Chakos v. Illinois State Toll Highway Authority

• Decision Date: 10 May 1988
• Docket Number: No. 87-1446,87-1446
• Citation: 169 Ill.App.3d 1018,120 Ill.Dec. 585,524 N.E.2d 615
• Court: United States Appellate Court of Illinois
• Parties: , 120 Ill.Dec. 585 Frances CHAKOS, Plaintiff-Appellee, v. ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellant(Terry Schrimsher, Individually and d/b/a Tri-City Towing, William Reis, Daniel Neeley, Edit Chicago, Inc., and C.A.R. Leasing, Inc., Defendants).

Page 615

524 N.E.2d 615

169 Ill.App.3d 1018, 120 Ill.Dec. 585

Frances CHAKOS, Plaintiff-Appellee, v. ILLINOIS STATE TOLL HIGHWAY AUTHORITY Defendant-Appellant(Terry Schrimsher, Individually and d/b/a Tri-City Towing, William Reis, Daniel Neeley, Edit Chicago Inc., and C.A.R. Leasing, Inc., Defendants).

No. 87-1446.

Appellate Court of Illinois First District, Second Division.

May 10, 1988.

As Modified on Denial of Rehearing

June 21, 1988.

Kiesler & Berman, Chicago (Robert L. Kiesler, R. Howard Jump, Jo M. Bonell and Patty M. Deuel, of counsel), and Querrey & Harrow, Ltd., Chicago (James J. O'Hagan, Victor J. Piekarski and Michael Resis, of counsel), for defendant-appellant.

Carr & O'Rourke Associates, Chicago (Donald A. Carr and Roland P. Ernst, of counsel), for plaintiff-appellee.

MODIFIED ON DENIAL OF REHEARING

Presiding Justice HARTMAN delivered the opinion of the court:

Defendant Illinois State Toll Highway Authority ("ISTHA") appeals a jury verdict for plaintiff of $9,500,000 as damages sustained by her while a motorcycle passenger on the Northwest Tollway. Other defendants settled for $1,350,000 prior to and during trial. ISTHA seeks review of issues as to whether: (1) ISTHA owed plaintiff the duty to itself police the tollway and enforce state traffic laws, rules and regulations or could lawfully delegate those duties to others; (2) the jury was improperly instructed that it was ISTHA's duty to eliminate existing traffic hazards and prevent injuries on the tollway; (3) the jury should have been instructed that ISTHA was liable only for conditions it knew or should have known existed; (4) improper remarks in plaintiff's closing argument denied defendant a fair trial; (5) ISTHA should have been granted relief for a co-defendant's failure to appear at trial; (6) a prior inconsistent statement by an employee of the co-defendant was improperly excluded; (7) the jury verdict on damages was excessive; and (8) admission of a certain plaintiff's exhibit constituted error. For reasons articulated below we reverse and remand for a new trial.

The legislative preamble creating ISTHA declares that it is in the public interest (Ill.Rev.Stat.1981, ch. 121, par. 100-1) "to eliminate existing traffic hazards, and to prevent automotive injuries and fatalities." Toward that end, the Illinois Department of Law Enforcement was authorized to enter into contracts with ISTHA obligating State Police to patrol toll highways at ISTHA's expense. (Ill.Rev.Stat.1981, ch. 121, par. 307.18a.) Such an agreement was concluded on March 29, 1979 and the State Police thereafter patrolled the tollroads. Lists of tollway tow truck operators are compiled by State Police, but require approval by ISTHA.

Pursuant to Resolution No. 6600 adopted by the Authority, and set forth in plaintiff's exhibit No. 20A-H in evidence, ISTHA formulated its own rules and regulations for tow truck operators, including emergency road service rules for tow trucks and service vehicles with specific instructions as to the placement of warning cones and flares. ¹ As revealed by these rules and regulations, as well as by other evidence, ISTHA officials were well aware of the hazard created by a stopped vehicle in a traffic lane. Defendant Terry Schrimsher, d/b/a Tri-City Towing, applied to the State Police for authority to operate as a tollway tow truck operator, ultimately was approved by ISTHA, and was assigned to the area of the accident.

On July 10, 1981, defendants William Reis and Daniel Neeley started on a fishing trip to Minnesota in a Ford Bronco provided to Neeley by his employer, defendant Edit Chicago, Inc., as part of his employment agreement. The vehicle was owned by defendant C.A.R. Leasing, Inc., which leased the car to Edit Chicago, Inc. Reis and Neeley attached an 18-foot boat and trailer to the Bronco, but could not get warning lights to work on the boat and trailer. They then planned to have the lights hooked up after they left Chicago. Their car stalled after they entered the Northwest Tollway, between 6:15 and 6:45 p.m., in the far left or inner traffic lane. Dusk was approaching. Traffic was heavy.

Neeley was given a lift to get help by a passing motorist; they did not report the problem at the toll plaza, only one-half mile away, but drove to a gas station where Neeley and the motorist waited for a truck. The two also waited at a cocktail lounge and then returned to the site of the disabled car much later to find it gone. Meanwhile, Reis tried to direct traffic around the car, stated he turned on flashers and, after almost being knocked over, finally walked to the toll plaza. There, Reis found a tow truck whose driver, Sam Johnson, an employee of Schrimsher, informed him he was aware of the problem.

State Trooper Richard Maciejewski, assigned to the area of the accident, had requested a "sweep" of the tollway area at 8:50 p.m. Johnson, after receiving a call concerning a disabled vehicle, discovered the Bronco shortly after 9:00 p.m. and pulled up behind it with his Mars light flashing. He observed no working lights on the boat trailer and contacted the ISTHA dispatcher. Johnson did not mention the lack of lights; he was directed to go to the toll plaza since the patron was there. He received no oral instructions to place flares and had, in fact, run out of flares, although it was his duty and Schrimsher's to make sure flares were available. Following instructions, he picked up Reis, who expressed concern about a possible accident. As they returned to the car, Johnson saw a motorcycle laid down and the driver thrown to one side, then heard a woman screaming from under a car and called for an ambulance. Reis remembered returning after the accident and noticing two cars parked behind the Bronco, boat and trailer.

Plaintiff, a passenger on a motorcycle operated by her boyfriend Anthony Vitale, was thrown under a car when, after Vitale cut into the left lane, he noticed a car stopping in front of him. He applied his brakes, causing the cycle to slide and he laid the bike down to avoid hitting the car.

Plaintiff was hospitalized and, according to testimony given by a specialist in rehabilitation medicine, a neurological surgeon, a neuropsychologist, an opthamologist, and a neurologist, suffered brain damage, blindness in her right eye and diminished vision in her left eye. Her memory was severely and permanently impaired and medical testimony indicated she was incapable of holding a job at the time of trial. Plaintiff had no memory of the accident or of being hospitalized or of high school. She had tried working several times since the accident but had been fired after a few days each time. She has trouble remembering where she is and easily gets lost; someone must accompany her whenever she goes out. Before her injuries she was lively, won awards in gymnastics and volleyball and had many friends; afterwards she seemed to have little interest in others. Her weight increased from 110 to 210 pounds after the accident.

An expert on rehabilitative care testified that plaintiff needed residential care for 9 to 12 months at a cost of about $10,000 per month to be followed by transitional care costing approximately $7000 per month for an indefinite time period. An economist calculated that plaintiff could have had a work life expectancy of 37.8 years and the present value of her earnings, including fringe benefits, would have ranged from $702,931 for a high school graduate, to $767,471 if she graduated a two year college and to $895,640 if she graduated a four year college. Plaintiff had applied to Triton College, a two year institution. Her grades had improved in her last two years of high school after having started out very poorly.

On August 21, 1981, plaintiff filed a complaint in three counts against defendants Reis, Neeley, C.A.R. Leasing, Inc., Edit Chicago, Inc., Vitale and ISTHA. She charged the latter with carelessly and negligently maintaining the Northwest Tollway, allowing the Bronco to be in the traffic lane for a long period of time, and failing to: adequately inspect the tollway, place warning devices, assist the Bronco, and remove the car from the traffic lane. Plaintiff requested $150,000 in damages from the Toll Authority. Three amended complaints were subsequently filed adding Schrimsher as a defendant, as well as counter complaints and third party complaints. A counter complaint was filed by ISTHA against Reis, Neeley, Edit Chicago and C.A.R. Leasing, Inc. In her second amended complaint, plaintiff alleged that ISTHA knew or should have known of the Bronco posing an obstruction and its negligent actions included instructing Johnson to leave his position near the Bronco, failing to instruct Johnson to remain behind the disabled vehicles with his emergency lights on and failing to instruct him to place flares and cones behind the Bronco and the trailer. ISTHA's motion for summary judgment was thereafter denied.

During the trial, four defendants agreed to a settlement with plaintiff for $1,350,000, which was approved by the circuit court in an order entered October 24, 1986, dismissing Reis, Neeley, Edit Chicago, Inc., and C.A.R. Leasing, Inc., with prejudice and dismissing all counterclaims and third party complaints against them and any claims by them against remaining defendants Toll Authority and Schrimsher. ISTHA's motions for a directed verdict were denied. The jury awarded plaintiff damages against ISTHA and Schrimsher as previously stated.

On February 9, 1987, ISTHA filed post-trial motions, requesting arrest of judgment, a directed verdict, judgment n.o.v., a new trial, a new trial for damages, remittitur and a setoff of the amount of the settlement, which were denied on April 6, 1987, except for the grant of a setoff in the amount of $1,350,000. ISTHA appeals.

I.

ISTHA first contends that it owed no duty to plaintiff because: the legislature assigned to the State Police the responsibility of...