McCraw v. Cegielski

• Decision Date: 26 November 1996
• Docket Number: Nos. 1-95-1035,1-95-1180,s. 1-95-1035
• Citation: 680 N.E.2d 394,287 Ill.App.3d 871
• Court: United States Appellate Court of Illinois
• Parties: , 223 Ill.Dec. 661 Dorly McCRAW and Raymond McCraw, Plaintiffs-Appellants, v. Jan CEGIELSKI, Lynn Snow and Snow Brothers, Inc., Defendants-Appellees.

Page 394

680 N.E.2d 394

287 Ill.App.3d 871, 223 Ill.Dec. 661

Dorly McCRAW and Raymond McCraw, Plaintiffs-Appellants, v. Jan CEGIELSKI, Lynn Snow and Snow Brothers, Inc. Defendants-Appellees.

Nos. 1-95-1035, 1-95-1180.

Appellate Court of Illinois,

First District, First Division.

Nov. 26, 1996.

Rehearing Denied May 7, 1997.

As Modified on Denial of Rehearing

May 12, 1997.

Menges, Mikus & Molzahn, Chicago (Mark F. Devane and Janice Lynn Tiptow, of counsel), for Plaintiffs-Appellants Dorly McCraw and Raymond McCraw.

Shelmerdeane A. Miller, Chicago (Timothy J. Cavenagh, of counsel), for Defendants-Appellees Lynn Snow and Snow Brothers, Inc.

Querrey & Harrow, Ltd., Chicago (James W. Fessler and Michael Resis, of counsel), for Defendant-Appellee Jan Cegielski.

MODIFIED ON DENIAL OF REHEARING

Justice BRADEN ^* delivered the opinion of the court:

Plaintiffs, Dorly and Raymond McCraw, filed a negligence action in the circuit court Plaintiffs, Dorly and Raymond McCraw, appeal contending that the trial court erroneously denied their motion for judgment notwithstanding the verdict (JNOV) on the contributory negligence finding. Defendants, Lynn Snow and Snow Brothers, Inc., maintain that (1) they were entitled to JNOV; and (2) their motion for a new trial was improperly denied.

[223 Ill.Dec. 663] of Cook County against defendants, Lynn Snow, Snow Brothers Inc., and Jan Cegielski. After a jury trial, 60% liability was apportioned to Lynn Snow and Snow Brothers, Inc., and 40% liability, based upon a contributory negligence finding, was apportioned to plaintiffs. There was no liability assessed against Jan Cegielski.

At about 5:30 a.m. on the morning of March 30, 1988, plaintiffs, Jan Cegielski and Lynn Snow were driving on Mannheim Road in Franklin Park, Illinois. Plaintiffs and Snow were traveling northbound and Jan was traveling southbound. All three vehicles approached a six-lane bridge at about the same time. The northbound and southbound lanes were separated by a concrete median approximately one foot high and three feet wide.

As he ascended the bridge, Jan lost control of his car and part of the car hit the concrete median and crossed over into the left lane of the northbound traffic. Plaintiffs were traveling northbound in the left lane. As plaintiffs ascended the bridge, they were unable to see Jan's car hanging over the median into their lane. Plaintiffs were traveling within the speed limit, at about 35 or 40 miles per hour when their vehicle struck that of Jan.

Snow was also driving northbound on the bridge in the right-hand lane about two or three car-lengths behind plaintiffs' car. The impact of the collision between plaintiffs' car and Jan's car caused plaintiffs' car to slide across the road, hitting Snow's car. The rear portion of plaintiffs' car hit the left-front portion of Snow's car.

After a jury trial, plaintiffs were awarded $743,000 in damages which was reduced by 40% due to a contributory negligence finding. The jury found that Snow followed the plaintiffs' vehicle too closely and failed to avoid colliding with the plaintiffs' car. The liability of Snow was assessed at 60%. No liability was assessed against Jan. Plaintiffs and Snow appeal.

THE SNOW APPEAL

The Snow defendants posit that they were erroneously found negligent and that their JNOV motion should have been granted. The negligence allegations against Lynn Snow were that he (1) followed plaintiffs' vehicle too closely; and (2) failed to prevent colliding with plaintiffs' car.

Although sparse evidence may exist to favor the verdict, a JNOV is properly entered where the evidence, when viewed in a light most favorable to the party seeking the verdict, so overwhelmingly supports the movant that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967); Maple v. Gustafson, 151 Ill.2d 445, 177 Ill.Dec. 438, 603 N.E.2d 508 (1992).

To sufficiently demonstrate negligence, a plaintiff must establish a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately caused by that breach of duty. Turner v. Roesner, 193 Ill.App.3d 482, 140 Ill.Dec. 415, 549 N.E.2d 1287 (1990). Duty is a legal obligation to adhere one's behavior to a particular standard for the benefit or protection of another. Yager v. Illinois Bell Telephone Co., 281 Ill.App.3d 903, 217 Ill.Dec. 695, 667 N.E.2d 1088 (1996).

Proximate cause requires the plaintiff to show that the defendant's negligence was (1) the actual cause or the cause in fact of his injury, i.e., but for the defendant's conduct, the accident would not have occurred; and (2) the legal cause of his injury, i.e., the defendant's conduct was so closely tied to the plaintiff's injury that he should be held legally responsible for it. Laird v. Baxter Health Care Corp., 272 Ill.App.3d 280, 208 Ill.Dec. 758, 650 N.E.2d 215 (1994). Circumstantial evidence is sufficient to establish probable cause if there is a reasonable inference that can be drawn from it. McCullough v. Gallaher & Speck, 254 Ill.App.3d 941, 194 Ill.Dec. 86, 627 N.E.2d 202 (1993). The issue of a breach of duty and proximate cause are within the province of the trier of fact. Turner, 193 Ill.App.3d at 488, 140 Ill.Dec. 415, 549 N.E.2d at 1291.

A driver must exercise due care to avoid a collision on the wrong side of the road. Turner v. Roesner, 193 Ill.App.3d 482, 140 Ill.Dec. 415, 549 N.E.2d 1287 (1990). When a vehicle suddenly swerves into another driver's lane and an impact occurs within seconds, it cannot be reasonably inferred that the driver whose right-of-way was violated acted negligently. Mitchell v. Ralston, 130 Ill.App.2d 759, 266 N.E.2d 424 (1971). A driver confronted with an emergency situation is not expected to behave with the same composure and judgment as would be required in circumstances where imminent danger is not involved. McCullough's Estate v. McTavish, 62 Ill.App.3d 1041, 20 Ill.Dec. 57, 379 N.E.2d 890 (1978). In such situations, the driver's conduct is evaluated in accordance with what a reasonable person would be likely to do under similar circumstances, not hindsight. Lesperance v. Wolff, 79 Ill.App.3d 136, 34 Ill.Dec. 685, 398 N.E.2d 360 (1979).

After examining the record in this case, it is impossible to conclude that the jury's verdict comported with the evidence presented. There is much information about this accident that is unknown and understandably so considering its nature and the split-second timing involved. Nevertheless, in piecing together the known evidence, a construct of the occurrence can be created. On a dark morning at about 5:30 a.m., plaintiffs were ascending a bridge on Mannheim Road in the left, northbound lane and they were unable to see what was just over the top of the steep bridge.

Jan was traveling southbound on the same bridge in the lane closest to the northbound lanes. The northbound and southbound lanes were separated by a concrete median about a foot tall and three feet wide. Jan lost control of his vehicle at the top of the bridge, sending it partially over the median. Part of Jan's car was hanging over into plaintiffs' northbound lane.

About two seconds after Jan lost control of his car, plaintiffs, unable to see Jan's car until they were "right on it," struck the car. Plaintiffs' vehicle then rotated counterclockwise across the center lane of the three lane northbound traffic, hitting the left front corner of Snow's vehicle. Snow testified that he was traveling in the right lane of the northbound traffic and was about two to three car lengths behind plaintiffs. He estimated that the collision between his car and plaintiffs' vehicle occurred in a matter of seconds. The rear portion of plaintiffs' vehicle sustained damage and the left front part of Snow's car was damaged.

Dorly has a scant recollection of the events immediately prior to the incident, but remembers seeing headlights in her rear view mirror from a car that she believes was tailgating her. She does not recall the time span between her observance of the car in her mirror and the accident. She also does not recall the distance between her car and the car that was allegedly tailgating her. When the accident occurred, there were about two or three cars traveling northbound on the bridge in addition to Snow's and plaintiffs'. Dorly's testimony about tailgating is somewhat supported by the photographs of her vehicle after the accident which evince damage to the rear end of her car. Jan testified that he did not see a car in the left lane behind Dorly prior to the collision.

Plaintiffs hired an "Accident Reconstructionist," Thaddeus Aycock, to piece together the details of the accident. He concluded that plaintiffs' car struck Jan's car in the left, northbound lane of the bridge. Plaintiffs' car then spun counterclockwise and hit Snow's car in the center lane. Although Snow contends that he was in the right lane, Aycock posits that only a portion of Snow's car was in the right lane at the point of impact. Based upon his evaluation of the photographs, the police reports, and the depositions he examined, Aycock discovered no evidence of Snow's tailgating plaintiffs. Moreover, there is no evidence that Snow was ever in the left lane. If Dorly was in fact tailgated, we cannot conclude that it was by...