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05/04/95 WILLIAM TELLONE AND CITY HIGHLAND PARK v.

May 4, 1995

WILLIAM TELLONE AND THE CITY OF HIGHLAND PARK, PLAINTIFFS-APPELLANTS,
v.
NORTH SHORE DODGE, INC., D/B/A GREGORY DODGE, AND CYNTHIA IACCH, DEFENDANTS-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 90-L-106. Honorable Raymond J. McKoski, Judge, Presiding.

Rehearing Denied May 26, 1995.

The Honorable Justice Rathje delivered the opinion of the court: Inglis and Thomas, JJ., concur.

The opinion of the court was delivered by: Rathje

JUSTICE RATHJE delivered the opinion of the court:

Plaintiffs, William Tellone (Tellone) and the City of Highland Park (City), filed a multicount complaint against defendants, North Shore Dodge, Inc. (NSD), and Cynthia Iacch (Iacch), seeking damages for injuries Tellone suffered in an automobile accident. During the jury trial, the City's case was severed from that of Tellone. The jury found in favor of all the remaining defendants and against Tellone. Tellone appeals from the jury's verdict, raising the following issues: (1) whether the trial court erred in permitting a letter of reprimand against Tellone to be admitted into evidence; and (2) whether Tellone was deprived of a fair trial by the conduct of Iacch's attorney during closing argument. We reverse and remand for a new trial.

We note that Tellone does not challenge the jury's verdict as against the weight of the evidence. Moreover, a detailed review of the testimony at trial in this case is unnecessary for our determination of the issues raised in this appeal. Suffice it to say, that on February 11, 1989, Tellone, a police officer for the City, was responding to a report of a burglary. According to Tellone, he proceeded eastbound on Park Avenue at a speed in excess of the speed limit which he believed to be 30 to 35 miles per hour. Tellone did not activate his oscillating lights or his siren. According to Tellone, as he approached the intersection of Sunnyside and Park, he noticed a vehicle, which he later alleged was driven by Iacch, proceeding northbound on Sunnyside. The vehicle did not appear to stop at the stop sign on Sunnyside. In attempting to avoid the vehicle, Tellone's squad car entered a drainage ditch, and he was injured as a result.

Tellone contends, first, that the trial court erred in permitting a letter of reprimand against him to be admitted into evidence. The letter was prepared by the accident review board and was from the City of Highland Park department of public safety, police and fire departments to Tellone. Prior to the admission of the letter, Daniel Dahlberg, the City's police chief, testified that the accident review board was an arm of the police department and that the board reviewed all accidents such as the one in which Tellone was involved. The letter, which was read to the jury, stated as follows:

"On February 11, 1989 at 1:10 pm, you were involved in an automobile accident while driving squad car No. 92. After reviewing the facts, the accident review board feels that you were negligent in your actions and that you contributed to this accident by responding to a burglar alarm call without using your emergency lights or siren.

Had your emergency lights and siren been activated, you might not have had to take evasive action when you thought a vehicle approaching you on Sunnyside at Park Avenue West may not stop at the stop sign or might approach too far into the intersection."

The document was signed by William Dowling, deputy chief; Lieutenant Larry Warnky; and Sergeant Earnest Castelli.

At the time that the letter was admitted into evidence, the City was still a party plaintiff. The trial court admitted the letter into evidence solely against the City on the basis that it was an admission by agents of the City against the City. Both prior to and following the reading of the letter to the jury, the trial court instructed the jury that the letter was to be considered by it only as to the case brought by the City and that it could not be considered in the case brought by Tellone.

After the close of all the evidence, the trial court determined that the letter of reprimand should not have been admitted against the City, since Tellone's negligence was not an issue in the City's case in which the City was seeking payment of its worker's compensation lien. Pursuant to the stipulation of the parties, the trial court severed the City's case from that of Tellone. The trial court then instructed the jury that the City was no longer a party to the case and that, as a result, the letter of reprimand was not evidence, no longer a part of the case, and should not be considered in any way in deciding the outcome of Tellone's case.

The majority of Tellone's arguments deal with the admissibility of the letter in the first instance. At trial, NSD conceded that the letter was inadmissible against Tellone. However, NSD argues that the letter was admissible against the City because in its complaint the City also sought reimbursement for additional labor expenses during Tellone's recuperation, in addition to payment of its worker's compensation lien. However, in view of the trial court's subsequent ruling that the letter was not admissible, we need only focus on whether Tellone was prejudiced or the outcome of the trial was unduly affected by the admission of the letter.

Trial error warrants reversal only if the error prejudiced the appellant or unduly affected the outcome of trial. ( Lounsbury v. Yorro (1984), 124 Ill. App. 3d 745, 751, 80 Ill. Dec. 1, 464 N.E.2d 866.) This is especially true where, as was the case at bar, the appellant has not contended that the verdict is ...


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