Appeal from the Circuit Court of Cook County; the Hon. William
Cousins, Jr., Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
___ N.E.2d ___ This is an appeal pursuant to Supreme Court Rule 306 (87 Ill.2d R. 306) from an order of the trial court granting defendant a new trial in a negligence action on the sole ground that plaintiff's counsel used an improper per diem formula in arguing the amount of damages to be awarded for future pain and suffering. The only issue before us is whether the trial court abused its discretion in ordering a new trial.
Plaintiff brought the instant action seeking recovery for personal injuries allegedly sustained when she fell on a sidewalk owned and maintained by defendant. After a trial on the issues of liability and damages (no transcript of which appears in the record), the jury found for plaintiff and awarded her $79,816 in damages. In its post-trial motion, defendant sought in pertinent part a new trial on six specified grounds: that plaintiff's counsel improperly used a mathematical formula in arguing that plaintiff should be awarded $1,000 per year for 49 years of future pain and suffering; that plaintiff's counsel should not have been allowed to use a diagram of the scene during closing argument; that plaintiff failed to prove that it owned the sidewalk in question; that plaintiff's counsel improperly argued loss of income as an element of damages; that plaintiff's counsel asked leading, immaterial, and irrelevant questions of an expert witness; and that plaintiff failed to prove that the alleged defect in the sidewalk was the cause in fact of her injury.
After hearing arguments on the motion, the trial court addressed each point in detail, noting that the arguments concerning use of the diagram and of leading questions were without merit; that there was testimony which, if believed, would support the jury's findings with regard to loss of income and the cause in fact of the injury; and that there was no merit to the argument that plaintiff failed to prove defendant's ownership of the sidewalk. *fn1 It therefore denied the motion as to the above points; however, it found that counsel's remarks concerning damages for future pain and suffering "amounted to" a per diem argument, and ordered a new trial on the issues of liability and damages. Thereafter, we granted plaintiff's petition for leave to appeal.
Before reaching the ultimate question of whether the trial court abused its discretion in ordering a new trial, we must first examine the basis for its ruling; that is, the propriety of the argument in question. Defendant's post-trial motion was predicated upon the following remarks:
"PLAINTIFF'S COUNSEL: I say to you, ladies and gentlemen, that if you calculated for her pain and suffering — here is a woman who takes Tylenol every day, three times a day. She has roughly 49 years of pain. If you calculate a total of $49,000 for 49 years, you think about that.
If you were to be told that you are going to get $1,000 to take Tylenol once a year and to take — .
DEFENSE COUNSEL: Objection, your Honor. That argument is in the nature of per diem, and highly inappropriate.
COURT: The Court will indicate counsel is making argument. The jury will make the findings, and counsel may continue with argument.
PLAINTIFF'S COUNSEL: I believe that a fair figure for her would be $49,000."
The trial court found that this argument amounted to the type of mathematical formula found improper by the supreme court in Caley v. Manicke (1962), 24 Ill.2d 390, 182 N.E.2d 206, where plaintiff's counsel asked the jury to award $1 per hour for pain and suffering during the first two years after the accident, for a total of $11,680; $10 per day for the remaining time prior to trial, for a total of $5,100; and $1 per day for future pain and suffering which, based on a life expectancy of 24.52 years, totaled $8,760. (Caley v. Manicke (1961), 29 Ill. App.2d 323, 333-34, 173 N.E.2d 209, 214.) In reversing the judgment for plaintiff and remanding for a new trial, the supreme court noted that, while suggestion of a total monetary award for pain and suffering is proper, reducing the argument to a mathematical formula is misleading (24 Ill.2d 390, 394, 182 N.E.2d 206, 209) because such formulae produced "an illusion of certainty" where none existed, and therefore might tend to discourage "reasonable and practical consideration" (24 Ill.2d 390, 393, 182 N.E.2d 206, 208).
• 1 The trial court acknowledged that the argument in question here was "less than" the remarks found improper in Caley. We would go farther, and state that Caley is distinguishable from the instant case. Plaintiff's counsel here did not use any kind of mathematical formula; i.e., he did not suggest that plaintiff's future pain and suffering had a value of $1,000 per year, and request that the jury multiply that number by plaintiff's life expectancy. Instead, he asked the jury to think about awarding plaintiff $49,000 for 49 years of pain and suffering. Counsel may properly suggest a lump sum figure for pain and suffering (Caley), and may make reference to life expectancy in conjunction therewith (Thompson v. Lietz (1981), 95 Ill. App.3d 384, 420 N.E.2d 232). It does appear that counsel was about to follow this request with a per diem argument; however, he promptly abandoned that line of argument when defense counsel objected thereto, and no per diem or similar mathematical argument was ever made.
• 2 Defendant apparently concedes that there was no express per diem argument, since it argues merely that "plaintiff's attorney explicitly told the jury that plaintiff should be awarded $49,000 in damages for pain and suffering for her 49-year life expectancy. The mathematical formula he proposed was glaringly transparent. A child could readily decipher a formula of $49,000 for 49 years to be an award of $1,000 per year." In effect, then, defendant would have us hold that it is improper to suggest a total award for pain and suffering which is easily divisible by the plaintiff's life expectancy, lest the jury perceive therein some mathematical relationship between the amount requested and life expectancy. We are not aware of any cases which interpret Caley as prohibiting any relationship between life expectancy and the amount of damages requested, nor do we believe that such a broad interpretation is possible or logical. A plaintiff's life expectancy is an important element to be considered in determining an award for future pain and suffering (see Parnham v. Carl W. Linder Co. (1962), 36 Ill. App.2d 224, 183 N.E.2d 744; Illinois Pattern Jury Instruction (IPI), Civil, No. 34.04 (2d ed. 1971)), and it is therefore not unreasonable to expect that there will be some relationship between life expectancy and the figure suggested by counsel in arguing that element of damages. We do not see how a defendant is prejudiced, or how an "illusion of certainty" is created by a request for an amount which, when divided by life expectancy, produces a multiple of 100 or 1,000. Under that rationale, ...