Caponi v. Larry's 66

• Citation: 236 Ill.App.3d 660,601 N.E.2d 1347
• Decision Date: 08 October 1992
• Docket Number: No. 2-91-1325,2-91-1325
• Parties: , 176 Ill.Dec. 649 August CAPONI, Indiv., and as Special Adm'r of the Estate of Antoinette Caponi, Deceased, Plaintiffs-Appellees, v. LARRY'S 66, et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1347

601 N.E.2d 1347

236 Ill.App.3d 660, 176 Ill.Dec. 649

August CAPONI, Indiv., and as Special Adm'r of the Estate of Antoinette Caponi, Deceased, Plaintiffs-Appellees, v. LARRY'S 66, et al., Defendants-Appellants.

No. 2-91-1325.

Appellate Court of Illinois,

Second District.

Oct. 8, 1992.

Rehearing Denied Nov. 19, 1992.

Fraterrigo, Best & Beranek, Chicago, James F. Best, argued, Suzanne Favia, Fraterrigo, Best & Beranek, Wheaton, for Larry's 66, Bernice Wegrzyn, Spec. Adm. and Wayne Wegrzyn.

Paul J. Bargiel, argued, Chicago, H. Evan Williams, IV, McKenna, Storer, Rowe, White & Farrug, Kralovec Marquard Doyle & Gibbons, Chtd., Frank E. Jeffers III, Wheaton, Kenneth J. Cortesi, Chicago, for August Caponi, Spec. Adm.

Rathje, Woodward, Dyer & Burt, Peter A. Zamis, Wheaton, Knight, Hoppe, Fanning & Knight, Ltd., Patrick J. Fanning, Des Plaines, for plaintiffs-appellees.

Justice NICKELS delivered the opinion of the court:

In this negligence action, the circuit court struck defendants' expert's deposition testimony as an impermissible contradiction of Lawrence Wegrzyn's (Larry's) judicial admissions during his deposition. The circuit court then granted partial summary judgment on the issue of liability in favor of plaintiff, August Caponi, as administrator of the estate of his wife, Antoinette Caponi (Antoinette's estate), and against defendant, Bernice Wegrzyn, as the special administrator of the estate of her husband, Larry. At this juncture, we note for clarification that Larry died during the pendency of these proceedings from natural causes unrelated to the accident, and his wife was substituted as a party as his special administrator. However, Larry was extensively deposed, and such testimony is central to our consideration of the issues now before us. Therefore, for ease of reference, we will continue to refer to Larry rather than Bernice Wegrzyn as special administrator for Lawrence Wegrzyn.

On defendants' motion, the circuit court then excluded all issues of liability from the trial as to all parties and, on the court's own motion, additionally entered summary judgment for August Caponi, individually (August), against Larry and defendants Larry's 66 (repair shop) and Wayne Wegrzyn (Wayne), who was Larry's son and partner in the repair shop. Before trial, defendants filed a motion in limine to prevent plaintiffs from calling witnesses to establish Larry's agency for Wayne and the repair shop on the issue of their liability to Antoinette's estate, who was the only plaintiff for whom liability remained an issue. The court ruled that liability had been established but neglected to expressly indicate that such ruling was in favor of Antoinette's estate. After the trial limited to the issue of damages, the jury returned verdicts in favor of Antoinette's estate and in favor of August and against all defendants. The circuit court thereafter entered an order nunc pro tunc correcting its pretrial ruling on defendants motion in limine to reflect that the entry of summary judgment on the issue of liability had been in favor of Antoinette's estate.

Defendants appeal, asserting that: (1) the court erred in finding Larry's deposition testimony that the brakes were "high and hard" was a judicial admission, which precluded contradiction by defendants' expert and which established Larry's negligence as a matter of law; (2) that the circuit court abused its discretion in entering its nunc pro tunc order because the record of its pretrial ruling did not support such correction; and (3) that the trial court made erroneous and prejudicial evidentiary rulings during the trial on the remaining issue of damages, which require reversal and remand for a new trial.

Larry was an auto mechanic for 35 years and owned and operated the repair shop in partnership with Wayne. On July 16, 1987, a customer brought in a 1966 Ford Thunderbird for repairs. The owners complained that the Thunderbird shook and shuddered when idling and that, although it did not, the engine felt as if it would die out or stall. Defendants had performed all mechanical repairs on the Thunderbird for approximately 15 years.

Although the engine of the Thunderbird did not stall during a test drive by Wayne, he determined that it needed carburetor repairs and that the cause of the complaints was too much gas entering the carburetor, which caused "loading up and flooding out" of the carburetor. At his deposition, Larry testified that "loading up and flooding out" referred to the float on the carburetor letting in too much gas when a car idles, which chokes out the proper amount of air and can cause the engine to stall. Plaintiff's expert also testified that sudden hard acceleration from a stopped, idling position can inject additional gas into the already flooded carburetor, which may also cause the engine to stall. However, Larry testified that a rough idle caused by carburetor problems has no effect once a car reaches a speed of 10 miles per hour.

Wayne advised Larry of his diagnosis of the problem and asked him to also drive the Thunderbird to confirm such diagnosis. After completing some paper work at the repair shop at approximately 1 p.m., Larry test drove the car by using it to run some business-related errands. He, too, experienced a rough idle on several occasions when stopped at traffic lights and also reached the conclusion that the carburetor needed repairs. During Larry's test drive prior to the collision, however, the engine of the Thunderbird did not stall, and it ran smoothly at times other than when idling. As he continued to complete his errands, Larry was travelling eastbound in the curb lane on Lake Street in Addison, which is a four-lane roadway with two lanes of traffic travelling in each direction. After waiting at the stoplight at the intersection of Lake Street and Addison Road, Larry began to proceed. After about 2 1/2 blocks, he noticed traffic slowing in the curb lane due to traffic leaving the roadway. The speed limit was 30 miles per hour, but Larry had only reached a speed of 20 miles per hour when the traffic began to slow further. Larry removed his foot from the accelerator, and, after checking traffic and turning on his left turn signal, Larry began to accelerate into the inside lane to go around the slowing traffic. However, another car in the inside eastbound lane was stopped waiting to make a left turn several car lengths in front of the point where Larry began to enter the inside lane. Therefore, approximately half way through the maneuver into the inside lane, Larry applied his brakes only to find that they were, according to his deposition testimony, solid or "hard" and that he could not depress the pedal, which may be described as "high." Larry attempted to steer the Thunderbird back into the curb lane, but had no steering as well. Based on the high, hard brake pedal and loss of steering, Larry came to the conclusion after the collision that the engine of the Thunderbird had stalled,which he related to both the police and Wayne.

The Thunderbird continued on its last trajectory towards the inside lane and across it, eventually crossing the double yellow lines separating the east and westbound lanes and entering the westbound lanes to strike the car driven by August and in which Antoinette was a passenger. Antoinette died as a result of the injuries she sustained, and August suffered injuries to his left arm, hip and knee, which required reconstructive surgery and which caused him pain and limited his activities after the collision. August, both individually and as administrator of Antoinette's estate, filed suit sounding in negligence naming as defendants Larry individually and, based on a theory of agency, Wayne and the repair shop.

Antoinette's estate moved for summary judgment against Larry on the issue of liability, arguing that because the accident occurred on the side of the double yellow line in which Antoinette was a passenger in a car, Larry was liable unless he could offer a nonnegligent explanation for his crossing such line. (See Osborne v. O'Brien (1986), 114 Ill.2d 35, 41, 101 Ill.Dec. 867, 499 N.E.2d 455; see also Sughero v. Jewel Tea Co. (1967), 37 Ill.2d 240, 343, 226 N.E.2d 28; Calvetti v. Seipp (1967), 37 Ill.2d 596, 598-99, 227 N.E.2d 758.) In opposition to Antoinette's estate's motion, Larry asserted that a sudden emergency occurred when the brakes failed, which was a nonnegligent explanation for his conduct of crossing the double yellow line into oncoming traffic.

Both plaintiffs and defendants offered the deposition testimony of an expert to support their arguments for and against summary judgment respectively. Although they agreed on several key points, including the existence of a leak in one of the brakes lines that predated the collision, and both had discounted Larry's deposition testimony of a high, hard brake pedal, the two experts reached conflicting conclusions on the cause of the collision.

Defendants' expert concluded that the preexisting hole in the brake line had caused a sudden unanticipated catastrophic brake failure. However, both experts agreed that such catastrophic brake failure would be distinguished by the brake pedal going all the way to the floor. Thus, to reach his opinion, defendants' expert expressly ignored Larry's deposition testimony that the brake pedal was high and hard.

In contrast, plaintiffs' expert's opinion was that the hole in the brake line was only a small leak incapable of causing such catastrophic brake failure. In plaintiffs' expert's opinion, Larry had not experienced either a high, hard brake pedal or failure of the power steering because loss of engine power would not result in total loss of brakes and steering, but such power-assisted systems would gradually diminish to the equivalent of a system with manual steering and brakes. Therefore, in his opinion, the carburetor problem had nothing to do with the collision. However, in...