359 F.3d 892 (7th Cir. 2004), 01-3885, Mihailovich v. Laatsch

Docket Nº:01-3885.
Citation:359 F.3d 892
Party Name:Helen MIHAILOVICH, Plaintiff-Appellant, v. Gary LAATSCH and Law Office of Pavalon, Gifford, Laatsch & Marino, Defendants-Appellees.
Case Date:March 05, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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359 F.3d 892 (7th Cir. 2004)

Helen MIHAILOVICH, Plaintiff-Appellant,


Gary LAATSCH and Law Office of Pavalon, Gifford, Laatsch & Marino, Defendants-Appellees.

No. 01-3885.

United States Court of Appeals, Seventh Circuit

March 5, 2004

Argued Sept. 18, 2002.

Rehearing Denied May 5, 2004.

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David A. Novoselsky (argued), Leslie J. Rosen, Novoselsky Law Offices, Chicago, IL, George P. Lindner, Lindner, Speers & Reuland, Aurora, IL, for Plaintiff-Appellant.

Daniel F. Konicek, (argued), Konicek & Dillon, Geneva, IL, for Defendants-Appellees.

Before BAUER, MANION, and ROVNER, Circuit Judges.


A one-car automobile accident on a curved roadway maintained by Cook County, Illinois (the "County") caused Helen Mihailovich to suffer a spinal cord injury. Mihailovich filed suit against the County in state court, alleging that it had been negligent in its care and upkeep of the roadway and that the condition of the roadway was a contributing cause of the accident. Attorney Gary Laatsch and the law firm now known as Pavalon, Gifford, Laatsch & Marino (collectively "Laatsch") filed the suit on Mihailovich's behalf but withdrew

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from the case approximately six months prior to the scheduled trial date. The attorney who succeeded Laatsch was unable to convince the court to continue the trial date, and after Mihailovich's new counsel was unable to retain an expert and to identify other individuals who might testify on her behalf, the court entered successive orders barring Mihailovich from presenting witnesses and then granting summary judgment in favor of the County. Mihailovich, now a citizen of Florida, subsequently filed suit in diversity against Laatsch, charging him with legal malpractice. The malpractice suit proceeded to trial, and the jury held in Laatsch's favor. Mihailovich appeals, contending that the district judge erred in certain evidentiary rulings that constrained her ability to show that the roadway on which her accident occurred was dangerous and that she would have prevailed in her suit against the County but for Laatsch's alleged malpractice. Because we conclude that the district court abused its discretion in excluding evidence of other accidents that had occurred at the location of the Mihailovich accident, we vacate and remand for a new trial.


Early in the evening of July 1, 1986, Mihailovich's husband Mike picked her up after work at the Olympia Way train station in Olympia Fields, Illinois, a suburb southwest of Chicago. On leaving the train station, they proceeded south on Kedzie Avenue with Mr. Mihailovich at the wheel of their 1978 Chevrolet Nomad van. Between 205th and 207th Streets, they encountered what is known as the Kedzie curve, a reverse S-curve that connects Kedzie Avenue with Olympian Way. As the "S-curve" appellation suggests, the Kedzie curve comprises two successive curves: a northern curve that turns to the west, and a southern curve turning back to the east. Mihailovich did not know exactly how fast her husband was driving, but later testified that "[h]e was going with the traffic and the speed was regular." Tr. 207. She noticed nothing unusual in his manner of driving. It was raining or drizzling as it had been throughout the day, and the pavement was wet. Somewhere along the S-curve (Mihailovich could not recall where), their van slid off the roadway, tumbled into a ditch, and came to rest upside down. Mihailovich could not recall whether or not her husband had braked prior to the accident. The event was "just like a bullet," she later testified (see Tr. 209, quoting her deposition testimony); it happened "in a spare moment, in a spare second" (Tr. 182). As a result of the accident, Mihailovich suffered a spinal cord injury that required months of hospitalization and rehabilitation and permanently limited her mobility. 1

Police officer Mark Fazzini was summoned to the scene of the accident at approximately 6:40 p.m. Fazzini served on the Olympia Fields police force for twenty-five years and retired in 2000 as its chief. Over the course of his work for the Village, he traveled the Kedzie curve many times each day. When Fazzini reached the scene, he discovered the overturned Mihailovich van on the west side of a ditch in front of a residence located at 20540 Kedzie Avenue, a position near the south end of the northern curve. Fazzini described the Kedzie roadway as a two-lane road that was long and straight on either end of the S-curve, with only a broken yellow line separating the two lanes of traffic, each moving in an opposite direction (north and

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south). So far as Fazzini knew, no maintenance work had been done on the curve from 1980, by which time the County had assumed responsibility for the curve from the State, through the date of the Mihailovich accident in 1986. Fazzini's written report of the accident indicated that there were "no defects" in the road.

By way of background, we pause at this point to note that the Kedzie curve had something of a notorious reputation among local officials as a traffic hazard. Accidents occurred regularly along the S-curve, particularly when the pavement was wet, and there was a perception among officials that the frequency of accidents had increased since the County had resurfaced and widened the roadway to the immediate north and south of the Kedzie curve (but not the bulk of the S-curve itself) in 1981-1982. Concern about the accident rate had moved the board of trustees of Olympia Fields in 1984 to enact a resolution calling upon the County to address the problem. Partly in response to that resolution, the County in late 1984 and early 1985 had installed additional signage alerting motorists to the winding character of the road, reducing the advised speed through the curve, and warning drivers that the pavement was slippery when wet. These signs were in place at the time of the Mihailovich accident in 1986. However, the County had not resurfaced or otherwise addressed the condition of the roadway itself, and notwithstanding the additional warning signs, accidents continued to occur with regularity until the County reconstructed the S-curve in 1988-1989. At that time, the County increased the radius of the north curve, added a four-foot center rumble strip, added a superelevation of four percent, and resurfaced the roadway. In the wake of the reconstruction, the accident rate dropped from an average of approximately twenty per year to two or three per year. The failure to take such steps prior to the Mihailovich accident is what gave rise to Mihailovich's negligence claim against the County.

The jury in this case was aware that the Kedzie curve was perceived as dangerous by local officials, but heard no evidence about the other accidents that had occurred at the S-curve in the years immediately before and after the Mihailovich accident. Because Mihailovich has made the district court's limitation her lead issue on appeal, we shall summarize both the evidence that the court allowed and the evidence that the court excluded on this point. Following those summaries we shall describe the other evidence presented in support of Mihailovich's malpractice claim before turning to the merits of her appeal.

Admitted Evidence Regarding the Curve's Potential Hazard

Arthur Kaindl worked as a highway engineer for Cook County for thirty-eight years, rising to the post of Chief Engineer in the Bureau of Maintenance, which he held at the time of his retirement in August 1986. In September of 1983, Kaindl was the Chief Engineer of Transportation and Planning. In that capacity, he received a memorandum from Joseph Marsik, Chief Engineer of Maintenance, forwarding a second memorandum that Marsik had received from Frank Reno, the District Engineer of Maintenance for the district that included Olympia Fields and the Kedzie curve. Although Kaindl was not permitted to read either of the two memoranda to the jury, he indicated that Reno's memorandum expressed a concern that the Kedzie curve was in a dangerous condition. Tr. 555. Upon receipt of these memoranda, Kaindl ordered personnel under his supervision to undertake a review of the curve, including field surveys to assess, among other things,

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whether the existing signage and posted speed limit at the curve were appropriate to the condition of the curve. The propriety of the speed limit was evaluated using a ball-bank study, which by measuring the degree of sideways sway of a vehicle driving through the curve ascertains the maximum speed at which a motorist will feel comfortable. That study indicated that thirty miles per hour was an appropriate, comfortable speed through the curve and that was the speed recommended on advisory signs later posted at the curve. Kaindl acknowledged that a ball-bank study is conducted on dry pavement, that it does not measure the coefficient of friction, 2 and that it does not determine a safe speed for the roadway when the pavement is wet. After completing its review of the curve (apparently in 1984), the County did not resurface or reconstruct the curve at any time through August of 1986, when Kaindl retired.

Fred Unger served as the police chief of Olympia Fields from 1971 to 1990. He traveled through the Kedzie curve and observed its condition hundreds of times over the course of his tenure. According to Unger, the pavement at the curve tended to become slick when dampened by precipitation. "During inclement weather, accompanied by precipitation, the roadway would take on a slick surface, and the oil from the pores of the macadam surface would be floated to the top by the amount of water that was hitting the pavement." Tr. 429. Unger indicated that a light rain was sufficient to bring about this condition.

Robert E. Field has lived in Olympia Fields since 1974. He served as a trustee of the Village from 1981 through 1989 and as...

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