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06/25/96 EVA PODOBA v. PYRAMID ELECTRIC

June 25, 1996

EVA PODOBA, PLAINTIFF-APPELLANT,
v.
PYRAMID ELECTRIC, INC., A FOREIGN CORPORATION, AND GARY LERUEZ, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County. No. 89-L-703. Honorable George J. Moran, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court: Hopkins, P.j., and Maag, J., concur.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Plaintiff, Eva Podoba, appeals from a judgment of the circuit court of Madison County entered after the jury returned a verdict in favor of defendants, Pyramid Electric, Inc., and Gary LeRuez, arising from a negligence action involving a rear-end collision.

In this cause, plaintiff raises two issues for our consideration: (1) whether the jury verdict is against the manifest weight of the evidence, and (2) whether the trial court erred in instructing the jury concerning the issue of aggravation of a preexisting condition. We reverse and remand. In light of our disposition of this cause, we need only address the jury-instruction issue.

I

On the morning of October 13, 1988, an automobile driven by plaintiff was traveling on Nameoki Road, in Granite City. Plaintiff was headed for Jill Avenue in her 1976 Pontiac. Plaintiff was in the left northbound lane as she approached Jill Avenue. The weather was clear and sunny. Defendant Gary LeRuez (hereinafter referred to as defendant), an employee of defendant Pyramid Electric, Inc., was driving a Pyramid pickup truck, also in the left northbound lane of Nameoki Road. He was looking for a delivery site in Granite City. Defendant had been following plaintiff for several blocks before the intersection of Jill Avenue. As plaintiff approached the intersection of Jill Avenue and Nameoki Road, she slowed down to a stop because the light had turned red and another car was stopped at the intersection. It is unclear from the record whether the light was red or yellow when plaintiff reached the intersection. Defendant testified that the light had turned yellow. Defendant stated that he saw plaintiff's brake lights come on, but he did not have time to react fast enough to avoid hitting plaintiff when she stopped. Plaintiff testified that she stopped her car about a car length behind the car in front of her. After coming to a stop, plaintiff felt an impact behind her. Initially, plaintiff did not realize that defendant's truck had collided with her car because the impact left her "kind of dazed."

Plaintiff testified that upon impact, her knees slid up and hit the dashboard on either side of the steering column. At the moment of impact, plaintiff was holding on to the steering wheel. Her wrists caved in and her shoulders came forward and hit the steering wheel and her head snapped back.

After the collision, plaintiff sat in her car a few minutes to reorient herself. Plaintiff got out of her car and walked to the back of it to survey the damage. Defendant got out of his truck and joined plaintiff. Plaintiff's car sustained very minimal damage. The bumper on defendant's truck was slightly pushed into the grill. Plaintiff and defendant exchanged information, and defendant offered to call an ambulance for plaintiff. Plaintiff declined the offer. She felt that she would be okay and that any physical discomfort would eventually pass. The police were not called to the scene of the collision.

Plaintiff returned home and told her husband about the accident. About 1 1/2 hours later, plaintiff went to the police department to report the accident. Plaintiff obtained a report to fill out and was told to mail it in. She mailed in the report a few days later.

Shortly after the accident, on November 7, 1988, plaintiff saw Dr. Thomas Fox, an orthopedic surgeon, complaining of left-knee pain. Plaintiff told Dr. Fox that she had been involved in a car accident on October 13, 1988, in which she hit her left shin on the dashboard upon impact. Dr. Fox opined that plaintiff might have sprained her knee and possibly had some irritation along one of the tendons and the hamstring on the inner side of the knee.

On November 17, 1988, plaintiff saw Dr. Fox again regarding back pain she had been experiencing after having done some housecleaning on the previous afternoon. Dr. Fox believed that plaintiff probably strained her back and that it was possibly related to the preexisting degeneration between the level L5-S1.

Plaintiff next saw Dr. George Schoedinger, an orthopedic surgeon on December 16, 1988. Plaintiff complained of low-back pain, which she attributed to her abnormal gait that developed as a result of the knee pain she was experiencing. Plaintiff also reported stiffness about the shoulder and neck area. Dr. Schoedinger recommended an exercise regime for plaintiff. By February 1990, plaintiff's back pain worsened, and an MRI was performed. The MRI revealed disk rupture at two levels in plaintiff's low back. A subsequent myelogram confirmed the MRI findings of abnormalities of the lowest two disk spaces between 4 and 5 and 5 and 1. There were also changes in plaintiff's neck at multiple levels, as well as primarily in C4 and C5. On September 14, 1992, plaintiff was hospitalized for a lumbar diskectomy performed by Dr. Schoedinger. Dr. Schoedinger removed the disk between C4 and C5. Because plaintiff continued to experience neck pain, an anterior cervical diskectomy was performed on May 11, 1993. Dr. Schoedinger last saw plaintiff on January 17, 1994. During that visit, plaintiff related that she continued to have pain in the back of her neck, between her shoulders, and in her back. A battery of tests were performed, which indicated no abnormalities in plaintiff's neck, and there was no evidence of disk rupture anyplace. Dr. Schoedinger informed plaintiff that further medical or surgical treatment would be of no benefit to her, and he recommended that she maintain a high level of activity.

Plaintiff also saw Dr. Forbes McMullin, an orthopedic surgeon specializing in knee and hip problems. Dr. McMullin treated plaintiff's knee. In his evidence deposition, Dr. McMullin testified that he first saw plaintiff on December 16, 1988. Plaintiff's chief complaints were that she had difficulty bending her left knee and was unable to carry out her normal activities, because of the pain. Dr. McMullin diagnosed plaintiff as having mild narrowing of the medial compartment disease on both knees and probable posttraumatic chondromalacia patella to both knees, since plaintiff experienced some pain on her knee cap, or patella. Plaintiff was placed on an exercise program. At her September 20, 1989, visit to Dr. McMullin's office, plaintiff stated that her knee pain had worsened. On November 6, 1989, Dr. McMullin performed an arthroscopy on plaintiff's knee, removing torn tissue involving the mid- and posterior horn of the medial meniscus and debriding the undersurface of the patella. Plaintiff's postoperative treatment consisted of a specialized exercise regime to strengthen the quadriceps muscle. On January 21, 1991, Dr. McMullin saw plaintiff again concerning increased pain in her left knee. Dr. McMullin opined that plaintiff's discomfort was related to her earlier meniscal cartilage ...


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