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Grossman v. Gebarowski

June 28, 2000


The opinion of the court was delivered by: Justice Burke

Appeal from the Circuit Court of Cook County.

Honorable John V. Virgilio, Judge Presiding.

Plaintiff Beverly Grossman, special administrator of the Estate of Barry Grossman (the decedent), appeals from an order of the circuit court granting judgment on a jury verdict in favor of defendant Walter Gebarowski and from an order denying plaintiff's post-trial motions for judgment notwithstanding the verdict (judgment n.o.v.) and for a new trial in a negligence action filed by plaintiff against defendant pursuant to the Wrongful Death Act (740 ILCS 180/1 et seq. (West 1992)) and the Survival Act (755 ILCS 5/27--6 (West 1992)). *fn1 Plaintiff contends on appeal that the trial court committed reversible error by depriving plaintiff of the assurance of a jury that was free from bias or prejudice and by instructing the jury with two separate, nearly consecutive instructions concerning a pedestrian's duty while "crossing a roadway" without also instructing the jury that drivers owe a duty to a pedestrian "crossing a roadway." For the reasons set forth below, we reverse and remand for a new trial.

On November 25, 1992, the decedent, Barry Grossman, a disabled person who had been suffering from cerebral palsy, was crossing Milwaukee Avenue on foot north of its intersection with Central Road and south of the entrance to the Triumvera housing complex in Northfield Township when he was struck and killed by an automobile owned and operated by defendant, Walter Gebarowski. Plaintiff, Beverly Grossman, subsequently filed a two-count complaint against defendant and on behalf of herself and Robert Grossman, as the decedent's parents, and on behalf of the decedent's brother and sister. Plaintiff alleged that defendant had negligently operated his automobile and that his alleged negligence had been a proximate cause of the decedent's death. Defendant denied both that he had been negligent and that he had caused or contributed to cause the decedent's death. Defendant claimed, as an affirmative defense, that the decedent had violated his duty to use ordinary care for his own safety by failing to maintain a proper lookout for vehicles on the roadway, by failing to cross the street within a crosswalk, and by being otherwise careless and negligent.

Prior to trial, the trial court advised counsel that it alone, during jury selection, was going to ask the prospective jurors only those questions previously submitted by counsel that it thought were "relevant." The court further advised counsel that they could proffer supplemental written questions, but the court specified that only it would ask those supplemental questions it, again, thought were "relevant." Specifically, in establishing its jury selection process, the court stated:

"There will be five challenges on each side. I will be doing the questioning in this case. The attorneys have submitted jury questions to me that they would like me to ask. I will ask those questions if I think they are relevant, and I will not ask those questions I don't think are relevant."

In response to an inquiry posited by plaintiff's counsel whether the court would permit him to supplement the court's voir dire examination, the trial court responded:

"Yes, but in writing. *** When I ask if you have any challenges, if you think I need to ask more questions or a couple more questions, write them down in writing and give them to me and, again, if I think they are relevant, I'll ask them. If I don't I won't."

Defendant's counsel then questioned the procedure, stating:

"Your Honor *** I do understand your Honor's policy regarding not allowing lawyers to ask questions. Since this is a wrongful death case, I want to put on the record that I do request the option of asking questions to this jury on behalf of [defendant]. I have entered written questions to the Court because that's what we were told to do, but at this point I want to put on the record a request to ask oral questions." Stating its "reasoning" for its selection process, the court responded that it could not"get jurors to serve on the jury, whatever conceivable excuse, and it's been getting progressively worse.

When I came here in this division in December of 1980, it was so easy to select a jury, even if they were going to go for two, three, four weeks. Now they don't even want to go one, two, three days. And I do this, I assert my authority and ask them direct questions trying to get 12 fair and impartial jurors.

I know the Supreme Court Rule says the attorneys shall participate, but I have the written questions and any questions they may have after, I ask if they have challenges. I ask their participation in order to ensure getting a jury, and that's the reasoning behind the way I select the jury."

Subsequent to the court's remarks, plaintiff joined in defendant's request for leave to conduct oral questioning of the jurors, stating, "Your Honor, just for the record as well, we too would join in the request for leave to conduct oral questioning ourselves for the same reasons [as those stated by defendant's counsel]." The trial court then began its own questioning of the prospective jurors by informing the venire about the nature of the case, the location of the accident, the names of the parties and their counsel, a brief description of the parties' contentions, and the names of potential witnesses. Immediately thereafter, the court questioned each prospective juror. In general, the court inquired about each juror's residence, occupation, employer, and marital status; the ages and sexual identity of any children; the occupations of a spouse or ex-spouse, either parent, and any children, in-laws or siblings; any prior jury service; any involvement in lawsuits; the relationship, if any, to anyone injured or killed in an automobile accident; whether the juror drove; the juror's educational background; any history of cerebral palsy or other disability in the juror's family background or close net of friends; and whether or not the juror could give both sides a fair trial.

If a prospective juror disclosed information in response to the trial court's questions, the court would then ask follow-up questions. For example, if a prospective juror disclosed a prior lawsuit and accident history, the court inquired about the nature of both the accident and the injuries sustained, whether a claim had been made, the name of the retained attorney, and the disposition of the claim. If a prospective juror disclosed that a family member or close friend had been involved in an accident, the court asked the juror to describe the nature of the accident and any injuries sustained. When a prospective juror disclosed that she and her spouse had been injured at work and had filed workers' compensation claims, the court asked whether that experience would prevent the prospective juror ...

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