dissenting:
The issues presented in this case are whether, notwithstanding plaintiff’s culpability, Elkin could have done anything to avoid the accident, and whether Elkin’s headlights blinded plaintiff. The majority opinion concludes that under the facts and circumstances of this case, as a matter of law, Elkin could not reasonably have avoided the accident and Elkin’s headlights did not blind plaintiff. I take exception to these conclusions and respectfully state that under the facts and circumstances of this case, only the trier of fact can make these determinations. There are genuine issues as to material facts, and the order of summary judgment is improper.
The uncontradicted evidence in the record is that as plaintiff’s vehicle drifted towards Elkin’s vehicle, Elkin took no evasive action to avoid the collision. Kilcullen, an occurrence witness, stated that he pulled up next to plaintiff at a red light. When the light turned green, plaintiff drove off reaching a speed of about 45 miles per hour and getting 15 car lengths ahead of Kilcullen. Plaintiff’s car began to ease to its left and eventually crossed the center line into the eastbound traffic. At the point of plaintiff’s car’s entry into the eastbound lane of traffic, Elkin’s car was about 20 car lengths away. Kilcullen said, “I remember thinking that *** [Elkin’s] got to stop. It was the only way he had to avoid the impact.” Kilcullen stated that he saw Elkin’s car for about 10 seconds and plaintiff’s car was in the eastbound lane for 3 to 5 seconds before the crash. From the time that plaintiff’s car entered the eastbound lane, Kilcullen’s conduct is in stark contrast to Elkin’s. Kilcullen flashed his headlights, sounded his horn and sped up to come within 10 car lengths of Elkin, catching up by at least five car lengths before the accident. Elkin did not veer, did not change his direction, did not sound his horn, did not apply his brakes or flash his headlights prior to impact. Elkin did nothing to avoid the collision.
Plaintiff stated in her deposition that while she was driving she came up from a dip in the road and suddenly saw bright lights in front of her. She turned her head to the right because the lights blinded her. She stated that she never crossed the center line. Can we say, as the majority concludes, that as a matter of law, plaintiff was not blinded by oncoming lights and that she did cross the center line? That is for the trier of fact to determine.
If we are to speculate, Kilcullen’s action and Elkin’s inaction are easily explained. It may be that Kilcullen is a highly skilled professional driver. Kilcullen may have trained all his life for the emergency that confronted him at the time of this accident. It may be that he possessed skills beyond that which we would reasonably expect from an ordinary person. That is for the trier of fact to decide.
If we could speculate, it may be that Elkin’s reflexes were slow and he could not respond as fast as an ordinary person. Perhaps the opportunity to respond was shorter than his capacity to respond. These are matters for the trier of fact to decide.
Under pure comparative negligence in Illinois, plaintiffs own negligence cannot, alone, provide grounds for dismissing her suit. (See Alvis, 85 Ill. 2d at 27-28; King v. Petefish (1989), 185 Ill. App. 3d 630, 541 N.E.2d 847.) To defeat the motion for summary judgment, plaintiff need only present evidence which could support a finding that defendant drove negligently and that his negligence was a proximate cause of the accident. Whitman v. Lopatkiewicz (1987), 152 Ill. App. 3d 332, 336, 504 N.E.2d 243, 245.
Plaintiff’s deposition presents evidence of a triable question of fact as to whether Elkin improperly used his bright headlights, temporarily blinding plaintiff, and thereby causing the accident. However, under the Dead Man’s Act, plaintiff’s testimony as to the headlights would not be admissible at trial unless Kilcullen testified for the defense. Plaintiff’s testimony would not be admissible in her case in chief. (See Groark v. Anderson (1991), 222 Ill. App. 3d 880, 584 N.E.2d 468.) Plaintiff could present Kilcullen as her own witness, and his testimony presents evidence which could support a triable question of whether Elkin negligently failed to keep a proper lookout, sound his horn, apply his brakes or take other evasive action to avoid the collision.
Drivers have a duty to maintain a lookout for and avoid collisions with all vehicles, even those traveling on the wrong side of the road. (Chevrie v. Gruesen (1991), 208 Ill. App. 3d 881, 883, 567 N.E.2d 629, 630; Turner v. Roesner (1990), 193 Ill. App. 3d 482, 488, 549 N.E.2d 1287.) Kilcullen testified that he heard no screeching brakes and no horns other than his own prior to the crash, and he saw defendant drive straight into the collision. Officer O’Connor testified that he saw no skid marks at the accident site. This evidence creates a triable issue of whether defendant maintained a proper lookout or made an appropriate effort to avoid the crash. His failure to do either could constitute negligence.
Defendant argues that the trier of fact could not infer from Kilcullen’s and O’Connor’s testimony that Elkin’s conduct proximately caused the crash, citing several cases in which the appellate court has held that a car crossing a center line was the sole proximate cause of an accident. In Rutter v. Gemmer (1987), 153 Ill. App. 3d 586, 505 N.E.2d 1308, a rear-end collision pushed the plaintiff’s car into defendant’s lane, and the front of plaintiff’s car hit the back of defendant’s car. The appellate court affirmed summary judgment for defendant, noting that no more than two seconds elapsed between the rear-end collision and the crash with defendant’s car. The evidence showed that either defendant almost passed the point of collision before plaintiff entered his lane, or defendant swerved sharply to his right to avoid the accident and still plaintiff’s car hit the rear of defendant’s car. (Rutter, 153 Ill. App. 3d at 588.) The court concluded that any deficiency in defendant’s attention could not have proximately caused the accident. Rutter, 153 Ill. App. 3d at 594.
In Wilmere, plaintiff swerved out of his lane into oncoming traffic and collided with three vehicles, driven by the three defendants, in a matter of seconds. The appellate court affirmed summary judgment for defendants since there was no evidence that defendants did not act as prudent persons would under the circumstances. The fact of the accident and plaintiff’s swerve could not, without more, support a finding of defendants’ negligence. Wilmere, 152 Ill. App. 3d at 647.
In Young v. Texas Eastern Transmission Corp. (1985), 137 Ill. App. 3d 35, 484 N.E.2d 325, the appellate court found that defendant made an appropriate effort to avoid the collision with plaintiff’s vehicle in defendant’s lane, so it affirmed summary judgment for defendant. The court also stated that because the accident would not have occurred unless plaintiff crossed the center line, none of defendant’s acts could constitute a proximate cause of the accident. (Young, 137 Ill. App. 3d at 39.) This misstates Illinois law. In Chevrie, Turner and Rutter, the accidents would not have occurred but for plaintiff crossing the center line, but in all of those cases the court stated that that fact alone did not prevent another driver’s conduct from being an additional proximate cause of those accidents. In Turner and Santschi v. Gorter (1978), 63 Ill. App. 3d 394, 379 N.E.2d 1383, the appellate court reversed summary judgment for defendants despite uncontroverted evidence that plaintiffs veered across the center line into defendants’ lane. These cases rest on the general principle that when a plaintiff’s car veers into a defendant’s lane of travel, summary judgment in favor of defendant is proper unless there is evidence that he would have had an opportunity to avoid the accident if he had met all of his obligations as a driver by maintaining a proper speed for conditions, and a proper lookout and so forth.
There is sufficient evidence in this case to present triable issues of fact. If Elkin had enough time to avoid the accident, his failure to take any evasive measures could constitute a contributing proximate cause of the accident. (See Pizano v. Trejo (1971), 2 Ill. App. 3d 944, 274 N.E.2d 861.) If plaintiff can present evidence that Elkin’s headlights blinded her, there may be factual issues to resolve.
For the reasons stated above, I find that the trial court erred in granting summary judgment for defendant, and I would reverse and remand for trial.