*1 reasons, For all the foregoing circuit court of judgment Warren affirmed.
Affirmed. MILLER, JJ.,
GREEN and concur. CLARKSON, WRIGHT, Plaintiff-Appellant, LARRY Defend- WILLIAM
ant-Appellee. District No. Third 82 — 659 Opinion 17, 1984. January filed BARRY, J., dissenting. Burnett, *2 Smith, Ltd., Peoria,
Robert of Berry W. Lester for appellant. Cooper Duncan B. III Philip Meisinger, and R. Heyl, Royster, both of Allen, Peoria, Voelker & appellee. for
PRESIDING JUSTICE STOUDER delivered the opinion of the court:
This is an from a appeal judgment of the circuit court of Peoria entered the return of a jury verdict for the plaintiff-ap- pellant, Clarkson, Larry against defendant-appellee, William Wright, $3,620 with an finding additional comparative neg- 50% ligence on part of Clarkson. 28, 1980,
On February driving Clarkson was his employer’s auto- mobile north on Monroe Street in Peoria. As he driving, he ap- proached the intersection of Monroe and Hayward streets. Clarkson’s lane of traffic was not regulated a traffic by signal and was not re- quired stop. There was a sign on stop Hayward. Wright was driv- ing a truck on westbound Hayward and at the intersection. stopped He pulled forward on to Monroe, saw Clarkson’s car towards coming him, and stopped while in Clarkson’s lane of traffic. car Clarkson’s then collided with Wright’s truck. The officer investigating police is- Wright sued a citation for failure to yield right way, which the defendant Clarkson subsequently pled guilty. suffered various in- a juries as result of the collision. He filed suit seeking damages for alleged which were the result of the defendant’s negli- a gence. Following jury trial, defendant was found In negligent. addi- tion the jury found plaintiff to be 50% and the negligent jury award was therefore reduced one half. by appeal, plaintiff On raises (1) two issues: whether the trial court erred in certain refusing give of plaintiff’s instructions; tendered jury the trial court erred in motion for a new trial as to or, alternative, a motion a new trial as to all issues. affirm. We trial,
At instructions, 27, 33, tendered three Nos. the effect of the regarding violation of a statute the theory of the case. All three instructions were the trial rejected by of these instructions give any that failure to Plaintiff contends
court. disagree. reversible error. We constitutes instructions give jury entitled to While were not violation, the instructions tendered of a statutory the effect 27 was the case. Instruction No. to the circumstances of applicable a passing of vehicles after concerning a statute movement based on occurred after in this case Since the accident right way sign. yield was not relevant. this instruction passed stop sign, the defendant not controlled with an intersection Instruction No. 33 dealt bar, in- the case at this was a stop sign traffic Since there signs. instructions were Inasmuch as these inapplicable. struction is also case, their presentation to the circumstances applicable irrelevant and would have introduced confusing would have been jury rejection error in the trial court’s into the case. We find no issues these instructions. court, the trial No. 34 was also refused
Plaintiff’s instruction jury. 8 to the instruction No. instead issued defendant’s which that, judgment, plaintiff’s in its doing trial court’s reason for so on the issues of instruct the adequately instruction did court’s It is within the trial dealing plaintiff’s negligence. case with the exer shall which instruction be discretion to determine unless has been will not disturbed on review cise of discretion *3 Ill. 3d 304 (1973), App. 15 (Schmidt abused. v. Blackwell clearly of discretion here. 113.) N.E.2d We see no such abuse erred in refusing the trial court Plaintiff’s second issue is whether damages the issue of a new trial on grant to motion for trial on all the issues. alternative, his motion for a new or in the to refusing court erred in his contention that the trial He bases three arguments. his motion on failure
First, concerning plaintiff’s that evidence he contends the regarding Evidence admitted. improperly to use a seat was mitigating in introduced for its relevance may nonuse of a seat belt be the liabil question not introduced on although it be damages, 2d 91 Ill. (1968), v. McClellan (Mount or fault. ity evidence, the this introducing foundation 329.) lay proper To a a (2) of a seat belt availability the defendant must establish in the the seat the failure to use connection between causal 901, 358 Ill. Plate (Dudanas v. sustained. juries dis met. We was requirement contends neither 1171.) Plaintiff N.E.2d agree. uncon- belt, there was the'availability of respect
With How- car. in plaintiff’s were installed that seat belts tested evidence at- he had on which the last occasion that on ever, testified plaintiff collision, it not work. would prior the seat belt to use tempted seat belt. We not an available Therefore, argues, nonavaila- to establish not sufficient believe time in at some to work Failure of the seat belt of a seat belt. bility the of the accident that on the day to prove is not sufficient past in the the defect established Had the plaintiff did not work. seat belt remedy problem, chance to he had not had a and that seat belt here, how- not the situation Such is a different result. there be nor past not work in the seat belt did why do not know ever. We the accident. We believe not work on the do we know did of a is sufficient to establish evidence of the installation evidence countervailing of the seat belt absence nonworkability of the seat belt. regarding the fail-
The a causal connection between requirement proving also met. injuries to use the seat and the sustained was ure reconstructive sur- of Dr. a deposition Corley, plastic evidence in of in- reducing type that seat were helpful stated belts geon, Etten, a testi- safety expert, suffered. Dr. Van seat-belt juries plaintiff he would have fied that if had been is sufficient evi- he did in the accident. This sustained foun- causality. requirements laying proper dence of Since both met, the nonuse of the seat belt was dation were evidence admitted. properly argument
Plaintiff’s second
is that the court erred
on what
give
jury guidance
instruction No. 32 to
give plaintiff’s
of prior
effect
introduced
defendant
evidence
no error here.
suffered
We find
subsequent injuries
by plaintiff.
already
the same matters
cov
Plaintiff’s
instruction covered
proposed
result,
could properly
instructions. As a
the trial court
ered
other
Delgado (1978),
63 Ill. App.
refuse the instruction. Kofahl
Plaintiff’s is that verdict There evidence to the manifest of the evidence. contrary weight $3,897. The deter $3,120 wages of lost and medical bills $3,620. claims this verdict is mined the to be Plaintiff inade obviously and the determination supported by *4 quate. disagree. We the determina- higher are than plaintiff’s special
While tion, First, there was evi- there are other factors to be considered. dence of of the seat There was that had nonuse belt. used, As injuries would have been lessened. earlier, discussed nonuse of a seat belt be taken into account in Second, mitigating damages. introduced regarding prior and This subsequent injuries. could also have affected the jury’s determination.
The amount of a verdict is with the largely discretionary jury and will not be unless it is against weight disturbed manifest of the case, evidence. In view of the evidence in this do we not find de- against termination to be the manifest weight evidence. reasons, For the abovementioned the judgment of the circuit court of Peoria is affirmed.
Affirmed.
SCOTT, J., concurs. BARRY, dissenting:
JUSTICE
I disagree with my colleagues.
The plaintiff on contends that appeal the trial court erred in alia, inter because, new trial the defendant failed admitting establish the foundation for evidence of the plaintiff’s nonuse of a I agree seat belt. with the this issue and would hold that a new trial should granted. have been guidance Mount, we said in Eichorn v.
Following general Olson 587, 593, 32 Ill.
jury instructions on the nonuse of seat belts:
“In order instruction, to be entitled to such an the defendant must prove, evidence, a by competent causal connection be- tween the plaintiff’s nonuse of an available belt and the injuries and damages sustained.”
Therefore the two-fold foundation to be satisfied for the introduction Dudanas evidence, of such recognized and as subsequently (plain tiff’s of an expert specified wearing how available seat belt would and Kassela v. Stonitsch (1978), 57 Ill. limit injuries), certain of the N.E.2d 608 reference to seat belts (any deprived plaintiff, who did not know his seat of a is, fair trial —and error), was reversible as indicated “(1) availability of a seat belt and a causal connection be tween the failure to use the seat belt and the sustained.” of the seat must be established
Obviously availability evidence, case, first. party choosing to use the as bears any the burden of the defendant. The of evidence proof here, quantum — preponderance, needed establish must be at least a
235
the
show that
to
merely
It
not sufficient
civil standard.
general
re-
also
The defendant was
in this case.
a belt
with
equipped
car was
that
the belt was
the evidence
of
aby
preponderance
to
quired
prove
of
review
thorough
My
considered “available.”
if it was to be
usable
there was a
that
acknowledged
that
the plaintiff
the record reveals
accident,
the
the
of
car,
he
it did
the seat belt
to use
attempted
that
the last time he
but testified
the
of
regarding availability
other
not function.
that
the
who indicated
engineer
the
seat
was from
defendant’s
the
not enter
vehi-
belt,
that
did
with a seat
but
equipped
car was
evi-
Therefore,
“availability”
the only
more.
anything
cle to determine
the
when
but
the car was
with
equipped
dence was that
it,
inoperable.
to use
it was
attempted
last
plaintiff
usable,
was,
fact,
de-
that
the seat belt
The lack of evidence
for present-
foundation
“availability”
the
defendant’s
prong
feated
no need for
Consequently,
defense.”1
“mitigation
ing
foundation, and
to
lay
defendant’s attempt
to rebut
plaintiff
judicially-created
party
seat
1Although neither
has asked us to reconsider
negligence,
“defense,”
grave
comparative
I
that under the law of
have
doubts
Mount, Dúdanos,
Kassela
and other
Illinois
into existence since
which has come
considering
cases,
liability
their minds
juries
expected to dismiss
from
can be
where,
specific
“mitigation
damages,” particularly
there is no
medical evi
as
the use of a
identifying
been reduced or eliminated
dence
which
have
principles underlying the
my opinion
In
the time has come to reevaluate
seat belt.
Mount. Exten
years
passed
than 15
have
since
admission of seat belt evidence. More
con,
developments,
pro
the relative values of vari
technological
studies
and
sive
spo
supreme court has never
systems
should be considered now. Our
ous
of restraint
public policy
legislature
only recently
has
declared our
ken to the issue. And
Perhaps
only.
the onset of com
the mandated use of seat belts to infants
has limited
reviewing this area of the
parative negligence
that Illinois courts should be
dictates
jurisdictions
body
authority
taking
in sister
into consideration the extensive
law
admissibility
seat
that
of evidence of nonuse of
belts
which have considered
permit
should not be
majority
concluded that such evidence
of those courts have
See, e.g.,
v. Bell
Amend
presented
as
in the case before us.
ted under circumstances
392,
124,
138;
(1973),
Fischer v. Moore
(1977),
183 Colo.
517
89
570 P.2d
Wash.
Haynes
666;
Doehring (1970),
Miller v.
498,
458;
Birtton v.
286 Ala.
242 So.2d
P.2d
228,
293;
(1968),
Miller v. Miller
(Mo.
1970),
273 N.C.
160 S.E.2d
App.
454 S.W.2d
1198;
Nash v. Kamrath
66,
Toplin
65;
(1981),
App.
v. Clark
6 Kan.
626 P.2d
407,
161; Stallcup
Taylor (1970),
App.
530,
Tenn.
(1974),
App.
62
21 Ariz.
521 P.2d
119,
416;
(1969),
The has shifted reached, court, sion in this case to the as did the trial that the defense” “mitigation presented erroneous conclusion could be Kassela). This resulted in an unfair trial It is jury. (see appar- nonuse of plaintiff’s ent to me that admission of the evidence of verdict. unrebutted jury’s the seat belt in this case controlled and se- fractured wrist damages for the evidence of special evi- $2,509 and the unrebutted facial lacerations incurred was rious the non- $3,120. If evidence of lost wages of the plaintiff’s dence awarded had refused use of the seat belt $5,629. (Thereafter reduced at least would have had to have been parties’ compara- determination jury’s 50% based $3,620 (which the unreduced award tive negligence.) Obviously of the reduc- $1,810 after application into an award of only translated that negligence) proves for the comparative tion here. “mitigate” damages used to belt evidence was case for a new trial. and remand this I would reverse