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September 13, 1995


Appeal from the Circuit Court of Cook County. Honorable John J. Virgilio, Judge Presiding.

As Corrected October 2, 1995. Petition for Leave to Appeal Denied April 3, 1996.

The Honorable Justice Cerda delivered the opinion of the court: Rizzi, J., and Tully, J., concur.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA delivered the opinion of the court:

Plaintiff, James M. Boersma, sued defendant, Amoco Oil Company, for his injuries incurred when the roadway on which plaintiff was working in defendant's Indiana refinery collapsed after steam lines broke beneath it allegedly due to defendant's negligence. Defendant appeals from a jury verdict in favor of plaintiff and argues that the trial court erred in applying Illinois substantive law in the trial of the accident, instructing the jury about the doctrine of res ipsa loquitur, barring several defense witnesses, excluding and admitting certain evidence, denying defendant's request for a mistrial, and denying defendant's request for a remittitur of damages. We reverse and remand.

Before opening statements, the trial court ruled that Indiana law would apply because Indiana had the most significant contacts with the occurrence.

Plaintiff worked as an insulator for a company that contracted with defendant to insulate pipes in defendant's refinery. Steam lines were used in the refinery to heat pipes so that refinery products could flow through them. While working at the refinery on March 21, 1985, plaintiff noticed some steam blowing across the roadway which he thought was coming from a steam trap. The roadway on which plaintiff was walking collapsed as a result of a steam leak, and plaintiff was injured when he fell on his back.

Defendant's operations maintenance coordinator at the time of the accident, Allen D. Williamson, testified at trial on cross-examination by defendant that this steam line leak was not catastrophic. He testified on redirect examination by plaintiff that there were two catastrophic leaks within the past five years. An objection to the testimony was overruled. He also testified that there were two or three non-catastrophic leaks in the previous three years. Defendant moved for a mistrial. The trial court ruled that defendant "opened the door" to the testimony of subsequent leaks by asking Williamson whether the steam line leak was catastrophic.

A neurological surgeon, Dr. Charles Chuman, testified to his diagnosis of plaintiff's condition. Plaintiff suffered from sick nerve roots, a break in a bone of the spine called spondylosis, and a slippage of the spine called spondylolisthesis. Plaintiff's main problems were the break in the spine and the instability that resulted. Plaintiff's injury was severely incapacitating, and he had resulting back and leg pain. Plaintiff's spinal break and slippage were caused by a trauma. The sort of injury that plaintiff sustained in the accident was consistent with the production of a spinal fracture. He had no evidence that plaintiff had a preexisting problem.

According to Dr. Chuman when plaintiff engaged in an activity where the weight of his upper body pushed down on the broken area of the bone, it caused a forward slippage of the bone, compressing the nerve that went into the leg and producing pain down the leg. Plaintiff was not able to return to any activity that required bending, twisting, and lifting. Any type of construction activity would cause plaintiff pain. Plaintiff would experience a lot of back pain if he went pleasure boating because of waves. For plaintiff to sit in a boat with a little rocking would be better than sitting in one position for a long time.

Plaintiff testified that he had no prior back trouble. He could no longer work as an insulator because of severe back pain. He had considerable pain when he turned his neck. His legs were very weak. He could bend over only about three-quarters of the way. He could not twist. He could sit for 90 minutes or two hours. He could walk only two blocks. He had either fair days or bad days. On the bad days he could just sit in a chair. He used a boat two or three times a month only when the weather was calm. His condition had worsened.

Plaintiff testified about working after the accident. He did some house painting, but he could not finish due to pain. He did some odd jobs for two months on and off at a video store owned by Walter Siggins and by plaintiff's wife Josephine when she was married to Walter Siggins. He labelled some movies; he put some grooves in some shelves. He climbed up a ladder only once, handing material to his brother who was doing electrical work. He did some painting and assisted in installing a tile floor in the Siggins's house. He never did any work on his homes in Illinois. He did a few odd jobs at a hair salon such as hanging pictures and plumbing.

Plaintiff's brother and a son also worked at the video store, and the money they earned there was given to him. He never talked about his injury or avoiding surveillance with Richard Siggins. He did not try to avoid surveillance while he worked at the video store.

The superintendent of maintenance engineering at the refinery, Kenneth P. Panozzo, was questioned at trial whether he had taken any measurements in the area of the accident. Plaintiff objected on the basis that Panozzo's expert opinion had not been disclosed. The trial court barred the witness from giving an expert opinion about the leak.

There was no testimony from any witness giving an opinion about the cause of the steam leak.

Peter F. Dignan testified that he was a Chicago police officer who conducted some surveillance of plaintiff and videotaped plaintiff in May 1992. The surveillance videotape was shown to the jury. The trial court permitted Dignan only to testify about what he videotaped and not about his observations or conversations with plaintiff.

A neurological surgeon retained by plaintiff's employer, Dr. Marshall Matz, testified for the defendant to the following at his videotaped evidence deposition that was shown to the jury. He gave plaintiff a neuromuscular examination in January 1986, and the results were normal. He reexamined plaintiff in May 1992, and the neurological findings were not consistent with a lower-back problem. Plaintiff's spondylolisthesis was a preexisting condition, and it did not cause any nerve root compression. Plaintiff did not have the kinds of complaints that indicated a broken spine or back. There was no objective evidence to support plaintiff's claim of disability. Plaintiff could be employed in his usual capacity.

Dr. Matz had testified in court proceedings 21 times from 1990 through 1992 and 20 times were for defendants. In part, plaintiff's cross-examination of Dr. Matz was as follows:

"Q: Are you familiar with the case of Helga and Larry Burs vs. Anthony Ascew and Coplee Press, went to trial in Lake County back in May 1990?

A: I'm afraid I don't recall that.

Q: Do you remember signing Answers to Interrogatories in that case which you said you testified 56 times for that law firm within the last 15 years?

A: Impossible.

Q: That's not possible?

A: Impossible.

** ...

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