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Hess v. Espy

July 02, 2004


Appeal from the Circuit Court of Winnebago County. No. 99-L-442. Honorable Janet Clark Holmgren, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer


Plaintiff, Connie Hess, filed a complaint against defendant, Michelle Espy, for injuries she allegedly sustained when defendant's vehicle rear-ended plaintiff's vehicle. Following a trial in the circuit court of Winnebago County, the jury returned a verdict in plaintiff's favor and awarded her damages in excess of $190,000. The trial court denied defendant's posttrial motion. On appeal, defendant asserts that the jury's verdict as to liability was against the manifest weight of the evidence. Alternatively, defendant challenges the jury's award of damages. In the unpublished portion of this decision, we reject defendant's former argument. In the published portion of this decision, we hold that the trial court erred in (1) instructing the jury that the aggravation of a pre-existing condition constitutes a separate element of damages and (2) tendering to the jury an itemized verdict form listing the aggravation of a pre-existing condition as a separate element of damages. Accordingly, we affirm in part, vacate in part, and remand this cause for further proceedings.


The record indicates that on the morning of November 10, 1998, plaintiff was traveling east in the innermost lane of Broadway in Rockford. Defendant was in her vehicle traveling directly behind plaintiff's vehicle. There was a delivery van in front of plaintiff's vehicle and another automobile in front of the delivery van.

At the intersection of Broadway and Eastmoreland, the vehicles stopped at a traffic light. When the traffic signal turned green, the vehicles proceeded through the intersection. The car in front of the van slowed down to make a left turn. According to defendant, a short time later, the delivery van "dipped like he slammed on his brakes." Defendant then observed plaintiff apply her brakes. Defendant slammed on her brakes but was unable to avoid a collision with plaintiff's vehicle. Defendant described the collision as a "bump" and estimated that her speed just prior to the collision was between 5 and 10 miles per hour. Defendant testified that her airbag did not deploy and that, although she did not observe any damage to either her vehicle or plaintiff's vehicle, there was a "paint transfer" between the two automobiles. Following the collision, defendant exited her vehicle and asked plaintiff if she was okay. Plaintiff responded that her back hurt. Defendant called 9-1-1, and plaintiff was transported to a hospital by ambulance.

Plaintiff testified that as a result of the impact, a purse, cellular telephone, and bagged lunch that were on the passenger seat of her car were thrown to the floor. In addition, plaintiff stated that at the moment of impact, her body "went suddenly forward and came back against the seat," her neck "snapp[ed] back," and her stomach hit the steering wheel, causing a bruise. After the accident, plaintiff experienced neck discomfort and a burning sensation between her shoulder blades. At the emergency room, plaintiff underwent X rays of the cervical area.

Plaintiff recalled that between 1993 and 1996, she suffered from stiffness of the neck due to a fall. In July 1996, plaintiff awoke with an extremely stiff neck. Plaintiff's physician, Lydia Savic, recommended heat and muscle relaxers to alleviate the stiffness. These treatments did not resolve the discomfort, and Dr. Savic referred plaintiff to Dr. Buckingham. Between July 1996 and December 1996, Dr. Buckingham treated plaintiff with heat, muscle relaxers, and epidurals. Eventually, Dr. Buckingham recommended surgery, which plaintiff underwent on December 27, 1996. The surgery resolved her neck problem, and in February 1997, Dr. Buckingham released plaintiff to Dr. Savic's care.

Two days after the accident, plaintiff visited Dr. Savic's office and was referred for an MRI and prescribed pain medication. Eventually, Dr. Savic referred plaintiff to Dr. Manno, with whom she began treatment on or about November 23, 1998. Despite undergoing physical therapy and traction, plaintiff continued to experience pain and was taking Vicodin. In February 1999, plaintiff underwent a surgical procedure performed by Dr. Manno. Plaintiff recalled that since the surgery, the right side of her neck had improved greatly, but the left side of her neck had not. Subsequently, plaintiff returned to the care of Dr. Savic.

Plaintiff testified that she was given an off-work slip and that she did not work from the date of the accident until April 7, 2000, due to the pain she was experiencing. Prior to the accident, plaintiff worked at Rockford Clinic. When she returned to work in April 2000, however, plaintiff managed a sandwich shop. She eventually returned to the medical field in October 2001, and, at the time of trial, worked as a certified medical assistant in the field of obstetrics and gynecology. Plaintiff testified that she is no longer able to perform certain duties due to neck pain. Plaintiff calculated the amount of wages she lost during the time she was out of work as $25,704.68.

Plaintiff testified that despite the surgery, she has trouble turning her head to the left. In addition, plaintiff testified that she can no longer crochet, do ceramics, play video games, or carry her laundry or groceries. She also stated that she is limited in the time she can spend doing certain activities, such as typing, vacuuming, cleaning the bathroom, mopping floors, and changing sheets. Moreover, she does not sleep well at night. Plaintiff testified that her vehicle sustained damage to the bumper. Admitted into evidence was the repair bill, totaling $939.28.

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme Court Rule 23.]

Following deliberations, the jury returned a verdict in plaintiff's favor. The jury awarded damages in the amount of $190,939.28. The jury itemized the damages as follows:

Aggravation of a Pre-existing Condition$75,000.00 Disfigurement$500.00 Future Pain and Suffering$45,313.19 Medical Care and Treatment$43,482.23 Lost Earnings$25,704.58 Car Repair$939.28 TOTAL$190,939.28.

Defendant filed a posttrial motion seeking judgment notwithstanding the verdict, a new trial, or a remittitur. The trial court denied defendant's motion, and this appeal ensued.


As a preliminary matter, we point out that defendant's brief violates Supreme Court Rule 341(e)(7) (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001). Specifically, Rule 341(e)(7) requires the appellant's brief to include "[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." (Emphasis added.) The majority of the argument section of defendant's opening brief does not cite to the pages of the record relied on. We elect not to strike defendant's brief, because the statement of facts contains sufficient references to the record on appeal. Nevertheless, we remind counsel that our supreme court rules are not mere technicalities or suggestions. Tires 'N Tracks, Inc. v. Dominic Fiordirosa Construction Co., 331 Ill. App. 3d 87, 95 (2002). We admonish counsel to adhere to the rules in the future.

A. Jury Verdict

The material in this section is nonpublishable under Supreme Court Rule 23 ...

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