Dudanas v. Plate

• Decision Date: 10 December 1976
• Docket Number: No. 61400,61400
• Citation: 44 Ill.App.3d 901,358 N.E.2d 1171,3 Ill.Dec. 486
• Parties: , 3 Ill.Dec. 486 Dolores S. DUDANAS, Individually and as parent and guardian ad litem of Shari Dudanas, a minor, plaintiff-appellant, v. Susan PLATE, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1171

358 N.E.2d 1171

44 Ill.App.3d 901, 3 Ill.Dec. 486

Dolores S. DUDANAS, Individually and as parent and guardian ad litem of Shari Dudanas, a minor, plaintiff-appellant, v. Susan PLATE, Defendant-Appellee.

No. 61400.

Appellate Court of Illinois, First District, Fifth Division.

Dec. 10, 1976.

Dowd, Dowd & Dowd, Chicago, for plaintiff-appellant; Michael E. Dowd, Philip J. McGuire, Chicago, of counsel.

Robert D. McHugh, Barish, McHugh & Dod, Chicago, for defendant-appellee.

LORENZ, Presiding Justice.

Plaintiff appeals from a jury verdict of $10,000 for personal injuries sustained by Shari Dudanas, a minor, in an automobile collision and from a denial of her post-trial motion for costs and attorneys' fees pursuant to section 41 of the Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 41).

On December 13, 1970, plaintiff was driving her motor vehicle northbound on Mannheim Road in Des Plaines. Her daughter, Shari, who was then 11 years old, was seated in the right front passenger seat. At the Touhy Avenue intersection plaintiff's automobile collided with an eastbound automobile driven by defendant. The front of plaintiff's vehicle struck the right side of defendant's automobile, causing Shari to be thrown forward into the windshield.

At trial Joyce Simeone, a passenger in defendant's vehicle, testified that defendant had proceeded into the intersection against a red traffic signal for eastbound traffic. The other witnesses to the occurrence called by plaintiff stated that the traffic signal was green for northbound traffic. Plaintiff and a police officer who arrived at the accident scene shortly after the collision testified that defendant had admitted to them that she had gone through a red light.

Dr. J. Ralph Seaton, the plastic surgeon who treated Shari, testified that his initial treatment took place in the emergency room of Lutheran General Hospital shortly after the collision. Pieces of glass were removed from Shari's face, and approximately 130 stures were used to close several lacerations on her face. There was scarring of the right upper eyelid, the base of the nose and the corner of the mouth. Surgery was required to reduce the fracture, and a scar revision left one eyelid more full than the other. Dr. Seaton stated that further surgery would not improve the appearance of the permanent scars. The redness around the scar tissue had faded well but was still visible.

Shari Dudanas testified that she was not wearing a seat belt at the time of the collision although the car was equipped with belts and she understood how they were to be used. She had used seat belts on previous occasions and had been told by her mother to wear a seat belt because it would be 'safe' and 'good.'

L. H. Nagler, a member of the American Association of Automotive Medicine and a consultant on automotive safety with a special interest in seat belts, was called as an expert witness by plaintiff. He stated that the primary purpose of seat belts was to prevent the ejection of the occupant either into the windshield or through an open door of the vehicle in the event of a collision. In response to a hypothetical question based upon the facts of the collision, the witness stated that had the occupant in the right front passenger seat been 'wearing a seat belt properly adjusted or maybe loosely adjusted, she still would have contacted the windshield under the force of the collision.' On cross-examination Mr. Nagler stated that the Top of the head would have impacted the windshield and that there might have been a slight reduction in the speed at which the person hit the windshield, but that the seat belt would not have caused enough of a reduction to prevent the windshield from being broken.

Defendant was the only witness for the defense. She testified that she was familiar with the intersection at Touhy Avenue and Mannheim Road and knew that traffic was directed there by traffic control signals. She stated that the signal was green for her direction of travel prior to her entry into the intersection and remained green as she entered.

At the close of the evidence an instruction was given to the jury over the plaintiff's objections that the question of whether Shari's injuries might have been lessened if a seat belt had been used could be considered by them in determining the amount of her compensation. The court also gave an instruction which stated that the issue of contributory negligence did not apply to Shari, and that her failure to use a seat belt should not be considered in determining the issue of liability. The jury returned a verdict finding defendant liable and awarding plaintiff $10,000 in compensation for Shari's injuries. ¹ Plaintiff's motion for a new trial on the issue of Shari's damages was denied.

Subsequent to trial plaintiff filed a motion for costs and attorneys' fees under section 41 of the Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 41). The motion alleged that defendant's answer contained denials not made in good faith, and that the denials were found to be untrue by reason of the jury verdict. The court denied this motion. Plaintiff then brought this appeal from the denial of her motion for costs and from the denial of the motion for a new trial on the issue of damages.

Opinion

The first issue presented for our determination is whether the testimony received at trial was sufficient to justify an instruction to the jury that allowed them to consider in their calculation of damages whether any element of plaintiff Shari Dudanas' injuries might have been lessened if she had used her seat belt.

The admissibility of evidence on the use or non-use of seat belts was first considered by an Illinois court in Mount v. McClellan (1968), 91 Ill.App.2d 1, 234 N.E.2d 329. That court examined cases from other jurisdictions which had held such evidence admissible as a factor in determining the duty of care (Bentzler v. Braun (1967), 34 Wis.2d 362, 149 N.W.2d 626; Sams v. Sams (1966), 247 S.C. 467, 148 S.E.2d 154) and from jurisdictions which had wholly excluded such evidence (Brown v. Kendrick (Fla.App.1966), 192 So.2d 49). The Mount court then concluded that the better view favored admissibility of the evidence but stated that 'this element should be limited to the damage issue of the case and should not be considered by the trier of facts in determining the liability issue.' 91 Ill.App.2d 1, 5, 234 N.E.2d 329, 331.

Although there is still a sharp split among the States as to the admissibility and weight to be accorded to seat belt evidence (see 15 A.L.R.3d 1428 (1967)), subsequent Illinois cases have adhered to the principle announced in Mount and have consistently held that the seat belt defense could not be established on the issue of contributory negligence (Josel v. Rossi (1972), 7 Ill.App.3d 1091, 288 N.E.2d 677; Blitz v. Checker Taxi Co. (1972), 8 Ill.App.3d 361, 290 N.E.2d 291; Atz v. Goss (1974), 21 Ill.App.3d 878, 316 N.E.2d 29). Moreover, an instruction on the seat belt defense, even when limited to the issue of damages, has been held to be error when the instruction or the closing argument could have so confused the jury as to lead them 'to consider the issues of contributory negligence and mitigation of damages as a single question whose answer was to be determined in part by whether plaintiff did or did not wear a seat belt.' Yocco v. Barris (1973), 16 ill.App.3d 113, 117, 305 N.E.2d 584, 57; see also Allison v. Howell (1974), 22 Ill.App.3d 287, 291, 317 N.E.2d 379.

In Hale v. Cravens (1970), 129 Ill.App.2d 466, 477, 263 N.E.2d 593, 598, it was announced that 'an instruction as to the existence or nonexistence, use or nonuse of a seat belt would be proper with reference to damages only when the record establishes by competent evidence that the damages may have been mitigated if a seat belt had been in existence and used.'

Thus, the narrow issue before us in this case is whether the testimony of plaintiff's seat belt expert constituted competent evidence of a causal connection between Shari's non-use of available seat belts and the injuries and damages sustained.

It is plaintiff's contention that only expert medical testimony would constitute competent evidence sufficient to warrant a seat belt instruction on the issue of mitigation of damages. No Illinois court has decided what constitutes competent evidence in a case of this kind or to have considered plaintiff's precise argument.

The cases cited by plaintiff do not resolve the issue raised in this case. In Schomer v. Madigan (1970), 120 Ill.App.2d 107, 109, 255 N.E.2d 620, 621, a seat belt instruction was held to be error because the record was 'completely silent as to whether the plaintiff did or did not wear a seat belt. A jury verdict finding either way on this issue would be pure speculation based upon no evidence in this record. The given instruction invited the jury to operate in a vacuum.'

Seat belt instructions were also held to be error where the vehicle in which plaintiffs were riding was not equipped with seat belts (Hale) and where there was 'no evidence in the record to support either mitigation or aggravation of injuries from the use or non-use of seat belts.' (Kravenas v. Algonquin Township (1973), 13 Ill.App.3d 1001, 301 N.E.2d 490, 492.) In Probus v. Brown (1975), 33 Ill.App.3d 639, 338 N.E.2d 231, a seat belt instruction was held to have been properly refused where there was neither evidence that the automobile was equipped with seat belts nor that plaintiff's damages might have been mitigated by their use.

In Heiser v. Chastain (1972), 6 Ill.App.3d 552, 285 N.E.2d 601, plaintiff was injured when she was thrown from her seat in a taxi by the force of an impact with another vehicle. At trial she testified that she grabbed for something to hang on to at the time of the impact, and her physician testified that her fracture was caused by a blow and would not have been affected by the use of a seat...