Anderson v. Anderson, s. 1–11–0034

• Citation: 2011 IL App (1st) 110034,355 Ill.Dec. 434,959 N.E.2d 1167
• Decision Date: 30 September 2011
• Docket Number: Nos. 1–11–0034,1–11–0036.,s. 1–11–0034
• Parties: Yolanda ANDERSON, Individually and as Mother and Next Friend of Ben Anderson IV, a Minor; Anita Anderson; Tamika Anderson, Individually and as Mother and Next Friend of Tashawana Tshia Anderson, Darnell Devon Anderson, LaSharon Cerrell Anderson, and Sean Darnell Anderson, Minors, Plaintiffs–Appellees, v. Sean D. ANDERSON and Frank A. Fratto, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 110034

355 Ill.Dec. 434

959 N.E.2d 1167

Yolanda ANDERSON, Individually and as Mother and Next Friend of Ben Anderson IV, a Minor; Anita Anderson; Tamika Anderson, Individually and as Mother and Next Friend of Tashawana Tshia Anderson, Darnell Devon Anderson, LaSharon Cerrell Anderson, and Sean Darnell Anderson, Minors, Plaintiffs–Appellees,

v.Sean D. ANDERSON and Frank A. Fratto, Defendants–Appellants.

Nos. 1–11–0034

1–11–0036.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 30, 2011.

Keely Hillison, Robert Kuehl, Parrillo, Weiss & O'Halloran, Chicago, for Appellant Sean D. Anderson.

Robert N. Hilbert, Julie Dressel Stahl, Hilbert, Lawler & Power, Ltd., Chicago, for Appellant Frank A. Fratto.

No brief filed for appellees.

OPINION

Presiding JUSTICE EPSTEIN delivered the judgment of the court, with opinion.

[355 Ill.Dec. 436] ¶ 1 Defendants Sean D. Anderson and Frank A. Fratto appeal a ruling of the circuit court of Cook County granting a postjudgment motion for a new trial. Sean Anderson and Fratto contend that the trial court's ruling should be reversed because the jury's verdicts were not legally inconsistent or against the manifest weight of the evidence; thus the order granting a new trial was an abuse of the judge's discretion. Plaintiffs—Yolanda Anderson, Ben Anderson IV, Anita Anderson, Tamika Anderson, Tashawana Tshia Anderson, Darnell Devon Anderson, LaSharon Cerrell Anderson, and Sean Darnell Anderson (hereinafter collectively referred to as “passenger plaintiffs”)—did not file a response brief in this appeal. We may reach the merits of an appeal even without an appellee's brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493 (1976). For the following reasons, we reverse.

¶ 2 BACKGROUND

¶ 3 This controversy arose out of a vehicle collision on December 31, 2004 at the intersection of North Avenue and Cub Drive in Melrose Park. The vehicles in question were driven by Fratto and Sean Anderson. Fratto was driving his vehicle eastbound on North Avenue, changing lanes and preparing for a right turn about a block east of Cub Drive. Sean Anderson was driving westbound on North Avenue, preparing for a left turn onto Cub Drive. Sean Anderson was transporting several minor children, all of whom are passenger plaintiffs. The undisputed testimony is that Fratto was driving 30 to 35 miles per hour when he checked his mirrors, then looked forward to see Sean Anderson's vehicle several feet in front of his car. Unable to stop, Fratto crashed into Sean Anderson's van.

¶ 4 Sean Anderson filed suit against Fratto, bringing claims for personal injury due to Fratto's alleged negligence. The passenger plaintiffs filed suit against both Sean Anderson and Fratto to recover for their alleged injuries. Fratto's insurance company brought a counterclaim against Sean Anderson as a subrogation action. In each answer, Fratto and Sean Anderson denied any negligence, instead accusing the other of negligence. The subrogation action was dismissed pursuant to settlement before the trial began. The remaining two claims were tried in 2010.

¶ 5 1. Facts Regarding the Collision

¶ 6 At trial, Officer Alfonzo Rodriguez testified that he investigated the scene after the accident occurred. Officer Rodriguez testified that although he would have recorded such a statement if it had been made, his report does not state that either Sean Anderson or Fratto claimed he had a green light. Officer Rodriguez also confirmed that the intersection has a left-turn arrow in addition to a general green signal.

¶ 7 Next, Sean Anderson's attorney called Fratto, who testified that he was driving to an Arby's restaurant east of Cub Drive. Fratto testified that he was in the center lane within one block of the collision site traveling 30 to 35 miles per hour. According to Fratto, as he approached the intersection of North Avenue and Cub Drive, he noticed that the light was solid green and that there was a line of five or six cars in the westbound left-turn lane, waiting to turn. Fratto stated, “There were some in the intersection already. Some of them were in the intersection halfway.” Fratto added that Sean Anderson's vehicle was first in line. Fratto looked into his passenger side view mirror to check the right lane before making a lane change, then looked up to see that Sean Anderson's vehicle had turned and was immediately in front of his vehicle. The vehicles collided, and Fratto testified that the force of the impact pushed the van onto its driver's side. Later, as part of his case in chief, Fratto again testified that the light at North Avenue and Cub Drive was green as he approached.

¶ 8 Sean Anderson testified that he was driving his minivan with six passengers, including his five children and one nephew. He confirmed that there is a left-turn arrow at the traffic light at North Avenue and Cub Drive. Sean Anderson also stated that when he arrived at the intersection, there were already “about two” vehicles in the left-turn lane. He testified that after “about five to ten seconds,” the signal changed to a green arrow, although all other lanes had red lights. Sean Anderson confirmed that as the cars in the left-turn lane moved forward, his vehicle was hit by Fratto's vehicle on the passenger side, flipping the vehicle over.

¶ 9 Sean Anderson testified that he told Officer Rodriguez that he had a left-turn green arrow and that Fratto had a red light. On cross-examination, Sean Anderson claimed there were four cars in front of him in the left-turn lane when he came to the intersection.

¶ 10 Yolanda Anderson's son, Ben Anderson, testified that he was 14 years old at the time of the collision. While Ben Anderson claimed the traffic signal was showing a green left-turn arrow, on cross-examination he admitted he was sitting in the third row of Sean Anderson's vehicle and had been having a conversation with another passenger, Darnell Anderson, prior to the turn.

¶ 11 The passenger plaintiffs next called Tamika Anderson, mother of five passengers and wife to Sean Anderson. On cross-examination, Tamika Anderson claimed not to have spoken with her husband, Sean Anderson, about the collision, nor had she discussed the collision in depth with her children. Fratto's attorney confronted Tamika Anderson with her complaint on behalf of the passenger plaintiffs, alleging that Sean Anderson failed to yield the right of way. She claimed to have never seen the complaint before her testimony.

¶ 12 2. Facts Regarding Injuries

¶ 13 Officer Rodriguez testified that Sean Anderson complained of injuries but did not have any visible injuries. Finally, he further testified that his police report only notes five passengers in the vehicle driven by Sean Anderson and that none complained of injuries.

¶ 14 Lewis Knight, an account analyst at Gottlieb Memorial Hospital, testified as to hospital records of Sean Anderson's injuries. According to Gottlieb's records, Sean Anderson was treated for injuries that included “[r]ight chest pain, leg pain, and right foot pain,” as well as a headache.

¶ 15 Sean Anderson also claimed that after his vehicle “turned over three times, so it was on the driver's side,” he and the passengers had visible injuries after the accident, including ripped clothing and cuts from broken glass. Sean Anderson claimed other injuries, including pain in his neck, forearm, and leg. He testified that he was taken to the hospital by ambulance, received X-rays of his back, neck, and right foot, and was prescribed painkillers. Sean Anderson also testified that his treatment involved several months of follow-up visits to his family doctor in Melrose Park. He also alleged that he lost his job as a result of the injuries from the collision, which prevented him from performing physical labor.

¶ 16 Yolanda Anderson, mother of passenger plaintiff Ben Anderson, testified that she visited her son in the emergency room. According to Yolanda Anderson, Ben Anderson's foot was swollen, he was wearing a neck brace, and he had cuts on his face. Although she was able to take Ben Anderson home, she testified that he later complained of foot pain, which was diagnosed as a fracture. Yolanda Anderson testified that because of this fracture, Ben Anderson was put in a cast for months and kept on crutches, which kept him from attending school, playing sports, and living life normally.

¶ 17 Yolanda Anderson's son, Ben Anderson, testified that after the vehicle flipped twice and landed on the driver's side, his right leg was twisted under his seat. Afterward, Ben Anderson claimed that his head ached and that his face had cuts from glass shards, which had come from a broken window on the passenger side. Ben Anderson further testified that “I noticed most of my family members as the car flipped, we were all like piled on each other as the car flipped.” Ben Anderson testified that he was taken from the scene on a stretcher, was placed in a neck brace, and was strapped to a backboard for the ambulance ride to the hospital. He testified to having his wounds attended to in the hospital and coming home with a “special shoe” and crutches. He testified that later that winter, he was diagnosed with a “sprung” ankle at an orthopedic center. As a result, Ben Anderson testified that he missed school, outings with friends, and sports and received physical therapy for his leg.

¶ 18 Tamika Anderson testified that she arrived on the scene after the police had arrived and after at least some family members had been taken away by ambulance. She observed one of her daughters in an emergency room with an IV, some scratches, and complaints of pain and inability to breathe. She testified that another of her daughters was being treated for difficulty breathing and had no visible signs of injury. Tamika Anderson brought both daughters to the family physician for a follow-up visit because of continuing pain and...