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06/28/89 Janice Snell, Special Adm v. the Village of University

June 28, 1989

SNELL, DECEASED, PLAINTIFF-APPELLEE

v.

THE VILLAGE OF UNIVERSITY PARK, F/K/A THE VILLAGE OF PARK FOREST SOUTH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

JANICE SNELL, Special Adm'r of the Estate of Jacqueline

542 N.E.2d 49, 185 Ill. App. 3d 973, 134 Ill. Dec. 49 1989.IL.1012

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Janczy and the Hon. Edwin M. Berman, Judges, presiding.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant, Village of University Park (Village), appeals from the entry of a jury verdict of $900,000 in favor of plaintiff, Janice Snell, special administrator of the estate of her deceased daughter, Jacqueline Snell (Jacqueline), in a wrongful death and survival action. *fn1 Defendant also appeals from the denial of its post-trial motion. *fn2 Plaintiff's action arose out of an incident which occurred on August 24, 1981, in which Jacqueline, 11 years old at the time, died after falling while riding her bicycle. Plaintiff alleged that the defective condition of a street curb caused Jacqueline to fall and sustain the injuries which caused her death. Specifically, plaintiff alleged that defendant was negligent in failing to inspect the curb; allowing the curb to remain, after receiving notice, in an unreasonably dangerous condition; and causing the curb to be sunken in certain areas.

Defendant raises the following contentions on appeal: (1) defendant was entitled to a directed verdict or a judgment notwithstanding the verdict, as a matter of law, since plaintiff failed to establish that defendant's negligence proximately caused Jacqueline's injuries; (2) the verdict is contrary to the manifest weight of the evidence; (3) the accumulation of certain errors at trial regarding the admission of evidence warrants reversal of the verdict; and (4) the verdict is grossly excessive.

For the reasons stated below, we reverse the judgment of the circuit court.

The record indicates that in the afternoon on August 24, 1981, while it was still light outside, Jacqueline and her friend, Lisa Boudreau, rode their bikes to the house of their neighbors, the Reillys, located at 822 Blackhawk in the village now known as University Park, Illinois. After visiting with Terry Reilly, the girls left. Lisa proceeded down the driveway first and rode into the street. Jacqueline followed, riding down the driveway, cutting across the sidewalk onto the grassy area between the sidewalk and street, when she fell.

Lisa Boudreau testified that as she reached the other side of Blackhawk Street, she turned her head and saw Jacqueline falling. Lisa was approximately 20 to 25 feet from Jacqueline. Lisa did not see Jacqueline from the time the two of them were standing in the driveway until she saw Jacqueline falling. Jacqueline did not fall over the handlebars, but rather fell to the side. Lisa saw Jacqueline as she was about to hit the ground. Jacqueline's head hit the ground, and then Jacqueline was lying on her back, with her head and most of her body on the street and with her legs on the grass. The bicycle was completely on the grass. Lisa approached Jacqueline, picked up her head, and noticed a bump on the back of her head.

Terry Reilly testified that he was standing in the driveway when the accident occurred. Terry saw Jacqueline ride down the driveway, through the grass, and toward the street. Terry stated that as Jacqueline went near the curb, it appeared that her bicycle "ran out of juice" and Jacqueline and the bicycle just seemed to fall. It did not appear that the bicycle struck any object or that the bicycle wobbled before Jacqueline fell. Jacqueline and the bicycle fell together. Terry stated that Jacqueline and the bicycle were close to the curb when she fell, but he could not say that they struck the curb. The bicycle was lying next to Jacqueline after she fell.

Michael Reilly testified that he was looking out of the front door of his house at 822 Blackhawk and saw the accident occur. Michael could clearly see the street, curb, and grass. When Jacqueline crossed the area between the sidewalk and street, she and the bicycle "just seemed to fall." It did not appear that she and the bicycle struck anything before she fell. Jacqueline did not fall over the handlebars but fell to the left side, and the bicycle fell with her. It did not appear that the bicycle jumped out or was thrown out in any way, or that Jacqueline lost control of the bicycle before she fell. Before she fell, the bicycle did not appear to wobble or turn in a different direction. It looked as though the bicycle slipped. Michael did not know the location of the front wheel of the bicycle immediately before Jacqueline fell. As far as he could remember, the bicycle was on the grass. After Jacqueline fell, the upper part of her body was in the street and part of her legs was on the grass area.

Brad Haag testified that he lived next to the Reilly house, at 824 Blackhawk, and observed the accident from his window as he was in the bathroom getting ready to shave. He looked out from the bathroom through his front picture window and was approximately 75 feet from where the accident occurred. Brad saw Jacqueline riding her bicycle down the driveway, across the sidewalk, and over the grass. She was between the sidewalk and the curb when she fell. Brad stated that the bicycle "flipped out" from under Jacqueline and it appeared that the grass may have been wet. There was nothing unusual about the bicycle, and it did not appear as if Jacqueline struck any object before she fell or that she lost control of the bicycle. The bicycle and Jacqueline fell to the side. Brad did not ...


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