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Willson v. Pepich

OPINION FILED NOVEMBER 15, 1983.

LAURIE WILLSON, PLAINTIFF-APPELLANT,

v.

DONALD PEPICH ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.

JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Laurie Willson, filed suit against her landlords, Donald and Patricia Pepich, seeking damages for injuries resulting from a fall in the common area outside of their apartment building. The trial court submitted the case to the jury on the issues of comparative negligence, proximate cause and damages. The jury returned its verdict in favor of defendants and against plaintiff. Plaintiff's post-trial motion was denied, and plaintiff has appealed the judgment entered on the verdict in favor of defendants and the denial of her post-trial motion.

Plaintiff, Laurie Willson, shared an apartment with another woman in a two-unit apartment building owned by defendants Donald and Patricia Pepich under a lease beginning in November 1978. With the landlord's permission, she had moved into the apartment 10 to 14 days prior to November 1. On November 4, 1978, plaintiff testified, she fell in the front yard of the building. She said she was walking along a worn path between the driveway and the sidewalk when her foot teetered on something and went off, at which time she fell and felt pain in her ankle. In the apartment, it started to swell, and she put ice on it. In the first part of January she sought medical help. In the summer she saw another doctor, who informed her that the bone was fractured and referred her to a specialist. At the time of trial the left ankle was larger than the right, the heel was hard to the touch, and she could not rise upon the toes of that foot. She testified she was quite active on that foot and was employed driving rental trucks prior to the fall.

On cross-examination, she admitted that she was receiving Social Security disability payments for low blood pressure at and three years prior to the fall. The condition caused lightheadedness or dizziness when she stood from a sitting position, which, she said on redirect, was under control for three months prior to the fall. She said she had no numbness but did have some pain and aches in her legs in that three-year period. She also admitted that, as a diabetic, she had decreased feeling in her legs but had testified on direct that she had no dizziness, blackouts, pain, numbness or vision problems as a result of her diabetes in the three months preceding and following the fall. On the day of her fall, she walked along a path she had walked several times before, was looking down on the ground ahead of her that had dirt, rocks and bumps, teetered on something loose that she was unable to identify, fell and got up and went into the house.

Dr. Kelikian, a treating orthopedic surgeon testified that he first saw plaintiff on September 10, 1979, that she had a crushing of the calcaneus (apparently a smashing of an ankle bone into the heel bone) at that time, and that such injuries are generally trauma-initiated. He said diabetes aggravates such a fracture, and he opined that her condition will not improve and the foot will eventually be amputated. On cross-examination, he stated that he had no way of knowing when the bone was fractured, that the damages he saw in September 1979 could have been increased or worsened by the patient's walking on the fractured bone, that an operation could have been done when the fracture was less crumbled, or even at the time of trial, but that diabetics do not heal well and he would not operate because of the diabetes.

Defendant Donald Pepich testified that he and his son did routine maintenance and yard work on the property. He said that the area of the yard between the driveway and the sidewalk was green grass like the rest of the yard and that there was no worn pathway there. He contradicted the testimony of plaintiff and her roommate that he was promptly informed of the fall.

Kenneth Ferestad, next door neighbor and friend of defendant Donald Pepich, testified that they had agreed to watch each other's property. Until June 1982, the witness testified, he saw the Pepich property every few days and went to the property about once every three to four months. He could not say how many times he observed defendant and his son working on the lawn, and he could not say what the condition of the front yard was in the first week of November 1978. After questioning by defense counsel and the court, and over plaintiff's objections, the witness finally stated he was on the property in fall 1978 and that the area between the gravel driveway and the sidewalk was just grass with no worn areas. Plaintiff's counsel continually objected to the witness' testimony on that subject because it did not specifically pertain to the first week of November, and, on cross-examination, the witness stated that he "would be lying" if he attempted to describe the condition of defendants' front yard at that specific time.

Defendants' last witness, a treating physician, testified that he had treated plaintiff for diabetes since 1971. Over plaintiff's continuing objection, he was allowed to testify regarding plaintiff's diabetic symptoms over the entire course of treatment. Specifically, he said that in 1975 plaintiff had numbness, tingling and pain in both legs and that such a condition can result in imbalance, dizziness or blacking out. He went on to say that those conditions continued throughout her treatment, that she had good times and bad times regarding those conditions, and that they will continue to exist in plaintiff. He said that in 1976 the low blood pressure condition (dizziness in rising from a sitting position or vice versa) began, it was severe in 1976-77, and it is likely to continue in the future. Regarding the November 4, 1978, injury, the doctor said the injury would not aggravate or accentuate plaintiff's diabetes, the diabetes would slow down her healing process, and diabetics can undergo successful surgery for minor, compared to extensive, fractures.

On cross-examination he testified that plaintiff's diabetes was "fairly well controlled" in August 1978 so that she could perform her job as a truck driver, that he did not see her again until February 1979, and that she did customarily see him if her diabetes was moving out of control. Regarding the postural hypotension (low blood pressure), he testified that he recorded in his notes that plaintiff had "[n]o difficulty with postural hypotension" at her August 1978 visit. On redirect, he stated it was possible for plaintiff to have had dizziness and imbalance between her August 1978 and February 1979 visits, but a defense objection was sustained to the question on recross as to whether it was probable inasmuch as she did not come to see him about those problems during that time.

• 1, 2 Plaintiff first contends on appeal that the trial court improperly instructed the jury on the meaning of proximate cause. More specifically, she asserts that the trial court erred in giving defendants' instruction No. 13 rather than plaintiff's instruction No. 11. Both of these instructions are versions of Illinois Pattern Jury Instruction (IPI), Civil, No. 15.01 (2d ed. 1971) ("Proximate Cause-Definition").

IPI Civil No. 15.01 reads as follows:

"When I use the expression `proximate cause', I mean [that] [a] [any] cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]"

Defendants' instruction No. 13 read as follows:

"When I use the expression `proximate cause', I mean a cause which, in natural or probable sequence, ...


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