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Wade v. City of Chicago Heights

March 31, 1998

HARRY WADE AND JOANN WADE, PLAINTIFFS-APPELLEES,
v.
CITY OF CHICAGO HEIGHTS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Irwin J. Solganick, judge Presiding.

The opinion of the court was delivered by: Justice Hartman delivered the opinion of the court:

This is the second appeal, following a second trial, involving these parties. Plaintiffs Harry and Joann Wade filed a negligence claim seeking damages for injuries suffered in an accident in which Harry was the driver and sole occupant of a car that struck the east side of a building on the northeast corner of 14th and Wentworth in the city of Chicago Heights. In Wade v. City of Chicago Heights, 216 Ill. App. 3d 418, 575 N.E.2d 1288, appeal denied, 141 Ill. 2d 562, 580 N.E.2d 137 (1991) (Wade I), defendant city of Chicago Heights (City) appealed the jury's verdict awarding plaintiffs $3,582,627.70 in personal injury damages and $904,166.67 in consortium damages. This court affirmed in part, reversed in part, and remanded for a new trial, with instructions.

After the instant second trial (Wade II), the jury awarded plaintiffs $1,923,000 in personal injury damages and $300,000 in consortium damages. The City appeals, alleging error in the circuit court's having: (1) denied the City's motion for a directed verdict or judgment notwithstanding the verdict; (2) permitted a licensed traffic engineer to offer testimony of his opinion regarding the cause of the accident although he was not an expert in accident reconstruction; (3) refused to allow any evidence of Harry's alcohol consumption or level of intoxication at the time of the accident; and (4) denied the City's motion for a mistrial after a juror admitted visiting the scene of the accident.

The accident occurred at about 3:49 a.m. on May 19, 1982, while Harry, driving his car westbound on 14th Street near its intersection with Wentworth Avenue, lost control of the car and crashed into a brick building. Plaintiffs alleged that the accident was caused by the presence of a construction hole in the middle of 14th Street, which the City had created while performing repairs.

In Wade II, testimony previously given under oath by Raymond Rossi, who was unavailable to testify, was read into the record. At the time of the accident, Rossi was the superintendent of the City's water department. Department workers had been assigned to restore water service to an occupied building on 14th Street. A hole was dug in the street, which was subsequently backfilled with gravel two to three inches above the pavement. Workers surrounded the hole with three barricades, the tops of which displayed battery-operated lights. Rossi testified that the batteries could last for more than a month, although in previous deposition testimony he said they last only three to seven days. Rossi did not receive authority from the Illinois Department of Transportation to effect the repairs. No warnings other than the barricades were placed near the hole.

Harry testified that at the time of the accident, he had been working for the Ford Motor Company for 18 years. On May 18, 1982, Harry worked the third shift, 3:30 p.m. to 11:30 p.m., at the end of which he drove to a friend's house in Gary, Indiana. They watched boxing matches for a few hours. Harry left at around 2:30 or 3:00 a.m., drove south on Calumet Expressway, exited at Route 30, also known as 14th Street, and turned west. Harry drove through two traffic lights, stopping temporarily at the second light before it turned green. He encountered a construction zone about 200 yards west of that intersection, where barrels barricaded several lanes and lights and signs guided motorists, requiring him to change lanes constantly, in a zigzag pattern, for about one mile and one-half, as the four-lane highway became a two-lane road. The construction ended one-quarter of a mile before the State Street intersection, where Harry stopped for a traffic light. When the light changed, he continued driving west on 14th Street and next remembered waking up six weeks later at the hospital.

Henry Rice, Jr., a City police officer on May 19, 1982, investigated the accident at 3:51 a.m. and prepared a report. He found Harry unconscious in his car, which had extensive damage to the driver's side, and was against the east wall of a building located at the northeast corner of 14th Street and Wentworth. While patrolling the area earlier, Officer Rice observed a hole in the road near the intersection of 14th Street and Wentworth, which was filled in and surrounded by three barricades. At least two of the three lights on the barricades, and possibly the third, were working, and could be seen from 200 feet away, but after the accident, they had been knocked down, were heavily damaged, and were scattered around the scene, between 15 and 25 feet away from the hole. At least one light on one of the barricades was still flashing. There were tire marks leading from the site of the construction area to the car's final position against the building. His report concluded, "river apparently lost control after striking the barricade 50 feet east of building which he struck."

Gerald Lindgren, a licensed professional engineer, testified for plaintiffs that the City failed to comply with applicable State standards found in the Manual on Uniform Traffic Control Devices (Manual), which discussed traffic safety rules for road work performed within the State. Specifically, the City did not meet the requirements for construction, warning, channelization, and overall safety in performing the construction project. In addition, the barricades used around the construction site were insufficient under the circumstances. Lindgren believed that the City's failure to use warning signs and channel traffic caused Harry to hit the barricades and the hole, and ultimately to collide with the building.

Dr. Robert Clinton Watkins, Jr. testified that he was Harry's family physician, having treated him since 1975. Before the accident, Harry was in good mental and physical health. In May 1982, after the accident, Dr. Watkins examined Harry upon his admission to the hospital. Harry's left eye was severely swollen and was bleeding. A CAT scan revealed a contusion of the brain and brain tissue. After regaining consciousness, Harry complained of persistent headaches. An optic neurologist concluded that Harry was suffering from left optic neuritis, or a degeneration of the optic nerve. Dr. Watkins and other specialists treated Harry at the hospital. Harry regained consciousness by the second hospital day, but was very confused and did not know what had happened. The level of confusion was so unusual that a psychiatrist was called in and, occasionally, restraints were employed. Harry later was sent to the psychiatric unit of a nearby hospital. Dr. Watkins continued to treat Harry until just before the Wade family moved to Nashville. During that time, Harry continued to suffer from headaches and had problems with his vision. Three other doctors examined Harry before trial and offered testimony regarding the serious nature of Harry's brain, vision and psychological injuries. An economist testified about Harry's pecuniary losses since the accident, which would continue in the future.

The videotaped evidentiary deposition of Thomas Cabello was presented to the jury. Cabello owned a dry cleaning and tailoring business located on 14th Street near the scene of the accident. In May 1982, Cabello observed the construction being performed on 14th Street. The hole created by the construction was present for at least "a couple of weeks," and was surrounded by barricades. Although lights were erected on the barricades, they quickly grew weaker and stopped working after three days. Cabello was at the store when the accident occurred, having slept at the store overnight. Two of the barricades were knocked over after the accident, but the third remained standing. The hole was filled and the barriers taken away the day after the accident.

Marea Wade Foster, Harry's daughter, and plaintiff Joann Wade, Harry's ex-wife, testified regarding the extreme changes in Harry's behavior after the accident, and the harsh effect of those changes on their lives. Joann divorced Harry in 1993 after he became physically violent with her on several occasions; before the accident they had a "beautiful relationship."

After the close of plaintiffs' case, the City attempted to introduce evidence that Harry had been drinking alcohol before the accident. The admission of this evidence also was a significant issue during the first trial. See Wade I, 216 Ill. App. 3d at 423-28. The circuit court granted plaintiffs' motions in limine on this issue before the second trial, barring any evidence or reference to Harry's alleged consumption of alcohol, or of a blood alcohol test taken at the hospital, unless the City established a proper foundation for the evidence, at which time the City could move to vacate and reconsider the court's decision. Before trial, the City unsuccessfully moved for reconsideration of this order. Dr. Michael J. Chambliss, a forensic pathologist, testified in an evidence deposition for the purpose of making an offer of proof and establishing a foundation for evidence of alcohol use. Out of 3,000 to 4,000 autopsies he performed at the Cook County Medical Examiner's Office, several hundred involved alcohol- related deaths, and he also performed autopsies in private practice, many of which were alcohol related. He reviewed Harry's medical records, including a blood alcohol test that revealed Harry's blood alcohol level was .208, and concluded that a person at this level was under the influence of alcohol, adJudged that Harry was intoxicated and could have suffered a loss of critical judgment, impairment of perception, and a loss of attention span.

With regard to the blood alcohol test, the parties submitted the following evidence in support of their respective offers of proof. Hospital records indicated that Harry's blood could have been tested by either of two hospital employees with the initials MNT and TAD. The City subpoenaed Thaddeus Dominick, alleging that he had taken and analyzed the blood. In a sworn statement, Dominick testified that neither he nor Marcus Trevino, the other hospital employee, were licensed phlebotomists. In 1982, there was no special license for phlebotomists. Dominick worked the night shift at the hospital in May 1982. He did not know if he or Trevino drew blood from Harry. He could not tell who drew the blood. Dominick also testified regarding the procedures used by the hospital at that time for drawing blood.

The circuit court refused to admit this evidence, and the City rested. The jury returned a verdict in favor of plaintiffs, as first noted. The City appeals, raising the issues earlier set forth. For the reasons which follow, we ...


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