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Hagopian v. First Venture

OPINION FILED NOVEMBER 21, 1980.

RICHARD HAGOPIAN, PLAINTIFF-APPELLEE,

v.

FIRST VENTURE, LTD., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS MURPHY, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This is an appeal by defendant First Venture, Ltd., and by individual defendants Nicholas Vranas, Dominic Saviano and Michael Kobyiak, who were employed as doormen by First Venture, from a judgment entered on a jury's award of damages to plaintiff because of personal injuries allegedly suffered as a result of the negligent and wilful and wanton conduct of defendants. The issues presented on appeal are (1) whether the trial court should have instructed the jury on the issue of plaintiff's intoxication and (2) whether the verdicts were so inconsistent that the trial court could not properly enter judgments thereon.

The record discloses that plaintiff with his sister-in-law, Carolyn Hagopian, and two friends had attended a party where he consumed two drinks within a 2-hour period, after which they went to a Chicago night club operated by First Venture, arriving between 1 and 1:30 a.m. Plaintiff consumed two more drinks there, and he and the others were described by Mrs. Hagopian as being "high" and "feeling good" although she did not consider them to be intoxicated. It appears that after about two hours she and plaintiff stepped outside the club for some fresh air, and the record indicates substantial disparity as to subsequent events. Plaintiff testified that as he reentered the club with his sister-in-law, the individual defendants apprehended him, dragged him upstairs from the club, punched him repeatedly, and then left him outside; and that police arrived shortly thereafter and transported plaintiff to the hospital. He denied feeling "high" at the time.

Mrs. Hagopian said that as she was reentering the club, she turned to see if plaintiff was following her and saw that the club's doormen were dragging him up the stairs and beating him; that she ran for help, but the incident was over by the time she and her friends got outside, and at that time she observed that plaintiff was bleeding from the head and face. On cross-examination, she said that plaintiff was not intoxicated or behaving improperly and described his condition as merely "feeling good."

Glenn Solbrig, who was a member of plaintiff's immediate party on the night in question, testified that plaintiff was not intoxicated or acting unusual at the time, nor had they provoked or participated in any altercation at the club that night.

Defendant Vranas testified that plaintiff was in a hurry when he attempted to re-enter the club but that Vranas and another doorman blocked the doorway. Plaintiff tried to push through them, so other doormen were called and plaintiff was escorted out.

Defendant Kobyiak testified that he was aware of an incident on the night in question in which someone was taken out of the club but that he did not follow the doormen up the stairs to see what occurred. Kobyiak also acknowledged statements in his deposition that when Vranas and Saviano escorted plaintiff from the club he was kicking and "causing a scene." Kobyiak stated, however, that he could not recall the contents of that deposition.

Defendant Saviano testified that he was at the entrance of the club at the time of the incident but was unaware of any disruption involving plaintiff that night; that he did not help escort anyone from the club; that he did not see any altercation outside and did not hear anyone shout that plaintiff should be stopped.

John Durkin, a police officer, testified that he talked to plaintiff several times during his investigation of the incident; that on one occasion plaintiff said "he did in fact try to push his way back into the lounge, and that he had been drinking that night, and was intoxicated". Durkin admitted, however, that his police report made no mention of plaintiff's intoxication.

Eugene Hornowski, who was stationed at the entrance with Saviano that night, testified that when plaintiff ran past him, he shouted to have plaintiff stopped; that defendant Vranas and another doorman, Thomas Protz, then escorted plaintiff from the club; that while plaintiff was standing outside, one Eric Botcher, who was not an employee of First Venture and who was deceased at the time of trial, approached plaintiff, told him to shut up and struck him in the face; and that plaintiff was swearing, carrying on in a loud manner and threatening people outside the club.

Thomas Protz testified that he observed plaintiff arguing with a girl who then walked back into the club and plaintiff, after hesitating briefly, bolted through the club entrance; that when plaintiff was being escorted out, he was hysterical, screamed obscenities, and resisted by kicking and pushing. Protz also stated that Eric Botcher struck plaintiff.

Among the jury instructions tendered by defendant was the following pertaining to intoxication as evidence of contributory negligence and contributory wilful and wanton conduct:

"Whether or not a person involved in the occurrence was intoxicated at the time is a proper question for the jury to consider together with other facts and circumstances in evidence in determining whether or not he was contributorily negligent. Intoxication is no excuse for failure to act as a reasonably careful person would act. An intoxicated person is held to the same standard of care as a sober person."

The trial court sustained plaintiff's objection to that instruction on the ground that there was no evidence ...


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