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Winters v. Kline

December 02, 2003

JOHN F. WINTERS, JR., AS ADMINISTRATOR OF THE ESTATE OF JOHN F. WINTERS, SR., DECEASED, AND ANGELINE WINTERS, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
JACKIE L. KLINE, INDIVIDUALLY, AND AS AGENT OF WINEGARD COMPANY, AND WINEGARD COMPANY, A CORPORATION, DEFENDANTS-APPELLEES.



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

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

UNPUBLISHED

Plaintiffs sought damages for injuries resulting in the death of John F. Winters, Sr., when he became pinned between a tollbooth and a truck driven by defendant Jackie L. Kline. The jury returned a verdict for the plaintiffs, but found plaintiffs' decedent 50% negligent in contributing to his injuries. The jury awarded $788,666.66, reduced by 50% to $394,333.33, for loss of financial support, benefits, goods, and services to the widow. The jury awarded zero dollars for the other itemized damages listed on the verdict form.

Plaintiffs filed a motion for a new trial on the issue of damages only, contending the jury's verdict was inconsistent because it ignored proven elements of damages. The trial court granted the motion. Defendants filed an emergency motion to reconsider, contending a new trial for "damages only" was not appropriate in this case, where there was evidence of a compromise verdict by the jury. The court eventually granted defendants' motion and ordered a new trial on all issues, including liability.

Plaintiffs appeal, asking us to vacate the trial court's order granting a new trial on all issues and reinstate its prior order for a new trial on damages only. We affirm the trial court.

FACTS

On April 3, 1997, defendant was driving his tractor-trailer truck for his employer, Winegard Company. Defendant had been driving tractor-trailer trucks for 40 years, averaging about 100,000 miles per year. His wife, Sidney Kline, was riding in the passenger seat. At approximately 2:30 p.m., defendant was driving north on I-294, when he pulled into the tollway plaza at 163rd Street. He saw no pedestrians outside of the toll booths. Plaintiffs' decedent was working in a tollbooth in the toll lane next to defendant's truck.

After defendant paid the toll, he slowly began to move forward out of the toll area. He did not check his mirrors prior to starting. In his experience, defendant had seen toll workers walk in front of vehicles that were stopped to pay tolls but had never seen people walking in the area of the toll booths. After defendant had pulled the truck forward a few feet, Sidney yelled, "stop" and said someone was pinned between the toll booth and the trailer. Defendant looked in the passenger side mirrors and saw decedent pinned on the side of the truck.

Sidney testified that her window was open. When they pulled into the toll booth, she saw a dollar bill blow out of the toll booth on their right. She heard decedent say to the person in the car, "don't worry. I'll get it." She then saw decedent exit the tollbooth through the door on the north side of the booth and approach defendant's trailer. She lost sight of decedent and wondered if there was enough room for a person to get between the truck and the toll booth. As defendant was pulling the truck out, Sidney looked in the rearview mirror and saw that decedent was pinned, shoulder to shoulder, between the booth and the trailer.

Several toll workers testified they attempted to move decedent but could not because he was pinned so tightly. Finally, a worker kicked in the window to the tollbooth, and they released decedent's body and put him on the ground. Decedent regained consciousness and tried to get up. He had blood trickling from his nose and clear fluid from his mouth and appeared to be in pain. The paramedics took him to the hospital, and he died a week later.

Two tollway workers, Mark Slavis, a line walker, and Diana Porro, an assistant supervisor, testified to the tollway's rules and procedures. The "safety stripes" or "crosswalk stripes" run across the lanes in front of cars when they are stopped to pay a toll. The proper procedure for crossing a lane is first to make eye contact with the driver of the car, then cross inside the safety stripes. When "spillage" of money takes place in a toll lane, the procedure is to inform the supervisor, change the overhead light from green to red, secure the barrier gate, then pick up the money. The tollway employees said this rule applies to spillage in a lane, not on the island. Both workers saw decedent on the island, not in the toll lane. They did not know the location of the dollar bill decedent allegedly was retrieving. Porro also testified an appropriate procedure for spillage is to fill out an Unusual Occurrence Report to the tollway authority; a toll worker would not be penalized for loss of money by filling out a report.

The parties presented conflicting expert opinion testimony on whether defendant breached the standard of care. Arthur Atkinson, the president of a commercial motor fleet safety consulting firm, testified for plaintiffs. He said the term "standard in the industry" means what the majority of the people in the industry is doing. The federal safety regulations require a driver to have the capability to make a visual search and understand the techniques and methods to do so. The techniques and methods are established by the industry. Before a driver moves a vehicle, he should make a visual scan from the left mirror to the right mirror, taking from 4 to 12 seconds. According to the handbook of the Professional Truck Driver Institute of America, drivers should exercise a greater due diligence when in and around toll booths because of the possibility someone may exit his or her vehicle.

After reviewing several depositions, Atkinson said he believed defendant fell below the standard of care demanded by the transportation industry when he failed to look and use his mirrors before he pulled out from the toll booth area. Because the environment was changing, he had to look in his mirrors to make sure there was nothing different around him between the time he pulled in and before he pulled out.

Defense expert Jon Cook testified he is a safety consultant for Motor Carrier Safety Consulting Incorporated (MCSC). He said defendant had the necessary experience and skills to operate the tractor-trailer. In Cook's opinion, defendant's approach to the tollbooth was in compliance with what a reasonable trucker would do under like conditions. He paid his toll and started looking ahead to where potential danger would be. Based on his review of the Federal Motor Carrier Regulations, Cook believed defendant did not violate any of the regulations with regard to his conduct in and around the tollbooth. As he was leaving the area, he scanned the area, checking to see if there were any potential hazards ahead of him. Cook concluded defendant acted as a reasonable driver would under the same or like circumstances.

Further evidence was presented as to the extent of decedent's injuries, his pain and suffering, medical expenses, funeral expenses, and the loss of his society and income to his widow and four adult children. The jury was instructed on the presumption of substantial pecuniary loss to the widow and children. See Illinois Pattern Jury Instructions, Civil, No. 31.04 (3d ed. 1995) (hereinafter IPI Civil 3d).

On September 9, 2002, the jury entered a verdict for plaintiffs, but found decedent was 50% contributorily negligent. The defendants proffered a special interrogatory, which was submitted to the jury with the jury instructions. The special interrogatory asked whether the jury found decedent's conduct was greater than 50% of the proximate cause of his injuries and damages. The jury ...


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