United States District Court, N.D. Illinois
June 10, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Janet Conover, individually and as mother and next
friend of Troy Heinemann, filed a two-count complaint based on
diversity jurisdiction and alleging that defendant, Walter
Erhard, was negligent when, while driving a vehicle on a roadway
in Richmond, Illinois, he struck Heinemann who was crossing the
roadway on foot. Defendant moved for summary judgment, contending
that as a matter of Illinois law he cannot be found liable for
Summary judgment should only be granted when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. Lucas v. Chicago
Transit Authority, 367 F.3d 714, 720 (7th Cir. 2004). In
ruling on such a motion, the court must construe all facts in a
light most favorable to the non-moving party as well as view all
reasonable inferences in that party's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In this case, the parties
correctly agree that Illinois substantive law applies.
Defendant's motion for summary judgment is premised upon two
alternative contentions: (1) that defendant is precluded from
liability because under the circumstances no trier of fact could
find him negligent because the accident was unavoidable on his
part: and (2) that his conduct could not be found to be the
proximate cause of the accident.
While the evidence developed in this case so far paints a very
weak picture of liability on the part of defendant, it cannot be
said that no reasonable jury could find defendant negligent in
striking Heinemann with his vehicle. Nor can it be concluded as a
matter of law that defendant's conduct was not the proximate
cause of Heinemann's injuries. See Gatlin v. Ruder,
137 Ill.2d 284, 293 (1990) (issue of proximate cause ordinarily one for the
trier of fact).
The line of cases relied on by defendant involving pedestrians
struck by motor vehicles are of no avail at this stage of the
proceedings as they did not involve a motion for summary
judgment, although they further demonstrate the weakness of
plaintiff's case. Similarly, those cases disposed of by summary
judgment on the issue of proximate cause are distinguishable from
this case as they deal with situations where a vehicle suddenly
and unexpectedly veered into the path of an oncoming vehicle and
it was determined as a matter of law that the oncoming vehicle
did not contribute to the accident by failing to avoid it. In the
case of a pedestrian who is struck by a vehicle after running
into the roadway, as in this case, the issue of proximate cause
simply cannot be foreclosed at the summary judgment stage as
there remain issues of material fact as to whether the vehicle's
driver could reasonably have avoided the accident.
Because there remain questions of material fact and defendant
has not shown he is entitled to judgment as a matter of law,
defendant's motion for summary judgment is denied. The parties
are instructed to explore the possibility of settlement with the
magistrate judge at the status conference on June 30, 2004.
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