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Torres v. Irving Press Inc.

January 29, 1999

NURYMAR TORRES, PLAINTIFF-APPELLANT,
v.
THE IRVING PRESS, INC., DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Buckley

Appeal from the Circuit Court of Cook County.

The Honorable Paddy McNamara, Judge Presiding.

This case is an appeal from a jury verdict in favor of plaintiff Nurymar Torres and against defendant The Irving Press, Inc. Plaintiff and her father, Miguel Torres, were injured as a result of a collision between plaintiff's vehicle and a vehicle owned by defendant and driven by Kurt Blumenthal. The jury awarded plaintiff $300,000 for past and future pain and suffering, $100,000 for past and future medical expenses, $5,000 for past and future lost wages and $0 for loss of normal life. The verdict was reduced by the jury's finding that plaintiff was 50% negligent and plaintiff was awarded $202,500. The jury awarded Miguel Torres $554,000 and he does not appeal any part of the trial court's order. Plaintiff appeals and raises the following issues: (1) whether the jury's award of $0 for loss of normal life was proper; (2) whether the trial court erred in barring admission of a witness' four-year-old misdemeanor theft conviction; (3) whether the jury's award of $5,000 for past and future lost wages was proper; (4) whether the trial court erred in requiring the jury to assess the percentage of fault between plaintiff and defendant for purposes of section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1992)); and (5) whether the trial court erred in refusing to give Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1995) when defendant withdrew its medical evaluating expert. Issues (1) and (2) will be considered in this opinion; issues (3) through (5) will be determined in a separate order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23) disseminated contemporaneously with this opinion. For the reasons that follow, and those contained in our separate Rule 23 Order, we affirm in part, reverse in part, and remand for a new trial.

STATEMENT OF FACTS

On November 19, 1992, at approximately 9:20 a.m., plaintiff was driving her Ford Escort northbound on Halsted approaching the intersection of Halsted and Division Streets. Her father, Miguel Torres, was in the front passenger seat. Plaintiff was on her way to work as a news editor for WSNS TV. Plaintiff testified that, as she approached the intersection, the light was green.

At the same time, Kurt Blumenthal was driving southbound on Halsted approaching the intersection of Halsted and Division Streets. Blumenthal was in the scope of his employment for defendant and driving defendant's Lincoln. Blumenthal testified that, as he approached the intersection, the light was green. He testified that he stopped in the intersection to wait for the oncoming northbound traffic to clear. He stated that he first saw plaintiff's vehicle when it was about 100 feet away from the intersection and that the vehicle was traveling about 25 to 30 miles per hour. Blumenthal testified that when the traffic light for northbound/southbound traffic on Halsted turned red and the traffic light for eastbound/westbound traffic on Division turned green he began to move. The next time he saw plaintiff's car was on impact. The right-front side of defendant's car was damaged and the front of plaintiff's car was damaged.

Prior to the collision, Jose Vasquez had been traveling southbound on Halsted behind Blumenthal's Lincoln for about two blocks. Vasquez testified that he observed the Lincoln move from left to right about two times. He stated that the Lincoln was traveling about 30 miles per hour. He stated that he never saw the Lincoln's left-turn signal activated. He also testified that, the Lincoln never stopped or slowed down before making the left turn on to Division. Vasquez testified that the color of the traffic light before the collision, at the time of the collision, and immediately after the collision was green. Vasquez testified that, after he saw the collision he made a left turn on to Division around the cars and the light was still green.

At the time of the accident, Michael Williams, a defense witness, was an employee of Phillip's Towing, which is located at the intersection of Halsted and Division. Prior to Williams' testi-mony, plaintiff presented a certified copy of Williams' prior misdemeanor theft conviction. Plaintiff sought to introduce the conviction and intended to impeach Williams on the stand. The trial court conducted a voir dire examination of Williams to investigate the nature and circumstances of the conviction. Thereafter, the trial court barred admission of the conviction. Williams testified that, at the time of the accident, he was standing in the yard of Phillip's Towing speaking with another employee, Chester Morris. However, Chester Morris testified he was inside the office when he heard a crash and did not see anything. Nevertheless, Williams testified that he saw plaintiff's Escort traveling north on Halsted approaching the intersection at about 35 to 40 miles per hour. Williams testified that he saw the light go from green to yellow to red. He testified that the light changed to red and the Escort entered the intersection and he heard a loud crash. On cross-examination, Williams testified that he did not see the crash, he heard it. He also stated that, his estimate of the Escort's speed was based upon what he heard. In addition, Williams stated that, he towed defendant's car. After towing the car, he left the scene and never spoke with a police officer.

Defendant also presented an excerpt from the evidence deposition of Phillip Munts, another employee of Phillip's Towing. Munts testified that he spoke with Blumenthal when Blumenthal came to pick up his car. When asked whether Blumenthal agreed to compensate him for any time he missed from work to assist Blumenthal in the case, Munts responded that he did not. However, Munts was then impeached with testimony he had given at a prior deposition in which he was asked the following question regarding Blumenthal: "Did he agree to compensate you for the time you lost from work?" Munts' response was: "Yes, he did." Munts acknowledged that, he was asked that question and gave that answer. Munts also testified that, he saw the light change from green to yellow and plaintiff was just exiting the overpass. He said it appeared that plaintiff sped up to get through the intersection. He also stated that he heard the crash.

Dr. Scott Cordes, an orthopedic surgeon, testified that he treated plaintiff upon her arrival at the hospital. He testified that plaintiff's x rays showed she had a shattered kneecap, a fracture to three areas of her right ankle, a fracture to her heel bone, and a fracture to her wrist joint. Dr. Cordes' diagnosis was comminuted right patellar fracture, trimalleolar fracture of the right ankle and the right calcaneus fracture, left scaphoid fracture. He testified that plaintiff also had some internal injuries, which included a liver laceration and a laceration hematoma of the right kidney. Dr. Cordes testified that, plaintiff was taken to surgery on November 23, 1992. During surgery her kneecap was reconstructed using wire and the soft tissue surrounding her kneecap was repaired. Internal fixation was performed on her ankle, which involved repositioning the ankle and securing it with wire and screws. The three fractures in her fibula were repaired using a buttress plate secured with screws. A long cast was applied. Plaintiff was given physical therapy while in the hospital and was discharged on November 30, 1992. Dr. Cordes last saw plaintiff on December 8, 1992.

On cross-examination, Dr. Cordes stated that he had an independent recollection of plaintiff because her threshold of pain was extremely low. Dr. Cordes stated that plaintiff was difficult to manage post-operatively because they could not explain the reason for her manifestations of such severe pain.

Dr. Robert Morris, a physician, treated plaintiff at Loyola University Medical Center from December 4, 1992, through December 6, 1992. Dr. Morris testified that plaintiff was diagnosed with gastritis, which developed as a result of the stress of her convalescence from the occurrence.

Dr. Edward Abraham, an orthopedic surgeon, first saw plaintiff in his office on January 23, 1993. He removed plaintiff's long leg cast, which extended from her hip joint to her toes. Dr. Abraham's testimony confirmed the injuries as described by Dr. Cordes. Dr. Abraham prescribed rehabilitation and physical therapy. In April 1993, Dr. Abraham performed surgery on plaintiff and removed the wires from plaintiff's kneecap. Dr. Abraham released plaintiff to return to work in June 1993. Dr. Abraham testified that when he saw plaintiff in September 1993, she did not have full range of normal motion of either the ankle or the knee and she was not 100%. Dr. Abraham did not believe plaintiff's complaints of pain were inconsistent with her injuries. Dr. Abraham testified that when he saw plaintiff in November 1993, she complained of some pain in the back of her knee and stiffness in the ankle. She also had a slight limp. Dr. Abraham testified that when he saw plaintiff in March 1994, she complained of pain in the front of her knee and sensitivity on the scar on her knee. Dr. Abraham stated that plaintiff was developing a neuroma and having trouble kneeling. He also testified there was swelling around the ankle joint. Dr. Abraham next saw plaintiff in February 1995 and found that she had developed a neuroma on the scar on her knee. She was having trouble kneeling and soreness of the ankle with prolonged walking. On March 24, 1995, Dr. Abraham operated on plaintiff and removed the neuroma. He also removed the plate and five screws from the fibula bone and the hardware from the ankle.

Dr. Abraham examined plaintiff just prior to his testimony. He testified that plaintiff had crepitation on the kneecap, she walked normally, her knee had normal range of motion and was stable, her scar was healed and showed no signs of neuroma and her ankle motion was 10 degrees short of normal. Dr. Abraham testified that plaintiff's scars are permanent, she will never regain full ankle motion, she has a limp in the morning and she has a 25% chance of getting arthritis. Dr. Abraham further testified that plaintiff will not be able to do things such as running and that strenuous activity might cause problems.

Plaintiff testified as to how her injuries have affected her daily life. Plaintiff testified that since the accident there are a lot of things that she does with difficulty and some things that she cannot do. She stated that she cannot carry a basket of clothes downstairs to the washer and dryer and she cannot clean without assistance. Plaintiff also testified that she no longer has the strength to cook from scratch. Plaintiff testified that she can no longer bathe her daughter because she cannot kneel. Plaintiff stated that she can no longer run or play soccer with her children. She also stated that she can no longer go out dancing and cannot dance the tango as she used to do at family gatherings. She stated that she cannot wear heels. She can no longer play tennis or volleyball, or go window shopping or garage sale ...


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