Appeal from the Circuit Court of Lake County; the Hon. John L.
Hughes, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Steve M. Reeves and Mary Reeves, brought an action under the Liquor Control Act of 1934 (Ill. Rev. Stat. 1983, ch. 43, par. 135) against defendants, Brno, Inc., and Josef Smerda, seeking in count I of plaintiffs' second-amended complaint damages for personal injuries received by Steve Reeves at defendants' tavern, the Fireside Inn. Plaintiffs alleged that one of defendants' patrons became intoxicated at the tavern and subsequently injured Steve Reeves. Plaintiffs alleged in count II of the complaint that as a result of the injuries to her husband, Steve, Mary Reeves and her minor son were injured in their means of support. At a jury trial the jury found against both plaintiffs and for the defendants. In answering a special interrogatory, the jury found plaintiff Steve Reeves subject to the defense of complicity.
In this court plaintiffs present two main issues: (1) whether the principle of comparative fault should apply in dramshop cases, thereby permitting plaintiff Steve Reeves to recover in proportion to his degree of fault in causing the intoxication of the intoxicant who injured him; and (2) whether the trial court erred in allowing the jury to receive and consider certain allegedly improper and prejudicial evidence which went to the issue of proximate cause.
At the jury trial, plaintiff Mary Reeves testified that on the date of her husband's injury, March 16, 1981, she proceeded to the Fireside Inn after learning that her husband had been injured at the bar. Upon her arrival at the tavern, the witness noted that her husband's head was bleeding. When she asked him what had happened, he responded, "Don't worry. All I need is a few stitches." At the hospital Steve Reeves received approximately 100 stitches and then was allowed to go home.
According to the witness, her husband suffered from severe headaches after his injury. Gradually, he began acting very strangely. Mrs. Reeves related a number of weird incidents, including one in December 1981 when her husband never arrived at work because he heard voices which told him to pull off the road. After one strange incident the witness related that she took her husband to Elgin State Hospital, where he stayed for two days before being transferred to St. Therese Hospital in Waukegan.
During cross-examination, defense counsel asked Mrs. Reeves if her husband told her of an automobile accident in which he was involved on October 28, 1981. Plaintiffs' counsel objected, pointing out at a sidebar conference that the injuries from this accident were totally unrelated to plaintiff-husband's prior injury. Defense counsel claimed that he planned to bring out the fact that the only injury was to plaintiff's foot, and the substance of his argument was to show that plaintiff had made no complaints of headaches or blurred vision to the treating doctor. Counsel inferred this was the same doctor who had previously seen plaintiff after his head injury. Subsequently, the witness' recall of the automobile accident proved to be poor, as she did not remember exactly when the accident occurred or what part of her husband's body was injured, although she was unaware of any head injury.
A discussion outside the presence of the jury also occurred regarding plaintiff Steve Reeves' use of marijuana. The court stated that defense counsel was entitled to question Mrs. Reeves regarding this use on the theory that her testimony could show that marijuana was the cause of his present mental problems. The witness' subsequent testimony showed she had observed her husband smoke marijuana approximately three times, but only a couple of "tokes" (puffs).
In response to defense counsel's questions regarding whether the witness had told Dr. Barrionuevo, a psychiatrist whom Mr. Reeves had seen in December of 1981, that her husband's heavy drinking during the past two years had caused him to be irritable, argumentative, and to become occasionally involved in barroom fights, the witness stated, "I might have." She did not believe he was an alcoholic, however.
The witness testified her husband never lost consciousness after his arrival home from the hospital on March 16, 1981.
Plaintiffs' witness, Michael Ludford, a glazer and co-worker of Steve Reeves, testified that during the three months he and plaintiff had worked together, the two of them had smoked a small joint about 15 or 20 times and that Ludford always provided the marijuana. According to Ludford, the marijuana had never affected plaintiff's behavior or job performance.
On cross-examination, Ludford related that occasionally he and Reeves drank beer together and that twice he had seen plaintiff intoxicated. About three weeks prior to December 1981, plaintiff went "crazy," and Ludford asked his boss to transfer plaintiff to small window glass work.
The testimony of plaintiff Steve Reeves reflected that he had little, if any, recall of the fight and events leading to the injury to his head and that he was unable to answer many of the questions by counsel with any degree of certainty. Plaintiff tried to recall if he had a drinking problem prior to his accident, stating that he thought he had one but that he also thought it was under control at the time of the injury. On the day of his injury plaintiff believed he had two or three beers between 2 p.m. and 4 p.m. and four, five, or six beers between 4 p.m. and 6 p.m. Plaintiff stated that he thought his assailant, Gordon Roberts, was drinking, but he was not certain. Plaintiff's recollection was unclear as to how many games of pool he and Roberts played, who won, what the altercation concerned, and how he was injured. Plaintiff stated he recalled losing consciousness and that he did not recall seeing his wife at the tavern after the accident, or talking to her.
Following the accident, plaintiff recalled seeing his family physician, Dr. Lim, although he did not remember that this visit was on the day following his head injury. Plaintiff could also not remember whether he complained of any pain to the doctor. Further, the witness had no recollection of the October 28, 1981, automobile accident he had had nor could he remember whether he had injured his ankle in that accident. Finally, when asked if he remembered telling Dr. Barrionuevo, a psychiatrist he saw in December 1981, that several years ago while residing in Arizona he had been persecuted, shot at, and given a drink containing a mind-altering drug, plaintiff replied that he did not really recall that conversation.
Dr. Shakuntala Chhabria, a neurologist, testified that Steve Reeves was seen by her at the request of Dr. Barrionuevo in January 1982 because of plaintiff's lack of control in his arms and legs, headaches, personality changes, and other behavioral problems. The doctor related that she performed a neurological examination and general physical examination of Mr. Reeves and all tests, including a CAT scan and electroencephalogram, were normal, except for an EMG and seizure studies which showed evidence of peripheral neuropathy, or nerve damage. Based on the history given to the doctor by Mrs. Reeves, the doctor opined that plaintiff's headaches, dizzy spells, personality changes, and strange behavioral ...