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Abrams v. City of Mattoon

OPINION FILED OCTOBER 14, 1986.

PHYLLIS ABRAMS ET AL., PLAINTIFFS-APPELLEES,

v.

THE CITY OF MATTOON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Plaintiffs, husband and wife, filed suit against the city of Mattoon (city) for personal injuries to the wife and loss of consortium to the husband arising out of an automobile accident in which the vehicle driven by the wife was struck in the rear by a police squad car driven by an officer of the city. The circuit court of Coles County entered summary judgment for plaintiffs on the question of liability, reserving, however, the question of Phyllis Abrams' comparative negligence. The cause was then tried to a jury on that question and on the question of damages. The jury returned verdicts of $30,000 for Phyllis Abrams (Phyllis) and $1,500 for Tom Abrams (Tom) and found Phyllis to be 20% negligent. The trial court reduced the verdicts appropriately and entered judgments thereon. The city has appealed, and we reverse and remand for a new trial on all issues.

A variety of issues are raised by the city on appeal. In summary, these are: (1) error in entering summary judgment; (2) error in the admission of certain testimony relating to injury to Phyllis' eye; (3) whether a rule regarding expert testimony should be altered or abolished; (4) whether the verdicts were against the manifest weight of the evidence; (5) error in the admission of certain medical testimony; and (6) prejudicial closing argument by plaintiffs' counsel.

A brief synopsis of the evidence follows. On June 22, 1982, Phyllis was driving a pickup truck and had stopped at the intersection of DeWitt Avenue and 19th Street in Mattoon. Each of these streets consisted of four lanes, two eastbound and two westbound on DeWitt, two northbound and two southbound on 19th. All directions of travel were controlled by stop signs. Broad white striping on the pavement indicated the stopping place for vehicular traffic and narrower white striping indicated pedestrian crosswalks. On the day of the accident Phyllis was eastbound on DeWitt in the curb lane and stopped at the broad white stripe preparatory to making a right turn onto 19th. She was aware that a police squad car was following her. She observed another vehicle southbound on 19th stopped north of the intersection. She began her right turn and then saw that the other vehicle started up and came through the intersection. She then stopped again to allow it to pass and was struck in the rear by the squad car driven by Lieutenant James Neason of the Mattoon police department.

Neason testified that as he approached the intersection he saw no traffic other than the Abrams' vehicle, which had started up and then abruptly stopped. As it did so, the squad car struck the rear of the pickup. Other evidence indicated that the impact caused a light bend in the push bumper of the squad car and a bend in the bumper of the pickup. Both parties got out of their vehicles and approached one another. Phyllis testified that Neason said to her that "it was his fault and for me to go to the hospital and get well and they'd take care of everything." She further testified that she was jerked quite a bit and hurt her neck, her stomach hit the steering wheel, and she hit her mouth on the top of the steering wheel. Her neck was sore, her head hurt, her mouth hurt, and her stomach hurt.

Both vehicles were removed to a car wash at the intersection by other officers summoned by Neason to the scene, and Phyllis was taken to the hospital by a friend who was called. At the hospital she was examined by Dr. Jemsek, a physician board certified in family medicine. In the emergency room she gave him a history of having been struck from behind and expressed complaint of a great deal of pain in her neck, back, and chest. Examination resulted in findings of tenderness in the cervical region and collarbone and near the left fifth rib. She was admitted to the hospital with an admitting diagnosis of traumatic cervical spine strain. Physical therapy was prescribed. X rays showed no evidence of fracture in the cervical spine, but did show some degenerative changes not the result of the accident. Over objection Dr. Jemsek was asked whether such changes can be aggravated by trauma. He answered, "Sometimes it aggravates it, sometimes it doesn't."

During her stay in the hospital Phyllis received treatment for bronchitis and bowel irregularity in addition to the physical therapy. On at least three occasions she refused the physical therapy. She was discharged from the hospital on June 28, 1982, with a prescription for a muscle relaxant known as Flexiril. She was still having some discomfort in her neck and was instructed to return to the hospital for physical therapy twice a week for up to 12 treatments.

Phyllis continued to see Dr. Jemsek in his office with complaints of pain. He prescribed Naprosyn, an anti-inflammatory medication. Over objection he testified as to possible side effects of Flexiril and Naprosyn. Since she did not appear to be improving, he referred her to Dr. Harms, an orthopedic surgeon at Carle Clinic in Champaign.

Dr. Harms submitted a report to Dr. Jemsek in which he indicated that the patient should be approached with the suggestion that stress was causing her symptoms and exaggerating her discomfort. He found an exaggerated response to light touch over the entire spine, which was inconsistent with organic findings. He characterized her symptoms as "functional problems." Dr. Jemsek had treated her in 1974 for psychophysiological gastrointestinal disease. In his judgment she had probably had stress problems over a period of 20 years. Dr. Jemsek stated that he had examined her two days before trial on October 19, 1985, but had not seen her since November 17, 1982, prior to the former date.

Over objection Dr. Jemsek testified that Phyllis' injuries to her neck "could or might" be permanent, and over further objection testified that "well possibly" things like sleeping in an unusual position or air conditioning could cause spasms in the neck. He further testified that he did not have an opinion within a reasonable degree of medical certainty whether her complaints would persist after trial.

Phyllis testified that while in the hospital her vision became blurred, more so than before her admission. This occurred on the second or third day of her hospital stay, and at a time when she was not wearing contact lenses prescribed for her following cataract surgery earlier in the year. She also stated that she noticed her blurred vision between the time of the accident and her arrival at the emergency room, but she did not complain of it in the emergency room to Dr. Jemsek, who stated that he had no knowledge at any time of any injury to the eye. His examination of the eye in the emergency room disclosed no problems, although he did not administer a visual acuity test.

Considerable evidence was taken from Dr. James Faron, an optometrist practicing at Carle Clinic. In view of the position we have taken with regard to any potential eye injury, as explained below, that testimony need not be recounted at length. Briefly recapitulated, it showed that he had fitted Phyllis with a contact lens following cataract surgery on her left eye in April 1982, approximately two months prior to the accident. Her vision was then 20/30 with the contact. She received a slightly stronger lens in May 1982 and again in June 1982. A third lens was dispensed on June 15, 1982, and with it her vision tested 20/30. She returned on July 12, 1982, with the same lens, at which time she tested 20/40. Dr. Faron stated that this was not a significant change.

She returned again on August 16, 1982, for a progress check which showed vision of 20/50. Over-refraction showed an increase in astigmatism, and, with this corrected, her vision was recorded at 20/30. This was the same as before the accident. Dr. Faron saw her on numerous occasions during 1983, 1984, and 1985. In June 1985 a stronger lens was indicated, which was dispensed, and her vision was again 20/30 with the contact. Vision tests did not indicate any decrease in corrected vision following the accident. According to Dr. Faron, Phyllis suffered from hyperopia, astigmatism, and presbyopia. These conditions will lead to a decrease in uncorrected vision over time.

Over objection Phyllis testified that at the time of trial she could see "less" with her left eye than she could before the accident and denied that her vision as corrected with the contact lens was as good after the accident as before.

The first issue concerns the propriety of a summary judgment entered by the trial court which found as a matter of law that plaintiffs were entitled to judgment on the question of the city's liability. This order was entered September 17, 1984, approximately 11 months prior to trial.

The fundamental principles governing summary judgment are so well known that further reiteration here would only serve to unduly lengthen this opinion. In summary it may be said that summary judgment is entered properly only if the pleadings, affidavits, and depositions on file at the time reveal that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. The relevant affidavits and depositions will be strictly construed against the moving party. Murphy v. Urso (1981), 88 Ill.2d 444, 430 N.E.2d 1079.

As previously mentioned, the trial court entered the summary judgment on the question of the city's liability but reserved the question of Phyllis' comparative negligence for the jury. She now argues that since the jury found in her favor to the extent of 80%, any error in entering the summary judgment was harmless. We do not agree.

• 1, 2 The trial court may consider only the evidence on file at the time of ruling on summary judgment. Any error cannot be cured by a subsequent verdict. We find analogy in McMillen v. Carlinville Area Hospital (1983), 114 Ill. App.3d 732, 450 N.E.2d 5. In that case this court held that a verdict in favor of a defendant cannot be used to support a directed verdict on a res ipsa loquitur count because the verdict was not in existence at the time the directed verdict was entered. As we have noted, the summary judgment in the instant case was entered almost one year before the general verdict. Moreover, plaintiffs' counsel in both opening and closing argument referred to the fact that the court had already found in their favor on the issue of liability. It is generally recognized that juries will look to the trial judge for any clue which might guide them and that trial judges seek to avoid any appearance of favoring one side or the other in order that the jury may not be influenced. Here it is patent that the jury knew that the court had ruled in favor of the plaintiffs without being told, much less understanding, on what basis. The error cannot be said to be harmless.

The motion for summary judgment was supported by two pages taken from the deposition of Neason. The pertinent portion is:

"Q. [By plaintiffs' counsel] All right. Tell me what happened on the day in question.

A. What day was that?

MR. AULER: June 22, 1982 at about 9:58 A.M.?

A. Okay. I was patrolling in my squad car just like I normally do every day, proceeding east on DeWitt Avenue, approaching the intersection of 19th & DeWitt when a black pickup truck was leaving the stop sign, and then stopped in front of me again, and we collided.

Q. Now what lane were ...


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