THE COURT: Ladies and gentlemen, this is National Juror Appreciation Week and normally I would be appreciative of your service as I am the service of all jurors but I think I owe you a special expression of appreciation for your tolerance and understanding this week in the very interrupted schedule that this trial unfortunately has had to have. Under ideal circumstances this case would have been tried in three days and it would have been continuous and we wouldn't have these little bits and pieces but as I explained to you Monday circumstances necessitated that and I'm real sorry that your jury experience had to include the many interruptions.

At this time the presentation of evidence has been completed and the attorneys have the opportunity now to present to you their closing arguments. Closing arguments are their opportunity to summarize what they believe the evidence has shown, to suggest any inferences that they believe you may draw from the evidence, and likewise to suggest what your verdict should be. What the attorneys say to you during the closing argument is not evidence and should not be considered by you as evidence. If any statement or remark is made which is not based upon the evidence, you are free to disregard that.

One other thing I want to do before we start the closing arguments, however, is indicate to you and thank Mr. France and Mr. MacCloskey for the very professional and courteous way this case was presented. You have watched a case be presented by two attorneys who have done their job very well and very courageously and I certainly appreciate that and I'm sure that you do as well.

Mr. MacCloskey will address you first on behalf of the plaintiff. Mr. France will then address you on behalf of the defendants and since the plaintiffs or the plaintiff has the burden of proof in this case, Mr. MacCloskey will have a final opportunity to address you. After that concludes I'll read the instructions to you and you will retire to consider your verdict.

Mr. MacCloskey.

 

Mr. MacCloskey: Thank you, Your Honor, may it please the Court, Counsel, ladies and gentlemen, good morning. When I first had the opportunity to talk to you Tuesday morning, I told you at that points that I intended to prove that the defendants were negligent, that Bruce was injured, and that the defendants' negligence caused Bruce's injuries. I think we have done that. I think we have done that in spades. What is it -- how is it that we prove something in court? Well, you will be instructed soon by Judge Gill what we have is called the burden of proof and when you have the burden of proof on an issue it means that the thing you are trying to prove must be shown to be more probably true than not true. They call it a preponderance of the evidence. You may visualize the statue of justice, the lady with the blindfold holding the scales, which way do the scales tip on an issue, that illustrates burdens of proof. Like I said, we have to prove that the defendant was negligent. What is negligence? You will be instructed that negligence is doing an act which a reasonably prudent person would not do or not doing an act that a reasonably prudent person would do. Then we have to show that the act or acts of the defendant or the inactions caused, proximately caused the injuries. Proximate cause I believe you will be instructed is a cause which in natural or probable sequence produces the injury complained of.

 

So what is it specifically that I'm trying to prove? Well, we say that the defendants were negligent in the following respects, in doing the following things: We say they failed to maintain a proper lookout for other vehicles in its path of travel including the vehicle operated by Mr. Lizer; we say they failed to keep their vehicle under proper control; we say they failed to reduce the speed of their vehicle when approaching and crossing a preferential thoroughfare. It's a lot of long words that mean she didn't slow down when she came onto the road from the grass; and lastly we say she failed to yield the right-of-way to Mr. Lizer who was going on the road. Now, we don't have to prove all four of these things. We don't have to prove any more than one. Again, it's by a preponderance of the evidence. There are some uncontested facts in this case. The first uncontested fact is that Bruce was on the road, the road, the main road in the fairgrounds area. By the way, you're going to get these (indicating) pictures. You're going to be able to look at them, hold them, pass them around so bear that in mind but as you see in this blowup there is a great expanse of roadway here. Well, there is no contest Bruce was on the road. Mrs. Myers was coming from behind this (indicating) building, off of grass onto the road intending to turn left. Now, we have a bunch of other pictures, Exhibits 11 through 24, and again you'll be able to see these but what these are just photographs that showed the area and show where cars park in front of the office and show what it looks like when cars are using that roadway and there is a bunch of them from different angles, different distances. You'll be able to see these but these lay out what part of this expanse is roads and what's parking. So there is no contest, no disagreement Bruce was on the road. The defendant was on the grass, on the grass coming from behind this (indicating) information booth, from behind that building. There is no disagreement that she intended to come from behind this building and turn left to come south, the direction that the photographer was standing taking this picture. There is no dispute that she was three or four feet away or she was as far away as she was in this picture. Basically right next to the wall. You'll get this picture. There is no dispute that Bruce was, I believe the phrase was, not going very fast, perhaps five to ten miles an hour; there is no dispute that the impact occurred on the road; there is no dispute that the defendant, Mrs. Myers, did not slow down as she approached the road, she didn't stop, she didn't try and stop, no dispute; there is no dispute that her foot remained pushing down the gas pedal on the golf cart from the minute she started moving it forward until after the moment of impact. At impact it was still on the gas; there is no dispute that it was the blow from the front of the golf cart that pushed the motorcycle over; there is no dispute that the motorcycle stayed where it landed until Mr. Spahn and Mr. Saure got there and brought it up; and lastly, there is no dispute that the defendant said she was sorry after this incident happened. Now, how do I know all those facts are uncontested? Because that's just what the defendant told us, that's just her testimony. You put Bruce's testimony in there, he's six or seven feet from this building which when you compare that to Exhibits 11 through 24 he's basically right in the lane of traffic, right in the lane where you're supposed to go when you're driving on this road. We know he's an experienced driver and we know he's driving slow, he thought five to six miles an hour, defendant said five to ten, not very fast. We know he was stopped at impact. How do we know that? Well, skid marks on the scene and the impact occurred to the right side of the motorcycle. If Bruce wouldn't have been stopped, it would have been his leg that was hit or his right foot instead of his left foot from the crush injury when the motorcycle came down over on top of it. Now, it is true that Mrs. Myers said that Bruce was two to four feet away from the west edge of that information booth when she saw him but I think when you analyze that statement with the rest of the evidence I think you'll see that Bruce's estimate is much more accurate and, in fact, Bruce's estimate is probably a little conservative because what did Mr. Spahn and Mr. Sauer tell us? Mr. Spahn said about ten feet, I guess.

 

Mr. Sauer, an ex-county deputy/detective, 28 years on the force, investigated car crashes, he said it was more like 15 feet. What else did he tell us? There were skid marks and I think he said the skid marks were two or three feet long, something like that. He believed they were left by the motorcycle. More importantly there were gouges in the roadway from the peg, the foot peg from the left side of the motorcycle. How did he know they were made by the motorcycle? Well, because the motorcycle ended up in the gouge mark, it was right there, and the gouge marks were some two feet long. So I think we have shown that Bruce is right in the lane of traffic, right in the lane of travel, right where he's supposed to be when he is driving on this road. So what do these facts mean, how can we interpret them? Well, would a reasonably careful person driving from behind the information booth come out from behind it without stopping, without slowing down before getting on the road? I don't think so. I don't think so and Mrs. Myers said she intended to stop, her intent was to stop before she entered the roadway. I think if she would have intended to stop, her foot would have been off the gas pedal on that golfcart before she reached the corner because I think as you are operating a golf cart you are coming up getting ready like she was to make that left turn onto the road, she would have had her foot off the gas and began putting it on the brakes to slow it down so she could stop before she did that. She didn't -- her foot was on the gas pedal the whole time. If she did intend to stop, she would have been at least slowing down before she got there. What I think happened and what I think the evidence showed us, shows us, show us happened is that remember when I asked Mrs. Myers about the other vehicles that were parked in front of the maintenance shed and she said something like, well, yeah, the maintenance crew's cars were parked over at the maintenance shed and she saw that as she was coming up to the road. I think what happened is she came out from the rest rooms back over here (indicating), she started driving this way (indicating), she looked over here (indicating) and saw the cars and figured everybody is parked over there and I have to go make my left turn. I think she was just trying to make her turn and as luck would have it Bruce was there. Bad luck for Bruce, good luck for her. If it would have been a truck, we would have had a vastly different outcome.

Proximate cause, the cause of the motorcycle going down, no question that's what caused the injuries, the motorcycle coming down on Bruce's foot and it bends over. Mrs. Myers told you Wednesday, was it, whenever she was testifying, she admitted that it was the blow from the front of the golf cart that caused the motorcycle to go down. Now, she kind of backed off her statement a little bit and I had to remind her of the testimony that she had given last year that it was the blow from the golf cart that caused the motorcycle to go over, not that it could have been. So there can be no dispute that it was the blow from the golf cart that caused the motorcycle to go down, that's what caused the injuries.

 

One of the things that I have to do as an attorney is try and anticipate what my opponent is going to argue so I can try and address those concerns that may be raised. One of the ways we do that is to try and listen to the questions, because the questions that are asked tell us, gee, where is he going, what's he going to try and argue, why is he getting this information. I've never been accused of being the sharpest knife in the drawer but I have a little problem with this. I'm not quite sure why we got into all this other testimony about, well, how fast does that motorcycle go in first gear. Well, there is no dispute he was going five to ten miles an hour, that's the universe of possibilities based on the testimony, unless the defense doesn't believe the defendant's own testimony. They do argue that Bruce was too close to the edge of the building but he was on the road and the evidence, the evidence that favors no one, the evidence from the scene from the ground where it happened that simply is, that evidence tells us that he was closer to eight to -- I guess it would be 8 to 13 feet based on the two witnesses' testimony, Mr. Spahn and Mr. Sauer. There were a lot of questions about Bruce using Mr. Sauer's motorcycle without his permission but how did that cause the defendant to hit him on her golf cart? Other than the fact that I suppose he wouldn't have been there but that begs the question of what caused this accident. I think it is important to note, too, that Mr. Sauertold us yesterday that he heard the motorcycle start up. I guess there was testimony before that he might have seen him, he didn't remember seeing him when he was here. If he had a problem with that, why did he just drive over to the maintenance shed and go inside and go about his business? Because it really wasn't a big deal because Bruce had ridden his motorcycle before. And all of that is -- it does not have a tendency to prove or disprove any fact in issue, therefore, it is legally irrelevant. There was testimony about -- there was a bunch of questions to Mr. Sauerabout, well, isn't it a normal reaction for a motorcycle rider to lay the bike down when they think that there is trouble or something like that and Mr. Sauer said that's something I suppose that happens but we know that didn't happen here. Why? Well, first of all because the defendant says she hit him. Second of all because we have gouge marks from the motorcycle being pushed on the ground. There was a lot of testimony yesterday about this huge expanse of pavement over here (indicating) and you're going to see these pictures that the defense took with these cones here (indicating) and each of them being five feet apart and all of that. The fact of the matter is, when you look at Exhibits 11 through 24 you're going to see where the roadway is, you're going to see where cars travel. Bruce was right in the lane right where he was supposed to be. He was on the road. The defendant was on the grass. Doesn't someone on the road have the right to expect that other people are not going to be whipping out from behind a building to come onto the road without warning? If that's reasonable and if that's the law, then by golly the next time we're driving down the street and we come upon a driveway, maybe we better stop and make sure that nobody is going to whip out of that driveway because if you take that defense argument to its logical conclusion, it's your fault if somebody whips out from a driveway and hits you. That's not reasonable, that's not reasonable.

 

I suggest that we have proven our case. Now let's talk about Bruce's injuries. Bruce sustained what's called a complete lisfranc's fracture or dislocation of his left foot. That means all five of the bones across of top of his foot behind his toes, all five of them were ripped out of the sockets and the first three were broken. Now, Dr. Bush -- and it is not your eyes, this is a little bit blurry -- but Dr. Bush numbered these 1, 2, and 3, those were the bones that were broken and the rest of those were the ones that were pulled out of the socket. Not just a single lisfranc fracture but three fractures, five dislocations, the ligaments were torn, basically destroyed, the cartilage basically ruined, it was a foregone conclusion from that moment that he would have arthritis in his foot like he does today. He had surgery, and you'll get to see these X-rays, and I don't know if they have a view box in the back but you had can hold them up to the light and see where the screws were placed. Same thing with the one that was taken just a couple -- well, three days short of a month, three days short of two months. Yeah, I can count. But anyway, you'll get these. He had surgery, put the screws in. Now, just from wear and tear one of the screws is broken, that needs to come out, he needs another surgery, he requires another surgery. What did Dr. Bush tell us after a pretty vigorous cross-examination, what was that he said, Bruce and I have a date with destiny. I think that is pretty close to what he said. What else did Dr. Bush tell us? Well, that the pain that Bruce has experienced and does experience is permanent because of this injury; the swelling permanent because of this injury; the stiffness permanent because of this injury; the limp that he gets from pain, the antalgic gait, permanent because of this injury. The arthritis that he has got now not only permanent because of this injury but it will get worse when he has the surgery that he needs, and I think understandably he's putting it off as long as possible. It isn't a pleasant thing to go through but even after that he's going to get arthritis in the joints in front of the fusion back here (indicating) or behind it. So while it may reduce the pain here (indicating) it will increase the pain in front and behind the fusion site. The swelling and pain that Bruce gets with walking, well, that's permanent, too. Now, there was some testimony about, well, there are things that Bruce can do to eliminate this pain or reduce this pain. Well, he could get a new job. Well, Bruce has had this job for 32 years, this is the only job he's ever had. When he was 12-years-old, he started learning how to use the heavy equipment there by the prior highway commissioner. He went over to Vietnam as a CV, drove heavy equipment over there, came back here and became highway commissioner and he has been commissioner for 32 years. What else is he going to do? Is he going to go to law school? Come on. He has to do this job, that's all he knows. So he is going to be on his feet and does what does people do when this happens to them, they buck it, that's what people do and that's what Bruce is doing. He has to walk in ditches, he has to walk on uneven ground, he has to get in and out of these machines, all of that causes extra weight on his foot, extra pain, extra swelling. Every day he comes home for lunch, puts his foot up, every night he comes home, puts his foot up all because someone didn't yield the right-of-way to him when he was driving on the road. Dr. Bush has also said that he should not engage in any of those sporting activities and those among us who like to engage in sporting activities, that can be a big part of someone's ability to enjoy their life and one of the elements of damage that we are allowed to seek compensation for in Illinois is called a loss of a normal life and basically that gets to the things we lose that we used to be able to do to enjoy life, the things that we can't do now, we're entitled to compensation for those. Bruce used to play volleyball and volleyball with his wife, that was something they did weekly during the season. I imagine that was a special time, that was something they did together other than hang out at the house or maybe do a little gardening together, that's gone forever. The racquetball that Bruce used to play with his stepdaughter, that's gone, too, and that also is a very special thing that a father and a stepdaughter do. Those of us who have stepdaughters know that and it means a lot in your life to be able to do something. special one-on-one with that person and to have it taken away I think is a major injury.

 

If we have proven our case, then we are entitled to compensation. Before I get to that just a little thing, there is another phrase you will hear about soon called contributory negligence. While we have the burden of proof, we have to prove our case, the defense has alleged that Bruce was contributory negligent in a manner that caused or contributed to cause this injury. They have to prove that. They're saying that Bruce did something to cause this injury.

 

I don't see it. I suppose a small percentage would not be that unreasonable but this is important because Illinois law provides that juries are entitled to apportion fault between the person who gets hurt and the person who causes the injury. If the injured person, the plaintiff, is 50 percent or less at fault for the injuries, you determine what full and fair compensation would be for the injuries and then you reduce those damages, that monetary compensation, you reduce that by the percentage that you believe the plaintiff caused or contributed to cause the injuries. If the plaintiff is more than 50 percent at fault, you find for the defendant. I don't think that's the appropriate outcome. You're going to get three verdict forms. Verdict Form A says we, the jury, find for the plaintiff and against the defendants and assess damages in the amount of blank and that's where the total damages go, and then there are lines underneath that for the various elements of damage that I'll talk about in a minute. Verdict Form B says we, the jury, find for the plaintiff and against the defendants but we believe in essence that the plaintiff was a portion at fault for the injuries, therefore, we say the total damages, the total compensation that should be awarded is X and then you break it down and then you reduce it by whatever percentage. Again, I think the most reasonable outcome, the proper outcome, the proper verdict form is Verdict Form A. I think we have proven our case. When you're on the road and somebody comes off the grass and hits you and hurts you, I think they should compensate you to pay you back for what they have taken from you. It is no different than something being taken from Bruce and it has been four years and nine days that he has been deprived of all of these things, his health, his ability to enjoy life with his wife and his children. It's time that it stops here and apparently the real defense in this case is we just don't want to pay and I think after four years and nine days it's time that the defendant pay the compensation to Bruce that they owe him for causing his injuries.

 

Let me talk about this a little bit and then I'll get out of the way. A table of mortality has been entered into evidence and that table shows that Bruce is likely to live another 23.9 years. What that means is compensation for pain and suffering, loss of a normal life and disfigurement, those are damages that continue in the future and we are asking you for an award to compensate Bruce not only for the last four years and nine days but for the next 23.9 years. We are also asking to be compensated for the medical bills that were already paid, the medical bills that will be incurred, and something for the disfigurement that Bruce has gotten to his foot.

 

Let me talk about figures. By the way, it is my duty to suggest what I believe full and fair compensation is and that's the phrase from the instructions you get if Bruce is entitled to money damages he is entitled to full and fair compensation and that's all we're asking. It's my responsibility to give you figures. You can say my figures are right on, you can say my figures are too high, they're too Low, that's your job but here is my input for what it's worth. We know that Bruce has already incurred $47,332.10 in medical bills. It's time those are paid back. Dr. Bush told us a couple of days ago that he is going to require surgery in the future and his estimate for that was 25- to $30,000, so what we would ask for is$25,000 for that, those are the economic losses, that's money out of pocket, those should be paid. Disfigurement, disfigurement is self-evident, you got to see Bruce's foot, it's not a horrible mangled foot, it's not particularly gross, doctors did a great job. We would ask for $5,000 for his disfigurement. Now let's talk about what I believe are the largest elements of Bruce's damages. Bruce's loss of a normal life, the hunting that he still engages in, of course, but it is so much more difficult and so much more painful, it has been taken from him, it's a big deal, that's a big deal to his life. His inability now to play volleyball or volleyball with his wife, racquetball with his daughter, that's a significant injury. Now, who knows how long in the future he would have been able to play those sports but we do know his life expectancy is 23.9 years. For all of the damage that Bruce has incurred, his loss of a normal life, for now and in the future, I'm asking you for $250,000.

 

For Bruce's pain and suffering which is permanent which has gone on now for four years and nine days, which will go on for another 23.9 years even after the mid foot arthrodesis, the pain is just going to change spots, I'm asking you for another $250,000, that's a lot of money. I understand that, folks. I realize that is a powerful amount of money, but what I'm asking for for Bruce is full and fair compensation for now and all time for the injuries for what has been taken from him by the defendants. It is time for them to pay for what they have done and I believe that would fully and fairly compensate Bruce, that brings our total damages sought to $577,332.10. It has been my privilege to address you. Thank you very much. Bruce wanted me to thank you for your service and justice couldn't be done without you. Thank you very much.

 

 

Mr. France will now address you on behalf of the defendants.

MR. FRANCE:May it please the Court, Counsel, ladies and gentlemen of the jury. Let me add my thanks to that of the Court and that to plaintiffs’ counsel for your service as jurors here. This was not the celebration we had in mind for a juror appreciation week. Looking at your folks over the course of this week, I felt like you had gone to the doctor to have a splinter removed and he pulled it out about a quarter inch and told you to come back the next day, after that he pulled it out another quarter inch and told you to come back the next day, and it went on like that, day after day after day. That is not something we intended, that's not something we had any control over but I haven't noticed any of you blatantly sleeping and I appreciate that on behalf of the Winnebago County Fairgrounds Association and Peggy Myers, my clients in this matter.

 

I'm not going to stand up here and tell you that dropping a 700-pound Harley Davidson on your foot doesn't hurt. I'm not going to stand up here and tell you that you shouldn't feel sorry for someone who hurts himself by dropping a 700-pound Harley Davidson on his foot. You wouldn't be human if you didn't feel sorry for Mr. Lizer in this situation and our system is made up of human beings. Whatever technology has been brought, you, the jurors in our system have not yet been replaced by computers and I hope to goodness that you are never replaced because we need human beings to look at other human beings. This is an important case for all parties involved. What I will tell you is that your feeling sorry for Mr. Lizer cannot be the basis for your decision or your verdict in this case. Why? Well, a couple of reasons. First of all, you are going to be instructed by the Court at the conclusion of these statements, these arguments, on a number of things and one of them that I want to highlight is your verdict must not be based upon speculation, prejudice, or sympathy. In other words, whatever sympathy you may feel, whatever prejudice you may feel for the parties, for counsel, I hope I haven't done anything to offend you over the course of this week, but if I have, that's not evidence in this case. You have to put aside your feelings of sympathy and base your decision on this case on the evidence that you have heard come from that witness stand. That is your job. I know it is not an easy thing but that is your job. Secondly, I don't believe you can base -- simply being sorry for Mr. Lizer can be the basis for your decision because as there has been reference here, the plaintiff has what's called a burden of proof. The plaintiff has to prove that the defendant in this case, the employee of the Fairgrounds Association, Peggy Myers, was negligent, that Mr. Lizer was injured, and that his injuries were a result, that is proximately caused by her negligence and he has to prove all three of those things, it's not a two-out-of-three situation. He has to prove all three of those things and he has to prove it by a preponderance of the evidence. Now, counsel gave the example of the statue of justice with the blindfold and the scales. Let me suggest something to you, there is a possibility that if I buy a lottery ticket this weekend I might win and I won't have to show up for work on Monday. The probability is I'm going to be at work on Monday whether I buy a lottery ticket or not. What preponderance of the evidence is, is more likely true than not, probability versus possibility. It's not just whether it's possible, it's whether it's probable and that's how you have to view the evidence in this case and whether the plaintiff has sustained his burden of proof. Let's look at some of the specifics in this case. There has been reference made to negligence, essentially that means the failure to do something -- the failure to exercise ordinary care is what you are going to hear in the jury instructions and ordinary care will be defined to you as something somebody would have done or should have done or didn't do that a reasonably careful person would have done under the same circumstances. What this does is it puts you in the position of Mrs. Myers and says would a reasonably careful person have done something differently or not done what she did, and that's your job in terms of viewing the evidence. What did Peggy Myers do? Well, she was doing her job, she was cleaning bathrooms at the fairgrounds. She gets on her golf cart, she finished one set of bathrooms and she's on her way to another set of bathrooms. She doesn't know Bruce Lizer is at the fairgrounds riding around on a motorcycle, she doesn't know he's riding around on Mr. Sauer's motorcycle.

 

She pulls out from behind the information booth, and you'll get these photographs as well, doesn't even get out far enough -- well, before I get to that, she pulls out from behind this information booth, this is not an intersection, ladies and gentlemen, there is no stop sign, there is no warning sign. What this is is a private roadway on the fairgrounds. She pulls out from behind this information booth, doesn't even get out far enough to check for vehicles coming from her south when the plaintiff appears right in front of her. In fact, he is so close to the western edge of that information booth, by her estimation two to four feet, that she doesn't even have the opportunity to stop. You're going to have an instruction read to you that says you may use your common sense gained from experiences in life in evaluating what you see and hear during trials. I refer to that as the common sense doctrine, the common sense instruction. Just because you were sworn in as jurors in this case it doesn't mean that you took some sort of oath that says you leave all your common sense outside in the hallway and you are not allowed to use it when you apply the law to the facts in this case. You are expected to use it. You are expected to use common sense and that's how you have to look at the evidence in this case. What would a reasonable person have done differently than Peggy Myers, would she have stopped the golf cart before it got out from behind the booth, walked around, stuck her head around and looked north and south on the roadway and then climbed back into the golf cart before entering that roadway? She did exactly what any reasonable person would do under these same circumstances. Now, bear in mind, you've been shown or will be shown a whole series of photographs showing a lot of cars parked along this fence over here (indicating), trucks going in opposite directions, even Mr. Lizer admitted that wasn't the case on the day of this accident. There has been no evidence of other traffic on this roadway. It was the Friday before a weekend event. The only people out there were the people like Peggy Myers cleaning up, the maintenance crew, and Mr. Lizer who came out to look for some piece of equipment and decided to use his buddy's motorcycle in the process, that was the only traffic on that roadway. Now, part of this process and counsel has already acknowledged that there is a concept of contributory negligence involved in this and what that means and what you will be instructed is not only does Peggy Myers have a duty to exercise ordinary care for other people but the plaintiff, Mr. Lizer, has a duty to exercise ordinary care for his own safety, and what that means in terms of the facts and the evidence in this case, is you're going to be asked to compare what Peggy Myers did to what Mr. Lizer did and whether Mr. Lizer was exercising reasonable care, ordinary care under these circumstances. Now, Peggy Myers' testimony is consistent. One of the problems with the testimony of the witnesses that have been presented by Mr. Lizer is there is a lot of factual discrepancies. Mr. Lizer says he saw Mr. Sauer come around the south side of this information booth. You may recall his testimony. He had him coming around the south side of the information booth heading back to the maintenance building when Mr. Lizer was on the motorcycle and saw Mr. Sauer. And as he acknowledged, he couldn't see Mr. Sauer through that building just like Peggy Myers couldn't see Mr. Lizer from the opposite side of that building, neither one of them had X-ray vision. What Mr. Sauer says is that he actually was on the north side of this (indicating) building and he turned his golf cart around after talking to Peggy Myers and he headed back on to the north side of this building. So you have got two people saying two different things both of whom have been called as witnesses by the plaintiff in this case. Saueralso says he recalls seeing skid marks and gouge marks where the motorcycle wound up. Of course, while he was a sheriff, he was a retired sheriff and he acknowledged he didn't do an investigation under these circumstances. You heard the testimony of Mr. Spahn from an evidence deposition. Mr. Spahn didn't recall seeing any gouge marks or skid marks so you have two witnesses both of whom have been presented by the plaintiff that can't agree on that either. Now, you have got Mr. Lizer talking about this impact, knocking this motorcycle over, and in the photographs you'll see the very same golf cart that was involved in this incident, there has been no repair to it. The only damage to that golf cart were a few scratches. Common sense, folks. You think if the impact were of such severity that it knocked this motorcycle over that the contact between a fiber glass golf cart and a metal motorcycle wouldn't have at least cracked that shroud in front of the golf cart. No, what you have got are some scratches on it. Another thing that I found curious was Mr. Lizer testified that he took Mr. Sauer's motorcycle from an area between the Coke machines and the overhead door in front of that maintenance building. His testimony is that he backed the bike out and he went about 10 feet and saw Mr. Sauer coming back toward the maintenance building.

 

I promised or I didn't promise but you probably assumed there would be no math. Well, I'm afraid there will be some math involved in this. He goes 10 feet. Now, he's at the fairgrounds looking for Mr. Sauer. Within 10 feet of getting on his motorcycle he sees Mr. Sauer. What does he do? Does he get off say whatever he has to say to Mr. Sauer, no. What he does is he continues down all the way 15 feet south of this information booth and makes a U-turn. You heard the testimony from Mr. Bean, this distance is about -- well, it's not about. It's 89 feet from that overhead door to that cone. Giving him the benefit of a few feet for being south of that overhead door, he travels all the way to that cone, the distance that that information booth is long, which is 18 feet, and then another 15 feet to the south of the information booth. So he's traveling on this motorcycle after seeing Mr. Sauer for over a hundred feet and then he makes a U-turn, comes around to his left, and heads back another 15 feet plus the 18 feet that that building is long, another 33 feet. All of this he is doing at five to six miles an hour. Now, Mr. Sauer testified his motorcycle's speedometer doesn't start until it gets to ten miles per hour. It doesn't even show up at five miles an hour and Mr. Lizer testified that when I asked him I said, boy, that's slow, how do you keep from falling over going that slow on a motorcycle. Well, it's his skill, his skill and experience enable him to do all of this, travel over a hundred feet south, do a loop and come back 33 feet at five miles an hour on this 1400 CC motorcycle. Ask yourself, does that make any sense to you that he would be driving that slowly on this motorcycle that he takes without permission from Mr. Sauer. It doesn't. Mr. Sauer, of course, doesn't even remember seeing Mr. Lizer at that point until I reminded him that he had given a deposition in which he said, yeah, well, I saw him and I turned to Mr. Spahn, who obviously also saw him, and said he's at it again. Another discrepancy between the plaintiff's witnesses and their testimony. It just doesn't make any sense. If Mr. Lizer were going that slow just to show Mr. Sauer that he could drive that slowly on a motorcycle for almost 150 feet, well, if you believe that, fine.

 

What we do know about what Mr. Lizer did was that he took Mr. Sauer's motorcycle, it did not belong to him, without Mr. Sauer's permission. He may or may not have ridden it before. He's at the fairgrounds and he knows that Peggy Myers is a cleaning lady, he knows that this is a Friday before an event, he knows the routine that the people are out there cleaning the bathrooms before events. In fact, he sees the golf cart, Mrs. Myers' golf cart in front of the bathroom as he's heading south before he makes his U-turn. He sees it behind this information booth. He continues on. So he knows or should know that Mrs. Myers is there doing her job. Mrs. Myers doesn't have that opportunity. She has no idea that Mr. Lizer is out on Mr. Sauer's motorcycle. Now, Peggy Myers stated that the first time she sees Mr. Lizer is when he gets to the north side of the information booth and she's about five or six feet east, she's about five or six feet east (indicating) of the western edge of that information booth. Mr. Lizer says he's six to seven feet away from the western edge of that information booth. So at the point he first sees her when his wheel is even with the corner of that information booth, they're 11 to 13 feet apart. What does he do, does he accelerate to get past her, does he try to steer away from her? No, he stops the motorcycle right there and tries to balance 700 pounds on one foot and that results in the injury which Dr. Bush says that's a pretty lisfranc fracture, it's a pretty common injury for motorcycle riders. Ask yourself when you start comparing what a reasonable person would have done, ask yourself would a reasonable person have done what Bruce Lizer did under these same set of circumstances. Ask yourself wouldn't a reasonable person at least have driven out in the middle of the roadway. These cones are five feet a part. You can see on the defendants' Exhibit 3 that before Mrs. Myers even gets an opportunity to get her head around the corner while in at that golf cart she's approximately four feet into the roadway at that point. Mr. Lizer, if he were driving 15, 20 feet away from the side of that booth, would have given himself an opportunity to see Mrs. Myers and given Mrs. Myers an opportunity to see him. There is no evidence of any reason why he would be driving that close to the side of this building unless again he was just showing off on how slow he could drive the motorcycle and how close he could drive it to the side of the information booth.

Now, I believe that what the evidence has shown is that Mr. Lizer, and you can draw reasonable inferences from what the evidence presented has shown, I believe the inferences are that Mr. Lizer is on a borrowed motorcycle he is not familiar with, he's showing off for his friends and his buddies, it's an opportunity for him to drive something he doesn't own and all of a sudden be loses control of it. He sees Mrs. Myers. He has plenty of time to avoid this accident. If he had stayed out in the middle of the roadway this whole thing wouldn't have occurred but he chose to go so close to that information booth that it didn't give himself or Mrs. Myers an opportunity to avoid this accident. When he sees her from behind this information booth, which he should have known she was there, it startles him and he loses control and the thing tries to steer away from it, he has his foot down and I don't see anybody on the jury, I don't see anybody in this courtroom that has the strength to support 700 pounds on one foot and his concern at that point after losing control was damaging his buddies motorcycle. Those were the first words out of his mouth after this whole thing occurred when Mr. Sauer showed up. Now, as counsel has made reference to, you are going to be given some verdict forms and these are the documents on which you record your decision in this case. There are essentially three forms, Verdict Form A which he has made reference to and this records that you find in favor of Mr. Lizer and against the Fairgrounds Association and 'Peggy Myers and it lists all of the elements of damage and counsel has suggested that in his opinion a reasonable amount for those damages would be over a half a million dollars. I don't believe -- well, without even getting into amounts and I will get to the issue of liability because you can't get to damages until you have decided liability in this case, but with regard to these damages, Mr. Lizer has continued working at his job, operating heavy equipment, heavy equipment which involves the use of his left foot, he has continued doing this for approximately four years and he has not required any further surgery to this point, there is no further surgery scheduled. Mr. Lizer is the only one that can tell us when he feels and if he feels his foot is bad enough for the surgery, not Dr. Bush and his date with destiny. I suppose we all have a date with destiny in the form of some doctor some day but if he can predict the future, he's wasting his time with medicine. Mr. Lizer continues hunting, he continues a number of the activities he had done before, he doesn't take any medication. Another thing, he has an assistant that works with him at the highway commission. He and this assistant, John Miller, the part-time assistant are the only two people that work there. I think Mr. Miller is noticeable by his absence in this case since he is the person that could tell you exactly what he observes day in and day out about Mr. Lizer. He didn't testify for us. The Form B is basically a repeat of Form A except it incorporates. Mr. Lizer 's negligence and that allows you to reduce any award of damages by the percentage of his own negligence that contributed to this accident as long as it's no more than 50 percent. If you find that his negligence was more than 50 percent, it was more than 50 percent as compared to Peggy Myers' negligence, you use Verdict Form C which finds for the defendants and against the plaintiff. We read about the legal system every day. We hear about it on the TV, it's in the newspapers, it's in the magazines. A day doesn't go by that you don't read something about some jury somewhere doing something that you don't understand. You know what, this week on this case for these parties, you are the legal system, you are the legal system you read about in the papers, this is your chance to be that legal system. During jury selection I asked each of you if you had the courage and the capacity to send Mr. Lizer home without any dollars whatsoever if he failed to prove all elements of his case against Peggy Myers and Fairground Association. Each of you said you could do that. I am now asking you to do exactly that and complete Verdict Form C. Thank you.

 

Mr. MacCloskey will have a final opportunity to address the jury.

MR. MacCLOSKEY: Thank you, Your Honor. I guess the one thing that gets me the most is -- let me ask a few rhetorical questions, okay. Why is it after four years and nine days after the defendant has already told you it was the blow from my golf cart that knocked the motorcycle over, why can't the defense simply admit that. Why are they still hiding from that fact? Is that why maybe Mrs. Myers isn't here today because they don't even believe her? This is all Bruce's fault. Oh, my gosh. I think I'm still living in Rockford but I'm wondering, that's goofy. Bruce is on the road, she's on the grass, she whips out from behind a building and it's Bruce's fault. Oh, my gosh, what's wrong with that question? They have to make the argument now Bruce dropped the motorcycle on his foot. They can't even admit that she hit it and knocked it over and these pictures about the front end of the golfcart, I wonder why they didn't take a close-up of the steel plate bumper in front of it where the motorcycle got hit. They don't want you to see that, why? Base your verdict on the evidence, please, I beg you, base your verdict on the evidence. I don't want your sympathy, either does Bruce. I want justice, four years and nine days ago she came from behind that building and knocked him over on the motorcycle and messed up his foot big time and they still cannot even acknowledge that impact took place. Bruce was showing off, showing how slow he could drive this motorcycle and he panicked, this guy who has ridden motorcycles for 20 years, he panicked and dropped the bike on his foot, and then, of course, then he drugs it two feet to make the gouge mark in the pavement. Come on. Our burden is to prove something more probably true than not, more likely true than not. Isn't it more likely true than not that the only one who had control of whether or not there was a collision that day is Margaret Myers? She's coming along the corner of this building with her foot on the gas pedal and she says she intends to stop but does she even slow down as she's approaching the corner? No, she looks over at the maintenance shed and sees the cars there and figures, well, the group is there, they're all there, they're all accounted for, I'm on my way to another set of rest rooms and I'm just going to go on my merry way and 11 to 13 feet before the collision she sees it and does this (indicating) on the gas pedal but it's Bruce's fault, but it's Bruce's fault, send him away with nothing. Yeah, you have got a chance, folks, you have got a chance to stand up for justice, you have a chance to stand up for somebody who was hurt and it. wasn't his fault. And when the defendants come in and argue and they won't even admit a collision that the defendant admitted, what's wrong with this story, what's wrong with this picture? With all due respect to Mrs. Myers, it's not all about her, she was not on the road. Bruce was on the road. You're going to see pictures where the road is. He's right in the lane of traffic, what's he supposed to do? And this Monday morning quarterbacking about he should have sped up. Well, can you imagine the argument there would be if he was going faster. Oh, my gosh, he was in second gear, he must have been on one wheel. Another thing, common sense, yeah, please, I neglected to mention common sense, please. Don't check your common sense at the door. You’re going to need it. A lot of this talk about the discrepancy, I think what the defense is trying to do and maybe if you've watched movies or whatever defense attorneys, they create doubt. In a criminal case doubt is a big deal. Well, this has nothing to do with doubt and I've seen hundreds or thousands of witnesses and there is never exact agreement on every tiny detail from witnesses who see the same event. That is all we have got here. If the witnesses differed about something that meant something, that would be concerning. Now, they talk about this distance and all this he went for a hundred feet at five to six miles an hour. What is this room, 50 feet, that's two of these rooms, so what. And he's driving five or six miles an hour after going ten feet and sees Spahn and Sauergoing the other way and he turns around and comes back, what's unreasonable about that? How does that make it his fault? They argued that because Bruce saw a golf cart by the rest rooms he should have known Mrs. Myers is there, Mrs. Myers is now done with cleaning the rest room, Mrs. Myers now is going to go to another rest room and she's going to do it right at this minute and by the time I get to the building she's going to be whipping right out from under it. He's supposed to deduce that from seeing a golf cart that could have had 27 other potential riders on it. Somebody could have just been going potty. He's supposed to deduce that from seeing a golf cart that she's going to whip out from the behind the building and it's Bruce's fault. Maybe if she wasn't so darn close to the building, maybe if she had come out, maybe if she would have tried to stop, this wouldn't have happened. We wouldn't be here. We wouldn't be having all this fun. The fact is, from her own testimony she did not slow down as she approached that road and if she intended to stop by golly her foot would have been coming off that gas pedal but she didn't. How is that Bruce's fault? I am begging you for justice. After four years and nine days enough. This farce has gone on long enough. Apparently the only way that the defense is going to belly up to the bar and do what they're responsible for doing is if you tell them to, please, folks. They questioned Bruce's evasive tactics when they're 11 to 13 feet apart. What did the defendant do? That's all but it's not her fault, it's not even 1 percent her fault, come on. And this thing about Bruce showing off by driving slow and loses control of the motorcycle and can't hold up a motorcycle. I bet you everybody in this room has seen a motorcycle rider at a red light, what are they doing, they're holding that motorcycle up. It happens all the time at intersections all over town. John Miller, there is a thing called a subpoena. Mr. Spahn testified under a subpoena that I sent him, Mr. Sauer testified under a subpoena that I sent him. If John Miller had something pertinent to say, they could have subpoenaed him. It's not like we're playing hide the ball here. They could have subpoenaed him. They could have asked the judge, Judge, can we subpoena this guy, sure. And lastly they talk about Bruce's damages and how he's the only one who can control when or if he has the surgery. Dr. Bush is also the one who said, sure, he controls with his activity whether or not he's going to have pain and swelling, whether he's going to have to put that foot up. Under that heavy cross-examination that Dr. Bush was given, what did he tell you when it came time to say what Bruce could do to eliminate the pain of his foot, he said, well, we could amputate it. Folks, please, I ask for justice in the form of a verdict that will tell the defense it's time to face your responsibilities, do the responsible thing and fully and fairly compensate Bruce Lizer for this terrible injury that was caused and was not his fault. I beg you, please. Thank you.