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A verdict should be directed only in those cases in which all the evidence, when viewed in its aspect most favorable to the respondent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. This standard is to be employed in a jury trial whether the motion for a directed verdict is considered at the close of all the evidence, or at the close of plaintiff's case. Substantial factual disputes presented by the evidence require the assessment of witness' credibility or election between conflicting evidence, which fall within the jury's function, and it is then improper to direct a verdict.
Plaintiff Samuel J. Sunseri was injured from a fight with the bartender. Sunseri brought an action against defendant Patrick Puccia, owner of a restaurant and lounge, and defendant Larry Goeske, his bartender, for injuries received during the altercation on the restaurant premises. On May 7, 1979, in the course of a jury trial, the court directed a verdict for each defendant at the close of Sunseri’s case based on an occurrence witness' cross-examination testimony that Sunseri had initiated the fight. Sunseri asserts on appeal that the verdicts were improperly directed because the trial court misapplied the Pedrick standard ( Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504) and, alternatively, the trial court erroneously allowed defendants to present, over objection, an affirmative defense during plaintiff's case-in-chief.
Was the directed verdict for the restaurant owner and the bartender proper?
The court reversed the judgment and remanded the case for a new trial. The court held that the directed verdicts were improvidently granted. The jury should have been allowed to resolve the conflict in testimony between the customer and the police officer as to whom initiated the fight inside and, thereafter, outside the restaurant. Assuming that the customer had initiated the fight, the bartender was still not entitled to a directed verdict. The evidence could have established the bartender's privilege to use self-defense or that he used excessive force in severing the customer's ear. Also, the jury should have been allowed to determine whether the bartender's conduct was within the scope of his employment for the application of the doctrine of respondeat superior to the restaurant owner. Further, the restaurant owner's failure to act in any manner to terminate the fight, either by direction to the bartender or in cooperation with the police officer, established a potential basis for negligence liability.