{ "id": 3536862, "name": "MARK A. CURL, Plaintiff-Appellant, v. McDONOUGH DISTRICT HOSPITAL, Defendant-Appellee", "name_abbreviation": "Curl v. McDonough District Hospital", "decision_date": "1986-07-25", "docket_number": "No. 3-85-0273", "first_page": "796", "last_page": "803", "citations": [ { "type": "official", "cite": "145 Ill. App. 3d 796" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "490 N.E.2d 995", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "999" } ], "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495985 ], "pin_cites": [ { "page": "559-60" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0553-01" ] }, { "cite": "430 N.E.2d 131", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 507", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3073793 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0507-01" ] }, { "cite": "454 N.E.2d 1139", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1152" } ], "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 363", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5660051 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0363-01" ] }, { "cite": "488 N.E.2d 644", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "140 Ill. App. 3d 176", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3532785 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0176-01" ] }, { "cite": "382 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 649", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3328079 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0649-01" ] }, { "cite": "120 Ill. App. 3d 1170", "category": "reporters:state", "reporter": "Ill. App. 3d", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 811, "char_count": 16512, "ocr_confidence": 0.767, "pagerank": { "raw": 4.408767690195799e-08, "percentile": 0.276317654040834 }, "sha256": "22acd8fbd84cf241ed086c63f87c852f7244b23193285e21d056efd291b91e7a", "simhash": "1:c468ddfe2fff0636", "word_count": 2685 }, "last_updated": "2023-07-14T17:15:42.287354+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARK A. CURL, Plaintiff-Appellant, v. McDONOUGH DISTRICT HOSPITAL, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nPlaintiff sued defendant McDonough District Hospital and others in the circuit court of McDonough County for personal injuries that he sustained when he and the bicycle he was riding collided with a trash receptacle on defendant\u2019s property. The case was tried before a jury, and a verdict was returned for the Hospital.\nPlaintiff appeals from the denial of his post-trial motion on grounds that the jury\u2019s verdict for defendant is contrary to the manifest weight of the evidence, that certain rulings of the trial court on evidentiary matters deprived plaintiff of a fair trial, and that the trial court erred in denying plaintiff\u2019s motion for a directed verdict at the close of all evidence. We affirm.\nIn a prior appeal, we held in an unpublished order (Curl v. McDonough District Hospital (1984), 120 Ill. App. 3d 1170 (unpublished Rule 23 order)) that the trial court had not erred in denying defendant\u2019s motion for summary judgment. The facts as presented for our consideration in that appeal follow. Plaintiff, a high school student at the time, was seriously injured when the bicycle he was riding collided with a large metal refuse dumpster situated on a roadway running between McDonough District Hospital\u2019s hospital and its medical clinic in Macomb. The hospital had contracted with Marshall Erdman & Associates, Inc., for the construction of a suite of doctors\u2019 offices in a wing of the medical clinic. Marshall Erdman subcontracted with LeRoy Brown & Sons, Inc., for trash dumpsters to be used during the construction project. The particular dumpster involved in the accident was placed on the roadway by employees of LeRoy Brown at the direction of a supervising employee of Marshall Erdman and for the convenience of the construction workers. The dumpster was a red painted metal combination truck-box/refuse container measuring 20 feet by 8 feet by 4 feet with metal wheels, commonly referred to as a \u201croll-off.\u201d\nOn the date of the accident, May 13, 1980, plaintiff observed the dumpster as he pedalled westward along the roadway on his way to visit his girlfriend that afternoon. Later, on his return home, he again observed the dumpster when he was approximately 110 yards away from it, but was amnesiac from that point until he awoke in an ambulance. The day was sunny, the brakes on plaintiff\u2019s bicycle were in good working order, and there were no known witnesses to the accident.\nLinda Bedwell, a nurse, heard the collision from her station in the medical-clinic building. When she went to the window facing the roadway, she saw the plaintiff and his bicycle lying on the pavement at the northwest corner of the dumpster. She did not see or hear any vehicles in the vicinity of the accident.\nThe plaintiff has a medical history of epilepsy and was taking medication at a therapeutic level on the date of the accident. His attending neurologist, Dr. David Good, testified that the plaintiff\u2019s seizures had occurred in connection with sleep, but he had not had one for V-k years prior to the accident. In the opinion of the neurologist, it was extremely unlikely that the plaintiff had suffered an epileptic seizure prior to the collision, but he may have had one as a consequence of it. The plaintiff has been paralyzed below the waist since the accident.\nUpon remand from the interlocutory appeal, the matter proceeded to trial and the jury found for the defendant hospital, as aforesaid. As a result of the trial, the facts were expanded and clarified in certain material respects which should be explained before addressing the matters raised for our consideration today. Most notably, plaintiff now acknowledges that the epileptic seizure he suffered on May 13, 1980, most likely preceded his head-on collision with the dumpster. Medical evidence introduced at trial tended to establish that even though plaintiff\u2019s history showed no daytime seizures since he was a young child, there was a 20% chance that the next seizure plaintiff suffered would be a daytime seizure, and this could occur despite the fact that plaintiff\u2019s medication was maintained at a therapeutic level.\nWith respect to the dumpster, it appears from the record before us that the dumpster was placed by former defendant, LeRoy Brown, in a \u201cno parking\u201d zone of a roadway outside of the rear entrance to defendant hospital\u2019s Health Services Building. The dumpster was delivered to the site around December of 1979, and remained there, except for purposes of periodic replacement until May of 1980 to accommodate the construction activities of former defendant Marshall Erdman & Associates, Inc. (It appears that plaintiff settled with both LeRoy Brown and Marshall Erdman before the conclusion of the trial.) The roadway in question lies completely within the hospital\u2019s jurisdiction and measures 231/2 feet in width. It serves traffic traveling from east to west from the doctors\u2019 parking lot to Grant Street, although it does not appear to have been clearly marked at all access points as a one-way street. In the normal, westbound flow of traffic, the dumpster would have been on the left side of the road. Plaintiff, however, was traveling eastbound toward the dumpster at the time of the accident. The outer edge of the dumpster extended about 8 feet out from the curb into the road.\nTestimony at trial further revealed that certain hospital personnel working at the Health Services Building had in the past made a habit of parking along the curb, instead of in the appropriate parking lot. As a consequence, the hospital administrator had enforced the hospital\u2019s no-parking policy in the area where the accident occurred by issuing a memorandum and having the area marked in yellow as a \u201cno parking\u201d zone.\nThe balance of the factual background of this case has been set forth adequately in our prior order and will not be repeated here except as needed to explain our resolutions of the issues presented in this appeal.\nPlaintiff\u2019s first issue concerns the trial court\u2019s refusal to admit four exhibits into evidence after they had been introduced through various witnesses at trial. Two of the exhibits were memoranda directed by hospital administrator, David McConkey, to Dr. Kling and to Max Byers, the hospital\u2019s director of security. The earlier memorandum was dated September 26, 1977, and requested Dr. Kling and his staff not to park in the area that was subsequently occupied by the dumpster. It explained that several employees had complained and that the parked vehicle(s) created problems of congestion on the roadway. At trial, McConkey identified the document and was examined and cross-examined about its contents.\nSimilarly, the memorandum directed to Byers was identified and subjected to direct and cross-examination through McConkey. This memorandum, dated October 29, 1979, asked Byers to paint the curb yellow and put up a \u201cno parking\u201d sign.\nThe purpose of plaintiff\u2019s introduction of the foregoing exhibits was to prove circumstantially that defendant hospital had knowledge that the parking of an obstacle along the roadway created a hazardous condition, and that defendant hospital had a known duty to keep such obstacles off the roadway.\nThe other two exhibits which were also refused admission were ordinances adopted by the defendant hospital district. One was entitled \u201cThe McDonough County Hospital District Traffic Control Ordinance\u201d and was filed with the recorder\u2019s office on November 30, 1976. The other was \u201cAn Ordinance Establishing a Police Department for the McDonough County Hospital District,\u201d and was filed with the county clerk on August 27, 1976. McConkey was examined about the ordinances as well. They were enacted for the purpose of regulating traffic and establishing no parking zones on the defendant\u2019s property and policing such regulations through an internal security department.\nPrior to trial, defendant filed a motion in limine to preclude plaintiff\u2019s use of evidence of the \u201cno parking\u201d ordinances affecting defendant\u2019s property. Although the motion was denied and the exhibits were introduced in plaintiff\u2019s case in chief, the court later denied plaintiff\u2019s motion to admit the exhibits for the jury\u2019s consideration during its deliberations. Plaintiff was not precluded, however, from presenting in closing arguments to the jury its theories of liability based upon a violation of the hospital\u2019s \u201cno parking\u201d policy along the roadway where the dumpster had been allowed to remain between December of 1979 and May of 1980.\nThe admission of evidence is generally a matter that lies within the discretion of the trial court and its decision will not be reversed on appeal unless an abuse of discretion is manifest. (Bosel v. Marriott Corp. (1978), 65 Ill. App. 3d 649, 382 N.E.2d 649.) We find no abuse of discretion here.\nThe trial court\u2019s ruling on the foregoing exhibits, it appears, resulted from its conclusion that the ordinances plaintiff sought to admit were not enacted for the purpose of protecting against the type of injury plaintiff incurred in this case. (See Kostecki v. Pavlis (1986), 140 Ill. App. 3d 176, 488 N.E.2d 644 (court affirmed summary judgment for defendants, holding that a city fire-safety ordinance was not enacted to protect against injury to child playing near defective exit door under nonemergency circumstances).) We believe that parking of a dumpster, moreover, was not necessarily the type of traffic control envisioned by the ordinances. Further, even were we to find error in the trial court\u2019s refusal to admit the exhibits, it would be harmless to plaintiff in this case. The plaintiff adequately presented his point to the jury.\nAssuming, arguendo, that the exhibits were relevant, they were so only with respect to the \u201clegal cause\u201d prong of proximate causation. In our determination of the first appeal, we held that \u201cthe placement of a large obstruction on the traveled portion of the roadway rendered the possibility of an accident foreseeable, and the plaintiff\u2019s injury *** was not \u2018so extraordinary and unusual that the defendants] should not have been required to guard against it.\u2019 \u201d (Curl v. McDonough District Hospital (1984), 120 Ill. App. 3d 1170 (unpublished Rule 23 order), quoting Lemings v. Collinsville School District No. 10 (1983), 118 Ill. App. 3d 363, 454 N.E.2d 1139, 1152 (Jones, J., specially concurring).) When we rendered our opinion in the interlocutory appeal, the pleadings and affidavits of record indicated that plaintiff\u2019s epileptic seizure probably did not precede his collision with the dumpster. Accordingly, we affirmed the trial court's denial of summary judgment for defendant, holding that proximate causation \u201cremain[ed] a factual question for the jury.\u201d\nThe evidence as it developed at the time of the jury trial established that it was more likely than not that the plaintiff\u2019s seizure occurred before he hit the dumpster, when he last remembered seeing it some 150 feet, more or less, away. Plaintiff\u2019s primary challenge at trial was thereby shifted from proving \u201clegal cause\u201d to proving that defendant\u2019s act or omission was a \u201ccause in fact\u201d of his injury. Under the circumstances, the trial court\u2019s rulings on the exhibits cannot be said to constitute an abuse of discretion since they would have been cumulative of testimony adduced at trial on the issue of \u201clegal cause,\u201d and none of them would have assisted the jury in its determination of the \u201ccause in fact\u201d prong of proximate causation.\nFor the reason that plaintiff failed to establish that any act or omission of the hospital was a \u201ccause in fact\u201d of his injuries, we must reject as well plaintiff\u2019s contentions that he was entitled to a directed verdict based on his nuisance count and that a new trial should have been granted on ground that the jury\u2019s verdict is contrary to the manifest weight of the evidence. Even assuming that the hospital violated the nuisance statute (Ill. Rev. Stat. 1983, ch. 1001/2, par. 26(5)) by permitting an obstruction or encroachment upon its roadway, plaintiff was still required to prove that such violation was a cause in fact of plaintiff\u2019s injury. Sheehan v. Janesville Auto Transport (1981), 102 Ill. App. 3d 507, 430 N.E.2d 131.\nThe dichotomous analysis of proximate causation which we employ here has been explained as follows:\n\u201cIn order that liability may attach for a negligent act or omission, such a relationship must exist between the act or omission and the injury or damage suffered that the act or omission may be said to be the cause of such injury or damage. [Citations.] ***.\n\u2018 \u201cProximate cause\u201d is a term of art which encompasses the distinct concepts of cause in fact and legal cause. Determining whether the defendant\u2019s conduct was a cause of plaintiff\u2019s injury involves nothing more than an analysis of the facts. Once it is established that the defendant\u2019s conduct has in fact been a cause of injury, however, there remains the question whether the defendant should be legally responsible for what he has caused. As otherwise stated, the question is whether the policy of the law will extend defendant\u2019s responsibility to the consequences which have in fact occurred.\nTwo tests are generally applied in determining the issue of causation in fact. Under the \u201csubstantial factor\u201d test, the defendant\u2019s conduct is a cause of an event if it was a material element and a substantial factor in bringing it about. Under the second test, commonly called the \u201cbut for\u201d rule, the defendant\u2019s conduct is not a cause of an event if the event would have occurred without it. [Citations.]\u2019\n*** [M]any cases consider an issue stated to be that of \u2018proximate cause\u2019 without specifying whether they are concerned with \u2018cause in fact,\u2019 the factual issue, or \u2018legal cause,\u2019 the legal or duty issue. (Cf. Lemings v. Collinsville School Dist. No. 10 (1983), 118 Ill. App. 3d 363, 454 N.E.2d 1139 (specially concurring opinion).) Liability cannot be predicated upon surmise of conjecture as to the cause of the injury; cause in fact can be established only when there is a reasonable certainty that the defendant\u2019s conduct caused the injury. [Citation.]\u201d Morton v. F.B.D. Enterprises (1986), 141 Ill. App. 3d 553, 559-60, 490 N.E.2d 995, 999.\nIn this case, the plaintiff acknowledged that he was traveling against the normal flow of traffic when he headed back home from his afternoon visit with his girlfriend. The absence of any other vehicles around the scene of the accident immediately before or after the collision gives rise to a negative inference that plaintiff was not forced to veer into the dumpster to avoid hitting something else. The photographs of plaintiff\u2019s bicycle and the dumpster show that the front wheel is pushed back into the frame and that it left a long distinct vertical marking on the dumpster. This evidence, together with plaintiff\u2019s testimony that he was picking up speed along the roadway immediately before he lost consciousness, indicates that he collided head on with considerable force. On these facts, the jury could well determine that the act and any omission of defendant hospital in permitting the dumpster to be placed where it was and in failing to remove it were nonmaterial elements and insubstantial factors in causing plaintiff\u2019s injury. Similarly, under the \u201cbut for\u201d test, it cannot be said, based on the foregoing evidence, that plaintiff would not have been injured if the dumpster had been stationed elsewhere. Viewing the evidence, as we must, in the light most favorable to the defendant, we find no error in the trial court\u2019s denial of plaintiff\u2019s motion for a directed verdict on the nuisance count. Under the circumstances, it was within the purview of the jury to determine factually whether the dumpster\u2019s obstruction of part of the roadway was a proximate or a remote cause of plaintiff\u2019s injuries. The jury\u2019s verdict indicates that they found the latter. Because the jury\u2019s verdict is not contrary to the manifest weight of the evidence, the trial court did not err in denying plaintiff\u2019s motion for a new trial.\nFor these reasons, we affirm the judgment of the circuit court of McDonough County.\nAffirmed.\nWOMBACHER and HEIPLE, JJ., concur.", "type": "majority", "author": "JUSTICE BARRY" } ], "attorneys": [ "Patricia A. Walton, of John H. Bisbee Law Offices, of Macomb, for appellant.", "Duncan B. Cooper and Mark D. Howard, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee." ], "corrections": "", "head_matter": "MARK A. CURL, Plaintiff-Appellant, v. McDONOUGH DISTRICT HOSPITAL, Defendant-Appellee.\nThird District\nNo. 3-85-0273\nOpinion filed July 25, 1986.\nPatricia A. Walton, of John H. Bisbee Law Offices, of Macomb, for appellant.\nDuncan B. Cooper and Mark D. Howard, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee." }, "file_name": "0796-01", "first_page_order": 818, "last_page_order": 825 }