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08/03/88 William F. Rutzen, v. Ken Pertile

August 3, 1988

WILLIAM F. RUTZEN, PLAINTIFF-APPELLEE

v.

KEN PERTILE, INDIV. AND D/B/A THE WALTONIAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

527 N.E.2d 603, 172 Ill. App. 3d 968, 123 Ill. Dec. 140 1988.IL.1208

Appeal from the Circuit Court of Lake County; the Hon. Alvin Ira Singer, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Following a jury trial, a judgment in the amount of $93,400 was entered in favor of the plaintiff, William F. Rutzen, and against the defendant, Ken Pertile. Defendant appeals.

A brief statement of the facts will suffice. Plaintiff was a passenger on a boat owned and operated by Melvin Jury. On the date of the accident, Jury, plaintiff, and Edward Henninger were on the boat and pulled up to the Waltonian Supper Club, which was owned and operated by the defendant. The pier at the supper club was "T" shaped. As Jury was docking the boat, plaintiff was to step off the boat onto the pier and tie a running line around the nearest vertical post. As plaintiff moved from the boat onto the pier, his foot went through a board on the pier. Henninger helped plaintiff up. Plaintiff's leg was bleeding, and there was a large knot on his knee. Henninger grabbed the board that had broken, and it crumpled in his hand. Plaintiff was taken up to the supper club and from there transported to the McHenry Medical Center. Thereafter, plaintiff filed a complaint against the defendant individually and doing business as the Waltonian Supper Club.

During the pendency of the lawsuit, the defendant and his wife relocated to Florida, where defendant operates a used car agency. On April 27, 1985, the plaintiff, pursuant to Supreme Court Rule 237 (107 Ill. 2d R. 237), served a notice to produce defendant at trial on defendant's attorney. The defendant, in turn, served on plaintiff a notice to take defendant's evidence deposition. Although, initially, the parties agreed to conduct the evidence deposition in Florida, the parties apparently could not reach an agreement as to the taking of the deposition.

On May 21, 1985, there was a hearing on plaintiff's motion to quash the evidence deposition of defendant, then scheduled for May 22, 1985. The motion also requested that defendant be ordered to appear at the trial, which was then set for August 3, 1985. The trial court ordered that defendant be present for the trial, stating as follows:

"So there is no misunderstanding, I don't expect Mr. Pertile to be here for any of the process on Monday [August 3, 1985], but I would expect under the ruling that he be here ready to proceed on Tuesday at 9:00 o'clock."

On July 13, 1985, plaintiff presented a motion to continue the trial date of August 3, 1987. On July 20, 1985, an order was entered setting the case for trial on August 24, 1985.

On August 6, 1985, the evidence depositions of the defendant and his wife, Shirley, were taken in West Chicago, Illinois, by defendant's attorney. Plaintiff's attorney, who received the notice of the evidence deposition on August 3, 1985, was not present for the depositions. In a conversation with defendant's attorney, plaintiff's attorney reminded defendant's attorney that plaintiff's attorney would be out of town on August 6, 1985, and was requesting that the evidence deposition not proceed on that date, and that he believed that proceeding with the evidence deposition was contrary to the court order which required defendant to be present for trial.

On August 24, 1985, the case was called for jury trial. Plaintiff filed a motion to quash the evidence depositions of the defendant and his wife. Following a hearing, the evidence depositions were quashed, and the defendant ordered to appear at trial. A jury was impaneled and opening statements were made. The case was then recessed until August 25, 1985, at 11 a.m.

On August 25, 1985, prior to the calling of the first witness, defendant made a motion to reconsider the order quashing the evidence deposition of the defendant and his wife. After argument, the motion was denied. Defendant's attorney then moved for a brief continuance to enable defendant to travel from Florida to Waukegan for the trial. The trial court denied the motion, stating as follows:

"The case was removed from the August 4th trial date and set for August 24. So certainly there was ample notice of the change of date. The problem is of course also we have other cases set for trial and I have a bench trial next week and then I'll be on vacation for two weeks, and the problem is also the jurors have all been qualified to serve this week. There was indication from counsel that the case could be tried in three days and the jurors have not been qualified or we don't know if they would even be available for a later time.

The Court will deny the motion to continue."

During the trial, plaintiff called four witnesses. These witnesses variously testified as to the condition of the pier, the distance between the boat and the pier, the injuries sustained by the plaintiff, and the consequences of the injury to the plaintiff.

The defendant called two witnesses who testified that the pier was in good shape; that there were regular inspections of the pier; and as to the distance the plaintiff traveled crossing to the pier.

Defendant's attorney advised the court that he had no more witnesses available but reminded the court defendants were flying in from Florida and were due in at 1:30 p.m. that afternoon and requested a short continuance pending defendant's arrival. Plaintiff's attorney objected, stating that the defendant ought to be required to be put on evidence after lunch or else close so the case could go to the jury. The court then observed that the weather conditions were unusual due to the rain. Noting that the defendant's remaining testimony plus closing argument would probably require three hours, and that defendant was now due in at 2:30 p.m., the trial court agreed to hold the case until 3:30 p.m. The court recessed until 1:30 p.m.

Between 1:30 p.m. and 2:30 p.m., the trial court and the parties held a conference on jury instructions.

At 3:30 p.m., the trial court asked defendant's attorney to call his next witness. Defense counsel responded that he had received a telephone call from the defendant at 3:20 p.m. advising that his plane had just landed at O'Hare field, Chicago, and that it would take approximately one hour to reach the courthouse to testify and requested that the case be continued pending their arrival. Plaintiff's attorney objected, and the trial court denied the motion. Defense counsel then moved again to read the depositions of defendant and his wife into the record, which motion was denied. Defendant's attorney then moved for a directed verdict, which was denied. The trial court also denied defendant's motion for a mistrial based upon the trial court's denial ...


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