Fakhoury by Fakhoury v. Vapor Corp.

• Decision Date: 17 March 1987
• Docket Number: No. 86-1058,86-1058
• Citation: 154 Ill.App.3d 531,107 Ill.Dec. 386,507 N.E.2d 50
• Parties: , 107 Ill.Dec. 386 Amanie FAKHOURY, a minor, by Ibraham FAKHOURY, her father and next friend, Plaintiff-Appellee, v. VAPOR CORPORATION, a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 50

507 N.E.2d 50

154 Ill.App.3d 531, 107 Ill.Dec. 386

Amanie FAKHOURY, a minor, by Ibraham FAKHOURY, her father and next friend, Plaintiff-Appellee, v. VAPOR CORPORATION, a corporation, Defendant-Appellant.

No. 86-1058.

Appellate Court of Illinois First District, Second Division.

March 17, 1987.

Rehearing Denied May 6, 1987.

Cassiday, Schade & Gloor, Chicago, D. Patterson Gloor and Kevin G. Burke, and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, and Stephen R. Swofford and H. Anne McKee, of counsel, for defendant-appellant.

Fishman & Fishman, Ltd., Chicago, Ronald S. Fishman, of counsel, and Debofsky & Debofsky, Chicago, Mark D. Debofsky, of counsel, for plaintiff-appellee.

Justice STAMOS delivered the opinion of the court:

Ibraham Fakhoury filed suit on behalf of plaintiff, his five-year-old daughter, seeking damages for injuries she received when struck by a car operated by James Guyon, defendant's employee. The employee settled with plaintiff prior to trial. At trial, the court granted plaintiff a directed verdict on the issue of respondeat superior and the jury found against defendant on the negligence issue and awarded damages. Thereafter, judgment was entered on the verdict. Defendant now appeals.

On October 12, 1977, plaintiff Amanie Fakhoury was injured when she was struck by an automobile driven by James Guyon. Plaintiff allegedly suffered brain damage, hemiparesis and other injuries. On April 6, 1978, plaintiff filed an action in negligence against Guyon. An amended complaint was filed on April 30, 1979, naming Guyon's employer, defendant Vapor Corporation, as a party defendant based upon a theory of respondeat superior; plaintiff alleged that Guyon was in the employ of defendant and was acting within the scope of his employment at the time of the accident.

Stanley Lemieux, defendants' vice president, testified that the company is located on the northwest side of Chicago and is a manufacturer of heating equipment. Lemieux explained that Guyon was a serviceman employed by defendant. He was one of four such servicemen employed at the time of the accident and was supervised by a service manager. As a serviceman, Guyon's responsibility was to start up new equipment at a customer's site after installation and to perform any needed maintenance and repair on this equipment.

Defendant's customers are billed for a serviceman's hourly work and for his travel time. Servicemen are paid a fixed salary by defendant. They are required to use their own cars to travel to job sites and are reimbursed by defendant for doing so. Servicemen are directed to a job site from defendant's plant site or from their homes. When they have no service work scheduled, servicemen are required to be present at the plant and must return there after a job is completed if there is time to do so. Each serviceman is issued a set of tools by defendant and is required to carry the tools with him at all times. However, they are authorized to purchase certain standard tools at their own discretion provided it is not a major expenditure and may make their own travel plans.

On cross-examination, Lemieux testified that the service manager and not the individual servicemen decide on what job they will work. When traveling, servicemen are required to call daily. Lemieux stated that each serviceman is issued a standard service tool kit. If, while he is on a job, a serviceman finds that he needs a certain tool, he must contact the service manager who will either send this tool or will authorize the serviceman to purchase it. Lemieux maintained that this procedure was a control function to insure that discretionary purchases were appropriate.

Guyon testified that he had been employed by defendant as a service representative for 20 years. He stated that he drove his own car to and from job sites and was required to maintain insurance on his car; Guyon was given a mileage allowance by defendant for travel. Guyon's tool kit includes meters for checking electricity, manometers, C02 and 02 meters and equipment for checking combustion as well as an assortment of small hand tools.

On the date of the accident, Guyon was at defendant's plant doing routine paperwork. He had been assigned to travel to Madison, Wisconsin the following day and planned to leave from his home at 6 a.m. When Guyon left work at 4:30 p.m. that evening, he stated that he stopped at a hardware store at Clark and Ashland to purchase a carpenter's square for his use the next day. When that store did not have this item, Guyon returned to his car and began to drive southbound on Ashland to a lumber store in the vicinity. While proceeding there, south of the intersection of Ashland and Berwyn, Guyon heard a thump and felt something strike the front of his car. Guyon stopped and saw plaintiff lying in the street approximately 25 feet behind his car. There were no eyewitnesses to the accident. A passing ambulance stopped moments later to render assistance to plaintiff and transported the child to the hospital. Guyon did not purchase a carpenter's square that evening. Upon his arrival in Madison, Wisconsin the following day, he borrowed the customer's carpenter's square.

Thad Aycock, a senior consultant in the Accident Investigation Division of Northwestern University Traffic Institute, testified as to the length of time required to brake a moving vehicle. Aycock explained that speed, rate of deceleration and the slipperiness of the road surface as well as reaction time are factors used to determine braking distance. He explained that given a car traveling on dry pavement at approximately 25 m.p.h., the rate of speed at which Guyon stated he was traveling, it would take 130 feet for such car to brake. This braking distance is a mathematical equation involving speed, drag factor and deceleration. After adding an additional one second delay during which a driver reacts to a situation, Aycock stated that Guyon's car would require 166 feet to reach a complete stop.

Sister Marlene Geimer, an elementary school principal, testified that she drove by the intersection of Ashland and Berwyn moments after the accident. She saw a small "rolled up kind of person" in the middle of the street and a small shoe in the northbound lane of Ashland ten feet south of the crosswalk at Berwyn. The injured child was lying further south approximately two car lengths away from the shoe.

On cross-examination, Sister Geimer stated that she did not know to whom the shoe belonged. She could not remember telling plaintiff's mother that the shoe was 40 or 50 feet south of the crosswalk.

Three of plaintiff's five brothers and sisters testified that on October 12, 1977, the six children left home to buy candy. When plaintiff's brother refused to buy candy for plaintiff, she ran home and was given money by her mother, then left to meet her brothers and sisters again. She was on her way to the store when the accident occurred. On cross-examination, defendant was precluded by the court from questioning the children as to whether plaintiff was ever told by anyone in her family to stop when she came to an intersection, on the grounds of hearsay.

Janet Fakhoury, plaintiff's mother, testified that plaintiff remained in a coma for approximately six weeks following the accident. Thereafter, plaintiff was transferred to the Rehabilitation Institute of Chicago. Upon admission, she suffered from hemiparesis on the right side, was unable to walk and had difficulty with reading, verbal formulation and retention. Plaintiff received speech therapy, occupational therapy and physical therapy and was discharged approximately ten weeks later. Plaintiff was required to return for periodic therapy during the following year. Plaintiff had improved but needed help with daily activities and her speech and thought retention were below normal.

Limas Bieliauskas, a clinical psychologist and neuropsychiatrist, testified that he tested plaintiff in May 1984. He found her intelligence quotient was 89 at that time which is considered low average, while plaintiff's verbal intelligence quotient was near what would be considered borderline mentally retarded. Bieliauskas also found that plaintiff was two grade levels below normal in comprehension and general information and that she had difficulties with memory. Over defendant's objections, Bieliauskas testified that plaintiff would be later affected in the job market by her impairments. Bieliauskas opined that plaintiff would experience difficulty with any job which required bilateral dexterity and higher levels of understanding.

Bieliauskas' findings were complemented by those of Dr. Harold Klawans, a neurologist who also examined plaintiff. Klawans found that there was an alteration in plaintiff's mental status and intellectual function and that plaintiff suffered from decreased coordination and a lack of fine motor movements. Klawans opined that plaintiff would not be able to attend college and that the occupational activities that plaintiff could perform consisted of unskilled labor requiring limited intellectual functions.

Prior to trial, the court granted defendant's motion in limine, banning any reference to defendant's size, wealth and financial condition. During voir dire, plaintiff's counsel asked a prospective juror whether he had ever heard of Brunswick Corporation, defendant's parent company. Defendant objected and moved for a mistrial. The trial court denied the motion and stated that such inquiry regarding whether a juror is familiar with a parent company is within proper voir dire. Thereafter, plaintiff's counsel referred to defendant's "parent company" on two occasions; on each occasion, defendant's objection was sustained.

Appellants' initial contention is that the court erred in directing a verdict regarding agency. According to the often-cited Pedrick standard, verdicts ought to be directed and judgments notwithstanding the verdict entered...