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02/09/94 ROBERT USSELMANN AND BETTY USSELMANN v.

February 9, 1994

ROBERT USSELMANN AND BETTY USSELMANN, PLAINTIFFS-APPELLANTS,
v.
ANTHONY H. JANSEN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Clinton County. No. 89-L-41. Honorable Dennis M. Huber, Judge Presiding.

Goldenhersh, Welch, Maag

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiffs, Robert Usselmann and Betty Usselmann, appeal froma judgment of the circuit court of Clinton County and the court's order denying their posttrial motion for new trial. Plaintiffs filed this action based on injuries Robert Usselmann sustained when he fell at the home of defendant, Anthony H. Jansen. Although the jury returned a verdict for both plaintiffs, it did not award any damages for Robert's pain and suffering, disability, or diminished earning capacity. The jury also awarded no damages to Betty Usselmann on her loss of consortium claim. The jury found Robert to be contributorily negligent in the incident, thus reducing the damages award for medical expenses and lost wages by 50%.

On appeal, plaintiffs contend that: (1) the trial court erred in denying their posttrial motion; (2) the damages award was inadequate and against the manifest weight of the evidence; and (3) the jury's finding that Robert was 50% contributorily negligent is against the manifest weight of the evidence. We affirm in part, reverse in part, and remand.

This action arose after Robert Usselmann fell into a hole at defendant's residence. At the time of the incident on May 19, 1989, defendant, who is plaintiffs' son-in-law, was remodeling his home. Defendant began the project in April 1989, and Robert had participated in the effort on numerous occasions. The hole Robert fell into was cut seven to 10 days before his fall and was located between two front doors in defendant's home. When plaintiffs arrived at defendant's home on May 19, 1989, Robert saw his brother-in-law, Floyd Kraft, working on the project. Kraft told Robert that defendant had left to go get a tool. Kraft was up on a ladder and asked Robert to go into the house and cut a piece of two-by-four board. At that time Robert entered the house and immediately fell into the uncovered hole. Although Robert was aware of the hole's existence, it had been consistently covered by a piece of plywood until the day of his fall. Robert testified that since the hole had been cut, he had never seen it uncovered until the day he fell. According to all parties, when the plywood cover was over the hole it provided a sturdy floor that the family freely walked upon.

As a result of his fall, Robert suffered from a dislocated left shoulder as well as various cuts and bruises. Robert testified that his shoulder injury was severely painful. He was immediately taken to St. Joseph Hospital in Breese, but the emergency room doctor was unable to replace the ball joint in his shoulder. Robert was then taken by ambulance to Memorial Hospital in Belleville, where an orthopedic surgeon, Dr. Thomas Meirink, set the shoulder while Robert was under general anesthesia. Robert went home from the hospital the next day, but missed eight weeks of work and was unable to lift anything. He began physical therapy two to three times per week and saw Dr. Anwar Khan, a rehabilitation specialist, two times per month. Robert testified that he was an upholsterer and was unable to perform his job after the injury to his shoulder. Robert also testified that the incident prompted him to retire, even though he had given some thought to retirement before the accident.

Betty Usselmann testified that her husband's personality changed, and he was much more irritable after the injury.

Dr. Khan testified that he saw Robert 13 times over a period of 18 months. The doctor's final analysis was that Robert's left shoulder muscles were slightly weaker compared to the right shoulder muscles and that he still had some deficiency on the left side. Dr. Khan further advised Robert to avoid heavy lifting with the left arm.

Michael Mercurio, Director of the Physical Therapy Department at St. Joseph Hospital, testified that he treated Robert and saw him approximately 38 times from June through September 1989. On October 24, 1991, Mercurio gave Robert a muscle evaluation using a computerized muscle tester. The evaluation showed that Robert's left shoulder musculature was weaker than his right and that Robert had difficulty lifting his left arm above shoulder level.

On November 13, 1991, the jury returned a verdict for both plaintiffs. The jury awarded Robert his medical expenses in the amount of $5,255, and it awarded $1,600 in lost wages, but it found him to be 50% contributorily negligent, thus cutting the award in half. The jury awarded Robert no damages for disability, past or future pain and suffering, or damage to earning capacity. The jury also returned a verdict for Betty's loss of consortium claim but awarded her zero damages.

Plaintiffs filed a posttrial motion, which the trial court denied in the following order:

"Having considered the arguments of counsel on the post-trial motion the court finds the question of facts are for the jury. Counsel for plaintiff presents strong arguments for vacating the judgment and granting a new trial. However, it is clear from hearing the evidence at trial that the jury did not ignore the evidence. It is obvious from the verdict that the jury considered the family relationship between the parties. Without this relationship, the verdict could not stand. Because of the relationship, the verdict can be understood. The court feels the jury could not ignore the evidence but its verdict can reflect a social policy. Therefore, the post-trial motions are denied and the judgment will stand."

In this appeal, plaintiffs first argue that the trial court erred in holding that the jury's verdict could be based solely on social policy. As stated above, in response to plaintiffs' posttrial motion, the trial court found it obvious that the jury considered the family relationship between the parties, and the court held that without that relationship the verdict could not stand. Defendant argues that the trial court's comments are ...


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