Filed 3/23/10 NO. 4-09-0407
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
SHAVONNE L. EVANS, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Macon County BRAD BROWN, Special Administrator for ) No. 06L122 the Estate of LYNN R. ROMANN, Deceased; ) and TURBO PLUS, INC., ) Honorable Defendants-Appellees. ) Albert G. Webber, ) Judge Presiding. _________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In September 2006, plaintiff, Shavonne L. Evans, sued
defendants, Brad Brown, special administrator for the estate of
Lynn R. Romann, deceased, and Turbo Plus, Inc. (Turbo), claiming
that in February 2006, Romann, acting as Turbo's agent, negli-
gently operated his company car, which proximately caused her
serious injuries.
In October 2008, defendants moved for summary judgment
under section 2-1005 of the Code of Civil Procedure (735 ILCS
5/2-1005 (West 2008)), alleging that Romann's unexpected and
unforeseen loss of consciousness, which caused him to lose
control of the car he was driving, was an "act of God." Follow-
ing a May 2009 hearing, the trial court granted defendants'
summary-judgment motion.
Plaintiff appeals, arguing that (1) summary judgment
was not appropriate based on an act of God because she had
established a prima facie case of negligence and (2) Romann's
statement that he "fell asleep" prior to the collision created a genuine issue of material fact. Because we agree with both of
these arguments, we reverse and remand for further proceedings.
I. BACKGROUND
A. The Events Surrounding the Collision
The following facts were gleaned from the parties'
pleadings and other supporting documents filed with the trial
court.
On February 11, 2006, Romann, who was 72 years old and
worked as a used car salesman for Turbo, informed Turbo's owner,
Charles Landreth, that he was going to Decatur. Landreth stated
that although he had, on previous occasions, allowed Romann to
drive cars owned by Turbo for personal errands, he did not (1)
give Romann permission to drive a Turbo car to Decatur or (2)
know, as he later discovered, that Romann intended to visit his
girlfriend in Decatur.
That same evening, plaintiff was driving on a road in
Decatur, which she described as a four-lane city street with two
lanes in each direction. As plaintiff drove eastbound in the
right lane, she noticed that a car traveling westbound--later
determined to have been driven by Romann--abruptly swerved over
the centerline and hit another car traveling in the eastbound
lane next to her. The eastbound car then hit plaintiff's car,
which caused plaintiff to hit her head on the driver's side door
window. As a result, plaintiff suffered serious injuries.
Because the collision rendered Romann's car inoperable,
he called a friend and coworker, Paul Eldridge, to drive him
- 2 - home. In that phone call, Romann said that he "went to sleep"
and had a car accident. When Eldridge arrived, Romann told him
that (1) he did not know what happened and (2) he had "blacked
out, fell asleep." Eldridge tried to persuade Romann to go to
the hospital. Romann refused, stating that the car's air bags
had protected him and "he was fine." Eldridge drove Romann home,
and during the drive, Eldridge noticed Romann's chest had been
bruised, and Romann complained that his chest was "sore." After
leaving Romann's home, Eldridge called Landreth to (1) inform him
about the collision and (2) recommend that he send someone to
check on Romann.
Landreth called Romann that same night and asked him
about the collision. Romann told Landreth that he had "blacked
out" and did not remember anything. Landreth urged Romann to
seek medical treatment, but he refused. Later that same night,
another coworker, Jennifer St. Clair, visited Romann at his home.
St. Clair attempted to give Romann some food, but he told her
that he was (1) not hungry, (2) not feeling well, and (3) going
to bed. The following morning, St. Clair informed Landreth that
Romann was not breathing. Landreth went to Romann's home, where
he determined that Romann had died.
B. The Cause of Romann's Death
On February 13, 2006, William K. Drake, a board-certi-
fied pathologist, performed an autopsy on Romann. In his deposi-
tion, Drake opined to a reasonable degree of medical certainty
that the February 11, 2006, collision and Romann's eventual
- 3 - death, was the "logical consequence" of a heart attack that
Romann had suffered about a week before his death. In particu-
lar, Drake explained that Romann had a small, untreated heart
attack, which resulted in the gradual degradation of his heart-
muscle wall due to oxygen deprivation that occurred over a 7- to
10-day period. The resulting compromised tissue then ruptured,
causing Romann's instantaneous death.
Drake also opined that just prior to the collision,
Romann suffered a "Stokes Adams" attack--that is, a sudden change
in cardiac rate or rhythm output--which was caused by his earlier
heart attack. Drake further explained that this attack caused a
sudden drop in Romann's blood pressure, which resulted in
Romann's experiencing a temporary loss of consciousness.
At Drake's deposition, plaintiff questioned Drake
regarding the pain that Romann's heart attack would have in-
flicted, as follows:
"[PLAINTIFF'S COUNSEL:] *** [T]he event
that took place approximately [7] to [10]
days before [Romann's] death, can you de-
scribe *** what that would have consisted of?
[DRAKE:] *** I would have thought that
[Romann] would have complained of chest pain.
*** [S]ince it[ was] a small heart attack, he
should have had chest pain. He would have
had pain somewhere. It might have been in
his jaw or his shoulder ***, but [Romann]
- 4 - should have had some discomfort as a result
of this heart attack. All people do. But we
had no history of it.
* * *
[PLAINTIFF'S COUNSEL:] *** [W]ould this
have been severe pain [or] light pain[? I]s
there any way to tell?
[DRAKE:] *** [T]he pain is always vari-
able, but people express this as a squeezing,
pressure-type discomfort that is very un-
pleasant to them. *** So we would assume
that [Romann] would have had these symptoms.
As a matter of fact, [Romann] would *** have
had symptoms.
Now, [Romann] may [have been] stoic. He
may have thought it was indigestion, you
know, all kinds of other things.
[PLAINTIFF'S COUNSEL:] And those would
have been the type of symptoms *** that a
person should have sought medical care [for]?
[DRAKE:] Ordinarily that's correct.
But people don't, I will assure you. ***
[PLAINTIFF'S COUNSEL:] And it was inev-
itable in your opinion that he had that
- 5 - pain[?]
[DRAKE:] He had this pain. He would
have had pain[.]
[PLAINTIFF'S COUNSEL:] If [Romann]
would have sought medical care at that time,
then intervention could have taken place and
the [heart-muscle degradation] may not have
developed?
[DRAKE:] *** [I]f [Romann] had pre-
sented in our emergency room, he would have
been recognized[.] *** We do everything in
our power to prevent this type of event from
occurring. *** This [was] a small [heart
attack at] the back of the heart *** so it's
one that I suppose [Romann] could have con-
fused with indigestion.
[PLAINTIFF'S COUNSEL:] This pain that
you're talking about, that would have lasted
over what period of time in your opinion?
[DRAKE:] I think [Romann would have
had] pain through this whole period."
In response to further questioning by defense counsel
regarding Romann's death, Drake stated, in pertinent part, that
(1) Romann would not have detected that he had a heart attack;
(2) Romann would not have expected the Stokes Adams attack; (3)
- 6 - Romann complained of neck pain after the collision, which was
"very likely" caused by his heart attack; and (4) it was "very
likely" that Romann experienced pain on more than one occasion
during the 7- to 10-day period following his heart attack.
C. Procedural History
1. Defendants' Summary-Judgment Motion
based upon an "act of God." Specifically, defendants claimed
that an act of God--that is, Romann's unexpected and unforeseen
loss of consciousness--was the sole and proximate cause of the
collision.
2. Plaintiff's Memorandum of Law in Opposition to Defendants' Summary-Judgment Motion
In December 2008, plaintiff filed a memorandum of law
in opposition to defendant's summary-judgment motion, in which
she set forth Eldridge's deposition testimony that Romann told
him that prior to the collision, he "blacked out, fell asleep."
Plaintiff also alleged that because the uncontradicted evidence
showed that the collision with Romann--who had been driving in
the opposing lane--occurred on her side of the road, she had
established a prima facie case of negligence. Thus, plaintiff
asserted that defendants' claim of an affirmative defense based
upon an act of God merely raised a genuine issue of material
fact--namely, whether her injuries were caused by Romann's
negligence or an act of God.
In the alternative, plaintiff asserted that summary
judgment was inappropriate because issues of material fact
- 7 - remained regarding whether Romann ignored symptoms related to his
heart attack, which precluded any act-of-God defense. In support
of her argument, plaintiff relied on Drake's deposition testimony
that Romann would have had heart-attack symptoms prior to the
collision and that such symptoms would have caused a reasonable
person to seek medical care.
3. The Hearing on Defendants' Summary-Judgment Motion
At the December 2008 hearing on their motion for
summary judgment, defendants argued that because (1) Drake
testified that Romann's Stokes Adams attack was "unexpected" and
(2) no medical evidence was presented showing Romann had prior
blackouts, summary judgment was appropriate. In response,
plaintiff argued consistently with her memorandum in opposition
to the summary-judgment motion, adding that although Romann told
Landreth that he had blacked out, he had also told Eldridge that
he had fallen asleep prior to the collision.
After considering the parties' evidence and counsel's
arguments, the trial court took the matter under advisement. In
May 2009, the court entered a docket entry order in which it
stated, in pertinent part, the following:
"The accident occurred on February 11, 2006,
when Romann's vehicle crossed the centerline
of a four[-]lane city street in Decatur and
impacted the [p]laintiff's vehicle which was
traveling in the opposite direction. Romann
told a co[]worker at Turbo who arrived at the
- 8 - accident scene [that] he had a 'blackout,
[fallen] asleep' just prior to the accident.
He refused any medical care. The following
day[,] Romann was found dead at his home.
*** Drake testified that Romann might have
experienced pain or discomfort in his chest,
back, shoulder, arm, or jaw. Its nature[,]
intensity[,] and duration cannot be known.
Further, Romann was 72 years old at the
[time] in question and it is common for per-
sons of that age to experience similar pain
of non-cardiac origin. Only in retrospect
can Romann's sudden loss of consciousness be
seen as unforeseeable and unpreventable. ***
Plaintiff does not so much dispute any facts
here as to attempt to impose on Romann a duty
of medical self-diagnosis unsupported by case
authority. As any claim against [defendants]
is based on the alleged negligence of Romann,
so it too must fail. Summary judgment is
therefore granted in favor of ***
[d]efendants and against *** [p]laintiff."
This appeal followed.
III. THE TRIAL COURT'S GRANT OF SUMMARY JUDGMENT
A. Summary Judgment and the Standard of Review
The purpose of a summary-judgment proceeding is not to
- 9 - try an issue of fact but, instead, to determine whether a genuine
issue of material fact exists. Village of Montgomery v. Aurora
Township, 387 Ill. App. 3d 353, 360, 899 N.E.2d 567, 573 (2008).
Although summary judgment aids in the expeditious disposition of
a lawsuit, it is a drastic means of disposing of litigation and
should be allowed only when the right of the moving party is
clear and free from doubt. Henry v. Panasonic Factory Automation
Co., 396 Ill. App. 3d 321, 327, 917 N.E.2d 1086, 1091 (2009).
Thus, "[s]ummary judgment is appropriate where the pleadings,
depositions, admissions[,] and affidavits on file, viewed in the
light most favorable to the nonmoving party, reveal that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Kajima
Construction Services, Inc. v. St. Paul Fire & Marine Insurance
Co., 227 Ill. 2d 102, 106, 879 N.E.2d 305, 308 (2007); see 735
ILCS 5/2-1005(c) (West 2008).
"'The burden of proof and the initial burden of produc-
tion in a motion for summary judgment lie with the movant.'"
Kleiss v. Bozdech, 349 Ill. App. 3d 336, 349, 811 N.E.2d 330, 340
(2004), quoting Pecora v. County of Cook, 323 Ill. App. 3d 917,
933, 752 N.E.2d 532, 545 (2001). "Where the facts could lead a
fair-minded person to draw more than one conclusion or inference,
summary judgment must be denied." Deliberto v. Stahelin, 171
Ill. App. 3d 355, 357, 525 N.E.2d 584, 585 (1988).
If a defendant raises an affirmative defense, his
pleading and supporting documentation need only establish his
- 10 - factual position on that affirmative defense. Willett v. Cessna
Aircraft Co., 366 Ill. App. 3d 360, 369, 851 N.E.2d 626, 634
(2006). Although a plaintiff is not required to prove her case
at the summary-judgment stage, to survive a summary-judgment
motion as the nonmoving party, she must present a factual basis
that would arguably entitle her to a judgment. Fichtel v. Board
of Directors of River Shore of Naperville Condominium Ass'n,
Hillcrest Management Co., 389 Ill. App. 3d 951, 956, 907 N.E.2d
903, 907 (2009). We review de novo the trial court's grant of
summary judgment. Reppert v. Southern Illinois University, 375
Ill. App. 3d 502, 504, 874 N.E.2d 905, 907 (2007).
B. Plaintiff's Claims That the Trial Court Erred by Granting Defendants' Summary-Judgment Motion
Plaintiff argues that the trial court erred by granting
summary judgment. Specifically, plaintiff contends that (1)
summary judgment was not appropriate to preclude liability based
on an act of God because she had established a prima facie case
of negligence and (2) Romann's statement that he "fell asleep"
prior to the collision created a genuine issue of material fact.
We address plaintiff's contentions in turn.
1. Plaintiff's Contention That She Established a Prima Facie Case of Negligence
Prior to reaching the merits of plaintiff's first
contention, we address her claim that the undisputed evidence
presented in this case established a prima facie case of negli-
gence against Romann. In support of that contention, plaintiff
relies on the supreme court's decision in Osborne v. O'Brien, 114
- 11 - Ill. 2d 35, 499 N.E.2d 455 (1986).
In Osborne, 114 Ill. 2d at 37, 499 N.E.2d at 456, the
plaintiff sued the defendant for injuries he sustained while he
was a passenger in a van that the defendant struck with his car.
The undisputed facts revealed that the defendant was driving to
work on a curvy, hilly, two-lane road, which descended 600 feet.
Osborne, 114 Ill. 2d at 37, 499 N.E.2d at 456. As the defendant
drove down the hill, his car slid on some ice, and despite his
attempts to take corrective action, he crossed the centerline of
the road and hit the van that had been stopped in the opposing
lane. Osborne, 114 Ill. 2d at 37-38, 499 N.E.2d at 456. The
record also showed that although the weather was damp, the
defendant had no reason to suspect that the road would be icy.
Osborne, 114 Ill. 2d at 37, 499 N.E.2d at 456.
Following a trial in which the jury returned a verdict
in the defendant's favor, the plaintiff filed a posttrial motion
requesting entry of a judgment notwithstanding the verdict or in
the alternative, a new trial. Osborne, 114 Ill. 2d at 39, 499
N.E.2d at 457. The trial court later denied the plaintiff's
posttrial motion. Osborne, 114 Ill. 2d at 39, 499 N.E.2d at 457.
The supreme court affirmed and, as part of its analysis, deter-
mined that the defendant had introduced evidence sufficient to
submit to a jury on the question of whether the skid of his car
was the result of some cause other than his negligence. Osborne,
114 Ill. 2d at 42, 499 N.E.2d at 458. In rejecting the plain-
tiff's argument that the evidence overwhelmingly favored granting
- 12 - her posttrial motion, the supreme court distinguished the two
cases that the plaintiff relied upon (Sughero v. Jewel Tea Co.,
37 Ill. 2d 240, 226 N.E.2d 28 (1967), and Calvetti v. Seipp, 37
Ill. 2d 596, 227 N.E.2d 758 (1967)), as follows:
"Simply stated, the rationale of Sughero
and Calvetti is that upon a plaintiff's show-
ing that a collision between vehicles occu-
pied by a plaintiff and driven by a defendant
occurred on the plaintiff's side of the road,
the plaintiff has made a prima facie case of
the defendant's negligence. It is then in-
cumbent on the defendant to adduce evidence
to show that his vehicle was in that position
because of some reason other than his own
negligence. If he makes a showing sufficient
to raise an issue of fact, the question of
his negligence is for the jury." Osborne,
114 Ill. 2d at 41, 499 N.E.2d at 458.
In this case, the uncontradicted evidence showed that
on the evening of February 11, 2006, (1) plaintiff was driving
eastbound on a four-lane city street at the same time Romann was
driving westbound on that same street, (2) Romann's car abruptly
swerved over the centerline of the road and hit another car
traveling eastbound, (3) that collision caused the eastbound car
to collide with plaintiff's car, and (4) plaintiff sustained
injuries as a result of the collision. Thus, we agree with
- 13 - plaintiff that the supreme court's decision in Osborne controls.
Accordingly, plaintiff has established a prima facie case of
negligence.
2. Plaintiff's Contention That Summary Judgment Was Not Appropriate To Preclude Liability Based on an Act of God
Plaintiff first contends that summary judgment was not
appropriate to preclude liability based on an act of God because
she had established a prima facie case of negligence. Specifi-
cally, plaintiff asserts that the record shows a genuine issue of
material fact--namely, whether her injuries were proximately
caused by Romann's negligence or as defendants claim, an act of
God--which precludes summary judgment. In support of her conten-
tion, plaintiff relies on the Second District decision in Burns
v. Grezeka, 155 Ill. App. 3d 294, 508 N.E.2d 449 (1987).
Relying on the Second District's decision in Grote v.
Estate of Franklin, 214 Ill. App. 3d 261, 573 N.E.2d 360 (1991),
defendants respond that Drake's deposition testimony was "suffi-
cient to support summary judgment." We agree with plaintiff.
a. The Elements of an Affirmative Defense Based on an Act of God
"A loss or injury is due to the act of God, when it is
occasioned exclusively by natural causes such as could not be
prevented by human care, skill[,] and foresight." Wald v.
Pittsburg, Cincinnati, Chicago & St. Louis R.R. Co., 162 Ill.
545, 551, 44 N.E. 888, 889 (1896); see McClean v. Chicago Great
Western Ry. Co., 3 Ill. App. 2d 235, 246-47, 121 N.E.2d 337, 342
(1954) (injuries are caused by acts of God when such injuries are
- 14 - beyond the power of human agency to foresee or prevent). A
sudden illness or death that renders a driver incapable of
controlling his car, provided that the event is unforeseeable and
beyond the power of human intervention to prevent, is an act of
God. Hoggatt v. Melin, 29 Ill. App. 2d 23, 31, 172 N.E.2d 389,
392 (1961). However, liability is only precluded if the alleged
act of God constitutes the sole and proximate cause of the
injuries. See Villegas v. Kercher, 11 Ill. App. 2d 282, 292, 137
N.E.2d 92, 97 (1956) (loss or injury is act of God if it is
caused exclusively by natural causes).
b. The Second District's Decision in Burns
In Burns, 155 Ill. App. 3d at 296, 508 N.E.2d at 450,
the plaintiff was a passenger in a vehicle that was stopped at a
red light when it was struck in the rear by a car driven by the
defendant's decedent. The driver of the car that the decedent
hit stated in his deposition that he first observed the decedent
about 15 seconds after the collision and noted that his eyes were
open but rolled back, and his arms were up; shortly thereafter,
the decedent was unconscious and drooling, with his eyes closed
and his arms down. Burns, 155 Ill. App. 3d at 296, 508 N.E.2d at
450. When the plaintiff saw the decedent, he was gasping for
air, was unconscious, and his skin was a grayish-blue color.
Burns, 155 Ill. App. 3d at 296, 508 N.E.2d at 450.
According to the doctor who examined the decedent
shortly thereafter but prior to his death, the decedent told the
doctor that he had suddenly become weak and passed out while
- 15 - driving his car. Burns, 155 Ill. App. 3d at 296-97, 508 N.E.2d
at 450. The doctor (1) explained that the decedent was suffering
from an abdominal aneurysm, which had been present for the past
two or three years and had spontaneously ruptured; (2) stated
that the rupture had caused the decedent's blood pressure to
drop, which rendered him unconscious about 45 to 60 seconds
later; (3) opined that it was "most probable that the aneurysm
had preceded and caused the accident"; and (4) stated that the
decedent "would not have experienced any forewarning of the
rupture." Burns, 155 Ill. App. 3d at 296-97, 508 N.E.2d at 450.
The defendant filed a motion for summary judgment
(Burns, 155 Ill. App. 3d at 297, 508 N.E.2d at 451), in which she
asserted an affirmative defense based on an act of God (Burns,
155 Ill. App. 3d at 299, 508 N.E.2d at 452). Specifically, the
defendant claimed that the collision at issue was not due to the
decedent's negligence but, instead, was caused by the decedent's
abdominal aneurysm. Burns, 155 Ill. App. 3d at 299, 508 N.E.2d
at 452.
In responding to the defendant's motion for summary
judgment, the plaintiff filed additional excerpts from the
doctor's deposition and a police report. Both indicated that the
decedent had fainted while at the red light. Burns, 155 Ill.
App. 3d at 297, 508 N.E.2d at 451. The additional excerpts also
showed that the doctor opined, to a reasonable degree of medical
certainty, that it was possible the accident had preceded and
caused the decedent's rupture. Burns, 155 Ill. App. 3d at 297,
- 16 - 508 N.E.2d at 451.
The trial court granted the defendant's motion for
summary judgment, finding no genuine issue of material fact, and
the Second District reversed. Burns, 155 Ill. App. 3d at 299,
508 N.E.2d at 452. The Second District first concluded that the
plaintiff had (1) established a prima facie case of negligence
against the decedent and (2) presented sufficient facts to
establish a cognizable cause of action (Burns, 155 Ill. App. 3d
at 298, 508 N.E.2d at 452).
The Second District then considered whether defendant's
affirmative defense based on an act of God established as a
matter of law that the decedent was not responsible for the
collision. Burns, 155 Ill. App. 3d at 299, 508 N.E.2d at 452.
The court concluded that the evidence presented did not demon-
strate as a matter of law that the aneurysm rupture caused the
accident. Burns, 155 Ill. App. 3d at 299, 508 N.E.2d at 452. In
particular, the Second District determined that the doctor's
contradictory testimony did not establish when the rupture
occurred. Burns, 155 Ill. App. 3d at 299, 508 N.E.2d at 452.
The appellate court also concluded that the decedent could have
been considered negligent for driving in an impaired state of
health or for failing to pull his vehicle over to the side of the
road in the 45 to 60 seconds before the rupture rendered him
unconscious. Burns, 155 Ill. App. 3d at 299, 508 N.E.2d at 452.
c. The Second District's Decision in Grote
In Grote, 214 Ill. App. 3d at 262, 573 N.E.2d at 361,
- 17 - the plaintiff filed a complaint against the defendant, decedent's
estate, alleging that the decedent had negligently operated her
car, causing it to cross the centerline of the road and hit the
plaintiff's car. The uncontradicted expert deposition testimony
of a pathologist and cardiologist showed that the decedent
suffered intracranial bleeding, which caused her to promptly, and
without warning, lose consciousness. Grote, 214 Ill. App. 3d at
267-68, 573 N.E.2d at 364. In addition, witnesses to the colli-
sion provided depositions consistent with the medical expert's
opinions. Grote, 214 Ill. App. 3d at 273, 573 N.E.2d at 368.
The defendant filed an affirmative defense alleging an
act of God was the sole and proximate cause of the accident.
Grote, 214 Ill. App. 3d at 262, 573 N.E.2d at 361. The defendant
then moved for summary judgment on that affirmative defense,
which the trial court later granted. Grote, 214 Ill. App. 3d at
262-63, 573 N.E.2d at 361.
On appeal, the plaintiff argued, in pertinent part,
that "an affirmative defense based upon an '[a]ct of God' cannot
be the basis for a summary judgment." Grote, 214 Ill. App. 3d at
271, 573 N.E.2d at 366. The Second District in Grote disagreed
and distinguished the cases the plaintiff relied upon for that
proposition. Grote, 214 Ill. App. 3d at 271, 573 N.E.2d at 366-
67. The court also concluded that summary judgment is not
precluded when the movant raises an affirmative defense based
upon an act of God. Grote, 214 Ill. App. 3d at 273, 573 N.E.2d
at 368.
- 18 - One of the cases that the Second District in Grote
distinguished was its earlier decision in Burns. Grote, 214 Ill.
App. 3d at 273, 573 N.E.2d at 368. To that end, the court stated
the following:
"As with the other cases cited by [the]
plaintiff, we do not find the court's opinion
in Burns as precluding summary judgment when
an '[a]ct of God' defense is raised. Fur-
ther, we find the facts in Burns to be dis-
tinguishable from the case at bar. While the
opinion of the doctor in Burns was contradic-
tory, the experts' opinions in the present
case were consistent." Grote, 214 Ill. App.
3d at 273, 573 N.E.2d at 368.
In affirming the trial court's grant of summary judg-
ment in the defendant's favor, the Second District concluded that
the uncontradicted evidence showed that the accident was caused
by defendant's intracranial hemorrhage that occurred without
warning. Grote, 214 Ill. App. 3d at 274, 573 N.E.2d at 368.
d. Plaintiff's Assertion That a Genuine Issue of Material Fact Remained Unresolved
As we have previously stated, plaintiff asserts that
summary judgment is not appropriate to preclude liability based
on an act of God because she had established a prima facie case
of negligence. Specifically, plaintiff posits, in pertinent
part, that as in Burns, Drake's testimony--on which both parties
rely--suggests that Romann's loss of consciousness was neither
- 19 - unforeseeable nor beyond his power to prevent. Thus, plaintiff
claims that the record shows a genuine issue of material fact--
namely, whether the collision was caused by Romann's negligence
or, as defendants claim, by Romann's Stokes Adams attack.
Defendants respond that because Drake's uncontradicted
testimony established that Romann's Stokes Adams attack was
immediate and unforeseeable, this case is similar to Grote and,
thus, the trial court did not err by granting summary judgment.
However, because the record here shows that Drake's deposition
testimony was not unequivocal, defendants' reliance on Grote is
misplaced.
In this case, Drake testified, in part, to the follow-
ing: (1) Romann had a small heart attack about 7 to 10 days
before his death; (2) Romann would not have detected that he had
a heart attack; (3) Romann would have experienced pain from his
heart attack throughout the 7- to 10-day period that followed;
(4) the pain would have most likely occurred in his jaw, shoul-
der, or chest; (5) Romann complained of neck pain after the
collision that "very likely" resulted from his heart attack; (6)
it was "very likely" that Romann experienced pain on more than
one occasion; (7) the severity of the pain Romann experienced
would have varied; (8) Romann may have "chalked up" the pain to
indigestion or old age; (9) no evidence was presented that Romann
had pain during the period; (10) Romann should have sought
medical care for his pain; (11) medical intervention could have
prevented further heart damage; (12) just prior to the collision,
- 20 - Romann suffered a Stokes Adams attack that caused him to lose
consciousness; (13) Romann would not have expected the Stokes
Adams attack; and (14) Romann's Stokes Adams attack was caused by
his heart attack.
Here, despite defendants' claim that Drake's testimony
was unequivocal and established that Romann's Stokes Adams attack
was immediate and unforeseeable, the following reasonable infer-
ences, at a minimum, could have been adduced from his testimony:
(1) Romann experienced noticeable pain during the 7 to 10 days
following the heart attack, which he negligently ignored; (2)
Romann experienced mild pain during the 7 to 10 days following
the heart attack that he surmised was due to his age or some
other harmless reason; or (3) Romann did not experience any pain
and, thus, did not suspect his medical condition was compromised.
These alternative possible inferences (1) presented a genuine
issue of material fact that precluded summary judgment and (2)
negated the affirmative defense based upon an act of God because
Romann's Stokes Adams attack was not the sole and proximate cause
of the collision.
Moreover, despite the Second District's decision in
Grote, we have strong reservations that, as a matter of law, an
affirmative defense based on an act of God could ever prevail in
a summary-judgment context when the plaintiff's injury arose out
of an automobile accident. To conclude that a natural event was
the sole and proximate cause of such an injury requires irrefut-
able and unequivocal evidence, an extremely rare commodity.
- 21 - Thus, although Grote presents a strong case, we note that even
when the evidence presented is seemingly unequivocal, different
inferences may still reasonably flow. See Williams v. Manches-
ter, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 9 (2008) ("A triable
issue precluding summary judgment exists where the material facts
are disputed or where, the material facts being undisputed,
reasonable persons might draw different inferences from the
undisputed facts").
3. Plaintiff's Contention That Romann's Statements Created a Genuine Issue of Material Fact
Plaintiff also contends that Romann's statements that
he "fell asleep" prior to the collision created a genuine issue
of material fact. We agree.
We note defendants did not address this contention in
their brief. Instead, throughout these proceedings, defendants
referred to this matter only once, which was at the December 2008
hearing on their summary-judgment motion, when the following
exchange took place after plaintiff finished her argument in
opposition to summary judgment:
"THE COURT: *** [Defense counsel, the
court will] let you reply. [The court is]
interested *** in the suggestion that ***
Romann told a coworker, [']well, maybe I fell
asleep, maybe I blacked out.['] Is that not
material fact[s] in question?
[DEFENSE COUNSEL:] One, no it's a con-
clusion as to some medical condition that at
- 22 - this point in time, *** Romann didn't know
that he had. So how do you--
THE COURT: You can fall asleep and also
pass out for unrelated reasons, can't you?
[DEFENSE COUNSEL:] Well[,] is
[']fall[ing] asleep['] colloquial for
[']blacking out[']? I mean--
THE COURT: Well, he drew a distinction
apparently, in his discussion with his
coworker.
[DEFENSE COUNSEL:] I don't know that.
*** I don't know if that's a conclusion and
that's speculation. And the question--
THE COURT: Is that not for a trier of
fact to determine whether he fell asleep or
blacked out?
[DEFENSE COUNSEL:] It will never be
admissible. Dead Man's Act will keep that
out.
THE COURT: Okay.
[DEFENSE COUNSEL:] So the fact of the
matter is *** that will never be evidence.
We resort back to the observations of third
parties for what was, by [Romann], the abrupt
maneuver across many lanes of travel, by the
medical testimony that basically has opened
- 23 - up the can and looked in and said [Romann]
had the medical condition that would cause
the immediate black out. And what was re-
ported was consistent with what the pathology
would show. So that's the admissible evi-
dence that fails to present a triable issue
in favor of a negligence claim."
The trial court was correct to be concerned that
whether Romann fell asleep or blacked out was an issue for the
trier of fact to determine. The record is not clear to what
extent, if any, the court accepted defense counsel's musings that
Romann's statements to his coworker would not be admissible under
the Dead-Man's Act (Act) (735 ILCS 5/8-201 (West 2008)), but
given the important nature of this testimony, it was not handled
appropriately. Indeed, the evidence in question was potentially
dispositive.
At a hearing on a motion for summary judgment, either
party may wish to limit or remove specific evidence from the
trial court's consideration. That is, the moving party (here,
defendants) may wish to preclude the trial court from considering
evidence that the opposing party (here, plaintiff) may offer in
opposition to the motion for summary judgment. In this case,
defendants did not want the court to consider the statements
Romann made to Eldridge that he "went to sleep" and had a car
accident, and later that he "blacked out, fell asleep." (In an
appropriate case, of course, the nonmoving party may similarly
- 24 - wish to preclude the court from considering some evidence that
the moving party was relying upon.)
However, asking the trial court not to consider certain
evidence when it resolves a motion for summary judgment must be
based upon more than mere musings (as occurred here) at the time
the motion is heard. Instead, if defendants here intended to
preclude the court's consideration of Romann's statements to
Eldridge, they should have filed an appropriate motion to that
effect in advance of the hearing so that both the court and
plaintiff would be put on notice of defendants' position. Then,
the better practice would be for the matter to be litigated in a
separate, formal hearing prior to the summary-judgment hearing
itself. Alternatively, if the court believes the evidentiary
matter at issue is not complicated, then the court in its discre-
tion may address that matter immediately prior to the summary-
judgment hearing or during that hearing itself, provided, of
course, that the opposing party has received sufficient notice of
the motion. Further, the moving party should seek--and the trial
court should provide--a definitive ruling on the evidentiary
matter at issue. Following this procedure would not only make
for a better record at the trial level, it would also provide
courts of review with a clear picture of (1) the parties' posi-
tions at trial and (2) the trial court's ruling.
If the evidentiary matter at issue is more involved,
then the party seeking to bar the trial court's consideration of
the evidence should make a motion to strike or bar the evidence
- 25 - and set the matter for a hearing prior to the hearing on the
motion for summary judgment. This would be the preferred course,
for instance, if a party wished to challenge expert testimony
proffered by the other side in a summary-judgment context. See
Kleiss, 349 Ill. App. 3d at 351, 811 N.E.2d at 341-42.
Here, defendants' bald, conclusory assertions regarding
the admissibility of Romann's statements were insufficient.
Because defendants failed to raise their contention prior to the
summary-judgment hearing that the Act precluded the trial court's
consideration of Romann's statements, plaintiff never received
advance notice of this contention and appeared unprepared to
address it at the hearing. The court likewise seemed unprepared
to assess defendants' Act contention. Thus, no one should be
surprised under these circumstances that the record does not
contain any definitive ruling by the trial court regarding
defendants' contention.
Turning to the merits of plaintiff's argument that
Romann's statements created a genuine issue of material fact, we
note that the trial court's docket entry granting summary judg-
ment mentioned these statements in its summary of the evidence
presented. Accordingly, these statements were part of the
evidentiary material before the court when it granted defendants'
motion for summary judgment. See McCullough v. Gallaher & Speck,
254 Ill. App. 3d 941, 947, 627 N.E.2d 202, 207 (1993) ("The scope
of appellate review of a summary[-]judgment motion is limited to
the record as it existed at the time the trial court ruled"). We
- 26 - agree with plaintiff that Romann's statements that he may have
fallen asleep prior to the collision raise a genuine issue of
material fact that precludes summary judgment.
III. EPILOGUE
In this opinion, we have discussed plaintiff's two
arguments as to why the trial court erred by granting defendants'
motion for summary judgment, and we stated our agreement with
each. We note that our analysis of these arguments provides two
separate and independent bases for reversal.
IV. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for further proceedings.
Reversed and remanded.
McCULLOUGH, J., concurs.
POPE, J., specially concurs.
- 27 - JUSTICE POPE, specially concurring:
I agree with the majority that summary judgment was
precluded in this case because a question of fact existed about
the cause of the accident. I write separately to clarify a few
matters. First, I disagree with the majority's characterization
of the trial court's handling of the matter as "inappropriate."
Slip op. at 24. As the majority points out, the lawyers did not
frame the issue concerning the Act in a way that invited the
court to rule on the matter. Second, the majority finds evidence
of Romann's statements to Eldridge about falling asleep were
"potentially" dispositive. Slip op. at 24. Apparently, such
evidence was "actually" dispositive as to the motion for summary
judgment, because we have ruled this evidence created a question
of fact which precluded a grant of summary judgment. Third,
while defendants seemed quite confident in the trial court the
Act would bar admission of Romann's statement to Eldridge, I
would note the Act is a bar to testimony of an adverse party or
person directly interested in the action. 735 ILCS 5/8-201 (West
2008). Since Eldridge is not an adverse party, nor does he
appear to have an interest in the case, his testimony, in my
opinion, would not come within the purview of the Act. Since it
does not come within the purview of the Act, it appears to be
admissible and thus available to create the question of fact we
have relied on in reversing the grant of summary judgment.
- 28 -