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03/19/87 Joseph O'keefe, v. Joseph Fitzpatrick

March 19, 1987

JOSEPH O'KEEFE, PLAINTIFF-APPELLANT

v.

JOSEPH FITZPATRICK, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

505 N.E.2d 1355, 153 Ill. App. 3d 384, 106 Ill. Dec. 564 1987.IL.341

Appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.

APPELLATE Judges:

Justice Hopf delivered the opinion of the court. Unverzagt, J., concurs. Justice Reinhard, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

Plaintiff, Joseph O'Keefe, brought an action to recover damages for personal injuries occasioned by the alleged negligence of defendant, Joseph Fitzpatrick, in pushing plaintiff off of a pier into a lake. The jury returned a verdict for defendant and against plaintiff. Plaintiff appeals contending (1) that the trial court deprived him of a fair trial when it permitted defendant to argue the issue of provocation without requiring that provocation be pleaded and without instructing the jury on the issue; (2) that defense counsel made improper remarks during closing argument, wherein he improperly interjected his personal feelings and beliefs into the proceedings, thereby depriving defendant of a fair trial; and (3) that the jury's verdict was not supported by the evidence and was, therefore, erroneous.

Testimony at trial showed that both plaintiff and defendant were guests at a family reunion which occurred on September 11, 1982, in Lake Villa, Illinois. The plaintiff and defendant had met on several prior occasions and each considered the other to be a friend. At one point during the afternoon of the reunion, the plaintiff came up behind the defendant, who was leaning over the end of a pier owned by the individuals hosting the reunion, and pushed the defendant from the pier into the water. Defendant testified that the depth of the water at the end of the pier was 5 or 5 1/2 feet and that the end of the pier was approximately 28 feet from shore. Defendant also stated that at the time of this incident he thought it was a joke, and no harsh words were exchanged between the parties. Thereafter, plaintiff, defendant, and two other individuals went water skiing.

Upon their return to the pier about an hour later, plaintiff and defendant got out of the boat. Defendant testified that plaintiff was standing approximately in the middle of the pier and facing towards defendant. As plaintiff was drying himself, defendant shoved plaintiff in the shoulder, knocking him off balance and causing him to fall kind of sideways and backwards off the pier. Defendant stated that he thought the water was 4 or 5 feet deep at the point of plaintiff's entry, that he did not know whether there were any rocks or other objects under the water but thought that there were none, and that he had seen people swim and dive there on prior occasions. When plaintiff emerged from the water his head was split, and he was bleeding. At the time of his emergence, the water level reached the upper chest of plaintiff, who was 5 feet 7 inches tall. Defendant ran to summon an ambulance.

Plaintiff testified that earlier in the day and prior to his injury, he had pushed defendant off the end of the pier and that he considered defendant as a friend. Plaintiff stated that later the defendant pushed him in the chest with both hands so that he was going backwards but that he twisted around and tried to skim the top of the water. At the time of the incident, plaintiff stated, he was 3 or 4 feet from the shoreline.

On cross-examination plaintiff admitted being at the pier on several prior occasions and having some familiarity with that area. When questioned regarding how he entered the water after defendant pushed him, plaintiff twice replied that he had just tried to skim the top of the water. Plaintiff was then examined with respect to deposition testimony he had given wherein plaintiff stated that he dove hands first into the water; that he could have fallen straight back or jumped feet first into the water; and that, in diving, he pushed off with his feet, cut the water with his hands, went completely under water, and without touching his feet to the bottom swam back up.

Thomas Mason, who was present at the time of plaintiff's injury, testified for the defendant. Mason stated that when defendant pushed plaintiff off the side of the pier, plaintiff dove head first into the water at an 80-degree angle with his hands above his head. Mason stated that the depth of the water was about 5 feet and that he and defendant swam in this same area on prior occasions. Mason was unaware of any rocks or sharp objects on the bottom of the water.

On cross-examination Mason stated that the last time he had been in the water near the pier was about three months prior to the date of the incident. The witness explained that the 5-foot depth of the water by the pier was due to the area's being a boat basin.

On rebuttal, plaintiff testified that he entered the water at about a 20- to 25-degree angle. Defendant was recalled, and he stated that plaintiff went into the water at less than a 45-degree angle.

At the jury instructions conference, defendant tendered an issues instruction to which plaintiff objected. The basis for plaintiff's objection centered on that portion of the instruction wherein defendant claimed plaintiff was contributorily negligent because he had pushed defendant into the water more than an hour before the later incident. Plaintiff maintained that the specifics recited in this portion of the instruction had not been pleaded and that plaintiff's earlier act of pushing defendant off the pier did not constitute contributory negligence. The court refused defendant's instruction, stating that the earlier ...


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