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04/13/87 Nancy E. Kane, Guardian of v. Northwest Special

April 13, 1987

DISABLED PERSON, ET AL., PLAINTIFFS-APPELLANTS

v.

NORTHWEST SPECIAL RECREATION ASSOCIATION, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

NANCY E. KANE, Guardian of the Person of Kathryn E. Kane, a

508 N.E.2d 257, 155 Ill. App. 3d 624, 108 Ill. Dec. 96 1987.IL.486

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Bosco, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. QUINLAN, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Plaintiff, Kathy Kane, a retarded adult, brought this negligence action against the defendant, Northwest Special Recreation Association to recover for damages resulting from an alleged sexual assault on plaintiff when she was left behind after attending a recreational outing arranged by defendant at the Great America Amusement Park in Gurnee, Illinois. The complaint alleged that the defendant was negligent in caring for the young adults in their charge. The jury returned a verdict in favor of the defendant, and the trial court denied plaintiff's motion for judgment notwithstanding the verdict. Plaintiff appeals contending (1) the trial court erred by allowing defense counsel to examine plaintiff's experts with certain hypothetical questions; (2) the jury was improperly instructed; (3) the trial court erred by denying plaintiff's motion for judgment notwithstanding the verdict; and (4) the verdict was against the manifest weight of the evidence.

The plaintiff, Kathy Kane, has been mentally handicapped and retarded since birth. She later sustained a stroke and, as a result, has lost the vision in her right eye. At the time this cause of action was commenced she was 18 years of age. The defendant, NWSRA, is an agency servicing 14 suburban park districts organized for the purpose of serving mentally and physically handicapped people and providing them with various forms of leisure entertainment. Prior to the occurrence here, plaintiff had participated in several programs defendant offered.

On July 10, 1981, NWSRA arranged for plaintiff and approximately 33 other retarded adults to attend a recreational outing at the Great America Amusement Park in Gurnee. The ratio of participants to counselors was approximately five to one. At the end of the day the participants and counselors met and boarded a bus to return to their departure point in Arlington Heights. Prior to leaving, a head count was taken by a counselor, and through error in the head count, plaintiff and her boyfriend, John Tenant, were left behind at the park. John Tenant was also a retarded young adult whom plaintiff had known for approximately eight years. When the bus arrived in Arlington Heights at 11:30 p.m. it was discovered that plaintiff and John Tenant were not on the bus. Phone calls were made to the police and security authorities. At 1:20 a.m. a security guard from Great America found plaintiff and John Tenant in a parking lot near Great America. They were brought to the Gurnee police department and, a short time later, their parents arrived to take them home.

Plaintiff was very quiet both in the police station and during the ride home. The next morning, without warning, she attempted to attack her mother and brother with a kitchen knife. Her psychiatrist, Dr. Charles Block, was called and plaintiff was admitted to the hospital. The doctor diagnosed her condition as major depression reoccurrent, which is generally defined as a state of depression due to a patient's inability to cope with the stresses of life. During the next couple of days, plaintiff's condition deteriorated. On July 16, 1981, she told a member of the hospital staff and her mother that after she and John Tenant were left behind at Great America, she was sexually assaulted by a group of men. John Tenant corroborated her story. Dr. Block then changed his diagnosis to post-traumatic stress reaction and plaintiff remained under treatment for several months.

At trial, Nancy Kane, plaintiff's mother, testified that in the months prior to the Great America trip, plaintiff was withdrawn and depressed. She would not participate in family activities and wanted to be left alone. Plaintiff had attempted suicide by trying to drown herself in a small pond and had threatened to jump off the roof of her high school building. Nancy Kane further testified that after plaintiff told her about the rape, she located the clothes that plaintiff was wearing on the day of the trip. She stated that her blue jeans and knit top were not ripped or torn. Her panties were stiff and had some blood stains on them. She recognized the cause of the stiffness to be dried semen.

Plaintiff's expert witnesses, psychiatrists Dr. Charles Block and Dr. Argelia Prieto, testified that in their medical opinion and with a reasonable degree of medical certainty, plaintiff's condition was a result of the sexual assault she sustained following the Great America outing. They further stated that plaintiff did not have the sophistication or intelligence to lie about the attack and that the symptoms she showed were consistent with a sexual assault.

Defendant's expert witness, Dr. Bernard Kaye, an obstetrician and gynecologist, testified that he examined the plaintiff and there was no evidence of a rape having taken place. Specifically, there was no evidence of bruises or that plaintiff's hymen was torn or broken. He testified that, based upon these findings, he did not believe plaintiff had been forcibly penetrated by a man.

Carl Hernden, a Great America security guard, Dennis Smith, the police officer who transported the plaintiff and John Tenant to the police station, and Caroline Bunnell, the dispatcher at the Gurnee police department who was with the plaintiff and John Tenant until their parents arrived, gave substantially the same testimony. They stated that they did not observe anything in the physical appearance of either plaintiff or John Tenant to indicate that plaintiff had been assaulted or raped. In addition, all three witnesses testified that there was nothing about ...


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