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04/21/87 John W. Burris Et Al., v. Madison County

April 21, 1987

JOHN W. BURRIS ET AL., PLAINTIFFS-APPELLEES

v.

MADISON COUNTY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

507 N.E.2d 1267, 154 Ill. App. 3d 1064, 107 Ill. Dec. 898 1987.IL.527

Appeal from the Circuit Court of Madison County; the Hon. Charles W. Chapman, Judge, presiding.

APPELLATE Judges:

JUSTICE JONES delivered the opinion of the court. HARRISON and KASSERMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JONES

Defendant, Madison County, appeals a judgment rendered for plaintiff, Faye R. Ziegler, upon a jury verdict in the amount of $2,750,000. The plaintiff has filed a cross-appeal from an order of the trial court that denied her pretrial motion in limine with respect to evidence of her consumption of alcohol prior to the accident in question. Plaintiff has chosen to merge her argument upon her cross-appeal with her response to defendant's appeal so the issue upon her cross-appeal need not be separately addressed. We reverse and remand for a new trial.

The case originally involved both multiple plaintiffs and multiple defendants. However, all claims have now been withdrawn except the instant one between Faye R. Ziegler against Madison County. The case arose out of the collision of two cars at a rural intersection in Madison County. The intersection was that of St. Rose Road (Madison County Route 40), an east-west road, with Baumann Road, a north-south road. St. Rose Road was a county road, maintained by the defendant's highway department, and was the preferential road at the intersection. Baumann Road was a township road of Helvetia Township in Madison County and was maintained by the township road commissioner of Helvetia Township. Baumann Road was the county-line road between Madison County and Clinton County, with the county line lying approximately in the middle of the road. Located in the northwest quadrant of this intersection was a stop sign that regulated the traffic southbound on Baumann Road as it approached the intersection with St. Rose Road. The proprietorship and condition of this stop sign at the time of the collision supply the issues of the case.

On June 3, 1982, at 11 p.m., the plaintiff was driving her car southbound on Baumann Road. She had been at a softball park at Pierron, where she had consumed a quantity of beer. She had traveled the road only three or four times previously and was not completely familiar with it. To reach her intended destination she would have had to make a right turn onto St. Rose Road and head west. At the same time John W. Burris was driving his car westbound on St. Rose Road with Regina Berry as a passenger. The cars met and collided in the intersection. All parties received personal injuries, the seriousness of which is not questioned in this appeal.

The condition of the stop sign at the time of the accident was described by several witnesses and was the subject of much argument both before the trial court and this court. Plaintiff's witnesses described the sign variously as lying flat on the ground to being as high as 22 inches off the ground. A police officer described the sign as undamaged by the accident, leaning towards the west, and lying 22 inches off the ground with the face of the sign not perfectly parallel to the ground but slightly tilted toward the north. A volunteer fireman at the scene stated that the sign was down to the northwest at 50o to 80o off vertical.

Two suits were brought by Burris and Berry. They named as defendants Ziegler, Madison County, Helvetia Township, and the Helvetia Township road commissioner. Ziegler filed a counterclaim against Burris, Madison County, Helvetia Township, and the Helvetia Township road commissioner. By the time of trial Madison County was the only defendant, with Burris, Berry, and Ziegler as plaintiffs. As we have stated, subsequent to the trial the Burris and Berry claims were disposed of so that we consider only the claim of plaintiff Ziegler against Madison County. Plaintiff's complaint alleged that the defendant had negligently breached its duty to maintain and repair the stop sign in question when it knew or should have known that the sign needed maintenance or repair and had failed to maintain an adequate inspection system for the maintenance of the stop sign. Defendant defended upon the basis that it was under no duty to maintain the stop sign and that such duty was that of Helvetia Township, not defendant. Defendant also contended that even if the sign was down it would not be liable to the plaintiff since the sole cause of the accident was plaintiff's failure to yield the right-of-way to the Burris car on her right as she was required to do by section 11-901(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95, par. 11-901(a)). After entry of the judgment in favor of the plaintiff, and the denial of its post-trial motion, defendant appeals, contending that the court erred (1) in granting plaintiff's motion in limine to preclude defendant's evidence that would tend to show that the plaintiff was intoxicated at the time of the collision, (2) in its handling of the issue of whether the subject stop sign was within the maintenance jurisdiction of defendant's highway department, and (3) in failing to rule that the sole cause of the accident was plaintiff's failure to yield the right-of-way to the Burris car to her right as they both approached the intersection, as she was required by statute to do.

Prior to the commencement of trial, plaintiff filed a motion in limine seeking an order that would exclude any reference to plaintiff's consumption of alcohol prior to the accident and to exclude the results of a blood test that had been made at Belleville Memorial Hospital, where she had been taken for treatment after the collision. In support of her motion plaintiff argued that the test results were unreliable and invalid and that defendant's expert, Dr. Nuernberger, was not qualified to testify as to plaintiff's state of intoxication upon the basis of the test results. Memoranda were submitted. They included a DuPont Automatic Clinical Analyzer Worksheet that disclosed a test result of a blood serum alcohol content of .0766. It was shown that the blood sample had been drawn at the hospital approximately three hours after the accident solely for the purpose of medical treatment, not for purposes of prosecution. A full hearing was held concerning the equipment, the procedures followed, and the qualifications of the experts. Prior to the commencement of trial, the court entered an order denying plaintiff's motion to exclude evidence of her alcohol consumption.

In their opening statements the attorneys for both the plaintiff and the defendant told the jury of forthcoming evidence of alcohol consumption. The attorney for defendant explained that their evidence would show that plaintiff was intoxicated at the time of the collision. In plaintiff's case in chief, seven witnesses were called to testify to her sobriety. They all stated that although she had drunk some beer, she was not acting otherwise than normal and that the beer had had no noticeable effect. After four weeks of trial, and the close of plaintiff's evidence, the plaintiff again moved for a motion in limine to exclude defendant's evidence of plaintiff's alleged intoxication and the result of the blood test, this time upon the basis of People v. Murphy (1984), 124 Ill. App. 3d 695, 464 N.E.2d 853. That case held that the results of a blood test for intoxication were inadmissible in a prosecution for reckless homicide because the laboratory technicians who had performed the tests were not certified under sections 12.01 through 12.04 of the Standards and Procedures for Testing Alcohol and/or other Drugs of the Illinois Department of Public Health as provided in section 11-501.2 (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.2). The defendant conceded that the personnel at the Belleville Memorial Hospital were not certified in accord with the statutory provision reviewed in Murphy. Accordingly, solely on the basis of the Murphy case, the trial court granted plaintiff's renewed motion in limine and excluded any reference to plaintiff's intoxication or blood-test results in defendant's evidence. Because the parties in their opening statements had dwelt at some length with the issue of plaintiff's intoxication, and plaintiff had presented evidence from seven witnesses that she had not been intoxicated, the trial court was placed in a quandary of how to deal with the intoxication issue in light of its exclusion order. The defendant, of course, had strenuously objected to any suggestion that its evidence regarding intoxication or blood-test results be restricted after the issue had been raised to the jury in opening statements and treated heavily by plaintiff's evidence. Such exclusion at the late stage of the trial would be highly prejudicial, if not fatal, to defendant's case. The quandary was resolved by an announcement by the court to the jury just before closing arguments began. The court told the jury that:

"uring the opening statements you may recall that there was some mention about the issue of intoxication. For certain legal reasons you need not concern yourselves with the issue of intoxication. It is not involved in this case, and you are not to consider any evidence of drinking as intoxication. From what you have heard you should draw no inference or speculation as to intoxication. So that is not in this case for you to consider at all."

Subsequent to the verdict and judgment in this case the supreme court issued its decision reversing the appellate court decision in the Murphy case. (People v. Murphy (1985), 108 Ill. 2d 228, 483 N.E.2d 1288.) The supreme court squarely held that the requirements of section 11 -- 501.2 that the laboratory and technicians be certified by the Department of Public Health were limited to prosecutions for driving under the influence of alcohol. This court recently had occasion to consider the issues presented here in a case similar on its facts with regard to the admissibility of blood-test results in a civil case, Thomas v. Brandt (1986), 144 Ill. App. 3d 95, 101, 493 N.E.2d 1142, 1146. In that case we stated:

"The decision in Murphy makes it abundantly clear that no public policy of this State bars the admission of evidence of intoxication based on the chemical analysis of a person's blood, taken without his consent, in a civil action, or in a criminal action except as expressly restricted by statute.

Perhaps the above review of prior case law is unnecessary, considering that the reference to 'civil cases' in the statute was likely intended to refer only to ordinance violations. But for the holding of such cases as Smock v. Highway Commissioner (1978), 60 Ill. App. 3d 201, 376 N.E.2d 445, it was never reasonable to conclude that the restrictions on the admissibility of blood alcohol tests contained in the Illinois Vehicle Code, should apply to ...


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