McDermott v. Metropolitan Sanitary Dist.

• Decision Date: 04 December 1992
• Docket Number: Nos. 1-89-2913,1-90-0275,s. 1-89-2913
• Citation: 180 Ill.Dec. 758,240 Ill.App.3d 1,607 N.E.2d 1271
• Parties: , 180 Ill.Dec. 758 Michael McDERMOTT, Plaintiff, v. METROPOLITAN SANITARY DISTRICT et al., Defendants. Michael McDERMOTT, Plaintiff-Appellee, v. VILLAGE OF PALATINE, Defendant-Appellant and Third-Party Counterplaintiff-Appellant (Metropolitan Sanitary District, Third-Party and Counterdefendant-Appellee; Salt Creek Rural Park District, Third-Party Counterdefendant).
• Court: United States Appellate Court of Illinois

Page 1271

607 N.E.2d 1271

240 Ill.App.3d 1, 180 Ill.Dec. 758

Michael McDERMOTT, Plaintiff, v. METROPOLITAN SANITARY DISTRICT et al., Defendants.

Michael McDERMOTT, Plaintiff-Appellee, v. VILLAGE OF PALATINE, Defendant-Appellant and Third-Party

Counterplaintiff-Appellant (Metropolitan Sanitary District,

Third-Party and Counterdefendant-Appellee; Salt Creek Rural

Park District, Third-Party Counterdefendant).

Nos. 1-89-2913, 1-90-0275.

Appellate Court of Illinois First District, Fourth Division.

Dec. 4, 1992.

Rehearing Denied Jan. 29, 1993.

David Lincoln Ader, Thomas G. DiCianni, of Ancel, Glink, Diamond & Cope, P.C., Barry G. Bollinger, Edw. F. Ruberry and Stuart A. Ringle, of Bollinger & Ruberry, Chicago, for defendant-third party (counter) plaintiff appellant.

John T. Demos, Linda A. Leonetti, of Demos & Burke, Chicago (Joseph E. Tighe, of counsel), for plaintiff-appellee.

Williams & Montgomery, Ltd., Chicago (Barry L. Kroll, James J. Horstman, Jeffrey H. Lipe and C. Barry Montgomery, of counsel), for third party defendant-appellee.

Justice McMORROW delivered the opinion of the court:

Plaintiff Michael McDermott (McDermott) was rendered a permanent quadriplegic from injuries he sustained when he fell into a storm water drainage ditch while riding his bicycle along a dirt path in a lot in the Village of Palatine (the Village). McDermott filed suit against the Village, the Metropolitan Sanitary District (the MSD), and the Salt Creek Rural Park District (the Park District), alleging inter alia that each defendant had been willful and wanton for failure to properly maintain the ditch or warn of the hazards associated with the ditch. The matter was submitted for trial, and the jury assessed McDermott's damages at $16 million. It found the Village 67% liable for McDermott's injuries, and the MSD 33% liable. The jury returned a verdict in favor of the Park District and against McDermott, and the Park District is not involved in this appeal.

Following trial, the trial court found that a settlement agreement between McDermott and the MSD, which had been entered into during the jury's deliberations, was in good faith. On this basis, the trial court entered judgment in favor of the MSD with respect to McDermott's claims against the MSD. The trial court also denied the Village's post-trial motion for a new trial.

The Village appeals and raises numerous issues challenging the judgment entered by the trial court. The Village argues that it did not hold a property interest in the ditch into which McDermott fell, and that, assuming the Village did hold a property interest in the ditch, this interest was legally inadequate to impose a tort duty upon the Village to repair or maintain the ditch. The Village also asserts that the verdict was against the manifest weight of the evidence, and that the court improperly excluded evidence that McDermott's bicycle did not have brakes on the date of the incident. The Village further contends that various rulings by the trial court deprived the Village of procedural due process. Lastly, the Village argues that the trial court erred in its finding that a settlement agreement between McDermott and the MSD was in good faith.

We find the arguments of the Village insufficient basis to reverse the determinations of the trial court. Accordingly, we affirm.

The entire record in the instant cause spans in excess of 10,000 pages. Although we have exhaustively reviewed and studied the record, we restate matters of record only to the extent necessary for an understanding of the evidence presented at trial. Additional matters of record are recited as pertinent to the issues presented in this appeal.

Evidence at Trial regarding McDermott's Accident

McDermott testified that in June 1984, he was 17 years old, a junior in high school, and lived with his mother in Mount Prospect, Illinois. McDermott stated that on June 7, 1984, he rode his dirt bike to the home of Kurt Stier (Stier), in Mount Prospect, arriving at approximately 11:30 a.m. McDermott testified that he and Stier rode their dirt bikes to the house of Stier's grandparents in Palatine. McDermott related that they stayed at the grandparents' home all day and left between approximately 8:00 and 8:30 p.m. McDermott testified that it was still daylight when they left the residence of Stier's grandparents.

McDermott stated at trial that on their ride home, he and Stier got lost. McDermott testified that they rode down a dirt road (Kenilworth Road) in Palatine that bordered a vacant lot, and saw a path through the lot to a park with a baseball field. McDermott stated that he and Stier intended to take this path to another road, which they could see further in the distance. McDermott recounted that he went down the path ahead of Stier. McDermott testified that the path was bumpy, and they were riding at a normal rate of speed. McDermott recalled that as he was riding along the dirt path, he was looking ahead to the baseball field in front of him at the end of the weeded section through which the path led them. McDermott could recall nothing further of the incident. He testified that he never saw the ditch that intersected the dirt path along which he was riding. He testified that he had never previously been to the vacant lot on which he was riding when he was injured.

Kurt Stier, who was 18 years old at the time of trial, testified that on the date of McDermott's accident, he was 13 years old and attended junior high school. His testimony regarding events preceding McDermott's accident were substantially similar to the account given by McDermott. Stier further testified that as they were riding along the dirt path, which was about 75 yards long, they were going at "regular bicycle speed." He stated that McDermott, who was riding in front of him, suddenly disappeared from Stier's view. Stier testified that he got off his bike and approached on foot. He stated that he found McDermott in the bottom of a ditch that intersected the path they had been riding.

Stier recounted that he was about a foot away from the ditch when he saw it. Stier testified that the ditch, which was ten feet from the park further along the path, was three to four feet wide and five to six feet deep where it intersected with the path. Stier stated at trial that the banks of the ditch were steep, and that weeds that had grown along the path and the ditch were approximately two feet high.

Stier testified that when he first saw McDermott in the ditch, he thought McDermott was "joking" and was not actually hurt. Stier told McDermott to get up, but McDermott did not respond. Stier stated that he jumped into the ditch and asked McDermott if he was all right. Stier related that McDermott gave no reply. Stier stated that he waited approximately ten minutes for McDermott to get up and then went to seek help. Stier testified that initially he tried to find the home of a former football coach, whom he knew lived in a nearby subdivision and whom he had visited once before. Stier testified that he rode his dirt bike around the area but could not find the house. Stier stated that he then returned to where McDermott had fallen into the ditch. Stier recounted that McDermott had not moved since Stier's earlier departure.

Stier stated that he became frightened. He testified that it was starting to get dark out, and he noticed a light in one of the nearby condominiums. Stier stated that he ran to this home and knocked on the door, telling the residents his friend was hurt. Stier estimated that it was approximately 15 to 25 minutes from their departure from his grandparents' house to the time of McDermott's accident. He stated that approximately 20 minutes elapsed between McDermott's fall and Stier's request for help from the nearby condominium.

Gail Anderson, who lived in one of the condos near the vacant lot, testified that on June 7, 1984, Stier knocked on her door. Anderson testified that Stier was in a very agitated state and told her that his friend had been injured. Anderson stated that she called the paramedics and that it was approximately 8:45 p.m. at the time of her call. Anderson testified that she then went to the scene and saw McDermott lying in the ditch. She stated that it was dusk at that time, and that there was sufficient light for her to see McDermott. Anderson also testified that she had often seen people use the area for recreation, including fishing, as well as bike and motorcycle riding.

Craig Dieckman, a paramedic fire fighter for the Village from January 1981 to August 1988, testified that they received a call on June 7, 1984, at 9:29 p.m. regarding McDermott's accident. Dieckman testified regarding paramedic measures that were undertaken at the scene.

William King, a Village patrolman who went to the scene of McDermott's accident on June 7, 1984 pursuant to a radio call he received at approximately 9:34 p.m., testified that he spoke to Stier at the scene. King stated that Stier was very emotional but appeared to be able to give accurate information, and that Stier told King who McDermott was, where McDermott lived and where McDermott's mother was working at the time. King testified that his police report indicated that Stier told King that McDermott was riding through the field at a "high rate of speed" when McDermott hit a bump in the path, lost control of his bike, and "crashed into the hole."

King also stated that his police report indicated that Stier had told King that it was dark at the time of McDermott's accident, and that Stier had told King that the accident occurred approximately five minutes before the paramedics arrived. King testified that he had no recollection of Stier's statements independent from what King had written in his police report. King also testified that the day following McDermott's injuries, King returned to the scene with Officer Jano of the Village police department. At that time, King noticed a bump two...