{ "id": 2869466, "name": "JAMES MASTANDREA, Plaintiff-Appellee, v. CHICAGO PARK DISTRICT, Defendant-Appellant", "name_abbreviation": "Mastandrea v. Chicago Park District", "decision_date": "1994-02-10", "docket_number": "No. 1-93-0153", "first_page": "897", "last_page": "904", "citations": [ { "type": "official", "cite": "259 Ill. App. 3d 897" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "334 N.E.2d 246", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 449", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2713030 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0449-01" ] }, { "cite": "551 N.E.2d 1319", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. 2d 458", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260512 ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0458-01" ] }, { "cite": "432 N.E.2d 920", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. App. 3d 257", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5475697 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/0257-01" ] }, { "cite": "557 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "199 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468262 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0435-01" ] }, { "cite": "518 N.E.2d 205", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 640", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3581641 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0640-01" ] }, { "cite": "596 N.E.2d 1254", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "232 Ill. App. 3d 877", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499438 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0877-01" ] }, { "cite": "593 N.E.2d 621", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "228 Ill. App. 3d 803", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5220654 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/228/0803-01" ] }, { "cite": "485 N.E.2d 418", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "137 Ill. App. 3d 1028", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3640652 ], "weight": 2, "pin_cites": [ { "page": "1035" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/1028-01" ] }, { "cite": "397 N.E.2d 175", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 558", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5605883 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0558-01" ] }, { "cite": "549 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 599", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2506783 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0599-01" ] }, { "cite": "281 N.E.2d 659", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "51 Ill. 2d 274", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392724 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-2d/51/0274-01" ] } ], "analysis": { "cardinality": 720, "char_count": 16515, "ocr_confidence": 0.792, "pagerank": { "raw": 6.166512551399588e-08, "percentile": 0.3830298600420333 }, "sha256": "1cbb73bd22170956101a0c800b4d77e306c83fe8b36160f471c5014678319aac", "simhash": "1:0b6ecee6f6df0cdc", "word_count": 2629 }, "last_updated": "2023-07-14T17:15:39.062040+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES MASTANDREA, Plaintiff-Appellee, v. CHICAGO PARK DISTRICT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McNULTY\ndelivered the opinion of the court:\nPlaintiff James Mastandrea brought suit against defendant Chicago Park District for damages he received when his bicycle collided with a traffic island. Plaintiff alleged that defendant was guilty of negligence and wilful and wanton misconduct in its design and maintenance of the bicycle path and traffic island. The trial court found that defendant had waived its immunities under the Local Governmental and Governmental Employees Tort Immunity Act (111. Rev. Stat. 1983, ch. 85, par. 1 \u2014 101 et seq.) (Tort Immunity Act) by procuring insurance and allowed plaintiff to present only his negligence claim, and not his wilful and wanton claim, to the jury. The jury returned a verdict in favor of plaintiff and against defendant in the amount of $270,000, reduced by 50% for plaintiff\u2019s comparative negligence, resulting in a verdict of $135,000. Defendant appeals.\nDefendant raises the following issues on appeal: (1) whether defendant was entitled to application of the Tort Immunity Act to the extent of its self-insured retention; (2) whether the trial court erred in allowing the testimony of plaintiff\u2019s economic expert; and (3) whether the trial court made improper comments when withdrawing an erroneous instruction from the jury\u2019s consideration. Plaintiff cross-appeals, claiming that the trial court erred when it denied plaintiff\u2019s motion for sanctions.\nDefendant first claims that the trial court erred when it found that defendant had waived its defenses under the Tort Immunity Act by procuring insurance. The Tort Immunity Act, as it existed at the time of plaintiff\u2019s accident in 1984, clearly provided that by obtaining insurance, a local public entity waived immunities otherwise available to it. (Ill. Rev. Stat. 1983, ch. 85, par. 9 \u2014 103(c); see Sullivan v. Midlothian Park District (1972), 51 Ill. 2d 274, 281 N.E.2d 659; Jastram v. Lake Villa School District 41 (1989), 192 Ill. App. 3d 599, 549 N.E.2d 9.) Defendant admits that it was insured, but claims immunity would still exist to the extent of defendant\u2019s $125,000 uninsured retention.\nIn its brief, defendant claims that the trial court, in determining that defendant had waived its immunities, relied \"solely on plaintiff\u2019s allegations that the case was worth over $1 million.\u201d Plaintiff, on the other hand, claims in his brief that the trial court based its decision on defendant\u2019s failure to conclusively demonstrate that it was uninsured for any portion of plaintiff\u2019s damages. Although defendant has furnished us with excerpts of a trial court decision not related to this case, for some reason defendant has not seen fit to provide us with a . transcript of the trial court\u2019s ruling on this issue in the instant case. While the failure to include such information in the record could be considered fatal to defendant\u2019s request for reversal, statements made by the parties at oral argument reveal no actual dispute as to the facts necessary to resolve this issue. The parties admitted at oral argument that the trial court\u2019s finding that defendant had waived its immunities was based simply on the fact that defendant had procured insurance. Furthermore, it is clear that defendant\u2019s insurance policy provided that defendant had a self-insured retention of $125,000 for each occurrence, and a $1 million aggregate. Once defendant paid the aggregate amount of deductible payments, it was no longer required to pay the deductible amount for additional occurrences within the policy period. It does not appear that the parties submitted any information to the trial court regarding whether the aggregate had been met. However, defendant included with its post-trial motion an affidavit from John Flemming, assistant corporation counsel for the Chicago Park District, stating that the $1 million aggregate had not been met and defendant would be required to pay the $125,000 deductible from its self-insured retention. We will accept as true the statements made in this affidavit since plaintiff has not challenged the veracity of this affidavit.\nWe therefore consider the issue of whether defendant is entitled to its defenses under the Tort Immunity Act to the extent of its $125,000 self-insured retention. Plaintiff claims that it is an either/or situation, wherein either a municipality has insurance and waives its immunities or it does not have insurance and does not waive its immunities. Plaintiff\u2019s theory, however, is not supported by Illinois case law. Courts have held that where a municipality has insurance, but plaintiff\u2019s claim is below the amount of the municipality\u2019s self-insured retention, the municipality could rely on its defenses under the Tort Immunity Act. In Beckus v. Chicago Board of Education (1979), 78 Ill. App. 3d 558, 397 N.E.2d 175, the plaintiff sued defendant for injuries she sustained at defendant\u2019s playground and sought damages in the amount of $50,000. Defendant had a self-insured retention of $1 million per occurrence. The court concluded that because there was no insurance coverage for plaintiff\u2019s injury, there was no waiver of the Tort Immunity Act.\nSimilarly, in Ramos v. City of Countryside (1985), 137 Ill. App. 3d 1028, 485 N.E.2d 418, the plaintiff sued the city for damages she sustained while playing in the city\u2019s recreational program. Plaintiff sought damages in the amount of $15,000. The city was self-insured for claims up to $250,000. The court found significant the fact that defendant did not have insurance to cover plaintiffs injury, and if plaintiff were to recover, the judgment would be paid from a reserve of public funds. (Ramos, 137 Ill. App. 3d at 1035.) The court found that defendant had not waived its immunities under the Tort Immunity Act because immunities are waived only where the judgment is paid from nonpublic funds.\nWe see no meaningful distinction where a plaintiff seeks damages in an amount over, rather than under, that of the self-insured retention. The intent of the Tort Immunity Act is to protect public funds, and we must carry out that intent regardless of whether a plaintiff seeks damages in an amount below or above the municipality\u2019s self-insured retention. Because defendant in the instant case had no insurance for the first $125,000 of the judgment against defendant, that amount would be paid from public funds. We therefore conclude that the Tort Immunity Act should have been applied to the extent of the $125,000 deductible.\nIn light of our decision that the Tort Immunity Act applies to defendant\u2019s $125,000 self-insured retention, on remand, the defendant must be given an opportunity to prove the applicability of the tort immunities it seeks to invoke. Based on the trial court\u2019s decision that defendant\u2019s immunities had been waived, defendant was unable to present any evidence at trial regarding whether the tort immunities applied and plaintiff was not required to present any evidence that the facts of the case precluded defendant from asserting the immunities claimed or, in the alternative, that defendant\u2019s conduct was wilful and wanton. The immunities under the Act must be pled and proved by a defendant municipality. (McCall v. Chicago Board of Education (1992), 228 Ill. App. 3d 803, 593 N.E.2d 621.) Whether a tort immunity applies is a question of fact for the trier of fact. (John v. City of Macomb (1992), 232 Ill. App. 3d 877, 596 N.E.2d 1254.) If the defendant proves and the jury determines that certain immunities are applicable, then the only way in which plaintiff can recover for the $125,000 not covered by insurance is if he proves wilful and wanton conduct on the part of defendant. (Ill. Rev. Stat. 1983, ch. 85, par. 3 \u2014 106.) Here, an issue of fact certainly remains regarding whether the immunities applied and, if so, whether defendant acted wilfully or wantonly. We therefore reverse and remand this cause for a new trial in order to give defendant an opportunity to show that the immunities apply and to give plaintiff an opportunity to present evidence that defendant\u2019s conduct was wilful and wanton.\nDefendant next argues that plaintiff\u2019s economic expert, Stan V. Smith, gave speculative testimony which should have been barred by the court. Through Smith\u2019s testimony, plaintiff sought to establish the profits plaintiff lost from real estate development activities for the two years following his accident.\nEvidence of earnings before and after an injury is admissible if it establishes, with a fair degree of probability, a basis for the trier of fact to assess damages. (Levin v. Welsh Brothers Motor Service, Inc. (1987), 164 Ill. App. 3d 640, 518 N.E.2d 205.) A loss need not be proven with absolute certainty; lost profits will always be uncertain to some extent and calculations may be incapable of mathematical precision. (Agrimerica, Inc. v. Mathes (1990), 199 Ill. App. 3d 435, 557 N.E.2d 357.) However, testimony as to loss of earnings which is merely speculative, remote or uncertain is improper. Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, 432 N.E.2d 920.\nDefendant claims that Smith\u2019s testimony was speculative since Smith did not rely upon any specific opportunities lost. Instead, Smith relied upon plaintiff\u2019s tax returns and plaintiff\u2019s earning track record. Smith examined the results of plaintiff\u2019s development projects initiated or seeded in the years preceding, during, and following plaintiff\u2019s injury. To determine the results of these development projects, Smith attributed the income generated from these projects to the year of the projects\u2019 initiation or origin. Smith testified that in his opinion, based on a reasonable degree of economic certainty, losses in development projects occurred in 1984 and 1985, compared to plaintiffs track record prior to that period and his track record after that period. It was Smith\u2019s opinion that plaintiff lost, in each of the two years, just under $1 million.\nWhile Smith\u2019s opinion may have been based on some uncertainty, we do not find Smith\u2019s testimony to be so speculative, remote or uncertain as to require his testimony to be barred. Furthermore, the jury had evidence other than Smith\u2019s testimony to assess the loss of plaintiffs profits. Plaintiff testified that his adjusted gross income on his tax returns was $182,854 for 1983, the year preceding plaintiffs accident; $45,438 for 1984, the year of plaintiff\u2019s accident; and $1,166,566 for 1985, the year after plaintiffs accident. The jury rendered a verdict in the sum of $159,000 for lost earnings. The amount of damages indicates that the jury did not accept much of Smith\u2019s testimony and method of computation. On remand, the jury may consider and decide what weight to give Smith\u2019s testimony.\nDefendant next contends that the trial court erred in making various comments when it withdrew an erroneous instruction and special interrogatory regarding defendant\u2019s duty to warn of open and obvious conditions. Defendant concedes that the instruction and special interrogatory were erroneous. Therefore, in light of our decision to remand this case for a new- trial, we need not address the issue of whether the trial court\u2019s comments in withdrawing the instruction and interrogatory were erroneous since the instruction and interrogatory will not be given in the new trial.\nLastly, we find no merit to plaintiffs contention in his cross-appeal that the trial court should have granted plaintiffs motion for sanctions against defendant. Plaintiff moved for sanctions based upon the failure of defendant to admit control of the traffic island and surrounding area. Plaintiff claims that because defendant consistently denied control of the area, plaintiff was forced to incur tremendous expense through discovery in order to establish whether it was the Chicago Park District or the City of Chicago which controlled the area in which the accident occurred.\nThe decision whether to impose sanctions is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. (Yassin v. Certified Grocers of Illinois, Inc. (1990), 133 Ill. 2d 458, 551 N.E.2d 1319.) Because plaintiff failed to provide us with a transcript of the hearing held on plaintiff\u2019s motion for sanctions, we are unable to assess the propriety of the trial court\u2019s denial of plaintiff\u2019s motion. Where the record is incomplete, a reviewing court will indulge in every reasonable presumption favorable to the ruling appealed from and presume that the missing portion contained that which justified the action of the court. (Sandberg v. American Machining Co. (1975), 31 Ill. App. 3d 449, 334 N.E.2d 246.) We therefore presume that the trial court had sufficient basis for denying plaintiffs motion for sanctions.\nAccordingly, for the reasons set forth above, we affirm in part and reverse and remand in part. We also deny plaintiffs petition for rehearing which argues that, in light of our decision to reverse and remand, other factors must be decided by us, such as how to enter judgment if the verdict exceeds $125,000. Based on the inadequacy of the record presented in this case, and the fact that the trial court never had an opportunity to address these issues, we deem it appropriate to give the trial court the initial opportunity to decide these issues.\nWe have been hampered in our disposition of the case from the outset because neither side submitted a transcript of the proceedings wherein the trial court made its ruling or stated its reasons for holding that defendant had waived its immunities by obtaining insurance. As noted previously in this opinion, the parties had different interpretations of the trial court\u2019s ruling as to the waiver of immunities. Even plaintiff himself has provided us with varying reasons for the trial court\u2019s ruling. In his initial brief, plaintiff claimed the trial court\u2019s ruling that defendant had waived its immunities was based upon the defendant\u2019s failure to conclusively demonstrate that it was uninsured for any portion of plaintiffs damages. However, both parties conceded at oral argument that the trial court\u2019s decision that defendant\u2019s tort immunities had been waived was based simply on the fact that defendant had insurance. Now, in his petition for rehearing, plaintiff has once again changed his argument, reiterating his initial argument that the trial court\u2019s decision was based on the fact that defendant had not shown that its deductible had been satisfied. In his petition for rehearing, plaintiff also argues for the first time that because Flemming\u2019s affidavit, which stated that defendant\u2019s deductible had yet to be satisfied, was attached to defendant\u2019s post-trial motion, plaintiff never had an opportunity to respond to the affidavit. Plaintiff also alleges, for the first time in his petition for rehearing, that the trial court specifically stated that it would not consider the affidavit in determining whether defendant waived its immunities. Plaintiff, however, makes no citation to the record in support of this assertion.\nDue to the absence of a transcript of the trial court proceedings, we are unable to make an independent determination as to the basis for the trial court\u2019s rulings. We cannot determine whether the trial court considered the affidavit, or if plaintiff had an opportunity to dispute the affidavit in the trial court. It is clear, however, from the record in this court that plaintiff never filed a motion asking that Flemming\u2019s affidavit be stricken from the record on appeal. We therefore find that it is untimely for plaintiff to raise this argument for the first time in his petition for rehearing. Accordingly, we clarify our ruling that defendant must be given an opportunity on remand to prove the applicability of tort immunities and then plaintiff must be given an opportunity to show that defendant acted wilfully and wantonly. Plaintiff\u2019s additional request for relief in his petition for rehearing is denied.\nAffirmed in part; reversed and remanded in part.\nGORDON and COUSINS, JJ\u201e concur.", "type": "majority", "author": "JUSTICE McNULTY" } ], "attorneys": [ "Stanley L. Hill, Christopher W. Graul, and Jennifer Lee, all of Stanley L. Hill & Associates, of Chicago, for appellant.", "Edward A. Cohen, Paul T. Parker, and Randall M. Lending, all of Ved-der, Price, Kaufman & Kammholz, of Chicago, for appellee." ], "corrections": "", "head_matter": "JAMES MASTANDREA, Plaintiff-Appellee, v. CHICAGO PARK DISTRICT, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1 \u2014 93\u20140153\nOpinion filed February 10, 1994.\nModified on denial of rehearing April 15, 1994.\nStanley L. Hill, Christopher W. Graul, and Jennifer Lee, all of Stanley L. Hill & Associates, of Chicago, for appellant.\nEdward A. Cohen, Paul T. Parker, and Randall M. Lending, all of Ved-der, Price, Kaufman & Kammholz, of Chicago, for appellee." }, "file_name": "0897-01", "first_page_order": 915, "last_page_order": 922 }