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10/11/96 ALEKSANDER ANTOL v. LIBORIO CHAVEZ-PEREDA

October 11, 1996

ALEKSANDER ANTOL, PLAINTIFF-APPELLEE,
v.
LIBORIO CHAVEZ-PEREDA, DEFENDANT, AND CHICAGO TRANSIT AUTHORITY, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 88 L 22578. The Honorable Edward G. Finnegan, Judge Presiding.

The Honorable Justice Hourihane delivered the opinion of the court: Mcnulty, P.j., and Gordon, J., concur.

The opinion of the court was delivered by: Hourihane

JUSTICE HOURIHANE delivered the opinion of the court:

Following a jury trial, plaintiff, Aleksander Antol (Antol), was awarded $4.5 million for personal injuries he sustained as the result of an accident involving his motorcycle and a station wagon driven by defendant Liborio Chavez-Pereda (Chavez). The vehicles collided after Chavez ran a red light. Plaintiff also sued the Chicago Transit Authority (CTA) on a negligence theory, alleging that one of its drivers waved plaintiff through the intersection without first determining that it was safe to proceed, and that the bus driver created a hazardous condition by positioning his bus partially in the intersection, thus obstructing plaintiff's view of the cross-traffic. The jury allocated liability 60% to the CTA and 40% to Chavez. The CTA appeals from the judgment entered on the jury verdict and the order denying its post-trial motion. 155 Ill. 2d R. 303.

On appeal, the CTA asserts that no duty to use ordinary care was created when the bus driver waved the plaintiff through the intersection; that the jury's allocation of fault is against the manifest weight of the evidence; that the trial court erred in giving the missing-witness instruction for the CTA's failure to produce the bus driver at trial; that the jury's verdict was excessive and erroneous; and that accrual of interest on the judgment should be stayed for the period in which preparation of the record on appeal was delayed due to the actions of plaintiff.

For the reasons that follow, we affirm in part, reverse in part, and remand this matter to the trial court for a determination of the relative liability of the defendants.

BACKGROUND

Just past midnight, on June 16, 1988, plaintiff was driving his motorcycle southwest on Archer Avenue in Chicago. Riding on the back of the motorcycle was a co-worker. They were both on their way home from work. As plaintiff approached the intersection of Archer and Halsted, plaintiff noticed a CTA bus headed north on Halsted. The bus was stopped at the bus stop, with part of the bus extending into the intersection. Although the light was green for plaintiff, he slowed down as he approached the intersection because he was not sure if the bus was going to proceed. He was also concerned about other northbound traffic.

About 30 yards from the intersection, the bus driver motioned to plaintiff to proceed. Plaintiff hesitated and slowed down to about 10 m.p.h. Twice more the bus driver waved him on. As soon as plaintiff accelerated and moved into the intersection, he was struck by Chavez' vehicle. Chavez testified that the light had changed to green before he entered the intersection. Chavez could not see the bus driver from his vantage point and his testimony as to the location of the bus was inconsistent, stating at one point that the bus extended into Archer, but later testifying that the bus was stopped passed the crosswalk but before the intersection.

A taxi driver, Andrew Chutzik, who was working that night and was travelling southwest on Archer behind plaintiff, observed the collision. He testified that he first saw plaintiff approximately ten blocks before the collision site and that plaintiff was travelling between 25 and 35 m.p.h. The posted speed limit was 35 m.p.h. He further testified that about one-half of the bus was extended into the intersection.

The taxi driver saw plaintiff slow down as he approached the intersection and also observed the bus driver motion with his hand for plaintiff to proceed. The bus driver was looking north as he motioned to plaintiff. Plaintiff was struck as soon as he entered the intersection. The taxi driver did not see the Chavez station wagon before the collision.

Also witnessing the collision was another motorist, James Bullock, who was travelling south on Halsted. Bullock testified that at the time of the collision the light for northbound and southbound Halsted traffic was red. He did not see a CTA bus, but did observe a station wagon heading north on Halsted at about 40 m.p.h. He first noticed it because of its speed. He heard the sound of plaintiff's motorcycle, looked to the left, saw plaintiff travelling at about 30 m.p.h. with a green light, and realized there would be a collision. Bullock had been stopped at the red light for approximately ten seconds prior to the collision. Bullock later told police that Chavez had gone through a red light.

Bullock's passenger did not see the events leading up to impact, nor did she see a CTA bus at the intersection prior to the collision. The only bus she saw was going south on Halsted and did not arrive until after the accident occurred.

Plaintiff did not mention the bus to anyone immediately after the accident and the CTA denied that one of its buses was at the scene. When the police arrived, there was no CTA bus at the intersection and only two vehicles were indicated in the accident report. Police issued three citations to Chavez. None were issued to plaintiff.

As a result of the accident, plaintiff sustained multiple contusions, a fracture near his left shoulder, and compound fractures to his left leg, necessitating amputation of his leg below the knee.

On December 9, 1988, plaintiff filed suit against Chavez and the CTA. Plaintiff alleged the CTA was negligent in directing plaintiff into the intersection before determining that it was safe and creating a hazardous condition by positioning the bus partially in the intersection. A jury awarded plaintiff $4,492,710, allocating 60% of the fault to the CTA, and 40% to Chavez. The CTA's post-trial motion was denied and the CTA appeals.

ANALYSIS

I

The CTA first argues that in Illinois no duty to use ordinary care is created when a driver signals or waves someone through an intersection. Even if a correct statement of the law *fn1, the CTA never asserted the absence of a duty in its answer or affirmative defenses, or in any other pre-trial motion. Rather, the CTA defended the case on the basis that (i) no CTA bus was at the intersection at the time of the accident, and (ii) the plaintiff was negligent. In its motion for a directed verdict, the CTA argued only that even if one of its buses was at the intersection, there was no evidence that the CTA was "responsible" for the accident. This argument appears to address proximate cause, not duty. Additionally, the CTA's only objection to the jury instruction tendered by plaintiff, which set forth the law concerning the liability that may arise when one performs a voluntary undertaking without using ordinary care, was that it was "one-sided." The CTA never objected on the basis that it did not accurately set forth the law relative to any duty the CTA might have or that it was inapplicable in this case. *fn2 It was not until the CTA filed its post-trial motion for judgment notwithstanding the verdict or a new trial that the CTA first raised the issue of duty, arguing that there was no evidence that the CTA had a duty to plaintiff and that no duty arose as a matter of law.

It is well settled that issues raised for the first time on appeal will not be considered. Eagan v. Chicago Transit Authority, 158 Ill. 2d 527, 534, 199 Ill. Dec. 739, 634 N.E.2d 1093 (1994). It is also the rule that a party may not raise on appeal defenses not interposed in its answer before the trial court, and issues raised for the first time in a post-trial motion will not be considered. Washington v. Civil Service Commission of the City of Evanston, 120 Ill. App. 3d 822, 828, 458 N.E.2d 952, 76 Ill. Dec. 298 (1984). The CTA argues that the issue of duty, being a question of law, cannot be waived. However, the cases on which it relies, Kus v. Sherman Hospital, 268 Ill. App. 3d 771, 644 N.E.2d 1214, 206 Ill. Dec. 161 (1995) and Bates & Rogers Construction Co. v. North Shore Sanitary District, 92 Ill. App. 3d 90, 414 N.E.2d 1274, 47 Ill. Dec. 158 (1981), are readily distinguishable. In Kus, the trial court left to the jury the task of deciding whether defendant owed a duty to plaintiff and so instructed the jury. Although the plaintiff did not object to the jury instruction, this court determined that the propriety of the jury instruction was not waived on appeal. We reasoned that "permitting a jury to assume a judicial role in determining whether a duty existed, especially where we determine that a duty did exist as a matter of law, deprives the plaintiff of a fair trial." 268 Ill. App. 3d at 782. In the case sub judice, the determination of whether a duty exists was not left to the jury. Thus, Kus is inapplicable to the facts present here.

In Bates & Rogers Construction Co., on review of the grant of a motion to dismiss, we concluded that particular defenses to the existence of a duty not specifically urged in the trial court were not waived on appeal where they related purely to questions of law which were inherent in the finding of the trial court that no duty was owed. 92 Ill. App. 3d at 97. Here, the CTA never challenged plaintiff's theory of the case that the CTA "took upon itself the duty use ordinary care" when its driver waved plaintiff through the intersection. Thus, unlike the defendant in Bates, the CTA accepted plaintiff's assumption of duty theory.

Further, our supreme court has held that where a defendant municipality tried and lost a negligence case contending only that the facts present could not establish a special duty owed by defendant to plaintiff, defendant could not, on appeal, challenge the circuit court's judgment on a wholly different basis, attacking the very existence of the duty on constitutional grounds. Leone v. City of Chicago, 156 Ill. 2d 33, 38, 188 Ill. Dec. 755, 619 N.E.2d 119 (1993). Here, the CTA tried and lost the case on the theory that no bus was in the intersection, and that plaintiff was negligent. The CTA cannot, on appeal, challenge the trial court's judgment on the wholly different theory that no duty exists as a matter of law. See also Diaz v. Chicago Transit Authority, 174 Ill. App. 3d 396, 528 N.E.2d 398, 123 Ill. Dec. 853 ...


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