APPEAL from the Circuit Court of St. Clair County; the Hon.
ALVIN H. MAEYS, JR., Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Plaintiff, Steven Lynn Powers, brought this action in the Circuit Court of St. Clair County under the Federal Employers' Liability Act to recover damages for injuries to his back sustained as a result of the negligence of the defendant, Illinois Central Gulf Railroad Company. Judgment was entered on a jury verdict for $300,000. Defendant does not contend that it was not negligent, but argues that the jury was erroneously instructed concerning damages, that the itemized verdict form used was improper, and that plaintiff's closing argument concerning damages was inflammatory and prejudicial.
This case presents the difficult problem of whether a personal-injury plaintiff should be allowed to recover damages for the "nature, extent and duration of the injury" (Illinois Pattern Jury Instructions, Civil, No. 30.02 (2d ed. 1971) (hereinafter IPI Civil) as a separate element of damages, in addition to the more specific elements of damages enumerated in IPI Civil Nos. 30.03 through 30.09. While this question may have been inherent in the Illinois Pattern Instructions on damages, it has been brought into focus by the enactment of section 65.1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 65.1), which requires that verdicts be itemized "* * * to reflect the monetary distribution among economic loss and non-economic loss, if any."
Over defendant's objection, the court gave the following instruction tendered by the plaintiff:
"If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted, in whole or in part, from the negligence of the defendant:
The nature, extent and duration of the injury.
The disability resulting from the injury.
The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.
The value of earnings lost and the present cash value of earnings reasonably certain to be lost in the future.
Whether any of these elements of damages has been proved by the evidence is for you to determine."
Except for the use of the phrase "in whole or in part," which will be discussed later, this is the standard instruction concerning measure of damages for personal injury (IPI Civil No. 30.01) completed by the insertion of elements of damages thought to be applicable (IPI Civil Nos. 30.02, 30.04, 30.05, 30.07).
Also over defendant's objection, the jury was provided the following verdict form:
"We, the Jury, find for the plaintiff and against the defendant. We assess the damages as follows:
Nature, extent and duration of the injury $ ______
Disability resulting from the injury $ ______
Pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injury $ ______
The value of earnings lost and the present cash value of earnings reasonably certain to be lost in the future. $ _____"
The court accepted this verdict form after hearing argument from the parties over the meaning of the requirement of section 65.1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 65.1) that personal injury verdicts be itemized to reflect monetary distribution among economic and non-economic loss. A pattern form for itemized verdicts has not been adopted. The jury awarded $50,000 for each of the first three elements of damages and $150,000 for lost earnings.
Defendant contends that the "nature, extent, and duration of the injury" is not a separately compensable element of damages, apart from elements such as disability and pain and suffering. Defendant further argues that the itemization of the elements of damages on the verdict form unfairly invited the jury to return separate awards for duplicitous elements of damages.
These contentions are not without merit, and the double recovery issue is clearly presented on the record before us. The elements of damage listed in the measure of damages instruction were itemized as entirely independent in the verdict form, and the jury awarded a substantial sum for the nature, extent, and duration of the injury, in addition to the like awards for disability and pain and suffering.
IPI Civil No. 30.01 provides that if the jury finds for the plaintiff on the question of liability it must then fix the amount of money which will reasonably and fairly compensate him for "* * * any of the following elements of damage * * *." For personal injury damages, the elements which have a basis in the evidence are to be selected from among IPI Civil No. 30.02 through IPI Civil No. 30.09. IPI Civil No. 30.01 further provides that the jury must determine whether any of these elements has been proved. The elements enumerated for possible insertion in IPI Civil No. 30.01 are the nature, extent and duration of the injury (30.02), aggravation of any pre-existing ailment or condition (30.03), disability and disfigurement (30.04), pain and suffering (30.05), medical expense (30.06), lost earnings or profits (30.07, 30.08), and caretaking expense (30.09).
The "Notes on Use" of IPI Civil No. 30.02 state that it is difficult to imagine an injury case in which the insertion of the phrase "[t]he nature, extent and duration of the injury" into IPI Civil No. 30.01 will not be appropriate. However, it is also difficult to conceive of a logical basis for placing a separate value on elements such as disability and pain and suffering, and nature, extent and duration of the injury in a case involving a back injury. Rather, it would seem that the jury must consider the nature, extent, and duration of the injury as a means of determining the appropriate amount to award for elements such as disability and pain and suffering. A commentator has noted this problem in our pattern instructions and, consistent with the practice in other jurisdictions, has recommended that the nature, extent, and duration of an injury be treated as the measure of the compensable elements of damage rather than as a compensable element in itself. Graham, Pattern Jury Instructions: The Prospect of Over or Under Compensation in Damage Awards for Personal Injuries, 28 DePaul L.J. 33, 53-58 (1978).
The plaintiff refers us to the "Comment" on IPI Civil No. 30.02, which states that "[t]he nature and extent of an injury are recognized as a separate element of compensable damages in Illinois," citing Donk Brothers Coal & Coke Co. v. Thil (1907), 228 Ill. 233, 241, 81 N.E. 857, 860; McDaniels v. Terminal R.R. Association (1939), 302 Ill. App. 332, 350, 23 N.E.2d 785, 792, and Sprickerhoff v. Baltimore & Ohio R.R. Co. (1944), 323 Ill. App. 340, 351, 55 N.E.2d 532, 537-38. These opinions generally approved instructions that the jury consider the nature, extent, and duration of injuries together with factors such as disability and pain and suffering. However, the instructions involved did not actually state that nature, extent, and duration of the injury should be considered as a separate element of damages, as do the IPI instructions, and the decisions do not support a separate recovery on this ground apart from other compensable elements of damage. In McDaniels v. Terminal R.R. Association the defendant apparently contended, among other things, that the instruction tended to "pyramid" various elements of damage so as to create passion and prejudice in the ...