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Redmond v. Socha9/29/2004
UNPUBLISHED
The defendant/counter-plaintiff, Elaine Socha (hereinafter referred to as the defendant), appeals from an order of the circuit court granting a new trial in this negligence action. For the reasons which follow, we affirm and remand this matter to the circuit court for further proceedings.
The facts material to our resolution of this appeal are undisputed. On July 4, 2001, the motorcycle that the plaintiff/counter-defendant, Tommie Redmond (hereinafter referred to as the plaintiff), was operating was struck in the rear by an automobile being driven by the defendant. As a result of the collision, the plaintiff filed the instant action seeking damages for personal injury and property damage. The defendant answered the complaint and filed both an affirmative defense alleging that the plaintiff was contributorily negligent and a counterclaim seeking damages for property damage.
The matter was tried before a jury. At trial, the plaintiff testified that he and two friends were riding their motorcycles on Ogden Avenue between Sacramento Boulevard and California Avenue. According to the plaintiff, he was traveling in a northeasterly direction in the right lane of traffic. He testified that, in preparation for making a left turn onto California Avenue, he looked over his shoulder prior to moving into the left lane and saw a vehicle behind the motorcycles being driven by his friends who were also traveling in the right lane of traffic. He stated that, as he moved into the left lane, the automobile being driven by the defendant, "shot" from behind his friends' motorcycles into the left lane of traffic and struck the left rear of his motorcycle. The plaintiff introduced evidence of the injuries he suffered as a result of the collision and the damages he sustained. In contrast, the defendant testified that she was driving her automobile in a northeasterly direction in the left lane of traffic on Ogden Avenue when the plaintiff, driving a motorcycle in the right lane, attempted to make a U-turn directly in front of her car. According to the defendant, she tried to stop, but the right front fender of her car struck the left rear of the plaintiff's motorcycle. The defendant introduced evidence of the damages to her vehicle as a result of the collision. Neither the plaintiff nor the defendant introduced evidence of any cause of the collision other than the negligence of the other.
The trial court instructed the jury, both orally and in writing, as to the burdens placed upon the respective parties. The instruction given was Illinois Pattern Jury Instruction No. B21.04 (IPI (Civil) No. B21.04) which directed the jury as follows:
"In this suit, there is not only the complaint of the Plaintiff but also the counterclaim of the defendant.
Because there is a counterclaim in this case[,] you may reach one of four results.
First, you may find for the Plaintiff on his complaint and against the Defendant on her counterclaim.
Second, you may find for the defendant on her counterclaim and against the Plaintiff on his complaint.
Third, you may find against both the Plaintiff on his complaint and the Defendant on her counterclaim.
Fourth, you may find for both, the Plaintiff on his complaint and the Defendant on her counterclaim.
In order for the Plaintiff to recover, he has the burden of proving each of the following propositions:
First, that the Defendant acted or failed to act in one of the ways claimed by the Plaintiff as stated to you in these instructions, and in so acting or failing to act, the Defendant was negligent;
Second, that the plaintiff w
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