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06/23/88 Richard William Steiner, v. Brian Marr Et Al.

June 23, 1988





525 N.E.2d 556, 171 Ill. App. 3d 366, 121 Ill. Dec. 498 1988.IL.993

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.


JUSTICE WOODWARD delivered the opinion of the court. NASH and REINHARD, JJ., concur.


Plaintiff, Richard William Steiner, brought an action to recover damages for personal injuries he sustained when the pickup truck in which he and defendants, Brian Marr and John Vann, were passengers went off a road and struck a fallen tree. The driver of the truck, John Schiera, is not a defendant in this case. Both defendants filed motions for summary judgment, which were granted by the trial court. Plaintiff appeals.

The sole issue raised on appeal is whether the trial court erred in granting the motions for summary judgment. We affirm.

On January 23, 1984, after visiting several eating and drinking establishments, Schiera, plaintiff, and both defendants were proceeding north on Portwine Road in Lake County in Schiera's 1972 Ford pickup truck. The weather was cold, and although the road had been plowed, snow was blowing across the road, and the solid white lines on the sides of the road were not visible. According to Schiera, there was an ice glaze on some spots on the road due to the snow that had melted during the day. Because the truck had only a front seat, the four men sat shoulder to shoulder in the truck. Schiera was driving, the defendants were in the middle, and plaintiff was seated up against the passenger door, holding himself up with his hand against the dashboard.

Just prior to the accident, plaintiff warned Schiera to move the truck to the center of the highway because it was too close to the right shoulder. The truck began to fishtail, went off the road, and struck a fallen tree. Plaintiff was pinned in the truck and suffered a complete spinal cord injury.

Plaintiff contends that summary judgment should not have been granted in this case because there exist questions of fact as to whether the defendants' positions in the truck interfered with Schiera's ability to control the truck and as to whether the crowded conditions in the truck which necessitated plaintiff sitting in a cramped position caused plaintiff's injuries.

Summary judgment is proper where the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is not a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 164; Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c).) Summary judgment is a drastic measure and should not be granted unless the evidence, when construed most strongly against the moving party, establishes that the movant clearly and without doubt has a right to such relief. (Schwaner v. Belvidere Medical Building Partnership (1987), 155 Ill. App. 3d 976, 983.) Where the facts could lead a fair-minded person to draw more than one Conclusion or inference, summary judgment must be denied. (Burns v. Grezeka (1987), 155 Ill. App. 3d 294, 297.) However, where the pleadings, depositions, and other evidence before the court in a motion for summary judgment show that at trial a verdict would have to be directed, entry of summary judgment is proper. Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 816-17.

In his complaint, plaintiff alleged that defendants violated section 11 -- 1406(b) of the Illinois Vehicle Code, which provides as follows:

"(b) No passenger in a vehicle or streetcar shall ride in such position as to interfere with the driver's or motorman's view ahead or to the sides, or to interfere with his control over the driving mechanism of the vehicle or streetcar. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-1406(b).)

Plaintiff further alleged that as a direct and proximate result of the defendants' violation of section 11 -- 1406(b), there was interference with the control of the driving mechanism or steering wheel of the truck in which plaintiff was riding.

To prevail in a cause of action sounding in negligence, a plaintiff must establish that the defendant owed plaintiff a duty; that the defendant failed to perform such a duty; and that an injury proximately resulted from a breach of that duty. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374.) Plaintiff and defendants here rely on certain portions of Schiera's deposition to support their varying positions. In order to achieve a complete understanding of Schiera's testimony as it relates to the critical issue here, we have set that portion of his deposition out in toto as follows:

"Q. (By Mr. Dorn, defendant Marr's attorney) Immediately before your truck left the road, did the presence of any of the people, any of the passengers either individually or collectively impede or impair your ability to control the truck?

A. Well, I mean it wasn't like it was comfortable driving, okay. I mean there were four people in the cab. It wasn't like it was totally -- it wasn't like I was driving under normal conditions.

I mean there was, you know, that added crowdedness, and the wheel, instead of being directly in front of me, was over to the right a little bit.

Q. In other words you were all ...

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