Coole v. Central Area Recycling ( 2008 )

Filed 7/28/08 NO. 4-07-0793
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
WILLIAM COOLE, as Special ) Appeal from
Administrator of the Estate of LISA ) Circuit Court of
COOLE, Deceased, ) Champaign County
Plaintiff-Appellant, ) No. 04L0055
v. )
CENTRAL AREA RECYCLING, CENTRAL AREA )
WASTE, ALLIED TRANSPORT, INC., and ) Honorable
BRYAN HALL, ) Jeffrey B. Ford,
Defendants-Appellees. ) Judge Presiding.
_________________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
Plaintiff William Coole, as administrator of the estate
of his deceased daughter, Lisa Coole, appeals the Champaign
County circuit court's July 2007 order, granting the motion for
summary judgment filed by defendants, Central Area Recycling;
Central Area Waste; Allied Transport, Inc.; and Bryan Hall. On
appeal, William asserts (1) the court improperly assessed the
witnesses' credibility and weighed the evidence, (2) a jury could
find Hall negligent based upon evidence of excessive speed, (3)
expert testimony is not warranted to find Hall negligent based
upon evidence of a failure to keep a proper lookout and/or
failure to brake, and (4) the court erroneously compared the
parties' negligence. We affirm.
I. BACKGROUND
Lisa was killed in a May 16, 1998, motor-vehicle
accident, in which a garbage truck driven by Hall and owned by
the other defendants struck her Oldsmobile sedan. The accident
occurred around 7 a.m. at the intersection of Clayton and Duncan
Avenues, which is a residential area with a speed limit of 35
miles per hour. The weather that morning was sunny and clear.
Hall, who had been working for more than three hours, was in the
process of delivering a garbage container and heading southbound
on Duncan. Lisa had a friend, Renee Gamboa, in her car and was
heading eastbound on Clayton, which had a stop sign at the
intersection of Clayton and Duncan. The stop sign was located 25
to 30 feet west of the intersection. Sinda Anderson was travel-
ing behind Lisa on Clayton and witnessed the accident.
In August 1998, William filed a complaint against
defendants based on the May 1998 accident. Coole v. Central Area
Recycling, No. 98-L-232 (Cir. Ct. Champaign Co.). On William's
motion, the circuit court dismissed that lawsuit with prejudice
and allowed William one year to refile. In March 2004, William
filed this wrongful-death suit against defendants. In May 2004,
defendants filed an answer to the complaint as well as the
affirmative defense of comparative fault.
At an October 2006 status hearing, the trial court,
pursuant to an agreement by the parties, required (1) William to
disclose his experts on or before November 27, 2006, and (2) the
completion of depositions of such experts by December 30, 2006.
Defendants had to disclose their experts on or before January 30,
2007, and the depositions of defendants' experts were to be
completed on or before March 1, 2007. The court also set the
case for a jury trial in May 2007.
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In March 2007, defendants filed a motion for summary
judgment, asserting that, as a matter of law, they could not be
found liable to William based on (1) Hall's use of medication,
(2) Hall's alleged failure to maintain a proper lookout or to
avoid the accident, (3) allegations Hall operated his vehicle at
a speed greater than the speed that was reasonable and proper for
the prevailing conditions, and (4) their failure to inspect and
maintain the garbage truck. In support of their motion, defen-
dants attached, inter alia, (1) Hall's May 2000 and October 2006
depositions; (2) Anderson's December 2001 deposition; (3) Dr.
Timothy Roberts's December 2001 and August 2002 depositions; and
(4) the October 2002 deposition of Joan Jackson, Hall's ex-wife.
William filed a response, attaching, inter alia, (1) the Septem-
ber 2001 deposition of police officer Robert Wills, who was the
first officer on the accident scene; (2) the December 2002
deposition of Gene Lewis, route supervisor for Allied Waste; (3)
the May 2000 deposition of Colonel Bartley, a safety manager for
Allied Waste; (4) the December 2002 deposition of Ronald Wells, a
route driver for Central Area Waste; and (5) the December 2002
deposition of Kenneth Miller, a former route supervisor in
Central Illinois for Allied Waste.
The testimony contained in the aforementioned deposi-
tions that is relevant to the issues on appeal is set forth
below.
Hall testified that, on the morning of the accident, "a
few cars were here and there" on Duncan. He was a commercial
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garbage hauler and was on Duncan taking a garbage container to a
customer. Hall's garbage truck was half full at the time of the
accident. He estimated he saw Lisa's car two to three seconds
before impact. At that point, she was going through the stop
sign. He was driving somewhere between 35 and 40 miles per hour.
Hall stated he hardly had time to apply the brakes and only
applied them a split second before impact. He also swerved to
the left to try to avoid Lisa's car. Hall denied having time to
use the horn or air brake.
Hall did not have a clear view of Clayton as he was
traveling south on Duncan due to trees along side the road.
According to Hall, one heading southbound on Duncan could not see
a vehicle traveling eastbound on Clayton until a few seconds
before the intersection, which he estimated as 20 to 50 feet.
Hall further testified he did not specifically recall a
car being in front of him on Duncan, but if one had been, he
would have had three to four car lengths in front of him.
Anderson testified she was on a side street off of
Clayton when she observed Lisa's car drive by on Clayton. As the
car passed her, she observed the driver and passenger talking.
Anderson turned right and got behind Lisa's car. No cars were in
between them. Anderson could not recall whether she saw Lisa's
brake lights but did know Lisa did not make a complete stop at
the stop sign or intersection. Lisa's car was going slow at the
stop sign and when she proceeded into the intersection. Anderson
observed the truck change lanes to try to avoid the accident.
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She could not determine if the truck slowed. According to
Anderson, Lisa went out in front of the truck, and the truck
could not avoid hitting her.
Officer Wills testified he arrived on the scene less
than five minutes after the accident. Officer Wills observed
indentations in the concrete where the collision appeared to have
occurred. Lisa's vehicle was 120 feet to the south of the
indentations. Officer Wills observed push marks but not any skid
marks. The driver's side of Lisa's vehicle was collapsed inward
to the point it was close to the pavement. Hall informed Officer
Wills he had slowed to 35 or 40 miles per hour before the acci-
dent because of a vehicle turning in front of him.
Officer Wills stated the stop sign on Clayton was 25 to
30 feet west of the intersection. Thus, a driver stopped at the
stop sign would have to travel 20 more feet to the intersection.
In his opinion, a vehicle traveling southbound on Duncan that was
one-eighth of a mile north of the Clayton intersection could not
observe a vehicle at the stop sign on Clayton. Officer Wills
noted a six-foot privacy fence obstructed a view of Clayton from
Duncan. According to Officer Wills, the farthest north a person
traveling south on Duncan could observe the intersection of
Duncan and Clayton was 75 to 100 feet. He also stated a person
southbound on Duncan could see a vehicle stopped at the stop sign
100 to 150 feet away.
Lewis testified about a safety rule referred to as the
four-second rule, which requires a driver of a garbage truck to
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maintain 150 to 200 feet in between the truck and the vehicle in
front of it. The reason behind the rule is it takes a garbage
truck longer to stop than a car. Lewis also stated it takes a
garbage truck longer to stop when it is full compared to when it
is empty.
An April 17, 2007, docket entry indicates the trial
court chose to decide defendants' summary-judgment motion without
oral argument and moved the trial date to October 1, 2007. We
note also in April 2007, defendants' counsel filed 27 motions in
limine, addressing trial evidence, and a motion to bifurcate the
trial. On July 3, 2007, the court entered a written order,
granting defendants' motion. On August 1, 2007, William filed a
motion for reconsideration. On August 22, 2007, the court
entered a written order, denying William's motion.
On September 18, 2007, William filed a notice of appeal
from the trial court's July 3, 2007, and August 22, 2007, orders
in accordance with Supreme Court Rule 303 (210 Ill. 2d R. 303).
II. ANALYSIS
Here, William challenges the trial court's grant of
summary judgment in defendants' favor.
A grant of summary judgment is only appropriate when
the pleadings, depositions, admissions, and affidavits demon-
strate no genuine issue of material fact exists and the movant is
entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c)
(West 2006); Williams v. Manchester, 228 Ill. 2d 404, 417, 888
N.E.2d 1, 8-9 (2008). With regard to analyzing summary-judgment
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motions, our supreme court has stated the following:
"In determining whether a genuine issue
as to any material fact exists, a court must
construe the pleadings, depositions, admis-
sions, and affidavits strictly against the
movant and liberally in favor of the oppo-
nent. A triable issue precluding summary
judgment exists where the material facts are
disputed or where, the material facts being
undisputed, reasonable persons might draw
different inferences from the undisputed
facts. Although summary judgment can aid in
the expeditious disposition of a lawsuit, it
remains a drastic means of disposing of liti-
gation and, therefore, should be allowed only
where the right of the moving party is clear
and free from doubt. [Citation.] If the
plaintiff fails to establish any element of
the cause of action, summary judgment for the
defendant is proper." Williams, 228 Ill. 2d
at 417, 888 N.E.2d at 9.
Moreover, our supreme court has recognized that, if
what is submitted to the trial court in support of and in re-
sponse to the summary-judgment motion would have constituted all
of the evidence before the court and, upon such evidence, nothing
would be left to go to a jury and the court would be required to
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direct a verdict, then a summary judgment should be entered.
Fooden v. Board of Governors of State Colleges & Universities of
Illinois, 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500 (1971). If
the Fooden requirements for summary judgment are met, then
summary judgment is proper even if some issue of fact exists.
Koziol v. Hayden, 309 Ill. App. 3d 472, 477, 723 N.E.2d 321, 324
(1999).
We review de novo the trial court's grant of a motion
for summary judgment. See Williams, 228 Ill. 2d at 417, 888
N.E.2d at 9.
This case involves a wrongful-death action. "[T]he
representative's wrongful-death action is derived from the
decedent's cause of action and is limited to what the decedent's
cause of action against the defendant would have been had the
decedent lived." Williams, 228 Ill. 2d at 422, 888 N.E.2d at 11-
12. William's complaint raises a negligence claim against
defendants. To prevail in a negligence action, a plaintiff's
complaint must set forth facts establishing the existence of (1)
a duty owed by the defendant to the plaintiff, (2) a breach of
that duty, and (3) an injury proximately caused by that breach.
Marshall v. Burger King Corp., 222 Ill. 2d 422, 430, 856 N.E.2d
1048, 1053 (2006).
In their response to William's complaint, defendants
asserted Lisa was contributorily negligent. Section 2-1116 of
the Code of Civil Procedure (735 ILCS 5/2-1116 (West 1994)) bars
a plaintiff "whose contributory negligence is more than 50% of
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the proximate cause of the injury or damage for which recovery is
sought" from recovering any damages. Hobart v. Shin, 185 Ill. 2d
283, 290, 705 N.E.2d 907, 910 (1998). A plaintiff is
contributorily negligent when he or she acts without the degree
of care that a reasonably prudent person would have used for his
or her own safety under like circumstances and that action is the
proximate cause of his or her injuries. Basham v. Hunt, 332 Ill.
App. 3d 980, 995, 773 N.E.2d 1213, 1226 (2002). Generally, the
issue of contributory negligence is a question of fact for the
jury, but it does become a question of law "when all reasonable
minds would agree that the evidence and the reasonable inferences
therefrom, viewed in the light most favorable to the nonmoving
party, so overwhelmingly favors the movant that no contrary
verdict based on that evidence could ever stand." Basham, 332
Ill. App. 3d at 995, 773 N.E.2d at 1226.
A. Witness Credibility and the Weighing of Evidence
We first note William's argument the trial court
assessed the witnesses' credibility and weighed evidence in
ruling on the summary-judgment motion.
With a summary-judgment motion, the trial court does
not decide a question of fact but, rather, determines whether one
exists. Thus, a court cannot make credibility determinations or
weigh evidence in deciding a summary-judgment motion. AYH
Holdings, Inc. v. Avreco, Inc., 357 Ill. App. 3d 17, 31, 826
N.E.2d 1111, 1124 (2005).
We note that, in its order on William's motion to
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reconsider, the trial court denied assessing credibility and
weighing the evidence. However, even if William's contention is
correct, he cites no authority that reversal is necessary for
such an error. Our review of a ruling on a summary-judgment
motion is de novo (see Williams, 228 Ill. 2d at 417, 888 N.E.2d
at 9), and thus we are examining the depositions and pleadings
anew to determine whether a material question of fact exists. No
deference is given to the trial court's ruling. Interior Crafts,
Inc. v. Leparski, 366 Ill. App. 3d 1148, 1151, 853 N.E.2d 1244,
1247 (2006). Moreover, "we may affirm a trial court's grant of
summary judgment on any basis appearing in the record." State
Automobile Mutual Insurance Co. v. Habitat Construction Co., 377
Ill. App. 3d 281, 291, 875 N.E.2d 1159, 1168 (2007). Accord-
ingly, since we are reviewing the issue anew, William's alleged
error would not itself warrant reversal of the trial court's
grant of summary judgment, and we decline to address its merits.
B. Negligence
William contends a jury could find Hall was negligent
based upon evidence of excessive speed and failure to keep a
proper lookout and/or brake. He contends Hall's admission he was
traveling up to five miles per hour over the speed limit before
the accident is prima facie evidence of negligence. However,
while a statutory violation is prima facie evidence of negli-
gence, that fact itself does not create liability, as the statu-
tory violation must have been the direct and proximate cause of
the injury before liability will exist. Ney v. Yellow Cab Co., 2
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Ill. 2d 74, 78-79, 117 N.E.2d 74, 78 (1954); see also Kalata v.
Anheuser-Busch Cos., 144 Ill. 2d 425, 434-35, 581 N.E.2d 656, 661
(1991). Moreover, even if the facts show Hall breached his duty
to keep a proper lookout and/or brake, William still had to show
that breach was the proximate cause of Lisa's injury. See Guy v.
Steurer, 239 Ill. App. 3d 304, 309-10, 606 N.E.2d 852, 856 (1992)
("A driver's failure to observe speed appropriate to conditions
and maintain a proper lookout, or any other acts or omissions, do
not render that driver negligent if those acts are not the
proximate cause of a plaintiff's injuries").
The proximate-cause element consists of two separate
requirements: cause in fact and legal cause. City of Chicago v.
Beretta U.S.A. Corp., 213 Ill. 2d 351, 395, 821 N.E.2d 1099, 1127
(2004). Cause in fact exists "'when there is a reasonable
certainty that a defendant's acts caused the injury or damage.'"
City of Chicago, 213 Ill. 2d at 395, 821 N.E.2d at 1127, quoting
Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455, 605
N.E.2d 493, 502 (1992). In deciding the aforementioned issue,
courts first address "whether the injury would have occurred
absent the defendant's conduct." City of Chicago, 213 Ill. 2d at
395, 821 N.E.2d at 1127. Additionally, when multiple factors may
have combined to cause the injury, we must consider whether the
"defendant's conduct was a material element and a substantial
factor in bringing about the injury." City of Chicago, 213 Ill.
2d at 395, 821 N.E.2d at 1127. As to legal cause, we assess
foreseeability and consider "whether the injury is of a type that
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a reasonable person would see as a likely result of his conduct."
City of Chicago, 213 Ill. 2d at 395, 821 N.E.2d at 1127. While
proximate causation generally presents a question of fact, a
court may determine the lack of proximate cause as a matter of
law "where the facts alleged do not sufficiently demonstrate both
cause in fact and legal cause." City of Chicago, 213 Ill. 2d at
395-96, 821 N.E.2d at 1127-28.
Courts have recognized an "unavoidable collision." In
such cases the driver on the preferential road is without proxi-
mate cause, and the driver's acts or omissions in breach of a
duty are not material. Guy, 239 Ill. App. 3d at 310, 606 N.E.2d
at 856. In cases where the reviewing court has concluded an
accident was unavoidable, the courts have found the following:
"[T]he motorist on the preferential road had
the right to expect that the vehicle
approaching on the secondary road controlled
by a stop sign would obey the stop sign and
yield the right-of-way. When the motorist
drove into the path of the preferential
driver, the circumstances afforded no oppor-
tunity to avoid the collision." Guy, 239
Ill. App. 3d at 309, 606 N.E.2d at 856 (cit-
ing Salo v. Singhurse, 181 Ill. App. 3d 641,
643, 537 N.E.2d 339, 341 (1989), First Na-
tional Bank of Geneva v. Douell, 161 Ill.
App. 3d 158, 161-62, 514 N.E.2d 238, 240
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(1987), Romero v. Ciskowski, 137 Ill. App. 3d
529, 534, 484 N.E.2d 1150, 1154 (1985), Marsh
v. McNeill, 136 Ill. App. 3d 616, 619-20, 483
N.E.2d 595, 597-98 (1985)).
"An unavoidable collision normally occurs when a motorist is
confronted with a sudden swerve into his right-of-way by an
approaching vehicle." Guy, 239 Ill. App. 3d at 310, 606 N.E.2d
at 856. In such cases, the driver lacks sufficient time to react
and take evasive action. Guy, 239 Ill. App. 3d at 310, 606
N.E.2d at 856.
In Johnson v. May, 223 Ill. App. 3d 477, 484-85, 585
N.E.2d 224, 229 (1992), the reviewing court found an unavoidable
collision on the part of the plaintiff-preferential driver and
reversed the jury's finding the preferential driver 50% at fault.
There, the defendant stopped at the intersection because he had a
stop sign but then pulled out in front of the preferential
driver. Johnson, 223 Ill. App. 3d at 484, 585 N.E.2d at 229.
The Johnson court found the preferential driver, who was driving
a tractor-trailer loaded with coal at or near 55 miles per hour,
had only 162 feet to stop after the defendant pulled forward into
the intersection and could not stop in such short a distance.
Johnson, 223 Ill. App. 3d at 484-85, 585 N.E.2d at 229. Thus,
even if the preferential driver had kept a better lookout, the
collision still would have taken place. Johnson, 223 Ill. App.
3d at 485, 585 N.E.2d at 229.
William does not directly address proximate causation
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or its two elements in his initial brief. When discussing
excessive speed, William does assert that, if Hall had been
driving the speed limit, he "would have had over 22 feet more
distance to stop and/or make evasive maneuvers that would have
limited the immensely destructive nature of the fatal impact."
However, William cites no evidence that would allow an inference
that an extra 22 feet would have allowed Hall to stop the heavy
garbage truck or maneuver around Lisa's vehicle.
In contending the trial court should not have compared
the parties' negligence, William points out Hall's testimony he
observed Lisa's car two to three seconds before impact. Thus, he
argues, based on three seconds, Hall had around 177 feet to stop
or maneuver the garbage truck after first seeing Lisa. However,
that calculation ignores reaction time, which, in Illinois, has
been found to be "at least a second." Johnson, 223 Ill. App. 3d
at 484, 585 N.E.2d at 229, citing Seeds v. Chicago Transit
Authority, 342 Ill. App. 303, 306-07, 96 N.E.2d 646, 648 (1950),
dismissed in part and rev'd in part on other grounds, 409 Ill.
566, 101 N.E.2d 84 (1951). Accordingly, Hall would have had less
than 118 feet to stop a half-loaded garbage truck. Again,
William fails to point to any evidence that would support an
inference a half-loaded garbage truck could be stopped in such a
short distance or at what speed the truck would have to have been
going to stop in that distance. Moreover, William even fails to
argue what Hall could have done to avoid the accident if he had
kept a proper lookout.
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In his reply brief, William does expressly address
proximate causation. He asserts this case is analogous to Turner
v. Roesner, 193 Ill. App. 3d 482, 493, 549 N.E.2d 1287, 1294
(1990), where the Second District, with one judge dissenting,
reversed the trial court's grant of summary judgment in the
defendant's favor. There, the defendant was driving completely
within his own lane at 45 miles per hour, which was 10 miles per
hour less than the speed limit. Turner, 193 Ill. App. 3d at 487,
549 N.E.2d at 1290-91. Due to darkness and fog, visibility was
poor, and the defendant admitted his visibility was limited to
only that distance which was illuminated by his headlights.
Turner, 193 Ill. App. 3d at 485, 489, 549 N.E.2d at 1289, 1292.
At some point, another vehicle crossed the centerline and entered
into the defendant's lane. Turner, 193 Ill. App. 3d at 485, 549
N.E.2d at 1289. "The defendant had about 2 seconds and 120 feet
to react." Turner, 193 Ill. App. 3d at 487, 549 N.E.2d at 1291.
The defendant responded by taking his foot off the accelerator
but did not remember braking. He also did not attempt to drive
into the other lane or onto the shoulder of the road. Turner,
193 Ill. App. 3d at 487, 549 N.E.2d at 1291.
Regarding the cause-in-fact requirement of proximate
cause, the Turner court found "a reasonable jury could find that,
but for the defendant's failure to drive at a speed which would
have allowed him to stop in time, the collision would not have
occurred." Turner, 193 Ill. App. 3d at 490, 549 N.E.2d at 1292-
93. Moreover, while the defendant's conduct was certainly not
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the sole cause of the collision, a reasonable jury could have
concluded the speed of the defendant's truck was a substantial
factor in causing the accident. Turner, 193 Ill. App. 3d at 490,
549 N.E.2d at 1293.
In distinguishing Walling v. Lingelbach, 65 Ill. 2d
244, 357 N.E.2d 530 (1976), Young v. Texas Eastern Transmission
Corp., 137 Ill. App. 3d 35, 484 N.E.2d 325 (1985), and Rutter v.
Gemmer, 153 Ill. App. 3d 586, 505 N.E.2d 1308 (1987), all of
which affirmed a summary judgment or reversed a jury verdict
based on no proximate cause, the Turner court found the holdings
in those cases resulted from the plaintiffs' failure to present
sufficient evidence from which one could infer the defendant's
conduct was a proximate cause of the accident. Turner, 193 Ill.
App. 3d at 491, 549 N.E.2d at 1293. It specifically addressed
the facts of the Walling case, noting the defendant there was
still able to react to the presence of an oncoming automobile in
her lane by veering onto the shoulder but could not avoid the
collision. Turner, 193 Ill. App. 3d at 491, 549 N.E.2d at 1293.
On the other hand, in Turner, the defendant's own deposition
supported an inference he was driving at such a speed he could
not even attempt to avoid a collision with a vehicle stopped in
his lane once it came into view. Turner, 193 Ill. App. 3d at
491-92, 549 N.E.2d at 1293-94.
William contends that, like Turner, a jury could
conclude that but for Hall's failure to travel at the speed
limit, to travel at a reasonable speed for the conditions, to
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keep a proper lookout and/or brake, the collision would not have
occurred. However, William's assertion is conclusory as he again
fails to point to any evidence or reasonable inference in support
of his assertion. Additionally, we note both Hall and Anderson
indicated Hall changed lanes in an attempt to avoid the colli-
sion. Thus, the Turner court's reason for distinguishing Walling
would not apply in this case.
Here, the parties have taken discovery over many years
and nothing indicates any additional evidence could be presented
at a trial. Despite the lengthy discovery, William is unable to
point to any evidence supporting an inference Hall could have
avoided the accident if he would have been driving slower, had
been keeping a better lookout, or had applied the brakes. This
case is analogous to the unavoidable-collision cases. Based on
the evidence William has argued to us, Lisa pulled out in front
of Hall when he did not have a sufficient time to avoid the
accident regardless of any breach of duty. Unlike Turner, we
find a reasonable jury could not find that but for Hall's exces-
sive speed, failure to keep a proper lookout, and failure to
brake, the collision would not have occurred. Even if a reason-
able jury could reach that conclusion, it could not find Hall's
breach of any duty was a substantial factor in causing the fatal
collision. Thus, a trial court would have to direct a verdict
for defendants. Accordingly, this case satisfies the Fooden
requirements, and the trial court properly entered summary
judgment. See Koziol, 309 Ill. App. 3d at 477, 723 N.E.2d at
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324-25.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
grant of summary judgment in defendants' favor.
Affirmed.
COOK and STEIGMANN, JJ., concur.
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