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Mann v. Producer's Chemical Co.2/15/2005
UNPUBLISHED
This is a wrongful death and survival action resulting from an incident in which the decedent, Brooks Mann, was struck by a vehicle driven by Romaus Mesa while he was crossing Route 59 in Barrington, Illinois , after truck driver James Bartow, an employee of Producer's Chemical Company (PCC), allegedly signaled to Mann that it was safe to cross the street. Mann ultimately died of the resultant injuries.
The plaintiff, Mann's mother, brought a four-count suit against Mesa, Bartow and PCC. Counts II and IV are directed solely at Mesa, who is not a party to this appeal. Two counts are directed at PCC and Bartow, count I for wrongful death and count III, a survival action. The two counts are based on the allegation that Bartow signaled to Mann that it was safe to cross the street and that Bartow's signal was a voluntary undertaking, negligently performed.
PCC and Bartow moved for summary judgment based on the testimony of witnesses elicited in the discovery depositions. On May 23, 2001, the trial court granted the motion, finding the plaintiff could not show, as a matter of law, that PCC and Bartow proximately caused Mann's injuries.
For the following reasons, we affirm.
BACKGROUND
On September 2, 1997, Mann and another high school student, Audrey Fox, were walking home from Barrington High School. Fox was walking ahead of Mann. The accident occurred where Route 59 intersects with Caitlow Court, right next to the railroad tracks. There is no pedestrian crosswalk at this intersection.
Fox crossed Route 59 and stopped to sit on a wall on the other side of the street. She "looked back and saw a truck come to a stop just north of the tracks, and saw [Mann] begin to cross the street." Mann crossed Route 59 in front of the truck. According to Fox, "as [Mann] was in front of the truck [she saw] the truck driver wave at him." Fox testified that she saw Bartow, the truck driver, wave Mann through and that Mann was looking at Bartow when Bartow signaled. "The truck [driver] waved him through and he went through." Fox also testified that she did not see Bartow look around to see if it was safe before he signaled to Mann. After Bartow's wave, Fox saw Mann continue his path across the street. As soon as Mann stepped past the truck, he was struck by a speeding vehicle driven by Mesa, which came around the truck through a yellow-marked, no-drive zone.
Gail Dixon was in the second car behind Bartow's truck. Traffic was at a full stop, "just lined up." She first observed Mann as he approached Route 59 from what appeared to be a side street. As Mann approached the street, he "made a pause when he was looking toward the cars that were stopped. He did look toward us, I believe, and it was my feeling that he saw that everyone was stopped. I don't know - - he didn't stop and wait, but he did pause." As he entered the street, "he was moving quickly." She lost sight of Mann as he passed in front of Bartow's truck.
Pamela Kunz was in the car directly in front of Bartow's truck, headed in the same direction. She saw Mann through her rear-view mirror cross behind her car. " e wasn't walking, he wasn't running, like a kid would go across the street fast." She next saw Mann through her side-view mirror, saw the other vehicle coming up fast, and "knew the kid was going to get hit." She "never saw the truck motion him across."
Terrence Niven was driving the first car headed southbound on Route 59 in the traffic line waiting at the red light. The first time he saw Mann was when he, Mann, emerged from the line of traffic, immediately prior to being struck by Mesa's vehicle. He never saw the driver of PCC'
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