NOTICE 2015 IL App (5th) 140408 Decision filed 10/01/15. The text of this decision may be NO. 5-14-0408 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
JUDY MULHOLLAND GRIFFIN, ) Appeal from the as Special Administrator of the Estate of ) Circuit Court of John E. Mulholland, Jr., Deceased, ) Randolph County. ) Plaintiff-Appellant, ) ) v. ) No. 12-L-41 ) JOSEPH A. COHEN and ) JO-CO POOLS, INC., ) Honorable ) Richard A. Brown, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________
JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Presiding Justice Cates and Justice Goldenhersh concurred in the judgment and opinion.
OPINION
¶1 John E. Mulholland, Jr., sustained fatal injuries in a September 14, 2010, motor
vehicle accident with defendant Joseph A. Cohen, who was operating his vehicle in the
course of his business, Jo-Co Pools, Inc. (Jo-Co Pools). The trial court granted summary
judgment for Cohen and Jo-Co Pools, finding that the sole proximate cause of the
accident was Mulholland's failure to stop at a stop sign.
1 ¶2 FACTS
¶3 This is a wrongful death case filed by Judy Mulholland Griffin, the special
administrator of the estate of her father, John E. Mulholland, Jr.
¶4 The police report and accident reconstruction reports reveal the following facts.
The accident occurred on September 14, 2010, at 1:26 p.m. Weather and road conditions
were not at issue. The accident took place south of Chester on Illinois Route 3 at its
intersection with Water Street. The speed limit in this portion of Route 3 is 55 miles per
hour. Cohen was driving a 2001 Dodge Ram 2500 pickup truck. An 18-foot 2004
Brooks Brothers dual axle trailer was attached to the truck. A 2007 Bobcat T190 skid
steer was loaded on the trailer. At the time of the accident, Cohen was working for his
company, defendant Jo-Co Pools, Inc. The decedent was driving a 1995 Chevrolet S10
pickup truck.
¶5 Cohen was driving his truck southeast on Route 3 down a steep grade,
approaching Water Street. Water Street has a T intersection with Route 3. The decedent
was driving east on Water Street approaching the intersection with Route 3. There is no
stop sign on Route 3. Water Street has a stop sign posted on either side of the road at the
intersection. Therefore, Route 3 is the preferential highway and Water Street is the
secondary road. The collision occurred in the northwest-bound lane of Route 3–not in
Cohen's lane of travel. There were two witnesses to the collision and its
aftermath−Rebecca Woodward and her son, Justin Woodward. The Woodwards were
driving northwest on Route 3 approaching the Water Street intersection in the opposite
direction of Cohen. 2 ¶6 Cohen was deposed in this case by Griffin's attorney. Cohen testified that he
purchased the truck about two months before the accident and that the odometer for the
truck registered about 269,000 miles in September 2010. He testified that an employee
inspected the truck but did not create a report of the inspection. The Jo-Co Pools
employee was also responsible for inspecting the trailer. Cohen testified that he
estimated the weight of the truck at 6000 pounds, the weight of the trailer at 3000 pounds,
and the weight of the Bobcat at 5000 pounds. Cohen testified that he did not know the
maximum weight the trailer could safely hold. He further testified that the brakes on his
truck and trailer were working on the date of the accident. He testified that he adjusted
the trailer brakes earlier that day after he loaded the Bobcat.
¶7 Cohen testified that shortly before the accident, he received a cell phone call from
an employee. He reviewed his cell phone records and confirmed that he received this call
at 1:24 p.m.–two minutes before the collision. Although his truck has a manual
transmission, he testified that he was able to talk on his cell phone while shifting gears by
holding the cell phone between his shoulder and ear. Cohen testified that he thinks he
threw the phone down just before impact.
¶8 Cohen testified that he had started down the steep grade on Route 3 with his foot
on the brakes, before he saw the decedent's truck. At the time that he saw the decedent's
truck, he testified that his speed had diminished from 55 to 50 miles per hour. When
asked at his deposition, Cohen could not pinpoint on a diagram or on a photograph of
Route 3 where he was when he first saw the decedent's truck. However, he testified that
he saw the decedent's truck before it reached the stop sign on Water Street. He claimed 3 that once he noticed decedent's truck, he did not stop looking at it, and that the decedent
stayed within his field of vision. Cohen testified that the decedent did not stop at the stop
sign. He testified that he believed that the decedent planned to turn left in front of him in
order to travel northwest on Route 3. He claimed that after he recognized the danger, he
fully depressed the brake pedal and the brakes locked up. Cohen testified that prior to the
date of this accident, there were railroad ties stacked up on the right side of Route 3 near
Water Street. Based on his memory of this railroad tie obstruction on the right side of
Route 3, he testified that he made the decision to swerve to the left towards the decedent's
truck. He testified that he did not actually look to the right and that he did not see any
railroad ties on the right side of the road before he swerved to the left.
¶9 Cohen testified that about eight feet before impact, he saw the decedent slumped
over in his truck towards the passenger door. He stated that he did not recall speaking to
anyone at the scene of the accident, but talked to an Illinois state trooper at the hospital.
Trooper Krack came to see him at the hospital and after speaking with him, Cohen
testified that he signed a statement. When confronted by Griffin's attorney with
omissions from this statement, Cohen acknowledged that he did not tell Trooper Krack
that he was talking on his cell phone at the time of the accident, that he swerved left to
avoid railroad ties, or that the decedent was slumped over in his truck before the
collision.
¶ 10 The accident reconstruction report provided detailed measurements of tire marks
left on the road and damage to the guardrail on the northwest-bound side of Route 3. The
report supported Cohen's statement that his brakes were functioning at the time of the 4 accident. Nathan Shigemura, an accident reconstruction expert hired by Cohen, testified
that in his opinion, Cohen was driving at 55.17 miles per hour at the point of perception
of the danger, and possibly a few miles per hour faster than that. Additionally, he
testified that if Cohen stayed in his lane of travel while applying his brakes, the vehicles
would not have collided.
¶ 11 Rebecca Woodward was deposed in this case. She testified that at the time of the
accident, she was traveling northwest on Route 3 towards Chester. She testified about the
railroad tracks that run across Route 3 stating that the tracks are about 300 feet before the
intersection with Water Street. Rebecca testified that just before she reached the railroad
tracks, her son yelled, "Stop!" She does not know why, but she did not see the two trucks
before the accident, nor did she see the two trucks collide. After the collision, she exited
her vehicle and spoke with Cohen, who told her that he tried to avoid the decedent's
truck, but that the truck "came out of nowhere."
¶ 12 Justin Woodward, Rebecca's son, was 16 years old at the time of the accident.
Justin testified that he first saw the decedent's truck, and then he saw Cohen's larger
truck. He testified that Water Street had one stop sign at its intersection with Route 3, but
later acknowledged, after reviewing photographs, that there were two stop signs near the
intersection. Justin testified that he thought that the decedent was traveling straight
ahead, as he saw nothing to indicate that the decedent was going to turn left onto Route 3.
During his deposition, he testified that the decedent did not stop at the intersection.
However, when pressed by Griffin's attorney, Justin admitted that right after the accident
when he spoke to police, he was not as certain, and that he told the police that he did not 5 think that the decedent stopped at the stop sign. Justin has no recollection that Cohen's
truck was pulling a trailer loaded with equipment. He also testified that the collision
occurred in the southeast lane of Route 3.
¶ 13 Randolph County coroner Randy Dudenbostel was deposed and provided
information about his conversation with Cohen at the scene of the accident. Coroner
Dudenbostel testified that Cohen told him that when his brakes locked up, the weight of
his trailer pushed his truck into the oncoming lane of traffic. He also testified that Cohen
told him that he looked the decedent in the face just before the collision.
¶ 14 In late March 2014, Cohen and Jo-Co Pools filed a motion for summary judgment.
They argued that the decedent's failure to yield the right-of-way was the sole proximate
cause of the accident, and that Cohen satisfied any duty he had to avoid the collision
because he took an evasive action. In support of this argument, they cited section 11-
904(b) of the Illinois Vehicle Code, which requires a driver who approaches a "stop
intersection" to stop his vehicle. 625 ILCS 5/11-904(b) (West 2008). After stopping, the
driver must yield the right-of-way to any other driver who has entered the intersection
from a different road. Id. Cohen and Jo-Co Pools acknowledged that even though Cohen
was on a preferential roadway, he did not have an absolute right-of-way. Salo v.
Singhurse, 181 Ill. App. 3d 641, 643, 537 N.E.2d 339, 340-41 (1989).
¶ 15 After a hearing on the summary judgment motion, the trial court entered its order
on June 19, 2014, finding that there was no issue of material fact, and that the decedent's
failure to stop at the Water Street stop sign before entering Route 3 was the sole cause of
the accident. In support, the court cited to the testimony of both Cohen and Justin 6 Woodward, who both testified that the decedent failed to stop at the stop sign. The court
cited to a Fifth District Appellate Court case, Salo v. Singhurse, as legal support for its
summary judgment.
¶ 16 Griffin filed a motion for rehearing arguing that the court erred in the application
of existing law. The trial court denied the motion on August 5, 2014. Griffin filed her
notice of appeal from both orders.
¶ 17 LAW AND ANALYSIS
¶ 18 On appeal, Griffin claims that the trial court erred in granting Cohen and Jo-Co
Pools' motion for summary judgment, because there are outstanding issues of material
fact. We agree.
¶ 19 Section 2-1005(c) of the Code of Civil Procedure provides that a party is entitled
to summary judgment as a matter of law if "the pleadings, depositions, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact." 735 ILCS 5/2-1005(c) (West 2012).
¶ 20 Summary judgment is considered to be a drastic remedy and should not be granted
unless the movant's right to judgment is without doubt. Hutchcraft v. Independent
Mechanical Industries, Inc., 312 Ill. App. 3d 351, 357, 726 N.E.2d 1171, 1176 (2000).
The trial court must strictly construe all evidence in the record against the moving party
and liberally in favor of the opponent. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d
867, 871 (1986); Koziol v. Hayden, 309 Ill. App. 3d 472, 476, 723 N.E.2d 321, 323
(1999). If a reasonable person could reach different impressions from the undisputed
material facts or if there is any material fact still disputed, then the trial court must deny 7 the motion for summary judgment. Koziol, 309 Ill. App. 3d at 476, 723 N.E.2d at 323.
Appellate courts review summary judgment orders on a de novo basis. Myers v. Health
Specialists, S.C., 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 497 (1992).
¶ 21 We first turn to the Illinois Vehicle Code section that applies in this case. Section
11-904(b) states:
"[E]very driver of a vehicle approaching a stop intersection indicated by a stop
sign shall stop at a clearly marked stop line, but if none, before entering the
crosswalk on the near side of the intersection, or if none, then at the point nearest
the intersecting roadway where the driver has a view of approaching traffic on the
intersecting roadway before entering the intersection. After having stopped, the
driver shall yield the right-of-way to any vehicle which has entered the
intersection from another roadway or which is approaching so closely on the
roadway as to constitute an immediate hazard during the time when the driver is
moving across or within the intersection, but said driver having so yielded may
proceed at such time as a safe interval occurs." 625 ILCS 5/11-904(b) (West
2008).
Although the driver on a preferential road has the right-of-way and therefore has the right
to expect that the driver from the secondary roadway with a stop sign will obey that stop
sign, the right to proceed into the intersection is not absolute. Twait v. Olson, 104 Ill.
App. 3d 191, 194, 432 N.E.2d 1244, 1247 (1982). The preferential driver "has a duty to
keep a proper lookout, observe due care in approaching and crossing intersections, and
drive as a prudent person would to avoid a collision when danger is discovered or, by the 8 exercise of reasonable care, should have been discovered." Johnson v. May, 223 Ill. App.
3d 477, 484, 585 N.E.2d 224, 229 (1992) (citing Salo, 181 Ill. App. 3d at 643, 537
N.E.2d at 341).
¶ 22 The trial court relied upon an appellate court opinion from this court, Salo v.
Singhurse, as authority that the sole proximate cause was the decedent's failure to stop,
and thus summary judgment for Cohen was proper. We find Salo distinguishable.
¶ 23 In Salo, the motor vehicle accident occurred at the intersection of an Illinois
highway that intersected with a blacktopped road. Salo, 181 Ill. App. 3d at 642, 537
N.E.2d at 340. The intersection was marked with a flashing yellow light for drivers on
the preferential highway. It was marked with stop signs for drivers on the secondary
blacktopped road. Salo was driving on the preferential road, and as he approached the
intersection, he glanced over and saw Singhurse's car approaching the stop sign. Id. Salo
looked back at the road in front of him, proceeded through the intersection, and was
struck in the middle of the passenger side of his car by Singhurse's car. Id. The collision
occurred in the middle of the intersection. Id. Singhurse testified that she made a full
and complete stop before entering the intersection and that she never saw Salo's car until
impact. Id. An eyewitness, who was driving behind Salo, testified that Salo slowed
down to allow a car in front of Salo to turn into a store just past the intersection. Id. The
eyewitness testified that Singhurse made a rolling stop through the intersection before
hitting Salo's vehicle. Id. The jury determined that Salo was entitled to damages, but that
he was 60% at fault for the accident. Id.
9 ¶ 24 On appeal, this court reversed the jury's apportionment of fault. Id. at 644, 537
N.E.2d at 341. The court noted that by the time Salo was in the intersection, Singhurse
was just pulling up to the stop sign and that Salo had the right to expect that Singhurse
would stop at the stop sign. Id. at 643, 537 N.E.2d at 341. The court stated that
Singhurse had not provided any evidence that her vision was obstructed or that somehow
Salo's speed affected her ability to see Salo approach the intersection. Id. Consequently,
the court concluded that the reasonable inference to be drawn was that Singhurse just was
not looking and/or did not attempt to stop. Id. In finding that Singhurse was the sole
cause of this accident, the court stated:
"Singhurse had a duty to stop and yield the right-of-way to approaching cars.
Instead she rolled into the intersection and hit Salo's car after he was already in the
intersection at a time when there was nothing he could do to avoid the collision.
Salo could not reasonably be expected to anticipate Singhurse entering the
intersection in disregard of her duty to yield. But for Singhurse running the stop
sign or not looking, the collision would not have occurred." Id.
¶ 25 We find the Salo v. Singhurse case to be both procedurally and factually
distinguishable from this case. Procedurally, a motion filed before trial did not decide
Salo v. Singhurse. The case went to a jury for verdict. Factually Salo v. Singhurse is
different because Salo was already in the intersection when Singhurse rolled through the
stop sign and struck his vehicle. Additionally, although Salo saw Singhurse approaching
the intersection, he did not see her drive through the stop sign. Even if Salo had seen
Singhurse roll through the stop sign, Salo had little to no opportunity to take evasive 10 action because his vehicle was already within the intersection. In this case, Cohen saw
the decedent's truck well before the intersection. He saw the decedent's truck before it
reached the Water Street stop sign, and then he saw the truck enter Route 3. Cohen was
not yet to the intersection when the decedent entered the intersection. Therefore, Cohen
had some amount of time to react and take evasive action.
¶ 26 We find that there are factual issues remaining concerning how Cohen approached
the intersection and whether his speed was excessive in light of the combined weight of
the vehicle and trailer he drove. The evidence established that Cohen saw the decedent's
truck before he reached the stop sign. Cohen was traveling down a very steep incline.
He claims that his speed was 50 miles per hour as he headed down the hill, but his own
traffic expert determined that his speed was higher than that. Cohen's estimate of the
combined weight of his truck and trailer and the Bobcat was 14,000 pounds. The
evidence clearly shows that Cohen applied his brakes in an effort to avoid the collision
because there were skid marks. However, the evidence was less clear as to whether he
stopped early enough to avoid the collision. Approaching an intersection with due care
requires the driver to be conscious of the distance required to stop his vehicle. Here, any
attempt to bring a 14,000-pound vehicle to a full and complete stop down a steep incline
impacts the issues of control and stopping distance.
¶ 27 We also find that there is a factual issue about whether Cohen's attention was
compromised by the fact that he was talking on a cell phone as he approached the
intersection. Cohen testified that he was holding the cell phone between his shoulder and
11 ear at the same time that he was shifting his vehicle while traveling down the steep
incline.
¶ 28 Additionally, we find that there is a factual issue about Cohen's evasive maneuver.
He made a conscious choice to steer his vehicle to the left, towards the decedent's truck,
rather than away from the decedent's truck. Cohen's own expert provided an opinion that
if he stayed within his lane while applying his brakes, the collision would not have
occurred.
¶ 29 We find that at this stage of the case, there are factual issues about whether Cohen
approached the intersection with due care. The trier of fact should have the opportunity
to consider these factual issues.
¶ 30 In general, more than one negligent act can create a proximate cause of an injury.
Long v. Friesland, 178 Ill. App. 3d 42, 55, 532 N.E.2d 914, 922 (1988). Although there
are factual similarities between this case and Salo v. Singhurse, Salo does not hold that a
driver on the preferential road is always faultless. Furthermore, in Conner v. McGrew, 32
Ill. App. 2d 214, 217-18, 177 N.E.2d 417, 418-19 (1961), the appellate court explained
how the preferential highway rule is applied in Illinois:
"The authorities agree that a driver on a preferential highway does not have an
absolute or unqualified right of way that can be asserted regardless of
circumstances, distances or speed. Such a driver may not plunge blindly ahead in
reliance upon an assumption that the other motorist will obey the law and yield the
right of way, nor may he heedlessly proceed into obvious danger. ***
12 The Illinois decisions, in applying this rule, have consistently held that it is
the function of the jury to determine whether the judgment of the driver on the
preferential highway conformed to the standards of the reasonable and prudent
man."
¶ 31 At this stage of the case, we disagree with the trial court's conclusion that the
decedent's failure to stop at the Water Street stop sign is the sole proximate cause of the
collision. Although Cohen had the right to expect that the decedent would obey the stop
sign, he had his own duty "to keep a proper lookout, observe due care in approaching and
crossing intersections, and drive as a prudent person would to avoid a collision when
danger is discovered or, by the exercise of reasonable care, should have been
discovered." Johnson, 223 Ill. App. 3d at 484, 585 N.E.2d at 229 (citing Salo, 181 Ill.
App. 3d at 643, 537 N.E.2d at 341); Conner, 32 Ill. App. 2d at 217-18, 177 N.E.2d at
418-19. Considering all aspects of Cohen's approach to the intersection, a factual issue
exists whether Cohen's actions and inactions contributed causally to this collision.
¶ 32 CONCLUSION
¶ 33 We find that Cohen and Jo-Co Pools failed to establish that there are no genuine
issues of fact remaining. Therefore, we reverse the judgment of the circuit court of
Randolph County.
¶ 34 Reversed.
13 2015 IL App (5th) 140408
NO. 5-14-0408
IN THE
FIFTH DISTRICT ______________________________________________________________________________
JUDY MULHOLLAND GRIFFIN, ) Appeal from the as Special Administrator of the Estate of ) Circuit Court of John E. Mulholland, Jr., Deceased, ) Randolph County. ) Plaintiff-Appellant, ) ) v. ) No. 12-L-41 ) JOSEPH A. COHEN and ) JO-CO POOLS, INC., ) Honorable ) Richard A. Brown, Defendants-Appellees. ) Judge, presiding. ______________________________________________________________________________
Opinion Filed: October 1, 2015 ___________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable Judy L. Cates, P.J., and Honorable Richard P. Goldenhersh, J., Concur _____________________________________________________________________________
Attorney Brian K. Zirkelbach, Law Office of Brian K. Zirkelbach, 1100 for Walnut Street, P.O. Box 687, Murphysboro, IL 62966 Appellant ____________________________________________________________________________
Attorneys John P. Cunningham, Denise Baker-Seal, Daniel G. Hasenstab, for Brown & James, P.C., Richland Plaza I, 525 West Main, Suite 200, Appellees Belleville, IL 62220-1547 ____________________________________________________________________________