Healy v. Bearco Management, Inc.

• Decision Date: 26 July 1991
• Docket Number: No. 2-90-0687,2-90-0687
• Parties: , 160 Ill.Dec. 241 Lynn HEALY, Plaintiff-Appellant, v. BEARCO MANAGEMENT, INC., et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1195

576 N.E.2d 1195

216 Ill.App.3d 945, 160 Ill.Dec. 241

Lynn HEALY, Plaintiff-Appellant, v. BEARCO MANAGEMENT, INC., et al., Defendants-Appellees.

No. 2-90-0687.

Appellate Court of Illinois Second District.

July 26, 1991.

Rehearing Denied Sept. 6, 1991.

Aldo E. Botti, Marian H. Donohue (argued), Botti, Marinaccio, DeSalvo & Tameling, Ltd., Oak Brook, for Lynn Healy.

Robert G. Black (argued), Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Lisle, Thomas A. Brabec, D. Kendall Griffith, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for Bearco Management, Inc. and Bear & Sons, Inc.

Justice NICKELS delivered the opinion of the court:

This appeal arises from a personal injury action filed by plaintiff, Lynn Healy, on August 10, 1983, against Bearco Management, Inc., Bear & Sons, Inc., and McDonald's Corporation, in the circuit court of Kane County. Plaintiff alleged that she fell on a wet floor as she exited a McDonald's restaurant in Elgin, Illinois, on December 1, 1982, due to defendants' negligence, and as a result she sustained severe and permanent back injuries. Prior to trial the parties stipulated to dismiss McDonald's as a defendant, and at the close of the evidence following the trial, Bearco was granted a directed verdict. The jury found in plaintiff's favor and against Bear & Sons, Inc., hereinafter defendant, in the amount of $120,767.31. This award was then reduced 90% by the jury due to plaintiff's contributory negligence. Plaintiff raises several issues on appeal.

Gerald Bear, owner of the McDonald's, testified as an adverse witness. Describing the physical layout of the restaurant on December 1, 1982, Bear said that there was an east and a west entrance from the outside to the lobby. The lobby had east and west entrances into the dining area which consisted of an L-shaped center section, an east and a west section. The west section was one step down from the center section. The center section could be reached from the east or west.

According to an accident report, plaintiff slipped on a wet floor which was recently mopped and twisted her back about 4:10 p.m. on December 1, 1982. Bear testified that the tile floor was slippery when wet and that a yellow caution sign was put out to warn that the floor was wet. Bear was not there, and he did not know whether the sign was displayed at the time.

Bear also testified that the bucket used to mop the floor had a cautionary sign on it. Although the tile floor had a smooth, flat surface, the tile appeared glazed and shiny when wet which was obvious to the eye. However, Bear said that a cautionary sign was still needed.

Marlene Bratthauer, plaintiff's sister-in-law, testified that she, plaintiff's husband, and plaintiff, entered the restaurant through the west door and sat in the center section to eat. She saw an employee mopping the western section when they entered the restaurant. Bratthauer then noticed an employee mopping the north portion of the center section while they ate and they made small talk with her. When they left the restaurant they walked through the western section. There were no warning signs indicating that the floor was wet, and no one told them that the floor was wet. Plaintiff fell and then Bratthauer noticed the floor was wet. Plaintiff's coat was wet and dirty. Plaintiff's and plaintiff's husband's testimony corroborated this account of the occurrence.

Plaintiff's husband, John Healy, testified that he married plaintiff in June 1979 and that she was in perfect health. Prior to the fall, plaintiff worked full time as a real estate agent, did the housework, yard work, took care of the children and jogged five miles a day. She obtained a broker's license and opened her own business in February 1981. Plaintiff also purchased houses for investment and renovated them through subcontractors and her own labor. Subsequent to the fall, plaintiff could not do any of her former activities.

After the fall, plaintiff was in the hospital for five weeks. Upon returning home, plaintiff remained in bed most of the time and had to walk with a cane. She went back to the hospital about two months later for about seven weeks. She was home again for about seven months during which time she was in constant pain. She had difficulty sleeping, could not run and could not work. In 1984 she went to Marianjoy Rehabilitation Center in Wheaton, Illinois (Marianjoy), for treatment of her severe pain and stayed seven weeks. In 1985, she returned to Marianjoy because of the pain. In June or July 1989, she went into the hospital again.

Dr. Geraldine Holub testified that she was a psychologist and worked with chronic-pain patients. Chronic pain lasted longer than six months and interfered with all aspects of a person's life. She first saw plaintiff on April 22, 1985, and plaintiff had been diagnosed as having arachnoiditis, which was an inflammation of the coating surrounding the spinal cord called arachnoid.

Holub diagnosed plaintiff as having adjustment disorder with depressed mood. An adjustment disorder was how a person reacted to stresses or stressors in life. A person with chronic pain found it difficult to manage stress. Holub said that plaintiff's original major stress was chronic pain and then other stressors were added to her life. The pain caused the adjustment reaction.

Her prognosis was that plaintiff would function at a higher level than at present with the pain under control. Although the chronic pain may continue, plaintiff's adjustment disorder hopefully would not. In her professional opinion Holub said that the fall on December 1, 1982, could have caused plaintiff's adjustment disorder with depressed mood. Holub was professionally and personally certain that plaintiff was not faking pain or using pain to gain sympathy.

During cross-examination, Holub explained that adjustment disorder related to the fact that when there was a stressor in plaintiff's life it would contribute to more physical pain or alternately make plaintiff unable to cope with the pain she had. Pain could increase in part of plaintiff's body due to the stressor, but that this was not due to somatization. Somatization was described as a personality trait whereby a person experienced emotional problems or stressors through a physical symptom such as pain. There was no organic cause for the pain, but the person experienced it as a result of somatizing.

Holub was then questioned about post-accident stressors in plaintiff's life which exacerbated her chronic pain condition. Holub also described a psychological concept called secondary gain whereby a person had an advantage accruing to her subsequent to an illness or accident which played a part in creating or perpetuating some type of neurosis. Secondary gain could occur where there was a lawsuit and the possibility of a person being compensated at the end led to the development of physical symptoms which were not due to organic circumstances. Plaintiff did not have secondary gain in Holub's opinion.

Eleanor Supernau, a psychiatric social worker at Marianjoy, had worked with plaintiff's pain management in 1983, 1984, 1985 and 1988. Plaintiff had made progress in her therapy by the time she was discharged in January 1984 and February 1988.

Martha Kretzschmar, a physical therapist at Marianjoy, treated plaintiff in 1984 and 1988. Plaintiff made progress through physical therapy. The therapist's observations of plaintiff led her to conclude that plaintiff was in pain. Kretzschmar had indicated on reports that plaintiff's pain was minimal.

Dr. Mark Lupton, a neurologist, began treating plaintiff in 1983. He diagnosed her condition as arachnoiditis which caused chronic pain syndrome. Arachnoiditis developed in some cases where dye from a myelogram remained in the spine. Plaintiff had a myelogram in the 1960s in England, where it was common not to remove the dye. Lupton opined that plaintiff's condition remained dormant until her fall, which caused the arachnoiditis to become symptomatic.

Lupton stated that some of plaintiff's symptoms could be due to psychological components while some were inconsistent with arachnoiditis. A test referred to as a "Babinski," after its creator, indicated plaintiff's problem was not psychological. He believed plaintiff had elements of depression and somatization, but there was overwhelming evidence of a neurological basis for her problems. His prognosis was that plaintiff would lead a limited life, probably not return to real estate work, and would require medical care and therapy from time to time. The arachnoiditis and the chronic pain were permanent conditions.

Dr. T.G. Limberis, plaintiff's family physician, testified that he saw plaintiff in June 1980 for low back and neck pain brought on by wallpapering and diagnosed lumbar strain. He saw plaintiff in November 1980 for low-neck pain which he diagnosed as muscular. On cross-examination, Limberis' deposition showed that he could not recall what caused plaintiff's problem in June 1980 but testified that he was reminded by plaintiff during her recent visit. Although a nurse noted soreness under the right arm and side of the breast in January 1979, Limberis found breast pain.

Dr. Valentino Menis testified that he was the director of the chronic pain program at Marianjoy and first saw plaintiff on December 28, 1983, when she was admitted. After her stay at Marianjoy plaintiff's condition improved. Menis stated that pain was a totally subjective experience.

Menis found negative "Babinskis" in examining plaintiff which meant that plaintiff had normal functioning of the brain and spinal cord. Menis explained the only significance of the negative Babinski was that plaintiff did not have central nervous system disease.

Plaintiff presented the testimony of six witnesses who testified regarding the many activities of plaintiff prior to her fall and her limited abilities following the fall. Plaintiff's 23-year-old...