2020 IL App (2d) 190955
Ill. App. Ct.2020Background
- On March 12, 2014 a southbound tractor-trailer driven by Israel Vela struck Gina Brettman’s vehicle at a Route 47/Kreutzer Road intersection undergoing construction; temporary signal heads were higher than the 25.6-foot MUTCD maximum (one at 29 ft where Vela drove).
- Vela testified he saw the permanent signals covered with tarps, slowed and searched for other control (e.g., stop sign), then “rolled” through the intersection and only saw the temporary red signal too late to avoid the crash.
- Plaintiff (Brettman) sued Plote and Virgil Cook alleging negligent placement of temporary signals; defendants moved for summary judgment. Brettman submitted four affidavits including an expert Rule 191 affidavit by Dr. David Noyce explaining human-factors/perception causes for a look-but-fail-to-see result.
- The trial court struck several subparts of Noyce’s Rule 191 affidavit as impermissible opinion/conclusory material, admitted others, then granted summary judgment holding the improper height was at most a condition, not a proximate cause, because Vela admitted seeing the light.
- The appellate court held the trial court erred by striking much of Noyce’s affidavit (except one subparagraph that stated a legal conclusion), found genuine factual disputes on proximate cause and duty (including whether MUTCD height applied), reversed the summary judgment, and remanded.
Issues
| Issue | Brettman’s Argument | Defendants’ Argument | Held |
|---|---|---|---|
| Admissibility of expert Rule 191 affidavit | Noyce’s affidavit properly states opinion with particularized factual bases (perception, field-of-view, inattentional blindness). | Noyce’s paragraphs are impermissible conclusions/speculation and conflict with record (Vela admitted seeing the light; other drivers saw it). | Court: Rule 191 permits expert opinions if tied to specific facts or personal knowledge; trial court erred in striking most of Noyce’s affidavit. |
| Proximate cause (condition v. cause) | Improper height foreseeably impaired visibility and materially contributed to the crash; Vela’s search and confusion are not an independent superseding act. | Vela’s failure to observe plainly visible lights was independent intervening cause; placement was only a condition. | Court: Triable issue exists whether height violated standards and was a proximate cause; summary judgment improper. |
| Duty to follow MUTCD / contract scope | Contract adopted MUTCD and project documents/IDOT notes support applying the 25.6-ft max to these temporary signals. | MUTCD section cited does not expressly apply to temporary signals; engineering judgment could permit deviation. | Court: Fact question exists about whether MUTCD height applied and whether any deviation was justified; duty unresolved at summary judgment. |
| Legal conclusions in Rule 191 affidavit (subparagraph i) | N/A (Brettman offered foreseeability language through expert). | Subparagraph i impermissibly states a legal conclusion ("foreseeable"). | Court: Expert cannot couch conclusions in legal terms with special legal meaning; struck subparagraph i as a legal conclusion. |
Key Cases Cited
- Robidoux v. Oliphant, 201 Ill. 2d 324 (Ill. 2002) (Rule 191 requires affidavits opposing summary judgment to state factual bases; bare conclusions may be struck).
- First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252 (Ill. 1999) (distinguishes a negligent act that merely furnishes a condition from one that is a proximate cause; intervening independent act may break causal chain).
- Briske v. Village of Burnham, 379 Ill. 193 (Ill. 1942) (when an obstruction is plainly visible, a driver’s failure to see it is ordinarily inattention and the obstruction may be only a condition, not a cause).
- Parsons v. Carbondale Township, 217 Ill. App. 3d 637 (Ill. App. 1991) (improperly installed MUTCD warning sign can raise a jury question whether driver’s failure to heed sign was independent or concurrent cause).
- Hygh v. Jacobs, 961 F.2d 359 (2d Cir. 1992) (experts should not state legal conclusions that usurp the court’s role; opinions couched in legal terms may be excluded).