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Serowski v. Klapper

OPINION FILED OCTOBER 13, 1978.

WANDA SEROWSKI, PLAINTIFF-APPELLEE,

v.

EUGENE KLAPPER ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN E. BOWE, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

This action arose out of an automobile collision between plaintiff, Wanda Serowski, and the defendant, Eugene Klapper, while the latter was operating a vehicle as agent for the defendant, United Parcel Service, Inc. (UPS). The trial court entered an order granting plaintiff's motion for summary judgment on the issue of liability alone. Subsequently, the court entered an order denying defendants' petition for a rehearing in this regard. Thereafter the jury, sitting on the issue of damages only, returned a verdict for plaintiff in the amount of $2500. Defendants appeal. The sole issue on appeal is whether the trial court erred in entering a summary judgment in favor of plaintiff on the issue of liability. We reverse and remand. The pertinent facts follow.

Plaintiff's complaint alleged that on December 18, 1974, defendant Klapper was operating a motor vehicle, as the agent of UPS, in a westerly direction on Schubert Street, Chicago, at its intersection with Lavergne Street. At that same time plaintiff was driving her car in a southerly direction on Lavergne Street, near the same intersection. Plaintiff alleged that defendants were guilty of certain acts of negligence which caused their vehicle to strike hers at this intersection, resulting in severe injuries to plaintiff. Specifically, plaintiff alleged that defendant Klapper carelessly, negligently, and improperly operated his vehicle without exercising reasonable care and all due caution so as to avoid injuring plaintiff; that he failed to keep his vehicle under proper control so that it could be readily stopped or slackened in speed; and that he drove his vehicle without keeping a proper and reasonable lookout ahead for persons and vehicles on nearby thoroughfares. The complaint also alleged that at all times relevant plaintiff was in the exercise of due care and caution for her own safety and for the safety of others.

Defendants, in turn, simultaneously filed a jury demand as well as their answer to plaintiff's complaint. Defendants' answer denied the material allegations of the complaint, and in particular denied any acts of negligence on their part. Furthermore, defendants denied that at the time of the occurrence plaintiff was in the exercise of all due care and caution for her own safety and the safety of others.

On March 7, 1977, plaintiff filed her motion for summary judgment. Contained therein were excerpts from defendant Klapper's deposition, relevant portions of which follow:

"Q. How great a distance had you traveled from your last stop before the accident occurred until the point where the accident occurred.

A. Well, I made a delivery stop and I was parked clear of the sidewalk as it is at the intersection. And then I had just put the vehicle into gear and looked to my left and looked to my right and looked to my left again. And when I had looked in both directions, there had been no traffic coming because I was pulling away from the curb. And as I was pulling away from the curb, I was entering the intersection.

Q. How far was it that you had to travel towards the corner of Lavergne and Schubert before you could start seeing northbound down Lavergne?

A. Approximately 10 or 15 feet.

Q. That would have left you approximately 30 feet or so to go before the intersection?

A. Approximately.

Q. So, you looked left first, then right, then left again?

A. That's right. That's correct, sir.

Q. Now, when you first glanced left, you were approximately 30 feet from the intersection. When you looked right, how close to the intersection were you? Your vehicle was moving during this period of time?

A. It was moving at a slow rate of speed, possibly 2 or 3 miles an hour.

Q. Okay. So, when you were looking right, how close to the intersection were you?

A. I'd say I was within 15 feet of the intersection when I looked to the right.

Q. When you looked to the right, you saw no traffic heading southbound?

A. Nothing at all, sir.

Q. How far down the block could you see when you looked southbound?

A. Southbound?

Q. Yes.

A. I could see down approximately 200 feet.

Q. When you looked northbound, how far down could you see?

A. I could see up to the next alley, which would be roughly 200 feet.

Q. How far into the intersection was the front of your vehicle when it made contact with the Serowski vehicle?

A. It was three-quarters of the way into the intersection.

Q. What part of your vehicle and what part of the Serowski vehicle came into contact?

A. My right front bumper made contact with her left rear door and part of the body in back of the door, if I remember correctly.

Q. Did you have an opportunity at any time before impact to sound your horn?

A. No, sir.

Q. Did you have an opportunity at any time before impact to ...


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