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06/30/94 JOHN H. CANNING AND JUDY CANNING v.

June 30, 1994

JOHN H. CANNING AND JUDY CANNING, PLAINTIFFS-APPELLANTS,
v.
FORREST L. BARTON AND BROWNING-FERRIS INDUSTRIES OF ILLINOIS, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Warren D. Wolfson, Judge Presiding.

Theis, Hoffman, Cahill

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Plaintiffs John and Judy Canning brought this action seeking recovery for personal injuries allegedly sustained when their vehicle struck the rear of a garbage truck which had been parked in a lane of moving traffic on a routine stop. Plaintiffs sued defendants, the owner and driver of the truck, for negligence and willful and wanton misconduct. At trial, after plaintiffs had concluded their case in chief, the court directed a verdict in favor of defendants as to two counts alleging willful and wanton misconduct. The principal issue raised on this appeal is whether the trial court properly granted defendants' motion for a directed verdict on these two counts. We believe that it did, and affirm.

Plaintiffs originally filed their two-count complaint against the driver of the garbage truck, Forrest L. Barton, and the garbage truck owner, Browning-Ferris Industries of Illinois. Count I alleged that defendants acted negligently when they parked the truck on a controlled access highway; operated the truck in such a way that they unreasonably obstructed traffic; failed to keep a proper lookout while operating the vehicle; and neglected to operate flashing lights when engaged in service on a highway in order to alert other drivers of atraffic hazard. Count I also alleged that as a direct and proximate result of the defendants' acts, John Canning sustained severe and permanent injuries over his whole body. In count II, Judy Canning sued for loss of consortium due to defendants' negligence.

On the eve of trial, plaintiffs amended their complaint to add two additional counts. In count III, John Canning alleged that defendant Barton committed willful and wanton acts when he (1) parked his garbage truck in a moving lane of traffic on La Grange Road, and (2) stopped the truck in a moving lane of traffic on La Grange Road without activating flashing lights, an audible warning signal, or using a flagman to warn oncoming motorists of unreasonably dangerous driving conditions. In count IV, Judy Canning charged defendants with willful and wanton misconduct in the context of her loss of consortium claim.

At trial, plaintiff John Canning testified that on the morning of September 2, 1987, he was driving a vehicle northbound in the left-hand lane of the four-lane divided highway, Route 45, also known as La Grange Road, in La Grange, Illinois. On this particular morning, the weather was clear and the roads were dry. Canning testified that he was familiar with the road, having driven along it many times during his commute to and from work.

After proceeding through the intersection at Plainfield Road, Canning noticed that a van approximately one car length ahead of him was swerving between the curb lane and the left-hand lane. Worried that the driver might be intoxicated, Canning glanced into his rearview mirror to check whether he could move into the curb lane directly behind the van. Seeing no cars there, he moved his vehicle into the curb lane. Canning, however, did not notice that a garbage truck had been parked directly in front of his lane of traffic, along the curb side of the road. The right front of Canning's vehicle smashed into the left rear of the garbage truck. As a result of the collision, Canning suffered leg, neck, and wrist injuries.

Defendant Forrest Barton testified that on the day of the accident, he had parked the garbage truck for 10 minutes during a customary pickup route in front of a residence on La Grange Road. Barton also testified that the truck was equipped with flashing lights located both in front and in back of the vehicle.

Plaintiffs also presented testimony of Judith Canning; the investigating police officer, Lieutenant Patrick O'Connor; three treating physicians; and a neighbor, John Wolf, who was not an occurrence witness but who testified that the volume of traffic on the pertinent portion of Route 45 between 6 and 8 a.m. is very heavy.

After plaintiffs concluded their case in chief, defendants movedfor a directed verdict as to all counts. The trial court denied defendants' motion as to counts I and II, but granted the motion as to counts III and IV alleging willful and wanton misconduct.

At the Conclusion of defendants' case in chief, plaintiffs moved for reconsideration of the motion for a directed verdict and orally moved the court for leave to file an amended complaint to conform the pleadings to proofs. The trial court denied both motions. In announcing his ruling on the motion for reconsideration, the trial Judge explained that although plaintiffs had brought out some persuasive evidence during the defendants' case in chief, he could not consider such evidence for purposes of the motion for a directed verdict, which had to be decided based upon evidence presented at the close of plaintiffs' case. The trial Judge added that plaintiffs were free to amend the complaint to conform to the proof in the negligence counts, but that they would not be permitted to amend the complaint concerning the willful and wanton misconduct counts. The court submitted the cause to the jury for consideration of counts I and II only, and the jury returned a verdict in favor of defendants.

This appeal ...


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