dissenting:
After carefully considering the opinion of the majority, I find that, for the reasons that follow, I cannot agree with the decision to reverse the trial court’s order of a new trial and I, therefore, respectfully dissent.
Even though he falls squarely within the statutory definition of “[a]ny person afoot” (625 ILCS 5/1 — 158 (West 1996)), and even though he has moved away from the scene of the accident, the majority finds that a police officer, acting in the course of his duties, is not a “pedestrian.” He is, therefore, not held to the same duty as an “ordinary pedestrian.”
I have no real quarrel with either that conclusion or the reasoning on which it rests, and I could probably concur on that basis but for my other concerns. This court, however, has the latitude to affirm a decision of the trial court not only for the reason given but also for any reason that finds support in the record. Burd v. Industrial Comm’n, 207 Ill. App. 3d 371, 382, 566 N.E.2d 35, 42 (1991). It is for other, but related, reasons that I believe the order granting a new trial should be affirmed.
In arriving at the conclusion that a police officer, acting in the course of his duties, is not a pedestrian, the majority acknowledges that this is a case of first impression in Illinois and relies solely on cases from other states. Illinois also has no statute that addresses the due care standard for a policeman “afoot” on the highway in the course of his duties. It seems clear that the jury reached its decision in a vacuum of legal guidance about Officer Lewis’s duty of care for his own safety on the highway, rendering the verdict speculative.
Moreover, the majority makes no suggestion about how the relative standards of care of public servants with legitimate business on and about the highway and those of motorists legitimately driving on the highway should be balanced. In this case, the police officer had moved away from the scene of the accident and was walking in a traffic lane on an interstate highway at 1 o’clock in the morning wearing dark clothing without any reflective material and alone, without the safety backup required by his departmental rules. In light of these facts, it appears that the majority makes motorists insurers to some degree of the safety of anyone on the highway who is wearing, or is entitled to wear, a uniform or badge, no matter what the conditions, as long as he or she is on the job. Here the jury reduced the verdict by 40%, apparently finding that to be the proportion of the officer’s comparative fault, and the majority reinstates this discounted verdict. But, in the absence of a standard, how is it possible to say whether the reduction was not enough, too much, or just right? For this reason, too, I believe a new trial is warranted.
Finally, I think the trial court erred in excluding testimony of the officer’s hearing impairment. Evidence of that impairment was ruled irrelevant on the basis of a 10-year-old determination that his hearing loss did not impact his abilities as a police officer. Even assuming there had been no negative changes in his hearing in the intervening 10 years and further assuming that his hearing aid was turned on, an assessment that the officer could perform his duties as a police officer is simply not the same issue as whether he could discern a particular vehicle approaching him from the rear on a highway where people and other vehicles were actively involved with an accident scene. These are, in my opinion, legitimate questions to be considered and answered by the finder of fact. The jury found plaintiffs deceased 40% at fault without any knowledge of his hearing impairment; the impact of this information could be very significant. This provides yet another reason to send this matter back for a new trial.
For these reasons, I would affirm the order of the Kankakee County circuit court granting a new trial in this matter, and I therefore dissent from the majority opinion.