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05/12/89 Lilas Darnell Rozner, v. Chicago Transit Authority

May 12, 1989





539 N.E.2d 270, 183 Ill. App. 3d 613, 131 Ill. Dec. 917 1989.IL.722

Appeal from the Circuit Court of Cook County; the Hon. Leonard Levin, Judge, presiding.


JUSTICE PINCHAM delivered the opinion of the court. LORENZ and COCCIA, JJ., concur.


Plaintiff, Lilas Rozner, brought this action against defendant, the Chicago Transit Authority (the CTA), to recover damages for personal injuries she sustained when a CTA bus driver allegedly negligently operated a CTA bus on which plaintiff was a passenger and crashed into a lightpost. A jury returned a verdict against the CTA and for the plaintiff in the amount of $26,077. The trial Judge denied plaintiff's post-trial motion for a new trial on the ground that the amount of the damages awarded by the jury's verdict was manifestly and grossly inadequate and plaintiff appeals. For the following reasons we affirm.

Plaintiff testified that it was snowing on the evening of January 30, 1980, but that she had no difficulty walking on the sidewalk prior to boarding the CTA bus at Foster Avenue in Chicago. Plaintiff sat on the driver's side, across from the rear door of the bus.

After a distance, the CTA bus crossed over the center line of Foster Avenue and struck a lightpost. Plaintiff's head bumped the metal frame of a window, her neck snapped, plaintiff fell from her seat and landed unconscious on the rear steps of the bus. Plaintiff was in shock and was unaware of how long she remained on the steps. Someone picked her up and put her back on the seat. Plaintiff testified that she felt pain from her neck down to her right knee.

Plaintiff testified that she went to a hospital the next day because her neck hurt, she could not move her right arm and was in pain from the underside of her right arm down to her right knee. She described these symptoms to the hospital personnel. Plaintiff was X-rayed, and a doctor gave her a neck collar, put her right arm in a sling, prescribed Tylenol No. Three and referred plaintiff to Dr. Milton Wohl.

Dr. Wohl testified that plaintiff related to him that she was in severe pain. Dr. Wohl examined plaintiff and referred her to Dr. Chung. Nine months later, in October 1980, Dr. Chung operated on plaintiff's neck and also removed three inches of bone from plaintiff's hip. Plaintiff returned after she had been discharged from the hospital because she had difficulty moving. Dr. Chung gave plaintiff a traction device which she was to use for 20 minutes, two or three times daily.

Plaintiff testified that she still had pain when she moved her neck, that medication relieved the pain to a degree, but that the pain always returned. Plaintiff also testified that the surgical scar on her neck was tight and made swallowing difficult. Plaintiff added that she was no longer able to cook, shop or keep house and that her husband now has to perform these chores.

Laverne Shaw, a fellow passenger on the bus with plaintiff, testified that the snow had been plowed completely from the streets at the time of the accident. Shaw stated that the bus traveled at a speed faster than the speed of the buses she usually rode on Foster Avenue and faster than the rest of the traffic that evening. The bus moved into the westbound lane, passed an eastbound car, moved to the right and swerved. The back end of the bus swerved and hit something. Shaw did not feel or hear the application of the bus' brakes or feel the bus slow down before it struck the object. Shaw felt a heavy impact and saw a lightpost lying on the sidewalk. Shaw further testified that she saw the plaintiff on the floor of the bus and a boy helped plaintiff back to her seat. The front of the bus was in the street and the rear of the bus was on the sidewalk.

Constantino Estrada, the CTA bus driver involved in the collision, testified that as the bus traveled eastward approaching Damen Avenue, Estrada saw a prospective passenger standing at the bus stop at Foster and Damen Avenues. Estrada approached the intersection at about five miles per hour, according to his estimation, and applied his brakes "smoothly" two or three times. The rear of the bus skidded to the right as if it were sliding on ice. Estrada lost control and the bus struck a lightpost. Estrada testified that he did not see ice on the street before the bus skidded or after the accident. After the bus hit the lightpost, it skidded two or three more feet. In a report Estrada submitted to his CTA supervisor, Estrada promised to operate his bus better in the future.

Three physicians testified at trial, Dr. Milton Wohl, a board-certified orthopedic surgeon, and Dr. Byong Uk Chung, a neurosurgeon, both on plaintiff's behalf, and Dr. Richard Gilene, also a board-certified orthopedic surgeon, on behalf of defendant.

Dr. Wohl testified that he examined plaintiff for the first time on June 6, 1980, which was about five months after the accident. Dr. Wohl took a medical history of plaintiff and upon examining her found that her neck was stiff and moved only a few degrees. Plaintiff's right knee grated when flexed and straightened. There was also a mild limitation of the motion of plaintiff's right shoulder, which Dr. Wohl felt was a result of the pain in plaintiff's neck. Plaintiff was also suffering muscle spasms and Dr. Wohl ordered X rays. The X rays, taken on June 7, 1980, showed degenerative arthritis between bones in plaintiff's neck and arthritic spurs, called spondylosis, a result of aging and wear and tear found in persons of plaintiff's age.

Dr. Wohl recommended that plaintiff receive physical therapy and continue to use the neck collar. Dr. Wohl's initial diagnosis was that plaintiff suffered from degeneration of two disks and arthritis in the neck. Dr. Wohl further testified that the trauma of the bus accident was the direct cause of plaintiff's pain and disability.

Dr. Chung testified that he compared plaintiff's X rays taken in January 1980 to those taken in June 1980, and found that, "as far as the demonstration of spurs are concerned, they are exactly the same, and you don't see much change in them." However, Dr. Chung stated, the "unequivocal or unquestionable sign of disk degeneration" was not present on the January X rays but was present on the June X rays, and that even though the change was mostly likely attributable to the injury plaintiff suffered in the collision, the change in and the condition of plaintiff's disks could have occurred without any trauma, if plaintiff were predisposed to degenerative arthritic conditions. In Dr. Chung's opinion, the disk degeneration ...

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