COLLEEN K. RETTIG, Plaintiff-Appellant,
RICKY P. HEISER, Defendant-Appellee, and DIANE M. MOORE, Defendant.
In an unusual rear-end collision on an interstate highway that occurred when plaintiff swerved to the left shoulder of the highway to avoid colliding with a motorist who was attempting to merge onto the highway and was struck from the rear by defendant, who was behind plaintiff and also swerved to avoid the merging motorist, summary judgment was properly entered for defendant, since no genuine issue of material fact existed as to whether defendant breached a duty of care to plaintiff and plaintiff could not establish that element of her claim, especially when defendant was driving within the speed limit, other vehicles were on the highway, it was drizzling, and the accident happened in an instant.
Appeal from the Circuit Court of Champaign County, No. 11-L-178; the Hon. Michael Q. Jones, Judge, presiding.
Daniel P. Cusack and Thomas M. Watson (argued), both of Cusack, Gilfillan & O’Day, LLC, of Peoria, for appellant.
James E. Long (argued), of Chapin & Long, of Champaign, for appellee.
Panel JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Harris concurred in the judgment and opinion.
¶ 1 In September 2011, plaintiff, Colleen K. Rettig, filed a complaint alleging negligence against defendants, Ricky P. Heiser and Diane M. Moore, following a vehicular collision between Heiser and Rettig. Moore is not a party in this appeal. Heiser, in July 2012, moved for summary judgment, alleging the facts show his conduct, in avoiding a head-on collision with Moore, was not the proximate cause of Rettig's injuries. The trial court agreed with Heiser and granted his motion. Rettig appeals, arguing summary judgment was improper because (1) in a rear-end collision, the question of whether the rear driver is negligent is a question of fact for a jury to determine; (2) Heiser failed to cite authority in his summary-judgment motion; (3) the emergency-doctrine defense was not pleaded as an affirmative defense or raised until Heiser's reply brief on summary judgment; and (4) no authority supports Heiser's position. We affirm.
¶ 2 I. BACKGROUND
¶ 3 On October 22, 2009, Heiser, trying to avoid Moore's vehicle, drove his car into the rear of Rettig's vehicle. The collision occurred near the intersection of westbound Interstate 74 (I-74) and Interstate 57 (I-57).
¶ 4 A. The Complaint
¶ 5 In September 2011, Rettig filed a two-count complaint against Moore and Heiser. In the complaint, Rettig alleged in count I, at approximately 3:41 p.m. on October 22, 2009, she was driving west on I-74 near the intersection with I-57. Heiser also was driving westbound on I-74 near the I-57 intersection. While Rettig and Heiser approached the intersection, Moore was attempting to merge onto westbound I-74 from I-57. Moore lost control of her vehicle and crossed both lanes of traffic on westbound I-74. Heiser took evasive action to avoid Moore's vehicle and collided with the rear of Rettig's vehicle. In count II, Rettig alleged Heiser was negligent in that he (1) drove at a speed greater than what was reasonable given the traffic conditions; (2) failed to decrease his speed or stop to avoid colliding with Rettig's vehicle, which he should have seen; (3) failed to apply the brakes on his vehicle or turn to avoid Rettig's slowing or stopped vehicle; and (4) followed Rettig's vehicle more closely than was reasonable and prudent. Rettig alleged Heiser proximately caused her personal injuries, which include severe and permanent injuries to her neck and back.
¶ 6 B. Rettig's Deposition
¶ 7 According to Rettig, on October 22, 2009, she was driving home after work in a minivan from Carle Foundation Hospital to Mahomet. The weather "was drizzly." There was no snow, but the roads were wet. Rettig did not notice any "slickness or icy spots." There was a lot of traffic.
¶ 8 As she drove past the Prospect Avenue exit, she was in the right lane. Approximately one-half mile after the Prospect Avenue exit, Rettig moved into the left lane because the "57 interchange area is always busy with people coming up and going down." There was traffic in front of her, behind her, and to her side. Rettig noticed Moore's vehicle coming up from the ramp and saw Moore lose control. Moore's vehicle began spinning and stopped in front of Rettig. Rettig believed the car spun around 2 1/2 times. The front of Moore's vehicle faced Rettig's. Rettig hit her brakes and swerved to the left shoulder to avoid Moore. Rettig did not strike Moore's vehicle, missing it by inches. Rettig estimated she was driving 55 miles per hour as she approached the I-57 exit. Rettig believed the speed limit was 65 miles per hour.
¶ 9 According to Rettig, she first saw Moore's vehicle when it was at the top of the ramp. Moore had not yet entered the right lane on I-74. Rettig could not recall having seen anyone behind her until that point. Rettig testified Moore's vehicle, when Moore lost control, was six to eight car lengths in front of her. When Moore's car turned, facing eastward toward Rettig, three car lengths separated the vehicles. Moore's car then continued moving eastward. Rettig did not see a semitruck (semi) when she saw Moore lose control of her vehicle.
¶ 10 Rettig initially noticed Heiser's vehicle, a pickup truck, after she swerved to avoid Moore. Rettig looked in her rearview mirror and saw Heiser's truck five to six car lengths from hers. Heiser's truck "was coming fast." She knew she "was going to get hit." When Heiser struck Rettig's vehicle, Rettig was driving 35 miles per hour, as she was still in the process of braking. Both vehicles were partly on the shoulder and partly on the road.
¶ 11 Rettig averred the collision occurred "at the pretty beginning of the bridge around the guardrail." She did not believe she was on the bridge over I-57 when the vehicles collided. After Heiser struck Rettig's vehicle, her vehicle propelled forward approximately 15 car lengths. Her vehicle stopped "[b]eyond the bridge." She moved her car to the shoulder.
¶ 12 Rettig described the damage to her vehicle. Her bumper hung from Heiser's bumper. Rettig's whole back end was pushed in and her windshield was gone. Rettig agreed the collision was "kind of a bang, bang, split[-]second decision." Rettig, when asked if it was her intention to stop completely on the shoulder, stated, "I didn't have time to think ...