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03/31/94 SHIRLEY VACALA v. VILLAGE LAGRANGE PARK

March 31, 1994

SHIRLEY VACALA, PLAINTIFF-APPELLEE,
v.
VILLAGE OF LAGRANGE PARK, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE LESTER A. BONAGURO, JUDGE PRESIDING.

Petition for Leave to Appeal Denied October 6, 1994.

Cousins, Jr., Gordon, McNULTY

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, JR. delivered the opinion of the court:

Defendant, the Village of LaGrange Park (the Village), appeals from the circuit court order granting plaintiff, Shirley Vacala (Vacala), a new trial on the issue of damages only. Vacala was injured while riding in a car which collided with a set of railroad tracks located at the dead end of a street owned and maintained by the Village. She brought suit against the Village alleging that it was negligent in failing to provide any warning that the street came to a dead end. After the jury returned a verdict for Vacala in the amount of $1000, although undisputed evidence showed that her medical expenses alone exceeded $15,000, Vacala moved for a new trial on the issue of damages only. The trial court granted the motion, and the Village appealed pursuant to Supreme Court Rule 306 (134 Ill. 2d 306). On appeal, the Village argues that: (1) the trial court erred in denying its motion for judgment notwithstanding the verdict; and (2) the trial court erred in granting a new trial solely on the issue of damages.

We affirm.

BACKGROUND

The Accident

On November 4, 1984, shortly after midnight, an automobile crashed into the Indiana Harbor Belt Railroad tracks located at the end of Oak Street in LaGrange, Illinois. Four people were in the vehicle at the time of the accident: Vacala, Caroline Tyrolt (Tyrolt), Edward Mills (Mills), and Dwyane Bulat (Bulat). Mills was driving and Vacala was sitting in the front passenger seat; Bulat was sitting behind Mills, and Tyrolt was sitting behind Vacala.

Vacala testified that prior to the accident, she and Tyrolt were at a social gathering at a friend's house in LaGrange Park. Friends of Tyrolt's parents had given them a ride. Sometime after Vacala and Tyrolt arrived, two other people they knew, Mills and Bulat arrived. Around midnight, Vacala and Tyrolt decided to go home and Mills offered to give them a ride.

Vacala testified that at the time of the accident she was not familiar with LaGrange Park and she did not know that Oak Street came to a dead end after the intersection of Oak and Barnsdale. She gave general directions to Mills, telling him to go east. While they were driving, Vacala became aware of the fact that a police officer might be observing the car, and she heard Tyrolt tell Mills that she thought the policeman might be following them. Vacala testified that Mills did not drive any differently after this statement was made. As the car proceeded, it stopped at stop signs and its headlights were on. Vacala was trying to find a radio station, when she heard Tyrolt scream and she looked up. Vacala first became aware that the street came to a dead end when Tyrolt screamed. There were no signs on the street warning of the dead end or the railroad tracks. Also, there were no reflectors or barriers at the end of the road. Vacala testified that she was unable to see the railroad tracks before the car collided with them. She stated that the car was not moving at an excessive rate of speed at any time prior to the collision. Vacala could not recall whether Mills braked or slowed down prior to hitting the tracks.

After the collision, the next thing Vacala remembered was waking up and seeing people around her. She was trapped in the car, and she felt pain in her leg. Eventually, in order to get her out of the car, the back seat and the car door were removed from the car. She stated that the paramedics attempted to put her leg in traction, but it hurt so badly that she screamed. She was taken by ambulance to the Loyola Hospital emergency room.

Tyrolt testified that her parent's friends drove her and Vacala to a friend's house in LaGrange Park. Sometime later, Bulat and Mills arrived. Around 11:30 or 11:45, Tyrolt and Vacala decided to leave, and Mills offered to drive them home. Mills' car, a 1980 Trans Am, was parked in a school parking lot nearby.

Tyrolt was unfamiliar with the area but she knew the general direction toward home. She and Vacala tried to give Mills directions, but they did not know the names of the streets or a specific route to take. They passed a couple of stop signs, at which the car stopped. As the car proceeded, Tyrolt talked with Bulat. A short time later, the car reached the intersection of Oak and Barnsdale.

Immediately before the collision, Tyrolt saw either grass or gravel before the end of the street and she yelled "dead end." She testified that the car could have been halfway between the concrete and gravel when she screamed. A couple seconds after she yelled, the car struck the railroad tracks. Tyrolt did not know the actual speed at which the car was travelling but she testified that it seemed like they were proceeding at the speed limit. She did not feel Mills apply the brakes prior to the impact. Tyrolt did not see any dead end signs or reflectors before the car struck the railroad tracks.

After hitting the railroad tracks, Tyrolt passed out. She later woke up and got out of the car. Vacala was trapped in the car and she began to cry and complain about pain in her leg. Eventually, the paramedics helped Vacala get out of the car and took her to the hospital in an ambulance.

Mills testified that on the night of November 3, 1984, he and Bulat planned to meet Vacala and Tyrolt at a gathering in LaGrange Park; Bulat had called Tyrolt and made the arrangements. That night Mills drove his 1980 Trans Am, which was not modified. He and Bulat arrived around 9 p.m., and Vacala and Tyrolt were already there. Around 11 p.m. he and Bulat left the gathering to drive Tyrolt and Vacala home.

Mills testified that he was unfamiliar with LaGrange Park. He could not identify the streets or the route that he took when they left. He stated that the car stopped at two or three stop signs and Vacala and Tyrolt gave him directions. Mills stated that he was aware that there was a police car in the vicinity. He testified that he drove at the speed limit, with his headlights on. He stopped at the intersection of Oak and Barnsdale and then accelerated up to the speed limit. After stopping at the intersection, Mills did not slow down before hitting the railroad tracks and, although he tried to hit the brakes before the collision took place, he did not remember actually braking before hitting the tracks. A couple of seconds elapsedbetween the time Mills tried to hit the brakes and the point of impact. He did not recall if someone yelled before the car hit the tracks. Mills testified that at the time he hit the railroad tracks, his speed was about 25 miles per hour.

Mills testified that he watched where he was going as he drove, but did not see the railroad tracks. Immediately before the car struck the railroad tracks, Mills was looking out the front window of the car. Prior to the accident, he did not see reflectors or any warning signs.

Bulat testified that sometime after 7 p.m., he and Mills arrived at a social gathering hosted by a friend of Vacala or Tyrolt. Tyrolt, possibly with help from Vacala, had given him directions to the gathering. After approximately an hour and a half, he and Mills left to drive Vacala and Tyrolt home. Bulat sat in the back seat and talked with Tyrolt. He stated that he did not pay much attention to how Mills was driving.

Vacala, who seemed like she knew where she was going, gave directions to Mills on how to take her home, but Vacala's directions "weren't the greatest directions." As they were driving, they saw a police car. Bulat stated that everybody in the car wanted to avoid the police car, but could not remember whether Mills said anything which made him think that Mills wanted to avoid the police car. Bulat stated that they turned off at the nearest street in order to avoid "eye contact between us." He testified that after seeing the police car, Mills changed his route and made five or six turns and did not make any stops. Initially, Bulat testified that before seeing the police car, the highest speed that Mill's car attained was 60 miles per hour, and after seeing the police car Mills drove about the speed limit. However, Bulat also stated that after they saw the police car, the speed of the car increased up to 60 miles per hour.

The accident occurred five to ten minutes after they saw the police car. Bulat did not know in which direction they were travelling or what street they were on at the time of the accident. Just prior to the accident, either Vacala or Tyrolt screamed that there was a dead end. Bulat did not see any dead end signs and did not notice that the street ended until right before the accident.

Bulat did not have any opinion as to the speed of the car at the time he heard someone scream and he did not, at any time, look at the car's speedometer. He did state, however, that they were "cruising at a decent speed" and that they were going faster than the speed limit, which Bulat assumed to be 25 to 35 miles per hour.

Officer William Beaudway (Beaudway) testified that he was employed as a police officer by the Village. At about 11 p.m. on thenight of November 3, 1984, he began patrolling the streets, and around midnight, he noticed the black Trans Am car which he later learned was in an accident. Beaudway first saw the car in the parking lot of a junior high school, as passengers were getting into the car. Beaudway observed the car's lights come on and the car pull out of the parking lot onto the street, heading north. He followed the car to the next intersection, where the Trans Am stopped at a stop sign and then turned east; Beaudway continued north. Beaudway next saw the Trans Am three or four minutes later, as it was stopped at a stop sign at the intersection of Oak and LaGrange Road. The Trans Am was facing eastbound on Oak and had travelled east and north of where Beaudway had first seen it. The headlights of the Trans Am were on. Beaudway did not observe the Trans Am exceed the speed limit or ignore traffic control devices at any time.

Sometime after midnight, Beaudway received notice of an accident at Oak and the Indiana Harbor Belt Railroad. He arrived at the scene in less than a minute, and upon arriving, he saw the Trans Am at the far east end of Oak Street, up on and over one of the railroad tracks. Beaudway observed three people standing near the rear of the vehicle, and as he approached the vehicle, he saw Vacala sitting in the front passenger seat. She told him that she was in pain and she appeared to be pinned in the car. A short time later, paramedics arrived at the scene and with the help of the fire department extrication crew, they were able to get her out of the car.

Mark Johnson (Johnson), who was employed by the Village as an emergency technician firefighter, testified that on the night of November 3, 1984, he was called to the scene of an accident near the intersection of Oak and Barnsdale. When Johnson arrived, he saw Vacala in the front passenger seat of the car; she had suffered an injury to her leg, and she was moaning and crying. Her leg appeared shortened and there was a deformity in her thigh, indicating a broken femur. After Vacala was removed from the car, emergency personnel tried to put a traction splint on her leg, but they were unable to do so because it caused her too much pain. Emergency personnel treated a cut on Vacala's chin and gave her oxygen through a mask. After approximately forty minutes, Vacala was taken to Loyola Hospital in an ambulance.

Marylou Martin-McCabe (McCabe), a certified paramedic, testified that after she received a call about an accident at the intersection of Oak and the railroad tracks on November 3, 1984, she and a partner drove to the scene in an ambulance. When McCabe first observed Vacala, she was being taken from the car to the ambulance on a backboard. McCabe noticed that Vacala's leg was bent into an abnormalposition, with the foot toward the back of the hip. Vacala was moaning and crying, and she appeared to be in a great deal of pain. McCabe and other emergency personnel attempted to put a traction splint on Vacala's leg, but they were unable to do so because the muscle in Vacala's leg was under such stress that they could not straighten the leg.

John Giovannoni, who was employed by the Village as an emergency medical technician, testified that on the night of November 3, 1984, he was called to the scene of an accident at Oak and Barnsdale. Upon arriving, he observed that a car was on the tracks and Vacala was in the front passenger seat of the car. Giovannoni could see that her leg was broken because of the deformity in her thigh; her left thigh was shorter than her right thigh. In addition, Vacala's head was bleeding. In order to remove Vacala, the car door had to be cut off. Emergency personnel attempted to place a traction splint on Vacala's leg, but it caused more pain so it was not used on Vacala. Vacala remained conscious throughout the entire time Giovannoni observed her.

Investigation of the Accident

Officer Beaudway testified that after the car was removed from the railroad tracks, he observed that at the point of impact, there was a three inch space between the bottom of the rail and the railroad tie. He further observed that ...


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