People ex rel. Dept. of Transp. v. Smith
| Decision Date | 08 March 1994 |
| Docket Number | No. 1-92-0408,1-92-0408 |
| Citation | 631 N.E.2d 266,197 Ill.Dec. 263,258 Ill.App.3d 710 |
| Parties | , 197 Ill.Dec. 263 The PEOPLE of the State of Illinois, ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellant, v. Anthony SMITH, Jr., Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Wein & Associates, P.C., Michael J. Pisani, Chicago (Grace E. Wein, of counsel), for defendant-appellee.
Roland W. Burris, Atty. Gen., Rosalyn B. Kaplan, Sol. Gen., Chicago (Brian F. Barov, of counsel), for plaintiff-appellant.
The Illinois Department of Transportation (the Department) sued Anthony Smith, Jr., to recover $43,715.40 in damages allegedly caused by a collision between a dump truck driven by Smith and a bridge maintained by the Department. A jury found Smith negligent and awarded $1700 in damages. The Department appeals, seeking a judgment notwithstanding the verdict, or in the alternative a new trial on damages or an additur. For the reasons that follow, we affirm.
In November of 1980, defendant Smith, a truck driver, purchased a 1971 Henderson truck with a semi-dump trailer. The trailer had a lever to raise and lower the dump, and this lever had a manual lock.
On January 8, 1981, Smith was driving his truck as a leased driver for Cook County Disposal. He picked up a load of refuse from a site at 800 West Division Street and transported it to a dump site at 142nd Street and Dolton Avenue. After dumping his load, Smith returned the dump portion of the trailer to its horizontal position. He could not recall, however, whether he locked the dump in the down position.
After finishing at the dump site, Smith intended to return to 800 West Division Street. He proceeded eastbound along Dolton Avenue toward the I-94 entrance. Along the way, Smith stopped at a hot dog stand. When he got out of the truck at the hot dog stand, the dump was down.
Somewhere between the hot dog stand and the I-94 overpass over Dolton Avenue, the dump rose up. Unaware that the dump was up, Smith proceeded under the overpass and struck the face of the bridge. The force of the impact separated the truck's front and rear axles and the cab from the trailer. The trailer was so severely damaged that it could never be used again.
Steve Kakavas, a civil engineer for the Department before his retirement, testified that the Dolton Avenue bridge is a multi-beam continuous span bridge running north-south over Dolton Avenue. A beam has three parts, two flanges and a web. The flanges are the top and bottom steel plates of the beam, and the connecting plate is the web, also made of steel. The flanges lie horizontally on the web, and the web stands vertically between the flanges.
The Dolton Avenue bridge has six beams, numbered from west to east. The first beam on the west side is beam number one. This beam is also known as the west fascia beam. Thus, the west fascia beam would be the first beam encountered by eastbound traffic driving under the Dolton Avenue bridge. It is covered by a decorative plate, known as the west fascia plate, to give it a smooth appearance.
The Dolton Avenue bridge was normally inspected yearly. It, along with other bridges, was also inspected after accidents. Kakavas inspected bridges both in annual rotation and after accidents, and part of his duties included providing an estimate of repair costs. He inspected the bridge in question both before and after Smith's accident. In his inspection report of March 11, 1980, before the accident, he noted that the west fascia beam and the beam immediately behind it (the second beam) had their bottom flanges bent. There was also some damage to the web of the west fascia beam. The fourth beam was also bent about three inches out of line. Kakavas noted no damage to the west fascia plate in his 1980 report, although there were some rust holes due to normal wear. The 1980 report did not recommend replacement of the west fascia beam or any other beam. Kakavas estimated in the 1980 report that there was $75,000 worth of damage to the bridge.
Kakavas inspected the Dolton Avenue bridge again on January 9, 1981, the day after Smith's accident. In his 1981 report, he noted that both the west fascia cover plate and the web of the west fascia beam were bent. There was no change in the condition of the second beam, but the fourth beam was then out of line by four inches instead of three inches. The sixth beam also had an additional flange dent. The 1981 report recommended replacement of the west fascia beam.
Kakavas made a third inspection of the bridge on March 18, 1982. In the 1982 report, he noted that the first three beams had been hit and should be straightened. He also noted that the west fascia plate should be removed, but did not recommend again that the west fascia beam be replaced. He noted, however, that the beams were, overall, in worse condition than in the 1980 report. Kakavas again estimated in the 1982 report that repairs to the bridge would cost $75,000.
In order to replace the west fascia beam, a small section of concrete would have to be removed from the center section of the bridge. Then the bolts or rivets on the splice plate on the beam would have to be removed. Traffic would be stopped, the old beam would be lowered, the new beam would be inserted and bolted in, and new concrete would be poured. Replacing the beam would take two or three days.
Straightening a beam, on the other hand, requires only stopping traffic and using blocking and a jack to bring the beam into line. The process takes less than a day.
Kakavas testified that replacing the west fascia beam was necessary, and it was replaced in the fashion described. The Department entered into a contract with Cascade Construction Company to replace the west fascia beam and repair the bridge. The work was completed in 1984. The total cost of replacing the west fascia beam, including all incidental work, was $45,415.40. This included $3,949.17 for engineering work in preparing the plans for the contract for the repair work, and $1,974.58 for the supervisory engineering work. The total included $1,700 for straightening the second beam, which was not impacted in Smith's accident.
The bridge was also examined on the day of the accident by Illinois State Police Trooper Donald E. Lange. Lange prepared an accident report in which he noted that the impact of Smith's trailer dented the bridge beam. In this report, Lange estimated that there had been approximately $1,000 in damages to the bridge. He based this estimate on a price list provided to him, but admitted that he had no training in bridge repair, and that his estimate was not based on personal knowledge or any skill or expertise in engineering or bridge repair.
In closing argument, the Department requested only $43,715.40 in damages, the cost of replacing the west fascia beam and repairing the west fascia plate. Recovery of the $1,700 cost of straightening the second beam was not requested.
Before the jury retired to deliberate, the Department requested the court to allow the jury to take all the exhibits admitted into evidence into the jury room. The court denied the request, allowing into the jury room only four photographs showing the damage to the bridge. All of the other exhibits, including the construction contracts and changes, grouping sheets showing the repairs completed and the amounts payable on the contracts, memos and invoices showing costs, payment warrants, and Kakavas's three inspection reports, were not permitted in the jury room.
On September 11, 1991, the jury returned a verdict in favor of the Department, and awarded $1,700 in damages. A month later, the Department filed its post trial motion, requesting a judgment notwithstanding the verdict, or in the alternative a new trial on damages or an additur. On January 3, 1992, the circuit court denied the motion. On January 29, 1992, the Department filed a timely notice of appeal.
The Department first argues that it is entitled to a judgment notwithstanding the verdict (JNOV) because the amount of damage caused by Smith was uncontradicted and unrebutted. Smith responds that there is evidence to support the jury's damage award, and that therefore JNOV is inappropriate.
The standard for entering JNOV is well established. "Directed verdicts or judgments n.o.v. ought to be entered only in those cases in which all of the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors movant so that no contrary verdict based on that evidence could ever stand." Ward v. K Mart Corp. (1990), 136 Ill.2d 132, 139-40, 143 Ill.Dec. 288, 554 N.E.2d 223, 226, citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.
This is clearly a very difficult standard to meet, limiting the power of the circuit court to reverse a jury verdict to extreme situations only. Where there is evidence to support the jury's damage award, a circuit court will properly deny a motion for JNOV.
In this case, despite the Department's protestations to the contrary, the amount of damages was in question. The estimate for needed repairs to the bridge in 1980, before the accident, was $75,000. The same inspector reported in 1982, after the accident, an estimate for needed repairs to the bridge of $75,000. A reasonable jury could have concluded that there was no additional significant damage to the bridge between 1980 and 1982.
Further, there were inconsistencies in the Department's records that support the jury's verdict. A report made in 1981, immediately following the accident, stated that the west fascia beam should be replaced. No action was taken then, and the report made in 1982 stated that the same beam merely required straightening at that time. These two reports support a jury's conclusion that an expenditure of $43,715.40 to replace the beam was unnecessary. The jury had before it...
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