Luye v. Schopper

• Decision Date: 13 April 2004
• Docket Number: No. 1-02-0610.,1-02-0610.
• Citation: Luye v. Schopper, 809 N.E.2d 156, 348 Ill. App. 3d 767, 284 Ill.Dec. 34 (Ill. App. 2004)
• Parties: Virginia LUYE, Plaintiff-Appellee, v. Michael SCHOPPER and Garden Cab Company, Inc., Defendants-Appellants.
• Court: Appellate Court of Illinois

809 N.E.2d 156

348 Ill. App.3d 767

284 Ill.Dec. 34

Virginia LUYE, Plaintiff-Appellee, v. Michael SCHOPPER and Garden Cab Company, Inc., Defendants-Appellants.

No. 1-02-0610.

Appellate Court of Illinois, First District, Second Division.

April 13, 2004.

Rehearing Denied May 5, 2004.

O'Hagan, Smith & Amundsen, L.L.C., Chicago (Michael Resis, of counsel), for Defendants-Appellants, Michael Schopper and Garden Cab Co., Inc.

John N. Dore, Chicago, for Plaintiff-Appellee.

Justice GARCIA delivered the opinion of the court:

This is a negligence action arising from an incident on September 25, 1998, in which the plaintiff, Virginia Luye, was injured while exiting a taxicab driven by codefendant Michael Schopper and owned by codefendant Garden City Cab (Garden). In April 2001, Luye filed a three-count complaint alleging: (1) Schopper was negligent in failing to either hold the cab door open while she was exiting or to take steps to ensure the cab door would not close; (2) Schopper was an employee of Garden and was acting as an agent of Garden when the alleged negligence occurred; and (3) res ipsa loquitur. Following trial in October 2001, the jury returned an itemized verdict awarding Luye $247,580.45, $112,000 of which was for aggravation of a preexisting condition. The defendants filed a motion for post-trial relief in November 2001, which was denied in January 2002. Subsequently, this appeal was filed in February 2002, pursuant to Supreme Court Rule 303 (155 Ill.2d R. 303).

On appeal, the defendants raise three issues: (1) whether aggravation of a preexisting condition is a separate and compensable element of damages in addition to pain and suffering and loss of a normal life; (2) whether the evidence supported the jury instruction and verdict form allowing recovery for aggravation of a preexisting condition; and (3) whether the verdict on aggravation of a preexisting condition was against the manifest weight of the evidence or, alternatively, whether an award of $112,000 for aggravation of a preexisting condition was excessive. Luye responds claiming the verdict was not against the manifest weight of the evidence, the award was not excessive, and the trial court properly tendered Illinois Pattern Jury Instructions, Civil, Nos. 30.03 and 30.21 (3d ed.1995) (hereinafter IPI Civil 3d) on the issue of aggravation of a preexisting condition. Luye further contends that the trial court properly tendered an itemized verdict form listing aggravation of a preexisting condition. Luye also argues that the defendants' brief does not comply with supreme court rules and, further, that there are no actual issues to be considered by this court as grounds for appeal.

BACKGROUND

On September 25, 1998, Schopper picked up Luye and her sister, Agnes Margalus, from the grocery store and drove them to Luye's home. Luye was seated in the backseat of the cab on the passenger side. When the cab arrived at Luye's home, Schopper reached across with his right hand, opened the rear passenger door and held it open for a moment before he went to open the other door for Margalus. While Schopper was holding the door open for Luye, she was putting her left foot outside the car, but after Schopper let go of the door, it closed on Luye's leg, shin, and ankle. Luye cried out when the door closed and her leg was pinned for a few seconds until Schopper came around and held the door open. Luye told Schopper her leg hurt and remained in the cab for a few moments before Schopper helped her up the stairs to her apartment. At the time of the accident, Luye's leg had no cuts and she did not call a doctor.

Approximately one week after the accident, Luye noticed her leg was hurting and that it was beginning to discolor. There was also a lump and liquid under the skin. Luye went to Christ Hospital in Oak Lawn, where they took X rays for fractures and tested for blood clots. The results of both were negative. Luye was released with instructions to take Tylenol and to follow up with her doctor, Dr. Lee Waidzunas. Luye saw Dr. Waidzunas, but her leg did not improve. Luye returned to Christ Hospital and was hospitalized for two days. At the hospital, her ankle was bandaged, she was given intravenous antibiotics, pus was drained from her leg, and her leg was elevated.

Over the next couple years, Dr. Waidzunas continued to treat Luye for her injury. The healing was slow and riddled with recurring low-grade infections. Dr. Waidzunas prescribed antibiotics, skin cream, and anti-inflammatory medication. Luye testified she had never injured her leg prior to the incident on September 25, 1998. However, Dr. Waidzunas testified that prior to the September 25, 1998 incident, Luye had a history of peripheral vascular disease (a circulatory condition), which primarily affected her right side; however, Luye had vascular problems in both legs. Dr. Waidzunas testified the accident made a "bad situation worse" regarding her left leg.

At the time of trial, Luye had three scars on her left leg and was experiencing neuropathic pain of five to six on a scale of 10. Dr. Waidzunas defined neuropathic pain as pain from nerve trauma, usually from a crushing injury. Luye's leg continued to be painful and discolored and sensitive to touch and water. Additionally, Luye walked with a cane.

At the close of evidence, over the defendant's objection, the jury was instructed in accordance with IPI Civil 3d Nos. 30.01, 30.03, 30.04.01, 30.05, and 30.06:

"If you find for the Plaintiff, Virginia Luye, on the question of liability, then you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damage proved by the evidence to have resulted from negligence of the Defendants.

The reasonable expense of necessary medical care, treatment and services received.

The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.

The aggravation of any pre-existing ailment or condition.

Loss of a normal life experienced and reasonably certain to be experienced in the future.

Whether any of these elements of damage has been proved by the evidence is for you to determine."

Additionally, without objection, the jury was instructed in accordance with IPI Civil 3d No. 30.21: "If you decide for the plaintiff on the question of liability, you may not deny or limit the plaintiff's right to damages resulting from this occurrence because any injury resulted from an aggravation of a pre-existing condition or a pre-existing condition which rendered the plaintiff more susceptible to injury."

The jury was then given a verdict form as set out below:

"We, the jury find for Virginia Luye and against Michael Schopper and Garden Cab Company. We assess the damages in the sum of $_____, itemized as follows:

The reasonable expense of necessary medical care, treatment and services received.

$_____

The pain and suffering experienced as a result of the injuries.

$_____

The pain and suffering reasonably certain to be experienced in the future as a result of the injuries.

$_____

The aggravation of any pre-existing ailment or condition.

$_____

The loss of a normal life experienced.

$_____

The loss of a normal life reasonably certain to be experienced in the future.

$_____"

The defendants objected to the inclusion of the aggravation of any preexisting ailment or condition as a separate itemized element of damages in both the jury instructions and the jury verdict form. The jury returned an itemized verdict awarding Luye a total of $247,580.45, with $112,000 designated for the aggravation of a preexisting ailment or condition.

The defendants filed a motion for posttrial relief based on Smith v. City of Evanston, 260 Ill.App.3d 925, 197 Ill.Dec. 810, 631 N.E.2d 1269 (1994), regarding the inclusion of aggravation of a preexisting ailment as a separate itemized element of damages. In January 2002, the trial court denied the defendants' motion and questioned whether Smith was still good law. In denying the defendants relief, the trial court stated:

"THE COURT: [W]ith regard to the giving of a jury instruction having, as an element of damages, aggravation of a preexisting condition and also being a damage instruction in the 30.01-plus series, the—And the Court is aware of Smith v. City of Evanston, and my own personal feeling about it is I personally do not like aggravation of a preexisting condition as an element of damages.

However, cases subsequent to Smith in the First District have said that it is an appropriate element of damages. And there have been other cases that have said Smith should not be followed with regard to the issue of loss of a normal life, and it should be disability. There is a divergence of opinion in the First District.

The author of the Smith opinion is no longer sitting on the Appellate Court. The judges that have written those subsequent opinions are presently sitting on the Appellate Court. There may be a sway in the Appellate Court, at least in the First District, maybe that Smith would not be followed. Smith is not followed in other districts—Appellate Districts in the State of Illinois.

The Supreme Court, to my knowledge, has not ruled on those specific issues; however, even subsequent to the Smith v. City of Evanston decision, the Illinois Supreme Court committee on pattern jury instructions in civil cases has seen fit to keep aggravation of a preexisting condition as a compensable element of damages.

And for those reasons—even though personally I do not like that as an element of damages, and I can understand Counsel's concern that there may be overlap—I think it is an element of damages that a jury can consider if there is a factual basis for it.

* * *

Can there be overlap? You know, if you're considering overlap between pain and suffering, disability and loss of a normal life and aggravation of a preexisting condition, yeah, perhaps there is overlap between all of those. I

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