Chicago Pedestrian Granted New Jury Trial After Defendant Attorney Disregards Motion Barring Evidence Relating to A Third-Party

An Illinois plaintiff’s request for a new trial was recently affirmed by the Illinois Appellate Court. The appellate court held that a new trial was necessary because the defense attorney had made too many statements in closing argument thought to be prejudicial to the jury. The court ruled that the defendant’s lawyer’s argument crossed the line of fairness and affirmed the grant of a new trial in Michael Lynn v. James L. Miller, No. 1-10-2799.

The original Cook County trial involved the personal injury case filed by the plaintiff Michael Lynn. In 2006, Lynn had been standing at the Chicago intersection of Wentworth Avenue and 33rd Street when he was hit by a car driven by defendant James Miller. In his complaint, Lynn alleged that Miller was driving at unreasonable speeds and had failed to keep a proper lookout, warn Lynn that he was approaching, or keep his car under control.

However, Miller denied that he was negligent or in any way responsible for the Chicago pedestrian accident. Instead, Miller pointed to a bicyclist as the sole proximate cause for the accident. As Miller was approaching the intersection where Lynn was standing, Ional Pusca was riding his bicycle through the intersection. Miller had to swerve to avoid hitting Pusca, which in turn caused Miller to hit Lynn. Given these circumstances Miller contended that it was Pusca and not himself who was responsible for the collision with Lynn.

Yet Pusca was not a named defendant in Lynn’s personal injury lawsuit. In fact, Lynn’s attorney filed a motion to bar any reference to the bicyclist Pusca. The defendant’s attorney objected to this motion, stating that the defense needed to reference Pusca considering that his actions were the basis of its theory of liability. The judge denied the plaintiff’s motion to bar any reference to Pusca.

However, the plaintiff’s attorney also filed a motion to bar any reference to the fact that the defendant’s attorney had filed a third party lawsuit against Pusca. A third-party lawsuit can be brought by a defendant against any party that it feels is liable for the relevant injury that was not named as a party in the original lawsuit. While Lynn’s attorney did not overtly object to the mention of the third-party lawsuit at trial, he did request that “any evidence, argument or innuendo relating to the plaintiff not filing suit against Mr. Pusca” be likewise barred.

While both parties observed these agreed upon limitations during the majority of the Cook County trial, during the closing arguments Miller’s attorney made several references to the fact that Lynn had not filed a lawsuit against Pusca for his role in the car accident. Despite the plaintiff’s attorney objecting to the first of these references, the defense attorney went on to make at least two more references to the fact that Pusca was not a named defendant and as such was not in the courtroom.

The jury went on to find in favor of the defendant, after which Lynn’s attorney filed an appeal of the trial verdict. In its appeal, the plaintiff contested the inflammatory comments Miller’s attorney made during his closing arguments. The appellate court agreed that “comments during closing arguments relating to why a person was not sued are improper.” The court was also critical of Miller’s attorney for “draw[ing] attention to an opponent’s failure to call a witness [Pusca] when the witness is not under the opponent’s control.”
The defense attorney had ended his closing argument by asking the jury to consider the significance of Pusca’s absence, even going so far as gesturing around the courtroom while wondering aloud, “Where is he?” The appellate court correctly interpreted the defense attorney’s intention as trying to suggest to the jury that Lynn was trying to hide unfavorable evidence. However, because Pusca was not under Lynn’s control, Lynn was not required to call him to testify, or to guarantee that Pusca was in the court room during the personal injury trial. To suggest otherwise to the jury can be misleading.

The appellate court found that the jury was further misled when being asked to respond to a special interrogatory put forth by the defendant. The interrogatory asked the jury to decide whether “the conduct of Ional Pusca was the sole proximate cause of the occurrence,” to which the jury answered, “Yes.” However, the wording of the special interrogatory was misleading and prejudicial in that it asked the jury to consider the proximate cause of the occurrence rather than the cause of the plaintiff’s injuries.

According to Illinois pattern jury instructions, the jury should grant awards for damages sustained rather than for the incident alone. Therefore, the wording of the special interrogatory did not include the appropriate language and as a result did not provide the jury with a correct standard to determine liability. As a result, the Illinois Appellate Court granted the plaintiff’s request for a new jury trial.

Kreisman Law Offices has been handling Illinois pedestrian injury cases for more than 35 years in and around Chicago, Cook County, and surrounding areas including, Calumet Park, Naperville, Arlington Heights, and Elmhurst.

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