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Marxmiller v. The Champaign-Urbana Mass Transit District

Court of Appeals of Illinois, Fourth District

November 30, 2017

PATRICIA J. MARXMILLER and KEN MARXMILLER, Plaintiffs-Appellees,
v.
THE CHAMPAIGN-URBANA MASS TRANSIT DISTRICT, Defendant-Appellant.

         Appeal from Circuit Court of Champaign County No. 15L38 Honorable Michael Q. Jones, Judge Presiding.

          APPLETON JUSTICE delivered the judgment of the court, with opinion. Justices Holder White and DeArmond concurred in the judgment and opinion.

          OPINION

          APPLETON JUSTICE

         ¶ 1 In this negligence action, plaintiffs, Patricia J. Marxmiller and Ken Marxmiller, recovered a money judgment against defendant, Champaign-Urbana Mass. Transit District (CUMTD). Defendant appeals, arguing the Champaign County circuit court erred in two of the instructions it gave the jury.

         ¶ 2 The first instruction at issue informed the jury that the trial court had found defendant to be liable to plaintiffs. See Illinois Pattern Jury Instructions, Civil, No. 1.02 (2011) (hereinafter, IPI Civil (2011) No. 1.02) ("Pre-Trial Judicial Determination in Favor of Plaintiff"). Defendant argues this instruction was misleading and prejudicial and that, instead, the court should have given IPI Civil (2011) No. 1.03B ("Admitted Fault and Causation"), considering that by withdrawing its affirmative defense of comparative fault, defendant had forthrightly admitted negligence and proximate cause.

         ¶ 3 For the following reasons, we are unconvinced by this first challenge to the jury instructions. Before defendant withdrew its affirmative defense, the trial court made summary determinations that (1) Patricia J. Marxmiller was no more than 50% at fault in the accident and (2) defendant's negligence was a proximate cause of her injuries. The court thereby found defendant to be liable to plaintiffs. Defendant's negligence and the proximately resulting injuries were established by the court's summary determinations, not by defendant's admissions. Thus, IPI Civil (2011) No. 1.02, rather than IPI Civil (2011) No. 1.03B, was the correct instruction to give, and we find no abuse of discretion in the giving of that instruction. Without that instruction, the jury would have been confused as to why the question of defendant's liability was being skipped over in the trial.

         ¶ 4 The second jury instruction at issue is an instruction coupled with a verdict form. The instruction informed the jury that, on one line of "Verdict Form A, " which was for Patricia J. Marxmiller, it could award damages for pain and suffering (if it found such damages to be proved) and that, on another line of the verdict form, it could award damages for emotional distress. See IPI Civil (2011) Nos. 30.01 ("Measure of Damages-Personal and Property"); 30.05 ("Measure of Damages-Pain and Suffering-Past and Future"); 30.05.01 ("Measure of Damages-Emotional Distress-Past and Future"); B45.02.A ("Verdict Form A-Single Plaintiff and Defendant-No Contributory Negligence Pleaded"). Defendant argues the court thereby authorized a double recovery since emotional distress was a form of suffering.

         ¶ 5 We agree that emotional distress is a form of suffering and that itemizing emotional distress and suffering as separate elements of damages creates a risk of double recovery. It does not appear, though, that the jury was misled in this particular case. Because the jury awarded half a million dollars less for pain and suffering than for emotional distress, we see no evidence of a double recovery. In Verdict Form A, the elements of damages had to be added together to yield a total, and evidently the jury perceived the illogic of duplication. Even though, normally, emotional distress would be regarded as a component of suffering, it appears that, in the context of Verdict Form A, the jury understood the item of suffering as excluding the item of emotional distress-or else the award for pain and suffering would have been greater than the award for emotional distress, rather than less.

         ¶ 6 Therefore, we affirm the trial court's judgment. See McHale v. W.D. Trucking, Inc., 2015 IL App (1st) 132625, ¶ 116 ("[A] judgment will not be reversed where the jury instructions are faulty unless they mislead the jury and the complaining party suffered prejudice." (Internal quotation marks omitted.)).

         ¶ 7 I. BACKGROUND

         ¶ 8 On February 25, 2015, in Champaign, Illinois, Patricia J. Marxmiller was struck by one of defendant's buses. Her legs were so severely injured they had to be amputated. She sued for her personal injuries, and her spouse, Ken Marxmiller, sued for loss of consortium. Defendant pleaded an affirmative defense of comparative fault.

         ¶ 9 Before the jury trial, the parties filed cross-motions for partial summary judgment. See 735 ILCS 5/2-1005(d) (West 2016). Plaintiffs sought a summary determination of defendant's negligence and also a summary determination against defendant's affirmative defense that Patricia J. Marxmiller was comparatively at fault. Defendant, on the other hand, sought a summary determination that she was at fault to some degree.

         ¶ 10 The trial court ruled on the cross-motions for summary judgment as follows. It granted plaintiffs' motion for a summary determination that (1) defendant's negligence was a proximate cause of Patricia J. Marxmiller's injuries and (2) she could be no more than 50% at fault. It declined to make a summary determination, however, that she was completely free of comparative fault. By the same token, it denied defendant's motion for a summary determination that she was at fault to some degree. Essentially, then, the court ruled that the issue of whether she was at fault to the extent of 50% or less was for the jury to resolve.

         ¶ 11 After the trial court made those rulings on the cross-motions for summary judgment, defendant filed an amended answer, which omitted the affirmative defense of comparative fault (previously pleaded in the original answer).

         ¶ 12 Thus, both the summary determinations and the amendment of the answer removed issues from the upcoming jury trial. Because of the summary determinations, the jury would not be asked to decide whether defendant was liable to plaintiffs; it would be a trial on damages alone. Because of the amendment of the answer, the jury would not be asked to decide whether Patricia J. Marxmiller was comparatively at fault to the extent of 50% or less. See Blackburn v. Johnson, 187 Ill.App.3d 557, 564-65 (1989) (comparative negligence is an affirmative defense, which is forfeited if not pleaded).

         ¶ 13 Given the summary determinations, plaintiffs tendered to the trial court plaintiffs' instruction No. 2A, which was based on IPI Civil (2011) No. 1.02. (Incidentally, we grant defendant's unopposed motion to supplement the record, by stipulation, with plaintiffs' instruction No. 2A and defendant's instruction No. 1. See Ill. S.Ct. R. 329 (eff. July 1, 2017).) Plaintiffs' instruction No. 2A read as follows: "The court has found the defendant, CUMTD, liable, so that is not an issue you will need to decide."

         ¶ 14 Defendant objected to plaintiffs' instruction No. 2A because defendant regarded it as misleading. In defendant's view, that instruction suppressed the fact that defendant, in its amended answer, had effectively conceded the issue of comparative fault. Defendant tendered, as an alternative, defendant's instruction No. 1, which was based on IPI Civil (2011) No. 1.03B and which, defendant believed, would give due credit for its concession on the issue of comparative fault. Defendant's instruction No. 1 read as follows: "The defendant, Champaign-Urbana Mass. Transit District, has admitted it was negligent. The defendant, Champaign-Urbana Mass. Transit District, has also admitted that its negligence was a proximate cause of damages to the plaintiff. There are other issues you will need to decide in this case."

         ¶ 15 The trial court refused defendant's instruction No. 1 and accepted plaintiffs' instruction No. 2A. Accordingly, on August 10, 2016, at the beginning of the trial, after giving the standard cautionary instructions, the court additionally instructed the jury: "[T]he court has found the Defendant[, ] CU-MTD[, ] liable[, ] so that is not an issue you will need to decide."

         ¶ 16 On August 16, 2016, after the close of evidence in the jury trial, the trial court held a jury instruction conference, in which the controversy of IPI Civil (2011) No. 1.02 versus IPI Civil (2011) No. 1.03B arose again. Plaintiffs tendered their instruction No. 5, which was a modification of IPI Civil (2011) No. 1.02. It read as follows: "The Court has found the defendant, Champaign-Urbana Mass. Transit District, is liable, so that is not an issue you will need to decide. You need only decide what amount of money will reasonably and fairly compensate the plaintiffs for injuries and damages caused by the collision of February 25, 2015."

         ¶ 17 Defendant renewed its earlier objection that "it [was] inappropriate to say that [the court] ha[d] made the finding of liability against [defendant]." The court responded: "I've already said [IPI Civil (2011) No.] 1.02 is appropriate as opposed to [IPI Civil (2011) No.] 1.03[B]. The argument is much like a jury finding a criminal defendant guilty and then the defendant popping up and saying[, ] [']I'd like to switch my plea from not guilty to guilty.['] "

         ¶ 18 Additionally, defendant objected to plaintiffs' instruction No. 8, an instruction on damages, which was based on IPI Civil (2011) Nos. 30.01, 30.04, 30.04.01, 30.05, 30.05.01, 30.06, and 30.07. Plaintiffs' instruction No. 8 stated in part:

"You must fix the amount of money which will reasonably and fairly compensate the Plaintiff, Patricia J. Marxmiller[, ] for any of the following elements of damages proved by the evidence to have resulted from the collision of February 25, 2015, taking into consideration the nature, extent[, ] and duration of the injury.
The emotional distress experienced and reasonably certain to be experienced in the future.
The pain and suffering experienced and reasonably certain to be experienced in ...

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