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02/25/94 RENEE WILLIAMS v. MARTIN H. CAHILL AND

February 25, 1994

RENEE WILLIAMS, INDIVIDUALLY AND NEXT FRIEND OF JOSH WILLIAMS, A MINOR, PLAINTIFF-APPELLEE,
v.
MARTIN H. CAHILL AND HEADSTART, DEFENDANTS, AND DENNIS WOODEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit, Stark County, Illinois. No. 91-L-5. Honorable Robert A. Barnes, Jr., Judge, Presiding

Petition for Rehearing Denied March 30, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice

The opinion of the court was delivered by: Breslin

JUSTICE BRESLIN delivered the opinion of the court:

The plaintiff, Renee Williams, filed this lawsuit to recover for personal injuries she suffered when the school bus in which she was riding was struck by a truck driven by defendant Dennis Wooden. The plaintiff also brought suit against the driver of the school bus, Martin Cahill (the bus driver), and his employer, Headstart. Prior totrial, the bus driver and Headstart agreed to settle with the plaintiff for $60,000. Following a bench trial against defendant Wooden, the trial court found that the plaintiff's damages were $293,000. The trial court allowed a $60,000 credit based on the previous settlement and further found that Wooden was only 40% at fault while the bus driver was 60% at fault. Accordingly, the trial court entered judgment against Wooden for $233,000. Wooden appeals contending that the court's judgment, which found that he was at fault, was against the manifest weight of the evidence. He also argues that the plaintiff's counsel made a binding admission in his closing argument regarding the value of the plaintiff's case.

We affirm the trial court's decision finding defendant Wooden 40% at fault. We further find that the plaintiff's attorney's statement during closing argument was not a binding judicial admission of the damages suffered by the plaintiff.

The record shows that the school bus driven by Cahill had a capacity of 18. At the time of the accident, the bus driver was returning four children home from school. The 23-year-old plaintiff was riding the bus with her son. The bus driver was familiar with the route because he had driven it regularly for about five years.

As the bus travelled west on Route 88, the driver intended to take a right turn where Route 88 turns to the right. Apparently because the children were noisy, the bus driver missed the turn and continued straight on Route 93. About one-half mile past the intersection where he initially intended to turn, the bus driver attempted to turn around. At this location, there was no intersection, driveway or any other kind of entrance.

Defendant Wooden testified that he had been following the bus in a westerly direction in his semi-tractor truck. As Wooden passed the intersection where the bus driver should have turned, the distance between the two vehicles was about 300 feet. One-half mile from that intersection, Wooden attempted to pass the bus. Wooden was travelling at a speed of about 35 miles per hour. Wooden had stated in his deposition that he had noticed the bus veering toward the center line. He drove his truck into the oncoming lane of the two-lane highway in an attempt to pass the bus when he was about 50 to 100 feet away from it. He observed that the bus travelled toward the center line and then turned sharply to the left in front of him. According to Wooden, the bus did not have a turn signal flashing.

In an attempt to avoid a collision, Wooden drove his vehicle off the road and paved shoulder and into the ditch to the left. The right front corner of the truck struck the left front corner of the bus. The point of impact occurred 8 feet off the paved portion of the highway.

The bus driver testified that he saw the truck coming when he attempted to slow the bus approximately 3/8ths of a mile past the intersection. The truck was about 3/8ths of a mile behind him and he felt that he had time to turn the bus and afterward the truck would have time to get by. He also stated that he checked his brake lights and turn signals prior to the trip and they were in proper working order. According to the bus driver, before he attempted to turn around, he slowed, and applied his brakes and turn signal.

The distance from the intersection to the point of impact is approximately one-half mile. The area was described as a level stretch of roadway.

According to the plaintiff, when the bus attempted to turn left, she was thrown forward and struck her head and knee on the seat in front of her. This occurred prior to the impact with the truck. When the collision was over, the plaintiff was on the floor of the bus in the aisle. She noted that she did not fall into the aisle until after the impact with the truck. Furthermore, she did not think that she sustained her injuries from the bus driver's left turn, but she was not certain.

Following the accident, the plaintiff received conservative medical treatment for the back injury she suffered. One year after the accident, she aggravated the injury and consequently had to undergo surgery. The plaintiff was left with nerve damage, no ...


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