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09/14/87 Enriqueta Chavez, v. Albert Watts

September 14, 1987

ENRIQUETA CHAVEZ, PLAINTIFF-APPELLEE

v.

ALBERT WATTS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

515 N.E.2d 146, 161 Ill. App. 3d 664, 113 Ill. Dec. 337

Appeal from the Circuit Court of Cook County; the Hon. Allen A. Freeman, Judge, presiding. 1987.IL.1333

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

Defendant, Albert Watts, appeals from the trial court's denial of his post-trial motions for costs under section 5-109 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 5-109) and for attorney fees and expenses under section 2-611 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-611). Plaintiff, Enriqueta Chavez, cross-appeals from the trial court's denial of her post-trial motion alleging numerous trial errors. We will discuss the issues on cross-appeal first.

Plaintiff contends that: (1) she was denied a fair trial by defendant's allegedly prejudicial closing argument; and (2) that the trial court committed the following errors: (a) it allowed defendant to impeach plaintiff with evidence of a prior personal injury lawsuit in which she was the plaintiff without connecting the prior incident to her present injuries; (b) it allowed defendant to impeach plaintiff with a deposition she had given in the prior lawsuit, ruling that defendant had properly complied with discovery; (c) it allowed defendant to impeach plaintiff with collateral evidence; (3) it barred a statement defendant gave to his insurer on the ground that the attorney-client privilege applied; (e) it allowed defendant to amend his answer after the close of all of the evidence; (f) it denied plaintiff's motion for a directed verdict; and (g) it submitted a special interrogatory to the jury. For the reasons that follow, we affirm the verdict in favor of defendant.

On February 27, 1985, plaintiff, who was 79 years old, and her daughter stopped for a snack at McDonald's. Because her daughter had not finished eating, plaintiff left to go shopping. As she walked across the street at Western and Milwaukee Avenues in Chicago, defendant turned his car left into the crosswalk where plaintiff was walking. Defendant stopped his car and plaintiff fell down backwards. Plaintiff's daughter was called to the scene by a police officer. An ambulance took plaintiff to the hospital, where she remained for three days. There were no eyewitnesses to the accident.

On March 27, 1985, plaintiff filed a two-count complaint against defendant. Count I, alleging negligence, claimed that defendant's car collided with plaintiff in the crosswalk at Western and Milwaukee Avenues in Chicago while plaintiff was crossing from the northwest side of Western to the southwest side. Count II alleged willful and wanton misconduct., Defendant's unverified answer denied all allegations of liability, but admitted that the front of his vehicle hit plaintiff.

At trial, plaintiff testified that defendant's car hit her as she crossed Western on the green light. She stated that she felt an impact on her left side, turned a half turn and fell on her back. She was not unconscious, but everything went dark, her eyes hurt, she was dizzy, she had a headache, she felt nauseated, her back and legs hurt, and she vomited in the emergency room.

Defendant testified that his car made no contact with plaintiff. He stated that he stopped his car and plaintiff fell. Defendant was confronted on cross-examination with his answer where he admitted he hit plaintiff.

Plaintiff also testified as to her medical expenses and to the following injuries caused by the accident: she had to use a cane for the first time in her life; she used to walk around her neighborhood and go shopping, but was now afraid to go out alone; she had severe headaches; her arthritis flared up after the accident, especially in her hip and lower back; and she claimed that the accident affected her physically and morally and that she felt ruined. Plaintiff's medical expert testified that plaintiff's permanent injuries were the result of the impact of defendant's car hitting plaintiff.

On cross-examination, defendant impeached plaintiff's above testimony with a deposition transcript given by plaintiff on July 29, 1985, in connection with an unrelated personal injury suit plaintiff had filed regarding injuries she received in an accident in 1982. In that case, plaintiff fell down 10 wooden stairs in a restaurant and subsequently sued the restaurant. In her deposition, plaintiff stated that she had to use a cane since the time that she fell down those stairs, that she saw a doctor because she feared going out after her fall, and that she had received no injuries from the accident with Mr. Watts, the defendant in the case at bar. During cross-examination in the present case, plaintiff said she did not remember stating those things in her deposition. Defendant called to the witness stand the court reporter who transcribed plaintiff's deposition on July 29, 1985. She confirmed what defendant alleged plaintiff had stated in her deposition but also testified that plaintiff had reserved signature on the deposition.

At the close of all of the evidence, the trial court denied plaintiff's motion for a directed verdict and granted defendant's motion to amend his answer to conform to the proof. The amended ...


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