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06/30/97 RON L. BRANUM v. SLEZAK CONSTRUCTION

June 30, 1997

RON L. BRANUM, PLAINTIFF-APPELLANT
v.
SLEZAK CONSTRUCTION COMPANY, INC. AND WAUKEGAN STEEL SALES, INC., DEFENDANTS-APPELLEES. SLEZAK CONSTRUCTION COMPANY, INC., AND WAUKEGAN STEEL SALES, INC., THIRD-PARTY PLAINTIFFS, MILLER STEEL CONSTRUCTION COMPANY, INC., THIRD-PARTY DEFENDANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION. No. 89 L 01238. THE HONORABLE, RONALD C. RILEY, JUDGE PRESIDING.

Rehearing Denied August 5, 1997. Released for Publication August 21, 1997.

Presiding Justice Cousins delivered the opinion of the court. Gordon and Leavitt, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

On September 26, 1988, plaintiff Ron L. Branum (Branum), an ironworker employed by Miller Steel Construction Company (Miller), was injured while working on a construction site in Roselle, Illinois. Plaintiff was injured when a steel joist, upon which he was standing, twisted and came out from under him. He fell from a height of approximately 20 feet with a bundle of steel decking falling from the same height striking plaintiff.

Plaintiff brought suit against defendants Slezak Construction Company, Inc. (Slezak), and Waukegan Steel Sales, Inc. (Waukegan), under the Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 59.90 et seq. (subsequently 740 ILCS 150/0.01 et seq. (West 1992)) (repealed by Pub. Act 89-2, eff. February 14, 1995)) for injuries he incurred. Slezak was the general contractor on the job. In addition to plaintiff's claims against defendants, Slezak and Waukegan filed counterclaims for contribution against one another and Slezak filed a third-party complaint against Miller for indemnification. Slezak and Waukegan later voluntarily dismissed their claims against each other.

At trial, extensive testimony was offered regarding the extent and nature of plaintiff's injuries and plaintiff's physical rehabilitation, capacity to work and ability to obtain employment. The jury returned a verdict in favor of plaintiff and against defendants Slezak, Waukegan and Miller in the total amount of $712,000. The jury also responded in the affirmative to the six special interrogatories submitted to it, specifically finding that Slezak, Waukegan and Miller each violated the Structural Work Act in a way that proximately caused plaintiff's injuries and that each of them was in charge of the work. With regard to the third-party action, the jury allocated fault as between Slezak, Waukegan and Miller and found Slezak and Waukegan each 5% at fault and Miller 90% at fault.

Furthermore, the trial court granted setoffs in the amount of $34,617 for workers' compensation benefits received by plaintiff from March 3, 1994, to March 20, 1995, and in the amount of $173,764.64, the amount that the trial court determined was the present cash value of Miller's future workers' compensation liability to plaintiff. Miller waived its statutory right to reimbursement for compensation payments under section 5(b) of the Workers' Compensation Act (820 ILCS 305/5(b) (West 1992)), and the trial court dismissed Miller from the case.

Plaintiff appeals from the judgment entered on the jury's verdict in the amount of $712,000, from the order granting Slezak and Waukegan a setoff in the amount of $276,000 and from the order denying plaintiff's post-trial motion for a new trial and granting Slezak and Waukegan additional setoffs in the amounts of $34,617 and $173,764.64. Specifically, plaintiff contends that: (1) although the jury's verdict on the issue of liability is well supported, the jury's award of damages is manifestly inadequate and plaintiff is entitled to a new trial on the issue of damages only, and (2) the trial court erred in failing to allow statutory attorney fees and expenses in granting a setoff in favor of Slezak and Waukegan in the amount of plaintiff's employer's liability under the Workers' Compensation Act (820 ILCS 305/5(b) (West 1992)) on plaintiff's judgment against them and in allowing a set-off for future undetermined benefits.

Defendants cross-appeal and argue that, under section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1992)), the defendants were jointly and severally liable for past medical expenses and only severally liable for all other damages.

We affirm in part and reverse in part.

ANALYSIS

I

Plaintiff first contends that, although the jury's verdict on the issue of liability is well supported, he is entitled to a new trial on the issue of damages only because the jury's award of damages is manifestly inadequate and against the weight of the evidence and because several prejudicial trial errors resulted in the inadequate damages award. Defendants respond that this court should refrain from interfering with the jury's discretion to award damages that were warranted by the evidence.

Generally, damages are within the discretion of the jury. Hollis v. R. Latoria Construction, Inc. 108 Ill. 2d 401, 407, 485 N.E.2d 4, 92 Ill. Dec. 449 (1985); People ex rel. Department of Transportation v. Smith, 258 Ill. App. 3d 710, 716, 631 N.E.2d 266, 197 Ill. Dec. 263 (1994). The exception to that rule, however, is that a reviewing court may order a new trial or overturn a jury verdict when damages are manifestly inadequate or if it is clear that proven elements of damages have been ignored or if the amount awarded bears no reasonable relationship to the loss suffered by the plaintiff. Hollis, 108 Ill. 2d at 407; People ex rel. Department of Transportation, 258 Ill. App. 3d at 716; Cerveny v. American Family Insurance Co., 255 Ill. App. 3d 399, 406, 626 N.E.2d 1214, 193 Ill. Dec. 663 (1993). A jury's award will not be found to be against the manifest weight of the evidence merely because it can be characterized as less than generous. Cerveny, 255 Ill. App. 3d at 407, citing Gruidl v. Schell, 166 Ill. App. 3d 276, 519 N.E.2d 963, 116 Ill. Dec. 748 (1988). Furthermore, it is of no consequence to the validity of an award that it differs from an estimate of damages made by an expert, for a jury may reduce an expert's damage calculation without invalidating its verdict. F.L. Walz, Inc. v. Hobart Corp., 224 Ill. App. 3d 727, 733, 586 N.E.2d 1314, 167 Ill. Dec. 42 (1992); Carter v. Chicago & Illinois Midland Ry. Co., 130 Ill. App. 3d 431, 437, 474 N.E.2d 458, 463, 85 Ill. Dec. 730 (1985). Furthermore, mere dissatisfaction does not require a new trial on damages ( People ex rel. Department of Transportation, 258 Ill. App. 3d at 716), because the mere fact that the verdict is less than the claimed damages does not necessarily mean the award is inadequate since the jury is free to determine the credibility of the witnesses and to assess the weight accorded to their testimony. Montgomery v. City of Chicago, 134 Ill. App. 3d 499, 502, 481 N.E.2d 50, 89 Ill. Dec. 698 (1985).

Plaintiff argues that Hollis v. R. Latoria Construction, Inc., 108 Ill. 2d 401, 92 Ill. Dec. 449, 485 N.E.2d 4, Vacala v. Village of La Grange Park, 260 Ill. App. 3d 599, 636 N.E.2d 812, 201 Ill. Dec. 380 (1994), Faleti v. Tracy, 233 Ill. App. 3d 1025, 600 N.E.2d 39, 175 Ill. Dec. 416 (1992), McKenzie v. Romeiser, 205 Ill. App. 3d 830, 563 N.E.2d 837, 150 Ill. Dec. 710 (1990), Greco v. Coleman, 138 Ill. App. 3d 317, 485 N.E.2d 1118, 92 Ill. Dec. 875 (1985), Giardino v. Fierke, 160 Ill. App. 3d 648, 513 N.E.2d 1168, 112 Ill. Dec. 559 (1987), Burnham v. Lewis, 217 Ill. App. 3d 752, 577 N.E.2d 922, 160 Ill. Dec. 597 (1991) and Carter v. Chicago & Illinois Midland Ry. Co., 168 Ill. App. 3d 652, 522 N.E.2d 856, 119 Ill. Dec. 194 (1988), all support his contention that this court has consistently ordered a new trial on the issue of damages or affirmed the trial court's grant of a new trial where the jury failed to make an appropriate award for proven elements of damages. However, in each of these cases, the jury had overlooked damages that had been either indisputably proven or uncontroverted, thus necessitating reversal of the verdict. See Cerveny, 255 Ill. App. 3d at 409; People ex rel. Department of Transportation, 258 Ill. App. 3d at 717. Thus, the initial issue in this case is whether elements of plaintiff's alleged damages were uncontroverted or indisputably proven at trial such that it is clear that the jury ignored the evidence.

In the instant case, plaintiff argues that the jury mistakenly awarded only $15,000 for disfigurement even though there was uncontroverted evidence that plaintiff's left ankle had "essentially been obliterated."

Plaintiff also argues that the jury erroneously refused to award any amount for future medical expenses because the undisputed evidence showed that plaintiff was still being treated by Dr. Berg for his left ankle and would be required to see Dr. Berg for treatment for the next six years. Furthermore, plaintiff asserts that Dr. Berg showed that plaintiff likely would require ankle fusion surgery in the future that would cost approximately $16,500.

Relative to the award for lost earnings, plaintiff contends that the jury erroneously returned a verdict of $150,000 for past lost income and $300,000 for future lost income after Slezak's economic expert testified that, using liberal assumptions, plaintiff's lost earnings totalled $753,811.

Plaintiff also argues that the award of $142,000 for past and future pain and suffering is inadequate in light of the undisputed evidence of the serious and overwhelmingly painful nature of plaintiff's injuries, as well as the evidence of his repeated hospitalizations and three surgeries.

Relative to the award for disability, plaintiff contends that the award of $75,000 for disability is inadequate because his expert, Dr. Berg, Waukegan's expert, Dr. Gleason, and Slezak's expert, Dr. Bernstein, all confirmed that Branum suffered permanent changes in his ankle and gave "unanimous" testimony that plaintiff will never return to unrestricted work as an ironworker.

Finally, plaintiff contends that the inadequate nature of the jury's damages award is most apparent with regard to the jury's award for medical expenses in the amount of $30,000. Plaintiff argues that the evidence shows that plaintiff had incurred more than $71,000 in reasonable and necessary medical expenses and points out that, during closing argument, Slezak's counsel suggested the sum of $67,000 for a reasonable award for past medical expenses. Defendants respond that plaintiff presents no persuasive argument as to why this court should ignore the jury's verdict since the manifest weight of the evidence supports the jury's award. Specifically, defendants argue that the awards for disability, disfigurement and pain and suffering are incapable of precise calculation and can only be measured by the demeanor and credibility of the witnesses. In sum, defendants point to various testimony to support their position that these issues were highly contested at trial. Defendants conclude that plaintiff's complaints are undercut by evidence of inconsistency, exaggeration and legitimate doubts raised by the defense.

Relative to the awards for past and future medical expenses, however, defendants contend that the awards comported with the evidence adduced at trial. At the outset, defendants contend that the jury did award plaintiff the sum of $67,000 for past medical expenses but did so on the wrong line of the verdict form. *fn1 Defendants point out that the jury awarded plaintiff $67,000 for future pain and suffering just one line above the entry of $30,000 for past medical expenses. Defendants argue that this entry, coupled with the fact that the jury awarded several of the exact sums suggested by defense counsel (i.e. $15,000 for disfigurement, $75,000 for disability and $75,000 for past pain and suffering), suggests that the jury agreed with defendants' assessment of plaintiff's medical expenses and meant to award the amount that the defendants suggested.

After reviewing the record, it is our view that the issues regarding all of plaintiff's alleged damages were sharply contested during the proceedings as both parties presented conflicting evidence. See Natalino v. JMB Realty Corp., 277 Ill. App. 3d 270, 278-79, 660 N.E.2d 138, 213 Ill. Dec. 881 (1995). We agree with defendants that it does appear that the jury followed defendants' suggestions regarding damages. During her closing argument, defense counsel suggested an award of $75,000 for disability; the jury awarded $75,000. Counsel suggested $15,000 for disfigurement; the jury awarded $15,000. Counsel also suggested $75,000 for pain and suffering; the jury awarded $75,000. Defense counsel suggested $150,000 for lost earnings; the jury awarded $150,000. Counsel also suggested $250,000 for earnings to be lost in the future; the jury awarded $300,000. Defense counsel suggested $67,000 for past medical expenses. However, the jury awarded $30,000 for past medical expenses and then, on the line directly above the line designated for past medical expenses, awarded $67,000 for future pain and suffering.

In our view, it is entirely plausible that the jury inadvertently erred in following defense counsel's suggestion regarding past and future medical expenses and mistakenly interposed the damage awards. We cannot point to anything specific in the record that would indicate what the jury could have drawn upon to reach an amount of $67,000 for future pain and suffering. On the other hand, we cannot say that it was entirely implausible that the jury felt $30,000 was an adequate amount for past medical expenses, particularly since our review of the record indicates that plaintiff's counsel did not suggest a specific sum that the jury should award for past medical expenses. There was testimony about plaintiff's previous back injury, and the issue of whether plaintiff needed various past and future medical treatments was contested. Moreover, in her closing argument, defense counsel suggested that plaintiff had a series of medical treatments that were unrelated to his alleged injuries. Since it appears that the jury tended to follow defense counsel's suggest ions regarding most of the other damages, it is more probable than not that the jury also followed defense counsel's suggestion to limit plaintiff's award accordingly. Therefore, we cannot say that the damages awarded were manifestly inadequate or that plaintiff is entitled to a new trial on damages only. Thus, we hold that the trial court did not abuse its discretion in denying plaintiff's post-trial motion for a new trial on the issue of damages. See Natalino v. JMB Realty Corp., 277 Ill. App. 3d 270, 279, 660 N.E.2d 138, 213 Ill. Dec. 881 (1995)(We review the trial court's decision to deny a motion for a new trial according to whether the court abused its discretion).

Plaintiff next contends that he did not receive a fair trial because the trial court committed numerous errors that prejudiced plaintiff's damages case. We address these errors but find no reversible error in any of plaintiff's contentions.

THE FOLLOWING MATERIAL IS NONPUBLISHABLE UNDER SUPREME COURT RULE 23

THE PRECEDING IS UNPUBLISHED MATERIAL

Plaintiff contends that the trial court erred in modifying and then issuing jury instruction No. 3, which instructed the jury to consider that "an ordinary person must exercise ordinary care to obtain employment." Plaintiff asserts that there was no evidentiary basis for issuing this instruction and that the instruction erroneously suggested to the jury that plaintiff's conduct should be considered in connection with the calculation of damages.

Our review of the record indicates that, initially, the parties disagreed on the language of jury instruction No. 3. The instruction was then modified. The next day, Slezak tendered a modified version of instruction No. 3. The court read the modified instruction aloud and then specifically asked if there were any objections. Plaintiff's counsel stated that there was no further objection. A party waives any objection to jury instructions when it does not object at the jury instruction conference. Dabros v. Wang, 243 Ill. App. 3d 259, 267, 611 N.E.2d 1113, 183 Ill. Dec. 465 (1993). Since plaintiff failed to object to the modified version of instruction No. 3 at the conference, this issue is waived on appeal.

Plaintiff also argues that the trial court erred in issuing instruction No. 11, which provided in relevant part:

"Defendants claim that Miller Steel Construction Company, Inc. was in charge of the work and violated the Structural Work Act in one or more of the following respects:

a. allowed an employee to step from scaffolding onto a support that had not been tack welded or bridged."

Plaintiff argues that paragraph "a" of this instruction was prejudicial in that it places the issue of plaintiff's conduct before the jury. Defendants respond that this instruction merely related ...


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