Appeal from the Circuit Court of Cook County Honorable Deborah Mary Dooling, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Plaintiff Daniel Bulger sued defendants, the Chicago Transit Authority (CTA) and Tony E. Williams, for personal injuries plaintiff incurred when he was struck by a CTA bus driven by Williams. Bulger's wife, plaintiff Rodica Lung, sued for loss of consortium. After a trial, the jury returned a verdict in plaintiffs' favor. However, the jury found Bulger 50% contributorily negligent and reduced the damages award accordingly.
On appeal, defendants seek a new trial on the issue of liability, contending that the trial court improperly admitted the CTA's post-accident disciplinary measures, that admission of those measures was highly prejudicial, and that because the CTA's internal rules and procedures lack the force of law, they should not have been incorporated into the jury instructions as evidence of negligence. On cross-appeal, plaintiffs seek a new trial on both liability and damages. They contend that the jury's failure to award Lung any damages for loss of consortium and the jury's minimal damages award for pain and suffering were not justified by the evidence and are inconsistent with the extensive award for medical expenses. Plaintiffs further contend that judgment notwithstanding the verdict should have been granted because no evidence established that Bulger was contributorily negligent or that a new trial should be granted as the result of cumulative error.
We reverse and remand for a new trial on liability and damages.
The accident at issue took place around 11:30 a.m. on March 29, 1995, at the intersection of Dearborn and Polk Streets in Chicago. Polk runs east-west, while Dearborn runs north-south, dead-ending at Polk to the south. Bulger was crossing Dearborn from east to west and Williams was turning left from Polk onto Dearborn when the accident occurred.
At trial, Bulger testified that he walked up to the northeast corner of Dearborn and Polk, waited for a car on Polk to take a right turn onto Dearborn, and then started walking across the street in the crosswalk. He was about half way across when he was hit by a bus. Bulger stated that he was "knocked off [his] feet and some distance to the north." Eventually, an ambulance took Bulger to the hospital, where he was treated and released. Bulger testified to several injuries that resulted from the accident. On cross-examination by defendants, Bulger insisted that he did not see the bus until it hit him and acknowledged his deposition testimony that he was approximately four steps into the intersection when he was hit.
An eyewitness to the accident, Ken Kotz, testified that Bulger was walking in the crosswalk when he was hit by a bus and knocked backward to the ground. Kotz recalled the bus stopping in the turn lane on Polk and then accelerating as it turned left onto Dearborn. Kotz did not recall seeing Bulger look in the direction of the bus or stop at the curb before entering the intersection.
Williams testified that he came to a complete stop at the stop sign on Polk and put on his left turn signal. When the intersection and crosswalks were clear, he proceeded to make a left turn onto Dearborn, driving three to five miles per hour. About four or five feet beyond the crosswalk on Dearborn, the front left corner of the bus hit Bulger, whom Williams had not seen before impact. Williams "mashed" the brakes and saw Bulger falling backwards onto the ground. Williams got out of the bus to assist Bulger. Later, Williams told a police officer at the scene, "[Bulger] must have ran [sic] out, I don't know where he came from, just a pedestrian all of a sudden appeared in front of the bus."
Williams further testified that the CTA determined he had violated their internal rules, and as a result, he was given additional training. According to Williams, the additional one-day training, which was attended by a number of employees, "consisted of making left-hand turns, intersection procedures, pedestrians in crosswalks and basically when you put on your turn signals, stuff like that as far as approaching the intersection and being aware of everything within that intersection and not being -- coming in contact with anything or anybody."
Willy Lipsey, who was employed as a transportation manager for the CTA in March 1995, testified that he was involved in the investigation of the accident. Lipsey went to the scene of the accident and, a few days later, prepared a "Special Occurrence Report" based solely on his interview with Williams. Lipsey did no independent investigation. In the report, Lipsey indicated that Williams had violated the CTA's internal rule B.4.6.1 and the CTA's standards of procedure (SOPs) 150, 416, 417, and 8132. Lipsey testified that Williams was sent to retraining and acknowledged that not every driver involved in an accident is retrained. He explained why he charged Williams with rule violations and sent him to retraining.
On cross-examination by defendants, Lipsey stated that the point of retraining is to "correct any bad habits that bus operators might have developed." He further indicated that he did not have any independent knowledge that Williams had any bad habits that needed correcting, but decided to send Williams to retraining "due to the accident." He testified that the fact Williams was sent to retraining did not have anything to do with who actually caused the accident, stated that operators involved in accidents are sent to retraining a "majority of the times," and agreed that retraining is "an automatic function of the CTA." He also stated that he had reached no conclusions about whether Williams saw the pedestrian. On redirect, Lipsey clarified that drivers are not sent to retraining "all the time," and agreed that whether drivers are sent "has to do with [his] determination as to whether or not this driver was going to need retraining." On re-cross-examination, he agreed that his decision to send Williams for retraining was "pretty automatic."
Dr. Aref Senno testified that he examined Bulger on March 30, 1995, the day after the accident. At that time, Bulger complained of headache and pain in his neck, right foot, and left eye. Dr. Senno diagnosed Bulger with spasm of the neck muscles. He prescribed Bulger an analgesic and a muscle relaxant, ordered a neck X ray, and referred Bulger to a chiropractor. About three weeks later, Dr. Senno, with the agreement of the chiropractor, ordered an MRI (magnetic resonance imaging) of Bulger's right shoulder. For a time, Bulger "became better and better," yet his neck pain would come and go. When Bulger's reports of shoulder pain did not subside by 1997, Dr. Senno and the chiropractor enlisted the services of an orthopedic surgeon, Dr. Leonard Smith, who ordered an MRI for Bulger's right shoulder and eventually operated on that shoulder in 1998. In 1999, when Bulger returned to Dr. Smith with complaints of pain in his neck, Dr. Smith ordered an MRI of that area. The MRI revealed a herniated disk in Bulger's neck, for which Dr. Smith advised further physical therapy. Dr. Senno stated his opinion, to a reasonable degree of medical and surgical certainty, that the accident caused injury to Bulger and that the injuries were permanent.
On cross-examination, Dr. Senno reviewed a number of complaints or reports of pain made by Bulger after his original release from care on August 5, 1995. Specifically, Dr. Senno confirmed that Bulger returned on September 16, 1995, complaining of pain in his right shoulder that developed from an activity. Bulger returned on December 2, 1995, complaining of a flare-up of right shoulder pain and stiffness. On January 18, 1996, Bulger reported to the chiropractor that he experienced sharp shoulder pain at the base of his neck when he lifted a bag; on January 29, 1996, Bulger reported "an incident" that aggravated his right shoulder; and on June 14, 1996, he reported acute flare-up of shoulder pain due to reaching. On December 30, 1996, he reported exacerbation of back and right shoulder pain. On February 20, 1997, Dr. Senno referred Bulger to Dr. Smith for an orthopedic consult regarding the shoulder, and Dr. Smith took an MRI on April 26, 1997. On June 18, 1997, Dr. Smith made a notation in his records that "[p]atient exacerbation of right shoulder developed during activity." Bulger complained of feeling pain in his neck and right shoulder while involved in activity on November 15, 1997; complained of acute flare-up with stiffness in his shoulder and neck on May 15, 1998; and reported exacerbation of right shoulder pain on June 19, 1998. After reviewing these complaints and reports of pain, Dr. Senno agreed that after Bulger was initially released from treatment, he injured or exacerbated injuries to his shoulder or neck several times while engaging in activities such as reaching or carrying a bag.
On re-cross-examination, Dr. Senno agreed that it was probable that Bulger suffered from tendinitis in his right shoulder before the accident, as repetitive motion can create tendinitis. However, he insisted that "the affect and the action point to the accident" as a cause. Dr. Senno also acknowledged that in the time between the 1995 and the 1997 MRIs of Bulger's right shoulder, "there were several incidents during activities in which [Bulger] hurt his shoulder and his neck."
Dr. Leonard Smith, the orthopedic surgeon to whom Dr. Senno had referred Bulger, testified that he first examined Bulger on March 11, 1997. At that time, Bulger complained of shoulder pain and weakness, and Dr. Smith's physical findings were a restriction of motion and pain in internal rotation and abduction of the shoulder. An MRI of Bulger's shoulder from 1995 suggested tendinitis and a possible tear of the rotator cuff. Because the MRI was old, Dr. Smith ordered a new MRI of the right shoulder in April 1997. This MRI was suggestive of persisting tendinitis localized to the area of attachment of the supraspinatus tendon, which is part of the rotator cuff, and an incomplete tear. Based upon Bulger's clinical condition and the MRI, Dr. Smith felt there was a high degree of probability that Bulger's rotator cuff was torn. Accordingly, Dr. Smith operated on the shoulder. During the surgery, Dr. Smith confirmed tendinitis and partial rupture of the tendon and repaired the tear. The surgery also revealed a congenital defect in Bulger's shoulder that caused a portion of his shoulder to be narrower than normal. While asymptomatic, the condition would have rendered Bulger more susceptible to injury.
Dr. Smith stated his opinion, based upon the history given to him by Bulger and the lack of evidence of any other pre-existing symptomatic conditions, that the torn rotator cuff was more likely than not the result of the accident. Dr. Smith also opined that Bulger's torn rotator cuff and tendinitis would be productive of pain, and that his condition could be partially disabling due to pain, associated weakness, and some limitation of function. He stated that the operation he performed does not produce 100% recovery, strength, or range of motion, and that due to scarring, which tends to lead to some inflammation, some residual permanent impairment always exists as a result of a torn rotator cuff. With regard to Bulger's surgery, Dr. Smith stated, "I would say it was successful, but there is still some permanent impairment." As of trial, Bulger still experienced some limitation of motion and some weakness. Dr. Smith also indicated that Bulger's future impairment might include stiffness, soreness, and a minor degree of pain.
Dr. Smith further testified that he later became involved in the care and treatment of Bulger's neck. An MRI of Bulger's neck, taken on August 9, 1999, was suggestive of a herniated disk. According to Dr. Smith, the type of herniated disk Bulger suffered from causes headaches and pain in the neck. Dr. Smith testified that a second MRI of Bulger's neck, taken in April 2000, showed no significant change. Based on the absence of any prior symptoms or neck problems, Dr. Smith opined that the herniated disk in Bulger's neck was related to the accident. He also stated his opinion that elements of Bulger's neck problem were going to be permanent and indicated that if the symptoms did not subside with medication and therapy, future surgical correction was a possibility.
Dr. Smith stated that he diagnosed Bulger with postconcussion syndrome even though the results of both an EEG (electroencephalogram) and a CAT (computerized axial tomography) scan were negative. In the absence of objective indications of the syndrome, Dr. Smith based his diagnosis on Bulger's symptoms and subjective complaints, such as headaches. Based on the lack of prior complaints of headaches, Dr. Smith opined that Bulger's postconcussion syndrome was caused by the accident. He further opined that "some part of" the syndrome would be permanent.
Following deliberations, the jury returned a verdict for plaintiffs, awarding $66,000 for past medical expenses, $50,000 for future medical expenses, $110,000 for past and future disability, $3,000 for past pain and suffering, and $24,000 for future pain and suffering. However, the jury found Bulger 50% contributorily negligent and reduced the damages award accordingly. The jury gave no award to Lung for loss of consortium.
ADMISSION OF EVIDENCE OF POST-ACCIDENT REMEDIAL MEASURES
We begin our analysis with defendants' contention that the trial court improperly allowed evidence that Williams was "charged" with violating internal CTA rules and procedures regarding optimal defensive driving techniques and that the CTA sent Williams for safe driving retraining. Defendants argue that the law requires the exclusion of post-accident remedial measures offered to prove negligence. Plaintiffs respond that the trial court properly allowed the admission of the CTA's subsequent remedial measures under the holding of Pearl v. Chicago Transit Authority, 177 Ill. App. 3d 499 (1988).
A trial court's decision regarding whether to admit evidence is reviewed for abuse of discretion. Gill v. Foster, 157 Ill. 2d 304, 312-13 (1993). Where a trial court abuses its discretion in admitting evidence, a new trial should be ordered only when the improperly admitted evidence affected the outcome of the trial. Schmidt v. Ameritech Illinois, 329 Ill. App. 3d 1020, 1040-41 (2002), citing Tzystuck v. Chicago Transit Authority, 124 Ill. 2d 226, 243 (1988).
In general, evidence of post-accident remedial measures is not admissible to prove prior negligence. Herzog v. Lexington Township, 167 Ill. 2d 288, 300 (1995). The plaintiff in Herzog claimed that the absence of signs on the roadway led to his single-car accident. The trial court excluded, as post-accident remedial measures, evidence of the defendant placing additional signs on the roadway following the accident. The appellate court reversed the trial court and allowed the evidence of post-accident remedial measures as impeachment. The Illinois Supreme Court found that because the defendant did not exaggerate the safety of the roadway, the plaintiff was not entitled to impeach this testimony with evidence of post-accident remedial measures. Herzog, 167 Ill. 2d at 303. Our supreme court in Herzog provided several reasons for the post-accident remedial measures exclusionary rule: (1) a strong public policy favors encouraging improvements to enhance public safety; (2) subsequent remedial measures are not considered sufficiently probative of prior negligence, because later carefulness may simply be an attempt to exercise the highest standard of care; and (3) a jury may view such conduct as an admission of negligence. Herzog, 167 Ill. 2d at 300.
There are several exceptions to the general rule excluding evidence of post-accident remedial measures. Evidence of a defendant's post-accident remedial measures may be admitted where the defendant did not act voluntarily, but was required to act by an outside governmental authority. See LoCoco v. XL Disposal Corp., 307 Ill. App. 3d 684, 693 (1999); Gaunt & Haynes, Inc. v. Moritz Corp., 138 Ill. App. 3d 356, 365 (1985); Millette v. Badosta, 84 Ill. App. 3d 5, 19 (1980). Additionally, we are mindful that evidence of a defendant's post-accident remedial measures may be admissible for purposes such as proving ownership or control of property where disputed by the defendant, proving feasibility of precautionary measures where disputed by the defendant, or impeachment without inference of prior negligence. Herzog, 167 Ill. 2d at 300-03. Regarding the use of post-accident remedial measures as impeachment, Herzog cautioned as follows: "Just as evidence of subsequent remedial measures is not considered sufficiently probative to be admissible to prove prior negligence, that evidence is not admissible for impeachment where the sole value of the impeachment rests on that same impermissible inference of prior negligence.
Allowing such evidence in these circumstances would swallow the general rule prohibiting the introduction of subsequent remedial measures and frustrate the policy considerations that support it. In every case, a defendant will dispute that his prior conduct was negligent. Once a defendant disputes his or her negligence at trial, a plaintiff could always seek to introduce evidence of subsequent remedial measures under the guise of impeachment. Thus, the general rule of excluding evidence of subsequent remedial measures would be swallowed by the impeachment exception. Furthermore, contrary to the policies supporting the general rule, parties to lawsuits would be discouraged from making improvements for fear that such actions would be used against them at trial.
Where the impeachment value rests on inferences other than prior negligence, such evidence may be admitted where its probative value outweighs the prejudice to ...