Miller v. Hecox , 2012 IL App (2d) 110546 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Miller v. Hecox, 2012 IL App (2d) 110546
Appellate Court TINA MILLER, Individually and as Special Administrator of the Estate
Caption of Kyle Christian, Deceased, Plaintiff-Appellant, v. KARAC L. HECOX
and CHRISTIE J. MOORS, Defendants (Kallen Szell, Defendant-
Appellee).
District & No. Second District
Docket No. 2-11-0546
Filed May 10, 2012
Held Summary judgment was properly entered for defendant in an action
(Note: This syllabus alleging that defendant was negligent after voluntarily undertaking to help
constitutes no part of plaintiff’s son after he overdosed on heroin and later died or that he was
the opinion of the court part of a civil conspiracy to purchase and use heroin or a conspiracy to
but has been prepared care for plaintiff’s son, since defendant did not engage in any activity that
by the Reporter of would rise to the level of a voluntary undertaking such that he owed a
Decisions for the duty of care to plaintiff’s son and there was no issue of material fact as to
convenience of the the question of reliance, plaintiff’s arguments based on the alleged
reader.)
conspiracy to purchase and use heroin were speculative and unsupported
by authority, plaintiff’s son did not die as a result of a conspiracy
involving defendant, and there could have been no conspiracy to render
care negligently.
Decision Under Appeal from the Circuit Court of Winnebago County, No. 08-L-55; the
Review Hon. Eugene G. Doherty, Judge, presiding.
Judgment Affirmed.
Counsel on Rodney W. Kimes, of Bolgrien, Koepke & Kimes, S.C., of Beloit,
Appeal Wisconsin, for appellant.
Raymond P. Fabricius, of Fabricius, Koening & Lindig, of Ottawa, for
appellee.
Panel JUSTICE HUDSON delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice McLaren concurred in the
judgment and opinion.
OPINION
¶1 I. INTRODUCTION
¶2 Plaintiff, Tina Miller (individually and as special administrator of the estate of Kyle
Christian), filed a multicount complaint in the circuit court of Winnebago County. Plaintiff
is the mother of Kyle Christian, who is deceased. The complaint was directed against
defendant, Kallen Szell, and two other individuals (Karac L. Hecox and Christie J. Moors)
who are not parties to this appeal. Plaintiff claimed that defendant was negligent in rendering
aid to Kyle after undertaking a duty to do so and that Kyle’s death was the result of a civil
conspiracy of which defendant was a part. The trial court granted defendant summary
judgment on both claims. Plaintiff now appeals. We agree with the trial court and affirm.
¶3 II. BACKGROUND
¶4 The following is taken from the depositions of the three defendants in the action below.
We will begin with the testimony of Karac Hecox. He testified that he met Kyle in the
summer of 2006. They met through Christie Moors, whom Hecox was dating. Hecox started
using heroin in April 2006, and by the end of the summer that year, he was using the drug
multiple times every day. Hecox, Moors, and two other individuals financed their drug use
by stealing copper out of new-construction homes and stealing from stores.
¶5 On the day Kyle died, Hecox and Moors woke up experiencing withdrawal symptoms.
They had not stolen anything the previous evening, so they did not have anything to sell at
the scrap yard. Kyle called and said there was some copper in his garage he was willing to
sell. Kyle picked up Hecox and Moors. They then went to a scrap yard and sold the copper
for $60. Hecox contacted a heroin dealer with whom he often dealt. As they were going to
-2-
buy the heroin, Hecox and Moors told Kyle, “[J]ust because you’re getting two bags doesn’t
mean you need to do two bags.” They purchased six bags. Hecox stated that he had never had
a problem with this dealer’s heroin before. Hecox testified that the heroin he got that day was
“perfectly fine.”
¶6 Kyle usually took only one bag of heroin. Hecox believed that Kyle did not have a high
tolerance for the drug. One bag would make him “really, really, really high, like almost
incoherent high.” When a person is high, Hecox explained, the person is “extremely tired”
and “struggling to stay conscious.” Hecox and Moors were no longer using heroin to get
high; rather, they were simply trying to avoid withdrawal symptoms. Hecox testified that
Kyle was “always kind of an emotional character.”
¶7 After they acquired the heroin, they used it in Kyle’s car. Each of them ingested two bags.
At some point, Moors looked at Kyle and noted that he was pale. Hecox checked his pulse,
which was faint, and noted that his breathing was abnormal. Hecox had never seen anyone
overdose before. He performed CPR. Moors suggested that they go to Brian Hoshaw’s house,
because Kyle had overdosed in Hoshaw’s presence in the past. Hoshaw examined Kyle and
checked his pulse. He stated that Kyle had “done this a handful of times with him before.”
Hoshaw told Hecox and Moors to stay with Kyle for a few hours. If nothing changed,
Hoshaw continued, Kyle would be fine; however, if something changed–such as if Kyle
stopped breathing–they should take him to the hospital.
¶8 The three left Hoshaw’s house. They then got a call from defendant and defendant’s
girlfriend. Defendant wanted to buy heroin. They met at the Spring Garden restaurant.
Defendant gave Hecox money. Hecox and Moors, with Kyle still in the car, went to get more
heroin. After returning to the restaurant, Hecox, Moors, defendant, and his girlfriend all did
heroin in defendant’s car. Hecox and Moors explained what was happening with Kyle.
Defendant and his girlfriend went to look at Kyle. When asked whether defendant or his
girlfriend had entered Kyle’s vehicle, Hecox replied, “I want to say yes.” Defendant and his
girlfriend asked whether Hecox thought Kyle would be all right. Hecox testified that
defendant and his girlfriend spoke with Kyle. The group discussed Kyle’s condition, and
Hecox called Mike Monge, who was “experienced in overdosing.” Monge did not “want to
be any part of anybody overdosing.” Hecox could not recall if the others were within earshot
when he called Monge.
¶9 After Hecox got off the phone with Monge, the group went inside the restaurant to have
coffee. Hecox told the group that Monge did not offer any advice. The group was nervous
and had “a little air of wariness.” Kyle was extremely pale. Hecox knew that if anyone saw
him the police would be called. Hecox testified that, before they entered the restaurant, he
had placed a jacket in the window of Kyle’s car so that if anyone pulled up next to the car
they would not see how bad Kyle looked. The others were present when Hecox did this.
Hecox responded negatively when asked whether “everybody was out there trying to help the
situation, trying to figure out ideas to help.” The group remained in the restaurant for two
hours. Every 15 to 20 minutes, Hecox would go out to the car to check on Kyle “to make
sure he was still breathing [and] still had a pulse.” Kyle “was actually seeming to go get [sic]
a little better.” His breathing was becoming somewhat more regular. At some point,
defendant’s girlfriend said “something along the line of you should think about calling an
-3-
ambulance.” Defendant did not say anything.
¶ 10 Subsequently, “it came time to leave.” Hecox went to Kyle’s car and sat with him for 5
or 10 minutes. Kyle “actually started to respond at this point.” Hecox told him that the group
was leaving. Hecox asked whether he should call an ambulance or Kyle’s mother, and Kyle
responded in the negative. Defendant then drove everyone home. The next day, Hecox was
arrested for stealing copper. A few days later, detectives told him that they had found Kyle
dead in his car.
¶ 11 On further questioning, Hecox explained that he did not want to make the situation a
concern of defendant and his girlfriend. He believed that Hoshaw “knew what he was talking
about” as “he had experienced Kyle overdosing several times.” Hecox testified that he
believed that Kyle would be fine. He explained: “I had sold [defendant and his girlfriend]
heroin, they were friends, and I didn’t want to say this guy overdosed with us, what are we
going to do about it. It’s not–it wasn’t their problem.” Hecox did not feel that Kyle’s
condition was “a discussion that [the group] was having at the table [in the restaurant].”
¶ 12 During cross-examination by defendant’s attorney, Hecox stated that it took him and
Moors about 50 minutes to obtain the heroin for defendant. Also, when Hecox performed
CPR on Kyle, defendant was not present. While the group had coffee in the restaurant, Hecox
periodically checked on Kyle. When he returned from doing so, members of the group asked
how Kyle was doing and Hecox reported what he observed. Outside of this, there was no
conversation about Kyle in the restaurant. When Hecox checked Kyle before the group left
the restaurant, Hecox asked Kyle if he was going to be all right and “Kyle mumbled ‘Ah-Ha.’
When they left, Hecox believed that Kyle would be fine. Hecox agreed that, contrary to his
earlier testimony, he did not place the jacket in the window until the group was leaving.
¶ 13 Moors’ attorney also cross-examined Hecox. Hecox stated that Kyle had overdosed at
Hoshaw’s house on several occasions as well as a “couple of times” with a girl named
Amanda. Both he and Moors were aware of this. However, he and Moors had never
previously been present during one of Kyle’s overdoses. When he went to get heroin for
defendant, Hecox purchased four bags. Defendant waited in his car in the parking lot of the
Spring Garden restaurant, along with his girlfriend. When Hecox returned, he gave defendant
the four bags (though he had cut them earlier). Defendant and his girlfriend snorted some of
the heroin. Hecox and Moors each ingested one more bag as well. This took place in
defendant’s car. While the group had coffee in the restaurant, no one other than Hecox went
out to Kyle’s car to check on him. The sun was going down when they left the restaurant, and
Hecox thought that it was about 8 p.m. Hecox and Moors both tried to call Kyle the next day.
When they could not reach him, they “got a little worried.”
¶ 14 During redirect examination, Hecox explained that, when he spoke to Kyle in the car
right before the group left the restaurant, they were not having a conversation. Rather, Kyle
was simply responding to questions. Hecox reaffirmed that he believed that Kyle’s condition
had improved while the group had coffee, pointing to Kyle’s responses and his improved
breathing. He also testified that Moors never suggested they call an ambulance. She did not
aid with CPR. However, she suggested seeking assistance from Hoshaw. Hecox
acknowledged that they passed near a hospital after leaving Hoshaw’s house, on the way to
-4-
the restaurant.
¶ 15 We now turn to the deposition of Christie Moors.1 She testified that she had been
involved in a dating relationship with Hecox from early 2006 to March 2007. She was also
a friend of Kyle, and she knew defendant. Defendant’s girlfriend died in October 2007 in an
accident involving an all-terrain vehicle. She and Hecox did not speak very much about
Kyle’s death.
¶ 16 Moors testified that, during the day preceding Kyle’s death, she left home sometime in
the afternoon. Kyle picked up her and Hecox at her apartment. They drove around the west
side of Rockford for a few hours. Sometime after 4 p.m., they went to a gas station, and
Hecox “ended up with some heroin in his possession.” Eventually, they arrived at the Spring
Garden restaurant. Defendant and his girlfriend were there. They wanted some heroin. Kyle
was sitting in the passenger seat with his eyes closed. He was breathing but not speaking.
Kyle was in that condition because he had used some of the heroin that Hecox had obtained
earlier in the day.
¶ 17 Moors testified that Kyle had previously consumed heroin by snorting it and by injecting
it. While Kyle did not use heroin every day, he used it frequently. Moors and Kyle would get
together several times a week.
¶ 18 Moors continued that, after Kyle first had a reaction to the heroin he ingested, they drove
to Hoshaw’s house. Kyle had “had a bad reaction to using heroin a handful of times in the
past in [Hoshaw’s] presence.” Hoshaw stated that he had seen Kyle in a worse condition. He
also told Moors and Hecox that they should not take him to the hospital unless they had to.
Hoshaw told Moors that Kyle would be okay. Moors testified that Hecox had never been
around anyone who had a bad reaction to heroin before and he became “extremely upset.”
Hecox attempted CPR even though Kyle had not stopped breathing.
¶ 19 After leaving Hoshaw’s house, Moors testified, they went to the Spring Garden
restaurant. On the way, Kyle sat in the front passenger seat with his eyes closed, not speaking
but breathing normally. He was not making any involuntary movements, drooling, or making
any sounds. Moors did not think that Kyle moved at all on the trip from Hoshaw’s house to
the restaurant.
¶ 20 After they got to the restaurant, Hecox called defendant. Hecox told Moors that defendant
and his girlfriend were coming to the restaurant. He also stated that he wanted to go into the
restaurant and get coffee. Moors wanted to remain outside until Kyle “woke up and started
speaking.” Moors and Hecox argued about this for a while, and Hecox eventually won the
argument. When defendant and his girlfriend arrived, they parked a spot or two away from
Kyle’s car. Hecox got into defendant’s car. Moors could not remember whether she did.
Subsequently, she, Hecox, and Kyle drove in Kyle’s car to a gas station. Moors did not know
if defendant was aware of Kyle’s condition at that point. She also could not remember
whether defendant and his girlfriend came to Kyle’s vehicle before they left for the gas
station, but she stated that they never entered Kyle’s car. When they got to the gas station,
1
Moors’ testimony was not presented chronologically, and we set it forth here as she gave
it.
-5-
Hecox purchased heroin. Kyle was still not speaking or moving. His breathing, however, was
normal.
¶ 21 After they returned to the restaurant, Hecox, defendant, and defendant’s girlfriend
ingested heroin. Either defendant or his girlfriend asked if Kyle was all right. When asked
whether anyone checked on Kyle, Moors answered that Hecox would not let defendant or his
girlfriend “get into Kyle’s car or go and, you know, get close to him or anything like that.”
They went into the restaurant and remained there for “[a]t least an hour.” Moors could not
recall what they talked about, but she stated that Kyle was not “the main topic of
conversation.” Defendant and his girlfriend asked about Kyle’s condition a “couple [of]
times.” The group could see Kyle from where they were sitting. Moors noted that defendant’s
girlfriend looked at Kyle at least five times and that she probably did so as well. Defendant
was sitting so that he was looking toward Kyle. On two occasions, Moors went outside to
check on Kyle. He was breathing, and his heart was beating, which Moors checked by
placing her hand on his neck.
¶ 22 Eventually, the group decided to leave, though Moors did not want to leave Kyle. She got
into Kyle’s vehicle, shook his arm, and said his name a few times. He did not open his eyes;
however, he did provide coherent answers to questions that she put to him. Moors testified
that she did not “believe” that defendant or his girlfriend went to Kyle’s car. She explained
that “Hecox didn’t want them close to Kyle.” Moors did not remember defendant’s girlfriend
wanting to get an ambulance at that point. She did state that they were aware that Kyle was
having a bad reaction to heroin and that he was not moving or speaking. As defendant was
driving Moors and Hecox home, defendant’s girlfriend asked whether they should call an
ambulance. Moors testified that she did not believe that Kyle needed an ambulance at that
point, based on his having spoken to her.2 Moors stated that, based on what Kyle and
Hoshaw had told her, Kyle had been in this condition on a “couple [of] occasions.”
Sometime before they left, Hecox placed a jacket over the window of the door on the driver’s
side of Kyle’s car.
¶ 23 Defendant also testified via deposition. He testified that he did not know Kyle prior to
March 2007. Defendant met Hecox through mutual friends. Hecox never had a cell phone,
so defendant would contact him through Moors’ phone. When asked whether Kyle ever
associated with this group, defendant replied: “I don’t know. I never met him. I really don’t
know what he looks like.” Defendant testified that he interacted with Hecox “maybe like
once every like month or so.” Defendant invoked the fifth amendment when asked whether
he and his girlfriend ever used heroin together. He further testified that he had seen Hecox
and Moors use heroin and that his girlfriend did not use the drug.
¶ 24 On March 7, 2007, he received a telephone call from Moors and Hecox, stating that they
wanted to meet for coffee. Defendant was at Walmart with his girlfriend at the time, and they
agreed to meet for coffee at the Spring Garden restaurant. Defendant recalled arriving at the
restaurant, but he could not recall with whom he first spoke. He parked and, after smoking
a cigarette, went into the restaurant. At some point before they went into the restaurant,
2
Four pages from Moors’ deposition are missing from the record at this point.
-6-
defendant acknowledged, Moors and Hecox left in a car. Defendant denied knowing where
they were going. Defendant recalled having a conversation “from car to car” prior to their
leaving. He did not recall what it was about. Defendant noted that there were three people
in the car.
¶ 25 Hecox and Moors were not gone long, and when they returned, one of them (defendant
could not recall which one) got into his car and smoked a cigarette. Neither Hecox nor Moors
used heroin in defendant’s car. Defendant’s girlfriend asked about Kyle and was told that he
was fine and that he was sleeping. When asked whether he was concerned about Kyle,
defendant answered: “Not really. I just mind my own business.” Hecox and Moors had
explained what had taken place with Kyle and that he had taken too much heroin. They stated
that he was breathing and that he was fine. Defendant added, “I trusted them and I didn’t
know the kid.” Defendant could see Kyle through the window, but “[n]ot well,” and he could
not tell if Kyle was moving. Hecox told defendant that he had given Kyle CPR earlier. While
they were having coffee, defendant’s girlfriend asked if she could check on Kyle. Hecox
stated that he would do so. Defendant did not recall Moors checking on Kyle. Defendant
testified that they were at the restaurant for an hour to an hour and a half. He did not
remember what the group discussed, remembering only that Kyle was not the “main focus.”
¶ 26 Defendant further testified that he did not see Moors or Hecox use heroin. When Hecox
first called defendant that day, Hecox “seemed normal” and did not seem “alarmed.” While
in the restaurant, Hecox asked defendant for a ride home. Before leaving the restaurant, “they
checked on [Kyle and] said he was okay.” Defendant testified that he “didn’t see the kid” and
“didn’t know his condition.” Defendant clarified that it was Moors who had checked on Kyle
at that point. Defendant denied knowing who put the jacket in the car’s window. He
reiterated that he never walked over to Kyle’s car or checked on Kyle. Defendant agreed that
Hecox and Moors were “stressed out” by the situation. Defendant denied that certain portions
of a written statement he gave to the police were true, including that Moors and Hecox told
defendant that they did not want to be connected to Kyle’s death and that they said they were
going to call an ambulance.3
¶ 27 The trial court concluded that, taking the evidence set forth in these depositions in the
light most favorable to plaintiff, defendant was entitled to summary judgment. Plaintiff now
appeals. For the reasons that follow, we affirm.
¶ 28 III. ANALYSIS
¶ 29 On appeal, plaintiff argues that issues of material fact exist with respect to two separate
theories of recovery, specifically, that defendant negligently performed a voluntary
undertaking (see, e.g., Claimsone v. Professional Property Management, LLC, 2011 IL App
(2d) 101115, ¶¶ 20-22) and that defendant was a part of a civil conspiracy such that he was
liable for Kyle’s death (see, e.g., In re Estate of Holmes, 2011 IL App (4th) 100462, ¶¶ 17-
18). Summary judgment is a harsh remedy and should be granted only where the movant’s
entitlement to judgment is clear and free from doubt. Pekin Insurance Co. v. Precision Dose,
3
Four pages of defendant’s deposition are also missing from the record.
-7-
Inc., 2012 IL App (2d) 110195, ¶ 28. It is appropriate only where “all of the pleadings,
depositions, admissions, affidavits, and all permissible inferences, analyzed in the light most
favorable to the nonmovant, so clearly favor the movant that no fair-minded person could
dispute the movant’s right to judgment in his favor.” Thompson v. Platt, 116 Ill. App. 3d 662,
664 (1983). The record must be construed strictly against the movant and liberally in favor
of the party opposing the motion. Smith v. Associated Bureaus, Inc., 177 Ill. App. 3d 286,
289 (1988). Review of a grant of summary judgment presents a question of law, subject to
de novo review. Fabiano v. City of Palos Hills, 336 Ill. App. 3d 635, 640-41 (2002). Under
the de novo standard, we owe no deference to the trial court’s ruling (Khan v. BDO Seidman,
LLP, 408 Ill. App. 3d 564, 595 (2011)) and are free to disregard its judgment and substitute
our own (People v. Davis, 403 Ill. App. 3d 461, 464 (2010)). With these standards in mind,
we now turn to plaintiff’s arguments.
¶ 30 A. Voluntary Undertaking
¶ 31 Plaintiff first contends that facts exist sufficient to entitle her to judgment on the theory
that defendant engaged in a voluntary undertaking to aid Kyle. Such a cause of action is for
negligence; hence, a plaintiff must prove a duty on the part of the defendant, a breach of that
duty, and damages proximately caused by the breach. Thurman v. Champaign Park District,
2011 IL App (4th) 101024, ¶ 9. In a claim like the present one, a plaintiff relies on the
voluntary undertaking to establish the existence of a duty where one would not otherwise lie.
Day v. Menard, Inc., 386 Ill. App. 3d 681, 683-84 (2008). The duty is “limited to the extent
of the undertaking.” Id. at 683. One who voluntarily renders some service or undertakes
some action must do so using ordinary care and may be held liable for damages proximately
caused by the negligent performance of that service or action. Weisblatt v. Chicago Bar
Ass’n, 292 Ill. App. 3d 48, 53 (1997). Cases distinguish between “nonfeasance” (the failure
to perform a necessary act) and “misfeasance” (the negligent performance of an act).
Bourgonje v. Machev, 362 Ill. App. 3d 984, 996 (2005). An “essential element” of a claim
based on nonfeasance is that the plaintiff relied upon the defendant’s promise to perform the
essential service. Claimsone, 2011 IL App (2d) 101115, ¶ 22. The voluntary-undertaking
doctrine is to be narrowly construed. Id.
¶ 32 Two sections of the Restatement (Second) of Torts provide further guidance. Section
323, which our supreme court set forth in Wakulich v. Mraz, 203 Ill. 2d 223, 243 (2003),
provides as follows:
“One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the other’s person or things,
is subject to liability to the other for physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.”
Restatement (Second) of Torts § 323 (1965).
Additionally, section 324, upon which the supreme court also relied in Wakulich, 203 Ill. 2d
at 244, provides:
-8-
“One who, being under no duty to do so, takes charge of another who is helpless
adequately to aid or protect himself is subject to liability to the other for any bodily harm
caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other
while within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other
in a worse position than when the actor took charge of him.” Restatement (Second) of
Torts § 324 (1965).
The supreme court has also stated that, generally, where “a host merely permits an
intoxicated guest to ‘sleep it off’ on the host’s floor, the host does not thereby assume an
open-ended duty to care for the guest and assess the guest’s medical condition.” Wakulich,
203 Ill. 2d at 243.
¶ 33 Thus, to avoid summary judgment, plaintiff must identify evidence in the record that
would raise a triable issue of fact as to whether defendant either voluntarily undertook to
render services to Kyle or otherwise took charge of Kyle’s care. To this end, plaintiff points
to the following evidence and inferences that can be drawn from the depositions taken in this
case: (1) defendant knew that Kyle had taken too much heroin and was overdosing; (2)
defendant asked about Kyle’s condition; (3) defendant knew Hecox had given Kyle CPR; (4)
defendant walked to Kyle’s car, opened the door, observed Kyle, and “possibly” entered the
car; (5) the group discussed Kyle’s condition, including what should be done about it; (6)
while having coffee, defendant repeatedly looked out the window to check on Kyle; and (7)
after the group left the restaurant in defendant’s car, defendant asked if Kyle was okay and
the group discussed calling an ambulance.
¶ 34 Plaintiff attempts to analogize this case to Wakulich. In that case, the decedent, a 16-year-
old female, consumed a quart of a liquor called Goldschlager, at the encouragement of two
of the defendants. The defendants induced the decedent to consume the alcohol by “ ‘offering
monies, by goading and by applying great social pressure.’ ” Id. at 226. The decedent lost
consciousness. Two of the defendants placed her in the family room and observed that she
was vomiting and making gurgling noises. Subsequently, they removed her vomit-soaked
blouse and put a pillow under her head to keep her from choking. The defendants refused to
drive her home or contact her parents. Further, they did not seek medical attention and kept
others from calling for medical assistance. The decedent died the next day. After restating
the facts of Wakulich, plaintiff simply states that this case is analogous, without explaining
how.
¶ 35 In fact, Wakulich strikes us as being quite distinguishable. Notably, defendant did not
encourage Kyle to consume heroin, while the defendants in Wakulich encouraged the
decedent to consume alcohol. The defendants in Wakulich moved the decedent, cleaned her
up, and placed a pillow under her head. At most, according to Hecox, defendant “possibly”
got into Kyle’s car. Beyond that possibility, defendant had no physical contact with Kyle
(indeed, there is no evidence that defendant did anything once inside the car, assuming he
entered it). While both defendant and the defendants in Wakulich did not seek medical
assistance, only the defendants in Wakulich prevented others from seeking it. Defendant did
-9-
not dissuade anyone from seeking outside aid. Clearly, Wakulich provides little guidance
here.
¶ 36 Plaintiff also relies on Simmons v. Homatas, 236 Ill. 2d 459 (2010). In that case, the
defendant drove to a fully nude strip club (which was also a defendant) that did not serve
alcohol due to licensing issues. However, the club permitted patrons to bring their own
alcohol, and it sold items for making drinks. When the defendant arrived, he utilized the
club’s valet service (which was required). At about 11 p.m., the defendant was visibly
intoxicated. Club employees found him vomiting in a rest room, and he was ejected from the
club. The employees told the valet service to bring the defendant’s car to the front door.
When the car arrived, the employees opened the door and told the defendant to leave. Shortly
thereafter, he was involved in a traffic accident that resulted in three fatalities. The supreme
court first recognized the well-established rule that owners of taverns, restaurants, and others
generally have no duty to determine whether a person is fit to drive. Id. at 474. It
distinguished such situations, explaining that, while the general rule is based on the fact that
such a duty would entail a significant burden, in Simmons such a concern was not at issue,
since it was undisputed that the club’s employees knew that the defendant was intoxicated.
Id. at 474-75. Plaintiff reasons that, since defendant knew that Kyle was suffering an
overdose, such knowledge should give rise to a duty. We find plaintiff’s argument
unpersuasive. In Simmons, knowledge that the defendant was intoxicated did not give rise
to an open-ended duty to assist the defendant; rather, the club “acquired a duty not to
encourage [or] assist [the defendant] in the tortious conduct of driving while intoxicated.”
Id. at 475. Hence, Simmons provides no foundation for a duty to render assistance arising
from the simple knowledge that someone is in distress, which would be an extremely broad
duty and entail a significant burden, as noted above.
¶ 37 Moreover, our review of the evidence upon which plaintiff relies reveals nothing
approaching a voluntary undertaking on defendant’s part to care for Kyle. This evidence fits
into three categories: defendant knew the gravity of Kyle’s condition; defendant investigated
Kyle’s condition by observing Kyle; and defendant spoke with the group about Kyle’s
condition. Defendant did not, however, actually do anything about Kyle’s condition–much
less do it negligently. As such, there is no evidence indicating a voluntary undertaking. We
would be loath to impose a duty under such circumstances, as it would dissuade bystanders
from rendering assistance voluntarily. If a person could be held liable simply because he was
aware of and discussed someone’s need for assistance, many would actively avoid such
situations and not be in a position to render voluntary aid. The consequences of imposing a
duty are a factor to consider in deciding whether one exists. Bajwa v. Metropolitan Life
Insurance Co., 208 Ill. 2d 414, 427 (2004). That such a duty would deter Good Samaritans
would be a grave consequence indeed.
¶ 38 This brings us to the related question of whether defendant’s purported misconduct
constituted misfeasance or nonfeasance. This is significant because in the latter case, a
plaintiff must show reliance upon a defendant’s promise to render aid. Bourgonje, 362 Ill.
App. 3d at 997. Plaintiff argues that defendant’s conduct amounted to misfeasance in that he
negligently performed his voluntary undertaking to aid Kyle. Plaintiff attempts to analogize
the instant case to an example the supreme court set forth in Wakulich. There, the court
-10-
explained that a failure to blow a whistle when necessary while driving a train, though
inaction, is affirmative misconduct in that it amounts to the negligent operation of the train.
Wakulich, 203 Ill. 2d at 246. However, as explained above, defendant did not engage in any
conduct that would rise to the level of a voluntary undertaking–nothing he did can be
analogized to operating a train. In other words, defendant did not render aid negligently; he
rendered no aid at all. This constitutes nonfeasance. Bourgonje, 362 Ill. App. 3d at 996. As
such, plaintiff was required to show reliance. Id. at 997. As there is nothing in the record that
would allow plaintiff to make such a showing, this provides an alternate basis for affirming
the trial court.
¶ 39 In conclusion, no issue of material fact exists as to whether defendant engaged in a
voluntary undertaking such that he owed Kyle a duty of care. Moreover, there is also no issue
of material fact regarding the question of reliance. As such, the trial court properly granted
summary judgment in favor of defendant on this count.
¶ 40 B. Civil Conspiracy
¶ 41 Plaintiff next argues that issues of material fact exist as to whether defendant was liable
as a member of a civil conspiracy. A civil-conspiracy claim functions to extend liability
beyond an active tortfeasor to those who have encouraged, aided, or helped plan the
tortfeasor’s acts. Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62 (1994) (citing William L.
Prosser, Torts § 46, at 293 (4th ed. 1971)). A cause of action is viable only if a member of
the conspiracy commits a tort in furtherance of it. Id. To succeed on such a claim, a plaintiff
must prove the following elements: “(1) a combination of two or more persons, (2) for the
purpose of accomplishing by some concerted action either an unlawful purpose or a lawful
purpose by unlawful means, (3) in furtherance of which one of the conspirators committed
an overt tortious or unlawful act.” Fritz v. Johnston, 209 Ill. 2d 302, 317 (2004).
¶ 42 Plaintiff argues that two conspiracies existed–a conspiracy to purchase and use heroin
and a conspiracy to negligently render care to Kyle. The former is clearly an insufficient basis
to impose liability. Undoubtedly, facts exist to conclude that a conspiracy to purchase heroin
existed; however, Kyle’s death did not result from a tortious or unlawful act in furtherance
of that conspiracy. Without citation to authority, plaintiff points to two possible types of acts
that purportedly resulted in Kyle’s death. First, plaintiff contends that, instead of helping
Kyle, the group went to buy heroin and waited in the restaurant for the heroin to wear off
before driving home. However, plaintiff identifies nothing in the record that would suggest
that, had the group refrained from these actions, they would have rendered aid to Kyle
instead. Quite simply, nothing indicates that these were either-or decisions (i.e., we either
buy heroin or call for medical assistance). Mere speculation is insufficient to avoid summary
judgment. Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). That the
group would have aided Kyle had it not gone to buy heroin and waited for its effects to
subside is nothing but speculation. Plaintiff also contends that it is reasonable to infer that
the group did not contact the police because it feared criminal liability. Again, nothing in the
record substantiates such a fear (if anything, the record undermines plaintiff’s argument, in
that the group remained openly in public without any apparent concern about apprehension).
-11-
Moreover, while this might explain why they did not call the police, it does not explain why
they did not take Kyle to a hospital–something they contemplated doing when speaking to
Hoshaw, despite having just used heroin. In sum, plaintiff’s contentions are speculative and
unsupported by authority, and we do not find them persuasive.
¶ 43 Turning to the second purported conspiracy, plaintiff contends that the group’s members
were part of a “conspiracy to negligently perform a voluntary undertaking.” We note here
that civil conspiracy is an intentional tort. McClure v. Owens Corning Fiberglas Co., 188 Ill.
2d 102, 133 (1999). Our supreme court has stated, “Accidental, inadvertent, or negligent
participation in a common scheme does not amount to conspiracy.” Id. at 133-34. The court
added, “Mere knowledge of the fraudulent or illegal actions of another is also not enough to
show a conspiracy.” Id. at 134. It is essential that there be an agreement to accomplish
something unlawful or something lawful by unlawful means, as well as a tortious act. Id. at
133.
¶ 44 Problematic here is the nature of the purported agreement. Essentially, what plaintiff is
contending is that there was an agreement to care for Kyle negligently. A Kansas court has
pointed out the inherent illogic of such a proposition:
“ ‘Since one cannot agree, expressly or tacitly, to commit a wrong about which he or
she has no knowledge, in order for civil conspiracy to arise, the parties must be aware of
the harm or wrongful conduct at the beginning of the combination or agreement. Thus,
civil conspiracy is an intentional tort requiring a specific intent to accomplish the
contemplated wrong and because negligence is, by definition, not an intentional wrong,
the parties cannot engage in civil conspiracy to be negligent.’ ” Shirley v. Glass, 241 P.3d
134, 157 (Kan. Ct. App. 2010) (quoting 16 Am. Jur. 2d Conspiracy § 51 (2009)).
We find this reasoning persuasive. Quite simply, if there had been an agreement, it would
have been to care for Kyle, not to care for him negligently. That the parties might have
committed negligent acts in the course of attempting to provide care does not render the
initial agreement, if it existed, tortious. Accordingly, this theory of recovery necessarily fails.
¶ 45 In sum, Kyle’s death did not result from a conspiracy of which defendant was a
part–namely, to use heroin (while Kyle’s consumption of heroin might arguably have been
part of an earlier conspiracy involving Hecox and Moors, defendant’s subsequent purported
acquisition of heroin with Moors and Hecox had nothing to do with Kyle). Further, there
could have been no conspiracy to render care negligently. Hence, the trial court properly
granted summary judgment regarding this claim as well.
¶ 46 IV. CONCLUSION
¶ 47 In light of the foregoing, the order of the circuit court of Winnebago County granting
summary judgment in favor of defendant is affirmed.
¶ 48 Affirmed.
-12-