Redmond v. Socha

• Court: Appellate Court of Illinois
• Citation: Redmond v. Socha, 817 N.E.2d 1048, 352 Ill. App.3d 1049, 288 Ill.Dec. 398 (Ill. App. 2004)
• Decision Date: 29 September 2004
• Docket Number: No. 1-03-3568.,1-03-3568.
• Parties: Tommie REDMOND, Plaintiff/Counter-Defendant-Appellee, v. Elaine SOCHA, Defendant/Counter-Plaintiff-Appellant.

817 N.E.2d 1048

352 Ill. App.3d 1049

288 Ill.Dec. 398

Tommie REDMOND, Plaintiff/Counter-Defendant-Appellee, v. Elaine SOCHA, Defendant/Counter-Plaintiff-Appellant.

No. 1-03-3568.

Appellate Court of Illinois, First District, Third Division.

September 29, 2004.

Rehearing Denied October 27, 2004.

Law Office of Christine Tennon, Chicago (Lucia Montano, of counsel), for Appellant.

Kroll & Rubin, Ltd., Chicago (Robert E. Tracy, of counsel), for Appellee.

Justice HOFFMAN delivered the opinion of the court:

The defendant/counter-plaintiff, Elaine Socha (hereinafter referred to as the defendant), appeals from an order of the circuit court granting a new trial in this negligence action. For the reasons which follow, we affirm and remand this matter to the circuit court for further proceedings.

The facts material to our resolution of this appeal are undisputed. On July 4, 2001, the motorcycle that the plaintiff/counter-defendant, Tommie Redmond (hereinafter referred to as the plaintiff), was operating was struck in the rear by an automobile being driven by the defendant. As a result of the collision, the plaintiff filed the instant action seeking damages for personal injury and property damage. The defendant answered the complaint and filed both an affirmative defense alleging that the plaintiff was contributorily negligent and a counterclaim seeking damages for property damage.

The matter was tried before a jury. At trial, the plaintiff testified that he and two friends were riding their motorcycles on Ogden Avenue between Sacramento Boulevard and California Avenue. According to the plaintiff, he was traveling in a northeasterly direction in the right lane of traffic. He testified that, in preparation for making a left turn onto California Avenue, he looked over his shoulder prior to moving into the left lane and saw a vehicle behind the motorcycles being driven by his friends who were also traveling in the right lane of traffic. He stated that, as he moved into the left lane, the automobile being driven by the defendant, "shot" from behind his friends' motorcycles into the left lane of traffic and struck the left rear of his motorcycle. The plaintiff introduced evidence of the injuries he suffered as a result of the collision and the damages he sustained. In contrast, the defendant testified that she was driving her automobile in a northeasterly direction in the left lane of traffic on Ogden Avenue when the plaintiff, driving a motorcycle in the right lane, attempted to make a U-turn directly in front of her car. According to the defendant, she tried to stop, but the right front fender of her car struck the left rear of the plaintiff's motorcycle. The defendant introduced evidence of the damages to her vehicle as a result of the collision. Neither the plaintiff nor the defendant introduced evidence of any cause of the collision other than the negligence of the other.

The trial court instructed the jury, both orally and in writing, as to the burdens placed upon the respective parties. The instruction given was Illinois Pattern Jury Instruction No. B21.04 (IPI (Civil) No. B21.04) which directed the jury as follows:

"In this suit, there is not only the complaint of the Plaintiff but also the counterclaim of the defendant.

Because there is a counterclaim in this case[,] you may reach one of four results.

First, you may find for the Plaintiff on his complaint and against the Defendant on her counterclaim.

Second, you may find for the defendant on her counterclaim and against the Plaintiff on his complaint.

Third, you may find against both the Plaintiff on his complaint and the Defendant on her counterclaim.

Fourth, you may find for both, [sic] the Plaintiff on his complaint and the Defendant on her counterclaim.

In order for the Plaintiff to recover, he has the burden of proving each of the following propositions:

First, that the Defendant acted or failed to act in one of the ways claimed by the Plaintiff as stated to you in these instructions, and in so acting or failing to act, the Defendant was negligent;

Second, that the plaintiff was injured;

Third, that the negligence of the Defendant was a proximate cause of the injury to the Plaintiff.

If you find from you[r] consideration of all of the evidence that any of these propositions has not been proved, then your verdict should be for the Defendant as to the Plaintiff's complaint. On the other hand, if you find from your consideration of all the evidence that all of these propositions have been proved, then you must consider Defendant's claim that Plaintiff was contributorily negligent.

As to that claim, Defendant has the burden of proving each of the following propositions:

A: [sic] That the Plaintiff acted or failed to act in one of the ways claimed by the Defendant as stated to you in these instructions, and that in so acting or failing to act, the Plaintiff was contributorily negligent;

B. That Plaintiff's contributory negligence was a proximate cause of his injury.

If you find from your consideration of all the evidence that the Plaintiff has proved all the propositions required of the Plaintiff and that Defendant has not proved both of the propositions required of the Defendant, then your verdict should be for the Plaintiff and you will not reduce the Plaintiff's damages.

If you find from your consideration of all the evidence that the Plaintiff has proved all the propositions required of the Plaintiff and that Defendant has proved both of the propositions required of the Defendant, and if you find that the Plaintiff's contributory negligence was greater than 50% of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for the Defendant.

Finally, if you find from your consideration of all the evidence, that the Plaintiff has proved all the propositions required of the Plaintiff and that Defendant has proved both of the propositions required of the Defendant, and if you find that the Plaintiff's contributory negligence was 50% or less of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for the Plaintiff and you will reduce the Plaintiff's damages in the manner stated to you in these instructions.

In order for the Defendant to recover on her counterclaim, she has the burden of proving each of the following propositions:

First, that the Plaintiff acted or failed to act in one of the ways claimed by the Defendant as stated to you in these instructions, and in so acting or failing to act, the Plaintiff was negligent;

Second, that the Defendant's property was damaged;

If you find from your consideration of all of the evidence that each of these propositions has not been proved, then your verdict should be for the Plaintiff as to the Defendant's counterclaim. On the other hand, if you find from your consideration of all the evidence that each of these propositions have been proved, then you must consider the Plaintiff's claim that Defendant was contributorily negligent.

As to that claim, the Plaintiff has the burden of proving each of the following propositions:

A. That the Defendant acted or failed to act in one of the ways claimed by the Plaintiff as stated to you in these instructions and that in so acting, or failing to act, the Defendant was contributorily negligent;

B. That the Defendant's contributory negligence was a proximate cause of the damage to his [sic] property.

If you find from your consideration of all the evidence that the Defendant has proved all the propositions required of the Defendant and that the Plaintiff has not proved both of the propositions required of the Plaintiff, then your verdict should be for the Defendant on the counterclaim and you will not reduce the Defendant's damages.

If you find from your consideration of all the evidence that the Defendant has proved all the propositions required of the Defendant and that the Plaintiff has proved both of the propositions required of the Plaintiff, and if you find that the Defendant's contributory negligence was greater than 50% of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for the Plaintiff on the Defendant's counterclaim.

Finally, if you find from your consideration of all the evidence, that the Defendant has proved all the propositions required of the Defendant and that the Plaintiff has proved both of the propositions required of the Plaintiff, and if you find that the Defendant's contributory negligence was 50% or less of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for the Defendant on the counterclaim and you will reduce the Defendant's damages in the manner

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