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11/01/94 DARIN KRAWCZYK v. STANLEY F. POLINSKI AND

November 1, 1994

DARIN KRAWCZYK, SPECIAL ADM'R OF THE ESTATE OF JEAN M. KRAWCZYK, DECEASED, PLAINTIFF-APPELLANT,
v.
STANLEY F. POLINSKI AND AMERICAN DRUG STORES, INC., D/B/A OSCO DRUG STORE, A/K/A OSCOS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 91-L-1856. Honorable Bernard E. Drew, Jr., Judge, Presiding.

Released for Publication December 6, 1994.

PECCARELLI, Quetsch, Colwell

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Plaintiff, Darin Krawczyk, special administrator of the estate of Jean Krawczyk (decedent), appeals the order of the circuit court of Lake County denying his post-trial motions.

On November 23, 1991, decedent was killed when a motor vehicle driven by Stanley Polinski (Polinski) struck decedent's automobile. Plaintiff brought a wrongful death action alleging that Polinski engaged in both negligent and wilful and wanton conduct. Additionally, pursuant to the Liquor Control Act (Dramshop Act) (Ill. Rev. Stat. 1991, ch. 43, par. 135 (now 235 ILCS 5/6-21 (West 1992))), plaintiff brought a statutory action against American Drug Stores, Inc., d/b/a Osco Drug Stores, Inc. (defendant). Defendant had sold Polinski alcohol on November 22, 1991. The jury found for Polinski on the wilful and wanton conduct counts; the trial court directed a verdict for plaintiff on the negligence counts and the jury awarded damages. The jury found for defendant, American Drug Stores, Inc., on the Dramshop Act counts. On April 16, 1993, plaintiff moved for judgment notwithstanding the verdict (judgment non obstante veredicto, hereinafter judgment n.o.v.) or, in the alternative, a new trial. These motions were denied on June 17, 1993. Plaintiff perfected his appeal on July 16, 1993.

Plaintiff contends that the trial court erred by (1) denying plaintiff's motion for judgment n.o.v., even though defendant American Drug Stores, Inc.'s, liability on the dramshop count was so overwhelmingly proven by the evidence that no contrary verdict could stand; and (2) denying plaintiff's motion for a new trial, even though the jury's verdict in the dramshop defendant's favor was against the manifest weight of the evidence. We affirm.

Polinski testified that on November 22, 1991, he purchased a 12-pack of beer from defendant's Libertyville store located in the Red Top Plaza. Polinski testified that he was certain that he purchased the beer at defendant's Red Top Plaza store.

On the afternoon of November 23, 1991, at approximately 5 p.m., Polinski began butchering a deer he had killed. During this process Polinski began to drink beer. Polinski testified that between 5 p.m. and 8:30 p.m. he drank "three to four beers." Each beer was taken from the 12-pack purchased at defendant's store. Polinski asserted that on November 23, 1993, he did not consume any alcohol other than the beer sold to him by defendant.

At approximately 8:30 p.m. Polinski left home to travel to a nearby convenience store. Polinski entered his gray/silver truck. While driving away from his home on Clover Lane, Polinski noticed that it had begun to snow. Snow had accumulated on the grass and in patches on the streets. While his truck was equipped with on-demand four-wheel drive, Polinski did not engage this safety feature.

Polinski drove north towards Route 137. He testified that he did not have trouble braking at the intersection of Clover Lane and Route 137. Polinski stated that the roadway was covered with snow and patches of ice. He turned left onto Route 137 and began to head west. Polinski asserted that he maintained a speed of 30 to 35 miles per hour.

Polinski began to lose control of his truck after passing Oak Grove Avenue. The truck began to fishtail and slide. The truck swung around until it was facing south. While sliding sideways, the truck left the westbound lanes of traffic, crossed the median strip, and entered the eastbound lanes of Route 137. Polinski saw the flash of headlights. His truck collided with decedent's car. Polinski was uninjured. Decedent was killed on impact.

Several minutes earlier, at approximately 8 p.m., Sean Brennan (Sean), was driving east on Route 137. Sean was returning from a family outing. John Brennan, Jr. (John), Sean's father, was driving the car in front of Sean's van. Sean described the road conditions on Route 137 as "wet." Both Sean and John noticed salt trucks in the westbound and eastbound lanes of Route 137. The Brennan family arrived at John's home at approximately 8 p.m.

John and Sean left John's home and entered Sean's van at approximately 8:15 p.m. John testified that there were small patches of ice on the road. While approaching Route 137 from the south, Sean noticed a gray truck heading west and a blue car heading east on Route 137. As the car and the truck passed, Sean used the blue car's speed as a gauge to estimate the truck's speed; he set the speed of the truck at approximately 50 miles per hour. Sean testified that the speed limit on Route 137 is 45 miles per hour. Sean's van slid "slightly" when he pulled onto westbound Route 137. A salt truck ...


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