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THIRD DIVISION
FILED: September 29, 2004

The defendant/counter-plaintiff, Elaine Socha (hereinafterreferred to as the defendant), appeals from an order of the circuitcourt granting a new trial in this negligence action. For thereasons which follow, we affirm and remand this matter to thecircuit court for further proceedings.

The facts material to our resolution of this appeal areundisputed. On July 4, 2001, the motorcycle that theplaintiff/counter-defendant, Tommie Redmond (hereinafter referredto as the plaintiff), was operating was struck in the rear by anautomobile being driven by the defendant. As a result of thecollision, the plaintiff filed the instant action seeking damagesfor personal injury and property damage. The defendant answeredthe complaint and filed both an affirmative defense alleging thatthe plaintiff was contributorily negligent and a counterclaimseeking damages for property damage.

The matter was tried before a jury. At trial, the plaintifftestified that he and two friends were riding their motorcycles onOgden Avenue between Sacramento Boulevard and California Avenue. According to the plaintiff, he was traveling in a northeasterlydirection in the right lane of traffic. He testified that, inpreparation for making a left turn onto California Avenue, helooked over his shoulder prior to moving into the left lane and sawa vehicle behind the motorcycles being driven by his friends whowere also traveling in the right lane of traffic. He stated that,as he moved into the left lane, the automobile being driven by thedefendant, "shot" from behind his friends' motorcycles into theleft lane of traffic and struck the left rear of his motorcycle. The plaintiff introduced evidence of the injuries he suffered as aresult of the collision and the damages he sustained. In contrast,the defendant testified that she was driving her automobile in anortheasterly direction in the left lane of traffic on Ogden Avenuewhen the plaintiff, driving a motorcycle in the right lane,attempted to make a U-turn directly in front of her car. Accordingto the defendant, she tried to stop, but the right front fender ofher car struck the left rear of the plaintiff's motorcycle. Thedefendant introduced evidence of the damages to her vehicle as aresult of the collision. Neither the plaintiff nor the defendantintroduced evidence of any cause of the collision other than thenegligence of the other.

The trial court instructed the jury, both orally and inwriting, as to the burdens placed upon the respective parties. Theinstruction given was Illinois Pattern Jury Instruction No. B21.04(IPI (Civil) No. B21.04) which directed the jury as follows:

"In this suit, there is not only the complaint ofthe Plaintiff but also the counterclaim of the defendant.

Because there is a counterclaim in this case[,] youmay reach one of four results.

First, you may find for the Plaintiff on hiscomplaint and against the Defendant on her counterclaim.

Second, you may find for the defendant on hercounterclaim and against the Plaintiff on his complaint.

Third, you may find against both the Plaintiff onhis complaint and the Defendant on her counterclaim.

Fourth, you may find for both, [sic] the Plaintiffon his complaint and the Defendant on her counterclaim.

In order for the Plaintiff to recover, he has theburden of proving each of the following propositions:

First, that the Defendant acted or failed to act inone of the ways claimed by the Plaintiff as stated to youin these instructions, and in so acting or failing toact, the Defendant was negligent;

Second, that the plaintiff was injured;

Third, that the negligence of the Defendant was aproximate cause of the injury to the Plaintiff.

If you find from you[r] consideration of all of theevidence that any of these propositions has not beenproved, then your verdict should be for the Defendant asto the Plaintiff's complaint. On the other hand, if youfind from your consideration of all the evidence that allof these propositions have been proved, then you mustconsider Defendant's claim that Plaintiff wascontributorily negligent.

As to that claim, Defendant has the burden ofproving each of the following propositions:

A: [sic] That the Plaintiff acted or failed to actin one of the ways claimed by the Defendant as stated toyou in these instructions, and that in so acting orfailing to act, the Plaintiff was contributorilynegligent;

B. That Plaintiff's contributory negligence was aproximate cause of his injury.

If you find from your consideration of all theevidence that the Plaintiff has proved all thepropositions required of the Plaintiff and that Defendanthas not proved both of the propositions required of theDefendant, then your verdict should be for the Plaintiffand you will not reduce the Plaintiff's damages.

If you find from your consideration of all theevidence that the Plaintiff has proved all thepropositions required of the Plaintiff and that Defendanthas proved both of the propositions required of theDefendant, and if you find that the Plaintiff'scontributory negligence was greater than 50% of the totalproximate cause of the injury or damage for whichrecovery is sought, then your verdict should be for theDefendant.

Finally, if you find from your consideration of allthe evidence, that the Plaintiff has proved all thepropositions required of the Plaintiff and that Defendanthas proved both of the propositions required of theDefendant, and if you find that the Plaintiff'scontributory negligence was 50% or less of the totalproximate cause of the injury or damage for whichrecovery is sought, then your verdict should be for thePlaintiff and you will reduce the Plaintiff's damages inthe manner stated to you in these instructions.

In order for the Defendant to recover on hercounterclaim, she has the burden of proving each of thefollowing propositions:

First, that the Plaintiff acted or failed to act inone of the ways claimed by the Defendant as stated to youin these instructions, and in so acting or failing toact, the Plaintiff was negligent;

Second, that the Defendant's property was damaged;

If you find from your consideration of all of theevidence that each of these propositions has not beenproved, then your verdict should be for the Plaintiff asto the Defendant's counterclaim. On the other hand, ifyou find from your consideration of all the evidence thateach of these propositions have been proved, then youmust consider the Plaintiff's claim that Defendant wascontributorily negligent.

As to that claim, the Plaintiff has the burden ofproving each of the following propositions:

A. That the Defendant acted or failed to act in oneof the ways claimed by the Plaintiff as stated to you inthese instructions and that in so acting, or failing toact, the Defendant was contributorily negligent;

B. That the Defendant's contributory negligence wasa proximate cause of the damage to his [sic] property.

If you find from your consideration of all theevidence that the Defendant has proved all thepropositions required of the Defendant and that thePlaintiff has not proved both of the propositionsrequired of the Plaintiff, then your verdict should befor the Defendant on the counterclaim and you will notreduce the Defendant's damages.

If you find from your consideration of all theevidence that the Defendant has proved all thepropositions required of the Defendant and that thePlaintiff has proved both of the propositions required ofthe Plaintiff, and if you find that the Defendant'scontributory negligence was greater than 50% of the totalproximate cause of the injury or damage for whichrecovery is sought, then your verdict should be for thePlaintiff on the Defendant's counterclaim.

Finally, if you find from your consideration of allthe evidence, that the Defendant has proved all thepropositions required of the Defendant and that thePlaintiff has proved both of the propositions required ofthe Plaintiff, and if you find that the Defendant'scontributory negligence was 50% or less of the totalproximate cause of the injury or damage for whichrecovery is sought, then your verdict should be for theDefendant on the counterclaim and you will reduce theDefendant's damages in the manner stated to you in theseinstructions."

Following its deliberations, the jury returned verdicts infavor of the defendant on the plaintiff's complaint and in favor ofthe plaintiff on the defendant's counterclaim. Thereafter, theplaintiff filed a post-trial motion, requesting that the trialcourt enter a judgment notwithstanding the verdict or, in thealternative, grant the parties a new trial on the issue of damagesonly or a new trial on all issues.

The trial court granted the plaintiff's post-trial motion, setaside the jury's verdicts, and ordered a new trial. In so doing,the trial court found that the verdicts were inconsistent andagainst the manifest weight of the evidence, stating:

"I think that in this closed universe of facts whichwere elicited in this trial, there has to be a logicalresult. And the jury has to make a choice. It's notpossible -- not logically possible to find that anaccident occurred without being anyone's fault."

Thereafter, the defendant filed a timely petition for leave toappeal pursuant to Supreme Court Rule 306(a)(1) (166 Ill. 2d R.306(a)(1)), which this court granted.

In urging reversal of the trial court's order granting a newtrial, the defendant argues that the jury's verdicts were notagainst the manifest weight of the evidence or inconsistent. Herarguments seem to rest on the proposition that the jury could havefound that "each party failed as to its required burden of proof"and, therefore, properly found in her favor on the plaintiff'scomplaint and in favor of the plaintiff on her counterclaim. Theplaintiff contends that, in the absence of any evidence of anintervening cause of the collision, either the plaintiff or thedefendant must have been negligent. As a consequence, he arguesthat the jury's verdicts were inconsistent and the trial courtproperly set the verdicts aside and ordered a new trial. We agreewith the plaintiff.

In ruling on a motion for a new trial, the court weighs theevidence and sets aside the verdict and orders a new trial if theverdict is against the manifest weight of the evidence. Mizowek v.DeFranco, 64 Ill. 2d 303, 310, 356 N.E.2d 32 (1976). A verdict isagainst the manifest weight of the evidence when an oppositeconclusion is clearly evident or in circumstances where the jury'sfindings are unreasonable, arbitrary, or not based upon any of theevidence. Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508(1992). A trial court's ruling on a motion for a new trial willnot be overturned on appeal unless it amounts to an abuse ofdiscretion. Maple, 151 Ill. 2d at 455.

Verdicts are legally inconsistent when they are absolutelyirreconcilable and unsupported by any reasonable hypothesis. Kleiss v. Cassida, 297 Ill. App. 3d 165, 175-76, 696 N.E.2d 1271(1998). As noted earlier, this case involves a two vehiclecollision. Both vehicles were traveling in the same direction on Ogden Avenue when the right front fender of the car being driven bythe defendant struck the left rear of the plaintiff's motorcycle. Each party charged the other with negligence proximately resultingin the collision. Neither party introduced evidence of a cause ofthe collision other than the negligence of the other. Further, itis undisputed that the plaintiff suffered personal injuries as aresult of the collision and the defendant's car was damaged. Nevertheless, the jury returned a verdict in favor of the defendanton the plaintiff's complaint and in favor of the plaintiff on thedefendant's counterclaim. To do so, the jury must have determinedboth that the plaintiff either failed to prove that the defendantwas negligent or failed to prove that her negligent acts were theproximate cause of his injuries and that the defendant eitherfailed to prove that the plaintiff was negligent or that hisnegligent acts were a proximate cause of the damage to her vehicle. However, in the context of the facts of this case such a hypothesisis unreasonable. In the absence of any evidence of an interveningcause of the collision, one or both of the parties must necessarilyhave been negligent. Further, because there was but a singleaccident involving only two drivers, it would be impossible to findthat the contributory negligence of both drivers was greater than50% of the total proximate cause of the collision.

In the case of Barrick v. Grimes, 308 Ill. App. 3d 306, 720N.E.2d 280 (1999), the Fourth District of the Appellate Court wasfaced with a factual circumstance quite similar to this case. Barrick involved a negligence action resulting from a collision ata controlled intersection between a car driven by the plaintiff anda truck driven by the defendant. The plaintiff sued the defendantseeking damages for personal injury and property damage. Thedefendant filed a counterclaim against the plaintiff also groundedin allegations of negligence, seeking a recovery for propertydamage. The evidence was conflicting as to which driver enteredthe intersection in violation of a red light. Barrick, 308 Ill.App. 3d at 307. As in this case, the jury returned a verdict forthe defendant on the plaintiff's complaint and in favor of theplaintiff on the defendant's counterclaim. However, unlike thiscase, the trial court denied the plaintiff's post-trial motionbased on inconsistent verdicts. Barrick, 308 Ill. App. 3d at 309. In affirming the trial court, the Barrick court found that theverdicts were not inconsistent, stating that the jury could havedetermined that neither party proved that the other was negligentor that each failed to prove that the others' negligence was aproximate cause of the damages for which they sought recovery. Thecourt went on to state that the jury may well have felt that theevidence of which vehicle had the green light was so conflicting,inconclusive, and unsatisfactory that it could not determine whichparty was negligent. Barrick, 308 Ill. App. 3d at 310.

We most respectfully decline to follow the reasoning of theBarrick court. Either the plaintiff or the defendant entered theintersection in violation of a red light and, as consequence, oneor the other of the parties was negligent as there was no evidenceof any other cause of the collision. If the jury was unable todetermine which of the parties was negligent, a mistrial shouldhave been declared and a new trial ordered. We believe that thejury's verdicts finding neither party negligent are irreconcilablyinconsistent.

Similarly, we are at a loss to reconcile the jury's verdictsin this case. Either the plaintiff was negligent when he turned infront of the defendant's vehicle or the defendant was negligent inthe manner in which she changed lanes, or both. In the absence ofevidence of any other cause of the collision, there is simply noother possibility. As a consequence, finding neither party atfault is against the manifest weight of the evidence, as one of theparties had to have been 50% or more at fault.

Based upon the foregoing analysis, we find that the trialcourt did not abuse its discretion when it set aside the jury'sverdicts and ordered a new trial. Accordingly, we affirm the trialcourt's judgment and remand this cause to the circuit court forfurther proceedings.

Affirmed and remanded.

HARTMAN and SOUTH, JJ., concur.