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05/22/95 WILLIAM GERSCH v. KELSO-BURNETT COMPANY

May 22, 1995

WILLIAM GERSCH, PLAINTIFF-APPELLANT,
v.
KELSO-BURNETT COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable STUART A. NUDELMAN, Judge Presiding.

The Honorable Justice Buckley delivered the opinion of the court: Wolfson and Braden, JJ., concur.

The opinion of the court was delivered by: Buckley

The Honorable Justice BUCKLEY delivered the opinion of the court:

Plaintiff, William Gersch, filed a personal injury suit against defendant, Kelso-Burnett Company, for injuries he sustained on June 6, 1986, when his hand came in contact with live electrical wires. Defendant was the electrician on a construction site where plaintiff was injured. The jury returned a verdict for plaintiff. The trial court granted defendant's post-trial motion for a new trial.

Plaintiff filed his petition for leave to appeal alleging that the trial court abused its discretion in ordering a new trial because (1) defendant was not surprised by plaintiff's future wage loss claim and the issue properly went to the jury; (2) defendant failed to conform to the requirements for a new trial based on newly discovered evidence; (3) the trial court properly excluded the videotape of plaintiff offered by defendant at trial; and (4) the trial court properly limited defendant's cross-examination of plaintiff's witness regarding workers' compensation benefits. We granted plaintiff's motion to reconsider denial of the right to appeal on February 18, 1994.

The purpose of a motion for a new trial is to give the trial court an opportunity to correct any error it made at trial. ( Keen v. Davis (1967), 38 Ill. 2d 280, 281, 230 N.E.2d 859, 860.) Jury verdicts should not be set aside and cause the expense of a new trial unless there has been a miscarriage of justice, caused by an error that prejudiced and affected the substantial rights of an innocent party. ( Southern Illinois Airport Authority v. Smith (1994), 267 Ill. App. 3d 201, 209, 641 N.E.2d 1240, 1246, 204 Ill. Dec. 621.) A reviewing court will not reverse the order granting a new trial unless it is shown to be an abuse of discretion. Southern Illinois, 267 Ill. App. 3d at 204, 641 N.E.2d at 1242.

Plaintiff first argues that the trial court erred when it reversed its prior rulings and held that plaintiff's claim for future lost earnings should not have been submitted to the jury because defendant was surprised by the claim at the time of trial. Several times at trial, the court denied defendant's motion to bar the claim or sustained defendant's objections to introduction of evidence concerning future wage loss. Specifically, at trial, the court stated:

"It seems to be that you're not taken by surprise, Mr. Jump. It seems to me although I tend to agree with you that these [supplemental interrogatories], in fact, should have been updated by plaintiff's counsel *** I think it has also been pointed out to me in our discussion as of Thursday of last week that counsel was going to seek lost wages up until and including perhaps the date of trial *** I don't believe that that's [surprise] occurred."

At trial, the court barred any claims for lost wages after February 8, 1991, the date of plaintiff's deposition, through the end of that year. When defendant asked the court to reconsider its ruling, the court found that defendant was in possession of plaintiff's tax returns and knew that the issue of future wages would be developed.

At the post-trial hearing, the court stated that it had erred during the trial in allowing a future wage loss claim to go to the jury. It did not believe that the tax records equated to a loss of income.

Defendant's entire claim is based on surprise. It argued at trial, and after trial, that it had no notice of a claim for future wage loss until the morning (during trial) Dr. Pedersen's discovery deposition was taken and the doctor stated that plaintiff's injuries were permanent. It argued that plaintiff had not presented such a claim in his answers to interrogatories, never answered supplemental interrogatories, and never made the claim at his deposition.

Plaintiff argues that defendant had notice of the claim based on the fact that, at his deposition, Dr. Feely stated that plaintiff's injuries were permanent and that plaintiff himself testified at his deposition that because of his injuries he was no longer able to perform his normal activities. Plaintiff testified that he could not keep a job because of his inability to perform the work. According to plaintiff, this evidence put defendant on notice of a claim for future wage loss.

The issue is whether defendant was surprised at trial by plaintiff's claim for future lost wages. We find that there was ample evidence available to defendant prior to trial to put it on notice that plaintiff's injuries were permanent and affected his ability to work and earn wages as he previously did. Plaintiff's complaint provides the first notification. In paragraph 6, the complaint states that plaintiff is "unable to work as a carpenter foreman." In addition, the complaint avers that plaintiff was "deprived of great gains which he would have otherwise made; has serious and permanent injuries." Plaintiff also provided defendant with tax returns for the years following the accident which show a decrease in the income he earned.

The record further demonstrates that Dr. Feely testified in his deposition on March 31, 1993, that plaintiff's injuries were permanent. At the time of his examination, the doctor observed abnormalfindings that led him to believe ...


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