Branum v. Slezak Const. Co., Inc.

• Decision Date: 30 June 1997
• Docket Number: No. 1-95-1403,1-95-1403
• Parties: , 225 Ill.Dec. 88 Ron L. BRANUM, Plaintiff-Appellant, v. SLEZAK CONSTRUCTION COMPANY, INC. and Waukegan Steel Sales, Inc., Defendants-Appellees (Slezak Construction Company, Inc., and Waukegan Steel Sales, Inc. Third-Party Plaintiffs, v. Miller Steel Construction Company, Inc., Third-Party Defendant).
• Court: United States Appellate Court of Illinois

Page 1165

682 N.E.2d 1165

289 Ill.App.3d 948, 225 Ill.Dec. 88

Ron L. BRANUM, Plaintiff-Appellant, v. SLEZAK CONSTRUCTION COMPANY, INC. and Waukegan Steel Sales Inc., Defendants-Appellees (Slezak Construction Company Inc., and Waukegan Steel Sales, Inc. Third-Party Plaintiffs v. Miller Steel Construction Company, Inc., Third-Party Defendant).

No. 1-95-1403.

Appellate Court of Illinois,

First District, Third Division.

June 30, 1997.

William J. Harte, Ltd., Chicago (William J. Harte, James E. Haley and Joan M. Mannix, of counsel), Law Offices of Gerard A. Facchini, Ltd., Chicago, for plaintiff-appellant.

James W. Fessler, Michael Resis and Carmel A. Cosgrave, Qerry & Harrow, Ltd., Chicago, Carolyn Quinn, Jennifer A. Keller, David A. Johnson and William J. Furey, Cassiday, Schade & Gloor, Chicago, Sandra Young and Wayne A. Bolgla, Purcell & Wardrope, Chtd., Chicago, for defendants-appellees.

Presiding Justice COUSINS delivered the opinion of the court:

On September 26, 1988, plaintiff Ron L. Branum (Branum), an ironworker employed by Miller Steel Construction Company (Miller), was injured while working on a construction site in Roselle, Illinois. Plaintiff was injured when a steel joist, upon which he was standing, twisted and came out from under him. He fell from a height of approximately 20 feet with a bundle of steel decking falling from the same height striking plaintiff.

Plaintiff brought suit against defendants Slezak Construction Company, Inc. (Slezak), and Waukegan Steel Sales, Inc. (Waukegan), under the Structural Work Act (Ill.Rev.Stat.1989, ch. 48, par. 59.90 et seq. (subsequently 740 ILCS 150/0.01 et seq. (West 1992)) (repealed by Pub. Act 89-2, eff. February 14, 1995)) for injuries he incurred. Slezak was the general contractor on the job. In addition to plaintiff's claims against defendants, Slezak and Waukegan filed counterclaims for contribution against one another and Slezak filed a third-party complaint against Miller for indemnification. Slezak and Waukegan later voluntarily dismissed their claims against each other.

At trial, extensive testimony was offered regarding the extent and nature of plaintiff's injuries and plaintiff's physical rehabilitation, capacity to work and ability to obtain employment. The jury returned a verdict in favor of plaintiff and against defendants Slezak, Waukegan and Miller in the total amount of $712,000. The jury also responded in the affirmative to the six special interrogatories submitted to it, specifically finding that Slezak, Waukegan and Miller each violated the Structural Work Act in a way that proximately caused plaintiff's injuries and that each of them was in charge of the work. With regard to the third-party action, the jury allocated fault as between Slezak, Waukegan and Miller and found Slezak and Waukegan Furthermore, the trial court granted setoffs in the amount of $34,617 for workers' compensation benefits received by plaintiff from March 3, 1994, to March 20, 1995, and in the amount of $173,764.64, the amount that the trial court determined was the present cash value of Miller's future workers' compensation liability to plaintiff. Miller waived its statutory right to reimbursement for compensation payments under section 5(b) of the Workers' Compensation Act (820 ILCS 305/5(b) (West 1992)), and the trial court dismissed Miller from the case.

[225 Ill.Dec. 91] each 5% at fault and Miller 90% at fault.

Plaintiff appeals from the judgment entered on the jury's verdict in the amount of $712,000, from the order granting Slezak and Waukegan a setoff in the amount of $276,000 and from the order denying plaintiff's post-trial motion for a new trial and granting Slezak and Waukegan additional setoffs in the amounts of $34,617 and $173,764.64. Specifically, plaintiff contends that: (1) although the jury's verdict on the issue of liability is well supported, the jury's award of damages is manifestly inadequate and plaintiff is entitled to a new trial on the issue of damages only, and (2) the trial court erred in failing to allow statutory attorney fees and expenses in granting a setoff in favor of Slezak and Waukegan in the amount of plaintiff's employer's liability under the Workers' Compensation Act (820 ILCS 305/5(b) (West 1992)) on plaintiff's judgment against them and in allowing a set-off for future undetermined benefits.

Defendants cross-appeal and argue that, under section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1992)), the defendants were jointly and severally liable for past medical expenses and only severally liable for all other damages.

We affirm in part and reverse in part.

ANALYSIS

I

Plaintiff first contends that, although the jury's verdict on the issue of liability is well supported, he is entitled to a new trial on the issue of damages only because the jury's award of damages is manifestly inadequate and against the weight of the evidence and because several prejudicial trial errors resulted in the inadequate damages award. Defendants respond that this court should refrain from interfering with the jury's discretion to award damages that were warranted by the evidence.

Generally, damages are within the discretion of the jury. Hollis v. R. Latoria Construction, Inc. 108 Ill.2d 401, 407, 92 Ill.Dec. 449, 485 N.E.2d 4 (1985); People ex rel. Department of Transportation v. Smith, 258 Ill.App.3d 710, 716, 197 Ill.Dec. 263, 631 N.E.2d 266 (1994). The exception to that rule, however, is that a reviewing court may order a new trial or overturn a jury verdict when damages are manifestly inadequate or if it is clear that proven elements of damages have been ignored or if the amount awarded bears no reasonable relationship to the loss suffered by the plaintiff. Hollis, 108 Ill.2d at 407, 92 Ill.Dec. 449, 485 N.E.2d 4; People ex rel. Department of Transportation, 258 Ill.App.3d at 716, 197 Ill.Dec. 263, 631 N.E.2d 266; Cerveny v. American Family Insurance Co., 255 Ill.App.3d 399, 406, 193 Ill.Dec. 663, 626 N.E.2d 1214 (1993). A jury's award will not be found to be against the manifest weight of the evidence merely because it can be characterized as less than generous. Cerven y, 255 Ill.App.3d at 407, 193 Ill.Dec. 663, 626 N.E.2d 1214, citing Gruidl v. Schell, 166 Ill.App.3d 276, 116 Ill.Dec. 748, 519 N.E.2d 963 (1988). Furthermore, it is of no consequence to the validity of an award that it differs from an estimate of damages made by an expert, for a jury may reduce an expert's damage calculation without invalidating its verdict. F.L. Walz, Inc. v. Hobart Corp., 224 Ill.App.3d 727, 733, 167 Ill.Dec. 42, 586 N.E.2d 1314 (1992); Carter v. Chicago & Illinois Midland Ry. Co., 130 Ill.App.3d 431, 437, 85 Ill.Dec. 730, 735, 474 N.E.2d 458, 463 (1985). Furthermore, mere dissatisfaction does not require a new trial on damages (People ex rel. Department of Transportation, 258 Ill.App.3d at 716, 197 Ill.Dec. 263, 631 N.E.2d 266), because the mere fact that the verdict is less than the claimed damages does not necessarily mean the award is inadequate since the jury is free to determine the credibility of the witnesses and to assess the weight accorded to their testimony. Montgomery v. City of Chicago, 134 Ill.App.3d 499, 502, 89 Ill.Dec. 698, 481 N.E.2d 50 (1985).

Plaintiff argues that Hollis v. R. Latoria Construction, Inc., 108 Ill.2d 401, 92 Ill.Dec. 449, 485 N.E.2d 4, Vacala v. Village of La Grange Park, 260 Ill.App.3d 599, 201 Ill.Dec. 380, 636 N.E.2d 812 (1994), Faleti v. Tracy, 233 Ill.App.3d 1025, 175 Ill.Dec. 416, 600 N.E.2d 39 (1992), McKenzie v. Romeiser, 205 Ill.App.3d 830, 150 Ill.Dec. 710, 563 N.E.2d 837 (1990), Greco v. Coleman, 138 Ill.App.3d 317, 92 Ill.Dec. 875, 485 N.E.2d 1118 (1985), Giardino v. Fierke, 160 Ill.App.3d 648, 112 Ill.Dec. 559, 513 N.E.2d 1168 (1987), Burnham v. Lewis, 217 Ill.App.3d 752, 160 Ill.Dec. 597, 577 N.E.2d 922 (1991) and Carter v. Chicago & Illinois Midland Ry. Co., 168 Ill.App.3d 652, 119 Ill.Dec. 194, 522 N.E.2d 856 (1988), all support his contention that this court has consistently ordered a new trial on the issue of damages or affirmed the trial court's grant of a new trial where the jury failed to make an appropriate award for proven elements of damages. However, in each of these cases, the jury had overlooked damages that had been either indisputably proven or uncontroverted, thus necessitating reversal of the verdict. See Cerveny, 255 Ill.App.3d at 409, 193 Ill.Dec. 663, 626 N.E.2d 1214; People ex rel. Department of Transportation, 258 Ill.App.3d at 717, 197 Ill.Dec. 263, 631 N.E.2d 266. Thus, the initial issue in this case is whether elements of plaintiff's alleged damages were uncontroverted or indisputably proven at trial such that it is clear that the jury ignored the evidence.

In the instant case, plaintiff argues that the jury mistakenly awarded only $15,000 for disfigurement even though there was uncontroverted evidence that plaintiff's left ankle had "essentially been obliterated."

Plaintiff also argues that the jury erroneously refused to award any amount for future medical expenses because the undisputed evidence showed that plaintiff was still being treated by Dr. Berg for his left ankle and would be required to see Dr. Berg for treatment for the next six years. Furthermore, plaintiff asserts that Dr. Berg showed that plaintiff likely would require ankle fusion surgery in the future that would cost approximately $16,500.

Relative to the award for lost earnings, plaintiff contends that the jury erroneously returned a verdict of $150,000 for past lost income and $300,000 for future lost income after Slezak's economic expert testified that, using liberal assumptions, plaintiff's lost earnings totalled $753,811.

Plaintiff also argues that the award of $142,000 for past and future pain and suffering is inadequate in light of the undisputed evidence of the serious and overwhelmingly painful nature of plaintiff's injuries, as well as the evidence of...