APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE W. UNVERZAGT, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Plaintiff, Renee Moran, appeals from two orders of the Circuit Court of Du Page County granting the motions of defendants, Ellen Aken, Leigh Heffner, the City of Elmhurst (the City), and J.J. Czerny for summary judgment.
On January 16, 1976, Ellen Aken, while driving Leigh Heffner's car on an icy street near plaintiff's house, lost control and struck plaintiff's car, which was parked in her driveway. Officer J.J. Czerny of the Elmhurst Police Department reported to the scene of the accident, and plaintiff and her houseguest, Miss McClean, came outside to inspect the damage. Noting that the car was stuck in a snowbank completely off the street, Officer Czerny asked Aken whether she needed a tow truck. Although admitting that she could not get the car out of the snow by herself, she said that she did not need a tow and could not afford one. Officer Czerny thereupon attempted to push the car by himself, but was unsuccessful. He then asked plaintiff and Miss McClean to help push the car.
Plaintiff had suffered a fractured vertebra in 1968. In her deposition, she testified that she had fully recovered and had not seen a doctor for the condition since 1969. Now, seven years later, she did not tell Officer Czerny of the previous injury. In response to Czerny's request, she urged him to call a tow truck. Czerny responded: "We'll push. You push here." He then cleared the snow from behind the tires, directed Aken to steer in the appropriate direction and positioned plaintiff and Miss McClean to push on the hood while Aken accelerated backwards. As Czerny, plaintiff and McClean rocked the car back and forth, the car moved slightly, then suddenly accelerated backwards free of the snowbank. Plaintiff testified that she and Miss McClean fell forward as the car accelerated. An hour later, plaintiff experienced severe pain in her back which has prevented her from returning to her teaching position. She has subsequently incurred numerous medical expenses in connection with the back injury.
Plaintiff filed a two-count amended complaint, alleging negligence against Aken and Heffner in count I, and negligence against Czerny and the city in count II for ordering her to help push the car in hazardous conditions.
Defendants Czerny and the City moved for summary judgment. In its opinion, the trial court acknowledged that a factual dispute existed with respect to whether Czerny's request that plaintiff help push the car "constituted an order that was legally constraining. If so, such order may have been unreasonable under the circumstances and was the proximate cause of the injuries because plaintiff had no choice but to obey. If she had no choice concerning her response, she could not be contributorily negligent." Without deciding whether the request constituted a "legally constraining" order, the trial court found that plaintiff was guilty of contributory negligence as a matter of law because she had "a duty of ordinary care for her own protection to inform the officer of her bad back." Failing to object to the officer's request, plaintiff's compliance in pushing the car "must be viewed as voluntary." Officer Czerny and the City's motion for summary judgment was therefore granted. On the same basis the trial court granted summary judgment in favor of defendants Aken and Heffner.
• 1 In reviewing an order for summary judgment we must consider the pleadings, depositions, and admissions on file, together with the affidavits, if any, submitted by the parties to determine whether a genuine issue as to any material fact remained outstanding; if not, then we must decide whether the moving party was entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1979, ch. 110, par. 57(3); Glen Ellyn Savings & Loan Association v. State Bank (1978), 65 Ill. App.3d 916, 382 N.E.2d 1267.) However, even if the facts are undisputed, where reasonable minds might draw different inferences therefrom summary judgment is improper. Kolakowski v. Voris (1979), 76 Ill. App.3d 453, 395 N.E.2d 6; Wallace v. Smith (1979), 75 Ill. App.3d 739, 394 N.E.2d 665.
A plaintiff is contributorily negligent when she acts without that degree of care which a reasonably prudent person would have used for her own safety under like circumstances (Reid v. Employers Mutual Liability Insurance Co. (1973), 14 Ill. App.3d 174, 302 N.E.2d 108), and which action is the proximate cause of her injury. (Chaplin v. Geiser (1979), 79 Ill. App.3d 435, 398 N.E.2d 628.) Ordinarily, the question of contributory negligence is one of fact for the jury unless it is established from the undisputed facts that all reasonable minds, in the exercise of fair and earnest judgment, would conclude that the plaintiff was contributorily negligent. Doris v. Bradley (1979), 76 Ill. App.3d 890, 395 N.E.2d 636; Armagast v. Medici Gallery & Coffee House, Inc. (1977), 47 Ill. App.3d 892, 365 N.E.2d 446.
• 2 After reviewing the record, we cannot say that reasonable minds would not differ as to the inferences to be drawn from the facts in this case. The only evidence presented on the question of plaintiff's prior back injury was in her deposition wherein she testified that she had fully recovered and had not seen a doctor for the problem since 1969. There was no evidence that the injury, sustained seven years previously, had in any manner continued to inhibit her activity. On the basis of this evidence, we think it as reasonable to infer that a prudent person under these circumstances would not have told the defendants about her prior injury, as to infer that she would have. We therefore believe that this question should properly have been given to the jury; the purpose of summary judgment is not to try an issue of fact but to determine whether a question of fact exists. Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App.3d 89, 392 N.E.2d 675.
Even if plaintiff was not, as a matter of law, guilty of contributory negligence for failing to inform defendants of her prior injury, defendants contend that she was nonetheless contributorily negligent by proceeding to push the car despite the ordinary danger of injury from falling, the risk of which was as foreseeable to her as it was to them. If, defendants ask, they are found negligent for exposing plaintiff to this risk, should not plaintiff be found contributorily negligent for proceeding with full knowledge of the same risk?
Moran does not deny that she appreciated the risks of pushing a car from a snowbank in the middle of the night. Rather, she defends her conduct as reasonable under circumstances where she first urged Officer Czerny to call a tow truck and, upon his refusal to do so, only then acceded to his order, "We'll push. You push here." Thus, the parties suggest that the question is whether, as a matter of law, plaintiff was justified in regarding Czerny's words as a "legally constraining" order.
We are aware of no case which has considered the voluntariness of a person's conduct when she acts at the direction of a police officer. Counsel have, however, cited cases which discuss this issue in the somewhat analogous context of master and servant.
In Fore v. Vermeer Mfg. Co. (1972), 7 Ill. App.3d 346, 287 N.E.2d 526, an experienced operator of a trenching machine sued the manufacturer for injuries he sustained when the engine stalled and brakes failed to stop the machine which was being operated on a steep incline. The operator had experienced numerous problems with the machine in the past and had complained many times to his employer about the brakes, characterizing the machine as "dangerous and unsafe." Nevertheless, he denied that he was contributorily negligent or that he had assumed the risk by continuing to use the machine because he had been directed to do so by his ...