*1 MEISTER, MICHAEL Indiv. and as Adm’r of the Estate of Matthew Meis- ter, Deceased, al., Meister, Jr., al., as Next Friend of Michael R. et et
Plaintiffs-Appellants, al., v. DAVIDO. HENSON et Defendants-Appellees.
Third District No. 3—93—0248 Opinion 9, 1993. filed December *2 BRESLIN, J., specially concurring.
Moehle, Associates, Ltd., Swearingen & Washington (Bradley W. Swearingen, counsel), appellants. for Paulsen, Quinn, Johnston, Pretorius,
Scott R. Henderson & of Peoria (W. Johnston, counsel), appellees. Thomas
PRESIDING opinion JUSTICE McCUSKEY delivered the the court: Meister, Meister, Michael R. plaintiffs, Dorothy J. and children, Meister, Meister,
minor R. Rebekah Sarah Michael Meis- ter, Jr., (the Meisters), and the estate of J. Meister appeal Matthew defendants, Andresen, from a judgment Ralph for the and his em- ployee, dispute David O. Henson. This arose from an automobile ac- cident Morton, on December on Interstate 74 near (1-74) trial, Illinois. After a the trial court entered on a judgment verdict in favor of the defendants. The Meisters We affirm. appeal.
At approximately p.m. Ralph December Andre- sen a call from in the received a motorist whose car was stranded lanes, median just of 1-74 between the eastbound and westbound west of the At (Rt. 150) overpass U.S. Route 150 near Morton. about 11:15 Andresen called the Illinois State Police to re- p.m., assistance control and to inform the of their quest police and traffic trooper at the scene. The State Police stated that a would dispatched be scene. Henson, David to assist the employee,
Andresen then called his to nearby stop stranded motorists. Henson proceeded Hen- them and them to the site of their disabled car. pick up drove toward Peoria. Henson son drove the tow truck on 1-74 westbound limit the Rt. 150 speed drove the truck below the because posted overpass was the location icy slippery. approached As Henson car, disabled he lane the left lane right drove from oscillating and decelerated. He activated the tow truck’s amber lights pulled he the truck onto the left shoulder or the median of westbound 1-74. No on the police yet provide had arrived scene requested control, traffic so took no Henson action extricate the car except activating the truck’s winch and rear work lights.
Meanwhile, at p.m., Dorothy driving about 11:50 Meister was her car right lane 1-74 of westbound towards Peoria. Her four minor children were with her in the car. The Meisters were re- turning to the area from and had Chicago experienced inclement weather that night. approached bridge As she the crest of the over Morton, Rt. 150 near she lights saw a set of two white that ap- peared react, to be in her lane. Before she time to Dorothy then set lights observed second of white above the first set. Be- lieving lights lane, to be an in her oncoming vehicle Dorothy be- gan pumping Dorothy’s brakes. As car the overpass, descended her to slow her it attempts begin vehicle caused sliding across the left westbound lane 1-74 and toward Henson’s tow truck. The Meisters’ station wagon collided with the truck near the median be- tween the eastbound westbound lanes of 1-74. Rebe- Dorothy, kah, Jr., Michael and Sarah were injured. Matthew Meister died in *3 the accident.
On December the a against Meisters filed complaint the defendants. Their complaint alleged the negli- defendants were gent in causing Dorothy Meister lose of to control her vehicle and in violating sections of 1303(a)(l)(j) (a)(l)(k) the Illinois Ve- hicle (the Code Code) 95V2, Rev. (Ill. Stat. ch. pars. 11—1303 (a)(l)(j), (now 625 (a)(l)(k) ILCS 5/ll-1303(a)(l)(j), (a)(l)(k) (West 1992))). prohibit These sections stopping or a vehicle on any highway controlled-access or the area of a between di- vided highway, except (1) necessary when to avoid conflict with traffic, other when (2) necessary law, to at the comply (3) direction a police of officer.
The record reveals trial sharply conflicting testimony regarding the exact of lights location the tow truck and on at the which were time of the collision. Henson testified he drove his truck completely off the of paved portion the lanes and into the westbound of 1-74 grassy median between the eastbound and lanes to await westbound the assistance of the trooper. State that prior Henson also stated to the only collision he had lights. activated his How- oscillating amber ever, Dorothy Meister testified just that before the entire impact, that also claimed Dorothy
area the truck was illuminated. behind the reflector the across white protruded truck’s front wheel right line lane portion just the of the left westbound and onto traveled right the rear of the the side her hit wagon before station right tow truck. the addition, they Henson testified knew
In both and Andresen ice and haz- slippery Rt. tended form and become overpass re- other roads and 1-74 portions ardous in winter weather when that to assist they attempted clear. also testified never They mained con- the overpass police stranded vehicles near without testi- trol of a hazard. Henson provide warning potential traffic and attempting for Police to arrive before fied he waited the State night the car on the accident. remove disabled evidence, a verdict the the trial court directed At close that the defendants violated section alleging the count court held a tow truck driving The 1303(a)(l)(k) of Code. of the case onto under the circumstances a median was necessary in the car median. render aid to disabled four of Meisters’ issues proposed The trial court also struck to the instruc- objected The jury. instructions defendants evidence, or by impermissibly duplicitous, unsupported tions as duties. legal of the defendants’ enlarging scope motion, to the presented the court the defendants’ Finally, on whether to determine asking jury special interrogatory, 1-74 off traveled completely tow truck was Meisters’ court submit- objection, time of the Over the accident. special interrogatory ted The answered the the interrogatory. defendants Jan- returned verdict affirmative on February filed a motion post-trial 1993. The Meisters uary March 1993. denied motion on 1993. The court on March appeal notice of timely Meisters filed verdict was argue jury’s the Meisters first appeal, On the Meis- weight Specifically, the evidence. against the manifest site of the proceeding ters conduct claim defendants’ support car cause of accident. proximate stranded was the knew out that the defendants the Meisters position, point overpass. of the Rt. 150 *4 condition hazardous vicinity in that with- services towing testified never they performed facts, the Meis- Police. From these of the State out the assistance tow negligently ters claim the defendants acted argue the defend- They also or the median. truck on the shoulder
623 proximate ants’ was the cause of the do not negligence collision. We agree with the Meisters’ analysis. proximate cause,
To constitute an must be the natural injury result of a probable negligent reasonably act and be foreseeable by (Ney 74, 79, the actor. v. Yellow 2 (1954), Cab Co. Ill. 2d 117 N.E.2d If a 74.) defendant’s furnishes a condition negligence only making not injury possible, negligence is cause proximate of (Merlo 300, v. injury. (1942), Public Service Co. 381 Ill. 316- 17, 665, 673; 45 N.E.2d v. Thompson County Cook 154 Ill. (1993), 290, 2d N.E.2d Bogovich 609 In v. 294.) Nalco Chemical 439, Co. (1991), 213 Ill. 3d App. plaintiff’s 572 N.E.2d de- cedent driving lost consciousness while and collided with the truck, illegally defendant’s which was parked strip sep- on median arating lanes of traffic. opposing The truck was visible highly due to its illuminated warning lights. The court held truck’s location was not proximate cause the accident because it its had warning lights activated and was readily visible. 213 Ill. Bogovich, 3d App. 442-43, at 572 at N.E.2d v. Long Soderquist 126 (1984), App. Ill. 3d
1153, the defendant was involved an car, accident and parked his with one protruding wheel onto the slightly traveled road, along shoulder. A deputy scene, sheriff had on the arrived but had place no time to oncoming flares warn vehicles. The road hazardous, conditions were as the near bridge the scene of the acci- dent had formed ice. The car plaintiff’s approached the bridge, lost ice, control on the and slid into the defendant’s car. The held court the vehicles on and near not the proximate shoulder were accident, causes of the regardless of precise placement. defendant’s car merely furnished condition for not cau- injury, sation. Finally, since the plaintiff vehicle, had lost control of he his could have done nothing avoid the had he collision even known Long, defendant’s car. 126 Ill. 3d at App. N.E.2d 1156-57.
The Meisters have cited Smith Armor Plus Co. Ill. App. find authority. additional We this case distinguishable. also an Smith involved accident between a truck on the shoulder and an roadway oncoming divided car. Smith, truck on the shoulder had no abandoned lights activated, nor were warning placed devices behind the truck. The defendant provided no whatsoever warning truck’s presence on the shoulder. distinction the instant key case from here, Smith is that herself testified that Dorothy Meister
624 David Henson lights began
she set of white and brake. saw a arriving at oscillating lights upon he his amber testified activated testi- of which Regardless party’s the scene of the disabled vehicle. credible, tow disputes more neither that Henson’s mony party is in the prior truck fashion accident. was illuminated some Here, presented evidence the defendants’ the Meisters onto the traveled of 1-74 the protruded truck have may the of There was also evidence path oncoming traffic. and prior knew hazardous knew of accidents. overpass the was and Bogovick the similar to those in very facts here are truck, at di Henson the tow Andresen’s Long. Ralph David drove of located the median. rection, to scene the stranded vehicle her car over the Rt. 150 she Dorothy overpass, As Meister drove left, col sliding began eventually lost control the car and at liding presented with the tow truck. Evidence the defendants had activated the truck’s amber oscillat indicated that Henson truck provided only of the defendants’ ing lights. presence Bogovich an We find that making possible. condition injury evidence, Therefore, we result Long control the here. based found the tow truck’s jury that the could have conclude of the collision. proximate of 1-74was not cause median if the evidence against weight A is the manifest verdict findings evident or where clearly conclusion is opposite unreasonable, upon any and not based arbitrary are Ill. (Maple evidence. Gustafson there evidence 512-13.) The record shows off the oscillating completely its activated and was lights truck had were lights undisputed road in the median. It trial, can upon Based evidence highly presented visible. evi weight the manifest against not the verdict was say dence. dismissing the erred in next trial court argue
The Meisters 11— of section a violation complaint alleging count in their 95Va, par. ch. Stat. (Ill. of the Code Rev. 1303(a)(l)(k) This (West 1992))). (now 5/ll-1303(a)(l)(k) 625 ILCS 1303(a)(l)(k) part: in pertinent section provides, other to avoid conflict necessary when
“(a) Except of a police the directions traffic, with law or compliance or in ***, no shall: person officer a vehicle: park stand or Stop,
[**] [*] k. In the area between a divided highway, including crossovers.” here,
Under the the trial court held the circumstances conduct Therefore, not di- defendants did violate statute. the court decision, rected a for the its support verdict defendants. court noted for a tow truck to enter a median to ex- necessity tricate a We agree disabled vehicle from median. with the trial court’s decision.
The trial court did not base its decision expressly particular found in exception 1303(a). examining section After record, the statute and the we find conclusion nothing support a *6 that Henson the tow into the median of drove truck at the direction Rather, a police officer. we our the trial agreement base with court’s decision on the in exception 1303(a), found section al 11— lowing a vehicle’s in the median to conflict with avoid other traffic. In of support our we holding, point out that court of review sustain a trial may judgment any court’s on grounds sup ported record, by the of regardless whether the trial court’s reason
ing was correct. Estate Johnson v. Condell Hospital Memorial of 119 Ill. 2d
We note of any giving absence case law construction to the exceptions forth set in section 1303(a). we note Additionally, 11— that tow trucks are not “authorized emergency vehicles” under sec tion of (Ill. 1—105 951/2, Code Rev. Stat. ch. 1—105 par. (now 625 (West ILCS 5/1-105 1992))). Section of the ll-205(c)(l) (Ill. Code Rev. Stat. 951/2, (now ch. par. 205(c)(1) 11— ILCS 205(c)(1)(West 1992))) only exempts authorized emer 5/11— vehicles gency from section 11—1303 of the Code. Consequently, Meisters’ assertion that tow trucks are to the subject requirements 1303(a) section is correct. 11— We find no indicating evidence that Henson his in drove truck the area between the opposing roadways at direction a police officer. Ralph Andresen testified he received a call from the stranded requesting motorist He towing services. called the Illinois State Police to request at the police presence scene. Andresen police told a car would meet the tow truck the scene. He testi- fied he called Henson and him (1) instructed the dis- proceed location, abled car’s (2) wait for the as- State Police to render sistance. scene, When Henson police yet arrived on the no had arrived. The record-is barren of indication that the State Police directed or Andresen Henson to place the tow truck the median Therefore, the “directions of of 1-74. we find
or on left shoulder 1303(a) is not satisfied. officer” section police exception 11— into the Henson the tow truck area we conclude drove “to conflict with other traf- dividing roadways avoid opposing median, from the Henson fic.” To the stranded car remove median, from cars away his truck the shoulder or the tow park of traffic. Had the tow traveling and other vehicles lanes while obstructing awaiting lane traffic substantially truck been extricating or the disabled police actually the arrival while with car, oncoming have direct conflict truck would been circumstances, agree traffic. Based these not violate section finding court’s the defendants did tow or other of the Code. We hold that when a 1303(a)(l)(k) or vehicles stops to render aid to stranded disabled designed vehicle a divided in the area between parks temporarily rendering to the ve- assistance disabled highway purpose there, 1303(a)(l)(k) of section hicle located no violation Code occurs. refusal error to the trial court’s assign Meisters next jury. issues instructions proposed
submit four were follows: instructions proposed defendants’ conduct]
“[The
[**] [*] the East to traffic from (B) approaching Caused confusion working on white by turning lanes of 1-74 the [westbound] lights; warn- and without Stopped suddenly prior their vehicle
(C) *7 pro- is standing or ing stopping, in an area in which Statute; hibited by
* * * traffic at a hazardous condition westbound (I) Created said tow stopping 150 overpass by the location of the Route sliding skidding in the vehicles path immediately or, exer- knew when overpass said defendants] [the care, have known westbound should cise of reasonable and thus overpass said crossing difficulty traffic would have vehicles; to such danger posed said tow truck SEN, to in- failed Defendant, RALPH ANDRE That the (J) assist- HENSON, to await the O. his DAVID employee, struct across proceeding Police before of the Illinois State ance 150 overpass.” Route (B) trial court consolidated the into charges another instruc-
tion; struck it (C) duplicitous charged as and because conduct not alleged (I) (J) struck as complaint; duplicitous; struck due to a charge lack evidence and because it over- supporting stated the duty argue defendants’ of care. The Meisters the trial court’s to give deprived refusal instructions listed jury above them of the opportunity present their theories of the case. We disagree. entitled parties a lawsuit are to have instructed case, respective theories of provided there some evi
dence to support theory. (1992), each v. Nickels 238 Ill. (Lundquist 410, 431, 3d App. 1388.) 605 N.E.2d The trial court has dis cretion in determining which issues have been by raised evi dence and which (Gaines instructions will be read to the v. jury. 569, 576, Townsend (1993), 244 Ill. 3d App. 801- 02.) An issues instruction is long as it is proper succinctly stated without repetition. undue (Jeffers Weinger 132 Ill. App. A N.E.2d new trial 1276.) granted will be for the trial court’s refusal to give a tendered instruction only where prejudice serious to a to a party’s right fair has been Gaines, shown. 244 Ill. 3d at App.
Here, a review Meisters’ issues instructions which were given to the jury demonstrates that the jury was adequately instructed on the addition, theories the case. In no we find re versible error occurred. (B) Instruction was included in substantially instruction (A). (C) Instruction was restated as “Parked said wrecker so right that the front protruded wheel into the left hand 1-74,” west bound import lane which was the in proposed struction (C). Instruction (E), given which was to the jury, incorpo rated the Meisters’ proposed (I). (J) instruction Instruction was not given jury. we find that the trial court did not err in refusing give this instruction. No evidence in the record sup ported sum, (J). inference duty charged instruction we conclude the jury was instructed on the Meisters’ adequately Therefore, theories and (J) instruction properly refused. cannot say the trial judge refusing give abused his discretion in the instructions the Meisters. proposed by
Finally, argue the Meisters that the defendants’ special interrog- atory given. was improperly interrogatory inquired This as follows:
“Do find you the tow truck David being operated by O. Henson was completely off of the of west- traveled *8 628 the for 74 in at stopped position lanes Interstate a
bound in question?” time of the [collision] Meis- The answered the the affirmative. The interrogatory ters argue special interrogatory unduly emphasized now that the attention jury’s exact location the tow truck and diverted on determining negligence from issue the defendants’ based the in- conduct. Meisters’ claim that agree overall We not a ma- a an issue and terrogatory response evidentiary elicits terial issue.
Moreover, disagree argument with the defendants’ relating alleged a material issue vio- interrogatory addresses (Ill. 1303(a)(l)(j) lation of section Illinois Vehicle Code 11— 1991, 953-/2, (now Rev. 625 ILCS 5/ par. ll-1303(a)(l)(j) Stat. ch. (West 1992))). ll-1303(a)(l)(j) prohibits Section 1303(a)(l)(j) “on standing a vehicle controlled-access stopping, contend the front wheel right truck’s highway.” to have must been on the traveled of the road violated portion have particular this argue the statute. addresses They interrogatory a to this find of the and elicits direct answer issue. We part case argument misplaced. the defendants’ is 141 (1986), App.
In Amstar v. Aurora Fast Ill. Corp. Freight 1067, part 3d 490 we held that road’s shoulder purposes for of section highway” “controlled-access 1070.) (Amstar, 141 Ill. 3d N.E.2d at 1303(a)(l)(j). App. Amstar, or in the truck was located the shoulder Under whether the tow purposes, a traveled lane is immaterial. For statute's high- still have located on the controlled-access would been not to de- interrogatory note the did ask way. We further It only requested of the tow truck. precise termine location of the trav- any part truck was situated on jury to find whether the above, pre- the interrogatory eled of 1-74. As indicated material sented no issue. of an for determination eviden-
Rather, interrogatory called a mere finding asks interrogatory An which tiary issue. Hospi- v. James improper. (Gasbarra fact is St. evidentiary always 544, 550.) special A 406 N.E.2d (1979), tal 85 Ill. 3d App. (735 ILCS of-fact. question a material must address interrogatory is an ultimate fact (West 1992).) question A material 5/2—1108 Vulcan Materials rights parties depend. fact which upon 444, 452, Ill. (1992), App. Co. Holzhauer carriage 67 N.E. v. Fehd 203 Ill. Nelson an vehicle. plaintiff approaching which rode turned avoid street into a ditch the carriage slipped icy plaintiff’s *9 trial, court excavated, the At the injuring plaintiff. defendant asking the the to interrogatory jury refused submit defendant’s carriage the right-hand plaintiff’s determine whether the wheel of the the court’s re- entered ditch. Our court affirmed supreme fusal, stating interrogatory that the asked the find an evi- jury Nelson, fact. 203 Ill. at dentiary 124. above,
Based the cited conclude the trial court on cases we Here, the the submitting interrogatory jury. special erred in the interrogatory addressed the location of the truck in relation lanes 1-74. The not on rights parties depend traveled the did the location of the precise pre tow truck. Based the evidence sented, the could have the were jury negligent found without determining the truck’s exact at the time of the position Therefore, collision. the an eviden special interrogatory addressed tiary issue and not a material issue. find we no error from the im- resulting reversible
proper interrogatory. interrogatories are Special upon ruled submitted to the jury (735 the same manner as are instructions. ILCS (West 1992); Gasbarra, 37, Ill. 5/2—1108 85 3d at 406 App. N.E.2d at A 549.) reviewing court will not find reversible error in the submission of a defective special absent interrogatory proof prejudice to complaining party confusion. Bruske v. jury (1969), 132, 136-37, 453; Arnold 44 Ill. 2d 254 v. Hy- N.E.2d Eaves ster (1993), 214, Co. 244 Ill. 3d App. 219.
The Meisters’
reliance Winn v. Inman
119
(1983),
App.
Ill.
836,
3d
457
Winn,
N.E .2d
misplaced.
In
this court
re-
found
versible error in several
jury
interroga-
instructions and
special
tory because the
concerning
evidence
the issues addressed was sub-
stantially conflicting. However,
and the
both the instructions
interrogatory
Here,
applicable
misstated the
law.
have
parties
not directed our attention to
law in
erroneous statements of
Moreover,
instructions to the jury and we have found none.
we
have found that the
was
jury
properly instructed on the applicable
law. In Winn the cumulative effect of the
instructions
erroneous
special
interrogatory
great
was so
as to
plain-
prejudice
Here,
tiffs.
the Meisters
complain
interroga-
one erroneous
only
tory.
result,
As
we
distinguishable.
Winn,
find Winn
Ill.
See
119
App.
840-41,
3d
We purely of the tow truck to be on the location improperly focused record, our we conclude speculative. upon Based review failed their bur carry could have found Meisters easily interrogatory we see how Additionally, den of fail proof. Therefore, submitting caused to the Meisters. error prejudice not the level er did rise to of reversible special interrogatory 551; Batter Gasbarra, Ill. 3d at 406 N.E.2d at App. ror. See v. Thurman ton 105 Ill. App. sum, not the mani- was (1) jury’s against hold verdict prox- the tow truck not the weight
fest the evidence because collision; in the area (2) may park imate cause of the a tow truck to a highway of a divided to render services between traffic car in a median to avoid conflict with other disabled located Code; (3) section Illinois Vehicle 1303(a)(l)(k) under in- were refused and the actual proposed jury properly instructions theories; structions informed the Meisters’ adequately *10 submitting special erred in the defendants’ (4) trial court was interrogatory, but the error harmless. indicated, the circuit court judgment
For reasons County Peoria is affirmed.
Affirmed.
SLATER, J., concurs. BRESLIN, specially concurring: JUSTICE 11— agree I the defendants did not violate section that 5/11— (625 Illinois Vehicle Code. ILCS 1303(a)(l)(k) on trial (West 1992).) However, my I conclusion 1303(a)(l)(k) base that the State Police directed testimony which established accident, triggering thus to the scene of the proceed the road- or between exception stopping parking which allows of a officer.” police of a “at direction ways highway divided stop- prohibits Vehicle Code 1303(a) Section Illinois 11— when “[ejxcept or controlled access parking highway ping traffic, compliance or in to avoid conflict with other necessary other official traffic-con- or the officer or police law directions it un- 1992).) Here was 1303(a) (West (625 trol device.” ILCS 5/11— the car Police notified of that the State had been disputed By the scene. the defendants at median and had meet arranged scene, indicating an officer would meet the defendants at the Thus, State Police directed the defendants to implicitly proceed there. the defendants’ at the scene “at police the direction of officer.” that a tow or
By holding may park area between stop of a divided such highway “when is stopping vehicle,” aid to necessary provide a disabled effec- majority adds that tively phrase to the clause of section “except” 1303(a). Moreover, trucks, it an provides exemption for tow to ex- contrary press language found elsewhere in the See 625 5/11— statute. ILCS 205(c) (West (authorized 1992) may park vehicles or stand emergency irrespective provisions), (West 1992) other (defi- ILCS 5/1—105 nition of included). authorized vehicle—tow trucks are not emergency
It not necessary to create provisions new law. We can decide the issue before us the clear by applying language of the stat- ute to the facts at hand. Because defendants were at present scene officer, accident of police direction their behavior came the express within exceptions 1303(a) found section court correctly allegation dismissed the plaintiffs’ con- trary. AGENCY, INC.,
LYLE STEWARD, R. JAGER Plaintiff-Appellee, GARY
Defendant-Appellant. Third District No. 3 — 93—0466 9, 1993. Opinion filed December