Gagliardo v. Vodica

CourtUnited States Appellate Court of Illinois
Citation16 Ill.Dec. 424,58 Ill.App.3d 1053,374 N.E.2d 1302
Docket NumberNo. 77-201,77-201
Parties, 16 Ill.Dec. 424 Michael P. GAGLIARDO, Plaintiff-Appellee, v. Frances M. VODICA, Defendant-Appellant.
Decision Date12 April 1978

Querrey, Harrow, Gulanick & Kennedy, Ross P. Toran, Wheaton, for defendant-appellant.

Marco & Mannina, Anthony F. Mannina, Downers Grove, for plaintiff-appellee.

GUILD, Justice.

This is an appeal from the trial court's entry of an interlocutory summary judgment for the plaintiff herein on the issue of liability pursuant to the provisions of section 57 of the Illinois Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, P 57.) The question presented to this court is whether a genuine issue of material fact exists here which would preclude summary judgment for the plaintiff.

When the plaintiff moved for interlocutory summary judgment on the issue of liability, the record consisted of an unverified complaint, an unverified answer and the written replies to the parties' discovery interrogatories. The parties had also conducted discovery depositions. No affidavits were filed by either party. Instead, the plaintiff supported his motion with an excerpt from the defendant's deposition. In this excerpt the defendant admitted that she was driving westbound on Franklin Street and had stopped at the stop sign at the intersection of Forest Avenue and Franklin Street. The defendant then looked to the north on Forest and saw the plaintiff on a motorcycle proceeding toward her. The defendant saw that the plaintiff's headlight was on and there was no obstruction to her view. She then looked southbound on Forest and proceeded slowly into the intersection before looking again to the north. The defendant decided at this point that the plaintiff was "too close" and accelerated. The collision then occurred.

In response to the plaintiff's motion, the defendant filed a memorandum and an excerpt from the plaintiff's deposition. In this excerpt the plaintiff related that he was proceeding southbound on Forest Avenue riding a motorcycle which was in second gear, where 20 m. p. h. is the maximum speed. There was no other traffic on the road. The plaintiff was approximately 40-50 yards from the intersection of Franklin and Forest when he first saw the defendant's green car moving slowly on Franklin. The defendant's vehicle stopped at the stop sign when the plaintiff was approximately 20 yards from the intersection. The defendant's vehicle began to move again when the plaintiff was "darned close" to the intersection. It started off slowly but then abruptly accelerated when the front of its hood reached the approximate center line of Forest Avenue. Simultaneously the plaintiff realized there was going to be a collision. He applied his brakes and swerved to the left. His swerve, however, did not take the plaintiff over the center line of Forest Avenue before his motorcycle struck the right rear of the defendant's vehicle between the wheel well and the rear bumper.

It is the defendant's contention that the plaintiff's deposition revealed facts from which it could be inferred by fair minded persons that the plaintiff was guilty of contributory negligence. She further contends that the raising of such an inference creates a material issue of fact which remains to be decided by a jury. Based upon these contentions, the defendant argues that the interlocutory summary judgment on the issue of liability entered herein is therefore erroneous.

The principles governing summary judgment are well established in this State. The aim of summary judgment is not to try issues but to determine whether material issues of fact...

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17 cases
  • Buck v. Alton Memorial Hospital, 79-116
    • United States
    • United States Appellate Court of Illinois
    • July 9, 1980
    ...(Breault v. Feigenholtz (1973), 54 Ill.2d 173, Page 1071 [41 Ill.Dec. 573] 296 N.E.2d 3; Gagliardo v. Vodica (2d Dist. 1978), 58 Ill.App.3d 1053, 1055, 16 Ill.Dec. 424, 374 N.E.2d 1302; People ex rel. Scott v. Continental Can Co., Inc. (1st Dist. 1975), 28 Ill.App.3d 1004, 1007, 329 N.E.2d ......
  • Magnuson v. Schaider, s. 2-88-0682
    • United States
    • United States Appellate Court of Illinois
    • May 12, 1989
    ...doubt. (Estate of Kern v. Handelsman (1983), 115 Ill.App.3d 789, 793 [71 Ill.Dec. 407, 450 N.E.2d 1286]; Gagliardo v. Vodica (1978), 58 Ill.App.3d 1053, 1055 [16 Ill.Dec. 424, 374 N.E.2d 1302].) Inferences may only be drawn from undisputed facts, and, if fair-minded persons may draw differi......
  • Sheetz v. Morgan
    • United States
    • United States Appellate Court of Illinois
    • July 28, 1981
    ...is clear and free from doubt. (Lind v. Zekman (1979), 77 Ill.App.3d 432, 32 Ill.Dec. 583, 395 N.E.2d 964; Gagliardo v. Vodica (1978), 58 Ill.App.3d 1053, 16 Ill.Dec. 424, 374 N.E.2d 1302.) Such is not the case here, especially in light of the total absence of expert Claimant cites Practical......
  • Cuthbert v. Stempin
    • United States
    • United States Appellate Court of Illinois
    • October 25, 1979
    ...persons may draw differing inferences from those undisputed facts, summary judgment cannot be granted (Gagliardo v. Vodica (1978), 58 Ill.App.3d 1053, 16 Ill.Dec. 424, 374 N.E.2d 1302; Torrence v. DeFrates (1978), 56 Ill.App.3d 118, 14 Ill.Dec. 228, 371 N.E.2d 1281; Manahan v. Daily News-Tr......
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