Williams v. Elkin

• Decision Date: 08 December 1992
• Docket Number: No. 1-90-3665,1-90-3665
• Citation: 608 N.E.2d 108,181 Ill.Dec. 35,239 Ill.App.3d 1094
• Court: United States Appellate Court of Illinois
• Parties: , 181 Ill.Dec. 35 Deanna WILLIAMS, a minor, By and Through her Mother and Next Friend, Tereatha Williams Knox, Plaintiff-Appellant, v. Marilyn ELKIN, Special Administrator of the Estate of James F. Elkin, deceased, Defendant-Appellee.

Page 108

608 N.E.2d 108

239 Ill.App.3d 1094, 181 Ill.Dec. 35

Deanna WILLIAMS, a minor, By and Through her Mother and Next Friend, Tereatha Williams Knox, Plaintiff-Appellant, v. Marilyn ELKIN, Special Administrator of the Estate of James F. Elkin, deceased, Defendant-Appellee.

No. 1-90-3665.

Appellate Court of Illinois First District, Second Division.

Dec. 8, 1992.

Barclay & Damisch, Ltd., Chicago (Mark W. Damisch, of counsel), for plaintiff-appellant.

Williams & Montgomery, Ltd., Chicago (Barry L. Kroll, James K. Horstman, Thomas F. Cameli, Lloyd E. Williams, Jr., of counsel), for defendant-appellee.

Justice SCARIANO delivered the opinion of the court:

Just before 1 a.m. on June 16, 1985, a Buick which was being driven by plaintiff, Deanna Williams, collided on Vollmer Road in Olympia Fields, Illinois, with a Ford which was being driven by James F. Elkin. Plaintiff was severely injured in the collision, and Elkin died from injuries he sustained in the accident. Plaintiff subsequently sued Elkin's estate to recover for her injuries.

Defendant was awarded summary judgment, supporting her motion with the discovery depositions of Edward Kilcullen and Officer Lytheria O'Connor. In opposition to the motion, plaintiff presented her own deposition, but the trial court ruled it inadmissible under the Dead Man's Act, Ill.Rev.Stat.1989, ch. 110, par. 8-201, and gave it no consideration.

Kilcullen testified that he was driving westbound on Vollmer Road, approaching Western Avenue, when he saw plaintiff's Buick stopped in the westbound lane at the intersection, facing a green light in her favor. Kilcullen reached the intersection after the light turned red and he pulled up next to plaintiff. ¹ When the light turned green again plaintiff drove off, reaching a speed of about 40 to 45 miles per hour and getting about 15 car lengths ahead of Kilcullen. According to Kilcullen, the Buick "started to move to the left--just kind of eased its way over to its left." Kilcullen saw Elkin's Ford approaching in the eastbound lane, "it was clearly visible," and he also observed the Buick go "about halfway across what was a double line in the road." The Ford and the Buick were about 20 car lengths apart when the Buick crossed the center line. The Ford had its low beam headlights on and both lights were working. Kilcullen sped up, "blinked" his lights, and "sounded" his horn in an effort to alert plaintiff that she was across the center line, heading into oncoming traffic. Kilcullen was "something less than 10 car lengths behind the Buick when the two cars collided head on. He estimated that he saw the Ford for ten seconds, and that the Buick was partially in the eastbound lane for three to four seconds before the crash. Kilcullen heard no screeching of brakes and no horns, other than his own, prior to impact.

Officer O'Connor stated in his deposition that he arrived at the scene about 10 minutes after the accident. It was a dry, clear night, with visibility "very good at a great distance," with "natural light from the moon." The road surface was excellent. There were no tire marks or skid marks at or near the scene of the accident. Elkin appeared to be dead, and plaintiff was trapped in her car, semiconscious. He found the Buick at about a 45-degree angle to the direction of traffic "the point of the front bumper back to * * * the bottom of the windshield" was over the double line. The Ford was entirely off of the road on the shoulder south of the eastbound lane, at a 90-degree angle to the direction of traffic. He saw considerable debris from the accident in the eastbound lane.

Although plaintiff contended in the circuit court and in her brief on appeal that her testimony would be admissible against defendant, her counsel conceded in oral argument before this court that under the Dead Man's Act plaintiff's testimony regarding the events which took place immediately prior to and at the time of the accident would be inadmissible except as to the remaining defendants in this case, viz., the County of Cook, the Village of Olympia Fields, Miller Car Rental, Inc., and Michael Miller, as to whom plaintiff's case is still pending in circuit court.

"When a plaintiff appeals from a trial court's order of summary judgment for a defendant, the only issue on appeal is whether 'the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Ill.Rev.Stat.1983, ch. 110, par. 2-1005.) If the documents that the trial court considers show that there is a genuine issue as to any material fact, summary judgment should not be granted. In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions, and affidavits in the light most favorable to the nonmoving party. If fair-minded persons could draw different conclusions from the evidence, the issues should be submitted to a jury to determine what conclusion seems most reasonable. Conversely, when the evidence shows that no material issues of fact has [sic] been raised, the moving party is entitled to judgment as a matter of law. (Artis v. Fibre Metal Products (1983), 115 Ill.App.3d 228, 231-32 , 450 N.E.2d 756, 758.) Further, negligence cases involving the question of the reasonableness of an individual's conduct are within the scope of summary judgment, as is any other case. Mitchell v. Ralston (1971), 130 Ill.App.2d 759, 762, 266 N.E.2d 424, 426." Wilmere v. Stibolt (1987), 152 Ill.App.3d 642, 646-47, 105 Ill.Dec. 631, 504 N.E.2d 916.

In Wilmere, which the trial court in the instant case held to be controlling in her awarding summary judgment to defendant, the plaintiff swerved out of his lane into oncoming traffic and collided with three vehicles, driven by the three defendants. The parties agreed that all three collisions occurred "in a matter of seconds." (Wilmere, 152 Ill.App.3d at 644, 105 Ill.Dec. 631, 504 N.E.2d 916). In affirming summary judgment for defendants the court stated that

"The general principle is that 'a party having given another reasonable cause for alarm cannot complain that the person so alarmed has not exercised cool presence of mind, and thereby find protection from responsibility from damages resulting from the alarm.' (Skala v. Lehon (1930), 258 Ill.App. 252, 258, quoting Wesley City Coal Co. v. Healer (1876), 84 Ill. 126, 129.) Courts, therefore, do not view a party's acts with hindsight, but under all the circumstances by the standard of what a prudent person would have been likely to do under the same circumstances. Lesperance v. Wolff (1979), 79 Ill.App.3d 136, 141, , 398 N.E.2d 360, 364, quoting Skala v. Lehon (1930), 258 Ill.App. 252, 258.

Illinois courts have long held, therefore, that a sudden swerve into a defendant's right-of-way by an approaching vehicle does not give rise to negligence by the defendant. (E.g., Sjostrom v. Sproule (1962), 34 Ill.App.2d 338, 344-46 181 N.E.2d 379, 382-83, relied upon in Mitchell v. Ralston (1971), 130 Ill.App.2d 759, 762, 266 N.E.2d 424, 426.) Conversely, courts have held that a sudden swerve into a plaintiff's right-of-way by an approaching vehicle does not give rise to contributory negligence by the plaintiff. Lesperance v. Wolff (1979), 79 Ill.App.3d 136, 141 , 398 N.E.2d 360, 364.

Plaintiffs stress that Illinois has adopted the doctrine of comparative negligence in its pure form (Alvis v. Ribar (1981), 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886.) Plaintiffs argue, therefore, that summary judgment would be improper if a genuine issue of material fact existed as to whether any defendant was guilty of negligence that contributed to the accident, even if the contribution was only 1%. However, 'the happening of an accident, of itself, does not raise any presumption of negligence on the part of the defendant.' (Fahrforth v. Kwiatkowski (1967), 79 Ill.App.2d 300, 303, 224 N.E.2d 641, 643.) Further, the adoption of comparative negligence did nothing to the sufficiency of proof required to establish a defendant's negligence and also did not abolish the elements of a negligence cause of action; a plaintiff still must prove these elements. Lucker v. Arlington Park Race Track Corp. (1986), 142 Ill.App.3d 872, 875 , 492 N.E.2d 536, 539." Wilmere, 152 Ill.App.3d 642, 647-648, 105 Ill.Dec. 631, 504 N.E.2d 916.

In this case Kilcullen's deposition testimony was that one third to one half of plaintiff's car was across the center line, in the eastbound lane, for only three to four seconds before the crash. Elkin's car had its low beam headlights on. Plaintiff's speed as she approached Elkin's car was 40 to 45 miles per hour. When Officer O'Connor arrived at the scene ten minutes after the accident, he found plaintiff's car well over the double line of the roadway, at a 45? angle; and Elkin's car was on the shoulder of the road, south of the eastbound lane, at a 90? angle to the direction of traffic. There was considerable debris from the accident in the eastbound lane.

We agree with the trial court that Kilcullen's and O'Connor's testimony fails to point to any evidence of negligence attributable to Elkin; it shows only that the cause of the accident was plaintiff's abrupt invasion of the opposite side of the highway. But liability, unlike the Goddess Athena of Greek mythology, does not spring fully armed from the brow of Zeus. Negligence cannot be presumed; it is hornbook law, requiring no citation of authority, that it must be proved by the party alleging it. It is also first year core curriculum in our law schools that a plaintiff who fails to establish the essential element of proximate cause has not presented a prima facie case of tort liability.

Consequently, we hold that the trial judge here was correct in relying upon Wilmere and the authorities cited therein, which hold that an incursion of but a very few...