Zerbenski v. Tagliarino

384 N.E.2d 753, 67 Ill. App. 3d 166, 23 Ill. Dec. 846, 1978 Ill. App. LEXIS 3793
CourtAppellate Court of Illinois
DecidedDecember 6, 1978
Docket77-1165
StatusPublished
Cited by13 cases

This text of 384 N.E.2d 753 (Zerbenski v. Tagliarino) 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
Zerbenski v. Tagliarino, 384 N.E.2d 753, 67 Ill. App. 3d 166, 23 Ill. Dec. 846, 1978 Ill. App. LEXIS 3793 (Ill. Ct. App. 1978).

Opinion

Miss JUSTICE McGILLICUDDY

delivered the opinion of the court:

This is an action to recover damages for injuries resulting from an automobile accident which occurred on March 17, 1972.

On March 10, 1977, a jury in the Circuit Court of Cook County returned a verdict against both defendants. The jury awarded Joan Zerbenski *90,000 and Walter Zerbenski *5,000. Judgment was entered against both defendants. Defendant Tagliarino presented a post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. This motion was denied and Tagliarino appealed the judgment order. Koehring is not a party to this appeal.

The plaintiff, Joan Zerbenski, suffered personal injuries when her automobile was struck head-on by the vehicle of defendant Norman F. Koehring. Her husband sought recovery for the loss of consortium. The plaintiffs alleged that Koehring drove his automobile into the wrong side of the road and struck the plaintiffs’ car head on. In addition, they alleged that the negligent driving of Tagliarino was a proximate cause of the accident.

The accident occurred on March 17,1972, at approximately 6:30 p.m. on Illinois Route 20 (Lake Street), a four-lane highway in Hanover Park, Illinois, near its intersection with Greenbrook Drive, an entranceway into a subdivision. Joan Zerbenski was driving her car in an easterly direction. Four vehicles were traveling on Route 20 in a westerly direction in the inner lane next to the center line. An unidentified driver operated the first vehicle, a Rambler. Tagliarino and his wife occupied the second automobile. The third vehicle was operated by Koehring. Following Koehring’s automobile was Anthony Cristofaro, who appeared as a witness at the trial. Cristofaro testified that all four vehicles were proceeding at a speed of 50 miles an hour.

As the Rambler approached the intersection with Greenbrook Drive, the driver signaled for a left turn. At that time Cristofaro moved into the right lane. Tagliarino testified that he observed the signal, removed his foot from the accelerator and was prepared to stop if necessary. There is a conflict in the testimony of Tagliarino and Cristofaro as to the subsequent events.

Tagliarino testified that Koehring had been tailgating him for over one block and that after he removed his foot from the accelerator, Koehring struck the rear of his automobile. Immediately thereafter he heard a loud crash which was Koehring’s vehicle colliding with the plaintiff’s car. Tagliarino testified that at the time of the impact there was a distance of three to five cars between his vehicle and the Rambler. In addition, he stated that he did not apply his brakes before Koehring hit his car. Melba Tagliarino’s testimony supported her husband’s explanation of the accident.

Cristofaro, on the other hand, testified that the Rambler started to slow down to make the left turn but neither Tagliarino nor Koehring reduced his speed. Cristofaro stated that all of a sudden Tagliarino slammed on his brakes. Thereafter, Koehring applied his brakes, attempted to move into the right lane which was occupied by Cristofaro, then swerved across the center lane hitting the plaintiff’s car head-on. According to Cristofaro’s version of the events, Koehring’s.automobile hit the left rear of Tagliarino’s vehicle after the collision of Koehring’s car with the plaintiff’s car.

The issues presented for review are:

“1. The plaintiffs failed to prove any negligence on the part of Tagliarino so that the trial court should have directed a verdict in his favor.
2. The plaintiffs failed to prove that any action by Tagliarino was the proximate cause of the plaintiff’s injury so that the trial court should have directed a verdict in his favor.
3. The verdict against Tagliarino was the result of cumulative trial errors.”

I

The defendant alleges that the trial court should have directed a verdict in his favor because the plaintiffs failed to prove any act of negligence. In Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, the supreme court established the rule that directed verdicts should be entered only in those cases in which all of the evidence, when viewed most favorably to the opponent, so overwhelmingly favors a movant that no contrary verdict based on that evidence could ever stand. By applying this standard to the testimony in this case, we find that there was sufficient evidence to support a conclusion of negligence on the part of Tagliarino and to justify the trial court’s denial of a directed verdict.

Cristofaro testified that Tagliarino did not slow down when the Rambler began to brake and signaled for a left turn. Instead, he waited until his automobile was 30 feet from the turning Rambler, and “all of a sudden * * * slammed on his brakes.” Viewing this evidence most favorably to the plaintiffs, one could reasonably conclude that Tagliarino breached his duty to avoid damage to the vehicles following him. (Mernick v. Chiodini (1957), 12 Ill. App. 2d 249, 139 N.E.2d 784.) Whether Tagliarino’s sudden slowing of his vehicle was an act of negligence, was a question of fact to be resolved by the jury.

Tagliarino argues that there is no violation of a duty by a driver who stops or slows his vehicle in a traffic holding situation. (Glenn v. Mosley (1976), 39 Ill. App. 3d 172, 350 N.E.2d 219; Peithman v. Beals (1968), 103 Ill. App. 2d 138, 242 N.E.2d 476; Wooff v. Henderson (1964), 46 Ill. App. 2d 420, 197 N.E.2d 103.) These three cases, however, involved drivers who had made a complete stop at the time they were struck by the vehicles following them. In each case there was no allegation that the driver had stopped suddenly or performed any other negligent act on the highway. Tagliarino’s alleged breach of duty, however, is not that he had stopped his car on the highway in a holding situation, but that he unnecessarily and negligently stopped suddenly on the road precipitating the accident.

The facts in the present case are very similar to the situation in Mernick v. Chiodini. In Mernick the plaintiffs alleged that the defendant was negligent in suddenly applying his brakes without an appropriate signal causing the drivers of three passenger cars following the defendant to likewise apply their brakes, as did the driver of a truck following the passenger cars. The truckdriver crossed the center line of the road and collided with an automobile, killing two persons and injuring two persons. The complaint alleged that the sudden application of the brakes was a proximate or contributing cause of the accident. The trial court directed a verdict in favor of the defendant. This court reversed, holding that if a jury viewed the evidence most favorably to the plaintiffs it could have found negligence on the part of the defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
384 N.E.2d 753, 67 Ill. App. 3d 166, 23 Ill. Dec. 846, 1978 Ill. App. LEXIS 3793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zerbenski-v-tagliarino-illappct-1978.