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03/22/94 DEBRA D. SMITH v. CITY EVANSTON

March 22, 1994

DEBRA D. SMITH, PLAINTIFF-APPELLEE,
v.
THE CITY OF EVANSTON, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable James S. Quinlan, Jr., Judge Presiding.

Rehearing Denied April 13, 1994. Petition for Leave to Appeal Denied October 6, 1994.

McCORMICK, DiVito, Hartman

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

Plaintiff, Debra D. Smith, sued the City of Evanston (Evanston) for causing a car crash by failing to post a proper warning sign. In an itemized verdict, the jury awarded plaintiff all of her post-accident medical expenses, but nothing for disability. The trial court granted plaintiff's post-trial motion for a new trial on damages only and this court granted Evanston's petition for leave to appeal.

We affirm because we find that the trial court did not abuse its discretion by granting plaintiff a new trial or by limiting the new trial to damages.

Around 2:30 p.m. on November 24, 1984, Catherine Olivieri, while driving west on Emerson in Evanston, decided to turn left at Ridge. The traffic signal at the intersection held a sign which said "obey your signal only." She stopped in the intersection and waited to make her turn. When her traffic signal turned red she made her turn, although she noticed another vehicle about 30 feet from the intersection approaching her from the west. The other car, which Steven Smith drove, continued into the intersection at 20 or 25 miles per hour. When Olivieri saw that Steven was not stopping at the intersection, she tried to accelerate to complete her turn. Steven slammed his brakes and turned to his left, but the front right fender of his car hit the middle of the right side of her car. Plaintiff, Steven's wife, went forward and back in the passenger seat of Steven's car. Steven's traffic signal was green when he entered the intersection, and it was still green when he looked at it after the crash.

Plaintiff was shaking and pale after the accident, but she was not bleeding. Steven put her seat back so that she was almost lying down. He went to Olivieri's car and Olivieri yelled at him that he had run a red light. Steven called the police to report the accident.

Officer Dwayne Struchen arrived shortly thereafter and spoke to Olivieri and Steven. He timed the traffic signal to make sure it was functioning properly. He found that eastbound Emerson had a green light which continued for almost 20 seconds after the signal for westbound Emerson turned red, and he knew that the lagging green was intended at that intersection. He asked plaintiff whether she was hurt. Although he could see no visible signs of injury, she complained that her back was sore and she was having difficulty breathing.

Plaintiff and Steven sued Olivieri for driving negligently and Evanston for failing to warn drivers of the different timing of the traffic lights for eastbound and westbound traffic. Olivieri countersued Steven and Evanston, and Evanston countersued Steven and Olivieri. During trial plaintiff reached a settlement with Olivieri. The trial court found that the parties settled the case in good faith, so it dismissed Evanston's countersuit for contribution from Olivieri along with plaintiff's suit against Olivieri. Olivieri and Evanston voluntarily dismissed their suits against Steven. Steven voluntarily dismissed his claims against Olivieri and Evanston. Trial proceeded only on plaintiff's claim against Evanston.

David Jennings, city traffic engineer for the City of Evanston, testified that the sign "obey your signal only" implies that the traffic signal facing a driver may be on a different timing sequence from the signal for traffic in the opposite direction. He admitted that the sign was possibly intended to instruct drivers that they must ignore the nearby signal at Emerson and Green Bay while proceeding through the intersection at Emerson and Ridge. He agreed that "it would be good traffic engineering judgment to have placed an [']oncoming traffic has a longer green light[' sign] at the intersection of Emerson and Ridge."

Thomas Trigg, assistant traffic engineer for the City of Evanston, testified that the "obey your signal only" sign did not inform westbound drivers on Emerson that eastbound drivers had a longer green light. He agreed that if the goal is to inform a driver that oncoming traffic may still have a green after the driver's light has turned red, "the clearest and simplest message to put on a sign [is] oncoming traffic has a longer green." He believed that the "obey your signal only" sign was sufficient to comply with the Manual of Uniform Traffic Control Devices, which gave no specific guidelines for posting either that sign or the sign "oncoming traffic has a longer green light." In his opinion, there was no need to warn westbound drivers at Emerson and Ridge of the difference in timing of the stoplights.

Paul Box, a traffic engineering consultant, testified as an expert witness on defendant's behalf. He admitted that the sign "obey your signal only" instructs a motorist to "look at [her] signal and not some other signal that may be 100 or 200 feet away that's also within [her] line of sight." He agreed that the primary purpose of the sign at Emerson and Ridge was "to tell westbound drivers not to look ahead to the Green Bay-Emerson intersection but to obey the signal that was located * * * at Emerson and Ridge." He testified that, although the sign "oncoming traffic has a longer green light" had long been in use, its message was not clear: "It does not tell you which way is longer, at the beginning or end of the cycle. It takes longer to read and has to be comprehended unlike the [' ]obey your signal only['] sign." He said that the "obey your signal only" sign could, but might not, give a westbound motorist on Emerson "notice of the existence of a different timing sequence" for eastbound Emerson.

The trial court asked Box how the sign could tell the driver anything about the signal facing traffic going the opposite direction. Box answered: "The basic driver knows that you are supposed to obey your signal. Now when you face this and you've got the added sign at the location and you are facing a red, to me it gives you an added degree of caution that you should follow." The trial court clarified that the sign is "not addressing itself to the other side of the signal that's facing you." Box agreed.

Olivieri testified that she did not interpret the sign to mean she should take special care with eastbound traffic. She interpreted the sign to mean she should heed only the signal she saw for Emerson and Ridge.

The bulk of the testimony at trial concerned the injuries plaintiff suffered as a result of the accident. Since the car remained operable following the accident, plaintiff and Steven proceeded to their destination. Within two days of the accident, plaintiff started experiencing a throbbing backache, so she made an appointment to see her chiropractor, Dr. Harold Krueger, on December 3, 1984, nine days after the accident.

Dr. Krueger testified that he first treated plaintiff in 1979, five years before the accident, when she injured her back in horseplay with her husband on a beach. He had a series of appointments with her in 1979, all related to that injury. He treated her in both 1980 and 1981 for "chronic cervical and lumbar symptoms." She fell in 1983 and went back to Dr. Krueger for treatment of "acute lumbosacral sprain." She responded well to the manipulations and other treatments he gave her. He treated her several times in February 1984 following a skiing trip during which plaintiff began experiencing back muscle spasms.

Dr. Krueger's manipulations in February 1984 provided plaintiff only temporary relief, so she went to see Dr. David Spencer, an orthopedic spine surgeon. Dr. Spencer testified that he administered a straight leg raise test and took x rays to determine whether she had a herniated disk. Since she was able to raise her leg 90 degrees, her leg raise test did not indicate herniation. The x rays also showed no herniation. He diagnosed her condition as "back sprain or back pain without sciatica." Plaintiff saw Dr. Spencer three times in one month in 1984, but he provided no treatment beyond the treatment Dr. Krueger provided because "there isn't anything reliable that you can do about this type of back pain."

Plaintiff missed almost a month from her work as a receptionist in February and March 1984. She reduced her hours to part-time from March until May 1984, losing almost 130 hours from her full-time work schedule. She felt much better by the summer and she was able to resume her considerable athletic activities. For most of her life prior to the accident, Debra was very active physically. Biking, camping, hiking and playing tennis were an important part of her life. During summer and fall 1984 she engaged in all of her regular physical activities without difficulty.

When Dr. Krueger saw plaintiff on December 3, 1984, he noticed her condition was much worse than it had been on her prior visits. Her husband carried her into the doctor's office. She explained that she had been in a car accident and she could barely walk. When she stood a severe muscle spasm caused her to bend forward. She complained of both numbness and pain. He administered a straight leg raise test. She was only able to raise her leg 50 degrees, and Dr. Krueger interpreted this as an indication of possible disk herniation. He could not provide much relief.

Steven needed to take a business trip to Florida in mid-December 1984 and he had arranged to take plaintiff with him. She went on the vacation despite her pain because she thought "the warmth would make [her] feel better and the relaxation would make [her] feel better." Her condition did not improve. She took several more days of vacation from work at the end of December, just lying around the house in pain. She took the time as vacation rather than sick time because she would lose her vacation pay if she did not use it. She took no sick days in November or December 1984.

Dr. Krueger continued to treat her for back pain, seeing her 12 times between December 3, 1984, and February 11, 1985. He suggested that she should see Dr. Irwin Carson, an orthopedic surgeon.

Dr. Carson testified that plaintiff came to him for treatment for the pain and discomfort she experienced in pursuing her daily activities. For example, she would "try to cook for a period of time, [and] have pain in her leg or pain down her back." Dr. Carson looked at CT scans of plaintiff's back taken a year earlier and agreed with Dr. Spencer that her spine was then normal. He agreed with Dr. Krueger that her recent straight leg raise test indicated nerve root irritation, possibly due to disk herniation. He ordered new radiologic tests, including CT scans and an MRI. The tests showed a disk bulging so far that it might be herniated. However her symptoms of nerve root irritation were not deteriorating, and there could have been causes other than herniation for the irritation and bulging.

Plaintiff reported marginal improvement in her condition on visits to Dr. Carson after February 1985, but her range of activity remained severely restricted. Dr. Carson ordered medication and physical therapy to ...


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