First Springfield Bank and Trust v. Galman, 4-97-0599

CourtUnited States Appellate Court of Illinois
Citation299 Ill.App.3d 751,702 N.E.2d 1002,234 Ill.Dec. 348
Docket NumberNo. 4-97-0599,4-97-0599
Parties, 234 Ill.Dec. 348 FIRST SPRINGFIELD BANK AND TRUST, Special Administrator of the Estate of May F. Philippart, Deceased, Plaintiff-Appellant and Cross-Appellee, v. Angela S. GALMAN, Defendant (Howard C. Dobson and ADM Trucking, Inc., Defendants-Appellees and Cross-Appellants).
Decision Date04 November 1998

Page 1002

702 N.E.2d 1002
299 Ill.App.3d 751, 234 Ill.Dec. 348
the Estate of May F. Philippart, Deceased,
Plaintiff-Appellant and Cross-Appellee,
Angela S. GALMAN, Defendant (Howard C. Dobson and ADM
Trucking, Inc., Defendants-Appellees and Cross-Appellants).
No. 4-97-0599.
Appellate Court of Illinois,
Fourth District.
Argued May 14, 1998.
Decided Nov. 4, 1998.

Page 1004

[234 Ill.Dec. 350] [299 Ill.App.3d 753] Alexandra De Saint Phalle, Thomas F. Londrigan (argued), Londrigan, Potter & Randle, P.C., Springfield, for First Springfield Bank and Trust.

James K. Horstman (argued), Barry L. Kroll, Edward J. Murphy, C. Barry Montgomery, Williams & Montgomery, Ltd., Chicago, for Howard C. Dobson.

Presiding Justice GARMAN delivered the opinion of the court:

In November 1989, May Philippart, a pedestrian, was struck by a car driven by defendant Angela Galman as she attempted to cross Lawrence Avenue in Springfield in the middle of the block. Plaintiff [299 Ill.App.3d 754] First Springfield Bank and Trust (Springfield Bank), acting on behalf of Philippart's estate, sued Galman in a jury trial conducted in March and April 1997. Springfield Bank also named as defendants Archer Daniels Midland Trucking, Inc. (ADM), and its agent Howard Dobson, who illegally parked an ADM tanker truck in a no-parking zone, obstructing the view of both Philippart and Galman. At trial, Springfield Bank raised theories against ADM and Dobson based on negligence and violation of the Public Nuisances Act (Nuisance Act) (Ill.Rev.Stat.1989, ch. 100 1/2, par. 26(5) (now 720 ILCS 5/47-5(5) (West 1996))). The jury returned a verdict in favor of Philippart, allocating comparative fault between her, Galman, and ADM and Dobson.

Springfield Bank appeals, arguing it was impermissible to allow the jury to reduce damages for Philippart's comparative fault under the nuisance theory. ADM cross-appeals, arguing it was entitled to a directed verdict on both the nuisance and the negligence theories, and the trial court should have reduced the damages because of benefits provided to Philippart by l'Assurance Maladie, the French social security system. We affirm.


Around 3:30 p.m. one day in November 1989, Philippart, an 18-year-old French foreign exchange student, was walking home from Springfield High School. Motorist Richard Williams was driving south on English Street and stopped for a couple of minutes at a stop sign at the intersection of English and Lawrence Avenue. Motorist Stan Squires was driving south on Douglas Street, one block west of English Street, approaching the intersection of Douglas and Lawrence. According to Williams, traffic was medium to heavy because of the time of day. Williams observed Philippart walk down the sidewalk on English and turn right and continue to walk on the sidewalk on the north side of Lawrence without crossing the street. Squires testified Philippart could have used the crosswalk at the intersection of English and Lawrence.

A tractor-trailer tanker truck owned by ADM and leased to Dobson was parked on the north side of Lawrence with its eastern-most end 41 feet west of the crosswalk at the intersection of Lawrence and English. The ADM truck was 62.5 feet long. According to

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[234 Ill.Dec. 351] Williams, the truck was an obstruction to his view as well as that of Philippart. Squires had to creep forward into the intersection to get a better view of oncoming westbound traffic because the truck obstructed his view.

As Squires turned onto Lawrence, he saw Philippart walk off the sidewalk and proceed to the front corner of the ADM truck, where she [299 Ill.App.3d 755] stopped. According to Squires, Philippart could see oncoming westbound traffic by peeking her head into the traffic lanes from behind the truck. Squires stated that until Philippart stepped from behind the truck, a driver heading west could not see her. At this moment, a car, driven by Galman, a 16-year-old girl, was westbound on Lawrence. Philippart waited for Squires' car to clear the ADM truck, then took 1 1/2 steps at a very slow pace, apparently noticed oncoming traffic, and then ran across the street. In his rearview mirror, Squires saw Galman's car veer left and then strike Philippart. After traffic cleared from the right, Williams nosed out to check traffic coming from the other side of the truck and noticed the accident.

Philippart returned to France, where she was treated for her injuries. Farmer's State Bank of Illiopolis (Farmer's Bank), acting as guardian of Philippart, filed suit against Galman in January 1990. In January 1991, it filed an amended complaint naming ADM and Dobson as additional defendants. It alleged Dobson was negligent in illegally parking a truck in a no-parking zone so that it obscured the view and path of motorists, including Galman, and pedestrians, including Philippart, thereby causing the accident.

Philippart died from her injuries in July 1991. She had received 2,490,371.50 French francs ($452,794.82) in benefits from l'Assurance Maladie prior to her death. In January 1996, Farmer's Bank again amended the complaint, substituting for itself its successor in interest, Springfield Bank, as special administrator of Philippart's estate. The amendment also alleged ADM and Dobson created a public nuisance by obstructing or encroaching upon public highways.

A jury trial was held in March and April 1997, and the above testimony from Squires and Williams was heard. Dobson testified that, around 3 p.m. he parked the truck in the westbound lane of Lawrence about a block from his home, directly in front of a sign prohibiting parking there from 7 a.m. to 6 p.m. Dobson misread the sign and believed this was the only legal place in the area to park the truck at the time. Dobson was aware there were 10 schools in the area and most of these schools would be dismissing students at the time the truck was parked there. When Dobson returned to his truck about an hour after he parked there, when the accident was being cleaned up, a police officer issued him a ticket for being illegally parked.

Lewis Baker, an accident reconstructionist, testified that when the tractor-trailer was parked along the north curb of Lawrence, it extended 9 feet into the 22-foot-wide westbound lanes of Lawrence. Baker testified the truck would not have been an obstruction to Philippart's view if she crossed Lawrence at the intersection of English and Lawrence, but it would have been an obstruction if she crossed at [299 Ill.App.3d 756] the intersection of Douglas and Lawrence. Joseph Kostur, a former district traffic safety manager for the State of Illinois, testified the ADM truck constituted a huge obstruction to traffic and was a hazard to traffic, including pedestrians. Kostur concluded the truck made it unsafe for Philippart to cross Lawrence Avenue at its intersection with English because she did not have a good view of eastbound traffic. Kostur testified this unsafe condition caused Philippart to go to the front of the truck to view both directions.

Ronald Habegger, a former city traffic engineer for the City of Springfield, testified that, according to an accident study performed before the accident, the intersection of MacArthur and Lawrence (two blocks east of the accident) was the number one site of traffic accidents in Springfield for many years. Habegger testified traffic counts indicated significant westbound traffic between 3:15 p.m. and 4 p.m. Habegger stated parked vehicles adversely affected the free flow of traffic depending on the time of day.

The jury returned a verdict finding in favor of Springfield Bank, finding ADM and Dobson together 50% at fault, Galman 5% at fault, and Philippart 45% at fault. The jury awarded damages of $1 million and then

Page 1006

[234 Ill.Dec. 352] reduced the award by 45% due to Philippart's contributory negligence. In April 1997, ADM and Dobson filed a posttrial motion, claiming Philippart's family had already been reimbursed for her medical expenses in France by l'Assurance Maladie. This motion was denied. In May 1997, Springfield Bank filed a motion seeking a new trial, judgment notwithstanding the verdict, and additur because contributory negligence is not a defense to a nuisance suit. This motion was denied.


A. Directed Verdict

ADM argues in its cross-appeal that the trial court erred by denying its motion for a directed verdict. Because this presents a threshold issue, we address it before deciding Philippart's appeal. When all the evidence in a case, when viewed in its aspect most favorable to the party opposing the motion, so overwhelmingly favors the movant that no contrary verdict based on that evidence could stand, a directed verdict is appropriate. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14 (1967).

ADM argues it was entitled to a directed verdict on the negligence count because Dobson did not owe any duty to Philippart. Ward v. K mart Corp., 136 Ill.2d 132, 139-40, 143 Ill.Dec. 288, 554 N.E.2d 223, 226 (1990). ADM argues drivers generally have no duties to pedestrians who are jaywalking in violation of the traffic code. However, under the [299 Ill.App.3d 757] Illinois Vehicle Code (Vehicle Code), every driver has the duty of due care to avoid hitting a pedestrian, notwithstanding other provisions of the Vehicle Code. Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-1003.1. Several cases dealing with contributory negligence imply a driver's duties extend to those who are walking on the highway in violation of the Vehicle Code. See Riley v. Johnson, 98 Ill.App.3d 688, 692-93, 54 Ill.Dec. 92, 424 N.E.2d 842, 846 (1981); Kordik v. Kenar, 112 Ill.App.2d 371, 376-77, 251 N.E.2d 380, 383-84 (1969); Rowley v. Rust, 304 Ill.App. 364, 368, 26 N.E.2d 520, 521 (1940) ("[t]he right of pedestrians to use the highway is a fundamental right").

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