Lawing v. Chicago Transit Authority

• Decision Date: 21 March 1986
• Docket Number: No. 84-0901,84-0901
• Citation: 96 Ill.Dec. 331,142 Ill.App.3d 119,491 N.E.2d 145
• Parties: , 96 Ill.Dec. 331 Bertha LAWING, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation of the State of Illinois, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 145

491 N.E.2d 145

142 Ill.App.3d 119, 96 Ill.Dec. 331

Bertha LAWING, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation of the State of Illinois, Defendant-Appellee.

No. 84-0901.

Appellate Court of Illinois First District, Fifth Division.

March 21, 1986.

Mitchell Ware, Frank M. Grenard, Jones, Ware & Grenard, Chicago, for plaintiff-appellant.

Jean M. Golden, Joseph A. Giannelli, Chicago, for defendant-appellee.

Justice LORENZ delivered the opinion of the court:

Plaintiff brought an action for damages against defendant for injuries sustained in a fall while exiting one of defendant's buses. Following a jury trial in the circuit court of Cook County, a verdict was rendered in favor of defendant. On appeal, plaintiff contends that the court erroneously (1) allowed the testimony of the police officer who questioned her at the hospital subsequent to the accident; (2) denied her second motion to amend her complaint to conform to proofs at trial; and (3) allowed defense counsel to deliver a highly prejudicial closing argument which contained derogatory remarks against her counsel and referred to matters that had been excluded by the court on a motion in limine.

We affirm.

On November 8, 1981, plaintiff, a passenger on a CTA bus, was injured when she fell on the sidewalk curb as she alighted from the vehicle on one of its regularly scheduled stops. Plaintiff first filed a one-count complaint against defendant CTA claiming that its driver, Jesus Davila, had allowed the bus, on which she was a passenger, to lurch forward while her right foot was still on the bottom step of the vehicle. According to plaintiff, it was this sudden and unexpected movement that caused her to be thrown to the pavement and to sustain serious injury. A hospitalization case report of the accident was filled out by Chicago police officer Lawrence Bartoli at the time plaintiff received treatment for her injuries.

At the deposition of the bus driver, Jesus Davila, defendant's counsel produced a photograph of the intersection where the accident occurred and plaintiff's counsel, at that time, made a xerox copy of said photo.

On January 27, 1984, two days after trial had commenced and the testimony of plaintiff and several other witnesses had been heard, plaintiff requested and was granted leave of court to amend her complaint to allege negligence on the part of the bus driver in operating the vehicle.

Shortly thereafter, following the close of her case-in-chief, plaintiff once again sought leave to amend her complaint by including an additional count alleging that the CTA bus driver had been negligent in failing to warn plaintiff of the dangerous and deteriorating condition of the sidewalk in or about the area she exited the bus. Plaintiff claims it was only after defendant's counsel opening statement (where reference was made to the fact that the sidewalk in the area of the accident was in disrepair), and Davila's cross-examination (where it was revealed that he had known about the condition of the sidewalk for approximately one and a half to two years, but had failed to warn her about the condition before she alighted from the bus) that she first became aware of the condition of the sidewalk thereby necessitating that she amend her complaint to conform to the newly revealed evidence.

The trial court denied plaintiff's motion to amend her complaint to add another count on the basis that (1) it was untimely, since photos of the scene showing the condition of the pavement had been available to her counsel prior to trial and sufficient time had been thus provided to file a second count, and (2) there was no evidence to support a claim that she fell because of the condition of the sidewalk. Plaintiff nonetheless maintained that the photo-copies of the scene that were furnished prior to trial did not show the deteriorated condition of the sidewalk.

During the trial, police officer Bartoli was called to testify as one of defendant's witnesses. At this time, defense counsel requested that the police hospitalization report, which the officer had filled out while plaintiff was being treated for her injuries, be marked as one of defendant's exhibits. Defense counsel then told the officer to feel free to refer to the report if he needed to refresh his recollection. At no time, however, was the witness asked whether, in fact, he needed the report to aid his memory with regards to the events in question. Defense counsel proceeded to question Officer Bartoli as to admissions made by plaintiff during their conversation at the hospital on the day she was injured. Plaintiff's counsel made no attempt to object to Officer Bartoli's testimony and subsequently cross-examined him extensively.

During defense counsel's closing argument, mention was made of the fact that plaintiff had brought a prior lawsuit against the CTA in 1977 for personal injuries. This matter had been previously excluded by the court on a motion in limine. Plaintiff's counsel's objections, however, were overruled by the trial court.

Following the trial and upon deliberation, the jury returned a verdict in defendant's favor. Plaintiff then moved for judgment notwithstanding the verdict, or a new trial. According to plaintiff, three factors weighed in favor of a new trial: (1) the use made of the police report by defense counsel and the lack of any showing of necessity for its use; (2) the court's denial of leave to amend the complaint to add another count when the new evidence adduced at trial was relied upon by defense counsel in his opening statement and closing argument; and (3) the prejudicial and improper statements made by defense counsel against plaintiff's counsel at closing argument.

The trial court denied plaintiff's motion noting, among other things, that the xerox copies of the scene of the accident made available to plaintiff's counsel prior to trial showed the same deteriorated condition of the curbing and sidewalk as defense counsel's original photos, and that these copies gave sufficient notice of the condition of the pavement to have alerted plaintiff to act sooner. Plaintiff appeals from the jury verdict, requesting that it be reversed or, alternatively, that a new trial be granted.

OPINION

Plaintiff first contends that the use of the hospitalization report and Officer Bartoli's testimony improperly prejudiced her cause. The prejudicial error with respect to the use of the report and the testimony elicited therefrom is, according to plaintiff, two-fold: (1) defendant allowed an inadmissible police report to be exhibited and read from a fully uniformed police officer witness on direct examination as if the report were admissible evidence; and (2) defendant failed to lay the required evidentiary foundation for any permitted use of the document to either refresh the witnesses' memory, or to serve as any record of past recollection. Further impropriety is claimed on the basis that defense counsel and the witness allegedly "waved" the police report before the jury, a conduct so prejudicial as to prevent plaintiff from receiving a fair trial.

Defendant not only maintains that plaintiff's allegations are wholly unsupported by the record, but that, even if there was error, plaintiff is now precluded from raising it on appeal because she failed to make a timely objection.

It is well settled that an objection to the introduction of evidence must be made at the time of its admission or it will be considered waived. (Jacobs v. Holley (1972), 3 Ill.App.3d 762, 279 N.E.2d 186; Schaffer v. Dorsey (1966), 70 Ill.App.2d 390, 217 N.E.2d 19.) The law does not allow parties to lawsuits to sit by and permit allegedly improper evidence to be introduced without objection and then claim error on appeal. (In re Fisher's Estate (1951), 409 Ill. 420, 100 N.E.2d 564; Fornoff v. Parke Davis & Company (1982), 105 Ill.App.3d 681, 61 Ill.Dec. 438, 434 N.E.2d 793.) Further, since a foundation defect may be corrected by the adverse party during the course of trial if it is pointed out, the timeliness requirement is especially relevant to objections made on the basis of lack of proper foundation. (Kapelski v. Alton & Southern Railroad (1976), 36 Ill.App.3d 37, 343 N.E.2d 207.) Thus, a party who fails to make an objection based on foundation may not subsequently, after an adverse verdict, attempt to use the alleged lack of foundation as a basis for reversal on appeal. Greig v. Griffel (1977), 49 Ill.App.3d 829, 7 Ill.Dec. 499, 364 N.E.2d 660.

Although it appears from the record that defendant failed to lay the proper foundation prior to using the police report plaintiff's counsel admittedly did not object either to Officer Bartoli's testimony or to the improper use of the hospitalization case report. In fact, the record shows that the witness was subsequently cross-examined extensively. It is inconsequential to our determination that plaintiff objected to the use of the report in her motion for a new trial after a verdict was entered in defendant's favor. A party cannot attempt to preserve error by first raising his objections in a post-trial motion and then on appeal. (Brumley v. Federal Barge Lines, Inc. (1979), 78 Ill.App.3d 799, 33 Ill.Dec. 609, 396 N.E.2d 1333.) We further find no merit in plaintiff's attempts to exculpate herself from making a timely objection based in improper foundation on the fact that she wished to avoid further prejudice or, as raised by counsel for the first time in oral arguments, that there was confusion as to which attorney was going to make objections.

Plaintiff lastly urges us to look upon her case as falling within the exception to the general rule governing waiver since the conduct engaged in by defense counsel and witness was allegedly so prejudicial as to prevent her from receiving a fair trial. However,...