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02/06/87 Thomas S. Chuhak, Adm'r of v. the Chicago Transit

February 6, 1987

LYLE, DECEASED, PLAINTIFF-APPELLANT

v.

THE CHICAGO TRANSIT AUTHORITY ET AL., DEFENDANTS-APPELLEES



Before trial, the city filed a written motion in limine which requested, inter alia, that the trial court bar the admission into evidence of Lyle and Rossi's statements, contained in Officer Rossi's hospital case report, as being hearsay. After argument, the trial court held that Officer Rossi's hospital case report would be admissible with the exception of that portion which stated the cause of the injury and the following narrative in the report:

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

THOMAS S. CHUHAK, Adm'r of the Estate of Mildred Claire

504 N.E.2d 875, 152 Ill. App. 3d 480, 105 Ill. Dec. 590 1987.IL.139

Appeal from the Circuit Court of Cook County; the Hon. David Cerda, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J. concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

This is an appeal from a judgment entered against the plaintiff, Thomas S. Chuhak, administrator of the estate of Mildred Claire Lyle, *fn1 in an action for injuries Lyle allegedly sustained when she stepped from a bus operated by the defendant Chicago Transit Authority and into a pothole located in a street of the defendant city of Chicago (city). Plaintiff contends that the trial court erred in excluding from evidence, (a) the hospital case report of the investigating-reporting officer, (b) the investigating-reporting officers' testimony of their observations of a pothole at the location where Lyle allegedly fell, and (c) testimony of the investigating-reporting officers of what Lyle told the officers about how she fell. Plaintiff further contends that the trial court erred in refusing plaintiff's instruction to the jury that upon the death of a litigant during the pendency of a lawsuit, the litigant's cause of action survives the litigant's death. Plaintiff also contends that the trial court erred in refusing to instruct the jury on the inference the jury might draw from the defendant's failure to call certain witnesses. Plaintiff finally argues for reversal that counsel for the defendant city during argument to the jury improperly read extensive excerpts of the testimony of the trial witnesses and that counsel for the defendant CTA made other prejudicial arguments to the jury.

The record establishes that on June 14, 1978, at 5 p.m. at State and Randolph streets in Chicago, Lyle exited the front door of a CTA bus. The bus had stopped at a safety island which was not raised but was flat and denoted by a sign. The front door platform of the bus was adjacent to a pothole. Lyle stepped into this pothole. As a result she fell and severely fractured her left ankle.

Approximately ten minutes later, Chicago police officers John Rossi and Gerald Murray arrived at the scene. Rossi interviewed Lyle at the scene and from his interview and observations prepared a hospital case report.

A fire department ambulance arrived and removed Lyle to Northwestern Memorial Hospital where she was first treated in the emergency room and afterwards admitted as a patient. She was treated by Dr. William Kane, a board-certified orthopedist. Dr. Kane aligned the fracture to improve the circulation of blood to the left foot, thereby reducing the possibility of the development of gangrene. The next day Dr. Kane performed surgery to repair the fracture and inserted a metal plate and screws in the ankle to hold the bone in place. Dr. Kane then placed the left leg in a cast. Mildred Lyle remained in the hospital five weeks and in a cast for four or five months.

On June 14, 1978, the date of Lyle's injury and admission to the hospital, Dr. Kane took a history from Lyle in which she told Dr. Kane that she was getting off of a CTA bus, stepped into a pothole, and twisted her ankle. According to the doctor she had an immediate onset of pain and was thereafter disabled and had to be brought to Northwestern Memorial Hospital.

She was discharged from the care of Dr. Kane in March 1980, at which time her left ankle had reached a point of maximum recovery. In Dr. Kane's opinion she had permanent loss of motion in the left ankle and would have permanent pain, lack of endurance, fatigability, and reaction to wet weather and change in barometric pressure.

"Victim told R/Os that she was getting off bus at State and Randolph and as she stepped off of bus onto street she stepped into a pothole and broke her left ankle. R/Os did find a small pothole at the location the victim told the R/Os the fall occurred. The bus no. was 9631 run no. 604."

A sidebar conference was held prior to the testimony of Officers Rossi and Murray. The city renewed their objection to the admission of the hospital case report. The trial court again ruled that with the exception of the two mentioned portions, the plaintiff would be permitted to offer and have Rossi's report admitted into evidence.

Rossi's hospital case report was received into evidence with the portions thereof previously set forth deleted therefrom.

Joan Freeman, a passenger on the bus with Lyle, testified that she observed Lyle leave the bus and that Lyle fell in a pothole. She further described the pothole in her testimony. Freeman also testified as to the condition of the scene of the occurrence prior to and on the date of the occurrence. Shirley Maynie was also a passenger on the bus. Maynie testified that Lyle stepped off the bus and when Maynie next saw Lyle, Lyle was lying on the ground. Maynie testified to the presence of the pothole and to the condition of the scene of the occurrence prior to and on the date of the occurrence. Dr. Kane, Lyle's treating physician, testified that Lyle told him that as she was getting off of a CTA bus in the city she stepped into a pothole and twisted her ankle.

The jury returned a verdict in favor of the defendants.

Plaintiff filed a post-trial motion, which assigned as error the trial court's failure to permit Officers Rossi and Murray to testify to Lyle's statements and the officers' observations of the pothole contained in their report. The trial court stated at the hearing on the post-trial motion:

"All right, the second point. I do believe it was error on the Court's part not to allow the police officer to testify that he -- reading from his report -- that the reporting officers did find a small pothole at the location period.

However, it was not prejudicial error in view of the fact that there were other witnesses who testified that there were -- there was a hole or there were holes in the street. Also, the defendant driver, if I am not mistaken, Florence [ sic ], also testified that in the general area of the location there was a hole. So there was other evidence that there was a hole.

Now I will still hold it was not error not to permit the police officer to be allowed to let inform the jury what the decedent told him at the scene. I still believe that I was correct in that ruling, any statements from her to him."

Before this court, plaintiff asserts for reversal that because Officers Rossi and Murray were not permitted to testify that they observed a pothole at the scene of Lyle's fall and because they were not permitted to testify that Lyle told them she fell because she stepped in a pothole, i.e., the deleted portions of the officers' hospital case report, "the very cornerstone of plaintiff's case was therefore destroyed." The plaintiff also contends that the trial court's refusal to allow the deleted portions of the report into evidence, were reversible error.

The plaintiff argues two theories for the admissibility of the deleted portions of the hospital case report, namely, (1) spontaneous-declarations and (2) ...


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