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Ford v. City of Chicago

OPINION FILED MARCH 21, 1985.

EARLEE FORD, PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Edward C. Hofert, Judge, presiding.

JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 29, 1985.

Plaintiff Earlee Ford (Ford) was injured when the motorcycle he was driving struck a pothole in West Cermak Road in Chicago at about 2 p.m. on April 17, 1980. Ford filed suit against the city of Chicago alleging that improper road maintenance had caused the pothole. Following a jury trial, judgment was entered on the verdict assessing Ford's damages at $930,000 but finding him 95% comparatively negligent (for an award to Ford of $46,500), and Ford has appealed. He raises the following questions for our review:

1. Whether the jury's verdict that Ford was 95% comparatively negligent was against the manifest weight of the evidence;

2. Whether admission into evidence of Ford's motorcycle was so prejudicial as to outweigh any probative value, thus constituting reversible error;

3. Whether an ambulance report offered by Ford should have been admitted into evidence as an exception to the hearsay rule or as impeachment of a witness;

4. Whether a public utility's inspection report was properly admitted into evidence as a business record;

5. Whether the trial court erred in refusing to impose sanctions upon the city pursuant to Illinois Supreme Court Rule 219(c) (87 Ill.2d R. 219(c)), on the ground that it failed to comply with certain of Ford's discovery requests;

6. Whether certain questions posed at trial by counsel for the city were improper, irrelevant, and immaterial and consequently so prejudicial to require a new trial;

7. Whether the trial court committed reversible error in excluding the testimony of Ford's expert regarding line of vision testing.

We affirm.

The following is a summary of the pertinent pleadings and evidence produced at trial. Ford alleged in his complaint against the city that he was injured on April 17, 1980, as he was riding his Honda 750 motorcycle in the 3500 West block of Cermak Road in Chicago. According to his testimony as well as that of Carl Johnson, who was riding his own motorcycle on Cermak near Ford when the accident occurred, Ford was riding eastbound on Cermak at roughly 2 p.m. on the day of the accident. He had stopped behind an automobile in the center eastbound lane at the intersection of Central Park and Cermak because the light of the traffic control device was red. Ford was seated in the normal position with his feet on the lower foot pegs. When the light turned green, Ford proceeded behind the car in front of him. He was in the right-hand side of the left lane approximately two to three feet north of the dash marks. As the car slowed to make a left turn off Cermak, Ford also slowed. When he was roughly 40 to 60 feet behind the car, he turned on his right turn signal, checked the right mirror, looked over his right shoulder, double-checked the right mirror, and then began to change lanes. He was traveling roughly 20 to 25 miles per hour and leaning slightly to the right as he executed the lane change. He was thrown from the motorcycle when he hit a pothole in the right-hand lane of Cermak. Ford testified that only a few seconds elapsed from the time he began to change lanes until he struck the pothole. He stated he had been looking ahead slightly to the right and did not see the pothole because the car obstructed his vision.

Based upon the testimony of individuals who lived on Cermak or traveled the road, an employee of Peoples' Gas, Light & Coke Co, a safety and claims manager for the State of Illinois Department of Transportation, and Ford and Johnson, it was established that the area of the pothole had been previously repaved but had settled such that the riding surface in the wheel lane had been pounded down a considerable amount below the surrounding concrete. The pothole was roughly 4 to 5 feet wide and 8 to 9 feet long and was surrounded by and covered with gravel. A Chicago police department officer who investigated the accident shortly after it occurred also testified regarding the scene, but stated that he noticed no pothole or other depression in the road surface.

Both Ford and the city presented expert testimony regarding whether the road conditions were reasonably safe or whether they would cause a reasonable motorcycle rider to lose control under similar conditions. Marjorie Jennings, motorcycle safety coordinator of the Cook County motorcycle safety program, testified on behalf of Ford. Ronald Eltzeroth, a communications dispatcher and motorcycle instructor of police for the city of Champaign and motorcycle safety rider's course instructor at the University of Illinois, testified on behalf of the city. Jennings testified in essence that a similar motorcycle in similar conditions could go out of control because the motorcycle's instability during a lane change would render the pothole extremely hazardous, and that a rider under similar conditions would have difficulty seeing the pothole because his view would be obstructed by the car in front of him. Eltzeroth testified essentially that the average rider under similar ...


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