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04/30/96 JOANNE WATKINS v. NEIL SCHMITT ET AL.

April 30, 1996

JOANNE WATKINS, INDIV. AND AS SPECIAL ADM'R OF THE ESTATES OF JOSEPH HANSEN AND HOWARD HANSEN, DECEASED, APPELLANT,
v.
NEIL SCHMITT ET AL., APPELLEES.



The Honorable Justice Harrison delivered the opinion of the court: Justice Heiple, specially concurring in part and dissenting in part: Justice Nickels joins in this partial special concurrence and partial dissent.

The opinion of the court was delivered by: Harrison

The Honorable Justice HARRISON delivered the opinion of the court:

This case arises out of an automobile collision that took place on Route 12 and the Lake Vista Terrace intersection in Fox Lake, Illinois, on November 28, 1990, at approximately 2:25 p.m. Joseph and Howard Hansen, brothers and high school students, died when the red Ford Escort Joseph was driving was struck by a cement truck. Joanne Watkins, mother and as special administrator of the estates of Joseph and Howard Hansen, brought a wrongful death action naming the following defendants: Neil Schmitt, driver of the cement truck; Meyer Material Company, owner of the cement truck; Sharon Bracher, driver of a school bus; and Fox Lake School District No. 114, owner of the school bus. Watkins alleged that the negligence of defendants caused the injuries and deaths of her sons. The trial court barred a deputy sheriff from testifying as plaintiff's accident reconstruction expert at trial. The deputy sheriff calculated the speed of defendant Meyer's cement truck just prior to the accident and concluded that Schmitt was speeding. After this testimony was barred, the trial court granted summary judgment in favor of all defendants in this case. The appellate court affirmed the circuit court's judgment. No. 2--93--1300 (unpublished order under Supreme Court Rule 23). We allowed plaintiff's petition for leave to appeal. 145 Ill. 2d R. 315.

Plaintiff now raises three issues for our review: (1) whether the deputy sheriff's accident reconstruction testimony as to speed should be admissible; (2) whether the evidence of skid marks and questions concerning Schmitt's exercise of due care raised genuine issues of material fact precluding summary judgment in favor of Schmitt and Meyer Material; and (3) whether evidence of the school bus stopping for several minutes in the right-hand lane of Route 12, blocking the view of other traffic, raised factual questions as to the bus driver's negligence. For the reasons which follow, we hold that the trial court did not abuse its discretion in barring Officer Jansky from giving expert reconstruction testimony at trial, but reverse the trial court's decision granting summary judgment in favor of defendants.

The facts of this case reveal that Joseph and Howard Hansen died when a Meyer Material Company cement truck struck the red Ford Escort Joseph was driving. The accident took place at the intersection of Route 12 and Lake Vista Terrace Road. Route 12 runs north-south and Lake Vista Terrace Road runs east-west. On the day in question, the Meyer cement truck, driven by Schmitt, traveled north in the left-hand lane of Route 12. The Fox Lake school bus, driven by Bracher, also traveled north, but in the right-hand lane of Route 12. Immediately before the accident, the school bus was making or was soon to make a right-hand turn from Route 12 onto Lake Vista Terrace Road. The school bus was required to stop at railroad tracks located approximately 30 feet east of Route 12 at the intersection in question. The railroad tracks ran parallel to Route 12 and crossed Lake Vista Terrace Road very close to the intersection. Thus, when Bracher stopped at the tracks, the rear end of the bus remained in the right-hand lane of Route 12, either straight or at an angle. The cars traveling north in the right-hand lane of Route 12 were stopped behind the school bus for some time. There was testimony that this school bus was stopped, blocking the right-hand lane of Route 12, for at least two minutes.

During these events, Joseph and Howard Hansen had been traveling westbound on Lake Vista Terrace Road. Both Bracher and Ronald McGill, a student monitor on the bus, noticed the red Escort traveling westbound and heading toward the Route 12 intersection. McGill knew the Hansen brothers from high school and noted that Joe Hansen's speed seemed appropriate and normal. McGill further testified that be observed Joe drive over the railroad tracks, come to a complete stop at the Lake Vista Terrace stop sign, and then begin "inching out" into Route 12. When the Escort inched out into the intersection and passed the bus, it was struck by the Meyer Material cement truck. The cement truck, driven by Schmitt, was uninhibited by a stop sign and clearly had the right-of-way.

Schmitt also gave his account of the events leading up to the accident. Originally, Schmitt was in the right-hand lane of Route 12 and all the other traffic merged into this lane because of road construction. Schmitt testified that next, all traffic had to merge into the left-hand lane until eventually, further down Route 12, both lanes were open. Schmitt noted that at this point, the rest of the traffic went back into the right lane, but he stayed in the left. Just before the Lake Vista Terrace Road intersection, Schmitt saw the bus stopped in the right-hand lane with its stop arm out and the rear lights flashing a couple of blocks ahead of him. After the bus retracted its stop arm, turned off its lights, and moved toward Lake Vista Terrace Road, Schmitt accelerated and approached the bus.

Schmitt testified that the first time he saw the red Escort, the bus was in the process of making a right-hand turn and was stopped right before the railroad tracks. Schmitt further stated that immediately prior to the accident, the rear of the bus was still in the right-hand lane of Route 12, blocking virtually all of that lane. Schmitt testified that he had not seen the red Escort coming down Lake Vista Terrace. He recalled that as he came around the bus, he only saw the red Escort a second before impact. Schmitt described the speed of the Escort just prior to impact as "awful fast" and claimed that the Escort appeared to be accelerating. Schmitt stated that at this time, he grabbed the steering wheel to brace himself and applied the brakes with all of his weight, locking them up and sending the truck into a skid. The bumper of the cement truck struck the red Escort just behind the left front wheel on the driver's side at a point in line with the westbound lane of Lake Vista Terrace Road. After striking the Escort, Schmitt's cement truck skidded north of the intersection and spun to a rest in the middle of the southbound turning lane. Schmitt claimed that just prior to the accident, his speed only reached between 20 and 30 miles per hour due to the traffic and road construction on Route 12.

Witnesses are not in agreement as to the exact position of the bus when it stopped at the intersection and the length of time which the bus was stopped. Bracher, the school bus driver, recalled that prior to executing the turn onto Lake Vista Terrace, she did not stop the school bus solely on Route 12. McGill, the student monitor on the bus, agreed that Bracher did not stop on Route 12, but merely slowed down to make the turn. Bracher further testified that she only turned the caution lights on as she made the turn onto Lake Vista Terrace. McGill corroborated her testimony that the red flashing lights and stop arm were never activated. Bracher claimed that she did not come to a stop until she turned the corner onto Lake Vista Terrace. She then made the required stop at the railroad tracks, opened the bus door, looked down the tracks, closed the door, turned off the caution lights, and then proceeded down Lake Vista Terrace. Bracher acknowledged that when she stopped the bus at the railroad tracks, the rear and side of the bus were protruding out into Route 12. McGill agreed with this testimony and recalled that three-quarters of the bus was blocking Route 12 when it stopped at the railroad tracks in question. Both Bracher and McGill stated that the bus was only stopped long enough for Bracher to open the bus door and look down the tracks to make sure that no trains were coming. McGill estimated that the stop lasted approximately a minute or two. The bus then proceeded down Lake Vista Terrace and no one on the bus heard or saw the collision.

In contrast, another witness, Donald Rankin, who was driving behind the school bus in a one-ton pickup truck, agreed with Schmitt that at some point the bus was stopped solely on Route 12, prior to turning onto Lake Vista Terrace Road. He remembered the bus stopping parallel with the other lane of Route 12, with its nose just inside Lake Vista Terrace, and with its stop arm out and red lights flashing. Rankin further recalled that after some time, the school bus retracted its stop arm and turned off the lights. However, according to Rankin, after the bus retracted its stop arm and turned off its lights, it still remained stopped in the right-hand lane for well over a minute and possibly up to two minutes or longer. Rankin commented that it seemed like an abnormally long period of time for a school bus to be stopped with its lights off before it eventually started to move. He estimated that, in total, the school bus was stopped blocking Route 12 for at least two minutes. Rankin stated that, clearly, the school bus would have blocked the vision of both the driver of the cement truck and the driver of the Escort.

Rankin also observed the cement truck and Escort prior to the accident and saw the impact take place. He stated that when he was stopped behind the school bus originally, he checked his rearview mirror and saw the cement truck about two-tenths of a mile down the road in the left-hand lane. Rankin recalled that after the school bus had taken down its stop arm and turned off its lights, the cement truck approached and eventually passed his vehicle. Although there are varying reports as to which lights flashed and whether the stop arm was activated, no claim is made by anyone that Schmitt illegally passed the bus when the stop arm was extended or flashing lights showed.

Rankin further testified that he first spotted the red Escort going west on Lake Vista Terrace. He claimed that the red Escort was moving fast. He noted that as the Escort pulled into the intersection, he only saw a blur of red in front of the school bus just prior to the impact. Rankin also questioned whether the Escort actually stopped at the stop sign prior to entering the intersection of Route 12 and Lake Vista Terrace Road. However, he acknowledged that he could not actually see whether the Escort stopped because his view of the stop sign was blocked by the school bus. In contrast, as stated, McGill, the school bus monitor, had a clear view of the Escort at the stop sign. McGill testified that he was positive the Hansen vehicle came to a complete stop and then began "inching" out into the intersection.

Evidence was also presented regarding the speed of the Meyer cement truck. As stated, Schmitt testified that when both lanes of Route 12 opened up, he remained in the left lane and the rest of the traffic moved over to the right. He recalled that he was driving between 20 and 30 miles per hour, and that he accelerated when he saw the lights quit flashing and the stop arm come in on the school bus. Schmitt passed the bus and then slammed on his brakes a second before impact. Rankin also estimated that the speed of the Meyer cement truck was between 20 and 30 miles per hour. He further stated that the cement truck had no opportunity to avoid the collision. Another eyewitness, Walter Simpson, was driving directly behind the Meyer cement truck and witnessed the collision. Simpson estimated that he was driving approximately 50 feet or three or four car lengths behind the cement truck prior to impact. He testified that just prior to the collision he was traveling between 30 and 35 miles per hour and thought that he was moving about the same speed as the cement truck. Simpson based this estimate on the fact that the cement truck was not leaving him far behind and he was not catching up close to the truck. Thus, two eyewitnesses and the driver of the cement truck testified that the truck was traveling between 20 and 35 miles per hour.

In contrast to this eyewitness testimony, the record in this case also includes the filed deposition of Lake County Deputy Sheriff John Jansky. Officer Jansky calculated that the cement truck was speeding at the time of the accident. Officer Jansky testified that prior to investigating the accident in question, he had taken week-long courses in on-the-scene accident investigation and vehicular dynamics at the Northwestern Traffic Institute. He further stated that since 1984, he has performed various calculations at accident scenes and testified in several criminal cases. However, Officer Jansky has never taken the test for state certification in accident ...


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