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Harris v. Day





Appeal from the Circuit Court of McLean County; the Hon. James A. Knecht, Judge, presiding.


Defendant, Gerald Day, appeals from a judgment entered on a jury verdict finding for plaintiff, Bruce Harris, and awarding damages of $16,000 in his suit for recovery of personal injuries. We affirm.

On the afternoon of May 15, 1973, plaintiff, age 14, was playing tennis with a friend, Jay Allen, on tennis courts> which were bordered on the north by Gregory Street, a four-lane road in Normal. Gregory carries east-west traffic and is divided by a three-foot median. During the match Allen hit a tennis ball over the fence and it landed on Gregory Street. Plaintiff went into the street to retrieve the ball and was struck on the hip and knee by defendant's auto which was eastbound on Gregory. Only the parties to this suit observed the event, and needless to say their testimony differs.

The plaintiff testified that as he left the courts>, he noticed a car traveling on Gregory Street some 600 to 700 feet away. He crossed the sidewalk and trotted to the center line of the two eastbound lanes where the ball was located. While bent over he heard the sound of a car, froze for a second, turned around, and saw the car several feet away. He tried to jump out of the way, but was struck by the right front corner of the defendant's auto in the southernmost, eastbound lane.

Defendant testified that he was driving his vehicle towards Main Street on Gregory and that he was in the southerly lane of the portion of the road for eastbound traffic. He stated that his car was 100 to 150 feet from plaintiff when he first saw the plaintiff and estimated his car may have been traveling at approximately 25 miles per hour but not over 30 miles per hour. When he first saw plaintiff, plaintiff was trotting at approximately jogging speed into the street. He went over to within at least two or three feet of the concrete median and at that point leaned over to pick up the tennis ball. This was in the northern portion of the two eastbound lanes, and closer to the median than the center of the eastbound lanes. When defendant first saw plaintiff coming out in the street, defendant applied his brakes and testified he slowed down to perhaps 20 miles per hour. Plaintiff picked up the tennis ball with his back toward defendant, and then turned around and looked at defendant's car. Defendant then took his foot off the brake because plaintiff was stationary. Defendant thought plaintiff had seen him and would wait until defendant has passed. Defendant testified that plaintiff remained motionless for an instant and then began running back across the street to the curb. Defendant slammed on his brakes, leaving skid marks approximately 40 feet long but was unable to avoid a collision. Defendant testified that he was unable to swerve or honk his horn because there just wasn't time.

The collision threw plaintiff into the grassy portion of the shoulder. Plaintiff testified that his leg swelled up to fill his sweat pants and felt as if it were on fire. Plaintiff's leg was immobilized by ambulance personnel, and he was taken to Brokaw Hospital in Normal where he received three or four stitches and remained for five days. When he left the hospital he was on crutches and spent a week in physical therapy. He could not get out of bed for two or three days after leaving the hospital and remained on crutches for approximately three weeks after leaving the hospital. He did, however, go back to school and was able to finish his freshman year in high school.

Plaintiff began his sophomore year in the fall of 1973 and went out for the football team after Dr. Lyman, his treating physician, gave him a physical examination which was required for participation. No X rays or tests were done on the knee, but plaintiff told the doctor that the knee was stiff. In late summer practices, which were double sessions, plaintiff's knee was hit. It was sore for a couple of days, and he then returned to practice. Plaintiff practiced with the team two to 2 1/2 months that fall, but ultimately quit because he could not keep up.

In April 1975, plaintiff was involved in an automobile accident when his car slid on ice and collided with another vehicle. He received a concussion but, according to plaintiff, neither his right leg nor any part of his lower body was injured. Although plaintiff testified that there were no lower body injuries, Dr. Van Ness testified that plaintiff received ultrasound treatments on his knee following the accident. The doctor did not specify which knee received the treatment, and plaintiff attempted to impeach the doctor's refreshed collections since the records upon which he relied did not state which part of the body received the ultrasound. Defendant then impeached plaintiff's testimony that his legs were not injured in this automobile accident with his pretrial deposition in which he stated that he was in an accident on April 3, 1975, and received injury to his right knee and leg.

In addition to the above incidents, plaintiff testified that his knee had gone out more than 20 times since the accident in May of 1973. These incidents caused pain, limping and sometimes required the use of crutches. In late September of 1975, plaintiff had an operation on his knee because it kept going out, causing severe inconvenience by its persistent interruptions of his day-to-day life. The operation was performed by Dr. Terry Noonan, who removed some cartilage and tightened his ligaments. He was in the hospital for about a week, then remained at home for about a week and one-half before going back to school.

Dr. Terry Noonan, an orthopedic surgeon, testified that he examined plaintiff on September 3, 1975, in relation to what plaintiff told him was an unstable knee caused when he was hit by a car in 1973. Noonan X-rayed, observed, and manipulated the knee and found that there was abnormal movement of the knee from side to side, apparently because of an old injury to a knee ligament. There was also an abnormal forward movement when the leg was twisted outwards, and some calcification in the knee. These conditions observed in plaintiff's right knee appeared to have been the result of a traumatic injury. On cross-examination, Noonan testified that plaintiff did not inform Noonan of the automobile accident he was involved in earlier in 1975, nor that plaintiff had broken his left leg while playing basketball in the spring of 1974. Noonan testified that if the right knee was also injured in an accident in April 1975, as well as May of 1973, he would not be able to tell which accident caused the conditions in the knee which he observed in his examination in September of 1975. Noonan examined plaintiff several times subsequent to the operation. In November of 1978, Noonan noted some early arthritic changes in the knee which might be expected to be progressive in nature and which could become painful. Based on his examinations of plaintiff, Noonan believed that plaintiff would suffer pain in the future, would need medical care based on intermittent discomfort, and could possibly need additional reconstructive surgery. He was of the opinion that the instability in plaintiff's knee and his arthritis would be permanent.

Another orthopedic surgeon, Dr. Gerald Bratberg, examined plaintiff for the first time in March of 1981. He testified that the injury to the knee was traumatic in origin, and that it resulted from an injury rather than being a congenital problem, or a problem occurring from normal wear. Bratberg stated that the only history of plaintiff's knee related to him was that plaintiff was struck by a car as a child. He was not told of any other injuries. He stated that he would have no way of knowing what caused the onset of the knee condition but would not expect a knee injury of this kind to result from merely slipping and falling on a knee while engaged in normal activity. The injury found would usually require a severe blow to the outside part of the knee. Bratberg also removed some torn cartilage from plaintiff's knee in 1981. He was of the opinion that plaintiff would suffer pain in his right knee in the future and that the looseness of his ligaments, and arthritis were permanent conditions.

On the issue of damages, Professor Alan Dillingham, a labor economist and head of the economics department at Illinois State University, testified regarding the present value of future earnings for plaintiff. He did this using the minimum wage of $3.35 per hour and the assumption that this minimum wage would increase at 6.2% per year, compounded annually, since this rate of increase was the average annual rate the minimum wage had increased since its inception in 1938. He testified that the expected work life for a 23-year-old male would be approximately 39 years, and that the average working period per year for a full-time American worker would be 50 to 52 weeks. Assuming a five-week work loss per year by an unskilled laborer, it could be expected that such a laborer would lose about 15% of his income through his work life. Dillingham testified that the present value of lifetime earnings for a 23-year-old male at the minimum wage under the assumption that it would increase at 6.2% per year would be $119,841. Present value of the future lost earnings for a 23-year-old male who loses 10% of his work per year throughout his work life is $17,976. Medical bills of approximately $3,000 were also admitted into evidence.

Defendant's first argument on appeal is that the jury's verdict is against the manifest weight of the evidence, primarily for the reason that the evidence fails to disclose that defendant was not exercising due care. Since this case was tried subsequent to our supreme court's decision in Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886, the fact that plaintiff was partially at fault would not require a reversal of the jury's verdict.

• 1-3 Verdicts and judgments are not against the manifest weight of the evidence unless a conclusion contrary to the jury's is clearly evident, plain, and indisputable. (Didier v. Jones (1978), 61 Ill. App.3d 22, 377 N.E.2d 572.) Where there is a conflict in the testimony, we will not substitute our judgment for that of the trier of fact whose function it is to determine the credibility of the witness' testimony, and the inferences to be drawn from that testimony. We cannot say that the opposite conclusion is clearly evident. Defendant ...

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