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02/13/96 THOMAS F. REDLIN AND KATHY REDLIN v.

February 13, 1996

THOMAS F. REDLIN AND KATHY REDLIN, PLAINTIFFS-APPELLEES,
v.
VILLAGE OF HANOVER PARK, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE BARBARA J. DISKO, JUDGE PRESIDING.

Presiding Justice Campbell delivered the opinion of the court: Buckley, J., and Wolfson, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Following a jury trial, the circuit court of Cook County entered judgment on a verdict in favor of plaintiffs Thomas and Kathy Redlin and against the defendant Village of Hanover Park ("Village") in a personal injury action. The Village appeals.

The record on appeal indicates the following facts. On July 19, 1990, plaintiffs filed a two-count complaint against the Village pursuant to section 13-217 of the Illinois Code of Civil Procedure (735 ILCS 5/13-217 (West 1992)). Count I of the complaint alleged that Thomas was injured on May 7, 1988, when the motorcycle he was driving collided with a curbed concrete abutment in the center of Greenbrook Boulevard, just west of Barrington Road in the Village. The complaint alleged that this collision was caused by the negligent failure of the Village to maintain or replace a sign which had previously been erected to warn motorists of the abutment, but which had allegedly been knocked down prior to May 7, 1988. The complaint further alleged that the Village had been negligent in inspecting the location so as to determine that the sign had been knocked down. Count II of the complaint pleaded Kathy's loss of consortium resulting from the collision.

The following facts were adduced at trial. On the afternoon of May 7, 1988, plaintiffs took their three-year-old son to a barbecue at the home of Mike and Anne Peters, which was located in the Village. Thomas and Mike Peters were friends, had previously worked for the same company and had been roommates in the early 1980's. The Peters' two children also attended the barbecue, as did Anne's friend, Lisa Ryan, and Lisa's boyfriend, Gary Babiarz. The plaintiffs had purchased a six-pack of beer on the way to the barbecue.

The plaintiffs arrived between 1 and 2 p.m.; on the date in question, Thomas was "on-call" as a heating, ventilation and air conditioning repairman. Thomas testified that he thought he drank two beers between 1 and 2 p.m. Dinner was served at sometime between 6 and 7 p.m. Thomas testified that he had soda with his meal. Lisa Ryan, Gary Babiarz, Mike Peters and Kathy Redlin testified that Thomas did not appear to be under the influence or impaired at the barbecue.

After the dinner, Thomas asked to take Mike's motorcycle to get a pack of cigarettes. Thomas testified that while he had driven motorcycles in the past and felt comfortable with Mike's motorcycle, he had never been licensed to drive one. Mike testified that he let Thomas take the motorcycle, but would not have done so if he had thought Thomas was impaired or inexperienced. Gary Babiarz testified that he did not see Thomas have any difficulty with the motorcycle as it pulled away from the Peters home. The weather was clear and dry.

Thomas drove the motorcycle to a gasoline station at the corner of Lake and Greenbrook, where he bought a pack of cigarettes. Afterwards, Thomas decided to take the motorcycle for a ride and did not retrace his route to the Peters home. Thomas drove eastward on Greenbrook; he was unfamiliar with this stretch of road. At this point, Thomas had not experienced any problems with the operation of the motorcycle. Thomas testified that he was moving at between 25 and 30 m.p.h., close to the center of the road, but still on the correct side of the road.

The road progressed on an incline. As Thomas travelled along the crest of the incline, he had difficulty seeing the road ahead. Thomas glanced down and switched to the motorcycle's high-beam headlight. Approximately one second later, Thomas saw a curb between three and five feet in front of him. Thomas testified that he attempted to brake, but struck the curb. Thomas was thrown from the motorcycle, landing in the eastbound lane of Greenbrook Boulevard. Thomas crawled to the side of the road and waited until help arrived.

An ambulance took Thomas to Humana Hospital in Hoffman Estates. Thomas was later transferred to the spinal cord intensive care unit at Northwestern Memorial Hospital, where he underwent spinal surgery and was told he would be paralyzed from the waist down.

Dr. James O'Donnell, a pharmacologist, pharmacist and nutritionist, testified as an expert for the Village. Based on his review of the relevant medical records, ambulance reports, police reports and Thomas's deposition, Dr. O'Donnell opined that at the time of the collision, Thomas was under the influence of alcohol, which impaired his ability to think and act with ordinary care. According to Dr. O'Donnell, Thomas's response time, depth perception, peripheral vision and ability to discern signs and signals would have been affected. Dr. O'Donnell also opined that the statements of persons who observed Thomas would not change his opinion because the effect of the alcohol would be primarily internal at the levels detected in this case.

For example, Dr. O'Donnell testified that a blood alcohol test performed at Humana Hospital showed that Thomas's blood was drawn at 10:15 p.m. and showed a blood alcohol level of .067. Dr. O'Donnell testified that it is possible to extrapolate from this number the blood alcohol level that would have been present at times prior to the blood test. According to Dr. O'Donnell, a blood alcohol level of .067 at 10:15 p.m. would translate to a blood alcohol level of .085 at the time of the collision, which Dr. O'Donnell estimated as 9:15 p.m. Dr. O'Donnell testified that a man of Thomas's height and weight would have to drink more than three beers within an hour of the collision to have a .085 blood alcohol level. Alternatively, assuming that the drinking occurred before 3 p.m., Dr. O'Donnell opined that a man of Thomas's height and weight would have to drink more than nine or ten beers to have a .085 blood alcohol level at 9:15 p.m.

Dr. O'Donnell was cross-examined regarding a second blood alcohol test taken at Northwestern Memorial Hospital at 12:35 a.m. on May 8, 1988, which showed a blood alcohol level of zero. Dr. O'Donnell testified that the extrapolation formula would suggest that if Thomas had a .067 blood alcohol level at 10:15 p.m., he would have a blood alcohol level between .031 and .022 when the second blood sample was drawn. Dr. O'Donnell stated that Thomas would have to have a superhuman rate of metabolism for a blood alcohol level of .067 at 10:15 p.m. to reach zero by 12:35 a.m.

Dr. O'Donnell testified on direct examination that he reviewed materials describing the calibration of the blood alcohol testing equipment at Humana Hospital and the guidelines for proper use of that equipment. On cross-examination, Dr. O'Donnell stated that he had no independent knowledge of whether these calibrations and guidelines were followed on the date in question. Dr. O'Donnell also testified that he did not know about the specifics of the test performed at Northwestern Memorial Hospital. In addition, Dr. O'Donnell testified that the test ...


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