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09/08/95 GLADYS DIAZ v. WARD KELLEY

September 8, 1995

GLADYS DIAZ, INDIV. AND AS SPECIAL ADM'OR OF THE ESTATE OF NATALIE DIAZ, A MINOR, DECEASED, PLAINTIFF-APPELLANT,
v.
WARD KELLEY, ARLINGTON TRUCKING COMPANY, D&J TRUCKING, INC., ATC TRUCKING, INC., AND W.V. GRAHAM, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Paddy H. McNamara, Judge Presiding.

As Modified on Denial of Rehearing November 9, 1995. Released for Publication November 28, 1995. Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice McNULTY delivered the opinion of the court: Gordon and T. O'brien, JJ., concur.

The opinion of the court was delivered by: Mcnulty

MODIFIED ON DENIAL OF REHEARING

The Honorable Justice McNULTY delivered the opinion of the court:

Plaintiff Gladys Diaz, on behalf of the estate of her daughter Natalie Diaz, brought suit against truck driver Ward Kelley and ATC Trucking Company. The jury found in favor of defendants and plaintiff appeals, contending that: (1) the trial court erred in failing to grant a new trial after learning that the jury foreperson had concealed his criminal background and his involvement in two civil lawsuits; (2) defense counsel made improper comments in opening statement; (3) the trial court erred in preventing plaintiff from questioning defendant about his violation of the Chicago Municipal Code; (4) the trial court improperly restricted plaintiff's cross-examination of a defense witness; (6) the trial court improperly instructed the jury; (7) defense counsel made improper comments in closing argument; (8) the trial court erred in denying plaintiff's motion for a directed verdict; and (9) the jury verdict was against the manifest weight of the evidence. We affirm.

Norma Moreno testified that on January 11, 1989, she was babysitting her granddaughter, Natalie, and her grandson, Perfy. At approximately 1:15 p.m., Norma, her husband, Morito, and their grandchildren left their house and headed south on California Avenue toward Fullerton in Chicago, Illinois. Morito took Perfy and went to his car to get Perfy's stroller, while Norma and Natalie waited at the north side of Fullerton and California. Norma and Natalie then crossed at the intersection from the north side to the south side of Fullerton. After they arrived at the southwest corner, they attempted to cross to the east side of California. Norma saw the "walking man," looked to the left, and noticed traffic going east. Natalie was at her left. Norma testified that she held Natalie's hand and they stepped off the curb. The next minute, something pulled Natalie out of Norma's hand, and they were both hit by the back wheels of a truck.

Norma testified that she did not see the truck until she stepped into the street. Norma admitted that, at her deposition, she had testified that she never stepped off the curb with Natalie and that she and Natalie were both standing on the curb when she felt Natalie get pulled. At trial, Norma testified that the truck never came up onto the curb. Norma testified that when she felt the pull from her granddaughter, the front wheels of the trailer had already passed in front of her. Natalie was four or five feet into the intersection when she was hit by the truck.

Morito Moreno testified that he crossed from the north to the south side of Fullerton at the intersection of Fullerton and California. His wife and Natalie waited for him at the intersection of Fullerton and California. When the "walking man" came on, Morito, Norma, Natalie and Perfy crossed from the north side to the south side of the street. Morito hurried ahead because he knew he would have trouble lifting the stroller onto the curb. As he was straightening the stroller wheels on the curb, he heard his wife scream. He turned and saw his wife trying to pick herself up and pull Natalie up at the same time. Morito then saw the wheel of the truck hit part of Natalie's head. Morito did not see the truck as he was crossing the street.

Diana Mendoza testified that she was getting ready to cross the street at about 1 p.m. on January 11, 1989, when she saw a little girl and her grandmother at the southwest corner, getting ready to cross the street toward her. The grandmother was holding the child's hand. She saw the grandmother and the child take one step into the crosswalk. The pedestrian light was green and Mendoza began to cross the street but was forced to stop in the middle of the street because a truck was coming eastbound at her. The truck was making a right turn on to California. When the truck made its turn, Mendoza saw the little girl fall and the front rear tire hit the girl. Mendoza estimated that the truck was traveling about 10 miles an hour.

Defendant Ward Kelley testified that when he approached the light at Fullerton and California, it was red and he stopped his truck in the innermost lane of the eastbound Fullerton lanes. While he was stopped, he was aware of people crossing from the northwest to the southwest corner, but he only saw the tops of their heads as they passed in front of his truck. The flow of traffic north and south on California prevented him from turning right on the red light at that intersection. When the light turned green, Kelley looked to see if there were any pedestrians in the crosswalk. He saw pedestrians on the southeast and southwest corners. He did not see any small children and there was nothing obstructing his vision. Prior to making his right hand-turn to go south on California, Kelley did not sound his horn. In order to get enough clearance to make the right-hand turn, the front part of the truck had to cross the yellow lines and enter the left turning lane on the northbound side of California. Kelley testified that he could not have made the right-hand turn while keeping the front part of the truck totally within the southbound lanes of California. As he made the turn, he never noticed the grandparents, a child in a stroller or a little girl. Before he completed his right turn, he saw a woman at the right rear of his tires. He never saw Natalie until he stopped and exited the truck and saw her lying on the street. He did not decrease his speed until he saw the woman at his right rear tires.

Leonide Rios testified that at the time of the accident he was facing the east side of Fullerton as he waited to cross Fullerton. He noticed a tractor trailer turning south on California at about three to five miles an hour. At the same time he noticed a little girl walking off the sidewalk and into the street at a slow to normal pace. Rios did not see anybody with the girl when she walked onto the street and was hit by the last two tires of the truck. The little girl was not holding anybody's hand. When Rios saw the child walk into the street, he signaled the truck driver to stop and the driver stopped right away, moving 10 or 12 inches after the impact. Rios estimated that the little girl was six to seven feet from the sidewalk into the street when she was hit by the truck.

Robert Greenwald, a truck driver, testified that he was walking east on Fullerton near California when he saw a semi-truck at the intersection of California and Fullerton. Greenwald explained that when making a turn, the trailer follows the cab and sometimes the cab goes into the left-turn lane to get enough space to clear the curb. The truck he saw did clear the curb. He said that the truck did not get up over a crawl, meaning that it was barely moving. As the truck was turning, Greenwald heard a woman scream and saw the little girl's body lying in between the tandems of the trailer. After Greenwald heard the screams, the truck stopped.

Plaintiff first contends on appeal that she should have been granted a new trial because the jury foreperson, Lawrence Sims, concealed during voir dire the fact that he had a prior criminal history and had been named a defendant in two civil lawsuits, one of which plaintiff claims was currently pending in the circuit court of Cook County.

A motion for a new trial based on a juror's false testimony during voir dire should be denied unless the movant establishes both that the juror answered falsely and that prejudice resulted. ( Pekelder v. Edgewater Automotive Co. (1977), 68 Ill. 2d 136, 368 N.E.2d 900, 11 Ill. Dec. 292.) The issue is primarily left to the discretion of the trial court, which is in the best position to observe the juror and his demeanor. Pekelder, 68 Ill. 2d at 139.

After the trial was completed, plaintiff's attorney discovered that Sims, who was 28 years old at the time of trial, as a teenager had pled guilty to a charge of possession of a stolen vehicle and had been charged with aggravated assault. On his juror information card, Sims stated that he not been an accused, a complainant or a witness in a criminal case. Despite Sims' misrepresentation, we see no reason why Sims' criminal activity as a teenager would have been prejudicial to plaintiff's civil case tried 10 years after Sims' criminal involvement.

Plaintiff's attorney also discovered after trial that two collection actions for medical bills had been brought against Sims. On his juror information card, however, Sims had stated that he had never been a party to any lawsuit. Plaintiff claims that at least one of these actions was pending at the time of trial. However, it appears that these actions were finally adjudicated in 1991 and 1992. Regardless, we do not see how a dispute with a medical provider would prejudice Sims against plaintiff.

Plaintiff claims that Sims' prejudice against plaintiff's case was evident from his "facial expressions and mannerism of disbelief" during the testimony of Natalie's sister. Plaintiff claims that Sims' bias toward the defense was evident when Sims suggested that the court ...


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