moving party is clear and free from doubt. Jones v. Chicago HMO Ltd. of Illinois,191 Ill. 2d 278, 291 (2000). On appeal from an award of summary judgment, the facts must beviewed in the light most favorable to the nonmoving party. Jones, 191 Ill. 2d at 291. The trialcourt's ruling on a summary judgment motion is subject to de novo review. Jones, 191 Ill. 2d at 291.

The A & H defendants' theory of liability is predicated on section 323 of the Restatement(Second) Torts (Restatement (Second) of Torts