New v. Pace Suburban Bus Service

THIRD DIVISION
January 27, 2010

Nos. 1-08-3605 & 1-08-3606 (Cons.)

GERALDINE NEW, ) Appeal from the Circuit Court of
) Cook County, Illinois.
Plaintiff-Appellee, )
)
v. )
)
PACE SUBURBAN BUS SERVICE, a Division of )
Regional Transit Authority, a municipal )
corporation, )
)
Defendant-Appellant. )
_________________________________________ )
) No. 05 L 2011
GERALDINE NEW, )
)
Plaintiff-Appellant, )
)
v. )
)
PACE SUBURBAN BUS SERVICE, a Division of )
Regional Transit Authority, a municipal )
corporation, )
) Honorable James P. McCarthy,
Defendant-Appellee. ) Judge Presiding.

PRESIDING JUSTICE MURPHY delivered the opinion of the court:

These consolidated appeals arise from proceedings under plaintiff Geraldine New’s

February 18, 2005, single-count personal injury complaint against defendant Pace Suburban Bus

Service. Plaintiff sought damages for injuries allegedly sustained to her back while she was a

passenger on defendant’s bus on March 4, 2004. Plaintiff claimed the bus stopped suddenly
Nos. 1-08-3605 & 1-08-3606 (Cons.)

forcing her to fall into a pole and to the ground. She alleged that this caused serious injury to her

back requiring extensive treatment. Plaintiff alleged that the sudden stop was due to the

negligence and omissions of defendant’s bus driver. Following a trial, the jury entered a verdict in

favor of defendant on August 1, 2008.

Plaintiff appeals the trial court’s denial of her motions for judgment notwithstanding the

verdict (n.o.v.) and a new trial as well as presenting three issues with respect to the jury

instructions given at trial. Defendant appeals the trial court’s grant of plaintiff’s petition for

attorney fees and costs, amounting to approximately $17,000, related to the deposition of

defendant’s first disclosed medical expert, who “resigned” from the case only after plaintiff

expended time and funds on his deposition. For the following reasons, we affirm the rulings of

the trial court.

I. BACKGROUND

A. Discovery, Pretrial Motions and Sanctions

Plaintiff alleged in her complaint that on March 4, 2004, she was a passenger on a bus

owned and operated by defendant. The bus was traveling eastbound on West 79th Street in the

City of Burbank, Illinois, when the driver braked heavily, causing the bus to come to a sudden,

hard stop. As a result, plaintiff fell and sustained personal injuries. Plaintiff alleged that the

braking was excessive and caused by the driver’s negligence and failure to keep a proper lookout.

During the course of discovery, defendant answered plaintiff’s Rule 213 (210 Ill. 2d R.

213) interrogatories with its disclosure of witnesses in January 2007, amending that response on

December 11, 2007. In both filings, defendant disclosed Dr. Terry Lichtor, a physician practicing

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at Rush-Presbyterian-St. Luke’s Medical Center, as its controlled expert witness regarding

damages. Defendant stated that it expected Lichtor to testify that plaintiff’s back pain was related

to a chronic degenerative condition and not a result of her fall on the bus.

Plaintiff filed a notice of deposition of Lichtor on October 26, 2007, for his deposition on

November 27, 2007. In a document rider to the notice, plaintiff requested production of various

documents by November 20, 2007, including copies of documents Lichtor relied on in forming his

opinion. On November 2, 2007, plaintiff issued a subpoena to Lichtor, requesting federal and

state tax returns, all W-2 and 1099 income tax forms, and all computer devices containing his

income tax information from 2004 to the date of the subpoena. The deposition was rescheduled

and plaintiff filed a renotice of deposition of Lichtor on December 19, 2007, for his deposition on

January 17, 2008. The renotice included an amended deposition rider requesting the same

documents as well as the tax information.

Lichtor appeared for his deposition on January 17, 2008, having only provided copies of

his 1099 forms. When questioned by plaintiff’s counsel, Lichtor indicated that he refused to

produce any additional tax information. He stated that it was his understanding that plaintiff was

only entitled to know what he made from legal consulting and if he was required to produce the

tax documents he would resign from the case. After plaintiff’s counsel finished questioning

Lichtor, and before defense counsel asked any questions, he announced that he was resigning as

an expert and ended the deposition.

On January 29, 2008, plaintiff moved to bar Lichtor as an expert based on his failure to

disclose his tax documents. Plaintiff also sought attorney fees and costs related to the deposition

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under Supreme Court Rule 219(c). 210 Ill. 2d R. 219(c). Based on Lichtor’s lack of cooperation

with both parties, defendant moved on February 5, 2008, for leave to amend its Rule 213(f) (210

Ill. 2d R. 213(f)) disclosures to remove Dr. Lichtor and to disclose a new expert. The trial court

heard argument on the motions on February 14, 2008, and granted both motions with respect to

Lichtor. In addition, plaintiff was granted leave to petition for attorney time related to the

deposition of Lichtor. The case proceeded to trial on July 28, 2008, and on July 29, 2008,

plaintiff presented her petition for attorney fees and costs related to Lichtor’s deposition. The

court heard argument on the petition following trial.

B. Trial Testimony and Verdict

At trial, plaintiff testified to the events of March 4, 2004, that allegedly caused the injuries

at the basis of her complaint. Plaintiff testified that she lived in Burbank, Illinois, and that she

does not drive. Plaintiff typically takes the bus, walks or has a family member drive her to places.

On the morning of March 4, 2004, plaintiff took a bus operated by defendant to the Chicago

Ridge Mall in the Village of Chicago Ridge. Plaintiff shopped and ate lunch at the mall and at

approximately 1:30 p.m., she boarded defendant’s Route 384 bus. The 384 bus traveled north on

South Ridgeland Avenue and South Narragansett Avenue and on to eastbound 79th Street toward

plaintiff’s stop at West 79th Street and South Laramie Avenue in Burbank, Illinois. Plaintiff

walked toward the back of the bus and sat in the aisle seat of the first row of seats on the driver’s

side that faced the front of the bus.

Plaintiff testified that the weather was misty and the roads also appeared “a little misty,

too.” Plaintiff sat and looked out the window as the bus traveled in the right-hand lane of the

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four-lane 79th Street. Plaintiff testified that she felt that the bus started going faster and faster in

an unusual manner. Plaintiff did not observe any vehicles in the left lane or any vehicle passing in

front of the bus. Though she did not know the speed of the bus and could not see the

speedometer or traffic in front of the bus, she felt the driver was going too fast so she decided to

get up to pull the buzzer cord. Facing the windows on the left of the bus, plaintiff started to get

up to pull the buzzer cord and the bus stopped abruptly. Plaintiff “flew all the way across” the

bus and into a pole and then onto the floor. Although there were poles and handle slings nearby,

plaintiff, who is five feet tall, stated that she could not reach these aids and reached for the cord

without holding anything.

Plaintiff testified that the bus continued on for a while as she lay on the floor. Eventually a

passenger on the bus yelled to the bus driver that she was on the floor and the bus driver pulled

over. When the bus driver walked up to her to check on her, plaintiff was crying. When he asked

if plaintiff was injured, she responded that she was in pain, but told the bus driver that she just

wanted to go home. The driver walked back up to the front, then returned to plaintiff and asked

if she wanted an ambulance. An ambulance was called and plaintiff was transported to the

hospital. At the hospital, X-rays were taken and plaintiff was given pain medication before a

member of her family picked her up and took her home in the evening. Plaintiff then testified to

her injuries and treatments.

Ryan Schumacher, the passenger who informed the bus driver that plaintiff had fallen,

testified next. Schumacher, 25 years old at the time of trial, testified that he also boarded the bus

near the Chicago Ridge Mall. He sat in the window seat of the second row of seats behind the

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bench seats on the passenger side of the bus. Schumacher testified that the weather was cool with

temperatures in the 40s and that it had rained off and on that day, but the pavement did not appear

wet.

Schumacher testified that the bus ride was smooth and, prior to the accident, he did not

notice any hard braking. The bus appeared to be traveling at a normal and safe speed, though he

testified it may have been traveling a tad above the posted speed limit of 35. Because he was

daydreaming for most of his ride and given the lapse of time from the date of the accident and his

testimony, Schumacher testified that he was unclear on exact details of the bus ride. He could not

say whether other cars were passing the bus or in front of the bus at or near the time of the

accident. Schumacher testified that he felt the bus brake sharply right before plaintiff fell. He

testified that when the bus stopped, his body lunged forward and he hit the seat in front of him.

Schumacher testified that plaintiff was sitting at that time and he saw her fall.

The driver of the bus, Thomas Kwidd, testified next. Kwidd, a 57-year-old resident of

Burbank, Illinois, at the time of trial, testified that he had been a bus driver for defendant since

1997. Kwidd testified to the extensive 1 1/2-month training program he completed, which

included classroom instruction and on-the-job instruction. After sufficient classroom and driving

time, if a driver passes tests on each area, he then must pass the commercial drivers license test

administered by the Illinois Secretary of State’s office.

Kwidd, an instructor in defendant’s training program at the time of trial, testified that

drivers are taught the duties and responsibilities of a driver to ensure the safety of the passengers

and that, as professional drivers, they are held to a higher standard than other drivers. He

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explained that drivers are trained to watch for, and be aware, of everything around the bus.

Kwidd testified that it is necessary to expect the unexpected, particularly from traffic coming on

the left side of the bus. This training was developed to prepare drivers to avoid the need for

evasive action in situations that might cause injury to passengers.

Kwidd testified that he had often driven the route he was assigned to on March 4, 2004,

and that he was familiar with the roads. He stated that it was cloudy at the time of the incident

and that the roads were dry. Kwidd testified that he maintained constant watch on traffic and for

any passengers wanting to board or depart the bus. As was normal, vehicles regularly passed the

bus in the left passing lane as Kwidd maintained a speed of 30 to 35 miles per hour.

Prior to the incident, Kwidd noticed a vehicle approaching the bus in the left passing lane

at a fast speed. Kwidd believed the speed of the approaching vehicle suggested, based on his

experience, that there was a 90% chance the driver intended to try to get in front of the bus. In

response, Kwidd covered the brake pedal at about the same time the vehicle reached the bus and

“cut right in front” of the bus, missing the bus by approximately 18 inches. Kwidd testified that

he depressed the brake pedal to back off from the vehicle, but the vehicle then stopped suddenly

to turn and Kwidd had to push the brake pedal harder to stop the bus.

Kwidd opined that the pressure applied would be considered a “hard” brake by

defendant’s standards or “slamming on the brakes” in lay terms. However, Kwidd opined that his

action was reasonable and necessary to avoid a collision. Kwidd testified that he then continued

on his route. Before traveling too far, a passenger called from the back of the bus that another

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passenger had fallen and was on the floor of the bus. Kwidd testified that he pulled the bus over

and saw plaintiff lying on the floor of the bus. Kwidd called for medical attention at this time.

On cross-examination, Kwidd was confronted with the statement he gave the safety

manger at his garage roughly two hours after the incident as well as his testimony from two prior

depositions by the parties. For his statement, Kwidd testified that he relayed what happened and

what he did to the manager, who put a summary in writing. He stated that he felt the statement

looked correct and signed it. Counsel highlighted that his statement differed from his testimony at

trial because he said in his statement that he first applied the brake when the vehicle was entirely

in the lane in front of him. Additionally, Kwidd stated in his deposition that his first initial brake

was hard and the second push was soft as opposed to trial where he stated he pushed hard on the

second brake push to bring the vehicle to a stop.

The parties rested and evidence was closed. Defendant moved for directed verdict and the

trial court denied that motion. Following closing arguments, the court read the instructions to the

jury and the jury returned a judgment in favor of defendant.

C. Posttrial Motions and Arguments

On August 26, 2008, plaintiff filed a posttrial motion for judgment n.o.v. or, in the

alternative, for a new trial. Plaintiff argued that the jury verdict was against the manifest weight

of the evidence and the trial court erred in instructing the jury. At the hearing on plaintiff’s

motion, the trial court also heard argument on plaintiff’s petition for attorney fees and costs

pursuant to the court’s pretrial order. The court denied plaintiff’s motion for judgment n.o.v., but

granted her petition for fees and costs.

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The trial court determined that based on Lichtor’s extensive experience testifying, he had

knowledge as to what he would be required to produce. Further, the court found that defendant

was advised that Lichtor had refused to produce this information and would continue to do so.

The court also found that defendant had every opportunity to withdraw Lichtor earlier or contact

plaintiff before she expended resources preparing for the deposition. The trial court opined that

“to make Rule 219(c) a fully meaningful requirement of conduct *** plaintiff is entitled to

recovery of fees and costs that could have been prevented by merely a phone call.”

These appeals followed. Plaintiff argues that the trial court erred in failing to direct a

verdict and denying her motion for judgment n.o.v. She also contends that the court erred in

instructing the jury. Defendant’s appeal involves only the single issue of whether the trial court’s

grant of attorney fees and costs as a sanction was proper. We first consider plaintiff’s arguments

before turning to the grant of fees and costs.

II. ANALYSIS

A. Plaintiff’s Motions for Judgment N.O.V. and New Trial

Plaintiff asserts in her first two arguments that the trial court erred in failing to enter

judgment n.o.v. and for a new trial. Judgment n.o.v is proper when, viewing the evidence in a

light most favorable to the nonmoving party, it so overwhelmingly favors the movant that there

was a total failure or lack of evidence to prove a necessary element. Razor v. Hyundai Motor

America, 222 Ill. 2d 75, 106 (2006). Factual determinations made at trial will stand unless

contrary to the manifest weight of the evidence. North Avenue Properties, L.L.C. v. Zoning

Board of Appeals, 312 Ill. App. 3d 182, 184 (2000). A reviewing court will not set aside a jury

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verdict unless the opposite conclusion is readily apparent or it appears the jury’s findings are

arbitrary, unreasonable, or unsubstantiated by the evidence. Johnson v. Chicago Transit

Authority, 248 Ill. App. 3d 91, 94 (1993).

The standard for entry of a judgment n.o.v. is high and this court reviews de novo a denial

of such a motion. York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 178

(2006). Judgment n.o.v. will not be granted merely because a verdict is against the manifest

weight of the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). If a substantial factual

dispute is found or the verdict hinges on the jury’s credibility determination, denial of a motion for

judgment n.o.v is proper. Maple, 151 Ill. 2d at 454. The evidence must be viewed with all

reasonable inferences in favor of the opponent, and we may uphold a decision on any basis

appearing in the record. Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 359-60 (1999).

In order to reverse the denial of a motion for new trial, this court must find the verdict is

contrary to the manifest weight of the evidence and the trial court abused its discretion. York, 222

Ill. 2d at 178. This requires a finding that the opposite conclusion is clearly evident or the jury’s

findings are arbitrary, unreasonable, or not based upon any evidence at trial. York, 222 Ill. 2d at

178-79. Again, resolution of conflicts in testimony and credibility determinations are the province

of the fact finder at trial. York, 222 Ill. 2d at 179.

A common carrier is not an insurer of the absolute safety of its passengers, but it does

have the heightened duty to exercise the highest degree of care consistent with the practical

operation of its conveyances to protect its passengers. Browne v. Chicago Transit Authority, 19

Ill. App. 3d 914, 917 (1974). A rebuttable presumption of negligence is raised against a common

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carrier when a plaintiff shows that she was a passenger, an accident happened with an apparatus

wholly under the control of the carrier, and that an injury was inflicted. Tolman v. Wieboldt

Stores, Inc., 38 Ill. 2d 519, 523 (1967). Once that presumption is raised, the carrier must explain

why the accident resulted from a cause for which it should not be held responsible. Tolman, 38

Ill. 2d at 523.

For both of these issues, plaintiff contends that the evidence is undisputed such that the

jury did not have to weigh different versions of the events that led to defendant’s actions causing

her to “fly” into a pole on the bus, resulting in serious injuries to her back. She also contends that

the jury was not required to assess the credibility of the witnesses. Therefore, plaintiff concludes

that, because Kwidd’s actions did not comport with the heightened standard of care applicable to

common carriers, a contrary verdict is clearly evident and judgment n.ov. or a new trial should

have been granted.

Plaintiff argues that Browne supports her argument. In Browne, the court found that,

despite the bus driver’s testimony regarding a similar sudden stop, the verdict finding the driver

exercised the highest degree of care was against the manifest weight of the evidence. Browne, 19

Ill. App. 3d at 917-18. Plaintiff asserts that because Kwidd’s testimony regarding the weather

was contradicted by plaintiff’s and Schumacher’s testimony and his testimony about the timing of

his covering the brake and braking was impeached, Browne supports reversal.

We find the trial court properly denied plaintiffs motions for judgment n.o.v. and a new

trial. Contrary to plaintiff’s presentation of the facts and the jury’s findings, a contrary verdict is

not clear from the evidence at trial. The jury was required to weigh the different versions of the

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incident presented by plaintiff, Schumacher and Kwidd. Likewise, the jury was required to

consider the impeachment of key areas of testimony. Plaintiff herself focuses on the impeachment

of Kwidd, but still maintains the jury was not required to weigh the credibility of the witnesses to

accept her version of the facts.

Plaintiff’s conclusory argument rejects all of this and the jury’s finding that Kwidd’s

version of the incident was credible. The jury considered the testimony regarding the weather,

road conditions, the speed of the bus, and the actions of the driver of the vehicle that cut off the

bus. Therefore, questions of fact and credibility were determined by the jury and under Maple

rejection of plaintiff’s motion for judgment n.o.v. was proper. The evidence accepted by the jury

was that the roads were not in poor condition, the bus was traveling within a reasonable rate of

speed, the vehicle cut off the bus and then stopped quickly to make a sudden turn, and that this

action caused Kwidd to brake hard. Only Kwidd witnessed the actions of the vehicle and could

testify to what occurred.

Furthermore, the finding in Browne is distinguishable from this case. Unlike this case, in

Browne, one witness other than the bus driver testified to the reason for the sudden stop. In this

case, neither plaintiff nor Schumacher was able to testify regarding the speed of the bus, the

actions of the driver that cut off the bus, or when or why Kwidd braked. The jury’s finding is

based on testimony that it determined to be credible. Viewing all of the evidence in a light most

favorable to defendant, it cannot be said the jury verdict is so arbitrary or unreasonable that only

an opposite conclusion is evident or that the trial court abused its discretion in denying plaintiff’s

motion for a new trial.

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B. Jury Instructions

Plaintiff raises three arguments asserting that the trial court erred in instructing the jury.

“In determining whether jury instructions were inadequate, this court will remand for a new trial

only if the trial court clearly abused its discretion and prejudice to a party’s right to a fair trial has

been shown from the failure to give an instruction.” Yoder v. Ferguson, 381 Ill. App. 3d 353, 381

(2008). Likewise, the trial court’s determination as to what issues are raised by the evidence will

be disturbed only if the court abused its discretion. Bryant v. LaGrange Memorial Hospital, 345

Ill. App. 3d 565, 573 (2003). A trial court will be reversed based on giving an improper

instruction only if it clearly misled the jury and resulted in prejudice to the appellant. Schultz v.

Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002).

1. Giving IPI Civil (2000) No. 70.01 in a Common Carrier Case

Plaintiff’s first argument that the trial court erred in instructing the jury involves the

decision to accept defendant’s request to use Illinois Pattern Jury Instructions, Civil, No. 70.01

(2000) (hereinafter IPI Civil (2000) No. 70.01). This instruction informs the jury of the duty of

every driver to exercise ordinary care. Plaintiff asserts that the trial court’s use of a modified form

of this instruction confused the jury with respect to the common carrier’s duty of the highest

degree of care consistent with that mode of transportation as given in IPI Civil (2000) No.

100.01. These instructions were given one after the other by the trial court, with the common

carrier instruction first:

“At the time of the occurrence in question, the Defendant, Pace, was a

common carrier. A common carrier is not a guarantor of its passengers’ safety,

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but it has a duty to its passengers to use the highest degree of care consistent with

the mode of conveying to you the practical operation of its business as a common

carrier by bus. It’s failure to fulfill this duty is negligence.

It is the duty of every driver of a vehicle using a public highway to exercise

ordinary care at all times to avoid a collision.”

Plaintiff contends that this instruction confused the jury as to what standard to apply to

defendant’s actions. She argues that this was compounded when defense counsel asserted during

closing that the trial court would tell the jury that the law requires all drivers to exercise ordinary

care to avoid a collision and arguing that Kwidd operated his bus in a reasonably safe manner and

that he exercised ordinary care when slamming on the brakes to avoid a collision.

Defendant argues that both instructions were necessary to fully and accurately instruct the

jury of all of defendant’s duties in this case. Defendant highlights the discussion during the

instruction conference where the court opined that both instructions were necessary for the jury to

understand both Kwidd’s duty to other drivers as well as his duty to his passengers. Defendant

notes that plaintiff’s counsel clarified this by saying that IPI Civil (2000) No. 70.01 applied to

driving while IPI Civil (2000) No. 100.01 applied to passengers and did not object when the trial

court affirmed that interpretation. Furthermore, defendant notes that no objection was made by

plaintiff to the comments during closing argument regarding the standard of care and the issue

was not raised in her motion for a new trial.

We do not find that the use of both of these instructions clearly misled the jury leading to

prejudice to plaintiff’s case. The common carrier instruction was made specifically applicable to

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defendant and the jury was informed that if it did not exercise the highest degree of care to its

passengers it should be found negligent. The second general instruction properly instructed the

jury as to the general duty of all drivers on the road. As defendant argues, it appears from the

record that at trial both parties recognized the consistency of the instructions and that one

standard applied to the passengers and the other to driving generally. The instructions were clear

in placing the higher standard of care and duty specifically on defendant and that failure to meet

that duty constituted negligence, and the trial court did not abuse its discretion in giving both

instructions.

2. The Sole Proximate Cause Instruction of IPI Civil (2000) No. 12.04 (Long Form)

The second issue regarding jury instructions is the trial court’s use of the long form of IPI

Civil (2000) No. 12.04. Plaintiff asserts that the trial court erred in giving the jury the long form

instead of giving the short form as she had requested. IPI Civil (2000) No. 12.04 reads in full:

“More than one person may be to blame for causing an injury. If you

decide that a [the] defendant[s] was [were] negligent and that his [their] negligence

was a proximate cause of injury to the plaintiff, it is not a defense that some third

person who is not a party to the suit may also have been to blame.

[However, if you decide that the sole proximate cause of injury to the

plaintiff was the conduct of some person other than the defendant, then your

verdict should be for the defendant.]”

The notes for this instruction indicate that the second paragraph should be used only

where there is evidence tending to show the sole proximate cause of the occurrence was a third

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person. IPI Civil (2000) No. 12.04, Notes on Use, at 57. Plaintiff argues that the long form of

the instruction was prejudicial because it allowed the jury to absolve defendant from its obligation

to provide the highest degree of care demanded of a common carrier. Plaintiff asserts that there

was no evidence that the vehicle was a cause of the injury, much less the sole proximate cause.

She argues that the testimony that the weather was poor, there existed a likelihood an oncoming

vehicle would pass and cut in front of the bus, and defendant trained its drivers that these factors

all required reduced speed and sooner braking, only support a finding that defendant was the sole

proximate cause. Accordingly, she concludes that it was error to tender the sole proximate cause

instruction. Graves v. Wornson, 56 Ill. App. 3d 873, 879-80 (1978).

We disagree. As stated above, defendant reiterates that a trial court does not abuse its

discretion in instructing the jury if an instruction correctly states the law and is supported by some

evidence. Plaintiff’s reliance on Graves is unavailing. In Graves, the defendants argued that the

sole proximate cause of an accident was an oncoming truck that created an emergency situation

by attempting to pass vehicles when it had insufficient space to do so. The Third District of this

court reversed the judgment of the trial court for the defendants, finding the use of the long form

of the instruction was not supported by the record. The court opined that the record indicated

that the passing truck was able to safely return to its own lane of travel before the defendants

reached it and no emergency situation was created. Therefore, it found there was no sole

proximate cause of injury and it was reversible error to instruct the jury regarding sole proximate

cause. Graves, 56 Ill. App. 3d at 879-80.

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We find that there was sufficient evidence presented to instruct the jury with the long form

of IPI Civil (2000) No. 12.04. Again, Kwidd testified that the vehicle approached in the left lane

and he deemed it likely that it would try and cut in front of the bus to the right lane. Kwidd

testified that he covered the brake, the vehicle narrowly missed hitting the bus when it cut in front,

when the vehicle got in the right lane it stopped suddenly to make a sharp right turn, and Kwidd

was forced to brake harder. Unlike in Graves, there was no evidence that the third party safely

returned to its lane of travel and it could not be the sole proximate cause. The jury was charged

with determining Kwidd’s credibility and applying the proper weight to that to determine whether

the driver of the third vehicle was the sole proximate cause.

3. Contributory Negligence Instruction

Plaintiff’s final argument on appeal involves the trial court’s use of the contributory

negligence instruction. Plaintiff argues that the evidence at trial conclusively demonstrated that

she was not guilty of contributory negligence and it was prejudicial error to give such an

instruction. Plaintiff argues that Browne is on point on this issue and requires a finding that the

trial court erred.

First, we note that plaintiff provides only a general citation to Browne without any pin cite

to that court’s discussion of this issue. Furthermore, plaintiff does not provide any analysis of the

Browne court’s treatment of contributory negligence. This court is not a repository where the

burden of argument and research may be dumped and we will not scour the record to develop

argument for a party. See Collins v. Mid-America Bag Co., 179 Ill. App. 3d 792, 794 (1989).

While we do not find that plaintiff has forfeited this issue, we do find that Browne does not

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support plaintiff’s argument and find that the trial court did not abuse its discretion in tendering

this instruction.

As defendant argues, Browne is distinguishable from this case and, more importantly, does

not hold that a plaintiff cannot be found guilty of contributory negligence in a common carrier

case. In Browne, the court stated that there was no issue of contributory negligence submitted to

the jury because the trial court found that the plaintiff was in the exercise of ordinary care for her

safety and the only issue was whether the defendant was negligent. Browne, 19 Ill. App. 3d at

917. At best, the court’s treatment of this issue was dicta and not authority to support plaintiff’s

argument. Even if Browne stood for this proposition, the facts of the case are distinguishable

because, as the trial court noted in accepting this instruction, there was conflicting testimony

whether plaintiff was standing at the time of the accident and whether she exercised ordinary care

in failing to reach for any pole or handle when standing up. Accordingly, the trial court did not

abuse its discretion in giving this instruction.

C. Rule 219 Sanctions

Finally, defendant appeals the trial court’s grant of Rule 219 sanctions. The purpose of

granting sanctions is not to punish a party, but to effectuate the goals of discovery. Adams v.

Bath & Body Works, Inc., 358 Ill. App. 3d 387, 395 (2005). The trial court is clearly in the best

position to determine how to apply court rules and rules of procedure in particular cases. In re

Marriage of Baumgartner, 384 Ill. App. 3d 39, 64 (2008). Penalties ranging from a reasonable

attorney fee to monetary penalties may be imposed even if the omissions are inadvertent.

Gonzalez v. Nissan North America, Inc., 369 Ill. App. 3d 460, 464 (2006). Therefore, we grant

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great deference to the trial court in determining whether there was a clear abuse of its discretion

in fashioning a sanction. Ashford v. Ziemann, 99 Ill. 2d 353, 368 (1984).

Rule 219(c) provides, in pertinent part:

“If a party, or any person at the instance of or in collusion with a party,

unreasonably fails to comply with any provision of part E of article II of the rules

of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails

to comply with any order entered under these rules, the court, on motion, may

enter, in addition to remedies elsewhere specifically provided, such orders as are

just, including, among others, the following:

***

(ii) That the offending party be debarred from filing any other

pleading relating to any issue to which the refusal or failure relates;

(iii) That the offending party be debarred from maintaining any

particular claim, counterclaim, third-party complaint, or defense relating to

that issue;

(iv) That a witness be barred from testifying concerning that issue;

(v) That, as to claims or defenses asserted in any pleading to which

that issue is material, a judgment by default be entered against the

offending party or that the offending party's action be dismissed with or

without prejudice;

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Nos. 1-08-3605 & 1-08-3606 (Cons.)

***

In lieu of or in addition to the foregoing, the court, upon motion or upon

its own initiative, may impose upon the offending party or his or her attorney, or

both, an appropriate sanction, which may include an order to pay to the other party

or parties the amount of reasonable expenses incurred as a result of the

misconduct, including a reasonable attorney fee, and when the misconduct is

wilful, a monetary penalty. When appropriate, the court may, by contempt

proceedings, compel obedience by any party or person to any subpoena issued or

order entered under these rules. Notwithstanding the entry of a judgment or an

order of dismissal, whether voluntary or involuntary, the trial court shall retain

jurisdiction to enforce, on its own motion or on the motion of any party, any order

imposing monetary sanctions, including such orders as may be entered on motions

which were pending hereunder prior to the filing of a notice or motion seeking a

judgment or order of dismissal.

Where a sanction is imposed under this paragraph (c), the judge shall set

forth with specificity the reasons and basis of any sanction so imposed either in the

judgment order itself or in a separate written order.” 210 Ill. 2d R. 219(c).

As noted above, after Lichtor refused to produce his tax documents and “resigned” as a

witness, plaintiff successfully moved to bar his testimony and for sanctions. The trial court

granted plaintiff leave to file a petition for attorney time and costs related to Lichtor’s deposition.

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Nos. 1-08-3605 & 1-08-3606 (Cons.)

At trial, plaintiff filed her petition for attorney fees and costs pursuant to Rule 219(c), which the

trial court granted, with slight modification of attorney fees, during posttrial proceedings.

Defendant highlights the line of cases that emphasizes that sanctions under Rule 219 are

not pecuniary, but are to be designed to effectuate discovery. See Adams, 358 Ill. App. 3d at

395; Cirrincione v. Westminster Gardens Ltd. Partnership, 352 Ill. App. 3d 755 (2004).

Defendant notes that these cases provide that sanctions must also be just and proportionate to the

offense or they are subject to reversal. Defendant maintains that the trial court granted sanctions

only after trial was completed and that this can only be viewed as “purely punitive” as it requires

defendant to pay a significant penalty to plaintiff, despite the jury verdict in its favor. Despite this

argument, defendant notes that the trial court appropriately acted in response by barring Lichtor’s

testimony - in the same order it granted plaintiff leave to file a petition for costs and fees.

Defendant asserts that its actions that gave rise to the sanction order were reasonable and

do not warrant sanction. Defendant admits that it began having problems securing documents and

communicating with Lichtor before the deposition. However, it argues that these issues did not

lead it to believe that he would resign. Lichtor refused to cooperate with both parties and both

parties acted immediately in response to bar Lichtor.

Defendant notes that plaintiff shares in the responsibility for this as she also had a duty to

communicate. Plaintiff did not communicate her concern over the missing documents and did not

present the issue to the court that the document subpoena had not been complied with.

Defendant maintains that the instant sanctions do not serve to improve discovery when the action

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Nos. 1-08-3605 & 1-08-3606 (Cons.)

was already completed but are unfairly one-sided as plaintiff also failed her duty to assure

discovery ran efficiently.

Plaintiff responds that the trial court clearly stated its findings and reasoning for sanctions

during the pretrial and posttrial hearings. The court found that it was evident that Lichtor would

not be producing the required documents and that this was told to defendant. The court

determined that only barring Lichtor’s testimony did not stay “within the spirit nor the intention of

[Rule] 219(c).” Plaintiff notes that because the trial court held that Lichtor could easily have been

withdrawn and saved plaintiff’s time and resources, in order to make Rule 219(c) meaningful,

plaintiff was entitled to fees and costs. She argues that the scope of the rule is broad and by its

plain language vests discretion to the trial court to fashion the best remedy for each situation. She

maintains that the trial court correctly determined that barring Lichtor would not promote

discovery and was not a sanction as defendant itself sought that remedy.

We first note that defendant’s argument that plaintiff could have communicated better

does not fall on deaf ears. We agree that both parties must be proactive and openly communicate

in order to effectuate open and efficient discovery. However, based on the record we do not find

that the trial court abused its discretion in imposing the sanction of attorney fees and costs related

to Lichtor’s deposition.

First, defendant’s arguments that this was purely a posttrial issue and that a proper

sanction--barring Licthor--was imposed completely ignores the record. Plaintiff’s motion to bar

Lichtor and for sanctions, and the trial court’s order granting the motions, were filed and entered

during pretrial proceedings. The posttrial action was simply the trial court’s consideration of

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Nos. 1-08-3605 & 1-08-3606 (Cons.)

plaintiff’s petition for attorney fees and costs that presented her accounting of time and costs

preparing for the deposition. Defendant was apprised of the fact it had been sanctioned during

discovery and the posttrial issue was simply an accounting. Accordingly, defendant’s assertion

that this was simply a posttrial action to obtain some monetary relief in light of the verdict rings

false.

Second, defendant itself moved to remove Lichtor in its pretrial motion. The trial court

reviewed all of this and determined that granting defendant the remedy it sought without any

sanction would cut against the spirit and design of the rule. The transcripts of the hearings clearly

specifies the trial court’s reasoning. The court found that it was clear that Lichtor refused to

comply with the document subpoena and, more importantly, that defendant was advised of this in

advance of the deposition. Because plaintiff’s unnecessary expense “could have been prevented

by merely a phone call,” the trial court granted the sanction.

Rule 219 clearly envisions a sanction of a reasonable attorney fee and expenses. The rule

also grants discretion to impose a monetary penalty where the violation is wilful. Unlike that

scenario, or the numerous cases cited by defendant where the penalty imposed was dismissal of

the action, the trial court did not impose a penalty, but granted plaintiff the direct expenses and

costs related solely to Lichtor’s deposition. The court noted that Lichtor had numerous years of

experience testifying in such matters and was familiar with production requirements.

Furthermore, the court stated that a party has the ability to tell a witness exactly what is

needed, what must be produced and prepare them for such production and questioning. The

court found that defendant was apprised of the fact Lichtor would not cooperate prior to the

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Nos. 1-08-3605 & 1-08-3606 (Cons.)

deposition and could easily have been withdrawn. The record supports this finding and that the

grant of fees and costs for plaintiff’s time and effort wasted was a proportionate sanction and

defendant does not argue that plaintiff’s computation of time, fees and costs was incorrect.

Accordingly, it was not an abuse of discretion to grant plaintiff’s motion for sanctions and

subsequent petition for fees and costs.

III. CONCLUSION

In light of the foregoing, the decision of the trial court is affirmed.

Affirmed.

QUINN and COLEMAN, JJ., concur.

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 Nos. 1-08-3605 & 1-08-3606 (Cons.)

Plea se Use
REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Following (Front Sheet to be Attached to Each Case)
Form:

Complete
TITLE GERALDINE NEW, Plaintiff-Appellee,
of Case v.
PACE SUBURBAN BUS SERVICE, a division of REGIONAL TRANSIT AUTHORITY, a
municipal corporation,, Defendant-Appellant.
GERALDINE NEW,
Plaintiff-Appellant,
v.

PACE SUBURBAN BUS SERVICE, a Division of Regional Transit Authority, a municipal
corporation, Defendant-Appellee.

Docket No.
Nos. 1-08-3605 & 1-08-3606 (cons.)
COURT
Appellate Court of Illinois
Opinion First District, THIRD Division
Filed
January 27, 2010
(Give month, day and year)

JUSTICES
PRESIDING JUSTICE MURPHY delivered the opinion of the court:

Quinn and Coleman, JJ., concur [s]

APPEAL from Lower Court and Trial Judge(s) in form indicated in the margin:
the Circuit Ct. of
Cook County, The Honorable James P. McCarthy , Judge Presiding.
Criminal Div.
Indicate if attorney represents APPELLANTS or APPELLEES and include
attorneys of counsel. Indicate the word NONE if not represented.

Attorney for Plaintiff-Appellee/Appellant: Parente & Norem, P.C.
For Timothy Quinn
APPELLANTS, 221 N. La Salle Street, Suite 2700
John Doe, of Chicago, IL 60601
Chicago. Phone: 312.641.5926
For
APPELLEES,
Smith and Smith
of Chicago, Attorneys for Defendant-Appellant/Appellee: Kevin V. Boyle
Joseph Brown,
(of Counsel)
Catherine Basque Weiler
Swanson, Martin & Bell, LLP
Also add 330 N. Wabash, Suite 3300
attorneys for Chicago, IL 60611
third-party
Phone: 312.321.9100
appellants or
appellees.

25