Clausen v. Ed Fanning Chevrolet, Inc.
| Decision Date | 28 December 1972 |
| Docket Number | No. 72--95,72--95 |
| Citation | 291 N.E.2d 202,8 Ill.App.3d 1053 |
| Parties | Colleen CLAUSEN, Plaintiff-Appellant, v. ED FANNING CHEVROLET, INC., a corporation, et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Jerome Mirza, Bloomington, Counsel, Roger B. Gomien, Dwight, for plaintiff-appellant.
Sidney Z. Karasik, Chicago, Counsel, Robson, Masters, Ryan, Brumund & Belom, Joliet, for defendants-appellees.
This is an appeal from the entry of judgment for defendant pursuant to a motion for summary judgment in the circuit court of Grundy County.
Colleen Clausen, plaintiff, instituted an action as against Ed Fanning Chevrolet, Inc., and its employee, Kenneth Hoebble, to recover damages for personal injuries sustained in a highway collision between the automobile driven by her and one driven by Edward Conley. Prior to the accident, the vehicle being driven by plaintiff had received certain repairs to the body of the vehicle at the garage of Ed Fanning Chevrolet, Inc., and, in substance, it was the theory of plaintiff's complaint that defendants had disconnected the left front headlight in the course of their repair work. It was asserted that defendants had negligently failed to connect such headlight or to warn that it was not operating, and that such negligence was a proximate cause of the collision with the Conley vehicle. As indicated, the trial court granted defendant's motion for summary judgment, and held as a matter of law that the inoperative left headlight was not a proximate cause of the accident.
Plaintiff's automobile was in the Fanning garage for body repairs from October 27 through October 30, 1967. For the purposes of this opinion, it will suffice to observe that it appears from the deposition and affidavits filed in connection with the motion for summary judgment, that plaintiff, on trial, could have established a prima facie case from which reasonable men could conclude that defendants had disconnected the headlight and had negligently failed to reconnect the headlight as alleged in the complaint.
The record shows that it was about 4:00 P.M. on October 30, 1967, when plaintiff and her husband received the automobile driven by plaintiff from the garage in Aurora, Illinois. They immediately set out to drive to Dwight, Illinois, to return the automobile of a relative which had been borrowed while their own automobile was being repaired. Plaintiff drove the Clausen vehicle and her husband followed in the borrowed automobile. They visited in Dwight until about 6:30 P.M. and then started their return trip to Aurora. The plaintiff, Colleen Clausen, was driving at the time. The first part of their trip was over Illinois Route 47, a two-lane concrete highway running between Dwight and Morris, Illinois. Traffic was heavy and it was a misty, rainy evening with poor visibility. Neither plaintiff nor her husband were aware that the left front headlight was not operating.
At about 7:00 P.M., when it became completely dark, plaintiff passed an automobile driven by Rick Feldman and thereafter both the Clausen vehicle and the Feldman vehicle passed a semi-tractor trailer truck and then returned to the right or northbound lane behind a second semitractor trailer truck being driven by Cornelius Hoevenaar. Both Hoevenaar and Feldman stated in affidavits that the left headlight on plaintiff's automobile was not operating. Plaintiff drove behind the second truck at a speed of about 45 miles per hour and at a distance of approximately two car lengths or 36 feet. It also appears that the rear dual wheels of the truck were kicking up a heavy mist or spray. According to plaintiff's deposition which was corroborated by Feldman's affidavit and that of a passenger in his car, plaintiff edged over into the left traffic lane, or 'peeked out', to see if it was safe to pass the truck but returned to the right lane behind the truck when she saw traffic coming from the opposite direction. When the traffic had passed, she again 'peeked out' to see if it was safe to pass and in so doing edged into the left lane a distance of one to two feet. While the automobile was in this position (for a time plaintiff estimated to be two seconds) she collided with the Conley car coming from the opposite direction. The point of impact was at the left front headlight of each vehicle. In plaintiff's deposition she also stated that she had not seen the lights of the Conley vehicle until just before impact, when it was even with the truck.
In the Conley deposition, Conley stated that the night was dark and rainy; that visibility was 'practically nil'; that he was driving his car at about 45 to 50 miles per hour entirely within the left or southbound lane of traffic (in his proper lane) and that the impact occurred about two feet to the left of the center line of the road. He also stated that he first saw plaintiff's vehicle when he was 30 to 40 feet from it, at a time when he was about even with the truck, and that he noted plaintiff's car did not have a left front headlight. When he was asked if he could state the time interval between the first sighting of plaintiff's automobile and the collision, he replied: 'Seconds, but I don't know.' He later stated that it would be 'something like that' when asked if he concurred in plaintiff's estimate of two seconds. Conley was also asked if he had an opportunity to avoid the collision and responded: 'Well, I think at the last second when I saw the car, I tried to head for the ditch, but I don't think I got over very far before the impact.' In describing the topography of the road at the scene of the crash he said that there was a 'slight incline' but not much, and that he was on a 'slight upgrade' as he was going south. In plaintiff's deposition she stated that there was a dip in the road and that she could see in 'a downward-forward direction if the other car had been in the right place.' In an affidavit of Conley filed in opposition to defendant's motion, Conley stated that when he first became aware of plaintiff's automobile prior to impact, the first thing he saw a right front headlight which was shining and illuminating; that the left front headlight was not operating and that if the left front headlight had been operating he would have seen the vehicle sooner than he did see it and would have had time to veer his car and that he would have been able to avoid the collision. The latter portions of the Conley affidavit contained certain conclusions to which Conley could not competently have testified, and, of course, such conclusions are and should be disregarded in considering the motion for summary judgment. Kamholtz v. Stepp, 31 Ill.App.2d 357, 176 N.E.2d 388; Kaminski v. Missionary Sisters of Sacred Heart, 62 Ill.App.2d 216, 210 N.E.2d 794. See Supreme Court Rule 191(a)--Ill.Rev.Stat.1971, ch. 110A, par. 191(a).
The order which granted summary judgment found it to be 'undisputed' that...
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