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Hinnen v. Burnett

OPINION FILED JULY 1, 1986.

KAY HINNEN, PLAINTIFF-APPELLANT,

v.

WILLIAM BURNETT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County; the Hon. William Johnson, Judge, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 29, 1986.

Plaintiff, Kay Hinnen, filed an action to recover damages for personal injuries she sustained when the rear of her automobile was struck by a pickup truck driven by defendant, William Burnett. Defendant admitted liability. Following a jury trial in the circuit court of Madison County, plaintiff was awarded $2,500 for past medical expenses. The court denied plaintiff's motion for a new trial and entered judgment on the jury's verdict. Plaintiff now appeals, contending that the court should have ordered a new trial because the jury's verdict did not include amounts for lost wages, disability, and pain and suffering and was therefore inadequate. For the reasons which follow, we reverse and remand with directions.

• 1-3 The legal standards applicable to this appeal are well established. The decision as to whether a new trial should be granted rests with the sound discretion of the trial court, and its ruling will not be reversed absent an abuse of that discretion. (Beckmeyer v. Alcala (1985), 135 Ill. App.3d 166, 173, 481 N.E.2d 893, 897.) As a general rule, a new trial should not be granted in a personal injury action on the ground that the damages are too small. (Nicholl v. Scaletta (1982), 104 Ill. App.3d 642, 647, 432 N.E.2d 1267, 1272.) This is particularly true where, as here, no complaint is made as to the jury instructions or admissibility of evidence, and the trial was otherwise error free. (Haleem v. Onate (1966), 71 Ill. App.2d 457, 460, 219 N.E.2d 94, 96.) Nevertheless, justice requires that the jury's verdict be set aside and a new trial ordered where the amount of damages awarded is palpably inadequate (Beckmeyer v. Alcala (1985), 135 Ill. App.3d 166, 172, 481 N.E.2d 893, 897) or against the manifest weight of the evidence, or where the jury has clearly disregarded a proven element of damages (Montgomery v. City of Chicago (1985), 134 Ill. App.3d 499, 502, 481 N.E.2d 50, 53.)

In reviewing the adequacy of a jury's verdict, the record as a whole must be considered. (Beckmeyer v. Alcala (1985), 135 Ill. App.3d 166, 173, 481 N.E.2d 893, 897.) The record here shows that defendant's pickup truck backed into plaintiff's automobile, a 1974 Ford Thunderbird, as she was waiting to leave a gas station in Pontoon Beach. The collision broke one of the rear taillights of plaintiff's car. Plaintiff also claimed that her car's trunk and bumper were dented, but defendant testified that he observed only a scratch on the bumper. Defendant's truck sustained no significant damage. Plaintiff described the collision as a "pretty good jolt." According to defendant, it was a "minor impact." Following the collision, the parties exited their vehicles and spoke to one another about the accident. Plaintiff stated that she then returned to her car; drove to her bank, where she apparently had personal business; and went home.

The accident occurred on Friday, November 23, 1979. At that time plaintiff was employed as a "foreperson" by Chromalloy Chemical Company. She described her duties as follows:

"I watched — set up the lines, made sure that everything was there for them to run, checked the products, worked on the lines at times, and if I had to, lift and move around in different ways, and at times drive a forklift."

Although plaintiff stated that she started having "a little bit of feeling in my neck" the day after the accident, she returned to work at Chromalloy the following Monday and worked four nine-hour days that week. During the course of the week she noticed the "feeling" getting "a little worse and a little worse until Thursday I called the doctor and set up an appointment for him for Friday." Plaintiff said that by the time she went to the doctor's office, "I could not hold my head up straight. It was more or less laid over my shoulder."

The doctor to whom plaintiff referred was Norman Claybourn, a medical doctor board certified in industrial medicine. Plaintiff first saw Dr. Claybourn on November 30, 1979, at his office in Granite City. Dr. Claybourn did not appear personally at the trial, but his deposition was read into evidence. He stated at that deposition that he had no independent recollection of his treatment of plaintiff and could only testify based on his notes. Those notes indicated that plaintiff came to him complaining of neck pain (whiplash), especially on the right side. Dr. Claybourn had made a notation that there was "not much trauma" which he interpreted to mean that he "did not see any external signs of trauma, such as contusion, abrasion, lacerations." He prescribed Robaxin, a muscle relaxant, and Myroflex, a liniment which plaintiff was to apply to her neck and shoulder area.

Dr. Claybourn next saw plaintiff on December 3, 1979. At that time he noted that plaintiff was "no better." He recommended that she undergo physical therapy on an outpatient basis at St. Elizabeth's Medical Center in Granite City and called that facility to make the necessary arrangements. He also prescribed Tylenol with codeine, a pain reliever. This was followed by another office visit on December 7, 1979, when Claybourn changed his prescription from Tylenol with codeine to Darvocet N 100, another type of pain reliever containing Darvon, "a synthetic codeine-like product." He also continued the Robaxin. Thereafter, Dr. Claybourn saw plaintiff once a week for four weeks, once a month for two months, then only at irregular intervals. The dates of these visits and the corresponding notations made by Claybourn in his records are summarized below:

Date Notation

December 14, 1979 Improved. Not well. Continue Rx. December 21, 1979 Continue therapy. Improving. December 28, 1979 Improving slowly. Continue therapy. January 11, 1980 Improving. Release to work. February 12, 1980 No real complaint. Now and then some pain. March 19, 1980 No real complaint regarding neck. Still occasional pain in the right side of neck. Reflexes okay. June 13, 1980 Reflexes okay. Pain in the neck still now and then. Get cervical spine x-rays for comparison. July 1, 1980 (No visit.) X-rays of cervical spine taken at St. Elizabeth's and interpreted by G.W. Miller, M.D. No abnormality visualized. July 8, 1980 Good range of motion. X-rays okay. Release from observation.

After July 8, 1980, Dr. Claybourn did not see or treat plaintiff again in connection with injuries sustained in her collision with defendant. In a letter dated October 3, 1980, he stated: "It is my opinion that this patient [plaintiff] suffered from acute cervical strain from this accident. It is also my opinion that she has recovered." Claybourn interpreted "acute" to mean "it's short in duration, lasting less than two weeks." Finally, although the notation of January 11, 1980, indicated that Dr. Claybourn had released plaintiff to work, he testified that he could not remember having actually kept her off work or that she had asked to be excused from work.

Evidence was adduced regarding the physical therapy which Dr. Claybourn arranged for plaintiff at St. Elizabeth's. Plaintiff stated that she received two one-hour therapy sessions per day, one in the morning and one in the afternoon, over a six-week period. Except for this therapy, plaintiff claimed she spent the entire six-week period in bed or on the couch. The therapy was administered by Patricia Burns, a physical-therapy assistant. Burns, who was called as a witness by the defense, testified that she maintained written charts which recorded the type of treatment plaintiff received and her progress. Those charts were admitted into evidence and showed that plaintiff's treatment commenced on December 4, 1979. An entry made by Burns on December 11, 1979, stated in part: "Patient [plaintiff] complained of having a severe headache including the right side of neck and face. She feels it may be from overworking yesterday refinishing her daughter's bed & dresser." On January 8, 1980, Burns reported: "She [plaintiff] voices no complaints of pain but states it [her neck] ...


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