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Kinsey v. Kolber

OPINION FILED JANUARY 18, 1982.

DAVID S. KINSEY ET AL., PLAINTIFFS-APPELLEES,

v.

WARREN J. KOLBER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. IRVING R. NORMAN, Judge, presiding.

PRESIDING JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Plaintiffs David S. Kinsey and Stephen D. King filed separate suits against defendant Warren J. Kolber alleging that defendant negligently operated a station wagon in which they were passengers causing Kinsey to become paraplegic and King to sustain brain damage. The suits were consolidated for trial, and after a jury trial, judgment was entered for Kinsey in the amount of $1,569,000, and for King in the amount of $465,000. Defendant raises the following issues on appeal: (1) whether the trial court erred in refusing to direct a verdict for the defendant based upon the Iowa guest statute; (2) whether the trial court erred in allowing the attorneys for the plaintiffs to question the jurors during voir dire concerning a specific verdict amount and their experience in the insurance business; (3) whether the verdicts were excessive and against the manifest weight of the evidence; and (4) whether the trial court erred in admitting certain items of evidence which either individually or cumulatively denied defendant a fair trial.

For the reasons set forth herein the judgment of the circuit court is affirmed.

FACTS

At trial Officer Gary Hoskins, an Iowa State trooper, testified that on May 14, 1976, he received a call to investigate an accident that happened on the bridge crossing the Cedar River in Iowa on Interstate 80. He described the bridge where the accident occurred as consisting of two westbound lanes, each 12 feet wide. On the outer edge of each lane there is a shoulder three feet in width, and a nine-inch curb from the shoulder area upon which guard rails sit on either side of the bridge. Officer Hoskins testified that when he arrived at the scene of the accident he observed that traffic was backed up in the right lane, and that there was a car stopped facing eastbound in the westbound lane in the slower traffic lane. He testified that he also observed that some bridge railing had been taken out. Other officers at the scene informed him that a car had gone off the bridge railing and was down below in the embankment. He proceeded below with first aid equipment and blankets, where he observed a car with two subjects pinned inside. Stephen King was in the front passenger seat, and David Kinsey was in the rear of the car. The top had been mashed down and the doors would not open. King complained of a headache and Kinsey complained that his lower torso was bothering him. Defendant identified himself as the driver and indicated that he was not hurt. A local rescue unit transported the parties to the University of Iowa Hospital in Iowa City, Iowa. Officer Hoskins testified that he looked over the other car involved in the accident, which was operated by Dorothy Campbell, and observed damage to the entire right side of her vehicle. Measurements taken by Officer Hoskins at the scene of the accident showed that at a point close to the middle of the bridge, a tire on the Kolber car had hit the nine-inch curbing after which the car travelled 23 feet, scraped 179 feet of bridge railing, took out 112 feet of bridge railing, and then travelled on top of the bridge railing for 39 feet before landing in the embankment 27 feet below the bridge.

Russell Kennell testified that on May 14, 1976, as he was driving westbound in the right lane on Interstate 80 several hundred yards from the Cedar River bridge, he observed a semi-truck in the right lane and a station wagon in the left lane on the bridge. The car was behind the truck, but it appeared to be pulling up to pass the semi-truck on the left. Both the truck and the station wagon appeared to be going faster than he was, and he estimated his speed at about 60 to 62 miles per hour. He saw the truck move from the right lane to the left lane and come very close to hitting the car. The car swerved back to the right and hit the side of the bridge. As soon as the car hit the bridge there was a cloud of dust and he saw nothing else. He stopped his vehicle at the beginning of the railing that had been sheared off. By this time the dust had cleared and he observed the Campbell car facing south across the two lanes of traffic. He also observed damage to the right side of the Campbell car. The truck had left the bridge and was continuing on down the interstate. When he looked under the bridge for the station wagon he saw it sitting on its wheels on the riverbank with the top squashed down. He moved the Campbell car out of the way and started traffic going.

Dorothy Campbell testified that she was involved in an accident on May 14, 1976, on Interstate 80 as she was proceeding westbound in the right-hand lane on a bridge. Traffic was pretty heavy. She was going 50 miles per hour. Just before the accident occurred she glanced up into the rear-view mirror and saw the car she was involved with in the accident coming pretty fast as she was approaching the bridge. She did not see a truck. After she got on the bridge she saw the car whip right in behind her. The car struck her on the right-hand side. She saw a "bunch" of dust and felt her car being pulled toward the railing. She took her foot off the accelerator and was just steering, trying to keep from going over the bridge. Her car did not slow down. It felt like the car released her, and she skidded to a stop. When she stopped she was facing the way she had come across both lanes. The side of the car was dented and scraped from the back to the front. She went over to the railing where it had been torn out and looked down. She saw a car with some boys in it and one boy walking around. Mr. and Mrs. Kennell came up. Mr. Kennell later moved her car.

David Kinsey

Claire Kinsey testified that she is David Kinsey's mother, and that David was born October 29, 1959. She stated that prior to May 14, 1976, David's health was excellent. On May 14, 1976, David was 16 years old, he was six feet two inches tall, weighed over 200 pounds, and was in his junior year of high school at Glenbrook North High School in Northbrook, Illinois. About 5:30 p.m. she received a phone call from Mrs. King that the boys had been in an accident. She flew to Iowa City, Iowa, where David was in the intensive care unit at the University of Iowa Hospital. David was conscious, but he was unable to communicate because he was on a life-support system. He had a tube down his throat with a respirator breathing for him. He had just come out of surgery and had a 14-inch incision down his front. Doctors informed her that David's spleen had been removed, and that he had a torn diaphragm. She was also told that his back was broken, and that he was paralyzed. Back surgery was delayed about three weeks because David had wounds on his back which had to heal first. He was in a Stryker bed until after the back surgery. He was then put into a regular bed, but was in a complete body shell. David was a patient at the University of Iowa Hospital until July 2, 1976. The family bought a station wagon that could hold a full-sized mattress to transport David home. The day after he arrived home his leg swelled up. This was diagnosed as a blood clot. He was admitted to the Rehabilitation Institute and transferred to Wesley Hospital for treatment which lasted one week, and then transferred back to the Rehabilitation Institute. A week later he was again transferred to Wesley Hospital for treatment of urinary problems. At this time David had an in-dwelling catheter. When the problems were resolved he was sent back to the Rehabilitation Institute where he remained until October 8, 1976. David's weight had dropped to 131 pounds. He had trouble with IV's in his arm; he could not straighten his arms. At the Rehabilitation Institute he worked with weights to strengthen his arms, and they worked with extension of his arms so he could straighten and use them both. He was taught to dress himself. He was trained to tolerate sitting up straight without blacking out. His parents had two ramps built so he could get in the front door. David returned home and completed his senior year of high school. He could not tolerate sitting up longer than 10:30 a.m., so he had special permission to go home early every day. He had to check in at the Rehabilitation Institute weekly, and he went back to the Rehabilitation Institute for a decatheterization program in January which lasted five weeks. He was in a wheelchair. The in-dwelling catheter was removed, and David had to catheterize himself four to five times a day. He also eventually managed his bowels by himself by manipulation. David entered the University of Arizona in August 1977. He returned home after the first semester and was treated at Glenbrook Hospital for mononucleosis and strep throat. He also had a stone in his bladder. The bladder stone was removed in March 1978 by Dr. Stanisic at the University of Arizona Hospital. In August 1978, Dr. Ignatov performed a sphincterotomy at Evanston Hospital to remove the sphincter from the urinary canal. After the surgery David had no control over urination and needed a constant bag attachment. In July 1979, he got a blood clot in his leg again. He was treated at the University of Arizona Hospital. The rods in his back broke and had to be removed in August or September 1979. In March 1980, David was hospitalized for testing to determine if he could reproduce. The result was that he cannot.

John Kinsey, father of David Kinsey, testified that he had to ramp the front of the house to accommodate David in his wheelchair. He had to make a box spring replacement for David's old box springs so he could transfer from bed to wheelchair as well as to stabilize his back. He also had to raise the table legs so David could sit at the table.

David Kinsey testified that he is a junior at the University of Arizona studying accounting. He testified that he was lying down in the second seat of the station wagon on May 14, 1976, and that Warren Kolber was driving. The first knowledge he had of anything unusual happening was when he heard Stephen King yell, "Look out!" He sat up and caught a glimpse of a truck. The next thing he remembered, the car had settled on the ground and he was pinned. In high school he was a varsity soccer player and an all-star baseball player. He also played hockey and intramural basketball and softball. Now he lifts weights and swims.

The evidence deposition of Dr. Bruce Sprague, an orthopedist, was read into the record. Dr. Sprague first saw David Kinsey on May 14, 1976, in the intensive care unit at the University of Iowa Hospital. When he saw David he had a fractured dislocation of T 12 on L 1, the junction between the thoracic spine and the lumbar spine, secondary to a motor vehicle accident which had occurred that day. He had a sensory level of T 12 with no sensibility below. He had no motor function or reflexes below the T 12 level. He testified that David was paralyzed and would not be able to move his legs. He would not be able to move his limbs except for some flexion of the hips with some innervation from up high transmitted down. The paralysis affects the ability of the sphincter to contract and the ability of David to bear down to evacuate his bowel, making him incontinent. David is unable to contract his bladder to empty it. The general surgeon had examined David and found a splenic rupture and a rupture of the diaphragm. The spleen had been removed and the diaphragm had been repaired. David was scheduled for surgery to realign the spinal column using Harrington rods and bone graft to stabilize the fracture and get him out of bed and started on his rehabilitation process. The surgery was postponed when an abrasion was discovered on his back. David was returned to his Stryker frame and started on skin care to clean up the area of the abrasion. Dr. Sprague performed the surgery June 3, 1976. He reduced the fracture dislocation by use of Harrington rods and then bone grafted from T 12 to L 2. David was encased in plastic acrylic shells to immobilize the trunk during the early months of rehabilitation. Following surgery he was to start rehabilitation to get him into a wheelchair and teach him to transfer from wheelchair to bed and bed to chair. The in-dwelling catheter was removed and David was taught self-catheterization. He was taught to inspect his skin with mirrors to prevent breakdowns and pressure sores. He was instructed on bowel care. He was instructed on physical therapy on upper extremity exercises. He was released July 2 with an outpatient appointment at the Chicago Rehabilitation Institute. David's paralysis is permanent. His spinal cord has been injured beyond the ability to recover.

Dr. Vinod Saghal testified that he is a neurological and rehabilitation specialist. David Kinsey became his patient in July 1976, when he was transferred to the Rehabilitation Institute from the University of Iowa Hospital. He was examined and his paraplegia was confirmed. He was paraplegic from the groin down with sensory loss in that area. He was at the Institute for 3 1/2 months. While there David developed a urinary tract infection which was treated; he developed thrombophlebitis which was treated; and, he developed a pulmonary embolism which was also treated. David could not sit up straight in a wheelchair. He had to start up slowly, first 30 degrees, then 45 degrees, up to 90 degrees. He started training in a bowel program and intermittent catheterization. The thrust of his rehabilitation program was upper extremity strengthening, trunk strengthening, sitting, balancing, transfer from bed to wheelchair, wheelchair to commode, wheelchair to car, car to wheelchair, dressing, undressing, fixing simple lunches, and other activities of daily living. He also had psycho-social training. David will require routine visits to a physician who looks at skin condition, bladder condition, range of motion, makes sure his upper extremities stay strong, and assesses his vital capacity and his attitude. He can expect to spend 30 to 35 days a year in the hospital. The spinal-cord-injured person is unable to put in an eight-hour work day, and his work schedule is punctuated by hospitalizations.

Dr. Thomas Stanisic, a urologist, testified that he first saw David Kinsey on February 8, 1978. He observed that David was in a wheelchair, and was paralyzed from the waist down. He reviewed X rays sent to him by Dr. Ignatov, and he scheduled David for surgery to remove a bladder stone. When he first saw David he was passing a rubber tube into his penis about four to six times a day to release the urine. In addition, because the muscle that controlled the urine had been damaged, he was wearing a device over the end of his penis so that accidents didn't occur in public and embarrass him. The sphincter that controlled his bowel was also not working, and at that time David tried to keep his stools very hard and would stimulate his bowels with a gloved finger. He also used suppositories. The bladder stone was removed March 13, 1978. David was hospitalized until March 18 because he suffered a urinary tract infection at the time of the surgery because of the stone. Dr. Stanisic stated that urinary tract infections are common in paraplegics. He next saw David on July 12, 1979, but prior to that time David had seen Dr. Ignatov and had the sphincter muscle cut. David was complaining of pain and swelling in his left leg which was diagnosed as thrombophlebitis, a common complaint in paraplegics. David's history revealed that he had been treated twice before for the same condition. David was hospitalized for treatment. Dr. Stanisic saw David again in August 1979, when he was admitted to have the Harrington rods which had broken, removed from his back. By this time the bone graft performed at the Iowa hospital had taken and his spine was stable. The spinal cord, however, was damaged. After the Harrington rods were removed David developed a urinary tract infection due to the surgery and the medicine he needed for the pain. Since he has no sensation Dr. Stanisic stated that David should see a doctor every three months and have his urine examined for evidence of infection. He should catheterize himself twice a month to make sure he is emptying his bladder, and he should have his kidneys X-rayed twice a year. He saw David again September 18, 1979, when David had another infection in his bladder, which was treated with oral antibiotics. At that time David questioned him about his sexual functioning, as he had not had an erection since the accident. David was hospitalized for tests, and it was determined that an organic lesion was causing his impotence. He testified that in about 30% of the cases when one cuts the muscle that controls the urine, a scar forms and it will close the muscle down again, so that David may have to have a repeat operation. He also may have another stone in his bladder which may have to be removed. His kidneys may start to deteriorate, but this is unlikely.

Kinsey's attorney introduced into evidence the life table published by the United States Department of Health, Education and Welfare, showing Kinsey's life expectancy to be 51 years and six months. He also read into the record a stipulation with defendant that the amount of Kinsey's medical bills and expenses to date amount to $69,036.36.

Stephen King

Joyce King testified that she is the mother of Stephen King, and that Stephen was born June 30, 1959. She stated that up until May 14, 1976, Stephen was a normal healthy boy. On that date he was a junior at Glenbrook North High School in Northbrook, Illinois, where he was a good student. About 6 p.m., on May 14, 1976, she received a call from Mr. Kolber that the boys had had an accident in Iowa. The Kolbers drove her to the hospital, where she saw Stephen in the intensive care unit. He was comatose and unconscious. He was hooked up to many machines, a respirator, an EKG, a nose tube, intravenous in his arms, and a catheter. He was lying perfectly flat and perfectly still. They had performed surgery to insert a screw in the skull of the brain. The screw was approximately four inches long, and it was sticking up through his head. It was to measure the intra-cranial pressure of the brain and to put medication into the brain. He was a patient at the hospital until June 10, 1976. He was unconscious for one week, and in a semi-coma for two weeks. When Stephen became conscious he did not know who anyone was or where he was. He would say words, but they didn't mean anything, and he would thrash around in bed. On June 10 he was transferred to Highland Park Hospital in Highland Park, Illinois, where he stayed for 10 days. Stephen was then transferred to Evanston Hospital where he stayed for two weeks in the rehabilitation unit. When he went to the rehabilitation unit he still did not know who or where he was or who anyone else was. He couldn't walk, talk, or go to the bathroom. He had physical therapy, occupational therapy, and speech therapy three times a day. They were told that he had severe brain injury. Stephen had a back fracture and many cuts and bruises. At the University of Iowa Hospital he was fitted for a back brace which he wore until the middle of July whenever he was not perfectly flat in bed. When Stephen returned home on July 3, he still did not know who he was, who his family was, or recognize his friends or the house. He was using a three-pronged cane. He also had bedwetting problems until the middle of July. He didn't know the words for anything and he had to relearn everything. Mrs. King took Stephen to Evanston three times a week for speech therapy, and she worked with him at home using flash cards until the middle of September. Stephen also had occupational therapy where he worked with pegs and puzzles, and physical therapy to try to control the spasticity in his leg. He did exercises at home as well. The outpatient physical therapy continued for over one year, and at home it continued for three years. Stephen returned to school in September for three hours in the mornings, and he had a tutor at home two days a week. Stephen completed his senior year of high school and enrolled at Oakton College in the summer of 1977 to relearn all his math. He stayed there for three more semesters taking remedial work in English and math. He was enrolled at ...


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