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Wolkenhauer v. Smith

decided: June 24, 1987.

JERRY K. WOLKENHAUER AND SHARON K. WOLKENHAUER, PLAINTIFFS-APPELLANTS,
v.
RICHARD M. SMITH AND ROBERT L. BERTCH, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Central District of Illinois, No. 84-1251 -- Michael M. Mihm, Judge.

Author: Ripple

Before COFFEY, RIPPLE, and MANION, Circuit Judges.

RIPPLE, Circuit Judge. In this diversity action, appellants, Jerry Wolkenhauer and his wife, Sharon Wolkenhauer, sought damages for injuries Mr. Wolkenhauer sustained in a collision between the semi-tractor trailer that he was driving and a utility trailer pulled by a pick-up truck. After the evidence was presented in a bench trial, the district court awarded appellants $213,015.71 in damages, but reduced the award to $42,603.14 because it found Mr. Wolkenhauer's degree of fault to be 80 %. The appellants contend that the district court's findings regarding damages lack specificity and that the court erred in finding Mr. Wolkenhauer to be 80 % at fault. For the reasons stated below, we affirm the judgment of the district court.

I

Facts

At approximately 4:00 a.m. on September 29, 1982, Mr. Wolkenhauer was driving a semi-tractor trailer westbound in the right lane of Interstate80 in Bureau County, Illinois. Mr. Smith and three passengers were also traveling westbound on Interstate 80, driving a pick-up truck pulling a trailer. Mr. Smith stopped and pulled onto the shoulder to assist Mr. Bertch, who had pulled his pick-up truck off the highway because it has malfunctioned. In an attempt to start Mr. Bertch's truck, Mr. Smith used his own truck to push Mr. Bertch's vehicle. During this process, the trucks were on the highway's shoulder, but Mr. Smith's trailer protruded approximately two to three feet onto the highway. The shoulder of the highway was approximately 10 1/2 to 11 feet wide, adequate to allow the vehicles to remain completely off the highway. Mr. Smith's truck and trailer lights were operating and the rear hazard lights were flashing. Mr. Smith, however, never activated the left turn signal on his truck because he did not intend to leave the highway's shoulder.

Mr. Wolkenhauer testified that he first saw the truck and trailer lights when he was approximately one-quarter to one-half mile away from them. The night was clear and the highway was dry. Mr. Wolkenhauer was traveling at approximately 55 miles per hour. He was able to distinguish the vehicles when he was approximately 150-200 feet away from the. He stated that he then checked the left lane to see if it was safe for him to transfer lanes. Although he initially told a state trooper investigating the accident that a car was in the left lane, he later testified hat there was no car in the left lane. Mr. Wolkenhauer testified that the trailer extended approximately six feet into the highway. Mr. Smith testified that the trailer extended approximately three to four feet onto the highway; another witness testified that the trailer only protruded one to two feet onto the highway.

The front of Mr. Wolkenhuer's cab struck the rear left corner of the trailer, causing it to disintegrate. The tire on the semi-tractor trailer blew out and Mr. Wolkenhauer lost control of the truck. He was tossed around inside the cab and sustained injuries to the left side of his body. Mr. Wolkenhauer was hospitalized for two days. After his release from the hospital, he received further treatment from his family physician, including three cortisone injections, in an effort to alleviate the pain he experienced in his shoulder. In June 1983, he underwent surgery on his left shoulder and regainedall but 5 % use in that arm.

The trucking company for which Mr. Wolkenhauer was an employee, Briggs Transport Company, closed in January 1983 after filing a petition in bankruptcy. After recovering from the accident, Mr. Wolkenhauer enrolled in a retraining program to become a robotics technician, but he left the program after a year and four months because he could no longer afford the classes. In 1984 and 1986, Mr. Wolkenhauer drove a truck on a "casual" or part-time basis. The driving apparently caused him some pain, but the injury to his shoulder did not render him incapable of driving trucks.

II.

The District Court Opinion

The district court first entered a default judgment against appellee Robert Bertch because he failed to respond to properly served summons, complaint and interrogatories. The court determined that, to the extent that the defendants were found culpable, Mr. Bertch would share in the liability. The court then held that the defendants were negligent because the trailer protruded onto the highway. Although the testimony differed as to how far the trailer extended onto the highway, the district court found that it was undisputed that the trailer improperly encroachedupon the interstate and this negligence was a proximate cause of the collision.

After finding that the appellees acted negligently and in violation of various provisions of the Illinois Vehicle Code, the district court calculated the damages suffered by the appellants. The court first addressed the appellants' claimed special damages consisting of medical expenses, lost wages and lost insurance that were not materially contested by the defendants. The court awarded $21,890.43 in special damages. The court next considered whether Mr. Wolkenhauer was entitled to retraining expenses. The court concluded that the appellees were not liable for retraining expenses because Mr. Wolkenhauer expressed doubts about continuing in the robotics training. In determining the appellees' liability for Mr. Wolkenhauer's lost wages, the district court stated that Mr. Wolkenhauer had not established by a preponderance of the evidence that his inability to find work resulted from his injury. Rather, the court found that the major reason why Mr. Wolkenhauer had not been able to find permanent employment as a truck driver was the deteriorating economic condition of his community as evidenced by the bankruptcy of his former employer. The court then awarded Mr. Wolkenhauer lost wages and insurance premium losses for the years 1983-1985. The court did not award lost wages for 1986 because it found that Mr. Wolkenhauer did not meet his burden of proving that any reduction in income for that year was proximately caused by his injury. Similarly, the court did not award appellant any future wages because such an award would be speculative. The court then awarded Mr. Wolkenhauer $50,000 for his pain and suffering, based not only upon his physical pain, but also upon his loss of pride and self-esteem. Mr. Wolkenhauer was awarded $20,000 for her suffering and loss of consortium. In total, the court awarded appellants $213,015.17.

The district court then evaluated the extent of Mr. Wolkenhauer's fault in causing the collision. The court held that Mr. Wolkenhauer's failure to slow down or to change lanes after he saw the flashing hazard lights constituted comparative fault and proximately caused the collision. The court assessed the level of Mr. ...


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