Robles v. Chicago Transit Authority

• Decision Date: 01 September 1992
• Docket Number: No. 1-90-3217,1-90-3217
• Citation: Robles v. Chicago Transit Authority, 601 N.E.2d 869, 235 Ill.App.3d 121 (Ill. App. 1992)
• Parties: , 176 Ill.Dec. 171 Mary ROBLES, as Administrator of the Estate of Ralph Robles, deceased, Plaintiff-Appellee/Cross-Appellant, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation, Defendant-Appellant/Cross-Appellee.
• Court: Appellate Court of Illinois

Page 869

601 N.E.2d 869

235 Ill.App.3d 121, 176 Ill.Dec. 171

Mary ROBLES, as Administrator of the Estate of Ralph Robles deceased, Plaintiff-Appellee/Cross-Appellant, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation Defendant-Appellant/Cross-Appellee.

No. 1-90-3217.

Appellate Court of Illinois First District, Second Division.

Sept. 1, 1992.

Flynn, Galvin & Ryan, Chicago (Richard T. Ryan, of counsel), for appellant.

Edward A. Cohen, Chicago, for appellee.

Justice SCARIANO delivered the opinion of the court:

On December 17, 1980, the decedent, Ralph Robles, was fatally injured while exiting from the side doors at the rear of a Chicago Transit Authority ("CTA" or "defendant") bus. The administrator of his estate, Mary Robles, brought a wrongful death and survival action against the CTA, but the original suit ended in a mistrial. In the subsequent trial, the court directed a verdict in favor of the CTA on the wrongful death and survival counts which were premised on the doctrine of res ipsa loquitur; and the jury found for the CTA on the remaining counts as well. On appeal, this court held that the trial court "erred in directing verdicts for the [CTA] on the res ipsa loquitur counts" and remanded those counts for a new trial. Robles v. Chicago Transit Authority, (1988), 173 Ill.App.3d 46, 54, 122 Ill.Dec. 863, 527 N.E.2d 361, appeal denied (1988), 123 Ill.2d 566, 128 Ill.Dec. 899, 535 N.E.2d 410 ("Robles I ").

On remand, seven eyewitnesses testified on behalf of Robles, and according to them, the bus pulled up to the bus stop, reached a complete stop and remained there for several minutes as passengers exited from the rear doors. Many of these witnesses testified that they were standing in line with the decedent in the aisle and in the rear door stairwell waiting to get off the bus. The gist of the testimony of all seven was that as the decedent was attempting to exit the rear doors of the bus, and while the doors were open, the bus, which was still at a stop, began to accelerate, causing the decedent to fall out of and under the bus.

The two witnesses who testified for the CTA gave a sharply conflicting view of the incident. Lloyd Foster, a dean at the high school near the bus stop, who was observing the loading of the bus, testified that the rear doors of the bus were never open while the bus was at the stop. However, Foster did not see the bus pull away. Eva Sanchez, who was sitting in the rear of the bus, testified that no one was standing in the rear door stairwell. According to her, after the bus pulled away from the stop, the decedent pulled the emergency knob, pushed open the rear doors and jumped off the moving bus because another boy had flashed a knife at him.

Earl Jones, who was the night foreman of the CTA's 77th Street garage at the time of the accident, and who at the time of trial was the maintenance superintendent at the same garage, testified as to the operation of the bus' rear door safety interlock system, and was also called by Robles as an adverse witness. His testimony was that if a bus is standing at a bus stop and someone wishes to exit from the rear doors, the driver of the bus may, by moving a lever from neutral to the rear position, unlock the doors so that they may be manually pushed open. After the person exits the bus, the rear doors, which are on springs, will automatically swing shut. According to Jones, the driver cannot accelerate until the lever is moved back into the neutral position. Jones further testified that there is an emergency handle with a knob on its end above the rear doors which when pulled will unlock those doors, thereby allowing the passenger to push them open. If the handle is pulled when the bus is moving, the driver will lose acceleration; but, once the handle is pushed back up, and the doors close, the driver can proceed. According to Jones' testimony, "if the interlock system is working properly, [the bus] cannot accelerate with doors open, with rear doors open."

The jury returned a verdict in favor of Robles on her wrongful death and survival claims based on a finding of negligence inferred through the doctrine of res ipsa loquitur; however, the jury also found the decedent to be 65% negligent. The circuit court denied the CTA's post trial motion for judgment notwithstanding the verdict and the CTA appeals, contending that the circuit court erred in denying its motion and that this court should enter judgment in its favor because the jury's verdict contained inconsistent findings of fact. Alternatively, the CTA seeks a reversal and remand for a new trial on the grounds that the trial court improperly refused to submit an exhibit to the jury and that it impermissibly admitted the testimony of two expert witnesses into evidence. In her cross-appeal, Robles contends that the trial court erred in failing to award her prejudgment interest and that the lower interest rate applicable to judgments rendered against government entities is unconstitutional as it applies to the CTA. We affirm the judgment of the circuit court in all respects.

Before considering the merits of this appeal, we must determine whether to grant the CTA's motion to supplement the record. On July 24, 1991, Robles filed a motion to dismiss this appeal based on an allegedly incomplete record, which motion we denied on August 7, 1991. In its response to that motion the CTA argued that the effect of the omissions on our consideration of the appeal would be easily rectified without any prejudice to the plaintiff by our allowing the record to be supplemented. However, the CTA did not file its motion to supplement the record until October 28, 1991, after the briefs were filed and just one week before oral argument. We took the motion and Robles' objections thereto with the case. The supplemental record accompanying the CTA's motion, consisting of certain reports of proceedings, was not bound or certified by the trial court, but it was certified by the court reporter. Robles opposes the motion on the ground that the supplement does not contain the trial judge's certification of correctness nor a stipulation of correctness by the parties. In addition, Robles argues that the supplement is insufficient since "several exhibits and sidebar conferences are still excluded along with crucial evidence, including the testimony of several witnesses." Finally, Robles denies that the filing of the supplemental record at this time would not prejudice her.

"The burden is on the appellant to present a record of sufficient completeness in order to question the evidence pertaining to issues raised at trial. [Citation.]" (Casas v. Liberty Savings & Loan Association (1984), 128 Ill.App.3d 68, 69, 83 Ill.Dec. 366, 470 N.E.2d 324.) Supreme Court Rule 329 (87 Ill.2d R. 329) permits a reviewing court to correct "material omissions or inaccuracies or improper authentication" of the record. Although Robles argues that the record is not certified, we note that "[c]ertification is designed to assure the accuracy of the record, but it is not a jurisdictional requirement[ ]" (Ray v. Winter (1977), 67 Ill.2d 296, 302-03, 10 Ill.Dec. 225, 367 N.E.2d 678); and we note also that she is not challenging the accuracy of the record. In Ray, the court, pursuant to Supreme Court Rule 329, treated the record as having been properly certified where no prejudice was alleged concerning inaccuracies or omissions in the verbatim report of proceedings. Although Robles is challenging the sufficiency of the supplemental record, she has failed to specify what portions are missing from the proffered supplement. At any rate, our review of the proposed supplement reveals that it is sufficiently complete to allow us to consider the merits of the arguments raised on appeal. As to Robles' contention that she will be prejudiced by the timing of the supplemental filing, in People v. Span (1987), 156 Ill.App.3d 1046, 1053, 109 Ill.Dec. 218, 509 N.E.2d 1057, the court allowed the defendant's motion to supplement the record even though it was presented after the briefs were filed because the State would not be unduly prejudiced its brief having contained an alternative argument based on the merits of the issue. Similarly, here, we fail to apprehend how Robles would be prejudiced if the CTA is allowed to supplement the record in light of the fact that she has presented alternative arguments addressing the merits of all of the issues on appeal. We therefore grant the CTA's motion to supplement the record.

I.

A review of Robles I, in which we held that the trial court erred in directing a verdict for the CTA on Robles' res ipsa loquitur counts, is essential to an understanding of this case. The court directed the verdict for the reasons expressed in the following colloquy with the plaintiff:

" 'THE COURT: Your argument is the interlock system was defective?

MR. COHEN: One of the arguments.

THE COURT: And that's your basis for the res ipsa logic or intention? [sic]

MR. COHEN: But for the failure of the interlock system, the accident would not and could not have happened as the witnesses testified that it happened.

* * * * * *

THE COURT: You have no evidence in this case to my knowledge, direct evidence of the defect. Mr. Ryan's motion will be granted on relationship of counts two and four.' [sic]."

In denying plaintiff's motion for reconsideration the court stated:

" 'Any question, however, in this case, the test pertinent to this Court is [the] second element[,] if the party charged used proper care.

Other speculation[,] we've no evidence that the interlock system was in no way defective to show the CTA was using improper care.

I have no reason to overturn my decision.' " Robles I, 173 Ill.App.3d at 51-52, 122 Ill.Dec. 863, 527 N.E.2d 361.

In Robles I, we explained that "[t]he doctrine of res ipsa loquitur allows the trier of fact to draw an inference of negligence on the part of defendants from circumstantial...