Lundquist v. Nickels, 1-90-3377

• Court: United States Appellate Court of Illinois
• Citation: 605 N.E.2d 1373,238 Ill.App.3d 410
• Docket Number: No. 1-90-3377,1-90-3377
• Parties: , 179 Ill.Dec. 150 Margaret LUNDQUIST and Steven Lundquist, Plaintiffs-Appellees, v. Keller B. NICKELS d/b/a Nickels Pit, Defendant-Appellant.
• Decision Date: 25 November 1992

Page 1373

605 N.E.2d 1373 238 Ill.App.3d 410, 179 Ill.Dec. 150 Margaret LUNDQUIST and Steven Lundquist, Plaintiffs-Appellees,
v.
Keller B. NICKELS d/b/a Nickels Pit, Defendant-Appellant. No. 1-90-3377. Appellate Court of Illinois,
First District, Fourth Division. Nov. 25, 1992.
Rehearing Denied Jan. 7, 1993.

Page 1376

[238 Ill.App.3d 414] [179 Ill.Dec. 153] Pretzel & Stouffer, Chtd. (Robert M. Chemers, Michael G. Bruton and Donald J. Kindwald, of counsel), Chicago, for defendant-appellant.

John J. Henely (David A. Novoselsky and Linda A. Bryceland, of counsel), Chicago, for plaintiffs-appellees.

Justice McMORROW delivered the opinion of the court:

Margaret Lundquist (hereinafter plaintiff) filed suit against Keller B. Nickels, d/b/a Nickels Pit (hereinafter defendant) for injuries plaintiff sustained when a motorcycle plaintiff was driving on defendant's property went over a drop-off also located on the premises. Plaintiff claimed that her injuries were proximately caused by defendant's negligent failure to warn or otherwise prevent persons from driving over the drop-off. Plaintiff's husband, Steven, also filed suit for loss of consortium.

The cause was submitted to a jury trial. At the close of all of the evidence, the jury returned verdicts in favor of plaintiff and her husband and against the defendant. The jury assessed plaintiff's damages at $267,000, and reduced this amount by 50% for plaintiff's comparative negligence, resulting in a net damage award to plaintiff in the amount of $133,500. The jury also awarded plaintiff's husband $5,000 for loss of consortium. The trial court subsequently reduced the plaintiff's damages by the amounts rendered to plaintiff in settlements

Page 1377

[179 Ill.Dec. 154] with other defendants not involved in this appeal, and entered judgment in conformity with the jury's assessment of the defendant's liability for the injuries sustained by the plaintiff and her husband. Defendant appeals.

Upon review, the defendant argues that the judgment against him should be reversed because he owed no duty to the plaintiff to exercise reasonable care in his maintenance of the property. In this regard, defendant contends that he had no duty to plaintiff under principles of ordinary negligence because plaintiff was a licensee, and not an invitee, on the property. Defendant also maintains that even if plaintiff was an invitee on the premises, he is not liable for her injuries because of the limited immunity provided for in the Recreational[238 Ill.App.3d 415] Use of Land and Water Areas Act. (Ill.Rev.Stat.1983, ch. 70, par. 31 et seq.) Defendant further contends that the judgment against him should be reversed because the evidence failed to show that his allegedly negligent acts were the proximate cause of the plaintiff's accident.

Defendant asserts that he is entitled to a new trial because the court committed reversible error when it: (1) refused to permit the jury to view the scene of the accident; (2) admitted certain evidence regarding the scene of the incident and the extent of the plaintiff's injuries; (3) gave the jury certain instructions offered by the plaintiff and refused other instructions submitted by the defendant; and (4) refused to submit special interrogatories to the jury proffered by the defendant. The defendant also contends that the amount of damages awarded by the jury was excessive.

We affirm the trial court's judgment against the defendant and in favor of the plaintiff. We further modify the amount awarded to plaintiff's husband by the percentage attributed to plaintiff's comparative fault, and affirm the trial court's judgment in favor of plaintiff's husband as modified.

The pertinent testimony at trial was as follows. Steven O'Donnell (hereinafter O'Donnell), plaintiff's younger brother, testified that on May 29, 1983, he accompanied plaintiff, plaintiff's husband, and Bill Lee to defendant's property. O'Donnell stated that plaintiff's husband, Lee, and O'Donnell himself each owned a motorcycle and intended to ride the vehicles on defendant's property. Because the parties referred to the motorcycles in question as "dirt bikes" throughout trial, we will also refer to the vehicles by that term.

O'Donnell testified that he had ridden on the property several times in the past, and that it was customary that a payment of $4.00 per dirt bike would be collected by the owner of the property at some point while they were on the premises. O'Donnell stated that on the date in question, the owner drove over to them in a truck. O'Donnell identified this individual in court as the defendant. O'Donnell stated that he, plaintiff's husband, and Lee each paid $4.00 to defendant, because the charge was based on the number of dirt bikes brought to the site. O'Donnell testified that there were no restrictions on how many persons could ride the dirt bike.

O'Donnell testified at trial that they unloaded the dirt bikes from their trucks and began riding on the property. He stated that plaintiff stayed behind near the parking area where they left their trucks. O'Donnell testified that he later returned to the parking area after approximately one hour, and that plaintiff asked him if she could ride [238 Ill.App.3d 416] his dirt bike. O'Donnell stated that at first he refused her request, but that plaintiff insisted and he allowed her to ride the bike. O'Donnell stated that to his knowledge, plaintiff had never previously ridden a dirt bike or any other type of motorcycle.

O'Donnell stated that he explained to plaintiff how to operate the bike and that she understood his explanations. O'Donnell then watched as plaintiff rode the bike in an oval pattern in a grassy area near the parking lot. When she returned to where O'Donnell was standing, plaintiff asked if she could go around a second time. Again O'Donnell initially refused and then acquiesced in her request.

O'Donnell testified that on plaintiff's second oval ride around the grassy area, plaintiff

Page 1378

[179 Ill.Dec. 155] "got to the top of the oval, then kind of turned and gave it a little bit too much gas, and started heading toward the bushes" at the end of the grassy area. O'Donnell stated that plaintiff was "looking down like she was trying to find the brake." O'Donnell testified that he then saw plaintiff go through the bushes and over a drop-off. O'Donnell stated that he and Lee, who had been in the parking area, went running over to where plaintiff had gone off the drop-off. O'Donnell testified that the drop-off was approximately 50 to 60 feet deep, and very steep. He stated that he and Lee climbed to the bottom of the drop-off, where they found plaintiff. An ambulance was summoned and plaintiff was transported to an area hospital.

O'Donnell testified that he could not see the drop-off from where he was standing while the plaintiff had been riding the dirt bike. O'Donnell also stated that he never told plaintiff about the drop-off, because "[i]t never came to mind."

Plaintiff testified that on the date of the incident, she accompanied her brother, husband, and their friend Bill Lee to the defendant's property "because it was a nice weekend." Plaintiff acknowledged that she had never previously ridden a dirt bike and that she did not go to the defendant's property with the intention of riding a bike. Plaintiff could not recall ever having been on the defendant's property on any prior occasion.

Plaintiff's account of the accident was substantially similar to that given by her brother. Plaintiff testified that she rode her brother's bike on an area near the parking lot where she had earlier seen some adults teaching small children how to ride dirt bikes. According to plaintiff, she looked around from the parking area "and it was not evident there was a drop-off there."

Plaintiff stated that the accident occurred during her second ride on the dirt bike. She related that she rode the bike away from her brother and started to make a left turn. She stated that as she [238 Ill.App.3d 417] started coming around to the left, she "let the clutch out a little too fast," accelerated, and unsuccessfully tried to find the brake peddle in order to stop the bike. Plaintiff testified that "all of a sudden" she realized she was at "the end of the road," that she "turned the bike to the left and went off the cliff on an angle," and that at that time she "lost total control of the bike."

Plaintiff testified that she was approximately six to seven feet from the drop-off when she first noticed it. Plaintiff also testified that if she had been warned that there was a drop-off there, she would not have ridden the bike in the area where she did in fact ride it. She estimated that she was going approximately 30 to 35 miles per hour when she went over the drop-off.

Plaintiff related that she had asked her husband if she could learn to ride his bike, but that he had said he did not think his bike was appropriate and did not want her to ride it because the bike was very large and plaintiff could not hold the bike upright. Plaintiff stated that her brother's bike was much smaller than that of her husband.

Bill Lee testified in pertinent part that he saw plaintiff and her brother and could remember seeing plaintiff riding her brother's dirt bike slowly on the grassy area near the parking area, although he could not hear what plaintiff or her brother were saying. Lee stated that he also saw plaintiff ride the bike for a second time. He testified that he lifted up his head and heard the bike's engine "rev up" and saw plaintiff "streaking" at approximately 30 miles per hour. Lee stated that he and plaintiff's brother ran after plaintiff to the spot where plaintiff went over the drop-off. He stated that he had not ridden in this area, and that he did not know there were trails on the drop-off. Lee testified that he could not see the drop-off from the parking area, and that the drop-off was approximately 75 to 100 feet...