Johnson v. O'Neal
| Decision Date | 25 July 1991 |
| Docket Number | No. 4-90-0617,4-90-0617 |
| Parties | , 159 Ill.Dec. 817 Larry JOHNSON, Administrator of the Estate of Cory Johnson, Deceased, Larry Johnson and Patricia Johnson, Plaintiffs-Appellants, v. Dan O'NEAL, Special Administrator of the Estate of Michael O'Neal, Deceased, and Lexington Township, Defendants-Appellees (County of McLean, Defendant). |
| Court | United States Appellate Court of Illinois |
Eileen O'Sullivan, Jerome Mirza & Associates, Bloomington, for Larry Johnson.
Guy C. Fraker, John T. Echols, Costigan & Wollrab, P.C., Bloomington, for Dan O'Neal.
W. Thomas Johnston, Paul P. Gilfillan, Quinn, Johnston, Henderson & Pretorius, Peoria, for Lexington Township.
Plaintiffs, Larry Johnson, as administrator of the estate of Cory Johnson, deceased (decedent), and Larry Johnson and Patricia Johnson, in their individual capacities, appeal a judgment entered in an action for wrongful death (Ill.Rev.Stat.1985, ch. 70, pars. 1 through 2.2), survival (Ill.Rev.Stat.1985, ch. 110, par. 2-1008(b); ch. 110 1/2, par. 27-6), and family expense (Ill.Rev.Stat.1985, ch. 40, par. 1015), arguing that the damages awarded them are inadequate. The principal issues on appeal are (1) should computational verdict forms be provided to the jury in all comparative negligence cases, and (2) does the prayer for relief contained in a notice of appeal control the issues which may be adjudicated in a new trial.
In November 1986, this action commenced when plaintiffs filed a complaint against the special administrator of the estate of decedent Michael O'Neal (O'Neal's estate), the County of McLean, and Lexington Township (the township). On November 4, 1988, summary judgment was entered in favor of the County of McLean, and it is not a party to this appeal.
Amended complaints were filed, and trial ultimately was held on plaintiffs' fourth-amended complaint, filed in December 1989. Common to all counts of that complaint are allegations that on December 13, 1985, decedent was a passenger in a car driven by Michael O'Neal, and decedent sustained injuries when the car went off the road in the area of a curve, rolled over, and came to rest in a field. The complaint alleged that the injuries caused by this crash ultimately resulted in decedent's death. The first three counts of the complaint alleged that O'Neal was negligent because he (1) drove his car too fast for conditions, and (2) failed to keep his automobile under proper control. These counts alleged that O'Neal's negligence proximately caused the decedent's injuries and death. Count I sought damages on a wrongful death theory; count II requested compensation for decedent's medical, hospital, and funeral expenses (under the family expense theory of recovery); and count III sought damages for decedent's pain and suffering prior to his death.
Counts IV through VI were directed against the township. These counts alleged the township owned or maintained the road on which the fatal accident occurred. These counts further alleged that because of the number and severity of curves in the road in the area of the accident, the road was dangerous for travel at the posted or permitted speed, and that the number and severity of the curves was not readily apparent to a motorist traveling the road. Plaintiff alleged the township negligently breached its duty to exercise due care in erecting and posting signs and in warning motorists of hazards on the road in that the township (1) failed to correctly identify the number of curves in the road, (2) failed to post a safe speed or reduce the speed limit on the road in the area where the accident occurred, and (3) failed to advise motorists of the severity of curves in the road and the speed at which the curves could be safely traveled. Plaintiffs alleged this negligence proximately caused decedent's injuries and death. Count IV sought damages on a wrongful death theory; count V requested reimbursement for decedent's medical, hospital, and funeral expenses; and count VI requested damages for decedent's pain and suffering prior to death.
On February 19, 1990, plaintiffs and O'Neal's estate entered into an agreement under which the estate agreed to pay plaintiffs $600,000. The first $300,000 of this amount was a loan, repayable only to the extent plaintiff recovered that amount or a lesser sum from the township. This agreement did not preclude plaintiffs' claims against O'Neal's estate from proceeding to trial, and it provided that if plaintiffs obtained a judgment against O'Neal's estate in an amount in excess of $600,000, O'Neal's estate was to pay the excess amount to the extent it did not exceed $50,000. Otherwise, O'Neal's estate was not required to make any further payments to plaintiffs.
On February 22, 1990, O'Neal's estate moved for (1) a finding of good faith as to the loan receipt agreement, (2) dismissal of the township's counterclaim against O'Neal's estate, (3) dismissal of O'Neal's estate's counterclaim against the township, and (4) O'Neal's estate's discharge from any liability for contribution to the township. On February 23, 1990, the circuit court entered an order granting the relief requested in this motion, and the two counterclaims involving O'Neal's estate and the township were dismissed with prejudice.
In March 1990, the township filed an affirmative defense to the plaintiffs' complaint, alleging that decedent was guilty of negligence which proximately caused his injuries and death in that he negligently and carelessly (1) stayed in a vehicle being operated by a person who he knew or should have known was driving at dangerous and excessive speeds; (2) encouraged the driver to operate the vehicle at such speeds; and (3) failed to remove himself from a vehicle being operated at dangerous and excessive speeds, although there were opportunities to do so.
The jury trial of this cause was held in March 1990. The plaintiffs' first witness was Richard Freed, who was a police officer with the City of Lexington at the time of the fatal accident. Freed testified that on the evening of December 13, 1985, he received a citizen's band radio report of an accident on a county or township road south of Lexington. At a curve in the road, he discovered a car lying in a field. He found four victims at the accident scene. One boy in the car was alive, and there was another boy on the ground who was also alive, with a dead boy on top of him. Subsequently, Freed discovered a dead girl at the accident scene. Freed further testified that a driver traveling south on the road on which the accident occurred (in the direction of the place of the accident) would come upon the crest of a hill and see one curve, but would not be able to see a second curve which follows. The accident occurred at the second curve.
Also testifying on behalf of plaintiffs was Chris Juvenal. Juvenal stated that on the evening of the accident, decedent and O'Neal picked him up at his residence. At that time, Juvenal was 15 years old. Juvenal testified that O'Neal had a new car and had obtained his driver's license the day before. Juvenal, O'Neal, and decedent then picked up Cathy Quinn and "just drove around." Eventually, the group wound up in the country and saw the lights from a town, which turned out to be Lexington. After arriving in Lexington, the passengers changed positions in the car, with Juvenal moving from the back seat to the front seat and decedent moving from the front seat to the back seat. The group then drove around Lexington to "kind of get our bearings" and subsequently drove out of town. Juvenal recalled few details of the accident; he remembered seeing some grain bins, "coming to in the car for a brief period of time," and seeing the ambulance arrive.
On cross-examination by counsel for the township, Juvenal testified that during the evening in question, O'Neal was driving at "[m]aybe between 70 and 80," but then stated, "I really don't know." Juvenal also testified that while the car was stopped in Lexington, no one said anything about O'Neal's driving. Juvenal acknowledged that six days after the accident, he signed a voluntary statement in which he said that he and the three other youths entered Lexington on the same road on which the accident occurred. However, at trial, Juvenal testified that the accident did not occur on the same road. Juvenal stated that he signed the voluntary statement before he returned to the scene of the accident "to see how curvey the actual road was."
Rhonda Bennett testified on behalf of plaintiffs that in August 1980, when she was 16 years old, and shortly after she obtained her driver's license, she was involved in an accident at the same location as the accident in which decedent was killed. She stated the car that she was driving went out of control on a curve, became airborne, and went into a bean field.
Also testifying on behalf of plaintiffs was Jeff Elston, an officer with the McLean County sheriff's department assigned to the detective division. Elston testified that on November 23, 1985, another one-car accident occurred at virtually the same location as the accident in which decedent was killed. The November 1985 accident occurred when the driver lost control on the curve. The car skidded into a ditch and subsequently vaulted into a field, where it rolled over twice before coming to a stop.
Both Patricia and Larry Johnson testified concerning their relationship with decedent, decedent's character and school record, and their presence at the hospital with decedent after the accident. Larry Johnson stated that decedent died on February 1, 1986. Plaintiffs also presented medical testimony relevant to the survival claims for damages for decedent's pain and suffering after the accident and prior to his death.
The trial court denied motions for directed verdicts by both the township and...
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