Appeal from the Circuit Court of Cook County.
Honorable MICHAEL J. KELLY, Judge Presiding.
PRESIDING JUSTICE BUCKLEY delivered the opinion of the court:
Plaintiffs Carlos and Patricia Cancio brought an action to recover damages allegedly caused by the negligence of defendant Thomas J. White while driving an automobile. On August 24, 1994, after a jury trial, the jury returned a verdict in favor of plaintiffs and judgment was entered on the verdict on August 29, 1994. On January 31, 1995, the trial court granted plaintiffs' motion for a new trial on the issue of damages only. On December 12, 1995, the case was tried a second time before a jury. The jury returned a verdict in favor of defendant and judgment was entered on the verdict on December 14, 1995. Plaintiffs again filed a motion for a new trial, which was denied on September 3, 1996. Plaintiffs filed a timely notice of appeal and raise the following issues: (1) whether the trial court properly denied plaintiffs' proposed modified jury instruction; (2) whether the trial court properly allowed introduction of evidence that Carlos Cancio had arthritis; (3) whether defense counsel's questioning of Carlos Cancio regarding a conversation with his attorney was proper; (4) whether the trial court properly admitted photos of plaintiffs' vehicle; (5) whether defense counsel violated the trial court's order in limine; and (6) whether defense counsel's closing argument was proper.
On December 14, 1988, while Carlos Cancio was stopped at a stop sign, defendant's automobile struck Carlos Cancio's mini-van in the left front. On November 20, 1990, Carlos Cancio filed a complaint which alleged that he suffered bodily injury as a result of the accident and that Patricia Cancio suffered loss of consortium.
A jury trial was held on August 24, 1994. At the trial, the only witnesses were Carlos and Patricia Cancio and Dr. John Shea, a neurosurgeon. Dr. Shea testified that Carlos Cancio suffered a herniated disk as a result of the accident. Plaintiffs submitted medical bills and testified to the effect of the injury on their lives. The jury found for plaintiffs on the issue of liability. It awarded Carlos Cancio $3,500 for his medical expenses; $2,100 for past and future pain and suffering; and $2,800 for past and future disability. It awarded Patricia Cancio $0 for both the value of her husband's services and the loss of his society.
Plaintiffs filed a post-trial motion seeking a new trial on the issue of damages. The trial court granted the motion and on December 12, 1995, the retrial on the issue of damages commenced. Once again, both Carlos and Patricia Cancio testified as to Carlos' neck injury. They also testified that Carlos had no prior neck problems. The testimony of Dr. Shea was presented by way of the same evidence deposition used in the first trial. Defendant testified as both an adverse witness and in defendant's case in chief. After closing arguments but before the verdict was rendered, plaintiffs moved for a mistrial. The motion was denied. The jury returned a verdict for defendant on December 14, 1995. Plaintiff filed a motion for a new trial and it was denied. This appeal followed.
A. PROOF OF INJURY AND PROXIMATE CAUSE
Plaintiffs' first contention is that the trial court erred in refusing to allow plaintiffs' proposed jury instruction and in requiring plaintiffs to prove both injury and proximate cause at the second trial.
During the December 1995 retrial, plaintiffs submitted the following jury instruction:
"It has been determined that the Defendant is liable for any injury which may have proximately resulted from the occurrence. You need only decide what injuries to Plaintiff resulted from this occurrence and what amount of money will reasonably and fairly compensate the Plaintiff for those injuries."
This is a modified version of Illinois Pattern Jury Instructions, Civil, No. 23.01 (3d ed. 1995)(hereinafter IPI Civil 3d No. 23.01). The first sentence of the unmodified instruction reads as follows: "The defendant has admitted liability for any [injury][damages] which may have proximately resulted from the occurrence." IPI Civil 3d No. 23.01.
Plaintiffs did not cite any cases that hold that the refusal of the trial court to allow IPI Civil 3d No. 23.01 constitutes reversible error. Nevertheless, we conclude that in cases such as the one at bar, where the liability of the defendant has previously been determined and the plaintiff proposes the above modified version of IPI Civil 3d No. 23.01, it is error for the trial court to refuse the instruction.
2. Proof of Injury and Proximate Cause
Plaintiffs also argue that they should not have been required to relitigate the issues of injury and proximate cause and, in support of this argument, cite Fisher v. Patel, 93 Ill. App. 3d 694 (1981), and Exchange National Bank v. Air Illinois, Inc., 167 Ill. App. 3d 1081, 1090 (1988). Neither case is directly on point. In Fisher, plaintiff brought suit to recover for injuries sustained when the car in which she was riding was struck from behind by defendant. Fisher, 93 Ill. App. 3d at 694. The jury was instructed that if it found from the evidence that plaintiff was not injured and/or that the conduct of defendant was the proximate cause of plaintiff's injury, the verdict should be for the defendant by reflecting zero damages to the plaintiff. Fisher, 93 Ill. App. 3d at 696. The jury found defendant liable but awarded zero damages to plaintiff. Fisher, 93 Ill. App. 3d at 696. The issue before the appellate court was the propriety of the zero verdict jury instruction. The court found that since plaintiff's evidence was not inconsistent or contradictory, and proof of actual damages was corroborated by witnesses' testimony, the giving of a zero verdict instruction resulted in error that was substantially prejudicial and affected the outcome of the trial and, therefore, reversal was warranted. Fisher, 93 Ill. App. 3d at 697. The court also noted that, in all negligence actions, once defendant's liability is established, plaintiff must prove actual damages before he can recover. Fisher, 93
The only other case cited by plaintiffs, Exchange National Bank v. Air Illinois, Inc., 167 Ill. App. 3d 1081 (1988), was a wrongful death action that arose from an airline crash. Judgment was entered for plaintiff's decedent and the airline appealed. Exchange National Bank, 167 Ill. App. 3d at 1085. One of the issues before the court was the propriety of a portion of a jury instruction which read that "[t]here is no issue as to the liability of the defendant for the damages." Exchange National Bank, 167 Ill. App. 3d at 1091. The defendant contended that this language misled the jury into believing defendant was responsible for the crash. Exchange National Bank, 167 Ill. App. 3d at 1091. The court found since the jury was instructed that the only issue before it was the amount of damages to award and since the instruction did not suggest that defendant admitted liability, it was not prejudicial. Exchange National Bank, 167 Ill. App. 3d at 1091.
Defendant relies on Nicholl v. Scaletta, 104 Ill. App. 3d 642 (1982), for the proposition that "the plaintiff still ha[s] the burden of proving causation, and the nature and extent of her alleged injuries, even though liability was established as a matter of law." Nicholl, 104 Ill. App. 3d at 649, citing Jeffrey v. Chicago Transit Authority, 37 Ill. App. 2d 327 (1962). We agree with defendant and, in addition, find that the case of Robertson v. Smith, 40 Ill. App. 3d 174 (1976), is also instructive. In Robertson, plaintiff filed an action arising out of an automobile accident. Robertson, 40 Ill. App. 3d at 175. At the outset of trial, defendant admitted liability but contested the issue of damages. The jury found no damages. On appeal, plaintiff argued "that the verdict of no damages cannot stand because defendant admitted liability at the outset of the trial." Robertson, 40 Ill. App. 3d at 177. Plaintiff argued that "defendant, by admitting liability, admitted proximate cause and injury because these are elements of negligence liability, and consequently some award, even if nominal, had to be given." Robertson, 40 Ill. App. 3d at 177. The court disagreed. The court noted that plaintiff's theory did find support in Edwards v. Ely, 317 Ill. App. 599(1943), in which the court addressed an identical issue. In Edwards, defendant had admitted liability and disputed only the extent of damages. The jury awarded no damages. On appeal, the court made a distinction between legal injury, the invasion of a right, and physical injury. The court then held that at least nominal damages must be awarded even though defendant's admission of liability was the only proof of legal injury. Edwards, 317 Ill. App. 599.
However, Edwards was re-examined in Jeffrey v. Chicago Transit Authority, 37 Ill. App. 2d 327 (1962), in which the court specifically held that even if a defendant's liability is established, a plaintiff must prove actual damages before he can recover. Jeffrey, 37 Ill. App. 2d at 336. The court applied that rule to the facts of the case and held:
"[B]y his admission of liability defendant admitted that the accident resulted from his negligent operation of his vehicle, and that plaintiff was free from contributory negligence. The mere fact that the accident occurred as a result of defendant's negligence does not, in any way, establish that plaintiff sustained physical injuries. While plaintiff was relieved, under defendant's admission of liability, from proving defendant's negligence and her freedom from contributory negligence, she was required to establish damages occasioned by physical injury. The jury found that she had failed to do so, and having so found, the award of no damages was appropriate."
Accordingly, we find that while plaintiffs were not required to prove liability on the part of defendant, under Jeffrey, plaintiffs were nevertheless still required to prove actual damages before he could recover. As defendant notes, a jury cannot determine the nature, extent and duration of an alleged injury, without first assessing what, if any, injury the plaintiffs suffered as a result of the accident and the extent and duration of any alleged injury.
Therefore, we find that it was not error for the court to require plaintiff to prove injury and proximate cause at the second trial.
Plaintiffs' next contention is that the introduction of evidence that Carlos Cancio had arthritis was improper because there was no showing that it caused any of his problems.
Prior to trial, plaintiffs moved in limine to exclude evidence that Carlos Cancio had arthritis. That motion was denied. Plaintiffs' counsel took the evidence deposition of Dr. Shea, who has treated Carlos Cancio since 1990. During that testimony, Dr. Shea read from Carlos Cancio's MRI record and stated that the MRI record indicated "that the patient had a C6-C7 disk herniation on the left side and also had some degenerative changes of the C4 and C5 vertebrae." Dr. Shea also testified that Carlos Cancio "had pre-existing disk degeneration at C4-5 and *** also at C5-6. And this would be so-called cervical spondylosis, which is sort of an arthritis or natural aging of the spine at those two levels." Dr. Shea also testified that "some of the pressure on the disk was due to some pre-existing arthritis."
Plaintiff relies on Marut v. Costello, 53 Ill. App. 2d 340 (1964), Karsten v. McCray, 157 Ill. App. 3d 1 (1987), and Templeton v. Chicago & North Western Transportation Co., 257 Ill. App. 3d 42 (1993), in support of his argument that evidence relating to pre-existing arthritis should not have been admitted. In response, defendant argues that these cases are easily distinguishable since none involves a pre-existing condition to the same part of the body. See, e.g., Karsten v. McCray, 157 Ill App. 3d 1 (1987)(defendant's failure to introduce expert medical testimony establishing a nexus between the plaintiff's pre-existing condition and her current condition required a new trial where her pre-existing injury was neither related to the same part of the body nor similar to the injury complained of); Templeton v. Chicago & North Western Transportation Co., 257 Ill. App. 3d 42 (1993)(new trial warranted when irrelevant matter may have confused the jury or influenced its view of relevant facts); Marut v. Costello, 53 Ill. App. 2d 340 (1964)(improper to allow evidence of previous injury to neck and shoulders without proof of nexus to current back injury).
It is defendant's contention that since the pre-existing arthritis is in the same area of the body that Carlos Cancio claimed was injured as a result of the accident, the evidence is admissible. Defendant points this court to its decision in Elberts v. Nussbaum Trucking, Inc., 97 Ill. App. 3d 381 (1981), in support of his argument. In Elberts, the plaintiff brought an action to recover for injuries that plaintiff sustained when her automobile collided with defendant's semi-trailer truck. The jury awarded plaintiff $2,000 damages for personal injuries and plaintiff appealed seeking a new trial as to damages. Elberts, 97 Ill. App. 3d at 381. One of plaintiff's arguments on appeal was that the trial court erred in denying her motion in limine to exclude reference to a prior injury. Elberts, 97 Ill. App. 3d at 384. The court noted that during the hearing on the motion, plaintiff's counsel ...