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Phillips v. Gannontti

January 16, 2002

SUZANNE PHILLIPS, PLAINTIFF-APPELLEE,
v.
PHYLLIS GANNOTTI, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Cerda

UNPUBLISHED

Appeal from the Circuit Court of Cook County Honorable John E. Morrissey, Judge Presiding.

Defendant, Phyllis Gannotti, appeals after a jury verdict finding her negligent in causing an automobile collision on March 20, 1996, in which plaintiff, Suzanne Phillips, was injured. Defendant argues that the trial court improperly barred her from questioning an eyewitness about his opinion concerning plaintiff's speed. Defendant also argues that the trial court erred in directing a verdict in favor of plaintiff on the issue of contributory negligence. Plaintiff questions this court's jurisdiction over most of the issues on appeal; she maintains that defendant's posttrial motion was not timely filed. We find that we have jurisdiction, and we reverse and remand for a new trial.

BACKGROUND

Plaintiff's complaint alleged that defendant was negligent in colliding with plaintiff's vehicle at an intersection. Defendant asserted plaintiff's contributory negligence as an affirmative defense.

Plaintiff's answers to interrogatories pursuant to Supreme Court Rule 213(g) (177 Ill. 2d R. 213(g)) stated that witness Charles Parcell would testify that in his opinion plaintiff was traveling at the speed limit at the time of the collision.

Before the start of testimony, one of defendant's attorneys stated that the other defense counsel had spoken to Parcell, who had been subpoenaed by plaintiff. (Plaintiff asserts that the witness was also subpoenaed by defendant, but Parcell's trial subpoenas are not in the record.) Defense counsel reported that Parcell was going to testify that plaintiff had been speeding, which was contrary to plaintiff's answers to interrogatories.

Defense counsel claimed that this opinion was new to him because Parcell had refused to talk on the telephone prior to trial. Defendant asked for the opportunity to cross-examine Parcell about his opinion of plaintiff's speed, and defendant filed a supplemental answer to her opinion interrogatories.

The supplemental interrogatory stated Parcell would testify that the speed of plaintiff's vehicle immediately prior to impact was 45 to 50 miles per hour (when the speed limit was 40 miles per hour). After plaintiff represented that she was not going to call Parcell as a witness, defendant asked that the witness be allowed to testify as his witness and would give his new opinion.

The court did not address the Parcell issue until later, after testimony had begun. It ruled that Parcell could testify as an occurrence witness but barred Parcell's opinion about plaintiff's speed. Parcell testified in an offer of proof that immediately before the collision he observed plaintiff's car speeding 5 or 10 miles per hour over the speed limit.

Defendant testified that on the day of the accident she was lost and ended up at the intersection of United Lane and Devon Avenue. United Lane was a north-south street, and Devon was an east-west, four-lane highway. The speed limit on Devon was 40 miles per hour. United Lane had a stop sign where it intersected with Devon. Devon did not have any stop signs or stop lights at United Lane.

Defendant further testified that she was going to make a right-hand turn onto Devon. She stopped her front bumper even with the stop sign. After she stopped, she had to move up a little bit. She did not get very far into the intersection when her car collided with plaintiff's car. The impact happened just after she let her foot off the brake. She was going a lot less than 20 miles an hour. According to defendant, plaintiff was going with the flow of traffic; plaintiff was going pretty fast.

Plaintiff testified that her vehicle was in the right-hand lane of Devon. She did not know exactly what speed she was traveling; she was going somewhere near 40 miles per hour. She was 5 or 10 feet away from the intersection when she first saw defendant's car. When she saw defendant, defendant had passed the stop sign. Two or three seconds elapsed between the time she first saw defendant and the time of the collision.

Plaintiff further testified that, when she first saw defendant, she took her foot off the accelerator. When she realized defendant was not going to stop, she hit the brakes and turned the steering wheel to the left. There was no one in oncoming traffic so she headed in that direction. Probably fewer than two seconds passed from the time that she realized that defendant was not going to stop until the time she hit the brakes and spun the wheel to the left. She did not have the opportunity to hit the brakes and stop the car before defendant crossed into Devon.

Plaintiff further testified that the front end of defendant's car hit her passenger door. The impact was extremely strong. Her car lifted up on two wheels and flipped about four times, landing upside down on the north side of Devon.

Charles Parcell testified that he was waiting on United Lane to make a right turn on Devon. He observed defendant's car to his left in the inside lane. He was two car lengths from the intersection. A truck made a right turn on United Lane from Devon. Defendant's car was easing out of United Lane in front of the truck. Plaintiff's car was traveling in the lane next to the truck.

Parcell further testified that the impact occurred within a split second. The impact occurred just in front of the truck, just as it was turning in. Prior to impact, he did not hear the screeching of tires or a horn sounding. Plaintiff's vehicle landed about 200 feet from the point of impact. He saw no skid marks before the point of impact.

Plaintiff presented testimony that she suffered severe headaches caused by the accident. Defendant disputed that the accident caused plaintiff's headaches.

At the close of the evidence, the trial court directed a verdict on plaintiff's contributory negligence in plaintiff's favor, finding that the evidence was unrebutted that plaintiff was driving within the speed limit.

On May 2, 2000, the jury returned a verdict in favor of plaintiff awarding $400,000 in damages. An order dated May 2, 2000, ...


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