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Kresin v. Sears

September 01, 2000


The opinion of the court was delivered by: Presiding Justice Quinn

Appeal from the Circuit Court of Cook County Honorable Maureen Durkin Roy, Judge Presiding.

Plaintiff, Rosa Kresin (Kresin), brought suit against defendants Sears Roebuck and Company (Sears) and Alfredo Jijon (Jijon) (collectively defendants) for injuries she sustained when Jijon, a Sears employee, struck her as he backed a van out of a Sears Automotive Center (Auto Center) in St. Charles, Illinois. A jury returned a verdict in Kresin's favor in the amount of $16.5 million, which was reduced to $15,691,690 million after deducting 5% for Kresin's negligence.

Defendants contend on appeal that: (1) the jury's verdict with respect to Sears' liability was against the manifest weight of the evidence; (2) the jury's allocation of 60% of the fault to Sears was against the manifest weight of the evidence; and (3) the jury's damage award was excessive. For the reasons that follow, we affirm.

Sears operates a retail store with an automotive center at the Charlestown Mall in St. Charles, Illinois. On June 1, 1996, Rosa Kresin, age 73 at the time of the incident, shopped at the Sears Auto Center and purchased a new battery for her vehicle. At approximately 1:40 p.m., Kresin used the "Diehard Express" door to leave the store. The Diehard Express door is located next to the service bay area, which is used to service vehicles.

Jijon was an employee of Sears at the time and was driving a Chevrolet Astro van that had been recently serviced in the service bay area nearest the Diehard Express door. Jijon backed the van out of the service bay and hit Kresin, who was crushed under the van and suffered severe injuries.

Count I of Kresin's complaint was based upon the doctrine of respondeat superior and alleged that Jijon, individually and as an employee of Sears, failed to exercise ordinary care in the operation of the van and that his failure to do so proximately caused Kresin's injuries. Count II of Kresin's complaint alleged, inter alia, that Sears failed to adequately train and instruct its employees regarding the safety procedures applicable to the operation of vehicles in close proximity to the Diehard Express door of the store's Auto Center.

During trial, Edward Sosniak testified that, at the time of the accident, he was the store manager. Sosniak testified regarding the physical layout of the store and stated that, in order for customers to enter and exit the Sears store, they had to walk out through the parking lot that adjoined the Auto Center. Sosniak testified that he was aware that vehicles were backed out of the service bay area through the pedestrian area and accompanying parking lot.

After describing the store layout, Sosniak was asked whether one of the safety issues addressed while he was store manager related to the danger created by both vehicle and foot traffic when backing vehicles out of the service bay area. Sosniak agreed that this issue had been raised and that there was concern "about the safety of backing out of these bays." He testified that, during his period as store manager, safety meetings were held and employees were told to be careful and to use common sense when backing out of the service bay area to avoid colliding with other vehicles or pedestrians. Despite this concern, Sosniak admitted that there were no warning signs posted for pedestrians. There were only two signs posted in the Auto Center regarding safety: one sign asked customers not to park in front of the service bay doors and the other sign, posted along the walkway adjacent to the service bay area leading from the Diehard Express entrance/exit, stated, "Safety Requirements Prohibit Customers From Entering Work Area."

Sosniak also admitted that Sears had an employee safety and health manual which, among other items, required employees to check behind a vehicle before backing up. However, Sosniak further admitted that the safety manual was not provided to employees.

Both Alan Delbusto and Robert Ream, automotive technicians employed by Sears at the time of the accident, testified that they never received a safety manual and were never given instructions about safety precautions to use when backing vehicles out of the service bay area.

Jijon also testified that he did not receive a safety manual and that he did not receive any training with regard to backing out of the service bay area. Jijon testified that he was told to "look out" and "be careful" and that he thought that these instructions were sufficient because it was common sense to check behind a vehicle before backing out. On the date of the accident, Jijon did not walk behind the van before he backed out of the service bay area, nor did he give a warning before he backed out. Jijon admitted that he did not look in the mirror nor does he remember if he turned and looked over his shoulder to check for clearance before backing out. Jijon testified that he "glanced towards the driveway" behind the van before initially backing up, stopped when the front of the van was even with the doorway to allow traffic to clear, and continued to back up. The van only went a short distance before stopping abruptly after hitting Kresin, who landed underneath the van with her head near the right rear tire. Kresin has no memory of the accident and could not testify as to what happened.

Kresin suffered severe injuries as a result of the accident, including facial, rib, leg and collarbone fractures, and a skull fracture which caused permanent blindness. She underwent multiple surgical procedures and has a permanent shunt underneath her skin from her head to her abdominal cavity to drain excess fluid.

Kresin is also wheelchair bound and can no longer stand or walk unaided. She is incontinent and cannot shower, bath or use the bathroom without assistance. Furthermore, she is only able to make minimal movements with her left leg and suffers from a flexion contracture in her left arm and hand. This condition leaves her unable to straighten her left elbow and causes her left hand to be bent over with the fingers clinched back in a clawed or fist position.

Kresin remained in the hospital for approximately two months after the accident. During her hospital stay, she developed several infections, including hydrocephalus and meningitis. Kresin also suffered a stroke, which caused paralysis in her left leg and partial weakness in her leg and arm.

Kresin was then transferred to a nursing home facility where she resided for approximately nine months and received speech, occupational and physical therapy. She left the nursing home in ...

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