*1 al., NORTHERN TRUST et Ex’rs of COMPANY the Estate Richard Deceased, AIRLINES, INC., Plaintiffs-Appellees, v. AMERICAN Defendant-Appellant. (5th Division) District No.
First 83 — 1831 Opinion rehearing filed June Modified on denial of 1 9 85. March
1986.
SULLIVAN,J., dissenting. Peterson, Ross, Seidel, (Michael Chicago Schloerb & of M. Lane and O’Connor, counsel), appellant. Kathleen of Ltd., Pavalon, Gittler, Segall, & Pavalon, Asher, Greenfield I. of
Eugene Stenn, Laatsch, Ward, counsel), & of Cooney of John F. Chicago (Gary K. for appellees. the court: opinion of
JUSTICE PINCHAM delivered execu- plaintiffs, from verdict in favor appeal This arises death due following tors the estate Richard plane defendant’s heart failure while a on congestive trial of Cook Mexico, to The in the circuit court Acapulco, Chicago. alleged that on County plaintiffs’ complaint two-count follow. defendant was The facts negligent. pertinent that Richard Nardi was at trial revealed presented evidence Illinois, wife Springs, old and resided in years Western treated Dr. Edward A. Newman and three children. heart and 11, 1956, and Chicago between December July direction, at Dr. Newman’s During period, heart-related ailments. hos- following three occasions. He was hospitalized Nardi was 23, 1972, for 15, 1972, to com- pitalized from December December gastroin- plaints of and chest and for evaluation upper gastric pain unit, cardiac testinal or cardiac was examined pathology. Nardi August 19, to September but no was found. From pathology *3 endocarditis, an in- 1975, he was hospitalized for subacute bacterial later, readmitted, he on October fected heart valve. Two weeks 19, chest 10, 1975, 1975, pain. and hospitalized until October Thereafter, he to Dr. continued see Newman. 1975, Acapulco. to family trip
In December Nardi a planned 1, for January reservations were on American Airlines Flight made 1976, 7, a Their issued to with return for 1976. tickets were January 16,1975. them on December January the morning expected departure,
On of their de- family awoke called Dr. Newman. The cough. Nardi He morning, Nardi parted During to planned. flight Acapulco Hotel, where not have At the Princess any problems. Acapulco did remainder of during Nardi continued to stayed, cough Nardis cough, tired. he night, and he was That continued day sleep. restless and could not and was morning, again cough with a following Nardi awoke office, where to their hotel medical
tired. With Mrs. went Bello, him medicine. gave cough saw Dr. a staff who physician, Nardi around day cough, Nardi continued but walked During night That he continued pool. hotel and was in the swimming cough sleep. and could not 3,
On January again Nardi saw Dr. at Bello the hotel medical of- fice. Dr. Bello gave Nardi an antibiotic more cough and medicine. Nardi talked to Dr. Bello again night, that afternoon. That could not sleep well and cough. Thereupon, continued to Nardi called Dr. in Chicago. Newman 4,
On January Nardi continued coughing and returned to Dr. Bello morning. At 4 p.m., spending after or pool time at in his room, Nardi saw Dr. Luhrs Eigkelboom, Acapulco Louis cardiolo- gist, who came to the at Dr. hotel Bello’s Dr. ex- request. Eigkelboom amined gave electrocardiogram. Nardi and him an Eigkelboom’s Dr. diagnosis was heart failure and an acute infarction. possibility He injected Nardi with gave a diuretic and him nitroglycerin pills pressure his chest and isorbid pills relieve the ex- pain and pand coronary seeing Eigkelboom, arteries. After Dr. Nardi talked to Dr. again Bello. Nardi then telephoned Dr. Newman in He Chicago. also telephoned his business office in and Chicago arranged be met at O’Hare and airport driven to Michael Reese Hospital. 4,
During afternoon January Mrs. Nardi called defendant airlines to make reservations for the on the next family Acapulco Chicago. There was seat only one first-class available 5, the next flight, 104, January Flight and she booked that seat for Nardi. Mrs. Nardi planned to leave with the children on the next flight that could accommodate them. night
On the of January Nardi remained in his hotel room. restless, Nardi continued cough and was did not complain but At pain. p.m., Mrs. Nardi called the house came to physician, who their room. Neither Nardi nor his wife went to paced bed. Nardi room coughed.
At 7 a.m. on Dr. Eigkelboom came to hotel January room. He examined Nardi and found that he was anxious and experi- encing heart He congestive failure. administered a second electrocar- diogram diagnosed having Nardi as heart failure caused myocardial infarction.
Dr. Eigkelboom gave injections digitalis, diuretic, gave bottles of He Nardi the nitroglycerin isorbid. electrocardio- gram January sheets 4 and Mrs. Nardi told Eigkelboom 5. *4 she in contact in Chicago. had been with Dr. Newman
Later, during morning January 5, the Mrs. called Nardi’s Nardi Chicago business office in and asked that Dr. Newman be contacted for the flight Acapulco Chicago. instructions for return She was on hold and was that Dr. put subsequently told Newman had been approved contacted and had the use of for Nardi on the oxygen that also it. She was advised Nardi would need but that
flight doubted a in with wheelchair Airport Chicago at O’Hare be met Nardi would Michael his made for admission had been arrangements and that the ho- Mrs. left the children his Nardi upon Reese arrival. Hospital taxi from her husband accompanied and babysitter tel with a the airport. their hotel to 5 at about January airport Acapulco at the Nardis arrived wheelchair, in Nardi for a skycap
8:45 Mrs. Nardi asked a a.m. told counter. Mrs. Nardi American Airlines ticket was wheeled to the It was ill, preboarded. and was agent that Nardi was Nardi Nardi was passengers. ill and airline’s first board disabled practice to stairs. aircraft, up boarding but wheeled to the walked DC-10 doorway met they also and were inside Mrs. Nardi boarded Nardi Bischofhausen, flight an Airlines attendant. Claire American and down, he sat he winded his seat When walked to unassisted. she did think Mrs. told Bischofhausen perspiring. Nardi his use of although approved Nardi need doctor had oxygen and was Nardi not in distress deplaned, it. Mrs. Nardi When the senior takeoff, Westberry, Prior Betty breathing normally. attendant, then and to Nardi and ad- flight talked Bischofhausen pre- Captain vised Brownloe Whitehead Nardi had been flight “breathing left he normal” and Westberry boarded. When “good.” his color was at a.m.
Flight departed During flight, Cap- 9:45 Acapulco in the losing fluid tain Whitehead discovered that aircraft controls three which would affect hydraulic system, number need to engines. prepare aircraft but not There was no landing. an emergency
The aircraft its descent to Mexico to board additional began City As her seat noted passengers. Westberry approached landing, she seat, having forward in his dif- leaning perspiring Nardi was ficulty breathing. Westberry obtained ice water and tow- immediately placed els Nardi with them while another attendant bathed and mouth. oxygen mask over Nardi’s nose terminal, the taxi of aircraft informed
During Westbury asked oxygen. that Nardi was on Bischofhausen Captain Whitehead feeling help. if he Nardi said how was wanted medical told breathing oxygen he was Bischofhausen did better the termi- not want leave the aircraft. When the aircraft reached friend, nal, told Lee who also was Flaherty, section, and was feeling returning the first-class that he was not well was coher- pale speech to see his doctor. Nardi was but Chicago *5 ent and rational. aircraft, Before left the Captain Whitehead he at stopped Nardi’s ***
seat, consoling knelt down and “chatted with some [Nardi], words something like that.” Captain anything Whitehead did notice unu- sual about color. He observed that Nardi’s color facial was and his was good breathing normal the oxygen. Nardi con- tinued on on oxygen Captain Whitehead, the recommendation who thought that Nardi’s was to the problem related altitude Mexico City. Nardi his mask from his nose pulled oxygen and mouth when he talked to Captain Whitehead.
Flight attendants Bischofhausen Westberry and continued to ad- minister on oxygen Nardi, and check appeared whose condition sat- isfactory Westberry. Westberry stop “would by occasionally and pat him on the doing, everything shoulders and how are say you okay, I and a always got response yes.” Whitehead and Bischofhausen concerned, however, were that the oxygen aircraft’s supply be depleted agents and were advised airline was by oxygen available hour, at terminal’s medical clinic. After airport approximately Galindo, American agent Bischofhausen, Airlines Jose Westberry and Captain attempted Whitehead talked to Nardi and to convince him that he be taken should in a wheelchair to the medical clinic. Nardi protested leaving the aircraft. He persuaded go only was after he was assured that he would returned to aircraft to continue be his flight repaired. home when the aircraft was airport
The medical clinic at Mexico was City operated by Fraser, Mexican Air- government. manager Donald of American Ridolfi, lines at sent City, Mexico Silvia to the medical secretary, clinic to translate for Nardi Nardi. was conscious and coherent but his color was by this time abnormal and he was breath- having difficulty ing without Oxygen brought to the clinic from American oxygen. Airlines Nardi and administered to because the tanks in the oxygen clinic, clinic would not work. at Penechay, Dr. exam- physician ined Nardi determined that Nardi to a hospital, should be taken but Nardi and insisted the aircraft. upon being refused returned to Nardi damn go hospital.” said that would not Mexican “any Cruz, supervisor, Fernando an American Airlines then asked Dr. Penechay Penechay if Nardi could continue and Dr. said Nardi, oxygen, still was then returned to the aircraft yes. using while in a wheelchair. aircraft, to the the aircraft
Shortly after returned and while terminal, still at at of Cap- Nardi was examined the request Miller, tain Dr. thoracic surgeon Whitehead Michael V. vascular at Miller who boarded the aircraft Mexico Dr. talked with City. color) pulse, (bluish took his found him be mildly cyanotic that his was still breathing using oxygen. bit labored. Nardi Whitehead Bischofhausen asked Dr. Miller Nardi could continue A and Miller told them that Nardi could do so. Chicago later, few moments that he was severe ab- complained having him, dominal pains. When asked whether he had medication with pocket Nardi took a out of his nitroglycerin pill bottle and a given Bischofhausen, to him. after According “shortly [that] in the area. He up grabbing kept saying, stood started stomach ” time, doctor, ‘oh I’m in At pain.’ again such Miller felt *6 stomach, took his and said that at pulse “losing ground Nardi point.” that Dr. Miller concluded that the reas- situation “demanded sessment” and advised that Nardi could not make the had flight and taken to a hospital. be Bischofhausen then instructed a ground agent to call for an ambulance.
Nardi was removed from the aircraft in a wheelchair on while still aircraft, oxygen. doctor, As Nardi was taken off the another Mi- a janjos, surgeon cardiovascular who a on the air- passenger was also craft, lasix, assumed control. used Mijanjos and ordered tourniquets diuretic, by ground to be Nardi purchased agent. airport was in the terminal 20 to 30 approximately minutes before the ar- ambulance rived and took him the British in Cowdray Hospital City. Mexico trip route, The took approximately given 35 minutes. En Nardi was A at oxygen. medical team the hospital had been alerted and adminis- him,
tered medical aid to including electrical shock. The in physicians the hospital room were to save he was emergency unable and pronounced later dead. An the cause of as an autopsy recorded death organic heart disease. later, 13, year
A filed com- plaintiffs a two-count April in inter plaint the circuit of Cook Count one County. alleged, court ticket, alia, that on January day purchased re- defendant that ill health” was informed Nardi was “in and would to re- quire careful attention as a that defendant failed passenger, stop- move Nardi from the aircraft when it that the apparent became in over Mexico than City longer anticipated, would be considerably and that defendant negligently immediately transport failed to to the Mexico when it con- City hospital became apparent required dition medical treatment which be rendered at only could Count hospital. complaint two of the was withdrawn.
Defendant’s answer defense amended asserted as affirmative provisions (Convention) of the Warsaw and Convention the li- (which by raising the Convention Agreement Montreal modified of due waiving care) apply limit for air carriers and the defense ability rights par- to this case and and liabilities exclusively govern negli- alleged contributorily ties.1 Defendant further that Nardi was a hospital in not recommendation to enter gent following physician’s any liability in Defendant denied Acapulco fly Chicago. “any entitled to in amount plaintiffs judgment denied that were whatsoever.” money in- defense, denied that the plaintiffs
In to the affirmative reply Defendant filed a mo- ternational limited defendant’s treaty liability. on the Convention judgment ground tion for partial summary limit case and to the facts this Agreement apply Montreal $75,000. mo- The damages defendant’s liability, any, provable case, tion trial court ruled that this subsequently was denied. The 17 of the Con- there was no “accident” as that term is used article the Con- vention, provided by and that the limit of monetary liability to this therefore did not Agreement apply vention and the Montreal case. negligent and contributorily found that Nardi was 60% the denial of $1,030,212 damages. Following
awarded plaintiffs motion, appealed. defendant’s defendant post-trial that no ac the trial court’s determination agree We first as an unu An accident has been defined cident occurred in this case. is not an acci An or occurrence happening. sual or event unexpected of health of the dent if it results from the state solely Airlines, v. Trans World flight. (Warshaw unconnected with *7 bar, at Nar 400, 412.) 442 F. In the case (E.D. 1977), Inc. Pa. Supp. disability or di’s ill an inherent weakness (heart condition) health was or which unexpected happening and was not the result of an unusual no reason disturb flight. was with the therefore see connected We ruling the trial court’s on this issue. passenger an airline next to the whether question
We turn during flight stopover ailment preexisting physical who died from a alleged the carrier’s the air carrier for any against has cause of action case, v. A recent Abramson accident occurred. negligence when no 130, addresses 1984), decisively 739 F.2d (3d Airlines Co. Cir. Japan on an inter- Abramson, was plaintiff In the question. and decides this the Clarifi popular the Convention for is the name for 1The Warsaw Convention (49 Transportation by Stat. Relating Air to International cation of Certain Rules 876; (1976)), 3000, U.S.C.A., following adhered Treaty 49 note sec. 1502 Series No. 1934, Agreement. by the by the States in as modified Montreal United
29 preexisting pa- national when he suffered an attack that the complaint hiatal hernia. His raesophageal subsequent alleged airline liable under the Warsaw and that it further Convention was the airline wilful employees’ negligent liable for misconduct The Court the air- aggravated granted his hernia. District allegedly motion for judgment ground line’s on the that the Warsaw summary Convention since there no accident. inapplicable appeals court affirmed that The court further ruled that when the Con- ruling. vention is airline’s to a be es- inapplicable, liability passenger may Thus, held, tablished the by traditional common law rules. court since article 17 the Warsaw Convention there inapplicable because accident, plaintiff’s was no alternative theories recovery against airline under State law not and the precluded were trial court erred when it failed to consider common law plaintiff’s negligence and wilful 130, (739 misconduct claims. F.2d The cause 134.) was reversed and remanded.
Other decisions are a claim instructive whether question can brought be airline against an on other when the Warsaw grounds In inapplicable. Convention Husserl v. Air Co. Transport Swiss (S.D.N.Y. 1975), Supp. 388 F. court stated that “in- juries not comprehended by give terms of the Convention” may rise to causes of action not subject of the conditions or limits of that, Convention. The court Warsaw further stated “It have *** simple been a matter to all relief preclude unenumerated types but no injuries; article that effect was Con- incorporated [in In case, an earlier proceeding the same Husserl v. Swiss vention].” Air Transport Co. (S.D.N.Y. 1972), Supp. F. the court concluded: “*** does the rela- ‘exclusivelyregulate’ Convention [T]he on an
tionship between carrier international flight, rather sets limits on renders uniform certain of but *** Thus, aspects of that it would seem to fol- relationship. that if elimi- applies low it to limit—not ‘applies,’ Convention it does not leaves estab- liability; apply, liability it to be nate— law according (Emphasis lished to traditional common rules.” added.) (1st
The court in v. Air Cir. F.2d 1976), Hernandez France 279; also considered this issue and determined: give “To who are so a terrorist attack in passengers injured [by *** against
the air liability remedy strict carrier terminal] to their relegate but air nonpassengers *8 terminal] [in law, seem to remedies under odd indeed. It would local be 30 *** more grey
be rational this area treat passengers leaving alike. This would mean them to the reme- nonpassengers dies (Emphasis added.) local law.” conclude article 17 of the does to this apply We that Convention not a accident, bring no that plaintiffs may case because there was but air law cause of action carrier under traditional common against that the rules. It is for us decide contention unnecessary plaintiffs’ is inasmuch as the Convention Warsaw Convention unconstitutional to this case. inapplicable excluding argues by
Defendant next that the trial court erred about Eigkelboom from the Drs. and Newman jury Plaintiffs, on warnings gave against flying. each they hand, out cause of action not arise other contend that because this did accident, to exercise care only required ordinary Nardi was flight. his at and the time a on safety passenger after became Therefore, assert, and Mex Chicago of Nardi’s plaintiffs condition, Nardi’s physicians persons concerning physical ico and other he be knowledge of his condition and conduct physical before irrelevant. passenger came a taken in Acapulco, The evidence of Dr. deposition Eigkelboom, trial, plaintiffs Prior to filed defendant as trial record. by part making any prevent defendant from presented motion in limine Dr. Eigkelboom reference before the conversations between admitted Eigkelboom Nardi in which recommended Nardi be motion, In of their plaintiffs home. hospital fly support and not Drs. preflight by Eigkelboom statements to Nardi argued al- to the of Nardi’s should excluded as irrelevant issue Newman be ordinary duty to use negligence because leged contributory only care for his own became safety began when Eigkel- correctly points here note that the dissent out flight. We defense was read deposition testimony, comprising pages boom’s testi- However, Eigkelboom’s to the complete deposition counsel jury. in limine pursuant plaintiff’s to the mony jury, read to the of his recommendations Eigkelboom order. excluded follows: flight, day to Nardi on before January proce- further medical “Q. Doctor, recommend you did Nardi? dures Mr.
A. Yes.
Q. they? What were it very important him times that was A. I many recommend and that he come him tests laboratory that we obtain of hospital.
Q. Doctor, performed? were those tests laboratory No,A. he don’t it.” accept his ad- regarding
Also excluded was Dr. Eigkelboom’s testimony 5, 1976, that Dr. flight. day, vice to Nardi on the of the On January day Eigkelboom a second and observed electrocardiogram administered there from the of the changes electrocardiogram were adverse previous His was: day. deposition testimony And, doctor,
“Q. did make recommendations to Mr. you Nardi? Yes, of
A. course. Q. tell you Would us what those recommendations were? A. The same recommendations of the—of one before and day too, I to him that he insisted he don’t can travel insists me but that he to to the United States to his doctor.” preferred go The trial court also defendant from precluded presenting evidence of what Dr. A. Edward Newman told Nardi in Mexico concerning Chicago. conditions under which Nardi could As a result of the fly court’s ruling, jury following did hear the which was testimony, given by during Newman defendant’s offer of proof:
“Q. you speak Who did to? I spoke A. don’t remember I a call from who. received —I Mexico, date, I the exact think it was a he before couple days 4th, left Mexico. ***. I to him spoke either the 3rd or the [Nardi] I’m not sure. I a call got stating Mexico that he was not well. He was from
sweating, vague breath, had symptoms, shortness and I said see a doctor down there immediately. And I said Immediately. said, he I says you okay, are or not that good, get back here.
* * * I told Mr. Nardi physician. to see a he was to travel okay If Mexico, permission the doctor in that is It fine. to him up to make the It is to—it disposition. up liabil- ity physician holding hand, who is patient his that is the hot I potato. cannot make medical clearance the man who is a thousand away.” (Emphasis miles added.)
Assuming, plaintiffs contend, as that they were only required to establish that Nardi exercised care for ordinary his at and safety he became a passenger but not passenger, became a after before right defendant would nonetheless have establish Nardi’s condi flight he took the as tion and his awareness of his condition before first contributory negligence taking evidence of his issue, therefore, is not as a matter law place. plaintiffs The whether establish Nardi exercised care his required ordinary were Rather, the issue is American passenger. before became safety treatment, right Airlines’ show Nardi’s medical his poor physical of his illness before condition awareness evidence negligence. injuries Where a are contributory plaintiff’s allegedly of caused negligence, right a defendant’s the defendant has the plaintiff negligent, that the contributorily question show jury (Borus fact is for the to decide. v. Yellow Cab Co. preeminently 277.) 52 Ill. 3d 367 N.E.2d The fact that there (1977), App. no accident in this case did not to exer responsibility alter safety. cise due care for Defendant should been allowed to his own have Eigkelboom’s Dr. to Nardi that present jury preflight advice hos laboratory performed go more tests should be and that Nardi to a as well as recommendation to pital, Eigkelboom’s Dr. also
not travel. defendant should have been allowed to present to follow Eigkelboom’s Nardi’s refusal advice. *10 addition, In to present the defendant should have been allowed to the Dr. admonition Nardi to see doctor preflight Newman’s with only permission in Mexico and to travel that doctor’s and Nardi’s The of of Dr. admonitions. excluded defiance Newman’s condition, and about Eigkelboom preflight physical Newman Nardi’s awareness of his illness and re preflight their advice to Nardi’s to heed the advice became a was passenger fusal doctors’ before alleged contributory negligence.2 admissible establish 560, 567, (1978), In v. 72 Ill. 2d 382 N.E.2d the Hayes Alsburg hours accident court held the events which occurred the car before “evidentiary produce factors in combination a question were [which] sponte majority the this issue is without 2The dissent’s inference that raises sua brief, argued, III in “It Points Authorities the defendant’s it is was merit. Under Eigkelboom Newman on court to of Dr. and of Dr. error for the exclude gave flying. to the con warnings each about This was relevant to Nardi phys negligence Nardi tributory of Richard Nardi of Geraldine and material Eigkelboom (A) Dr. told Richard Geraldine Nardi that of Nardi. ***. ical condition warning hospital fly. That was not and could not this had to be admitted to a Nardi *** (B) contributory negligence. telephone calls with obeyed In is evidence of [and] office, fly not with warned that Nardi could and with his Newman business Twenty-three pages of physician Eigkelboom.” defend of a local out the clearance —Dr. argue pages less than 22 of their briefs to Plaintiffs devote no ant’s these issues. briefs statement, out, opening plaintiff’s “In counsel dis points its this issue. The dissent *** plaintiff’s physical his case and treatment in condition cussed considerable detail Eigkelboom. Mrs. also testified as in one of whom by Acapulco, the doctors was Acapulco, including examination and physical while in condition to her husband’s axiomatic, Eigkelboom appear It to be therefore by others.” would treatment presenting this issue. precluded from evidence on should also the defendant not be fact as to whether the in due care for her plaintiff safety, was own case, question which was to the In that properly jury.” submitted plaintiff oc- asleep the back seat of the car when the accident curred at 1:30 a.m. Evidence that the and the approximately plaintiff other had traveled all and were still on the road the passengers day admitted; at 1:30 a.m. the court reasoned that following morning inferred from that that the had jury might speeding have evidence been prudent continuous. The court concluded that a gone have under those circumstances. sleep Similarly, Smith court, v. (1978), 65 Ill. 3d 382 N.E.2d App. Solfest over plaintiff’s objection remoteness, as to admitted evidence conduct of the parties before automobile accident occurred on the grounds that the events which took place hours before the collision were highly probative on the issue of plaintiff’s contributory negli- gence. evidence of a propriety admitting plaintiff’s pre-accident
“behavior” was also
v.
addressed Lockett Bi-State Transit Author-
ity
94 Ill.
(1983),
2d
“[Pjroof
that [employment] record carried the
potential
prejudicing
against
the jury
proof, however,
defendant. That
relevant,
essential,
case,
if not
highly
plaintiff’s
and to
*11
was,
preclude
effect,
its use
in
to
practical
abolish plaintiff’s
cause of action for wilful and wanton misconduct ***. ***. But
to
exclude
completely
proof
that record and all
of
reference
was,
thereto
opinion, impermissible.”
our
(Emphasis added.)
Authority (1983),
66, 74,
Lockett v. Bi-State Transit
94 Ill. 2d
In (1964), 340, 853, Marut v. Costello 53 Ill. 2d App. 202 N.E.2d (1965), 34 Ill. 2d 214 N.E.2d cause of plaintiff’s aff’d action of injuries arose out she sustained when she fell on the back her apartment building her stairway injured Denying neg- back. ligence alleging plaintiff negligent, was contributorily 34
defendant contended at trial that
previous
by plaintiff
statement
weak,
her hands and arms were
that she
very
only light
could do
cooking and that her
in to
neighbors had come
wash and set her hair
was relevant
show that plaintiff
guilty
negli-
of contributory
gence in
attempting
negotiate
icy steps when she did not have
enough strength
prevent
hold onto
bannister to
her from fall-
The court held that it
this
ing.
proper
evidence of the plain-
tiff’s
condition
pre-accident
go
jury
to the
on the
of her
question
53 Ill.
contributory negligence.
App. 2d
“One of the crucial in this case was whether plaintiff examination, negligent. plaintiff On direct contributorily testified, effect, that he care at- had exercised due before tempting Though crawl under the train. he never testified to or of the any prior warnings prior knowledge dangers crawl- ing train, concerning under a these matters were questions they on cross-examination because contradicted testi- proper effect that he exercised due care. mony
* * [*] Moreover, there is the that if defendant had been possibility concerning allowed to ask his knowl- properly plaintiff questions cars, under he would have elic- edge dangers crawling ited such Babcock v. Chesa- responses indicating knowledge.” 919, 925, 927, peake Ry. (1979), & Co. 83 Ill. 3d App. Ohio N.E.2d 265. improperly
The court in Babcock also found that the trial court con defendant’s on the issue of give special interrogatory refused asked the whether negligence. special interrogatory tributory and at contributory negligence plaintiff guilty “before v. (Emphasis added.) (Babcock Chesa- the time of the occurrence.”
35 peake Ry. 919, 927, 83 3d 404 N.E.2d (1979), App. & Ohio Co. Ill. errors, if the 265.) additional trial court stated that defend- Citing ant had allowed to concern- properly plaintiff questions been ask cars, ing knowledge his of under train dangers crawling pos- 83 sibly indicating knowledge. have such Ill. responses elicited 919, 927, App. 3d 265. N.E.2d gave Newman warnings Eigkelboom
The advice and that Drs. and thereof were admissible rejection Nardi before and that We rule that evi- alleged contributory negligence. show Nardi’s trial court’s exclusion this dence should have been admitted. The was reversible error. testimony inadmissible and that
The dissent’s conclusion this on that trial court is the assertion by premised excluded properly the failure of defendant cause action was based plaintiff’s upon highest degree exercise of care perform a contractual duty—the a The dissent therefore contends passenger. Nardi after became during that limited period the care due Nardi defendant was thus, and preflight which Nardi was passenger, however, overlooks, The that and inadmissible. dissent irrelevant plaintiffs’ alia, (1) January inter that complaint alleged, two informed that flight departed, defendant was days before Nardi’s in ill careful as pas- health and would attention require senger; to summon (2) negligently defendant and failed carelessly apparent medical it personnel treatment and medical when became treatment; that and (3) Nardi was in of medical defendant care- need Nardi to a lessly negligently transport hospi- and failed to immediately tal medical treat- required when it condition apparent became his ment further hospital. which could be rendered at a Plaintiffs only to refuse to alleged negligently that defendant “failed carelessly his mental when it knew or remove transport aircraft] [Nardi for himself incapable caring condition was such to render him as defense, in was Nardi’s part, without assistance ***.” The defendant’s found have contributory negligence, jury subsequently condition, of his been his preflight 60%. Nardi’s awareness physical Eigkelboom and the of Drs. preflight physical condition Newman were therefore admissible regarding preflight condition Nardi’s condi- proofs The in order limited the relevant. limine to what Drs. speculate tion while he We passenger. will regard- Eigkelboom testimony may have been opinion Newman’s condi- had on ing physical the effect that Nardi’s have might tion. directly Newman talked record establishes fact,
Nardi. In plaintiffs so advised the their state- opening ment. Geraldine Nardi testified that Nardi had been in contact with Dr. Newman from Acapulco. Newman admitted Nardi called him from Acapulco. It is clear from the record in this case that Dr. New- man conditioned travel by Nardi on the approval of a local doctor. Nardi’s purpose in calling Dr. Newman was “with regard to his re- *13 turning to Chicago.” Newman’s deposition was as testimony follows:
“Q. Now, during your telephone conversations with Mr. Nardi, do you recall him telling to see a doctor immediately, if the doctor said you are or okay, not that good, get back here?
A. The words not that good mean that he is transportable. The decision being of transported is up decision on the —is dispatching side.
Q. I understand that. That is what told you Mr. or not good; that is that right? Well,
A. I am not sure I used the exact words as to that. If move, he is okay move out.
Q. Is that what you told Mr. Nardi? IA. believe so.” (Emphasis added.) It is clear that Nardi called Dr. Newman for his advice on whether to return to Chicago and that Newman told him that he should travel without the permission of a local doctor. This conclusion is am- ply supported by Newman’s deposition As testimony. as .early January 1, 1976, the of day flight to Acapulco, Newman advised Nardi not if travel he did Likewise, not feel well. when Newman was con- tacted by Nardi’s business office with respect to arrangements be- ing planned for Nardi’s return to Chicago, Dr. Newman testified at his “I deposition, sick, said if he is and he needed to be cleared aby doc- tor to come home.”
The record is clear that Newman told Nardi that he could not tra- vel without the clearance of a physician in ini- Acapulco. had an tial duty to ensure that he was physically capable making the re- turn Chicago. Newman’s was clearly relevant to this obligation. unfair, It would unconscionable, be indeed preclude defendant from to the revealing jury Nardi’s preflight physical condi- tion and the doctors’ warning to him not to flight, take the particu- larly view of Nardi’s insistence while on board the not to plane leave the plane for medical treatment or Mexico, hospitalization adamant insistence to continue the Chicago, and the testi- mony of Dr. the Mexico Penechay, City airport that Nardi physician, should be taken to a hospital, go. and Nardi’s refusal to
The trial court further erroneously following excluded the tes- other witnesses: of defendant’s timony with Nardi. his conversation 1. Whitehead’s Captain the air terminal taken to Nardi was talked to Nardi before
Whitehead did he why to the to explain clinic. was not allowed Whitehead aircraft. not insist that Nardi leave the with Nardi conversation her Betty Westberry’s 2. af- defend- of proof, In an offer City.
ter arrived in Mexico the aircraft she told Nardi Westberry testify ant stated that that Nardi refused. go oxygen should to the clinic and obtain at the translator Ridolfi, 3. Silvia Testimony for defendant defend- of proof, In an offer air terminal medical clinic. City Mexico she would testify, had permitted ant showed that Ridolfi been wrong with what was her that he “knew have stated that Nardi told he knew as long pacemaker him. He told me also that he had al- he was had he knew long oxygen, what he and that as as he had responded that Nardi She would have further testified right.” I don’t Mexican, Mexican hospital. to “a a damn go did not want waiting there,” and an ambulance want to and that he had a doctor go for him Chicago. Miller, Dr. Miller Testimony passenger. 4. Dr. Michael V. re- after he was talked to Nardi City
boarded the in Mexico plane time was con- that Nardi at that turned to the aircraft. He testified *14 distress,” speech manner of in “his Although scious. Nardi was “some trial court to the argued Defendant get history.” adequate have would of that if Dr. Miller jury permitted, out the presence return” wishing to also testified that Nardi “was adamant about Chicago. tes- foregoing that the trial excluded judge
The record reveals as fol- hearsay on the of McCormick defines timony grounds hearsay. lows: evidence, of court, or evidence is written
“Hearsay testimony offered as court, being the statement a statement made out of therein, and an assertion to show the truth of matters asserted of the out-of-court resting upon credibility thus for its value 1972); ed. McCormick, 246, (2d at 584 asserter.” Evidence sec. seq et sec. 801.1 see also Handbook of Illinois Evidence Cleary, (4th 1984). ed. however, because hearsay,
The above was not admissible therein. it of the matters asserted was not offered to show the truth 3d App. v. 115 Ill. (Reynolds Ry. (1983), Alton & Southern Co. 305 16 Ill. 3d 402; Goshey Dunlap (1973), App. 450 N.E.2d v. and that admissible 648.) N.E.2d The distinction between 38 is
which barred rule is well hearsay by Wigmore’s illustrated A oc- example the witness that “B me that event X testifying told curred.” If establishing A’s is offered for the purpose admissible, B this, said it is if clearly prove but offered X occurred, inadmissible, event it is the only probative for clearly B knowledge value rests B’s is not to be cross-exam- present (6 Wigmore, (Chadbourn 1976).) ined. Evidence sec. at 250 rev. The instant foregoing statements in the case attributed to Nardi might such, construed admissions and as justifiably be as admissible exception an to the Ill. L. & Evidence hearsay (18 rule. Prac. sec. McCormick, 262, at (1956); (2d 1972).) Evidence sec. ed. testi- mony also of defendant’s explained employees conduct was entitled to hear it. exclusion jury prevented Its receiving defendant from a fair trial. trial
We next consider defendant’s of error of the assignment court’s change Civil, of Illinois Pattern No. Jury (IPI), Instruction (2d 10.03 ed. IPI No. 1971). Civil 2d 10.03 reads: “It was the duty the plaintiff, occurrence, and at time of the ordinary to use before for safety care his own ***.” (Emphasis added.) Over defendant’s ob jection, plaintiffs prevailed upon change the trial court to the instruc decedent, tion read: “It duty Richard at the time Flight he became a on American passenger Airlines after 104, to use care for ordinary added.) his own safety.” (Emphasis initial had the to ensure that he duty physically capable of making the return Chicago. We believe that his actions to prior bear on his contributory negligence, any, i.e., whether he exercised due taking care his own in even safety flight. agree We defendant that the trial court’s modification of IPI Civil 2d 10.03 No. was erroneous.
Next, defendant that it was trial improper contends Pr-6, court to admit Civil Aeronautics Board Rules Tariff No. provides, pertinent part:
“REFUSAL TO TRANSPORT at [Cjarrier transport point, refuse to or will remove any will *** *** whose condition is such as physical caring render him for himself without assistance incapable who (i) accompanied by respon- unless attendant will be *15 sible for for him route and the care of such caring (ii) en with attendant, he will not attention or assist- require unreasonable *** *** carrier; or, ance from un- employees any involve usual or risk ***. hazard to himself LIABILITY any passenger is for its to transport
Carrier not liable refusal in accordance with transport passenger or for its refusal of this rule ***.” the preceding paragraphs and its binding these are on defendant agreed provisions It is Airlines, (D.C.N.Y. Inc. (See v. Trans World passengers. Berkman Also, iden 851.) regulation practically F. this CAB 1962), 209 Supp. admitted regulations tical to manual which were defendant’s provided pertinent into evidence as exhibit. The manual defense part: his flight who has to start passenger permitted been “[A] *** may seri- remaining
should aboard only be removed *** *** illness his own health or a condition of ously jeopardize of assist- require type such as to undue amount or becomes ance en route ***.” was identical. The CAB tar-
Defendant’s service manual iff regulations and the were relevant and admissi- defendant’s consideration, ble. The was entitled this evidence their jury the issues before along deciding with other facts and circumstances admitting it. therefore that the trial court did not err in this We find evidence, applica- nor did the court err its instructions on ble negligence standards. is entitled to a foregoing,
In view we believe defendant and remand the cause judgment new trial. We therefore reverse the for a trial. new
Reversed and remanded.
MEJDA, *, J. concurs. DISSENTING MODIFIED UPON DENIAL OF REHEARING OPINION SULLIVAN,dissenting:
PRESIDING JUSTICE that revers- findings (a) majority reversal is based Eigkelboom occurred certain of Doctors ible error when fair trial by was denied a (b) Newman was refused and defendant disagree I of other defense witnesses. exclusion rehearing. both and I findings, grant plaintiff’s petition er- committed reversible holding that trial court Regarding doctors, it is refusing ror in certain from the two admit opinion prior opinion adopted the court to the retirement *This Mejda. Mr. Justice *16 40
the position of plaintiffs that the trial court held the properly refused testimony to be irrelevant because it concerned of conduct Nardi tak- ing place prior to his becoming plane defendant’s and before defendant him however, owed of care. The any duty majority, held that the refused testimony should have been admitted because defendant had a “right to show Nardi’s condition and his physical medical treatment before the flight contributory as evidence his of negligence.” initially
We note by sup- that the cases cited do not majority this port holding. them, involved, In of all an accident was and it was held in each that as testimony plaintiff’s conduct before acci- dent was admissible on the issue of In contributory negligence. the in- case, stant however, we have held that there was no accident and while, as cases, stated in cited those evidence of contributory negli- gence prior but related to an admissible, accident could be action here is based upon the breach of alleged by defendant its con- tractual duty a common carrier to of highest degree exercise the care toward its passenger, Nardi. It therefore appears to me that the refused concerning doctors conduct of Nardi before he became a passenger was found I properly per- irrelevant to what ceive the issues to be: whether of namely, duty defendant breached its care which arose after Nardi became a passenger and whether Nardi exercised ordinary becoming passenger. care his own after safety
Moreover, it is noted that the majority stated that the issue ap- peal was condition, “American Airlines’ to show right physical Nardi’s his condition, awareness his physical and his medical treatment be- fore the flight as evidence It is diffi- contributory negligence.” cult to understand why majority makes this statement as no such issue was raised. Defendant no it argument makes contention or in manner deprived right of its show Nardi’s con- physical dition, thereof, his awareness and his medical treatment before flight and, fact, it jury could not do so because the in- fully formed thereof. In his opening plaintiffs’ statement counsel discussed in considerable detail Nardi’s condition from his first physical hospital- ization death, in 1972 until including by his care and treatment in Acapulco, doctors one of Eigkelboom. whom was Mrs. also testified as her Acapulco, husband’s condition while in in- physical eluding the examination other by Eigkelboom and treatment Dr. and doctors. The por- record further discloses that for the excluded except tion in question, deposition Eigkelboom, evidence Dr. defense witness, by (it was read defendant’s counsel to the 37 comprised pages record). length In it Nardi’s concerning he testified at before Acapulco his examination at the time of condition physical by caused that he had heart failure question opined concern- also considerable gave Dr. Newman an infarction. of his treatment the course during condition ing physical Chicago go Acapulco. time left to the up December “it error is that defendant actually contention raised Eigkelboom of Dr. for the to exclude court and, in flying” each to Nardi about warnings gave Newman on the “the finding ruling: following this made the regard, majority gave and Newman warnings Eigkelboom advice that Doctors was admissible rejection Nardi before the and Nardi’s thereof ***. The trial court’s *17 alleged contributory negligence. show Nardi’s was reversible error.” exclusion of this testimony However, flying by Nardi warning given no advice or to about he in call Mexico only either Dr. Newman stated that a from doctor. see a that not well and he said that Nardi should was told Nardi was statement: following garbled doctor there and then Newman made the said, “if he I not No- you good, get are or that back here.” says ókay, where his Dr. or that testimony say give warning in does Newman any Nardi had the of a permission should not travel unless he doctor. substance of his if tra- testimony was that Nardi wanted clearance to vel he to he get (in would have it from a local doctor as Acapulco) (Newman) who was a “cannot make medical clearance for man miles thousand away.”
In the Dr. portion deposition testimony Eigkel- excluded boom, recommen- who examined Nardi in he stated that his Acapulco, that he also Nardi and laboratory accepted by dation of tests was not sug- The majority “don’t can too.” recommended that Nardi travel he shouldn’t take gests phrase warning that was a that quoted However, doc- flight physical in because his condition. question tor did so this was gave opinion. not state and no indication that it fact, not fly, In he was not asked whether could or could Nardi he the tests more reasonable believe that wanted before it diagnosis, he complete traveled so that could anywhere opinion given appears he would have to do before could have or whether not Nardi could fly. by either In event, warning anyone there no advice or any should that he doctor that condition was such physical gave take no other doctor in and it is noted that question, examined who contrary, physicians such To the two testimony. Penechay at in Dr. City, Mexico plane delayed while said that both Miller, plane, Dr. on the airport clinic and 42
he was able to Chicago. continue It is thus clear that there nois holding basis the record for the that majority exclusion of the two doctors’ testimony was reversible error.
Furthermore,
assuming
even
that the
of a person prior
conduct
becoming a passenger could be
bearing
admissible as
contributory
negligence, the excluded testimony was
refused here because
properly
nothing
there was
testimony
that
which could be
a prox-
considered
imate or contributing cause of his death. In the original majority opin-
ion it was held that the excluded
should have been admitted
because
right
“defendant had the
to show that Nardi’s conduct before
the flight
death,”
contributed to his
but in the
that
opinion
modified
quote is deleted and in it the
states
that the
majority
only
was admissible to show contributory
on the
of Nardi.
negligence
part
However, not
or
considered mentioned in either
is the
opinion
fact
that for any conduct of Nardi to be admissible under the doctrine of
contributory
it must have
negligence,
proximate
been
or contribut-
Sears,
ing cause of his death.
(1981),
See Mock v.
Roebuck & Co.
Ill.
872;
3d
427 N.E.2d
Hiller
App.
(1981),
App.
v. Harsh
100 Ill.
3d
960;
N.E.2d
Old
v.
Second National Bank
Aurora
Baumann
86 Ill.
(1980),
App. 3d
Here, gleaned the most that may portion be Eigkelboom’s hospital was refused is that he wanted laboratory tests and can recommended Nardi he “don’t tra- vel,” and the may most that be said of Dr. Newman’s excluded testi- mony is that Nardi was informed to fly he wanted clearance it Chicago should obtain from local It is Acapulco. sig- doctor *18 nificant that Dr. not Eigkelboom did nor does his refused testi- say mony even indicate that the remotely failure have the laboratory testing or any way caused contributed to Nardi’s death. He was not asked his telling reason Nardi he “don’t can travel too” and he made no gave opinion statement and no that Nardi’s con- physical Likewise, dition was such that he fly. should not Dr. Newman did not say, indicate, and his testimony also does not that the failure remotely permission obtain to was in any proximate manner or contrib- fly above, uting cause of Nardi’s To the as noted contrary, only death. asked, Miller, doctors who were both stated that was Penechay physically Thus, no show- fly Chicago. able to on to because there was ing that the excluded concerned conduct Nardi death, or it contributing properly of his proximate cause excluded that additional reason. disagree
I with the that the exclusion finding majority also certain other defense witnesses denied defendant a been re- fair trial. The states that their should have majority rule, its hearsay opin- ceived under admissions but exception and, fact, ion state does not what to have admitted supposed there no The most were admissions excluded testimony. be learned therefrom is that witnesses would have testified may that Nardi did not want to leave plane going was adamant about witnesses, Whitehead, to Chicago. However, there were other including command, the pilot in who testified that Nardi insisted on to Chi- going cago and still others who that Nardi not want testified said did cumulative, leave The excluded plane. testimony being prejudice no defendant, and it deprived caused fair trial. thereby v. O’Brien Walker See (1977), App. 49 Ill. 3d 533. N.E.2d COMPANY,Petitioner, CENTRAL ILLINOIS PUBLIC SERVICE THE v. BOARD,Respondent. POLLUTION CONTROL Fourth District No. 4 — 85—0602 Rehearing denied Opinion filed March April 1986. 1986.