Defendant's (opposing driver) Answer in Automobile Accident Case

Circuit Court of Illinois,
Sixteenth Judicial Circuit.
Kane County
David HAINES Administrator of the Estate of Peggy Haines, Plaintiffs,
v.
Gina TERPSTRA, a minor, by and through her father and next friend, William J. Terpstra, Defendants.
Case No. 03 L 575.
December 29, 2003.Answer to Complaint

Gina Terpstra, a minor, by and through her father and next friend, William J. Terpstra, Defendant, By: O'Hagan, Smith & Amundsen, L.L.C., By: Thomas P. Scherschel.

NOW COMES the Defendant, GINA TERPSTRA, a minor, by and through her father and next friend, WILLIAM J. TERPSTRA, by and through their attorneys, O'Hagan, Smith & Amundsen, L.L.C., and in response to the Plaintiffs Complaint, answer as follows:

1. Admits that an automobile collision occurred on October 29, 2003, at approximately 5:25 p.m. between an automobile driven by Gina Terpstra and the Plaintiffs Decedent; further answering, on information and belief, admits that the accident happened in the 700 block of Pine Street in Batavia, Illinois.

2. Admits that the Gina Terpstra was operating a motor vehicle in a westerly direction on Pine Street; further answering, admits only that contact between the Plaintiffs Decedent and the motor vehicle occurred on the left side of the vehicle, the side closest to the south side of the roadway. It is not known to the Defendant where the Plaintiffs Decedent was positioned immediately prior to the accident , or if she was walking or turning or standing still and therefore, the remaining allegations of the paragraph 2. of the Plaintiffs complaint are neither admitted nor denied but the Defendant demands strict proof thereof.

3. Denies and further denies each subparagraph and all legal and factual conclusions contained therein.

4. Denies.

5. The Defendant has insufficient knowledge as to the allegations contained in paragraph 5. of the Plaintiffs Compliant and therefore neither admits nor denies same but demands strict proof thereof.

6. Denies.

7. The Defendant has insufficient knowledge as to the allegations contained in paragraph 7. of the Plaintiffs Compliant as no letters of office were attached to the Plaintiffs Complaint, and therefore the Defendant neither admits nor denies said allegations but demands strict proof thereof.

WHEREFORE, the Defendant denies that the Plaintiff is entitled to judgment in any amount whatsoever and asks for judgment in favor of the Defendant and against the Plaintiff with costs to be taxed against the Plaintiff.

GINA TERPSTRA, a minor, by and through her father and next friend, WILLIAM J. TERPSTRA, Defendant,

BY: O'HAGAN, SMITH & AMUNDSEN, L.L.C.,

By: Thomas P. Scherschel

AFFIRMATIVE DEFENSE

NOW COMES the Defendant, GINA TERPSTRA, a minor, by and through her father and next friend, WILLIAM J. TERPSTRA, by and through their attorneys, O'HAGAN, SMITH & AMUNDSEN, L.L.C., and asserting that the negligence of the Plaintiffs Decedent caused any injuries or damages sustained by the Plaintiff's Decedent or her Estate, states as follows:

1. Both before and at the time of the occurrence alleged in the Plaintiffs' complaint, the Plaintiff's Decedent, PEGGY HAINES, was under a duty to use reasonable care for her own safety.

2. The injuries, death and other damages sustained by the Plaintiffs Decedent, PEGGY HAINES and/or the ESTATE of PEGGY HAINES, were proximately caused by the Plaintiffs Decedent's breach of duty when she:

a) entered onto a public roadway in a location which was not intended for pedestrian traffic;

b) entered onto a public roadway in a location which was not intended for pedestrian traffic at night while wearing dark clothing at a time when vehicular traffic was lawfully present on the roadway in close proximity to the position of the Plaintiffs Decedent;

c) entered onto a public roadway in a location which was not intended for pedestrian traffic at night while wearing dark clothing at a time when vehicular traffic was lawfully present on the roadway in close proximity to the position of the Plaintiffs Decedent, while knowing that such a maneuver was dangerous and could cause injury or death.

WHEREFORE, if the trier of fact finds in favor of the Plaintiff, on the issue of liability, the Defendant moves this court to reduce any award, verdict or judgment in favor of the Plaintiff by an amount commensurate with the degree of negligence or other misconduct attributable to the Plaintiffs Decedent, PEGGY HAINES, in causing her own injuries and death and in causing any derivative damages sustained by the ESTATE OF PEGGY HAINES, Deceased.

AND WHEREFORE, if the trier of fact finds that the negligence of Plaintiffs Decedent, PEGGY HAINES, exceeds 50% of all negligence attributable to the subject accident , the Defendant moves this court to strike and dismiss the Plaintiffs complaint with prejudice.

GINA TERPSTRA, a minor, by and through her father and next friend, WILLIAM J. TERPSTRA, Defendant,

BY: O'HAGAN, SMITH & AMUNDSEN, L.L.C.,

By: Thomas P. Scherschel

Thomas P. Scherschel

O'HAGAN, SMITH & AMUNDSEN, L.L.C.

22 South Fourth Street

P. O. Box 567

Geneva, IL 60134

Phone No.: (630) 587-8545

Attorney No.: 6184669

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