Wojtowicz v. Cervantes
Case Date: 09/19/1996
Court: 1st District Appellate
Docket No: 1-93-4264
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October 17, 1996 No. 1-93-4264 ZYGMUNDT WOJTOWICZ, as Special Administrator of the Estate of Tomasz Golinski, Deceased, Plaintiff-Appellant and Cross Appellee, v. PAUL CERVANTES and HOLMES FREIGHT LINES, INC., Defendants-Appellees and Cross Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County. Honorable Howard Miller, Judge Presiding. JUSTICE O'BRIEN delivered the opinion of the court: Plaintiff's cause of action arises from a fatal truck-bicycle accident occurring on May 29, 1987, at the intersection of Addison and California Streets in Chicago. Defendant Paul Cervantes, a driver for Holmes Freight Lines (Holmes), crushed plaintiff's decedent, 15-year-old bicyclist Tomasz Golinski, under the right rear tandem tires of his semi tractor-trailer. Plaintiff filed a wrongful death complaint against Cervantes and Holmes on June 17, 1987. Following a jury trial, plaintiff obtained a verdict against defendants. The defendants filed a post-trial motion seeking, inter alia, judgment notwithstanding the jury's verdict or, alternatively, a new trial. Citing a statement made by plaintiff's counsel during closing argument regarding special interrogatories, the trial court granted defendants' motion for a new trial. Plaintiff appeals from the trial court's interlocutory order pursuant to Supreme Court Rule 306 (134 Ill. 2d R. 306). Holmes cross-appeals, alleging the trial court erred in failing to grant its post-trial motion for judgment notwithstanding the verdict and in refusing to grant its pre-trial motion to dismiss for lack of due diligence in service of process. OPINION I. Service of Process The accident at issue in this case occurred on May 29, 1987, and plaintiff timely filed suit on June 17, 1987. According to the return of service filed with the court clerk, defendant Cervantes was personally served on June 20, 1987. According to a statement by its agent for receipt of service of process, defendant Holmes was served on June 22, 1987; however, no return of service was filed. More than two years later, on September 29, 1989, summons was again served on Holmes and proof of service properly filed with the court on October 11, 1989. Citing Werner v. W.H. Shons Co., 341 Ill. 478, 486, 173 N.E. 486, 490 (1930), Holmes contends that until plaintiff's affidavit of compliance is filed with the clerk, the trial court can have no basis for determining whether service was proper and therefore the trial court erred in refusing to grant its pretrial motion to dismiss for lack of due diligence in service of process. We disagree. Supreme Court Rule 103(b) provides in pertinent part: "If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice." 134 Ill. 2d R. 103(b). However, Supreme Court Rule 102(d) clearly states that "[f]ailure of the officer or other person to return the summons or file proof of service does not invalidate the summons or the service thereof, if had." 134 Ill. 2d R. 102(d). Supreme Court Rule 12(b)(1) further provides that service may be proved by written acknowledgement signed by the person served. 145 Ill. 2d R. 12(b)(1). There is no requirement that the acknowledgement be in the form of a formal affidavit. Plaintiff's response to defendant's motion to dismiss was filed with the court on December 29, 1989. Attached thereto were two exhibits relevant to the Rule 103(b) issue. Exhibit A was a letter dated December 19, 1989, to plaintiff's attorney from CT Corporation System, Holmes' registered agent for receipt of service of process. Exhibit B was an undated document entitled "Affidavit." Both documents were signed by CT Corporation System's employee Debra Schull and stated that she had received service of process for Holmes regarding the instant action on June 22, 1987. Accordingly, on February 8, 1990, when the trial court decided Holmes' Rule 103(b) motion, it had before it a binding admission by Holmes' agent that process had in fact been received on June 22, 1987. Holmes' motion to dismiss was therefore properly denied. See Burton v. Autumn Grain Transport, Inc., 222 Ill. App. 3d 755, 757, 584 N.E.2d 377 (1991). II. Closing Arguments Following a two-week trial, the jury returned a verdict awarding plaintiff $2,533,538 for the wrongful death of Tomasz Golinski. On May 11, 1993, the circuit court entered a judgment on the jury's verdict. In its post-trial motion, defendants sought a new trial, in part, on grounds the following passage from plaintiff's closing argument impermissibly advised the jury to harmonize its general verdict with its answers to the special interrogatories. The comment at issue was as follows: "MR. OLSON: Now, there will be instructions that ask you to consider whether Tom was comparatively negligent, and I submit to you that Tom was not. There will be what's called a special interrogatory, questions that you'll have to answer in addition to going through the verdict forms. I submit to you that they should be answered in a very particular manner because if they're inconsistent with the general verdict, there's a big problem. MR. LOWERY: Objection, your Honor. THE COURT: Sustained. MR. LOWERY: Ask that the jury disregard it. THE COURT: Disregard it." (Emphasis added.) Following closing arguments, the special interrogatories were given to the jury over plaintiff's objection. They asked the jury to decide (1) whether plaintiff proved the defendant negligent, (2) whether the defendant proved that plaintiff's decedent was contributorily negligent, and (3) whether defendants proved that plaintiff's contributory negligence exceeded 50%. Answers to the foregoing questions were generally consistent with the general verdict form, which held for plaintiff's decedent and attributed 33 % comparative negligence to plaintiff's decedent. In granting defendants' motion for a new trial, the trial court reasoned that there was "error" in counsel's statement to the jury in the closing arguments regarding the special interrogatory on the issue of comparative negligence, that the statement should not have been permitted to stand, and that the error was per se reversible. On appeal, plaintiff argues the grant of a new trial constituted an abuse of discretion because the closing argument comment by plaintiff's counsel did not constitute reversible error. In addition, both plaintiff and defendants raise procedural and evidentiary issues to be addressed by this court in the event the order for a new trial is affirmed. An attorney's remark to the jury concerning special interrogatories is per se reversible error where it advises the jury of their effect upon the general verdict. Sommese v. Maling Brothers, Inc., 36 Ill. 2d 263, 267-68, 222 N.E.2d 468, 471 (1966). However, a closing argument comment that merely requests that the jury answer its special interrogatories "consistent" with the verdict is not per se reversible error providing a curative instruction is given. See O'Neil v. Continental Bank, N.A., 278 Ill. App. 3d 327, 662 N.E.2d 489 (1996) (collecting cases). We have reviewed the court's decision in Sommese and its progeny and determined that in cases of per se reversible error there are two common scenarios. The jury was told either that the special interrogatory superseded the general verdict (Sutton v. Peoples Gas Light & Coke Co., 119 Ill. App. 2d 471, 256 N.E.2d 19 (1970)), or that if plaintiff was to recover money damages, the special interrogatory had to be answered in a particular way (Massa v. G. Helmkamp Excavating & Trucking Co., 145 Ill. App. 3d 60, 67- 68, 495 N.E.2d 648 (1986); Batteast v. Wyeth Laboratories, Inc., 137 Ill. 2d 175, 560 N.E.2d 315 (1990), Lozado v. City of Chicago, 279 Ill. App. 3d 285, 664 N.E.2d 333 (1996)). In cases that found no per se reversible error, there are also two common scenarios. The jury was told either that answering "no" to the particular special interrogatory was saying the plaintiff was at fault and shouldn't recover (Moore v. Checker Taxi Co., 133 Ill. App. 2d 588, 592, 273 N.E.2d 514 (1971); Burns v. Howell Tractor & Equipment Co., 45 Ill. App. 3d 838, 848, 360 N.E.2d 377 (1977); Kosinski v. Inland Steel Co., 192 Ill. App. 3d 1017, 1028, 549 N.E.2d 784 (1989); Blevins v. Inland Steel Co., 180 Ill. App. 3d 286, 291, 535 N.E.2d 972 (1989)), or that the special interrogatory and general verdict should be consistent, coupled with a curative isntruction reminding the jury to answer the special interrogatory based upon the evidence (O'Neil, 278 Ill. App. 3d 327, 662 N.E.2d 489). While, as the court in Blevins recognized, the distinction may seem slight, it is an important one. In cases of per se reversible error, the offensive comments were outcome driven. Each jury was informed that if it wanted the plaintiff to get money, the special interogatory controlled (or that it had to be answered in a certain way). In cases of no per se reversible error, each jury was asked to answer the special interrogatory based upon the evidence. We find no case other than O'Neil where the single error alleged on appeal was that counsel's closing argument asked the jury to harmonize its special interrogatory response to its general verdict. As previously noted, the O'Neil case held this type of error could be cured by appropriate instructions to the jury. Here, as in O'Neil, the single error alleged on appeal is that counsel for plaintiff informed the jury that if the special interrogatories were "inconsistent with the general verdict, there's a big problem." An objection was made, sustained, and the jury informed to disregard. Defendants nevertheless argue that counsel's comment suggesting "a big problem" informed the jury of the purpose and legal effect of the special interrogatories. We disagree. Although the comment was inadvisable, it cannot be said to have been result driven in the same way that a comment stating "if you want plaintiff to win, do 'X'" is, nor can it be said to have patently informed the jury that the interrogatories superseded the general verdict. In this context, "big problem" could have any number of interpretations. There is no suggestion in the record that the jury improperly considered the remark during its deliberations. Indeed, the jury's verdict itself demonstrates that counsel's comment was of no effect and that the grant of a new trial was an abuse of discretion. The jury's verdict and its answers to the special interrogatories indicate that the jury found defendants negligent (rejecting defendants' argument decedent was tossed under Cervantes' truck by a hit-and-run driver) and attributed some negligence to plaintiff's decedent (rejecting plaintiff's argument there was no comparative negligence whatsoever). Moreover, the percentage of fault assigned to plaintiff's decedent by the jury was substantially less than 50%, further supporting the conclusion that it had not, in fact, answered the interrogatories merely to preserve its general verdict, but rather had answered them upon the evidence presented. Accordingly, we conclude that counsel's comment did not result in prejudice to the defendants. See Thorsen v. City of Chicago, 74 Ill. App. 3d 98, 392 N.E.2d 716 (1979); Lozado, 279 Ill. App. 3d 285, 664 N.E.2d 333. After carefully reviewing the court's decision in Sommese and considering the relevant cases from our own court, we find no per se reversible error here, and what error did occur was promptly cured by defendants' objection and the trial court's instruction to disregard. Counsel's single comment was far less serious than the statement made to the jury in Sommese or any case that has followed it. III. Judgment Notwithstanding the Verdict Defendants cross-appeal arguing they were entitled, not merely to a new trial, but rather to a judgment notwithstanding the verdict because (1) plaintiff failed to prove proximate cause and (2) the jury verdict is against the manifest weight of the evidence. We disagree. A negligence action requires proof of duty, breach, injury and causation. Waite v. Chicago Transit Authority, 157 Ill. App. 3d 616, 510 N.E.2d 1176 (1987). Although it is a jury question whether Cervantes' actions were the proximate cause of plaintiff's damages (Illinois Bell Telephone Co. v. Purex Corp., 90 Ill. App. 3d 690, 697, 413 N.E.2d 106 (1980)), the court has the power to direct a verdict when all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967). Thus, if plaintiff fails to prove proximate cause, he has not sustained his burden of making a prima facie case and a directed verdict is proper. Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 416 N.E.2d 328 (1981). Defendants argue they are entitled to judgment notwithstanding the verdict because plaintiff presented no expert or eyewitness evidence to establish that Cervantes' alleged negligence was the proximate cause of decedent's death and proximate cause cannot be inferred from circumstantial evidence unless it excludes all other possible causes for the accident. Anything less, they contend, amounts to impermissible conjecture, guess or speculation as to the cause of decedent's death. We disagree. While defendants are correct in their assertion that liability cannot be predicated upon surmise or conjecture as to the cause of injury (Monaghan v. DiPaulo Construction Co., 140 Ill. App. 3d 921, 489 N.E.2d 409 (1986)), it can be established where there is a reasonable certainty that defendant's actions caused the injury (Whitman v. Lopatkiewicz, 152 Ill. App. 3d 332, 338, 504 N.E.2d 243 (1987)). And, despite defendants' protestations to the contrary, reasonable certainty may be established by inference from circumstantial evidence (McCullough v. Gallaher & Speck, 254 Ill. App. 3d 941, 949, 627 N.E.2d 202, 208 (1993)), which need not exclude all other possible inferences or support only one logical conclusion, but rather must justify an inference of probability, not mere possibility. McCullough, 254 Ill. App. 3d at 949, 627 N.E.2d at 208; Consolino v. Thompson, 127 Ill. App. 3d 31, 33, 468 N.E.2d 422, 424 (1984). We find the case of McKanna v. Duo-Fast Corp., 161 Ill. App. 3d 518, 515 N.E.2d 157 (1987), to be instructive. In McKanna, plaintiff alleged decedent's injuries had been caused by a fall from a ladder to a ceiling hatch that permitted access to the roof. At trial, evidence was introduced regarding certain alleged defects in the ladder and a preoccurrence witness testified he saw decedent place his left hand on the hatch and then turn around in order to descend the ladder from the roof. The jury returned a verdict for plaintiff. Defendant appealed, arguing plaintiff had failed to prove proximate cause. We affirmed, holding that the trial testimony detailing decedent's actions immediately prior to the incident allowed a reasonable inference that decedent had intended to descend the ladder, that the ladder was defective, and that decedent was a safety-conscious worker and was careful on ladders. 161 Ill. App. 3d at 527-28, 515 N.E.2d at 164. Here, as in McKanna, a preoccurrence witness testified he saw decedent riding in the street between the truck and the curb and that decedent appeared to lose his balance when the truck came too close. In addition, the record indicates the truck came to a stop after the accident without having swerved either left or right and that it was 1 to 1 |