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CHOE v. ASHDOWN

December 4, 1992

ALLEN J. CHOE, Administrator, etc., Plaintiff,
v.
PAUL FRANK ASHDOWN, et al., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

MEMORANDUM OPINION AND ORDER

 Allen J. Choe ("Choe"), administrator of the estate of his deceased daughter Janette ("Janette"), has brought this diversity-of-citizenship action against Paul Frank Ashdown ("Ashdown") and American Transport, Inc. ("American"), *fn1" seeking damages for Janette's wrongful death as well as for personal injuries that she had sustained in the same occurrence. Defendants have now moved for summary judgment under Fed. R. Civ. P. ("Rule") 56, and the motion has been fully briefed. *fn2" For the reasons stated in this memorandum opinion and order, defendants' motion is denied.

 Background3

 On May 2, 1990 Janette left an after-school tutoring session and headed for home on her bicycle (Choe Dep. 22-23). Truck driver Ashdown waited at the intersection of Dundee Road as Janette traveled west on Dundee through the crosswalk (Ashdown Dep. 81). He watched her angle southwest out of the intersection and onto a sidewalk running parallel to Sanders Road (id. 83-85). Ashdown then turned left onto Sanders Road and traveled south 250 to 300 feet (id. 89-91). As he then turned right into the parking lot of the Sanders Court shopping center, an observer (Sue Foster) screamed for him to stop (id. 108). He did so, but not before the wheels of his semi had run over Janette (Foster Dep. 20, 34). Janette was dead when police officers arrived on the scene (Officer Terrance Ryan Dep. 16).

 Choe, Janette's father and the administrator of her estate, has brought this two-count action pursuant to the Illinois Wrongful Death Act (Ill. Rev. Stat. ch. 70, P 1) and the Illinois Survival Act (Ill. Rev. Stat. ch. 110-1/2, P 27-6). Both counts charge that Janette's death was the result of Ashdown's negligence. But defendants' summary judgment motion maintains that a dearth of evidence and eyewitness testimony would render any jury verdict in Choe's favor a matter of mere speculation on the issues of negligence and proximate cause, so that summary judgment is proper.

 Rule 56 Standard

 Only a portion of the familiar Rule 56 formulation requires attention here--that negating summary judgment if any material (that is, outcome-determinative) fact is in dispute. As Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986) put it:

 As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the trial will properly preclude the entry of summary judgment.

 And in that respect, this Court must resolve factual disputes in Choe's favor in a generous manner ( Anderson, 477 U.S. at 255 ("evidence of the nonmovant is to be believed, and all justifiable inferences must be drawn in his favor"); accord, Allensworth v. General Motors Corp., 945 F.2d 174, 178 (7th Cir. 1991) (speaking in terms of "all reasonable inferences")).

 Source of Law

 In this diversity case, this Court looks first to Illinois' choice-of-law rules ( Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 85 L. Ed. 1477 , 61 S. Ct. 1020 (1941)). In tort cases Illinois courts follow the Restatement's "most significant contacts" approach, requiring the consideration of four factors ( Ingersoll v. Klein, 46 Ill. 2d 42, 4748, 262 N.E.2d 593, 596 (1970)):

 (a) The place where the injury occurred. (b) The place where the conduct occurred. (c) The domicile, nationality, place of incorporation and place of business of the parties. (d) The place where the relationship of the parties is centered.

 Three of those four factors (the injury, the conduct and the parties' relationship) point to Illinois. Those elements plus Choe's Illinois domicile heavily outweigh the only non-Illinois elements: Ashdown's Minnesota citizenship and American's dual Michigan citizenship under 28 U.S.C. § 1332(c)(1). It is thus unnecessary to resort to the presumptive importance that is accorded to the place of injury under the most-significant-contacts test ( In ...


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