APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
504 N.E.2d 916, 152 Ill. App. 3d 642, 105 Ill. Dec. 631 1987.IL.160
Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.
Rehearing Denied March 19, 1987.
JUSTICE JOHNSON delivered the opinion of the court. McMORROW, P.J., and JIGANTI, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON
Plaintiffs, Mary Wilmere (in her capacity as special administrator of the estate of Keith Wilmere), Edward and Mary Wilmere (decedent's parents), and John and Brian Wilmere (decedent's brothers), brought wrongful death and survival actions in the circuit court of Cook County against defendants, Sheila Stibolt, Marian L. Dykstra, and Joyce V. Straley. Plaintiffs sought damages for injuries arising out of an automobile accident between decedent and defendants.
The original complaint contained counts brought under the Survival Act (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 27-6) by decedent's parents and brothers. The trial court dismissed the original complaint containing these counts, holding that the proper party to maintain an action under the Survival Act is the administrator or executor of an estate and not a decedent's survivors. The trial court later granted defendants' motions for summary judgment. Plaintiffs appeal, contending that (1) only a decedent's survivors can maintain an action under the Survival Act, and (2) that the trial court erred in granting defendants' motions for summary judgment.
The automobile accident from which this lawsuit arose occurred on Route 54, also known as Governor's Highway, approximately 100 to 200 feet north of 219th Street in Matteson, Illinois. Governor's Highway has four lanes, two northbound and two southbound, separated by a double yellow line. The posted speed limit is 45 miles per hour.
The record shows that on March 18, 1983, at approximately 7:45 a.m., decedent traveled on Route 54 in the inner southbound lane. Stibolt traveled in the inner northbound lane; Dykstra traveled behind Stibolt in the same lane. Straley drove in the outer northbound lane. Decedent's vehicle crossed the double line, swerving from the inner southbound lane to the inner northbound lane, and collided with Stibolt's vehicle. Decedent's vehicle then collided with Dykstra's vehicle, then with Straley's automobile. The parties agree that all three collisions occurred in a matter of seconds. Keith Wilmere later died as a result of the injuries he received from the accident.
The trial court appointed decedent's mother as special administrator of his estate. On May 26, 1983, the special administrator, with decedent's parents and brothers, filed a complaint pleading several causes of action against defendants. The complaint contained a wrongful-death action against defendants brought by the special administrator, a survival action brought by decedent's parents and brothers, and an action brought by decedent's parents to recover the expenses they incurred resulting from his injuries and death. Dykstra moved to dismiss the survival actions, contending that decedent's parents and brothers could not properly bring a survival action. The trial court granted the motion on August 25, 1983.
Plaintiffs then filed a first amended complaint pleading the same causes of action with the same allegations, except that the survival actions were brought by the special administrator. All three defendants filed counterclaims against decedent's estate. Following discovery, defendants moved for summary judgment. The trial court granted summary judgment for defendants on January 4, 1986. Plaintiffs appeal. I
Plaintiffs first contend that the trial court erred in dismissing those counts of the complaint that pleaded survival actions brought by decedent's parents and brothers. Plaintiffs claim that only a decedent's ...