Diminskis v. Chicago Transit Authority

• Decision Date: 15 January 1987
• Docket Number: No. 85-2912,85-2912
• Citation: 108 Ill.Dec. 54,508 N.E.2d 215,155 Ill.App.3d 585
• Parties: , 108 Ill.Dec. 54 Elizabeth DIMINSKIS, as Plenary Guardian of the Estate and Person of Victor Diminskis, and Elizabeth Diminskis, Individually, Plaintiffs-Appellees, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation, and Harold D. Clemons, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 215

508 N.E.2d 215

155 Ill.App.3d 585, 108 Ill.Dec. 54

Elizabeth DIMINSKIS, as Plenary Guardian of the Estate and Person of Victor Diminskis, and Elizabeth Diminskis, Individually, Plaintiffs-Appellees, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation, and Harold D. Clemons, Defendants-Appellants.

No. 85-2912.

Appellate Court of Illinois First District, Fourth Division.

Jan. 15, 1987.

As Amended on Motion for Rehearing

April 27, 1987.

Hoffman, Burke and Bozick, Chicago (Gary W. Bozick and Edmund J. Burke, of counsel), for defendants-appellants.

Hofeld & Schaffner, Chicago (Albert F. Hofeld, Howard Schaffner, of counsel), for plaintiffs-appellees.

Justice LINN delivered the opinion of the court as modified upon allowing defendant's petition for rehearing:

Defendant Chicago Transit Authority (CTA) brings this appeal seeking reversal of a jury's verdict in favor of the plaintiffs, Victor and Elizabeth Diminskis, and against the CTA. The Diminskis' instituted their personal injury suit following an accident in which a bus owned and operated by the CTA struck and seriously injured Victor. Victor's action charged the CTA with negligence while Elizabeth sought recovery for the loss of Victor's consortium. At the close of the trial, the jury awarded Victor and Elizabeth $400,000 each, respectively.

On appeal, the CTA contends that a new trial should be ordered. Specifically, the CTA contends that the following defects prejudiced the outcome of the trial: (1) the trial court erred in prohibiting the CTA from introducing several alleged admissions previously made by Victor during his evidence deposition; (2) the trial court erred in permitting a Dr. Kelvin Von Roenn to testify where Dr. Von Roenn had not been disclosed prior to trial pursuant to the CTA's Supreme Court Rule 220 request; (3) the trial court erred in admitting certain evidence pursuant to the business records exception to the hearsay rule; and (4) a series of CTA reports were erroneously admitted. In the alternative, the CTA claims that the $400,000 award granted to Elizabeth for her loss of Victor's consortium was excessive and that a remittitur is appropriate.

Although the CTA raises several other arguments in its brief, a review of the record discloses that these arguments were either: (1) not objected to at trial and were therefore waived, (Roark v. Musgrave (1976), 41 Ill.App.3d 1008, 355 N.E.2d 91); (2) fell within the discretion of the trial court with the trial court committing no abuse of discretion (M.I.G. Investments, Inc. v. Marsala (1981), 92 Ill.App.3d 400, 47 Ill.Dec. 265, 414 N.E.2d 1381); or (3) simply do not find support in the record. We affirm.

The Background

This case arose from an accident which occurred on February 3, 1983, involving a CTA bus and the plaintiff, Victor Diminskis. On that date, a CTA bus driven by defendant Harold Clemons struck Victor at the intersection of 73rd Street and Western, in Chicago, Illinois causing Victor to suffer serious physical injuries. Soon thereafter, Victor filed this lawsuit against the CTA with Victor's wife, Elizabeth, seeking damages for the loss of Victor's consortium.

Subsequently, on January 28, 1985, Victor was declared incompetent and Elizabeth was appointed the plenary guardian of his estate and person.

At trial, Victor was not called upon to testify. However, Victor's wife, Elizabeth, did testify. She stated that prior to the accident, Victor was the treasurer of the Lithuanian Youth Center, that he was the director of the "Fighter for Freedom Museum", and that he was an active gardener. Elizabeth also stated that as a result of the accident, Victor no longer participates in any of those activities. She testified as to Victor's physical and emotional condition after the accident and throughout his recovery period. She further testified that her marriage to Victor was very pleasant prior to the accident and that their relationship was very different now.

Several witnesses testified that they were present at the scene of the accident and saw what occurred.

Edward Buckels was a witness to the accident. Buckels stated that Victor was on the median strip at the time of the accident. Buckels further testified that the bus was traveling at a speed of 20 to 25 miles per hour prior to the bus's impact with Victor. Buckels also claimed that Victor was hit from the rear by the bus and did not run into the bus's path.

Edward Petrasek was also present at the scene of the accident. He testified that he saw Victor step off the curb and walk to the median strip. Petrasek stated that he believed the bus was traveling at a speed of 25 to 30 miles per hour prior to the accident. Although Petrasek did not actually see the bus strike Victor, he did assist Victor after the accident until the paramedics arrived.

Defendant Harold Clemons was called by the plaintiff as an adverse witness. Clemons testified as to his version of the events leading up to and following the accident. Clemons stated that he was driving a CTA bus on the day in question. Clemons claimed that his bus was traveling between 5 and 15 miles per hour prior to the accident. Clemons said that when he first saw Victor, Victor temporarily froze in front of his bus. Clemons asserted that he then turned the bus to the left to avoid hitting Victor only to have Victor run to the left into the path of Clemons' oncoming bus. Although Clemons applied his brakes, he could not avoid coming into contact with Victor.

Fletcher Freeman also witnessed the accident. He was a passenger on the bus at the time of the collison. Freeman's testimony corroborated that of Clemons. Freeman stated that Victor ran into the path of the bus and that Clemons could do nothing additional to avoid hitting Victor.

Other witnesses included a nurse who testified as to the extent of care, and the cost thereof, that Victor would require should her nursing service provide in-home care to Victor. In addition, the paramedic who arrived after the accident testified as to Victor's physical condition immediately following the accident.

Dr. Kelvin Von Roenn, one of Victor's treating physicians, also testified. He testified over the objection of defense counsel, (see discussion infra ) as to the extent of Victor's injuries and as to Victor's potential to recover.

In addition, several employees of the CTA also testified. These employees testified as to certain reports that are routinely filled out by CTA employees following an accident (see discussion infra ), and as to the condition of the bus before and after the accident.

Finally, Victor's employer testified as to Victor's job duties, as to his mental awareness before the accident, and as to Victor's annual income before he suffered his injury.

After the parties delivered their closing arguments and following the trial court's instructions, the jury returned a verdict in favor of Victor and Elizabeth and against the CTA. Specifically, the jury awarded $400,000 to Victor for the injuries he suffered and $400,000 to Elizabeth for her loss of Victor's consortium.

The CTA now brings this appeal.

Opinion

I.

We first address the CTA's contention that the trial court erred in barring the CTA from introducing certain parts of Victor's deposition. The CTA claims that Victor made several admissions in his deposition and that the CTA should have been able to introduce those admissions into evidence.

It is undisputed that Victor suffered a severe injury to his brain as a result of the accident. In fact, Victor has been declared by the probate court to be mentally disabled.

Prior to Victor's deposition, plaintiff's counsel informed the CTA that Victor was incompetent to testify. However, because Victor's testimony could lead to discoverable information, it proceeded. See, Krupp v. Chicago Transit Authority (1956), 8 Ill.2d 37, 132 N.E.2d 532.

A review of Victor's deposition reveals clearly that the trial court did not err in finding Victor to be incompetent (because of his inability to recollect) to testify at the time of his deposition. In brief, Victor's answers disclose that he was, at the least, seriously confused as to what occurred prior to, and immediately following the accident involving the CTA bus. He was unable to properly state the location of the accident, the time at which it occurred, the date on which it occurred, or even why he was at the scene of the accident. That being the case, we agree with the trial court that Victor's inability to recollect rendered his testimony inadmissible. Thus, the trial court did not abuse its discretion in prohibiting the CTA from introducing into evidence certain answers contained in Victor's deposition. Accord, Clements v. Schless Construction Co., Inc. (1968), 91 Ill.App.2d 19, 26, 234 N.E.2d 578 II.

We next address the question of whether a plaintiff is required to disclose, pursuant to a defendant's Supreme Court Rule 220 request, that the plaintiff intends to call one of the plaintiff's treating physicians to testify as to that physician's medical opinion.

Prior to trial, the CTA tendered to the plaintiffs a Supreme Court Rule 220 (87 Ill.2d R. 220(b)(1)) request asking the plaintiffs' to identify all of the experts which they intended to call at trial. In their response, the plaintiffs' failed to list Dr. Kelvin Von Roenn, a neurologist who had previously treated Victor. The plaintiffs did, however, list Dr. Von Roenn as a treating physician in an answer to an interrogatory propounded by the CTA and did provide the CTA with Dr. Von Roenn's medical records. Subsequently, when the CTA learned that the plaintiffs intended to call Dr. Von Roenn to testify at trial, the trial court granted the CTA leave to depose Dr. Von Roenn.

The CTA claims that the trial court should have barred Dr. Von Roenn from testifying because the plaintiffs failed to list him as an expert witness pursuant to their Rule 220 request. The plaintiffs, on the other hand,...