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Kupcikevicius v. Fitzgibbons

OPINION FILED AUGUST 13, 1976.

MARY KUPCIKEVICIUS, PLAINTIFF-APPELLEE,

v.

JOHN A. FITZGIBBONS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS H. FITZGERALD, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

In this matter, plaintiff was awarded $65,000 damages by a jury in a personal injury action after a verdict had been directed on the issue of liability. The issue on appeal concerns only the alleged excessiveness of the verdict.

There appears to be no question that plaintiff was a passenger in the rear seat of a Volkswagen which was stopped for a red light at a street intersection when it was struck from behind by defendant's automobile. There was, however, conflicting testimony concerning the force of the collision and the extent of injury suffered by plaintiff.

The Collision

Plaintiff, her daughter who was also a passenger, and their driver all testified that the force of the impact moved the vehicle forward into the intersection, a distance of one car length plus a few feet. Their driver, however, admitted on cross-examination to an answer in a pretrial deposition that the vehicle had been moved only about five to ten feet by the impact.

Defendant, called as a section 60 witness, stated he first observed the Volkswagen stopped for a red light when he was about 100 yards away and traveling at about 15-20 m.p.h. He applied his brakes but, because of the icy condition of the street, his car skidded into the rear of the other car. His speed was 3-5 m.p.h. at impact. His passenger testified substantially the same concerning the condition of the street and their speed at the time of the collision.

As to the damage to the Volkswagen, its driver testified that the "bumpers, the fender and the engine were pushed in * * * totally flattened out." He stated that he was able to drive the car to the curb, but that "the engine made all kinds of funny noises" so that the vehicle had to be towed away. Defendant testified that the only damage to the Volkswagen was a dent in the rear trunk lid, about where the license plate was located, and a broken taillight. He stated that there was no damage to the rear fenders. There was no evidence as to the damage to defendant's vehicle.

Defense counsel attempted to introduce a photograph of the Volkswagen taken after the collision which purported to show the extent of its damage. This photograph was taken after the bumper had been removed, and it indicated the only damage to be a dent in the rear trunk lid and a broken taillight. Plaintiff objected to its admission on the ground that it had not been submitted pursuant to an earlier Monier order to produce documents. Defendant denied knowledge of any photograph, and it was complained by his attorney that the photograph had only recently been discovered in his insurance company's property damage file. *fn1 The court refused to admit the photograph, noting (1) it was at all times in the possession of the insurance company; (2) the bumper was removed, so that it did not accurately reflect the condition of the automobile immediately after the collision; and (3) the evidence was merely cumulative of the testimony concerning damage to the vehicle.

Plaintiff's Injury

Plaintiff testified that the force of the collision first knocked her backwards and then sideways, so that she struck her back against the rear seat and her right shoulder and head against the side of the vehicle. She immediately felt numb and nauseous and experienced pain in her head, neck and back. She was able to walk from the accident scene two and one-half blocks to her home, where she went to bed but had a sleepless night with "a lot of pain." When she continued to have pain while at work the next day, she went to her family physician, Dr. Yoksha.

Dr. Yoksha testified that he suspected a spinal injury because of the history she gave, her complaints of nausea and the pain in the neck and lower back, and his own physical examination which disclosed plaintiff's limited motion of and inability to flex her neck, numbness, and some reflex changes in her right leg. When her condition failed to improve and she exhibited some numbness of the right leg and a deterioration of the reflexes, he hospitalized her on December 6, 1969, three weeks after the accident, and arranged for an examination by a neurological specialist, Dr. Byla.

Dr. Byla obtained a history from plaintiff and, after a physical examination, diagnosed her condition as an acute strain of the muscles of the neck and lower back with nerve root damage resulting from an injury to an invertebral disc. Plaintiff gave him a history of having no prior symptoms and, on that basis, he related his findings to the auto accident. To confirm his diagnosis, a myelogram was taken which he testified revealed an extradural extrinsic pressure defect on the right side at the fourth and fifth lumbar and the first sacral vertebra levels. It was his opinion that there was damage to two discs, causing nerve root compression. He recommended a conservative course of treatment involving physical therapy, which was conducted on an outpatient basis and consisted of moist heat and traction applied to the back.

Plaintiff testified that she remained in the hospital for 17 days and, after her discharge, her right shoulder — which she had bumped in the collision — became increasingly painful to the extent that she was unable to move her arm. She was readmitted to the hospital in March of 1970, and her condition was diagnosed as acute capsulitis, also referred to as a frozen shoulder. Dr. McDonald treated this condition by placing plaintiff under a general anesthetic and manipulating her arm to break the adhesions which he believed had formed around the shoulder joint. She was also given physical therapy treatments by Dr. Rodriguez, which she described as being very painful.

Plaintiff was again hospitalized in May of 1971 for one week because of her back condition. A second myelogram was taken at that time which, according to Dr. Byla, was within normal limits. She failed to improve under physiotherapy treatment, which Dr. Byla testified confirmed the presence of a disc problem and, as a result, he once more hospitalized her in January of 1972. A third myelogram indicated the disc defect, and Dr. Byla then did a laminectomy which revealed a ruptured disc that he ...


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