Orava v. Plunkett Furniture Co.

• Decision Date: 27 July 1998
• Docket Number: No. 2-97-0819,2-97-0819
• Parties: , 232 Ill.Dec. 321 Kelly A. ORAVA, a/k/a Kelly A. Sharpenter, Plaintiff-Appellee, v. PLUNKETT FURNITURE COMPANY et al., Defendants-Appellants (Robert A. Sharpenter, Plaintiff).
• Court: United States Appellate Court of Illinois

Page 1251

697 N.E.2d 1251

297 Ill.App.3d 635, 232 Ill.Dec. 321

Kelly A. ORAVA, a/k/a Kelly A. Sharpenter, Plaintiff-Appellee, v. PLUNKETT FURNITURE COMPANY et al., Defendants-Appellants

(Robert A. Sharpenter, Plaintiff).

No. 2-97-0819.

Appellate Court of Illinois,

Second District.

July 27, 1998.

Rehearing Denied July 30, 1998.

Michelle L. Adams, Connelly & Schroeder, Geneva, for Plunkett Furniture Co., and Charles J. Samars.

Stephen Sullivan, Batavia, for Kelly A. Orava.

Justice INGLIS delivered the opinion of the court:

Plaintiff, Kelly Sharpenter, was injured when defendant Charles Samars, a truck driver for defendant Plunkett Furniture Company, backed his truck into plaintiff's vehicle. A jury awarded plaintiff damages for the aggravation of a preexisting condition and past medical expenses but nothing for pain and suffering. (The jury also denied plaintiff's husband, Robert Sharpenter, recovery for loss of consortium.) The trial court granted plaintiff's motion for a new trial on damages only. On appeal (see 166 Ill.2d R. 306(a)(1)), defendants argue that the trial court abused its discretion because the jury's damage award was consistent with the evidence. We agree, reverse the grant of the new trial on damages, and reinstate the original judgment on the jury's verdict.

Plaintiff has not filed a brief on appeal. We may not reverse summarily merely because the appellee has filed no brief. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493 (1976). However, a reviewing court need not serve as the appellee's advocate or search the record for reasons to sustain the judgment. Talandis, 63 Ill.2d at 133, 345 N.E.2d 493; Plooy v. Paryani, 275 Ill.App.3d 1074, 1088, 212 Ill.Dec. 317, 657 N.E.2d 12 (1995). Thus, unless the record is simple and the claimed issues are such that we can easily decide them without an appellee's brief, we may reverse if the appellant's brief demonstrates prima facie error and the brief's contentions find support in the record. Talandis, 63 Ill.2d at 133, 345 N.E.2d 493; Plooy, 275 Ill.App.3d at 1088, 212 Ill.Dec. 317, 657 N.E.2d 12; Cala v. Gerami, 137 Ill.App.3d 936, 938, 92 Ill.Dec. 344, 484 N.E.2d 1199 (1985). We believe defendants' prima facie case of trial court error finds support in the record on appeal.

The jury awarded plaintiff damages of $1,468.99 for medical expenses and an equal amount for the aggravation of a preexisting condition. However, the jury specifically refused to award plaintiff anything for pain and suffering, disability, or lost salaries or profits. With a reduction by 33% to reflect plaintiff's negligence, the final award was $1,945.68.

Plaintiff moved for a new trial on damages only, asserting that (1) the verdict was irreconcilably inconsistent in awarding past medical expenses but nothing for pain and suffering ; and (2) the verdict demonstrated that the jury ignored a proved element of damages, that being the new whiplash injury that even defendants' expert medical witness conceded plaintiff had suffered. Defendants responded that, under Snover v. McGraw, 172 Ill.2d 438, 217 Ill.Dec. 734, 667 N.E.2d 1310 (1996), there was no per se inconsistency between the award of medical expenses and the denial of pain and suffering. Defendants asserted further that the jury could find that most of plaintiff's claimed injuries had no objective medical findings to support them and actually resulted from her myofascial pain syndrome, a chronic condition which predated the accident.

The trial court granted plaintiff a new trial on damages. The court did not explain its decision. After defendants' motion to reconsider was denied, we granted them leave to appeal. On appeal, defendants reiterate that the trial court erred in overturning a damage award that was internally consistent and was within the range of the evidence. For the reasons that follow, we agree.

We recognize that whether to grant a new trial is a matter for the trial court's discretion and that a court of review should not disturb the trial court's decision absent an abuse of that discretion. Snover, 172 Ill.2d at 449, 217 Ill.Dec. 734, 667 N.E.2d 1310; Maple v. Gustafson, 151 Ill.2d 445, 455, 177 Ill.Dec. 438, 603 N.E.2d 508 (1992). However a jury's award of damages is also entitled to great respect, and a court should not upset the jury's exercise of its prerogative unless the damage award ignores a proved element of damages or is absolutely irreconcilable. Snover, 172 Ill.2d at 447, 217 Ill.Dec. 734, 667 N.E.2d 1310; Tedeschi v. Burlington Northern R.R. Co., 282 Ill.App.3d 445, 448-49, 217 Ill.Dec. 953, 668 N.E.2d 138 (1996). Thus, we examine the trial court's decision to determine whether it abused its discretion by nullifying a damage award that does not ignore a proved element of damages or contain an irreconcilable inconsistency.

As defendants observe, our supreme court in Snover held that there is no inherent inconsistency in awarding damages for medical expenses but not for pain and suffering. Where, as in Snover, the evidence of pain and suffering is not strong, the jury may conclude that the plaintiff's injury was so slight that any pain or suffering was de minimis and need not result in a separate award. Snover, 172 Ill.2d at 448-49, 217 Ill.Dec. 734, 667 N.E.2d 1310. However, the award of medical expenses without a corresponding award for pain and suffering may be inconsistent "[i]f the evidence clearly indicates that [the] plaintiff suffered serious injury." Snover, ...