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03/29/89 Stringham, Deceased, and v. United Parcel Service

March 29, 1989

TRACY STRINGHAM, ET AL., PLAINTIFF-APPELLEE

v.

UNITED PARCEL SERVICE, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT VALERIE R. STRINGHAM, as Adm'r of the Estate of David E.

Stringham, Deceased, and for the use and benefit of

536 N.E.2d 1292, 181 Ill. App. 3d 312, 130 Ill. Dec. 81 1989.IL.436

Appeal from the Circuit Court of Winnebago County; the Hon. Alford R. Penniman, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, United Parcel Service, Inc. , appeals from a judgment of the circuit court of Winnebago County entered on a jury verdict for $252,631.08 ($505,262.16 reduced 50% by the negligence of plaintiff's decedent) in favor of plaintiff, Valerie R. Stringham, as administrator of the estate of David E. Stringham, deceased, and for the use and benefit of her two children, Tracy and Tina Stringham, in this wrongful death action.

On appeal, defendant contends that the trial court erred by (1) allowing testimony regarding the future care, treatment, and prognosis of a beneficiary, (2) allowing an economist to calculate present cash value of future earnings using factors for inflation and growth of earnings, (3) precluding defendant's economist from testifying beyond what had been disclosed in discovery, and (4) precluding defendant's toxicologist from testifying to his opinion regarding the proximate cause of decedent's death.

As the only issues raised on appeal are evidentiary errors, we need only briefly summarize the facts of the occurrence. On December 27, 1985, at approximately 10:20 p.m., the vehicle being driven by David E. Stringham collided with the rear end of defendant's semitractor trailer, which was temporarily parked with its emergency light flashers on in the curb lane of the four-lane road, two lanes in each direction. While the driver of defendant's vehicle stated that he was only stopped for a short while in order to close the passenger door in the cab which had come open, another witness testified that the truck had been parked there as long as 20 minutes. Stringham died from injuries resulting from the accident. Evidence was introduced that he had a blood-alcohol level of .21. Stringham was divorced from his former wife, Valerie R. Stringham, and left two children surviving, Tracy and Tina. Tina was seven years old and suffers from Down's Syndrome.

Defendant first contends that the circuit court erred in denying its motion in limine and allowing into evidence testimony regarding the future care, treatment, and prognosis of a surviving child of decedent, Tina Stringham, who has Down's Syndrome. In this regard, defendant objects to the testimony of Dr. Robin Spencer that Tina would receive a maximum level of education to the third or fourth grade, that Tina would need someone to follow her development and foster her for the rest of her life, that Tina's visual impairment will get progressively worse as she grows older, that Tina has no substantial income earning potential, and that all Tina's afflictions and deteriorating conditions were based upon a reasonable degree of medical certainty. Defendant argues that the health or helplessness of a beneficiary in a wrongful death action is an improper consideration, relying principally on Freehill v. De Witt County Service Co. (1970), 125 Ill. App. 2d 306, 261 N.E.2d 52. Essentially, defendant maintains that damages may not be recovered for future, speculative conditions brought on by Down's Syndrome as contrasted to allowable compensation for loss of benefits of companionship which exist in a family relationship. Plaintiff responds that this testimony was relevant, not speculative, and was properly admitted to show the nature and extent of the loss of decedent's society to Tina, citing Chladek v. Albon (1987), 161 Ill. App. 3d 884, 515 N.E.2d 191.

In a wrongful death action, the jury may award pecuniary damages for a child's loss of instruction and training due to the death of the father. (Elliott v. Willis (1982), 92 Ill. 2d 530, 537-38, 442 N.E.2d 163; see Illinois Pattern Jury Instructions, Civil, No. 31.04 (2d ed. 1971).) The trend in the more recent Illinois Supreme Court decisions interpreting the Wrongful Death Act has been to expand the scope of pecuniary injury to encompass non-monetary losses. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 514, 468 N.E.2d 1228.) The supreme court in Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, 133 N.E.2d 288, in construing the Wrongful Death Act and the term "pecuniary injuries" contained therein, looked to Miller v. Southern Pacific Co. (1953), 117 Cal. App. 2d 492, 256 P.2d 603, where a jury's award was upheld for children's loss of the father's guidance, attention, advice, training, and instruction. See Elliott v. Willis (1982), 92 Ill. 2d 530, 537, 442 N.E.2d 163.

In Chladek v. Albon (1987), 161 Ill. App. 3d 884, 515 N.E.2d 191, the appellate court considered whether evidence as to the mental condition of decedent's sister, that she was taking medication for a personality disorder, and other family background was improperly admitted. The court held that evidence pertaining to the family relationship was not limited to the time of the death of the decedent, and evidence of decedent's sister's personality disorder was relevant to demonstrate the effect and loss upon an already burdened family -- necessary to an understanding of the interrelationship among all the family members. Chladek, 161 Ill. App. 3d at 889, 515 N.E.2d at 194.

While the appellate court in Freehill v. De Witt County Service Co. (1970), 125 Ill. App. 2d 306, 261 N.E.2d 52, relied on by defendant, stated that "[in] an action for wrongful death, the wealth, health, poverty or helplessness of the beneficiary cannot be considered in determining the damages for the wrongful death" (Freehill, 125 Ill. App. 2d at 320, 261 N.E.2d at 58), the more recent supreme court and appellate court cases cited above appear to have diminished the vitality of that holding insofar as they now admit testimony of future health or helplessness if relevant to show a child's loss of his father's guidance, attention, instruction, moral training and superintendence of education. Moreover, in Freehill testimony was erroneously admitted as to the expenses incurred for treatment of cancer by decedent's spouse.

Accordingly, we find relevant in this case a limited inquiry into Tina's Down's Syndrome, including the extent of her educability, her development, and any future visual impairment, all of which Dr. Spencer was able to determine to a reasonable degree of medical certainty. This information provided a context in which the jury could evaluate the decedent's value in providing guidance, attention, and instruction to the child and the attendant pecuniary loss to the child. While the testimony of Tina's lack of income earning potential was not relevant (see Wilcox v. Bierd (1928), 330 Ill. 571, 581, 162 N.E. 170; Illinois Pattern Jury Instructions, Civil, No. 31.07 (2d ed. 1971) (in determining pecuniary injuries the jury may not consider the poverty or wealth of the child)), such error in the admission of this brief testimony was not prejudicial and did not affect the outcome below, ...


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