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09/24/87 Frank T. Miklos, Guardian v. Anthony Caliendo

September 24, 1987





FRANK T. MIKLOS, Guardian of the Estate of Jeffrey A.

514 N.E.2d 35, 161 Ill. App. 3d 132, 112 Ill. Dec. 639

Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding. 1987.IL.1429


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


Plaintiff, Frank T. Miklos, as guardian of the estate of his disabled son, Jeffrey, filed suit against defendant, Anthony Caliendo, for injuries Jeffrey sustained when he was struck by a truck driven by defendant. The trial court granted defendant's motion for summary judgment, and plaintiff appeals. We find that an issue of material fact exists which precludes entry of summary judgment, so we reverse.

In the early morning hours of September 15, 1983, defendant was driving a tanker truck westbound on what was then known as I-5, an interstate highway now known as I-88. Approximately four-tenths of a mile east of the Naperville Road exit from I-5, defendant's truck came in contact with Jeffrey Miklos. Jeffrey's body was found on the north shoulder of the highway, 5.6 feet from the edge of the northernmost lane of traffic. His body was at an angle, with his head pointing in a northeasterly direction and his feet pointing southwest.

A State trooper called to the scene, Trooper Dreyer, examined the area of the accident, but according to his deposition testimony, he was unable to determine where the impact had occurred. The only blood at the scene was under Jeffrey's body. Jeffrey's injuries included a large laceration on the right shin, an irregular laceration of the scalp and a fractured skull. The scalp laceration and skull fracture were just above and behind the left ear. Jeffrey also sustained abrasions to his right arm, right hip, left hip, left iliac crest and the left side of his back, and a contusion affecting the left ankle.

Trooper Dreyer also examined defendant's truck. He noticed that the fiberglass right front fender was cracked or broken. While he could not be certain that the fender damage was caused by the accident, the damage appeared fresh to Trooper Dreyer. He also noticed that the screen over the muffler on the right side of the truck was dented. There was blood on the screen, located less than five feet from ground level, approximately even with the bottom of the door of the semi.

When defendant moved for summary judgment, he supported the motion with the transcript of the discovery deposition of Jeffrey, and an affidavit in which defendant set forth his version of the accident. Plaintiff objected to defendant's affidavit as violative of section 8-201(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 8-201(a)), commonly known as the Dead Man's Act, because, due to his injuries, Jeffrey has no recollection of the accident. Plaintiff did not obtain a ruling on the objection, but it does not appear that the trial court considered defendant's affidavit. Rather, in granting summary judgment, the trial court stated that the reason for doing so was that the record contained nothing to indicate negligence on the part of defendant.

Plaintiff moved for a rehearing and supported the motion with his own affidavit as to the careful habits of Jeffrey, the accident report of Trooper Dreyer, and a medical report from Dr. Mousavi, one of Jeffrey's treating doctors, which disclosed the character of Jeffrey's injuries. Plaintiff also attached the transcript of defendant's deposition which, plaintiff argues, contains an admission that defendant had given a different version of the occurrence to Trooper Dreyer than the version contained in defendant's affidavit.

Defendant moved to strike the Mousavi and Dreyer reports, objecting that it was improper for plaintiff to support his motion with documents that would not be admissible at trial. Plaintiff then filed supplementary exhibits consisting of the depositions of Trooper Dreyer and Dr. Mousavi, photographs of defendant's truck after the accident, and the affidavit of Joseph Kostur, an accident reconstruction expert. Defendant moved to strike Kostur's affidavit on several grounds and also replied that there was still no evidence of negligence. The trial court granted plaintiff's motion for rehearing and considered the new submissions. The court then struck Kostur's affidavit and again granted summary judgment for defendant.

Plaintiff argues on appeal that the trial court erred in striking Kostur's affidavit and in granting summary judgment for defendant. Defendant responds that the trial court acted properly in striking Kostur's affidavit and in entering summary judgment. In addition, defendant argues that the statement of facts contained in plaintiff's appellate brief is not in compliance with Supreme Court Rule 341(e)(6). (107 Ill. 2d R. 341(e)(6).) Specifically, defendant argues that plaintiff's statement of facts is merely a collection of arguments and does not state the facts accurately and fairly without argument or comment. Defendant urges us to strike plaintiff's statement of facts and to dismiss the appeal as an appropriate sanction. After examination of plaintiff's statement of facts, however, we find no violation of Rule ...

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