dissenting:
I respectfully dissent. The majority holds that a directed verdict was proper because plaintiff failed to present “evidence suggesting that Dawkins could have perceived a danger to Heinbockel and availed herself of reasonable steps to avoid it.” 358 Ill. App. 3d at 715-16. To the contrary, I believe plaintiff presented ample evidence of multiple breaches of the standard of care.
There can be no suggestion that Heinbockel was at fault in this accident. He was standing in a crosswalk at an intersection controlled by a stop sign when a portion of the vehicle driven by Dawkins crossed the center line and struck him. There is no suggestion that Heinbockel was not visible to Dawkins or that he moved into her lane of traffic after she attempted to drive past him. After Dawkins stopped at the stop sign, I believe she was under a clear duty to remain stopped until he left the crosswalk area or to proceed with sufficient caution that no portion of her vehicle or its load struck Heinbockel. The majority would relieve Dawkins of this obligation because the portion of her vehicle that struck Heinbockel was a pod that swung free from its dolly. I am not inclined to adopt a finding of nonliability so easily.
First, although the pods and dollies were loaded by the employees of another company, I believe that Dawkins was under an affirmative duty to inspect her vehicle for safety before driving it. At the very least, plaintiff should have been allowed to argue to the jurors that they could use their own common sense to conclude that this duty existed. I believe the majority must either concede that all matters regarding the safe operation of the baggage-handling vehicles are within the common knowledge of the jurors or reverse its holding that the testimony of an experienced tug operator and union safety coordinator constituted only impermissible lay opinion. Dawkins admitted not only that she failed to inspect the dollies and pods before attaching them to her tug but that defendant never provided her with training on how to do so.
Second, although she denied doing so at trial, Dawkins admitted during an accident investigation that she drove over a bump sufficient to cause a pod to swing off its dolly. I believe that this constitutes a clear deviation of the standard of care. The majority discounts this evidence because plaintiff did not identify the location of the bump. I fail to perceive how the location of the bump is relevant. Dawkins’ admission, an admission by an admitted agent of the defendant, is sufficient to establish that she, in fact, drove over a bump.
Third, although the evidence is not as strong, I believe that Dawkins violated the applicable standard of care by failing to observe that the pod had swung loose while she was driving the luggage vehicle. As with the issue of inspection, I believe that we must either assume that this is a matter within common knowledge or reverse based on the trial court’s failure to allow expert testimony on whether a baggage-vehicle driver could be expected to observe using mirrors or through feel that a pod was swinging free on its dolly.
In conclusion, I believe that plaintiff presented ample evidence of as many as three separate violations of the standard of care. Although the jury might not have made the same inferences that I have, it was that body, and not the trial court, that should have weighed the evidence supporting plaintiffs claim. Finally, lest plaintiff be criticized for failing to identify which of the three violations of the duty of care was violated, I believe application of the doctrine of res ipsa loquitur would be appropriate. The pod swung loose because Dawkins violated at least one of these standards, and at the time of the allegedly negligent act, i.e., the failure to inspect, driving over a bump, or failing to observe the loose pod, the instrumentality, the baggage vehicle consisting of tug, dollies and pods, was exclusively in her control. I would reverse the judgment of the trial court and remand this matter for further proceedings.