{ "id": 5799969, "name": "CHARLES WALLER, Plaintiff-Appellant, v. ALKA BAGGA, Defendant-Appellee", "name_abbreviation": "Waller v. Bagga", "decision_date": "1991-09-16", "docket_number": "No. 1\u201490\u20141639", "first_page": "542", "last_page": "549", "citations": [ { "type": "official", "cite": "219 Ill. App. 3d 542" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "413 N.E.2d 1371", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 775", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3162043 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0775-01" ] }, { "cite": "94 N.E.2d 328", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "406 Ill. 398", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2634527 ], "opinion_index": 0, "case_paths": [ "/ill/406/0398-01" ] }, { "cite": "145 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "313 Ill. 257", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2434392 ], "weight": 2, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/ill/313/0257-01" ] }, { "cite": "230 N.E.2d 574", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "576-77" } ], "opinion_index": 0 }, { "cite": "86 Ill. App. 2d 403", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2551188 ], "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/86/0403-01" ] }, { "cite": "93 S. Ct. 186", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "34 L. Ed. 2d 152", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "409 U.S. 895", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6368902, 6368486, 6367560, 6368713, 6368105, 6367725, 6368304, 6367927 ], "opinion_index": 0, "case_paths": [ "/us/409/0895-08", "/us/409/0895-06", "/us/409/0895-01", "/us/409/0895-07", "/us/409/0895-04", "/us/409/0895-02", "/us/409/0895-05", "/us/409/0895-03" ] }, { "cite": "278 N.E.2d 781", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "pin_cites": [ { "page": "782" } ], "opinion_index": 0 }, { "cite": "50 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2912788 ], "year": 1972, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0317-01" ] }, { "cite": "416 N.E.2d 799", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 1095", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5534814 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/1095-01" ] }, { "cite": "386 N.E.2d 134", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "139" } ], "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 236", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3307010 ], "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0236-01" ] }, { "cite": "428 N.E.2d 1035", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "1036" } ], "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 812", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3085038 ], "year": 1979, "pin_cites": [ { "page": "814" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0812-01" ] }, { "cite": "372 N.E.2d 656", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "658" }, { "page": "660" }, { "page": "660-62" } ], "opinion_index": 0 }, { "cite": "69 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5456536 ], "weight": 4, "pin_cites": [ { "page": "511-12" }, { "page": "516" }, { "page": "516-19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0507-01" ] } ], "analysis": { "cardinality": 776, "char_count": 14916, "ocr_confidence": 0.779, "pagerank": { "raw": 1.2630761540649236e-07, "percentile": 0.6128677772333445 }, "sha256": "18479207e9792fcc2a369f8dd4596df0c05640acd716e0ccfe92ead3af347669", "simhash": "1:9a231cc7f3e1c2a5", "word_count": 2414 }, "last_updated": "2023-07-14T21:35:35.632923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLES WALLER, Plaintiff-Appellant, v. ALKA BAGGA, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nPlaintiff Charles Waller commenced this personal injury action against defendant Alka Bagga for defendant\u2019s alleged negligence in operating her motor vehicle. After a jury verdict in plaintiff\u2019s favor in the amount of $5,000, plaintiff unsuccessfully moved for a new trial predicated upon the court bailiff\u2019s prejudicial, unauthorized communications to jurors prior to and during trial. The sole issue on appeal is whether the court abused its discretion in denying plaintiff a new trial. For the reasons that follow, we affirm.\nThe evidence adduced at trial reflects that on the morning of June 11, 1983, plaintiff was the offensive coordinator of the Chicago Blitz, a United States Football League team. Plaintiff was driving to work when his vehicle was struck by defendant\u2019s vehicle at an intersection in the City of Des Plaines.\nDuring trial, defendant contested both liability and damages. In particular, defendant attempted to show that she did not, as plaintiff alleged, negligently run a red light; rather, defendant claimed that she proceeded through the intersection under a yellow light and struck plaintiff\u2019s vehicle only after that vehicle advanced into the intersection under a red light. Additionally, defendant attempted to show that the collision resulted in no injuries to plaintiff\u2019s lower back as alleged, but that plaintiff\u2019s injuries were merely preexisting.\nAt the close of the evidence, the jury returned a verdict for plaintiff in the amount of $6,250, which it reduced by 20% for plaintiff\u2019s contributory negligence. This award reflected damages for aggravation of a preexisting condition and future medical expenses. No damages were awarded for permanent disability resulting from the accident or for pain and suffering. No award for plaintiff\u2019s lost wages was made because plaintiff dropped this claim prior to deliberations. Subsequently, the jury was polled and each juror assented to the verdict.\nThe day after the jury returned its verdict, one of the jurors, Dorie Alexander, placed an unsolicited telephone call to plaintiff\u2019s counsel. According to Alexander\u2019s affidavit, which plaintiff submitted in support of his motion for a new trial, Alexander claimed that the bailiff twice told her, prior to any witness\u2019 testimony, that \u201cthis case should never have come to court.\u201d This statement was made while the bailiff was escorting the jury to the elevator. On another occasion, the bailiff remarked in the jury room during a recess that \u201cthis case shouldn\u2019t even be here.\u201d Alexander\u2019s affidavit also indicated that before plaintiff testified, the bailiff stated to the jury that plaintiff \u201chad been head coach at San Diego for only one year because he had a losing season. [The] Bailiff implied that [plaintiff] was a \u2018bad coach.\u2019 \u201d The affidavit continued by stating that during deliberations, another juror, William Wright, \u201ctold the jury that [plaintiff] was divorced.\u201d After verdict, the affidavit states, the bailiff told Alexander that \u201c[plaintiff] left his wife for a younger woman, the younger woman who sat in the courtroom during trial.\u201d\nIn addition to Alexander\u2019s affidavit, plaintiff submitted the affidavit of juror William Wright. Wright stated in his affidavit:\n\u201c3. That during the trial of this case and before jury deliberations began, [the bailiff] said to me that he was wondering whether the plaintiff, Mr. Waller, was divorced and whether Mr. Waller\u2019s new wife was the young woman sitting in the back of the courtroom that day. I told [the bailiff] that the young woman he was referring to was my wife.\n4. That during deliberations, I joked that [the bailiff] was wondering whether the plaintiff, Mr. Waller was divorced.\u201d\nAt the hearing on plaintiff\u2019s motion, the record reflects that, although the court did not strike the affidavits, it considered them \u201cpalpably unworthy of consideration.\u201d The court supplied no further analysis and no evidentiary hearing was held to determine the veracity of the affidavits. Defendant supplied no counteraffidavits, and the bailiff did not testify.\nThe first issue we address is whether a juror\u2019s affidavit may ever be properly employed to impeach a verdict. In People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656, the court held that in certain situations, and contrary to the trial court\u2019s decision in that case, jurors\u2019 testimony can be used to impeach their verdict. Testimony at Holmes\u2019 trial involved identification of the defendant\u2019s shoes with footprints left in the snow at the scene of the crime. Several members of the jury made an independent visit to a Florsheim shoe store to inspect the logo\u2019s design on the heels of that shoe type. The results of this investigation were discussed during deliberations of the jury. In analyzing whether the subsequent testimony or affidavits from the jurors could be used to impeach their verdict, the court distinguished between testimony concerning the subjective mental processes of the jurors and testimony about improper external influences upon the jurors:\n\u201cIn the first category are those instances in which it is attempted to prove by a juror\u2019s testimony or affidavit the motive, method or process by which the jury reached its verdict. These, almost without exception, have been held inadmissible. *** [Citations.] The second category involves those situations in which the testimony or affidavit of a juror is offered as proof of conditions or events brought to the attention of the jury without any attempt to show its effect on the jurors\u2019 deliberations or mental processes. In most jurisdictions such proof is admissible.\u201d (Holmes, 69 Ill. 2d at 511-12, 372 N.E.2d at 658.)\nAfter making this distinction, the Holmes court went on to conclude that a juror should be permitted to testify whether extraneous prejudicial information was improperly brought to the jury\u2019s attention or whether any outside influence was improperly brought to bear upon any juror. Holmes, 69 Ill. 2d at 516, 372 N.E.2d at 660.\nIn this case, the jurors\u2019 affidavits comport with the limitations set forth in Holmes. The affidavits allege that extraneous, prejudicial communications took place; however, the affidavits are silent as to the effect these comments had upon the individual juror\u2019s subjective mental processes. In accordance with Holmes, we believe that plaintiff\u2019s affidavits were properly advanced for the purpose of impeaching the jury\u2019s verdict.\nWe next consider the matter of prejudice. Returning to Holmes, the court stated on this matter:\n\u201cWe turn now to the question whether under the circumstances shown the judgment must be reversed and the cause remanded. Presumably there are many types of \u2018extraneous prejudicial information\u2019 or \u2018outside influence^],\u2019 and we need not and do not discuss whether and in what types of situations a defendant might be required to show \u2018such a probability that prejudice will result that it is [to be] deemed inherently lacking in due process.\u2019 [Citation.] Here, the \u2018extraneous information\u2019 improperly brought to this jury\u2019s attention was in the nature of evidence with which the defendant had not been confronted at trial and which he had no opportunity to refute. *** We do not interpret Rivers to mean, nor do we now hold, that every instance in which extraneous or unauthorized information reaches the jury results in error so prejudicial as to require reversal. Here the extraneous information improperly brought to the jury\u2019s attention was in the nature of evidence crucial to the question of defendant\u2019s identification with which he had neither been confronted at trial nor had the opportunity to refute. Under these circumstances we hold that the investigation by the members of the jury resulted in error so prejudicial that the judgment must be reversed and the cause remanded.\u201d Holmes, 69 Ill. 2d at 516-19, 372 N.E.2d at 660-62.\nCases in the civil context subsequent to Holmes have interpreted Holmes as \u201caccepting] a standard that there must be a probability of prejudice\u201d (Frede v. Downs (1981), 101 Ill. App. 3d 812, 814, 428 N.E.2d 1035, 1036), which may be satisfied when \u201cthe unauthorized evidence directly relates to issues in the case and may have improperly influenced the verdict.\u201d Heaver v. Ward (1979), 68 Ill. App. 3d 236, 241, 386 N.E.2d 134, 139.\nIn Heaver, a juror produced during deliberations a \u201cRules of the Road\u201d book which was not admitted into evidence but which the jury consulted in reaching its verdict. The court reversed and remanded for a new trial. Similarly, in Frede, which involved a boating accident, the verdict was set aside where a juror produced during deliberations a book which contained rules applicable to a skipper\u2019s duty when approaching another boat, a matter critical to the issue of liability. In both cases, and consistent with Holmes, the court did not delve into the actual effect the extraneous matter had on the jury, but found it sufficient that the matter related to a critical issue in the case and may have improperly influenced the jury. See also Brown v. Johnson (1981), 92 Ill. App. 3d 1095, 416 N.E.2d 799 (numerous jurors\u2019 unauthorized visit to accident scene required reversal where visit related to key issue in case and may have improperly influenced verdict).\nIn this case, although the comments were clearly improper, we do not believe they require reversal under the Holmes line of cases. The theme underlying these cases is that the extraneous matter bore relevancy to a critical issue in the case and was considered by the jury during its deliberations. Neither of these factors are present in this case.\nRegarding whether the comments impact on a critical issue, plaintiff suggests only that the bailiff\u2019s comments impacted on his credibility as a witness. Plaintiff asserts that by telling the jury that he was a bad coach and divorced, the bailiff may have compelled the jury to disbelieve plaintiff\u2019s testimony. While we agree that credibility may be a critical issue in a given case, we believe the statements cannot be reasonably viewed as affecting that issue. The jury had ample opportunity to observe plaintiffs demeanor and draw its own conclusion as to plaintiff\u2019s credibility. It stretches reality to believe that a modern-day jury would believe a bailiff\u2019s ephemeral and insubstantial comments over its own observations, especially in light of the judge\u2019s instruction, among others, that it is the sole judge of a witness\u2019 credibility. Similarly, as for the bailiff\u2019s comment that \u201cthis case shouldn\u2019t even be here,\u201d no critical issue is implicated as the comment implicates both parties\u2019 cases equally if it does so at all.\nRegarding whether the comments tainted the deliberative process, there is no clear evidence that the bailiff\u2019s comments ever reached all of the jurors or, if they did, formed a material part of the jury\u2019s deliberations. In Holmes and its progeny, the extraneous matter clearly entered the deliberative process. Here, the affidavits of Wright and Alexander conflict as to what occurred in the jury room regarding plaintiff\u2019s supposed divorce, and there is no evidence that the other statements (\u201cthis case shouldn\u2019t even be here\u201d and \u201cbad coach\u201d) were discussed during deliberations. This lack of infiltration distinguishes this case from Holmes, and we therefore do not accept it as analogous to the situation before us.\nWe would not reach a different conclusion in this case even if we were to apply the rules developed regarding unauthorized communications with a jury by the court, court personnel or third parties. The rule adopted in these cases has been stated by our supreme court as follows:\n\u201cIn our State the rule has judicially evolved that a jury verdict will not be set aside where it is apparent that no injury or prejudice resulted from a communication to the jury either by the court or by third persons outside the presence of the defendant.\u201d (People v. Rettig (1972), 50 Ill. 2d 317, 319, 278 N.E.2d 781, 782, cert. denied (1972), 409 U.S. 895, 34 L. Ed. 2d 152, 93 S. Ct. 186.)\nOther opinions within this line of cases have stated the rule thusly:\n\u201cMany courts, perhaps the majority, take the view that unless communications from the officer to the jury have a manifest tendency to influence the jury improperly against the unsuccessful party, or were such that prejudice resulted to such party, they furnish no ground for a new trial.\u201d Workman v. Goldford (1967), 86 Ill. App. 2d 403, 407, 230 N.E.2d 574, 576-77.\nOur research reveals only one case where an Illinois court has reversed a jury\u2019s decision solely on the basis that a third person\u2019s comments to the jury were so prejudicial to one party that reversal was required. In People v. Kawoleski (1924), 313 Ill. 257, 145 N.E.2d 203, the court reversed a conviction based on a deputy sheriff\u2019s comment that \u201cit should not take more than two or three minutes to convict that bird.\u201d In finding that the comment must have been manifestly intended to influence the jury against defendant, the court noted that the comment was made during a court recess, 8 to 10 feet from the jury, and in a loud tone of voice audible to the jury. Kawoleski, 313 Ill. at 258, 145 N.E. at 203; see also People v. Tilley (1950), 406 Ill. 398, 94 N.E.2d 328 (cumulative effect of errors, including prejudicial comments of juror\u2019s sister-in-law in front of jury, required reversal); People v. Patterson (1980), 90 Ill. App. 3d 775, 413 N.E.2d 1371 (prosecutor\u2019s referral to defendant charged with rape as \u201cChester the molester\u201d in presence of juror, although prejudicial, was cured where juror indicated he was not prejudiced and had not told other jurors).\nIn this case, the bailiff\u2019s comments clearly do not fall within the same class as the one made in Kawoleski. Again, the comment that \u201cthis case shouldn\u2019t be here\u201d is neutral, and the \u201cbad coach\u201d and \u201cdivorcee\u201d comment do not reflect a manifest tendency to sway the jury against plaintiff.\nIn summary, we affirm the circuit court\u2019s denial of a new trial. We reiterate that the bailiff\u2019s conduct in this case was totally inappropriate. Every litigant deserves his day in court unencumbered by outside influences. After careful review, we conclude that the court did not abuse its discretion in concluding that the bailiff\u2019s comments did not so encumber the proceedings as to deny plaintiff his day in court.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nMANNING, P.J., and CAMPBELL, J., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "James T.J. Keating, EC., of Chicago (Elizabeth S. Davis and James T.J. Keating, of counsel), for appellant.", "Williams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, Jeffrey H. Lipe, and Lloyd E. Williams, Jr., of counsel), for appellee." ], "corrections": "", "head_matter": "CHARLES WALLER, Plaintiff-Appellant, v. ALKA BAGGA, Defendant-Appellee.\nFirst District (1st Division)\nNo. 1\u201490\u20141639\nOpinion filed September 16, 1991.\nJames T.J. Keating, EC., of Chicago (Elizabeth S. Davis and James T.J. Keating, of counsel), for appellant.\nWilliams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, Jeffrey H. Lipe, and Lloyd E. Williams, Jr., of counsel), for appellee." }, "file_name": "0542-01", "first_page_order": 564, "last_page_order": 571 }