Ford v. City of Chicago

• Decision Date: 21 March 1985
• Docket Number: No. 83-1435,83-1435
• Citation: 87 Ill.Dec. 240,476 N.E.2d 1232,132 Ill.App.3d 408
• Parties: , 87 Ill.Dec. 240 Earlee FORD, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1232

476 N.E.2d 1232

132 Ill.App.3d 408, 87 Ill.Dec. 240

Earlee FORD, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.

No. 83-1435.

Appellate Court of Illinois,

First District, Fourth Division.

March 21, 1985.

Rehearing Denied April 29, 1985.

Kroll & Rubin, Ltd. and William J. Harte, Ltd., Chicago (William J. Harte and Debra O. Elder, Chicago, of counsel), for plaintiff-appellant.

James D. Montgomery, Corp. Counsel of City of Chicago, Chicago (Jerome A. Siegan and Maureen Kelly Ivory, Chicago, of counsel), for defendant-appellee.

ROMITI, Justice:

Plaintiff Earlee Ford (Ford) was injured when the motorcycle he was driving struck a pothole in West Cermak Road in Chicago, Illinois at about 2:00 p.m. on April 17, 1980. Ford filed suit against the city of Chicago alleging that improper road maintenance had caused the pothole. Following a jury trial, judgment was entered on the verdict assessing Ford's damages at $930,000 but finding him 95% comparatively negligent (for an award to Ford of $46,500), and Ford has appealed. He raises the following questions for our review:

1. Whether the jury's verdict that Ford was 95% comparatively negligent was against the manifest weight of the evidence;

2. Whether admission into evidence of Ford's motorcycle was so prejudicial as to outweigh any probative value, thus constituting reversible error;

3. Whether an ambulance report offered by Ford should have been admitted into evidence as an exception to the hearsay rule or as impeachment of a witness;

4. Whether a public utility's inspection report was properly admitted into evidence as a business record;

5. Whether the trial court erred in refusing to impose sanctions upon the city pursuant to Illinois Supreme Court Rule 219(c) (87 Ill.2d 219(c)), on the ground that it failed to comply with certain of Ford's discovery requests;

6. Whether certain questions posed at trial by counsel for the city were improper, irrelevant, and immaterial and consequently so prejudicial to require a new trial;

7. Whether the trial court committed reversible error in excluding the testimony of Ford's expert regarding line of vision testing.

We affirm.

The following is a summary of the pertinent pleadings and evidence produced at trial. Ford alleged in his complaint against the city that he was injured on April 17, 1980, as he was riding his Honda 750 motorcycle in the 3500 west block of Cermak Road in Chicago, Illinois. According to his testimony as well as that of Carl Johnson, who was riding his own motorcycle on Cermak near Ford when the accident occurred, Ford was riding eastbound on Cermak at roughly 2:00 p.m. on the day of the accident. He had stopped behind an automobile in the center eastbound lane at the intersection of Central Park and Cermak because the light of the traffic control device was red. Ford was seated in the normal position with his feet on the lower foot pegs. When the light turned green, Ford proceeded behind the car in front of him. He was in the right-hand side of the left lane approximately two to three feet north of the dash marks. As the car slowed to make a left turn off Cermak, Ford also slowed. When he was roughly 40 to 60 feet behind the car, he turned on his right turn signal, checked the right mirror, looked over his right shoulder, double checked the right mirror, and then began to change lanes. He was traveling roughly 20 [132 Ill.App.3d 411] to 25 miles per hour and leaning slightly to the right as he executed the lane change. He was thrown from the motorcycle when he hit a pothole in the right hand lane of Cermak. Ford testified that only a few seconds elapsed from the time he began to change lanes until he struck the pothole. He stated he had been looking ahead slightly to the right and did not see the pothole because the car obstructed his vision.

Based upon the testimony of individuals who lived on Cermak or travelled the road; an employee of Peoples' Gas, Light & Coke Co; a safety and claims manager for the State of Illinois Department of Transportation; and Ford and Johnson, it was established that the area of the pothole had been previously repaved but had settled such that the riding surface in the wheel lane had been pounded down a considerable amount below the surrounding concrete. The pothole was roughly 4 to 5 feet wide and 8 to 9 feet long and was surrounded by and covered with gravel. A Chicago Police Department officer who investigated the accident shortly after it occurred also testified regarding the scene, but stated that he noticed no pothole or other depression in the road surface.

Both Ford and the city presented expert testimony regarding whether the road conditions were reasonably safe or whether they would cause a reasonable motorcycle rider to lose control under similar conditions. Marjorie Jennings, Motorcycle Safety Coordinator of the Cook County Motorcycle Safety Program, testified on behalf of Ford. Ronald Eltzeroth, a communications dispatcher and motorcycle instructor of police for the city of Champaign and motorcycle safety rider's course instructor at the University of Illinois, testified on behalf of the city. Jennings testified in essence that a similar motorcycle in similar conditions could go out of control because the motorcycle's instability during a lane change would render the pothole extremely hazardous, and that a rider under similar conditions would have difficulty seeing the pothole because his view would be obstructed by the car in front of him. Eltzeroth testified essentially that the average rider under similar circumstances would not have attempted the lane change at 20 to 25 miles an hour with a following distance of 40 to 60 feet. He stated that a safe maneuver would have been to change lanes at 20 to 25 miles per hour with a following distance of 116 to 146 feet.

Based upon the evidence presented at trial, the jury assessed Ford's damages at $930,000 but found him 95% comparatively negligent and reduced his award to $46,500. The trial court entered its judgment on this verdict and subsequently denied Ford's post-trial motion for a new trial. Ford's timely appeal followed.

I.

Ford argues that the jury's verdict was contrary to the manifest weight of the evidence and therefore should be reversed and the cause remanded for a new trial.

A court of review is empowered to reverse a jury verdict only if it was against the manifest weight of the evidence. (Spankroy v. Alesky (1977), 45 Ill.App.3d 432, 439, 4 Ill.Dec. 126, 359 N.E.2d 1078.) The manifest weight of the evidence standard also applies where the jury's verdict assessed the degree of the plaintiff's comparative negligence. (Bofman v. Material Service Corp. (1984), 125 Ill.App.3d 1053, 1060-62, 81 Ill.Dec. 262, 466 N.E.2d 1064.) A verdict is said to be against the manifest weight of the evidence where it is palpably erroneous and wholly unwarranted (Frankenthal v. Grand Trunk Western R. Co. (1983), 120 Ill.App.3d 409, 415, 76 Ill.Dec. 130, 458 N.E.2d 530), is clearly the result of passion or prejudice (Ogg v. City of Springfield (1984), 121 Ill.App.3d 25, 42, 76 Ill.Dec. 531, 458 N.E.2d 1331), or appears to be arbitrary, unreasonable, and not based upon the evidence. (Gabrenas v. R.D. Werner Co., Inc. (1983), 116 Ill.App.3d 276, 285, 71 Ill.Dec. 940, 451 N.E.2d 1307.) When considering whether a verdict was contrary to the manifest weight of the evidence, a reviewing court must view the evidence in the light most favorable to the appellee (here, the city of Chicago). Kemper v. McDougal-Hartmann Co. (1984), 127 Ill.App.3d 512, 515, 82 Ill.Dec. 344, 468 N.E.2d 998.

Ford argues here that the jury's verdict which found him 95% comparatively negligent was not supported by the evidence presented below. Specifically, he analyzes in detail the conflicting testimony of the two expert witnesses at trial, Jennings and Eltzeroth. He urges that Jennings' testimony clearly showed that a reasonably prudent motorcycle rider would have acted as he did shortly prior to the accident, would have followed an automobile at the rate of speed and distance he used, and would have been unable to see the pothole in sufficient time to maneuver safely in order to avoid it or ride over it without injury. Ford claims that the testimony of Eltzeroth, in comparison, was equivocal and contradictory regarding proper speed and following distance.

Although there was conflict in the testimony of the two experts, nevertheless we cannot say that on these grounds the jury's verdict was against the manifest weight of the evidence. A verdict "cannot be set aside merely because the jury could have drawn different inferences and conclusions from conflicting testimony or because the reviewing court would have reached a different conclusion if it had been the trier of fact." (Turner v. Chicago Transit Authority (1984), 122 Ill.App.3d 419, 425, 77 Ill.Dec. 928, 461 N.E.2d 551.) Nor should we lightly overturn the trial court's denial of Ford's post-trial motion for a new trial, as the trial court had a similar opportunity to view the trial proceedings and all of the evidence and argument presented to the jury. (See Berner v. Kielnik (1983), 117 Ill.App.3d 419, 424, 72 Ill.Dec. 854, 453 N.E.2d 729.) Based upon our review of the record, we conclude that the evidence produced at trial was sufficient to support the jury's verdict assessing Ford's degree of negligence in the accident.

II.

Ford contends that the trial court's admission of his motorcycle into evidence for the jury's viewing was reversible error because its prejudicial effect clearly outweighed its probative value.

"Tangible objects of almost every kind involved in an incident have been ruled properly admitted as tending to establish a fact of consequence." (Cleary & Graham's Handbook of Illinois Evidence sec. 401.4, at 117 (4th ed. 1984).) Courts have long favored the admission and use of such evidence in order to clarify...