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Kamp v. Preis

August 6, 2002

AUDRA KAMP, PLAINTIFF-APPELLEE,
v.
WILLIAM J. PREIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 98-L-506 Honorable Phillip J. Kardis, Judge, presiding.

Justices: Honorable Clyde L. Kuehn, J. Honorable Gordon E. Maag, P.J., and Honorable Terrence J. Hopkins, J., Concur

The opinion of the court was delivered by: Justice Kuehn

The defendant, William J. Preis, appeals from the trial court's June 21, 2001, denial of his posttrial motion for a judgment notwithstanding the verdict or, alternatively, for a new trial.

I. FACTS

Michael Meehan was a student at Lewis and Clark Community College and rented an apartment in Godfrey, Illinois, from William J. Preis. The apartment was owned by Preis and his wife, although the lease indicated that the owner was Preis Home Construction, Inc., of which Preis is president.

The apartment building is what is commonly known as a quadplex-a building containing four residential units. Preis's construction company was responsible for building the particular quadplex occupied by Michael Meehan, as well as 63 others in the complex where Michael Meehan's building was located. Ownership of the other 63 apartment buildings is not known because that detail was not included in the record.

Michael Meehan's apartment was one of two upstairs apartments. The two upstairs apartments share a deck that is 20 feet long and 10 feet wide and separated in the middle by a wooden divider. Apparently, all of the other apartment buildings in the complex are similarly constructed. Each deck is secured to its building by a wooden ledger board. The ledger boards were attached to the buildings at the joists by 30 pole-barn nails. The nails utilized in the deck constructed at Michael Meehan's apartment were ungalvanized. Ungalvanized nails can rust. Some of the other decks constructed by Preis Home Construction, Inc., included galvanized nails.

On May 15, 1998, Audra Kamp attended a party hosted by Michael Meehan in his Godfrey apartment. The party was well-attended, with approximately 60 people in the apartment. The partygoers were also on the deck. About 11 p.m., Kamp and an estimated 35 to 40 other people were standing on this deck, when the deck suddenly collapsed. Kamp and the others fell 15 feet to the ground below. Kamp's right leg was severely injured in the accident. Her leg was three-fifths severed, with a fractured tibia and fibula. The fracture was designated as a grade III and open, meaning that it was the worst type of fracture, with the bone exposed to the environment. She was initially seen on May 16, 1998, at an Alton hospital emergency room by an orthopedic surgeon, who performed an open reduction and internal fixation by inserting a seven-inch plate with seven screws in Kamp's leg. The surgeon, Dr. J.E. Stirnaman, was reluctant to close the wound for fear of infection. He loosely closed the wound with nylon sutures and placed drains in the leg. Thereafter, on May 18, 1998, she underwent a second surgery, at which time Dr. Stirnaman removed the sutures, irrigated the wound, debrided it of necrotic-looking tissue, and closed the wound.

Following the two surgeries, Kamp was seen by Dr. Stirnaman in his office. He prescribed antibiotics and removed fluid from the wound for culturing. The culture was positive for a rare bacteria, meaning that Kamp likely had an infection in her leg. A subsequent culture revealed the presence of a staph infection. Thereafter, Kamp was referred to a St. Louis orthopedic surgeon who also happened to be an infectious disease specialist, Dr. Clayton Perry, with a tentative diagnosis of osteomyelitis, a bone infection.

Dr. Clayton Perry was not able to fully treat the osteomyelitis until the fracture had healed, because treating the infection required the removal of the plate and screws in order to be able to remove any diseased bone. By October 1998, the fracture and the wound had sufficiently healed without a sign of infection. On November 12, 1998, Dr. Perry operated on Kamp to remove the plate and the screws. During this surgery, he removed tissue from underneath the plate, which was sent for culturing. The wound was cleaned and closed with stitches. That culture revealed that there was still a staph infection in the area where the plate had been. Kamp has not had any recurrence of the infection.

Kamp filed suit against Mr. and Mrs. Preis, doing business as Preis Commercial and Realty, and against Preis Home Construction, Inc. She alleged negligent construction, negligent maintenance, and failure to warn of the maximum number of people who should be allowed on the deck. Motions to dismiss were filed. The trial court determined that the statute of limitations barred the suit against Preis Home Construction, Inc., for negligent construction but that the corporation maintained a possessory interest in the property and could be sued as a landlord. The complaint was amended several times as the case made its way to a trial.

During the trial, Kamp's attorney questioned Preis about the lease's language. Preis clarified that while the lease very specifically stated that the landlord was Preis Home Construction, Inc., he and his wife were the actual landlords, because he and his wife owned the building. Preis explained that the attorney who drafted the lease felt that they would be better protected if the corporation was listed as the landlord. Following this testimony, Kamp's attorney voluntarily dismissed her case against Preis Home Construction, Inc.

Following deliberation, the jury returned a verdict for Kamp in the total amount of $1,300,319. The trial court granted Preis's motion for a set-off in the amount of $79,905.71, the amount of the settlement Kamp had reached with the tenant, Michael Meehan. Preis's posttrial motion asked the court to enter a judgment notwithstanding the verdict or to alternatively order a new trial. That motion was denied on June 21, 1999.

On appeal, Preis raises numerous issues relative to that order.

II. STANDARD OF REVIEW

A judgment notwithstanding the verdict should not be granted unless the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favored the movant that no contrary verdict could possibly stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). A judgment notwithstanding the verdict is inappropriate in situations where " 'reasonable minds might differ as to inferences or conclusions to be drawn from the facts presented.' " McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242, 257 (1999) (quoting Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351, 654 N.E.2d 1365, 1374 (1995)). The trial court should not reweigh the evidence and set aside a verdict just because the jury could have drawn different conclusions or inferences from the evidence or because the court feels that another result would have been far more reasonable. McClure, 188 Ill. 2d at 132, 720 N.E.2d at 257 (relying on Maple v. Gustafson, 151 Ill. 2d 445, 452, 603 N.E.2d 508, 512 (1992)). Similarly, the appellate court should not usurp the jury's role on questions of fact that were fairly submitted, tried, and determined from the evidence which did not overwhelmingly favor either position. McClure, 188 Ill. 2d at 132, 720 N.E.2d at 257 (relying on Maple, 151 Ill. 2d at 452-53, 603 N.E.2d at 512). We apply a de novo standard to determinations on motions for judgments notwithstanding the verdict. McClure, 188 Ill. 2d at 132, 720 N.E.2d at 257; Hernandez v. Schittek, 305 Ill. App. 3d 925, 930, 713 N.E.2d 203, 207 (1999).

The trial court's ruling on a motion for a new trial should not be reversed on appeal unless the party who is seeking the new trial can affirmatively show that the court clearly abused its discretion. Maple, 151 Ill. 2d at 455, 603 N.E.2d at 513. In determining whether the trial court abused its discretion, we must consider whether the jury's verdict was supported by the evidence and whether the complaining party was denied a fair trial. Maple, 151 Ill. 2d at 455, 603 N.E.2d at 513.

III. ISSUES

A. Dr. Perry's Testimony About Future Injury

Preis contends that the trial court erred in overruling his motion in limine regarding testimony Dr. Perry gave by way of evidence deposition, about the possibility that Kamp could develop osteomyelitis in the future. Dr. Perry testified that if she developed another infection, the condition would necessitate additional surgery and could possibly result in the amputation of her right leg. Specifically, Dr. Perry testified to his opinion, within a reasonable degree of medical certainty, whether Kamp could develop an infection in the future because her final culture indicated the presence of a staph bacteria in the leg: "It's more likely that she would be infected with positive cultures than if we had not found any germs at all." He finalized the thought by stating, "[I]n her case, it's more likely."

Preis correctly argues that the admission of testimony about future damages is reversible error if that testimony is based upon speculation. Harp v. Illinois Central Gulf R.R. Co., 55 Ill. App. 3d 822, 827, 370 N.E.2d 826, 829-30 (1977). If a doctor testifies that a future problem or need could possibly occur, that testimony is too speculative and should not be admitted. Brown v. ...


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