Brettman v. Virgil Cook & Son, Inc., 2-19-0955

CourtUnited States Appellate Court of Illinois
Writing for the CourtJUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Citation2020 IL App (2d) 190955,449 Ill.Dec. 582,179 N.E.3d 867
Parties Derek BRETTMAN, Individually and as Guardian of Gina Brettman, a Disabled Person, Plaintiff-Appellant, v. VIRGIL COOK & SON, INC., and Plote Construction, Inc., Defendants-Appellees.
Docket NumberNo. 2-19-0955,2-19-0955
Decision Date28 September 2020

2020 IL App (2d) 190955
179 N.E.3d 867
449 Ill.Dec.

Derek BRETTMAN, Individually and as Guardian of Gina Brettman, a Disabled Person, Plaintiff-Appellant,
VIRGIL COOK & SON, INC., and Plote Construction, Inc., Defendants-Appellees.

No. 2-19-0955

Appellate Court of Illinois, Second District.

Opinion filed September 28, 2020

Milo W. Lundblad, of Brustin & Lundblad, Ltd., of Chicago, for appellant.

John W. Patton Jr., Kelly L. Ferron, Emma L. Knowles, and Christina V. Chen, of Patton & Ryan LLC, and Melinda S. Kollross, Brian J. Riordan, and Paul V. Esposito, of Clausen Miller P.C., both of Chicago, for appellee Virgil Cook & Son, Inc.

Julie A. Teuscher, Thomas P. Boylan, and Yaro M. Melnyk, of Cassiday Schade LLP, of Chicago, for other appellee.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

449 Ill.Dec. 587

¶ 1 Plaintiff, Derek Brettman, individually and as guardian of Gina Brettman, filed a negligence suit against defendants, Virgil Cook & Son, Inc. (Virgil Cook), and Plote Construction, Inc. (Plote), alleging that their negligent placement of temporary traffic control lights proximately caused truck driver Israel Vela to run a red light and strike Gina's vehicle. All three of the temporary lights controlling Vela's movement were placed higher than was mandated by what were, at least arguably, the controlling regulations. Vela testified in deposition that, as he approached the intersection, he saw only permanent traffic lights, which were covered with tarps. He slowed down and looked for an alternate instructive signal, such as a stop sign, but he did not see any. Believing that he had the right-of-way, he "rolled" through the intersection, finally seeing the temporary traffic light, which was red, at or near the moment he struck Gina's vehicle.

¶ 2 Defendants moved for summary judgment. Brettman filed pursuant to Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013) an affidavit in opposition to summary judgment by his expert, Dr. David Noyce. Pointing to Vela's testimony, as well as other facts in the record and his personal knowledge of the limitations of human perception of traffic flow (based on 30 years of research on the topic for the University of Wisconsin), Noyce opined that the improper

449 Ill.Dec. 588
179 N.E.3d 873

placement of the traffic lights made it difficult for Vela, or any driver, to see them in time to react appropriately.

¶ 3 The trial court struck Noyce's affidavit, in part, stating: "So I am going to strike [portions of Noyce's] affidavit for the reasons I discussed earlier, which then I felt that [Noyce] was rendering opinions rather than introducing facts." Then, for the purposes of summary judgment, the trial court accepted that defendants breached a duty to place the traffic lights at the appropriate height. However, the court determined that the negligent placement of the lights was a condition but not a cause of the accident, stating: "[the] lights might have been too high, but there's no evidence that their height prevented [Vela] from seeing them as he approached the intersection." The court granted summary judgment to defendants.

¶ 4 Brettman appeals the trial court's decision to strike portions of Noyce's Rule 191 affidavit. We recognize that the admission standard for an expert's Rule 191 affidavit is more stringent than the admission standard for that same expert's testimony at trial, in that Rule 191 requires the expert to disclose the specific facts (or personal knowledge) supporting his or her opinion in an affidavit, whereas, at trial, the expert may give an opinion without disclosing the facts underlying that opinion ( Robidoux v. Oliphant , 201 Ill. 2d 324, 334-35, 338, 266 Ill.Dec. 915, 775 N.E.2d 987 (2002) ). However, we determine that Noyce's affidavit met that more stringent standard. At the Rule 191 hearing, defendants argued that the facts upon which Noyce based his opinion were not facts at all but were, instead, speculation and conjecture. They also argued that the record refuted the facts upon which Noyce based his opinion, specifically, that Vela admitted to seeing the traffic lights. The trial court then appeared to hold the affidavit to an incorrect standard, stating that Noyce could not offer an opinion at all and could offer only facts. We determine that Noyce properly based his opinion on specific facts and personal knowledge. That the underlying facts were disputed does not render them speculative. An expert may base his or her opinion on a disputed fact, so long as there is enough evidence to raise a jury question as to that fact. Murphy v. General Motors Corp. , 285 Ill. App. 3d 278, 282, 219 Ill.Dec. 863, 672 N.E.2d 371 (1996). The trial court erred in striking portions of the affidavit. A single caveat, concerning the distinction between an ultimate issue and a legal conclusion, remains, however, which we will address at the end of the Rule 191 analysis.

¶ 5 Brettman also appeals the grant of summary judgment to defendants. Particularly with Noyce's affidavit, but even without it, we determine that a genuine issue of material fact remains as to whether defendants' negligent placement of the temporary traffic control lights proximately caused the traffic accident. It cannot be said that, as a matter of law, the lights were plainly visible to drivers. As such, it cannot be said that, as a matter of law, Vela's failure to see the lights in time to react appropriately was an independent force breaking the causal connection between defendants' negligent placement of the lights and the accident. We reverse and remand.


¶ 7 This matter arises out of the March 12, 2014, traffic accident between Vela and Gina. The accident occurred at the intersection of Illinois Route 47 and Kreutzer Road in Huntley, which was then under construction. It was 20 degrees Fahrenheit, winds were blowing at 20 miles per hour, and snowplows were clearing the roads from the snow that had fallen the

179 N.E.3d 874
449 Ill.Dec. 589

day before. Vela, who had just driven from Texas to deliver a load of goods, traveled south on Route 47 in his tractor-trailer. Gina traveled east on Kreutzer Road and was making a left turn onto northbound Route 47 when Vela struck her vehicle. Vela did not see the temporary red light until it was too late to stop.

¶ 8 Brettman filed a myriad of negligence suits. He filed suit against Vela and his employer, which, to our knowledge, remains pending. He filed suit against the shipper of the product Vela delivered and the broker that arranged the trip, which was resolved in a summary judgment for the shipper and the broker. See Brettman v. M&G Truck Brokerage, Inc. , 2019 IL App (2d) 180236, ¶ 1, 431 Ill.Dec. 347, 127 N.E.3d 880 (summary judgment affirmed). He filed suits against various entities involved in the construction of the intersection, many of which have ended in settlement.

¶ 9 More closely related to the instant case, Brettman filed suit against Christopher B. Burke Engineering, Ltd. (Burke), the company hired by the Village of Huntley to oversee the project, including the installation of the temporary traffic lights. The Burke suit was resolved in a summary judgment for Burke. That ruling was not appealed, or has not yet been appealed, as no finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) was entered. The trial court made comments during the Burke summary judgment hearing that the defendants in the present case would later rely upon. The court primarily determined that Burke owed no duty to Gina, as determined by the scope of its contract with Huntley. However, the court also stated that any failure on Burke's part to ensure that the lights were placed according to specification did not proximately cause the accident. Mirroring language set forth in Briske v. Village of Burnham , 379 Ill. 193, 199, 39 N.E.2d 976 (1942), the court stated:

"With respect to the placement of the lights, I felt that that merely created a condition, and, as such, could not be a proximate cause of this accident.

There was no evidence to suggest that the light was not visible to [Vela] as he drove on Route 47. It was just not where he expected it to be.

* * *

Let me rephrase that. They weren't at the level that [the Illinois Department of Transportation's (IDOT's)] specifications require, but at all times, the evidence that I have is that they were visible.

[Vela] just failed to see that which was readily visible at all times as he proceeded south in this intersection * * * [and that] tells me that the placement of the lights can't be a proximate cause of this accident." (Emphasis added.)

¶ 10 Finally, Brettman filed suit against defendants here. Plote had been hired by IDOT and was the general contractor for the intersection construction project. Plote, in turn, hired Virgil Cook to tear down the old lights, erect temporary replacements, and, ultimately, install new permanent traffic lights. Again, Brettman would allege that Plote and Virgil Cook negligently installed the temporary lights by placing them higher from the ground than controlling regulations allowed, which caused Vela to be unable to see the light in time to react...

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