Filed 3/23/10 NO. 4-09-0407

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

SHAVONNE L. EVANS,

 Plaintiff-Appellant,

v.

BRAD BROWN, Special Administrator for

the Estate of LYNN R. ROMANN, Deceased;

and TURBO PLUS, INC.,

 Defendants-Appellees.

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Appeal from

Circuit Court of

Macon County

No. 06L122

Honorable

Albert G. Webber,

Judge Presiding.

_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In September 2006, plaintiff, Shavonne L. Evans, sued

defendants, Brad Brown, special administrator for the estate of

Lynn R. Romann, deceased, and Turbo Plus, Inc. (Turbo), claiming

that in February 2006, Romann, acting as Turbo's agent, negligently operated his company car, which proximately caused her

serious injuries.

In October 2008, defendants moved for summary judgment

under section 2-1005 of the Code of Civil Procedure (735 ILCS

5/2-1005 (West 2008)), alleging that Romann's unexpected and

unforeseen loss of consciousness, which caused him to lose

control of the car he was driving, was an "act of God." Following a May 2009 hearing, the trial court granted defendants'

summary-judgment motion.

Plaintiff appeals, arguing that (1) summary judgment

was not appropriate based on an act of God because she had

established a prima facie case of negligence and (2) Romann's

statement that he "fell asleep" prior to the collision created a
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genuine issue of material fact. Because we agree with both of

these arguments, we reverse and remand for further proceedings.

I. BACKGROUND

A. The Events Surrounding the Collision

The following facts were gleaned from the parties'

pleadings and other supporting documents filed with the trial

court.

On February 11, 2006, Romann, who was 72 years old and

worked as a used car salesman for Turbo, informed Turbo's owner,

Charles Landreth, that he was going to Decatur. Landreth stated

that although he had, on previous occasions, allowed Romann to

drive cars owned by Turbo for personal errands, he did not (1)

give Romann permission to drive a Turbo car to Decatur or (2)

know, as he later discovered, that Romann intended to visit his

girlfriend in Decatur.

That same evening, plaintiff was driving on a road in

Decatur, which she described as a four-lane city street with two

lanes in each direction. As plaintiff drove eastbound in the

right lane, she noticed that a car traveling westbound--later

determined to have been driven by Romann--abruptly swerved over

the centerline and hit another car traveling in the eastbound

lane next to her. The eastbound car then hit plaintiff's car,

which caused plaintiff to hit her head on the driver's side door

window. As a result, plaintiff suffered serious injuries.

Because the collision rendered Romann's car inoperable,

he called a friend and coworker, Paul Eldridge, to drive him
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home. In that phone call, Romann said that he "went to sleep"

and had a car accident. When Eldridge arrived, Romann told him

that (1) he did not know what happened and (2) he had "blacked

out, fell asleep." Eldridge tried to persuade Romann to go to

the hospital. Romann refused, stating that the car's air bags

had protected him and "he was fine." Eldridge drove Romann home,

and during the drive, Eldridge noticed Romann's chest had been

bruised, and Romann complained that his chest was "sore." After

leaving Romann's home, Eldridge called Landreth to (1) inform him

about the collision and (2) recommend that he send someone to

check on Romann.

Landreth called Romann that same night and asked him

about the collision. Romann told Landreth that he had "blacked

out" and did not remember anything. Landreth urged Romann to

seek medical treatment, but he refused. Later that same night,

another coworker, Jennifer St. Clair, visited Romann at his home. 

St. Clair attempted to give Romann some food, but he told her

that he was (1) not hungry, (2) not feeling well, and (3) going

to bed. The following morning, St. Clair informed Landreth that

Romann was not breathing. Landreth went to Romann's home, where

he determined that Romann had died.

B. The Cause of Romann's Death

On February 13, 2006, William K. Drake, a board-certified pathologist, performed an autopsy on Romann. In his deposition, Drake opined to a reasonable degree of medical certainty

that the February 11, 2006, collision and Romann's eventual
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death, was the "logical consequence" of a heart attack that

Romann had suffered about a week before his death. In particular, Drake explained that Romann had a small, untreated heart

attack, which resulted in the gradual degradation of his heartmuscle wall due to oxygen deprivation that occurred over a 7- to

10-day period. The resulting compromised tissue then ruptured,

causing Romann's instantaneous death.

Drake also opined that just prior to the collision,

Romann suffered a "Stokes Adams" attack--that is, a sudden change

in cardiac rate or rhythm output--which was caused by his earlier

heart attack. Drake further explained that this attack caused a

sudden drop in Romann's blood pressure, which resulted in

Romann's experiencing a temporary loss of consciousness.

At Drake's deposition, plaintiff questioned Drake

regarding the pain that Romann's heart attack would have inflicted, as follows:

"[PLAINTIFF'S COUNSEL:] *** [T]he event

that took place approximately [7] to [10]

days before [Romann's] death, can you describe *** what that would have consisted of? 

[DRAKE:] *** I would have thought that

[Romann] would have complained of chest pain. 

*** [S]ince it[ was] a small heart attack, he

should have had chest pain. He would have

had pain somewhere. It might have been in

his jaw or his shoulder ***, but [Romann]
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should have had some discomfort as a result

of this heart attack. All people do. But we

had no history of it.

* * *

[PLAINTIFF'S COUNSEL:] *** [W]ould this

have been severe pain [or] light pain[? I]s

there any way to tell?

[DRAKE:] *** [T]he pain is always variable, but people express this as a squeezing,

pressure-type discomfort that is very unpleasant to them. *** So we would assume

that [Romann] would have had these symptoms. 

As a matter of fact, [Romann] would *** have

had symptoms.

Now, [Romann] may [have been] stoic. He

may have thought it was indigestion, you

know, all kinds of other things.

* * *

[PLAINTIFF'S COUNSEL:] And those would

have been the type of symptoms *** that a

person should have sought medical care [for]?

[DRAKE:] Ordinarily that's correct. 

But people don't, I will assure you. ***

* * *

[PLAINTIFF'S COUNSEL:] And it was inevitable in your opinion that he had that
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pain[?]

[DRAKE:] He had this pain. He would

have had pain[.]

[PLAINTIFF'S COUNSEL:] If [Romann]

would have sought medical care at that time,

then intervention could have taken place and

the [heart-muscle degradation] may not have

developed?

* * *

[DRAKE:] *** [I]f [Romann] had presented in our emergency room, he would have

been recognized[.] *** We do everything in

our power to prevent this type of event from

occurring. *** This [was] a small [heart

attack at] the back of the heart *** so it's

one that I suppose [Romann] could have confused with indigestion.

[PLAINTIFF'S COUNSEL:] This pain that

you're talking about, that would have lasted

over what period of time in your opinion?

[DRAKE:] I think [Romann would have

had] pain through this whole period."

In response to further questioning by defense counsel

regarding Romann's death, Drake stated, in pertinent part, that

(1) Romann would not have detected that he had a heart attack;

(2) Romann would not have expected the Stokes Adams attack; (3)
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Romann complained of neck pain after the collision, which was

"very likely" caused by his heart attack; and (4) it was "very

likely" that Romann experienced pain on more than one occasion

during the 7- to 10-day period following his heart attack.

C. Procedural History

1. Defendants' Summary-Judgment Motion

In October 2008, defendants moved for summary judgment

based upon an "act of God." Specifically, defendants claimed

that an act of God--that is, Romann's unexpected and unforeseen

loss of consciousness--was the sole and proximate cause of the

collision. 

2. Plaintiff's Memorandum of Law in Opposition to

Defendants' Summary-Judgment Motion

In December 2008, plaintiff filed a memorandum of law

in opposition to defendant's summary-judgment motion, in which

she set forth Eldridge's deposition testimony that Romann told

him that prior to the collision, he "blacked out, fell asleep."

Plaintiff also alleged that because the uncontradicted evidence

showed that the collision with Romann--who had been driving in

the opposing lane--occurred on her side of the road, she had

established a prima facie case of negligence. Thus, plaintiff

asserted that defendants' claim of an affirmative defense based

upon an act of God merely raised a genuine issue of material

fact--namely, whether her injuries were caused by Romann's

negligence or an act of God.

In the alternative, plaintiff asserted that summary

judgment was inappropriate because issues of material fact
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remained regarding whether Romann ignored symptoms related to his

heart attack, which precluded any act-of-God defense. In support

of her argument, plaintiff relied on Drake's deposition testimony

that Romann would have had heart-attack symptoms prior to the

collision and that such symptoms would have caused a reasonable

person to seek medical care.

3. The Hearing on Defendants' Summary-Judgment Motion

At the December 2008 hearing on their motion for

summary judgment, defendants argued that because (1) Drake

testified that Romann's Stokes Adams attack was "unexpected" and

(2) no medical evidence was presented showing Romann had prior

blackouts, summary judgment was appropriate. In response,

plaintiff argued consistently with her memorandum in opposition

to the summary-judgment motion, adding that although Romann told

Landreth that he had blacked out, he had also told Eldridge that

he had fallen asleep prior to the collision.

After considering the parties' evidence and counsel's

arguments, the trial court took the matter under advisement. In

May 2009, the court entered a docket entry order in which it

stated, in pertinent part, the following:

"The accident occurred on February 11, 2006,

when Romann's vehicle crossed the centerline

of a four[-]lane city street in Decatur and

impacted the [p]laintiff's vehicle which was

traveling in the opposite direction. Romann

told a co[]worker at Turbo who arrived at the
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accident scene [that] he had a 'blackout,

[fallen] asleep' just prior to the accident. 

He refused any medical care. The following

day[,] Romann was found dead at his home. 

*** Drake testified that Romann might have

experienced pain or discomfort in his chest,

back, shoulder, arm, or jaw. Its nature[,]

intensity[,] and duration cannot be known. 

Further, Romann was 72 years old at the

[time] in question and it is common for persons of that age to experience similar pain

of non-cardiac origin. Only in retrospect

can Romann's sudden loss of consciousness be

seen as unforeseeable and unpreventable. *** 

Plaintiff does not so much dispute any facts

here as to attempt to impose on Romann a duty

of medical self-diagnosis unsupported by case

authority. As any claim against [defendants]

is based on the alleged negligence of Romann,

so it too must fail. Summary judgment is

therefore granted in favor of ***

[d]efendants and against *** [p]laintiff."

This appeal followed.

III. THE TRIAL COURT'S GRANT OF SUMMARY JUDGMENT

A. Summary Judgment and the Standard of Review

The purpose of a summary-judgment proceeding is not to
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try an issue of fact but, instead, to determine whether a genuine

issue of material fact exists. Village of Montgomery v. Aurora

Township, 387 Ill. App. 3d 353, 360, 899 N.E.2d 567, 573 (2008). 

Although summary judgment aids in the expeditious disposition of

a lawsuit, it is a drastic means of disposing of litigation and

should be allowed only when the right of the moving party is

clear and free from doubt. Henry v. Panasonic Factory Automation

Co., 396 Ill. App. 3d 321, 327, 917 N.E.2d 1086, 1091 (2009). 

Thus, "[s]ummary judgment is appropriate where the pleadings,

depositions, admissions[,] and affidavits on file, viewed in the

light most favorable to the nonmoving party, reveal that there is

no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law." Kajima

Construction Services, Inc. v. St. Paul Fire & Marine Insurance

Co., 227 Ill. 2d 102, 106, 879 N.E.2d 305, 308 (2007); see 735

ILCS 5/2-1005(c) (West 2008).

"'The burden of proof and the initial burden of production in a motion for summary judgment lie with the movant.'" 

Kleiss v. Bozdech, 349 Ill. App. 3d 336, 349, 811 N.E.2d 330, 340

(2004), quoting Pecora v. County of Cook, 323 Ill. App. 3d 917,

933, 752 N.E.2d 532, 545 (2001). "Where the facts could lead a

fair-minded person to draw more than one conclusion or inference,

summary judgment must be denied." Deliberto v. Stahelin, 171

Ill. App. 3d 355, 357, 525 N.E.2d 584, 585 (1988).

If a defendant raises an affirmative defense, his

pleading and supporting documentation need only establish his
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factual position on that affirmative defense. Willett v. Cessna

Aircraft Co., 366 Ill. App. 3d 360, 369, 851 N.E.2d 626, 634

(2006). Although a plaintiff is not required to prove her case

at the summary-judgment stage, to survive a summary-judgment

motion as the nonmoving party, she must present a factual basis

that would arguably entitle her to a judgment. Fichtel v. Board

of Directors of River Shore of Naperville Condominium Ass'n,

Hillcrest Management Co., 389 Ill. App. 3d 951, 956, 907 N.E.2d

903, 907 (2009). We review de novo the trial court's grant of

summary judgment. Reppert v. Southern Illinois University, 375

Ill. App. 3d 502, 504, 874 N.E.2d 905, 907 (2007).

B. Plaintiff's Claims That the Trial Court Erred by

Granting Defendants' Summary-Judgment Motion

Plaintiff argues that the trial court erred by granting

summary judgment. Specifically, plaintiff contends that (1)

summary judgment was not appropriate to preclude liability based

on an act of God because she had established a prima facie case

of negligence and (2) Romann's statement that he "fell asleep"

prior to the collision created a genuine issue of material fact. 

We address plaintiff's contentions in turn.

1. Plaintiff's Contention That She Established a

Prima Facie Case of Negligence

Prior to reaching the merits of plaintiff's first

contention, we address her claim that the undisputed evidence

presented in this case established a prima facie case of negligence against Romann. In support of that contention, plaintiff

relies on the supreme court's decision in Osborne v. O'Brien, 114
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Ill. 2d 35, 499 N.E.2d 455 (1986).

In Osborne, 114 Ill. 2d at 37, 499 N.E.2d at 456, the

plaintiff sued the defendant for injuries he sustained while he

was a passenger in a van that the defendant struck with his car. 

The undisputed facts revealed that the defendant was driving to

work on a curvy, hilly, two-lane road, which descended 600 feet. 

Osborne, 114 Ill. 2d at 37, 499 N.E.2d at 456. As the defendant

drove down the hill, his car slid on some ice, and despite his

attempts to take corrective action, he crossed the centerline of

the road and hit the van that had been stopped in the opposing

lane. Osborne, 114 Ill. 2d at 37-38, 499 N.E.2d at 456. The

record also showed that although the weather was damp, the

defendant had no reason to suspect that the road would be icy. 

Osborne, 114 Ill. 2d at 37, 499 N.E.2d at 456.

Following a trial in which the jury returned a verdict

in the defendant's favor, the plaintiff filed a posttrial motion

requesting entry of a judgment notwithstanding the verdict or in

the alternative, a new trial. Osborne, 114 Ill. 2d at 39, 499

N.E.2d at 457. The trial court later denied the plaintiff's

posttrial motion. Osborne, 114 Ill. 2d at 39, 499 N.E.2d at 457. 

The supreme court affirmed and, as part of its analysis, determined that the defendant had introduced evidence sufficient to

submit to a jury on the question of whether the skid of his car

was the result of some cause other than his negligence. Osborne,

114 Ill. 2d at 42, 499 N.E.2d at 458. In rejecting the plaintiff's argument that the evidence overwhelmingly favored granting
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her posttrial motion, the supreme court distinguished the two

cases that the plaintiff relied upon (Sughero v. Jewel Tea Co.,

37 Ill. 2d 240, 226 N.E.2d 28 (1967), and Calvetti v. Seipp, 37

Ill. 2d 596, 227 N.E.2d 758 (1967)), as follows:

"Simply stated, the rationale of Sughero

and Calvetti is that upon a plaintiff's showing that a collision between vehicles occupied by a plaintiff and driven by a defendant

occurred on the plaintiff's side of the road,

the plaintiff has made a prima facie case of

the defendant's negligence. It is then incumbent on the defendant to adduce evidence

to show that his vehicle was in that position

because of some reason other than his own

negligence. If he makes a showing sufficient

to raise an issue of fact, the question of

his negligence is for the jury." Osborne,

114 Ill. 2d at 41, 499 N.E.2d at 458.

In this case, the uncontradicted evidence showed that

on the evening of February 11, 2006, (1) plaintiff was driving

eastbound on a four-lane city street at the same time Romann was

driving westbound on that same street, (2) Romann's car abruptly

swerved over the centerline of the road and hit another car

traveling eastbound, (3) that collision caused the eastbound car

to collide with plaintiff's car, and (4) plaintiff sustained

injuries as a result of the collision. Thus, we agree with
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plaintiff that the supreme court's decision in Osborne controls. 

Accordingly, plaintiff has established a prima facie case of

negligence.

2. Plaintiff's Contention That Summary Judgment Was Not

Appropriate To Preclude Liability Based on an Act of God

Plaintiff first contends that summary judgment was not

appropriate to preclude liability based on an act of God because

she had established a prima facie case of negligence. Specifically, plaintiff asserts that the record shows a genuine issue of

material fact--namely, whether her injuries were proximately

caused by Romann's negligence or as defendants claim, an act of

God--which precludes summary judgment. In support of her contention, plaintiff relies on the Second District decision in Burns

v. Grezeka, 155 Ill. App. 3d 294, 508 N.E.2d 449 (1987).

Relying on the Second District's decision in Grote v.

Estate of Franklin, 214 Ill. App. 3d 261, 573 N.E.2d 360 (1991),

defendants respond that Drake's deposition testimony was "sufficient to support summary judgment." We agree with plaintiff.

a. The Elements of an Affirmative Defense

Based on an Act of God

"A loss or injury is due to the act of God, when it is

occasioned exclusively by natural causes such as could not be

prevented by human care, skill[,] and foresight." Wald v.

Pittsburg, Cincinnati, Chicago & St. Louis R.R. Co., 162 Ill.

545, 551, 44 N.E. 888, 889 (1896); see McClean v. Chicago Great

Western Ry. Co., 3 Ill. App. 2d 235, 246-47, 121 N.E.2d 337, 342

(1954) (injuries are caused by acts of God when such injuries are
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beyond the power of human agency to foresee or prevent). A

sudden illness or death that renders a driver incapable of

controlling his car, provided that the event is unforeseeable and

beyond the power of human intervention to prevent, is an act of

God. Hoggatt v. Melin, 29 Ill. App. 2d 23, 31, 172 N.E.2d 389,

392 (1961). However, liability is only precluded if the alleged

act of God constitutes the sole and proximate cause of the

injuries. See Villegas v. Kercher, 11 Ill. App. 2d 282, 292, 137

N.E.2d 92, 97 (1956) (loss or injury is act of God if it is

caused exclusively by natural causes).

b. The Second District's Decision in Burns

In Burns, 155 Ill. App. 3d at 296, 508 N.E.2d at 450,

the plaintiff was a passenger in a vehicle that was stopped at a

red light when it was struck in the rear by a car driven by the

defendant's decedent. The driver of the car that the decedent

hit stated in his deposition that he first observed the decedent

about 15 seconds after the collision and noted that his eyes were

open but rolled back, and his arms were up; shortly thereafter,

the decedent was unconscious and drooling, with his eyes closed

and his arms down. Burns, 155 Ill. App. 3d at 296, 508 N.E.2d at

450. When the plaintiff saw the decedent, he was gasping for

air, was unconscious, and his skin was a grayish-blue color. 

Burns, 155 Ill. App. 3d at 296, 508 N.E.2d at 450.

According to the doctor who examined the decedent

shortly thereafter but prior to his death, the decedent told the

doctor that he had suddenly become weak and passed out while
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driving his car. Burns, 155 Ill. App. 3d at 296-97, 508 N.E.2d

at 450. The doctor (1) explained that the decedent was suffering

from an abdominal aneurysm, which had been present for the past

two or three years and had spontaneously ruptured; (2) stated

that the rupture had caused the decedent's blood pressure to

drop, which rendered him unconscious about 45 to 60 seconds

later; (3) opined that it was "most probable that the aneurysm

had preceded and caused the accident"; and (4) stated that the

decedent "would not have experienced any forewarning of the

rupture." Burns, 155 Ill. App. 3d at 296-97, 508 N.E.2d at 450.

The defendant filed a motion for summary judgment

(Burns, 155 Ill. App. 3d at 297, 508 N.E.2d at 451), in which she

asserted an affirmative defense based on an act of God (Burns,

155 Ill. App. 3d at 299, 508 N.E.2d at 452). Specifically, the

defendant claimed that the collision at issue was not due to the

decedent's negligence but, instead, was caused by the decedent's

abdominal aneurysm. Burns, 155 Ill. App. 3d at 299, 508 N.E.2d

at 452.

In responding to the defendant's motion for summary

judgment, the plaintiff filed additional excerpts from the

doctor's deposition and a police report. Both indicated that the

decedent had fainted while at the red light. Burns, 155 Ill.

App. 3d at 297, 508 N.E.2d at 451. The additional excerpts also

showed that the doctor opined, to a reasonable degree of medical

certainty, that it was possible the accident had preceded and

caused the decedent's rupture. Burns, 155 Ill. App. 3d at 297,
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508 N.E.2d at 451.

The trial court granted the defendant's motion for

summary judgment, finding no genuine issue of material fact, and

the Second District reversed. Burns, 155 Ill. App. 3d at 299,

508 N.E.2d at 452. The Second District first concluded that the

plaintiff had (1) established a prima facie case of negligence

against the decedent and (2) presented sufficient facts to

establish a cognizable cause of action (Burns, 155 Ill. App. 3d

at 298, 508 N.E.2d at 452).

The Second District then considered whether defendant's

affirmative defense based on an act of God established as a

matter of law that the decedent was not responsible for the

collision. Burns, 155 Ill. App. 3d at 299, 508 N.E.2d at 452. 

The court concluded that the evidence presented did not demonstrate as a matter of law that the aneurysm rupture caused the

accident. Burns, 155 Ill. App. 3d at 299, 508 N.E.2d at 452. In

particular, the Second District determined that the doctor's

contradictory testimony did not establish when the rupture

occurred. Burns, 155 Ill. App. 3d at 299, 508 N.E.2d at 452. 

The appellate court also concluded that the decedent could have

been considered negligent for driving in an impaired state of

health or for failing to pull his vehicle over to the side of the

road in the 45 to 60 seconds before the rupture rendered him

unconscious. Burns, 155 Ill. App. 3d at 299, 508 N.E.2d at 452. 

c. The Second District's Decision in Grote

In Grote, 214 Ill. App. 3d at 262, 573 N.E.2d at 361,
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the plaintiff filed a complaint against the defendant, decedent's

estate, alleging that the decedent had negligently operated her

car, causing it to cross the centerline of the road and hit the

plaintiff's car. The uncontradicted expert deposition testimony

of a pathologist and cardiologist showed that the decedent

suffered intracranial bleeding, which caused her to promptly, and

without warning, lose consciousness. Grote, 214 Ill. App. 3d at

267-68, 573 N.E.2d at 364. In addition, witnesses to the collision provided depositions consistent with the medical expert's

opinions. Grote, 214 Ill. App. 3d at 273, 573 N.E.2d at 368.

The defendant filed an affirmative defense alleging an

act of God was the sole and proximate cause of the accident. 

Grote, 214 Ill. App. 3d at 262, 573 N.E.2d at 361. The defendant

then moved for summary judgment on that affirmative defense,

which the trial court later granted. Grote, 214 Ill. App. 3d at

262-63, 573 N.E.2d at 361.

On appeal, the plaintiff argued, in pertinent part,

that "an affirmative defense based upon an '[a]ct of God' cannot

be the basis for a summary judgment." Grote, 214 Ill. App. 3d at

271, 573 N.E.2d at 366. The Second District in Grote disagreed

and distinguished the cases the plaintiff relied upon for that

proposition. Grote, 214 Ill. App. 3d at 271, 573 N.E.2d at 366-

67. The court also concluded that summary judgment is not

precluded when the movant raises an affirmative defense based

upon an act of God. Grote, 214 Ill. App. 3d at 273, 573 N.E.2d

at 368.
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One of the cases that the Second District in Grote

distinguished was its earlier decision in Burns. Grote, 214 Ill.

App. 3d at 273, 573 N.E.2d at 368. To that end, the court stated

the following:

"As with the other cases cited by [the]

plaintiff, we do not find the court's opinion

in Burns as precluding summary judgment when

an '[a]ct of God' defense is raised. Further, we find the facts in Burns to be distinguishable from the case at bar. While the

opinion of the doctor in Burns was contradictory, the experts' opinions in the present

case were consistent." Grote, 214 Ill. App.

3d at 273, 573 N.E.2d at 368. 

In affirming the trial court's grant of summary judgment in the defendant's favor, the Second District concluded that

the uncontradicted evidence showed that the accident was caused

by defendant's intracranial hemorrhage that occurred without

warning. Grote, 214 Ill. App. 3d at 274, 573 N.E.2d at 368.

d. Plaintiff's Assertion That a Genuine Issue of

Material Fact Remained Unresolved

As we have previously stated, plaintiff asserts that

summary judgment is not appropriate to preclude liability based

on an act of God because she had established a prima facie case

of negligence. Specifically, plaintiff posits, in pertinent

part, that as in Burns, Drake's testimony--on which both parties

rely--suggests that Romann's loss of consciousness was neither
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unforeseeable nor beyond his power to prevent. Thus, plaintiff

claims that the record shows a genuine issue of material fact--

namely, whether the collision was caused by Romann's negligence

or, as defendants claim, by Romann's Stokes Adams attack.

Defendants respond that because Drake's uncontradicted

testimony established that Romann's Stokes Adams attack was

immediate and unforeseeable, this case is similar to Grote and,

thus, the trial court did not err by granting summary judgment. 

However, because the record here shows that Drake's deposition

testimony was not unequivocal, defendants' reliance on Grote is

misplaced.

In this case, Drake testified, in part, to the following: (1) Romann had a small heart attack about 7 to 10 days

before his death; (2) Romann would not have detected that he had

a heart attack; (3) Romann would have experienced pain from his

heart attack throughout the 7- to 10-day period that followed;

(4) the pain would have most likely occurred in his jaw, shoulder, or chest; (5) Romann complained of neck pain after the

collision that "very likely" resulted from his heart attack; (6)

it was "very likely" that Romann experienced pain on more than

one occasion; (7) the severity of the pain Romann experienced

would have varied; (8) Romann may have "chalked up" the pain to

indigestion or old age; (9) no evidence was presented that Romann

had pain during the period; (10) Romann should have sought

medical care for his pain; (11) medical intervention could have

prevented further heart damage; (12) just prior to the collision,
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Romann suffered a Stokes Adams attack that caused him to lose

consciousness; (13) Romann would not have expected the Stokes

Adams attack; and (14) Romann's Stokes Adams attack was caused by

his heart attack.

Here, despite defendants' claim that Drake's testimony

was unequivocal and established that Romann's Stokes Adams attack

was immediate and unforeseeable, the following reasonable inferences, at a minimum, could have been adduced from his testimony:

(1) Romann experienced noticeable pain during the 7 to 10 days

following the heart attack, which he negligently ignored; (2)

Romann experienced mild pain during the 7 to 10 days following

the heart attack that he surmised was due to his age or some

other harmless reason; or (3) Romann did not experience any pain

and, thus, did not suspect his medical condition was compromised. 

These alternative possible inferences (1) presented a genuine

issue of material fact that precluded summary judgment and (2)

negated the affirmative defense based upon an act of God because

Romann's Stokes Adams attack was not the sole and proximate cause

of the collision.

Moreover, despite the Second District's decision in

Grote, we have strong reservations that, as a matter of law, an

affirmative defense based on an act of God could ever prevail in

a summary-judgment context when the plaintiff's injury arose out

of an automobile accident. To conclude that a natural event was

the sole and proximate cause of such an injury requires irrefutable and unequivocal evidence, an extremely rare commodity. 
- 22 -

Thus, although Grote presents a strong case, we note that even

when the evidence presented is seemingly unequivocal, different

inferences may still reasonably flow. See Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 9 (2008) ("A triable

issue precluding summary judgment exists where the material facts

are disputed or where, the material facts being undisputed,

reasonable persons might draw different inferences from the

undisputed facts").

3. Plaintiff's Contention That Romann's Statements Created a

Genuine Issue of Material Fact

Plaintiff also contends that Romann's statements that

he "fell asleep" prior to the collision created a genuine issue

of material fact. We agree.

We note defendants did not address this contention in

their brief. Instead, throughout these proceedings, defendants

referred to this matter only once, which was at the December 2008

hearing on their summary-judgment motion, when the following

exchange took place after plaintiff finished her argument in

opposition to summary judgment:

"THE COURT: *** [Defense counsel, the

court will] let you reply. [The court is]

interested *** in the suggestion that ***

Romann told a coworker, [']well, maybe I fell

asleep, maybe I blacked out.['] Is that not

material fact[s] in question?

[DEFENSE COUNSEL:] One, no it's a conclusion as to some medical condition that at
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this point in time, *** Romann didn't know

that he had. So how do you--

THE COURT: You can fall asleep and also

pass out for unrelated reasons, can't you?

[DEFENSE COUNSEL:] Well[,] is

[']fall[ing] asleep['] colloquial for

[']blacking out[']? I mean--

THE COURT: Well, he drew a distinction

apparently, in his discussion with his

coworker.

[DEFENSE COUNSEL:] I don't know that. 

*** I don't know if that's a conclusion and

that's speculation. And the question--

THE COURT: Is that not for a trier of

fact to determine whether he fell asleep or

blacked out?

[DEFENSE COUNSEL:] It will never be

admissible. Dead Man's Act will keep that

out.

THE COURT: Okay.

[DEFENSE COUNSEL:] So the fact of the

matter is *** that will never be evidence. 

We resort back to the observations of third

parties for what was, by [Romann], the abrupt

maneuver across many lanes of travel, by the

medical testimony that basically has opened
- 24 -

up the can and looked in and said [Romann]

had the medical condition that would cause

the immediate black out. And what was reported was consistent with what the pathology

would show. So that's the admissible evidence that fails to present a triable issue

in favor of a negligence claim."

The trial court was correct to be concerned that

whether Romann fell asleep or blacked out was an issue for the

trier of fact to determine. The record is not clear to what

extent, if any, the court accepted defense counsel's musings that

Romann's statements to his coworker would not be admissible under

the Dead-Man's Act (Act) (735 ILCS 5/8-201 (West 2008)), but

given the important nature of this testimony, it was not handled

appropriately. Indeed, the evidence in question was potentially

dispositive.

At a hearing on a motion for summary judgment, either

party may wish to limit or remove specific evidence from the

trial court's consideration. That is, the moving party (here, 

defendants) may wish to preclude the trial court from considering

evidence that the opposing party (here, plaintiff) may offer in

opposition to the motion for summary judgment. In this case,

defendants did not want the court to consider the statements

Romann made to Eldridge that he "went to sleep" and had a car

accident, and later that he "blacked out, fell asleep." (In an

appropriate case, of course, the nonmoving party may similarly
- 25 -

wish to preclude the court from considering some evidence that

the moving party was relying upon.)

However, asking the trial court not to consider certain

evidence when it resolves a motion for summary judgment must be

based upon more than mere musings (as occurred here) at the time

the motion is heard. Instead, if defendants here intended to

preclude the court's consideration of Romann's statements to

Eldridge, they should have filed an appropriate motion to that

effect in advance of the hearing so that both the court and

plaintiff would be put on notice of defendants' position. Then,

the better practice would be for the matter to be litigated in a

separate, formal hearing prior to the summary-judgment hearing

itself. Alternatively, if the court believes the evidentiary

matter at issue is not complicated, then the court in its discretion may address that matter immediately prior to the summaryjudgment hearing or during that hearing itself, provided, of

course, that the opposing party has received sufficient notice of

the motion. Further, the moving party should seek--and the trial

court should provide--a definitive ruling on the evidentiary

matter at issue. Following this procedure would not only make

for a better record at the trial level, it would also provide

courts of review with a clear picture of (1) the parties' positions at trial and (2) the trial court's ruling. 

If the evidentiary matter at issue is more involved,

then the party seeking to bar the trial court's consideration of

the evidence should make a motion to strike or bar the evidence
- 26 -

and set the matter for a hearing prior to the hearing on the

motion for summary judgment. This would be the preferred course,

for instance, if a party wished to challenge expert testimony

proffered by the other side in a summary-judgment context. See

Kleiss, 349 Ill. App. 3d at 351, 811 N.E.2d at 341-42. 

Here, defendants' bald, conclusory assertions regarding

the admissibility of Romann's statements were insufficient. 

Because defendants failed to raise their contention prior to the

summary-judgment hearing that the Act precluded the trial court's

consideration of Romann's statements, plaintiff never received

advance notice of this contention and appeared unprepared to

address it at the hearing. The court likewise seemed unprepared

to assess defendants' Act contention. Thus, no one should be

surprised under these circumstances that the record does not

contain any definitive ruling by the trial court regarding

defendants' contention. 

Turning to the merits of plaintiff's argument that

Romann's statements created a genuine issue of material fact, we

note that the trial court's docket entry granting summary judgment mentioned these statements in its summary of the evidence

presented. Accordingly, these statements were part of the

evidentiary material before the court when it granted defendants'

motion for summary judgment. See McCullough v. Gallaher & Speck,

254 Ill. App. 3d 941, 947, 627 N.E.2d 202, 207 (1993) ("The scope

of appellate review of a summary[-]judgment motion is limited to

the record as it existed at the time the trial court ruled"). We
- 27 -

agree with plaintiff that Romann's statements that he may have

fallen asleep prior to the collision raise a genuine issue of

material fact that precludes summary judgment.

III. EPILOGUE

In this opinion, we have discussed plaintiff's two

arguments as to why the trial court erred by granting defendants'

motion for summary judgment, and we stated our agreement with

each. We note that our analysis of these arguments provides two

separate and independent bases for reversal.

IV. CONCLUSION

For the reasons stated, we reverse the trial court's

judgment and remand for further proceedings.

Reversed and remanded.

McCULLOUGH, J., concurs.

POPE, J., specially concurs.
- 28 -

JUSTICE POPE, specially concurring:

I agree with the majority that summary judgment was

precluded in this case because a question of fact existed about

the cause of the accident. I write separately to clarify a few

matters. First, I disagree with the majority's characterization

of the trial court's handling of the matter as "inappropriate." 

Slip op. at 24. As the majority points out, the lawyers did not

frame the issue concerning the Act in a way that invited the

court to rule on the matter. Second, the majority finds evidence

of Romann's statements to Eldridge about falling asleep were

"potentially" dispositive. Slip op. at 24. Apparently, such

evidence was "actually" dispositive as to the motion for summary

judgment, because we have ruled this evidence created a question

of fact which precluded a grant of summary judgment. Third,

while defendants seemed quite confident in the trial court the

Act would bar admission of Romann's statement to Eldridge, I

would note the Act is a bar to testimony of an adverse party or

person directly interested in the action. 735 ILCS 5/8-201 (West

2008). Since Eldridge is not an adverse party, nor does he

appear to have an interest in the case, his testimony, in my

opinion, would not come within the purview of the Act. Since it

does not come within the purview of the Act, it appears to be

admissible and thus available to create the question of fact we

have relied on in reversing the grant of summary judgment.