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Clifton v. Nardi

OPINION FILED OCTOBER 17, 1978.

DONNA M. CLIFTON, ADM'R OF THE ESTATE OF MICHAEL A. CLIFTON, DECEASED, INDIV. AND FOR THE USE AND BENEFIT OF KEITH A. CLIFTON, A MINOR, PLAINTIFF-APPELLANT,

v.

FRANK J. NARDI, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. RUSSELL R. DeBOW, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 2, 1978.

Plaintiff, Donna M. Clifton, brought an action on behalf of herself and minor child under the Dramshop Act (Ill. Rev. Stat. 1975, ch. 43, par. 135) to recover for injuries to means of support resulting from the death of plaintiff's husband. On November 21, 1972, plaintiff's husband died of asphyxiation, allegedly after becoming intoxicated in a tavern owned and operated by defendant, Frank Nardi. The jury returned a verdict for defendant, and the court entered judgment thereon. Plaintiff's motions for judgment notwithstanding the verdict and for new trial were denied. Plaintiff appeals.

The following issues are presented for review: (1) whether the trial court erred in denying plaintiff's motions for judgment notwithstanding the verdict and for new trial; (2) whether the trial court erred in giving the jury instructions; and (3) whether the trial court erred in refusing to permit plaintiff to include the Illinois Pattern Jury Instruction definition in a hypothetical question propounded to an expert witness.

We affirm.

The following facts were adduced at trial: Defendant, Frank J. Nardi, owned the premises at 3108 West 59th Street in Chicago, Illinois, upon which he operated a neighborhood tavern known as Frankie and Johnny's. Walter Kosary owned the parking lot adjacent to defendant's tavern and owned and operated a funeral parlor located east of the tavern. Customers of the tavern sometimes used Kosary's parking lot.

On November 20, 1972, defendant worked in the tavern from noon until closing time, which was 2 a.m., and prepared and served all the drinks for the customers. Phillip Cardella worked in the tavern from 9 to 11:30 p.m. washing glasses. Decedent came into the tavern on November 20, 1972, at about 5 or 5:30 p.m. and stayed until 1:45 a.m. Defendant testified that decedent had approximately three drinks of whiskey and 7-Up per hour, and that each drink contained one ounce of whiskey. Defendant testified that he met decedent about one year prior to his death, and that during the year decedent came into the tavern three or four times a week after work and would stay until closing.

Clement Lewandowski testified that on November 20, 1972, he arrived at the tavern at either 4:30 or 6:30 p.m. and remained until 12:30 a.m. He saw decedent at the bar, drinking a whiskey and 7-Up, and he sat at the bar next to decedent. During the time there, Lewandowski had one or two drinks of whiskey and water per hour, and he estimated that decedent had one or two drinks per hour also. Lewandowski testified that at about 10:30 p.m. two women, Nancy Kelley and Rita Furlong, came into the bar and sat with him and decedent. Lewandowski left the tavern alone about 12:30 p.m., but decedent and the two women remained. Lewandowski testified that when he left, decedent seemed normal, and there was nothing unusual about decedent's speech or actions.

Rita Furlong testified that on November 20, 1972, she arrived at Frankie and Johnny's tavern at about 8 p.m. and joined decedent, Nancy Kelley and Clem Lewandowski at the bar. She left about 12:30 a.m. and drove home alone in her car. Ms. Furlong stated that she consumed three or four drinks during the four hours she was at the tavern, and she did not think that decedent was drinking at a rate of three or four drinks per hour. She testified that she did not notice anything unusual about decedent's conversation, and that "he seemed perfectly fine" when she left the tavern.

Defendant testified that the two women who were with decedent left shortly before decedent. Decedent left the tavern about 1:45 a.m., and defendant followed him out the door. Defendant saw decedent walk toward the parking lot next to his tavern. Defendant stated that decedent was not intoxicated when he left the tavern. Phillip Cardella also testified that he did not notice anything unusual about decedent on the night of November 20, 1972.

Walter Kosary testified that between 1:30 and 2 a.m. on November 21, 1972, he heard a car horn and loud talking in his parking lot, and he looked out his apartment window, which was above the funeral parlor. Kosary observed decedent standing near a tan automobile talking to two women who were occupying the car. The tan automobile then drove away, and decedent entered his automobile and started the engine. Thereafter, Kosary did not continue looking out of the window.

At about 8:30 a.m. on November 21, 1972, Kosary went out to the parking lot to take his children to school. He observed decedent's automobile in the same place as the night before. The engine was running, and the windows were fogged up. At the same time Mr. Greenwood, an employee of the tavern, also observed the automobile. Greenwood and Kosary opened the door and observed decedent lying on the front seat. Kosary observed no breathing or pulse, and Greenwood called the fire department. Police and fire department personnel arrived and took the body to Holy Cross Hospital, where decedent was pronounced dead.

Lewandowski and Kosary both testified that they had on previous occasions observed decedent asleep in his car while parked in Kosary's lot and after he had been drinking in defendant's tavern. Lewandowski stated that on at least two occasions he found decedent lying on the front seat of his car, but that the engine was not running on either occasion.

Richard Law, a police officer with the Chicago Police Department, testified that he was assigned to investigate decedent's death. He observed decedent's body at Holy Cross Hospital and noticed no marks of violence. Law also viewed the automobile in the parking lot and found no trace of violence, foul play or suicide. Law testified that he started the engine and could smell fumes in the car. Law stated that the tail pipe was broken so that it did not extend ...


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