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04/20/87 Chris Hennessy, v. Edward Foley

April 20, 1987

CHRIS HENNESSY, PLAINTIFF-APPELLANT

v.

EDWARD FOLEY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

507 N.E.2d 1258, 154 Ill. App. 3d 1039, 107 Ill. Dec. 889 1987.IL.524

Appeal from the Circuit Court of St. Clair County; the Hon. Joseph F. Cunningham, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. HARRISON and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Plaintiff, Chris Hennessy, filed a complaint for personal injuries arising out of an automobile accident on September 10, 1983, in St. Clair County, Illinois. The third amended complaint, in two counts, alleges that defendant was intoxicated at the time of the accident and seeks damages for defendant's alleged negligence and willful and wanton conduct. The court granted defendant's motion for summary judgment as to the willful and wanton count of plaintiff's complaint. Plaintiff appeals. We reverse.

The relevant facts as they appear in the record on appeal are as follows: On September 10, 1983, plaintiff was driving an automobile along Route 157 in St. Clair County and became lost. At first he was driving in the correct direction, then he proceeded to travel in an incorrect direction along Route 157 a couple of times, making several U-turns. Just prior to the accident, one of plaintiff's passengers told him to make another U-turn. At this point, plaintiff was traveling at 30 to 40 miles per hour in the right lane of a four-lane highway. Plaintiff slowed down and proceeded to make his U-turn slowly when he was struck by defendant's vehicle traveling in the same direction but in the left lane. Defendant's vehicle struck plaintiff's vehicle in the left rear door.

Plaintiff was injured in the accident and does not recall the collision. In affidavits filed with the court, plaintiff's two passengers, Joseph Walker and Michael Newton, recall that plaintiff was starting to make a slow U-turn on the highway, that defendant did not attempt to brake his vehicle, that defendant did not attempt to change lanes to avoid a collision, and that defendant had time to avoid the collision by slowing down, braking, or switching lanes. In his deposition, Joseph Walker stated that he could not recall whether the plaintiff turned to see if there was traffic coming or whether he looked in the rearview mirror. He could not recall how far away defendant's vehicle was at the time he first saw it, although he did state that he saw it right before the impact. There was no testimony from the plaintiff, who cannot recall the circumstances of the accident, or any passengers in his automobile as to the position of defendant's automobile when plaintiff began to make his U-turn.

Defendant initially gave a statement to his insurance company in which he stated he did not know what happened. However, in his deposition, defendant stated that plaintiff turned his vehicle right in front of his, that he was driving at the speed limit, and that he was driving in his lane until the impact. There were no other witnesses to the accident.

Shortly after the accident, defendant was observed by Kevin Woodring, a police officer, and Howard Kellerman, an ambulance attendant. Officer Woodring testified that defendant smelled of alcohol and his speech was slurred, that he was under the influence of alcohol, and that this influence might or could have affected his driving. Officer Woodring also stated that when defendant was given his implied-consent warning at the hospital, he was belligerent, he was mumbling, and his voice was slurred. Howard Kellerman testified that there was a strong smell of alcohol on defendant's breath, his speech was slurred, and that it was his opinion that defendant was under the influence of alcohol or intoxicated. Joseph Walker, one of the passengers in plaintiff's vehicle, saw the defendant staggering in the hospital and stated that he appeared to be drunk.

In count II plaintiff alleged that defendant's conduct was willful and wanton and subjects him to liability for punitive damages. Plaintiff alleges that defendant's intoxication, in addition to his failure to keep his vehicle under proper control, driving under the influence of intoxicating liquor, driving at a speed greater than the speed limit, driving at a speed greater than is reasonable and proper with regard to traffic conditions, failing to reduce speed to avoid an accident, and failing to keep a proper lookout, renders his conduct willful and wanton.

Defendant moved for summary judgment as to count II, stating that as a matter of law, his alleged willful and wanton conduct was not a proximate cause of the accident. On July 18, 1985, the trial court granted summary judgment. Plaintiff's request that the court reconsider its ruling was denied. Plaintiff appeals from the order granting summary judgment and the order denying his motion to reconsider the court's order.

The sole issue on appeal is whether the trial court properly entered summary judgment in favor of defendant on count II of plaintiff's complaint. Plaintiff contends that summary judgment was improperly granted because the pleadings, affidavits, and depositions raise issues of material fact. We agree.

Upon review of a trial court's entry of summary judgment, a reviewing court's sole function is to determine whether the trial court correctly determined that there were no genuine issues of material fact, and if there were none, whether judgment for the moving party was correctly entered as a matter of law. (Bain v. Benefit Trust Life Insurance Co. (1984), 123 Ill. App. 3d 1025, 1030, 463 N.E.2d 1082, 1085.) If the pleadings, affidavits, and depositions of record do not pose any genuine issue of material fact, the movant is entitled to judgment in his favor as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005.) The harshness of this remedy has given rise to the corollary rule that if there exists any doubt as to the movant's right to summary judgment, that doubt must be resolved in favor of the nonmovant so that evidence may be presented to the trier of ...


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