Cook County Record

Tuesday, February 25, 2020

Appeals court: Doctor hit by a Pace bus won't get paid, because jury found him 51% at fault

State Court

By John Breslin | Jan 9, 2020

Pace bus
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CHICAGO – A man who was struck by a Pace bus after he raised his cane to try to stop the bus at a stop in Lincolnwood shouldn't get any money, a state appeals panel ruled, finding a judge didn't make a mistake in stripping away his damages because a jury had found him 51 percent to blame for the accident.

A three-justice panel of the Illinois First Judicial District Appellate Court in Chicago upheld a trial judge's decision to enter judgment in favor of the defendant, Pace Suburban Bus, despite what the plaintiff said was an inconsistent jury verdict. In a ruling penned by Justice Nathaniel Howse, with justices David Ellis and Margaret McBride concurring, the appeals court found that, in the case of an inconsistent verdict, any special finding controls the jury decision.

The ruling was issued as an unpublished order under Supreme Court Rule 23, which limits its use as precedent.

The case centered on a June 2016 accident in which Dr. Aaron Birch was struck by a bus as he attempted to board at Lincolnwood Town Center. Birch sued Pace, claiming the bus transit agency, through its driver, caused his injuries, including fractures to his forearm and skull. He asked for damages totaling just over $110,000, including $16,895 in medical bills.

At trial, the jury heard how Birch stepped, or stumbled, off the curb as he raised his cane to try and halt the vehicle just prior to impact. The jury, while stating that it found in favor of the plaintiff, said Birch was 51 percent to blame for the resulting accident, because of his motion toward the bus before the collision. It added a special finding that the contributory negligence was more than 50 percent. The jury awarded him half his medical bills.

But the trial judge ruled that, because the jury found Birch more than 50 percent to blame, by law, he had to find for the defendant and that therefore the doctor was not entitled to any compensation. In his unsuccessful appeal, the plaintiff claimed the trial judge was wrong to make such a finding where the "verdict was ambiguous and possibly inconsistent."

"The relevant inquiry is whether, without regard to the evidence, there is a reasonable hypothesis reconciling the jury's general verdict finding for the plaintiff and awarding damages with the special finding, which effectively finds for the defendant and precludes damages," Howse wrote. "Again, we do not believe these diametrically opposed findings are capable of reconciliation and thus the special interrogatory controls."

According to Cook County court records, Birch has been represented by attorneys from the firm of Miroballi Durkin & Rudin, of Chicago.

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Organizations in this Story

Pace Suburban BusMiroballi, Durkin & Rudin, LLCIllinois First District Appellate Court

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