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10/19/89 Leslie A. Cogan, A v. Kal Leasing

October 19, 1989




Before dealing with the other issues raised in this appeal, this court must address the trial court's alleged violation of the " Muscarello doctrine." (See Muscarello v. Peterson (1960), 20 Ill. 2d 548, 170 N.E.2d 564.) Plaintiff argues that this doctrine, which was discussed extensively by the Illinois Supreme Court in Muscarello, stands for the proposition that a "court has a duty to see that the rights of an infant are adequately protected, and is bound to notice substantial irregularities even though objections are not properly presented." (Muscarello, 20 Ill. 2d at 555, 170 N.E.2d at 569.) Citing Zimmerman v. Village of Skokie (1988), 174 Ill. App. 3d 1001, 529 N.E.2d 599, plaintiff argues that where the trial court fails in its obligation to take action to protect the plaintiff, the appellate court must do so. Because this argument affects the standard of review to be employed when we consider the other issues raised by plaintiff, we must first decide whether either this court or the trial court is under some sort of special duty to protect this plaintiff under the circumstances of this case., Plaintiff makes clear in her appellate brief how she thinks the Muscarello doctrine should have affected the trial court's handling of this case:


LESLIE A. COGAN, a Disabled Person, by William F. Cogan et

546 N.E.2d 20, 190 Ill. App. 3d 145, 137 Ill. Dec. 396 1989.IL.1651

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.


JUSTICE STEIGMANN delivered the opinion of the court. LUND and SPITZ, JJ., concur.


This case involves claims for injuries sustained by plaintiff, Leslie A. Cogan, a disabled minor, in a collision between a school bus and an automobile in which plaintiff was a passenger. The accident occurred when the automobile made a sudden left turn into the path of the bus.

Plaintiff, acting through her parents as her guardians, filed suit as follows: count I against defendant KAL Leasing, Inc. , which purportedly owned the bus involved in the accident and employed its driver; count II against defendant Alice J. Henderson (Henderson), the driver of the bus, and KAL in its capacity as Henderson's principal; and count III against defendant Sheller Globe Corporation (Sheller), manufacturer of the bus.

Prior to the accident, Henderson had complained of discomfort which she believed was due to her straining to reach the bus' gas pedal. She testified that her husband and one of the mechanics with the bus company had placed a block of wood on the gas pedal and fastened it with a clamp. She said this was done with the approval of the bus company's manager. Sometime before the day of the accident, Henderson discovered the block had been removed from the gas pedal. On the day of the accident, however, when Henderson reported for work, she discovered two wooden blocks had been attached to the gas pedal with tape. She did not know who had attached these blocks, but after carefully inspecting the blocks and the gas pedal for safety purposes, she drove the bus out of the garage and proceeded with her regular driving duties.

Later that day, the accident occurred in which plaintiff was seriously injured. Plaintiff's theory of the case is that the blocks on the gas pedal interfered with the use of the brake, accelerator, and other controls, and accordingly, were a proximate cause of the accident.

At the Conclusion of the plaintiff's case, the trial court denied KAL's motion for directed verdict as to count I. However, the court granted an identical motion at the Conclusion of all the evidence. The court's reason for directing the verdict was that plaintiff produced no evidence concerning KAL's ownership of the bus. At the Conclusion of the trial, the jury returned a verdict in favor of the remaining defendants as to counts II and III.

The primary issues which plaintiff raises on appeal are as follows: (1) whether the trial court gave plaintiff the special protection which plaintiff claims the law guarantees to persons under legal disability (the Muscarello doctrine), and (2) whether the trial court erred when it allowed the directed verdict motion of defendant KAL. I THE MUSCARELLO DOCTRINE

Plaintiff was a 16-year-old high school student on the day this tragic accident occurred. She suffered devastating injuries which left her unable to walk or to communicate. The court appointed her parents as guardians of her person and her estate. Her parents, in turn, hired the attorney who brought this action on behalf of their daughter.

"This principle -- going to the very heart of our legal system -- was ignored by the trial court throughout the trial, even when it was specifically and uncategorically brought to the Court's attention. At no time did the court appear to consider the plaintiff's legal incompetence in making its rulings on matters before it. It is clear that the Court never intervened on its own volition to protect the plaintiff's rights from prejudicial matter injected by the defendants when plaintiff's counsel did not object."

While plaintiff correctly paraphrases language used in various decisions of courts of review of this State when discussing the Muscarello doctrine, we believe plaintiff has lifted that language out of its limiting context. As our Discussion of the cases citing this doctrine will reveal, the doctrine has validity only in circumstances suggesting either fraud, violation of a fiduciary interest, or ineffective assistance of counsel.

The Muscarello doctrine first appeared in Illinois in Loyd v. Malone (1859), 23 Ill. 43. Malone involved allegations of fraud in the partition and sale of certain lands belonging to the infant plaintiffs. Noting among other flaws that no guardian ad litem was appointed to represent the interests of the plaintiffs, the court stated the following:

"The interests of infants are the peculiar care of courts, and if their rights have been outraged and disregarded by an unfaithful guardian, the courts should not be slow to apply a remedy." Malone, 23 Ill. at 44-45.

The authority cited in Malone was a 1723 decision from England, Richmond & (Wife) v. Tayleur (K.B. Ch. 1723), 1 Peere Williams 734, 24 Eng. Rep. 591. Richmond ...

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