Kinsey v. Kolber

• Decision Date: 18 January 1982
• Docket Number: No. 80-2723,80-2723
• Citation: 103 Ill.App.3d 933,431 N.E.2d 1316,59 Ill.Dec. 559
• Parties: , 59 Ill.Dec. 559 David S. KINSEY, Plaintiff-Appellee, v. Warren J. KOLBER, Defendant-Appellant, and Stephen D. KING, Plaintiff-Appellee, v. Warren Jay KOLBER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1316

431 N.E.2d 1316

103 Ill.App.3d 933, 59 Ill.Dec. 559

David S. KINSEY, Plaintiff-Appellee, v.Warren J. KOLBER, Defendant-Appellant, andStephen D. KING, Plaintiff-Appellee, v.Warren Jay KOLBER, Defendant-Appellant.

No. 80-2723.

Appellate Court of Illinois, First District, First Division.

Jan. 18, 1982.

Willis R. Tribler and Douglas C. Crone, Haskell & Perrin, Chicago, for defendant-appellant.

Harold L. Jacobson, Richard E. Mueller, Hugh C. Griffin, Lord, Bissell & Brook, Chicago, for plaintiff-appellee, Stephen D. King.

Lawrence L. Kotin and Michael W. Rathsack, Chicago, for plaintiff-appellee, David S. Kinsey.

CAMPBELL, Presiding Justice:

PlaintiffsDavid S. Kinsey and Stephen D. King filed separate suits against defendantWarren J. Kolber alleging that defendant negligently operated a station wagon in which they were passengers causing Kinsey to become paraplegic and King to sustain brain damage.The suits were consolidated for trial, and after a jury trial, judgment was entered for Kinsey in the amount of $1,569,000, and for King in the amount of $465,000.Defendant raises the following issues on appeal: (1) whether the trial court erred in refusing to direct a verdict for the defendant based upon the Iowa guest statute; (2) whether the trial court erred in allowing the attorneys for the plaintiffs to question the jurors during voir dire concerning a specific verdict amount and their experience in the insurance business; (3) whether the verdicts were excessive and against the manifest weight of the evidence; and (4) whether the trial court erred in admitting certain items of evidence which either individually or cumulatively denied defendant a fair trial.

For the reasons set forth herein the judgment of the circuit court is affirmed.

FACTS

At trial Officer Gary Hoskins, an Iowa state trooper, testified that on May 14, 1976, he received a call to investigate an accident that happened on the bridge crossing the Cedar River in Iowa on Interstate 80.He described the bridge where the accident occurred as consisting of two westbound lanes, each twelve feet wide.On the outer edge of each lane there is a shoulder three feet in width, and a nine inch curb from the shoulder area up on which guard rails sit on either side of the bridge.Officer Hoskins testified that when he arrived at the scene of the accident he observed that traffic was backed up in the right lane, and that there was a car stopped facing eastbound in the westbound lane in the slower traffic lane.He testified that he also observed that some bridge railing had been taken out.Other officers at the scene informed him that a car had gone off the bridge railing and was down below in the embankment.He proceeded below with first aid equipment and blankets, where he observed a car with two subjects pinned inside.Stephen King was in the front passenger seat, and David Kinsey was in the rear of the car.The top had been mashed down and the doors would not open.King complained of a headache and Kinsey complained that his lower torso was bothering him.Defendant identified himself as the driver and indicated that he was not hurt.A local rescue unit transported the parties to the University of Iowa Hospital in Iowa City, Iowa.Officer Hoskins testified that he looked over the other car involved in the accident, which was operated by Dorothy Campbell, and observed damage to the entire right side of her vehicle.Measurements taken by Officer Hoskins at the scene of the accident showed that at a point close to the middle of the bridge, a tire on the Kolber car had hit the nine inch curbing after which the car travelled 23 feet, scraped 179 feet of bridge railing, took out 112 feet of bridge railing, and then travelled on top of the bridge railing for 39 feet before landing in the embankment 27 feet below the bridge.

Russell Kennell testified that on May 14, 1976, as he was driving westbound in the right lane on Interstate 80 several hundred yards from the Cedar River bridge, he observed a semi-truck in the right lane and a station wagon in the left lane on the bridge.The car was behind the truck but it appeared to be pulling up to pass the semi-truck on the left.Both the truck and the station wagon appeared to be going faster than he was, and he estimated his speed at about 60 to 62 miles per hour.He saw the truck move from the right lane to the left lane and come very close to hitting the car.The car swerved back to the right and hit the side of the bridge.As soon as the car hit the bridge there was a cloud of dust and he saw nothing else.He stopped his vehicle at the beginning of the railing that had been sheared off.By this time the dust had cleared and he observed the Campbell car facing south across the two lanes of traffic.He also observed damage to the right side of the Campbell car.The truck had left the bridge and was continuing on down the interstate.When he looked under the bridge for the station wagon he saw it sitting on its wheels on the riverbank with the top squashed down.He moved the Campbell car out of the way and started traffic going.

Dorothy Campbell testified that she was involved in an accident on May 14, 1976, on Interstate 80 as she was proceeding westbound in the right-hand lane on a bridge.Traffic was pretty heavy.She was going 50 miles per hour.Just before the accident occurred she glanced up into the rear view mirror and saw the car she was involved with in the accident coming pretty fast as she was approaching the bridge.She did not see a truck.After she got on the bridge she saw the car whip right in behind her.The car struck her on the right-hand side.She saw a "bunch" of dust and felt her car being pulled toward the railing.She took her foot off the accelerator and was just steering, trying to keep from going over the bridge.Her car did not slow down.It felt like the car released her, and she skidded to a stop.When she stopped she was facing the way she had come across both lanes.The side of her car was dented and scraped from the back to the front.She went over to the railing where it had been torn out and looked down.She saw a car with some boys in it and one boy walking around.Mr. and Mrs. Kennell came up.Mr. Kennell later moved her car.

David Kinsey

Claire Kinsey testified that she is David Kinsey's mother, and that David was born October 29, 1959.She stated that prior to May 14, 1976, David's health was excellent.On May 14, 1976, David was sixteen years old, he was six feet two inches tall, weighed over 200 pounds, and was in his junior year of high school at Glenbrook North High School in Northbrook, Illinois.About 5:30 p. m. she received a phone call from Mrs. King that the boys had been in an accident.She flew to Iowa City, Iowa, where David was in the intensive care unit at the University of Iowa Hospital.David was conscious, but he was unable to communicate because he was on a life-support system.He had a tube down his throat with a respirator breathing for him.He had just come out of surgery and had a fourteen inch incision down his front.Doctors informed her that David's spleen had been removed, and that he had a torn diaphragm.She was also told that his back was broken, and that he was paralyzed.Back surgery was delayed about three weeks because David had wounds on his back which had to heal first.He was in a striker bed until after the back surgery.He was then put into a regular bed, but was in a complete body shell.David was a patient at the University of Iowa Hospital until July 2, 1976.The family bought a station wagon that could hold a full-sized mattress to transport David home.The day after he arrived home his leg swelled up.This was diagnosed as a blood clot.He was admitted to the Rehabilitation Institute and transferred to Wesley Hospital for treatment which lasted one week, and then transferred back to the Rehabilitation Institute.A week later he was again transferred to Wesley Hospital for treatment of urinary problems.At this time David had an in-dwelling catheter.When the problems were resolved he was sent back to the Rehabilitation Institute where he remained until October 8, 1976.David's weight had dropped to 131 pounds.He had trouble with IV's in his arm; he could not straighten his arms.At the Rehabilitation Institute he worked with weights to strengthen his arms, and they worked with extension of his arms so he could straighten and use them both.He was taught to dress himself.He was trained to tolerate sitting up straight without blacking out.His parents had two ramps built so he could get in the front door.David returned home and completed his senior year of high school.He could not tolerate sitting up longer than 10:30 a. m., so he had special permission to go home early every day.He had to check in at the Rehabilitation Institute weekly, and he went back to the Rehabilitation Institute for a decatherization program in January which lasted five weeks.He was in a wheelchair.The in-dwelling catheter was removed, and David had to catherize himself four to five times a day.He also eventually managed his bowels by himself by manipulation.David entered the University of Arizona in August, 1977.He returned home after the first semester and was treated at Glenbrook Hospital for mononucleosis and strep throat.He also had a stone in his bladder.The bladder stone was removed in March, 1978 by Dr. Stanisic at the University of Arizona Hospital.In August, 1978, Dr. Ignatov performed a sphincterotomy at Evanston Hospital to remove the sphincter from the urinary canal.After the surgery David had no control over urination and needed a constant bag attachment.In July, 1979, he got a blood clot in his leg again.He was treated at the University of Arizona Hospital.The rods in his back broke and had to be removed in August or September, 1979.In March, 1980, David was hospitalized for testing to determine if h...