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Gardner v. Geraghty

OPINION FILED JULY 7, 1981.

BELLE GARDNER, ADM'X OF THE ESTATE OF SHELDON GARDNER, DECEASED, PLAINTIFF-APPELLANT,

v.

JOHN W. GERAGHTY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES L. GRIFFIN, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff Belle Gardner brought this wrongful death action as administratrix of the estate of her late husband, Sheldon Gardner, who died as a result of injuries sustained when an automobile driven by defendant John W. Geraghty struck him. The trial court dismissed plaintiff's comparative negligence count. A jury found for defendant on the remaining negligence counts, and the jury returned a special interrogatory finding decedent guilty of contributory negligence. Judgment was entered for defendant. Plaintiff asks this court to consider (1) whether the circuit court erred in dismissing the comparative negligence claim and in submitting to the jury a contributory negligence interrogatory; (2) whether the circuit court erred in striking plaintiff's claim for punitive damages; (3) whether plaintiff's claim for prejudgment interest was properly dismissed; (4) whether testimony regarding decedent's careful habits was properly ruled inadmissible; and (5) whether the circuit court properly refused to instruct the jury regarding a pedestrian's right-of-way when in a crosswalk.

On November 27, 1978, at about 5:15 p.m., Sheldon left his home at 1513 Cleveland Street, Evanston, to walk to a local cleaners. He wore a dark brown overcoat and a dark brown hat. It was dark outside and the pavement was wet from melting snow. He walked in an easterly direction for about a block and a half until he reached the intersection of Asbury and Cleveland Streets. At approximately 5:20 p.m., defendant, who was driving his automobile south on Asbury Street, saw Sheldon walking at a medium pace across the street 8 feet from the southwest corner *fn1 of the intersection of Asbury and Cleveland Streets. At that time defendant's car bumper was approximately even with the northwest curbline defining the north side of Cleveland Street. Sheldon was about 30 feet in front of defendant. Defendant's car was traveling at about 20 miles per hour and defendant could see from 20 to 40 feet in front of him. Defendant applied his brakes, attempted to swerve the car to the right, but skidded an estimated 30 feet until the left front portion of his car hit Sheldon. Sheldon flew up onto defendant's hood and broke the left portion of the front windshield. An investigating police officer was called to the scene and found defendant's car located a few feet north of Sheldon and within a portion of an unmarked crosswalk. Sheldon's body was without the crosswalk area. About 30 feet of skid marks running in a north-south line terminated at the apparent point of impact. Measurements of the scene were taken. Sheldon was removed to a nearby emergency care facility where he subsequently died of internal injuries sustained in the collision.

Defendant testified at trial that he did not see decedent while the latter was on the sidewalk or stepping off the sidewalk. Defendant was driving with his headlights on. No traffic control devices were present on Asbury at the intersection with Cleveland Street.

Plaintiff's initial complaint alleges defendant's negligence caused decedent's death. It alleges decedent was free from contributory negligence. The complaint seeks recovery for wrongful death, funeral and other expenses, and pain and suffering. An amendment to that complaint was filed a year later alleging that defendant's conduct was wilful and wanton. It seeks punitive damages. That count was dismissed upon defendant's motion. On the first day of trial, March 11, 1980, plaintiff filed another amendment to her complaint. This amendment alleges a comparative negligence theory of recovery. It also seeks recovery of prejudgment interest. The trial court dismissed both counts.

I

Plaintiff raises several contentions which may be combined as one issue: whether the circuit court erred in dismissing the comparative negligence claim and in submitting to the jury a contributory negligence interrogatory.

A.

• 1 Plaintiff advances several arguments in support of an affirmative finding on this issue. Defendant, however, claims the issue is not properly before this court. Defendant asserts plaintiff cannot now be heard to argue upon a comparative negligence theory when plaintiff proceeded to try the case on the theory decedent was free from contributory negligence. Defendant analogizes plaintiff's conduct with that of a defendant who answers over an overruled section 45 motion (Ill. Rev. Stat. 1979, ch. 110, par. 45) attacking a complaint. (See generally Harry v. Harry (1976), 38 Ill. App.3d 776, 778, 349 N.E.2d 69, appeal denied (1976), 64 Ill.2d 596.) The rationale supporting such a rule (i.e., adequate notice of claim cures error in form) does not apply with equal force to the present situation. The instant plaintiff's claim is dependent upon a theory of recovery and not upon her legal framing of that theory.

Defendant also contends the issue of comparative negligence was waived at trial. A review of the record discloses plaintiff did not acquiesce in the court's ruling on defendant's motion to dismiss the comparative negligence count. The trial court was well aware of plaintiff's arguments at each stage of the proceedings. Plaintiff did not reiterate those arguments upon each adverse ruling. Plaintiff merely chose to respect the trial court's ruling and preserve her record for appellate review. Accordingly, we conclude plaintiff did not waive the issue and it is properly before this court.

B.

Plaintiff contended at oral argument that the substantive issue before us (i.e., whether comparative negligence was a proper theory at trial) is governed by, inter alia, our supreme court's recent opinion in Alvis v. Ribar (1981), 85 Ill.2d 1, 25, wherein the doctrine of comparative negligence was adopted as the law of this State. The court's initial opinion, however, was subsequently modified upon denial of rehearing. The modification primarily affects the opinion's application to other cases which raise the instant issue. As modified, Alvis v. Ribar "shall be applied to * * * all cases in which trial commences on or after June 8, 1981, * * *." (85 Ill.2d 1, 28.) The instant trial began more than a year prior to that date. Thus, our determination is governed by case law prior to Alvis v. Ribar.

• 2 In Maki v. Frelk (1968), 40 Ill.2d 193, 196, 239 N.E.2d 445, the supreme court rejected arguments similar to those advanced here *fn2 and it refused to judicially adopt a comparative negligence doctrine. As a result, that court reaffirmed the then established principle that an injured person's contributory negligence operates as a bar to recovery by him in a negligence action. Illinois' wrongful death statute (Ill. Rev. Stat. 1977, ch. 70, pars. 1, 2) incorporates the common law theories of recovery and defense, and case law has engrafted the doctrine of contributory negligence upon actions under the statute. (Nudd v. Matsoukas (1956), 7 Ill.2d 608, 613, 131 N.E.2d 525.) Prior to June 8, 1981, Maki and Nudd represented Illinois law regarding application of the doctrine of contributory negligence. We are bound by these pre-Alvis decisions, and it is not within our authority to overrule or modify them. (Stopka v. Lesser (1980), 82 Ill. App.3d 323, 326, 402 N.E.2d 781, appeal denied (1980), 81 Ill.2d 599; Anderson v. Anderson (1976), 42 ...


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