Bizarro v. Ziegler

627 N.E.2d 122, 254 Ill. App. 3d 626
CourtAppellate Court of Illinois
DecidedSeptember 24, 1993
DocketNos. 1—91—2849, 1—91—2955 cons.
StatusPublished
Cited by6 cases

This text of 627 N.E.2d 122 (Bizarro v. Ziegler) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bizarro v. Ziegler, 627 N.E.2d 122, 254 Ill. App. 3d 626 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE GORDON

delivered the opinion of the court:

Plaintiff, as administrator of the decedent’s estate, brought a wrongful death action after defendants’ truck struck and killed decedent as she was standing on a highway next to a disabled car. The jury returned a verdict for plaintiff, but reduced the award by 25%, finding contributory negligence on the part of decedent. Plaintiff filed a post-trial motion for a judgment notwithstanding the jury’s finding of contributory negligence. The trial court granted the motion and reinstated the full award. After the trial judge granted plaintiff’s motion, defendant H & F Trucking sought leave to file a post-trial motion which the trial court denied as untimely with respect to all issues other than decedent’s contributory negligence. On appeal, defendants argue that the trial court erred in ruling as a matter of law that decedent was not guilty of contributory negligence and in denying them leave to file a post-trial motion on all issues after the judgment notwithstanding the jury’s finding had been entered. For the reasons stated below, we affirm in part and reverse in part.

Facts

The relevant facts underlying this wrongful death action which were adduced at trial are as follows. On the evening of June 25, 1984, Bertha Bizarro (decedent) was riding as a passenger in a car which was travelling eastbound on Interstate 90 at approximately 1 a.m. The weather was clear and the visibility excellent. For undetermined reasons, the wheel of the car came off and the car spun around. It came to rest facing west at an angle, with the front portion of the car in the left of the two eastbound lanes of traffic.

David Johnson was also travelling eastbound on Interstate 90. When he saw the disabled vehicle, he veered to the right, braked abruptly and then pulled over to the right side of the road about three or four car lengths past the disabled vehicle. Johnson said that he saw two vehicles ahead of his pass the disabled vehicle without incident, one on its right and one to its left.

After pulling over onto the right shoulder, Johnson backed up his car and put on his flashers. As he backed up, he saw the headlights of an oncoming truck approaching. He was beginning to exit his car when he saw the truck strike the right front of the disabled car. At no time prior to impact did Johnson see anyone in the disabled car or on the roadway. After the impact, Johnson went over to the disabled car and helped its driver, who was exiting the car at that time. The driver suffered an injury to her kneecap and facial cuts as a result of the collision. She was treated for these injuries at a hospital and released that same night.

The truck which struck the decedent was driven by Danny Ziegler. Ziegler stated that immediately before he struck the disabled car he saw the decedent standing about three or four feet from the passenger door of the car. Decedent’s body was subsequently found on the grass median separating the east and westbound lanes of traffic approximately 86 feet from the point of impact. From these facts, the officer investigating the accident agreed that decedent was standing outside the car at the time of impact.

Ziegler’s truck, which weighed 78,000 pounds, left skid marks which began 479 to 484 feet before the point of impact with the disabled vehicle and extended past the point of impact. These skid marks indicated that the truck was travelling between 73 and 83 miles an hour before the brakes were applied. It would take a truck approximately nine seconds to skid 500 feet.

At the close of evidence, plaintiff moved for a directed finding on the issue of the decedent’s contributory negligence which the trial court denied. On May 17, 1991, the jury returned a verdict in favor of plaintiff in the amount of $715,000, but reduced the award by 25% finding that decedent was guilty of contributory negligence. On that day, the trial judge said that he would enter judgment on that verdict and the judgment was subsequently recorded in the law record book.

On June 14, 1991, plaintiff filed a post-trial motion for a judgment notwithstanding the jury’s finding of contributory negligence, alleging that the trial judge erred in submitting the issue of decedent’s negligence to the jury because there was insufficient evidence to support such a finding. On July 31, 1991, the trial court granted plaintiff’s post-trial motion and reinstated the entire $715,000 verdict, stating that he was entering judgment in that amount on that day. A judgment order to that effect was entered on August 7,1991.

On August 12, 1991, defendant H & F Trucking sought leave to file a post-trial motion pursuant to section 2 — 1202(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1202(c)). The trial court denied defendant’s request for leave with respect to any issue other than those related to the judgment notwithstanding the jury’s finding of contributory negligence. Defendants now appeal.

Opinion

Defendants’ first contention on appeal is that the trial court erred in entering a judgment notwithstanding the jury’s finding of contributory negligence. We note at the outset that in entering its judgment, the trial court stated that the jury’s verdict was against the manifest weight of the evidence. The manifest weight of the evidence standard, however, is inapplicable to such a determination. The appropriate standard for entering a judgment n.o.v. is that established in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, where the Illinois Supreme Court stated:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick, 37 Ill. 2d at 510.)

(See also Hicks v. Donoho (1979), 79 Ill. App. 3d 541, 399 N.E.2d 138.) The issue before us then is whether the aforementioned facts mandate a finding that plaintiff was not guilty of contributory negligence as a matter of law. We hold that they do not.

Whether plaintiff acted with due care is a question for the jury to determine based on the facts of the particular case. (Jines v. Greyhound Corp. (1965), 33 Ill. 2d 83, 210 N.E.2d 562.) A plaintiff is “contributorily negligent when she acts without that degree of care which a reasonably prudent person would have used for her own safety under like circumstances, and which action is the proximate cause of her injury.” (Blacconeri v. Aguayo (1985), 132 Ill. App. 3d 984, 988, 478 N.E.2d 546.) Our supreme court has expressed its reluctance to set forth hard and fast rules as to which actions constitute contributory negligence as a matter of law, favoring instead a flexible approach.

“ ‘There is no rule of law which prescribes any particular act to be done or omitted by a person who finds himself in a place of danger.

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Bluebook (online)
627 N.E.2d 122, 254 Ill. App. 3d 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bizarro-v-ziegler-illappct-1993.