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12/30/87 Lorraine C. Collins, A v. Cary A. Straka Et Al.

December 30, 1987

LORRAINE C. COLLINS, A MINOR BY HER FATHER AND NEXT FRIEND, LEONARD COLLINS, PLAINTIFF-APPELLANT

v.

CARY A. STRAKA ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

517 N.E.2d 1147, 164 Ill. App. 3d 355, 115 Ill. Dec. 461 1987.IL.1962

Appeal from the Circuit Court of Kane County; the Hon. James Quetsch, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

Plaintiff, Lorraine Collins, brought a personal injury action against defendants, Cary Straka, Marlene Hardy, and Kaneland Community School District No. 302 (the school district). Following a trial by jury, a verdict was returned in favor of defendants Hardy and Straka. A verdict of $16,250 was returned in plaintiff's favor and against the school district. The court entered judgment in the amount of $3,250 to reflect the jury's finding that 80% of the negligence was attributable to the plaintiff. Plaintiff's motion for a new trial on all issues or, alternatively, on the issue of damages alone was denied. Plaintiff filed a timely notice of appeal.

On appeal, plaintiff contends (1) that the jury's award of $16,250 in total damages was inadequate as a matter of law and (2) that the trial court erred in striking portions of an evidence deposition of the treating physician.

Briefly summarized, the facts presented at trial showed that on May 3, 1983, the plaintiff was injured at the Kaneland Middle School-High School complex in Elburn when plaintiff walked into the side of a moving pickup truck as she stepped from between two parked school buses located along a roadway on the premises of the school district. At the time of the accident plaintiff was a 16-year-old junior at the high school. At the end of the school day in question, plaintiff had boarded one of the buses parked along the roadway when she noticed her mother parked on the opposite side of the street. Plaintiff exited the bus without the permission of the bus driver, as required by school rules, and walked between the bus she had been on and the bus parked immediately ahead of it. As plaintiff stepped from between the two buses, she was injured when she walked into the side of a pickup truck driven by Cary Straka. Testimony showed that Straka was traveling well within the 15 miles-per-hour speed limit and as slow as five miles per hour prior to the point of impact with plaintiff.

Testimony was conflicting regarding whether plaintiff had looked both directions for vehicles before stepping from between the parked buses. Plaintiff first maintained that the mirrors on the bus had obscured her view and that she was struck by the pickup truck as she stepped to look around the mirrors. Later, on cross-examination, when asked if she stepped into the street or if, instead, she looked around the mirrors on the bus, plaintiff responded, "I stepped into the street." Another witness, a bus driver who observed the accident, testified that plaintiff never hesitated at all as she proceeded between the two buses and that plaintiff ran right into the wheel well of the pickup truck.

As a result of the accident, plaintiff suffered a fractured ankle and multiple contusions and abrasions to the lower extremities. The ankle required surgery which included the insertion of K-wires on one side of the ankle and a Rush rod on the other. Plaintiff was placed in a long leg cast which was worn until June 27, 1983, when the cast was replaced with a short leg cast. Plaintiff remained in the short leg cast until July 20, 1983. Following the removal of this cast, plaintiff used crutches until August 5, 1983.

Dr. Sorce, plaintiff's treating physician, testified that plaintiff progressed fairly well into the fall of 1983 and that she continued to do fairly well after the removal of the K-wires and Rush rod. It was Dr. Sorce's opinion that plaintiff's ankle injury may lead to traumatic arthritis and may require further surgical intervention. At the time of plaintiff's last visit, plaintiff had full range of motion in her left ankle. Plaintiff testified that her ankle was still sore when she walked a lot or was very active and that it swelled in damp weather conditions or with activity. On cross-examination, plaintiff admitted that despite her ankle injury, Dr. Sorce had not limited her activities in any manner.

Dr. Sorce had also treated plaintiff for problems with her left knee. An X ray of the left knee, which had been taken on May 9, 1983, during plaintiff's initial hospitalization for the incident occurring on May 3, indicated plaintiff's knee was normal. Plaintiff's first complaint of any knee pain occurred on July 6, 1983, two months after the accident and prior to the removal of the short cast. Dr. Sorce's examination of plaintiff's knee revealed that there was no swelling inside the knee and that the ligaments were stable. Some medial joint line tenderness of the knee existed.

In 1985 Dr. Sorce performed an arthrogram and a diagnostic arthroscopy to determine if plaintiff's complaints of knee pain were due to a vertical tear in the posterior part of the medial meniscus, the cartilage on the inside of the knee. Dr. Sorce stated that the result of the procedures performed on plaintiff's knee revealed that the medial meniscus appeared to be intact and that no tears were found. Mild chondromalacia (a form of arthritis) of the kneecap was present. A later arthroscopy performed in 1986 also revealed mild chondromalacia. As with the prior arthroscopy, Dr. Sorce prescribed an exercise program for plaintiff.

The doctor also testified that plaintiff had suffered a prior injury to her left knee in 1982. At that time Dr. Sorce diagnosed the cause of plaintiff's pain in the left knee as chondromalacia. Dr. Sorce testified that arthritis is a permanent condition because it does not go away ...


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