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11/27/96 PATRICIA O'CONNELL v. CITY CHICAGO

November 27, 1996

PATRICIA O'CONNELL, A DISABLED PERSON, BY TERRY NELSON, SPECIAL ADMINISTRATOR, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE WILLIAM D. MADDUX, JUDGE PRESIDING.

Released for Publication January 15, 1997.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

The law of this State establishes the special interrogatory as guardian of the integrity of a general verdict in a civil jury trial. For that reason, our courts of review have drawn a fine but critical line between proper and improper argument when a lawyer urges jurors to answer a special interrogatory in a certain way.

In this case, the trial judge found plaintiff's lawyer crossed the line during his rebuttal argument. A new trial was ordered after the jury returned a verdict awarding the plaintiff more than $10 million in damages. Our task is to determine whether the trial judge abused his discretion when he granted the new trial. We conclude he did not.

A summary of the facts and of the procedural history of this case is required to place the issue in context.

BACKGROUND

On July 15, 1979, Patricia O'Connell was a passenger on a motorcycle driven by her husband, Bill O'Connell. They rode their motorcycle from their home in Blue Island, Illinois, to a softball game on the north side of Chicago. After the game was over, at about 1 p.m., the O'Connells went to a bar. Bill O'Connell testified that he had "two to three beers" at the bar and was there for about an hour and a half to two hours before leaving. He said he was not intoxicated or impaired. No witness said he was.

The O'Connells were headed toward the southeast side of Chicago. They were traveling south on Lake Shore Drive. As the O'Connells leaned their motorcycle in an effort to negotiate a bend in the road in the 900 block of North Lake Shore Drive, a protruding part of the motorcycle scraped the ground. The motorcycle crashed into a raised lane dividing wall on the left shoulder of the road.

As a result of the crash, Patricia O'Connell suffered permanent and severe brain damage.

For the left lane, the lane the O'Connells were traveling in, the safe speed of the curve was 29.24 miles par hour. The type of warning sign that should be posted before a curve depends on its safe speed. If safe speed for the curve is less than 30 miles per hour, the proper warning sign shows an arrow turning sharply in the same direction that the road curves. If the safe speed is 30 miles per hour or more, a sign showing an arrow that curves less sharply should be posted.

The sign actually posted just before the curve at 900 North Lake Shore Drive was a "curve" sign with a speed limit of 30 miles per hour. It should have been a "turn" sign, with a speed limit of 25 miles per hour.

Just how fast the motorcycle was going as it went into the curve is unclear. Bill O'Connell testified he did not remember his speed. Patricia O'Connell was unable to testify. An eyewitness, Monroe Walton, refused to estimate the O'Connells' speed, although he said they were exceeding his speed of 35 miles per hour.

The City admitted that a "turn" sign, not a "curve" sign, should have been posted. It denied that the improper curve sign, accompanied by the 30 miles per hour advisory speed, was a proximate cause of the accident.

At trial, both sides agreed, based on the then-current case law, that a finding of any contributory negligence of Bill or Patricia O'Connell would be a complete defense because recovery would be barred by section 3-102(a) of the Tort Immunity Act (745 ILCS 10/3-102(a) (West 1992)). That is, under Thompson v. County of Cook, 222 Ill. App. 3d 459, 584 N.E.2d 170, 164 Ill. Dec. 958 (1991), aff'd on other grounds, 154 Ill. 2d 374, 609 N.E.2d 290, 181 Ill. Dec. 922 (1993), the O'Connells would not have been "intended and permitted users" of the road.

It turned out that Thompson was incorrectly decided on the issue we are concerned with in this case. In Wagner v. City of Chicago, 166 Ill. 2d 144, 651 N.E.2d 1120, 209 Ill. Dec. 672 (1995), the Supreme Court held a party's contributory negligence did not preclude him from being an "intended and permitted user" of the highway. If the case had been tried under Wagner, the mere existence of contributory negligence would not have barred recovery.

But Thompson was the agreed law of this case at trial. It was the agreed law when the City offered the two special interrogatories that have become the heart of the controversy. The interrogatories, each on a separate form, asked whether Bill or Patricia O'Connell had been "guilty of any negligence that proximately caused" her injuries. The jury was instructed that Patricia could not recover if she was negligent and her negligence proximately caused her injury.

We set out the events that took place during plaintiff's counsel's final argument, on rebuttal:

"MR. PANEK: ***Now, when you go to the jury room and you get the verdict form, you are going to have two verdict forms and you are going to have two interrogatories. If you find for the plaintiff, but answer that we were negligent on one of those--

MR. DUBNICK (Assistant Corporation Counsel): Objection, your Honor.

MR. PANEK: We lose--

MR. DUBNICK: Motion, your Honor.

THE COURT: The jury will disregard about the filling out of the interrogatories.

MR. DUBNICK: Your Honor, I have a motion.

(Whereupon, sidebar conference not heard by jury.)

MR. PANEK: I didn't get a chance to finish my statement. I was going to say we lose because we haven't proved our case, and that's what I was ...


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