Nos. 2--01--0876 & 2--01--0926 cons.

JUSTICE GROMETER delivered the opinion of the court:

The plaintiffs in this case are Ruth Sterling, as specialadministrator of the estate of Houston Sterling, deceased(Sterling); John Parthenios and Jim Parthenios, individually andd/b/a Parthenios Luncheonette, a partnership (collectivelyParthenios); Delila Campbell; and Harley Foster. Plaintiffs filedmulticount complaints against defendants Ralphfield Hudson,Rockford Mass Transit District (RMTD), and Marlene Carter, an RMTDemployee. Plaintiffs sought recovery for injuries and damagessustained in an automobile accident. Plaintiffs' theory ofliability against RMTD was based on the doctrine of respondeatsuperior for the alleged negligent conduct of Carter.

At the close of the evidence, plaintiffs moved to voluntarilydismiss Carter. The trial court granted the motion with prejudice. The trial court then denied RMTD's motion to dismiss the countsagainst it. A Winnebago County jury returned a general verdict inplaintiffs' favor. Following the denial of their posttrialmotions, RMTD and Hudson appealed. We consolidated the appeals forpurposes of review. For the reasons that follow, we affirm.

I. BACKGROUND

This case involves an accident that occurred on March 7, 1995,at approximately 10 a.m. at the intersection of Mulberry and ChurchStreets in Rockford, Illinois. At the site of the accident, ChurchStreet is a one-way road with three lanes permitting onlysouthbound traffic. Mulberry Street is a two-lane thoroughfarewith one lane for westbound traffic and one lane for eastboundtraffic. The intersection at Mulberry and Church Streets iscontrolled by a traffic signal. A restaurant known as theParthenios Luncheonette is located on the southwest corner of theintersection.

Just prior to the accident, Carter was driving an RMTD buswestbound on Mulberry Street. The bus contained two passengers,Angela Grant and Harley Foster. As Carter approached Church Streetfrom the east, the traffic signal at the intersection was red, andshe brought her vehicle to a stop. Carter's bus was the thirdvehicle behind the stop line at the intersection. After the signalturned green, Carter followed the two vehicles ahead of her intothe intersection. At approximately the same time, RalphfieldHudson was driving a Cadillac southbound on Church Street. Hudson's vehicle struck the right front side of the bus. The busthen collided with the Parthenios Luncheonette. As a result of theaccident, Houston Sterling was killed and Delila Campbell wasinjured. Both Houston and Campbell were patrons of the PartheniosLuncheonette. Foster was also injured in the accident.

The accident spawned several lawsuits. Ruth Sterling, asspecial administrator for the estate of her deceased husband,brought a multiple-count lawsuit naming Hudson, RMTD, and Carter asdefendants. Counts I, III, IV, and V of Sterling's seventh amended complaint were directed against RMTD. Counts III and Vwere dismissed prior to trial. Count I of Sterling's seventhamended complaint alleged that RMTD, by and through its employee,Carter, was negligent in:

"(a) operat[ing] a motor vehicle without keeping a properand sufficient lookout, to wit, [Carter] failed to see ifthere was any southbound traffic before and while she enteredthe intersection;

(b) fail[ing] to give an audible warning with a horn whena special hazard existed, to wit, a vehicle was approachingand entering the intersection from [Carter's] right;

(c) proceed[ing] at a speed which was greater thanreasonable and proper and fail[ing] to slow or stop hervehicle while approaching, while entering, and while crossingan intersection and when a special hazard existed, andfail[ing] to decrease speed to avoid colliding with a vehiclecontrary to the provisions of Ill.Rev.Stat. Ch. 95-1/2,Section 11-601 [sic];

(d) fail[ing] to drive within a single lane contrary tothe provisions of Ill.Rev.Stat. Ch. 95-1/2, Section 11-601[sic];

(e) after the collision with the HUDSON vehicle,fail[ing] to decrease the speed of the bus to avoid collidingwith and entering into the Parthenios Restaurant;

(f) fail[ing] to keep both hands on the steering wheelwhile driving, and as a result thereof, after the impact withthe HUDSON vehicle, the defendant, CARTER, failed to maintaincontrol of her vehicle, and failed to take any evasive actionto avoid entering the Parthenios Restaurant;

(g) operat[ing] her motor vehicle through theintersection in violation of the automatic traffic lightscontrary to the provisions of Ill.Rev.Stat. Ch. 95-1/2,Section 5/11-306 [sic]."

Count IV of the complaint, which alleged wilful and wantonmisconduct on the part of RMTD, was dismissed without prejudice. Relevant here, the suits filed by plaintiffs Parthenios, Campbell,and Foster each contained allegations similar to count I ofSterling's complaint. For purposes of trial, plaintiffs' suitswere consolidated with a complaint filed by Carter against Hudsonand a counterclaim for contribution and property damage filed byRMTD and Carter against Hudson.

Following the presentation of all of the evidence, but priorto closing arguments, Sterling, Parthenios, and Foster moved tovoluntarily dismiss Carter as a defendant. The trial court grantedthe motion with prejudice. The following day, Campbell also movedto dismiss Carter as a defendant. The trial court grantedCampbell's motion with prejudice. RMTD then moved for a judgmentin its favor, arguing that because its agent (Carter) had beendismissed there could be no cause of action against it, theprincipal. The trial court denied RMTD's motion without comment. With respect to the lawsuits brought by Sterling, Parthenios,Foster, and Campbell, the jury returned a general verdict againstHudson and RMTD, apportioning 70% of the fault to Hudson and 30% toRMTD. The jury awarded $1.7 million to Sterling, $121,853 toParthenios, $1,671.75 to Foster, and $29,532 to Campbell. Withrespect to the claims against Hudson, the jury awarded Carter$420,288.91 and RMTD $5,411.35. The awards to Carter and RMTDreflected a 30% reduction for the negligence attributable to them.

RMTD filed a posttrial motion arguing, among other things,that it was entitled to judgment notwithstanding the verdict(judgment n.o.v.). RMTD advanced three reasons why it was entitledto judgment n.o.v. First, RMTD renewed its argument that thevoluntary dismissal with prejudice of Carter required itsdismissal. Second, RMTD claimed that plaintiffs failed to provethat Carter could have stopped the bus after the impact withHudson's vehicle. Third, RMTD asserted that there is no duty onthe part of a driver to anticipate the negligence of others. Thetrial court denied RMTD's motion. In rejecting RMTD's argumentthat Carter's dismissal constituted an "adjudication on themerits," the trial court relied on DeLuna v. Treister, 185 Ill. 2d565 (1999). The trial court explained:

"In this case, it is clear that the stated reason fordismissing Ms. Carter at the close of the evidence was that itwould simplify the instructions to the jury, and the unstatedreasons which defendant asserted in argument was it was astrategy decision to keep the jury from sympathizing with herbecause of her emotional outbursts of crying in court. Therewas no evidence of a settlement with her and a release havingbeen given in exchange for the dismissal. Nor was there anyevidence that plaintiffs acknowledged that their claimsagainst her had no merit."

The court went on to rule that even if the voluntary dismissal withprejudice constituted an "adjudication on the merits," it waspersonal to Carter. Hudson also filed a posttrial motion, whichthe trial court denied. Both Hudson and RMTD filed separateappeals. We consolidated the appeals for review. In addition,Sterling filed a cross-appeal. On June 6, 2002, however, wegranted Sterling's motion to dismiss the cross-appeal. Accordingly, only the appeals of Hudson and RMTD are before us.

II. ANALYSIS

A. Appeal No. 2--01--0876

RMTD raises four issues on appeal. First, RMTD asserts that plaintiffs committed reversible error in violating a motion inlimine regarding whether Carter wore a seatbelt. Second, RMTDclaims that Carter's voluntary dismissal with prejudice entitled itto judgment in its favor. Third, RMTD alleges that the plaintiffsfailed to establish the elements of duty and proximate cause.Finally, RMTD argues that the jury's verdict was excessive andunreasonable. We address the second issue raised by RMTD in thepublished section of this decision. We resolve the remainder ofthe issues raised by RMTD, as well as those issues raised bydefendant Hudson, in the unpublished portion of this decision.

1. Motion In Limine

The material in this section is nonpublishable under SupremeCourt Rule 23 (166 Ill. 2d R. 23).

[The following material is nonpublishable under Supreme CourtRule 23.]

[The preceding material is nonpublishable under Supreme CourtRule 23.]2. Effect of Carter's Voluntary Dismissal RMTD claims that plaintiffs' decision to voluntarily dismissCarter with prejudice entitles it to judgment in its favor. InTowns v. Yellow Cab Co., 73 Ill. 2d 113 (1978), our supreme courtstated:

"When an action is brought against a master based on thealleged negligent acts of his servant, and no independentwrong is charged on behalf of the master, his liability isentirely derivative, being founded upon the doctrine ofrespondeat superior. In this regard, it has been said thatthe liability of the master and servant for the acts of theservant is deemed that of one tortfeasor and is a consolidatedor unified one." Towns, 73 Ill. 2d at 123-24.

Relying on these principles, the court developed what has becomeknown as the Towns doctrine. See Bachenski v. Malnati, 11 F.3d1371, 1377-78 (7th Cir. 1993). The doctrine provides that, insuits based on respondeat superior, a judgment for either theemployer or the employee, arising out of an action predicated onthe alleged negligence of the employee, bars a subsequent suitagainst the other for the same claim of negligence where the agencyrelationship is not in question. Towns, 73 Ill. 2d at 122-23.

Invoking Towns and the doctrine of res judicata, RMTD claimsthat the trial court erred in refusing to enter judgment in itsfavor after the court granted plaintiffs' motion to voluntarilydismiss Carter. RMTD argues that plaintiffs' motion to voluntarilydismiss Carter, which was made at the close of the evidence, andwhich the trial court granted with prejudice, constituted anadjudication on the merits. Thus, RMTD reasons, plaintiffs' claimsagainst RMTD, which were based on a theory of respondeat superior,were barred.

The doctrine of res judicata provides that a final judgment onthe merits rendered by a court of competent jurisdiction bars anysubsequent actions between the parties or their privies on the samecause of action. Rein v. David A. Noyes & Co., 172 Ill. 2d 325,334 (1996). The doctrine applies if the following threerequirements are met. First, there must be a final judgment on themerits rendered by a court of competent jurisdiction. Second,there must be an identity of cause of action. Third, there must bean identity of parties or their privies. Rein, 172 Ill. 2d at 335. In the present case, the parties do not address whether the secondand third elements of res judicata have been satisfied. Instead,the parties only dispute whether the voluntary dismissal of Carterwith prejudice operated as an adjudication on the merits. Accordingly, we limit our discussion to addressing whether, in anaction based on the doctrine of respondeat superior, the voluntarydismissal with prejudice of an employee, entered after the close ofevidence, constitutes an adjudication on the merits such that asuit against the employer is barred under the doctrine of resjudicata. Whether a claim is barred by the doctrine of resjudicata is a question of law, which we review de novo. FederalSignal Corp. v. SLC Technologies, Inc., 318 Ill. App. 3d 1101, 1116(2001).

RMTD claims that the voluntary dismissal of Carter withprejudice constituted an adjudication on the merits. RMTD relieson case law that provides that a "dismissal with prejudice" istantamount to an adjudication on the merits (see Van Slambrouk v.Marshall Field & Co., 98 Ill. App. 3d 485, 487 (1981); Village ofArlington Heights v. American National Bank & Trust Co. of Chicago,72 Ill. App. 3d 744, 746 (1979)). The viability of such holdingsis in doubt, however, in light of the supreme court's decision inDowning v. Chicago Transit Authority, 162 Ill. 2d 70 (1994). There, our supreme court rejected the proposition that a summaryjudgment "by definition" means a judgment on the merits. Downing,162 Ill. 2d at 77. The court cautioned that what constitutes anadjudication on the merits should be based on the context in whicha ruling is made. Downing, 162 Ill. 2d at 77. The holding inDowning has been extended to involuntary dismissals. See, e.g.,Brady v. Joos, 273 Ill. App. 3d 793, 797-98 (1995) (holding thatinvoluntary dismissal with prejudice pursuant to Supreme Court Rule103(b) (134 Ill. 2d R. 103(b)) did not constitute a judgment on themerits because defendant was dismissed for a reason bearing norelationship to the actual merits). Accordingly, we reject RMTD'srequest that we automatically equate Carter's dismissal withprejudice as an adjudication on the merits.

The question remains, then, under what circumstances will avoluntary dismissal with prejudice be deemed an adjudication on themerits. In accord with the trial court, we believe that the answerto this inquiry can be found in DeLuna v. Treister, 185 Ill. 2d 565(1999) (DeLuna II). In DeLuna II, the plaintiff filed a medicalmalpractice action against Dr. Treister. The plaintiff alsoalleged that St. Elizabeth's Hospital (St. Elizabeth's), as Dr.Treister's employer, was vicariously liable. St. Elizabeth's fileda motion pursuant to section 2--619 of the Code of Civil Procedure(Ill. Rev. Stat. 1987, ch. 10, par. 2--619) to dismiss the claimsagainst it on the basis that the plaintiff failed to comply withthe statutory requirements for filing a medical malpractice action. The trial court granted the hospital's motion and dismissed St.Elizabeth's without prejudice. On identical grounds, the courtdismissed with prejudice all counts against Dr. Treister. Insteadof seeking leave to refile the action in compliance with thestatutory requirements, the plaintiff opted to appeal, challengingthe constitutionality of the statutory requirements for filing amedical malpractice action. Our supreme court eventually found thestatute constitutional. See DeLuna v. St. Elizabeth's Hospital,147 Ill. 2d 57 (1992) (DeLuna I). Subsequently, the plaintiffrefiled his medical malpractice action against St. Elizabeth's andDr. Treister. Dr. Treister moved to dismiss, arguing that hisprior dismissal with prejudice in DeLuna I constituted a dismissal"on the merits" for purposes of Supreme Court Rule 273 (134 Ill. 2dR. 273 (providing that, with certain exceptions, involuntarydismissals operate as adjudications on the merits)) and that thedoctrine of res judicata barred the suit against him. The trialcourt granted Dr. Treister's motion to dismiss. The trial courtalso granted St. Elizabeth's motion to dismiss on the basis that,because the plaintiff's theory of liability was based on respondeatsuperior, the dismissal of the hospital's agent required thedismissal of it, the principal.

The supreme court held that the trial court properly dismissedthe plaintiff's cause of action against Dr. Treister because theplain language of Rule 273 compelled a finding that the dismissalof Dr. Treister was "on the merits." The court explained that thedismissal was involuntary and none of the exceptions listed in Rule273 applied. DeLuna II, 185 Ill. 2d at 573-74. However, the courtdetermined that the suit against St. Elizabeth's could proceed. The court recognized that, as a general rule, the dismissal of anagent compels the dismissal of any vicarious liability claimagainst the principal. DeLuna II, 185 Ill. 2d at 581. However,relying on section 51 of the Restatement (Second) of Judgments (Restatement (Second) of Judgments