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Nowak v. Coghill

May 21, 1998

JOSEPH NOWAK, PLAINTIFF-APPELLANT,
v.
DONALD AND LAUREL COGHILL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 96--L--1 Honorable Terrence J. Brady, Judge, Presiding.

The opinion of the court was delivered by: Justice Doyle

THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Plaintiff, Joseph Nowak, appeals from a circuit court order that granted summary judgment against him and in favor of defendants, Donald and Laurel Coghill. In his amended complaint, plaintiff alleged that he was injured as a result of defendants' negligence when he slipped and fell on an unnatural accumulation of snow on defendants' property.

On appeal, plaintiff contends that the grant of summary judgment in favor of defendants was improper because the trial court erred when it (1) found that there was not an unnatural accumulation of snow on defendants' driveway; (2) ruled that there was no evidence of an unnatural accumulation of snow that could be argued to be a proximate cause of plaintiff's fall and injuries; and (3) determined that the Dead-Man's Act (735 ILCS 5/8--201 (West 1996)) did not preclude certain testimony by defendant Laurel Coghill.

We note that defendant Donald Coghill died while this lawsuit was pending and that Laurel Coghill was appointed the representative of Donald's estate for this lawsuit. For convenience, when we refer to "defendant" we refer to Laurel Coghill.

Plaintiff's amended complaint alleged the following: at about 11 a.m. on January 2, 1994, plaintiff, who owned and operated a tow truck service, arrived at defendants' residential property in Fox Lake to provide towing services for defendants at defendants' request; plaintiff parked his tow truck on defendants' sloped driveway; plaintiff exited the truck in order to get the keys to defendants' car, which had stalled at another location; defendants had previously shoveled snow from their driveway and piled the snow "along the side of the driveway," creating an unnatural accumulation of snow; because the driveway was narrow, plaintiff necessarily stepped on the piled snow when he exited the tow truck; after plaintiff received the keys from defendant and while he was still out of the tow truck, the tow truck began to roll backward down the driveway; plaintiff started down the driveway toward the moving tow truck; upon reaching the tow truck, plaintiff necessarily had to step in the piled snow on the side of the driveway in order to reach the driver's side door of the truck; and the piled snow caused plaintiff to fall, resulting in severe head injuries to plaintiff.

In their motion for summary judgment, defendants argued that (1) they owed no duty to plaintiff because any snow that was on the driveway after defendants had shoveled the driveway was a natural accumulation; (2) there was no evidence of negligence with respect to any unnatural accumulation of snow; and (3) plaintiff could not establish that any act or omission by defendants proximately caused his fall.

Defendants attached two depositions to their motion for summary judgment. One of the attached depositions was that of defendant, Laurel Coghill. Defendant's deposition testimony included the following: some time after 8 a.m. on the morning of January 2, 1994, defendant's car broke down about five miles from her home as she was returning home from work; it was overcast that day and there had been a little bit of snow for about a half hour starting around 10 a.m.; the snow was not heavy enough to accumulate, but it made the ground wet; the most recent snow prior to that day had started on the evening of December 31, 1993, and continued until about 5 p.m. on January 1, 1994; that snow caused an accumulation of about one-half inch; defendant and a friend had used shovels and a snow blower to clear defendants' driveway after that snow; they had pushed most of the snow off the driveway to the right side of the driveway as one faces the house, i.e., the south side of the driveway; through a friend, defendant had arranged for plaintiff to come to defendant's house, pick up her car keys, and go get her car with his tow truck; when plaintiff arrived at defendant's residence, he pulled his tow truck onto the driveway about even with a set of concrete steps that connected the driveway to a sidewalk that led to the front porch of defendant's house; defendant was standing on her front porch waiting for plaintiff when he arrived; plaintiff got out of the truck and walked to the front porch; on the front porch, defendant gave plaintiff her car keys; suddenly there was a "clink-clonk" sound and the tow truck started rolling down the driveway; when the sound occurred, plaintiff turned and, without saying anything, ran down to the driveway and down the driveway to try to catch the truck; although the truck was gaining speed, plaintiff reached the truck; when he reached the truck, plaintiff was on the grass which was wet; plaintiff managed to open the truck door, but he was "slipping and sliding around" and the door of the truck opened and hit plaintiff's head; this occurred just past a tree that was in defendant's yard near the driveway; when the door hit plaintiff, it knocked him down and apparently knocked him out because he just lay on the grass after he fell; at the time plaintiff fell, the "line" separating the north side of the driveway and defendant's yard was not covered by snow or ice.

The other deposition attached to defendants' motion for summary judgment was plaintiff's. Plaintiff's deposition testimony included the following: plaintiff has only a limited recall of the events that occurred on January 2, 1994; plaintiff recalled parking his tow truck on defendant's driveway on that day but did not recall the exact spot on the driveway where he parked the truck; plaintiff did not recall if there was snow on the driveway at the time but recalled snow in the area; plaintiff recalled that the driveway was rather narrow and that when he got out of the tow truck he stepped on a pile of snow; plaintiff could not recall the size or depth of the snow pile, but he did recall that the snow pile was hard; plaintiff recalled leaving the tow truck running and closing the door of the tow truck; plaintiff did not recall what course he took to get to the porch of defendants' house, but he remembered being at the door of the house; plaintiff recalled getting keys from a woman and hearing a noise; the next thing plaintiff could recall was when he "woke up in the hospital with brain surgery"; plaintiff did not recall specifically whether he was on the driveway or on the area next to the driveway when he fell.

The record contains several other depositions. One of these is the deposition of plaintiff's adult son, Joseph S. Nowak (Joseph). Joseph's deposition testimony included the following: on January 2, 1994, after being notified of his father's accident, he went to the scene of the accident; he arrived at the scene while the ambulance that later took his father to the hospital was still there; his father was in the ambulance when he arrived; the tow truck at that time was against two trees in a neighbor's yard across the street from defendants' driveway; shortly after arriving at the scene, he talked to defendant; defendant was upset because her car keys were missing; defendant told Joseph that plaintiff fell by the tree; Joseph searched for defendant's car keys and found them "on the grass" about 10 to 15 feet north of the driveway and about halfway between the tree and the concrete steps near the driveway; there was snow piled along the north side of the driveway as if someone had shoveled the driveway; the piled snow was about one foot wide and from four to six inches deep; the piled snow was "right along the edge" of the north side of the driveway and was generally on the outside of the driveway.

The deposition of Robert Luerssen is also in the record. Luerssen's testimony included the following: he has been a Fox Lake police officer for about 20 years; on January 2, 1994, he was on duty and was called to defendant's residence in response to plaintiff's fall; he was the first police officer to arrive at the scene; he saw plaintiff's body lying on the ground near the tree; there was nothing to indicate that plaintiff's body had been moved before Luerssen arrived at the scene; plaintiff's body was lying in a north-south direction; plaintiff's body was lying on the "line" separating the north edge of the driveway from the yard; plaintiff's body was partly on defendants' driveway and partly on defendants' yard; plaintiff's feet and his legs, up to about his upper thighs, were on the driveway; the upper portion of his body was on the yard; Luerssen noticed snow on both the yard and the driveway; he did not recall any evidence of shoveling or any piles of snow; he observed plaintiff's footprints on the driveway near where the body was found; based on these footprints, Luerssen opined that plaintiff was on the driveway when he fell; Luerssen did not include this opinion in his official report of the incident because, based on defendant's account of the incident, Luerssen believed that the cause of plaintiff's fall was the door of the tow truck hitting plaintiff; when Luerssen observed the tow truck sitting in the neighbor's yard, he noticed that the driver's door was open.

The deposition of Mary Ann Nowak (Mary), plaintiff's wife, is also in the record. Mary's testimony included the following: on January 2, 1994, she arrived at the scene of plaintiff's accident after plaintiff had been placed in the ambulance; the ambulance was still at the scene; there was no snow on the driveway, but the driveway was wet; there were snow piles on each side of the driveway as if the driveway had been shoveled or plowed; the snow piles were about three to four inches deep; some of the piled snow extended onto the driveway for about four inches on both sides of the driveway; the piled snow that extended onto the driveway was along the entire length of the driveway on both sides of the driveway.

After conducting a hearing on the matter, the trial court entered an order granting defendants' motion for summary judgment. In oral remarks made at the hearing, the trial court found that "there is no evidence of an unnatural accumulation [of snow or ice] which could be argued to be a proximate cause of the plaintiff's fall and injury." The trial court also found that Officer Luerssen's testimony did not support a finding of negligence against defendants because his testimony placed plaintiff "directly on the driveway as the site of the fall when, in fact, there is no evidence of an unnatural accumulation of snow and ice on the driveway itself." Plaintiff's timely notice of appeal followed.

In appeals from summary judgment rulings, we conduct a de novo review of the evidence in the record. Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 7 (1997). Summary judgment should be granted only if the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in the light most favorable to the non-movant, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1996); Berlin, 179 Ill. 2d at 7. Although summary judgment is to be encouraged to expedite the Disposition of lawsuits, it is a drastic ...


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