Appeal from the Circuit Court of Effingham County; the Hon.
William R. Todd, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 23, 1985.
This appeal is from a judgment entered against defendant in the amount of $185,000 following a jury trial in an action for damages in the circuit court of Effingham County.
Plaintiff, Gaunt & Haynes, Inc., owned and operated a grocery store in Effingham. Defendant, Moritz Corporation, was the contractor under contract with the State of Illinois to widen the street on which plaintiff's store was located. As a result of the street construction by defendant, access to plaintiff's store was interrupted; however, the degree of the impairment of access was disputed. Plaintiff's business suffered a loss of customers and revenue as a result of being deprived of access to its premises; however, the amount of damages attributable to the loss of access was also disputed. Plaintiff's business eventually failed within five months after construction was completed. Plaintiff brought the instant suit contending that defendant was negligent in failing to allow for sufficient access to plaintiff's property during construction. Plaintiff also sought punitive damages for wilful and wanton misconduct. The jury denied plaintiff punitive damages but returned a verdict in favor of plaintiff in the amount of $185,000 based on defendant's negligence.
• 1 On appeal, defendant first contends that plaintiff's action is one which seeks recovery in tort solely for economic loss and is therefore prohibited under the rationale of Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill.2d 69, 435 N.E.2d 443. However, we conclude that plaintiff's action more properly is characterized as one for damages for loss of access to its property. Such actions have long been sanctioned. See Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill.2d 265, 271, 449 N.E.2d 852, 855-56; Department of Public Works & Buildings v. Wilson & Co. (1975), 62 Ill.2d 131, 139, 340 N.E.2d 12, 15-16; Rigney v. City of Chicago (1881), 102 Ill. 64, 78.
• 2 Defendant, relying on Chicago Flour Co. v. City of Chicago (1909), 243 Ill. 268, 90 N.E. 674, next contends that the consequent temporary loss of access to property occasioned by the construction of a public improvement is not compensable. While the court in Chicago Flour Co. determined that a contractor working under a governmental contract is not liable for direct or consequential injuries resulting as a necessary incident from performance of the work in a proper manner 243 Ill. 268, 271, 90 N.E. 674, 675-76), it is well settled that this rule of non-liability does not exempt a contractor from liability where the injury arises from the contractor's negligent performance of the work. (Smith v. General Paving Co. (1974), 24 Ill. App.3d 858, 861, 321 N.E.2d 689, 691; see also 64 Am.Jur.2d Public Works & Contracts sec. 135 (1972).) In view of the fact that defendant was charged with and found guilty of negligence, defendant properly may be held liable for the resulting damage.
• 3 Defendant next contends that the circuit court erred in not granting its motion for judgment notwithstanding the verdict because the jury's verdict was against the manifest weight of the evidence. At the outset, we note that motions for directed verdict or for judgment notwithstanding the verdict are properly granted "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.
In this regard, liability based on negligence arises only if the defendant has committed a breach of duty owed to persons whose injuries proximately resulted from the breach. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 162, 456 N.E.2d 116, 118-19; Zimmermann v. Netemeyer (1984), 122 Ill. App.3d 1042, 1044, 462 N.E.2d 502, 504.) Defendant does not dispute the existence of a legal duty not to unreasonably interfere with plaintiff's access to its store. Indeed, the contract governing the street project expressly provided: "Whenever a commercial property is served by two or more entrances, one entrance shall be left open at all times." However, defendant urges: (1) that there is insufficient evidence to support the jury's finding that defendant committed a breach of this duty, and (2) that even if such a breach occurred, there is insufficient evidence to support the jury's finding that the breach proximately caused the injury claimed.
Both the question of whether there has been a breach of duty and the question of whether the breach proximately caused an injury are factual determinations. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 163, 456 N.E.2d 116, 119; Zimmermann v. Netemeyer (1984), 122 Ill. App.3d 1042, 1044-45, 462 N.E.2d 502, 505.) We conclude that the evidence introduced at trial presented a disputed question as to both the existence of a breach of duty and whether the breach proximately caused the injury claimed. As such, the resolution of the questions were within the sole province of the jury. The grant of judgment notwithstanding the verdict under such circumstances would have been improper; therefore, the trial court's refusal to do so was not error.
With regard to the question of whether there was a breach of duty, plaintiff presented witnesses who testified that plaintiff's store was denied access for an unreasonable length of time during the construction. Plaintiff's president, the manager of the shopping center where plaintiff's store was located, owners of nearby businesses and a traffic-engineering consultant testified on plaintiff's behalf. Rather than our reiterating specific testimony, suffice it to state that all of these witnesses testified to the effect that plaintiff's store was deprived of adequate access during construction and that the lack of access resulted in a loss of customers.
• 4 Defendant urges that the testimony of these witnesses was "successfully rebutted by objective and impartial expert witnesses" who testified on defendant's behalf that adequately designed temporary accesses to plaintiff's property were installed and maintained. However, it is well established that a jury's verdict cannot be set aside merely because there is conflicting evidence on factual questions. (Pietka v. Chelco Corp. (1982), 107 Ill. App.3d 544, 553, 437 N.E.2d 872, 879-80.) Such contradiction affects only the weight to be given the testimony. As such, the resolution of contradictory testimony is not a function of a reviewing court, which cannot reweigh the evidence. That task rests with the jury. Where, as here, credible evidence supports the jury's finding, this court may not substitute our judgment for that of the jury. Didier v. Jones (1978), 61 Ill. App.3d 22, 27, 377 N.E.2d 572, 576.
With regard to the question of whether the breach proximately caused the injury claimed, while defendant acknowledges that plaintiff suffered a decline in customers and revenue, defendant contends that other factors besides its conduct could have contributed to this decline. Defendant draws our attention to the fact that during the period in question, two additional grocery stores opened in the same market area and that plaintiff was engaged in a price war with its largest competitor. Defendant contends that in order to find that defendant's conduct proximately caused the injury, the portion of total damages sustained which is properly attributable to defendant's conduct was required to be ascertained. It urges that it is impossible accurately to assign the decline in plaintiff's business among the various causes. In this regard, defendant also maintains that owing to the complexity of apportioning damages, expert testimony should have been required to establish that defendant's conduct was causally related to plaintiff's injury. In support of this latter contention, defendant relies upon Hyatt v. Cox (1965), 57 Ill. App.2d 293, 206 N.E.2d 260, in which the court stated that in situations in which the determination of causal relationship involves a special skill or trade or knowledge of science not common to the average juror, the testimony of laymen not possessing the special skill or knowledge may be insufficient to establish a prima facie showing of a causal relationship. Defendant thus urges that plaintiff failed to meet its burden of proof by failing to present any such expert testimony.
• 5 We conclude that the agreement advanced by defendant confuses the problems involved with the determination of proximate cause and the problems involved in apportioning damages among multiple causes. Once the trier of fact has made a determination that a defendant's conduct has been the proximate cause of damage suffered by a plaintiff, a further question then may arise as to the portion of the total damage sustained which properly may be assigned to the defendant's conduct as distinguished from other causes. (Cf. Ray v. Cock Robin, Inc. (1974), 57 Ill.2d 19, 23, 310 N.E.2d 9, 11-12.) We agree with the defendant that the jury did not expressly apportion damages among the various possible causes. However, there is ample testimony in the record to the effect that the lack of access to plaintiff's store caused a substantial decline in plaintiff's customers and revenue. We believe that such conclusion requires no special expertise. Based on this evidence, the jury was entitled to find that defendant's conduct proximately caused an injury to plaintiff.
• 6 We reject defendant's further contention that the trial court erred in refusing to instruct the jury that the doctrine of comparative negligence was applicable to the case at bar. The recovery sought by plaintiff was limited to recovery of those damages resulting from the loss of access to its property. The evidence that two additional grocery stores opened nearby and that plaintiff engaged in a price war with its largest competitor has no relevancy as to whether plaintiff suffered a loss which was proximately caused by defendant's interruption of its access. These facts could only relate to the amount of damages resulting from the loss of access. (Cf. Clarkson v. Wright (1985), 108 Ill.2d 129 (failure to use seat belt).) We ...