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Egan v. McCullough

Court of Appeals of Illinois, First District, Third Division

December 11, 2013

ANNE MARIE EGAN, Independent Executor of the Estate of Sarah P. Conway, Deceased; JAMES O'TOOLE, Independent Executor of the Estate of Kathleen O'Toole, Deceased; and THERESE HEIDKAMP JOYA, Independent Executor of the Estate of Mary Therese Heidkamp, Deceased, Plaintiffs-Appellants

Appeal from the Circuit Court, Cook County, Illinois. No. 09 L 9162. Honorable Edward Washington, Judge Presiding.


In an action for the deaths of three passengers of a car struck by a truck while driving on an icy and snow-covered highway, the trial court did not abuse its discretion in refusing to give an instruction that at least one of the drivers was negligent and liable for the deaths, since there was substantial disputed evidence as to whether either driver was going too fast for conditions and whether the truck driver should have attempted to avoid the collision, and the determination of any negligence was left to the jury, which was free to find that both drivers acted reasonably; therefore, the verdict for all defendants was affirmed.

For Plaintiffs-Appellants: Michael T. Gill, Plaff & Gill, Ltd., Chicago, Illinois.

For Defendants-Appellees: Bradford Purcell, Purcell & Wardrope, Edward M. Kay, Clausen Miller, P.C., Joseph DiPino, Beverly & Pause, Chicago, Illinois.

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Mason concurred in the judgment and opinion.


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The executors of the estates of three women killed when the car they were passengers

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in collided with a truck in DeKalb, Illinois, filed a wrongful death action against the driver of the car, the driver of the truck, and the truck driver's employer and its affiliates. Plaintiffs accused the driver of the car and the driver of the truck of traveling too fast for road conditions. Although evidence showed that both drivers were traveling below the posted speed limit, the plaintiffs argued that because it was snowing and the roads were icy, the drivers should have been driving even slower. The plaintiffs also alleged the truck driver was negligent in veering to the right and driving into a field in an effort to avoid the accident.

The jury returned a verdict in favor of all defendants. The jury also answered a special interrogatory as to the truck driver, finding him free from fault. Plaintiffs appealed arguing that in the absence of negligence on the part of the decedents, the circuit court erred in declining to instruct the jury that at least one of the defendants was negligent and thus liable to plaintiffs. But there were genuine issues of fact and liability for the jury to decide and the jury could find none of the defendants legally responsible for the deaths. The trial court did not err in refusing to instruct the jury that at least one defendant must be found liable for the accident that resulted in death of plaintiffs' decedents. We affirm.


The tragic accident that gives rise to this case occurred on December 1, 2008. That morning, defendant Joanne Steenveld, age 70, left her home in Skokie, Illinois, and picked up three friends and fellow parishioners, Sarah Conway, Kathleen O'Toole, and Mary Heidkamp, on the north side of Chicago to travel to DeKalb for the funeral of a friend's husband. Steenveld drove down I-294 south to I-88; she exited northbound on Peace Road, drove past the intersection of Fairview Drive and into the city of DeKalb. After attending the service and a luncheon, at about 2 p.m., the four women began their return trip to Chicago.

Since it had been snowing off and on for most of the day, snow had accumulated on the roads in the area, though the extent to which it affected driving conditions was a matter of dispute. Steenveld planned to take the reverse route she took earlier. She was driving south on Peace Road approaching the intersection of Fairview Drive when she lost control of her vehicle, slid across the center line, into the northbound lane in front of a tractor trailer driven by defendant Lynnard McCullough. McCullough stepped on his brakes and veered to the right into an adjacent field to try to avoid a collision. But Steenveld's car continued to move in the direction of the field, and the vehicles collided there. Two of the car's passengers, Sarah Conway and Mary Heidkamp, died at the scene. Kathleen O'Toole survived the accident, was transferred to a hospital where she underwent surgery, but never regained consciousness. She died three weeks later on December 24, 2008. Steenveld was injured and airlifted to a hospital for treatment and was later released.

On September 29, 2010, plaintiffs filed a second amended complaint against Steenveld, McCullough, and Hogan Dedicated Services, LLC, Hogan Motor Leasing, LLC, and Hogan Personnel, LLC (Hogan), McCullough's employer and its affiliates. Plaintiffs alleged Steenveld and McCullough were negligent in operating their vehicles at speeds too fast for weather conditions and that McCullough was also negligent for leaving the roadway. Before trial, plaintiffs filed motion in limine number 13, asking the court to bar the parties, their attorneys, and witnesses

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from " [a]ny argument, evidence, reference or suggestion that anything other than the alleged negligence of the defendants caused or contributed to cause plaintiff's injuries." No objection was raised, and the circuit court granted the motion.

The evidence at trial showed that it was snowing on December 1, 2008, but witnesses presented conflicting testimony about the condition of Peace Road at the time of the accident. William Rozell was driving northbound on Peace Road, behind McCullough just before the accident. He testified that at 5 a.m. when he drove to work, southbound Peace Road was icy, causing his car to slide, but that when he was returning home at about 2 p.m., he had no problem controlling his vehicle. Rozell did not see McCullough's truck sliding or weaving. Anthony Jovanovich was also driving northbound on Peace Road at the time of the accident, in the vicinity of McCullough's truck. Jovanovich also testified that the roads were slushy and icy but that he had no problem controlling his vehicle. Illinois State Trooper James Glowinski, who responded to the accident, testified that the roads were slick but did not recall any ice. DeKalb County sheriff's detective John Sistema, who arrived at the scene about 30 or 40 minutes after the accident, described Peace Road as " ...

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