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Taylor v. City of Chicago

OPINION FILED MAY 13, 1983.

EUGENE TAYLOR, PLAINTIFF-APPELLEE,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Warren D. Wolfson, Judge, presiding.

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment against defendant city of Chicago for injuries sustained by plaintiff Eugene Taylor when he allegedly fell on a defective sidewalk. Defendant raises the following issues: (1) whether the trial court erred in granting plaintiff's motion in limine to exclude any evidence of intoxication, and (2) whether the plaintiff's closing rebuttal argument that defendant did not call a witness whose testimony would have been adverse constituted prejudicial error. The pertinent facts follow.

On August 7, 1976, plaintiff was walking on the sidewalk in the vicinity of 900 Montrose when he fell and fractured his ankle. Police officers Belcastro and Kindle arrived at the scene of the accident and took plaintiff to Weiss Memorial Hospital for treatment. While at the hospital, Officer Belcastro filled out a police report which stated, among other things, that plaintiff was intoxicated. Plaintiff filed a complaint against the city to recover damages for his injury and alleged that a defect in the sidewalk was the cause of his fall.

Prior to the commencement of trial, the court granted plaintiff's motion to bar defendant from presenting any evidence of plaintiff's intoxication. After deletion of references to drinking and intoxication, the police report was admitted into evidence as Officer Belcastro's past recollection recorded. The only witnesses at trial, plaintiff and Officer Belcastro, presented conflicting evidence regarding the site of the accident, which testimony was crucial in determining whether there was a defect in the sidewalk. During closing rebuttal argument plaintiff's counsel argued, over objections, that had defendant called Officer Kindle as a witness, his testimony would have supported plaintiff's version of the accident. The jury returned a verdict of $56,000 in favor of plaintiff. Defendant appeals.

OPINION

• 1 Defendant argues first that the court erred in excluding evidence of plaintiff's intoxication as this precluded assertion of the intoxication as a proximate cause of his injury. The evidence of plaintiff's intoxication was contained in the police report made by Officer Belcastro. Although police reports are generally not admissible in Illinois (Jacobs v. Holley (1972), 3 Ill. App.3d 762, 279 N.E.2d 186; 73 Ill.2d R. 236(b)), their use has been allowed to refresh the recollection of a witness (Hall v. Checker Taxi Co. (1969), 109 Ill. App.2d 445, 248 N.E.2d 721), and they have been admitted into evidence as past recollection recorded (Wilkinson v. Mullen (1975), 27 Ill. App.3d 804, 327 N.E.2d 433; see Rigor v. Howard Liquors, Inc. (1973), 10 Ill. App.3d 1004, 295 N.E.2d 491). In Illinois there are four requisites to the admission of a police report as past recollection recorded: (1) lack of any independent recollection of the witness regarding the occurrence; (2) failure of the report to refresh the recollection of the witness; (3) recording of the facts in the report at the time of the occurrence or soon thereafter; and (4) establishment of the truth and accuracy of the report when made. (Wilsey v. Schlawin (1975), 35 Ill. App.3d 892, 342 N.E.2d 417; see Strope v. Chicago Transit Authority (1979), 71 Ill. App.3d 987, 389 N.E.2d 1374.) In the instant case a proper foundation was laid for the admission of the police report as past recollection recorded and, in fact, no challenge has been made to such admission.

• 2, 3 Regarding the admission of evidence of intoxication, it is well established that the mere consumption of alcoholic beverages does not, by itself, establish intoxication; there must be proof of facts tending to show that the drinking resulted in intoxication. (McCullough v. McTavish (1978), 62 Ill. App.3d 1041, 379 N.E.2d 890; Shore v. Turman (1965), 63 Ill. App.2d 315, 210 N.E.2d 232.) Intoxication may be shown by opinion evidence, and even a non-expert may testify as to his opinion, based upon experience and observation, whether a person was intoxicated. (Kessner v. McDonald (1977), 46 Ill. App.3d 333, 360 N.E.2d 1178; Doria v. Costello (1974), 22 Ill. App.3d 505, 318 N.E.2d 40.) Officer Belcastro testified that prior to the time of plaintiff's accident he had been assigned to the Mass. Transit Unit for over seven years and, as a part of his regular duties, he dealt with intoxicated persons on a daily basis. Thus, he had adequate experience upon which to base a statement as to whether plaintiff was intoxicated.

In the instant case the evidence of intoxication contained in the police report consisted of Officer Belcastro's responses to various items on the report as shown below (the officer's responses are in italics):

"26. Cause of Injury (Instrument or Means): Drinking & fell

27. Reason (Accident, Ill Health, Etc.): Too much to drink

31. Sobriety of Victim (check one): ____ Sober; ____ Had Been Drinking; X Intoxicated

37. Narrative: (The Indicated Sobriety of Victim or Witness is the apparent condition when reported.)

____ Apparently UNFOUNDED, at the time of the preparation ...


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