First Midwest Trust v. Rogers
State: Illinois
Court: 4th District Appellate
Docket No: 4-96-0788
Case Date: 04/03/1998
NO. 4-96-0788
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
FIRST MIDWEST TRUST COMPANY, as ) Appeal from
Administrator of the Estate of Jerry ) Circuit Court of
Mallady, Deceased, and GAYTHEL MALLADY, ) Douglas County
Individually, ) No. 93L17
Plaintiffs-Appellants and )
Cross-Appellees, )
v. )
PAUL TY ROGERS and THE TOWN OF ARCOLA, )
Commonly known as ARCOLA TOWNSHIP, ) Honorable
Defendants-Appellees and ) Stephen H. Peters,
Cross-Appellants. ) Judge Presiding.
______________________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In July 1993, plaintiffs Jerry Mallady and his wife Gaythel sued
defendants, Paul Ty Rogers and the Town of Arcola (Arcola), for damages resulting
from a collision between Jerry's automobile and a snowplow driven by Rogers
during the course of his employment with Arcola. In July 1996, the jury awarded
damages based on Rogers' negligence and found Jerry 50% comparatively negligent.
Plaintiffs appeal, arguing that (1) an enforceable settlement
agreement existed; (2) defendants' reconstruction expert should not have been
allowed to testify; (3) the trial court erred by allowing defendants to present
section 11-205 of the Illinois Vehicle Code (Code) (625 ILCS 5/11-205 (West
1992)) to the jury; (4) the court should have set aside the comparative negli-
gence finding and entered a judgment notwithstanding the verdict (judgment
n.o.v.) on liability; and (5) the damages award is inadequate. Defendants cross-
appeal, arguing that the court erred by (1) denying defendants' motion to reduce
the damages award by the amount of funeral expenses and medical expenses for
which plaintiffs had no liability; and (2) failing to apply section 2-1115.1 of
the Code of Civil Procedure, as amended (735 ILCS 5/2-1115.1 (West Supp. 1995)),
to limit the damages award for count III. We affirm in part, vacate in part,
reverse in part and remand with directions.
I. BACKGROUND
A. The Accident
On February 26, 1993, Rogers was working for Arcola plowing county
roads in that township. Rogers stopped at the intersection of County Road 500Nand Route 45, looked in both directions, and began to drive across Route 45.
Jerry was driving north on Route 45 and collided with the snowplow. Rogers
testified that he did not see Jerry's car. He later pleaded guilty to the
offense of failure to yield the right-of-way (625 ILCS 5/11-904 (West 1992)).
Jerry suffered severe injuries, including a closed head injury
resulting in bleeding into the brain, facial lacerations, multiple rib fractures,
a lacerated and ruptured lung, broken left leg and hip, dislocated hip, and right
ankle, spinal, skull, and jaw fractures for which he underwent several surgical
procedures. He remained hospitalized for 3
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