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06/22/89 Linda Deerhake, Adm'r of v. Duquoin State Fair

June 22, 1989

AL., PLAINTIFFS-APPELLEES

v.

DUQUOIN STATE FAIR ASSOCIATION, INC., DEFENDANT-APPELLANT



Before this court can proceed to discussing the various issue, it must dispose of various subissues. These subissues are important to the Discussion of the first issue regarding the duty of defendant to plaintiffs.

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

LINDA DEERHAKE, Adm'r of the Estate of Kevin Deerhake, et

541 N.E.2d 719, 185 Ill. App. 3d 374, 133 Ill. Dec. 508 1989.IL.967

Appeal from the Circuit Court of Perry County; the Hon. Jerome F. Lopinot, Judge, presiding.

APPELLATE Judges:

JUSTICE GOLDENHERSH delivered the opinion of the court. LEWIS and RARICK, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH

On January 30, 1987, a Perry County jury awarded plaintiff Linda Deerhake (Deerhake) $1,100,000 reduced by 30% to $770,000 for her decedent husband's contributory negligence, and awarded plaintiff Gerald DeGerlia (DeGerlia) $2,155,500 reduced by 18% to $1,767,510 for his contributory negligence. After the trial court denied the post-trial motion of defendant, DuQuoin State Fair Association, Inc., defendant appealed. This court affirms with directions.

The record reveals the following facts. Defendant was scheduled to hold an American Motorcycle Association sanctioned motorcycle race on Sunday, July 27, 1980. As the spectators gathered on the fairgrounds the Friday and Saturday before the race, defendant permitted them to camp on the grounds for a fee. Defendant also charged an admission to see the sanctioned race. However, due to the rain on July 27, the race was cancelled. Although a majority of the crowd left, some of the spectators stayed to watch unsanctioned drag races along Gate 2 Road on defendant's property. During the drag races, Deerhake's husband, Kevin Deerhake, was killed, and DeGerlia was seriously injured in a motorcycle accident.

On August 11, 1981, DeGerlia filed a complaint against defendant. On July 26, 1982, Linda Deerhake filed a complaint against defendant for wrongful death of her deceased husband, Kevin Deerhake. The cases were consolidated for a jury trial. On January 30, 1987, the jury awarded Deerhake $1,100,000 reduced by 30% to $770,000 for her decedent's contributory negligence, and awarded DeGerlia $2,155,500 reduced by 18% to $1,767,510 for his contributory negligence. After the trial court denied defendant's post-trial motion, defendant appealed. Since the record is voluminous and defendant raises many issues, this court will consider all facts regarding each issue as they arise.

Defendant argues that the trial court erred when it allowed the jury to consider evidence that defendant made a profit from the sanctioned motorcycle event. Defendant argues that for such evidence to be relevant, it must tend to prove a matter in controversy. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 519, 468 N.E.2d 1228, 1235.) This court finds that the trial court properly denied defendant's motion in limine regarding any profits raised from the race event because the admission fees to the sanctioned races ($8 camping fee; $12 grandstand admission, and parking fee) offered evidence of the invitee status of plaintiffs and the reasonableness of requesting defendant to hire more security or purchase equipment.

Defendant also argues that the trial court erred when it prohibited defendant from inquiring about plaintiff DeGerlia's prior motorcycle accidents. This court holds that the trial court properly denied defendant's request to present evidence of DeGerlia's prior motorcycle accidents as evidence of knowledge of the dangerousness of driving a motorcycle at "certain" speeds. As a general rule, the trial court has the discretion to prohibit admission of evidence which is otherwise admissible but whose probative value is outweighed by the danger of prejudice or confusion. (Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 911, 469 N.E.2d 708, 722.) In this case, the admission of DeGerlia's prior accidents on a motorcycle would cause confusion because the issue is defendant's duty to a business invitee regarding highly dangerous, negligent and criminal activities of third parties occurring on defendant's property. Most importantly, DeGerlia was not operating the motorcycle at the time of the accident.

At this point, this court addresses another subissue regarding the admission of testimony concerning subsequent measures taken to prevent drag racing on defendant's property. This court finds that defendant cannot allege error because defendant opened the door. On direct examination, plaintiff did not elicit any such testimony from witness Ray Davenport. Defendant's cross-examination and re-cross-examination proceeded to elicit this evidence. Furthermore, the other alleged errors occurred after defendant elicited the initial response regarding subsequent measures. Since defendant used the testimony in its defense, it cannot now complain of error. Plaintiffs' counsel on direct did not question the witness on why he did not go to the races after 1982. It was defendant's counsel who asked why the races diminished.

Defendant argues that the trial court erred when it allowed introduction of prior motorcycle accidents on the fairgrounds. It is well established that evidence of prior accidents, occurring under substantially similar conditions, is admissible to show the existence of a hazard and to show that defendant had notice of its existence. (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 499 N.E.2d 1373; Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534.) Defendant specifically argues that there is a lack of substantial similarity.

This case involves a motorcycle drag race occurring on the fairgrounds at which plaintiffs were injured when a motorcycle (decedent's) went out of control and was unable to stop. In 1979, Deputy Sheriff James Wessler witnessed an accident involving motorcycle drag racing on the same road and area. In the 1979 accident, a motorcyclist was drag racing, lost control and was unable to stop at the end of the road, colliding with the gate. This court finds sufficient similarity in accidents, and therefore defendant's position is without merit.

Defendant also argues that the introduction of a 1979 newspaper article titled, "Unauthorized Racing Claims 4 Casualties," was highly prejudicial and lacked proper foundation regarding substantial similarity. The court allowed the evidence on the issue of notice. The article was also used in part to refresh the recollection of Lyndal Graff, was not read to the jury, and did not go to the jury. The article mentioned not only the accident Deputy Sheriff Wessler saw but also another motorcycle accident occurring on the same road. The article is well within the exception to the hearsay rule for showing notice and as such the court properly admitted it. (Smith v. Solfest (1978), 65 Ill. App. 3d 779, 782-83, 382 N.E.2d 831, 834.) Furthermore, the use of the newspaper article was permissible to refresh the memory of a witness. (Clifford v. Drake (1884), 110 Ill. 135, 136-37.) This court finds that the trial court did not err.

In connection with defendant's issue regarding the statements made by Lyndal Graff and printed in a newspaper article, this court finds that the issue has been waived for failure to object properly. I

Defendant's first major issue on appeal is whether the trial court properly entered judgment against it. Defendant argues that the court should have directed a verdict for defendant or granted defendant's motion for summary judgment because it did not have a duty to protect the plaintiffs from the open and obvious dangers associated with unauthorized motorcycle drag racing. Defendant argues that whether the trial court classified plaintiffs as invitees, licensees or trespassers, it did not owe them a duty to protect them from unauthorized drag racing pursuant to sections 343 and 343A of the Restatement (Second) of Torts. Restatement (Second) of Torts §§ 343, 343A (1965).

However, this court finds that defendant's argument is without merit because sections 343 and 343A are not applicable. Plaintiffs were injured by negligent activity of a third party on defendant's property. Sections 343 and 343A apply to dangerous conditions known to or discoverable by the possessor of land and to dangerous activities conducted by the owner-occupier, not to dangerous activities conducted by third parties.

The applicable section in the case at bar is section 344. Section 344 provides:

"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it." Restatement (Second) of Torts 344 (1965).

The comments to section 344 contain the following explanation:

" f. Duty to police premises. Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection." Restatement (Second) of Torts § 344, comment f, at 225-26 (1965).

Although the trial court did not apply this standard at the time defendant made its motion, applying instead section 341 (Restatement (Second) of Torts § 341 (1965)), the court commented:

"I believe this case can be nothing other than an activity case rather than just a pure premises liability case. . . . [But] principally it's an activities case with all its burden of contributory negligence."

Later in the proceedings, conforming to the evidence presented, the court ruled the applicable duty was that stated in section 344 of the Restatement (Second) of Torts.

Section 344 has been applied to similar situations in which a party was injured by the activity of a third party. In Duffy v. Midlothian Country Club (1980), 92 Ill. App. 3d 193, 415 N.E.2d 1099, this court held section 344 may impose liability for injuries sustained by a spectator struck by a golf ball where the evidence showed that golf balls had regularly landed in the concession area in the park. See Maytnier v. Rush (1967), 80 Ill. App. 2d 336, 225 N.E.2d 83.

Section 344 specifically applies to business invitees or visitors. In this case defendant allowed plaintiffs as well as many other business visitors to enter upon its premises, after a fee was paid for the privilege, to camp on the business ...


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