2026 IL App (1st) 250882
No. 1-25-0882
Opinion filed July 2, 2026
SIXTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
JOHN A. GREENFIELD, ) Appeal from the Circuit Court
) of Cook County.
)
Plaintiff-Appellant, )
)
v. )
)
EARL L. BRANNAN and MENARD, INC., d/b/a ) No. 23 L 4536
Menards, a Wisconsin Corporation. )
)
Defendants )
) The Honorable
(Menard, Inc., Defendant-Appellee). ) Maire Aileen Dempsey,
) Judge, Presiding.
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Presiding Justice C.A. Walker and Justice Gamrath concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff-appellant John A. Greenfield appeals from the April 16, 2025, circuit court order
granting summary judgment to defendant-appellee Menard, Inc., doing business a Menards, a
Wisconsin corporation (Menards). For the following reasons, we affirm.
¶2 I. BACKGROUND
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¶3 This is a personal injury action arising from an incident in which plaintiff Greenfield was
injured by a section of culvert pipe that fell from defendant Earl Brannan’s pickup truck. Shortly
before the incident, Brannan (who is not a party to this appeal) purchased the pipe from a store
operated by defendant Menards. It is undisputed that a Menards employee helped Brannan put the
pipe on his truck in Menards’ lumberyard but that Brannan alone attempted to secure the pipe onto
his vehicle.
¶4 In May 2023, Greenfield filed his original complaint, naming only Brannan as a defendant.
Plaintiff alleged that he was riding a bicycle in Marion, Illinois on April 21, 2023, when he was
injured by a section of culvert pipe that was “partially detached causing a large portion of it to
hang several feet off of the right side” of Brannan’s truck. Plaintiff alleged that Brannan was
negligent because, inter alia, he operated his vehicle while the culvert pipe was not securely
fastened and failed to avoid a collision.
¶5 On July 31, 2023, plaintiff filed an amended complaint that added Menards as a defendant.
Plaintiff alleged that Brannan purchased the culvert pipe from a Menards store in Marion earlier
on the date of the accident and that the pipe was “loaded onto the ladder rack” of Brannan’s truck
“by an agent, servant and/or employee” of Menards who knew or should have known that it would
be transported over public roads or highways.
¶6 Plaintiff alleged that the Menards agent “owed a duty to exercise due care and caution in
the manner and method by which it loaded and secured the culvert pipe onto [Brannan’s] motor
vehicle, having voluntarily undertaken to load the pipe thereon.” The amended complaint alleged
that Menards was guilty of negligence by failing to secure the pipe to Brannan’s vehicle “so as to
prevent it from becoming loose and detached during transport.”
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¶7 The amended complaint pleaded that Menards’ duty of care arose from the “voluntary
undertaking” to load the pipe, as well as from three statutes: “625 ILCS 5/15-105 (Projecting loads
on passenger vehicles), 625 ILCS 5/15-106 (Protruding members of vehicles) and 625 ILCS 5/15-109 (Spilling loads on highways prohibited).”
¶8 In written discovery responses, Menards disclosed that a gate guard named William Miller
and a former employee, James Holan, worked in the lumberyard at the time of Brannan’s purchase.
In response to an interrogatory about its policies for loading items onto customer vehicles, Menards
answered that “[t]he Picking tickets utilized by Menard, Inc. state that Menards is not allowed to
help secure or tie down loads.” In a supplemental response, Menards also stated that it had a “selfservice loading yard and that it is Menards company policy to not assist customers with securing
any loads.”
¶9 At his deposition, Brannan testified that he drove to the Menards store in his Ford F-150
pickup truck, which had a 10-foot-long metal ladder rack. Inside the store, he purchased a 20-footlong section of polyethylene pipe. He was given a paper receipt and directed to bring it to a separate
secured area outside the store (sometimes referred to as the “lumberyard”) to pick up the pipe. He
brought his truck to that area, where he showed his receipt to a person who then opened the gate
to the lumberyard. Brannan then brought his truck next to a large stack of pipes, where he took the
one he had purchased and began to try to get it on his truck.
¶ 10 Brannan started putting the 20-foot section of pipe on his truck. He recalled that he was
about one-third done when a “gentleman happened to pass by and helped me shove it up there.”
Brannan assumed the man was a Menards “helper.” Although Brannan did not recall the person’s
name, the parties do not dispute that it was Holan who assisted Brannan.
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¶ 11 Asked to describe how Holan helped him get the pipe onto his truck, Brannan testified:
“Well I was holding it like a log on my shoulder, pushing it up there. And he came along, went off
to the side of the pipe and grabbed ahold of it—start[ed] reaching up just to get ahold of it and
helped me finish putting it up there.” Brannan identified security video footage showing the man
helping him in the lumberyard.
¶ 12 Brannan specifically denied that he and the Menards agent ever discussed tying the pipe
down or otherwise securing it. Brannan did not ask for help and testified that he “didn’t expect”
the man to help him secure the pipe because “it’s my truck.” Brannan planned to secure the pipe
with his own “two-inch wide ratchet strap.” Brannan testified that he had previously secured items
on his truck in the same manner, including items purchased from Menards.
¶ 13 Elsewhere, Brannan testified that he had previously purchased 20-foot sections of 10-inch
diameter pipe from Menards, and on those occasions he had been able to load them onto his truck
by himself. On the date in question, Brannan was buying a 20-foot section of 12-inch diameter
pipe, but he still believed that he could have put the pipe on his truck by himself: “I could have put
the 12-inch on, but the gentleman offered to help, so I accepted his offer.”
¶ 14 Brannan testified that, after the pipe was on his truck, the security person checked his
receipt and opened the gate so he could leave the lumberyard. At that point, the pipe was not yet
tied down on his truck. Outside the lumberyard but before he left Menards’ property, Brannan
pulled over “and secured the pipe” himself, using his ratchet strap.
¶ 15 Later that day, Brannan was at a stoplight when a Marion police officer pointed to the top
of his truck. Brannan looked up and saw that the pipe had “migrated over to the right-hand side of
the ladder rack.” In his side mirror, he could see the pipe “hanging over the side” of the truck.
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¶ 16 A short time later, Brannan stopped in the parking lot of a Rural King store to make a
purchase. In the parking lot, he used twine to secure the pipe on the ladder rack before entering the
store. When Brannan came out of the store, he encountered police officers near his truck. The
police asked him if he knew he had hit someone; Brannan told them he had “no idea” that anyone
had been injured. Brannan was subsequently questioned at the police station, where he explained
he was “completely unaware” anyone had been hurt by the pipe.
¶ 17 The parties deposed John Mehlbrech, general manager of the Menards store in Marion
where Brannan purchased the pipe. Asked about Menards’ policies for loading and securing
purchased items, he testified there is a “self-service lumber yard which means people can come
and load their own,” but if a customer “requests help, we will help them load merchandise on their
vehicle or trailer.” He stated that Menards allowed employees to help customers with loading
purchases but “[w]e don’t do any securing.” He agreed that, as of 2023, “Menards employees were
not permitted to secure or help secure large or heavy objects to customer’s vehicles.” This was a
long-standing policy of all Menards stores “due to insurance and liability reasons.”
¶ 18 The assistant manager of the store, Vic Harding, was deposed and similarly testified that,
although Menards employees may help a customer place a load on a vehicle, they are not allowed
to secure it. Harding recalled that, as of 2023, there was a sign near the lumberyard advising that
“it was a self-service yard and help yourself. If you need help, we will help load your product onto
your vehicle.”
¶ 19 Harding testified that, when customers purchased items to pick up from the lumberyard,
they were issued “picking tickets” listing the items. The small print at the bottom of each picking
ticket told customers that Menards could help load purchases but would not secure the load. The
record reflects that such tickets stated:
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“Our insurance does not allow us to tie down or secure your load,
trunk lid, etc. For your convenience, we supply twine, but you will
have to decide whether or not your load is secure and if the twine
supplied is strong enough. If you do not believe the twine will
suffice, stronger material can be purchased inside the store.”
¶ 20 Harding explained that, near the lumberyard, there was a “tie-down shed containing ropes,
staples and red flags” that customers could use to secure loads. Employees were permitted, but not
required, to suggest that customers use the tie-down shed. If customers could not secure any items
on their vehicle, they could choose to have them delivered for an extra fee.
¶ 21 Holan was deposed and confirmed that he worked in the lumberyard at the Menards store
in April 2023. His duties included operating a forklift to transport lumber and offering to help
“customers to load and unload trucks.”
¶ 22 Holan did not have any recollection of Brannan, but he agreed he had no reason to deny
that he was the one who helped Brannan load the pipe onto his truck. Holan was shown video
footage of someone putting pipe on Brannan’s pickup truck, but he could not tell if he was the
person shown.
¶ 23 Holan was asked about the store’s policies for loading large items. Holan recalled that he
would offer to help customers load items onto vehicles, but he was not required to help them do
so. He answered negatively when asked if employees were “instructed or required to ensure items
are properly secured after loading them onto customer vehicles.” He recalled the general manager
telling him that Menards’ insurance did not allow employees to help tie down or secure loads.
¶ 24 On February 19, 2025, Menards filed a motion for summary judgment. It argued that,
insofar as its liability was premised on a theory of voluntary undertaking, the alleged assistance by
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its employee in lifting the pipe onto Brannan’s vehicle did not create a duty to properly secure the
load. Menards emphasized that, under a theory of voluntary undertaking, any duty is limited to the
extent of the undertaking. According to Menards, the undertaking in this case was limited to lifting
and loading (but not securing) the pipe. Accordingly, Menards urged that the mere act of loading
the pipe did not create a duty to secure it.
¶ 25 Menards cited section 324A of the Restatement (Second) of Torts, which provides:
“One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third person or
his things, is subject to liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third
person, or
(c) the harm is suffered because of reliance of the other or the third person
upon the undertaking.” Restatement (Second) of Torts § 324A (1965).
¶ 26 Menards emphasized there was no dispute that Menards did not help secure the pipe; the
only action by Menards’ employee was helping to lift the pipe onto Brannan’s truck. Menards also
noted that plaintiff did not plead that the pipe “was lifted or loaded negligently.” Menards urged
that the only “negligent act happened significantly later when Mr. Brannan failed to tie down the
pipe properly” outside the lumberyard. As Menards “did not undertake any action to secure the
pipe” to Brannan’s truck, there could be no liability under section 324A(b) because Brannan was
“solely responsible” for securing the pipe. Menards also argued liability could not be imposed
under a voluntary undertaking theory, because the evidence established that Brannan “did not rely
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on Menards to secure the pipe.” Menards noted Brannan’s testimony that he did not expect anyone
from Menards to secure the pipe onto his truck.
¶ 27 In plaintiff’s response to Menards’ motion for summary judgment, he argued that, because
both Brannan and Holan acted “in concert” to lift and load the pipe into the truck, both had a duty
to secure it. Because both helped load the pipe, plaintiff urged that both owed a duty of care to the
traveling public to take reasonable steps “to protect those who could foreseeably be harmed should
it become dislodged.”
¶ 28 Plaintiff also argued that Menards owed a duty because its agent “voluntarily assisted Mr.
Brannan in the creation of the foreseeably dangerous condition.” Even if Holan did not initially
have a duty to assist loading the pipe, plaintiff argued that, once he did, he owed a duty to secure
it or ensure that someone did. Plaintiff also contended that Menards’ policy prohibiting employees
from securing items to customer vehicles was irrelevant, because its employee “helped create the
dangerous condition” of an unsecured pipe on top of a motor vehicle. Plaintiff maintained that this
duty existed, even if Holan did not try to secure the pipe.
¶ 29 Menards filed a reply brief in which it suggested that plaintiff could not rely on a “concert
of action” theory in opposition to its summary judgment motion, as plaintiff never pleaded such
theory. Menards pointed out that plaintiff’s amended complaint did not assert a “concert of action”
theory but instead pleaded a “voluntary undertaking” theory. Menards argued these are distinct
theories of negligence liability based on separate sections of the Restatement (Second) of Torts.
¶ 30 Menards further argued that, even if a “concert of action” theory could be considered,
Menards could not be liable because there was no independent negligence by Menards’ employee.
It urged the only action taken by its employee was helping to lift the pipe but there was “no
allegation, much less any evidence that this action was done negligently.”
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¶ 31 With respect to the concept of voluntary undertaking, Menards emphasized a distinction
between “loading” and “securing” an object. It urged that, because a duty under a voluntary
undertaking theory is “limited the extent of the undertaking,” here the duty was limited to the act
of its employee in lifting the pipe. It urged that any duty did not extend to a “completely separate
action done by someone else not in the employee’s presence.”
¶ 32 There is no transcript in the appellate record of the hearing on Menards’ motion for
summary judgment. On April 16, 2025, the trial court issued a written order granting the motion
and entering judgment in favor of Menards, such that the case remained pending against Brannan
only. The court specified that, pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016),
there was no just reason to delay an appeal from the order.
¶ 33 II. ANALYSIS
¶ 34 On appeal, plaintiff challenges the entry of summary judgment in Menards’ favor,
contending that Menards (through its agent Holan) owed a duty to secure the pipe onto Brannan’s
vehicle, once Holan helped Brannan load the pipe onto the truck. Plaintiff argues that, “together,”
Holan and Brannan “simultaneously” created a foreseeably dangerous condition, such that each
had a duty to take reasonable precautions to protect others from it.
¶ 35 Plaintiff relies on both the concept of voluntary undertaking under sections 323
(Restatement (Second) of Torts § 323 (1965)) and 324A of the Restatement (Second) of Torts, as
well as the concept of “in concert” liability set forth in section 876 of the same Restatement.
Restatement (Second) of Torts § 876 (1979). For the following reasons, we conclude that, given
the undisputed facts, plaintiff cannot establish Menards’ liability under either negligence theory.
Thus, summary judgment in Menards’ favor was proper.
¶ 36 Standard of Review
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¶ 37 Summary judgment is proper where, when viewed in the light most favorable to the
nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal 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. Illinois Founders Insurance Co. v. Williams, 2015 IL App (1st) 122481, ¶ 30; 735
ILCS 5/2-1005 (West 2024).
¶ 38 De novo review applies to the entry of summary judgment. Illinois Founders Insurance
Co., 2015 IL App (1st) 122481, ¶ 30. Under de novo review, “We may affirm on any basis
appearing in the record, whether or not the trial court relies on that basis or its reasoning was
correct.” Omega Demolition Corp. v. Illinois State Toll Highway Authority, 2022 IL App (1st)
210158, ¶ 36.
¶ 39 “In order to prevail in an action for negligence, the plaintiff must prove that the defendant
owed a duty, that the defendant breached that duty, and that defendant’s breach was the proximate
cause of injury to the plaintiff. [Citation.] Unless a duty is owed, there can be no recovery in tort
for negligence. [Citations.]” Bell v. Hutsell, 2011 IL 110724, ¶ 11. Whether a duty exists is a
question of law subject to de novo review. Id.
¶ 40 Summary judgment in favor of a defendant is proper where the plaintiff fails to establish
the existence of a duty. Sanchez v. Wilmette Real Estate & Management Co., 404 Ill. App. 3d 54,
59 (2010). “ ‘Whether under the facts of a case there is a relationship between the parties as to
require that a legal obligation be imposed upon one for the benefit of another is a question of law
to be determined by the court.’ ” Id. (quoting Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 215
(1988)).
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¶ 41 Here, plaintiff urges that Menards should be subject to negligence liability under two
theories: (1) voluntary undertaking and (2) “in concert” liability based on its assistance to Brannan
in loading the pipe. We address these in turn.
¶ 42 1. Voluntary Undertaking
¶ 43 Insofar as plaintiff relies on a theory of voluntary undertaking, under the undisputed facts,
we think it is clear that Menards’ undertaking extended only to help get the pipe onto Brannan’s
truck. This is a separate and distinct act from attempting to tie down or otherwise secure the load.
In turn, we reject plaintiff’s suggestion that Menards’ voluntary undertaking gave rise to a duty to
secure the load on Brannan’s vehicle.
¶ 44 Our supreme court has looked to Restatement (Second) of Torts sections 323 and 324A in
defining the parameters of liability under the voluntary undertaking theory. Bell, 2011 IL 110724.
Under section 323:
“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).
Section 324A concerns liability to third persons for negligent performance of an undertaking:
“One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third person or
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his things, is subject to liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third
person, or
(c) the harm is suffered because of reliance of the other or the third person
upon the undertaking.” Restatement (Second) of Torts § 324A (1965).
¶ 45 “Under a voluntary undertaking theory of liability, the duty of care to be imposed upon a
defendant is limited to the extent of the undertaking.” Bell, 2011 IL 110724, ¶ 12 (citing Frye v.
Medicare-Glaser Corp., 153 Ill. 2d 26, 32 (1992), and Pippin v. Chicago Housing Authority, 78
Ill. 2d 204, 210 (1979)). “The theory is narrowly construed.” Id.; see Iseberg v. Gross, 366 Ill.
App. 3d 857, 865 (2006) (“The essential element of the voluntary undertaking doctrine is an
undertaking, and the duty of care imposed on a defendant is limited to the extent of his
undertaking.”).
¶ 46 “Like other issues of duty, whether a defendant has voluntarily undertaken a duty to a
plaintiff is a question of law for the court ***.” (Internal quotation marks omitted.) Bourgonje v.
Machev, 362 Ill. App. 3d 984, 995 (2005). Without a showing from which the court may infer the
existence of a duty, no recovery by plaintiff is possible, and summary judgment in favor of the
defendant is proper. Id. (citing Haupt v. Sharkey, 358 Ill. App. 3d 212, 216 (2005)). However, “if
there is a dispute of material fact affecting the existence of an undertaking of a duty, summary
judgment is improper.” Id.
¶ 47 Decisions illustrate that courts narrowly construe the extent of the alleged undertaking. For
example, our supreme court rejected a claim that, when a pharmacist added a drowsiness warning
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label to a medication, it represented an undertaking to warn users of “all potential dangers involved
in taking” the drug. Frye, 153 Ill. 2d at 33 (“The extent of the defendants’ undertaking was the
placing of the ‘drowsy eye’ label on Frye’s prescription container which warned that Fiorinal may
cause drowsiness.”).
¶ 48 Bell also illustrates this principle. There, plaintiffs were parents of an 18-year-old who died
in a car accident after consuming alcohol at a party hosted at defendants’ home hosted by
defendants’ son. Bell, 2011 IL 110724, ¶ 3. The plaintiff alleged that defendants voluntarily
undertook a duty to prohibit underage drinking at the residence, because they had told their son
that “they would monitor the party to see that underage partygoers did not possess or imbibe
alcoholic beverages.” Id. Plaintiffs claimed defendants knew there was underage drinking and that
one of the defendants told partygoers that they should not drive home if they had been drinking.
Id. ¶¶ 4-5.
¶ 49 Rejecting plaintiff’s voluntary undertaking theory, our supreme court reasoned that, even
if defendants “expressed an intention to prohibit” underage drinking at the party, this was
insufficient to conclude that they had undertaken a duty to prevent underage drinking. Id. ¶ 26.
The court explained:
“Plaintiff alleges that defendants were aware of underage drinking,
and took no action. Given these facts, for there to be a substantial
step in pursuit of the alleged undertaking, there must have been
some affirmative action taken in an attempt to prohibit possession
and consumption of alcohol, the ultimate objective of the
undertaking. No affirmative action is alleged here.” (Emphasis in
original.) Id.
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¶ 50 The Bell court further noted that, “even if we were to find sufficient allegations of a duty
voluntarily assumed,” the alleged facts did not provide a basis for liability because they “do not
support an inference that defendants’ stated intent and subsequent inaction increased the risk of
harm *** nor does it evince reliance or change of position on the basis of defendants’ expressed
intent.” Id. ¶ 27.
¶ 51 A number of cases involving claims against landowners demonstrate the same principle
that any voluntary undertaking is narrowly construed. In Rowe, 125 Ill. 2d at 218-19, our supreme
court rejected a claim that a landlord’s maintenance of locks and outdoor lighting was an
assumption of duty to protect tenants from third-party criminal acts. The Rowe court noted that
“even if [the landlord] had undertaken to perform such services, its duty was limited by the extent
of the undertaking, viz, to use reasonable care in providing the necessary lighting and assuring that
the locks were in working order.” Id. at 218-19 (noting there was no evidence that the locks were
not functioning or that the lighting was inadequate); see Sedlacek v. Belmonte Properties, LLC,
2014 IL App (2d) 130969, ¶ 31 (where tenants’ Rottweiler injured a third party, the landlord’s
alleged promise to fix a fence around the tenants’ backyard did not amount to the undertaking of
a duty to protect third parties from the dog); Sanchez, 404 Ill. App. 3d at 63 (management
company’s promise to maintain door locks and to keep vacant apartments locked “did not rise to
a voluntary undertaking to protect the plaintiff from the criminal acts of third parties”).
¶ 52 No Showing That Menards Voluntary Undertook to Secure (Not Just Load) the Pipe
¶ 53 Given the undisputed facts, we agree with Menards that there is no evidence that Menards
(through Holan) engaged in a voluntary undertaking giving rise to a duty to secure the pipe. Rather,
the undertaking was merely to help to load the pipe onto the customer’s vehicle.
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¶ 54 We keep in mind that the extent of an undertaking is narrowly construed. Here, there is no
evidence that, after the pipe was on Brannan’s vehicle, Menards’ undertaking extended to tying
down or otherwise securing it. It is undisputed that Holan never offered to help Brannan do so, and
Menards’ policy precluded him from doing so. Nor is there any evidence that Brannan asked for
help. Rather, Brannan testified that, consistent with his prior practice, he tied the pipe down himself
after leaving the lumberyard. Although Menards’ agents offered to help place heavy loads on
vehicles as a matter of customer service, we decline to read into that policy a broader undertaking
to safely secure such loads.
¶ 55 The parties do not identify Illinois cases with similar facts. But given the directive to apply
a narrow construction to the undertaking, we think this is roughly analogous to the conclusion that
a pharmacist’s decision to put a drowsiness warning does not give rise to a duty to warn of all
dangers (Frye, 153 Ill. 2d at 33) or that a landlord’s decision to provide exterior lighting does not
create duty to protect from criminal acts.
¶ 56 At this point, we briefly note plaintiff’s contention that evidence of Menards’ internal
policies is irrelevant to the question of duty. Certainly, we do not mean to suggest that a company
policy can eliminate a common-law duty. However, where a plaintiff relies on a voluntary
undertaking theory, we see no reason why a defendant’s stated policies cannot be considered in
deciding the extent of the voluntary undertaking. In any event, even were we to ignore the evidence
of Menards’ stated policies in this case, the deposition evidence shows that Menards’ agent simply
never undertook to do anything for Brannan except helping to lift the pipe onto Brannan’s car.
¶ 57 In short, we believe the undisputed facts show that Menards did not actually undertake to
secure the load that Brannan purchased. This precludes plaintiff’s reliance on a voluntary
undertaking theory.
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¶ 58 Brannan Did Not Rely on Any Purported Undertaking to Secure the Load
¶ 59 We also note that, even assuming arguendo we agreed that Menards had undertaken a duty
to secure the pipe, the evidence is undisputed that Brannan did not rely on it. Rather, Brannan
testified that he did not expect anyone to help him and that he sought to secure the pipe himself.
Insofar as plaintiff alleges that Menards failed to perform a voluntary undertaking to secure the
load, this lack of reliance is fatal.
¶ 60 On this point, our supreme court in Bell recognized a distinction between voluntary
undertaking claims based on nonfeasance (“omission to perform a voluntary undertaking”) and
misfeasance (“negligent performance of a voluntary undertaking”). Bell, 2011 IL 110724, ¶ 23.
¶ 61 Bell recognized that reliance is required where the theory of voluntary undertaking is
nonfeasance:
“Decisions of our appellate court have also underscored the
necessity of reliance if a defendant is to be held responsible for
nonfeasance: ‘ “Under Illinois law, a plaintiff’s reliance on the
defendant’s promise is an independent, essential element in cases of
nonfeasance.” ’ Buerkett v. Illinois Power Co., 384 Ill. App. 3d 418,
428 (2008) (quoting Bourgonje v. Machev, 362 Ill. App. 3d 984, 997
(2005)).” Id.
In other words, “In cases of nonfeasance, reliance forms one component of proximate cause.”
Bourgonje, 362 Ill. App. at 997.
¶ 62 In this case, plaintiff’s voluntary undertaking claim is one of nonfeasance, i.e., that
Menards undertook to secure the pipe onto Brannan’s truck but failed to do so. Yet there is no
evidence that either Brannan or plaintiff relied on Menards to do so. To the contrary, Brannan
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testified unequivocally that he never expected Menards to secure the pipe, even after Holan helped
him get it on his truck. Rather, Brannan testified that, after Holan helped him in the lumberyard,
he drove to another area where he independently undertook to tie down the pipe with his own
materials.
¶ 63 Under the record before us, plaintiff cannot show the element of reliance for a voluntary
undertaking claim based on nonfeasance. This independently warrants summary judgment, insofar
as plaintiff’s claim was premised on a voluntary undertaking theory.
¶ 64 2. “In Concert” Liability
¶ 65 We turn to address plaintiff’s reliance on a theory of “in concert” liability, pursuant to
section 876 of the Restatement (Second) of Torts. Specifically, plaintiff asserts that this case falls
within the scope of section 876(c), alleging that Menards’ agent provided “substantial assistance”
to Brannan’s tortious conduct by helping load the pipe onto Brannan’s vehicle. See Restatement
(Second) of Torts 876(c), at 315 (1979).
¶ 66 Menards primarily urges that we should not consider this theory of liability because it was
not pleaded in the amended complaint. On the merits, Menards responds that plaintiff cannot
establish the requisite “substantial assistance” and that plaintiff cannot show that Menards’
conduct “separately considered, constitutes a breach of duty” within the meaning of section 876(c).
Id.
¶ 67 Forfeiture
¶ 68 We briefly address Menards’ contention that we should not consider plaintiff’s arguments
on a “concert of action” theory because it was not specifically pleaded in the operative complaint.
Menards notes that this theory is distinct from a “voluntary undertaking” theory and that these
concepts are based on separate provisions of the Restatement (Second) of Torts.
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¶ 69 On this point, plaintiff’s reply brief cites the principle that pleadings are liberally construed.
There is no dispute that plaintiff’s amended complaint did not use the terms “concert of action” or
“in concert” liability, nor did it cite section 876 of the Restatement. Yet plaintiff maintains his
pleading was sufficient to encompass reliance on this theory, insofar as it alleged that Menards
“owed a duty *** in the manner and method by which it loaded and secured the culvert pipe ***
having voluntarily undertaken to load the pipe.”
¶ 70 Generally, a party cannot assert new facts or theories in response to motion for summary
judgment. This court has stated: “[I]t is axiomatic that summary judgment motions are limited to
the issues raised in the complaint, and a plaintiff cannot raise new issues not previously pled in its
complaint in order to obtain, or defeat a motion for, summary judgment.” 800 South Wells
Commercial LLC v. Cadden, 2018 IL App (1st) 162882, ¶ 43. “Some courts, however, have
permitted a plaintiff to raise a matter for the first time in connection with summary judgment
proceedings where the new matter represents a new basis for a previously pled theory of recovery.
[Citations.]” Potek v. City of Chicago, 2026 IL App (1st) 250158, ¶ 58; see Feliciano v. Geneva
Terrace Estates Homeowners Ass’n, 2014 IL App (1st) 130269, ¶ 34 (where complaint alleged
breach of fiduciary duty, additional basis for alleging breach of fiduciary duty was proper).
¶ 71 We think the instant situation falls into the latter category. The allegations of the amended
complaint clearly alleged that Menards was negligent based on its employee’s act of helping
Brannan load the pipe, which was not properly secured. Menards was certainly on notice of the
fundamental factual basis for the negligence claim. We think this is sufficient to permit plaintiff
to rely on an “in concert” theory, even if the operative complaint did not use that specific phrase
or cite the pertinent section of the Restatement. We thus decline to find that plaintiff forfeited
reliance on this theory of liability.
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¶ 72 In any event, even assuming that plaintiff forfeited the theory, it is well settled that
“[f]orfeiture is a limitation on the parties and not on the reviewing court.” Monroy-Perez v. Sentry
Select Insurance Co., 2025 IL App (1st) 241711, ¶ 31; see Jakubowski v. Alden-Bennett
Construction Co., 327 Ill. App. 3d 627, 638 (2002) (choosing to address plaintiff’s voluntary
undertaking theory on appeal from summary judgment, notwithstanding that this specific theory
was not pleaded). We elect to reach the merits of this theory, regardless of any forfeiture. Thus,
we proceed to analyze plaintiff’s contentions that summary judgment was improper, because there
is a triable issue of Menards’ liability under a concert of action theory.
¶ 73 The parties agree that section 876 of the Restatement (Second) of Torts governs. That
section provides:
“For harm resulting to a third person from the tortious conduct of another, one is
subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common
design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result
and his own conduct, separately considered, constitutes a breach of duty to the third
person.” Restatement (Second) of Torts § 876 (1979).
¶ 74 Both subsections (b) and (c) require that the defendant gave “substantial assistance” to the
other. In this case, plaintiff specifically relies on subsection (c), which requires both “substantial
assistance” and that the defendant’s own conduct, “separately considered,” constitutes a breach of
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duty to the third person. The parties dispute whether plaintiff can satisfy either of these elements.
We consider these in turn.
¶ 75 Whether Menards Provided Substantial Assistance to Brannan
¶ 76 To sustain a claim against Menards under section 876(c), plaintiff must show that Menards
provided “substantial assistance” to Brannan’s allegedly tortious conduct. In other words, we must
consider whether Holan’s act in helping Brannan get the pipe onto the truck constituted
“substantial assistance” to Brannan’s alleged negligence in failing to secure the pipe. For the
reasons below, we conclude that it did not.
¶ 77 Comment d to section 876 illustrates the concept of substantial assistance:
“Advice or encouragement to act operates as a moral support to a
tortfeasor and if the act encouraged is known to be tortious it has the
same effect upon the liability of the adviser as participation or
physical assistance. If the encouragement or assistance is a
substantial factor in causing the resulting tort, the one giving it is
himself a tortfeasor and is responsible for the consequences of the
other’s act.” Restatement (Second) of Torts § 876 cmt. d, at 317
(1979).
¶ 78 However, the same comment advises that “[t]he assistance of or participation by the
defendant may be so slight that he is not liable for the act of the other.” Id. “In determining this,
[1] the nature of the act encouraged, [2] the amount of assistance given by the defendant, [3] his
presence or absence at the time of the tort, [4] his relation to the other and [5] his state of mind are
all considered.” Id. These five factors should be “considered in determining whether in-concert
liability will attach.” Simmons v. Homatas, 236 Ill. 2d 459, 477 (2010).
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¶ 79 Generally, “[t]he question of whether a defendant has substantially assisted or encouraged
another person in his tortious conduct based on the above factors is a question for the jury.” Id. at
477-78. At the same time, we recognize that, if the record shows that plaintiff cannot establish any
element of his claim, summary judgment is appropriate. Dardeen v. Kuehling, 213 Ill. 2d 329, 335
(2004).
¶ 80 Here, plaintiff asserts that Menards’ agent, Holan, gave active assistance to creating a
dangerous condition when Holan helped load the pipe on Brannan’s truck. Plaintiff largely relies
on Fortae v. Holland, 334 Ill. App. 3d 705, 717 (2002), which found “substantial assistance” to
support imposition of in concert liability under section 876(b).
¶ 81 Forte concerned a crash involving two vehicles that were working together to transport a
manufactured home. Id. at 708. Akers drove a semi-tractor carrying the heavy load. Defendant
Holland drove the lead vehicle; he testified that he was responsible for warning Akers by radio
about dangerous road conditions and maintaining distance between the two vehicles. Id. at 708-09. Just before the collision, Holland’s lead vehicle applied brakes without warning Akers. Akers’s
vehicle collided into the rear of Holland’s vehicle, which was forced into oncoming traffic and
struck plaintiff’s vehicle. Id.
¶ 82 The jury was instructed on in-concert liability using language from section 876 of the
Restatement, including that a person acts in concert with another person if a defendant “knows that
the other person’s conduct is negligent and gives substantial assistance to the other” or “gives
substantial assistance to the other in accomplishing a negligent result and his own conduct,
separately considered, constitutes a breach of duty to the plaintiff.” (Internal quotation marks
omitted.) Id. at 715.
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¶ 83 On appeal from a plaintiff’s verdict, the Fifth District of this court rejected the defendants’
challenge to the jury instruction, finding that section 876 accurately stated the law. Id. at 715-716.
Further, the court found evidence from which the jury could find that Holland gave “substantial
assistance” to Akers:
“Holland’s relation to the other (Akers) as an escort vehicle weighs
in favor of the assistance being substantial. Akers’ testimony that he
had previously warned Holland on the radio that he could not make
abrupt stops also indicates a state of mind on the part of Holland
which supports a finding of substantial assistance. In addition,
Holland’s presence was necessary for the commission of the tort,
and indeed, he was physically involved in the traffic accident.” Id.
at 720.
¶ 84 Fortae distinguished its facts from Umble v. Sandy McKie & Sons, Inc., 294 Ill. App. 3d
449 (1998). In Umble, the Second District of this court affirmed dismissal of a complaint against
a vehicle service station that repaired a car brought in by an intoxicated driver (Butzen) and
returned it to him shortly before he was involved in a fatal collision. Id. at 450-51. The Umble
plaintiff claimed that, by fixing Butzen’s car, the defendant service station gave “substantial
assistance or encouragement” to Butzen within the meaning of section 876. (Internal quotation
marks omitted.) Id. at 451. The Umble court disagreed, reasoning:
“The complaint contains no allegation that any of
defendant’s employees actively encouraged Butzen to get back in
his car and drive. We do not equate failing to prevent certain conduct
with actively encouraging that conduct. Moreover, the complaint’s
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allegations do not establish that defendant provided substantial
assistance to Butzen. There is no allegation that Butzen’s car was
inoperable before defendant made the repairs.” Id. at 451-52.
¶ 85 Fortae reasoned: “Unlike Umble, the nature of the relationship between Holland and Akers
meant that failing to act to prevent Akers from driving too closely was encouragement for such
conduct.” Fortae, 334 Ill. App. 3d at 719 (“In contrast to a garage mechanic’s ability to observe a
driver’s possible drunkenness, Holland’s relationship with Akers placed on him the responsibility
to observe Akers’ driving.”).
¶ 86 After reviewing the record and case law, we conclude plaintiff cannot establish evidence
of “substantial assistance” to support in concert liability. That is, plaintiff cannot show that
Menards’ agent actively assisted in facilitating Brannan’s allegedly tortious conduct.
¶ 87 Insofar as plaintiff relies on Fortae, that case is easily distinguishable, given the evidence
about the relationship between the two drivers in that case. The drivers in Fortae were working
together to transport a mobile home, and the lead driver was responsible for warning the second
driver about hazards. Fortae specifically cited “Holland’s relation to the other (Akers) as an escort
vehicle” as weighing “in favor of the assistance being substantial.” Id. at 720.
¶ 88 The situation in Fortae bears no resemblance to the facts here. There was no prior
relationship or evidence of a coordinated plan between Menards’ agent (Holan) and Brannan.
Rather, the evidence shows only a momentary interaction in which Brannan accepted Holan’s help
in pushing the pipe onto his truck. There was no other communication between the individuals,
both of whom testified they did not discuss any effort to tie down the load. Moreover (in contrast
to the two drivers in Fortae), it is undisputed that Menards’ agent Holan was not even present
when Brannan attempted to secure the pipe himself.
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¶ 89 We reiterate that, for liability under section 876, the “defendant must actively do something
to facilitate another’s tortious conduct.” Simmons v. Homatas, 386 Ill. App. 3d 998, 1006 (2008).
There is no evidence that Holan actively facilitated Brannan’s allegedly negligent failure to tie
down the pipe, which occurred after Brannan left the lumberyard. Moreover, Brannan’s testimony
indicates that, even without Holan’s help, he would have still loaded the pipe onto his truck and
attempted to secure it in the same manner. See Umble, 294 Ill. App. 3d at 452 (noting that, even if
the service station defendant “refused to make the repairs” to the intoxicated driver’s vehicle, he
“could simply have continued driving”).
¶ 90 We think the present situation is analogous to Umble, insofar as there is no evidence that
anyone from Menards actively encouraged Brannan not to properly secure the load. See id. at 451
(in finding no substantial assistance, noting “no allegation that any of defendant’s employees
actively encouraged Butzen to get back in his car and drive”). Menards did not prevent Brannan
from securing the load in a negligent manner. But as Umble stated: “We do not equate failing to
prevent certain conduct with actively encouraging that conduct.” Id. at 451-52.
¶ 91 In short, we do not find any evidence supporting a finding of “substantial assistance” within
the meaning of section 876 and our precedent.
¶ 92 Plaintiff Otherwise Cannot Establish Liability Under Section 876(c) Because Menards’
Conduct, “Separately Considered,” Was Not A Breach of Duty
¶ 93 Our finding that there is no “substantial assistance” is dispositive in precluding plaintiff
from establishing liability under section 876(c) of the Restatement. Restatement (Second) of Torts
§ 876(c) (1979). However, we briefly note our agreement with Menards that, separate from
whether it gave “substantial assistance,” plaintiff otherwise could not meet section 876(c)’s
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additional requirement that Menards’ “own conduct, separately considered, constitutes a breach
of duty to [plaintiff].” (Emphasis added.) Id.
¶ 94 That is, this subsection requires proof that Menards’ conduct, independent of Brannan’s,
breached some duty to plaintiff. Yet, in this case, the undisputed facts are that Holan’s involvement
was limited to the act of helping Brannan lift the pipe onto the truck. Menards correctly points out
that there is no allegation or evidence that Holan was negligent in performing that specific action,
which occurred in the lumberyard before Brannan independently attempted to secure the pipe
elsewhere. For this additional reason, we also determine that plaintiff cannot establish Menards’
liability pursuant to section 876(c).
¶ 95 CONCLUSION
¶ 96 For the foregoing reasons, we affirm the circuit court’s entry of summary judgment in favor
of Menards.
¶ 97 Affirmed.
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Greenfield v. Brannan, 2026 IL App (1st) 250882
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 23-L-4536;
the Hon. Maire Aileen Dempsey, Judge, presiding.
Attorneys Brendan H. Kevenides, of Freeman Kevenides Law Firm, LLC, for of Chicago, for appellant.
Appellant:
Attorneys Brent D. Tinkham, of Taylor Miller LLC, of Chicago, and
for Christopher A. Koester and Kara J. Wade, of Taylor Law
Appellee: Offices, P.C., of Effingham, for appellee Menard, Inc.
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