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September 29, 1994


Appeal from the Circuit Court of McHenry County. No. 89-L-301. Honorable Michael J. Sullivan, Judge, Presiding.

Bowman, Inglis, Quetsch

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Following a trial on an admitted liability personal injury automobile accident case, the jury returned a verdict for damages in favor of plaintiff, Cindy Sands, but specifically awarded plaintiff nothing for disability. Defendant, Bruce D. Glass, in his capacity as administrator of the estate of Anatoliy Popow, appeals from a subsequent order of the circuit court of McHenry County which granted plaintiff's motion for a new trial. Defendant petitioned for and was granted leave to appeal pursuant to Supreme Court Rule 306(a)(1) (134 Ill. 2d R. 306(a)(1)).

The following facts were revealed at trial. Plaintiff was injured on May 11, 1989, when the car in which she was riding was struck from behind by Anatoliy Popow. When Dr. Rochell first saw plaintiff, on May 30, 1989, her arm was in a sling. The doctor treated her for a fracture of the right upper arm and prescribed continued use of the sling. In June, while he prescribed exercises for her arm to regain lost motion, he also found continued use of the sling to be appropriate. In mid-July 1989, plaintiff had decreased motion and numbness in her shoulder. She also had pain in both knees from hitting the dashboard during the accident, and the doctor diagnosed post-traumatic chondromalacia of the patella. He instructed plaintiff to avoid deep knee bends and stairs, and prescribed physical therapy for her shoulder.

In July 1990, Dr. Rochell performed surgery on plaintiff's shoulder for an accident-related injury. Over the next few months the doctor prescribed physical therapy for both her shoulder and her knee, but in November plaintiff still had pain and limitation of motion in the shoulder, and pain in the knee. The doctor prescribed home exercise and told plaintiff to avoid certain activities. Dr. Rochell opined that, although she was not totally disabled, plaintiff was disabled from doing most types of work from the date of the accident to November 1990 and might require further surgery. At the time of trial, in March 1993, plaintiff had less range of motion in her shoulder than in November 1990.

Dr. Carleton Smith, a chiropractor, first diagnosed plaintiff as suffering from a condition of the cervical and thoracic spine, in which her vertebrae were out of alignment and the muscles were inflamed. He treated plaintiff on a regular basis from two weeks after the accident in 1989 through April 1992. The doctor opined that plaintiff's injuries were permanent and were sufficient to cause some degree of disability relative to her neck and back. He had recommended to plaintiff that she refrain from lifting and heavy physical work and that she stay off work.

Plaintiff testified that, at the time of the accident, she was employed as a factory worker. Afterwards, she never attempted to return to her factory job and was terminated in March 1990. She first became employed after the accident in September 1990 when she was hired as a bus aid by the Community Action Agency for McHenry County. About a year later she became a bus driver, a job she held at the time of trial.

Both plaintiff and her friend, Amanda Nutter, testified that in the weeks after the accident plaintiff was unable to hold her two-year-old daughter or pick her up. Sometimes she could not even let the little girl sit on her lap because of the pain. During that period, plaintiff needed help from her son and her sister in caring for her daughter. According to plaintiff, she was also unable to tend adequately to her daughter for four to six weeks after the surgery on her shoulder. Nutter added that, initially, plaintiff could not do routine housecleaning chores, like washing dishes and sweeping the floor, by herself.

Plaintiff also testified regarding her physical condition at the time of trial. Because of pain in her knees, stair climbing was a "killer," and she could not walk as much or as fast as she could before the injury. For example, she could no longer walk the family dogs. Nor could she swim as she had been able to previously. She could not sit with her leg in one position for very long as her knee would stiffen, and it would have to be rubbed to loosen it. Plaintiff said she always had pain in her neck and back, which was worse some days than others. After driving the bus her right arm and shoulder were extremely uncomfortable.

Dr. Fischer testified on behalf of defendant. With regard to plaintiff's disability he said that plaintiff was 5 feet 4 inches tall and weighed 260 pounds and that her weight could be a factor with respect to problems she may have had with her knees. The witness opined that when he examined her in April 1992 plaintiff did not have any disability with respect to her neck or back. She had some sensitivity to touch in her knees, but the witness thought that would clear up, and he did not anticipate that there would be any significant degree of disability thereafter. As for plaintiff's right shoulder, although the doctor thought she had made an excellent recovery at the time he examined her, he did find that plaintiff had a slightly limited range of motion in that shoulder. Nevertheless, she was capable of doing all the things that were necessary in her lifestyle, and, barring anything unforeseen, that should continue.

At the Conclusion of the trial the jury was given the following instruction, which was tendered as defendant's instruction No. 13:

"If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant, taking into consideration the nature, extent and ...

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