NOTICE 2024 IL App (5th) 240100-U NOTICE Decision filed 10/01/24. The This order was filed under text of this decision may be NO. 5-24-0100 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent 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 ______________________________________________________________________________
CHRISTOPHER COHOON and ) Appeal from the MICHELE COHOON, as Guardians ) Circuit Court of of Disabled Adult Emily Cohoon, ) Champaign County. ) Plaintiffs-Appellants, ) ) v. ) No. 21-L-105 ) HUNTER CROWE; CONDIT TOWNSHIP, ) a Civil Township; and RONALD SCUDDER, ) as Highway Commissioner of Condit Township, ) ) Defendants ) ) (Condit Township, a Civil Township, and Ronald ) Honorable Scudder, as Highway Commissioner of Condit Township, ) Benjamin W. Dyer, Defendants-Appellees). ) Judge, presiding. ______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court. Justices Cates and Sholar concurred in the judgment.
ORDER
¶1 Held: The circuit court erred in granting summary judgment in a negligence action where a genuine issue of material fact exists.
¶2 The plaintiffs, Christopher Cohoon and Michele Cohoon, as guardians of disabled adult
Emily Cohoon, filed suit for injuries sustained when Emily Cohoon, a passenger, was involved in
a single-vehicle automobile accident. The circuit court granted summary judgment in favor of
defendants Condit Township and Ronald Scudder on counts II and III of the plaintiffs’ third
1 amended complaint on the issue of proximate cause, and the plaintiffs’ appeal. 1 We find that a
genuine issue of material fact exists which precludes entry of summary judgment. Therefore, we
reverse and remand this matter for further proceedings.
¶3 I. BACKGROUND
¶4 On July 6, 2020, defendant Hunter Crowe, then 16, was driving Emily Cohoon, also 16, in
her 2001 Chevrolet Monte Carlo in a northerly direction on County Road 600 East (600 East) in
Condit Township, Champaign County, Illinois. The portion of 600 East on which the vehicle was
traveling was north of County Road 2725 North and south of County Road 2800 North. That
portion of 600 East is a chip-and-seal road fit for two lanes of travel without a center line.
¶5 As defendant Crowe drove north on 600 East, he lost control of the vehicle. After the Monte
Carlo had passed an oncoming vehicle, it left the roadway off to the east at a high rate of speed,
traveled across a section of grass, and struck a roadside tree. Crowe and Emily were both extracted
from the wreck and airlifted to trauma centers. Although both teens survived, Emily is now a
disabled adult. Neither Crowe nor Emily has any recollection of the details of the accident.
¶6 600 East has a statutory speed limit of 55 miles per hour. The actual speed of the vehicle
is unknown; however, crash experts have estimated that the vehicle was traveling somewhere
between 66 and 84 miles per hour at the point where the vehicle first left tire marks on the roadway.
Lucy and Roger Woodcock, occupants of a separate vehicle traveling in the opposite direction on
the same road, observed a portion of the crash. They observed the vehicle “bouncing” vertically
on the roadway in an area known to them to be very bumpy. They gave statements to law
1 Count I of the plaintiffs’ third amended complaint involves allegations of negligence against defendant Crowe. The circuit court’s December 12, 2023, order only involves a determination of summary judgment as to counts II and III involving defendants Condit Township and Ronald Scudder. Thus, defendant Crowe is not a party to this appeal and any references to the allegations involving Crowe will be limited to the extent necessary. 2 enforcement that the “washboard” condition in the roadway caused the vehicle to bounce and lose
control.
¶7 On June 18, 2021, the plaintiffs filed a one-count complaint alleging negligence against
Crowe. On June 23, 2022, the plaintiffs filed an amended two-count complaint alleging an
additional count of negligence against Condit Township. On August 18, 2023, the plaintiffs filed
another amended complaint, entitled “Third Amended Complaint,” containing all three counts of
negligence alleged against the defendants herein. Count II of plaintiffs’ third amended complaint
alleged, inter alia, that Condit Township breached its statutory duty to exercise ordinary care to
maintain County Road 600 East in a reasonably safe condition by (1) allowing road defects,
including washboarding and potholes to exists, which could cause individuals to lose control of
their vehicles; (2) utilizing improper maintenance activities which failed to address the
washboarding defects and potholes; and (3) failing to inspect the roadway. Count III of plaintiffs’
third amended complaint alleged the same acts and/or omissions of negligence against Ronald
Scudder, as highway commissioner. Plaintiffs additionally alleged that as a result, Emily Cohoon
suffered serious and permanent injuries and sought damages in excess of $50,000.
¶8 On August 31, 2023, defendants Condit Township and Ronald Scudder (Township
defendants) filed an answer denying the material allegations and raising affirmative defenses under
the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act)
(745 ILCS 10/1-101 et seq. (West 2020)). The parties agreed to bifurcate the issues of liability and
damages so the Township defendants could present their motion for summary judgment prior to
the parties engaging in costly damages discovery, and the circuit court entered scheduling orders
consistent with the same.
3 ¶9 Several depositions and statements were taken in the case. Relevant to this appeal are the
statements and depositions of Lucy and Roger Woodcock, the investigating officers, defendant
Scudder, and the plaintiffs’ expert witnesses. 2
¶ 10 Lucy Woodcock (Lucy), an eyewitness, provided the following initial statement, captured
by an officer’s body camera, while at the scene of the crash:
“OFFICER: What did you observe, just, what did you observe?
LUCY: We were comin’ up over the hill, and the car, it was coming northbound,
and it was jumping up and down probably because of the bumps. And it started fishtailing,
and I had to get over into the ditch for it to miss me. And I looked in my driver’s mirror
and I seen it lose control and roll several times.
OFFICER: Did you—was it going pretty fast?
LUCY: For this road, for that area, because of all the bumps, even 45 and 50 is too
fast because if you don’t have good tires but it—”
¶ 11 Later, Lucy provided a voluntary written statement to officers investigating the crash. In
her statement, she stated that on July 6, 2020, she was driving south on 600 East with Roger
Woodcock as a passenger. She observed the Monte Carlo crest the hill in front of them and saw
the vehicle’s back wheels “bouncing” up and down vertically and the driver turning his wheel left
and right in an attempt to gain control. She was not surprised to see the vehicle bouncing like it
was because she knew, having driven north on 600 East many times, the area of the road where
the Monte Carlo was traveling was “very bumpy” and had a “washboard” effect. They pulled off
to the side of the road believing that the vehicle was out of control and that the driver would not
2 Hunter Crowe and Emily Cohoon’s depositions are only relevant in as much to establish that neither individual has any independent recollection of the events immediately before, during, or after the incident. 4 be able to recover. As the vehicle approached, she observed the male driver attempting to regain
control of the vehicle. Lucy observed the front passenger side tire go off the roadway onto the
shoulder of the road and the driver attempt to correct the vehicle by turning back toward their
direction. As the vehicle passed them, Lucy observed the vehicle begin to flip side-over-side in
her mirror and strike a tree.
¶ 12 Lucy reported to officers that when she first observed the vehicle crest the hill it was
“bouncing” probably due to the “washboard” or bumpy defect in the road. She reported that she
had driven that section of the road many times and found that the bumps made it hard to control
her vehicle at speeds of 45 miles per hour. She could not give an estimate of the vehicle’s speed.
She believed the washboard defect in the road caused the car to bounce and lose control.
¶ 13 During her deposition, when questioned by defense counsel about what caused the vehicle
to bounce, the following colloquy occurred:
“Q. So, we talked a lot about your statements and your recollection. And I think
you indicated that when you first noticed that Monte Carlo, that it was already bouncing,
correct?
A. Yes.
Q. And you don’t know what caused it to bounce?
A. I do not know.
***
Q. Lucy, I’m going to go back to this.
Q. So, when you first saw that vehicle, it was already bouncing, correct?
5 Q. And you don’t know what caused it to start bouncing, correct?
A. I do not know what else would have caused it to bounce.
Q. And you don’t know what caused it to bounce, true?
Q. True?
A. Okay. True.
A. I don’t—I don’t actually know. I am assuming it was the—I mean, why else
would a car bounce? What would cause a car to bounce?”
Lucy was asked additional questions about whether the vehicle was in control, and she responded
as follows:
“Q. Okay. So, let me, if I understand you correctly, you saw the car bouncing for
13, 14 seconds, is that correct?
A. Uh-huh. Yes.
Q. And it was in control?
A. It was—he was keeping it on his side of the road.
Q. Okay. So, keeping it in control on his side of the road?
¶ 14 Roger Woodcock (Roger), an eyewitness, also provided a voluntary written statement to
investigating officers. In his statement, he recalls being a passenger in a Ford 150 pulling a trailer
with his wife, Lucy, as the driver, traveling south on 600 East on July 6, 2020. Just as they were
6 coming to the top of a hill, he observed a car traveling north on 600 East toward them. He estimated
the vehicle was approximately 50 yards away from them when he first saw it. He immediately
noticed the back wheels were bouncing, and it looked like the driver “was going to lose control of
his vehicle.” It appeared that the “bouncing wheels” were making the car head towards their
vehicle. They pulled off on the side of the road believing the car was going to hit the trailer, but it
did not. As the vehicle passed, Roger observed a younger male was driving the vehicle. He could
not give an estimate of the vehicle’s speed. After they had completely stopped, he exited his vehicle
and observed the Monte Carlo crash into a tree.
¶ 15 Roger knew that “the road in the area where I first observed the car was bad,” so it did not
surprise him that the back tires were bouncing. He described the road as being “washboard.” He
had previously almost lost control of his vehicle in the same area. He stated that “[t]he area in
which [he] had almost lost control of [his] vehicle is the exact area in which [he] first observed the
car traveling towards [them].” He had “no doubt” that the bumps in the road caused the car’s back
wheels to start bouncing and the driver to lose control of the car.
¶ 16 During Roger’s deposition, the following statements were made regarding what he had
observed:
“Q. And you stated the car was about 50 yards to the south of you when you first
observed it, correct?
A. Right. Yep.
Q. And then when you saw the car, what did you notice about its back wheels?
A. They was [sic] bouncing. I could see it was losing control.
Q. And was this in the portion of the road that you knew there was something
unusual about the condition of the road?
7 A. Yes.
Q. What was that?
A. It was like a washboard.
Q. And then were you, as the car continued going north, did it appear that it began
to lose control?
A. Yes. And it was headed toward us.
Q. And you—would you describe the road as being a washboard where you saw
the tires bouncing?
A. Yeah, it was a bunch of bumps right in a row. So that’s what made the car start
bouncing.”
¶ 17 Sergeant Jeffrey Vercler offered testimony by way of deposition. He testified he was a
sergeant with the Champaign County Sheriff’s Department and had been employed in that capacity
for 11 years. He testified he has been working for the department for over 27 years and has
investigated hundreds of traffic accidents in his career. On July 6, 2020, he participated in the
investigation of the crash and conducted his own investigation on July 14, 2020, for the specific
purpose of documenting any road defects that existed. Approximately 800 to 1000 feet south of
the crash site, and more pronounced in the 850-to-950-foot area, he observed the roadway to have
a washboard effect. He testified he was familiar with 600 East having driven it for over 25 years
and knew it to have defects. He described that particular portion of the road as a “very rough area.”
8 ¶ 18 When asked if, based on his education, training, and experience as a police officer for 27
years, he had an opinion whether the road conditions of 600 East contributed to the accident, he
responded:
“A. I’ll tell you straight out. I can break this down real easy. The road is bad. It’s
really bad in that spot, and he was going too fast, okay? He didn’t wreck prior to that. He
was going fast. He hit that spot, and he crashed. It’s as simple as that.”
He further testified that, based on his experience, it is his opinion that the vehicle “most likely”
lost control when it hit the portion of 600 East with the washboard defect. He testified that the
speed of the vehicle and the road condition were both factors that contributed to the crash and he
did not think that “one happens without the other.” Lastly, he stated, based on his experience
investigating vehicle crashes and observing the damage to the vehicle in this case, he believed the
vehicle was traveling at a speed between 85 to 100 miles per hour.
¶ 19 Deputy Daniel Fromm also gave testimony by deposition. He testified he was a patrol
deputy for the Champaign County Sheriff’s Department and had investigated the crash on July 6,
2020. He testified he helped take measurements of the crash, which included measurements of the
roadway, vehicle debris, damage to a fence, tire track marks, and defects in the roadway. He
documented these observations in his field report and generated a traffic crash report and diagram.
He testified that he believed the road defects to be substantial, and that the Monte Carlo traveled
over the defects prior to the crash. His opinion, based on his training and experience, was that the
roadway was a contributing factor to the crash due to its “imperfections, the conditions of the
roadway, the washboard, and the bumps.” The location of the washboard was consistent with the
location where the Woodcocks observed the vehicle bouncing vertically.
9 ¶ 20 Condit Township Highway Commissioner Ronald Scudder testified by deposition that his
duties as highway commissioner included inspecting and maintaining the roadways in a reasonably
safe condition. Scudder testified that every road in his jurisdiction was traveled and inspected at
least “once a week,” which included 600 East. Prior to the accident, 600 East was resurfaced with
oil-and-chip in 2013 and 2018 and received other maintenance in 2017. He testified 600 East has
a statutory speed limit of 55 miles per hour, and he is “fully aware” that people “drive faster than
what the state says it’s supposed to be driven.” In addition, he agreed that it is quite common for
vehicles to travel in excess of 55 miles per hour on township roads, including 600 East. Scudder
testified that it is possible that a washboard effect on a roadway could affect the ability of an
individual to control their vehicle.
¶ 21 After the incident, based upon his inspections of the roadway and his judgment, Scudder
considered 600 East to be properly maintained. Specifically, he testified that he disagreed with
Sergeant Vercler’s incident report that documented a washboard defect in the road 800 to 1000
feet south of the crash site, and Scudder opined that “the road was safe and the defects were not
there.” Further, he testified that he did not believe the condition of the roadway was a contributing
factor in causing the accident.
¶ 22 Kevin Johnson, plaintiffs’ expert witness, also offered testimony by way of deposition. He
testified he had a degree in biochemistry from the University of Missouri Columbia and was
certified as an accident reconstructionist through the Accreditation Commission for Traffic
Accident Reconstruction (ACTAR). He testified that he has approximately 30 years of experience,
10 years working as a police officer for the traffic unit handling serious injury and fatal crashes
and 20 years in the private sector as an expert in civil litigation. Johnson testified that he had
10 reviewed the depositions and materials associated with the case, performed fieldwork at the crash
site, and generated a report.
¶ 23 Defense counsel asked Johnson whether he agreed that there was no eyewitness testimony
about the vehicle initially losing control, and he responded:
“A. I don’t know that I exactly agree with you on that, because you have a period
of time where there’s some vertical moments to it, basically where the vehicle is bouncing
up and down, and apparently, it’s still traveling straight down the roadway. And then as
that was exacerbated, then you have a loss of control that occurs after that.”
Johnson further testified that when the Woodcocks first observed the vehicle it was already
bouncing, and that there is no physical evidence or testimony regarding when or where the vehicle
first began to bounce. He testified that the Woodcocks’ testimony is related to where the
washboarding effect occurs and is consistent with the vertical element of the vehicle bouncing.
¶ 24 Further, Johnson gave the opinion that the washboard defect just south of the crest of the
hill caused the vehicle to “begin to lose control.” When asked the basis for his opinion, Johnson
responded that the geometry of the roadway and the washboard defect present in the roadway
combined with the witnesses’ description of the vertical bouncing nature of the vehicle formed the
basis of his opinion.
¶ 25 Johnson agreed that a multitude of reasons exist for why a driver can lose control of a
vehicle, e.g., driver inattentiveness or error, but explained that the vertical bouncing of the vehicle
described by the Woodcocks is “not possible through those methods.” He further explained that
“the only method that’s present in this area is that vertical loading/unloading due to the defect in
the roadway.” The following exchange then occurred:
11 “Q. I’m not talking about what the witnesses saw. I’m talking about before when
the witnesses couldn’t see the vehicle. There’s a multitude of reasons that this Crowe
vehicle could have lost control on 600 East that day; correct?
A. I got your question. So prior to this, had there been a loss of control, there are
many things that could cause a loss of control beforehand. We wouldn’t know of those.
But in terms of the description of the vertical element, that’s what really gets into the
washboard effect. If there’s something else out there—vehicle travels off the roadway, off
the shoulder, goes to pick something up, loses control that way—we’re going to see a
different outcome than what we see with this vertical element. If we didn’t have a witness
coming the other direction that said they saw this bouncing all over the place, I don’t know
that we would have a basis for that. So when you said is my basis the witnesses?
Absolutely.”
¶ 26 When asked whether the vehicle could have initially lost control for some reason other than
the road, and then the roadway surface caused that already out-of-control vehicle to bounce,
Johnson responded:
“A. It’s in the realm of possibility that that could occur. But then the extended loss
of control with the vertical element not being able to regain the control is what we’ve been
discussing here today.”
¶ 27 Ultimately, Johnson’s opinion to a reasonable degree of scientific certainty was that the
washboard defect was the only possible cause of the vertical bouncing described by the
Woodcocks. Other hypothetical causes for a loss of control do not explain the vertical bouncing.
Further, in the absence of any evidence or indication that the vehicle lost control prior to
12 encountering the washboard defect, the washboard defect caused the initial oscillation which was
exacerbated by “the harmonics with the speed associated with it,” and caused the loss of control.
Lastly, he opined that had the vertical loading and unloading not occurred, “most likely” the loss
of control would not have followed.
¶ 28 Dr. Jay Przybyla, plaintiffs’ retained expert witness, also testified by deposition. Przybyla
is a licensed professional engineer with experience, education, and training in the fields of civil
engineering, forensic engineering, and transportation safety. He testified that he was certified as
an accident reconstructionist through ACTAR. He earned a bachelor of science degree in civil
engineering from Brigham Young University and a Doctor of Philosophy degree in transportation
engineering from the University of Utah. He was retained by the plaintiffs to offer expert road
engineering opinions and did not perform an accident reconstruction.
¶ 29 Przybyla testified that he had reviewed the depositions and materials associated with the
case, visited the crash site prior to his deposition, and generated a report. He testified that 600 East
was not properly maintained and there existed a severe pavement distress in the form of
corrugation or washboarding. He disagreed entirely with Scudder’s characterization of the
condition of the roadway. Przybyla testified that to a reasonable degree of scientific certainty there
is a correlation between the washboard defect and the vertical dynamics of the vehicle that were
observed. He explained that the washboard defect was a contributing factor to the initial loss of
control. He testified he could not pinpoint the exact location where the initial loss of control
occurred, but that it was in the area with severe corrugation or washboard effect as described by
the Woodcocks. He testified that the speed of the vehicle would also be a contributing factor, but
that he had not formed an independent opinion as to the speed. Ultimately, Przybyla’s opinion to
a reasonable degree of scientific certainty was that the condition of 600 East was not reasonably
13 safe, and the washboard defect was a contributing factor to the vehicle’s initial and continued loss
of control.
¶ 30 On August 31, 2023, the Township defendants filed a motion for summary judgment on
counts II and III based on the issues of proximate cause and tort immunity 3 and argued that the
plaintiffs could not establish a genuine issue of material fact. The Township defendants asserted
that there is no evidence establishing what caused defendant Crowe to lose control of the vehicle,
because (1) neither Crowe nor Emily have an independent recollection of the events prior to,
during, or after the crash, and (2) the Woodcocks did not see the vehicle before it was already
bouncing and out of control. Thus, one could only speculate as to what caused the loss of control,
and mere speculation is not sufficient to establish proximate cause and survive summary judgment.
The Township defendants additionally asserted that “the roadway was nothing more than a
condition making Emily Cohoon’s injury possible, not a cause,” because defendant Crowe’s
negligent operation of the vehicle was not foreseeable and served as a subsequent, intervening act
of a third party. (Emphases in original.)
¶ 31 Plaintiffs filed a response to the motion for summary judgment and asserted that there
existed a genuine issue of material fact as to whether the washboard defect caused Emily’s injuries.
The plaintiffs disputed the defendants’ characterization of the evidence in the case, and specifically
the Woodcocks’ testimony that the vehicle was already out of control when it was first observed.
The plaintiffs claimed, inter alia, that the Woodcocks’ testimony (1) established that the initial
loss of control was in the area of the washboard defect and (2) was sufficient circumstantial
evidence to support a reasonable inference that the condition of the roadway was a material
element and substantial factor in bringing about the injury. In addition, the plaintiffs argued that
3 The facts encompassing the tort immunity issue will be addressed in our analysis below as needed. 14 the roadway did not merely furnish a condition which made plaintiff’s injury possible, but was a
legal cause in that Crowe’s negligent operation of the vehicle was not so extraordinary as to render
it unforeseeable. Further, plaintiffs argued that there can be more than one cause of plaintiff’s
injury, and that Crowe’s negligent driving would not serve as a superseding, intervening act under
the circumstances.
¶ 32 The Township defendants filed a reply to the response to the motion for summary judgment
and reasserted that summary judgment must be granted because there is no evidence of defendant
Crowe’s driving at any time before the Woodcocks observed him already out of control.
Defendants argued that in order to establish the washboard defect caused the loss of control, the
plaintiffs must first establish he was in control before the washboard area. In addition, the
Township defendants maintained that they had not argued that defendant Crowe’s loss of control
was an “intervening efficient cause” that broke the causal chain. But rather, there is no evidence
as to when or where Crowe first lost control of the vehicle, or what caused him to lose control.
And that the excessive speeding by Crowe is what led to the vehicle striking the tree, and there is
no evidence that absent striking the tree, Emily would have sustained any injury. Thus, the
washboard was nothing more than a condition that made the injury possible.
¶ 33 On October 17, 2023, the circuit court held a hearing on the motion. The Township
defendants argued that (1) when the Woodcocks first observed the vehicle it was already bouncing
and out of control, (2) there is no evidence as to what took place prior to the Woodcocks observing
the vehicle, and (3) the plaintiffs must demonstrate control at a point prior, to establish the
washboard caused the vehicle to lose control. The defendants further argued that there is an infinite
number of possibilities that could have caused the vehicle to lose control, and that lack of evidence
can only be filled by speculation.
15 ¶ 34 The plaintiffs argued that the eyewitness testimony of the Woodcocks and the experts’
opinions is sufficient to raise a genuine issue of material fact as to proximate cause. The plaintiffs
asserted that defendants’ position that when the Woodcocks first observed the vehicle was “already
out of control” misstates their testimony. Instead, the Woodcocks first observed the vehicle
bouncing and it continued in its lane on a path of losing control and that the initial cause of this
was the washboard effect. Plaintiffs argued that the Woodcocks’ testimony combined with the
experts’ opinions that the only possible cause of the vertical bouncing was the washboard effect
raised a genuine issue of material fact and is not based on speculation at all. Further, they argued
that there is no evidence that the vehicle ever left the roadway or was already out of control before
the vehicle encountered the washboard effect. The Woodcocks observed the vehicle in its proper
lane on the roadway coming north and the vehicle began bouncing in the area where there is a
washboard. Thus, the circumstantial evidence in the case and the reasonable inferences that can be
drawn are sufficient to defeat a motion for summary judgment. In addition, they argued that
proximate cause is not limited to only one cause, and here, the vehicle’s speed and the washboard
defect were the two causes.
¶ 35 Toward the end of the hearing, the following exchange took place between the circuit court
and defense counsel:
“THE COURT: Well, you’re the movant at summary judgment here. And I
understand that it’s their claim to prove. But here, you know, your—the question to you is
absolutely if we just had a car wrapped around a tree, that’s not enough, you win on
summary judgment.
Absolutely if we just have a car wrapped around a tree and there’s some
washboarding nearby, you have summary judgment.
16 But we have—what we have here is one more fact which is we have a car wrapped
around a tree, a washboarding effect, and then we have people who said the car was doing
something that would indicate it was being acted upon by a washboard effect.
So why isn’t that enough? And if that’s not enough, what is the—what is the thing
that they’re missing?
MS. SHELLY [Counsel for Township defendants]: They can’t demonstrate that
that vehicle was ever in control. And their inability to do that means they can’t demonstrate
what caused it to lose control. And that means they can’t demonstrate that any action with
respect to the surface of the roadway was a proximate cause of Emily Cohoon’s injuries.”
The circuit court took the motion under advisement.
¶ 36 On December 12, 2023, the circuit court entered a written judgment granting the
defendants’ motion for summary judgment on the issue of proximate cause and denying summary
judgment on the issue of tort immunity. As to proximate cause, the circuit court found:
“[A] trier of fact cannot know whether Crowe was in control of the vehicle before the
washboard section of C.R. 600E, only that he was significantly speeding, probably
traveling in excess of 70 miles per hour, and that the vehicle experienced vertical forces
from the washboard that caused the vehicle to bounce as it traveled. Whether the washboard
effect caused him to lose control or whether it simply contributed to Crowe’s inability to
regain control is unknowable on this factual record.”
The circuit court determined that without Crowe’s testimony or an eyewitness who saw the vehicle
in control prior to the washboard defect, one is left to speculate as to what caused the vehicle to
lose control, and there are a number of possibilities, e.g., excessive speed, distraction, or even
deliberate recklessness, that cannot be ruled out on this factual record. The circuit court explained,
17 “we do not have any information about the Monte Carlo immediately before it lost control and
cannot say without guessing where it lost control.” Further, the circuit court found that without
clear causal evidence about the condition of the vehicle prior to the Woodcocks’ observations,
“C.R. 600E is at most a condition and not a cause of Emily’s injuries.” It then determined that a
trier of fact would be incapable of distinguishing “between a condition and a cause in the absence
of any evidence about the Monte Carlo’s condition prior to the Woodcock’s [sic] view of it.” The
circuit court found that the plaintiffs were unable to create a genuine issue of material fact
sufficient to survive the motion for summary judgment because neither the circumstantial evidence
of record nor the reasonable inferences drawn therefrom can eliminate the speculation required in
determining whether the vehicle was in control prior to encountering the washboard. The circuit
court therefore granted summary judgment for the defendants on the issue of proximate cause.
¶ 37 On January 5, 2024, the circuit court entered an agreed order pursuant to Illinois Supreme
Court Rule 304(a) (eff. Mar. 8, 2016) regarding its ruling on the Township defendants’ motion for
summary judgment. This appeal timely followed.
¶ 38 II. ANALYSIS
¶ 39 On appeal, the plaintiffs-appellants argue the single issue of whether the circuit court erred
in granting the Township defendants’ motion for summary judgment and finding no genuine issue
of material fact existed on the issue of proximate cause.
¶ 40 Before addressing the issue of proximate cause, we first turn to whether we have
jurisdiction to address the issue of tort immunity. In the Township defendants’ response brief on
appeal, they set forth the alternative argument that the circuit court erred in denying their motion
for summary judgment on the affirmative defense of tort immunity and assert they are entitled to
absolute immunity pursuant to sections 2-201 and 2-109 of the Tort Immunity Act (745 ILCS 10/2-
18 201, 2-109 (West 2020)). In the plaintiffs’ reply brief, they argue that issue was not raised by the
plaintiffs’ opening brief and the defendants have waived the right to challenge that portion of the
circuit court’s order by failing to file a cross-appeal.
¶ 41 “Where a general decision for the appellee contains findings unfavorable to the appellee
and no cross-appeal is filed, the adverse findings are not properly before the reviewing court.”
Cincinnati Insurance Co. v. Chapman, 2016 IL App (1st) 150919, ¶ 27 (citing Cleys v. Village of
Palatine, 89 Ill. App. 3d 630, 635 (1980)); accord Material Service Corp. v. Department of
Revenue, 98 Ill. 2d 382, 387 (1983) (findings of the trial court adverse to the appellee require the
appellee’s cross-appeal if the judgment of the trial court was at least in part against the appellee).
¶ 42 Because defendants failed to file a cross-appeal concerning the circuit court’s finding that
immunity under the Tort Immunity Act did not apply, the issue is not properly before this court
and we will not consider it.
¶ 43 We now turn to the issue of proximate cause on appeal. The circuit court granted summary
judgment because it found that the plaintiffs could not establish that the vehicle’s loss of control
was proximately caused by any negligence of the Township defendants. It determined that the lack
of evidence regarding whether the vehicle was in control prior to the washboard defect precluded
plaintiffs from demonstrating the washboard effect caused or contributed to the loss of control and
Emily’s subsequent injuries. Thus, a trier of fact is left only to speculate as to what caused the
initial loss of control, and the “only fact that can actually be counted in plaintiffs’ favor at summary
judgment is that the already-out-of-control Monte Carlo experienced vertical forces from ruts in
the road known as washboarding, which inferentially may have made regaining control of the
vehicle more difficult.”
19 ¶ 44 It is important to note that the parties heavily disagree on the inferences that can be drawn
from the evidence and deposition testimony in the case. For example, the prevailing and main
dispute is whether the vehicle was already out of control when first observed by the Woodcocks.
The defendants argue and cite deposition testimony they claim support the vehicle was already out
of control, while the plaintiffs argue that the defendants intentionally omit testimony that supports
the opposite. This theme continues throughout the issues in the case and revolves around the
observations and testimony of the Woodcocks. As a result, we have included a detailed recitation
of the facts surrounding these issues in our background section above. However, the central issue
is whether the Woodcocks’ observations of the crash and their subsequent testimony are sufficient
to raise a genuine issue of material fact regarding proximate cause in the case.
¶ 45 The plaintiffs argue in their brief on appeal that there is sufficient evidence in the case to
create a genuine issue of material fact on the issue of whether the washboard defect in the roadway
proximately caused Crowe to lose control of his vehicle and injure Emily Cohoon. They assert that
the personal observations and testimony of the Woodcocks, when properly construed, present
sufficient direct and circumstantial evidence to support a reasonable inference that the washboard
defect caused the initial loss of control. Additionally, they argue the independent opinion testimony
of the officers who investigated the crash and the experts’ opinions in the case all concluded that
the washboard caused the loss of control and were supported by reasonable inferences from the
facts.
¶ 46 Further, the plaintiffs contend that defendants’ argument that Crowe had already lost
control of the vehicle before the Woodcocks first saw it is entirely speculative itself. They argue
that there is no evidence that suggests the vehicle was out of control before it encountered the
washboard. Thus, the lack of any such indication should be an inference drawn in favor of the
20 plaintiffs for the purposes of summary judgment. In addition, Johnson testified that if there was
some other hypothetical loss of control, there would be a different outcome than what was observed
by the Woodcocks. Thus, a trier of fact could reasonably infer from the testimony of the
Woodcocks combined with the expert’s opinion that the vehicle was in control before the
washboard, that it began to bounce in the washboard area, and then the loss of control occurred.
Moreover, Johnson testified plainly that the vehicle began losing control after it began bouncing
and that the washboard is the only possible cause for the vertical bouncing.
¶ 47 Lastly, the plaintiffs argue that there is sufficient evidence in the case, beyond mere
speculation, to establish that the washboard defect was at least a cause of the collision and Emily’s
subsequent injuries. The evidence establishes far more than the simple fact that an accident
occurred, and the reasonable inferences drawn from the evidence are not based on speculation but
from the personal observations of the Woodcocks. The plaintiffs assert they have provided
substantial evidence to support that (1) there existed a washboard defect on 600 East, (2) the
washboard defect can affect a driver’s ability to control a vehicle, (3) the washboard can cause a
vehicle to bounce, (4) the vehicle was bouncing in the area where the washboard exists, (5) the
vehicle was otherwise under control when it was observed bouncing, and (6) there is no other
probable explanation for the bouncing. Thus, summary judgment was improperly granted under
¶ 48 The Township defendants argue on appeal that summary judgment was properly granted
because (1) the plaintiffs failed to present facts sufficient to establish the element of proximate
cause, (2) proximate cause cannot be premised upon speculation, conjecture, or guess, and (3) the
alleged washboard defect did nothing more than furnish a condition that made the crash possible.
They assert that there is no evidence to establish when defendant Crowe was in control of the
21 vehicle. Thus, the plaintiffs can never present a triable issue of fact as to whether Crowe lost
control due to the alleged washboard defect, because they cannot eliminate the “other myriad of
possibilities” that could cause a loss of control unrelated to the surface of 600 East. In addition,
they argue that the evidence is undisputed that the vehicle was already out of control when it was
first observed by the Woodcocks, and that the plaintiffs only now on appeal argue that the vehicle
was in control when it was first observed. The Township defendants assert that plaintiffs’ attempt
to distinguish between the vehicle “bouncing” and the vehicle “beginning to” or being in the
process of “losing control” is a distinction without a difference.
¶ 49 They also argue that Crowe and Emily have no recollection of the events, and the only
witnesses that exist can only comment on a portion of the relevant evidence as the Woodcocks did
not see the vehicle before it was bouncing and already out of control. The Woodcocks can only
speculate as to what occurred prior to them observing the vehicle crest the hill. Thus, “the fatal
flaw in Plaintiff’s case is that there is no other evidence upon which liability could be premised
against Condit Township that is not purely speculative as to the operation of the Monte Carlo
before the Woodcocks observed it ‘bouncing.’ ” (Emphasis in original.) Additionally, the
Township defendants argue that the plaintiffs “cannot create a question of fact whether 600 East
was a ‘cause’ of the crash, rather than simply a ‘condition’ which permitted the crash to occur,”
because they cannot demonstrate evidence of Crowe’s driving and the condition of the vehicle
before the Woodcocks observed it crest the hill. They assert that 600 East was at most a condition
making Emily’s injuries possible, not a cause, and that the subsequent, independent act of Crowe
excessively speeding caused Emily’s injuries. Thus, the subject roadway was a condition and not
a proximate cause. Accordingly, the Township defendants claim the circuit court properly granted
summary judgment in their favor.
22 ¶ 50 “The purpose of summary judgment is not to try a question of fact but, rather, to determine
whether a genuine issue of material fact exists.” Lewis v. Lead Industries Ass’n, 2020 IL 124107,
¶ 14. A motion for summary judgment may be granted only when “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 2020). In ruling on a motion for summary judgment, the trial court must
consider the pleadings, depositions, and affidavits strictly against the movant and in favor of the
opposing party. Kolakowski v. Voris, 83 Ill. 2d 388, 398 (1980). A triable issue precluding
summary judgment exists where material facts are disputed or where the material facts are
undisputed but reasonable persons might draw different inferences from the undisputed facts.
Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). Plaintiffs need only present evidence
sufficient to show a genuine dispute about a factual issue; they “are not required to prove their case
at the summary judgment stage.” Thompson v. Gordon, 241 Ill. 2d 428, 438 (2011). Summary
judgment “is a drastic means of disposing of litigation,” and therefore it should be granted only
when the movant’s right to the relief “is clear and free from doubt.” Purtill v. Hess, 111 Ill. 2d
229, 240 (1986). Our review of an order granting summary judgment is de novo. Crum & Forster
Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390 (1993).
¶ 51 Proximate cause has two components: cause in fact and legal causation. Lee v. Chicago
Transit Authority, 152 Ill. 2d 432, 455 (1992). When considering cause-in-fact, courts generally
employ either the traditional “but for” test or the “substantial factor” test. Turcios v. The DeBruler
Co., 2015 IL 117962, ¶ 23. Under the “but for” test, “a defendant’s conduct is not the cause of an
event if the event would have occurred without it.” (Internal quotation marks omitted.) Id. Under
the “substantial factor” test, a defendant’s negligence is a cause-in-fact if it was a material and
23 substantial factor in bringing about the injury. Id. Where reasonable minds could differ whether a
defendant’s conduct was a material and substantial factor in bringing about the injury is a question
for the jury. Lee, 152 Ill. 2d at 455.
¶ 52 Legal cause involves an assessment of foreseeability. Id. at 456. An injury is foreseeable if
a reasonable person would see it as a likely result of his or her conduct. Id. An injury is not
foreseeable if it is so highly extraordinary that imposing liability is not justified. Id. Thus,
foreseeability presents a policy question: “How far should a defendant’s legal responsibility extend
for conduct that did, in fact, cause the harm?” (Internal quotation marks omitted.) Turcios, 2015
IL 117962, ¶ 24.
¶ 53 The defendant’s negligence need not be the sole cause of the plaintiff’s injury; the
defendant may be liable if his conduct contributed in whole or in part to the injury. Calloway v.
Bovis Lend Lease, Inc., 2013 IL App (1st) 112746, ¶ 79. Proximate cause is ordinarily a question
of fact for the jury. Olson v. Williams All Seasons Co., 2012 IL App (2d) 110818 ¶ 25.
¶ 54 The plaintiff may establish proximate cause through circumstantial evidence. Mann v.
Producer’s Chemical Co., 356 Ill. App. 3d 967, 974 (2005). That is, causation may be established
by facts and circumstances that, in the light of ordinary experience, reasonably suggest that the
defendant’s negligence operated to produce the injury. Id. It is not necessary that only one
conclusion follow from the evidence. Id. But a fact cannot be established through circumstantial
evidence unless the circumstances are so related to each other that it is the only probable, and not
merely possible, conclusion that may be drawn. Wiegman v. Hitch-Inn Post of Libertyville, Inc.,
308 Ill. App. 3d 789, 796 (1999).
¶ 55 The circuit court disregarded the Woodcocks’ testimony and concluded that they were only
able to speculate as to how and where the initial loss of control occurred because they did not
24 observe the vehicle prior to it encountering the washboard area. The circuit court further found
that the plaintiffs were unable to create a genuine issue of material fact without such testimony,
and any expert opinion that set forth the “theory” that the washboard defect was a cause of the loss
of control and subsequent injuries would necessarily be based on the Woodcocks’ ”speculative”
testimony. We disagree.
¶ 56 The plaintiffs were able to present more evidence than merely the occurrence of an
accident. Although the Woodcocks cannot account for what occurred, if anything, prior to when
they first observed the vehicle, their testimony is not speculative, but is a direct, personal account
of the circumstances surrounding the incident. Lucy Woodcock’s initial statement caught by an
officer’s body camera while still on the scene, immediately after the crash, and before any legal
involvement provides: “We were comin’ [sic] up over the hill, and the car, it was coming
northbound, and it was jumping up and down probably because of the bumps. And it started
fishtailing, and I had to get over into the ditch for it to miss me. And I looked in my driver’s mirror
and I seen [sic] it lose control and roll several times.” This statement, while short and simple,
summarizes exactly what she observed and is likely truthful and accurate based on the proximity
in time it was made to the occurrence and being made on her own volition without any direction.
She observed the vehicle bouncing likely from the washboard, the vehicle then began to fishtail,
and then it lost control and crashed. From her eyewitness testimony combined with Kevin
Johnson’s expert opinion that the washboard defect is the only possible explanation for the vertical
bouncing, a fact finder could reasonably infer that the washboard defect was a cause that initiated
the vertical bouncing and sequence of events that led to the loss of control and the plaintiff’s
injuries.
25 ¶ 57 In this case, the Woodcocks had personal knowledge of a washboard defect in the area
where they observed the vehicle bouncing. That washboard defect was later observed and
documented by multiple law enforcement officials. The Woodcocks observed the vehicle bouncing
in that area and the plaintiffs’ expert testified the vertical bouncing can only be caused by the
washboard defect. The Woodcocks observed the vehicle continue to travel in its lane but bouncing,
and then lose control immediately thereafter. The close proximity between the vehicle’s passage
through the washboard area and its crash is sufficient to, at the very least, create a genuine issue
of fact about whether it crashed because of the washboard. In light of the Woodcocks’ eyewitness
testimony and viewing the evidence in the light most favorable to the plaintiffs, the plaintiffs
presented sufficient circumstantial evidence that creates a genuine issue of material fact regarding
proximate cause. Therefore, summary judgment for the defendant was improper.
¶ 58 In addition, the circuit court in its order relied on First Springfield Bank & Trust v.
Galman, 188 Ill. 2d 252 (1999), in finding that without clear causal evidence about what sent the
speeding vehicle out of control or how out of control it was before the Woodcocks observed it, the
washboard defect was at most a condition and not a cause of Emily’s injuries.
¶ 59 Illinois courts draw a distinction between a condition and a cause. Id. at 257. Condition-
versus-cause cases may be thought of as a subset of proximate cause case law. Id. at 259. The
condition-versus-cause dichotomy is consistent with the two-prong definition of proximate cause,
cause-in-fact and legal cause, set forth above. See id. at 257-59. Under both analyses, the question
is whether the defendant’s negligence was a material and substantial factor in bringing about the
injury, and, if so, was the injury of a type that a reasonable person would see as a likely result of
his or her conduct. Id. at 258-59.
26 ¶ 60 If the defendant’s negligence does nothing more than furnish a condition by which the
injury is made possible, and such condition, by the subsequent independent act of a third person,
causes an injury, then the two acts are not concurrent, and the creation of the condition is not the
proximate cause of the injury. Id. at 257. An intervening efficient cause is a new and independent
force that breaks the causal connection between the original wrong and the injury and itself
becomes the cause of the injury. Id. The test is whether the first wrongdoer reasonably might have
anticipated the intervening efficient cause as a natural and probable result of the first party’s own
negligence. Id.
¶ 61 Here, we acknowledge that the circuit court’s order indicates that it determined that the
condition of 600 East was at most a condition, not a cause; however, we are unable to find
anywhere in the order where it explicitly finds that a subsequent, intervening act of a third person
broke the causal chain and became the sole proximate cause. In this case, the only possible
intervening act would be defendant Crowe’s driving the vehicle in excess of the statutory speed
limit. But no such finding is in the circuit court’s order. Instead, it relies on the lack of evidence
and speculative nature of the Woodcocks’ testimony regarding the initial loss of control. Further,
there is no discussion in the circuit court’s order regarding the foreseeability of such an intervening
act.
¶ 62 The “condition vs. cause” approach does not end with the identification of an intervening
cause. Instead, consideration must be given as to whether “the first wrongdoer might have
reasonably anticipated the intervening cause as a natural and probable result of the first party’s
own negligence.” Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 317 (1942). Only
if the third party’s act is “the immediate cause of the injury and is such as in the exercise of
reasonable diligence would not be anticipated and the third person is not under the control of the
27 one guilty of the original wrong, the connection is broken and the first act or omission is not the
proximate cause of the injury.” Id. An intervening act will not break the chain of legal causation
“if the intervening act was itself probable, or foreseeable by the first wrongdoer.” Green v. Welts,
130 Ill. App. 2d 600, 604 (1970). “To escape liability, defendant must demonstrate that the
intervening event was unforeseeable as a matter of law.” Mack v. Ford Motor Co., 283 Ill. App.
3d 52, 57 (1996). In determining whether an intervening act was foreseeable, “the precise nature
of the intervening cause need not be foreseen [citation], and where varying inferences are possible,
foreseeability is a question for the jury.” Id.
¶ 63 On appeal, the Township defendants contend that it was not reasonably foreseeable that
defendant Crowe would “drive up to 84 miles per hour on 600 East and fail to exercise reasonable
care” in operating the vehicle. The gist of defendants’ argument is that negligent driving breaks
the causal chain between the first defendant’s negligence and the plaintiff’s injuries “as a matter
of law.” Although defendants suggest that speeding on a country road without a posted speed limit
is not foreseeable, we find it creates a genuine issue of material fact that should be decided by the
trier of fact and not on summary judgment.
¶ 64 Foreseeability is not only an objective inquiry, but it is also context dependent. Inman v.
Howe Freightways, Inc., 2019 IL App (1st) 172459, ¶ 71. Negligent driving is not some one-size-
fits-all proposition or a talismanic phrase that will break every causal chain in every situation.
Kramer v. Szczepaniak, 2018 IL App (1st) 171411, ¶ 56. Some courts have even held that “[i]t is
common knowledge that some drivers of automobiles exceed the posted speed limit on public
highways.” Huff v. Goldcoast Jet Ski Rentals, Inc., 515 So. 2d 1349, 1351 (Fla. Dist. Ct. App.
1987).
28 ¶ 65 Here, the speed of the vehicle is unknown. The crash experts have calculated and given an
opinion as to a range of speed the vehicle was likely traveling based on the tire marks in the
roadway, path of travel, and damage to the vehicle. However, there are competing ranges among
experts, but all agree the vehicle was traveling in excess of the statutory speed limit of 55 miles
per hour. Further, defendant Scudder testified that he is “fully aware” that people “drive faster than
what the state says it’s supposed to be driven.” In addition, he agreed that it is quite common for
vehicles to travel in excess of 55 miles per hour on township roads, including 600 East. In light of
all of this, including the conflicting evidence regarding the speed of the vehicle at the time of the
accident, we find that there is a genuine issue of material fact regarding the actual speed of the
vehicle and find that a trier of fact should be permitted to determine whether that speed was
reasonably foreseeable or if it was a superseding, intervening act. Thus, the circuit court’s order
granting summary judgment on this basis was improper.
¶ 66 III. CONCLUSION
¶ 67 In light of the foregoing standards and considerations, we believe, after careful review of
the record in a light most favorable to the plaintiffs, that there is sufficient circumstantial evidence
to raise a genuine issue of material fact on the issue of proximate cause as alleged by the plaintiffs
in their complaint. Therefore, we reverse the judgment of the circuit court of Champaign County
and remand the matter for further proceedings.
¶ 68 Reversed and remanded.