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Balestri v. Terminal Freight Cooperative

OPINION FILED JUNE 1, 1979.

VITO BALESTRI, APPELLEE,

v.

TERMINAL FREIGHT COOPERATIVE ASSOCIATION ET AL. (HIGHWAY & CITY TRANSPORTATION, INC., APPELLANT).



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. James A. Geroulis, Judge, presiding.

MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 28, 1979.

Plaintiff, Vito Balestri, appealed from the judgment of the circuit court of Cook County entered in his favor on a jury verdict in the amount of $50,000, and against Highway & City Transportation, Inc. (hereafter defendant). The appellate court reversed and remanded for a new trial on the issue of damages only (57 Ill. App.3d 669), and we allowed defendant's petition for leave to appeal. The facts are stated in detail in the opinion of the appellate court and will be reviewed here only to the extent necessary to discuss the issues.

Plaintiff, while employed as a city pickup and delivery driver, was directed to the premises of Terminal Freight Handling Company for the purpose of picking up cartoned refrigerators. Bernard Boos, defendant's employee, was assigned to assist plaintiff in loading the refrigerators onto plaintiff's truck. Plaintiff was injured when a two-by-four fell from one of the cartons and struck him on the elbow. During the occurrence the weight of the refrigerator shifted, resulting in plaintiff's body being severely twisted.

In reversing the judgment and remanding for a new trial on the issue of damages only, the appellate court held that the circuit court had erred in refusing to give the following instruction:

"If you find that the defendant was negligent and that its negligence was a proximate cause of injury to and disability of the plaintiff, you should then find for the plaintiff and his right to recover damages for such injuries and disability is not barred or to be limited in any way by the fact, if you find it to be a fact, that the plaintiff's injury and disability resulted from an aggravation of a pre-existing condition by the occurrence in question nor by reason of the fact, if you find it to be a fact, that the plaintiff because of a pre-existing physical condition was more susceptible to injury than other persons might have been."

This instruction, which is not contained in Illinois Pattern Jury Instructions, Civil (2d ed. 1971) (IPI Civil), is based upon the opinion in Pozzie v. Mike Smith, Inc. (1975), 33 Ill. App.3d 343. In Pozzie, in holding that the refusal of instructions tendered by the plaintiff was error, the appellate court said:

"Plaintiff tendered four jury instructions regarding the aggravation of a pre-existing condition. The only instruction given to the jury was IPI — Civil 2d 30.03, a general instruction advising the jury to compensate plaintiff for among other things `the aggravation of any pre-existing condition.' The other three instructions which were refused sought to further clarify the law. Plaintiff's Instruction 14 informed the jury that plaintiff's right to recover damages for his injuries and disabilities is not limited by the fact that plaintiff's injuries and disabilities resulted from the aggravation of a pre-existing condition. Instruction 15 advised the jury that damages should not be reduced because the injuries and resulting disability were due in part to a pre-existing condition of plaintiff. Instruction 16 stated that it is not a defense to this action that plaintiff, because of a pre-existing physical condition, was more susceptible to injury than other persons might have been. These three instructions are not in IPI. However, IPI instructions are not intended to be all inclusive. We believe that Plaintiff's Instructions 14, 15 and 16 are each a correct statement of the law, and that the failure of the trial court to give at least one of them, with or without modification, left the jury without proper judicial guidance. In this case the singular submission of IPI — Civil 2d 30.03 inadequately advised the jury of its duty under the law." 33 Ill. App.3d 343, 347.

Supreme Court Rule 239 (58 Ill.2d R. 239) provides that when "Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law." There are situations where the IPI instruction is inadequate and an additional instruction is appropriate. (Department of Public Works & Buildings v. Association of Franciscan Fathers (1977), 69 Ill.2d 308.) The instruction given by the court contained the language of IPI Civil No. 30.01, and enumerated, inter alia,

"1. The nature, extent and duration of the injury." (IPI Civil No. 30.02.)

"2. The aggravation of any pre-existing ailment or condition." (IPI Civil No. 30.03.)

"3. The disability resulting from the injury." (IPI Civil No. 30.04.)

It was the defendants' theory that because of a pre-existing back condition plaintiff had suffered several periods of disability prior to the date of the injury in question.

Plaintiff's testimony showed that he had suffered injuries on three prior occasions, that approximately two years before the injury a work-related injury resulted in his being off work for approximately four months; that approximately a year later another work-related injury to his left elbow and back resulted in his being absent from work for approximately six months; and that several months prior to the occurrence in question he had suffered injuries in an automobile accident which resulted in his being off work for two months. The medical testimony would support the conclusion that ...


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