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03/31/94 NORMA HALL v. NATIONAL FREIGHT

March 31, 1994

NORMA HALL, SPECIAL ADMINISTRATOR OF THE ESTATE OF MARION HALL, DECEASED, PLAINTIFF-APPELLEE,
v.
NATIONAL FREIGHT, INC. AND GARY E. THOMAS, DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ANTHONY J. BOSCO, JUDGE PRESIDING.

Rehearing Denied July 6, 1994. Released for Publication August 2, 1994. Petition for Leave to Appeal Denied October 6, 1994.

McNAMARA, Egan, Giannis

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

Plaintiff, Norma Hall ("Hall"), special administrator of the estate of Marion Hall, deceased, filed a negligence suit under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, pars. 1 et seq.) and under the Survival Act (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 27-6) against defendants, National Freight, Inc. ("National") and Gary E. Thomas ("Thomas"), in connection with a vehicular accident. After a trial, the jury returned a verdict in favor of plaintiff, assessing the total amount of damages at $2,454,955.77 which it then reduced by 42%, the percentage of negligence it found attributable to plaintiff's decedent, resulting in the sum of $1,423,874.35 as plaintiff's recoverable damages. Judgment was entered on the verdict, and defendants appeal.

The accident involved the collision of two semi-tractor-trailers which occurred at approximately 2:00 p.m. on March 7, 1985 on Interstate 94 in Cook County, Illinois. One of the vehicles was driven by plaintiff's decedent. The other vehicle was driven by Thomas in the course of his employment with National. The decedent was survived by his wife, plaintiff in this cause, who suffered pecuniary loss as a result of his death. Plaintiff alleged that as a result of defendants' negligence, the decedent was injured and suffered personal, pecuniary and permanent injuries, including his conscious pain and suffering prior to his death. She further alleged that had he survived he would have been entitled to bring an action for his damages, and that such action has survived him under the Survival Act.

Defendants filed their answer in which they denied all allegations of wrongdoing and asserted the defense of comparative negligence.

Before trial, the trial court conducted a hearing at which the parties presented their respective motions in limine. One of plaintiff's motions in limine concerned the applicability of the Dead Man's Act (Ill. Rev. Stat. 1991, ch. 110, par. 8-201). After hearing the arguments of counsel, the court sustained plaintiff's motion and ruled that Thomas could not testify as to the details of the accident.

John Matheussen, who at the time of the accident was the corporate claims counsel for National, testified for plaintiff, by way of his evidence deposition, that he hired National Claims Service, an investigating service located in Oakbrook, Illinois, to investigate the accident and gather all available physical evidence. He further testified that National also hired Packer Engineering, an accident reconstruction firm, shortly after the accident occurred.

Before Matheussen's evidence deposition was read to the jury, the trial court ruled, over plaintiff's objection, that the questions posed by plaintiff's counsel during Matheussen's evidence deposition resulted in a partial waiver of her objections concerning the Dead Man's Act. The trial court further ruled that defense counsel would have the right to read any questions and answers posed during that evidence deposition including those which had been posed by plaintiff's counsel.

Thereafter, testifying as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-1102), defendant Thomas stated that the collision in which he was involved with the decedent occurred at a curve in the road onsouthbound I-94. He further testified that he put his four-way emergency flashers on prior to the incident. Thomas admitted having previously given a typewritten statement wherein he failed to indicate that he turned on his emergency flashers before impact.

Thomas testified that, after the accident, he was interviewed at the scene by Illinois State Trooper James Minx. Thomas did not believe that Minx instructed him to go to a truck stop located at the 159th Street exit in Illinois, which was approximately one mile away. Rather, Minx told him that he was free to leave. Thomas informed Minx that he would be at a truck stop in Indiana, which was approximately 10-15 miles away, in the event that Minx wanted to speak with him further.

Wesley Gas, the tow truck driver who towed the decedent's vehicle from the scene of the accident, authenticated certain photographs which he had taken at the scene shortly after the accident occurred. He also authenticated certain photographs of the decedent's vehicle which he took at his towing service yard soon after the incident.

Trooper James Minx prepared a detailed diagram of the scene which included its general layout as well as certain observations he made from physical evidence located there. As part of his diagram, Minx filled in the supposed path of Thomas's vehicle during the accident. Minx based his placement of the vehicle solely on his conversations with Thomas. Prior to his testifying, defense counsel was allowed a detailed voir dire of Minx regarding his placement of the path of Thomas's vehicle on the diagram. Minx stated that said placement was based solely on Thomas's statements to Minx rather than on an independent investigation. The trial court ruled that defendants could not use their own diagram to cross-examine Minx regarding his placement of the path of the Thomas vehicle.

During the direct examination of Minx, who testified that he arrived at the scene shortly after the collision occurred at approximately 2 p.m., plaintiff's counsel used Minx's diagram of the scene solely for purposes of assisting the jury as to how the layout appeared at the time of the accident. Using an overlay, Minx then filled in the pertinent physical markings and findings at the scene. Defendants did not object to this procedure.

Minx testified that because there was a considerable amount of traffic at the scene following the collision, he instructed Thomas to leave. Since Minx did not have an adequate opportunity to thoroughly examine Thomas's vehicle for damage, he instructed Thomas to go to the Union 76 truck stop located about one mile away at the 159th Street exit in Illinois. Minx testified that he told Thomas that he wanted to examine the damage to his vehicle in order to determinethe points of contact, angles of impact, and the nature and extent of the damage. Minx testified that he never would have agreed to meet Thomas at a truck stop in Indiana because he believed that Indiana was outside his jurisdiction.

Fifteen to twenty minutes later, Minx proceeded to the 159th Street truck stop, but did not find Thomas or his vehicle present. He was therefore unable to conduct a detailed inspection of the physical damage done to Thomas's vehicle.

Steve Kvackey, an adjustor for the National Claims Service, the company hired by National to investigate the accident and to gather the physical evidence, testified that National hired him within two hours of the incident. Kvackey testified that after receiving his initial assignment, he immediately went to the scene of the accident, arriving there about 6:30 p.m. He later went to the towing service to take photographs of the decedent's vehicle. Kvackey further testified that during the five days following his initial investigation, he made several attempts to contact Matheussen. One of Kvackey's reasons for trying to contact Matheussen was his concern that he had not been given an opportunity to either observe or take photographs of defendants' vehicle. Kvackey authenticated a number of photographs of the decedent's vehicle taken at the towing service.

Dr. Nitin Sardesai, an emergency room physician who pronounced the decedent dead at St. Margaret's Hospital in Hammond, Indiana, took a history from the paramedics before he conducted his examination of the decedent. Sardesai testified by way of evidence deposition that based on his examination, the decedent had sustained massive chest trauma and that his entire chest wall was crushed and caved in. This massive injury, he stated, caused a number of broken ribs and internal injuries to the decedent's lungs and chest. Sardesai further testified that the decedent's injuries were competent producers of his death and in all likelihood would produce "intense pain." Sardesai also opined that the decedent's injuries were a competent producer of conscious pain and suffering.

Dennis Fredricksen, an investigator hired by plaintiff to investigate the accident, authenticated certain photographs which he took of ...


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