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Burkhamer v. Krumske

Court of Appeals of Illinois, First District, Sixth Division

June 12, 2015

KEVIN L. BURKHAMER, Plaintiff-Appellant,
MEL RICHARD KRUMSKE, Defendant-Appellee

Appeal from the Circuit Court of Cook County. No. 09 L 12116. Honorable Arnette R. Hubbard, Judge Presiding.

FOR APPELLANT: Michael W. Rathsack, Esq., Matthew A. LaSusa, Chicago, IL.

FOR APPELLEES: Jonathan T. Koehler, Ripes, Nelson, Baggot & Kalobratsos, P.C., Chicago, IL.

JUSTICE HALL delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Rochford concurred in the judgment and opinion.



Page 1168

[¶1] Pursuant to Illinois Supreme Court Rule 306(a)(1) (eff. July 1, 2014), the plaintiff, Kevin Burkhamer, filed a petition for leave to appeal from an order of the circuit court of Cook County granting a new trial to the defendant, Mel Richard Krumske. We allowed the petition. On appeal, the plaintiff contends that the trial court erred in ordering a new trial and that the trial court abused its discretion when it granted the defendant a mistrial.

[¶2] On September 9, 2008, the plaintiff was injured when he was struck by a car driven by the defendant. At the time of the accident, the plaintiff was 33 years old and married with three minor children. His employment included jobs as an ironworker and an excavator. He also did farming and repaired welding equipment. All of his jobs required the use of his hands.

[¶3] The plaintiff filed a personal injury complaint against the defendant. The defendant admitted negligence, and the parties agreed to excuse the defendant from attending the trial due to his poor health condition. The case proceeded to a jury trial on damages.

[¶4] The plaintiff testified that following the accident, he suffered bruising on his hip, elbow and shoulder on his left side. His left hand was numb, and he could not grab anything with it. His neck and back were very sore. The plaintiff began to suffer dizziness as the result of his head striking the windshield of the defendant's car and the pavement.

[¶5] By the time of trial, the plaintiff's neck and back were better, and his symptoms were reduced to a nagging and annoying pain. His left hand injury was finally resolved by surgery, and his hand was close to normal. The plaintiff still suffered from dizziness preventing him from doing ironwork and tossing his kids in the air while he was playing with them. The dizziness also prevented him from participating in sports. The plaintiff's total medical bills were just under $45,000.

[¶6] Each party presented expert medical testimony. In her evidence deposition, Dr. Julie Wehner, the plaintiff's expert and a board-certified orthopedic surgeon, testified

Page 1169

that in the accident, the plaintiff sustained injuries, including contusions and sprains, a closed head injury, aggravation of his preexisting degenerative spine condition, and a fracture of a carpel bone in his left hand. The doctor opined that the accident caused the plaintiff's injuries and resulted from the collision with the defendant's car. While his hand injury was resolved through surgery and his other injuries would resolve over time, the doctor could not rule out the need for further surgery to treat his degenerative spine condition. In her evidence deposition, Dr. Elizabeth Kessler, the defendant's expert and a board-certified neurologist, opined that the accident did not aggravate the plaintiff's preexisting degenerative spine condition or cause his hand injury, based on his inconsistent descriptions of the accident to the various medical providers who treated him, and the timing of his complaints of pain.

[¶7] On direct examination, the plaintiff was asked if he ever had a conversation with the defendant. After the plaintiff responded no, defense counsel objected. The trial court sustained the objection on the basis of relevance. The plaintiff was then asked if he was aware that the defendant had admitted negligence just before trial. When the plaintiff answered yes, the trial court sustained defendant's objection and ordered the jury to " disregard the mention of the timeline." The plaintiff was then asked if the defendant called him to apologize. Defense counsel objected on the basis of relevance, and the trial court granted his request for a sidebar.

[¶8] During the sidebar, defense counsel argued that the plaintiff's line of questioning was designed to inflame the jury and moved for a mistrial. The plaintiff's counsel denied that his line of questioning was improper. He explained that the questioning was designed to show the effect the defendant's refusal to admit liability until the day of trial had on the plaintiff's pain and suffering. Defense counsel pointed out that the plaintiff had denied suffering emotional injuries from the accident and that the questions were an attempt to " smear my client and make him look bad" to the jury and " to prejudice the jury emotionally against" the defendant.

[¶9] The trial court agreed that the line of questioning was improper and sustained the objection. The court then expressed concern that the line of questioning might continue and questioned whether an objection would be curative at this point in the trial. After the plaintiff's counsel assured the court that he was at the very end of his direct examination of the plaintiff, the trial court stated as follows:

" I'm going to take this motion [for mistrial] under advisement. I'm going to let us proceed and then we will -- I'll be able to determine this, of course the point is cited is at the present. However, it may be possible that future conduct will be an ...

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