Davis v. Pace Suburban Bus Div. of the Reg'l Transp. Auth., Corp.
| Decision Date | 29 September 2021 |
| Docket Number | 1-20-0519 |
| Parties | Dwayne DAVIS and Sharlita Davis, Plaintiffs-Appellants, v. PACE SUBURBAN BUS DIVISION OF THE REGIONAL TRANSPORTATION AUTHORITY, a Municipal Corporation, and Annette Johnson, Individually and as Agent and Employee of Pace, Division of Regional Transit Authority, a Municipal Corporation, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Leslie J. Rosen, of Leslie J. Rosen Attorney at Law, P.C., and Susan E. Loggans and Patrick Condron, of Susan E. Loggans & Associates, P.C., both of Chicago, for appellants.
Thomas V.P. Draths, Suzanne M. Crowley, Patrick F. Healy, and Scott L. Howie, of Pretzel & Stouffer Chtrd., of Chicago, for appellees.
¶ 1 This appeal concerns two lawsuits stemming from injuries suffered by plaintiff, Dwayne Davis, while riding a Pace Suburban bus in suburban North Riverside. In one suit, plaintiff sought coverage from his automobile insurance carrier under the uninsured/hit-and-run-motorist provision of the policy, claiming an unidentified Lexus vehicle nosed out into the lane of traffic, causing the Pace driver to sharply brake to avoid a collision, which in turn caused plaintiff to fall inside the bus and sustain injuries. The unidentified Lexus driver's negligent conduct, he alleged, was a proximate cause of his injuries, triggering coverage under the insurance policy.
¶ 2 The other lawsuit—the one on appeal here—was a tort action where plaintiff sued Pace and the bus driver for negligently causing the injuries he suffered. Plaintiff's expert in this case testified that all fault fell on the Pace defendants—their negligence was the sole proximate cause of plaintiff's injuries, and the Lexus driver was blameless.
¶ 3 The trial court here ruled that plaintiff had taken irreconcilably different positions in the coverage lawsuit and in this lawsuit, blaming the Lexus driver in the insurance-coverage action and blaming the Pace defendants in this tort action. The court entered summary judgment for Pace and its driver based on both judicial and collateral estoppel. On reconsideration, after recognizing that the arguments against estoppel "could have merit," the trial court added an additional ground for summary judgment: that the negligence of the Lexus driver was the sole proximate cause of plaintiff's injuries, based on the court's review of the bus security videos.
¶ 4 We reverse and remand. We do not find collateral estoppel applicable. And we believe there is a question of fact regarding proximate cause, as there usually is, and thus it is not amenable to disposition on summary judgment. As for judicial estoppel, the trial court correctly determined that the doctrine applied, but this equitable doctrine should be invoked here in a less drastic manner. Rather than dismiss the lawsuit altogether, the proper remedy is to estop plaintiff from asserting the sole-proximate-cause theory against the Pace defendants that rendered the two positions irreconcilable.
¶ 6 In March 2017, plaintiff was riding in a Pace bus driven by Annette Johnson heading south on Harlem Avenue in North Riverside. While the bus was moving, plaintiff left his seat and walked toward the front of the bus. Before plaintiff could exit, Johnson suddenly hit the bus's brakes when an unidentified white Lexus edged into the bus's oncoming path from a parking lot to the west. The jolt of braking caused plaintiff to tumble toward the front of the bus and crash into the farebox. Plaintiff was seriously injured and underwent two spinal fusions
.
¶ 7 As noted above, plaintiff filed two lawsuits, one a tort action against Pace and Johnson, the other a claim for insurance coverage against plaintiff's insurer. Through chronologically it was the second suit filed, we begin with the lawsuit plaintiff filed against his insurer.
¶ 10 Plaintiff's theory in the coverage case was that the unidentified white Lexus that edged into the Pace bus's path was an "uninsured motor vehicle" under this portion of the policy's definition: "a hit-and-run vehicle whose owner or operator cannot be identified and which strikes or causes an object to strike" the insured.
¶ 11 Progressive raised several arguments in support of denying coverage. First, it claimed that plaintiff was not entitled to coverage because, in its view, the vehicle was not a "hit-and-run" vehicle, as there was no "hit"—that is, there was no physical contact between the Lexus vehicle and plaintiff.
¶ 12 The trial court in the coverage case disagreed. It found that "hit-and-run" coverage did not require physical contact between the uninsured motorist and the insured, absent any language specifically requiring physical contact (and there was no such language, of course).
¶ 13 Having rejected Progressive's argument on that point, the trial court then moved on to the remaining language—namely, whether plaintiff established that the Lexus driver "caused an object to strike" plaintiff. Progressive argued that the force that propelled plaintiff into the farebox was the Pace driver hitting the brakes, not the Lexus driver pulling out in front of the bus. The court found, however, that
¶ 14 The court thus entered summary judgment for plaintiff, finding that coverage existed. Rather than arbitrate the issue of damages, Progressive paid plaintiff the policy limit of $50,000.
¶ 16 Six months before filing the coverage case, in January 2018, plaintiff sued the Pace defendants in the law division of the circuit court of Cook County. That is the case on appeal before us here.
¶ 17 The complaint alleged that the bus driver, Johnson, and by extension her employer, Pace, acted negligently by speeding; failing to keep an adequate look out; failing to properly control the bus; failing to warn passengers she was braking; and braking in a way that put the passengers in danger. The complaint continued that "[a]s a proximate result of one or more of the aforesaid negligent acts and/or omissions" of the Pace defendants, plaintiff suffered injuries.
¶ 18 Plaintiff's expert, however, opined in his deposition not that the Pace defendants’ actions were a proximate cause of plaintiff's injuries, but that they were the sole proximate cause:
¶ 19 Plaintiff's expert claimed that, while the accident obviously would not have happened but for the presence of the white Lexus, that vehicle was visible to the bus driver for sufficient time that the bus driver could have slowed down gradually without the need to violently slam on the brakes and cause plaintiff to lose his balance. Thus, in the expert's view, the only proximate cause of the accident was the negligence of the Pace defendants.
¶ 20 The Pace defendants moved for summary judgment. First, they argued for the application of judicial estoppel, claiming that plaintiff took contrary positions in the two cases. Plaintiff was arguing in the coverage case, on the one hand, that the negligence of the Lexus driver was a proximate cause of the accident, but he was alleging in this tort action that the negligence of the Pace defendants was the sole proximate cause.
¶ 21 The Pace defendants also argued for collateral estoppel, claiming that the issue of proximate causation had already been decided in the coverage case and could not be relitigated here. Finally, they argued that the negligence of the Lexus driver was the sole proximate cause of plaintiff's injuries, leaving the Pace defendants non-liable as a matter of law.
¶ 22 The court entered summary judgment in favor of the Pace defendants on the grounds of judicial estoppel and collateral estoppel. On reconsideration, the court stuck to its original ruling, though finding that plaintiffs’ arguments against estoppel "could have some merit" and added that, in its review of the video footage, the negligence of the Lexus driver appeared to be the sole proximate cause of plaintiff's injuries. This appeal followed.
¶ 24 Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Purtill v. Hess , 111 Ill. 2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986). Summary judgment is a drastic remedy that should be granted only if the movant's right to judgment is clear and free from doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill. 2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). If a reasonable person could draw competing inferences from the facts, summary judgment should be denied. Id. Our review is de novo. Seymour v. Collins , 2015 IL...
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