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04/25/89 Robbie Alan Novander, v. the City of Morris Et Al.

April 25, 1989

ROBBIE ALAN NOVANDER, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

THE CITY OF MORRIS ET AL., DEFENDANTS-APPELLEES (MORRIS HOSPITAL ET AL., DEFENDANTS; THE CITY OF MORRIS, DEFENDANT-COUNTERPLAINTIFF; TIMM PEARSON ET



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

al., Defendants-Appellees)

537 N.E.2d 1146, 181 Ill. App. 3d 1076, 130 Ill. Dec. 817 1989.IL.600

Appeal from the Circuit Court of Grundy County; the Hon. Robert G. Wren, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. WOMBACHER, P.J., and STOUDER, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The plaintiff, Robbie Novander, brought suit for personal injuries sustained by him as a result of a motorcycle accident that occurred on June 26, 1984. The circuit court of Grundy County dismissed counts I and II of the plaintiff's fourth amended complaint, which were brought

Robbie Novander was driving his motorcycle westbound on Griggs Drive in the City of Morris while the defendant, Timm Pearson, was driving his father's grain truck eastbound on Griggs Drive. Pearson was delivering a load of grain to the Continental Grain facility located on Griggs Drive near the accident site. Pearson drove his truck into Novander's westbound lane, apparently to avoid large potholes in the roadway and driveway entrance to Continental Grain. Allegedly, the vision of both drivers was obscured by foliage along the northerly edge of Griggs Drive. A collision occurred and the plaintiff's leg was seriously injured.

Initially, the plaintiff filed an action against Timm Pearson, Pearson's father, and the City, but eventually added claims against Continental, Morris Hospital, and Dr. Douglas Adelmann. The Pearsons and Novander reached a settlement on Novander's negligence claims in the amount of $406,000. Based on the trial court's determination that the settlement agreement was reached in good faith, the City's counterclaim for contribution against the Pearsons was dismissed. The claims against Morris Hospital and Dr. Douglas Adelmann are not involved in this appeal.

On appeal the plaintiff argues that it was reasonably foreseeable that Timm Pearson, to avoid potholes, would alter his pattern of travel as a result of the negligent acts or omissions of the City and Continental. While we agree that it is foreseeable that a driver might choose to avoid potholes by altering the path of his vehicle, we do not find that the potholes or other conditions on the roadway were the proximate cause of the collision.

What constitutes the proximate cause of an injury in a particular case is ordinarily a question of fact to be presented to the jury, and it can only be a question of law where there can be no reasonable differences in the inferences to be drawn by reasonable men from the undisputed facts. (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76.) Proximate cause is one which produces the injury through a natural and continuous sequence of events unbroken by any effective intervening cause. (Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360.) As was discussed by the Illinois Supreme Court, a "cause v. condition" analysis has evolved in examining whether proximate cause exists in certain situations:

"[If] the negligence charged does nothing more than furnish a condition by which the injury is made possible and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury where the subsequent act is an intervening efficient cause which breaks the causal connection between the original wrong and the injury, and itself becomes the proximate or immediate cause." Merlo v. Public Service Co. (1942), 381 Ill. 300, 316.

In Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, the appellate court was called upon to apply the "condition v. cause" doctrine. In that case, a negligence claim was brought for injuries sustained in an automobile accident allegedly caused by malfunctioning left-turn traffic arrow signals. The driver apparently believed she had time to safely make the turn before an oncoming vehicle entered the intersection. The court stated:

"[The driver's] decision to turn was based strictly on her own assumption that it was safe to do so when, in fact, she admitted she had no way of knowing whether oncoming traffic actually had a red light and in spite of the fact she knew a full green light meant she had to yield the right-of-way. No ...


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