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05/12/87 Steven Burns, v. Kathleen Grezeka

May 12, 1987

STEVEN BURNS, PLAINTIFF-APPELLANT

v.

KATHLEEN GREZEKA, SPECIAL ADM'R FOR THE ESTATE OF GEORGE E. KINZEY, DECEASED, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

508 N.E.2d 449, 155 Ill. App. 3d 294, 108 Ill. Dec. 288 1987.IL.614

Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. DUNN and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, Steven Burns, appeals from a summary judgment entered in favor of defendant, Kathleen Grezeka, special administrator of the estate of George Kinzey, deceased, in which plaintiff sought to recover damages alleged to have been caused by Kinzey's negligence in driving his automobile into the rear of a stationary van in which plaintiff was a passenger. Plaintiff contends that the trial court erred in granting summary judgment as there are unresolved factual issues.

On December 12, 1983, plaintiff was a passenger in a van driven by Michael Baranko which was stopped at a red light on Roosevelt Road in Lombard, Illinois, when it was struck in the rear by a car driven by defendant's decedent, George Kinzey. Plaintiff brought this action against Kinzey for negligence to recover damages for lost wages and personal injuries. Kinzey subsequently died and plaintiff amended his complaint, naming Kinzey's estate as defendant. In its answer, defendant alleged as an affirmative defense that Kinzey had suffered from a sudden illness which was the proximate cause of the collision.

Subsequently, defendant moved for summary judgment on the ground that Kinzey was the victim of an "Act of God" and attached excerpts from the depositions of plaintiff, Michael Baranko, and Dr. Yogesh Vajaria in support of its motion.

In his deposition, plaintiff stated that Baranko left the van approximately 1 1/2 minutes after the accident and, after appearing to talk to Kinzey, he returned to the van and told plaintiff that Kinzey was having a heart attack. Plaintiff stated that Kinzey was gasping for air, unconscious, and his skin was a grayish-blue color.

Michael Baranko stated in his deposition that he first observed Kinzey 10 or 15 seconds after the accident and noted that his eyes were open, but rolled back, and his arms were up; shortly thereafter, he observed that Kinzey was unconscious and drooling, with his eyes closed and his arms down.

Dr. Yogesh Vajaria stated in his deposition that he examined Kinzey shortly after the accident and determined that he was suffering from an abdominal aneurysm which had been present for the past two or three years and had ruptured spontaneously. The rupture had caused Kinzey's blood pressure to drop and had rendered him unconscious approximately 45 to 60 seconds afterwards. Dr. Vajaria stated that Kinzey told him he was driving his car when he suddenly became weak and passed out. Based upon this recollection and the fact that he could not find any other cause for Kinzey's dizziness, Dr. Vajaria expressed a belief it was most probable that the aneurysm had preceded and caused the accident. He stated that there were no bruises or contusions on Kinzey, indicating that the trauma from the impact was insignificant. He also stated that increased back pain is a symptom of a ruptured aneurysm but that Kinzey would not have experienced any forewarning of the rupture.

In response to defendant's motion for summary judgment, plaintiff filed additional excerpts from Dr. Vajaria's deposition and a report by the Du Page County sheriff's police, which, in a section entitled "Describe Suspects' Actions and Speech," stated that Kinzey had fainted while at the red light. Dr. Vajaria also stated that his emergency room records indicated that Kinzey told him that he believed he passed out in his car while it was at a stop. Dr. Vajaria further stated that, based upon a reasonable degree of medical certainty, it was possible that the accident had preceded and caused the rupture.

The trial court granted defendant's motion for summary judgment on the ground that no issue of material fact existed on the basis of the evidence presented, and this appeal followed.

Plaintiff contends that the trial court erred in granting summary judgment, arguing that there remained a disputed factual basis which would arguably entitle him to judgment and that Dr. Vajaria's testimony did not establish ...


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