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03/22/94 SHIRLEY AFFATATO v. JEWEL COMPANIES

March 22, 1994

SHIRLEY AFFATATO, PLAINTIFF-APPELLANT,
v.
JEWEL COMPANIES, INC., AND THE CITY OF CHICAGO, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable William A. Kelly, Judge Presiding.

Released for Publication May 5, 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, Shirley Affatato, sued Jewel Companies, Inc., for selling milk contaminated with salmonella which caused her husband, Anthony Affatato, to suffer salmonellosis before his death, and which caused his death. Jewel conceded liability for suffering before death, but argued that the salmonella did not cause death. Plaintiff appeals from the judgment entered on the jury's verdict for Jewel on wrongful death and from the amount awarded plaintiff for Anthony's suffering before death.

We find that the verdict in favor of Jewel on the wrongful death claim is neither contrary to the manifest weight of the evidence nor inconsistent with the verdict against other defendants. The trial court committed no reversible error in its rulings on the evidence. Therefore, in part I of the opinion, we affirm the judgment for Jewel in the wrongful death action and the judgment for plaintiff on the claim for Anthony's suffering before death.

Plaintiff also sued the City of Chicago (the City) for responding to her 911 call too late to prevent Anthony's death. Plaintiff appeals from the trial court's decision granting the City summary judgment. We find that plaintiff failed to present evidence which could support a finding that the City committed willful and wanton misconduct, and therefore in part II of the opinion we affirm the decision granting the City summary judgment.

I.

In early April 1985 Anthony Affatato drank some milk plaintiff purchased from a Jewel food store. On April 14 Anthony had severe stomach pains, and that night he began vomiting. He had diarrhea and a fever of 103 degrees. On April 16, 1985, plaintiff called Anthony's doctor, Dr. Oscar Osimani, who told her to take Anthony to the emergency room at Resurrection Hospital. Tests done at the hospital showed that Anthony had contracted salmonellosis. On April 19 plaintiff and Anthony began keeping a diary in which they described Anthony's symptoms and the course of his illness.

When Anthony's condition had not improved by April 23, plaintiff went to Dr. Osimani's office to schedule an appointment. At that appointment, on May 7, Dr. Osimani found that Anthony continued to suffer from salmonellosis. Anthony went to see Dr. Osimani again on May 21, complaining of rectal pain. Dr. Osimani treated Anthony's hemorrhoids, and he noted that Anthony continued to experience symptoms of salmonellosis, including diarrhea which may have caused the hemorrhoids.

On June 2, 1985, along with the continuing symptoms of salmonellosis, Anthony had chest pains and he vomited with great force. Plaintiff took him to the emergency room at Resurrection Hospital, where Dr. Tighe Zimmers examined him. He ordered an electrocardiogram (EKG) for Anthony. After he got the results he called Dr. Osimani to tell him of the symptoms. Dr. Zimmers diagnosed Anthony's condition as "Non-cardiac Chest Pain, Secondary to Gas." Dr. Zimmers recommended no hospitalization. He did not have the authority to admit patients to the hospital, but Dr. Osimani could. Dr. Zimmers gave Anthony medicine for indigestion and discharged him from the emergency room. The hospital sent Dr. Osimani the EKG on June 3. Dr. Osimani did not attempt to contact Anthony.

Anthony had some chest pain for several days during the following week. After a particularly bad night on June 9, plaintiff called Dr. Osimani early on the morning of June 10, 1985. Dr. Osimani told her to bring Anthony to the outpatient department of Resurrection Hospital at 11:30 that morning. Plaintiff went to work, planning to come home at 11 a.m. She took their daughter to nursery school, leaving Anthony with their ten-year-old son. Her son called her at work to tell her that he could not wake Anthony. By the time they were able to get Anthony to the hospital, he had died of a heart attack.

Plaintiff, in her capacities as executor of Anthony's estate, as next friend of her children, and on her own behalf, sued Jewel Companies, Inc., Dr. Osimani, Dr. Zimmers and Resurrection Hospital.

At trial, plaintiff used the diary to refresh her memory concerning the course of Anthony's illness. She said he had diarrhea which kept him up at night and caused him to go to the bathroom 10 times an hour for more than a week. He ate very little and drank only eight ounces of Gatorade each day. By early May his diarrhea let up so that he was going to the bathroom 30 times a day, but he still could not eat or drink much. Diarrhea continued throughout his illness, causing him to go to the bathroom at least 10 times a day.

The trial court did not allow the diary itself into evidence, and the court disallowed reference to several particular entries, including parts of the entries for April 26, May 4, 7, 13 and 28, and June 2, 3 and 8. In those entries, Anthony reported: "I feel so sick yet they say there is nothing they can do for me;" "Can't believe I'll ever get better, but doctor says it just takes time - so hang in there;" "Doctor * * * explained that it might be awhile before I get better;" and "I'll keep doing what they say so I can get better."

Plaintiff most strenuously objected to exclusion of entries for May 28 and thereafter. Anthony there said:

"Put a call in[ ]to my Doctor. He called back and I told him about pains, he said it could be very bad indigestion - try 2 Maalox 1 hour after each meal. And then 2 more at bedtime.

If it does not get better, I'm supposed to go see him at the Outpatient department at hospital."

After his emergency room visit, Anthony recorded that Dr. Zimmers told him, if his chest pain

"persists, follow up with doctor. * * * Doctor said medicine would not take all the chest pain away. It would just relieve some of it and make the pains not so bad."

For the next day, he said he was "Trying to eat 7 or 8 times a day instead of 3 times a day, doctor said it will help the throwing up." On June 8, Anthony told plaintiff to write:

"Really feel bad today. Shirley's mad because I don't complain how bad I feel, but every time I tell the doctor how I feel he says I know, I know. Never seems ...


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