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June 13, 1994



As Modified on Grant of Reconsideration June 26, 1995. Released for Publication August 12, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Presiding Justice Campbell delivered the opinion of the court: Wolfson, J., and Braden, J., concur. *fn1

The opinion of the court was delivered by: Campbell


PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiff James Walters brought suit against defendant Yellow Cab Company ("Yellow Cab"), Ghales M. Abdullah and Babatunde J. Abolarin for injuries allegedly suffered when the taxicab in which plaintiff was riding, driven by Abdullah, was struck by a taxicab driven by Abolarin. Both taxicabs were owned by Yellow Cab. Following a jury trial in the circuit court of Cook County, Yellow Cab was found liable for $603,813 in damages.

Yellow Cab appealed. On June 13, 1994, this court issued an opinion affirming the judgment of the circuit court. ( Walters v. Yellow Cab Co. (1994), 265 Ill. App. 3d 331, 637 N.E.2d 431, 201 Ill. Dec. 842.) On January 24, 1995, our supreme court entered an order directing this court to reconsider its judgment in light of the supreme court's opinion in Downing v. Chicago Transit Authority (1994), 162 Ill 2d 70, 642 N.E.2d 456, 204 Ill. Dec. 755. Pursuant to that directive, we now withdraw and reconsider our earlier opinion, but again affirm the judgment of the circuit court for the reasons which follow.

The record on appeal indicates the following facts. Plaintiff filed his complaint against Yellow Cab, Abdullah and Abolarin on May 2, 1986. On October 19, 1990, Yellow Cab moved to quash service on Abdullah and Abolarin. The trial court granted Yellow Cab's motion on July 30, 1991.

On August 28, 1991, Yellow Cab filed a motion to dismiss Abdullah and Abolarin from the suit for failure to timely serve the drivers, pursuant to Illinois Supreme Court Rule 103(b) (Ill. Rev. Stat. 1991, ch. 110, par. 103(b).) Yellow Cab prayed that the suit be dismissed as to the drivers "with prejudice," as service had not been performed before the expiration of the applicable statute of limitations. On September 24, 1991, the trial court entered an order that provided that

"Ghales Abdullah & Babatunde Abolarin be and are dismissed with prejudice; however said dismissal shall not operate as an adjudication on the merits as to the defendant Yellow Cab Co. as provided for in Rule 273 of the Ill. Supreme Court Rules and the dismissal as to Abdullah & Abolarin is with prejudice but not on the merits."

On March 2, 1992, Yellow Cab moved for summary judgment, arguing that the dismissal of Abdullah and Abolarin with prejudice barred the maintenance of a suit against Yellow Cab where liability was based on the doctrine of respondeat superior. The trial court denied this motion the following day. The case proceeded to trial.

Plaintiff testified that he was 57 years old. Plaintiff noted that in 1958, he had surgery performed on his right knee. According to plaintiff, he had tripped and a small piece of bone or cartilage became lodged under his kneecap, preventing him from straightening his leg. Plaintiff testified that he recovered full use of his right leg after the surgery.

Plaintiff testified that in 1984, he was senior vice president of corporate accounts for Basic American Foods. Plaintiff was responsible for developing national chain accounts with companies such as McDonalds, Kentucky Fried Chicken and Sizzler. Plaintiff estimated that he travelled eighty percent of the time to develop business and call on existing clients. A typical day on the road might last from 6 or 6:30 a.m. through 11 or 11:30 p.m.. Plaintiff would also play tennis in tournaments sponsored by clients or participate in fishing or hiking trips with clients. Plaintiff noted that his right knee might become tired before other parts of his body after five or six sets of tennis.

Plaintiff testified that he came to Chicago for a National Restaurant Association meeting and convention on May 14, 1984. At approximately 2:45 p.m., plaintiff caught a Yellow Cab with co-workers Maxine Anderson, Gordon Lewis and Harold Archibald. Plaintiff stated that he was sitting in the front of the taxicab. Plaintiff testified that their taxicab was normally stopped at a red light at the intersection of Superior and Michigan when it was struck from behind by another Yellow Cab. Plaintiff testified that immediately before the collision, he had his arm resting on the window and was talking to others in his taxicab. Plaintiff testified that when their taxicab was struck, he bounced off of the front dashboard and his knees went into the meter. Their taxicab was pushed into the intersection by the force of the collision.

Plaintiff testified that his arm and shoulder were "killing" him after the collision. Plaintiff believed he had broken his arm. Plaintiff also testified that his knees hurt immediately after the collision and that he later discovered puncture wounds in his skin underneath his pants.

According to plaintiff, the two taxicab drivers were arguing about the collision. Plaintiff offered to escort Maxine Anderson to the Drake Hotel, where she was supposed to meet a friend, while Gordon Lewis obtained names and addresses relating to the collision. Plaintiff noticed that his arm, shoulder, neck, back and knees were hurting as he walked Anderson to the Drake Hotel.

Plaintiff testified that he did not see a doctor immediately after the collision, due to his time schedule. Plaintiff indicated that he took aspirin and put "band-aids" on his knees. Plaintiff testified that over the next several days, he attended only critical lunches and dinners, as his knees were very sore and he had difficulty moving around.

Plaintiff testified that when he returned to San Francisco, he saw his regular physician, Dr. Olson, the following week. Plaintiff indicated that his arm, shoulder, neck, back and knees remained sore; his arm had a "bad bruise" for a month or two. Dr. Olson examined plaintiff, then referred him to Dr. McDonnell, an orthopedic surgeon. Dr. McDonnell examined plaintiff and prescribed Naprosyn and Motrin. Plaintiff took the medicine for several months, but his shoulder continued to hurt. Plaintiff returned to Dr. McDonnell periodically when he suffered prolonged periods of pain.

Plaintiff testified that his left knee hurt more than his right, with a constant, piercing pain when he walked, sat, or moved his leg a certain way. The left knee did not have the same sort of pain, but it was not strong. Plaintiff indicated that over time, he had increasing difficulty with activities like climbing stairs. Plaintiff testified that his knees would grind when he walked or climbed stairs; he developed a "funny gait" because the pain of these activities. Plaintiff described himself as very bowlegged at the time of trial. Plaintiff's shoulder worsened from 1985 through 1989. Plaintiff could raise his arm above his head, but it would hurt if he pushed too hard. Plaintiff could no longer paint his house, perform yard work, or carry his briefcase or luggage; he had to use his left arm to reach for a seat belt.

Plaintiff later saw another orthopedic surgeon, Dr. Garrick, who prescribed Feldene in place of Naprosyn; plaintiff was still taking Feldene at the time of trial. Dr. Garrick also referred plaintiff to another orthopedic surgeon, Dr. Wynne. Plaintiff testified that after speaking with Dr. Wynne he had decided to have a procedure called a tibial osteotomy performed on each ...

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