Stenger v. Germanos

• Decision Date: 16 August 1994
• Docket Number: No. 1-93-3164,1-93-3164
• Parties: , 203 Ill.Dec. 140 John STENGER, Individually, and as Executor of the Estate of Frank E. Stenger, Deceased, Plaintiff-Appellee, v. Gregg A. GERMANOS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 179

639 N.E.2d 179

265 Ill.App.3d 942, 203 Ill.Dec. 140

John STENGER, Individually, and as Executor of the Estate of Frank E. Stenger, Deceased, Plaintiff-Appellee, v. Gregg A. GERMANOS, Defendant-Appellant.

No. 1-93-3164.

Appellate Court of Illinois First District, Second Division.

Aug. 16, 1994.

Coleman & O'Halloran, Ltd., Chicago (Robert N. Hilbert, of counsel), for appellant.

Keith L. Young, Chicago, for appellee.

Justice SCARIANO delivered the opinion of the court:

On March 23, 1989, plaintiff's decedent, Frank E. Stenger, was struck by an automobile being operated by defendant Gregg Germanos as Stenger crossed Arlington Heights Road near its intersection with Frederick Avenue in the village of Arlington Heights. He later died as a result of the injuries sustained in the collision. Plaintiff John Stenger, who was decedent's brother, filed a two count complaint in the circuit court grounded in the Wrongful Death and Survival Acts, and the action proceeded to trial before a jury.

Ms. Betty Minaglia testified that she was at the scene of the accident, which occurred directly in front of the church where she was a parishioner and where she was going that night for Holy Thursday ceremonies. At that location, Arlington Heights Road is a level, straight, center-line divided, four-lane north-south thoroughfare with the church on its east side and its parish center to its west. It was lit, but not with the bright halogen lights used in the city of Chicago. Although there was a marked crosswalk provided for pedestrians crossing at the corner of Arlington Heights Road and Frederick Avenue, there was no traffic control device there.

On the evening of the accident at around 7:20 p.m., there was a large crowd gathered in front of the parish center as Minaglia walked toward the church. When she first saw decedent, he was about five feet north of the south crosswalk, walking from between the church and the school building, heading westbound toward the road, and she was on the east side of Arlington Heights Road standing on the steps of the church. She estimated that she was then between 100 to 125 feet from him. She described decedent's gait as very slow, but that he walked without the assistance of a cane or a walker.

Before the collision, Minaglia recalled that two vehicles on Arlington Heights Road were approaching from the south, one of which she later discovered was operated by defendant, who was in the centermost lane. The other auto to his right was half of a car-length in front of his. From her years of driving, she was confident that at that moment, the two cars, which were proceeding at the same rate, were both under the posted speed limit of 30 miles per hour.

She testified that decedent continued walking, stepping off the curb and crossing the street outside the crosswalk. He never hesitated while stepping onto the pavement, but remained walking at the same slow pace. At some point, Minaglia realized that decedent would be hit, at which point defendant's vehicle was about six or seven car lengths away from him.

Although she did not observe the actual impact because the closer vehicle blocked her view, she heard it. She did not notice whether defendant's brake lights were on prior to impact, nor did she hear the squeal of the brakes until after the sound of the impact. The accident dented the windshield and the front fender on the driver's-side of defendant's vehicle.

In order to expose any potential partiality Minaglia may have harbored in favor of defendant, plaintiff explored her post-accident relationship with him, over his objections. She disclosed that her 19-year-old son purchased auto insurance from him, at what she agreed was the best available rate. She also told the jury that defendant sent her family two tickets to a professional baseball game. She averred during cross-examination, however, that neither the tickets nor the business relationship with her son influenced her testimony in anyway.

The evidence deposition of Officer William Newman of the Arlington Heights police was read to the jury because Newman had suffered an injury which prevented him from coming to court to testify in person. In his deposition he had offered his expert accident reconstruction opinion as to the speed at impact, which he based on the length of the skid mark, the weight of the vehicle and other pertinent factors. Defendant moved to exclude this opinion evidence in light of the eyewitness testimony on that fact. The court provisionally granted this motion, reserving the right to allow the testimony in the event that the eyewitnesses' testimony on the speed of defendant's vehicle at impact proved unsatisfactory. When the issue was raised again at trial, the court once more sustained defendant's objection to Newman's opinion on speed, given Ms. Minaglia's testimony.

On the night of the occurrence, Newman went to the scene of the accident, and assisted by two other officers, he interviewed witnesses at the scene and took photographs and measurements of the boundaries of the accident as well as the length of the skid mark from defendant's tire, which was 88.3 feet long. Based on his measurements, Newman created a scale diagram of the accident, including the length and position of the skid mark. He also authenticated the photos taken of the scene which were published to the jury and later admitted into evidence over defendant's objection.

Sometime after the accident, Newman conducted tests on the vehicle to discover its braking power. He also wanted to estimate the speed at impact because he distrusted the eyewitnesses' estimates. He doubted that anyone could validly guess speed. His tests showed that the brakes worked well, and that the vehicle decelerated evenly and did not pull to any side.

Defendant next took the stand as an adverse witness and he stated that on the night of the accident immediately prior to the incident, he was driving on Arlington Heights Road toward his office. He stated that after he turned onto the road and got up to speed, he checked his speedometer and when he saw that he was at 30 miles per hour, he kept his speed constant.

At trial, he testified that when he neared the church he saw a pedestrian, whom he tried to avoid by swerving and braking. But, in an earlier statement given to officer Newman, he had said that he did not see the pedestrian until after striking him, and that it was only after the accident that he applied his brakes. He explained the inconsistency by blaming the earlier misstatement to Newman on the fact that it was taken soon after the accident while he was still traumatized.

Defendant presented the testimony of William Grafke, who at the time of the accident was heading southbound on Arlington Heights Road, proceeding at around 30 miles per hour. He recalled that the night was very dark. As he neared the church, he saw the headlights of two cars approaching him in the northbound lanes of the road. Then, about six car lengths to his front, he saw a pedestrian step off the curb, and begin to cross. The pedestrian, who he subsequently learned was decedent, was about 20 feet from the crosswalk, according to Grafke.

Decedent rapidly attempted to cross the road, apparently trying to avoid traffic. Moments later, Grafke saw the two cars approaching from the south take evasive action, but one nevertheless struck the pedestrian and his body bounced and rolled across the centerline.

This testimony was largely corroborated by Vincent Masterson, who was also on Arlington Heights Road at the time of the accident. He first noticed decedent when he was about halfway across the road, at which point Masterson was about 200 feet from him. He guessed that decedent was about 20 or 30 feet north of the crosswalk. He saw two cars which were nearly abreast in the northbound lane react to decedent when they were about 150 feet from him; they applied their brakes in unison and veered slightly to their right. In his opinion, defendant was travelling at approximately 20 miles per hour at impact.

The jury found damages in the amount of $306,000 and allocated 51% of the fault to defendant and 49% to decedent resulting in a judgment amount of $150,000. After the court rejected his post trial motion, defendant filed a timely notice of appeal.

I.

In his first assignment of error, defendant charges that the plaintiff intentionally advised the jury that defendant had auto insurance and that this knowledge clouded its subsequent allocation of fault as well as its determination of damages. It is the rule of this State that to inform the jury as to whether or not the defendant in a negligence action carries liability insurance constitutes reversible error. (Huber v. Seaton (1989), 186 Ill.App.3d 503, 507, 134 Ill.Dec. 285, 288, 542 N.E.2d 464, 467 citing Imparato v. Rooney (1981), 95 Ill.App.3d 11, 15, 50 Ill.Dec. 512, 419 N.E.2d 620; accord Micklos v. Highsmith (1986), 149 Ill.App.3d 779, 103 Ill.Dec. 83, 500 N.E.2d 1154.) The reason given for the rule is that such evidence has no relevance to any issue being tried and, more significant, that armed with such knowledge, the jury would likely be inclined to give the plaintiff a higher award than it otherwise would, reasoning that, unlike the defendant, the insurance carrier with its "deep pockets" could well afford the larger amount. Imparato, 95 Ill.App.3d at 15, 50 Ill.Dec. at 515, 419 N.E.2d at 623.

Defendant moved in limine to prohibit "evidence, testimony or questions in voir dire, at Trial, or at any time before the jury, as to the existence or non-existence of insurance coverage in this case * * *," which the court granted as a matter of course. Yet, according to defendant, it failed to apply its ruling whenever plaintiff elicited the word "insurance" during the trial.

The court allowed plaintiff to question eyewitness Bonita Minaglia with respect to her son's receipt from defendant of the above-mentioned...