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Jacob Merca, Individually and As the Administrator v. Diana J. Rhodes

September 30, 2011

JACOB MERCA, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF CASSANDRA MERCA, DECEDENT,
PLAINTIFF-APPELLANT,
v.
DIANA J. RHODES,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County No. 07 L 9914 The Honorable Eileen Brewer, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Robert E. Gordon

PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.

Justices Cahill and Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Jacob Merca, individually and as the administrator of the estate of Cassandra Merca (decedent), appeals an order of the circuit court of Cook County granting summary judgment in favor of defendant, Diana Rhodes, finding that the death of the decedent was an "unavoidable accident" in a wrongful death action resulting from an automobile collision with decedent, a 14-year-old pedestrian. Plaintiff argues that the evidence presented showed a genuine question of material fact and should be decided by a jury. For the following reasons, we reverse.

¶ 2 I. BACKGROUND

¶ 3 A. Parties

¶ 4 Plaintiff Jacob Merca brought a wrongful death action individually and on behalf of his daughter, decedent Cassandra Merca, against defendant Diana Rhodes, the driver of the vehicle that struck the decedent and another girl, Natalie Roth (Natalie). There were multiple eyewitnesses at the scene. Evayn Roper (Evayn), Andrea Colisimo (Andrea), Jessica Roche (Jessica), Sharon Dorencz (Sharon), Cesar Pacheco (Cesar) and Palos Park police officer Jason Caiazzo (Caiazzo) all gave depositions as to the occurrence that were included as part of the summary judgment proceedings. Accident reconstruction experts Chicago Ridge police officer Eric Kaspar (Kaspar) and Warren Beine (Beine) also gave depositions and provided their opinions as to the occurrence. Natalie also gave a deposition.

¶ 5 B. Plaintiff's Arguments

¶ 6 Plaintiff argues that there was a question of material fact as to whether the accident was avoidable, claiming that the questions of negligence and proximate cause are questions that must be decided by a jury. Plaintiff argues that the defendant breached the duty owed by an automobile driver to pedestrians since she knew that there might be children present at the intersection at the time of the accident and she should have been driving at a slower rate of speed. Plaintiff further argues that the defendant's negligence was a proximate cause of the decedent's death.

¶ 7 C. Motion for Summary Judgment

¶ 8 Defendant filed a motion for summary judgment on June 18, 2010, arguing that she did not breach her duty of using due care as she was driving her vehicle and did not proximately cause the death of the decedent. Defendant argues that there was nothing the defendant could have done to avoid the accident, because the decedent appeared in front of the defendant's vehicle "only a split second before impact."

¶ 9 D. The Occurrence

¶ 10 Natalie, age 15, testified in a discovery deposition that on March 22, 2007, she, the decedent and Evayn, age 15, were scheduled to participate in a girls' junior varsity water polo game at Carl Sandberg High School, where they were students, at 6 p.m. The girls were required to attend the varsity game at 5 p.m. School was over at approximately 3 p.m. Natalie testified that after the girls left school at 3:00 p.m. they intended to go to a nearby Jewel to purchase some food. The Jewel is located in a shopping center, located at the intersection of 131st Street and 97th Avenue. The high school is located at 13300 South LaGrange Road, also known as 96th Avenue in Palos Park. 131st Street is a public highway that has two lanes running in an easterly direction and two lanes in a westerly direction with turning lanes and a 40-mile-per-hour speed limit. LaGrange Road (96th Avenue) is a public highway that runs in a northerly and southerly direction. There are two signs warning drivers of a crosswalk and that there may be children crossing at the intersection. Natalie testified that walking over to the Jewel was a common occurrence for the girls because the school did not have food available for them before athletic events.

¶ 11 Natalie testified that at the time of the occurrence at or about 4 p.m., eastbound traffic on 131st Street was backed up all the way into the crosswalk at 96th Avenue and some of the traffic was backed up into the intersection at 97th Avenue. The crossing guards were not in attendance at this hour. When the girls arrived at the intersection, the light was green for both eastbound and westbound vehicular traffic on 131st Street. Natalie testified that she was familiar with the intersection, and kids from school "often cross over to the shopping center from the high school." The girls started to walk across 131st Street starting from the southeast curb in the crosswalk against the light, and Natalie observed that the westbound lanes were clear even though the eastbound lands were backed up into the intersection and the crosswalk that the girls were using. Natalie testified the girls wove in between the backed-up eastbound vehicles that were in the crosswalk and stopped in the middle of the street. After leaving the curb, they started to walk then jog across the street; the decedent ran first, Natalie followed, and Evayn was third. Natalie passed the decedent and continued to jog or run into the westbound lanes when the defendant's vehicle struck her in the right leg causing her to fall to the ground. She did not look to her right for westbound vehicular traffic before she was hit. The decedent was then struck by defendant's vehicle.

¶ 12 Natalie did not observe the vehicle coming so she could not determine how fast it was moving, nor did she hear any sound (squealing) of brakes being applied. After Natalie was struck, she testified the decedent was also struck and knocked into the air by defendant's vehicle. Natalie did not know whether they were still in the crosswalk when the impact occurred. However, Natalie testified she "did not see" the impact with the decedent. The decedent landed on her head, was rendered unconscious and taken to a hospital by ambulance where she later died.

¶ 13 Natalie testified that there are normally children on or about the school area well after the school classes actually are over.

¶ 14 Evayn testified in a discovery deposition to substantially the same events as described by Natalie. Evayn testified that she had walked to the Jewel "regularly" and that it was "common" for a lot of members of the water polo team to visit the Jewel before games. Evayn testified that she "push[ed] a button on the pole that controls the 'walk' signals." Evayn testified that the signal said "Don't Walk" and then Natalie, the decedent and Evayn started running. Evayn testified she then turned around to walk back, but then turned back around to see if Natalie and the decedent had also turned to follow her back to the corner.

¶ 15 Evayn testified that when she turned back to look for Natalie and the decedent, they were both running toward the westbound lanes. Evayn then characterized their pace as a "fast jog." Evayn testified she did not observe the defendant's vehicle "until a split second before" impact with Natalie and she had to "look through cars in the eastbound lane" in order to observe the accident. Evayn testified "I saw them running and then I saw the car come. It was like not like a second after when I first saw the car, it was fast." Evayn further testified that she heard no horns and no sounds of brakes, no screeching of tires, and that the vehicle did not swerve. Evayn testified that after Natalie was hit, the decedent was then hit by the "middle" of the "front bumper" of defendant's vehicle. Evayn testified the decedent was knocked in the air and then landed in the street, unconscious, and that she, Evayn, then ran back to the school to tell the coaches.

¶ 16 The defendant, a school teacher employed by North Palos School District 117, testified in a discovery deposition that she was on her way home after stopping to have her car washed at a Shell station located near the subject intersection. She knew that the high school was in the vicinity and covered the area on 131st Street up to LaGrange Road. Defendant testified she "had been down that road dozens of times," and there was "heavy traffic" proceeding eastbound on 131st Street. Defendant's "best estimate" of her highest speed on 131st Street was between 30 to 35 miles per hour. She knew the speed limit on 131st Street to be 40 miles per hour. Defendant testified that as she approached the intersection in a westerly direction, her foot was on the accelerator when she observed both Natalie and the decedent running between the motor vehicles on her left. Her first reaction was to stop her vehicle, but she admitted she did not know if she managed to hit the brake by the time she hit the decedent.

¶ 17 The defendant testified that one of the girls was in front of the other and that she was not aware that she had struck Natalie with the right front edge of her vehicle. Defendant then testified she struck the decedent "between the driver's side and the middle" of her vehicle. Defendant testified there were no obstructions to her vision "other than the vehicles" in the eastbound lane.

¶ 18 There were multiple eyewitnesses at the scene. Andrea Colisimo, age 17, was in a vehicle with Jessica and Sara Olson (Sara). Andrea testified at a discovery deposition that she was in the front passenger seat in Sara's vehicle, a large Dodge Ram pickup truck. Andrea testified their vehicle was first in line in the left turn lane for westbound traffic, and that they had a green light but could not turn because of the stopped traffic in the eastbound lanes of 131st Street. Andrea also testified that there are signs on 131st Street indicating that drivers should be cautious, as there is a school crosswalk ahead. Andrea then testified that due to the signs, she "knew that [she] should be cautious." Andrea further acknowledged that it was common for the eastbound traffic on 131st Street to be backed up at 4 p.m. and for the traffic to be blocking the intersection and crosswalks. Furthermore, Andrea testified it was not unusual for students to "zigzag" between the stopped eastbound traffic in the crosswalk to continue on their way to the shopping mall.

¶ 19 Andrea observed Natalie and the decedent passing between the eastbound vehicles. Next, Andrea observed Natalie and the decedent "running" past the front of the Dodge Ram where she was seated. Andrea testified one of the girls was a "couple feet" in front of the other, and that prior to the impact, she observed the defendant's vehicle "out of the corner of her eye." Andrea testified that she observed the defendant's vehicle "a split second before the impact occurred." Andrea testified she "saw the impact," and observed the decedent "fly up in the air." Andrea testified she heard the screeching of brakes, but she does not recall whether it was before, during, or after the impact. Andrea further testified as follows:

"We're sitting in the left-turn land, and we can't get through because the traffic is all blocked. And I saw the three girls come up, and I know one stayed by the sidewalk or she wasn't crossing, and the two girls were kind of zigzagging through the cars. And they went ...


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