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06/05/89 Nancy Fear, v. Jamie Smith

June 5, 1989

NANCY FEAR, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

JAMIE SMITH, A MINOR, DEFENDANT-APPELLANT AND CROSS-APPELLEE (KAREN WALLACE ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

539 N.E.2d 1297, 184 Ill. App. 3d 51, 132 Ill. Dec. 491 1989.IL.842

Appeal from the Circuit Court of Jasper County; the Hon. Richard Brummer, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. WELCH, P.J., and RARICK, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Following a bench trial in the circuit court of Jasper County, plaintiff, Nancy Fear, was awarded $5,000 for pain and suffering and $71.95 for medical expenses in her personal injury action against defendant Jamie Smith. In addition, the court ordered each party to pay one-half, or $1,296.40, of the costs and fees of the guardian ad litem who had been appointed to represent Smith, a minor. The court provided, however, that the share of the fees and costs owed by plaintiff would be assessed as costs which she was entitled to recover from Smith. Smith now appeals, arguing: (1) that the circuit court erred in denying his motion for a directed judgment; (2) that the circuit court's judgment is contrary to the manifest weight of the evidence; (3) that the circuit court erred in denying his post-trial motion based on newly discovered evidence; and (4) that the circuit court should have required plaintiff to pay all of the guardian ad litem's fees and should have made the fee award higher. Plaintiff cross-appeals, contending that it is Smith who should be responsible for the full amount of the guardian ad litem's fees and costs. She also claims that the circuit court erred in refusing to award her damages for lost wages. For the reasons which follow, the judgment shall, with certain modifications, be affirmed.

The events which gave rise to this litigation took place on the morning of July 21, 1983. Smith, who was nine years old at the time, was in the yard of his home burning trash with a blow torch. Burning the trash had apparently become one of his regular jobs around the house. Although Smith was apparently supposed to use matches to start the fire and did not have permission to use the blow torch, he had learned how to use the torch by observing his stepfather and knew how it operated.

Plaintiff was a mail carrier with the United States Post Office, and her route included Smith's house. Shortly before plaintiff reached the house on the morning of the 21st, Smith took the blow torch and heated the mailbox. The testimony, when viewed in the light most favorable to plaintiff, the prevailing party, indicates that Smith decided to heat the mailbox after he saw plaintiff approach. There was some indication that he did so to retaliate against plaintiff, who had once chastised him for obstructing her mail truck with a lawnmower. Plaintiff did not see what Smith had done, and by the time she reached the house he had run inside. Smith claims that he was not trying to run away, but that he went to ask the babysitter to warn plaintiff not to touch the mailbox and to get some ice with which to cool the mailbox down. In fact, the babysitter was not summoned or chose not to respond. No ice was used to cool the mailbox. The box was still hot when plaintiff reached the house. Because of the way the box was constructed, she had to reach inside to open the lid. When she realized how hot the box was, she tried to pull her hand out, but it got stuck and took about 30 seconds for her to free it. As a result, plaintiff's hand was seriously burned.

Plaintiff sought medical treatment for her burns at the Weber Medical Clinic. There, a salve was applied and plaintiff's fingers were bandaged. She returned to the clinic for treatment once a week for three weeks. Plaintiff testified that she suffered constant pain for the first few days following the injury. The pain gradually dissipated, but at least two months passed before her hand was completely healed.

Plaintiff's medical expenses for the treatment she received at the clinic were $71.95. In addition, she missed slightly over three weeks of work. Her wages for that period would have been approximately $1,263. She did receive a payment in that amount, but that payment did not constitute part of her regular wages. It was made under "CAP," a fringe benefit she had through her employer which provided for the continuation of pay when one could not continue to work because of a job-related injury.

In the spring of 1985, plaintiff filed suit in the circuit court of Jasper County to recover damages for the injuries she sustained in this incident. Named as defendants were Karen Wallace, Smith's mother; Charles Wallace, Smith's stepfather; and Smith himself. In 1986, plaintiff obtained a default judgment against them. Thereafter, a guardian ad litem was appointed for Smith. The GAL then moved to set aside the default judgment as to Smith. That motion was granted and the case proceeded to trial on the merits against Smith alone. At the Conclusion of the trial, the circuit court entered judgment in favor of plaintiff. It awarded her a total of $5,071.95. Of this, $5,000 was for "past and future pain and suffering" and $71.95 was for the cost of plaintiff's medical treatment. Smith then filed a post-trial motion, and the GAL petitioned for an award of his reasonable fees, costs and expenses.

Following a hearing, the circuit court denied Smith's post-trial motion, but awarded the GAL fees and costs in the amount of $2,592.80. In its order, the court specified that one-half of this amount, or $1,296.40, was to be paid by Smith and that the other half was to be paid by plaintiff. The court indicated, however, that "to the extent paid by Nancy Fear, her payment shall be recoverable as part of the court costs against Jamie Smith." Smith now appeals. Plaintiff cross-appeals.

At the Conclusion of plaintiff's case, Smith requested that a directed judgment be entered in his favor pursuant to section 2-1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1110). That motion was denied, and Smith first argues on this appeal that the denial constituted reversible error. This argument is not well taken. After Smith's motion was denied, he proceeded to adduce evidence in support of his defense. Section 2-1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1110) expressly provides, however, that if a defendant proceeds to adduce evidence in support of his defense after having his motion for a directed judgment denied, "the motion is waived." This statute is clear, unambiguous, and contains no exceptions. Smith will therefore not now be heard to complain that the circuit court's ruling on the motion was erroneous.

Smith next argues that the circuit court's judgment is contrary to the manifest weight of the evidence because plaintiff failed to establish his liability. Because this argument is raised for the first time in Smith's reply brief, plaintiff argues that it has also been waived. Smith has responded by arguing that because he is a minor, this court has a special obligation to protect his rights and that the rules on waiver should ...


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