from the Circuit Court of St. Clair County. No. 14-L-236
Honorable Vincent J. Lopinot, Judge, presiding.
Attorneys for Appellant Michelle M. Rich, Kristina D.
Cooksey, Thomas C. Rich, Thomas C. Rich.
Attorneys for Appellee Daniel L. Bradley, Darrell J. Flesner,
DeFranco & Bradley.
JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion. Presiding Justice Schwarm and Justice Stewart
concurred in the judgment and opinion.
1 Plaintiff, Larry Claro, appeals from a judgment of the
circuit court of St. Clair County in favor of defendant,
Shirley Ann DeLong, entered after a jury returned a general
verdict in favor of defendant in a negligence action brought
by plaintiff after defendant collided with plaintiff's
vehicle. The issues on appeal are (1) whether the verdict in
favor of defendant was against the manifest weight of the
evidence and (2) whether plaintiff was entitled to a judgment
notwithstanding verdict (judgment n.o.v.). For the
following reasons, we reverse and remand with directions to
enter judgment in favor of plaintiff and to hold a new trial
on the issue of damages only.
3 On January 11, 2013, plaintiff was driving his Honda Accord
and was stopped at a stoplight when he was rear-ended by
defendant, who was driving a Dodge Durango. Prior to trial,
defendant admitted liability, and a jury trial was held on
the issue of damages only. At the time of trial, plaintiff
was 57 years old. The accident in question occurred when
plaintiff was 55.
4 Plaintiff works as an auto body repairman. He testified he
started working at his father's body shop as a young man.
Over the years, he has worked in several different auto body
shops. At the time of trial, he was employed by an auto body
shop doing heavy repair work with the chance to possibly buy
the business from its current owners.
5 Defendant testified she was stopped behind plaintiff at a
stoplight. She estimated she was stopped for five or six
seconds when the brake released "like there was air in
the line or something. It just went down." Her vehicle
then rolled two or three feet into plaintiff's vehicle.
She said there was "very little impact." She
testified that both she and plaintiff exited their vehicles
to check to see if everyone was okay, which they were. The
parties called the police, took care of business, and both
drove away from the scene. Defendant admitted plaintiff was
certainly caught off guard and surprised at the time of
impact. She said she drove away from the scene even though
her brakes malfunctioned because the brakes had never done
that before, and she "just assumed everything was
6 Plaintiff testified defendant struck him while she was
traveling between 15 to 20 miles per hour and that
immediately after the accident defendant was flustered.
Defendant opened her left rear door, fumbled around on the
floorboard, and retrieved a cell phone. Plaintiff did not
immediately seek medical attention. Plaintiff testified in
the days and weeks following the accident, he was sore and
aching in his right shoulder. He took ibuprofen and thought
the pain would get better, but the pain worsened.
7 Plaintiff continued to work and did not miss any time from
his job as a result of the accident. However, due to
increasing pain, he got to the point where he could not sleep
well. His girlfriend recommended he go to a chiropractor, Dr.
Dale Fischer. Plaintiff sought treatment with Dr. Fischer,
and that treatment initially helped. However, when his
recovery hit a plateau, Dr. Fischer referred him to Dr.
Matthew Gornet, an orthopedic surgeon.
8 Plaintiff saw Dr. Gornet three times in 2013. Plaintiff
went back to see Dr. Gornet on June 11, 2015, after plaintiff
continued to experience neck pain. Ultimately, Dr. Gornet
recommended a steroid injection, which helped reduce
plaintiff's symptoms. However, plaintiff still
experiences pain in the right side of his neck and down his
shoulder, especially when he is doing something strenuous.
Plaintiff testified the pain is tolerable if he is sitting in
a chair watching television, but at the end of a 10-hour work
shift, his pain is "not good."
9 Plaintiff testified that he suffered a herniated disc in
his lower back 13 years ago as a result of picking up a
tailgate off the floor. He missed six weeks of work due to
that injury, but was up to light duty after three months and
ultimately released for full duty. Plaintiff testified that
prior to the instant ...