Rice v. Merchants National Bank

572 N.E.2d 439, 213 Ill. App. 3d 790, 157 Ill. Dec. 370, 1991 Ill. App. LEXIS 861
CourtAppellate Court of Illinois
DecidedMay 22, 1991
Docket2-90-0895
StatusPublished
Cited by42 cases

This text of 572 N.E.2d 439 (Rice v. Merchants National Bank) 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
Rice v. Merchants National Bank, 572 N.E.2d 439, 213 Ill. App. 3d 790, 157 Ill. Dec. 370, 1991 Ill. App. LEXIS 861 (Ill. Ct. App. 1991).

Opinions

JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Mary Bonifas Rice, appeals from a jury verdict in the circuit court of Kane County which awarded her $48,000 in damages. The jury reduced the damages awarded to $32,000 after determining that plaintiff was responsible for 33.33% of her injuries. On appeal, plaintiff contends that the trial court erred: (1) in allowing into evidence the deceased’s toxicology report; (2) by permitting improper cross-examination of plaintiff concerning alcohol consumption, prior surgery, and pregnancies; (3) in instructing the jury on the statutory presumptions with respect to intoxication; and (4) in refusing to rule on her motion for summary judgment. In addition, plaintiff contends that the jury verdict finding her contributorily negligent was against the manifest weight of the evidence and that the jury disregarded proven elements of damages for her pain and suffering. We affirm in part, reverse in part and remand.

On January 10, 1989, plaintiff filed a complaint against defendant, the Merchants National Bank, as special administrator of the estate of Darrell Hubbs, seeking damages as a result of an automobile accident. The complaint alleged that Darrell Hubbs, the decedent, was driving an automobile in which plaintiff was a passenger and negligently caused the automobile to leave the road, causing a “violent collision.” Thereafter, defendant filed an affirmative defense alleging that plaintiff was responsible for some or all of her injuries because she chose to remain in decedent’s automobile even though she was aware that he was “intoxicated and/or under the influence of a drug.” The following facts were adduced at trial.

Plaintiff testified that she graduated from high school in 1981 and began working for an insurance company. Shortly thereafter, she got married, gave birth to a son, and moved to Virginia. In 1984, she and her son returned to Illinois and one year later her marriage was dissolved. In June 1988, plaintiff met decedent while she was bartending at Chanti’s restaurant. Plaintiff dated decedent four or five times before agreeing to accompany him on a trip to Eastern Illinois University in Charleston. Decedent did not drink any alcohol or have any alcohol in the car during the trip to Charleston on July 2, 1988. After arriving in Charleston, decedent drove to Eric Zuspann’s house, where he and plaintiff spent one night.

The following day decedent, plaintiff, and Zuspann left Charleston at approximately noon to return to Aurora. Before leaving the city, they stopped at a liquor store to purchase a six-pack of beer. Decedent and Zuspann each drank a beer and the remaining cans were placed in a cooler. Shortly thereafter they stopped at a Wendy’s restaurant to use the washroom. After returning to the car, plaintiff sat in the backseat and shut her eyes. She opened her eyes when she felt the car driving on gravel and saw that the car was going to hit a tree. It was plaintiff’s opinion that the car was travelling “[approximately the speed limit, 55, 60” at the time it hit the tree.

Following the collision, plaintiff remained in the automobile for 45 minutes until paramedics could remove her. She was then taken to a local hospital and treated for a broken pelvic bone, back injuries, a sprained ankle, and torn knee ligaments.

Plaintiff indicated that she was physically active prior to the accident, engaging in aerobics on a daily basis and jogging, dancing, and horseback riding on a less frequent basis. Following the accident, she has experienced a constant pain in her back and has'been unable to participate in many of these activities. In addition, she experienced a great amount of pain in her pelvic area during her most recent pregnancy, even though she did not experience any similar pain while she was carrying her first child.

On cross-examination, plaintiff stated that she had surgery on her feet to remove bunions approximately five months before the accident. However, she did not experience any problems with the surgery or healing process. In addition, plaintiff indicated that she did not have any other pregnancies other than the two mentioned on direct examination.

With respect to her trip to Charleston with decedent, plaintiff stated that they went to a bar where Zuspann worked the night before the accident. They planned on returning to Aurora with Zuspann to pick up a friend before visiting the Taste of Chicago, an annual celebration on Chicago’s lakefront.

Shortly before the accident, plaintiff saw decedent and Zuspann fighting over the armrest in the front seat of the car. However, she did not see the car leave the road at any time before the accident. Plaintiff also stated, over objection, that she removed a can of beer from the cooler and “took a sip” of beer during the trip.

Eric Zuspann testified that he and decedent each had a “couple” of beers before they left Charleston with plaintiff on the day in question. However, he did not believe that plaintiff saw him and decedent drinking because she was inside the house. Zuspann indicated that the three of them left Charleston at approximately 12:30 p.m. and made only one stop before the accident. During the stop, plaintiff used a washroom at a Wendy’s restaurant while decedent and Zuspann bought a six-pack of beer at a liquor store. Immediately prior to the collision, decedent and Zuspann were fighting over the armrest. The next thing Zuspann remembered was waking up in a hospital. Zuspann did not believe that decedent was intoxicated or impaired on the day of the accident.

Sergeant Thomas Walker of the Grundy County sheriff’s department testified that he investigated the accident at issue in this case. Sergeant Walker stated that he could not find any evidence of any skidding, braking, yaws, or oversteering on the pavement before the car entered the gravel shoulder. The distance between the marks on the shoulder and the tree which the automobile struck was 122 feet. He was unable to determine how fast the automobile was travelling at the time of the impact. In addition, Walker observed three open cans of beer near the automobile and three unopened cans inside of a cooler in the backseat of the car.

Shirley Wille, a former co-worker of plaintiff, testified that plaintiff was in very good health before the accident and was a very active person. Following the accident, plaintiff became “very slow-moving” and appeared to be in a lot of pain.

Dr. Thomas Clark, a chiropractor, testified pursuant to an evidence deposition that he was plaintiff’s current employer. Plaintiff performs clerical work for Dr. Clark and has demonstrated various problems with her back, especially when bending over or lifting objects. However, Dr. Clark has not treated plaintiff for any injuries and is not aware if she was presently seeking any medical treatment.

Dr. Gregory Schierer, an orthopedic surgeon, testified that he examined plaintiff two days after the accident. X rays of plaintiff’s back revealed a compression fracture of her third lumbar vertebra, an injury which was consistent with an automobile accident like plaintiff was involved in. In addition, this injury would be likely to produce the pain which plaintiff was experiencing. Dr. Schierer also opined that plaintiff would probably experience this pain on a permanent basis.

Dr. Richard Richley also testified pursuant to an evidence deposition. Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
572 N.E.2d 439, 213 Ill. App. 3d 790, 157 Ill. Dec. 370, 1991 Ill. App. LEXIS 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-merchants-national-bank-illappct-1991.