Bernesak v. Catholic Bishop of Chicago

Decision Date01 July 1980
Docket NumberNo. 79-1517,79-1517
Citation87 Ill.App.3d 681,409 N.E.2d 287,42 Ill.Dec. 672
Parties, 42 Ill.Dec. 672 Anita BERNESAK, 1 , Plaintiff-Appellee and Cross-Appellant, v. CATHOLIC BISHOP OF CHICAGO, a Corporation Sole, Defendant-Appellant and Cross-Appellee.
CourtUnited States Appellate Court of Illinois

Dowd, Dowd & Dowd, Ltd., Chicago (Michael E. Dowd and Philip J. McGuire, Chicago, of counsel), for defendant-appellant and cross-appellee.

Fohrman, Lurie, Sklar & Cottle, Ltd., Chicago (James L. Pittman, Chicago, of counsel), for plaintiff-appellee and cross-appellant.

HARTMAN, Justice:

Plaintiff Anita Bernasek, an eighth grade pupil at Our Lady of Charity School in Cicero, sustained serious and permanent personal injuries as she and fifteen or twenty of her classmates played a game identified as "crack-the-whip" in the school playground. She brought an action against defendant Catholic Bishop of Chicago, a corporation sole and, following a jury trial, was awarded damages of $200,000 based upon wilful and wanton misconduct of defendant's agents and employees. Defendant appeals from the verdict and judgment and plaintiff cross-appeals therefrom.

The issues presented for review on appeal by defendant are whether: the court erred in denying its motions for a directed verdict and for judgment non obstante veredicto; plaintiff's theory of aggravation of her original injuries by defendant's action was timely pleaded and adequately proved; and the trial court erred in instructing the jury and in dealing with the jury's deliberations. On cross-appeal, plaintiff presents the issue of whether the trial court erred in denying her an additur or, alternatively, a new trial on the issues of lost income and lost future income. For the reasons which follow, we affirm in part, reverse in part, and remand for a partial new trial on damages.

Plaintiff's evidence, insofar as the issues are concerned, reveals that she and the other participants in the game had joined hands and run for three to five minutes before the whip cracked, resulting in the breaking of the line in the middle, where plaintiff was positioned, leaving her at the end of the remaining "whip," and ending in a flight through the air. She landed on her left leg and thigh, and half sitting and half lying on the ground crying. Two of her teachers, Sister Therese and Mrs. Ruther, who had been present in the playground during the game, asked if she was alright; she responded "no" and complained of pain in her left leg. Sister Therese attempted to raise plaintiff from behind, after she said she could not do so herself. When weight was thus placed on plaintiff's left leg, she immediately felt a crumbling or tearing sensation in her left hip and described the ensuing pain as excruciating. The leg collapsed under her weight and she fell to the asphalt topping of the playground for a second time, now experiencing pain in her left hip as well as her left leg. Several other school staff members then appeared. Sister Therese and Mrs. Ruther decided to place her in a chair and each took hold of one arm, lifted her up and placed her in a chair during which time plaintiff was crying and pleading for school personnel to notify her mother. Julia Reed, a fourth grade teacher, approached and told her either that she was a nurse or had nursing experience and, although she only asked to look at plaintiff's leg, she pulled it outward and, when plaintiff screamed, she pushed it back in. When Mrs. Reed manipulated her leg, plaintiff experienced a terrible, sharp, grinding pain in her left hip. Thereafter, the authorities decided to call her mother and she was removed by ambulance summoned by her mother and sent to MacNeal Memorial Hospital.

Anna Marie Sassetti and Cathy Houdek, students at Our Lady of Charity School and plaintiff's classmates, testified substantially to the same facts. Anna Marie was the leader of the line and started making swerves. She turned and saw that the line was gone except for the girl next to her, thereafter seeing plaintiff lying on the pavement crying and observed Sister Therese trying to pull plaintiff up and telling her to get up while plaintiff was screaming that she couldn't and was unable to move her leg. She saw Sister Therese finally manage to pull plaintiff onto the chair as she continued to scream, and then plaintiff's leg began shaking as she got onto the chair. Cathy saw both Sister Therese and Mrs. Ruther there, standing and watching as they played "crack-the-whip". The line moved and then broke from the force of all the children who were playing. The children let go of hands, at which time plaintiff flew through the air as though she was skiing and then fell to the pavement on her hip. She saw Sister Therese try to move plaintiff, who started screaming because of the pain. A chair was brought to the playground and she sat plaintiff in the chair, during all of which time plaintiff was screaming from the pain. Cathy had played "crack-the-whip" at school almost everyday before the date of the accident, in the presence of teachers including Sister Therese and Mrs. Ruther; she had never been told not to play the game.

Dr. Robert Kaminski testified that he conducted an examination of plaintiff at the hospital and found her entire left leg shortened and rotated externally, two classic symptoms of a fracture. X-rays revealed that she had a fracture involving the left hip with some displacement which required surgery in order to reduce the fracture and placement of a nail, plate and two screws to hold it in position. Her post-operative progress was satisfactory and the fracture had healed; however, by January, 1973, it became apparent that plaintiff was developing a complication of the fracture known as avascular necrosis of the hip bone which occurs because the blood supply to the ball part of the hip is disrupted when a fracture is displaced or committed. This condition results from the bone being deprived of blood; it becomes softened and gradually collapses, deforms and dies. Further surgery was performed on February 20, 1973, a bone graft procedure, in attempted re-vascularization of the area. Bone graft material was taken from the pelvis and packed into place in a pre-drilled hole in an effort to prevent further collapse and to establish better blood circulation. Due to the injury, plaintiff had a slight limp involving her left hip with a one-quarter of an inch shortening involving the left leg and atrophy of the left thigh muscles measuring one and one-half inches compared to the right leg. He was certain that plaintiff would require future major surgery requiring total hip replacement.

Dr. Donald S. Miller, an orthopedic surgeon, testified in answer to a hypothetical question that based upon a reasonable degree of medical and scientific certainty the avascular necrosis of the hip might or could have been caused or aggravated by picking up, pushing and pulling on the left leg by school personnel after plaintiff first fell. Dr. Miller had not treated or examined plaintiff before testifying and had not seen any X-rays of her injury prior to that time. On cross-examination, he conceded he did not "know" the blood supply was diminished by the initial trauma.

Defendant's evidence, as it related to the issues, revealed that Mrs. Miriam Ruther and Sister Therese, the latter acting as supervisor, were in the playground at the time of the accident. Mrs. Ruther saw the girls holding hands and formed in a line that seemed to move around in kind of arch, one girl anchoring her hand on a fence and the line moving under her arm. The girls seemed to be moving joyously and exuberantly in the line when plaintiff and another girl lost hold and plaintiff's feet seemed to leave the ground, and she moved through the air some feet and then dropped. She thought the game the girls were playing was called "rattlesnake." She and Sister Therese went to plaintiff lying on the ground after the accident. She complained of pain and could not get up. A chair was brought and Mrs. Ruther, with the help of another, raised plaintiff under her armpits to a sitting position on the chair. Sister Therese saw the girls moving around with their hands joined together and did not recall having actually seen plaintiff fall. She did not attempt to lift plaintiff after her fall. In a previous deposition Sister Therese had said that she had seen plaintiff when she "sort of went up and came down" and acknowledged that the game plaintiff was playing " * * * was sort of like crack-the-whip." She further recalled having testified in the deposition that the school never permitted the game to be played by children. Any game where children move around with their hands clasped has a risk involved of a child possibly getting hurt. The game had been played for about three minutes before the accident happened. She had seen the girls join hands before that. She knew of no written instructions to the children not to play games like this. Julia Reed, employed by defendant as a teacher, testified that she was at the other end of the playground when the injury occurred and saw plaintiff sitting on a chair after the accident. She did nothing to her, gave no instructions to anyone who was there with respect to her, and did not pull or push plaintiff's leg.

Defendant's motions for a directed verdict, both at the close of plaintiff's case and at the close of all the evidence, were denied. The jury returned its verdict in plaintiff's favor in the amount of $200,000 compensatory damages. It awarded no punitive damages and answered "yes" to a special interrogatory which asked: "Do you find from the evidence that the agents of the defendant were guilty of any wilful and wanton conduct which was a proximate cause of plaintiff's injury?" Post-trial motions filed by both parties are mirrored in the issues presented on appeal and cross-appeal...

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