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Janky v. Perry

September 25, 2003

BARBARA JANKY, PLAINTIFF-APPELLANT,
v.
DORIS PERRY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois No. 00-L-324 Honorable Stuart P. Borden Judge, Presiding.

The opinion of the court was delivered by: Justice Holdridge

UNPUBLISHED

The plaintiff, Barbara Janky, filed a negligence cause of action against the defendant, Doris Perry. Janky claimed that her shoulder was injured as the result of an automobile accident caused by Perry. A jury ruled in favor of Perry. Janky's motion for a judgment notwithstanding the verdict was denied. On appeal, Janky argues that the trial court erred by (1) allowing Perry's attorney to elicit testimony from Janky that she had complained of shoulder pain to her family doctor three or four years before the automobile accident occurred; and (2) denying her motion for a judgment notwithstanding the verdict. We affirm.

BACKGROUND

The automobile accident at issue occurred on April 17, 1999. On that date, Janky was a passenger in a car driven by her husband. The Jankys' granddaughter was in the front passenger seat and Janky was in the back seat on the driver's side. While stopped at a traffic light, Janky leaned forward to talk to her granddaughter.

Perry was driving her car, which was stopped directly behind the Jankys' car. Perry testified that while stopped for the light, she reached down to the floor of her car to retrieve an object. When Perry bent over to retrieve the object, her foot slipped off the brake. Perry's car moved forward and struck the Jankys' car from behind. As a result of the collision, Janky's left shoulder struck the driver's seat in front of her.

Janky testified that when her shoulder struck the seat, she immediately felt pain from her shoulder down to her elbow. After the accident, Janky did not seek immediate medical attention. Instead, Janky and her husband took their granddaughter to visit the granddaughter's father. The Jankys then drove to their home.

The accident occurred on a Saturday. Janky stated that her shoulder continued to hurt on Sunday. On Monday, her husband made an appointment for her with an orthopedist, Dr. Timothy J. Morgan.

During direct examination, the following exchange took place between Janky's lawyer and Janky:

"Q: *** Prior to this accident, did you have any problems with your left shoulder?

A: Well, I had pain[,] but it wasn't down in my shoulder. It was more up in here (Indicating) in my neck area.

Q: Now, how often[,] and we're still talking about before the accident, before April 17th of 1999, how often would you have this pain that you talked about in your left shoulder?

A: Not frequent at all, not frequent at all."

On cross-examination, Perry's attorney asked Janky, "You complained of pain in your shoulder to your family physician as early as March of 1995, didn't you?" Janky's attorney immediately asked to approach the bench, and a sidebar was held off the record. Following the sidebar, the judge stated for the record that Janky's objection was overruled. The nature of Janky's objection, however, is not preserved in the record.

The following exchange then took place between Perry's lawyer and Janky:

"Q: I had asked if isn't it correct that you made complaints of left shoulder pain to your family physician, Dr. Blair, as early as March of 1995?

A: I don't remember what, when it was, you know, what year it was or anything.

Q: Were you -- do you remember making complaints to Dr. Blair?

A: Um-hum.

Q: About your left ...


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