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May 10, 1994


Appeal from the Circuit Court of Cook County. Honorable William Maddux, Judge Presiding.

Rehearing Denied July 21, 1994. Released for Publication August 2, 1994. Petition for Leave to Appeal Denied October 6, 1994.

DiVito, McCormick, Scariano

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

Plaintiff Jack Spencer brought this action, alleging that defendant Joseph Wandolowski, while operating a semi-trailer truck owned by co-defendants Always Air Freight Forwarders, Inc. and SMK Transportation, Inc., *fn1 injured plaintiff when defendant Wandolowski negligently changed lanes on the feeder ramp connecting northbound Interstate 55 (the Stevenson expressway) and westbound Interstate 94 (the Dan Ryan expressway). A jury found for plaintiff and determined his damages to be $609,111, but reduced the award in half due to plaintiff's contributory negligence. Defendants appealed.

At trial, the following evidence was presented. Plaintiff, a full-time Chicago fireman and part-time Chicago public school teacher, testified that on June 11, 1986, he left his home at 4401 South St. Louis on his motorcycle at about 6:15 a.m. He was scheduled to arrive at his place of employment at the fire station, located at 4911 West Belmont Avenue, by 8 a.m., but he usually reached there between 7 and 7:30. From his home, he drove to Kedzie Avenue and then proceeded north to the Stevenson expressway. He traveled northbound on the expressway at about 40 miles per hour until he reached the feeder ramp leading to the westbound Dan Ryan expressway.

Plaintiff stated that the feeder ramp divides into two lanes and is about four blocks long before it eventually merges with the DanRyan expressway. He explained that there is no room to the right of the right lane for any vehicle, even a motorcycle, to pass another vehicle proceeding in the right lane. Where the ramp divides into two lanes, plaintiff testified that he moved into the right lane of the ramp while traveling at approximately 30 miles per hour, and that the traffic congestion at this point (about 7:05 a.m.) was "medium." He observed a semi-trailer truck a few blocks ahead in the left lane, and he eventually drew even with it about a block from the end of the ramp. As traffic slowed in the left lane, the truck began to veer into the right lane without putting on its turn signal. The middle of the trailer portion of the truck struck his left shoulder, causing him to crash into the curb and bounce back into the trailer. He then flew over the handlebars onto the pavement, and the truck ran over his left leg as it continued to proceed into the right lane.

As plaintiff was lying in pain on the ground, he tried unsuccessfully to kick off his left boot. An Illinois Department of Transportation minuteman arrived on the scene a short time later, and still later a nurse also came and cut off his boot. Eventually, both Wandolowski and Illinois State Trooper Kim Rhodes arrived at the scene, but plaintiff did not remember speaking to either of them. He was then taken by ambulance to Mercy Hospital where he was treated for several fractures in his left ankle.

Plaintiff further testified that as a result of the fractures, he still has difficulty walking, running, and carrying heavy objects. He also has severe scarring on his left calf due to two skin grafts which were performed in order to replace skin that had been torn off in the accident. Plaintiff also stated that he had consumed three 12-ounce cans of beer at about 6 p.m. on the day before the accident.

Douglas Dirk Nelson, M.D., in testifying on plaintiff's behalf, stated that he treated plaintiff on June 11, 1986, for fractures of his left ankle and fibula. Dr. Nelson reset the fractured bones, inserted a metal plate and some screws to secure them, and placed plaintiff's leg in a cast. He also performed two skin grafts on plaintiff's left calf which left a permanent scar. Dr. Nelson determined that plaintiff lost approximately 50% of his ability to raise his left foot and 40% of his ability to push down on it as a result of the accident. Consequently, in his opinion, plaintiff's ability to walk and run will be impaired for the remainder of his life. Dr. Nelson also stated that plaintiff's injury caused him pain at the time of the occurrence and will continue to do so for the indefinite future.

Plaintiff's next witness was Steven Funkhouser, who testified that at about 7 a.m. on June 11, 1986, he was returning home from the south side of Chicago when he entered the northbound Stevensonexpressway at Pulaski Road. He was traveling at approximately 40 or 45 miles per hour on the northbound Stevenson expressway when he approached the feeder ramp to the westbound Dan Ryan expressway. As soon as he entered the two-lane portion of the ramp, he observed a semi-trailer truck in the left lane and a motorcycle beside it in the right lane. When traffic congested in the left lane, he slowed to about 25 miles per hour as he approached to within 100 feet of the truck. Since he was in a hurry, he decided to move into the right lane. Just as he was about to do so, however, he saw the truck, without signalling, begin to move into the right lane. He then slowed, reasoning that the truck driver would eventually notice the motorcycle to his right and reenter the left lane. The truck continued to switch lanes, however, and the trailer portion struck plaintiff, knocking him off his motorcycle. Plaintiff was then run over by the rear wheels of the truck.

Funkhouser testified that he was in a hurry to get home because a female friend was waiting at his house and he intended to take the day off. His employer's time sheet, however, showed that he worked eight hours that day. Because he was in a hurry, Funkhouser did not stop at the scene of the accident, but proceeded instead onto the Dan Ryan expressway toward his home on the north side of Chicago. Plaintiff later became aware of the fact that he had witnessed the accident on trial through the circumstance of his relating the event, at a bachelor party some time in 1988, to Charlie Bliss, who worked at the same firehouse with plaintiff and was a mutual friend of his and plaintiff's. Funkhouser further testified that he was subsequently contacted by an investigator hired by plaintiff's attorney, that he did not know plaintiff at the time of the accident, and that he had met him after the incident briefly only once or twice through Bliss.

Defendant Wandolowski testified, both as an adverse witness and on his own behalf, that at the time of the accident, he had worked for co-defendants for approximately five years and drove the same route five times each week for three of those years. On the morning of June 11, 1986, he was on the final leg of his route, heading from R.R. Donnelley & Sons Co. at 21st Street and Martin Luther King Drive in Chicago to Elk Grove Village. At about 6:50 a.m., he left R.R. Donnelley, and entered the feeder ramp to the northbound Dan Ryan at the intersection of 22nd Street and King Drive.

When he entered the ramp from King Drive, he proceeded immediately into the right lane, traveling slowly down the ramp in the bumper-to-bumper traffic, never leaving the right lane. Although the guard rail was only six inches from the right edge of the lane, whether there was enough room for a motorcycle to pass him on the shoulder depended on the position of the truck in the lane. Heexplained that he typically would keep his truck to the left side of the right lane when he was on the feeder ramp because he did not like to look down over a bridge.

Suddenly, while he was stopped in traffic about a block away from the ramp, someone jumped up onto the passenger side of his truck, knocked on the window, and told him that he had been involved in an accident with a motorcycle. He then put on his parking brakes, turned on his hazard lights, and walked up the ramp where he saw plaintiff lying on the pavement. He approached plaintiff in order to determine whether he was hurt badly. When he did so, he smelled alcohol on his breath, noticed that his eyes were bloodshot, and recognized that his speech was slurred. Based on these facts, he believed that plaintiff was intoxicated.

Sergeant Kim Rhodes testified for defendants that on June 11, 1986, she was a state trooper who usually worked in Effingham, Illinois, but on that day she was on special patrol duty in Chicago. She was on the Stevenson expressway that morning in an unmarked car, and traffic had been stop-and-go thereon since about 6 a.m. At about 7:25, while proceeding in the left lane, she received an emergency call informing her that an accident had occurred on the feeder ramp to the Dan Ryan expressway. She proceeded there immediately, but because traffic was heavy, it took her approximately two to five minutes to travel the short distance, despite the fact that her siren was "blaring."

Upon arriving at the scene, she noticed plaintiff sprawled on the pavement in the right lane of the ramp and a semi-trailer truck parked up ahead with its emergency lights flashing. As she tended to plaintiff, she noticed a strong odor of alcohol, although she was not positive as to its source. When she went to the hospital in order to question plaintiff, she once again smelled alcohol, which led her to think that plaintiff had been drinking at some time prior to the accident. She could not, however, formulate an opinion as to whether or not he was intoxicated, primarily because it was not feasible ...

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