Fraher v. Inocencio

459 N.E.2d 11, 121 Ill. App. 3d 12, 76 Ill. Dec. 602, 1984 Ill. App. LEXIS 1376
CourtAppellate Court of Illinois
DecidedJanuary 5, 1984
Docket4-83-0280
StatusPublished
Cited by9 cases

This text of 459 N.E.2d 11 (Fraher v. Inocencio) 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
Fraher v. Inocencio, 459 N.E.2d 11, 121 Ill. App. 3d 12, 76 Ill. Dec. 602, 1984 Ill. App. LEXIS 1376 (Ill. Ct. App. 1984).

Opinion

JUSTICE MILLER

delivered the opinion of the court:

The trial court granted plaintiff Fraher a new trial in her suit to recover damages for her personal injuries and lost earnings caused by a car collision. This court granted the defendants’ petition for leave to appeal under Supreme Court Rule 306 (87 Ill. 2d R. 306). The property damage claims of plaintiff Fulk, whose car Fraher was driving and wrecked in the accident, have been concluded and are not at issue here.

The jury, instructed on comparative negligence, found that Fraher suffered $3,000 in damages and attributed to her 92% of the combined negligence, leaving a verdict of $240. The trial judge granted Fraher’s motion for a new trial because one of the defense lawyers, in his closing argument, violated an order in limine prohibiting comments on Fraher’s consumption of alcohol the night of the accident. The defendants argue that the improper remark was invited by the closing argument of Fraher’s lawyer. Alternatively, the defendants argue that the trial court should have accepted their offer of an additur of $2,760 rather than grant the new trial; the proposed additur consisted of the amount by which Fraher’s negligence reduced her damages of $3,000. We agree with the defendants that the remark could have affected only the jury’s determination of Fraher’s negligence, and that the additur will cure the error.

The accident at issue here occurred about 11 p.m. October 13, 1980, on a two-lane, north-south, county blacktop near Campus, Illinois. The events leading up to the accident are for the most part undisputed. Fraher and six acquaintances — defendant Peterson and five of his friends — drove from Dwight to Campus in two cars to go to a tavern, which happened to be closed. Fraher was driving a car owned by her boyfriend, plaintiff Dale Fulk, and carrying one passenger; defendant Peterson was driving the other car and carrying four passengers. While the Fraher-Peterson group was parked at a grain elevator in Campus, defendant Inocencio drove by, yelling an obscenity or two. Peterson took offense and chased Inocencio; they traveled north about four miles; estimates of the speed of the chase varied; one passenger in Peterson’s car testified that they went as fast as 90 to 100 miles per hour. Inocencio tapped on his brakes and Peterson hit the back of Inocencio’s car. This collision is not an issue here. Peterson then passed Inocencio and stopped. Peterson and at least one other person in his car got out and headed toward Inocencio’s car, which also had stopped. In fear, Inocencio threw his car into reverse, staying in the northbound lane. While this was going on, Fraher was following the same route. She saw Inocencio’s backup lights go on, tried to pass him, and hit him instead. The collision destroyed the car Fraher was driving, knocked out five of her front teeth, and caused her to miss several days’ work. None of the persons in Peterson’s car saw the collision.

Fraher sued defendant Inocencio for negligence and defendant Peterson for negligence and wilful and wanton misconduct. Every count alleged intoxication and deviations from traffic laws or from common sense. Before trial the plaintiffs filed several motions in limine. Two of these motions are important here: one was to exclude evidence and remarks on whether Fraher was using a seat belt when the accident occurred, and the other to exclude evidence and remarks on Fraher’s consumption of alcohol before the accident. The court conditionally granted these motions but explained that the defendants could introduce evidence on these points if they showed that using a seat belt ■ would have lessened Fraher’s injuries or if they showed that Fraher was intoxicated when the accident occurred. The defendants introduced evidence on seat belts but not on Fraher’s intoxication.

The objectionable comment by defendant Inocencio’s lawyer occurred in this section of his closing argument:

“So we get into a situation Loren is intoxicated because of the fact that he admitted truthfully to the officer that he had been drinking some five hours before the accident. Now, the plaintiff who takes a drunk in the car with her and goes from one tavern to another and is accompanied by five other drunks and then they stand up here and they argue, but no one says she wasn’t intoxicated — I mean that she was intoxicated. You didn’t hear anyone say like they were saying about Loren that she hadn’t been drinking.”

The trial court sustained the plaintiffs’ objection to the reference to Fraher and instructed the jurors to disregard it. The defendants argue that the plaintiffs’ lawyer invited the comment by his own remarks on the subject in closing argument:

“Let’s look at Mrs. Fulk, Nancy Fraher at the time. You heard a concerted effort by the attorneys for the defendants to make it seem as if she was with this group of gentlemen that evening at the 17-47 Bowl. You recall all these questions about well, was everybody buying rounds, was everybody in the same condition. Remember that? They are trying to suggest to you, to imply to you, that she, in fact, was in the same condition as these individuals were that evening, and that is not the truth, because every time one of these individuals was asked by me well, was she buying the rounds, do you mean to include her in that group? No, she wasn’t with us, she was there, that is it. There is no evidence concerning her intoxication. But you did hear this effort and I believe you are going to hear the effort to imply that in closing argument.”

The defendants argue first that the remark in question was fair reply to the plaintiffs’ closing argument, which invited a response like the one that was made. The remark exceeded the scope of the invitation, however, and therefore was improper. Because Fraher was not intoxicated when the accident occurred, the trial court granted the motion in limine on the subject of her consumption of alcohol before the accident. This meant that the jury would not hear any evidence that she had been drinking. Thus, the plaintiffs’ lawyer properly and accurately argued that there was no evidence of Fraher’s intoxication; this remark did not violate the order in limine. The remark by defendant Inocencio’s lawyer, however, did violate that order. His statement about the lack of evidence on the subject, “You didn’t hear anyone say like they were saying about Loren that she hadn’t been drinking” — an allusion to the testimony that Inocencio did not drink any alcohol after 6 or 6:30 the night of the collision — implied that Fraher had been drinking. This went beyond any invitation to reply that was contained in the argument of the plaintiffs’ lawyer and prejudiced Fraher’s right to a fair trial.

The decision whether to grant a new trial is reserved to the trial judge’s discretion (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 416 N.E.2d 268), and improper closing argument that causes prejudice may be grounds for a new trial (Crutch-field v. Meyer (1953), 414 Ill. 210, 111 N.E.2d 142). We must determine in what way Fraher was prejudiced by defense counsel’s remark and whether the defendants’ proposed additur would be an appropriate alternative to a new trial.

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Cite This Page — Counsel Stack

Bluebook (online)
459 N.E.2d 11, 121 Ill. App. 3d 12, 76 Ill. Dec. 602, 1984 Ill. App. LEXIS 1376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fraher-v-inocencio-illappct-1984.