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June 26, 1996


Appeal from the Circuit Court of Cook County. Honorable Edward G. Finnegan, Judge Presiding.

As Modified on Denial of Rehearing February 25, 1997. Rehearing Denied February 20, 1997. Released for Publication February 28, 1997.

Presiding Justice Tully delivered the opinion of the court. Greiman and Cerda, JJ., concur.

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

Plaintiffs, Harold Kravcik (hereinafter Harold), and his wife, Sandra Kravcik (hereinafter Sandra), brought this action in the circuit court of Cook County against defendants, Golub & Company, Inc. (hereinafter Golub), the on-site management company, and Pacific Mutual Life Insurance Company (hereinafter Pacific Mutual), the mortgagee-in-possession of the premises, to recover damages for personal injuries Harold sustained on an outdoor deck adjacent to the office building where he worked. Following a jury trial, the jury returned a verdict in favor of plaintiffs, awarding a net amount of $32,772.07 to Harold and $19,000 to Sandra and the trial court entered the judgment upon the verdict. Plaintiffs filed a post-trial motion seeking a new trial on the issue of damages only, which the circuit court denied. It is from this order that plaintiffs now appeal to this court pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301). In addition, defendants filed a post-trial motion seeking setoffs for plaintiffs' prior settlement amounts, which the trial court denied and from which they cross-appeal to this court under Supreme Court Rule 303 (155 Ill. 2d R. 303).

For the reasons which follow, we affirm in part and reverse in part and remand with directions.


We will limit our discussion to the facts pertaining to the issues on appeal. No questions regarding liability are raised. Harold was employed as an insurance agent for the John Hancock Insurance Company located at 85 West Algonquin Road, Arlington Heights, Illinois. On December 15, 1986, as Harold was walking across the patio deck adjacent to the building housing his workplace, he tripped and hit his head on a brick planter. The mortgagee-in-possession of the building was Pacific Mutual, and it had retained Golub as the on-site property manager.

At trial, Dr. Robert Eilers, Dr. Jerry Sweet, and Dr. James Harrison testified on behalf of plaintiff. Dr. Eilers testified that as a result of the occurrence, Harold suffered a mild to moderate closed head injury, multiple cognitive deficits, impairment to his memory and problem solving abilities, insight into his own deficits and a seizure disorder.

Dr. Sweet, a treating neuropsychologist, testified that after the incident, Harold suffered from depression, headaches, memory difficulties, verbal learning and memory problems, as well as deficits in organizing behavior and functioning. Dr. Sweet explained that the occurrence aggravated Harold's prior psychological problems and learning deficits. He also stated that he is unable to conduct normal daily activities and would be unable to work in the future.

Dr. Harrison, Harold's regular physician, testified via videotaped evidence deposition that he was treating Harold for a seizure disorder and memory problems. His role was to monitor the blood levels of the medication which had been prescribed to Harold. In sum, all three doctors stated that Harold's condition was permanent.

Dr. David Shenker, Ronald Ganellan, Ph.D. and Dr. James Cavanaugh testified on behalf of defendants. Dr. Shenker, a neurologist, testified concerning Harold's prior medical history and his condition after the occurrence. Dr. Shenker stated that he examined Harold on October 6, 1992, and found Harold had suffered a mild concussion due to the fall. Dr. Shenker stated that Harold did not suffer any brain damage, ongoing neurologic consequences, memory problems, seizures, vision problems or headaches as a result of the accident, but had physical and mental problems prior to the accident.

Ganellan, a neuropsychologist, treated Harold during his post-occurrence treatment, and testified that he had a mild head injury. He opined that Harold's difficulties were the result of a psychiatric condition, rather than the result of a head injury.

Defendants presented a videotaped evidence deposition of Dr. Cavanaugh, a psychiatrist who examined Harold. He testified that Harold's difficulties were present before as well as after the incident of December 15, 1986. Dr. Cavanaugh opined that Harold could not have returned to work in his condition. He found that Harold demonstrated a dysfunction whereby he complains of physical or organic symptoms, which are actually based on underlying psychological problems. Dr. Cavanaugh testified that he found no evidence of any closed head injury or organic mental disorder or permanent injury. Dr. Cavanaugh proceeded to list a litany of conditions Harold suffered prior to the occurrence, including black-outs, ...

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