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03/29/96 KELLY SIMON v. ERIC VAN STEENLANDT AND

March 29, 1996

KELLY SIMON, A MINOR, BY AND THROUGH HER MOTHER AND NEXT FRIEND, SANDRA SIMON, PLAINTIFF-APPELLANT,
v.
ERIC VAN STEENLANDT AND DANIEL L. SIMON, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. 89 L 9298. Honorable Philip A. Fleischman, Judge Presiding.

The Honorable Justice Cahill delivered the opinion of the court: Hoffman, P.j., and Theis, J., concur.

The opinion of the court was delivered by: Cahill

The Honorable Justice CAHILL delivered the opinion of the court:

Kelly Simon was a passenger in her father's car when it collided with a car driven by defendant Eric Van Steenlandt. Kelly sued Eric Van Steenlandt and her father, Daniel L. Simon, for negligence. After trial, a jury found for defendant Van Steenlandt and against Kelly's father. The jury awarded Kelly damages of $2,300 for future medical expenses and $300 for pain and suffering. They returned a zero verdict on the issue of permanent disfigurement. The court entered judgment for $2,600. We affirm.

Defendant Daniel L. Simon testified that on May 15, 1988, he was driving his nine year old daughter, Kelly, to her baseball practice for team pictures. At the intersection of Route 83 and Dempster Street, Daniel drove into the intersection and stopped in the left turn lane, awaiting an opportunity to turn. As he waited for traffic to clear, the light changed from green to amber and then to red. As he began the left turn, another vehicle, driven by Van Steenlandt, entered the intersection from the opposite direction and collided with Daniel's car.

Van Steenlandt's car struck Daniel's car on the passenger door. Kelly was seated in the front passenger seat. The impact caused glass to shatter and cut Kelly's forehead. Kelly's wound required stitches, which, when removed, left a visible scar on her forehead.

Dr. David Teplica, a plastic and reconstructive surgeon, testified at trial that Kelly's wound healed as well as could be expected. He said that her scar was stable and would remain so for the rest of her life. He said that the scar could be treated but not made to disappear. He said: "once [a] scar has been formed it's there and there [is] no way to change that."

He then testified that reconstructive surgery could make the scar "less apparent to the naked eye." He said that surgery could not guarantee a result, but Kelly was a good candidate for reconstructive surgery. Teplica estimated the cost of reconstructive surgery to be $2,300.

Kelly raises five issues on appeal: whether (1) there was improper closing argument; (2) a conflict of interest existed between Daniel Simon and his lawyer; (3) the court erred in its instructions on mortality tables and future medical expenses; (4) the verdict was inconsistent and inadequate; and (5) the cumulative effect of the alleged errors denied her a fair trial.

Kelly first argues that reference in closing argument to Kelly's mother as a party in interest was improper and prejudiced the plaintiff.

The record reveals that Kelly's counsel said in closing argument that Kelly was the only party in interest and that any judgment she received would be hers alone. In response, Van Steenlandt's counsel said that Sandra Simon, Kelly's mother, was a necessary party and explained that Kelly did not have the legal capacity to sue absent her next friend and mother. Kelly's counsel objected and the objection was sustained.

We believe the judge cured any prejudice when he sustained the objection and instructed the jury that Kelly Simon was the real party in interest. The remarks were not so prejudicial that a new trial is warranted. Green v. University of Chicago Hospitals and Clinics, 258 Ill. App. 3d 536, 631 N.E.2d 271, 197 Ill. Dec. 268 (1994).

Kelly also argues that she was prejudiced when Simon's counsel offered his personal views of the evidence in closing argument. Kelly waived this issue for review. She did not object to the remarks at trial. Robinson v. Wieboldt Stores, 104 Ill. App. 3d 1021, 1027, 433 N.E.2d 1005, 60 Ill. Dec. 767 (1982).

Kelly next argues that a conflict of interest between Daniel Simon and his lawyer prejudiced her case. Kelly's original complaint named Van Steenlandt as the only defendant. Van Steenlandt then filed a third party complaint for contribution and named Daniel Simon as a third party defendant. While this case was pending, the supreme court decided Cates v. Cates, 156 Ill. 2d 76, 619 N.E.2d 715, 189 Ill. Dec. 14 (1993). Cates abolished the doctrine of parental tort immunity in ...


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