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04/27/88 Bradford Baumgartner, v. Scott Ziessow Et Al.

April 27, 1988

BRADFORD BAUMGARTNER, PLAINTIFF-APPELLANT

v.

SCOTT ZIESSOW ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

523 N.E.2d 1010, 169 Ill. App. 3d 647, 120 Ill. Dec. 99 1988.IL.610

Appeal from the Circuit Court of Cook County; the Hon. Albert S. Porter, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

After trial in the circuit court of Cook County, a jury returned a verdict for plaintiff, Bradford Baumgartner, in his negligence action against the defendants, Scott Ziessow (Ziessow) and Lisa Fosco (Fosco). After reducing plaintiff's total damages of $35,000 by the 95% of the total negligence it found attributable solely to him, the jury awarded plaintiff $1,750.

This litigation resulted from a collision in Barrington, Illinois, on June 3, 1978, between plaintiff's 50 cc. motorcycle or "minibike" driven by plaintiff and an automobile driven by Ziessow and owned by Fosco. On that date, plaintiff was riding his minibike in a westerly direction on the north shoulder of Hillside Avenue after having made a right turn from Grace Avenue. The automobile in which defendants were riding and which was travelling west on Hillside Avenue struck plaintiff from behind.

Defendant Ziessow testified as an adverse witness for plaintiff. He testified that plaintiff continued to go straight west on the shoulder of Hillside Avenue until he turned in front of defendants' car, and that he saw plaintiff in the street and that the minibike changed direction just before the impact. Plaintiff's counsel impeached Ziessow with his deposition testimony that plaintiff had continued going straight west on the shoulder of Hillside Avenue and that he had not seen plaintiff in the street or change direction at any time. Defense counsel then established that Ziessow also testified at his deposition that plaintiff had made an abrupt or sharp left turn while still on the shoulder of the road and that the car was about 10 feet away from plaintiff when Ziessow saw him enter the roadway. On re-cross-examination, Ziessow conceded that he did not see plaintiff begin to make a left turn. Ziessow then testified that when he next saw him, plaintiff was at the right front corner of the car. Shortly before he saw plaintiff at that position and while the car was approximately six to eight feet away from plaintiff and was travelling at 10 to 15 miles per hour, Ziessow applied his brakes and turned the car to the left to avoid colliding with plaintiff. When Ziessow realized there was going to be a collision, the minibike was travelling at a speed of 5 to 10 miles per hour, had gone about a foot or two onto the road, and was at an angle of 70 degrees. The car skidded about 10 feet and came to a stop within two feet of the impact with the minibike. Ziessow further testified that he steered the car over to the left side of the westbound lane upon first seeing plaintiff in order to give him a "wide berth." The testimony of defendant Fosco largely corroborated that of defendant Ziessow.

Plaintiff testified that, at the time of the accident, he was proceeding west on the north shoulder of Hillside Avenue with the intention of crossing Hillside Avenue and proceeding to a vacant lot on the south side of the road. Plaintiff further testified that the fastest he went on the shoulder of the road was 20 miles per hour and that he had slowed to about one to two miles per hour just before stopping in order to cross Hillside Avenue. Just before the collision, plaintiff heard a car skidding on the pavement directly behind him. Plaintiff was a foot or two from the edge of the shoulder of the road and no part of the minibike was on the pavement of the road. The next thing plaintiff recalled was waking up while lying on the pavement. He did not recall the impact or anything between the time of impact and the time he found himself lying on the ground. Plaintiff testified that based on his experience with the minibike during the year and a half he owned it, he could not have made a 90- to 70-degree left turn from the gravel shoulder of the road at 5 or 10 miles per hour.

John Mack, called by plaintiff, testified under cross-examination that he had passed plaintiff on Hillside Avenue prior to the accident and that, as he was looking at plaintiff through his rearview mirror, he saw him turn left without looking back and that immediately thereafter, he saw a car strike plaintiff. Mack also testified that the car tried to stop before striking plaintiff and that it struck plaintiff on the left side of the westbound lane of Hillside Avenue. On redirect examination, Mack testified that plaintiff's minibike had made a 90-degree turn to the left, was facing south, and had almost reached the center of the road when struck by defendants' car.

Opinion

On appeal, plaintiff first contends that the trial court erred in failing to instruct the jury that defendants had the burden of proving plaintiff's contributory negligence. Plaintiff relies on Casey v. Baseden (1985), 131 Ill. App. 3d 716, 475 N.E.2d 1375, aff'd (1986), 111 Ill. 2d 341, 490 N.E.2d 4, decided before trial in this cause commenced, which held that defendants have the burden of proving a plaintiff's contributory negligence and that an instruction to that effect is proper.

We find this contention meritless. Initially, we find no support in the record for the assertion that defense counsel violated Supreme Court Rule 7 -- 106(b)(1) (107 Ill. 2d R. 7 -- 106(b)(1)), requiring counsel to disclose adverse authority, by failing to disclose the Casey decision. In so arguing, plaintiff relies on defense counsel's statement in the instructions conference that the supreme court "has a couple brand new cases out" on the subject of affirmative defenses. He argues that this statement "suggests" defense counsel's awareness of Casey. This argument is purely conjectural and speculative. As already noted, the appellate court's decision in Casey was filed before the trial in this cause commenced. However, the supreme court opinion affirming Casey was not filed until February 21, 1986. As such, it was impossible for defense counsel to have been aware of the supreme court's affirmance of Casey on October 17, 1985, when the instructions conference in this cause was held.

Also unavailing is plaintiff's assertion that he did not tender an instruction on defendants' burden to prove contributory negligence because the trial court ruled that no such instruction was proper or necessary. According to plaintiff, the trial court believed that, since negligence on plaintiff's part would not totally bar the action, it was not an affirmative defense requiring an instruction. However, the Discussion in the instructions conference regarding whether defendants had any affirmative defenses and whether plaintiff's contributory negligence was such a defense occurred after the trial court and counsel had reviewed plaintiff's proposed instructions. And plaintiff's proposed instructions did not include one regarding any burden on defendants to prove contributory negligence. It is thus untenable for plaintiff to argue that he offered no such instruction because of an observation the trial court made only after the review of his proposed instructions.

Moreover, the record reveals that plaintiff offered no instruction on defendants' burden to prove contributory negligence because he did not believe that they had that burden. When defense counsel stated that there was a problem in Illinois with affirmative defenses, plaintiff's counsel stated, "You think contributory negligence is an affirmative defense? That's wonderful if you do."

Ultimately, we find that plaintiff's failure to tender an instruction on defendants' burden to prove contributory negligence has resulted in a waiver of the alleged error in failing to give such an instruction. 107 Ill. 2d R. 366(b)(2)(i); see also, Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 475 N.E.2d 817; Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452, 502 N.E.2d 806.

Plaintiff next contends the trial court erred in rejecting a tendered instruction that he should be held to the standard of care imposed on a minor and in instructing the jury, instead, that he was held to the standard of care of an adult.

This contention is also meritless. The law is settled in Illinois that minors operating motor vehicles (McWethy v. Lee (1971), 1 Ill. App. 3d 80, 272 N.E.2d 663; Dawson v. Hoffman (1963), 43 Ill. App. 2d 17, 192 N.E.2d 695; Betzold v. Erickson (1962), 35 Ill. App. 2d 203, 182 N.E.2d 342) and, specifically, minibikes (Sherrod v. Brannock (1978), 67 Ill. App. 3d 972, 385 N.E.2d 735; Fishel v. Givens (1977), 47 Ill. App. 3d 512, 362 N.E.2d 97; Perricone v. DiBartolo (1973), 14 Ill. App. 3d 514, 302 N.E.2d 637) are held to the standard of care of an adult.

Moreover, King v. Casad (1984), 122 Ill. App. 3d 566, 461 N.E.2d 685, expressly rejected the rationale plaintiff cites for applying a minor standard of care in this type of case, i.e., that it is obvious to a defendant that he is dealing with a minor. The King court observed that a higher standard of care is imposed on a minor when he is engaged in an adult activity because of the more dangerous nature of that activity, not because the public is on notice of his minority. The court noted that defining the standard of care required of a person by reference to whether another person had notice of the former's conduct is illogical. King, 122 Ill. App. 3d at 572.

Finally, the cases plaintiff cites in support of his contention are factually distinguishable. Both King and Conway v. Tamborini (1966), 68 Ill. App. 2d 190, 215 N.E.2d 303, involved minor plaintiffs struck by motor vehicles while riding bicycles. Mack v. Davis (1966), 75 Ill. App. 2d 88, 221 N.E.2d 121, involved a 17-year-old plaintiff injured when he fell off a farm tractor. The Mack court noted the general rule that a minor engaged in the operation of a motor vehicle must be Judged by the standard of care required of all other drivers. It concluded, however, that under the circumstances of the case, including that farm tractors are frequently operated by minors and that a substantial part of their operation is not on public highways nor involves any particular hazard to the public, the standard of care required of the plaintiff was that of a person of his age, experience and intelligence. Mack, 76 Ill. App. 2d at 96.

The accident here occurred on a public road and, unlike Mack, as a result of a collision with another vehicle. As such there is not the same justification as in Mack for excusing plaintiff from an adult standard of care. That plaintiff contended he was struck while on the shoulder of the road does not alter that Conclusion. For purposes of determining the proper standard of care required of plaintiff, we believe the shoulder of the road was as much a part of the public road as the paved portion of the road on which vehicles normally travel., Plaintiff ...


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