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08/17/87 Sharon Salinas, As Special v. Donald L. Werton

August 17, 1987

BUSOLO, DECEASED, PLAINTIFF-APPELLANT

v.

DONALD L. WERTON, DEFENDANT (DEMETRIOS S. TSORAIDIS, INDIV. AND D/B/A JIM'S TEXACO SERVICE, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

SHARON SALINAS, As Special Adm'x of the Estate of Eugene

515 N.E.2d 142, 161 Ill. App. 3d 510, 113 Ill. Dec. 333

Appeal from the Circuit Court of Cook County; the Hon. Leonard M. Levin, Judge, presiding.

Rehearing denied October 23, 1987 1987.IL.1186

APPELLATE Judges:

JUSTICE MANNING delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

Plaintiff, Sharon Salinas, as special administratrix of the estate of Eugene Busolo, deceased, brought an action in the circuit court of Cook County against Donald Werton and against Demetrios Tsoraidis, individually and doing business as Jim's Texaco Service, pursuant to the Illinois Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 1 et seq.). Service was obtained on both defendants. *fn1 Defendant Tsoraidis moved for summary judgment on the issues of duty and proximate causation and the trial court granted summary judgment in his favor. Plaintiff appeals, contending that the trial court erred in granting summary judgment since a genuine issue of material fact exists as to whether Tsoraidis breached a duty to plaintiff's intestate, and whether his violation of the Illinois Vehicle Code constitutes prima facie evidence of negligence.

We affirm the decision of the trial court.

The facts which give rise to this appeal are as follows. On April 11, 1981, at approximately 5:15 p.m., the defendant, Demetrios Tsoraidis, and plaintiff's decedent, Eugene Busolo, were eating at a restaurant across the street from Tsoraidis' service station. A man entered the restaurant and asked Tsoraidis if he would assist a woman with a baby whose car had gone into a ditch on southbound Interstate 94 near the point where the Calumet Expressway meets the Kingery Expressway. Tsoraidis agreed to provide assistance and asked Busolo to remain at the restaurant. He instructed an employee, Grant Zander, to assist him. As the two men were leaving the garage, Busolo knocked on the window of the truck and informed them that he was going with them.

When they reached the disabled vehicle, the defendant positioned the tow truck on the shoulder of the road, approximately 12 feet south of where the vehicle was in the ditch. All of the lights on the tow truck were in operation, including the yellow Mars lights, the four-way flashers, the headlights and the taillights. It was daylight at the time of the towing operation but the sky was overcast from a recent rain and the road was wet.

The three men alighted from the truck and defendant engaged the truck's winch while Zander pulled the tow cable toward the disabled car. Busolo stood directly west of Tsoraidis at the back of the tow truck, approximately seven feet off the travel lanes, watching the operation.

The driver of the disabled car asked Tsoraidis if she and her baby could wait inside the tow truck. Tsoraidis responded that he did not feel safe having someone in the tow truck, especially on an expressway, and asked her to wait on the hill until the car was towed out of the ditch.

While Tsoraidis was watching Zander, Busolo shouted, "Jimmy, watch out." A van driven by Donald Werton left the road and struck both Tsoraidis and Busolo. Neither Zander nor Tsoraidis saw the van before impact. Eugene ...


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