Wagner v. City of Chicago

• Decision Date: 29 September 1993
• Docket Number: Nos. 1-91-3872,1-91-3906,s. 1-91-3872
• Citation: 254 Ill.App.3d 842,193 Ill.Dec. 676,626 N.E.2d 1227
• Parties: , 193 Ill.Dec. 676 Devra WAGNER, Plenary Guardian of the Estate of Troy M. Wagner, a disabled person, Plaintiff-Appellant, v. CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1227

626 N.E.2d 1227

254 Ill.App.3d 842, 193 Ill.Dec. 676

Devra WAGNER, Plenary Guardian of the Estate of Troy M Wagner, a disabled person, Plaintiff-Appellant, v. CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellee.

Nos. 1-91-3872, 1-91-3906.

Appellate Court of Illinois First District, Third Division.

Sept. 29, 1993.

Rehearing Denied Jan. 5, 1994.

Mark S. Grotefeld, Carol M. Douglas of Robins, Kaplan, Miller & Ciresi, Chicago, and David W. McKenna, Corey L. Gordon of Robins, Kaplan, Miller & Ciresi, Minneapolis, MN, for plaintiff-appellant.

Kelly R. Welsh, Corp. Counsel of the City of Chicago, Chicago (Lawrence Rosenthal, Benna Ruth Solomon, Joan Flynn, of counsel), for defendant-appellee.

Justice GREIMAN delivered the opinion of the court:

Troy Wagner ("plaintiff") was severely injured in an accident at an intersection in which his motorcycle collided with a pickup truck driven by Paul Roszkowski. Plaintiff's guardian filed suit against both Roszkowski and the City of Chicago ("City"), but settled with Roszkowski. At trial, the jury found the City negligent, but also determined that plaintiff had been 50% at fault, and so reduced his damages accordingly to approximately $2,155,000.

On appeal, plaintiff contends that: (i) the trial court erred when it denied his motion for judgment notwithstanding the verdict as to his comparative fault; and (ii) abused its discretion when it refused to assess sanctions against defendant for a willful violation of discovery rules.

Also in this consolidated appeal, the City (i) challenges the trial court's denial of its motion for judgment notwithstanding the verdict and its earlier 2-619 motion on the grounds that plaintiff's claim is barred under the Tort Immunity Act (Ill.Rev.Stat.1979, ch. 85, par. 3-104(a)); (ii) alternatively, even if the City might be liable for its negligence, it owes no duty to a plaintiff who does not exercise ordinary care; and (iii) it is entitled to a remittitur of damages.

We affirm the trial court's determination.

On July 25, 1985, plaintiff's motorcycle collided with Roszkowski's pickup truck at the five-way intersection of Ashland Avenue, Rosehill Drive and Clark Street in Chicago. Roszkowski was traveling north on Clark when he turned left onto Rosehill and stopped before proceeding west through the Ashland-Rosehill intersection as he had done numerous times. Plaintiff was traveling south on Ashland when Roszkowski started to proceed through the intersection of Rosehill and Ashland. Roszkowski had traveled 10 feet when he collided with plaintiff's motorcycle. The impact caused the 19-year-old plaintiff severe and permanent brain damage, with no memory of the accident.

Roszkowski was the only witness to testify to the circumstances of the accident. He stated that as he was stopped at Ashland after turning left onto Rosehill from Clark, he looked to his right and observed plaintiff on his motorcycle at least one block away on Ashland. He testified that he thought plaintiff was going 38-40 m.p.h., "fast" compared to vehicles he was used to seeing in the area, where the speed limit is 30 m.p.h. He testified that he looked to the left and the traffic light facing north was red. The parties disagree as to whether the light he observed was for northbound Ashland traffic or for southbound Ashland traffic, but there was no confusion that he looked to his left and the exhibit showing the layout of the traffic signals clearly demonstrates that the light he observed was intended to regulate southbound Ashland traffic. Roszkowski looked left, then right to see plaintiff, then left again, then pulled out into the intersection at approximately 3-5 m.p.h., when plaintiff collided with his truck, throwing plaintiff approximately 60 feet.

Plaintiff's traffic expert, Matthew Sielski, testified that the City should have had a "No left turn" sign on the left side of Clark Street, and that the Manual on Uniform Traffic Control Devices ("Manual") requires that such signs be placed on both the right and left hand sides of the street. Sielski acknowledged that vehicles facing a straight green arrow may proceed through an intersection but may not turn left or right, and that northbound Clark Street has such a signal.

Sielski also testified that a motorist should never have to make a judgement call about whether or not to proceed, and that after Roszkowski made a left turn, there was no device governing westbound traffic and the absence of such a device contributed to the accident.

The map appended to this opinion demonstrates the complex nature of this intersection.

Kenneth Hodl, the City's acting head of the traffic signal section of the City's Bureau of Traffic Engineering, testified as to the placement and sequencing of traffic signals at the intersection. He stated that the signals have been unchanged since 1957, and that there is no signal regulating westbound Rosehill traffic, since Rosehill is one-way going east through the intersection. Northbound Clark traffic has a red, yellow and straight green arrow signal, while southbound Ashland has red, yellow and a solid green signal.

Hodl testified that a "One-way" sign governing northbound Ashland traffic was installed on the triangular traffic island just north of Rosehill in 1961. At the time of the accident, that sign was located on the center pole of three poles on that island. In 1972, a "No left turn" sign was installed on the east side of Clark to regulate northbound Clark traffic from making turns onto Rosehill going west. In 1987, a City employee was sent to check that sign, but there was no indication in the City's records whether it was in place. In 1990, that sign was found missing and was replaced. It was again discovered missing in 1991. There is no information as to whether there was a "No left turn" sign in place at the time of the accident in 1985.

Hodl testified that a second "No left turn" sign was unnecessary because there was a first sign on the east side of Clark Street in addition to the straight green arrow governing northbound Clark traffic. He opined that even if the sign was missing at the time of the accident, the green arrow was enough to warn drivers that left turns were not allowed, since the Manual states that no turns are permitted on a straight arrow, and it was his opinion that no addition signage is required.

The jury found the City negligent and awarded plaintiff damages of $4,309,671, which was reduced by 50% after finding plaintiff was also at fault in causing his injuries, and the court later reduced by $53,000 the award for future medical care, bringing recoverable damages to $2,128,335.

We first address plaintiff's contention that the trial court erred in failing to grant its motion for judgment notwithstanding the verdict on the issue of plaintiff's comparative fault. Plaintiff argues there is no evidence supporting any of the City's charges that plaintiff was negligent in: (1) failing to keep a proper lookout; (2) failing to sound his motorcycle horn; (3) traveling at an excessive rate of speed; and (4) failing to obey a red light.

A judgment notwithstanding the verdict is entered where all of the evidence, viewed in a light favorable to the non-moving party, so overwhelmingly favors the movant that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504; Alden Press, Inc. v. Block & Co. (1988), 173 Ill.App.3d 251, 123 Ill.Dec. 26, 527 N.E.2d 489.) Here, we must determine whether the evidence, viewed in a light most favorable to the City, overwhelmingly demonstrates that plaintiff's negligence was not a proximate cause of the accident.

Since Roszkowski was the only witness to testify to the accident and defendant did not call an accident reconstructionist, any factual determinations the jury made regarding the accident would have come from Roszkowski's testimony and the factual circumstances of the accident.

The City contends that plaintiff ran a red light and his failure to stop was the proximate cause of the accident. The parties disagree on this issue, both drawing different inferences from Roszkowski's testimony regarding the traffic signals he observed while facing westbound on Rosehill at Ashland.

This critical witness, in his pickup truck facing west, first stated he saw a red light for "southbound traffic" and after a suggestion from counsel, corrected his testimony to "northbound traffic." He also noted that the light he observed was to his "left" which would have been the signal for southbound Ashland traffic. Although somewhat inexacting, the jury may reasonably conclude that a witness might be confused as to "north" or "south," but hardly as to "right" or "left."

Plaintiff argues that the evidence is clear that he had a green light when he travelled south on Ashland prior to the accident because (1) Roszkowski stated that the light for northbound Ashland was red without a green left turn arrow, and that he saw two cars waiting to turn left from Ashland onto Rosehill; and (2) his expert testified that the only time the signal for southbound Ashland is red is when northbound Ashland has a green arrow to turn left onto Rosehill. Plaintiff implies that the two cars waiting to turn left onto Rosehill would not have been stopped at the light if southbound Ashland traffic had a red light.

The City argues, however, that the sequencing of the lights means plaintiff might have had a red or yellow light by the time he reached the intersection.

The jury could infer from Roszkowski's testimony that plaintiff may have run the red light since he stated that he saw a red light to his left, which would be the light governing southbound Ashland traffic and plaintiff. Given that inference, the jury would be justified in believing that the left turn arrow for northbound Ashland turning onto Rosehill had just activated, and that the two cars waiting to turn had not yet...