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Curl v. Mcdonough District Hospital

OPINION FILED JULY 25, 1986.

MARK A. CURL, PLAINTIFF-APPELLANT,

v.

MCDONOUGH DISTRICT HOSPITAL, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McDonough County; the Hon. U.S. Collins, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Plaintiff sued defendant McDonough District Hospital and others in the circuit court of McDonough County for personal injuries that he sustained when he and the bicycle he was riding collided with a trash receptacle on defendant's property. The case was tried before a jury, and a verdict was returned for the Hospital.

Plaintiff appeals from the denial of his post-trial motion on grounds that the jury's verdict for defendant is contrary to the manifest weight of the evidence, that certain rulings of the trial court on evidentiary matters deprived plaintiff of a fair trial, and that the trial court erred in denying plaintiff's motion for a directed verdict at the close of all evidence. We affirm.

In a prior appeal, we held in an unpublished order (Curl v. McDonough District Hospital (1984), 120 Ill. App.3d 1170 (unpublished Rule 23 order)) that the trial court had not erred in denying defendant's motion for summary judgment. The facts as presented for our consideration in that appeal follow. Plaintiff, a high school student at the time, was seriously injured when the bicycle he was riding collided with a large metal refuse dumpster situated on a roadway running between McDonough District Hospital's hospital and its medical clinic in Macomb. The hospital had contracted with Marshall Erdman & Associates, Inc., for the construction of a suite of doctors' offices in a wing of the medical clinic. Marshall Erdman subcontracted with LeRoy Brown & Sons, Inc., for trash dumpsters to be used during the construction project. The particular dumpster involved in the accident was placed on the roadway by employees of LeRoy Brown at the direction of a supervising employee of Marshall Erdman and for the convenience of the construction workers. The dumpster was a red painted metal combination truck-box/refuse container measuring 20 feet by 8 feet by 4 feet with metal wheels, commonly referred to as a "roll-off."

On the date of the accident, May 13, 1980, plaintiff observed the dumpster as he pedalled westward along the roadway on his way to visit his girlfriend that afternoon. Later, on his return home, he again observed the dumpster when he was approximately 110 yards away from it, but was amnesiac from that point until he awoke in an ambulance. The day was sunny, the brakes on plaintiff's bicycle were in good working order, and there were no known witnesses to the accident.

Linda Bedwell, a nurse, heard the collision from her station in the medical-clinic building. When she went to the window facing the roadway, she saw the plaintiff and his bicycle lying on the pavement at the northwest corner of the dumpster. She did not see or hear any vehicles in the vicinity of the accident.

The plaintiff has a medical history of epilepsy and was taking medication at a therapeutic level on the date of the accident. His attending neurologist, Dr. David Good, testified that the plaintiff's seizures had occurred in connection with sleep, but he had not had one for 1 1/2 years prior to the accident. In the opinion of the neurologist, it was extremely unlikely that the plaintiff had suffered an epileptic seizure prior to the collision, but he may have had one as a consequence of it. The plaintiff has been paralyzed below the waist since the accident.

Upon remand from the interlocutory appeal, the matter proceeded to trial and the jury found for the defendant hospital, as aforesaid. As a result of the trial, the facts were expanded and clarified in certain material respects which should be explained before addressing the matters raised for our consideration today. Most notably, plaintiff now acknowledges that the epileptic seizure he suffered on May 13, 1980, most likely preceded his head-on collision with the dumpster. Medical evidence introduced at trial tended to establish that even though plaintiff's history showed no daytime seizures since he was a young child, there was a 20% chance that the next seizure plaintiff suffered would be a daytime seizure, and this could occur despite the fact that plaintiff's medication was maintained at a therapeutic level.

With respect to the dumpster, it appears from the record before us that the dumpster was placed by former defendant, LeRoy Brown, in a "no parking" zone of a roadway outside of the rear entrance to defendant hospital's Health Services Building. The dumpster was delivered to the site around December of 1979, and remained there, except for purposes of periodic replacement until May of 1980 to accommodate the construction activities of former defendant Marshall Erdman & Associates, Inc. (It appears that plaintiff settled with both LeRoy Brown and Marshall Erdman before the conclusion of the trial.) The roadway in question lies completely within the hospital's jurisdiction and measures 23 1/2 feet in width. It serves traffic traveling from east to west from the doctors' parking lot to Grant Street, although it does not appear to have been clearly marked at all access points as a one-way street. In the normal, westbound flow of traffic, the dumpster would have been on the left side of the road. Plaintiff, however, was traveling eastbound toward the dumpster at the time of the accident. The outer edge of the dumpster extended about 8 feet out from the curb into the road.

Testimony at trial further revealed that certain hospital personnel working at the Health Services Building had in the past made a habit of parking along the curb, instead of in the appropriate parking lot. As a consequence, the hospital administrator had enforced the hospital's no-parking policy in the area where the accident occurred by issuing a memorandum and having the area marked in yellow as a "no parking" zone.

The balance of the factual background of this case has been set forth adequately in our prior order and will not be repeated here except as needed to explain our resolutions of the issues presented in this appeal.

Plaintiff's first issue concerns the trial court's refusal to admit four exhibits into evidence after they had been introduced through various witnesses at trial. Two of the exhibits were memoranda directed by hospital administrator, David McConkey, to Dr. Kling and to Max Byers, the hospital's director of security. The earlier memorandum was dated September 26, 1977, and requested Dr. Kling and his staff not to park in the area that was subsequently occupied by the dumpster. It explained that several employees had complained and that the parked vehicle(s) created problems of congestion on the roadway. At trial, McConkey identified the document and was examined and cross-examined about its contents.

Similarly, the memorandum directed to Byers was identified and subjected to direct and cross-examination through McConkey. This memorandum, dated October 29, 1979, asked Byers to paint the curb yellow and put up a "no parking" sign.

The purpose of plaintiff's introduction of the foregoing exhibits was to prove circumstantially that defendant hospital had knowledge that the parking of an obstacle along the roadway created a hazardous condition, and that defendant ...


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