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Claro v. Delong

Court of Appeals of Illinois, Fifth District

August 31, 2016

LARRY CLARO, Plaintiff-Appellant,
SHIRLEY ANN DeLONG, Defendant-Appellee.

         Appeal 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.

         ¶ 2 FACTS

         ¶ 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 okay."

         ¶ 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 ...

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