NOTICE 2020 IL App (5th) 180583-U NOTICE Decision filed 01/23/20. The This order was filed under text of this decision may be NO. 5-18-0583 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
LAURA CARPENTER, Individually and as ) Appeal from the Special Administrator of the Estate ) Circuit Court of of Matthew Lindsey, Deceased, ) Marion County. ) Plaintiff-Appellant, ) ) v. ) No. 17-L-9 ) MARLA C. MEYER, ) Honorable ) Michael D. McHaney, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________
JUSTICE CATES delivered the judgment of the court. Justices Moore and Boie concurred in the judgment.
ORDER
¶1 Held: The trial court erred in granting summary judgment in favor of defendant where there were genuine issues of material fact regarding defendant’s negligence.
¶2 Plaintiff, Laura Carpenter, individually and as special administrator of the estate of
Matthew Lindsey, deceased, brought wrongful death and survival actions against
defendant, Marla C. Meyer, alleging that plaintiff’s eight-year-old son, Matthew Lindsey,
sustained serious and ultimately fatal injuries as a result of defendant’s failure to keep a
proper lookout and drive her vehicle with reasonable care for the safety of pedestrians on
1 the roadway. Defendant filed a motion for summary judgment, arguing that plaintiff did
not produce any evidence to demonstrate a breach of defendant’s duty of care or that any
such breach was a proximate cause of plaintiff’s damages. The circuit court granted
defendant’s motion, and plaintiff appealed. On appeal, plaintiff asserts that defendant was
not entitled to judgment as a matter of law because she presented some evidence
demonstrating the existence of genuine issues of material fact as to defendant’s negligence.
For the reasons that follow, we reverse and remand.
¶3 On Tuesday, October 25, 2016, at approximately 7:23 p.m., defendant was driving
eastbound on U.S. Route 50, near Kasznel Road, when her vehicle struck Matthew
Lindsey, an eight-year-old pedestrian. As a result of the impact, Matthew was thrown into
a ditch on the south side of U.S. Route 50. He came to rest near a culvert, southeast of the
area of impact. Matthew sustained severe injuries. He was treated at the scene, and then
transported to Salem Memorial Hospital where he was pronounced dead upon arrival.
Defendant was not physically injured in the collision. She was taken to Clay County
Hospital with complaints of shortness of breath and chest tightness.
¶4 Illinois State Trooper Justin Hildebrand responded to the crash scene and prepared
an Illinois Traffic Crash Report (Crash Report). Hildebrand requested assistance with the
crash scene reconstruction. Trooper David Jourdan responded and prepared a “Level 3
Traffic Crash Reconstruction Report” (Reconstruction Report). The Crash Report was
incorporated as part of the Reconstruction Report. Trooper Hildebrand’s Crash Report
indicated that the vehicle-pedestrian collision occurred on U.S. Route 50, a two-lane, non-
divided road, without streetlights. On page one of the Crash Report, Trooper Hildebrand 2 indicated that the collision occurred at 7:26 p.m., and was reported at 7:30 p.m. In the
narrative section on page two of the report, Trooper Hildebrand stated that the collision
occurred at approximately 7:23 p.m. Trooper Hildebrand reported that it was dark, and the
weather was clear. The road was dry, straight, and level, and there was nothing that would
have obscured the motorist’s vision. There were no defects in the roadway, and no
construction. Trooper Hildebrand noted that defendant’s vehicle was moving straight
ahead at the time of the collision. He also indicated that Matthew was wearing contrasting
clothing, and that Matthew was standing in the roadway.
¶5 According to the Reconstruction Report, Trooper Jourdan arrived at approximately
9:26 p.m. By the time of his arrival, Matthew had already been taken from the scene.
Trooper Hildebrand showed Trooper Jourdan where Matthew had been found. Trooper
Jourdan noted a small area of blood in that location. Trooper Hildebrand advised Trooper
Jourdan that Matthew had died from his injuries. Trooper Hildebrand also advised that he
spoke with defendant about the crash. During that conversation, defendant stated that she
was traveling east on U.S. Route 50 near Kasznel Road when Matthew entered the
eastbound lane of traffic. Defendant’s vehicle then struck Matthew, causing him to land in
the ditch. Trooper Hildebrand noted that Matthew was wearing a light gray shirt at the time
of the crash.
¶6 Trooper Jourdan then investigated the crash scene. In the narrative section of the
Reconstruction Report, Trooper Jourdan indicated that defendant’s vehicle had stopped
approximately 390 feet west of the location where Matthew was discovered. Based on his
diagram, however, defendant’s vehicle was stopped east of the point where Matthew came 3 to rest in the ditch. Trooper Jourdan reported that defendant’s vehicle had damage to the
right front headlight, right bumper, and hood. The diagram indicated that plastic from the
vehicle’s broken headlight was found scattered along the fog line and south shoulder of the
highway, that Matthew was found in a ditch off the roadway, southeast of the debris field,
and that a toy car was located west of the debris field, on the south shoulder of U.S. Route
50, near the intersection with Kasznel Road. Although not discussed in the narrative section
of the Reconstruction Report, it appears, based upon the scale in the diagram, that Matthew
was thrown approximately 65 feet from the debris field, and that defendant brought her
vehicle to a stop approximately 450 feet east of the debris field. Trooper Jourdan indicated
that shoes were found at the area of impact, and that the shoes were moved and placed on
the side of the road. The report does not indicate who found the shoes, who moved them,
or why they were moved. Photographs were taken of the roadway and the vehicle. The
original photos were not provided in the record. Instead, thumbnail JPEG images were
scanned and attached to the Reconstruction Report. For the most part, the scanned
thumbnail images are indecipherable.
¶7 Trooper Jourdan noted that Trooper Brad Brachear also interviewed defendant
about the crash. Trooper Brachear provided a summary of defendant’s account of the
incident. According to the summary, defendant indicated that she was returning home after
dropping her husband off at a field to pick up his tool truck. She was driving eastbound
and had passed Woodlawn Church. She recalled that the lights were on in the church and
she wondered why they had a service on a Tuesday night.
4 “Mrs. Meyer stated she was listening to a gospel tape and driving 60 miles per hour, with her cruise control possibly set. Mrs. Meyer stated she felt contact and heard something hit her car. Mrs. Meyer stated she saw a person with a light t-shirt and light hair in the air in front of her car with their hands up. Mrs. Meyer stated she did not hit the brakes immediately. Mrs. Meyer stated she didn’t know why, maybe shock at what just happened, and took time to process. Mrs. Meyer stated there were no other cars around. Mrs. Meyer thought she saw him off to her left when he was in the air. As soon as she stopped, Mrs. Meyer called her daughter. The time she called her daughter was 7:21 p.m.”
¶8 On March 6, 2017, plaintiff filed a two-count complaint against defendant under the
Illinois Wrongful Death Act (740 ILCS 180/1 et seq. (West 2016)) and the Illinois Survival
Statute (755 ILCS 5/27-6 (West 2016)). Plaintiff alleged that defendant committed one or
more of the following negligent acts or omissions:
“a. failed to keep her motor vehicle under proper control on the roadway;
b. failed to exercise reasonable care for the safety of pedestrians on the roadway in violation of Section 11-1003.1 of the Illinois Vehicle Code;
c. failed to give a warning by sounding a horn for the safety of pedestrians on the roadway in violation of Section 11-1003.1 of the Illinois Vehicle Code;
d. failed to take proper precaution upon observing a child on the roadway in violation of Section 11-1003.1 of the Illinois Vehicle Code;
e. failed to keep a proper lookout for persons and property on the roadway; and
f. failed to decrease the speed of her motor vehicle as necessary to avoid colliding with another person on the highway in violation of Section 11-601 of the Illinois Vehicle Code.”
Plaintiff further alleged that Matthew suffered severe and ultimately fatal injuries as a result
of defendant’s negligence. Plaintiff sought damages for the loss of society and
companionship suffered by decedent’s next of kin under the Wrongful Death Act, as well
5 as damages for the personal injuries, including pain and suffering, and the medical
expenses incurred by Matthew prior to his death under the Survival Act.
¶9 On May 2, 2017, defendant filed an answer, denying all allegations of negligence.
Defendant also filed affirmative defenses, alleging that plaintiff was negligent in that she
allowed Matthew to be on the roadway after dark, failed to provide reflective clothing for
Matthew, and failed to adequately supervise Matthew. Defendant asserted that plaintiff’s
negligent actions should bar any recovery, or in the alternative, that any judgment should
be reduced by the percentage of contributory negligence attributable to plaintiff. On May
23, 2017, plaintiff filed a reply, denying all of defendant’s affirmative defenses.
¶ 10 On April 11, 2018, defendant filed a motion for summary judgment and a supporting
memorandum. Defendant claimed there was no evidence that any negligence by defendant
caused the collision, and that absent any evidence of negligence, defendant was entitled to
judgment as a matter of law. Defendant asserted that she was driving her vehicle eastbound
on U.S. Route 50, traveling between 55 and 60 miles per hour, that it was dark, and the
headlights on her vehicle were fully functional. Defendant further asserted that Matthew
entered the roadway on eastbound U.S. Route 50 at approximately 7:23 p.m., and she had
no prior indication that the child was near the roadway prior to the impact. Defendant
further asserted that Matthew’s parents testified that they were not aware of any negligent
acts by defendant. Defendant argued that any suggestion that she may have been negligent
was based on pure speculation and that she was entitled to summary judgment.
¶ 11 Defendant attached the transcript of her discovery deposition in support of her
motion for summary judgment. Therein, defendant testified that she was traveling on U.S. 6 Route 50 eastbound after dropping her husband off at the field to prepare for harvest. She
stated that she was travelling between 55 and 60 miles per hour, singing along with a
compact disc of gospel music. She stated that she was not texting, talking on the phone, or
adjusting the radio. Defendant testified that the posted speed limit was 55 miles per hour.
There were no streetlights along the highway. It was dark, but there was no precipitation.
Defendant stated that her headlights were on. The headlights were automatic, so she could
not say whether the headlights were on the regular setting or high beam. Defendant testified
that she was wearing her glasses and her eyes were trained on the road. Defendant stated
that her first indication that a child was near the roadway was when she heard and felt an
impact with the right front quarter panel of her vehicle, and she wondered what she had
hit. Defendant testified that in the moment after impact, she “saw the image of a boy with
light-colored hair, a white shirt. It looked like he was in a wind tunnel. He was blowing,
and he was gone like that. And then I hit the brakes.” After seeing this “vision,” she
“processed a moment” and then hit the brakes. Defendant stated that this “vision” was
provided by God, that the boy had to have already been dead, and that his spirit was going
to heaven. She stated that this was the only reason she could live with this. Defendant stated
she saw that the image was on the driver’s side of her vehicle, and the boy was facing
south. She acknowledged the damage was on the passenger side of her vehicle.
¶ 12 Defendant further testified that she talked with an Illinois State police officer after
the accident. When asked whether she recalled telling the officer that she had been listening
to a gospel tape and driving 60 miles per hour, with her cruise control possibly set just prior
to the collision, she indicated that she did not remember making that statement. When 7 asked if she disputed this information, she testified that she agreed that she was listening
to a gospel tape, that she rarely used her cruise control, and that her driving speed would
have been a guess. When defendant was asked about her interview with Trooper Brachear,
where she stated that “she saw a person with a light t-shirt and light hair in the air in front
of her car with their hands up,” defendant testified that this was the “vision” she had
previously described.
¶ 13 Defendant also testified that when she came to a stop, she put on her emergency
flashers. At that point, she tried to use OnStar to call 911, but the OnStar was not working.
Defendant picked up her cell phone and called her daughter. Defendant could not recall if
she tried to call 911. Defendant told the police officer she called her daughter at 7:21 p.m.,
but defendant did not know if she checked her call log to provide the time of the call.
Defendant testified that she did not go back to check on the boy’s condition. She honked
her horn and tried to get passing motorists to stop. A man named Darrel Sullens stopped.
Darrel put his arm around her and called 911. Defendant identified herself and told the
dispatcher that “she hit a boy, and no one would stop to help.”
¶ 14 Defendant recalled that the Illinois State Police and Marion County Emergency
Medical Services responded to the scene. Defendant was taken to the hospital because she
was having trouble breathing and her chest was tight. Defendant stated that some of her
recollection of what happened was a blur because of her emotional state. At the time of the
accident, defendant was taking medications, including Prozac, a water pill, and an
antibiotic. She testified that she experienced depression and anxiety following the accident.
8 Defendant testified she did not see the boy and did not think there was anything she could
have done differently that night.
¶ 15 The deposition transcripts of Matthew’s parents were attached in support of
defendant’s motion for summary judgment. Plaintiff testified that she and her family lived
in a trailer on U.S. Route 50, near the intersection with Kasznel Road. Plaintiff noted that
Matthew had been diagnosed with autism just before his second birthday. On October 25,
2016, plaintiff and her children arrived home at 7 p.m. Plaintiff started dinner and laundry.
She recalled that Matthew had jumped up on the windowsill and picked up her phone to
play games. The phone, however, was not charged, so Matthew went back to his room.
Plaintiff first learned that Matthew was involved in an accident when a sheriff’s deputy
came to the house and asked if plaintiff’s children were at home. She checked on Matthew
and learned that he was not in the house. Plaintiff testified that she was not aware of any
facts indicating that defendant either would, or would not, have been able to avoid the
accident. Decedent’s father, Shawn Lindsey, offered a similar account during his
deposition. Neither parent witnessed any part of the incident.
¶ 16 On June 4, 2018, plaintiff filed a response in opposition to defendant’s motion for
summary judgment. Plaintiff argued that defendant’s deposition testimony created genuine
issues of material fact regarding defendant’s negligence and whether she could have taken
steps to avoid the accident. Plaintiff challenged defendant’s claims that she did not see
Matthew prior to impact and that she learned that she struck a child only upon seeing the
vision of a boy with light-colored hair and a light-colored shirt. Plaintiff questioned
defendant’s credibility and the accuracy of her account, noting that defendant accurately 9 described Matthew’s clothing and his hair color in this “vision.” Plaintiff further noted that
defendant did not immediately apply her brakes after impact, and that even after stopping
the vehicle, defendant did not attempt to assist Matthew. Plaintiff pointed out that
defendant had testified that more than 10 minutes may have passed before anyone checked
on Matthew’s condition. Plaintiff argued that the outcome of this incident may have been
different had defendant attended to Matthew or called 911 immediately after the accident.
Plaintiff further argued that her expert raised a genuine issue of material fact as to
defendant’s negligence and proximate cause. In further support of her response, plaintiff
attached the affidavit of her accident reconstruction expert, Michael Cowsert, the State
Police Reconstruction Report, along with the Illinois Traffic Crash Report, and defendant’s
deposition.
¶ 17 In his affidavit, Michael Cowsert stated that he reviewed the Reconstruction Report,
the Illinois Traffic Crash Report, the photographs taken by the Illinois State Police, the
transcript of defendant’s deposition, and the medical records from Marion County EMS
and Salem Hospital detailing Matthew’s injuries. Based upon his review of the documents
and his education, training, and experience, Cowsert made a number of observations. He
noted that the roadway in the area of the collision was flat and straight, that low beam
headlights on defendant’s vehicle would illuminate the roadway approximately 200 to 250
feet in front of the vehicle, and that the high beams would illuminate the roadway
approximately 250 to 300 feet in front of the vehicle. Cowsert further noted that the average
perception to reaction time of a motorist approaching an unexpected hazard in dark
conditions was approximately 1.7 to 2.2 seconds. Given defendant’s statement that she was 10 traveling at 60 miles per hour, or approximately 88.3 feet per second at the time of the
collision, Cowsert calculated defendant’s perception to reaction time between 150 to 194.3
feet. Cowsert noted that Matthew’s injuries were primarily concentrated on the right side
of his body. Based on this information, Cowsert opined that it was more likely than not that
Matthew was not crossing the road from right to left, but rather that Matthew was either
walking forward on the right side of the roadway, crossing the road from left to right, or
turned facing away from the road prior to impact, and therefore Matthew would have been
in the roadway for a longer period of time. Cowsert noted Matthew would have been more
visible due to his light-colored clothing. Given that the point of contact was very close to
the right side of the front of the vehicle, defendant would have only had to make a simple
evasive maneuver to avoid impact with Matthew. Based upon defendant’s testimony and
the objective facts noted, Cowsert further opined that defendant would have had sufficient
time to see Matthew and to take evasive action to avoid hitting him, and that defendant’s
failure to take evasive action was a proximate cause of the collision with Matthew.
¶ 18 Defendant filed a reply, restating her arguments in support of summary judgment.
Defendant further argued that plaintiff attempted to utilize her expert to “create new facts,”
and that the expert’s opinions were based on speculation and did not deal with the facts
regarding defendant’s operation of the motor vehicle. Defendant claimed that her failure to
stop immediately after the accident was not a sign that there was negligence on her part.
Without offering any supporting foundation, defendant relied upon and referred to an
article on the website of the National Highway Traffic Safety Administration, arguing that
under ideal conditions, it would take a motorist nearly 350 feet to realize something had 11 happened and come to a complete stop, and that while facing less than ideal conditions,
defendant came to a stop within 390 feet after impact. Defendant argued that her testimony
led to one conclusion, namely that the boy darted from the side of the road into the right
front side of her vehicle, and that there was no credible evidence that she was negligent.
¶ 19 Defendant’s summary judgment motion was called for hearing on November 26,
2018. After considering the arguments of counsel, the trial court granted defendant’s
motion for summary judgment. In ruling from the bench, the court found that plaintiff’s
expert merely “did math,” and that the expert’s opinions were based on speculation. The
court concluded that plaintiff’s expert did not offer knowledge or apply principles of
science beyond the ken of the average juror. In a typed order entered by the court on
November 27, 2018, the court granted summary judgment, finding “for the reasons stated
on the record, there is no genuine issue of material fact which supports the allegations of
negligence presented in Count I and Count II.”
¶ 20 On appeal, plaintiff claims the trial court erred in granting summary judgment in
favor of defendant where the record demonstrated that genuine issues of material fact
existed as to defendant’s negligence. Plaintiff argues that it was error to grant summary
judgment where the credibility and reliability of defendant, the sole surviving eyewitness,
were in issue, and where the opinions of plaintiff’s expert demonstrate a genuine issue of
material fact as to defendant’s negligence.
¶ 21 The purpose of summary judgment is not to try a question of fact, but to determine
whether a genuine issue of material fact exists. Adams v. Northern Illinois Gas Co., 211
Ill. 2d 32, 42-43 (2004). Accordingly, a court cannot make credibility determinations or 12 weigh evidence in deciding a summary judgment motion. Merca v. Rhodes, 2011 IL App
(1st) 102234, ¶ 46. Summary judgment is appropriate only when the pleadings,
depositions, admissions, and affidavits demonstrate that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS
5/2-1005(c) (West 2016). In determining whether a genuine issue of material fact exists, a
court must construe the pleadings, depositions, admissions, and affidavits strictly against
the movant and liberally in favor of the opponent. Adams, 211 Ill. 2d at 43. A triable issue
exists where material facts are in dispute, or where reasonable persons might draw different
inferences from the undisputed material facts. Adams, 211 Ill. 2d at 43. An order granting
summary judgment is reviewed de novo. Adams, 211 Ill. 2d at 43.
¶ 22 In order to succeed in an action based on negligence, a plaintiff must show that the
defendant owed a duty of care to plaintiff, that the defendant breached that duty, and that
the breach proximately caused plaintiff’s injury or death. Adams, 211 Ill. 2d at 43. The
existence of a duty is a question of law for the court to decide, while the breach of duty and
proximate cause present questions of fact to be decided by a jury. Adams, 211 Ill. 2d at 43.
¶ 23 Illinois recognizes the common law duties of every driver of a vehicle using a public
highway to exercise reasonable care in the operation of his vehicle, and to keep a proper
lookout and to avoid a collision. See generally, Wallace v. Weinrich, 87 Ill. App. 3d 868,
873-74 (1980); Zeller v. Durham, 33 Ill. App. 2d 273, 279 (1962) (motorists in Illinois are
charged with notice that pedestrians may cross the street over which he is driving and
therefore have a duty to have his vehicle under control and to keep a proper lookout ahead
so as to avoid colliding with pedestrians). Further, a motorist in Illinois has statutory duties 13 to exercise due care to avoid injuring pedestrians (625 ILCS 5/11-1003.1 (West 2016)),
and to drive at a speed safe for conditions (625 ILCS 5/11-601(a) (West 2016)). In this
case, the parties have no dispute as to the existence of the duties owed by motorists,
including defendant, to pedestrians. Here, the issues in dispute are whether defendant
breached one or more of those duties and whether defendant’s breach was a proximate
cause of plaintiff’s injuries and death.
¶ 24 Before considering whether the trial court erred in finding that plaintiff failed to
present any evidence of defendant’s negligence, we will consider plaintiff’s claim that the
trial court erred in excluding the opinions of her reconstruction expert as it considered
defendant’s motion for summary judgment. Generally, the opinion testimony of an expert
is admissible if the expert is qualified by knowledge, skill, experience, training, or
education, and the testimony would assist the jury in understanding the evidence. Zavala
v. Powermatic, Inc., 167 Ill. 2d 542, 546 (1995); Augenstein v. Pulley, 191 Ill. App. 3d 664,
681 (1989). As with any type of expert testimony, reconstruction testimony is proper, even
where there is an eyewitness, if what the expert offers is knowledge and the application of
principles of science, including physics and engineering, beyond the ken of the average
juror. Zavala, 167 Ill. 2d at 546. Whether to admit expert reconstruction testimony depends
upon the “usual concerns of whether expert opinion testimony is appropriate generally.”
Zavala, 167 Ill. 2d at 546. Thus, the admissibility of reconstruction evidence is determined
by whether the expert is qualified in the field and whether the testimony will aid the
factfinder in the resolution of the dispute. Zavala, 167 Ill. 2d at 546; Augenstein, 191 Ill.
App. 3d at 681. So, for example, expert witnesses have been permitted to testify to interpret 14 tire imprints and markings from an accident scene (Morrison v. Reckamp, 294 Ill. App. 3d
1015, 1020-21 (1998)) and to explain the formulae for determining speed and stopping
distances under normal and variable braking conditions (Fakhoury v. Vapor Corp., 154 Ill.
App. 3d 531, 537 (1987)). Where, however, there were eyewitnesses who had a reasonable
opportunity to view the accident and who had sufficient driving experience to offer
opinions as to a vehicle’s speed at the time of the accident, the trial court’s decision to bar
expert testimony on the issue of speed has been upheld, as automobile speed was a proper
subject for lay opinion and was not beyond the understanding of the average juror. See,
e.g., Watkins v. Schmitt, 172 Ill. 2d 193, 206-07 (1996). The admissibility of expert
testimony is a matter within the discretion of the trial court. Fakhoury, 154 Ill. App. 3d at
537. Each case is decided on its own facts. In each case, the trial court must center its
attention on the need for the expert testimony and whether it will assist the jury in making
factual determinations to resolve the dispute. Watkins, 172 Ill. 2d at 206; Morrison, 294 Ill.
App. 3d at 1021-22.
¶ 25 Here, plaintiff’s expert addressed matters of visibility and sight distances in
darkened conditions based on data regarding high beam and low beam headlight
illumination of the roadway and the geometry of the highway. Plaintiff’s expert also
addressed a motorist’s reaction time, which included an analysis of a driver’s time to
perceive a hazard, consider his or her options, and then take the action. Cowsert’s
calculations were based upon his education, training, and experience, his assessment and
analysis of the physical evidence, the plaintiff’s injuries, and a consideration of the
statements and testimony of the defendant. His opinions were derived from the multitude 15 of factors he considered, and involved an analysis of human factors, 1 road and lighting
conditions, and physical evidence found at the scene of the collision. Under these
circumstances, Cowsert’s opinions were comprised of much more than simple
mathematical equations, and his testimony could assist the factfinder in determining
whether defendant was exercising due care in keeping a proper lookout to avoid colliding
with a pedestrian on the roadway. Thus, we find that the trial court abused its discretion in
refusing to consider the opinions of plaintiff’s reconstruction expert as to defendant’s
negligence.
¶ 26 We next consider plaintiff’s contention that summary judgment was improperly
granted. Plaintiff’s claims of negligence are based on her theory that defendant breached
her duties to keep a proper lookout and to avoid a collision with a pedestrian. Defendant
argued that summary judgment was proper as the undisputed evidence demonstrated that
Matthew “darted out” in front of defendant’s vehicle, and plaintiff offered no credible
evidence of defendant’s negligence.
¶ 27 Illinois courts recognize that the mere fact that a vehicle strikes a pedestrian does
not give rise to a presumption of negligence on the part of the driver. Miklos v. Caliendo,
161 Ill. App. 3d 132, 138 (1987). That said, a driver’s duty is not necessarily discharged
by his uncontradicted testimony that he looked but did not see. Wallace, 87 Ill. App. 3d at
874. Illinois case law has established that a motorist “cannot look with unseeing eyes.”
Hicks v. Donoho, 79 Ill. App. 3d 541, 544 (1979) (“one will be deemed to have observed
1 Our Supreme Court has recognized that “human factors engineering” is the study of the relationship of man to machinery. See Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 546 (1995). 16 that which would necessarily have been seen if he had looked, and will not be absolved of
the charge of negligence in failing to look by testimony that he looked and did not see”
(internal quotation marks omitted)).
¶ 28 In this case, defendant testified that her eyes were trained on the road and she did
not see Matthew at any point prior to her vehicle striking him. While defendant is the only
surviving eyewitness to the occurrence, there is other evidence in the record which
demonstrates the existence of genuine issues of material fact regarding defendant’s
¶ 29 Trooper Jourdan’s Reconstruction Report indicates that on the night of the incident,
the weather was clear, and it was dark. The section of the highway in the area where the
collision occurred was dry, straight, and level. There was no construction on the roadway
and there were no obstacles to motorists. Matthew was wearing a light-colored shirt and
contrasting clothing. Based upon the location of the physical debris from defendant’s
vehicle, it appears that Matthew was hit near the fog line along the south shoulder of
eastbound U.S. Route 50. According to plaintiff’s expert, defendant’s headlights, even on
low beam, would have illuminated the roadway between 200 and 250 feet in front of her
vehicle. Thus, there are factual questions regarding whether defendant could have, or
should have, seen Matthew, and taken evasive action, if she had been exercising due care
to keep a proper lookout.
¶ 30 The Reconstruction Report and the Crash Report raise additional questions of
material fact regarding what occurred in the moments leading up to and following the
collision. The first page of the Crash Report indicates that the collision occurred at 7:23 17 p.m., and the narrative section indicates that it occurred at 7:26 p.m. The Crash Report
further indicates that defendant called and spoke with her daughter at 7:21 p.m. The
information in this report raises a question of whether defendant may have been talking on
the phone, and thereby distracted, prior to and at the time of the collision. The report also
indicates that the emergency responders were notified at 7:30 p.m. Given the timeline, there
is a question regarding how much time elapsed between the collision and defendant’s call
to 911. In addition, defendant told investigating officers that she was traveling at 60 miles
per hour. In her deposition, she testified that she was driving between 55 and 60 miles per
hour. Thus, there is some evidence that defendant was traveling in excess of the posted
speed limit of 55 miles per hour. Based on the Reconstruction Report, it appears that
defendant stopped her vehicle more than 390 feet east of the broken headlight debris, and
there was no evidence of skid marks or any braking noted in the area of the debris. Given
this information, there are factual questions as to whether defendant may have been
speeding, whether she may have been engaged in distracted driving prior to the collision,
and whether defendant’s actions were a proximate cause of the collision with Matthew.
¶ 31 Additionally, there are potential discrepancies between defendant’s deposition
testimony and statements attributed to defendant in the Reconstruction Report. In a
statement to the investigating officers, defendant reported that a moment after feeling an
impact, she saw a boy with light hair and a light-colored t-shirt in the air in front of her car.
In addition, defendant testified that when she called 911, she reported that she hit a boy.
The record does not contain a recording or transcript of the 911 call. In defendant’s
discovery deposition, defendant testified that that she did not see the boy before she struck 18 him with her vehicle, and that she did not check on him after the accident. She testified that
she first realized that she hit a person when, in a moment after the impact, she had a vision
of a boy being lifted to the heavens. There is no indication that defendant told the
investigating officers or the 911 dispatcher that her description of the occurrence was based
on a vision. Given this evidence, a factfinder will have to determine the credibility of
defendant’s statements, and whether the account defendant gave to the officers on the night
of the incident was more accurate and reliable than defendant’s deposition testimony. 2
¶ 32 After reviewing the pleadings, defendant’s deposition, the affidavit of plaintiff’s
reconstruction expert, and other exhibits, and construing them strictly against the movant
and liberally in favor of the opponent, we conclude that there are genuine issues of material
fact as to defendant’s negligence, and that the trial court erred in entering a summary
judgment for defendant. The trial court also erred in refusing to consider the opinions of
plaintiff’s reconstruction expert in determining whether defendant was entitled to a
judgment as a matter of law. Accordingly, we reverse the circuit court’s decision to grant
summary judgment and remand this case for further proceedings. In remanding this case,
we want to make clear that we have taken no position on plaintiff’s ability to prevail. We
merely find that there are too many questions of material fact, yet to be addressed, to entitle
defendant to a judgment as a matter of law.
2 Whether any of defendant’s testimony regarding these issues will ultimately be admissible may further depend on the applicability of the Dead-Man’s Act or whether the protections of the Act have been waived under the circumstances presented here. See 735 ILCS 5/8-201 (West 2016). 19 ¶ 33 For the reasons stated herein, the circuit court’s decision to grant summary judgment
for the defendant is reversed, and the cause is remanded for further proceedings.
¶ 34 Reversed and remanded.