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04/15/88 Tomas A. Cuellar, v. Robert W. Hout

April 15, 1988

TOMAS A. CUELLAR, PLAINTIFF-APPELLANT

v.

ROBERT W. HOUT, DEFENDANT (WINFIELD TOWNSHIP ET AL., DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

522 N.E.2d 322, 168 Ill. App. 3d 416, 118 Ill. Dec. 867 1988.IL.549

Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. INGLIS and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiff, Tomas A. Cuellar, brought an action in the circuit court of Du Page County seeking damages for personal injuries he alleged resulted from the negligence of Roger W. Hout (Hout), Winfield Township (the township), and Winfield Township Highway Commissioner Arthur J. Lootens (Lootens). Prior to trial, Hout was dismissed as a defendant pursuant to a settlement agreement with plaintiff. Plaintiff's claim against the township and Lootens (defendants) was tried by a jury, which returned a verdict for defendants and against plaintiff. In addition, the jury, responding to a special interrogatory, found "the negligence of the defendants [was not] a proximate cause of the injury to Tomas A. Cuellar at the time and place alleged." The circuit court denied plaintiff's post-trial motion and entered judgment on the jury's verdict. Plaintiff appeals from this judgment.

The accident on which plaintiff's action was based occurred on June 26, 1983. Plaintiff was riding a motorcycle heading north on Ridgeland Street. At the same time Hout was driving a van west on National Street. At about 7 p.m. at the intersection of Ridgeland and National in Winfield Township, plaintiff collided with the driver's side of Hout's van. Although they did not witness the collision, four witnesses saw plaintiff riding immediately before the accident. One testified that plaintiff was going about 30 miles per hour, and the other three testified that he was going over 50 miles per hour. Plaintiff, who suffered brain damage from the accident (having been comatose for several days afterward), had incomplete recollection of the period just prior to the accident and did not remember how fast he had been travelling. Hout was the only witness to testify as to his driving prior to the collision. His unrebutted testimony was that he was driving about 15 to 20 miles per hour at 7:10 p.m. Before he reached the intersection of National and Ridgeland, Hout placed his foot on the brake because he would have to yield the right-of-way to northbound traffic on Ridgeland. As he approached the intersection, Hout looked to his left and then to his right. Hout looked to his left again as he entered the intersection, and then he looked straight ahead. He had seen no vehicles approaching the intersection. When Hout was 10 to 15 feet into the intersection he heard a motorcycle engine, and the collision occurred at almost the same instant. It was undisputed that drivers' views were obstructed to some extent near the intersection (the extent, however, being much in dispute) and that there were no regulatory or warning signs on either street near the intersection (although the need for such signs was in dispute).

Plaintiff was taken to Central Du Page Hospital. At some time between 8:55 p.m. and 9:17 p.m. a blood sample was drawn to perform a blood-alcohol test. The test indicated a blood-alcohol level of .064.

Defendants presented the testimony of James O'Donnell, who was a pharmacologist, pharmacist and nutritionist, as to whether plaintiff had been intoxicated at the time of the accident. O'Donnell testified that "retrograde extrapolation" is accepted in the pharmacological community. Alcohol is eliminated from the body at an average rate of .015 to .02 per hour. O'Donnell used the .02-per-hour elimination rate on the basis that it was more likely correct due to elevated levels of certain enzymes in the blood indicating how plaintiff's liver was functioning. Assuming the .02-per-hour elimination rate, and assuming that during the entire period after the accident plaintiff was in the elimination and not the absorption phase for the alcohol he had consumed, retrograde extrapolation indicated that plaintiff had a blood-alcohol level of .104 at the time of the accident. O'Donnell was of the opinion that plaintiff had been intoxicated at the time of the accident.

Austin Gibbons, M.D., a pathologist (who was also an attorney), testified as an expert for plaintiff. He testified that retrograde extrapolation of a blood-alcohol level from a single measurement could not be relied upon. From that number it is impossible to determine whether the person is still in the absorption phase or, if in the elimination phase, when the level had peaked. Trauma, the type of beverage consumed, and the type of food consumed could affect the absorption rate and so the validity of an extrapolation. Gibbons also testified that the enzymes O'Donnell had found significantly high were not much above normal levels and would be expected to be at higher than average levels for a period following trauma., Plaintiff raises the following issues:

"1. Whether the trial court ruled correctly in allowing defendants to place evidence of plaintiff's drinking before the jury.

2. Whether the trial court ruled correctly in allowing opinion evidence that plaintiff was intoxicated by one who did not observe plaintiff, but who based the opinion on mathematical extrapolations and a statutory presumption.

3. Whether the trial court ruled correctly in excluding evidence of defendants' admission [that the intersection should have signs]."

We affirm., Plaintiff's first two issues are related. We will, therefore, follow the lead of the ...


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