Sunseri v. Puccia

422 N.E.2d 925, 97 Ill. App. 3d 488, 52 Ill. Dec. 716, 1981 Ill. App. LEXIS 2831
CourtAppellate Court of Illinois
DecidedJune 9, 1981
Docket79-2208
StatusPublished
Cited by66 cases

This text of 422 N.E.2d 925 (Sunseri v. Puccia) 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
Sunseri v. Puccia, 422 N.E.2d 925, 97 Ill. App. 3d 488, 52 Ill. Dec. 716, 1981 Ill. App. LEXIS 2831 (Ill. Ct. App. 1981).

Opinion

Mr. PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff Samuel J. Sunseri brought an action against defendant Patrick Puccia, owner of a restaurant and lounge, and defendant Larry Goeske, his bartender, for injuries received during an altercation on the restaurant premises. On May 7,1979, in the course of a jury trial, the court directed a verdict for each defendant at the close of plaintiff’s case based on an occurrence witness’ cross-examination testimony that plaintiff had initiated the fight. Plaintiff asserts on appeal that the verdicts were improperly directed because the trial court misapplied the Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504) and, alternatively, the trial court erroneously allowed defendants to present, over objection, an affirmative defense during plaintiff’s case-in-chief. We reverse and remand for a new trial.

Plaintiff testified that after arriving at the restaurant at approximately 10 p.m. on December 14, 1973, Goeske asked to see his identification verifying his legal age to purchase liquor. Plaintiff displayed some identification cards and Goeske walked away. Plaintiff complained to a friend that he was “tired of being carded.” Goeske overheard this remark and told plaintiff that if he didn’t like it, he should leave. Plaintiff apologized, but Goeske became increasingly angered. As plaintiff stood up to leave, he waved a universally understood obscene gesture at Goeske. Goeske threatened to “beat the hell” out of him. Plaintiff became frightened because Goeske was considerably taller and heavier, and quickly started towards the exit, but Goeske came from behind the bar and grabbed him. Plaintiff swung at Goeske to defend himself but missed. Goeske then threw plaintiff to the floor and kicked him repeatedly. Goeske allowed plaintiff to stand up, escorted him to the door and once outside, Goeske punched plaintiff in the face. He then threw plaintiff to the ground and jumped on top of him. While holding him there, Goeske began to “gnaw” on plaintiff’s ear and he felt Goeske’s teeth pierce his ear at least three times. Goeske commented “I hope you see this when I’m done,” then stood up and walked away. Patrick Puccia, Richard Sikorski, and several others had been outside watching the entire occurrence, but no one had attempted to stop Goeske. Plaintiff was taken to a hospital where Dr. Allen McClean treated him. About one week later, the doctor amputated the damaged part of his ear.

Dr. Allen McClean testified that when he examined plaintiff in the hospital emergency room, plaintiff’s ear was completely severed at the middle and was dangling from a small pedicle at its lowest part. He was quite certain that the wound had been inflicted by human teeth. He sutured the severed portions of the ear together that night but ultimately had to surgically remove the damaged portion after gangrene set in.

Goeske was called by plaintiff as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). He testified that after he asked to see plaintiff’s identification, the latter reached across the bar and struck him in the face. He escorted plaintiff outside and was again struck by him. He denied biting plaintiff’s ear during the fight.

Plaintiff called Palatine police officer Richard Sikorski as his next witness. His motion to invoke section 60 was denied because Sikorski, originally named as a defendant, had been dismissed by plaintiff prior to trial, pursuant to an out-of-court agreement. Sikorski testified that he had been off duty on the night in question and was a customer at the restaurant. He and Puccia observed the fight outside the restaurant, but Puccia refused to help Sikorski when the latter suggested that the fight should be stopped. On cross-examination, Sikorski immediately altered his testimony by stating that Puccia did help him stop the fight. When Sikorski’s attention was directed at occurrences inside the restaurant, plaintiff objected that such testimony was outside the scope of the direct examination. The objection was overruled, and Sikorski testified that the fight began when plaintiff reached over the bar and struck Goeske. Sikorski and Goeske escorted plaintiff outside, and Sikorski then reentered the building. When Goeske didn’t return, Sikorski again stepped outside where he saw the two fighting. He did not witness the beginning of the fight outside.

Terry Zimich, a patron of the restaurant at the time of the altercation, testified for plaintiff: He saw plaintiff being “carded” in the restaurant and heard him complain of this procedure. He heard Goeske tell plaintiff to leave if he disapproved. Plaintiff responded that he did not want any trouble; all he wanted was a beer. Goeske and plaintiff then began to yell at each other. Goeske was behind the bar when he and plaintiff began to yell at each other. Plaintiff had not attempted to punch Goeske, and it was only when Goeske came around the bar that the pushing began. Zimich did not recall precisely what occurred then, but he heard plaintiff say, “leave me alone. One on one if you want.” Then the ruction broke up and they went outside the restaurant. He did not go out with them. Another witness, Steve Conklin, testified; however, his recollection of the events was vague and added little substance to the inquiry.

Plaintiff then rested his case. The trial court directed verdicts as to both defendants, relying on Sikorski’s testimony that plaintiff initiated the fight inside the restaurant. The trial court did not consider Goeske’s testimony to be determinative in directing the verdicts because he was an adverse witness whose testimony was contradicted by plaintiff’s. (See, e.g., Cheek v. Avco Lycoming Division (1977), 56 Ill. App. 3d 217, 371 N.E.2d 994, and Spence v. Commonwealth Edison Co. (1975), 34 Ill. App. 3d 1059, 1069, 340 N.E.2d 550.) The trial court posited, however, that directed verdicts were appropriate because the jury would otherwise be confronted with two versions of how the fight began, one presented by plaintiff and one presented by Sikorski, who was not an adverse witness. We believe that the directed verdicts were improvidently granted for the following reasons.

The oft-quoted standard of Pedrick provides that a verdict should be directed only in those cases in which all the evidence, when viewed in its aspect most favorable to the respondent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand (Pedrick v. Peoria & Eastern R.R. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504). This standard is to be employed in a jury trial whether the motion for a directed verdict is considered at the close of all the evidence, or at the close of plaintiff’s case. (Illinois Bell Telephone Co. v. Purex Corp. (1980), 90 Ill. App. 3d 690, 697, 413 N.E.2d 106; Weiner v. Trasatti (1974), 19 Ill. App. 3d 240, 311 N.E.2d 313

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Bluebook (online)
422 N.E.2d 925, 97 Ill. App. 3d 488, 52 Ill. Dec. 716, 1981 Ill. App. LEXIS 2831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sunseri-v-puccia-illappct-1981.