The opinion of the court was delivered by: Justice Garman
Plaintiff, Vernon Schultz, filed a complaint against defendant, Northeast Illinois Regional Commuter Railroad Corporation, doing business as Metra, pursuant to the Federal Employers' Liability Act (FELA) (45 U.S.C. §51 et seq. (1994)), for injuries he allegedly sustained while employed as a switch foreman for defendant. The purpose of FELA is to provide a remedy to railroad employees for injuries and death resulting from accidents on interstate railroads. 45 U.S.C. §51 (1994). Plaintiff alleged that he was seriously injured while performing his duties when he fell off a retaining wall at defendant's 47th Street Yard in Chicago. After trial, the jury returned a verdict of $800,000, which was reduced to $400,000 upon a finding of 50% contributory negligence. Both parties appealed. The appellate court affirmed in part and reversed in part. Nos. 1-99-3596, 1-99-3647 cons. (unpublished order under Supreme Court Rule 23). The parties subsequently filed petitions for leave to appeal with this court. We granted both petitions (177 Ill. 2d R. 315(a)) and consolidated the cases on appeal.
Undisputed facts indicate that at its 47th Street Yard, defendant services commuter trains operating on its Rock Island line, which runs from the La Salle Street Station in Chicago to Joliet. Double mainline tracks running north-south are located to the east of the yard along with two yard lead tracks, the long lead and short lead. A building known as the "Rocket House," where employees service and repair locomotives, is situated at the northwest end of the yard, and a concrete retaining wall, adjacent to the Rocket House, separates an upper yard from a lower yard. The retaining wall is approximately 6½ feet high at the southeast corner of the Rocket House. The building's main entrance is located in the lower yard, and a second door is located on the east side of the building in the upper yard. The area between the tracks and the Rocket House is a flat surface covered by crushed limestone.
At trial, plaintiff testified that he began working for railroads in 1960 and had always performed switch work. On February 15, 1994, while employed by defendant, he was the foreman of a three-man crew that included Mark Essary and Tom Miller. After the morning rush hour, the crew disconnected two passenger trains at the La Salle Street Station, left a few cab cars from each train at the station, doubled the remaining cars and rode them southbound to the 47th Street Yard for washing and servicing. Essary and Miller rode on the locomotive, while plaintiff rode in the last cab car.
Plaintiff stated that it was his typical practice to alight from the train when it passed the east door to the Rocket House, while the other crew members took the train into the 47th Street Yard. He would enter the Rocket House from the east door, which was normally propped open for him, but on February 15, 1994, after noticing that the door was locked, he remained on the train and alighted at the south end of the Rocket House. When he exited the train he was "snowblinded" and reached for his photograde sunglasses. After putting on his sunglasses, plaintiff walked another eight or nine feet when he heard a noise he thought was a train. As he turned to look back, plaintiff walked off the top of the retaining wall near the southeast corner of the Rocket House, allegedly injuring his back, toe, and left knee.
Immediately after his fall, plaintiff reported the incident to the Rocket House superintendent and filed an incident report. He was taken by one of defendant's employees to Dr. Barry Fischer's office at the U.S. Occupational Health Clinic. Plaintiff did not return to work until July 20, 1994, and was again taken off duty by Dr. Fischer in May 1995. After a one-month absence, plaintiff returned to work, and continued to work, with restrictions, until January 5, 1996. On April 2, 1996, plaintiff failed defendant's biennial physical examination upon which Dr. Fischer disqualified him from performing his duties. On July 30, 1996, plaintiff had total knee replacement surgery. He never returned to work for defendant.
Plaintiff also indicated that he injured his left knee in 1990 while climbing on rocks and hills but maintained that his left knee and leg had not created problems for him prior to the accident. He denied walking with a limp prior to the accident and noted that he had passed defendant's biennial physical examination in 1992. On cross-examination, plaintiff admitted that, in a medical history report prepared for his 1990 physical exam, he indicated that he experienced pain and locking in his left knee and pain in the left side of his lower back.
Plaintiff called Dennis Mogan, defendant's director of safety and rules, as an adverse witness. Mogan testified that he is responsible for the safety of defendant's 2,500 employees and part of his job is to remedy unsafe conditions. He testified that he has been to the 47th Street Yard on several occasions to perform safety audits and crew observation and is familiar with the Rocket House and the retaining wall. Mogan admitted that an unprotected height can be hazardous and acknowledged that, prior to February 15, 1994, the retaining wall had no guardrail. Although he admitted that plaintiff's fall would most likely have been prevented by a guardrail, he indicated that the "walkway" by the retaining wall is not a "work area." He stated that the walkway can be used by trainmen and maintenance employees, but its use is unnecessary, as employees can walk on the other side of the tracks and, in any event, do not have to walk near the retaining wall. Mogan, however, further stated that he would not be surprised to learn that trainmen walked in the area near the retaining wall in the course of their everyday duties.
According to Mogan, no employee had reported safety concerns to him regarding the retaining wall and no accidents in the area had been reported. He testified that, in the course of his safety audits, he noticed and corrected many hazards in and around the Rocket House. Because of the obvious difference in elevation, Mogan never considered the need for a guardrail above the retaining wall.
Dr. David Smith testified by evidence deposition that he first met with plaintiff on March 16, 1994. On that date, he reviewed an MRI that revealed a tear of the medial meniscus, or cartilage, in plaintiff's left knee, and degenerative arthritis, also known as osteoarthritis, in all three components of his left knee. Smith noted that the osteoarthritis pre-existed plaintiff's fall but opined that despite the pre-existing condition, plaintiff's fall at least irritated or inflamed the knee and led to his chronic knee problems. Smith admitted that his opinion could change if he knew that plaintiff was symptomatic prior to the accident. He further acknowledged that a thinning and tearing of the medial meniscus could be caused by a degenerative process.
Smith performed an arthroscopy of plaintiff's left knee on April 5, 1994. At that time, he determined that plaintiff's osteoarthritis was "grade 5," the most severe form, there was a softening of the cartilage under the kneecap, and the lining of the knee joint was inflamed. Smith performed a second arthroscopic procedure on January 11, 1996, at which time he observed that plaintiff's degenerative condition had progressed from the time of the first arthroscopy. This led to a total knee replacement on July 30, 1996. Smith testified that it is not unusual for patients to return to work after knee replacements and plaintiff is capable of sedentary or light-duty work.
Jonathan Crane, an economist, analyzed plaintiff's earning loss. Under his most conservative estimate, he concluded that plaintiff lost $341,000 in earnings, and under his least conservative estimate, plaintiff lost $432,500 in earnings, resulting in an average of $386,000.
Prior to trial, plaintiff disclosed his intention to call Eugene Holland, a structural engineer, as an expert witness to testify, in part, that defendant violated certain sections of the Occupational Safety and Health Act (OSHA) (29 U.S.C. §651 et seq. (1994)) and the Chicago Building Code (Code). Defendant filed a motion in limine to "exclude any reference to OSHA at trial," arguing that the Federal Railroad Administration (FRA) preempted OSHA regulations in the area of walkways and working surfaces beside tracks in railroad yards. Further, defendant argued that OSHA and the Code do not, by their own terms, regulate the area of the retaining wall. The trial court agreed and granted defendant's motion in limine. Based on this holding, the court also denied plaintiff's motion in limine to bar defendant from asserting the defense of contributory negligence. The trial court, however, reserved ruling on whether Holland could testify that OSHA and the Code indicated defendant's standard of care.
At trial, Holland testified that he consults various parties in the construction industry on the construction process, design, and construction safety and, for this case, he had reviewed depositions and legal documents and had conducted a thorough site inspection of the area of plaintiff's injury. Holland stated that he is a member of several organizations including the American Society of Civil Engineers, the American Society of Safety Engineers, the American Concrete Institute, the American Institute of Steel Construction, the Structural Engineers' Association of Illinois, BOCA, and the American National Standards Institute (ANSI), all of which promulgate safety standards. He is also familiar with the safety standards promulgated in OSHA and the Code.
Holland concluded that "every safety standard *** recognizes a change of level as being a fault" and the area above the retaining wall is a work area and an unprotected fall hazard. Plaintiff's counsel then asked Holland whether he believed defendant should have installed a guardrail on the retaining wall. Defense counsel objected to the question, arguing that Holland had never stated an opinion on the issue prior to trial. The court sustained defendant's objection. Plaintiff's counsel rephrased the question to the court's satisfaction, and the following dialogue ensued:
"MR. BRUGESS [plaintiff's attorney]: Mr. Holland, do you have an opinion within a reasonable degree of engineering and safety certainty whether or not that retaining wall as it existed on February 15, 1994, constituted a safety hazard?
MR. SIKES [defendant's attorney]: Objection for the record.
THE COURT: So noted for the record.
MR. BRUGESS: What is that opinion?
A: Because it was a fall hazard. There was a change of level.
Q: And you told us a little bit about some of these safety standards that are out there, ANSI, BOCA, building codes, OSHA regulations. If one were to look at those types of standards and-let me ask it first. Do any or all of these standards deal with unprotected fall hazards?
Q: If one were to look at those types of standards, what would they say about unprotected fall hazards?
A: You need a guardrail when you have a change in elevation, and they spell out the guardrail sizing, heights, and all of the requirements in order to provide it."
Holland further testified that it would take only a visual inspection of the area to realize that an employee could fall off the retaining wall.
Defendant presented the following testimony. First, Michael K. Bennett, defendant's senior manager of communications, testified that prior to February 15, 1994, he had daily contact with plaintiff at the La Salle Street Station and had noticed that plaintiff always walked with a limp. Thomas Miller, plaintiff's crew member, also testified that prior to plaintiff's accident, plaintiff walked with a limp. However, defendant's employee Ken Malloy testified that, prior to February 1994, he had worked with plaintiff and had not observed any physical disability, although Malloy did notice that plaintiff walked bowlegged.
Beth Birkenfeld, a conductor, testified that prior to February 15, 1994, plaintiff "made it very clear" to her that she had to perform the physical work while he backed her up.
Kevin King, also a conductor, testified that he had worked as plaintiff's helper several times. He stated that plaintiff rarely missed a day of work prior to his accident and had performed his job "very, very well"; however, after the fall, plaintiff had a "real tough time" completing his work. King could not recall making an alleged statement to defense counsel that, prior to February 15, 1994, plaintiff had a "slow manner" of walking.
In-grid Dillon, a physical therapist, testified that on September 4, 1997, she performed a functional-capacity evaluation of plaintiff, which included a review of plaintiff's medical records, job description, and physical tests. She concluded that plaintiff was incapable of performing the job of switch worker due to lower-back and knee pain, and, due to lower-back pain, plaintiff was incapable of throwing a switch. Dillon stated that plaintiff could return to a job with a medium physical demand level.
Dr. Philip FitzSimons, a board-certified orthopedic surgeon, after reviewing plaintiff's medical records and depositions taken in the case, concluded that plaintiff suffered from osteoarthritis in his left knee prior to February 15, 1994. FitzSimons testified that an MRI conducted approximately three weeks after plaintiff's injury revealed moderately severe to severe arthritis in all three compartments of the knee. He opined that plaintiff's work injury did not "make his arthritis accelerate any faster, *** the arthritis was inevitably going to progress based on findings at the first arthroscopy, and [the] injury may have made his knee sore but it certainly did not produce the arthritis nor *** speed up the arthritis." According to FitzSimons, it was plaintiff's pre-existing arthritic condition that led to his eventual total knee replacement surgery.
FitzSimons further testified that an MRI performed in May 1995 revealed degenerative disc disease and a general wearing and tearing of the lumbar discs, and opined that plaintiff's back problems were not caused by the accident. He indicated that plaintiff could return to a job requiring medium functional activity.
At the close of trial, over defendant's objection, the court tendered Illinois Pattern Jury Instruction 30.21 (Illinois Pattern Jury Instructions, Civil, No. 30.21 (1995) (hereinafter IPI Civil 1995 No. 30.21)), regarding damages for an injury resulting from the aggravation of a pre-existing condition. The court rejected both of defendant's suggested alternatives to IPI Civil 1995 No. 30.21. Also over defendant's objection, the court allegedly instructed the jury that assumption of risk is not a defense. *fn1 Finally, the court declined to instruct the jury, pursuant to defendant's request, that defendant is not an insurer of plaintiff's safety.
The jury returned a verdict, without considering plaintiff's contributory negligence, in the amount of $800,000, itemized as follows: $250,000 for disability; $250,000 for pain and suffering; $0 for disfigurement resulting from the injury; $300,000 for present and future earnings lost. The jury further found plaintiff 50% responsible for his injuries and reduced the judgment to $400,000. Both parties filed timely post-trial motions.
The appellate court "affirmed in part and reversed in part." Although the court indicated that it was reversing the trial court's judgment in part, rather, it simply disagreed with the trial court's reasoning as to one issue and ultimately affirmed the trial court's judgment (see People v. Speed, 315 Ill. App. 3d 511, 517 (2000) (the trial court's judgment may be affirmed on any basis supported by the record)).
A. Aggravation of Pre-existing Condition
Defendant first contends that the trial court erred by instructing the jury pursuant to IPI Civil 1995 No. 30.21:
"If you decide for the plaintiff on the question of liability, you may not deny or limit the plaintiff's right to damages resulting from this occurrence because any injury resulted from an aggravation of a pre-existing condition or a pre-existing condition which rendered ...