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Ray v. Cock Robin

FEBRUARY 23, 1973.




APPEAL from the Circuit Court of Du Page County; the Hon. ALFRED E. WOODWARD, Judge, presiding.


Rehearing denied March 29, 1973.

This action was brought in the Circuit Court of DuPage County by the administrator of the estate of Kimberly Maria Ray, deceased, and three minor children by their mothers and next friends, as against Cock Robin, Inc., Edward Zawacki, d/b/a North Grace Super Sinclair Service, and Edwin and Delores Cholewa individually. The action was instituted by reason of the fact that the automobile driven by Edwin Cholewa entered upon the business premises of Cock Robin, Inc., and struck a wooden bench on which the deceased minor, Kimberly, and three other minor plaintiffs were seated. The cause was tried before a jury. On appeal the plaintiffs-appellants principally assigned erroneous rulings on evidence which they assert prevented them from presenting their case fairly, and also complained that counsel for one of the appellees made an improper argument. There is also error claimed in the direction of the verdict on liability as to defendant Cholewa.

On June 3, 1968, Cock Robin, Inc., owned and operated a drive-in ice cream establishment at the southwest corner of a T-intersection of River Road and Cherry Street in River Grove, Illinois. River Road is a north-south main artery of travel with four traffic lanes, two in each direction. Cherry Street is an eastbound one-way street ending at River Road.

Cock Robin's building faced River Road and, judging from a pictorial exhibit in the record, sat back about a distance of 20 feet from a sidewalk running parallel with River Road. Between the sidewalk and the road was a grass parkway about four feet in width, except at a point about even with the south side of the building where there was a driveway into a parking area. The north side of the building was within a few feet of a sidewalk running east and west, parallel with Cherry Street. There was no curbing along Cherry Street and the parkway between the sidewalk and the street had been blacktopped, as had been the area in the front and to the south of the building. In the open area between the building proper and the sidewalk along River Road, which area appears to be about 20 x 30 feet, Cock Robin had placed a bicycle rack and three wooden picnic tables. At the south edge of this area there were concrete vertical bumper blocks, of the kind commonly used in parking lots, to separate the picnic area from the parking area to the south. On the Cherry Street side of the picnic area there were no blocks or barriers of any nature to close off the area or to impede the progress of a vehicle.

About four months prior to the occurrence, Edwin Cholewa purchased a 1959 automobile for $200, and about a week before the occurrence took it to a service station owned by Edward Zawacki for a tire repair and a brake adjustment. According to evidence given at the trial, both the brakes and the tires were in extremely defective condition. It appears also that the vehicle was equipped with power steering. On the afternoon of June 3, 1968, at about 4:00 o'clock, Cholewa was driving the car south on River Road. As he approached the Cherry Street intersection, the car veered off the road diagonally to the right and continued on a path which took it across Cherry Street, across the blacktopped parkway and the sidewalk along Cherry Street and into the picnic area in front of the Cock Robin building. In the picnic area it struck the bicycle rack and one of the picnic tables, hit a pole supporting a canopy in front of the building and continued on into the parking lot south of the building where it struck another car. Seated at the picnic table which was struck, eating ice cream just purchased at the drive-in, were Victoria Nicoletti, age 9, Tina Nicolleti, age 1 1/2, Janet Spain, age 7, Kimberly Ray, age 4 1/2, and Denise Ray, age 9. Denise Ray escaped injury, but Kimberly Ray received injuries from which she died about a week after the accident. The other three girls were seriously injured.

At the trial Cholewa testified that he was traveling about 35 miles an hour on the inner southbound lane of River Road, when, at a point about 1/3 of a block from Cherry Street, he noticed traffic congestion ahead, and that he put his foot on the brake pedal and found he had no brakes. He said he first tried to steer the car into a forest preserve along the east side of the road but could not do so because of northbound traffic; that he then noticed Cherry Street and turned sharply to the right intending to turn into Cherry Street; that as he did so he "had no wheel and couldn't turn" sharply enough; that if he could have turned more he would have made it down Cherry Street. The car then continued into the picnic area. He conceded on cross-examination that he had not shut off his engine and that he had not attempted to use his emergency brake.

A suit was brought on behalf of the deceased child and the injured children in which the defendants were Cholewa, Cock Robin, Inc. and Zawacki. At the conclusion of all the evidence, the trial court directed a verdict against Cholewa on the issue of liability, and the jury thereafter returned a verdict, upon which judgment was subsequently entered, finding in favor of Cock Robin and Zawacki and assessing damages against Cholewa in favor of the following: Janet Spain — $76,500; the administrator of the estate of Kimberly Ray — $12,000; Victoria Nicoletti — $6500; and Tina Nicoletti — $4400.

As previously noted, it is the plaintiffs who have prosecuted this appeal. It is their first contention that the trial court erred when, on the motion of Cock Robin, it refused to permit the testimony of Sheldon Schaumacher, an expert witness tendered by plaintiffs. On the offer of proof, to the extent relied upon by the brief of plaintiffs, it was stated that the witness, a traffic engineer with extensive experience in the traffic aspects of drive-in businesses, would express opinions that any area within 30 feet of a roadway is considered most dangerous; that the placement of the picnic tables in the present case created an inherently dangerous condition; that the effect of guard rails, or barricades or blocks along the northern or Cherry Street side of the picnic area would have been to slow down or deflect a vehicle entering the premises from that side; and that the Cock Robin premises as they existed on June 3, 1968 constituted a dangerous and hazardous condition and did not comply with safety rules or engineering safety standards. The rules and standards referred to were not further identified, nor do they appear in the record.

• 1 The matter of expert testimony has been frequently considered by courts of review in this jurisdiction and, as stated by the court in Miller v. Pillsbury, 33 Ill.2d 514, 516, "* * * the trend is to permit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation." As stated by the court in Abrahamson v. Levinson, 112 Ill. App.2d 42. 50: "There must be a need apparent from the record in the case for scientific knowledge, expertise and experience, which will aid the jury to a correct and a just result." The trial court here ruled there was nothing complicated or difficult to comprehend with regard to the conditions caused by the location of the picnic area, and in this day of the drive-in and the automobile, as well as frequent traffic mishaps, we are inclined to agree.

• 2 Photographic evidence in the record portrayed quite clearly and accurately the location of the picnic area in relation to the nearby streets, and in our opinion the average person could know and comprehend, without the assistance of expert testimony, that the location of the area could in some instances expose the picnic area to the dangers of traffic proceeding along River Road and Cherry Streets, and that guard rails, barriers or blocks along or in front of the north line of the picnic area would have the effect of slowing, stopping or deflecting a vehicle coming onto the premises from that direction. The decisions relied upon by plaintiffs are not pertinent. In Miller v. Pillsbury, 33 Ill.2d 514, there were no eyewitnesses qualified to testify to an accident in which the drivers of the colliding vehicles both perished, and under the circumstances expert testimony reconstructing the accident was deemed to be permissible; in Merchants Bank of Aurora v. Elgin, Joliet & Eastern Ry. Co., 121 Ill. App.2d 445, where a train-truck collision at a crossing in an industrial area was involved, it was held that the interaction of lighting conditions, retroflection, traffic and weather factors, relative speeds of trains and vehicles, and distraction elements were of sufficient difficulty of comprehension and explanation to justify the assistance of expert testimony; and, finally, in Sutkowski v. Universal Marion Corp., 5 Ill. App.3d 313, involving a mammoth strip mining shovel, this court held that an expert should have been permitted to testify to design alternatives which could and should have been installed at the time of the manufacture of the machine. Comparable circumstances, complexities and matters were not involved in the present case, and we thus find no error in the ruling of the trial court on this issue.

• 3 Plaintiffs also contend that the court erred in refusing an offer of proof by Thomas Lambert, a non-expert, who would have testified that he had, in the fall of 1968, noted the location of the picnic area and the heavy traffic on River Road, and that he had told the man in charge of the drive-in that the condition was dangerous and that a guard rail should be put up to protect people at the tables. This contention, however, has not been pursued by argument or the citation of pertinent authority and will be deemed to have been abandoned. Quinn v. Larson, 77 Ill. App.2d 240; Flynn v. Vancil, 41 Ill.2d 236.

• 4 The law is well settled that evidence of prior accidents, occurring at the same place or with the same instrumentality, is competent, not for the purpose of showing independent acts of negligence, but for the limited purposes of showing that the common cause of such accidents was the unsafe condition or thing, and that the frequency of such accidents tends to show knowledge of such condition. (E.g., Moore v. Bloomington, Decatur and Champaign R.R. Co., 295 Ill. 63, 67; Smith v. City of Rock Island, 22 Ill. App.2d 389, 399; Lineen v. City of Chicago, 310 Ill. App. 274, 283; Shepard v. City of Aurora, 5 Ill. App.2d 12, 26.) Based upon this rule it is plaintiffs' next contention that the trial court erred in refusing to admit the testimony of their witness, John Reinert.

On an offer of proof, Reinert testified that in the early part of May, 1968, as he was buying ice cream at the drive-in, he observed a southbound auto make a sharp right turn off River Road into Cherry Street, the eastbound one-way street, after which the auto veered to the left and came into the picnic area where it struck the bicycle rack and pushed it into a bench in the picnic area. According to the witness, who also testified that the condition of the premises was the same at the time of both occurrences, he spoke to the driver and was told that when the latter began his turn into Cherry Street he discovered that it was a one-way street and tried to correct his mistake. Following the incident, Reinert said he spoke to the person on duty at the drive-in about the dangerous location of the picnic benches, and was advised that such person was aware of the dangerous condition and had spoken to the property owners about it. In refusing to permit the testimony of Reinert to be given to the jury, the trial court, confining itself to a ...

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