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Jones v. Bojorge

Court of Appeals of Illinois, First District, Fourth Division

June 20, 2013

ROBERT JONES, Plaintiff-Appellee,
BIBIANA BOJORGE, a/k/a/ Claudia Bibiana Bojorge, a/k/a Claudia Cotero, a/k/a Vivian Bojorge, PIZZA HUT, PIZZA HUT OF AMERICA, INC., AND PIZZA HUT, Defendants-Appellants.

Held [*]

Appeal from the Circuit Court of Cook County, No. 10-L-10349; the Hon. Allen Goldberg, Judge, presiding.

Andrew K. Miller and Jennifer A. Kunze, both of Miller Law Group, LLC, of Hinsdale, for appellants.

Thomas M. Lake, of Dudley & Lake LLC, and Mark J. Vogg, of Law Offices of Mark J. Vogg, both of Libertyville, for appellee.

Panel LAVIN, PRESIDING JUSTICE delivered the judgment of the court, with opinion, Justices Epstein and Pucinski concurred in the judgment and opinion.



¶ 1 This personal injury appeal supplies a useful vehicle to explicate the proper use of out-of-court statements of a party. Plaintiff Robert Jones, a delivery truck driver working at a Pizza Hut location, claimed that defendant Bibiana Bojorge (defendant), a pizza delivery driver, struck him with her car as he was moving boxes of dough on his dolly, injuring his knee. At trial, defendant alleged it was plaintiff who ran into her car with his dolly, causing only a scratch on his body and on her car. Plaintiff offered defendant's written statement in which she admitted that she "hit the delivery guy" while leaving the parking lot. Defendant, meanwhile, persistently sought to portray plaintiff as an inveterate liar who repeatedly misled his physicians. Plaintiff's evidence included a prior consistent statement in which he told his wife he had been hit by "the delivery lady." After a brief trial, the jury returned a net verdict (after a 5% reduction) for $489, 364.05. Defendant appeals on the lone issue that the trial judge erroneously allowed the admission of the prior consistent statement. We affirm.


¶ 3 On September 28, 2008, both plaintiff and defendant were engaged in their jobs at a Pizza Hut restaurant in South Elgin, Illinois. Plaintiff was employed by a food services company which regularly provided food supplies to the restaurant. Defendant was employed by Pizza Hut as a delivery driver. She was familiar with plaintiff and his delivery activities at the restaurant, having seen him there on many occasions during her employment. To sum it up, plaintiff testified that his 18-wheeler truck was parked at the restaurant's ramp and he was in the process of moving boxes of pizza dough when he was struck by defendant's vehicle and knocked to the ground. His next memory is of defendant standing over him and apologizing for hitting him.

¶ 4 Defendant told the jury that she was familiar with plaintiff and said he routinely went about his job in a hurried fashion, overloading his dolly to the point that his vision would necessarily be obscured. She testified that it was plaintiff who crashed his dolly into her car, which then was jammed against her car's driver's door and which caused a number of boxes to fall on her vehicle. She testified that plaintiff showed her a little scratch on his leg that was the product of the collision. Her vehicle wound up with a scratch and a damaged rearview mirror. She then went to make a delivery, and when she returned some 30 minutes later, plaintiff was still delivering product at the restaurant.

¶ 5 At trial, the defense focused resolutely on plaintiff's credibility, utilizing various inconsistent statements plaintiff made to two medical doctors who were treating him for orthopedic problems both related and unrelated to this incident, but defense counsel also sought to prove that plaintiff was lying about the accident itself. Defense counsel dubbed his tactics a "full scale assault on plaintiff's credibility" in a brief before this court. Based on our review of the record, this assessment is in no way hyperbolic. Counsel addressed the subject of credibility in the first sentence of his opening statement. Seconds later, he told the jury plaintiff "lied" to his doctor and referred to plaintiff's shortcomings with the truth in 18 of the first 19 sentences in his opening statement. As the reader will see from the following recitation of testimony, this theme was chosen even though the defense on liability posited that defendant never hit the driver, even though she had written a statement that plainly acknowledged that she had. Any objective observer would thus conclude that both sides had credibility issues to deal with when attempting to persuade this jury.

¶ 6 Plaintiff's case in chief began with a very brief adverse examination of the defendant driver, with the central purpose of admitting her aforementioned handwritten statement. Defendant admitted that there was a collision between her vehicle and the dolly being wielded by plaintiff. She also admitted that she wrote a statement about the incident. In that statement, she wrote (in her own hand) that the accident occurred as she was "driving out of the parking lot to take an order." She also admitted writing that in the course of her driving, she "hit the delivery guy." On examination by her counsel, defendant briefly alluded to her belief that plaintiff "tricked" her into writing the statement.

¶ 7 The next witness to testify was Stephanie Jones, plaintiff's wife (Stephanie). She testified to her husband's physical activities before and after this work injury, noting that he only had normal aches and pains before this incident, but that his normal orthopedic health deteriorated after the accident and the resulting treatment. In the course of her direct examination, the single issue of this appeal occurred when she was asked if she spoke to her husband on the date of the incident. Defendant's hearsay objection was overruled and Stephanie testified that her husband called her on the telephone and said the "delivery lady hit him." He then clarified that the driver actually hit his knee as he was outside his truck. He also told his wife that he needed her to meet him at his employer's facility, because he was not able to drive his motorcycle home. After she met him, they went directly to a hospital for evaluation. She also testified that, on the date of the incident, her husband gave her a copy of defendant's handwritten statement, which she put in her purse.

ΒΆ 8 She went on to testify about her husband's complaints of knee pain that preceded his surgery on January 30, 2009, telling the jury that he had told her of severe pain which interfered with his ability to drive his truck. Finally, she related ...

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