{ "id": 3235981, "name": "ROSEMARY RAPACKI, Adm'r of the Estate of Susan Rapacki, Plaintiff-Appellant, v. TIMOTHY PABST, Defendant-Appellee", "name_abbreviation": "Rapacki v. Pabst", "decision_date": "1980-01-21", "docket_number": "No. 79-26", "first_page": "517", "last_page": "523", "citations": [ { "type": "official", "cite": "80 Ill. App. 3d 517" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "90 S. Ct. 1697", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "26 L. Ed. 2d 65", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "398 U.S. 905", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177186, 6176251, 6177317, 6177037, 6176399, 6176147, 6176534, 6176663, 6176763, 6176892 ], "opinion_index": 0, "case_paths": [ "/us/398/0905-09", "/us/398/0905-02", "/us/398/0905-10", "/us/398/0905-08", "/us/398/0905-03", "/us/398/0905-01", "/us/398/0905-04", "/us/398/0905-05", "/us/398/0905-06", "/us/398/0905-07" ] }, { "cite": "254 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "44 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2891442 ], "year": 1970, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0132-01" ] }, { "cite": "62 Ill. 2d 590", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "341 N.E.2d 59", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 815", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2960629 ], "year": 1976, "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0815-01" ] }, { "cite": "294 N.E.2d 689", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "53 Ill. 2d 591", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2926266 ], "year": 1975, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0591-01" ] }, { "cite": "305 N.E.2d 617", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "16 Ill. App. 3d 89", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2521107 ], "year": 1973, "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0089-01" ] }, { "cite": "56 Ill. 2d 591", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "312 N.E.2d 369", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 936", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2694179 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0936-01" ] }, { "cite": "365 N.E.2d 390", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 842", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3366736 ], "year": 1974, "pin_cites": [ { "page": "852" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0842-01" ] }, { "cite": "357 N.E.2d 530", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. 2d 244", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5436829 ], "weight": 2, "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0244-01" ] }, { "cite": "338 N.E.2d 917", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2874769 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "951-52" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0949-01" ] }, { "cite": "30 Ill. 2d 625", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "197 N.E.2d 134", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "46 Ill. App. 2d 409", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5265047 ], "year": 1964, "pin_cites": [ { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/46/0409-01" ] } ], "analysis": { "cardinality": 724, "char_count": 13722, "ocr_confidence": 0.896, "pagerank": { "raw": 5.774934982592935e-08, "percentile": 0.36068975449920054 }, "sha256": "84688303d1e9503416bdf09e4e89d96bb32a40f314975a067dbd7d69c4756b45", "simhash": "1:f5fc3f74a6162dbe", "word_count": 2317 }, "last_updated": "2023-07-14T16:24:24.666127+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROSEMARY RAPACKI, Adm\u2019r of the Estate of Susan Rapacki, Plaintiff-Appellant, v. TIMOTHY PABST, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of\nthe court:\nRosemary Rapacki (plaintiff), administrator of the estate of Susan Rapacki, deceased, brought suit against Timothy Pabst (defendant) and other persons to recover damages for fatal injuries sustained by the deceased in an automobile accident. At trial, Timothy Pabst was the only remaining defendant. The jury returned a verdict for defendant. Plaintiff\u2019s motion for new trial was denied. Plaintiff appeals.\nIn this court, plaintiff urges defendant was negligent and the closing argument of defense counsel was prejudicial and denied plaintiff a fair trial.\n154th Street runs east and west. It is a two-lane road with shoulders on both sides. At one point it passes over the Calumet Expressway. As one drives east on 154th from this overpass, the first intersecting street is Stony Island Avenue. Proceeding east, the next streets are Jeffery then Chappel. The distance between Jeffery and Chappel is 250 feet. Michigan City Road is two blocks east of Chappel.\nOn October 16, 1976, at about 11 p.m., Terry Hart was driving his automobile west on 154th Street. The deceased was sitting in the front seat. Hart had turned west on 154th Street from Michigan City Road. Defendant was driving his pickup truck eastbound on 154th at the Calumet Expressway overpass. A third vehicle, also proceeding eastbound on 154th ahead of defendant\u2019s truck, was driven by James Hartigan.\nHartigan testified that as he was coming off the overpass, he first noticed Hart\u2019s oncoming car. Hart was three-quarters of a block ahead of him. Hartigan saw Hart\u2019s car weaving from the westbound lane of the road all the way to the shoulder on the other side at least twice. Hartigan braked his automobile to 10 to 15 miles per hour. Because the Hart vehicle was weaving across both lanes, Hartigan \u201cdidn\u2019t know what side to pull off onto.\u201d He finally pulled off to the shoulder on his right side of the road. Hart\u2019s car struck Hartigan\u2019s car in the left rear. Hartigan continued pulling over towards the right. Hartigan stated that these things happened so quickly that he did not see Hart cross the center line immediately before the collision. Hartigan heard a second impact shortly thereafter. He walked back up the road and saw defendant\u2019s truck and Hart\u2019s car had collided.\nHartigan further testified he was aware defendant\u2019s truck was behind him before he reached the overpass. He continued to see defendant\u2019s truck in his rearview mirror. He saw nothing unusual in the operation of defendant\u2019s truck. Defendant never left his own lane.\nOfficer Leonard Kieltyka testified he arrived at the scene of the accident and observed Hartigan\u2019s car stopped on the eastbound shoulder 100 to 150 feet east of the vehicles operated by Hart and defendant. These two vehicles were near the intersection of Chappel and 154th. Hart\u2019s automobile was in the eastbound lane of 154th Street facing the eastbound shoulder and defendant\u2019s truck was stopped facing east on 154th Street. The officer further testified the shoulder on the eastbound side of 154th Street is soft and covered with gravel. It is 6 to 7 feet wide with heavy vegetation immediately right of it.\nTerry Hart testified he had a date with the deceased on the evening of the accident. He was bringing her home when the collision occurred. His last recollection before the crash was driving on Michigan City Road towards 154th Street. He did not remember weaving across 154th Street nor did he remember the accident itself. His next recollection was waking up in his car after the occurrence.\nThe defendant testified he was proceeding east on 154th Street at 30 miles per hour. There were four passengers in his pickup truck. The road was dark. When defendant was east of the Calumet overpass and was at the Stony Island intersection, one of his passengers said, \u201cHey, look at that crazy guy.\u201d Defendant saw headlights from Hart\u2019s car in the trees about a block away. Defendant stated he saw Hart\u2019s car swerve into the eastbound lane four or five times. However, later in his testimony, defendant stated he only saw the headlights from Hart\u2019s car flash back and forth across the highway. He did not know if Hart\u2019s car had actually been on the eastbound lane.\nDefendant testified he never left the eastbound lane. He did not apply his brakes or slow down. He did not attempt to turn his vehicle to either side because he did not know which way to go. He did not know which way Hart was going to go either.\nDefendant stated he did not pull off the road to the shoulder because \u201cthere is really no place to pull off\u201d and the ground \u201cdips down.\u201d He also stated he did not do anything because \u201che [Hart] wasn\u2019t near me yet.\u201d Defendant then saw Hart\u2019s car clearly in its own westbound lane and he thought \u201ceverything was over.\u201d At this point, he did not think Hart would turn into the eastbound lane because there was nothing in the operation of Hart\u2019s car to indicate this might happen. Defendant did not see the collision between Hart and Hartigan. He \u201cwasn\u2019t paying attention to Hartigan.\u201d Defendant saw Hart\u2019s headlights pointed towards his car and \u201call of a sudden, the next thing I know, I lifted my head up and there was an accident, it happened that quick.\u201d\nThe collision occurred a few car lengths west of Chappel. It only took \u201cabout a few seconds\u201d from the comment by one of defendant\u2019s passengers until the collision.\nSteve Aspen, a passenger in defendant\u2019s truck, testified defendant was proceeding at 30 miles per hour. Aspen saw the swerving headlights of Hart\u2019s car a quarter of a block away and watched the car approach. He never saw Hart\u2019s car in the eastbound lane before it turned in front of defendant\u2019s truck. Aspen stated concerning Hart\u2019s vehicle, \u201call of a sudden, instantly * * * he [Hart] just swerved in front of us broadside.\u201d Edward Halper, another passenger in the truck, corroborated Aspen\u2019s testimony. He testified he told the defendant to \u201clook at that crazy nut.\u201d\nLiu Zotti testified she was driving east on 154th Street. She was about half a block behind defendant\u2019s truck. The defendant\u2019s truck was on the eastbound lane at all times prior to the collision. Zotti saw the Hart vehicle in the westbound lane for 3 to 5 seconds before it \u201cturned suddenly in front of the pickup truck.\u201d It turned abruptly, \u201clike 90\u00b0, approximately.\u201d There was nothing about the operation of the Hart vehicle to give warning that it was going to turn in front of the truck. Zotti, Aspen and Halper all testified that the road was dark.\nIt is clear from this review of the evidence that the jury\u2019s verdict is strongly supported by more than a preponderance of the evidence. While Hart\u2019s negligence in the operation of his vehicle cannot be imputed to his passenger, the deceased Susan Rapacki, \u201cher lack of negligence is not evidence of negligence on the part of [defendant].\u201d Barnash v. Rubovits (1964), 46 Ill. App. 2d 409, 412, 197 N.E.2d 134, appeal denied (1964), 30 Ill. 2d 625.\nA case which throws light upon the situation at bar is Walling v. Lingelbach (1975), 33 Ill. App. 3d 949, 338 N.E.2d 917, aff'd (1976), 65 Ill. 2d 244, 357 N.E.2d 530. There, plaintiff Walling was a passenger in an automobile driven north by Strahorn. Defendant Lingelbach was driving south. A head-on collision occurred in the lane in which the Strahorn car was being driven. The jury found in favor of Walling and against both drivers. On appeal by Strahorn only, the appellate court reversed the judgment without remanding. The supreme court affirmed this result. Although the facts are not quite the same as in the case at bar, it is important to note that this court ruled that plaintiff had the burden of proving that the negligence of the defendant caused her injuries. In addition, the court stated that even if Strahorn, properly driving upon her part of the highway, was guilty of a \u201csuggested momentary lapse in attention,\u201d there is no evidence from which the jury could have concluded that Strahorn was guilty of negligence. Walling, 33 Ill. App. 3d 949, 951-52.\nIn affirming this result, the supreme court pointed out that all the debris was found on the far eastern portion of the northbound lane. Also, even if it could be inferred that Strahorn was negligent for lack of a proper lookout or speeding, these factors were not the proximate cause of plaintiff\u2019s injury. The supreme court concluded that no jury question of negligence was presented. Walling, 65 Ill. 2d 244, 248.\nSimilarly in the case before us, plaintiff\u2019s complaint alleged negligence of defendant in failing to have his truck under control; driving at excessive speed and failing to observe that the car in which decedent was riding was out of control and veering into the eastbound lane. It is patent that no evidence supports the first two allegations. The final theory about the failure of defendant to observe the difficulty is completely negated by the evidence.\nThe uncontraverted evidence strongly demonstrates defendant reasonably believed Hart would stay on his side of the road. Defendant, Aspen, Halper and Zotti all testified that Hart\u2019s automobile was in the westbound lane for some time until it swerved suddenly into the wrong lane at a sharp angle. This effectively prevented defendant from taking any evasive action or from avoiding the collision. There is evidence that at this point the shoulder was soft and narrow, had a dip and was bordered by thick vegetation.\nFurthermore, the photographs of the vehicles involved in the collision show that defendant\u2019s truck struck Hart\u2019s automobile broadside at a 90\u00b0 angle. This corroborates the testimony of the witnesses that Hart\u2019s car made a sudden, unexpected, and sharp turn just in front of defendant\u2019s truck. Defendant did not have time to take any evasive action after Hart\u2019s car swerved into his lane.\nThus, the verdict that defendant was not negligent is strongly supported by the manifest weight of the evidence.\nPlaintiff contends the closing argument by defense counsel was prejudicial and denied plaintiff a fair trial. Defense counsel elicited testimony from Hart and plaintiff (mother of deceased) that they had discussed what happened on the night of the accident on a few occasions. Then, during final argument, defense counsel stated:\n\u201cWe don\u2019t know a lot of things about this case. We don\u2019t know why Hart doesn\u2019t remember. It would be convenient if he could clear the air on a lot of these issues as to what he was really doing, if Mr. Pabst was really this negligent or not negligent at all. It would be nice of Mr. Hart remembered that.\nWith regard to Mr. Boylan\u2019s [plaintiff\u2019s counsel] examination of Hart, I thought it was every [sic] effective. \u2018I\u2019m disgusted with you. I won\u2019t have anything to do with you, I never talked to you. No more questions.\u2019\n\u2018He\u2019s guilty.\u2019 He said that in his opening statement. \u2018Mr. Hart\u2019s conduct was a proximate cause of this accident.\u2019 Well, why is it Mr. Pabst is here defending this case? Why isn\u2019t Mr. Hart losing a week from school in Denver sitting here defending this case if he\u2019s guilty.\u201d\nAt this point, plaintiff\u2019s counsel objected and the trial court sustained the objection.\nPlaintiff claims it was improper for defense counsel to inquire why Hart was not defending the case. Plaintiff contends the above-quoted comments, following the testimony of Hart and plaintiff that they had discussed the accident, were designed to create suspicion in the jury\u2019s mind that Hart was in league with plaintiff to conceal facts about the accident and \u201cthere was a plot to let Hart go free and dump the whole burden on [defendant].\u201d\nIt is a matter of sheer conjecture as to whether the jury might have interpreted the defense counsel\u2019s comments in the way suggested by plaintiff. Nevertheless, we agree with plaintiff that these comments to the jury were not within the bounds of propriety. However, arguments concerning why a party was not sued, though improper, do not constitute reversible error unless the complaining party can show prejudice resulted so as to deny a fair trial. Peluso v. Singer General Precision, Inc. (1977), 47 Ill. App. 3d 842, 852, 365 N.E.2d 390, citing Trippel v. Lott (1974), 19 Ill. App. 3d 936, 312 N.E.2d 369, appeal denied (1974), 56 Ill. 2d 591.\nIn our opinion, plaintiff was not prejudiced by these comments. Plaintiff\u2019s immediate objection was sustained thereby curing any possible prejudice. (Goldstein v. Hertz Corp. (1973), 16 Ill. App. 3d 89, 95, 305 N.E.2d 617; see also Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 599, 294 N.E.2d 689; Lopez v. Galeener (1975), 34 Ill. App. 3d 815, 821, 341 N.E.2d 59, appeal denied (1976), 62 Ill. 2d 590.) Also, in the case before us, both the defense counsel and the trial court told the jury that arguments of counsel are not evidence and if an argument, statement or remark had no basis in the evidence, it should be disregarded. (See Illinois Pattern Jury Instructions, Civil, No. 1.01 (2d ed. 1971).) Finally, in this case, where the evidence so strongly supports the verdict, we cannot say these comments \u201cunduly affected the outcome below.\u201d Bruske v. Arnold (1969), 44 Ill. 2d 132, 139, 254 N.E.2d 453, cert. denied (1970), 398 U.S. 905, 26 L. Ed. 2d 65, 90 S. Ct. 1697.\nFor these reasons, the decision of the circuit court is affirmed.\nAffirmed.\nO\u2019CONNOR and CAMPBELL, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GOLDBERG" } ], "attorneys": [ "Roger Boylan, of Chicago, for appellant.", "Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Charles O. Stabb and Stephen R. Swofford, of counsel), for appellee." ], "corrections": "", "head_matter": "ROSEMARY RAPACKI, Adm\u2019r of the Estate of Susan Rapacki, Plaintiff-Appellant, v. TIMOTHY PABST, Defendant-Appellee.\nFirst District (1st Division)\nNo. 79-26\nOpinion filed January 21, 1980.\nRoger Boylan, of Chicago, for appellant.\nHinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Charles O. Stabb and Stephen R. Swofford, of counsel), for appellee." }, "file_name": "0517-01", "first_page_order": 539, "last_page_order": 545 }