Balzekas v. Looking Elk

• Decision Date: 17 September 1993
• Docket Number: No. 1-92-0677,1-92-0677
• Citation: 627 N.E.2d 84,193 Ill.Dec. 925,254 Ill.App.3d 529
• Parties: , 193 Ill.Dec. 925 Eugenia BALZEKAS, Individually, and as Administrator of the Estate of Ralph Balzekas, Plaintiff-Appellee, v. Ronald LOOKING ELK and Transwestern Express, Ltd., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

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627 N.E.2d 84 254 Ill.App.3d 529, 193 Ill.Dec. 925 Eugenia BALZEKAS, Individually, and as Administrator of the
Estate of Ralph Balzekas, Plaintiff-Appellee,
v.
Ronald LOOKING ELK and Transwestern Express, Ltd.,
Defendants-Appellants. No. 1-92-0677. Appellate Court of Illinois,
First District, Sixth Division. Sept. 17, 1993.

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[193 Ill.Dec. 926] [254 Ill.App.3d 530] Segal, McCambridge, Singer & Mahoney, Ltd., Chicago (Edward J. McCambridge and

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[193 Ill.Dec. 927] P. Mark Crane, of counsel), for defendants-appellants.

Motherway & Glenn, P.C., Chicago (Nicholas J. Motherway, of counsel), for plaintiff-appellee.

Justice GIANNIS delivered the opinion of the court:

Plaintiff instituted this action seeking recovery for personal injuries sustained in an automobile collision with a vehicle operated by defendant Ronald Looking Elk (hereinafter Looking Elk) during the course of his employment by defendant Transwestern Express, Ltd. (hereinafter Transwestern). Plaintiff was also appointed Administrator of the Estate of her husband, Ralph Balzekas, and sought damages for his wrongful death and for his conscious pain and suffering which resulted from the automobile accident. Plaintiff alleged that her injuries and the wrongful death of her decedent resulted from the negligence of the defendants. Prior to trial, defendants admitted liability, and the cause proceeded to trial on the issue of damages only. The jury awarded damages in the amount of $1,000,000 for the wrongful death of plaintiff's decedent and $600,000 for his conscious pain and suffering. The jury also awarded damages in the amount of $1,542,298.70 to plaintiff for the injuries she sustained in the accident.

On appeal, defendants contend that the trial court erred in (1) excluding evidence that the decedent's life expectancy was lower than [254 Ill.App.3d 531] the average and (2) denying their motion for a mistrial based upon improper comments made by plaintiff's counsel during opening statements. Defendants also assert that the damages awarded for the wrongful death and survival act counts were excessive. Defendants have not challenged the damage award for plaintiff's personal injuries.

The record indicates that at about 4:30 p.m. on August 1, 1988, the vehicle driven by the decedent collided with the truck operated by Looking Elk. Immediately following the accident, the decedent was alive, conscious, and in pain. The decedent was trapped inside his car for approximately two hours and expressed great concern for his wife who was also trapped within the vehicle. Upon being extricated from his automobile, he was transported to the hospital. He was still conscious and in pain when he arrived at the hospital at approximately 5:50 p.m. At about 7:45 p.m., morphine was administered to relieve pain. The decedent died at 12:45 p.m. of the next day, having survived approximately 20 hours after the accident.

According to Dr. Gary Merlotti, the emergency room physician, the decedent was conscious for approximately 10 of the 20-hour period of survival. Darlene Haan, the decedent's daughter, testified that he was unconscious for the last six hours prior to his death. Ms. Haan also testified that when she arrived at the hospital, her father was pale, his lips were blue, and she could see bone protruding through the skin on his head. The decedent bled heavily from his legs which were broken, and his lungs started to fill with fluid. He begged his daughter to help him because he was in pain and could not breathe. The decedent received pain medication only once, and his subsequent pleas for more medication were rejected because of the possibility of complication which might result from his low blood pressure which resulted from the extreme loss of blood.

The decedent was 64 years old at the time of his death and had been retired on disability for 18 years. He last worked as a die setter in 1968. No evidence was presented at trial regarding any lost income or financial support occasioned by the decedent's death. Medical bills and related expenses incurred by reason of the decedent's injuries and death totalled $26,181.13.

Plaintiff brought a motion in limine seeking to exclude any evidence or testimony that the decedent had throat cancer, a laryngectomy, and a heart condition, or that any party smoked cigarettes. In opposition to plaintiff's motion, defendants stated that they intended to introduce testimony by Dr. Merlotti that the decedent's medical conditions decreased his life expectancy. At this time, defense counsel argued that he should be permitted to impeach the reliability of life [254 Ill.App.3d 532] expectancy tables by presenting evidence that the decedent's life expectancy would be

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[193 Ill.Dec. 928] shortened as a result of his medical condition. The court's initial ruling on the motion in limine required only that the parties advise the court before introducing any evidence of the decedent's medical history.

One week prior to trial, defendants served plaintiff's counsel with their motion for leave to amend their answer to admit liability and their proposed amended answer. Five days later and two days before trial commenced, the court heard and made an oral...