JOANNE WATKINS, Indiv. and as Special Adm‘r of the Estates of Joseph Hansen and Howard Hansen, Deceased, Appellant, v. NEIL SCHMITT et al., Appellees.
No. 78482
Supreme Court of Illinois
April 30, 1996
172 Ill. 2d 193
Barry A. Spevack, of Monico, Pavish & Spevack, and Steven J. Seidman, all of Chicago, for appellant.
William V. Johnson and William A. Geiser, of Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan and Mindy Kallus, of counsel), for appellees Neil Schmitt & Meyer Material Co.
Leo J. Sullivan III, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellees Sharon Bracher & Fox Lake School District No. 114.
JUSTICE HARRISON delivered the opinion of the court:
This case arises out of an automobile collision that took place on Route 12 and the Lake Vista Terrace intersection in Fox Lake, Illinois, on November 28, 1990, at approximately 2:25 p.m. Joseph and Howard Hansen, brothers and high school students, died when the red Ford Escort Joseph was driving was struck by a cement truck. Joanne Watkins, mother and as special administrator of the estates of Joseph and Howard Hansen, brought a wrongful death action naming the following defendants: Neil Schmitt, driver of the cement truck;
Plaintiff now raises three issues for our review: (1) whether the deputy sheriff‘s accident reconstruction testimony as to speed should be admissible; (2) whether the evidence of skid marks and questions concerning Schmitt‘s exercise of due care raised genuine issues of material fact precluding summary judgment in favor of Schmitt and Meyer Material; and (3) whether evidence of the school bus stopping for several minutes in the right-hand lane of Route 12, blocking the view of other traffic, raised factual questions as to the bus driver‘s negligence. For the reasons which follow, we hold that the trial court did not abuse its discretion in barring Officer Jansky from giving expert reconstruction testimony at trial, but reverse the trial court‘s decision granting summary judgment in favor of defendants.
The facts of this case reveal that Joseph and Howard Hansen died when a Meyer Material Company cement truck struck the red Ford Escort Joseph was driving. The accident took place at the intersection of Route 12 and Lake Vista Terrace Road. Route 12 runs north-south and Lake Vista Terrace Road runs east-west. On
During these events, Joseph and Howard Hansen had been traveling westbound on Lake Vista Terrace Road. Both Bracher and Ronald McGill, a student monitor on the bus, noticed the red Escort traveling westbound and heading toward the Route 12 intersection. McGill knew the Hansen brothers from high school and noted that Joe Hansen‘s speed seemed appropriate and normal. McGill further testified that he observed Joe drive over the railroad tracks, come to a complete stop at the Lake Vista Terrace stop sign, and then begin “inching out” into Route 12. When the Escort inched out into the intersection and passed the bus, it was struck by the Meyer Material cement truck. The cement truck, driven by Schmitt, was uninhibited by a stop sign and clearly had the right-of-way.
Schmitt also gave his account of the events leading up to the accident. Originally, Schmitt was in the right-hand lane of Route 12 and all the other traffic merged
Schmitt testified that the first time he saw the red Escort, the bus was in the process of making a right-hand turn and was stopped right before the railroad tracks. Schmitt further stated that immediately prior to the accident, the rear of the bus was still in the right-hand lane of Route 12, blocking virtually all of that lane. Schmitt testified that he had not seen the red Escort coming down Lake Vista Terrace. He recalled that as he came around the bus, he only saw the red Escort a second before impact. Schmitt described the speed of the Escort just prior to impact as “awful fast” and claimed that the Escort appeared to be accelerating. Schmitt stated that at this time, he grabbed the steering wheel to brace himself and applied the brakes with all of his weight, locking them up and sending the truck into a skid. The bumper of the cement truck struck the red Escort just behind the left front wheel on the driver‘s side at a point in line with the westbound lane of Lake Vista Terrace Road. After striking the Escort, Schmitt‘s cement truck skidded north of the intersection and spun to a rest in the middle of the southbound turning lane. Schmitt claimed that just prior to the accident, his speed only reached between 20 and 30 miles per hour due to the traffic and road construction on Route 12.
In contrast, another witness, Donald Rankin, who was driving behind the school bus in a one-ton pickup truck, agreed with Schmitt that at some point the bus was stopped solely on Route 12, prior to turning onto Lake Vista Terrace Road. He remembered the bus stopping parallel with the other lane of Route 12, with its
Rankin also observed the cement truck and Escort prior to the accident and saw the impact take place. He stated that when he was stopped behind the school bus originally, he checked his rearview mirror and saw the cement truck about two-tenths of a mile down the road in the left-hand lane. Rankin recalled that after the school bus had taken down its stop arm and turned off its lights, the cement truck approached and eventually passed his vehicle. Although there are varying reports as to which lights flashed and whether the stop arm was activated, no claim is made by anyone that Schmitt illegally passed the bus when the stop arm was extended or flashing lights showed.
Rankin further testified that he first spotted the red Escort going west on Lake Vista Terrace. He claimed that the red Escort was moving fast. He noted that as the Escort pulled into the intersection, he only saw a blur of red in front of the school bus just prior to the impact. Rankin also questioned whether the Escort actually stopped at the stop sign prior to entering the intersection of Route 12 and Lake Vista Terrace Road.
Evidence was also presented regarding the speed of the Meyer cement truck. As stated, Schmitt testified that when both lanes of Route 12 opened up, he remained in the left lane and the rest of the traffic moved over to the right. He recalled that he was driving between 20 and 30 miles per hour, and that he accelerated when he saw the lights quit flashing and the stop arm come in on the school bus. Schmitt passed the bus and then slammed on his brakes a second before impact. Rankin also estimated that the speed of the Meyer cement truck was between 20 and 30 miles per hour. He further stated that the cement truck had no opportunity to avoid the collision. Another eyewitness, Walter Simpson, was driving directly behind the Meyer cement truck and witnessed the collision. Simpson estimated that he was driving approximately 50 feet or three or four car lengths behind the cement truck prior to impact. He testified that just prior to the collision he was traveling between 30 and 35 miles per hour and thought that he was moving about the same speed as the cement truck. Simpson based this estimate on the fact that the cement truck was not leaving him far behind and he was not catching up close to the truck. Thus, two eyewitnesses and the driver of the cement truck testified that the truck was traveling between 20 and 35 miles per hour.
In contrast to this eyewitness testimony, the record in this case also includes the filed deposition of Lake County Deputy Sheriff John Jansky. Officer Jansky calculated that the cement truck was speeding at the
Officer Jansky arrived on the scene approximately 30 minutes after the accident took place. First, he noted that Route 12 ordinarily had a 45-mile-per-hour speed limit in the area of the accident. However, on the day of the accident, 35 miles per hour was the last posted speed limit due to repair and reconstruction work at a bridge south of the Lake Vista Terrace intersection. Officer Jansky measured the skid marks left by the cement truck at the time the skid began in order to calculate the speed of the truck. He testified that the skid marks left by the Meyer truck indicated that the speed of the truck when the skid began was a minimum of 52.8 miles per hour, and 36 miles per hour at the time of impact with the Hansen vehicle. According to Officer Jansky, the rear wheels of the cement truck left skid marks a total distance of 124 feet, 59 feet before the collision and 65 feet after the collision. Officer Jansky estimated that at the time Schmitt slammed on his brakes, throwing the truck into a skid, the front bumper of the Meyer truck was 29 to 34 feet (or possibly 5 feet less) from the point of impact with the red Escort. He also stated that the truck‘s tires had the proper depth of tread and the brakes worked properly. In his traffic accident report, Officer Jansky concluded that the cause of this accident
As stated, the trial court barred Officer Jansky from giving expert reconstruction testimony as to the speed of the Meyer cement truck. Ultimately, the trial court granted summary judgment in favor of all defendants, and the appellate court affirmed. The appellate court reasoned that expert reconstruction testimony is only admissible when it is necessary to rely on knowledge and the application of scientific principles beyond the ken of the average juror. The court held that jurors could draw their own conclusions as to the speed of the cement truck based on eyewitness testimony from Rankin, Simpson, and Schmitt. The court further reasoned that without Officer Jansky‘s speed calculations, there were no factual questions regarding Schmitt‘s speed, and Schmitt and Meyer Material were entitled to summary judgment.
The purpose of summary judgment is not to try a question of fact, but to determine whether any genuine issues of triable fact exist. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517 (1993). A motion for summary judgment should be granted only when “the pleadings, depositions, 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 a judgment as a matter of law.”
We first address the issue of whether the trial court erred in barring Officer Jansky from testifying as plaintiff‘s accident reconstruction expert at trial. Plaintiff argues that the trial court improperly barred Jansky‘s expert testimony and that his testimony raised a genuine issue of material fact as to Schmitt‘s speed. Plaintiff urges this court to follow the trend among appellate districts which recognizes eyewitness testimony as just one factor in the determination of whether accident reconstruction testimony should be admitted. See Augenstein v. Pulley, 191 Ill. App. 3d 664, 681 (1989). Plaintiff further argues that several appellate cases measure the admissibility of expert testimony by the standard of whether the evidence will aid the jurors’ understanding of the facts. See Augenstein, 191 Ill. App. 3d at 680-81; Ketchum v. Dura-Bond Concrete, Inc., 179 Ill. App. 3d 820, 831 (1989). Plaintiff contends that Officer Jansky‘s calculations of speed would aid a jury‘s understanding of what factors contributed to the accident in this case. Plaintiff further claims that the notion that an eyewitness can estimate speed more accurately than an accident reconstruction expert is a dubious one, especially in light of the “smooth power of modern automobiles.” Thus, plaintiff concludes that under this modern trend, Officer Jansky‘s calculations of speed were admissible.
In response, defendants argue that estimates of automobile speed have traditionally been considered a matter of common observation rather than expert opinion. Defendants note that this court addressed the admissibility of an accident reconstructionist‘s speed calculations in Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill. 2d 353, 359 (1979), and held that “the speed of an
This court very recently addressed issues concerning expert reconstruction testimony and whether such testimony may be admitted when there is also eyewitness testimony in Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 546 (1995). In Zavala, plaintiff, the only eyewitness, lost two fingers in a drill press accident and claimed that her fingers were cut and not pulled off. Defendant‘s reconstruction expert, Dr. Caulfield, testified that the only way the accident could have occurred was if the glove plaintiff wore became caught up in the reamer, a piece of equipment located in the drill press which plaintiff operated. Zavala, 167 Ill. 2d at 543-44. Thus, Dr. Caulfield concluded that plaintiff‘s fingers were pulled, and not cut, because the reamer “presented only an entanglement, not a cutting, hazard.” Zavala, 167 Ill. 2d at 544.
In determining whether the trial court properly admitted Dr. Caulfield‘s expert reconstruction testimony, this court held that “expert reconstruction testimony is proper, even where there is an eyewitness, if what the expert offers is ‘knowledge and application of principles of science beyond the ken of the average juror.‘” Zavala, 167 Ill. 2d at 546, quoting Plank v. Holman, 46 Ill. 2d 465, 471 (1970). This court went on to explain that whether to admit expert reconstruction testimony depends upon the “usual concerns of whether expert opinion testimony is appropriate generally.” Zavala, 167 Ill. 2d at 546. In concluding that Dr. Caulfield‘s testimony was proper, this court reasoned that
We recognize that under our reasoning in Zavala, the existence of eyewitness testimony is not the conclusive factor in determining whether accident reconstruction testimony is admissible. Therefore, in the present case, the fact that there were three eyewitnesses who could testify as to the speed of the cement truck does not amount to an absolute bar to expert reconstruction testimony. Instead, we look at whether in addition to eyewitness testimony, expert reconstruction testimony would be needed to explain scientific principles to a jury and enable it to make factual determinations.
The expert testimony at issue in this case is distinguishable from the testimony admitted in Zavala. The expert in Zavala was able to determine that because a reamer spins at a high velocity and has no cutting surface it could not cut but could only pull off a user‘s fingers. Unlike estimating the speed of a car, this is not the type of knowledge that a lay person could obtain after watching a drill press in operation. This type of analysis requires knowledge of the mechanics of a reamer and an application of scientific principles to determine that it could only cause certain types of injuries to its users. In contrast, any lay person with a reasonable opportunity to observe and ordinary experience with moving vehicles can estimate the speed of a car. Unlike Zavala, in this case a jury would be presented with sufficient evidence, through eyewitness testimony, to make its own factual determinations.
Furthermore, as stated by defendants, when this court was previously faced with the issue of whether expert testimony as to speed was admissible, it held that automobile speed was not a matter beyond the ken
In this case, three eyewitnesses who had a reasonable opportunity to observe the accident, and sufficient driving experience, gave their speed estimates all within a 20- to 35-mile-per-hour range. Even without defendant Schmitt‘s testimony, there are two disinterested eyewitnesses who had a fair opportunity to observe Schmitt‘s speed. Furthermore, regardless of the admissibility of his opinion as to speed, Officer Jansky may testify as to the skid marks and any other physical evidence he observed at the accident scene. The speed estimates from these three eyewitnesses, along with the evidence of skid marks, clearly formed a sufficient basis upon which a jury could make its own conclusions. We therefore conclude that the trial court did not err in barring Officer Jansky from giving expert testimony in this case. In reaching this conclusion, we do not consider Officer Jansky‘s qualifications as a reconstruction expert, as that issue was not raised by the defendants and is unnecessary to our holding.
Even though the court was correct in finding Officer Jansky‘s speed testimony inadmissible, we nevertheless believe that the court erred in granting summary judgment in favor of Schmitt and Meyer Material. Plaintiff
We agree that Officer Jansky should be allowed to testify as to any physical evidence he observed at the scene of the accident. The skid marks left by the cement truck could not be considered expert testimony. See Nolan v. Elliott, 179 Ill. App. 3d 1077, 1087 (1989). Evidence of skid marks is simply physical evidence which Officer Jansky observed as an eyewitness at the scene of the accident. Furthermore, in construing the evidence liberally in favor of the plaintiff, we believe that evidence of 124 feet of skid marks does present a factual question as to whether Schmitt was speeding. Evidence of skid marks, “though not conclusive, could be considered some evidence of excessive speed.” See Penzin v. Stratton, 26 Ill. App. 3d 475, 480 (1975). In Young v. Patrick, 323 Ill. 200, 202 (1926), this court held that skid marks “positively identified by the witness as being the marks made by the rear wheels of the car involved, tended to establish excessive speed.”
In this case, according to Officer Jansky‘s eyewitness testimony, the rear wheels of the cement truck slid approximately 59 feet before the collision and 65 feet after the collision. Evidence of such lengthy skid marks raises factual questions as to whether Schmitt‘s speed was possibly greater than the estimates given by the eyewitnesses. In addition, according to deposition testimony, it is unclear whether the speed limit on Route 12 was the usual 45 miles per hour or 35 miles per hour because of road construction that day. Schmitt also conceded that he remained in the left-hand lane of Route 12 although
In light of the evidence of 124 feet of skid marks, the possible 35-mile-per-hour speed limit, and Schmitt‘s testimony that he accelerated in the left-hand lane past stopped traffic, a jury could conclude that Schmitt was speeding. Given that eyewitnesses estimated Schmitt‘s speed at between 20 and 35 miles per hour, if a jury concluded these were low estimates, the possibility would exist that Schmitt violated this 35-mile-per-hour speed limit.
Furthermore, regardless of what the applicable maximum speed limit is, drivers are still required to drive at a speed which is reasonable and proper for traffic conditions.
We therefore conclude that even without Officer Jansky‘s expert reconstruction testimony, genuine issues of material fact exist regarding plaintiff‘s claim of negligence against Schmitt and Meyer Material. Accordingly, we reverse the trial court‘s order granting summary judgment in favor of Schmitt and Meyer Material.
The final issue we address is whether defendants Sharon Bracher and the Fox Lake School District were entitled to summary judgment. Plaintiff claims that the actions of Bracher, the school bus driver, were a contributing factor in causing the accident. She argues that blocking the roadway and the view of other drivers violates the rules of roadway safety. Specifically, plaintiff cites to section 11-1416 of the Illinois Rules of the Road (
This testimony is in conflict with the account of events given by both Bracher and McGill. However, in deciding a summary judgment motion, a court must not attempt to weigh the evidence. See Cnota v. Palatine Area Football Ass‘n, 227 Ill. App. 3d 640, 647 (1992). Furthermore, we must construe the evidence liberally in favor of the nonmoving party. We believe that, in doing so, genuine issues of fact are raised as to whether the school bus was stopped for an unreasonable period of time in an improper position. Stopping a large school bus in a regular lane of traffic for an extended period of time would create a hazardous condition on the roadway. In making such a stop, the school bus obstructed the view of other motorists traveling on Route 12 and Lake Vista Terrace Road and inhibited the free flow of traffic on these roads. Creating such a hazardous road condition could have been a contributing factor in the cause of this accident. After construing the evidence liberally in favor of the plaintiff, we conclude that genuine issues of material facts exist regarding plaintiff‘s claim of
For the reasons stated, we reverse the judgment of the appellate court, reverse the judgment of the circuit court granting summary judgment in favor of all defendants, and remand this cause to the circuit court for further proceedings consistent with this opinion.
Judgments reversed; cause remanded.
JUSTICE HEIPLE, specially concurring in part and dissenting in part:
My sole disagreement with the majority is its refusal to allow the testimony of the accident reconstruction expert as to the speed of the cement truck. Relying on Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill. 2d 353 (1979), the majority opines that since the speed of a vehicle is not beyond the ken of the average juror, and since eyewitnesses are available to testify, then the testimony of the accident reconstruction expert is not necessary. 172 Ill. 2d at 204-05. As this court previously pointed out in Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 546 (1995), quoting Plank v. Holman, 46 Ill. 2d 465, 471 (1970), “expert reconstruction testimony is proper, even where there is an eyewitness, if what the expert offers is ‘knowledge and application of principles of science beyond the ken of the average juror.‘” Just so.
We have here a matter of physics involving weight, mass, measured skid marks, weather, pavement friction and surface conditions, all of which lend themselves to scientific analysis from an expert relative to the speed of the cement truck. While eyewitnesses to a moving vehicle can and should be allowed to testify as to its speed, the reliability of such testimony is problematical. To deny the supplementation of such testimony with the testimony of a qualified scientific expert interferes with
JUSTICE NICKELS joins in this partial special concurrence and partial dissent.
JUSTICE HARRISON
SUPREME COURT OF ILLINOIS