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Morris v. Milby

November 16, 1998

SHEILA MORRIS, PLAINTIFF-APPELLANT AND CROSS-APPELLEE, AND AARON PASBRIG, PLAINTIFF,
v.
SHANNON MILBY, DEFENDANT-APPELLEE AND CROSS-APPELLANT.



The opinion of the court was delivered by: Justice Green

Appeal from Circuit Court of Sangamon County No. 93L640

Honorable Stuart H. Shiffman, Judge Presiding.

On May 5, 1992, defendant, Shannon Milby, rear-ended a car in which plaintiff Sheila Morris was driving plaintiff Aaron Pasbrig to school. On December 29, 1993, Morris and Pasbrig sued Milby, seeking damages for their personal injuries. On February 5, 1997, a jury returned a verdict in favor of the plaintiffs, who appeal, claiming that errors committed by the trial court prevented them from recovering the full amount of their damages.

Plaintiffs' various assignments of error can be summarized as presenting the following six issues: (1) whether the trial court erred by granting partial summary judgment in favor of defendant as to Morris' lost wages and diminished earning capacity; (2) whether the court abused its discretion by allowing Milby's attorney to cross-examine Morris about a statement she purportedly made to her family physician, even though Milby never completed the impeachment by offering the statement into evidence; (3) whether the court erred by allowing Milby's attorney to cross-examine Morris' treating chiropractor about the contents of medical records that the chiropractor did not use in forming his opinion; (4) whether the court abused its discretion by disallowing Morris' medical records from being sent back with the jury; (5) whether the court abused its discretion by excluding portions of Morris' chiropractic evidence as a discovery sanction; and (6) whether the court abused its discretion by refusing to bar portions of Milby's evidence as a discovery sanction.

Although the plaintiffs' notice of appeal included Pasbrig as an appellant, none of the claims of error pertain to his case. According- ly, the trial court's judgment is affirmed as to Pasbrig. However, we reverse and remand the court's judgment as to Morris' claim. Because our reversal is based on Morris' first claim of error, we will not address many of the issues she has raised on appeal.

Morris first argues that the trial court erred when it granted Milby's motion for partial summary judgment, thereby precluding Morris from seeking damages for lost wages and diminished earning capacity. We agree.

In ruling on a motion for summary judgment, the trial court must consider the affidavits, depositions, admissions, exhibits, and pleadings on file and must construe them strictly against the movant and liberally in favor of the nonmoving party. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323, 1326 (1995). A triable issue of fact, precluding summary judgment, exists when there is a dispute as to material facts or when the material facts are undisputed but reasonable persons might draw different inferences from those facts. In cases involving summary judgment, a reviewing court reviews the evidence in the record de novo. Truman L. Flatt & Sons Co. v. Schupf, 271 Ill. App. 3d 983, 986, 649 N.E.2d 990, 993 (1995).

Milby contends that the record contains no admissible evidence regarding the loss of a promotion that Morris had been expecting from her employer shortly after the time of the accident. Specifically, Milby claims that Morris' evidence regarding the promotion would be remote and speculative, because Morris never was promised the promotion. Milby then argues that the lack of admissible evidence as to the lost promotion completely precludes Morris from presenting a claim for lost wages or diminished earning capacity.

Milby's argument fails because she isolates one piece of evidence and contests its admissibility, but she never addresses the remaining evidence in the record that supports Morris' claim for lost wages or diminished earning capacity. Thus, we need not address Milby's argument pertaining to the admissibility of the lost-promotion evidence before concluding that summary judgment was improper.

Diminished earning capacity measures the difference in the plaintiff's ability to earn money before and after the injury. Antol v. Chavez-Pereda, 284 Ill. App. 3d 561, 573, 672 N.E.2d 320, 329 (1996); Robinson v. Greeley & Hansen, 114 Ill. App. 3d 720, 726, 449 N.E.2d 250, 254 (1983). Under this definition, the plaintiff need not prove a concrete drop in wages following the injury to claim damages for impaired earning capacity. Antol, 284 Ill. App. 3d at 573-74, 672 N.E.2d at 329. Courts have even held evidence of the plaintiff's income to be irrelevant in some circumstances. See, e.g., Robinson, 114 Ill. App. 3d at 727, 449 N.E.2d at 255; Buckler v. Sinclair Refining Co., 68 Ill. App. 2d 283, 294, 216 N.E.2d 14, 20 (1966).

Economic testimony is generally not required to prevent summary judgment on the issue of diminished earning capacity. Rather, "the general rule is that the appearance of the plaintiff on the witness stand, [her] testimony as to the nature of [her] injuries and their duration is sufficient to take the question of impaired earning capacity to the jury." Harris v. Day, 115 Ill. App. 3d 762, 772, 451 N.E.2d 262, 267 (1983); see also Patel v. Brown Machine Co., 264 Ill. App. 3d 1039, 1061, 637 N.E.2d 491, 505 (1994).

In this case, Morris' deposition testimony, which the trial court had before it when it considered Milby's motion for partial summary judgment, provided sufficient evidence to take the question of impaired earning capacity to the jury. Morris testified about the extent of her injuries, including pain she was feeling at work. She described job tasks, such as lifting, that she was unable to do as a result of her injuries. This testimony sufficiently creates a genuine issue of material fact, namely, whether the accident affected Morris' ability to earn money. Patel, 264 Ill. App. 3d at 1061, 637 N.E.2d at 505; Harris, 115 Ill. App. 3d at 772, 451 N.E.2d at 267. Additionally, the record reflects that Morris missed work as a result of the accident, so it supports a reasonable inference that Morris lost wages. Milby has not attempted to refute this inference. Accordingly, summary judgment was improper; we reverse the trial court and remand for a new trial limited to the issue of Morris' damages.

The remaining issues that the parties have briefed and argued are not necessary to our Disposition of this appeal. However, because several evidentiary issues are likely to resurface on remand, we will address them.

The first of these issues relates to a promotion that Morris claims she lost as a result of the accident. According to Morris' discovery deposition testimony, she was anticipating some changes at the store where she worked around the time of the accident. Prior to the acci- dent, Morris and Kevin Forestier, a co-worker, had been slated to do "vendor setups," an activity that would require lifting. They had not begun this activity at the time of the accident. However, doing the vendor setups would make the two employees eligible for a promotion to an assistant manager position. Morris testified that the assistant manager position would be a new position for the company, and it was possible, though not certain, that both she and Forestier could be promoted. Because of the accident and her resulting injuries, Morris was unable to do the vendor setups. Forestier proceeded to do the vendor setups, and he became an assistant manager. Morris was laid off when the store where she worked closed.

Citing Christou v. Arlington Park-Washington Park Race Tracks Corp., 104 Ill. App. 3d 257, 432 N.E.2d 920 (1982), Milby argues that evidence regarding Morris' lost promotion is too speculative, remote, and uncertain to be admitted. We disagree.

A plaintiff may present evidence of future earnings that were, prior to the injury, reasonably certain to occur. However, in some situations the future earnings are so uncertain or speculative that evi- dence of them cannot be ...


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