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Grossman v. Gebarowski6/28/2000
Appeal from the Circuit Court of Cook County.
Honorable John V. Virgilio, Judge Presiding.
Plaintiff Beverly Grossman, special administrator of the Estate of Barry Grossman (the decedent), appeals from an order of the circuit court granting judgment on a jury verdict in favor of defendant Walter Gebarowski and from an order denying plaintiff's post-trial motions for judgment notwithstanding the verdict (judgment n.o.v.) and for a new trial in a negligence action filed by plaintiff against defendant pursuant to the Wrongful Death Act (740 ILCS 180/1 et seq. (West 1992)) and the Survival Act (755 ILCS 5/27--6 (West 1992)). Plaintiff contends on appeal that the trial court committed reversible error by depriving plaintiff of the assurance of a jury that was free from bias or prejudice and by instructing the jury with two separate, nearly consecutive instructions concerning a pedestrian's duty while "crossing a roadway" without also instructing the jury that drivers owe a duty to a pedestrian "crossing a roadway." For the reasons set forth below, we reverse and remand for a new trial.
On November 25, 1992, the decedent, Barry Grossman, a disabled person who had been suffering from cerebral palsy, was crossing Milwaukee Avenue on foot north of its intersection with Central Road and south of the entrance to the Triumvera housing complex in Northfield Township when he was struck and killed by an automobile owned and operated by defendant, Walter Gebarowski. Plaintiff, Beverly Grossman, subsequently filed a two-count complaint against defendant and on behalf of herself and Robert Grossman, as the decedent's parents, and on behalf of the decedent's brother and sister. Plaintiff alleged that defendant had negligently operated his automobile and that his alleged negligence had been a proximate cause of the decedent's death. Defendant denied both that he had been negligent and that he had caused or contributed to cause the decedent's death. Defendant claimed, as an affirmative defense, that the decedent had violated his duty to use ordinary care for his own safety by failing to maintain a proper lookout for vehicles on the roadway, by failing to cross the street within a crosswalk, and by being otherwise careless and negligent.
Prior to trial, the trial court advised counsel that it alone, during jury selection, was going to ask the prospective jurors only those questions previously submitted by counsel that it thought were "relevant." The court further advised counsel that they could proffer supplemental written questions, but the court specified that only it would ask those supplemental questions it, again, thought were "relevant." Specifically, in establishing its jury selection process, the court stated:
"There will be five challenges on each side. I will be doing the questioning in this case. The attorneys have submitted jury questions to me that they would like me to ask. I will ask those questions if I think they are relevant, and I will not ask those questions I don't think are relevant."
In response to an inquiry posited by plaintiff's counsel whether the court would permit him to supplement the court's voir dire examination, the trial court responded:
"Yes, but in writing. * When I ask if you have any challenges, if you think I need to ask more questions or a couple more questions, write them down in writing and give them to me and, again, if I think they are relevant, I'll ask them. If I don't I won't."
Defendant's counsel then questioned the procedure, stating:
"Your Honor * I do understand your Honor's policy regarding not allowing lawyers to ask questions. Since this is a wrongful death ca
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