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10/10/95 LINDA MORENO v. CHARLES L. MERCIER

October 10, 1995

LINDA MORENO, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF ANDREW P. MORENO, PLAINTIFF-APPELLANT,
v.
CHARLES L. MERCIER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois. No. 90-L-68. Honorable James J. Wimbiscus, Judge Presiding.

Released for Publication November 21, 1995.

Present - Honorable Allan L. Stouder, Presiding Justice, Honorable William E. Holdridge, Justice, Honorable Kent Slater, Justice, Presiding Justice Stouder delivered the opinion of the court: Slater and Holdridge, JJ., concur.

The opinion of the court was delivered by: Stouder

PRESIDING JUSTICE STOUDER delivered the opinion of the court:

The plaintiff-appellant, Andrew P. Moreno (plaintiff), filed a negligence action against defendant-appellee, Charles L. Mercier (defendant), for personal injuries sustained during a single vehicle accident which occurred while he was riding as a passenger in a vehicle operated by the defendant. The trial court entered judgment on the verdict which found plaintiff forty percent comparatively negligent. Plaintiff appeals contending he was not comparatively negligent because he was under no duty to act as a matter of law. We agree and reverse in part as modified.

The relevant facts are not in dispute. The accident occurred on the evening of July 30, 1990. Plaintiff and defendant, who had been friends for many years, along with several other friends, were riding in a vehicle operated by Robert Hart. Plaintiff was fourteen years old and defendant was fifteen years old on the date of the accident. Robert Hart was the only member of the group who was of legal driving age and possessed a driver's license.

Robert Hart stopped the vehicle to visit his friend, Adit Shadari, at Mr. Shadari's place of residence. Mr. Hart exited the vehicle alone and proceeded to the front door of the house. Once there, the remaining individuals in the car decided the defendant would operate the vehicle a short distance down the road and then another passenger, Eric Verucchi, would drive the car back. The defendant moved to the driver's seat and commenced upon this short excursion. After driving some distance, defendant lost control of the vehicle which then entered a ditch and turned over.

Plaintiff sustained serious injury to his knee as a result of this accident and brought suit. The defendant counterclaimed alleging plaintiff was comparatively negligent for remaining in the vehicle with someone he knew was an inexperienced driver. The trial court granted plaintiff's motion for summary judgment in part finding defendant was negligent as a matter of law but denied that part of the motion contending lack of comparative negligence. The remaining issues, damages and comparative negligence, proceeded to trial.

At trial, the evidence showed plaintiff never objected to defendant driving the vehicle either before or after defendant took control of the vehicle. Further, plaintiff never demanded to be let out of the vehicle at any time. Plaintiff testified at trial, over objection, he knew defendant did not possess a driver's license. Plaintiff further testified he knew defendant had not taken a driver's education course. It is from these facts which defendant contends plaintiff knew defendant was an inexperienced driver and thus plaintiff had a duty to act for his own safety prior to defendant taking control of the vehicle. The trial court accepted defendant's contention and denied plaintiff's motion for a directed verdict on the issue of comparative negligence. The trial court then instructed the jury accordingly on comparative negligence, specifically incorporating defendant's theory of plaintiff's alleged duty.

The jury assessed damages in the amount of $53,600. The jury further found plaintiff forty percent comparatively negligent and reduced recovery to $32,160. The trial court denied plaintiff's post trial motion and entered judgment on the verdict. The plaintiff now appeals.

The central issue on appeal is whether plaintiff had a duty to act, namely take precautionary measures for his own safety, when he knew defendant was an inexperienced driver. Plaintiff argues the duty of a passenger to act only attaches when there is erratic driving on the part of the driver. Defendant responds plaintiff did have a duty to act because he was on notice of a potential risk of harm, namely defendant's lack of driving experience. The plaintiff raises several other issues but since we decide today plaintiff was under no duty to act, we need not address the remaining issues. Neither party appeals the jury's initial assessment of plaintiff's damages.

Before ruling on the issue of plaintiff's duty, we note defendant argues plaintiff has waived his right to contest the issue of comparative negligence. Defendant contends that by arguing the issue of comparative negligence to this court, plaintiff, in essence, is arguing the propriety of the jury instruction regarding comparative negligence. Defendant specifically argues plaintiff failed to preserve this issue for appeal because he failed to object to his own instruction and further he failed to submit an alternate instruction. Plaintiff responds no waiver occurred because the trial court had already denied his motion for a directed verdict on comparative negligence and denied his motion in limine regarding admission of testimony pertaining to defendant's lack of a driver's license.

At the jury instruction conference, plaintiff submitted the following instruction which was given regarding his own duty: "the defendant claims that the plaintiff was contributorily negligent in thefollowing respect: A. Remaining in the vehicle when the plaintiff knew or should have known that the defendant was not experienced in the operation of a motor vehicle." Plaintiff admittedly neither objected to this instruction nor proposed an alternate instruction regarding the imposition of his duty on the issue of comparative negligence. We find plaintiff should have submitted, at least for precautionary purposes, an alternate instruction, but his failure to do so does not constitute a waiver of the issue. Plaintiff is not specifically objecting to the jury instruction. Instead, his argument goes directly to the issue of what duty is to be imposed upon a passenger in an automobile. The trial court had previously ruled on the issue and we see no reason for penalizing the plaintiff for following the trial court's instructions.

Regarding plaintiff's duty, generally, a passenger in an automobile has a duty to exercise ordinary care for his own safety. ( Hayes v. Alsburg (1978), 72 Ill. 2d 560, 382 N.E.2d 239, 21 Ill. Dec. 875.) However, a passenger has the right to assume the driver will exercise proper care and caution until he has notice to the contrary. ( Pizano v. Trejo (1971), 2 Ill. App. 3d 944, 274 N.E.2d 861.) There does exist, then, a point in time when a duty arises for the passenger to change from passive reliance to active protest for the preservation of his own safety. (See Pizano v. Trejo (1971), 2 Ill. App. 3d at 948, 274 N.E.2d at 865.) This duty arises when the passenger has reason to suspect the driver is incompetent, careless or is unable to operate the vehicle safely. ( Higgins v. Atchison, Topeka ...


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