Man Blamed For Getting Struck By Bus In Lincolnwood Loses Appeal

CHICAGO — A doctor who was hit by a bus in Lincolnwood lost his appeal of a decision blocking him from receiving damages awarded to him by a jury following a negligence trial because jurors also found he was was more than half to blame for being struck.

"Plaintiff, having been found more than 50% contributory negligent, is not entitled to any damages," according to an order filed last month by a three-judge panel of the Illinois Appeals Court.

Aaron Birch suffered a skull fracture and a broken arm when he was struck by a Pace bus on June 16, 2016, at the Lincolnwood Town Center, according to the order. Two weeks after the incident, attorneys from the personal injury firm Miroballi, Durkin & Rudin filed suit on his behalf in Cook County Circuit Court, court records show.

Birch's attorneys alleged negligence on the part of the suburban bus service, while Pace argued Birch's negligence contributed to his injuries, according to the appellate opinion. Testimony and video of the incident showed that Birch had been trying to board a bus that had just closed its doors and begun to depart, it said. At a deposition, Birch said he struck the bus four or five times with his cane as he attempted to board it.

At the close of a five-day jury trial in August 2018, Birch's attorney asked the jury to award more than $110,000 in damages, including about $16,900 in medical bills resulting from the incident. But an expert called on his behalf admitted that Birch bore some responsibility for being struck when he stumbled into the street in front of the moving bus.

The jurors found in Birch's favor and against Pace and awarded him about $8,450 in damages — half of what his attorneys said he paid in medical bills. But the jurors also found that Birch was 51 percent responsible for being struck and returned a special finding, which stated his "contributory negligence" was more than half of the cause of his injury.

According to the trial judge and the appellate court, the special finding, also referred to as a special interrogatory, trumps the verdict. The law expressly allows for judges to find special interrogatories controlling over inconsistent portions of verdict, according to the appellate court's order, authored by Appellate Judge Nathaniel Howse.

While the trial jury's two statements appear to be irreconcilable, Howse noted its verdict that Birch was more than halfway responsible was supported by testimony introduced at trial.

"From our review of the record, we are convinced that the jury's answer to the special interrogatory is satisfied by the evidence," Howse said. "As a result, the special finding of fact controls and the court properly entered judgment in favor of [Pace]."

The Dec. 26 order, first reported by the Cook County Record, was filed under Supreme Court Rule 23, meaning it cannot be cited as binding precedent in future decisions.

Read: Complete Rule 23 order in Aaron Birch v. Pace Suburban Bus Service