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Seldin v. Babendir

October 12, 2001


The opinion of the court was delivered by: Justice Reid


Appeal From The Circuit Court Of Cook County Honorable Leonard L. Levin Judge Presiding

Roberta and Harold Seldin (Roberta, Harold, and collectively as the Seldins) sued Donald Babendir (Donald) to recover damages they suffered in an automobile accident while they were passengers in a car driven by him. Following a jury trial, the jury returned a verdict in Donald's favor and against the Seldins. We affirm for the following reasons.


On the evening of June 5, 1994, Donald was driving his 1993 Toyota Camry northbound on the Edens Expressway. With him in the car were his wife, Carol, and his friends the Seldins. The Seldins were in the backseat while the Babendirs were in the front. They were traveling north on the Edens Expressway. At the time of the accident, the car was in the center lane, surrounded on the right by a traffic lane and the shoulder and on the left by a traffic lane, a shoulder and a concrete median separating northbound from southbound traffic. The evening was clear and the roadway was dry and in good condition. The car was traveling at approximately 55 miles per hour. Donald testified he had both hands on the steering wheel and, even though there was conversation in the car, he was not distracted in any way prior to the accident.

At the time of the accident, Donald's view of the road was not obstructed. His lane was empty, other than his car, as was the lane to his left. There were no cars behind Donald, but there were cars in the right lane approximately four car lengths ahead of his car. As Donald's car was slowly overtaking the slower moving car in front of it in the right lane, that car abruptly merged into Donald's lane without a signal to indicate that movement was imminent. At the time of the merge, when the other car was approximately six feet in front of Donald's car, Donald was surprised, making a sharp left turn and slamming on his brakes. Donald testified he felt he would have struck the other vehicle had he remained in the center lane. Donald, now moving almost perpendicular to the flow of traffic, passed through the left lane and struck the cement wall. Donald also testified that he felt he would not have avoided a collision with the other car simply by applying his brakes, slowing down his vehicle.

Donald's car was totaled. Harold's injuries required surgery, resulting in $49,286.38 in medical expenses which he claims caused his practice as an optometrist to suffer. Roberta's hand was injured, resulting in six weeks in a cast and $1,956.75 in medical expenses. Dr. Jay Levin, a consulting doctor hired at the request of Babendir's counsel, gave his prognosis that Harold's shoulder now had limited motion and the shoulder should remain static. He also concluded that there should be no limitation on either daily activity or professional work.

The Seldins filed their complaint in the circuit court of Cook County on March 7, 1995. The complaint alleged that Donald negligently operated his vehicle by failing to keep it under control. Donald filed his answer to the complaint on May 18, 1995. The answer denied the allegations of negligence and asserted the affirmative defense that the actions of the other driver were the sole proximate cause of the Seldins' injuries.

Trial commenced on July 1, 1999. During voir dire, counsel for the Seldins asked potential jurors whether they had any friends or relatives that are lawyers, claims investigators, insurance adjusters or had any connection to the insurance industry. Donald's lawyer objected to this line of questioning . The trial court barred further questioning along those lines and promised to give an instruction that whether a party was insured had no bearing on the case at bar. The proposed instruction was objected to, so it was never given. The Seldins argue that the information sought was necessary so they could effectively use their juror challenges. Donald responds that the questions were properly restricted because anything that informs the jurors that the parties have insurance is inadmissible on relevancy grounds.

During the trial, part of Harold's deposition was introduced during his cross-examination. That part read as follows:

"The accident occurred as we were driving north on the Edens expressway and we had just passed Peterson. We were driving in the middle lane. There were two cars on the right and the second car on the right moved into the middle lane and that caused the accident."

Counsel for the Seldins tried to get more of the quote read to the jury on redirect examination. The trial court denied that request, ruling that Harold had already testified to the information contained in the testimony sought to be read. In the disputed portion, Harold expressed his opinion as to the cause of the accident. He testified:

"It precipitated a movement by the car we were driving in which eventually led to this car that we were driving in hitting the center wall on the Edens expressway."

The trial court refused to allow that portion read to the jury and ordered it stricken when counsel for the Seldins referred to it in closing argument. The trial court specifically found that "he's already testified to that."

Both sides presented motions for directed verdict which were denied. The jury then rendered a general verdict for Donald and against the Seldins from which this appeal followed. The Seldins argue on appeal that Donald simply panicked and lost control of his vehicle, overreacting to the events. They seek either an outright reversal of the decision of the trial court or, in the alternative, a new trial.

Donald argues that he was in control of his vehicle and breached no duty to the Seldins. He claims he was properly operating his vehicle when he was cut off by the other car. He claims he adequately explained the cause of why his vehicle was forced out of the center lane, that being the negligence of the other car, which abruptly switched lanes without any signals.


A directed verdict is a complete removal of an issue from the province of the jury. Mohn v. Posegate, 184 Ill. 2d 540 (1998). A trial court should enter a directed verdict only where "`all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.'" Stiff v. Eastern Illinois Area of Special Education, 279 Ill. App. 3d 1076, 1081-82 (1996), quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). "`The direction of a verdict does not require a complete absence of evidence of the side against which the verdict is directed, for the right to resolution of issues by the jury exists only if there are factual disputes of some substance.'" Green v. Jackson, 289 Ill. App. 3d 1001, 1009 (1997), quoting Poelker v. Warrensburg-Latham Community Unit School District No. 11, 251 Ill. App. 3d 270, 276 (1993). In denying the motions for directed verdict and allowing the matter to proceed to the jury, the trial court sub silencio found the case sufficiently closely balanced so as to preclude resolution without the jury. We can find no basis for upsetting the denial of those motions.

The jury found that the cause of the Seldins' injuries was the driver of the other car, and not Donald. We agree. "To determine whether a duty exists in a certain instance, a court considers the following factors: (1) the reasonable foreseeability of injury, (2) the likelihood of injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden upon the defendant." Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 303 (2000), citing Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 437-38 (1990). "Lastly, the existence of a duty turns in large part on public policy considerations." Jones, 191 Ill. 2d at 303-04, citing Ward v. Kmart Corp., 136 Ill. 2d 132, 151 (1990). "A driver approaching another vehicle from the rear has a duty to maintain a safe lookout and must take into account the prospect of having to stop his vehicle suddenly." Robinson v. Chicago Transit Authority, 69 Ill. App. 3d 1003, 1008 (1979). "This duty clearly extends to drivers riding in adjacent lanes." Robinson, 69 Ill. App. 3d at 1008. "Whether [a driver] was negligent in [the] execution of [his or her driving duties] was a question of fact to be determined by the jury and, as a reviewing court, we will not disturb that determination unless it is contrary to the manifest weight of the evidence." Robinson, 69 Ill. App. 3d at 1008, citing Tipsword v. Melrose, 13 Ill. App. 3d 1009 (1973). Here it was entirely foreseeable that a car in an adjacent lane would suddenly switch lanes. Courts have historically held that drivers on the roadways of Illinois are supposed to drive defensively, ever vigilant to those foreseeable possibilities.

The question of proximate cause is ordinarily a question for the jury. Felty v. New Berlin Transit, Inc., 71 Ill. 2d 126, 130 (1978). "[I]t is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses' testimony." Maple v. Gustafson, 151 Ill. 2d 445, 452 (1992). "A trial court cannot reweigh the evidence and set aside a verdict merely because the jury could have drawn different inferences or conclusions, or because the court feels that other results are more reasonable." Maple, 151 Ill. 2d at 452, citing Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35, 88 L. Ed. 520, 525, 64 S. Ct. 409, 412 (1944). "Likewise, the appellate court should not usurp the function of the jury and substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence which did not greatly preponderate either way." Maple, 151 Ill. 2d at 452-53, citing Brendel v. ...

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