Jacobs v. Yellow Cab Affiliation, Inc.

• Decision Date: 16 March 2017
• Docket Number: 1-15-1107 and 1-15-1718, Consolidated
• Parties: Marc M. JACOBS, and Deborah Jacobs, Plaintiffs-Appellees, v. YELLOW CAB AFFILIATION, INC., and Cornelius C. Ezeagu, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 151107

73 N.E.3d 1220

Marc M. JACOBS, and Deborah Jacobs, Plaintiffs-Appellees,

v.YELLOW CAB AFFILIATION, INC., and Cornelius C. Ezeagu, Defendants-Appellants.

1-15-1107 and 1-15-1718, Consolidated

Appellate Court of Illinois, First District, FOURTH DIVISION.

March 16, 2017

Steven R. Bonanno, Carlton D. Fisher, and Anne C. Couyoumjian, of Hinshaw & Culbertson LLP, and Richard C. Godfrey, R. Christopher Heck, and Catherine L. Fitzpatrick, of Kirkland & Ellis LLP, both of Chicago, for appellant Yellow Cab Affiliation, Inc.

Kevin Q. Butler, Cornelius E. McKnight, Stanley A. Kitzinger, Nathan P. Karlsgodt, Joanne M. Krol, and Bryan T. Butcher, of McKnight Kitzinger & Pravdic LLC, of Chicago, for other appellant.

Robert A. Clifford, of Clifford Law Office, and Timothy S. Tomasik and Patrick Giese, of Tomasik Kotin Kasserman LLC, both of Chicago, for appellees.

Webster Chamberlain & Bean LLP, of Washington D.C. (Arthur L. Herold, of counsel), for amicus curiae Taxicab, Limousine & Paratransit Association.

OPINION

JUSTICE McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Yellow Cab Affiliation, Inc. (YCA) was sued as the apparent principal of Chicago taxicab driver Cornelius C. Ezeagu, whose alleged negligence while exiting a highway caused a high speed crash and severe traumatic brain injuries

to his passenger, attorney Marc M. Jacobs. YCA and Ezeagu now appeal from a $21.98 million jury verdict and judgment in favor of Jacobs and a $3.96 million award to his wife, Deborah Jacobs. YCA contends the trial court erred by (1) letting the Jacobses proceed on claims of apparent agency; (2) excluding evidence that the cab's appearance, which was the basis for the apparent agency allegations, was involuntary and mandated by Chicago ordinance; (3) giving a jury instruction relevant only to medical negligence claims; and (4 and 5) allowing evidence and a jury instruction as to the passenger's purported habit of taking YCA vehicles so that he could show, despite having no memory of the evening, that he had deliberately chosen the YCA vehicle. Ezeagu, who contends the accident was caused by his passenger's sudden urging to exit the highway when it was too late to safely do so, argues it was error to (1) allow an accident reconstruction expert to speculate about the cab's highway speed despite eyewitness testimony, (2) allow the passenger to put on testimony that he was a man of "careful habits," (3) give a confusing jury instruction about the passenger's habit of taking YCA cabs, (4) refuse a special interrogatory on sole proximate cause, and (5) reject a motion for remittitur of the wife's award for loss consortium. We allowed Taxicab, Limousine & Paratransit Association (TLPA) to file an amicus curiae brief. For the following reasons, we affirm.

¶ 2 On August 31, 2005, at approximately 8 p.m., Ezeagu was parked in a cabstand in Chicago's River North neighborhood, across the street from the Joe's Seafood restaurant where Jacobs was having dinner with one of his longterm clients. As the client, Jean Zielinski, was departing in her own vehicle, Jacobs crossed the street, got into the back of Ezeagu's taxi, and asked to be taken home to Hinsdale, Illinois, which is a community southwest of Chicago.

¶ 3 Later, at about 8:45 p.m., Ezeagu lost control of the minivan on the clover leaf exit ramp leading from northbound Interstate 294 (I-294) to Hinsdale. The posted highway speed limit was 55 miles per hour and the clover leaf's posted limit was 25 miles per hour. Opposing experts in accident reconstruction differed only somewhat in their opinions of the vehicle's actual speeds. The Jacobses' expert, Michael E. O'Hern, determined the cab was moving 60 to 70 miles per hour on the highway and had decelerated only to 58 miles per hour when it left the banked edge of the clover leaf. YCA and Ezeagu's expert, Roger W. Barrette, calculated a range of 55 to 60 on the highway, thus, leaving open the possibility that Ezeagu was not speeding on I-294, but was nonetheless moving at 53 or 54 miles per hour when he lost control on the clover leaf. After slipping beyond the curved ramp, the speeding taxi went airborne for 32 feet, struck the ground and continued forward over a grassy drainage area, and then crashed into a concrete retention wall at either 43 or 46 miles per hour according to the Jacobses' expert or 47 miles per hour according to the defense expert. Ezeagu stepped from the vehicle, fell down, and was initially unable to stand. Other motorists came to assist and called for emergency responders, and then the driver was able to call his brother, Matthew C. Ezeagu, who was the owner of the minivan and its Chicago cab license.

¶ 4 Because Matthew's corporation, Zegus, Inc. (Zegus), paid weekly fees to affiliate the cab with YCA, it was painted in YCA's allover, bright yellow color scheme and bore the YCA logo. YCA did not own vehicles or Chicago cab licenses or employ drivers. Instead, pursuant to local ordinance, YCA was an "Affiliation" that provided its membership of cab license owners "with a Chicago business address, telephone number registered to the affiliation, color scheme where applicable, a trade name or emblem where applicable, a two-way radio dispatch system, insurance and the designation of an authorized registered agent." Chicago Municipal Code § 9-112-010(a) (amended November 15, 2000) (section setting out "Definitions"). The ordinance further provided that "All taxicab vehicles belonging to a single affiliation must display that affiliation's color scheme and logo." Chicago Municipal Code. § 9-112-360(a) (amended November 15, 2000) (section regarding "Taxicab vehicle color schemes").

¶ 5 Emergency medical responders found Jacobs on the floor of the minivan, behind its front seats. He was unresponsive, his breathing was slow and labored, and his jaw was too tightly clenched for intubation, which were indications that he had suffered serious head trauma

and was in need of critical injury care. In the ambulance, Jacobs scored only 5, and then only 3 on the Glasgow Coma Score, with 3 being the lowest possible score for a living person. Jacobs subsequently filed this negligence suit and went to trial on a third amended complaint which included one count against Ezeagu, one count against YCA, and his wife's two counts of loss of consortium.

¶ 6 It is undisputed Jacobs had no memory of a five-week period that began about a week before the accident. Since he could not testify about what occurred on that evening in late August, but needed to prove that he had deliberately chosen the YCA vehicle, Jacobs intended to put on evidence of his past behavior and argue in part that he continued his practice. The trial court denied YCA's motion in limine 12 to bar the Jacobses from presenting habit evidence. The court also denied Ezeagu's motion in limine to bar the Jacobses' accident reconstruction expert from testifying about the highway speed of the cab, despite Ezeagu's argument that the expert's opinion was unnecessary when there were eyewitness accounts. In addition, the trial court granted the Jacobses' motion in limine 23 to bar evidence of Chicago's taxicab regulations affecting the cab's appearance and of the contractual relationship between YCA and the cab's owner, Zegus, on grounds that whether there was an actual agency was not relevant to claims alleging the appearance of agency.

¶ 7 The jury trial lasted just over two weeks in March 2015 and included evidence about the night of the accident as well as Jacobs' subsequent medical care, his inability to continue practicing law, and difficulties in his relationship with his wife. The following summary excludes details of his medical treatment and employment and focuses on the evidence relevant to the appellate arguments.

¶ 8 Zielinski testified that prior to the accident in 2005, she became Jacobs' client in 1996 when she was a vice president and manager in a commercial real estate group of Wells Fargo Bank and had retained Jacobs to write loan documents for the 20 to 30 large commercial loans which she was closing every year. Jacobs' office was across from hers on Franklin Street in Chicago and at least 40 to 50 times a year they met at the cabstand on his side of the street to travel together to lunch or dinner meetings, or to her clients' offices. Jacobs would always select a Yellow Cab and would have them step out of the queue if necessary to wait for a Yellow Cab. Because Jacobs was paying their cab fare, Zielinski never questioned his insistence on Yellow Cabs and "just figured, you know, everyone has their quirks" and that "[Jacobs] was a Yellow taxi man like [Zielinski] flew United for business all the time." She never saw Jacobs take a taxi other than a Yellow, except for once when they were in San Francisco. On the night of the accident, Jacobs waited with her outside the restaurant until the valet returned with her car, she offered to take Jacobs to the train station, as she sometimes did, but he declined, saying to her, "I'm going to go grab the Yellow cab," since there was one waiting across the street.

¶ 9 Ezeagu, who was born in 1972, testified that he became a licensed chauffeur about four months before the accident. To qualify for the Chicago license, he took a course in 2005 conducted by the municipality at Harold Washington College, addressing road safety and other topics, and then passed an exam. He had also taken a two-hour course at YCA's headquarters on how to use the Gandalf system, and afterward YCA assigned him a personal number which he could enter into the Gandalf if he "need[ed] a fare." He subsequently leased Chicago cab No. No. 160 from his brother's corporation. Ezeagu had been parked in the cabstand for about 5 to 10 minutes and become the first cab in line by the time Jacobs walked across the street from the restaurant. After Jacobs asked to be taken to Hinsdale and Ezeagu said he did not know the way, Jacobs responded that he...