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11/30/89 Norma Jean Goad, As Adm'r v. John E. Evans

November 30, 1989

GOAD, DECEASED, PLAINTIFF-APPELLEE

v.

JOHN E. EVANS, D/B/A KORNER TAVERN, DEFENDANT (WILLIAM O. COLE, JR., DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

NORMA JEAN GOAD, As Adm'r of the Estate of Steven William

547 N.E.2d 690, 191 Ill. App. 3d 283, 138 Ill. Dec. 523 1989.IL.1853

Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

This is an appeal from a judgment entered in favor of the plaintiff in a wrongful death action. The plaintiff, Norma Jean Goad (Goad), administrator of the estate of decedent Steven William Goad (Steven), claimed damages on the basis of the death of Steven in a one-car accident, which occurred during the early morning hours of July 7, 1987. Named as defendants in Goad's suit were John E. Evans, d/b/a Korner Tavern (Evans), and William O. Cole, Jr. (Cole). The record reflects Goad's claims against Evans have been settled, and only Goad's claims against Cole are at issue in this appeal. We affirm the judgment which the circuit court entered on a jury verdict in favor of Goad and against Cole.

Counts II and IV of Goad's first-amended complaint are premised on a theory of negligent entrustment and allege Cole acted negligently in that he entrusted a motor vehicle to Steven, when in the exercise of ordinary care he should have known Steven was, by virtue of his intoxication, unable to operate the vehicle in a safe and responsible manner. Counts III and V allege, in the alternative, Cole negligently operated a motor vehicle in which Steven was a passenger.

In an answer filed November 15, 1985, Cole denied the salient allegations of counts II through V. Cole also filed affirmative defenses alleging Steven's contributory negligence was the proximate cause of his death. On October 23, 1987, Cole requested leave to file further affirmative defenses based on the doctrine of assumption of risk. The circuit court denied this request.

The relevant facts as developed by the testimony presented at the jury trial of this cause held on October 26 through 29, 1987, are largely undisputed; therefore, the evidence may be briefly summarized. At approximately 5:30 p.m., on July 6, 1987, Cole (then aged 16 and a licensed driver), Steven (then aged 15 and not a licensed driver), and Carol Bridges, Steven's girlfriend, traveled from Windsor to Mattoon in a car owned by Cole's father, who had authorized Cole to use the car on that evening. After driving around Mattoon, the three individuals stopped at the Korner Tavern. Steven entered the tavern, purchased a case of beer, and returned to the car with the beer.

At around 11 p.m. on that same evening, Cole and Steven were seen at a tavern in Windsor by Cole's father and mother, as well as by Cole's parents' friend, Dorothy Camic. At that time, Cole requested permission to spend the night at Steven's house, and was given permission to do so. While in close proximity to the two boys, and while conversing with and observing them, neither Cole's parents nor their friend observed anything remarkable, significant, or out of the ordinary with regard to their speech, motor control, or movements.

Shortly thereafter, Cole and Steven encountered and were joined by Mike Giesler in downtown Windsor. These three individuals then drove back to Mattoon in the automobile which Cole's father had authorized Cole to use on that evening. Cole drove for about the first three miles, and Giesler drove the remaining distance to Mattoon. After arriving in Mattoon, Cole, Steven, and Giesler returned to the Korner Tavern at approximately 12 or 12:30 a.m. Steven entered the tavern, purchased another case of beer, and returned to the car with the beer. The three youths then returned to Windsor and subsequently drove around in the countryside surrounding Windsor while drinking the beer. Except for a brief period of time when Cole drove, Giesler drove the car during most of this time. Giesler, Cole, and Steven were in each other's company for approximately three hours before Giesler returned home at about 2 a.m.

Giesler testified that during the brief period of time Cole drove the car, he had trouble keeping it in the middle of the road, which in Giesler's opinion was attributable "to the alcohol." According to Giesler, Cole consumed about eight or nine beers after they left the Korner Tavern. While Giesler was with Cole and Steven on the evening in question, Steven requested to drive the car "up to five" times.

When they arrived at Giesler's house, all three youths got out of the car. At that time Giesler told the other two occupants of the car to go home, they were drunk, and they should not be driving around. Steven again requested to drive the car as Giesler was walking to the front of his residence. When Giesler entered his house, Steven and Cole were discussing who would drive. Giesler did not know who drove the car away from his house.

Bud and Beulah Welch live in close proximity to the scene of the accident in which Steven was killed and went to the scene immediately after the accident. The accident occurred at the T intersection of two country roads. The vehicle occupied by Cole and Steven was travelling north on a road which ends at a T intersection with an east-west road. The vehicle continued through the intersection without stopping, apparently struck a ditch and a small tree, and came to rest on its driver's side at the north end of the intersection.

Mr. and Mrs. Welch were in Cole's presence until emergency personnel responded to the scene and took Cole to a hospital. During the time Cole was in their presence at the scene of the accident, Mr. and Mrs. Welch observed he was "shookup," distraught, and extremely upset. After Bud Welch got Cole out of Cole's father's vehicle, Cole ran away from the scene of the accident through some bushes and briars, but returned to the road a short time later. Cole then ran away in another direction but again returned to the scene of the accident after a short time. While with Mr. and Mrs. Welch at the scene of the accident, Cole repeatedly made statements to the effect, "I should never have let my best friend drive," and "I tried to get him to let me drive, but he wouldn't let me drive."

Bonnie Carter was one of the emergency medical technicians who went to the scene of the accident involving Cole's father's vehicle. She treated Cole at the scene and also accompanied him to a hospital. She described him as being very distraught, and it appeared as if he was "in another world." While Cole was in Carter's presence, he likewise made statements such as "I shouldn't have let him drive," "He wanted to drive," and "I let him drive." During the period Carter was with Cole on the night of the accident, Cole appeared to drift in and out of consciousness.

David Curry, also a member of the ambulance crew which went to the scene of the accident, stated as a result of the accident, Cole's father's vehicle came to rest on its left driver's side. Steven's body was found in the rear left side of the vehicle, with one of the arms hanging out of a left window and the legs extending up to the front seat. Curry stated that while he was at the scene of the accident, Cole was "very emotionally upset," was crying, and was "very agitated." Curry heard Cole say two or three times he had killed his best friend. Robert Pierce, also a member of the ambulance crew which responded to the accident, similarly testified he heard Cole say, "I killed my best friend."

Goad admitted Steven was intoxicated at the time of the accident.

Dr. Mary Jones, an emergency room physician at Sarah Bush Lincoln Health Center, testified that on the night Steven was killed, she treated Cole for an injury to his temple above his right ear. At that time, a blood sample was drawn from Cole, which revealed his blood-alcohol content was .14%.

At the Conclusion of the trial, the jury returned a general verdict which found for Goad and against Cole and assessed Goad's damages at $220,000. The jury found Steven was 50% negligent and accordingly fixed Goad's recoverable damages at $110,000. Following denial of his post-trial motion, Cole filed a timely notice of appeal. I

Cole first contends the judgment in Goad's favor should be reversed because Goad at no time presented evidence she had been appointed administrator of Steven's estate. Cole asserts this was an essential element of Goad's case, and she cannot recover in the absence of evidence as to this matter.

Goad maintains Cole waived this contention by failing to object to a jury instruction to the effect Goad was serving as administrator of Steven's estate. Goad also notes Cole did not argue this point in his motion for a directed verdict and raised it for the first time in his post-trial motion. Goad also refers to a portion of the proceedings in which the circuit court was purportedly asked to take judicial notice of the letter of administration appointing Goad administrator of Steven's estate.

In his reply argument, Cole asserts it cannot be said the circuit court took judicial notice of the letter of administration because the record contains no clear indication (1) the court was asked to take judicial notice of the letter or (2) the court was presented with a copy of the letter.

Attached to Goad's initial and first-amended complaint are photocopies of a certified copy of a letter of administration appointing Goad administrator of Steven's estate. At the Conclusion of the instructions conference, the following exchange occurred:

"MR. HELLER [Goad's attorney]: . . . We want the Judge to take judicial notice the [ sic ] letters testamentary of -- make that . . .

THE COURT: Do you have a copy on file?

MR. HELLER: There was a copy, I assume, with the Complaint and this is a certified copy.

MR HEFNER: That is the order.

THE COURT: Do you want to keep that?"

Under Supreme Court Rule 133(b), a party pleading a judgment or court order need only state the date of its entry, describe its general nature, and allege generally the judgment or decision was duly given or made. (107 Ill. 2d R. 133(b).) Once a party properly pleads a previously entered court order, Rule 133(b) allows the court to take judicial notice of it, and production of the record of the prior trial court proceedings is not required. (See Edwards v. City of Quincy (1984), 124 Ill. App. 3d 1004, 464 N.E.2d 1125.) The trial court should take judicial notice of closely related judicial proceedings. See generally Dandridge v. Northern Trust Co. (1920), 218 Ill. App. 138 (in garnishment proceedings, trial court should take judicial notice of all that has previously transpired in the case).

In this case, the date of entry of the order appointing Goad administrator of Steven's estate and its general nature are stated in the copy of the order attached to Goad's first-amended complaint. Furthermore, Goad's first-amended complaint states Goad is the "duly appointed, qualified and acting" administrator of Steven's estate.

Because a photocopy of a certified copy of the letter of administration issued to Goad is the only document attached to Goad's first-amended complaint, it is rather obvious the document referred to in the above-quoted exchange between the court and counsel was the letter of administration appointing Goad administrator of Steven's estate. Also, the administration of Steven's estate and the present case are closely related in that it is highly unlikely Goad would have requested issuance of a letter of administration in the absence of her claims against Cole and Evans.

If under these circumstances the circuit court did, in fact, refuse to take judicial notice of the letter of administration which appointed Goad administrator of Steven's estate, its refusal to do so was error. We therefore hold the judgment entered in this cause is not subject to reversal because of Goad's alleged failure to present sufficient evidence of her appointment to the office of administrator of Steven's estate. II

Cole next contends under the facts of this case, Goad is not, as a matter of law, entitled to recover on a theory of negligent entrustment. Cole asserts, generally, recovery on the theory of negligent entrustment is available only to a third party who is injured as a result of the defendant's negligent entrustment of a dangerous instrumentality to another, and is not available to a person in Steven's position, who was himself killed as a result of the defendant's negligently entrusting a dangerous object to him. Cole also maintains there can be no liability on a negligent entrustment theory in this case because Steven's intoxication was a proximate cause of the fatal accident.

Goad contends Cole has waived this argument, because the case was submitted to the jury on a general form of verdict without special interrogatories, and Cole does not assert the evidence is insufficient to support the counts of Goad's complaint charging Cole with ordinary negligence.

In his reply brief, Cole asserts that in closing argument, Goad's counsel in effect conceded Cole was not driving Cole's father's vehicle at the time of the fatal accident and thus limited the relief available to Goad to a recovery on the negligent entrustment theory only.

The record does not support the Conclusion Goad waived her reliance on the ordinary negligence theory during closing argument. As Cole points out, Goad's counsel did state in his rebuttal closing argument:

"Steve [Cole's attorney] talked about the presumption. Yes, the law does impose a presumption in this situation where you let a person have a car and that person is in a car when there is a collision, the law presumes that person is the driver of the car. But that is only a presumption and the question is whether under that presumption you believe Billy [Cole] was the driver or Steve was the driver. And it really doesn't make any difference so far as liability is concerned . . ..

. . . Keep in mind the thing that made this thing, this tragedy occur, the thing that made this tragedy possible, is the fact that Billy, charged with the responsibility of an adult, gave that car to his friend who was intoxicated and he knew that was the condition. Under those ...


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