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04/27/87 Elizabeth Diminskis, As v. the Chicago Transit

April 27, 1987

ELIZABETH DIMINSKIS, AS PLENARY GUARDIAN OF THE ESTATE AND PERSON OF VICTOR DIMINSKIS, ET AL., PLAINTIFFS-APPELLEES

v.

THE CHICAGO TRANSIT AUTHORITY ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

508 N.E.2d 215, 155 Ill. App. 3d 585, 108 Ill. Dec. 54 1987.IL.545

Appeal from the Circuit Court of Cook County; the Hon. Cornelius F. Dore, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. McMORROW, P.J., and JIGANTI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Defendant Chicago Transit Authority brings this appeal seeking reversal of a jury's verdict in favor of the plaintiffs, Victor and Elizabeth Diminskis, and against the CTA. The Diminskis' instituted their personal injury suit following an accident in which a bus owned and operated by the CTA struck and seriously injured Victor. Victor's action charged the CTA with negligence while Elizabeth sought recovery for the loss of Victor's consortium. At the close of the trial, the jury awarded Victor and Elizabeth $400,000 each.

On appeal, the CTA contends that a new trial should be ordered. Specifically, the CTA contends that the following defects prejudiced the outcome of the trial: (1) the trial court erred in prohibiting the CTA from introducing several alleged admissions previously made by Victor during his evidence deposition; (2) the trial court erred in permitting Dr. Kelvin Von Roenn to testify where Dr. Von Roenn had not been disclosed prior to trial pursuant to the CTA's Supreme Court Rule 220 request; (3) the trial court erred in admitting certain evidence pursuant to the business-records exception to the hearsay rule; and (4) a series of CTA reports were erroneously admitted. In the alternative, the CTA claims that the $400,000 award granted to Elizabeth for her loss of Victor's consortium was excessive and that a remittitur is appropriate.

Although the CTA raises several other arguments in its brief, a review of the record discloses that these arguments were either: (1) not objected to at trial and were therefore waived (Roark v. Musgrave (1976), 41 Ill. App. 3d 1008, 355 N.E.2d 91); (2) fell within the discretion of the trial court with the trial court committing no abuse of discretion (M.I.G. Investments, Inc. v. Marsala (1981), 92 Ill. App. 3d 400, 414 N.E.2d 1381); or (3) simply do not find support in the record.

We affirm.

BACKGROUND

This case arose from an accident which occurred on February 3, 1983, involving a CTA bus and the plaintiff, Victor Diminskis. On that date, a CTA bus driven by defendant Harold Clemons struck Victor at the intersection of 73rd Street and Western in Chicago, causing Victor to suffer serious physical injuries. Soon thereafter, Victor filed this lawsuit against the CTA with Victor's wife, Elizabeth, seeking damages for the loss of Victor's consortium.

Subsequently, on January 28, 1985, Victor was declared incompetent and Elizabeth was appointed the plenary guardian of his estate and person.

At trial, Victor was not called upon to testify. However, Victor's wife, Elizabeth, did testify. She stated that prior to the accident, Victor was the treasurer of the Lithuanian Youth Center, that he was the director of the "Fighter for Freedom Museum," and that he was an active gardener. Elizabeth also stated that as a result of the accident, Victor no longer participates in any of those activities. She testified as to Victor's physical and emotional condition after the accident and throughout his recovery period. She further testified that her marriage to Victor was very pleasant prior to the accident and that their relationship was very different now.

Several witnesses testified that they were present at the scene of the accident and saw what occurred.

Edward Buckels was a witness to the accident. Buckels stated that Victor was on the median strip at the time of the accident. Buckels further testified that the bus was traveling at a speed of 20 to 25 miles per hour prior to the bus' impact with Victor. Buckels also claimed that ...


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