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Murphy v. Jewel Companies

NOVEMBER 27, 1974.

PHILLIP R. MURPHY, PLAINTIFF-APPELLEE,

v.

JEWEL COMPANIES, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. CHARLES S. PARKER, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from the judgment of the trial court pursuant to the verdict of the jury in favor of the plaintiff. The complaint contained a wilful and wanton count and the verdict was a general verdict for $150,000.

The defendant contends there was no evidence to sustain the wilful and wanton charge; that the plaintiff was guilty of contributory negligence, and that the evidence failed to prove any negligence of the defendant which was a proximate cause of the injury.

The facts are simple, although the evidence is conflicting, on key points. The plaintiff, riding a motorcycle, had turned right from Green Bay Road onto Central Avenue, an east-west four-lane highway and was riding westerly on Central Avenue in the inner lane at a speed which he estimated was 35 to 40 miles per hour when the accident occurred. The defendant's tractor and trailer was going east on Central Avenue and at a point about 600 feet west of Green Bay Road, the tractor and trailer made a left turn to enter the Jewel Tea Co. parking lot, at which point the plaintiff's motorcycle collided with the rear portion of the trailer. The point of entry into the parking lot was that always used by Jewel Tea delivery vehicles; however, it actually was the exit from the parking lot for the general public and was marked: "One Way — Do Not Enter." Testimony established that the size of the Jewel Tea parking lot did not allow entry of large trailers via the usual entrance used by the public and it was necessary, in order for these large vehicles to pull around behind the building to the receiving dock, for entry to be made by way of what was normally the exit. These deliveries were always made early in the morning before the store was open for business and before the parking lot was being used by the public.

The driver of the rig testified that he was not familiar with the location of the entrance to the parking lot, not having been there before, but that he had been told by other drivers who had made deliveries there to proceed past the usual entrance and enter the lot at the point of exit, which was the second driveway.

The defendant's driver, Mauge, who had been joined as a defendant but, on plaintiff's motion, was dismissed from the suit with prejudice at the close of the plaintiff's case, testified that he activated his left turn signal at a point about 95 yards from the entrance to the parking lot, just after coming to a stop-and-go light, and started edging over into the inner lane. A Mr. Greenwald, who was in his car directly behind the truck just prior to the accident, testified that he saw the left turn signal activate, that he pulled from behind the truck over into the extreme right lane and that at that time he saw the motorcycle coming down the hill 75 to 100 feet from the truck. On cross-examination, however, he stated that the truck driver may not have put on his turn signal until 2 or 3 seconds before beginning his turn. A Mr. William Good, who was the transportation supervisor for the defendant, Jewel Tea Co., at the time, and a Mr. David Waldron, a police officer, both testified that the plaintiff, Murphy, made a statement to said police officer at the hospital, shortly after the accident, stating: "If I was paying attention, it wouldn't have happened." The police officer further testified that the plaintiff told him that he did see a turn signal on the vehicle.

At the trial, the plaintiff stated he did not observe any turn signals operating and the driver, Mauge, testified he did not observe the motorcycle until after he had made his turn and had gone across the road so that the trailer was on the apron of the parking lot and the rear portion of the trailer was blocking both westbound lanes of Central Avenue. The plaintiff, who testified he observed the trailer at a distance of two to five car lengths — roughly 35 to 90 feet — braked and downshifted his motorcycle but was unable to avoid striking the rear wheels of the trailer, causing permanent injuries to the plaintiff.

While the foregoing statement of the facts is admittedly sketchy, it is sufficient, we believe, for a consideration of what we consider to be the decisive issue in this appeal — that is, the propriety of the instruction on wilful and wanton conduct, objected to by defendant both at the time the instruction was given and in the post-trial motion. The defendant contends it was error on the trial court's part to submit this issue to the jury at all, since there was so little evidence to sustain the charge of wilful and wanton conduct, and as a matter of law it should have been removed from the case.

It is the plaintiff's theory that the design of defendant's parking lot was so defective as to indicate a conscious disregard for the safety of the plaintiff and other members of the public. The accident occurred, the plaintiff contends, by reason of the fact that the defendant (1) designed a parking lot where the defendant's supply vehicles were required as a practical necessity to enter the lot against the normal flow of traffic and (2) allowed a driver unfamiliar with the location to attempt a delivery under the adverse condition of having to make an abnormal entry. This combination of circumstances, the plaintiff maintains, caused the driver to be distracted so that he neglected to give a timely signal of his intention to turn left or to see the plaintiff approaching. The plaintiff does not contend that the design of the lot in and of itself amounts to wilful and wanton conduct, but he says the design of the lot, together with allowing an unfamiliar and unaccompanied driver to make the delivery — this combination of facts — constituted wilful and wanton conduct. Hence, the plaintiff argues, if these facts are established, the jury is within its province in bringing in a verdict based on wilful and wanton conduct.

• 1 Although no precise definition of wilful and wanton conduct is possible, what constitutes wilful and wanton conduct has been described or summed up in many Illinois cases. It is clear that it is broader than ill will, for some of the cases contain no element of ill will; on the other hand, it goes far beyond mere inadvertence such as we find in the case of ordinary negligence, for it requires a conscious disregard for the safety of others.

The recent case of Hocking v. Rehnquist (1969), 44 Ill.2d 196, 201, cites the language of Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, as to what amounts to wilful and wanton conduct:

"`A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by the exercise of ordinary care.'"

In his charge to the jury, the trial court gave the IPI instruction 14.01 as follows:

"When I use the expression `wilful and wanton conduct' I mean a course of action which shows an utter indifference to or conscious ...


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