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08/06/87 Keith L. Pyne, v. William E. Witmer Et Al.

August 6, 1987

KEITH L. PYNE, PLAINTIFF-APPELLANT

v.

WILLIAM E. WITMER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

512 N.E.2d 993, 159 Ill. App. 3d 254, 111 Ill. Dec. 452 1987.IL.1129

Appeal from the Circuit Court of McHenry County; the Hon. Henry L. Cowlin, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. NASH, J., concurs. JUSTICE INGLIS, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiff, Keith L. Pyne, filed this action to recover damages sustained by him as a result of an automobile accident. The following parties were joined as defendants: William E. Witmer, the driver of one of the cars; D.R.W. Enterprises, Inc., a/k/a Standard Three, Witmer's employer (Standard Three); McHenry County and James R. Rakow, McHenry County superintendent of highways; the highway commission of Marengo Township; and Edward F. and Nancy L. Sass (Sasses), owners of property near the intersection where the accident occurred. McHenry County, Rakow, and the highway commission of Marengo County have settled with plaintiff, and these appeals do not concern them. Summary judgment was entered in favor of the Sasses, which plaintiff appeals in No. 86 -- 0532. Summary judgment was also entered in favor of Standard Three, which plaintiff appeals in No. 86 -- 0686. We affirm the order granting summary judgment for the Sasses, but find that unresolved issues of material fact preclude summary judgment for Standard Three.

On November 12, 1980, at approximately 10:30 p.m., plaintiff was driving his 1976 Dodge pickup truck westward on River Road in Marengo Township, McHenry County. At that time, Witmer was driving his 1976 Ford LTD southbound on County Line Road towards the intersection of River Road and County Line Road. The speed limit on both roads was 55 miles per hour, and at the intersection both roads are flat and straight. There were stop signs on the northwest and southeast corners of the intersection, both of which controlled northsouth traffic on County Line Road. There were no stop signs for eastwest traffic on River Road.

As plaintiff entered the intersection, he slowed from approximately 55 miles per hour to 45 miles per hour. Witmer, traveling approximately 40 miles per hour, entered the intersection at the same time, and the vehicles collided in the southwest quadrant of the intersection. The impact carried both vehicles into a plowed field. Plaintiff's car struck a utility pole and came to rest. Witmer's car burst into flames, and Witmer died as a result of his injuries.

Plaintiff remembers little of the accident. He does not recall seeing Witmer's car until one or two seconds before impact. He did not see headlights on the pavement because the intersection is lit by a street light on the southwest corner.

The Sasses own the property on the northeast corner of the intersection. They farmed the land, but rented out the farmhouse on the corner. The property was landscaped with bushes which were there when Sasses purchased the property. An investigator hired by plaintiff measured the bushes, which formed a hedge, and found them to be over six feet high. The hedge ran along both County Line and River Roads and was 17 feet north of River Road and 20 feet 6 inches east of County Line Road. There was evidence that westbound traffic on River Road would be unable to see southbound traffic on County Line Road and vice versa until both vehicles would be within two car lengths of the intersection. The hedge did not, however, obscure the stop sign, and the Sasses stated that they had no problem seeing east on River Road when pulling up to the intersection from the north.

At the time of the accident, Witmer was employed by defendant Standard Three as a mechanic. On the night of the accident, Witmer had taken a National Automotive Institute Service Excellence Certification Test at Rock Valley College in Rockford, Illinois. Standard Three had paid Witmer's test fee, but Witmer was driving his own car and was not being paid or reimbursed for expenses while taking the test. The parties dispute whether Witmer was taking the test of his own initiative or if he had been required to do so by Standard Three. It is undisputed, however, that Witmer was intoxicated at the time of the collision and that beer cans were found in his car. There is also little question but that Witmer was going approximately 40 miles per hour and that he had failed to heed the stop sign on County Line Road.

APPEAL NUMBER 86 -- 0532

Plaintiff first argues that the trial court erred in granting Sasses' motion for summary judgment on count VII of plaintiff's third amended complaint. Count VII alleged, inter alia, that Sasses breached their duty to remove or trim the hedge which plaintiff claims obstructed visibility at the intersection of River Road and County Line Road. The trial court found no such duty was owed by Sasses to plaintiff. We agree.

It is axiomatic that a motion for summary judgment should only be granted if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1005; Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 339.) Even if there are fact issues in dispute, however, they must be material to the essential elements of the cause of action or defense, and those which are unrelated, no matter how sharply controverted, do not warrant the denial of summary judgment. (Shultz v. American National Bank & Trust Co. (1976), 40 Ill. App. 3d 800, 805.) Plaintiff here claims that a question of material fact is presented in whether and by how much Sasses' hedge restricted the diagonal sight lines of motorists approaching the intersection. In this appeal, we are of the opinion that the degree to which the hedge obstructed vision is not material to the issue of whether a duty exists (Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 340), and thus the question of the degree of obstruction of diagonal sight lines at the intersection does not preclude summary judgment.

To adequately state a cause of action for negligence, a plaintiff's allegations must establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from that breach. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162.) While whether a duty has been breached and whether the breach proximately caused an injury are questions of fact, the existence of a duty must be determined by the courts as a matter of law. (98 Ill. 2d 158, 163.) The law applicable to motions for summary judgment which involve the issue of duty is set forth in Barnes v. Washington (1973), 56 Ill. 2d 22:

"'It may be stated generally that if what is contained in the pleadings and affidavits would have constituted all the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered.' (Fooden v. Board of Governors, 48 Ill. 2d 580, at 587.) This court has also held that the entry of a summary judgment is proper when only a question of law is involved. (Allen v. Meyer, 14 Ill. 2d 284.) Thus, if under the pleadings and affidavits it appears that the defendant owed no duty to the [plaintiff], the granting of the motion for summary judgment was proper." (56 Ill. 2d 22, 26-27.)

Plaintiff here argues that the trial court erred in granting defendant's motion because a duty was imposed by two public safety statutes. The first such statute is section 221(5) of "An Act to revise the law in relation to criminal ...


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