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Fortae v. Holland

July 18, 2002

JIM L. FORTAE, PLAINTIFF-APPELLEE,
v.
JAMES W. HOLLAND AND JOHN STOREY AND ROSE STOREY, D/B/A STOREYLAND MOBILE HOME PARK, DEFENDANTS-APPELLANTS, AND DELBERT AKERS AND CAROUSEL BUILDING COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County. No. 97-L-1063 Honorable Nicholas G. Byron, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

UNPUBLISHED

James W. Holland and John Storey and Rose Storey, doing business as Storeyland Mobile Home Park (Storeyland) (collectively defendants), appeal from a judgment of the circuit court of Madison County awarding damages to Jim L. Fortae (plaintiff) for personal injuries. On appeal, defendants raise numerous issues. This court affirms.

I. FACTS

Delbert Akers was driving a semitruck that was hauling part of a manufactured home. Acting as lead vehicle was a pickup truck driven by defendant Holland. The truck driven by Akers collided with the rear end of the vehicle driven by Holland, forcing Holland's vehicle into a lane of oncoming traffic. The Holland vehicle then collided with a vehicle in which plaintiff was a passenger.

Plaintiff filed suit, originally naming Holland, John Storey and Rose Storey, doing business as Storeyland Mobile Home Park, Akers, and Carousel Building Company (Carousel) as defendants. Subsequent to the trial court's finding of a good-faith settlement, Akers and Carousel were released. Plaintiff amended his complaint to allege in-concert liability against Holland and Storeyland. The court denied cross-motions for summary judgment on the claims of in-concert liability, and the case proceeded to a jury trial.

At the trial, both Holland and Akers described how the accident occurred. Holland testified that while he was driving southbound on Route 111, he noticed a couple of vehicles two to three blocks ahead of him slowing down. Holland had been driving approximately 55 miles per hour and began slowing down. At this time, according to Holland, Akers was approximately a half mile behind him. As Holland approached the location he had seen the brake lights, he saw a dog enter the roadway. At that point, the speed limit was 55 miles per hour, and Holland was traveling approximately 20 to 25 miles per hour. Holland testified that he had been applying his brakes up until this time and that he did not apply them harder upon seeing the dog enter the road. Holland testified that, due to a temporary loss of consciousness he suffered from the accident, the last thing he remembers is looking in his rearview mirror and seeing the Akers vehicle immediately behind him striking the rear of his vehicle. Holland was confronted with his deposition testimony that from the time he first saw the other vehicles until the time of the accident three to five minutes had passed, but he stated at the trial that it could have taken less time.

Holland testified that his responsibilities as a lead vehicle included maintaining a distance of between a quarter mile and a half mile away from the transport vehicle when the traffic allowed and notifying the transport vehicle of dangers when possible, via CB radio. Holland testified that he had his hand on the CB radio at the time of the accident but had been unable to use it to contact Akers.

Akers testified that both vehicles had come to a stop at a stop sign prior to the accident and were gaining speed. Akers had reached the speed of 45 miles per hour, and Holland had reached the speed of 55 miles per hour, bringing the distance between the two vehicles to 250 feet. Akers stated that he was not trying to increase the distance between the two vehicles at that time because he was trying to build up speed with the trailer. Akers testified that he then observed Holland slow down and come to a stop but that he was unable to avoid a collision. Akers pled guilty to a citation for the failure to reduce speed to avoid an accident.

Akers testified he believed that the load for his vehicle was too heavy and was unsafe. Akers testified that when making a transport, drivers should keep a distance of a quarter mile to a half mile between them and should stay in constant CB alert in order to give the driver of the transport additional time to brake. Both Akers and Holland testified that, as far as they knew, the radios were working at the time of the accident.

Akers testified that in another incident earlier on the day of the accident, Holland had made an abrupt stop near a Blockbuster Video store. Akers stated that when this occurred, he yelled at Holland on the radio and told him that he should not make such stops because the transport was a heavy load. Akers testified that Holland did not respond. Holland testified that he had not heard Akers make any prior comments about sudden stopping.

The court denied defendants' motions for a directed verdict, made at the end of plaintiff's case and at the close of the evidence. The jury returned a verdict awarding damages to plaintiff. Defendants appeal.

II. ANALYSIS

[Nonpublishable text under Supreme Court Rule 23 (166 Ill. 2d R. 23) omitted here.]

In-Concert Liability

Defendants contend that the jury instructions misstated the law regarding "in concert" liability. We note initially that the issues regarding jury instructions were waived by defendants. Defendants failed to tender opposing instructions on the issues of the applicable burden of proof and the definition of in-concert liability. Defendants waived the issues stemming from these instructions, including their arguments regarding clear and convincing evidence, by failing to submit the instructions to the trial court. Vojas v. K-Mart Corp., 312 Ill. App. 3d 544, 549, 727 N.E.2d 397, 401 (2000); Aguinaga v. City of Chicago, 243 Ill. App. 3d 552, 575, 611 N.E.2d 1296, ...


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