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04/05/89 David O'brien, v. Thomas Steel Corporation

April 5, 1989

DAVID O'BRIEN, PLAINTIFF-APPELLEE

v.

THOMAS STEEL CORPORATION, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

538 N.E.2d 1162, 181 Ill. App. 3d 901, 131 Ill. Dec. 606 1989.IL.479

Appeal from the Circuit Court of Will County; the Hon. Thomas Ewert, Judge, presiding.

APPELLATE Judges:

JUSTICE STOUDER delivered the opinion of the court. JUSTICE BARRY, specially Concurring. JUSTICE HEIPLE joins in this special concurrence.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

Plaintiff David J. O'Brien filed suit against defendant, Thomas Steel Corporation (Thomas), seeking damages as a result of an injury suffered by O'Brien when he was struck by a forklift operated by a Thomas employee. The jury returned a verdict in favor of O'Brien, finding Thomas negligent.

On appeal, Thomas argues the trial court erred in (1) excluding testimony concerning O'Brien's prior back injury, (2) excluding statements made by O'Brien concerning the nature and extent of his injury, (3) allowing O'Brien to argue that his wages were low in the early 1980's because of economic conditions, and (4) allowing expert testimony as to the necessity and cause of future medical treatment. Thomas also argues the jury's findings are contrary to the manifest weight of the evidence. However, in light of the view we take with regard to Thomas' first four arguments it is unnecessary to discuss defendant's manifest weight argument.

O'Brien was an ironworker employed by Tonn & Blank. Tonn & Blank was engaged by Thomas to perform structural steel erection for a Thomas construction project. At the construction site, Tonn & Blank was allocated a construction storage area for the various pieces of steel needed for its part of the project. Thomas stored a number of its component parts in the same general area as the Tonn & Blank storage area. A number of these component parts were used in the defendant's day-to-day operations and were moved by use of forklifts.

On April 29, 1985, the plaintiff and co-workers were in the Tonn & Blank storage area. A Thomas employee had driven a forklift into the area to pick up a load of materials. After procuring his load, the driver backed up across an aisle and struck the plaintiff, or a checker plate the plaintiff was standing on, or near, causing O'Brien to be thrown through the air, resulting in O'Brien injuring his back. The forklift was equipped with an audible alarm system that would normally activate when the forklift was being operated in reverse; however, the alarm was not in operation at the time of the plaintiff's injury.

The plaintiff was seen by various emergency room and company doctors and was last treated by Dr. Curtis Rentschler. O'Brien was diagnosed as having a herniation of the nucleus pulposus at two levels, L-4 and L-5. Following treatment, Dr. Rentschler indicated that the plaintiff should prepare for an alternative line of work. The doctor also stated that the plaintiff may need to have surgery in the future, but that at minimum, O'Brien would be required to visit an orthopedic surgeon at least once every six months. The plaintiff filed suit against Thomas claiming negligence. A jury returned a verdict finding Thomas negligent, assessing O'Brien's damages in the amount of $125,000, finding O'Brien to be 20% contributorily negligent, and reducing his damages accordingly to $100,000.

On appeal Thomas contends the trial court erred in excluding testimony concerning O'Brien's prior back injury. The parties disagree as to the severity of the plaintiff's prior injury; however, the plaintiff admits suffering a back injury in 1978. Evidence of a prior injury is admissible where the injury involves the same area of the body. (Palsir v. McCorkle (1966), 70 Ill. App. 2d 425, 216 N.E.2d 682; Elberts v. Nussbaum Trucking, Inc. (1981), 97 Ill. App. 3d 381, 422 N.E.2d 1040.) The Palsir and Elberts decisions do not require that a causal connection between injuries be established in order for evidence of the prior injury to be admitted. In addition, Vandermyde v. Chicago Transit Authority (1979), 73 Ill. App. 3d 984, 392 N.E.2d 48, stands for the proposition that no medical evidence of any kind is needed to introduce the existence of a prior injury where the prior and current injuries are in the same area of the body. The Vandermyde case has been followed by Falkenthal v. Public Building Comm'n (1982), 111 Ill. App. 3d 703, 444 N.E.2d 498, which involved an injury to the plaintiff's head. In Falkenthal, plaintiff's expert testified that a blow had caused a condition of narcolepsy in the plaintiff. The defendant's expert testified that narcolepsy could not have been caused by a trauma to the head. Defendant was allowed to introduce evidence of two prior accidents that had also caused injuries to her head. There was no testimony from any expert that the two prior injuries caused plaintiff's narcolepsy. The court found that the two prior injuries were admissible because they were to the same area of the body. Falkenthal v. Public Building Comm'n (1982), 111 Ill. App. 3d 703, 444 N.E.2d 498.

In this case the defendant states that Dr. Greenwald, the plaintiff's treating doctor in 1978, will testify that he diagnosed plaintiff's 1978 injury as L-5 disc syndrome, supported by a myelogram taken on January 25, 1979. The plaintiff's present injury was diagnosed as a herniation of two spinal discs, one at L-4 back level, and the other at L-5. Certainly the two injuries are located in a similar area of the plaintiff's body. Consequently, the injuries fall within the guidelines set forth in Palsir and Elberts and do not require the defendant to establish a causal connection between the plaintiff's present injury and the 1978 injury.

The plaintiff attempts to distinguish the Palsir and Elberts decisions, relying on Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 446 N.E.2d 1271. In Tisoncik, the plaintiff suffered a knee injury in an auto accident in 1979. Ten years prior to this accident, plaintiff had injured the same knee. The plaintiff filed suit against defendant, and the defendant sought to introduce evidence of plaintiff's prior injury. The appellate court found that the striking of the evidence did not result in prejudice to defendant's theory of aggravation of a pre-existing condition. The court noted that the injury took place 10 years before the current incident. Further, the court found that there was no evidence in the record as to the nature, extent, duration or treatment of the first accident. In the present case the defendant attempted to offer substantial evidence as to the plaintiff's prior injury and the treatment he received.

The failure to allow the defendant to introduce evidence of the plaintiff's prior back injury is sufficient grounds to order a new trial. The remaining issues raised by the defendant will ...


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