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03/11/87 Rosalind Cooper, Adm'r of v. Chicago Transit Authority

March 11, 1987

ROSALIND COOPER, ADM'R OF THE ESTATE OF ANNE HERBST, PLAINTIFF-APPELLEE

v.

CHICAGO TRANSIT AUTHORITY ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

505 N.E.2d 1239, 153 Ill. App. 3d 511, 106 Ill. Dec. 448 1987.IL.279

Appeal from the Circuit Court of Cook County; the Hon. Jacques Heilingoetter, Judge, presiding.

APPELLATE Judges:

Presiding Justice McNamara delivered the opinion of the court. White J., concurs. Justice Rizzi, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff, Rosalind Cooper, as administrator of the estate of the decedent, Anne Herbst, brought wrongful-death and survival actions to recover damages resulting from the alleged negligence of defendants Chicago Transit Authority and its agent and bus operator, Francisco Muniz. At the Conclusion of all the evidence at a jury trial, plaintiff voluntarily dismissed her action against Muniz. The jury returned a verdict against the CTA of $200,000 under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1, 2), and $2,500 under the Survival Act (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 27-6). The trial court entered judgment accordingly, and defendant appeals.

Defendant contends that an adult child may not recover any damages or, in the alternative, is not entitled to a presumption of substantial pecuniary loss, for loss of society and companionship of a deceased parent; that the court erred in ruling as a matter of law that decedent was not guilty of contributory negligence; that the court erred in admitting repetitive evidence regarding the decedent's family background and injuries; that there was insufficient evidence of conscious pain and suffering to prove a prima facie case under the Survival Act; and that plaintiff's counsel's remarks were so improper as to deprive defendant of a fair trial.

On June 24, 1980, at about 5 p.m., Muniz drove a bus westbound on Sheridan Road in Chicago. The bus turned right on a green light to proceed north on Broadway. At the same time, decedent stood at the northeast corner of the intersection and began to cross Broadway from east to west, with the green light. The bus struck decedent, and she died the next day as a result of her injuries. Decedent was survived by plaintiff, her daughter.

Patricia Turbin testified that she was in her car, stopped at a red light facing south on Broadway near Sheridan. She noticed decedent step off the curb at the northeast corner and begin walking straight west into the marked crosswalk. Decedent had walked a few feet when the bus, traveling 5 to 10 miles per hour, made a wide right turn onto Broadway. The front door of the bus struck the left side of decedent's face, shoulder, and side. Both the bus and decedent had the green light. Turbin did not hear a horn and did not see the bus slow down. Turbin walked over to the scene and observed that decedent's head and face were next to the right front wheel of the bus.

Debra Danneman was a passenger who was seated on the right side of the bus, opposite the rear exit door. Danneman testified that as the bus reached the corner, decedent was crossing the street within the crosswalk lines. Danneman then felt a bump at the point where the bus, traveling at about 10 miles per hour, faced northwest. Danneman stated that the bus was behind decedent, but on a photograph she marked the right front corner of the bus at an angle slightly ahead of decedent.

Alfred Van Den Bosch was in a gas station at the northeast corner of the intersection when he saw decedent walk to the curb and stop. He also saw a young girl board the bus, which was stopped at the corner facing west. After the young girl sat down, she jumped back up and talked to the driver, blocking his view out of the front door. Van Den Bosch testified at trial that after decedent stepped off the curb into the crosswalk, the bus began to move. Before trial, the witness had made a statement that the bus and decedent began moving at the same time. Both had the green light. The bus was 7 to 10 feet behind decedent. When the bus was 15 to 20 feet into the intersection, its front began to swing around in a "side movement." It was moving 5 to 10 miles per hour. The bus did not pass decedent. Decedent was walking at a leisurely speed, and the bus was moving much faster than she. Nothing indicated she saw the bus before the impact. Van Den Bosch did not see the impact, but saw decedent falling at a 45-degree angle, with the front door of the bus against her. When the witness ran over to the bus, he saw the outer right side of the front tire resting on the side of decedent's face. The bus was stopped at a northwesterly angle.

Alfonso Rivera, a Chicago police officer who previously had been an emergency medical technician for three years, testified that he arrived at the scene about two minutes after receiving the call. Decedent's head was pinned under the right front wheel of the bus. She had a shallow pulse. Rivera heard the decedent moaning as he stood close to her. He did not know if she was conscious.

Joseph McLary, a paramedic, arrived at the scene within two minutes of receiving the call. The deceased was lying face down, looking into the tire of the bus with her head wedged in under the tire. She was unconscious at the time. She had a pulse and dangerously low blood pressure. Decedent was treated at the scene and then moved to the hospital, where she died the following day. The cause of death was injury to the brain as a result of the accident.

Elsie Silverman, decedent's sister, testified after defendant made a motion in limine to exclude evidence regarding decedent's background. The court ruled that testimony would be limited to the period of time after the birth and adoption of plaintiff by decedent and evidence of decedent's intellectual abilities. The court excluded other evidence related to decedent's childhood and family life. Silverman testified regarding decedent's background. The court also sustained an objection to Silverman's testimony that decedent had turned down a scholarship to the University of Chicago because she needed a job to help her family during the Depression. The court sustained an objection to Silverman's testimony that the relationship between plaintiff and decedent was very close, especially since decedent had tried to have a child for many years before adopting plaintiff. The witness testified that when plaintiff underwent cancer surgery, decedent refused to leave the city, insisting on remaining nearby in case plaintiff needed her. Silverman also testified regarding decedent's interest in art, music, literature, and politics and her intellectual abilities.

Louise Solkowitz, another sister of decedent, testified over objection that she was widowed in 1977 and saw decedent weekly and talked to her daily. Over a sustained objection and admonition from the court, the witness testified regarding decedent's interests and abilities. The court advised plaintiff's counsel to avoid repetitive testimony. Solkowitz testified that decedent read everything current, and the witness described decedent's personality, including her habits for thrift. The witness also testified that the relationship between decedent and plaintiff was very loving and close. Decedent had refused to leave Chicago for a warmer climate, declaring that she would never leave her daughter.

Jack Chernof, a family friend, testified regarding decedent's personality and charitable activities. He stated that the relationship between plaintiff and decedent was excellent. He was not sure how often they saw each other.

Plaintiff testified that she lived with her parents until she married at age 27. After her marriage, plaintiff saw decedent every Sunday unless illness or bad weather interfered. They would take walks, do errands, or just sit and talk during these weekly visits. Other than her husband, decedent was plaintiff's only close friend. She received many gifts from her mother, some of which were introduced as exhibits at trial. Over objection, plaintiff testified that when she was hospitalized for three weeks, decedent visited her 90% of the time. Plaintiff stated that decedent had been in excellent health.

After plaintiff rested her case, defendant moved for a directed verdict as to the survival action, contending that the evidence failed to show decedent had suffered any conscious pain. The court denied the motion. Defendant then admitted liability and moved to strike all testimony with regard to the nature of the injury and treatment received, as it was no longer material. No express ruling was made on the motion to strike. The jury was advised that defendant had admitted liability and that defendant would present evidence on one aspect of the damages.

Dr. Marshall Matz, a neurosurgeon, testified for defendant that the medical records indicated decedent was admitted to the hospital at 5:50 p.m. in an unconscious state and never regained consciousness. The paramedic's report indicated that she was unconscious at 5:25 p.m. In the doctor's opinion, decedent was brain dead at approximately 10:30 p.m. on the night of the accident. In response to a hypothetical question which included the fact that a police officer with paramedic training heard decedent moaning minutes after the accident, Dr. Matz opined that decedent did not experience conscious perception of pain. Dr. Matz stated that the initial impact rendered her unconscious and he attributed the moaning to a respiratory sound caused by decedent's bleeding from the ears and nose as the result of a basal skull ...


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