Downing v. United Auto Racing Ass'n

• Decision Date: 28 March 1991
• Docket Number: 1-89-0739,Nos. 1-89-0716,s. 1-89-0716
• Citation: 156 Ill.Dec. 352,211 Ill.App.3d 877,570 N.E.2d 828
• Parties: , 156 Ill.Dec. 352 Terry DOWNING, Plaintiff-Appellee and Cross-Appellant, v. UNITED AUTO RACING ASSOCIATION and Aaron Willis, d/b/a Joliet Racing Association, Defendants-Appellants and Cross-Appellees (Robert Guess, Defendant).
• Court: United States Appellate Court of Illinois

Page 828

570 N.E.2d 828

211 Ill.App.3d 877, 156 Ill.Dec. 352

Terry DOWNING, Plaintiff-Appellee and Cross-Appellant, v. UNITED AUTO RACING ASSOCIATION and Aaron Willis, d/b/a Joliet Racing Association, Defendants-Appellants and Cross-Appellees (Robert Guess, Defendant).

Nos. 1-89-0716, 1-89-0739.

Appellate Court of Illinois First District, Fourth Division.

March 28, 1991.

French Rogers Kezelis & Kominiarek, P.C. (James M. Hofert and Russell P. Veldenz, of counsel), Chicago, for defendants-appellants and cross-appellees.

Hayes & Power (Terrence J. Lavin, Thomas G. Siracusa and David A. Novoselsky, of counsel), Chicago, for plaintiff-appellee and cross-appellant.

Justice McMORROW delivered the opinion of the court:

Plaintiff Terry Downing was injured during a midget car race that was held on premises operated by defendants United Auto Racing Association (UARA) and Aaron Willis (Willis) (hereinafter collectively referred to as defendants). The plaintiff's injuries occurred when a car driven by defendant Robert Guess (Guess) overturned on the racetrack and struck plaintiff, who was standing just off the track in an area unprotected by a guardrail. A jury found that Guess was not negligent in his driving of the car, and he is not a party to this appeal. The jury determined that the actions of defendants UARA and Willis with respect to their maintenance of the track amounted to willful and wanton misconduct, and awarded plaintiff $1.5 million in damages. The jury also found that plaintiff was 59% comparatively negligent in causing his own injuries, and reduced the award by this percentage, for a net damages award of $615,000.

Defendants UARA and Willis raise numerous issues on appeal. Based upon our review of the record, we conclude that: (1) the evidence of record supports the jury's determination that the actions of these defendants constituted willful and wanton misconduct; (2) a release signed by plaintiff was properly excluded from evidence; (3) the advent of comparative negligence does not abolish the distinction between ordinary negligence and willful and wanton misconduct; (4) the trial court's instruction to the jury to disregard certain testimony from the plaintiff's expert was sufficient to cure any prejudice to the defendants arising from such testimony; (5) the trial court's instruction to the jury to disregard hearsay testimony from one of plaintiff's occurrence witnesses was adequate to prevent any prejudice to the defendants; (6) there was no error in any of the trial court's rulings with respect to testimony provided by plaintiff's experts at trial; (7) defendants are not entitled to a new trial because of allegedly improper testimony regarding the scope of plaintiff's injuries; and (8) there were no cumulative errors that entitle defendants to a new trial.

Plaintiff also cross-appeals from the judgment entered upon the jury's verdict, claiming that his ordinary negligence could not offset defendants' liability for willful and wanton acts. We conclude that, in light of the adoption of comparative fault, a jury may consider a plaintiff's ordinary negligence to reduce the amount of damages assessed for a defendant's willful and wanton acts.

In accordance with these determinations, we affirm.

Plaintiff was injured on August 12, 1978, during a midget car race at Joliet Memorial Stadium. Defendant Willis leased the track to promote, organize and supervise such races. Under the agreement, defendant Willis was to provide a safe, adequate, and properly prepared track for the races, including personnel to supervise activities near the track and in the pit area. Defendant UARA agreed to sanction races held by defendant Willis at the stadium.

At the time of his injury, plaintiff was a member of a pit crew for Richard Pole (Pole), a midget car driver. Plaintiff helped others in the crew to prepare the car and push it onto the track. As plaintiff waited on the track for the car to be pushed into a warm-up race, he noticed that the car being driven by Guess bicycled in the turns nearer to plaintiff. "Bicycling" occurs when the car's inner wheels lose contact with the track surface.

According to plaintiff's trial testimony, Guess' car bicycled approximately two feet off the asphalt in these turns. After Guess' car passed through the turns, plaintiff and other members of the crew pushed Pole's car onto the track to participate in the warm-up race. Thereafter, plaintiff began to walk off the track toward the pit area. He was accompanied by George Boban (Boban), who was also a pit crew member for Pole. Both plaintiff and Boban noted that Guess' car again bicycled a few feet in the air when the car made the two turns at the far end of the track. Plaintiff testified that he mentioned to Boban, and to David Valentino (Valentino), a pit crew member for another driver who was nearby, that Guess' car should be blackflagged off the track. "Blackflag" occurs when the racing steward waves a black flag to a driver to signal to the driver that his car should leave the track. Valentino also testified at trial that he noticed that Guess' car bicycled when making turns around the track.

Boban and Valentino testified that they were standing with plaintiff in the grassy area near the track when they noticed Guess' car bicycling in turns on the track. Also, Boban and Valentino testified that Guess' car bicycled both during warm-up laps, where the cars are running at a reduced speed, and during hot laps, where the car are making trial runs at full speed. However, plaintiff testified that he believed Guess' car was operating a warm-up lap when he first noticed the bicycling, but that he did not know whether Guess was operating during a hot lap when Guess' car repeated its bicycling around the track.

It was established at trial that a racing steward controlled whether the cars were racing a warm-up lap or a hot lap. To indicate a warm-up lap, the steward would wave a yellow flag. To indicate a hot lap, the steward would wave a green flag. In addition, there was a light signal at the far end of the track, away from the pit area, that would show a yellow or green light depending upon the signals given by the racing steward.

During the time that plaintiff, Boban, and Valentino noticed Guess' car bicycling at the far end of the track, they were located in a grassy area off the track between the pit and the straightaway. A guardrail separated the track from the pit area at the turns at this end of the track, and there was a fence along the track straightaway. Boban, Valentino, and plaintiff all testified that they were aware that it was dangerous to remain in this area during a hot lap.

Plaintiff testified at trial that because he believed that the bicycling of Guess' car created a hazardous condition on the track, he concluded that Guess' car should be removed from the race. In an effort to find a race official to blackflag Guess' car, plaintiff began to walk away from Boban and Valentino. He walked in the grassy strip along the track, away from the guardrail, in the direction of the fence along the straight-away. Plaintiff did not watch Guess' car as it continued on the track.

Boban and Valentino testified that as Guess' car reached the turns nearer to the pit area, the car again bicycled. It then flipped over and began skidding toward the area where plaintiff, Boban, and Valentino were located. Although Boban and Valentino avoided injury, plaintiff was struck by the car and pinned against the fence next to the track straightaway. He sustained injuries requiring extensive surgery and lengthy post-operative care.

Plaintiff contended that defendants UARA and Willis were guilty of willful and wanton conduct because they (1) failed to extend the guardrail near the pit area and (2) failed to provide a pit steward to ensure that persons did not remain in the exposed area near the pit. In addition, plaintiff claimed that defendant UARA was guilty of willful and wanton misconduct because it failed to blackflag Guess' car off the track once it began to bicycle.

To support his contentions, plaintiff produced evidence at trial to show that defendants were aware that the area where plaintiff had been located was dangerous because it exposed persons standing there to the risk of being hit by cars driven on the track. Plaintiff's expert at trial, Dr. John Fitch, stated that the guardrail along the pit area should have been extended toward the straightaway to minimize this hazard. Dr. Fitch also testified that, as an alternative to a guardrail, defendants should have placed a steward, in the area where plaintiff was located at the time he was injured, who would be responsible for preventing persons from remaining in that vicinity. Dr. Fitch also stated that the defendant UARA should have blackflagged Guess' car off the track before it bicycled, lost control, and spun into plaintiff. Dr. Fitch testified that either an extended guardrail, the presence of a steward to warn plaintiff off the area unprotected by a guardrail, or the removal of Guess' car, probably would have prevented plaintiff's injuries.

Defendants presented evidence to show that none of the alternatives suggested by plaintiff was reasonably necessary, and that none would have prevented plaintiff's injuries. Testimony from experts detailed these points. Defendants also presented testimony to establish that they had warned pit crew members, including plaintiff, not to stand in the area where the plaintiff's injuries occurred.

Based upon this evidence, the jury returned a verdict against defendants UARA and Willis. It awarded plaintiff $1.5 million in damages, reduced to $615,000 for plaintiff's comparative fault, which the jury assessed at 59%. The trial court entered judgment in conformity with this verdict. Defendants UARA and Willis appeal, and plaintiff cross-appeals.

I

Defendants argue that the jury's finding of willful and wanton misconduct was not...