Rettig v. Heiser , 2013 IL App (4th) 120985 ( 2013 )

2013 IL App (4th) 120985FILED
October 4, 2013
NO. 4-12-0985 Carla Bender
th
4 District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
COLLEEN K. RETTIG, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Champaign County
RICKY P. HEISER, ) No. 11L178
Defendant-Appellee, )
and ) Honorable
DIANE M. MOORE, ) Michael Q. Jones,
Defendant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE KNECHT delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice Harris concurred in the judgment and
opinion.
OPINION
¶1 In September 2011, plaintiff, Colleen K. Rettig, filed a complaint alleging
negligence against defendants, Ricky P. Heiser and Diane M. Moore, following a vehicular
collision between Heiser and Rettig. Moore is not a party in this appeal. Heiser, in July 2012,
moved for summary judgment, alleging the facts show his conduct, in avoiding a head-on
collision with Moore, was not the proximate cause of Rettig's injuries. The trial court agreed
with Heiser and granted his motion. Rettig appeals, arguing summary judgment was improper
because (1) in a rear-end collision, the question of whether the rear driver is negligent is a
question of fact for a jury to determine; (2) Heiser failed to cite authority in his summary-
judgment motion; (3) the emergency-doctrine defense was not pleaded as an affirmative defense
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or raised until Heiser's reply brief on summary judgment; and (4) no authority supports Heiser's
position. We affirm.
¶2 I. BACKGROUND
¶3 On October 22, 2009, Heiser, trying to avoid Moore's vehicle, drove his car into
the rear of Rettig's vehicle. The collision occurred near the intersection of westbound Interstate
74 (I-74) and Interstate 57 (I-57).
¶4 A. The Complaint
¶5 In September 2011, Rettig filed a two-count complaint against Moore and Heiser.
In the complaint, Rettig alleged in count I, at approximately 3:41 p.m. on October 22, 2009, she
was driving west on I-74 near the intersection with I-57. Heiser also was driving westbound on
I-74 near the I-57 intersection. While Rettig and Heiser approached the intersection, Moore was
attempting to merge onto westbound I-74 from I-57. Moore lost control of her vehicle and
crossed both lanes of traffic on westbound I-74. Heiser took evasive action to avoid Moore's
vehicle and collided with the rear of Rettig's vehicle. In count II, Rettig alleged Heiser was
negligent in that he (1) drove at a speed greater than what was reasonable given the traffic
conditions; (2) failed to decrease his speed or stop to avoid colliding with Rettig's vehicle, which
he should have seen; (3) failed to apply the brakes on his vehicle or turn to avoid Rettig's slowing
or stopped vehicle; and (4) followed Rettig's vehicle more closely than was reasonable and
prudent. Rettig alleged Heiser proximately caused her personal injuries, which include severe
and permanent injuries to her neck and back.
¶6 B. Rettig's Deposition
¶7 According to Rettig, on October 22, 2009, she was driving home after work in a
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minivan from Carle Foundation Hospital to Mahomet. The weather "was drizzly." There was no
snow, but the roads were wet. Rettig did not notice any "slickness or icy spots." There was a lot
of traffic.
¶8 As she drove past the Prospect Avenue exit, she was in the right lane. Approxi-
mately one-half mile after the Prospect Avenue exit, Rettig moved into the left lane because the
"57 interchange area is always busy with people coming up and going down." There was traffic
in front of her, behind her, and to her side. Rettig noticed Moore's vehicle coming up from the
ramp and saw Moore lose control. Moore's vehicle began spinning and stopped in front of
Rettig. Rettig believed the car spun around 2 1/2 times. The front of Moore's vehicle faced
Rettig's. Rettig hit her brakes and swerved to the left shoulder to avoid Moore. Rettig did not
strike Moore's vehicle, missing it by inches. Rettig estimated she was driving 55 miles per hour
as she approached the I-57 exit. Rettig believed the speed limit was 65 miles per hour.
¶9 According to Rettig, she first saw Moore's vehicle when it was at the top of the
ramp. Moore had not yet entered the right lane on I-74. Rettig could not recall having seen
anyone behind her until that point. Rettig testified Moore's vehicle, when Moore lost control,
was six to eight car lengths in front of her. When Moore's car turned, facing eastward toward
Rettig, three car lengths separated the vehicles. Moore's car then continued moving eastward.
Rettig did not see a semitruck (semi) when she saw Moore lose control of her vehicle.
¶ 10 Rettig initially noticed Heiser's vehicle, a pickup truck, after she swerved to avoid
Moore. Rettig looked in her rearview mirror and saw Heiser's truck five to six car lengths from
hers. Heiser's truck "was coming fast." She knew she "was going to get hit." When Heiser
struck Rettig's vehicle, Rettig was driving 35 miles per hour, as she was still in the process of
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braking. Both vehicles were partly on the shoulder and partly on the road.
¶ 11 Rettig averred the collision occurred "at the pretty beginning of the bridge around
the guardrail." She did not believe she was on the bridge over I-57 when the vehicles collided.
After Heiser struck Rettig's vehicle, her vehicle propelled forward approximately 15 car lengths.
Her vehicle stopped "[b]eyond the bridge." She moved her car to the shoulder.
¶ 12 Rettig described the damage to her vehicle. Her bumper hung from Heiser's
bumper. Rettig's whole back end was pushed in and her windshield was gone. Rettig agreed the
collision was "kind of a bang, bang, split[-]second decision." Rettig, when asked if it was her
intention to stop completely on the shoulder, stated, "I didn't have time to think that far." Rettig
did not know the traffic situation in the right lane.
¶ 13 C. Heiser's Deposition
¶ 14 Heiser testified he worked as a licensed grain inspector in Champaign. On
October 22, 2009, at approximately 3:40 p.m., he was driving to his home in McLean. That day,
he entered westbound I-74 from Neil Street. Heiser drove immediately to the left lane. He did so
because "the traffic was thinner," as vehicles were exiting to and entering from the Prospect
Avenue exit. Heiser believed "there was a semi or two right there." It was raining and the
pavement was wet.
¶ 15 According to Heiser, the following occurred:
"A. And there was a semi on my right, and I was in the left
lane, and I was about halfway up on the side of the semi and all of
a sudden, next thing I knew, semi swerved hard[.] [R]ight in front
of me was headlights, car coming back my way, and I looked at
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that and I looked in front of me and there was a vehicle in front of
me and I said well. And there was nowhere to go. Concrete wall.
I was on the bridge part of it.
***
A. There's a concrete wall this side (indicating) and a
person in front of me there and the person's headlights there, so I
decided I better not hit somebody head-on and I just – I whipped it
to the left and that's when I hit the car."
¶ 16 Heiser testified he did not see the car facing him until after the semi "took a hard
right." Heiser was "right alongside the semi," so he could not see Moore's vehicle. Heiser stated
he was driving 55 or 60 miles per hour at the time. He observed several cars while he was
driving, but he could not specify whether he saw Rettig's vehicle until immediately before the
collision. Heiser first recalled seeing Rettig's vehicle, which "more or less stopped," after he
swerved to miss the head-on collision.
¶ 17 Heiser averred, when he first saw Rettig's vehicle, he could not recall how far the
vehicle was from his but decided he "would say at least two car lengths" separated them. Heiser
then testified he was going 55 miles per hour.
¶ 18 According to Heiser, when he saw Moore's vehicle's headlights, he swerved and
"tromped on [his] brakes." His truck slid. Rettig's vehicle "[w]asn't moving hardly at all."
Heiser said she "[a]lmost stopped," and, if she "would have been going a little faster[–]she was
past the car headed back the other way[–]I wouldn't have hit her." Heiser believed Rettig was
driving five miles per hour. Heiser opined from the moment he saw Moore's vehicle until he hit
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Rettig's vehicle took "probably 10 or 15 seconds." Heiser had no idea how long it took for him to
pass Moore's vehicle and then to hit Rettig's.
¶ 19 Heiser averred he had been driving alongside the semi for a while. When he saw
Moore's vehicle heading toward him, he hit his brakes and then swerved.
¶ 20 D. Moore's Deposition
¶ 21 Moore testified she was driving northbound on I-57 and attempting to merge onto
I-74 when she lost control of her vehicle. Her husband was also in the vehicle. As Moore
approached the end of the on-ramp, she noticed a semi in the right lane. Moore believed she
needed to accelerate so she would be going the speed limit of the interstate when she merged in
front of the semi. When she skid, Moore's vehicle did "a 180" to her left. Moore ended up
facing east in the "passing lane." As Rettig's vehicle approached, Moore's vehicle was "still kind
of spinning a little bit." Moore's vehicle ended up partially in the passing lane and partially in the
driving lane. Moore first saw Rettig's vehicle as "[s]he was coming at me and very close."
Moore believed the vehicles were going to collide. Moore could not say whether she saw
Rettig's vehicle go to the left.
¶ 22 Moore saw Heiser's vehicle after Rettig passed. When she saw Heiser's truck, her
vehicle "was more straight." She believed it felt longer than two seconds for both cars to go past
her, but "it was fast."
¶ 23 E. Motion for Summary Judgment
¶ 24 In July 2012, Heiser filed a motion for summary judgment. Heiser argued the
facts failed to show he was the legal cause of Rettig's injuries. Heiser argued the facts showed he
was driving the speed limit when he was placed in an untenable position of having to swerve to
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avoid a head-on collision. Heiser contends, at best, his conduct was a condition and not the
proximate cause of Rettig's injuries.
¶ 25 F. Trial Court's Findings
¶ 26 In September 2012, the trial court granted Heiser's summary-judgment motion
upon finding the following:
"The close inspection of the depositions shows that defen-
dant Heiser was in the middle of an accident. I can discern nothing
that suggests there's a triable issue that he was negligent in any
way.
The argument of the plaintiff basically boils down to, he's
in the middle of an accident so maybe he had something to do with
it, and let a jury determine whether he had something to do with it.
Well, for the jury to be able to do that, I must be presented with
something at this point that allows for the reasonable inference that
defendant Heiser breached his duty. And, as I said, a close review
of the depositions reveals nothing other than he was in the middle
of an accident. Who knows, maybe he had something to do with it
but there is nothing that I can put my finger on that suggests there's
a possibility that Mr. Heiser was negligent.
Mr. Heiser essentially was in the process of passing a semi.
There's nothing negligent about that. And all of a sudden, the semi
is swerving to the right and here comes defendant Moore's vehicle
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right in front of his and Mr. Heiser tried to save his life."
¶ 27 This appeal followed.
¶ 28 II. ANALYSIS
¶ 29 A. Standard of Review
¶ 30 Summary judgment is proper "if 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." 735 ILCS 5/2-1005(c)
(West 2010). In ruling on a summary-judgment motion, a court "must draw all reasonable
inferences in favor of the nonmoving party." DeMambro v. City of Springfield, 2013 IL App
(4th) 120957, ¶ 11, 990 N.E.2d 1255. Because summary judgment is a drastic means to dispose
of litigation, it should be given only when "the movant's right to judgment is clear and free from
doubt." Id. (quoting Gaston v. City of Danville, 393 Ill. App. 3d 591, 601, 912 N.E.2d 771, 779
(2009)). We review a summary judgment order de novo. Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992).
¶ 31 B. The Propriety of the Summary-Judgment Order
¶ 32 Rettig contends summary judgment should not have been awarded because case
after case has established the question of whether a rear driver involved in a rear-end collision is
negligent is one for a jury or other fact finder and not a question of law for the court. Rettig cites
a number of cases that conclude a "rear-end collision does not automatically create an inference
as a matter of law that the driver of the rear car was negligent or that he was following too
closely or driving too fast for conditions," and it is the trier of fact's responsibility "to determine
whether the rear driver, in such accidents, was acting reasonably under the circumstances, or that
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the accident was unavoidable." Burgdorff v. International Business Machines Corp., 74 Ill. App.
3d 158, 163, 392 N.E.2d 183, 186 (1979); see also Kapsouris v. Rivera, 319 Ill. App. 3d 844,
854, 747 N.E.2d 427, 435 (2001) ("In a rear-end collision automobile accident case, it is the
responsibility of the trier of fact to determine whether the rear driver was acting reasonably under
the circumstances or that the accident was unavoidable."); Abrams v. City of Mattoon, 148 Ill.
App. 3d 657, 664, 499 N.E.2d 147, 152 (1986); Strasma v. Rager, 145 Ill. App. 3d 826, 829, 495
N.E.2d 1343, 1344 (1986). Rettig contends if the law in Illinois is that a plaintiff in a rear-end
collision is not entitled to judgment as a matter of law regarding liability, then the rear driver is
not entitled to such a judgment.
¶ 33 The question of whether a driver is negligent is, in general, one for a jury or other
fact finder. See Kleiss v. Bozdech, 349 Ill. App. 3d 336, 353, 811 N.E.2d 330, 343 (2004).
However, there must be a question for the jury to decide. Under section 2-1005(c) of the Code of
Civil Procedure (735 ILCS 5/2-1005(c) (West 2010)), summary judgment may be granted on
claims where "there is no genuine issue as to any material fact" and "the moving party is entitled
to a judgment as a matter of law." There is no exception provided in Section 2-1005(c) for
negligence claims. 735 ILCS 5/2-1005(c) (West 2010). Rettig has cited no case law to support a
finding a negligence case involving a rear-end collision cannot be resolved on summary
judgment, when no evidence exists to support a finding of negligence.
¶ 34 A rear driver is not precluded from prevailing on a summary judgment motion
simply because courts have held a plaintiff in a rear-end collision may not be entitled to judgment
as a matter of law regarding liability. The language in the cases relied upon by Rettig states " '[a]
rear-end collision does not automatically create an inference.' " (Emphasis added.) Abrams, 148
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Ill. App. 3d at 664, 499 N.E.2d at 152 (quoting Burgdorff, 74 Ill. App. 3d at 163, 392 N.E.2d at
186). Such language was added to address decisions of other courts, such as Glenn v. Mosley, 39
Ill. App. 3d 172, 176, 350 N.E.2d 219, 222 (1976), that held one "who collides with a stopped
vehicle is guilty of negligence as a matter of law." Abrams, 148 Ill. App. 3d at 664, 499 N.E.2d
at 152. The language does not foreclose summary judgment under section 2-1005(c) for either a
plaintiff or a defendant when the requirements of that section are met.
¶ 35 The issue is whether summary judgment was proper in this case. For Rettig to
prevail on her negligence claim against Heiser, the record must contain facts establishing Heiser
owed a duty to Rettig, breached that duty, and, as a result, was the proximate cause of Rettig's
injuries. See Ford v. Round Barn True Value, Inc., 377 Ill. App. 3d 1109, 1113, 883 N.E.2d 20,
24 (2007). In her complaint, Rettig alleges Heiser owed her the duty "to exercise reasonable care
and caution so as not to injure" her. Rettig alleges Heiser breached that duty by the following:
"(a) driving his vehicle at a speed greater than was
reasonable and proper, having regard to traffic conditions and the
use of the highway, in violation of 625 ILCS 5/11-601[(a) (West
2010)];
(b) failing to decrease the speed of his vehicle as neces-
sary to avoid colliding with Plaintiff's vehicle, in violation of 625
ILCS 5/11-601[(a) (West 2010)];
(c) failing to apply the brakes on his vehicle to reduce
its speed, or turn said vehicle, when he saw or should have seen
Plaintiff's slowing and/or stopped vehicle;
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(d) failing to keep his vehicle under proper control;
(e) failing to keep proper lookout ahead for slowing or
stopped traffic;
(f) failing to see and observe that Plaintiff's vehicle was
slowing and/or stopped;
(g) failing to stop his vehicle in time to avoid the
collision, although he saw or should have seen that it was impend-
ing and had ample time and opportunity to avoid it;
(h) following Plaintiff's vehicle more closely that was
reasonable and prudent and not having due regard for the speed of
the vehicles and the traffic upon and the condition of the highway,
in violation of 625 ILCS 5/11-710[(a) (West 2010)]."
¶ 36 Heiser argued he was entitled to summary judgment on another ground, i.e., the
evidence failed to show "proximate cause." The trial court awarded summary judgment based on
the failure of the evidence to show a genuine issue of material fact as to whether Heiser breached
a duty of care, i.e., acted negligently. The court determined "there is nothing that I can put my
finger on that suggests there's a possibility that Mr. Heiser was negligent."
¶ 37 The depositions and pleadings reveal no genuine issue as to any material fact
Heiser breached the alleged duty of care he owed to Rettig. The facts are essentially undisputed
and no testimony shows or permits the reasonable inference Heiser followed Rettig too closely,
was driving too fast or too fast for conditions, had sufficient time to stop upon passing the
oncoming or stopped vehicle, or was otherwise not acting with due care. The testimony
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establishes Heiser was driving on the interstate within the speed limit at 3:40 p.m., it was
drizzling, and a number of other vehicles were on the road. As Heiser drove, a car appeared
before him and, in an instant, he had to decide how to proceed. He slammed on his brakes and
swerved away from the lane where the semi had been to avoid a head-on collision. He struck
Rettig, who had just avoided the same car and who was proceeding slowly or stopped on the left
shoulder. This evidence shows an accident occurred. Any conclusion Heiser acted negligently or
was at fault would be purely speculative–not based on any fact of record. It is the responsibility
of plaintiff to develop and present a record from which negligence can be discerned. The
depositions simply do not provide a basis for anything other than speculation as to negligence.
¶ 38 Heiser is entitled to a judgment as a matter of law. Because no genuine issue of
material fact exists as to whether Heiser breached a duty of care to Rettig and there are no means
by which Rettig can establish this element of her negligence claim, she cannot establish Heiser is
liable for negligence.
¶ 39 The trial court properly granted summary judgment.
¶ 40 We further address Rettig's statements "it is unusual, as is the case here, that the
rear driver in a rear-end accident is seeking a judgment as a matter of law" and she "was unable
to find a single case in which an appellate court determined that the rear driver in a rear-end
accident was entitled to summary judgment as a matter of law." This is not the typical rear-end
collision case where both cars are traveling in the same lane when the front car stops, while the
rear car does not. See, e.g., Kapsouris, 319 Ill. App. 3d at 854, 747 N.E.2d at 435; Abrams, 148
Ill. App. 3d at 664, 499 N.E.2d at 151-52. In typical cases, negligence can be more easily
inferred because Illinois law mandates a driver must decrease his or her speed as necessary to
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avoid colliding with other vehicles "in compliance with legal requirements and the duty of all
persons to use due care." 625 ILCS 5/11-601(a) (West 2010). Here, the accident occurred after
both plaintiff and Heiser swerved to avoid an accident and the testimony establishes Heiser and
Rettig were "at least two car lengths" to "five to six car lengths" apart when they first saw each
other after both swerved to avoid Moore. Given the unusual circumstances of this case, it is not
surprising neither Rettig nor Heiser cited a case directly on point.
¶ 41 Rettig's cases are distinguishable. Some reveal typical rear-end-collision
scenarios that would have supported either a finding of negligence or the absence of negligence.
For example, the Kapsouris plaintiff was injured in a rear-end collision and the facts, as viewed
in a light most favorable to the nonmovant on a motion for judgment n.o.v., established the
"defendant was driving 20 miles per hour, at night and in the rain, when the vehicle carrying
plaintiff suddenly stopped in front of her without signaling" and defendant applied her brakes and
slid into the stopped vehicle. See Kapsouris, 319 Ill. App. 3d at 854, 747 N.E.2d at 435. In
Abrams, the front vehicle stopped at a stop sign, began pulling forward, and then stopped again,
at which time it was struck by the rear vehicle. Abrams, 148 Ill. App. 3d at 664, 499 N.E.2d at
151-52. Other cases involved third vehicles, like here, but contained questions for the jury on
proximate cause. See, e.g., Strasma, 145 Ill. App. 3d at 829, 495 N.E.2d at 1345 (finding "a
clear question for the jury as to whether the defendant's driving too fast for conditions was the
proximate cause of the plaintiff's alleged injuries"); Burgdorff, 74 Ill. App. 3d at 163, 392 N.E.2d
at 186.
¶ 42 Rettig next argues Heiser failed to cite authority in his motion for summary
judgment and also raised the issue of the emergency doctrine for the first time in his reply brief
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on the summary-judgment motion. These arguments fail. Rettig cites no authority to show these
alleged procedural errors in the trial court foreclose summary judgment. In addition, the issue of
the emergency defense is irrelevant, as Rettig had insufficient evidence to establish her prima
facie case.
¶ 43 III. CONCLUSION
¶ 44 We affirm the trial court's judgment.
¶ 45 Affirmed.
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