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