author: JUSTICE PINCHAM

text:
    LILAS DARNELL ROZNER, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
    First District (5th Division)
    No. 1—87—0701
    Opinion filed May 12, 1989.

      Keith L. Young, of Lambruschi, Young & Associates, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Joyce A. Hughes and Scott Neville, Jr., both of Chicago Transit Authority, of Chicago, for appellee.
   JUSTICE PINCHAM

delivered the opinion of the court:

Plaintiff, Lilas Rozner, brought this action against defendant, the Chicago Transit Authority (the CTA), to recover damages for personal injuries she sustained when a CTA bus driver allegedly negligently operated a CTA bus on which plaintiff was a passenger and crashed into a lightpost. A jury returned a verdict against the CTA and for the plaintiff in the amount of $26,077. The trial judge denied plaintiff’s post-trial motion for a new trial on the ground that the amount of the damages awarded by the jury’s verdict was manifestly and grossly inadequate and plaintiff appeals. For the following reasons we affirm.

Plaintiff testified that it was snowing on the evening of January 30, 1980, but that she had no difficulty walking on the sidewalk prior to boarding the CTA bus at Foster Avenue in Chicago. Plaintiff sat on the driver’s side, across from the rear door of the bus.

After a distance, the CTA bus crossed over the center line of Foster Avenue and struck a lightpost. Plaintiff’s head bumped the metal frame of a window, her neck snapped, plaintiff fell from her seat and landed unconscious on the rear steps of the bus. Plaintiff was in shock and was unaware of how long she remained on the steps. Someone picked her up and put her back on the seat. Plaintiff testified that she felt pain from her neck down to her right knee.

Plaintiff testified that she went to a hospital the next day because her neck hurt, she could not move her right arm and was in pain from the underside of her right arm down to her right knee. She described these symptoms to the hospital personnel. Plaintiff was X-rayed, and a doctor gave her a neck collar, put her right arm in a sling, prescribed Tylenol No. Three and referred plaintiff to Dr. Milton Wohl.

Dr. Wohl testified that plaintiff related to him that she was in severe pain. Dr. Wohl examined plaintiff and referred her to Dr. Chung. Nine months later, in October 1980, Dr. Chung operated on plaintiff’s neck and also removed three inches of bone from plaintiff’s hip. Plaintiff returned after she had been discharged from the hospital because she had difficulty moving. Dr. Chung gave plaintiff a traction device which she was to use for 20 minutes, two or three times daily.

Plaintiff testified that she still had pain when she moved her neck, that medication relieved the pain to a degree, but that the pain always returned. Plaintiff also testified that the surgical scar on her neck was tight and made swallowing difficult. Plaintiff added that she was no longer able to cook, shop or keep house and that her husband now has to perform these chores.

Laverne Shaw, a fellow passenger on the bus with plaintiff, testified that the snow had been plowed completely from the streets at the time of the accident. Shaw stated that the bus traveled at a speed faster than the speed of the buses she usually rode on Foster Avenue and faster than the rest of the traffic that evening. The bus moved into the westbound lane, passed an eastbound car, moved to the right and swerved. The back end of the bus swerved and hit something. Shaw did not feel or hear the application of the bus’ brakes or feel the bus slow down before it struck the object. Shaw felt a heavy impact and saw a lightpost lying on the sidewalk. Shaw further testified that she saw the plaintiff on the floor of the bus and a boy helped plaintiff back to her seat. The front of the bus was in the street and the rear of the bus was on the sidewalk.

Constantino Estrada, the CTA bus driver involved in the collision, testified that as the bus traveled eastward approaching Damen Avenue, Estrada saw a prospective passenger standing at the bus stop at Foster and Damen Avenues. Estrada approached the intersection at about five miles per hour, according to his estimation, and applied his brakes “smoothly” two or three times. The rear of the bus skidded to the right as if it were sliding on ice. Estrada lost control and the bus struck a lightpost. Estrada testified that he did not see ice on the street before the bus skidded or after the accident. After the bus hit the lightpost, it skidded two or three more feet. In a report Estrada submitted to his CTA supervisor, Estrada promised to operate his bus better in the future.

Three physicians testified at trial, Dr. Milton Wohl, a board-certified orthopedic surgeon, and Dr. Byong Uk Chung, a neurosurgeon, both on plaintiff’s behalf, and Dr. Richard Gilene, also a board-certified orthopedic surgeon, on behalf of defendant.

Dr. Wohl testified that he examined plaintiff for the first time on June 6, 1980, which was about five months after the accident. Dr. Wohl took a medical history of plaintiff and upon examining her found that her neck was stiff and moved only a few degrees. Plaintiff’s right knee grated when flexed and straightened. There was also a mild limitation of the motion of plaintiff’s right shoulder, which Dr. Wohl felt was a result of the pain in plaintiff’s neck. Plaintiff was also suffering muscle spasms and Dr. Wohl ordered X rays. The X rays, taken on June 7, 1980, showed degenerative arthritis between bones in plaintiff’s neck and arthritic spurs, called spondylosis, a result of aging and wear and tear found in persons of plaintiff’s age.

Dr. Wohl recommended that plaintiff receive physical therapy and continue to use the neck collar. Dr. Wohl’s initial diagnosis was that plaintiff suffered from degeneration of two disks and arthritis in the neck. Dr. Wohl further testified that the trauma of the bus accident was the direct cause of plaintiff’s pain and disability.

Dr. Chung testified that he compared plaintiff’s X rays taken in January 1980 to those taken in June 1980, and found that, “as far as the demonstration of spurs are concerned, they are exactly the same, and you don’t see much change in them.” However, Dr. Chung stated, the “unequivocal or unquestionable sign of disk degeneration” was not present on the January X rays but was present on the June X rays, and that even though the change was mostly likely attributable to the injury plaintiff suffered in the collision, the change in and the condition of plaintiff’s disks could have occurred without any trauma, if plaintiff were predisposed to degenerative arthritic conditions. In Dr. Chung’s opinion, the disk degeneration at the cervical six level was most likely related to the injury plaintiff sustained in the bus collision. Dr. Chung performed a myelogram, which showed damage caused by the spondylosis.

Since plaintiff had not responded to the neck collar or medication, on November 5, 1980, Dr. Chung performed spinal fusion surgery on plaintiff. Dr. Chung testified that the injury plaintiff suffered in the collision caused plaintiff to require the surgery because it aggravated plaintiff’s preexisting spondylosis.

Plaintiff next saw Dr. Chung on January 29, 1981, at which time she complained of occasional pain in the back of the neck. Dr. Chung saw plaintiff on April 23, 1981, at which time plaintiff complained of neck pain, limited motion in her neck and pain in her right shoulder. Over the course of the following 4V2 years, Dr. Chung saw plaintiff 10 or more times for pain in the neck and shoulder. Dr. Chung prescribed home cervical traction and an anti-inflammatory pain medication.

Dr. Chung opined that plaintiff’s pain would probably not require further surgery. Additionally, Dr. Chung stated that he found no atrophy or weakness in plaintiff’s arm muscles. Dr. Chung found no numbness, tingling or sensory loss in plaintiff when he examined her on February 28, 1985. In a deposition given on October 26, 1981, Dr. Chung testified that plaintiff was not disabled.

Finally, Dr. Chung testified that plaintiff suffered no functional loss as the limitation on the movement of plaintiff’s neck resulting from the surgery would not interfere with her normal activities.

Dr. Gilene testified on behalf of the defendant CTA that he examined plaintiff two weeks before trial in preparation for testifying on behalf of the defense and found that plaintiff had “pretty good movement” of the neck, no muscle spasms and equal reflexes in plaintiff’s upper extremities. There was no difference in plaintiff’s two previous X rays. Dr. Gilene stated that he had never recommended surgery where the only symptoms were spondylosis and continued pain. Plaintiff’s medical chart did not indicate to Dr. Gilene the necessity of surgery. Dr. Gilene found no signs of wincing or movement when he touched plaintiff, and only minimal loss of motion, which was compatible with the surgery performed.

On appeal, plaintiff contends that the jury’s meager award of $26,077 in damages for her pain, suffering and disability must be vacated because it was manifestly inadequate. Defendant CTA contends that because plaintiff failed to raise this issue in her written post-trial motion, plaintiff waived this issue for purposes of appeal. Ordinarily, a party who files a motion for a new trial in writing is limited on review to the grounds or reasons set forth therein and is deemed to have waived all other grounds or reasons for a new trial not therein included. (Zukowsky v. Grounds (1980), 85 Ill. App. 3d 355, 406 N.E.2d 848.) Moreover, a post-trial motion must be in writing. (Neiman v. City of Chicago (1962), 37 Ill. App. 2d 309, 185 N.E.2d 858.) Plaintiff orally argued at length in the trial court as ground for a new trial that the jury awarded an inadequate amount of damages, but did not include this argument in her written motion for a new trial. Because plaintiff orally argued as a ground in her motion for a new trial that the jury’s damages award was inadequate, the trial court and defendant were thus put on sufficient notice that plaintiff was relying thereon for a new trial. Thus, plaintiff’s failure to set forth in writing said ground should not be considered a waiver, and we therefore do not consider the issue waived.

We do not agree, however, that the jury’s award of $26,077 damages for plaintiff’s pain, suffering and disability is manifestly inadequate. Determining the amount of damages is preeminently the function of the trier of fact, and once that amount is determined it should not be disturbed on appeal, unless it is obviously the result of passion and prejudice. (Nancy’s Home of the Stuffed Pizza, Inc. v. Cirrincione (1986), 144 Ill. App. 3d 934, 494 N.E.2d 795.) In the instant case, plaintiff’s complaints of pain were subjective, and as such, the jury, in weighing the credibility of the witnesses, was not required to accept plaintiff’s testimony regarding the extent of her pain and suffering. Moreover, the jury could have accepted the testimony of Dr. Chung that plaintiff was not disabled, that plaintiff did not have any functional loss as a result of the bus collision, and that the limitation of the motion of plaintiff’s neck would not interfere with her quotidian activities. Further, the jury could have accepted the testimony of Dr. Gilene that he found no muscle spasms in plaintiff’s neck. We therefore conclude that inasmuch as the trial judge saw and heard the evidence presented to the jury at trial and approved the verdict of the jury as rendered, we will not disturb the verdict of the jury in the absence of a showing that the verdict was the result of passion or prejudice. Kupcikevicius v. Fitzgibbons (1976), 41 Ill. App. 3d 405, 413, 354 N.E.2d 434, 440-41.

Plaintiff next contends that the court and defense counsel violated a pretrial in limine order of the court, which alleged violations adversely affected the jury’s award of damages and that a new trial on the issue of damages is therefore required. We disagree.

An in limine motion of the type submitted by counsel in the instant case

“permits a party to obtain an order before trial excluding inadmissible evidence and prohibiting interrogation concerning such evidence without the necessity of having the questions asked and objections thereto made in front of the jury. Thus, the moving party will be protected from whatever prejudicial impact the mere asking of the questions and the making of the objections may have upon a jury.” Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549.

During the hearing on the in limine motion, plaintiff conceded that there was no connection between her August 26, 1986, surgery on her lower back and the injury she received in the bus collision on January 30, 1980. Both counsel agreed that there would be no reference before the jury to plaintiff’s lumbar region. Plaintiff’s counsel also requested that there be no reference to plaintiff’s loss of her right index finger in an industrial accident in 1974. Counsel for the defense expressed misgivings about this request because, he stated, plaintiff could then claim that she was unable to use her whole right arm. The trial court ordered that he would bar any evidence regarding plaintiff’s right index finger “at the time.”

An examination of the order in limine issued by the trial judge in the instant case is necessary. Plaintiff’s finger was severed in an industrial accident. The order in limine stated that the court would “bar any evidence on [plaintiff’s] right index finger at this time.” Additionally, there would be no evidence, arguments or comments regarding a worker’s compensation award of $262 per month for life which plaintiff received for the loss of her index finger; regarding plaintiff’s social security disability payments; or regarding back surgery which plaintiff underwent in August 1986, subsequent and unrelated to the bus collision.

Our review of the record establishes that the court’s in limine order with regard to the foregoing restrictions was followed. No evidence was presented to the jury concerning the injury to plaintiff’s right index finger or plaintiff’s right hand, or that plaintiff was currently receiving social security disability payments, or that plaintiff had undergone surgery on her lower back in August 1986, subsequent to the bus collision.

During direct examination of plaintiff, defense counsel objected, out of the jury’s hearing, that plaintiff volunteered that she could no longer perform household duties, while at the same time the defense was barred by the order in limine from showing that plaintiff had undergone back surgery, which surgery defense counsel stated probably rendered plaintiff unable to perform household duties.

In camera, defense counsel referred to the order in limine, acknowledged that the order in limine barred counsel from referring to plaintiff’s back surgery and pointed out the potential problem which could arise if plaintiff were permitted to testify that she was no longer able to perform certain functions. Defense counsel contended that the jury could erroneously conclude that plaintiff’s inability to perform household duties resulted from the bus collision because “she is limping all over the place.” Defense counsel moved to rescind the order in limine. Plaintiff’s counsel stated that he had instructed plaintiff not to mention her back and that he believed plaintiff understood. The court sustained defense counsel’s objection to examination of plaintiff regarding her present ability to perform. However, the court did not rule on defense counsel’s motion to rescind the order in limine.

Plaintiff’s counsel then asked plaintiff to describe how her hip felt and plaintiff testified that she was bothered by it. Plaintiff’s counsel asked plaintiff whether there were any functions of plaintiff’s neck and shoulders that she was presently unable to perform, but which plaintiff could perform prior to the accident. Plaintiff testified that she could not do housework anymore.

Thereafter, plaintiff was recalled by the defense following Dr. Chung’s testimony. Defense counsel explained that because of plaintiff’s obvious limp when taking the witness stand and her testimony that she could no longer perform her housework, he was requesting that the court permit him to further question plaintiff in order to demonstrate to the jury that plaintiff’s limp was not due to the injuries she sustained in the accident.

A hearing was held in camera, and plaintiff stated that she had been limping since August 26, 1986, that she “walked fine” before that surgery, but that she still believed that her back problems were related in some way to the accident. Thereupon, the trial judge stated that plaintiff’s obvious difficulty with walking was highly inflammatory to the jury and concluded that it was necessary to inform the jury that plaintiff’s limp was not caused by the accident. Plaintiff’s counsel declined to agree to a stipulation proposed by the trial judge that plaintiff’s limp was unrelated to the bus collision, but rather was the result of back surgery in August 1986, after the bus collision. The trial judge informed counsel that he, the judge, would question plaintiff before the jury about when she began to limp and whether she had walked with a limp prior to August 1986. Plaintiff’s counsel did not object to this ruling. The following colloquy ensued, in camera, between counsel and the trial judge:

“[PLAINTIFF’S COUNSEL]: If I might, Your Honor, please, to object to the inquiry *** maybe we could limit the inquiry to a year because if we go to a specific month or date, that implies either surgery, some medical treatment or other accident. There is a big implication.
THE COURT: That doesn’t bother me. Does it bother you?
[DEFENSE COUNSEL]: Says she has been limping since August. Doesn’t preclude the jury from thinking it was the accident in 1986. That’s the problem.
[PLAINTIFF’S COUNSEL]: Limited to the year.
THE COURT: Limited to the year?
[DEFENSE COUNSEL]: They may conclude ***.
THE COURT: I am not going any further.
* * *
[DEFENSE COUNSEL]: Judge, I think there is going to have to be some way not connected to the accident. I don’t think that does it.
THE COURT: That does it.
[DEFENSE COUNSEL]: I don’t think it does.
THE COURT: You can talk about it in your final argument. He [plaintiff’s counsel] is not claiming that there is any *** he has to claim it first.
[DEFENSE COUNSEL]: Can I make certain I can say that limp has nothing to do with the accident?
THE COURT: Yes.
* * *
[PLAINTIFF’S COUNSEL]: Can we limit it to ’86?
THE COURT: Absolutely.
* * *
[DEFENSE COUNSEL]: She can say August.
THE COURT: I don’t want her to say. That’s enough. Did you ever walk with a limp prior to this year?”

Thus, the trial judge amended the in limine order and clearly advised counsel thereof. Plaintiff’s counsel, however, failed to object to this amendment of the original order in limine, in camera, by the terms of which the trial judge decided to question plaintiff about when her limp first occurred. Thereafter, in the presence of the jury, the trial judge asked plaintiff when she began to limp. Plaintiff’s counsel did not object to this examination of plaintiff by the trial judge. Plaintiff responded that she began to limp in 1986, after the bus collision of January 1980, and that she did not limp prior to 1986.

In closing arguments to the jury, counsel for the defense stated that plaintiff’s limp was unrelated to the injury plaintiff sustained in the bus collision. However, plaintiff’s counsel orally objected to this closing argument, although as demonstrated by our foregoing examination of the in camera hearing and the trial court’s amendment of the order in limine, the trial court ordered, without objection on the part of plaintiff’s counsel, that it was permissible for defense counsel to make this closing argument to the jury. Inasmuch as plaintiff’s counsel objected only to this closing argument of the defense, which was in accord with the amended order in limine and the evidence, the argument was appropriate. We conclude that neither the trial court nor defense counsel committed any error or violation with respect to the order in limine or its amendments.

The judgment of the trial court is affirmed.

Affirmed.

LORENZ and COCCIA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE QUINLAN

license: Public Domain

text:
    JUDY B. GARA, Plaintiff-Appellant, v. EMANUEL SEMERAD et al., Defendants-Appellees (Ben W. Lichtenstein et al., Defendants).
    First District (1st Division)
    No. 1—87—2505
    Opinion filed May 15, 1989.

      Robert W. Karr & Associates, Ltd., and Sidney Z. Karasik, both of Chicago (Robert W. Karr, Marion A. Morawicz, and Jill Kline, of counsel), for appellant.
    Connelly, Mustes & Palmer, of Chicago (John J. Mustes and John R. Ostojic, of counsel), for appellee Helge G. Frank.
    Rooks, Pitts & Poust, of Chicago (Terrence J. Madden and Jill M. Rappis, of counsel), for appellee Emanuel Semerad.
    Wildman, Harrold, Allen & Dixon, of Chicago (Ruth E. VanDemark, of counsel), for appellee David M. Shenker.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Russell P. Veldenz, of counsel), for appellee John F. Gleason.
   JUSTICE QUINLAN

delivered the opinion of the court:

On January 2, 1982, the plaintiff, Judy Gara, was injured in an accident at Alexian Brothers Medical Center, where she was employed as a nurse. On October 5, 1984, plaintiff filed a professional negligence lawsuit against various physicians and hospitals for their alleged failure to diagnose and properly treat the injury she sustained as a result of the accident on January 2, 1982. Included as defendants in the lawsuit were Drs. Semerad, Gleason, Shenker and Frank. Drs. Semerad, Shenker and Frank moved for summary judgment, and Dr. Gleason moved to dismiss plaintiff’s complaint. All of the doctors’ motions were based on the argument that the plaintiff’s claim was barred by the applicable statute of limitations, which they asserted required that the plaintiff bring her suit within two years of the date of her injury or the discovery of her cause of action. The plaintiff, they claimed, had discovered her cause of action more than two years before the time she had filed her complaint. The trial judge agreed and ruled that the plaintiff’s claim was time barred, granted the motions of Drs. Semerad, Gleason, Shenker, and Frank, and subsequently denied plaintiff’s motion for reconsideration. The plaintiff has now appealed to this court. We reverse and remand.

On January 2, 1982, the plaintiff injured her arm, neck and back in an accident while she was working at Alexian Brothers Medical Center. She immediately went to the emergency room at Alexian Brothers for treatment, and the emergency room physician treated her and told her to make an appointment in a few days with an orthopedist, Dr. Semerad. The plaintiff then, as the emergency room physician had recommended, took off some time from work. A few days later, she made an appointment and saw Dr. Semerad, and in February 1982, Dr. Semerad performed certain tests on plaintiff, the results of which were negative. He then prescribed a course of treatments, which only made plaintiff’s condition worse. In fact, during this time plaintiff’s condition continued to deteriorate, and the muscle spasms she had been experiencing became more painful. Although plaintiff returned to work, she was unable to perform any tasks that required excessive lifting or stretching, and, in addition, she was unable to drive due to the pain. Eventually, plaintiff became suspicious about the nature of her condition since she was not improving.

In May or June of 1982, plaintiff’s friend, Mrs. Fox, who was the director of employee health at Alexian Brothers, told plaintiff that she did not agree with Dr. Semerad’s treatment of plaintiff and recommended that the plaintiff see Dr. Gleason, another orthopedist. Plaintiff set up an appointment with Dr. Gleason and first saw him on June 11, 1982. After examining the plaintiff and viewing her X rays, Dr. Gleason criticized Dr. Semerad’s failure to perform certain tests on the plaintiff; however, in the course of plaintiff’s several visits to Dr. Gleason, he never performed these tests on the plaintiff either. The plaintiff thought that Dr. Gleason’s conduct was unusual, but when she asked Dr. Gleason about it, he laughed at her inquiry. Furthermore, the treatment recommended by Dr. Gleason did not improve her condition, but only caused her more pain, and during this period of his treatment, her condition continued to deteriorate.

On July 3, 1982, the plaintiff fell and injured herself again. Plaintiff took time off from work after this accident and in mid-July 1982, she again went to see Dr. Gleason for treatment. Although she believed that her condition had not improved, Dr. Gleason told her that she should return to work and attempt to forget about the pain. Dr. Gleason also recommended that plaintiff see a neurologist, Dr. Shenker.

Subsequently, sometime in July 1982, plaintiff went to see Dr. Shenker. Dr. Shenker performed one test on plaintiff, the results of which, he told plaintiff, were normal. After performing that test, he did not perform any further tests, nor did he suggest any further treatments or visits, but instead told plaintiff that she was a malingerer and a faker, and suggested that she only wanted a false report from him so that she could obtain an inflated worker’s compensation settlement. Meanwhile, plaintiff’s condition still continued to deteriorate. The plaintiff then began to see Dr. Semerad once again. Dr. Semerad told her, at that time, that she had either a neurological problem or a collagen disease, both of which were serious problems, and referred her to another neurologist.

On Dr. Semerad’s recommendation, plaintiff then went to see Dr. Frank, another neurologist, in August of 1982, and he told her that she had a neurological deficit. Dr. Frank criticized both Dr. Gleason’s and Dr. Shenker’s treatment of plaintiff. After her last visit with Dr. Frank, Dr. Frank called plaintiff’s husband and told him that he was concerned about plaintiff’s mental health and suggested that her husband should take her on a vacation.

Plaintiff then, on August 25, 1982, returned to Dr. Semerad, who told her that he was signing off of her case because he could not find any orthopedic problem. Dr. Semerad, however, offered to write a letter of recommendation to Mayo Clinic on her behalf. Later, her employer’s insurance company informed her that a visit to Mayo Clinic would not be covered under her insurance plan. On September 7, 1982, the plaintiff went to see Dr. Melen, a neurologist at Northwestern Memorial Hospital, who examined her and told her that he did not agree with the prior treatments she had received from Dr. Semerad.

Soon after her visit with Dr. Melen, plaintiff went to see Dr. Lichtenstein, a doctor that her insurance company suggested she see, and he was critical of all of the doctors that had previously treated the plaintiff, including Drs. Semerad, Gleason, Shenker and Frank, and the entire staff at Northwestern Memorial Hospital as well. Dr. Lichtenstein’s criticisms of the defendant doctors’ treatment and diagnoses of the plaintiff were in the nature of broad, generalized statements that their treatments were improper and inappropriate, or that they did not do proper diagnostic work-ups. The remainder of Dr. Lichtenstein’s criticisms, plaintiff said, were directed towards the personal reputations of the doctors, and included observations that certain of the defendant doctors were “big gun” doctors for her employer’s insurance company and were known to falsify reports. Plaintiff stated that she believed these observations by Dr. Lichtenstein to be “off base.”

After seeing Dr. Lichtenstein, the plaintiff continued to experience pain, and, accordingly, she continued to see various other doctors. In September 1983, she went to visit her family doctor, Dr. Rittman, who she claims accurately diagnosed her initial injury from her fall in January of 1982 as a cervical spine injury. Ultimately, the plaintiff had surgery on her elbow and shoulder for this condition.

On October 5, 1984, plaintiff filed her cause of action for medical malpractice against the defendant doctors for the aggravation of her injuries. Drs. Semerad, Shenker and Frank, as noted earlier, filed motions for summary judgment and Dr. Gleason filed a motion to dismiss, all of which were based on their contention that plaintiff had discovered her cause of action prior to October 5, 1982, and that, therefore, her claim was time barred. Also, as observed above, the trial court granted the defendants’ motions and subsequently denied plaintiff’s motion to reconsider.

The sole issue raised by plaintiff on appeal is whether the trial court erred when it found that the plaintiff had discovered her cause of action prior to October 5, 1982, and accordingly ruled that her claim was time barred. Plaintiff contends here that the trial court erred when it found that she had discovered her cause of action prior to October 5, 1982. She argues that, contrary to the determination of the trial court, she did not discover her cause of action until after October 5, 1982. The fact that she had recognized that she had been improperly diagnosed, as well as her awareness of her worsening symptoms, both of which occurred prior to October 5, 1982, did not amount, she asserts, to a discovery of her claim. Moreover, she continues, if the doctors could not properly and accurately diagnose her condition prior to October 5, 1982, then there was no way for her to properly assess her specific injuries, or the aggravation of her injuries and, thus, there was no way for her to know that such an injury was wrongfully caused prior to that date. Consequently, she claims, she could not have alleged any demonstrable injury in a lawsuit based on medical malpractice prior to October 5, 1982. At oral argument before this court, the plaintiff contended that the actual date of discovery was in September 1983, when her family doctor accurately diagnosed her condition. Hence, she concludes that she had until September 1985 to timely file her claim and that her complaint was filed well before that time.

Plaintiff further argues that the mere fact that she asked the defendant doctors questions about the nature and basis of her injury was an insufficient basis for the trial court to conclude that she knew or reasonably should have known of her injury and that it was wrongfully caused before October 5, 1982, as a matter of law. Also, she asserts, the evidence here showed that the doctors repeatedly assured her prior to October 5, 1982, that her condition was improving and was not of a serious nature. Under these circumstances, she contends, her medical training is irrelevant because she is only a nurse, not a doctor, and thus she was unable to determine the true nature of her condition. Plaintiff further argues that Dr. Lichtenstein’s express criticisms of the defendants’ care and treatment of her on September 20, 1982, were insufficient to trigger the running of the statute of limitations because these comments were general in nature. Thus, she claims that the facts did not support the trial court’s determination that she knew or reasonably should have known that her condition was wrongfully caused prior to October 5, 1982, and concludes that the trial court erred when it ruled that her claim was time barred.

The defendants, on the other hand, argue that the trial court properly dismissed plaintiff’s claim as being time barred because, they assert, the plaintiff in fact did know or reasonably should have known, prior to October 5, 1982, that she suffered from an injury or an aggravation of an injury that was wrongfully caused. The defendants contend that the facts here undisputedly show that prior to October 5, 1982, the plaintiff knew her condition was continually worsening, that as a nurse, she was suspicious of the various doctors’ diagnoses and prescribed treatments, and that certain of the doctors criticized the personal reputation and the work of other of the defendant doctors in their conversations with the plaintiff. Based upon these undisputed facts, the defendants assert, the trial court properly found that plaintiff’s claim was time barred as a matter of law.

The statute of limitations applicable to this case is set forth in section 13 — 212 of the Code of Civil Procedure, and provides:

“[N]o action for damages for injury or death against any physician *** arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first ***.” (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212(a).)

Our supreme court, in Witherell v. Weimer, stated that the statute of limitations, there in a medical malpractice case, begins to run when a person knows or reasonably should have known of his injury and, also, knows or reasonably should have known that the injury was wrongfully caused. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874.) This rule is commonly referred to as the discovery rule and has been applied by our supreme court in various fact-situations. See Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864; Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.

In examining the discovery rule, our supreme court has held that when a party knows or reasonably should have known both that an injury occurred and that it was wrongfully caused, then, at that point, the party has an obligation to inquire further to determine whether an actionable wrong has been committed. (Knox College, 88 Ill. 2d 407, 430 N.E.2d 976.) Both the Nolan and Witherell cases clearly noted that the term “wrongfully caused” does not mean knowledge of negligent conduct or knowledge of the existence of a cause of action. (Knox College, 88 Ill. 2d 407, 430 N.E.2d 976; see also Nolan, 85 Ill. 2d 161, 421 N.E.2d 864; Witherell, 85 Ill. 2d 146, 421 N.E.2d 869.) Rather, the term refers to that point in time when the injured person becomes possessed of sufficient information concerning his or her injury and its cause so that a reasonable person would be put on notice to determine whether actionable conduct was involved, and, under the discovery rule, it is at this point in time when the statute of limitations commences. Knox College, 88 Ill. 2d 407, 430 N.E.2d 976.

The question of when a party knew or reasonably should have known both of the injury and that it was wrongfully caused is one of fact. (Tobias v. Winkler (1987), 156 Ill. App. 3d 886, 893, 509 N.E.2d 1050, 1054.) In most cases, therefore, the time at which a party knows or reasonably should have known both of his injury and that it was wrongfully caused will be a disputed question to be resolved by the trier of fact, and only in the situation where the facts are undisputed, and it is apparent from those facts that only one conclusion can be drawn, the question becomes one for the court. (Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 874; Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, 61, 501 N.E.2d 882, 886.) In order for such a determination to be made by the court, the record must contain sufficient facts to support such a determination. Flores v. St. Mary of Nazareth Hospital (1986), 149 Ill. App. 3d 371, 378, 502 N.E.2d 1, 5.

In determining whether a plaintiff knew or reasonably should have known that the injury was caused by the defendant’s wrongful conduct, courts look to the specific nature of the injury. (Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, 60, 501 N.E.2d 882, 885.) The more obvious the injury, the easier it is for the injured person to discover the injury and that it was wrongfully caused. (Saunders, 150 Ill. App. 3d at 60, 501 N.E.2d at 885 (trial court erred when it determined, as a matter of law, that the date of the amputation of plaintiff’s hand was the discovery date because plaintiff, who had experienced numbness in his hand for several years, had no reason to suspect that the amputation was for anything other than nonnegligent organic causes).) If the injury is an aggravation of a physical problem which may naturally develop, absent negligent causes, a plaintiff is not expected to know immediately of its existence, or its potential wrongful cause. (Saunders, 150 Ill. App. 3d at 60, 501 N.E.2d at 885; Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 486, 473 N.E.2d 1322, 1342; Pszenny v. General Electric Co. (1985), 132 Ill. App. 3d 964, 967, 478 N.E.2d 485, 488.) Thus, until such time as the plaintiff knows or should have known that his or her injury or condition, seemingly innocent in cause, is perhaps the result of another’s negligent acts, the plaintiff has not had any opportunity to discover that a cause of action exists. Saunders, 150 Ill. App. 3d at 60, 501 N.E.2d at 885.

The parties here rely almost exclusively upon the plaintiff’s deposition testimony and the “notes” that she took recording her progress during the relevant time periods, which were attached as an exhibit to her deposition. These facts, although undisputed, do not conclusively support the trial court’s finding that as a matter of law the plaintiff knew or reasonably should have known of her alleged injury and that it was wrongfully caused prior to October 5,1982.

Specifically, the facts here show that plaintiff’s initial accident and injury occurred in January 1982, and she began seeing various doctors almost immediately after that date. Plaintiff’s medical malpractice claim is based upon the defendants’ alleged aggravation of her initial injury in January 1982, and the record shows that from the time she initially began seeing the defendant doctors, her condition became continually worse. Nevertheless, she continued to work regular hours until July 1982, when her condition had become so bad that she could not continue to work. Each of the various treatments prescribed by the defendant doctors did not improve her condition but in fact made the condition worse than it had been before.

Although plaintiff had been seeing various doctors continuously from January 1982, until October 5, 1982, she switched from one doctor to another because none of them were able to find anything wrong with her, and so she was referred to other doctors in an attempt to discover the true nature of her problem, which continued to get worse. Also, even though she admitted she was suspicious because the doctors avoided answering her questions, and her condition did not get better, the doctors reassured her throughout this time that she was getting better, and further suggested that her problems were not entirely physical in nature, and that with rest, relaxation and effort on her part, she would fully recover. We do not believe that only one conclusion can be drawn from the facts presented here, for the record does not sufficiently show that the plaintiff knew or reasonably should have known of her injury and that it was wrongfully caused prior to October 5, 1982.

Moreover, we find that, in addition to the aforementioned factors, the various comments and criticisms about the defendant doctors made to plaintiff were also insufficient to prove, as a matter of law, that plaintiff knew or reasonably should have known of her injury and that it was wrongfully caused prior to October 5, 1982. These criticisms do not conclusively establish, as defendants claim, that prior to October 5, 1982, the plaintiff possessed sufficient information concerning her injury and its cause such that a reasonable person would be put on notice to inquire as to whether actionable conduct is involved. Although the record here shows that various criticisms of the defendant doctors were made to plaintiff prior to October 5, 1982, these statements were general in nature and broad in scope, and, more often than not, directed towards the personal reputations of the doctors, and, further, did not address the standard of care received by plaintiff. We find that none of these factors, either when viewed independently, or when viewed as a whole, are sufficient to establish, as a matter of law, that the plaintiff knew or reasonably should have known of her alleged injury, and that it was wrongfully caused, prior to October 5,1982.

For all of the foregoing reasons, we also find that the trial court erred when it determined, as a matter of law, that plaintiff discovered her cause of action prior to October 5, 1982. Hence, we reverse the trial court’s judgment in favor of Drs. Semerad, Shenker, and Frank, and its dismissal of plaintiff’s complaint in favor of Dr. Gleason, and remand the case to the trial court for further proceedings consistent with this opinion.

Judgment reversed and remanded with directions.

BUCKLEY and O’CONNOR, JJ., concur.

       Justice Quinlan participated in this decision prior to his assignment to the sixth division.


author: PRESIDING JUSTICE MANNING

text:
    B. HILLARIE STERENBERG, Plaintiff-Appellant, v. SIR LOIN, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—87—3724
    Opinion filed May 15, 1989.

      John D. Brennan, of Chicago, for appellant.

      Heineke, Burke, Healy & Bodach, of Chicago (James K. Joyce, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

The plaintiff, B. Hillarie Sterenberg, appeals from an order of the circuit court granting the motion of the defendant, Sir Loin, Inc., for summary judgment. The plaintiff argues that because a question of material fact existed, the court erred in granting the defendant’s motion.

The plaintiff filed suit against the defendant, Cosmopolitan National Bank, and Greg McNally alleging that on September 14, 1985, while she and McNally were patrons in the defendant restaurant, the agents and employees of the defendant served alcohol to McNally, who became intoxicated and fell on the plaintiff, causing her to fall and break her wrist.

At her deposition hearing, the plaintiff testified that on September 14, around 7 p.m. she went to McNally’s apartment for a blind date. The plaintiff testified that she did not have anything to drink before leaving the apartment, but that McNally had one or two glasses of champagne. At 8 p.m. the plaintiff and McNally arrived at a comedy club where McNally had four mixed drinks and the plaintiff had two glasses of wine. The plaintiff and McNally left the club about 9 p.m. and walked to the defendant restaurant for dinner. Before dinner, the plaintiff and McNally went to the restaurant’s bar, where McNally had one drink and the plaintiff had a glass of wine. The plaintiff and McNally drank two bottles of wine during dinner and McNally also had some mixed drinks. After dinner, McNally and the plaintiff returned to the bar, where the plaintiff continued to drink wine and McNally continued to drink mixed drinks. The plaintiff testified that around 2 a.m., McNally lost his balance while leaning against her chair, causing the plaintiff and her chair to fall to the floor. McNally fell on top of the plaintiff, landing on her wrist. The plaintiff also testified that she believed McNally was intoxicated at the time of the accident and that he first showed signs of intoxication during dinner.

Subsequently, the defendant filed a motion for summary judgment alleging that the plaintiff was barred from recovering because of her complicity in causing McNally’s intoxication. The trial court granted the defendant’s motion and the plaintiff appeals.

Section 6 — 21 of the Dramshop Act (Ill. Rev. Stat. 1985, ch. 43, par. 135) provide1s that every person who is injured by an inebriate has a right of action against any person licensed to sell liquor who by selling or giving liquor causes the intoxication of the inebriate. A judicially created exception to liability under the Act exists where the plaintiff is guilty of complicity in causing the inebriate’s intoxication. Nelson v. Araiza (1978), 69 Ill. 2d 534, 372 N.E.2d 637.

Under the doctrine of complicity, one who actively contributes to or procures the intoxication of the inebriate is precluded from recovery under the Dramshop Act. (Nelson v. Araiza, 69 Ill. 2d 534, 372 N.E.2d 637; Parsons v. VFW Post 6372 (1980), 86 Ill. App. 3d 515, 408 N.E.2d 68.) One contributes to or procures an inebriate’s intoxication by causing or encouraging the drinking which caused the intoxication or by willingly participating to a material and substantial extent in the drinking which led to the inebriate’s intoxication. (Parsons v. VFW, 86 Ill. App. 3d 515, 408 N.E.2d 68.) A plaintiff’s willing participation is not measured by the amount of drinking in which she indulged, but by whether she voluntarily joined in the drinking activities of the person who became intoxicated and inflicted the injury. (Holcomb v. Hornback (1964), 51 Ill. App. 2d 84, 200 N.E.2d 745.) Willing participation also does not require that the plaintiff supply or purchase the liquor consumed. (Parsons v. VFW, 86 Ill. App. 3d 515, 408 N.E.2d 68; Holcomb v. Hornback, 51 Ill. App. 3d 84, 200 N.E.2d 745; Phenicie v. Service Liquor Store, Inc. (1960), 23 Ill. App. 2d 492, 163 N.E.2d 220.) A plaintiff can willingly participate by encouraging or providing significant companionship in the drinking that caused the intoxication. (Parsons v. VFW, 86 Ill. App. 3d 515, 408 N.E.2d 68.) Thus, if a plaintiff embarked with another on a tour of taverns and joined in the drinking of liquor, she cannot recover under the Dram-shop Act for injuries caused by the alleged intoxication of her companion. Baker v. Hannan (1963), 44 Ill. App. 2d 157, 194 N.E.2d 563; Phenicie v. Service Liquor Store, 23 Ill. App. 2d 492, 163 N.E.2d 220.

In Nelson, the supreme court noted that in many cases the question of a plaintiff’s complicity will be an issue of fact, while in other cases the question of whether there is sufficient evidence to support application of the doctrine will be for judicial determination. (Nelson, 69 Ill. App. 2d at 543.) Whether a plaintiff’s role in contributing to the inebriate’s intoxication is controverted, i.e., where there is a dispute as to whether the plaintiff voluntarily participated in the drinking or as to whether such participation was material, the question of the plaintiff’s complicity is one of fact and should be submitted to the jury. (Parsons v. VFW, 86 Ill. App. 3d 515, 408 N.E.2d 68; Tezak v. Cooper (1960), 24 Ill. App. 2d 356, 164 N.E.2d 493.) Where the facts establishing the plaintiff’s participation are admitted, no question of fact exists and summary judgment is proper. (Phenicie v. Service Liquor Store, 23 Ill. App. 2d 492, 163 N.E.2d 220.) Statements made by a plaintiff in a pretrial deposition which demonstrate that she participated in the drinking that caused the inebriate’s intoxication can be used as an admission of complicity. See Holcomb v. Hornback, 51 Ill. App. 2d 84, 200 N.E.2d 745; Liff v. Haezbroeck (1964), 51 Ill. App. 2d 70, 200 N.E.2d 525; Phenicie v. Service Liquor Store, 23 Ill. App. 2d 492, 163 N.E.2d 220; Meier v. Pocius (1958), 17 Ill. App. 2d 332, 150 N.E.2d 215.

In Holcomb, the appellate court found that because the plaintiff stated in her deposition that she voluntarily accepted and consumed liquor purchased by the inebriate, there was no question of fact as to her complicity and, therefore the trial court properly granted the defendant’s motion for summary judgment. (Holcomb, 51 Ill. App. 2d at 90.) In Liff, where the plaintiff admitted in his deposition that he drank a bottle of beer purchased for him by the inebriate, the appellate court held that summary judgment was proper because of the plaintiff’s participation in the inebriate’s drinking. (Liff, 51 Ill. App. 2d at 73.) The appellate court also found complicity in Phenicie, where the plaintiff admitted in his discovery deposition that he shared a one-quart bottle of beer with the inebriate. (Phenicie, 23 Ill. App. 2d at 496.) Finally, in Meier, the plaintiff filed an action against two tavern owners for injuries he suffered when his brother drove his car into a ditch. In his pretrial deposition the plaintiff admitted that on the date in question he and his brother went to two taverns where they consumed alcoholic beverages. The appellate court held that in light of the plaintiff’s admissions, there was no triable question of fact as to his complicity in his brother’s consumption of liquor and that, therefore, the trial court properly entered summary judgment for the defendants. Meier, 17 Ill. App. 2d at 335.

We find that the trial court in the present case also acted properly in entering summary judgment for the defendant. The plaintiff admitted in her deposition that after watching McNally consume one or two glasses of champagne in his apartment, she accompanied him to a comedy club where he had four drinks and she had two glasses of wine. She then accompanied McNally to the defendant restaurant where, before dinner, McNally consumed one mixed drink and she had one glass of wine. During dinner McNally had several mixed drinks and he and the plaintiff shared two bottles of wine. After dinner the plaintiff and McNally returned to the bar, where McNally continued to have mixed drinks and the plaintiff continued to drink wine. The plaintiff also admitted that McNally first appeared to be intoxicated sometime during dinner.

In her response to the defendant’s motion for summary judgment, the plaintiff did not dispute the above facts and no affidavits were filed indicating that the plaintiff’s participation was not voluntary or willing. Where the evidence is not disputed and all reasonable persons would conclude that the plaintiff voluntarily participated in the drinking to a material and substantial degree, then such participation bars recovery as a matter of law. Tezak v. Cooper, 24 Ill. App. 2d 356, 164 N.E.2d 493.

We believe that the statements in the plaintiff’s deposition establish that she willingly participated in McNally’s intoxication by joining in his drinking activities and by providing him with significant companionship. We also believe that all reasonable persons would conclude from her statement that the plaintiff’s participation was material and substantial. Accordingly we find that, as a result of the admissions made in the plaintiff’s deposition, no question of fact existed concerning her complicity and that, as a matter of law, she was barred from recovery under the Dramshop Act.

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ„ concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD HICKS, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—0978
    Opinion filed May 15, 1989.

      Allan A. Ackerman, P.C., of Chicago (Allan A. Ackerman, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Linda Woloshin, and Scott Lane, Assistant State’s Attorneys, of counsel, and Michael Brychell, Law Student), for the People.
   JUSTICE QUINLAN

delivered the opinion of the court:

Defendant, Richard Hicks, was arrested and charged by information with possession of a controlled substance, cocaine, with intent to deliver. (See Ill. Rev. Stat. 1985, ch. 561/2, par. 1402.) Prior to his trial in the circuit court of Cook County, the defendant filed a motion to suppress the evidence seized at the time of his arrest. The trial court denied defendant’s motion, and his case then proceeded to trial before a jury. The jury found defendant guilty, and the trial court sentenced him to eight years in the Illinois Department of Corrections. Defendant then appealed his conviction and sentence to this court.

On January 23, 1987, the trial court held a hearing on defendant’s motion to suppress evidence and to quash his arrest. The defendant called Detective Thomas Kinsella to testify at that hearing. Kinsella was a Chicago police officer for 23 years and worked in the narcotics division for 15 years. At the time of defendant’s arrest, Kinsella was working in the Chicago police department’s drug enforcement administration task force at O’Hare Airport and had been working this detail for seven years. Kinsella’s job was to monitor airline flights which originated in source cities and observe the demeanor of the deplaning passengers, their physical descriptions, their clothing, their actions, and their manner of leaving the airport.

Kinsella described the defendant’s arrest and the events preceding it. He said he first saw the defendant when the defendant exited a plane at O’Hare Airport at approximately 8:15 p.m. on July 16, 1986, from a flight that had originated in Orlando, Florida, a source city for narcotics. Kinsella noticed that defendant carried two new suitcases, was wearing a number of gold bracelets and rings, and had on a new T-shirt, new shorts and a pair of high-top gym shoes without socks. The defendant began walking in the direction of the baggage claim area, but looked back over his shoulder at least two times and then stopped and entered the men’s room.

Kinsella discussed the defendant’s behavior with another narcotics agent, A1 Fulkerson, and, following this discussion, Kinsella decided to follow the defendant. When the defendant left the men’s room, he continued to walk toward the baggage claim area but again looked back over his shoulder. When defendant began walking away from the baggage claim area without retrieving any luggage, Kinsella and Agent Joe Gorzkowski walked up alongside the defendant. When Kinsella spoke to the defendant, Gorzkowski merely stood nearby. Kinsella identified himself as a police officer and asked defendant if he could speak with him. The defendant said “Sure” and stopped walking. Kinsella asked the defendant for some identification and for a copy of his airline ticket. The defendant said he had no identification but gave Kinsella a payment receipt for a traffic ticket. This receipt, however, did not have a name or date on it. The defendant’s plane ticket was a one-way ticket from Orlando to Chicago and had been paid for that same day in cash. The defendant told Kinsella that he was unemployed and lived at 660 West Division, which Kinsella knew to be a building in the Cabrini-Green housing project. Hicks also said that he had driven down to Florida with a friend for one day and had flown back. Up to this point, Kinsella had not told the defendant why he was being questioned.

Immediately after this conversation, Kinsella advised the defendant that they were conducting a narcotics investigation, but Kinsella did not tell the defendant that he was under arrest and instead told the defendant that he was free to leave if he wanted to do so. Kinsella next asked Hicks if he would consent to a search of the two bags he was carrying and also told the defendant that he did not have to consent to the search. The defendant responded, “Yes — go ahead.”

The search of the defendant’s luggage was conducted near the baggage claim area, which was not isolated or removed from the public area of the airport. In the first bag, Kinsella found a small brown glass vial with a spoon attached to the cap. Kinsella knew that vials such as this were commonly used to carry approximately one gram of cocaine. The spoon on the cap of the vial was used to snort the cocaine. Kinsella asked the defendant if he had anything to go with the vial and the defendant replied no.

Kinsella then began to search the second bag. At this point, the defendant became nervous and took several steps backward. Inside the bag was a gift-wrapped package. When Kinsella removed the package from the bag, the defendant exclaimed, “I don’t know what is in the package, I have never seen that package, that didn’t come out of my suitcase.” Kinsella told the defendant that he was going to open the package very carefully and would then rewrap it. The defendant did not respond. As Kinsella did so, he found a taped package inside the wrapped package. Kinsella said that the manner in which this package was taped was similar to other packages he had seized which were found to contain a kilo quantity of cocaine. Kinsella stuck his knife into the taped package and saw white powder, which he believed to be cocaine. At this point, the defendant was arrested. It was later determined that the package in fact contained a kilo of cocaine. Kinsella said that he was wearing plain clothes at the time of the defendant’s arrest and never displayed his weapon, raised his voice or blocked defendant’s movement.

The defendant also called Officer Joseph Gorzkowski to testify. Gorzkowski was with Kinsella when the defendant was arrested and, at that time, had been a Chicago police officer for 91/2 years. Gorzkowski’s testimony corroborated Kinsella’s testimony concerning the arrest of the defendant and the events surrounding the arrest.

The defendant then testified in his own behalf. The defendant’s account of his arrest and the events preceding it differed from Kinsella’s version. The defendant said that he was arrested on July 16, 1986, at O’Hare Airport. The defendant stated that a man came up to him and asked to talk with him after he arrived in Chicago from Orlando, Florida, and told him that he was a police officer. The defendant identified the officer that came up to talk to him as Gorzkowski, and the officer who remained silent as Kinsella. The defendant stopped to talk to the officer because he “knew there was nothing [he] could do but stop.” Hicks said that Gorzkowski asked him his name and whether he was a “citizen” of Chicago, to which Hicks replied that he was a citizen and gave his name. Hicks said that Gorzkowski did not ask him any more questions and that Gorzkowski and Kinsella then made him step behind a screen, in an isolated area. When the officer asked to search defendant’s bags, defendant testified that he again said nothing because, Hicks said, there was nothing he could say. The defendant further testified that the officers did not take anything out of the first bag that they searched, but took a gift-wrapped package out of the second bag. Gorzkowski, according to the defendant, then said he was going to cut the package open and see what was in there. Defendant said nothing. Gorzkowski cut the package open and arrested the defendant.

Following the presentation of this testimony, the trial court deferred ruling on the defendant’s motion. Later, on March 24, 1987, the State and the defendant presented further arguments on defendant’s motion to suppress evidence and to quash his arrest. The court found that the officers’ actions were proper when they walked up to the defendant and asked to speak with him. The court also found that the defendant consented to the search of his luggage, but held that defendant’s consent had not extended to cutting open the gift-wrapped package. Nevertheless, the court did not grant defendant’s motion. Rather, the court stated that it wanted the parties to address another issue and asked the State and the defendant to present evidence on the issue of inevitable discovery and whether, under that theory, the officers had the right to the contents of the gift-wrapped package after they discovered the cocaine vial.

On May 1, 1987, further testimony was received on defendant’s motion. The court held that the State had sustained its burden of proving inevitable discovery. The court said that even though the defendant did not consent to the search of the gift-wrapped package, the officers at that time had the right to seize the bag and could have used a narcotics dog to inspect the bag and, accordingly, would have inevitably discovered the cocaine. The court reasoned that the officers had reasonable grounds for seizure of the bag based on their discovery of the cocaine vial, the defendant’s conduct and manner of dress, the airline ticket, which had been purchased that day in cash, and the fact that defendant had no identification. Thereafter, the trial court denied defendant’s motion to suppress evidence and quash his arrest.

Subsequently, the defendant’s case proceeded to trial. At trial, defendant claimed that a stranger approached him at the Orlando Airport and offered him $300 to take the bag containing the gift-wrapped package to Chicago. The defendant testified that he had agreed to take the bag, but he did not know, nor did he suspect, that the bag contained cocaine. Defendant also said that he did not intend to deliver cocaine to anyone. The jury found the defendant guilty of possession with intent to deliver, and the trial court denied defendant’s request for post-trial relief. As noted earlier, the defendant then filed this appeal.

Defendant’s first argument on appeal is that the trial court committed prejudicial error when it denied his motion to suppress. Hicks claims that the trial court made three errors in ruling on this motion. First, he claims that he, himself, was illegally seized when the officers began questioning him at the airport and, therefore, it was error for the trial court to hold that this questioning was lawful. This questioning, he asserts, amounted to an illegal seizure since he did not feel free to leave, and because the officers had no articulable suspicion that a crime had occurred when they began questioning him.

In support of his argument, defendant cites People v. Blevins (1983), 118 Ill. App. 3d 221, 454 N.E.2d 802, People v. Steckhan (1983), 116 Ill. App. 3d 173, 452 N.E.2d 122, People v. Kiser (1983), 113 Ill. App. 3d 501, 447 N.E.2d 858, and People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954. Under these cases, the defendant argues, a “drug courier profile” such as that used by the officers here, cannot justify an airport stop because the mere profile itself does not create an articulable suspicion that a crime has occurred. He contends that the only basis for the officers stopping and questioning him was their belief that he fit this “drug profile.” This, the defendant asserts, as in the cited cases, was not a sufficient basis.

The State responds that the encounter between the officers and the defendant was a consensual encounter and not an illegal seizure. Thus, the State claims, whether the defendant felt he was free to leave or whether the officers had an articulable suspicion that a crime had occurred is irrelevant. The test, the State argues, is whether the interaction between the officer and the individual exceeded the permissible level of a consensual inquiry in a public place, i.e., whether a reasonable person would have felt free to leave.

Illinois, as the State correctly observed, has adopted the Mendenhall test, which holds that a person is seized only when his freedom of movement is restrained by means of physical force or a show of authority such that a reasonable person would believe that he was not free to leave. (See United States v. Mendenhall (1980), 446 U.S. 544, 553-54, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877.) In People v. Forrest (1988), 172 Ill. App. 3d 385, 526 N.E.2d 616, this court noted that those Illinois cases which had previously declined to follow Mendenhall, including the cases relied upon by the defendant here, had done so on the basis of what was now an outdated analysis. The courts in the cases which had declined to follow Mendenhall did so because only one other Justice of the Court in Mendenhall had concurred with Justice Stewart’s opinion regarding the seizure issue. (See Forrest, 172 Ill. App. 3d at 391, 526 N.E.2d at 619.) However, as this court noted in Forrest, a majority of the Supreme Court Justices later, in Florida v. Royer, had elected to follow the seizure analysis set forth in Mendenhall. (See Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319.) Consequently, our court in Forrest then held that those Illinois cases decided before Royer, including the cases cited by defendant, were no longer persuasive authority. Forrest, 172 Ill. App. 3d at 391, 526 N.E.2d at 619.

Thus, applying the Mendenhall test to this case, we hold here that the trial court correctly ruled that the encounter between the defendant and the officers was merely a consensual interaction. In Mendenhall, the Court listed examples of situations where a party might reasonably believe that a seizure had taken place. These situations were described as those where there was “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” (Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.) Here, only one officer questioned the defendant while another stood nearby, both officers were dressed in plain clothes, neither officer displayed his weapon, neither officer touched the defendant, and neither officer raised his voice or indicated that the defendant had no choice but to comply with them. Hence, we find that under the Mendenhall test, there was no seizure in the present case.

At oral argument, the defendant contended that the reasoning of the Ninth Circuit Court of Appeals in United States v. Sokolow (9th Cir. 1987), 831 F.2d 1413, was applicable to this case. In Sokolow, the Ninth Circuit reversed a drug conviction that resulted from an airport stop, finding that merely because Sokolow had fit the drug courier profile, the agents there did not have a reasonable suspicion to stop him. (Sokolow, 831 F.2d at 1422-23.) The court held that the drug courier profile was, by itself, insufficient to justify a stop, unless the officers also possessed evidence of ongoing criminal behavior. (Sokolow, 831 F.2d at 1421.) The defendant argues, that, like the officers in Sokolow, the officers here who stopped him did not have evidence of ongoing criminal behavior and, accordingly, were not entitled to stop him merely because he fit the drug courier profile.

First, we note that since oral argument was held in this case, the United States Supreme Court has reversed the Ninth Circuit’s decision in Sokolow. (United States v. Sokolow (1989), 490 U.S___ 104 L. Ed. 2d 1, 109 S. Ct. 1581.) The Supreme Court held that although any one of the drug courier profile factors alone would not justify a stop, when all of them were combined, the factors did justify a reasonable suspicion of criminal activity there. (Sokolow, 490 U.S. at_, 104 L. Ed. 2d at 12, 109 S. Ct. at 1586.) The Supreme Court specifically found that “the fact that these factors may be set forth in a ‘profile’ does not somehow detract from their evidentiary significance as seen by a trained agent.” (Sokolow, 490 U.S. at_, 104 L. Ed. 2d at 12, 109 S. Ct. 1587.) The Supreme Court further found that an officer also need not use the least intrusive means to stop a suspected drug courier and, hence, the fact that the officers there grabbed Sokolow by the arm and moved him back onto the sidewalk as he was about to hail a cab did not, somehow, turn the stop into an impermissible seizure. (Sokolow, 490 U.S. at_, 104 L. Ed. 2d at 12, 109 S. Ct. at 1587.) Thus, the Sokolow decision, as now decided by the Supreme Court, does not support defendant’s position here, but instead, supports the propriety of the actions of the officers in stopping the defendant in this case. In any event, our basis for upholding the actions of the officers here was not grounded upon a finding of reasonable suspicion, but was based on a second ground, i.e., that the stop was consensual. Since it was consensual, the issue of the legality of any seizure, no matter how limited, is essentially irrelevant.

Defendant next claims that the trial court wrongfully denied his motion to suppress because the court erroneously held that he had also consented to the search of the gift-wrapped package. Defendant argues that he could not have given effective consent to this search since, as he again asserts, the initial encounter with the officers constituted an illegal seizure. The State, on the other hand, argues that since the encounter between the officers and the defendant was consensual, the defendant was not coerced into giving his consent to search the package and, therefore, the consent was valid.

Inasmuch as we have found, as stated above, that the initial encounter between the defendant and the officers was a valid, consensual encounter, any consent of the defendant to the search of the second bag was, of course, an effective consent. We recognize that the trial court had initially denied defendant’s motion to suppress and ruled that, even though the defendant had consented to a search of his luggage, his consent did not extend to the gift-wrapped package. But the trial court in its post-trial order made it clear that it had erred when it ruled that the defendant did not consent to a search of the gift-wrapped package, and the court thus substituted a new finding, that the defendant had consented to the search, for its original finding made at the time of the motion to suppress. Hence, any error by the court concerning the defendant’s consent to search the package here was, if prejudicial, prejudicial to the State and not to the defendant.

The defendant also contends in his arguments here that the trial court erroneously ruled that the inevitable discovery rule applied. The defendant claims that the inevitable discovery rule can only be predicated on a lawful act and, because, as defendant has argued throughout his appeal, he was illegally stopped by the officers, there could be no lawful act upon which to predicate this rule.

The inevitable discovery rule is an exception to the exclusionary rule and applies if the State can establish by a preponderance of evidence that the challenged evidence would have ultimately or inevitably been discovered through lawful means. (People v. Faysom (1985), 131 Ill. App. 3d 517, 526-27, 475 N.E.2d 945, 953.) In such a case, the challenged evidence may be used against the accused. (Faysom, 131 Ill. App. 3d at 527, 475 N.E.2d at 953.) Here, contrary to defendant’s allegations, we found that the officers’ actions were lawful and, thus, the inevitable discovery rule here was in fact founded upon a lawful act.

Defendant, however, argues additionally in this appeal that the trial court, nonetheless, erred by sua sponte raising this issue of inevitable discovery. He contends that by doing this the trial court impermissibly acted as prosecutor since the issue of inevitable discovery had not been raised by the State.

The State submits that the court did act impartially in raising the issue. The State argues that the judge properly raised the issue and that, in any event, the defendant was not harmed by this action because the court provided the defendant with an opportunity to respond to the issue.

A trial judge abuses his discretion when he abandons his judicial role and adopts the role of prosecutor. (People v. McGrath (1967), 80 Ill. App. 2d 229, 236, 224 N.E.2d 660, 664.) Nevertheless, a trial judge has a duty to see that justice is done, and if it appears that justice will fail because a fact has not been developed or a line of inquiry has not been pursued, the judge has a duty to intervene either by suggestions to counsel or by his own inquiry or examination of witnesses, if necessary, and, so long as he does not forget his role as judge in doing so, his actions are proper. People v. Walter (1980), 90 Ill. App. 3d 687, 688, 413 N.E.2d 542, 543.

We find that the trial judge here did not improperly act as a prosecutor when he sua sponte raised the issue of inevitable discovery. This situation is dissimilar to that in People v. McGrath, relied upon by defendant, where the trial judge examined a witness himself, and in the course of that examination, elicited incompetent hearsay testimony. (McGrath, 80 Ill. App. 2d 229, 224 N.E.2d 660.) In this case, the judge merely raised the inevitable discovery issue and gave both parties ample time to brief the issue. In raising this issue, we do not find that the trial judge abandoned his role as judge and became an advocate. We believe the judge properly fulfilled his duty to see that justice was done.

Defendant’s last issue on appeal is that he was denied a fair trial because, he says, the trial judge allowed the State to introduce impermissible evidence of another offense at his trial. Defendant claims that the trial judge erroneously permitted the State to admit the cocaine vial into evidence, contending that the vial was irrelevant to the charge of possession with intent to deliver.

The State first contends that the defendant waived this issue on appeal because he did not object to the introduction of the evidence in the trial court. Alternatively, the State asserts that the trial court properly admitted the vial into evidence because it was part of the res gestae of the crime and was also proper as evidence of the defendant’s guilty knowledge.

We note that, as the State has contended, the defendant did not object at trial to the admission of the vial on the ground that he now proffers, i.e., that it was improper evidence of another offense. The defendant’s only objection at trial to the vial was based on a chain of custody argument. The first time the defendant objects to the vial’s admission as improper evidence of other offenses is in this court. The law in Illinois is clear that a party must make both a trial objection and a written post-trial motion raising an issue to preserve an error for review, when the alleged error could have been raised during trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Here, since defendant could have raised this objection in the trial court and did not, we find that he has waived the issue on appeal.

However, assuming arguendo that the issue was not waived on appeal, we believe that the admission of the vial into evidence did not amount to prejudicial error. We agree with the State’s argument that the vial was part of the res gestae of his arrest for the crime of possession with intent to deliver. Evidence of other offenses may be admissible as part of the res gestae of the crime for which a defendant stands charged when the other offenses are introduced as part of the continuous narrative of events leading up to the defendant’s arrest. (People v. Demeron (1987), 153 Ill. App. 3d 440, 444, 505 N.E.2d 1222, 1224-25.) At a defendant’s trial, John Meyers, a forensic chemist for the Federal Drug Enforcement Administration, testified that the vial tested positively for the presence of cocaine. Furthermore, Officers Kinsella and Gorzkowski testified that they discovered the vial as they were searching defendant’s bags and that the discovery of the vial further aroused their suspicions that the defendant was carrying drugs, because they knew that vials such as this were used to hold cocaine. Accordingly, we find that the vial could properly be admitted into evidence as part of the res gestae of possession with intent to deliver, since it was part of the narrative of the events leading up to defendant’s arrest.

Finally, we also find that any error that may have occurred by the admission of the vial into evidence did not amount to reversible error. Where an allegedly erroneous admission of evidence of other crimes is unlikely to have contaminated the jury, the error is harmless and may be disregarded. (People v. Richardson (1988), 123 Ill. 2d 322, 343, 528 N.E.2d 612, 619.) In the Richardson case, our supreme court held that the admission of evidence of another crime did not amount to reversible error when there was no “extensive discussion” of the other crime. (Richardson, 123 Ill. 2d at 343, 528 N.E.2d at 619.) Here, as in Richardson, there was no extensive discussion of the cocaine vial, and there was sufficient other evidence to warrant the defendant’s conviction. After reviewing the record, we conclude that the jury would have reached the same verdict even if the vial had not been introduced into evidence. Therefore, we find the admission of the vial was harmless and did not deprive the defendant of a fair trial.

For all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

MANNING, P.J., and O’CONNOR, J., concur.

       Justice Quinlan participated in this decision prior to his assignment to the sixth division.

       The drug courier characteristics observed in Sokolow were that the defendant paid $2,100 in cash for two airline tickets from a roll of $20 bills containing approximately twice the amount of the ticket; Sokolow flew from Honolulu to Miami, a 20-hour flight, and stayed in Miami for only 48 hours; Miami was a source city; the name Sokolow was traveling under did not match the name that his telephone number was listed under; Sokolow appeared nervous; and Sokolow did not check any of his luggage.


author: JUSTICE O’CONNOR

text:
    DONNA BEELER, Plaintiff-Appellee, v. CHEM-LAWN CORPORATION, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—1288
    Opinion filed May 15, 1989.

      Brinton & Bollinger, of Chicago (Howard T. Brinton and Timothy I. McArdle, of counsel), for appellant.
    Kane, Obbish & Propes, of Chicago (Lorna E. Propes and Karen A. Kerbis, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from a directed verdict in favor of the plaintiff, Donna Beeler. The issues presented on appeal are: (1) whether the trial court erred in directing a verdict in favor of the plaintiff on the issue of defendant’s negligence, and (2) whether the trial court erred in directing a verdict in favor of the plaintiff on the issue of plaintiff’s contributory negligence. We reverse and remand.

This appeal arises out of a suit to recover for personal injuries incurred as a result of a collision between a truck driven by an employee of Chem-Lawn Corporation (Chem-Lawn) and a bicycle ridden by Donna Beeler. At the time of the collision, plaintiff was travelling in the far right-hand lane of U.S. 14 eastbound on or near the exit ramp onto Route 68. The collision took place somewhere near the exit ramp but the exact location was in dispute.

Plaintiff testified that her bicycle was properly equipped and she was aware that the vehicle code applied to bicycles. She also testified that while she generally rode to the right of the white line, she had no memory of this accident. The driver of the Chem-Lawn truck, Mr. Hardy, testified that his truck was in good working order, including the brakes and turn signals, and that his truck had an operating speed governor which limited the vehicle’s speed to 55 miles per hour.

Hardy stated that prior to the collision, he was following five to six car lengths behind a van. As they approached the exit ramp to Route 68, both vehicles signaled an intention to exit. The driver testified that the van braked a little past the mouth of the ramp and then suddenly swerved off the exit ramp and back onto the highway. He stated that he then saw the plaintiff for the first time and that she was between the middle lane and right-hand side of the lane in the middle of the exit ramp. Defendant testified that at that time, he was on the exit ramp lane and had reduced his speed preparatory to exiting but was unable to react quickly enough to avoid the collision. He stated that he braked hard and turned the vehicle sharply, which caused the truck to tip over on the right-hand side of the exit ramp.

Richard Adams, testifying for the plaintiff, stated that on the day of the accident he was travelling in the opposite direction on Route 14. He testified that both the van and the truck were in the right-hand lane and the bicycle was crossing the Route 68 ramp at the time of the accident. He stated that he saw the van swerve suddenly but that he never actually saw the Chem-Lawn truck hit the bicycle. He further testified that at the time of the accident he was approximately 250 feet from the ramp and that he did not notice the speed of the vehicles prior to the accident.

Paul Halverson, the driver of an automobile travelling behind defendant’s truck at the time of the occurrence, testified that he first observed defendant’s truck when it passed him about one-half mile before the exit ramp. He testified that in his opinion, the truck had been exceeding the speed limit but later testified that he could not tell if the truck reduced or increased speed as it neared the exit ramp.

Prior to the impact, Halverson was unable to see the plaintiff or her bicycle. At trial, using a photograph, he indicated that at the moment of impact, defendant’s truck was in the right-hand lane, rather than on the exit ramp. Halverson also testified that he found plaintiff’s body at the point where the exit ramp joins the highway.

Illinois State trooper Sergeant James Jamison arrived at the scene after the accident and conducted an investigation. He testified that he observed 102 feet of skid marks, the majority in the right-hand lane and the remainder curving up the exit ramp and off into a ditch. He also testified that he found a gouge or scuff mark on Route 14 in the far right lane at the point where the exit ramp and the highway join and that he believed the mark designated the point of impact.

At the close of the evidence, plaintiff moved for a directed verdict which the trial court denied on the basis that it was precluded by questions of fact. Plaintiff renewed the motion, and the trial court then sustained plaintiff’s motions for directed verdicts that plaintiff was not contributorily negligent and that defendant was negligent as a matter of law. The jury was instructed that a directed verdict had been entered and that the only issue before them was damages. Damages were assessed in the amount of $313,302.63, and defendant now brings this appeal.

Defendant first contends that the trial court erred in directing a verdict in favor of the plaintiff on the issue of defendant’s negligence. Defendant maintains that the evidence presented during the trial and all reasonable inferences therefrom were such that reasonable persons could differ as to their interpretation and the jury could have reasonably found in favor of the defendant and against the plaintiff. We agree.

Although the facts in this case clearly could support a jury verdict in favor of the plaintiff, the issue before us is not whether there is sufficient evidence to support plaintiff’s case but whether defendant Chem-Lawn presented sufficient evidence to support a verdict in its favor.

Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, requires that verdicts are to be directed “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” When faced with a motion for a directed verdict, it is not within the province of the trial court to assess the credibility of witnesses or to decide which facts are more probably true than others. (Roeseke v. Pryor (1987), 152 Ill. App. 3d 771, 777, 504 N.E.2d 927; Pharr v. Chicago Transit Authority (1984), 123 Ill. App. 3d 205, 208-09, 462 N.E.2d 753.) Where the evidence demonstrates a factual dispute, or where resolution of conflicting evidence may determine the outcome, it is error for the trial court to direct a verdict, as it is the function of the jury to decide whether the defendant exercised due care under the circumstances. See, e.g., Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 509-10, 492 N.E.2d 1364.

Under Illinois law, the occurrence of an automobile accident, even under circumstances where the plaintiff has exercised ordinary care, does not of itself raise any presumption of negligence on the part of the defendant. (Thomas v. Northington (1985), 134 Ill. App. 3d 141, 147, 479 N.E.2d 976.) Moreover, a rear-end collision does not automatically create an inference as a matter of law that the driver of the rear vehicle was negligent or that he was following too closely or driving too fast for conditions. It is the responsibility of the trier of fact, in this case the jury, to determine whether the rear driver in such accidents was acting reasonably under the circumstances or that the accident was unavoidable. (Thomas, 134 Ill. App. 3d at 147.) Even under circumstances where a defendant has collided with the rear of a stationary vehicle, Illinois case law requires the issue of that defendant’s liability to be decided by the finder of fact. See, e.g., Marynczak v. D & L Transport Co. (1981), 94 Ill. App. 3d 381, 388-89, 418 N.E.2d 972.

In the present case, there were numerous evidentiary disputes at • trial and the disputes were material to the liability or nonliability of Chem-Lawn.

The driver of the Chem-Lawn truck, Mr. Hardy, testified that just prior to the accident he was travelling no faster than 55 miles per hour, as his vehicle was controlled by a speed governor. Hardy stated that he was following about five to six car lengths behind a van, and that as he and the van approached the exit ramp, both signalled an intention to exit. Hardy testified that the van applied its brakes after it passed the mouth of the exit ramp and he also applied his brakes. He further stated that the van suddenly swerved to the left, off the exit ramp and across the median strip which separated the ramp from U.S. 14. It was at this point, according to Hardy’s testimony, that he first observed plaintiff’s bicycle directly in front of him in the center of the exit ramp.

Hardy explained that when he first saw the plaintiff, he had passed the point where the two lanes diverge and his vehicle was on the exit ramp. In order to avoid striking plaintiff’s bicycle, he turned sharply, which resulted in his truck tipping over into a ditch on the right-hand side of the exit ramp.

Chem-Lawn concedes that the testimony of witness Paul Halverson and investigating officer Jamison conflicts with that of defendant’s agent, Mr. Hardy. Halverson expressed the opinion that Hardy was speeding approximately IV2 miles west of the scene of the accident and that he did not know if Hardy had reduced his speed prior to the incident. Halverson admitted that he had not seen the plaintiff prior to the impact. When he saw the plaintiff in the air, defendant was in the right-hand lane of U.S. 14 and his vehicle was not turned sideways.

State Trooper Jamison testified to the presence of 120 feet of skid marks and a gouge in the roadway which in his opinion represented the point of impact. The gouge was at the beginning of the exit ramp and next to the right-hand lane of U.S. 14.

Based on Mr. Hardy’s testimony, the jury could have found that he was operating his vehicle within the speed limit, was keeping a proper lookout, was following the vehicle in front of him at a safe distance and had acted as a reasonably prudent person would have acted under those circumstances to avoid this accident.

Although both Mr. Hardy and Officer Jamison placed the point of impact on the exit ramp, the trial court made a finding that the defendant's agent struck the plaintiff on the shoulder of U.S. 14 and not on the exit ramp. The court also made a finding that defendant’s agent failed to keep a proper interval between his vehicle and the vehicle ahead of him and that he was travelling too fast for conditions on the roadway. The trial court’s findings were made despite the fact that there was conflicting testimony as to the point of impact, the speed of travel and the exercise of due care of both parties.

It is improper to direct a verdict when there are factual disputes which require the assessment of witness credibility or election between conflicting evidence. (See Sloan v. O’Dell (1987), 159 Ill. App. 3d 268, 272, 512 N.E.2d 105.) Under such circumstances, the Pedrick rule requires deference to the jury’s primary role as trier of fact. (Haas v. Tomaszek (1978), 56 Ill. App. 3d 656, 659, 371 N.E.2d 1240.) Applying this standard to the facts here, we cannot conclude that a verdict in favor of the defendant could not stand, and therefore, we find that the trial court erred in granting plaintiff’s motion for a directed verdict on the issue of defendant’s negligence.

Defendant also contends that the trial court erred in finding that plaintiff was not guilty of contributory negligence as a matter of law. Based on the evidence presented at trial, we agree that the issue of plaintiff’s contributory negligence was a question that should have been decided by the jury. Haas v. Tomaszek (1978), 56 Ill. App. 3d 656, 659, 371 N.E.2d 1240.

The plaintiff testified that she had no recollection of the occurrence at all. The only direct evidence of the collision between plaintiff and defendant was the testimony of defendant’s agent, Mr. Hardy. Hardy testified that when the van in front of him swerved from the exit ramp back onto the highway, he was faced with plaintiff travel-ling on a bicycle in the center of the exit ramp. If the jury chose to believe Mr. Hardy, they could properly have found plaintiff guilty of contributory negligence.

In addition, irrespective of any statutory violations, the question of the plaintiff’s due care was an issue of fact that should have gone to the jury, as plaintiff had a duty to operate her bicycle with ordinary care for her own safety. (See Martino v. Leiva (1985), 133 Ill. App. 3d 1006, 1008, 479 N.E.2d 955; Moran v. Aken (1981), 93 Ill. App. 3d 774, 777, 417 N.E.2d 846.) A plaintiff is guilty of contributory negligence when she fails to exercise that degree of care which a reasonably prudent person would have used for her own safety under like circumstances, and which failure is the proximate cause of her injury. Moran v. Aken (1981), 93 Ill. App. 3d 774, 777, 417 N.E.2d 846.

From the evidence presented here, we believe the jury could have found that plaintiff failed to exercise due care in crossing an exit ramp from a high speed highway and was therefore contributorily negligent. Accordingly, we find that the trial court erred also in directing a verdict in favor of the plaintiff on the issue of contributory negligence.

For the above reasons, the judgment of the trial court is reversed and this cause is remanded for a new trial.

Judgment reversed and remanded.

MANNING, P.J., and QUINLAN, J., concur.