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06/28/94 VERONICA JARKA v. YELLOW CAB COMPANY

June 28, 1994

VERONICA JARKA, EXECUTOR OF THE ESTATE OF ROBERT J. JARKA, DECEASED, PLAINTIFF-APPELLEE,
v.
YELLOW CAB COMPANY, A FOREIGN CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Robert V. Boharic, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

McCORMICK, DiVito, Hartman

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

This is an appeal from a money judgment, entered on a jury verdict in favor of plaintiff Veronica Jarka, Executor of the Estate of Robert J. Jarka, deceased, against defendant Yellow Cab Company. The judgment is for damages sustained by plaintiff as the result of defendant's negligent infliction of emotional distress. Defendant contends that the trial court erred (1) by permitting plaintiff to file an amended complaint at trial; and (2) by entering judgment for plaintiff in the absence of proof of negligence. Plaintiff cross-appeals contending that the trial court erred by permitting the issue of decedent's comparative negligence to be presented to the jury. We affirm the judgment of the trial court in that the trial court properly exercised its discretion by permitting plaintiff to file an amended complaint at trial, plaintiff did in fact prove the negligent infliction of emotional distress and the issue of decedent's comparative negligence was properly submitted to the jury.

On November 26, 1984, Veronica Jarka and her husband, decedent Robert J. Jarka, flew into O'Hare Airport. They intended to take a cab from the airport to their final destination. Because of decedent's heart condition, in addition to a purse, Mrs. Jarka carried their 27-inch piece of luggage and a carry-on bag. Decedent carried nothing but his top coat.

As they were walking towards a cab line, a yellow cab pulled up along side of the Jarkas and the cabdriver motioned for them to enter the cab. Decedent opened the door and Mrs. Jarka put the carry-on bag on the seat and pulled the luggage into the cab onto the hump. Mrs. Jarka was partially seated in the back seat, pulling the luggage in, when the cabdriver turned around and told her to get out and started cursing at her. He shook his fist at her and used foul language. He kept telling her to get out and that she was not getting out fast enough. Mrs. Jarka threw her purse and bag on the sidewalk, and as she was pulling her luggage out, the cabdriver gave it a shove. The luggage got hooked onto the handle of the door and was torn. Decedent tried to move the luggage and told the cabdriver to watch his tongue because a lady was present. After decedent got the luggage out, as Mrs. Jarka was half in and half out of the cab, the cab started to move and decedent grabbed Mrs. Jarka's hand. Mrs. Jarka reached down to get her purse and the cab pulled away. Decedent's legs staggered and as he fell backwards, his head struck the pavement and began to bleed. Decedent was transported to Resurrection Hospital where he was pronounced dead.

At the time of the incident, cabs in the terminal areas of the airport were required to receive tickets from a central dispatch area. A dispatcher sent them from the central area to the various receiving areas as needed. The cabdriver who picked up the Jarkas had circumvented the system and had no authority to take the Jarkas as passengers. As Mrs. Jarka and decedent were entering the yellow cab, dispatchers Steve Kirshenbaum and Dale Diliberto approached the cab.

Kirshenbaum testified that he had words with the cabdriver about the ticket and the cabdriver got out of the cab arguing. The cabdriver swore and yelled at him. When the cabdriver got out of the cab, the cab lurched forward a foot or two. Kirshenbaum yelled at the cabdriver to get back into the cab and stop it because there were customers near the cab. The rear door was open and Kirshenbaum could see decedent across the cab. Decedent was pulling the suitcase out when he raised an index finger in the air, got a very strange look and fell back on the sidewalk. The cab left at that point and Kirshenbaum told Diliberto to call an ambulance. Kirshenbaum and Diliberto both testified that they did not believe that the cab struck decedent.

Dr. Mitra Kalelkar, the deputy medical examiner for Cook County who performed the autopsy on decedent, testified that decedent's heart was markedly enlarged and decedent had severe coronary artery disease and diffuse subcardiac fibrosis. Dr. Kalelkar saw no evidence of external trauma to decedent's stomach, but she saw evidence of trauma to his head. Decedent had either one or two heart attacks substantially before the fatal arrhythmia. Dr. Kalelkar explained that decedent developed an arrhythmia, in which his heart fluttered so quickly that it failed to pump blood, and that arrhythmia caused his death. In Dr. Kalelkar's opinion, decedent's arteriosclerotic cardiovascular disease, which was a natural cause of death, led to his fatal arrhythmia. Decedent's death certificate listed arteriosclerotic cardiovascular disease as the cause of death.

Dr. Richard F. Kehoe testified that, in his opinion, the incident with the yellow cab caused decedent's death. He testified that decedent had a "constellation of cardiac findings" and any significant additional stress could have precipitated the fatal cardiac arrhythmia.

By stipulation of the parties, the discovery deposition of Dr. David Wilber was read into evidence as an evidence deposition. At his deposition, Dr. Wilber testified that he had a file on the case and had written a summary letter on July 14, 1989. Since the report, his opinions had not changed. He agreed with Dr. Kehoe's statement that the events at O'Hare Airport played a role in precipitating decedent's cardiac arrhythmia. However, he felt that any number of life stresses could have produced similar kinds of events. He believed that the events described by Mrs. Jarka were the final push in precipitating the fatal arrhythmia. In his opinion, any sort of significant exertion, such as carrying his suitcase up a couple of escalators or flights of stairs would have been sufficient to cause the onset of the attack. Dr. Wilber stated that he was surprised that a man with decedent's medical history went on a long trip. The incident at the airport could have produced a flow of adrenaline which would sensitize the heart to develop arrhythmias. Dr. Wilber believed that if decedent had not taken that cab, he would not have experienced the fatal arrhythmia at that time.

The jury returned a verdict in favor of plaintiff finding that his damages totalled $139,000. The jury found decedent to be 10% negligent and reduced the amount of recoverable damages to $125,100. Pursuant to special interrogatories, the jury found that the cab in question was owned and operated by Yellow Cab Company of Chicago, and found that decedent had not been struck by the door of the cab.

Defendant initially contends that the trial court erred by permitting plaintiff to file an amended complaint on the day of trial. Plaintiff's original complaint, alleging that decedent died as the result of injuries sustained when he was struck by a yellow cab, was both a wrongful death action and a survival action. The amended complaint contained additional allegations of negligent entrustment, improper solicitation and the negligent infliction of emotional distress. The amended complaint alleged that decedent died as the result of injuries sustained from being struck by a yellow cab, or alternatively, that he died as the result of injuries sustained from the negligent infliction of emotional distress. Specifically, defendant argues that the amended complaint altered both the nature and the quality of ...


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