The opinion of the court was delivered by: Justice Tully
Appeal from the Circuit Court of Cook County.
Honorable James F. Smith, Judge Presiding.
Plaintiff, Julie Shvartsman, brought a negligence action against defendant, Septran, Inc., for knee injuries she received when she fell on defendant's school bus. A jury found for defendant, and in its answer to a special interrogatory, stated that plaintiff was the sole proximate cause of her own injuries. The trial court later denied plaintiff's motion for a new trial. Plaintiff appeals, arguing that the trial court erred in its rulings on several proposed jury instructions. This court has jurisdiction pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).
We reverse and remand for the following reasons.
The following evidence was presented at trial. On June 18, 1992, plaintiff boarded defendant's school bus. According to plaintiff, before she sat down but while she was sliding over to her seat, the driver pulled into traffic. Plaintiff fell backward and felt severe pain in her right knee. Dr. George Firlit performed surgery on plaintiff's knee on June 26, 1992. Since the fall, plaintiff has had pain in her knee, which has limited her physical activity. Plaintiff did not have pain in either knee before the day of her fall.
At trial, Julia Medvin testified that she saw plaintiff fall on the bus. Medvin saw plaintiff turn to slide into the row of seats in which Medvin was sitting, as she felt the bus pull into traffic. Plaintiff fell and had an expression of pain on her face.
Dr. Howard Sweeney treated plaintiff from January 1994 through July 1997. In the course of his treatment, he reviewed Dr. Firlit's surgical records, which reflected that he successfully removed bone fragments from plaintiff's right knee. In Dr. Sweeney's opinion, plaintiff's kneecap was displaced in the fall, causing pain and a permanent injury. Also in his opinion, plaintiff would suffer from degenerative joint disease and would require a total knee replacement. In addition, Dr. Sweeney stated that because of a pre-existing condition that plaintiff had in both knees, she was more likely than the average person to displace her kneecap and not to recover through normal rehabilitation. Because of the pre-existing condition, no amount of rehabilitation would allow plaintiff's kneecap to go back into place permanently.Charles Bartlett, the bus driver, testified that he knew about the state regulation requiring all passengers to be seated before the bus was in motion. He remembered plaintiff boarding the bus safely on June 18, 1992, and he did not see plaintiff trip or fall on the bus. According to Bartlett, plaintiff, "like all other children, was sitting down when I pulled away."
Defendant's expert witness, Dr. Kenneth Sanders, testified that plaintiff had a congenital defect in both kneecaps, which made dislocation easier than normal. According to Dr. Sanders, some of Dr. Firlit's and Dr. Sweeney's reports were confusing with regard to whether plaintiff's condition was improving. In Dr. Sanders' opinion, plaintiff's knee condition was not permanent. Furthermore, plaintiff's condition would have improved had she followed her physicians' exercise instructions.
On appeal, plaintiff contends that the trial court erred in: (1) refusing to instruct the jury on a state regulation requiring all passengers to be seated before the bus was in motion; (2) allowing a "missing witness" jury instruction; (3) refusing to instruct the jury that a pre-existing condition could not affect any right she had to recover damages; and (4) giving an incomplete jury instruction regarding the definition of "ordinary care" with respect to minors.
First, plaintiff argues that the trial court erred in refusing to instruct the jury that a state regulation required all passengers to be seated before the bus was in motion. We disagree because the administrative regulation contained in the proposed jury instruction did not apply to this case. Plaintiff tendered the following instruction, which the trial court refused:
"There was in force in the State of Illinois at the time of the occurrence in question a certain administrative regulation which provided that: All passengers shall be seated when a school bus is in motion. Title 23 Illinois Administrative Code Subtitle A, Chapter 1, paragraph 275, Subchapter h, Section 275.110.
If you decide that Septran violated this regulation by moving the school bus before [p]laintiff was seated on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, Septran was negligent before and at the time of the occurrence." See Illinois Pattern Jury Instructions, Civil, No. 60.01 (3d ed. 1995) (hereinafter IPI Civil 3d).
The giving of a jury instruction is within the trial court's discretion, and we will disturb the court's decision only when it clearly abused its discretion. Wilkerson v. Pittsburgh Corning Corp., 276 Ill. App. 3d 1023, 659 N.E.2d 979 (1995). The test for determining such an abuse of discretion is whether, considering them as a whole, the jury instructions were clear enough so as not to mislead the jury and whether they fairly and accurately stated the applicable law. Dabros v. Wang, 243 Ill. App. 3d 259, 611 N.E.2d 1113 (1993). In this case, the record shows that the state regulation imposes a requirement on bus passengers to be seated when the school bus is in motion. It does not impose a requirement on school bus drivers. Therefore, the proposed instruction did not fairly and accurately state the applicable law. The trial court did not abuse its discretion.
Plaintiff next argues that the trial court erred in giving the jury a "missing witness" instruction, which reminded the jury that Dr. Firlit, plaintiff's original treating physician, did not testify. Plaintiff had listed Dr. Firlit as a witness at trial, but ...