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06/10/87 William S. Romano, v. Forrest Bittner

June 10, 1987

WILLIAM S. ROMANO, PLAINTIFF-APPELLEE

v.

FORREST BITTNER, DEFENDANT (KENT SHODEEN, D/B/A SHODEEN CONSTRUCTION COMPANY, DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

510 N.E.2d 924, 157 Ill. App. 3d 15, 109 Ill. Dec. 856 1987.IL.780

Appeal from the Circuit Court of Kane County; the Hon. Patrick J. Dixon, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and REINHARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The defendant, Kent Shodeen d/b/a Shodeen Construction Company (Shodeen), appeals from the judgment of the circuit court of Kane County denying his pretrial motions to dismiss and for summary judgment and his post-trial motions for directed verdict and judgment notwithstanding the verdict. The cause arose after an automobile accident between the plaintiff, William Romano, and defendant Forrest Bittner, which occurred in defendant Shodeen's parking lot. The jury found against both defendants on the plaintiff's complaint. It found plaintiff's total damages were $56,000 and that plaintiff's comparative negligence was 20%, thus allowing him a total recovery of $44,800. The jury awarded Shodeen $15,680 on his contribution counterclaim against Bittner, and it awarded Bittner nothing on his contribution counterclaim against Shodeen.

The accident occurred in the parking lot of the Jewel-Osco store located at the northeast corner of the intersection of Route 38 and Randall Road in St. Charles on February 8, 1980. The plaintiff, William Romano, had just exited from Route 38 into the parking lot and was traveling in a northerly direction in the lot when he was struck in an intersection of the lot by a pickup truck driven by defendant Forrest Bittner. The intersection was an open one, with no traffic control devices. Bittner was traveling east at the time of the collision. Shodeen is the beneficial owner of the lot where the accident occurred, and he also is the general contractor who managed construction of the lot and the Jewel-Osco store.

Romano had been traveling westbound on Route 38 on his way home from work before he turned into the lot. He had been in the lot two days before when the store first opened, and he intended to stop at Jewel to purchase flowers. Following the striped, curved ingress lane, Romano made a right turn off Route 38 into the parking lot and proceeded north. Romano stated he accelerated to about five to eight miles per hour just prior to the accident. He collided with Bittner 76 feet north of Route 38 where the "quasi-roadway" on which Bittner was traveling intersected with Romano's roadway.

From the time he turned into the lot, Romano had a clear view of the intersection, and the pavement was dry. He looked straight ahead as he approached the intersection and also looked for traffic coming from the right. He did not look to the left until he was halfway into the intersection. At that time, he saw Bittner's truck approaching from the left. He estimated that Bittner's truck was six to eight feet away from him and traveling about 25 to 35 miles per hour when he first saw it. Romano stated he accelerated to avoid a collision; however, the left front of Bittner's truck struck the left rear quarter of Romano's car, spun it around 180 degrees, and pushed it one to two car lengths north of the intersection.

Bittner was on his way home after shopping at Jewel when the collision occurred. From his parking space in front of Jewel, Bittner proceeded west to the first southerly road. He turned and drove south along the roadway which ran parallel with the outside edge of the parking area and which ultimately curved to the east. Bittner felt there was less traffic and congestion by going that way. The entrance into the lot which Romano used was designed to permit right turns only for westbound traffic entering or exiting the lot at that point. There was a stop sign for traffic exiting the lot to go westbound on Route 38. Traffic entering the lot from westbound Route 38, as plaintiff was, was not controlled by any traffic signs. The entry roadway was intersected to the north first, by the east-west roadway on which Bittner was traveling, and second, in a "T" fashion by a roadway from the east about 90 feet north of the first intersection. Traffic on those two intersecting roads was not controlled by any traffic signals. Bittner intended to proceed east past the entry roadway on which Romano was traveling to the next entrance which was described in the record as the "main entrance." Further to the north of the "T" intersection with the entry roadway, two stop signs controlled traffic on the roadway which intersected the entry roadway in a northeast to southwest direction at the south corner of the Jewel-Osco store. At that point by the corner of the store, the direction of the entry roadway changed from due north to northwest and continued on parallel with the front of the Jewel-Osco store.

Bittner first observed Romano's car when Bittner turned onto the east-west roadway. At that time, Romano was beginning to turn off Route 38 into the parking lot. Bittner estimated he was 120 feet from the intersection when he first saw Romano's car, and his own speed was 10 to 15 miles per hour.

Bittner took his foot off the gas when he first saw Romano, but he did not apply his brakes. He first applied his brakes about 10 to 25 feet from the intersection, when he felt a collision was "imminent." Bittner continued to observe Romano's vehicle, and it was apparent from the time he first saw it that it would cross his path. About 10 seconds elapsed from the time he first saw Romano's vehicle until impact. As Bittner approached the intersection, he reached down and flashed his lights on and off but did not sound his horn. Nothing obstructed his view of the intersection. There was a vacant lot to the east and south of the intersection at the time of the occurrence.

Bittner testified that Romano did not look in his direction until just before impact. When he did look, Romano seemed surprised and applied his brakes. Bittner stated that if he had applied his brakes sooner or if Romano had speeded up there would not have been a collision.

Kent Shodeen testified that he was the sole owner as beneficiary of a land trust of the portion of the lot involved in the occurrence on February 8, 1980. He also was the general contractor of the "Jewel-Osco Project" which occupies the western 8.3 acres of the shopping center and which was completed in early February 1980. As a general contractor and developer, he has built numerous other commercial projects in the Kane County area.

To prepare the Jewel-Osco project, he retained a professional engineering consultant, Paul Box & Associates, to perform traffic studies and to comply with State Department of Transportation and city of St. Charles regulations. He also retained a civil engineering firm, Ziemet-Wozniak, which prepared the engineering site planning which was admitted in evidence.

Although in his deposition testimony he stated he believed the plans called for a stop sign at the intersection in question, he testified at trial no site plan was available to him at that time, and he was confused about which intersection was being discussed. After reviewing the site plans, he testified at trial that the plans did not call for stop signs at the intersection where the collision occurred, nor did they call for markings on the pavement at the intersection to indicate traffic was to stop. The cost of a stop sign with installation would be about $200. All plans were submitted to and approved by the Illinois Department of Transportation, the State of Illinois, and the city of St. Charles. Shodeen testified, however, that the city of St. Charles has no traffic control code for private property. The concern of the State and the Illinois Department of Transportation is with the means of ingress and egress from major thoroughfares.

Shodeen was involved in the planning and construction of the lot. He stated that his understanding of the purpose of placing signs in other portions of the lot was to meet the requirement that there be a stop sign at an entry to a major thoroughfare or to avoid a problem at a blind corner within the lot where vision was obstructed. The intersection where the accident occurred was clear and open. Under his lease with Jewel-Osco, Shodeen is responsible for cleaning, lighting, landscaping, snow removal and other general maintenance of the lot or the subcontracting therefore. The two roadways which formed the intersection in question were similar but not identical to other roadways in the parking lot where traffic control devices were installed. Shodeen testified that parking aisles, i.e., rows of parked cars, funneled about 50% of the cars which were parked to the east-west roadway on which Bittner was traveling at the time of the collision.

Shodeen attempted to call Paul Box, the consulting engineer, as a witness. Box was not permitted to testify, however, because he had not been disclosed as a witness sufficiently in advance of trial, and an offer of proof was made.

Shodeen first contends plaintiff failed to allege and prove the existence of a duty owed by him to plaintiff and that the court erred in denying his pre- and post-trial motions for dismissal, summary judgment, directed verdict, and judgment n.o.v. based on this absence of duty.

Initially we note it has been held that the denial of a motion for summary judgment is not reviewable on appeal after an evidentiary trial because any error in the denial merges into the subsequent trial. (Banwart v. Okesson (1980), 83 Ill. App. 3d 222, 225; see also International Association of Machinists and Aerospace Workers, District Lodge No. 140 v. Cheshire/A Xerox Co. (1984), 125 Ill. App. 3d 350, 352; Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 411-12.) "The rationale for the merger doctrine is that it would be unjust for a verdict reached after trial, where the evidence was completely presented to the trier of fact and subject to cross-examination, to be overturned on less evidence, that is, evidence obtained only from the pleadings and affidavits." (Paulson v. Suson (1981), 97 Ill. App. 3d 326, 328.) Accordingly, we give no consideration to Shodeen's contention in this regard.

Next, relying on Gray v. City of Plano (1986), 141 Ill. App. 3d 575, and Burnett v. Donath (1984), 127 Ill. App. 3d 131, Shodeen contends Romano's second amended complaint contains Conclusions only, as opposed to facts; thus, Romano has failed to state a cause of action and dismissal of the complaint was required.

For purposes of review, a motion to dismiss admits all well-pleaded facts (Mack v. Plaza DeWitt Ltd. Partnership (1985), 137 Ill. App. 3d 343, 349), and all reasonable inferences are drawn in favor of the opponent (Bagel v. American Honda Motor Co. (1985), 132 Ill. App. 3d 82); the court ignores Conclusions of law or Conclusions of fact unsupported by allegations of specific facts upon which such Conclusions rest (Doyle v. Shlensky (1983), 120 Ill. App. 3d 807). Factual Conclusions based on previously alleged facts, however, may be ...


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