Appeal from the Circuit Court of Cook County; the Hon. Charles
E. Freeman, Judge, presiding.
JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Jean Charpentier and Michael O'Connor, filed separate actions against defendant, the city of Chicago, alleging that defendant's negligent maintenance of a street resulted in an automobile accident in which plaintiffs were injured. Prior to trial, the trial court entered an order dismissing a count from each complaint alleging that defendant had a duty to install median barriers. The cases were tried together. A jury returned a verdict in favor of defendant, and the trial court entered judgment on the verdict. Plaintiffs appeal from that judgment, contending that the conduct of defense counsel at trial prevented them from receiving a fair trial. Plaintiffs also contend that the trial court erred in dismissing the median-barrier counts.
On December 5, 1976, while operating a Buick northbound on South Lake Shore Drive, Lemard Loyd crossed over the double line separating northbound and southbound traffic and crashed head-on into a southbound Opel driven by plaintiff O'Connor. Plaintiff Charpentier was a passenger in the O'Connor vehicle. The O'Connor vehicle in turn struck a southbound Camaro driven by Selma Mayo Powell. The theory of plaintiffs' case was that Loyd struck a pothole in the road, causing him to lose control of his car.
Evidence at trial established that potholes were present in some areas south of Shore Drive, which intersected with Lake Shore Drive just south of 5400. Potholes were not present, however, between 5300 and Shore Drive. The outcome of the trial, therefore, depended upon the credibility of witnesses who testified as to whether Loyd struck a pothole, which in turn depended on whether Loyd lost control of the car south of Shore Drive or between 5300 and Shore Drive where no potholes were present. Part of the dispute as to location arises from the fact that there are no buildings on the Outer Drive and consequently no street numbers.
Prior to trial, the trial court held that as a matter of law defendant could not be held liable for failure to install median barriers on Lake Shore Drive. The court dismissed the counts related to that issue. Those counts had alleged that defendant created a road condition such that it was foreseeable that vehicles would cross a nonbarricaded median and enter the path of oncoming traffic, and that defendant knew or should have known of previous accidents due to crossovers of medians, and that defendant failed to erect barriers or remedy the dangerous situation.
Dr. Howard Matis testified for plaintiffs that he was a physicist at the University of Chicago at the time of the accident. Matis had obtained a certain level of security clearance from the United States government because of his access to hydrogen bomb and similar weapon-systems information. On the day of the accident, Dr. Matis was walking south along the lake with his fiancee, about half-way between 5400 and 5500 South Lake Shore Drive. He heard a "sound [which] seemed like a car, what would happen if a car struck a pothole." He had heard that sound many times before. The sound came from just south of a curve in the road, which would be just a few yards north of the Shoreland Hotel. As soon as Dr. Matis heard the sound, he turned to see if the car was damaged. He then "saw two cars about to collide head on." The vehicles were located just north of where Dr. Matis stood and were both in the southbound lane immediately west of the center dividing line. One car was a Buick, but Dr. Matis could not describe the make of the other car. A third car was then hit, and one of the three cars hit a lamppost. Dr. Matis stated that the accident could have been avoided if the road was in better condition. Dr. Matis testified that no one had mentioned anything to him about hearing a sound like a pothole before he so informed the police.
Out of curiosity two days later, Dr. Matis returned to the scene. He did not return at the request of any attorney or police officer. Driving northbound in the innermost lane and slower than the flow of traffic, Dr. Matis observed 3 to 10 potholes. The larger potholes were larger than 1 foot in width and were more than 3 inches deep. Dr. Matis also testified that he knew the potholes were in the same area where he had been standing at the time of the accident, and where he had heard the Loyd car strike a pothole, for several reasons. They were located just past an underpass; he remembered standing at a certain location on the lakefront path; and the potholes were slightly north of that spot. Dr. Matis was familiar with the stretch of road because he lived a few blocks from there at that time and drove on it a few times a week. He remembered similar potholes being in that location in September, October, and November of 1976.
James Walker, an eyewitness, testified for plaintiffs that on December 5, 1976, he was driving southbound on South Lake Shore Drive when he saw a Buick in the northbound lane hit a bump. "When I saw it hit the bump it was coming into the southbound lane. * * * When it hit the bump it went right in the southbound lane." The Buick then struck an Opel, which in turn struck a Camaro. Walker testified that the accident occurred "around 5400." He marked a point on a photograph showing that Loyd hit the bump at approximately the point where the Shoreland Hotel is located, which is at 5445 South Lake Shore Drive.
Walker testified further that he had been driving that stretch of road for about two or three years. The innermost northbound lane at the location where he saw the Buick hit the bump had "a lot of potholes." He described the potholes: "[O]ne was * * * about the size of a manhole; and it had a cluster of smaller holes around it * * *. The large one was about four to five inches deep, and the others were about two or three inches." Walker saw the potholes on the day of the accident when he was going to work, and the potholes had been present for some time. He associated the accident with the potholes "because I saw the car hit the bump."
Lemard Loyd, the driver of the northbound Buick, was deceased at the time of trial, and his evidentiary deposition was read to the jury. Loyd testified that he had not experienced any mechanical problems with his car prior to or on the day of the accident. On December 5, 1976, Loyd entered Lake Shore Drive at 6300 south and headed north, driving in the innermost northbound lane of the six-lane road. Loyd stated that he lost control of his car because he hit a hole in the street. When asked if this occurred at approximately 5300 south, Loyd replied, "Right, right." Just prior to hitting the hole, Loyd wondered why an automobile three car lengths in front of him weaved to the right. As his car hit the hole, Loyd's body was thrown to the side and he was unable to sit up straight in order to regain control of the car. When asked if his car crossed the center line into the southbound traffic, Loyd stated: "I couldn't tell that myself, because I was fighting, trying to get straightened up. I never got straightened up." Loyd could not remember anything after the collision until he woke up in the hospital. After the accident, someone told Loyd that he had hit a hole. He did not know the size of the hole. Loyd knew what it felt like to drive over the hole in the street. "I felt the bump. I felt it. That's what knocked me out of control of the car. * * * I heard a noise, and in a split second I didn't know what was going on."
Plaintiff Charpentier testified that on December 5, 1976, she was a passenger in a car driven by plaintiff O'Connor. After attending a brunch, they were on their way to the Museum of Science and Industry, traveling southbound on Lake Shore Drive. She had no memory of the accident.
Plaintiff O'Connor testified that he had no recollection of the accident or of being in the hospital. He could remember almost nothing for the period of one to two years prior to the accident. The knowledge he had of the accident, which he had testified to at trial and at an earlier deposition, was derived from what other people had told him in an attempt to help him regain his memory.
Joseph Kostur, district safety and claims manager and keeper of the records for District One of the Illinois State Department of Transportation, Division of Highways, testified for plaintiff that pursuant to a 1976 maintenance contract between the city of Chicago and the State of Illinois, the city was required to perform routine surface and pothole repairs and other routine operational services on Lake Shore Drive where the accident occurred.
William Moorman, a Chicago police officer, was called to testify by both plaintiffs and defendant in regard to his investigation on the day of the accident. The accident occurred at 3:55 p.m., and he arrived at 4:05 p.m. He spoke with Walker and Dr. Matis at 4:25 p.m. On the accident report Moorman noted 5338 South Lake Shore Drive as the location of the accident. Moorman first testified that he thought 54th Street, which did not go through to Lake Shore Drive, was the nearest cross street to the impact, but later testified that he thought 53rd Street was the nearest cross ...