Appeal from the Circuit Court of the 21st Judicial Circuit Kankakee County, Illinois No. 98-L-121 Honorable Fred S. Carr, Jr., Judge Presiding
The opinion of the court was delivered by: Justice Slater
The plaintiff, Laurie Lewis, as Administrator of the Estate of her deceased husband, Wilford Lewis, brought this wrongful death action against the defendant, Thomas Haavig, III. The jury returned a verdict for the plaintiff in the sum of $1,192,753 which was reduced by 40% for the decedent's comparative negligence resulting in a judgment of $715,651. The defendant filed a post-trial motion seeking a new trial which the trial court granted. We granted plaintiff's petition for leave to appeal pursuant to Illinois Supreme Court Rule 306 (166 Ill. 2d R. 306). We reverse the trial court's order and reinstate the $715,651 judgment.
The record reflects that on November 20, 1997, at around 1:00 a.m., Sergeant Wilford Lewis, a Village of Bradley police officer, responded to a report of an automobile accident involving a single vehicle on Interstate 57 near exit 315. The Bradley police department became involved because the Illinois State Police were unavailable to respond at the time due to deployment in other areas.
Bourbonnais police officer Myron Devine arrived at the Interstate 57 scene first. A southbound van had crossed the median and the northbound lanes finally coming to a stop on the exit ramp. Devine saw three injured men walking away from the van. Devine placed his vehicle near the off ramp at exit 315 and activated his emergency lights.
Shortly thereafter, officers Lewis and Jensen arrived. They both parked their squad cars immediately to the south of Devine's vehicle and activated their emergency lights. Several ambulances responded to the call as well.
Upon their arrival, Lewis and Jensen discovered that the occupants of the vehicle were confused and unable to respond to questioning. Lewis and Jensen searched the van and noticed an infant seat adjacent to an area where a window had been broken. Lewis and Jensen were concerned that a child who had occupied the infant seat may have been ejected from the van. After they backed their squad cars up to assure that the ambulances could approach the van, Lewis and Jensen started to retrace the path of the van along the northbound lanes of Interstate 57.
As Jensen exited his squad car, he saw a vehicle being driven by the defendant pass him traveling at about eighty miles per hour. Jensen saw the defendant's vehicle strike Sergeant Lewis from behind as Lewis was walking northbound in the passing lane. Lewis had been attempting to retrace the van's path in order to locate what he suspected was an ejected infant.
The defendant testified that on November 20, 1997, he was traveling from Champaign to the Chicago area after having attended a concert. He had been driving on Interstate 57 at seventy-five miles per hour during most of his trip from Champaign. He also traveled most of the distance in the left lane. The defendant said that as he approached the area of the emergency vehicles, he took his foot off the accelerator and slowed down. When he determined that the emergency vehicles were not involved in a traffic stop but in an accident scene, he returned his attention to the roadway, placed his foot back on the accelerator and almost immediately struck and killed Sergeant Lewis.
Bradley police officer James Jeck testified that he did not arrive at the location where the van had crashed until after Sergeant Lewis had been killed. He had gotten stuck in the median while trying to cross over from the northbound lanes to the southbound lanes. While Jeck waited for a tow truck to remove his vehicle from the median, he listened to the other officers at the scene on his police radio. After the tow truck removed his squad car from the median, Jeck arrived at the scene. He noted that Sergeant Lewis had been wearing dark blue pants, a dark blue long sleeve shirt, a dark blue jacket and black boots. None of Lewis' clothing had reflective material on it.
Jeck explained that if an officer plans to inspect the roadway, another officer should be present to slow oncoming traffic or to alert the inspecting officer of approaching traffic. Jeck also noted that Bradley police department policies and procedures dictate that an officer must not put himself in harm's way when searching for potential accident victims. Bradley police officers do not need permission to shut down an interstate.
Tyrone Kanzaki, a master sergeant with the Illinois State Police, testified that he spoke to the defendant immediately after the collision. The defendant told Kanzaki that when he initially saw all the emergency lights, he slowed down. The lights were coming from the shoulder of the right lane, so the defendant moved over to the left-hand lane of traffic. He continued to drive northbound when he saw a flash of metal and heard a loud thud. Kanzaki said that the defendant had acted appropriately when he slowed down and moved from the right lane to the left to avoid a "chaotic" scene.
Before trial, plaintiff brought a motion in limine to prohibit the introduction of any evidence regarding Sergeant Lewis' previous hearing loss and use of a hearing aid at the time he was struck by the defendant's vehicle. The plaintiff argued that any evidence of Lewis' hearing loss was irrelevant because an evaluation conducted ten years before the accident had determined that his hearing loss did not impact his abilities as a police officer. The defendant argued that Lewis' hearing loss was highly relevant because a jury could reasonably infer that Lewis may not have heard the defendant's oncoming vehicle and should have exercised greater care for his own safety in light of his hearing impairment. The trial court granted the plaintiff's motion in limine.
During a jury instruction conference, the defendant tendered instruction number four. I.P.I 70.03; 625 ILCS 5/11-1003(a) (West 1997). The instruction read, in pertinent part:
"There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that: Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the ...