Evans v. Brown

• Decision Date: 23 March 2010
• Docket Number: No. 4-09-0407.,4-09-0407.
• Parties: Shavonne L. EVANS, Plaintiff-Appellant,v.Brad BROWN, Special Administrator for the Estate of Lynn R. Romann, Deceased; and Turbo Plus, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 238

925 N.E.2d 1265

339 Ill.Dec. 144

Shavonne L. EVANS, Plaintiff-Appellant,v.Brad BROWN, Special Administrator for the Estate of Lynn R. Romann, Deceased; and Turbo Plus, Inc., Defendants-Appellees.

No. 4-09-0407.

Appellate Court of Illinois Fourth District.

March 23, 2010.

COPYRIGHT MATERIAL OMITTED

Gregory D. Abel, of McNally Law Offices, S.C., of Decatur, for appellant.

Jerrold H. Stocks, of Winters, Featherstun, Gaumer, Postlewait, Stocks & Flynn, of Decatur, for appellees.

Justice STEIGMANN delivered the opinion of the court:

In September 2006, plaintiff, Shavonne L. Evans, sued defendants, Brad Brown, special administrator for the estate of Lynn R. Romann deceased, and Turbo Plus, Inc. (Turbo), claiming that in February 2006, Romann, acting as Turbo's agent, negligently operated his company car, which proximately caused her serious injuries.

In October 2008, defendants moved for summary judgment under section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2008)), alleging that Romann's unexpected and unforeseen loss of consciousness, which caused him to lose control of the car he was driving, was an “act of God.” Following a May 2009 hearing, the trial court granted defendants' summary-judgment motion.

Plaintiff appeals, arguing that (1) summary judgment was not appropriate based on an act of God because she had established a prima facie case of negligence and (2) Romann's statement that he “fell asleep” prior to the collision created a genuine issue of material fact. Because we agree with both of these arguments, we reverse and remand for further proceedings.

I. BACKGROUND

A. The Events Surrounding the Collision

The following facts were gleaned from the parties' pleadings and other supporting documents filed with the trial court.

On February 11, 2006, Romann, who was 72 years old and worked as a used car salesman for Turbo, informed Turbo's owner, Charles Landreth, that he was going to Decatur. Landreth stated that although he had, on previous occasions, allowed Romann to drive cars owned by Turbo for personal errands, he did not (1) give Romann permission to drive a Turbo car to Decatur or (2) know, as he later discovered, that Romann intended to visit his girlfriend in Decatur.

That same evening, plaintiff was driving on a road in Decatur, which she described as a four-lane city street with two lanes in each direction. As plaintiff drove eastbound in the right lane, she noticed that a car traveling westbound-later determined to have been driven by Romann-abruptly swerved over the centerline and hit an other car traveling in the eastbound lane next to her. The eastbound car then hit plaintiff's car, which caused plaintiff to hit her head on the driver's side door window. As a result, plaintiff suffered serious injuries.

Because the collision rendered Romann's car inoperable, he called a friend and coworker, Paul Eldridge, to drive him home. In that phone call, Romann said that he “went to sleep” and had a car accident. When Eldridge arrived, Romann told him that (1) he did not know what happened and (2) he had “blacked out, fell asleep.” Eldridge tried to persuade Romann to go to the hospital. Romann refused, stating that the car's air bags had protected him and “he was fine.” Eldridge drove Romann home, and during the drive, Eldridge noticed Romann's chest had been bruised, and Romann complained that his chest was “sore.” After leaving Romann's home, Eldridge called Landreth to (1) inform him about the collision and (2) recommend that he send someone to check on Romann.

Landreth called Romann that same night and asked him about the collision. Romann told Landreth that he had “blacked out” and did not remember anything. Landreth urged Romann to seek medical treatment, but he refused. Later that same night, another coworker, Jennifer St. Clair, visited Romann at his home. St. Clair attempted to give Romann some food, but he told her that he was (1) not hungry, (2) not feeling well, and (3) going to bed. The following morning, St. Clair informed Landreth that Romann was not breathing. Landreth went to Romann's home, where he determined that Romann had died.

B. The Cause of Romann's Death

On February 13, 2006, William K. Drake, a board-certified pathologist, performed an autopsy on Romann. In his deposition, Drake opined to a reasonable degree of medical certainty that the February 11, 2006, collision and Romann's eventual death, was the “logical consequence” of a heart attack that Romann had suffered about a week before his death. In particular, Drake explained that Romann had a small, untreated heart attack, which resulted in the gradual degradation of his heart-muscle wall due to oxygen deprivation that occurred over a 7-to 10-day period. The resulting compromised tissue then ruptured, causing Romann's instantaneous death.

Drake also opined that just prior to the collision, Romann suffered a “Stokes-Adams” attack-that is, a sudden change in cardiac rate or rhythm output-which was caused by his earlier heart attack. Drake further explained that this attack caused a sudden drop in Romann's blood pressure, which resulted in Romann's experiencing a temporary loss of consciousness.

At Drake's deposition, plaintiff questioned Drake regarding the pain that Romann's heart attack would have inflicted, as follows:

“[PLAINTIFF'S COUNSEL:] * * * [T]he event that took place approximately [7] to [10] days before [Romann's] death, can you describe * * * what that would have consisted of?

[DRAKE:] * * * I would have thought that [Romann] would have complained of chest pain. * * * [S]ince it [was] a small heart attack, he should have had chest pain. He would have had pain somewhere. It might have been in his jaw or his shoulder * * *, but [Romann] should have had some discomfort as a result of this heart attack. All people do. But we had no history of it.

* * *

[PLAINTIFF'S COUNSEL:] * * * [W]ould this have been severe pain [or] light pain[? I]s there any way to tell?

[DRAKE:] * * * [T]he pain is always variable, but people express this as a squeezing, pressure-type discomfort that is very unpleasant to them. * * * So we would assume that [Romann] would have had these symptoms. As a matter of fact, [Romann] would * * * have had symptoms.

Now, [Romann] may [have been] stoic. He may have thought it was indigestion, you know, all kinds of other things.

* * *

[PLAINTIFF'S COUNSEL:] And those would have been the type of symptoms * * * that a person should have sought medical care [for]?

[DRAKE:] Ordinarily that's correct. But people don't, I will assure you. * * *

* * *

[PLAINTIFF'S COUNSEL:] And it was inevitable in your opinion that he had that pain[?]

[DRAKE:] He had this pain. He would have had pain[.]

[PLAINTIFF'S COUNSEL:] If [Romann] would have sought medical care at that time, then intervention could have taken place and the [heart-muscle degradation] may not have developed?

* * *

[DRAKE:] * * * [I]f [Romann] had presented in our emergency room, he would have been recognized[.] * * * We do everything in our power to prevent this type of event from occurring. * * * This [was] a small [heart attack at] the back of the heart * * * so it's one that I suppose [Romann] could have confused with indigestion.

[PLAINTIFF'S COUNSEL:] This pain that you're talking about, that would have lasted over what period of time in your opinion?

[DRAKE:] I think [Romann would have had] pain through this whole period.”

In response to further questioning by defense counsel regarding Romann's death, Drake stated, in pertinent part, that (1) Romann would not have detected that he had a heart attack; Romann would not have expected the Stokes-Adams attack; (3) Romann complained of neck pain after the collision, which was “very likely” caused by his heart attack; and (4) it was “very likely” that Romann experienced pain on more than one occasion during the 7- to 10-day period following his heart attack.

C. Procedural History

1. Defendants' Summary-Judgment Motion

In October 2008, defendants moved for summary judgment based upon an “ act of God.” Specifically, defendants claimed that an act of God-that is, Romann's unexpected and unforeseen loss of consciousness-was the sole and proximate cause of the collision.

2. Plaintiff's Memorandum of Law in Opposition to Defendants' Summary-Judgment Motion

In December 2008, plaintiff filed a memorandum of law in opposition to defendant's summary-judgment motion, in which she set forth Eldridge's deposition testimony that Romann told him that prior to the collision, he “blacked out, fell asleep.” Plaintiff also alleged that because the uncontradicted evidence showed that the collision with Romann-who had been driving in the opposing lane-occurred on her side of the road, she had established a prima facie case of negligence. Thus, plaintiff asserted that defendants' claim of an affirmative defense based upon an act of God merely raised a genuine issue of material fact-namely, whether her injuries were caused by Romann's negligence or an act of God.

In the alternative, plaintiff asserted that summary judgment was inappropriate because issues of material fact remained regarding whether Romann ignored symptoms related to his heart attack, which precluded any act-of-God defense. In support of her argument, plaintiff relied on Drake's deposition testimony that Romann would have had heart-attack symptoms prior to the collision and that such symptoms would have caused a reasonable person to seek medical care.

3. The Hearing on Defendants' Summary-Judgment Motion

At the December 2008 hearing on their motion for summary judgment, defendants argued that because (1) Drake testified that Romann's Stokes-Adams attack was “unexpected” and (2) no medical evidence was presented showing Romann had prior blackouts, summary judgment was appropriate. In response, plaintiff argued consistently with her memorandum in opposition to the summary-judgment motion, adding that although Romann told...