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Fisher v. Patel

OPINION FILED FEBRUARY 13, 1981.

AILEEN FISHER, PLAINTIFF-APPELLANT,

v.

NARENDRABHAI PATEL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES H. FELT, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This was a suit for damages arising from personal injuries sustained by plaintiff as a result of a rear end collision with the automobile in which she was riding as a passenger. The jury found defendant liable, but awarded her zero damages pursuant to a "zero verdict" instruction. On appeal, she contends (1) the trial court committed reversible error by tendering a "zero verdict" instruction to the jury; (2) the jury verdict of zero damages was against the manifest weight of the evidence; and (3) the trial court erred in denying her motion for a new trial on the issues of damages. We reverse and remand for a new trial. The pertinent facts follow.

Plaintiff testified that on October 28, 1974, she was on her way to a doctor's appointment when the automobile in which she was riding was struck from the rear as it prepared to enter Lake Shore Drive. Upon impact, her body was thrown backwards and forwards and she sustained injuries to her head, neck and knees. Plaintiff had injured her neck in an automobile accident approximately 14 years prior to the present occurrence. She indicated that she had not experienced any discomfort from that accident since 1970.

After the instant occurrence, she went to the hospital to see her internist, Dr. Aren. He sent her to the X-ray department but it was closed. She returned to Dr. Aren the following day and he prescribed medication. She also visited Dr. Leonard Smith, an orthopedic surgeon, who prescribed various forms of therapy to relieve the pain in her neck and back, and Dr. Allan Hirschtick, who also examined her.

Steven Fisher, plaintiff's son, testified that he was driving northbound on Lake Shore Drive when he noticed that there was an accident. He recognized his mother in one of the vehicles involved and went directly to her. He saw that she was visibly shaken, had a fairly large bump on her forehead and one of her knees was badly scraped. The vehicle behind the one his mother was in had damage to its front grille and bumper. The vehicle in which his mother was riding had its rear trunk compressed to the point that it was against the rear windshield of the car. He subsequently took his mother to the hospital.

Officer Leonard Purlosky testified that he investigated the accident in question and noted that defendant's vehicle was not drivable as it had sustained extensive front end damage, and the rear of plaintiff's vehicle was nearly at the trunk.

Dr. Smith testified that he saw plaintiff on November 13, 1974. He took her medical history, conducted an examination and ordered X rays. His findings indicated there was tenderness on palpation in the lower cervical spine and loss of the cervical lordotic curve, which is commonly associated with muscle spasm. It was his opinion that the trauma sustained in the October 1974 accident had a causal relationship with some loss of the lordotic curve.

Dr. Hirschtick testified that he examined plaintiff in May 1978 and in June 1979 for an evaluation of her condition. He noted that plaintiff had a degenerated disc condition which existed prior to the October 1974 accident; however, that accident might or could have aggravated this present condition. He concluded that the accident of October 28, 1974, caused plaintiff's pain to change from an intermittent one to a constant daily one.

Plaintiff submitted three medical bills into evidence; however, this did not include the bill from Dr. Aren, whom she saw immediately after the accident.

Defendant testified that he struck the rear of the vehicle in which plaintiff was riding, but he did not see any damage to it or the Volkswagen, which was struck when the impact pushed plaintiff's vehicle forward. His vehicle was repaired by a private mechanic and the cost was approximately $250 for parts and labor.

At the jury instruction conference, defendant tendered a zero damages instruction which read as follows:

"The plaintiff has the burden of proving each of the following propositions:

First, that the plaintiff was injured.

Second, that the conduct of the defendant was a proximate cause of the ...


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