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March 11, 1994


Appeal from the Circuit Court of Cook County. The Honorable Stephen A. Schiller, Judge Presiding.

Rehearing Denied April 7, 1994. Released for Publication April 19, 1994.

Egan, McNAMARA, Rakowski

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

The plaintiff, Thomas Payne, filed an action against several defendants, seeking recovery for personal injuries he suffered in an automobile accident with Aida M. Begeman, who was killed in the accident. He later added Edward L. Begeman, the administrator of Aida's estate, as one of the defendants. The trial Judge granted Edward Begeman's motion for summary judgment. The only parties to this appeal are Payne and Edward Begeman. Payne contends that the trial Judge based his summary judgment order on incompetent evidence and that there is a genuine issue of material fact precluding summary judgment.

The evidence came from several depositions which indicate the following facts. On November 29, 1987, Payne was injured when Aida Begeman's car struck his car as he was traveling westbound on 95th Street. Payne has no memory of the collision.

Aida's automobile, a small car, hit Payne after the defendant, Roberta Mroz, driving a large Ford LTD, struck Aida. Both Mroz and Aida were driving eastbound on 95th Street, which has four lanes. Mroz was in the far eastbound lane and Aida was in the middle eastbound lane, next to the median. Mroz believed Aida's car was traveling at approximately 30 miles per hour. Aida was driving in a proper manner and was completely within her lane at all times before the crash.

As Mroz drove eastbound and approached the overpass which allows Harlem Avenue to go over 95th Street, she suddenly saw a car "dead stopped" in her lane. The weather was "icy and snowing." The stopped car was in effect trying to merge into traffic on 95th Street from an interstate exit. Mroz, who was intoxicated, was driving at approximately 35 miles per hour and believed she could not avoid a collision with the stopped car if she stayed in the far eastbound lane. Therefore, she quickly swerved into the middle eastbound lane. As Mroz switched lanes, the left front corner of her car hit the right rear side and corner of Aida's car. This impact was "heavy [and] hard." Aida's car then traveled across the median, and hit the plaintiff's car in the middle westbound lane. Mroz said the median strip was about five feet wide; it was concrete and "just like a curb."

Mroz saw Aida's car go over the median and collide with the plaintiff's car. Aida "was trying to steer to avoid the head-on traffic," but "skidded" into the westbound lanes. Mroz explained, "At that point, [Aida] just panicked or I don't know, well, what would you do if you got hit like that? She skidded." Mroz believed Aida used her brakes because of the manner in which her car skidded; she said, "I am sure [Aida] definitely hit her brakes right when I hit her." Mroz repeatedly stated that Aida could not have avoided the collisions with her LTD or with the plaintiff. Mroz's LTD "pushed" Aida into the westbound lanes and Aida "couldn't have done anything different than what she did."

Richard and Theresa Mora were in a car traveling westbound on 95th street when the accident occurred as they drove past. They were in the middle westbound lane and were traveling at approximately 40 miles per hour; they slowed to an "immediate stop" when they saw the LTD hit Aida's car. Both saw Mroz hit Aida as they passed, then they turned and looked out the back window to see Aida crash into the plaintiff.

Richard first noticed the LTD after he drove under the Harlem Avenue overpass; the car drew his attention because it was moving very quickly, approximately 60 miles per hour. Richard stated Mroz "was driving like a maniac." Aida was simply "keeping up with the flow of traffic." Theresa did not notice Mroz or Aida before they crashed. Theresa said the median was 10 to 15 feet wide, but she was not sure; the median was raised a "matter of inches."

According to Richard, the LTD struck Aida "hard enough to knock [Aida's] car into the median strip, and [her] car just started sliding." He continued, "The way [Aida] was hit, she went straight across--her car was just sliding all over like she just completely lost control." The manner in which Aida slid made "it look[] like she was trying to control her car." Also, "she tried braking after the struck her." Richard did not see any way for Aida to avoid "the accident."

Mroz executed a U-turn and fled the scene at a high rate of speed heading west. Richard Mora followed her car, and at one point he was close enough to take down her license plate number which he reported to the police. Mroz was later convicted of vehicular homicide and was sentenced to the penitentiary.

Theresa stated that Mroz "forced" and "pushed" Aida onto the median. At first she said Aida could not have avoided hitting the plaintiff, then she stated: "Well, I can't really say that. I don't know what was going through her mind, but she was forced over." Aida "did not skid, [but] just went over" the median. Theresa Mora testified that she did not notice whether Aida had her brake ...

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