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09/17/87 Robert W. Chladek, Sr., v. Carol Albon

September 17, 1987

CHLADEK, JR., DECEASED, PLAINTIFF-APPELLEE

v.

CAROL ALBON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

ROBERT W. CHLADEK, SR., Adm'r of the Estate of Robert

515 N.E.2d 191, 161 Ill. App. 3d 884, 113 Ill. Dec. 382

Appeal from the Circuit Court of Cook County; the Hon. Jacques F. Heilingoetter, Judge, presiding. 1987.IL.1361

APPELLATE Judges:

JUSTICE JIGANTI delivered the opinion of the court. McMORROW, P.J., concurs. JUSTICE LINN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

This is an appeal from a judgment entered under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, pars. 1, 2) against the defendant, Carol Albon, for the loss suffered by the plaintiff Robert W. Chladek, Sr., as administrator, as a result of the death of his son, Robert, Jr. The trial court directed the verdict for the plaintiff and the jury then awarded the Chladeks $290,000 in damages. On appeal to this court, Albon challenges the propriety of the directed verdict; certain statements made by the plaintiff's counsel during closing argument; and the amount of the damage award.

Robert, Jr., was struck and killed by an automobile driven by Albon. At the time of the accident, the decedent, age five, was with two neighbor children, Denise, age 13, and R.T., age eight. As the diagram below reflects, the three were on the south side of 183rd Street just west of Pulaski. The car driven by Albon was in the left lane and going west on 183rd Street. After waiting for the traffic light at the intersection of Pulaski and 183rd to change, Albon proceeded through. Following behind her car was that driven by Gerald Cirullo, with his wife as a passenger. Proceeding in the opposite direction on 183rd, which was the south side of 183rd where the decedent was located, was a car driven by Beverly Campbell. In front of Campbell's car were several other cars turning north onto Pulaski from 183rd. The accident occurred at approximately 6:15 p.m. on December 16, 1980, at which time it was dark and all the cars had their headlights on. The child named R.T. was wearing a yellow raincoat and Robert, Jr., was wearing a dark jacket.

Nonscale diagram taken from appellant's brief

The evidence at trial revealed that just moments before Robert, Jr., was hit, R.T. had successfully run through the traffic to the north side of 183rd Street. Robert, Jr., then also ran in a northerly direction across 183rd, yet was struck by the left front corner of Albon's car and died the next morning. The estate of Robert, Jr., subsequently brought this action under the Wrongful Death Act against Carol Albon.

At trial, Albon testified that she did not see either R.T. or Robert, Jr., run into the street and could not explain why she failed to see either boy. She stated that the intersection was well lit and that nothing obstructed her view or distracted her. The weather was clear and visibility was good. Albon also stated that she would have been able to brake suddenly if it were necessary because she was only going 20 miles per hour at the time of the accident.

Beverly Campbell, who was traveling in the opposite direction, testified that she saw something leave the south curb to her right. She stated that the child was approximately 1 1/2 car lengths in front of her when she noticed him. She started to brake and slow down and the child ran directly in front of her car and almost simultaneously into Albon's car. Further, she testified that she had not seen any other child run across the street.

Driving the car behind Albon was Gerald Cirullo. Cirullo testified that at approximately 70 feet in front of his car he saw a child wearing a yellow raincoat running across 183rd Street. He stated that he watched until the child was past the car in front of him. He then noticed shadows under the cars in the eastbound lanes and a few seconds later he saw a boy, who was about 2 to 2 1/2 feet tall, emerge in the middle of the eastbound lanes. Cirullo lost sight of the boy after the boy went from the middle of the eastbound lane into the westbound lane. He did not see the accident. He also testified that Albon had not slowed down after the child in the yellow jacket ran across or before the impact with the decedent. He stated that he had a better view of what was transpiring than did the Albon car and that he saw the boy in the headlights of Albon's car.

Patricia Cirullo, a passenger in Gerald Cirullo's car, testified that she saw the first child run across the street and that her husband then slowed down. She then saw something in the air. In addition, she stated that the Albon car in front of her did not brake or slow down. After all the evidence was presented, ...


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