Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.
The Illinois Appellate Court, in Foreman v. Gunite, 2012 IL App (1st) 091644, recently made an important decision in the area of proximate causation. In a case involving a rollover truck accident on a highway, the court, in reversing the trial court’s grant of summary judgment for the trucking company, held a plaintiff is not barred from presenting a prima facie case on proximate causation despite the fact that he does not remember the accident.
The plaintiff, Richard Foreman, was a truck driver for the defendant company. At the time of the accident, Foreman was traveling east on I-290, transporting a load between the defendant’s two facilities, a journey which he made 5 to 6 times a week. As he was driving, the load in the truck shifted, causing the truck to rollover and resulting in severe injuries to the plaintiff. The plaintiff alleged that the defendant failed to properly load the truck, while the defendant argued that the plaintiff was contributorily negligent by failing to inspect the load himself.
While the plaintiff had no memory of the accident, he did recall that the truck was loaded with pallets in a line going down the middle of the truck. He stated that he had never seen freight loaded in this way before. Another truck driver employee of the defendant, Joseph Grossman, testified at his deposition that his truck and two others had been loaded in the same linear way on the date of the accident, and that all of those trucks experienced leaning. An affidavit of the police officer who arrived on the scene stated that the driver told him the trailer began to lean to the side.
The defendant put together an investigative committee, consisting of the defendant’s own directors and employees, which concluded that the plaintiff was the cause of the accident by driving with excessive speed. The committee also noted that it is a driver’s responsibility to ensure his truck is safely loaded.
Reversing the trial court’s grant of summary judgment in favor of the defendants, the Illinois Appellate Court held that the evidence established that the accident was probably, and not merely possibly, caused by the truck being loaded at half capacity down the center of the truck. The bill of lading confirmed the truck was loaded as the plaintiff said. His statement to the responding officer (an excited utterance) after the accident claimed the truck began to lean. Further, Grossman’s testimony supported the conclusion that other trucks on the day of the accident had experienced similar stability problems as a result of being loaded down the middle. Additionally, the defendants relied solely on the results of an internal investigation team who never inspected the site or any of the evidence.
Perhaps of most significance was the court’s holding that the plaintiff was not barred from presenting a prima facie case on the issue of proximate cause simply because he does not remember the accident. The court reasoned that, if it was to accept the defendant’s argument to that effect, no plaintiff could ever bring a negligence claim where they could not remember the accident. In this case, there was considerable evidence that improper loading caused the accident and, therefore, the issue was one for the jury.
This is a good common-sense ruling. There was a lot of evidence, which suggested that improper loading caused the accident, which took it out of the realm of mere possibility into the area of probability. The plaintiff’s lack of memory should not preclude recovery where there is ample other prima facie evidence.