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                                                                                                                                   FIFTH DIVISION
                                                                                                                                   Filed:11/03/00

No. 1-98-2199

Plaintiff, Lori A. Mrowca, was struck by a CTA bus while attempting to crossJackson Boulevard near the crosswalk at Financial Place in Chicago. At trial before ajury, plaintiff insisted that she was one step outside the crosswalk when the bus struckher. Other testimony suggested, however, that she was walking quickly and bounded intothe street without looking as much as a car length away from the crosswalk when thepedestrian signal changed to "walk."

The jury returned a verdict against the CTA in the amount of $850,000,⁽¹⁾ butalso set plaintiff's contributory negligence as being 60% of the total cause of theaccident. It therefore assessed the CTA's liability at $340,000. Although the juryconcluded that plaintiff was 60% liable for her own injuries, the jury's verdict wasrendered on a form which it had been instructed was reserved for use when theplaintiff's liability is less than 50%. In order to determine why the jury had used the less-than-50%-verdict form, the trial court polled the jury as to whether it believed plaintiffhad been 60% negligent. When the jury foreman and each of the jurors indicated in opencourt that she had been 60% negligent, the court entered judgment in favor of the CTAin accordance with 735 ILCS 5/2-1116 (2000)(barring recovery to tort plaintiff whose"contributory fault" exceeds 50%). Plaintiff subsequently filed a motion for a new trial,which the court denied. This appeal followed.

Plaintiff first argues the jury's verdict is "contradictory" and "legally inconsistent"and that it was therefore arbitrary for the court to decide to credit the jury's finding of60% negligence. It is entirely possible, she claims, that the jury intended by its verdict toaward her $340,000 in damages consistent with the contributory fault law. She contendsthat there is "no way the Jury can find that Lori Mrwoca was both 50% or lesscomparatively negligent as well as 60% comparatively negligent."

The CTA argues that the jury's verdict was consistent but that the jurors merelyused the wrong verdict form in rendering that verdict. Any doubts as to the jury'sintention, the CTA claims, were made clear by the court's polling of the jurors.

In general, this court will not reverse a trial court' ruling on a motion for a newtrial unless the trial court abused its discretion in refusing the motion. Tedeschi v.Burlington Northern R.R. Co., 282 Ill. App. 3d 445, 668 N.E.2d 138 (1996). However,"where verdicts returned in the same action are legally inconsistent, such verdicts mustbe set aside and a new trial granted." Kumorek v. Moyers, 203 Ill. App. 3d 908, 913, 561N.E.2d 212 (1990). The courts exercise all reasonable presumptions in favor of theverdict, and the verdict is not legally inconsistent unless it is "absolutely irreconcilable."Tedeschi, 282 Ill. App. 3d at 449, citing Wottowa Insurance Agency, Inc. v. Bock, 104Ill. 2d 311, 472 N.E.2d 411 (1984); Bilderback v. Admiral Co., 227 Ill. App. 3d 268,270, 591 N.E.2d 36 (1992). The verdict cannot be considered irreconcilably inconsistentif "any reasonable hypothesis" supports the verdict. Powell v. State Farm Fire & CasualtyCo., 243 Ill. App. 3d 577, 581, 612 N.E.2d 85 (1993). The issue is one of the jury'sintent. See e.g., Battles v. LaSalle National Bank, 240 Ill. App. 3d 550, 561, 608 N.E.2d438 (1992).

The jury in this case did not render an absolutely irreconcilable verdict. As thetrial court recognized, the use of the same verdict form to find the plaintiff more than50% liable for her own injuries and to assess damages against the defendant created averdict which could not stand only in the form it was delivered to the court, but not onethat was absolutely irreconcilable. In recognizing the inconsistency, the court carefullypolled each juror as to the plaintiff's fault and confirmed the jury's determination thatplaintiff was 60% liable for her own injuries. The fact that each juror repeatedlyindicated to the court that the plaintiff was 60% liable, and the fact that the jury hadreduced its award to plaintiff by 60% on the verdict form before being polled left nodoubt in the mind of the trial court as to the jury's intention. At this point, the courtproperly entered judgment consistent with the juror's findings and the law. See WesternSprings Park District v. Lawrence, 343 Ill. 302, 310-11, 175 N.E.2d 579 (1931)("If themeaning of the jury can be ascertained and a verdict on the point in issue can be madeout the court will mold it into form and make it serve"). We find no abuse of discretion inthe court's actions.

The cases in which irregularities in jury verdicts have been addressed support thetrial court's decision not to award plaintiff a new trial. See e.g., Kleiss v. Cassida, 297 Ill.App. 3d 165, 176-77, 696 N.E.2d 1271 (1998) (court "decline[d] to allow the plaintiffs asecond chance" where jury verdict in favor of plaintiffs, but awarding no damages,logically amounted to a verdict for defendant and the jury "simply used the wrong verdictform"); Battles, 240 Ill. App. 3d at 561 (where verdict is supported by evidence andpleadings, "it must be liberally construed and may be molded into form unless it isunclear or there is doubt as to its meaning"); Marek v. Stepkowski, 241 Ill. App. 3d 862,871, 608 N.E.2d 285 (1992) (because the "trial court may reject surplusage and mold averdict into the proper form where the jury's resolution of the issues it was to decide isclear," the trial court properly ignored jury notations on verdict form); Argueta v.Baltimore & Ohio R.R., 224 Ill. App. 3d 11, 23-24, 586 N.E.2d 394 (1991)(court maycorrect defects of form in a verdict so long as it does not change jury's determination);Martin v. McIntosh, 37 Ill. App. 3d 526, 529, 346 N.E.2d 450 (1976) (where jury did notfill out correct form to award punitive damages, court properly recognized jury's awardof such damages in accordance with "long standing rule of law which permits a trialcourt to construe a jury verdict which is defective in form and enter judgment thereon ifit is possible to determine the jury's intent by reference to the entire proceedings");Hatfield v. Leverenz, 35 Ill. App. 2d 222, 227, 182 N.E.2d 385 (1962)(where jury signedinstruction and issued no separate verdict form, court was "of the opinion that the verdictreturned was sufficient manifestation of the intention of the jury to find [for defendant],and that the trial court had the power to so construe the verdict and enter judgment"; seealso Kessling v. United States Cheerleaders Assoc., 274 Ill. App. 3d 776, 778-80, 665N.E.2d 926 (1995)(court properly entered judgment in accordance with jury's intentwhere jury filled out verdict form B but signed verdict form C).

Plaintiff cites Wottawa Insurance Agency v. Bock, 104 Ill. 2d 311, 472 N.E.2d411 (1984), and Johnson v. Kirkpatrick, 11 Ill. App. 2d 214, 136 N.E.2d 612 (1956), insupport of her claim that a court may not choose between irreconcilable verdicts. Ourreview of these cases, however, shows that they actually support defendant's positionbecause they illustrate the types of jury errors which will warrant setting aside a verdict.In Wottowa, the jury determined in its count one verdict that a guarantee executed bydefendant corporate officers was a corporate obligation, not a personal one. Wottowa,104 Ill. 2d at 212-13. At the same time, the jury assessed liability upon the officers incount two because they signed the guarantee with no intention of personally honoring it.Wottowa, 104 Ill. 2d at 212-213.

In Johnson, the jury found negligence on the part of a tractor's owner, but none on thepart of its driver, even though the owner's liability was solely premised entirely on thedriver's conduct. Johnson, 11 Ill. App. 2d at 216-17.

Unlike the scenarios in Wottowa and Johnson, the jury in this case did not makecontradictory "findings." This fact distinguishes those cases from this one in which thejury rendered a consistent verdict on the wrong verdict form.

Plaintiff appears to assert that because the jury found she was not responsible for$340,000 of her damages that she is entitled to receive this compensation, but the jury'sassessment of her damages cannot be given effect under Illinois law. A similar argumentwas made in Marek v. Stepkowski, 241 Ill. App. 3d 862, 608 N.E.2d 285 (1992) wherethe jury assessed damages of $150,000 against the two defendants (who were brothers)and wrote under the assessment "divided by both brothers $75,000." The appellate courtrejected defendants' claims that the verdict was unclear, concluding that there was "noreal doubt" that the jury had found defendants responsible for total damages of $150,000and had attempted to apportion damages equally between them. Marek, 241 Ill. App. 3dat 871. Therefore, the circuit court correctly ignored the jury's directive as "surplusage"and had properly molded the verdict into a regular form. Marek, 241 Ill. App. 3d at 871.

Plaintiff also argues that the jury's verdict of 60% contributory negligence isagainst the manifest weight of the evidence and must be reversed. See Knight v.Haydary, 223 Ill. App. 3d 564, 573, 585 N.E.2d 243 (1992). In considering thisargument, this court must examine the evidence in the light most favorable to theappellee. Knight, 223 Ill. App. 3d at 573. A jury's verdict is against the manifest weightof the evidence only where the opposite conclusion is clearly evident or when the verdictappears to be arbitrary or to be unsupported by the evidence. Knight, 223 Ill. App. 3d at573.

A review of the record, viewed in its light most favorable to the appellees, showsthat several witnesses testified that plaintiff was moving quickly and not looking whereshe was going when the bus hit her. Jacobs, the bus driver, testified that when he realizedplaintiff would step into the street, he immediately applied his brakes, but it was too lateto avoid striking her. A finding of 60% contributory negligence is therefore not againstthe manifest weight of the evidence.

Finally, plaintiff argues that it was trial error for the court to allow witnessAndrew Plunkett to testify on cross-examination regarding why he shouted to her amoment before her accident. Plaintiff objected when defendant asked Plunkett, "[w]hydid you shout the warning to her?" The court overruled the objection and Plunkett statedthat he did so because he "believed that she was unaware of the bus coming from thewest, and that if she took another step *** there was going to be a collision."

We agree that Plunkett's explanation as to why he shouted is of questionablerelevancy. Some courts, however, have allowed a witness to describe another person'smental state as a means of effectively communicating the totality of the witness'simpressions. See e.g., Zoerner v. Iwan, 250 Ill. App. 3d 576, 580-82, 619 N.E.2d 892(1993)(deputy's statement that plaintiff was delirious and disoriented was admissible);Law v. Central Public Service Co., 86 Ill. App. 3d 701, 705-06, 408 N.E.2d 74(1980)(witnesses should have been permitted to testify that another person was afraid). Itis usually considered to be within the trial court's discretion to admit such testimony. SeeR. Steigmann, 1 Illinois Evidence Manual