Wade v. City of Chicago Heights, 1-90-0467

• Decision Date: 28 June 1991
• Docket Number: No. 1-90-0467,1-90-0467
• Parties: , 159 Ill.Dec. 228 Harry L. WADE and Joann Wade, Plaintiffs-Appellees, v. CITY OF CHICAGO HEIGHTS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1288

575 N.E.2d 1288 216 Ill.App.3d 418, 159 Ill.Dec. 228 Harry L. WADE and Joann Wade, Plaintiffs-Appellees,
v.
CITY OF CHICAGO HEIGHTS, Defendant-Appellant. No. 1-90-0467. Appellate Court of Illinois,
First District, Second Division. June 28, 1991.

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[216 Ill.App.3d 419] [159 Ill.Dec. 230] Antonietti and Gulotta, Calumet City (Edward Antonietti and Ronald Kawanna, of counsel), for defendant-appellant.

Laser, Schostok, Kolman & Frank, Chicago (Michael Lee Tinaglia, of counsel), for plaintiffs-appellees.

[216 Ill.App.3d 420] Justice HARTMAN delivered the opinion of the court:

Jury verdicts of $3,582,627.70 in personal injury damages and of $904,166.67 in consortium damages, awarded to plaintiffs, Harry L. and Joann Wade, are challenged by defendant City of Chicago Heights (City). Harry's injuries were sustained when the automobile he was driving struck the side of a building. The accident allegedly was caused by the City's negligence in effecting street repairs.

The City claims error in the circuit court's rulings with regard to certain evidence, jury instructions and post-trial motions. For reasons which follow, we affirm in part, reverse in part and remand for a new trial.

The automobile accident occurred on 14th Street, between Arnold and Wentworth Avenues, in Chicago Heights, during the early morning hours of May 19, 1982. 14th Street is an east-west thoroughfare with two lanes running in each direction. It is also U.S. Route 30 and Lincoln Highway. Illuminated streetlights were located along the roadway and at the scene of the accident. Prior to May 19, 1982, a small section of road was under repair in the outer westbound lane of 14th Street, between Arnold and Wentworth Avenue. This was work undertaken by the Chicago Heights Water Department, some two weeks prior to May 19, 1982, in order to restore the water supply in that location. A three foot rectangular hole, nine inches deep, was cut into the pavement in order to accomplish the repair. The hole was backfilled with gravel two to three inches higher than the pavement level to allow for settlement. Three barricades equipped with flashing lights were placed around the site; one each on the west side, south side and east side. Harry travelled this route every day to and from work and passed the City's construction site for approximately two weeks before the accident.

On May 18, 1982, Harry left his employment at the Ford Motor Company plant at the end of his shift. Harry reportedly went to a tavern on the day of the accident because of frustrations on the job, but had not gotten "drunk." Harry testified that he and a co-worker, Roy Nunn, went to Nunn's home in Gary, Indiana to install an air conditioner there. The two men eventually watched videotapes of a boxing match, during which time Harry consumed two or three alcoholic drinks containing "brown whiskey."

Harry left Nunn's house for his own home between 2:00 and 3:00 a.m., driving to 14th Street in Chicago Heights. He travelled west in the outer lane at the legal speed limit of 45 miles per hour. After passing[216 Ill.App.3d 421] the Ford plant, Harry encountered non-related construction in the inner and outer westbound lanes, which then became single lanes in each direction. After one and one-half miles, the construction ended, and Harry stopped for a stoplight at State and 14th. He could see the next stoplight down the road which marked the intersection of Wentworth and 14th, but saw no other lights. At the change of the lights at State Street, he proceeded west toward Wentworth. The next thing he recalled was waking up in St. James Hospital in Chicago Heights. He had sustained serious injuries to his head, nose, ears, mouth, and teeth, and his ability to stand and walk was impaired. Harry has received continued medical treatment since May 19, 1982, including psychiatric, dental, ophthalmological, and respiratory treatments. He saw his own family physician until 1987, when the Wades moved to Tennessee. There, to

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[159 Ill.Dec. 231] the time of trial, he saw both a psychiatrist and an allergist once per month.

Henry Rice, Jr., a City patrolman, investigated the accident. He found Harry unconscious in his car, abutting the east wall of a building on the northeast corner of 14th and Wentworth. Rice saw construction on 14th Street between Arnold and Wentworth, in the outer westbound lane, where a section of asphalt had been removed and had been filled in with gravel. Earlier on the day of the accident, Rice saw three lighted barricades surrounding the hole on its east, west and south sides. The barricades' battery-powered lights could be seen from one-half mile away or more. When he investigated the accident, however, all three were on the ground. The light on one barricade was still working.

Raymond Rossi, superintendent of the City's Water Department, was called as an adverse witness. In May 1982, the City did some repair work on 14th Street between Arnold and Wentworth to restore water service to one of the buildings. A hole was dug in the outer westbound lane to reach the affected pipe. The City undertook the construction when the state failed to do so. The hole was backfilled with gravel two to three inches above grade to allow for settlement before blacktopping. The backfilled hole was surrounded by barricades, which were lit at night by battery-powered lights and checked daily. No other warning devices were utilized. The department followed the law in barricading the hole, but Rossi did not know of Illinois Department of Transportation (IDOT) provisions relating to maintaining roadway construction.

A videotape of the evidentiary deposition of Thomas Cabello played to the jury revealed that, at the time of the accident, Cabello owned a cleaning and tailoring shop at 340 East 14th Street, overlooking[216 Ill.App.3d 422] the scene. In May, 1982, there was ongoing construction on 14th Street near his front window. A hole was there for "a couple of weeks or more" and was surrounded by three barricades. The barricade lights grew weaker each day. Cabello slept in the store on the night of the accident. At approximately 3:49 a.m., Cabello heard a crash, went to his front window and saw two of the three barricades on the ground. Only one of the three lights was still working, and it was dim.

Dr. Robert C. Watkins attended the Wade family from 1975 until they moved to Tennessee in 1987. Before the accident, Harry was physically and mentally fit and often served as Watkins' handyman. On May 19, 1982, in the emergency room at St. James Hospital, he saw Harry unconscious and unresponsive. Harry sustained a lacerated scalp and arm. A CAT scan revealed a contusion on the cerebral hemispheres which control thought and reasoning functions. These injuries were caused by "blunt head trauma." His thought processes were not intact, and he was unable to reason. Watkins' final diagnosis was a "right cerebral contusion" resulting in brain damage. Harry also suffered from a degenerated optic nerve, which affected his sight in his left eye. In Watkins' opinion, these injuries are permanent and would never improve. In the future, Harry would always require medical and psychiatric treatment, and he would never be able to work again. The City elicited evidence of Harry's indulgence in alcoholic beverages that night, over plaintiffs' objection, through cross-examination of Dr. Watkins, which will be detailed later in the body of this opinion.

Joann and Marea Wade Foster, Harry and Joann's daughter, corroborated Harry's account of his relationship with the family both before and after the accident, tending to show a post-accident impairment in those relationships.

After submitting special expenses in evidence, plaintiffs rested. The City's motion for a finding was denied. The City rested without presenting evidence other than that developed on cross-examination. Plaintiffs' motion for judgment on the issue of liability was subsequently denied, and thereafter the court held a conference on instructions. During the conference, plaintiffs' motion to reopen their case to admit a mortality table was allowed over the City's objection, and counsel presented

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[159 Ill.Dec. 232] a chart to the jury which fixed Harry's life expectancy at 23.8 years.

As noted above, the jury returned a verdict in Harry's favor, in the amount of $4,320,583.33, but reduced it to $3,582,627.70, representing the jury's allocation of Harry's comparative negligence in the [216 Ill.App.3d 423] amount of 17.08%. The jury also returned a verdict for loss of consortium in favor of Joann, in the amount of $904,166.67. Judgment was entered on the verdict on November 7, 1989.

On January 22, 1990, the circuit court denied the City's post-trial motion which alternatively sought judgment notwithstanding the verdict, a new trial or remittitur. On February 12, 1990, the City filed a timely notice of appeal, challenging the November 7, 1989 order entered upon the verdict and the January 22 order denying the post-trial motion.

I.

The City identifies as error the circuit court's refusal to give its instructions numbered 6, 7, and 8 in addition to the court's admonition to the jury to disregard all evidence relating to Harry's possible intoxication.

Generally, each party has the right to have the jury instructed on its theory of the case, and the circuit court, in the exercise of its discretion, must instruct the jury on all issues which it finds have been raised and supported by the evidence presented. (Marin v. American Meat Packing Co. (1990), 204 Ill.App.3d 302, 310, 149 Ill.Dec. 818, 562 N.E.2d 282; Lounsbury v. Yorro (1984), 124 Ill.App.3d 745, 751, 80 Ill.Dec. 1, 464 N.E.2d 866.) A new trial will be granted where a party shows that its right to a fair trial has been seriously prejudiced by the denial of an instruction. Alden Press, Inc. v. Block and Co. (1988), 173 Ill.App.3d 251, 260, 123 Ill.Dec. 26, 527 N.E.2d...