{ "id": 8498978, "name": "MARILYN PARVIN, Plaintiff-Appellee, v. JAMES G. SILL et al., Defendants-Appellants", "name_abbreviation": "Parvin v. Sill", "decision_date": "1985-08-30", "docket_number": "No. 5\u201484\u20140758", "first_page": "325", "last_page": "331", "citations": [ { "type": "official", "cite": "138 Ill. App. 3d 325" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "438 N.E.2d 152", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "156" } ], "opinion_index": 0 }, { "cite": "91 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091790 ], "weight": 2, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0375-01" ] }, { "cite": "100 S. Ct. 671", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1982, "opinion_index": 0 }, { "cite": "62 L. Ed. 2d 648", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "444 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11427680, 11428037, 11427911, 11427754, 11427790, 11427727, 11428080, 11427956, 11427830, 11427863, 11427643, 11427999 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/444/1018-02", "/us/444/1018-11", "/us/444/1018-08", "/us/444/1018-04", "/us/444/1018-05", "/us/444/1018-03", "/us/444/1018-12", "/us/444/1018-09", "/us/444/1018-06", "/us/444/1018-07", "/us/444/1018-01", "/us/444/1018-10" ] }, { "cite": "394 N.E.2d 391", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "393" } ], "opinion_index": 0 }, { "cite": "76 Ill. 2d 451", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983021 ], "year": 1980, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0451-01" ] }, { "cite": "213 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 2d 407", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5290824 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/66/0407-01" ] }, { "cite": "454 N.E.2d 1139", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1141" } ], "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 363", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5660051 ], "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0363-01" ] }, { "cite": "413 N.E.2d 1242", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1246" } ], "opinion_index": 0 }, { "cite": "83 Ill. 2d 10", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473221 ], "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0010-01" ] }, { "cite": "374 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "205" } ], "opinion_index": 0 }, { "cite": "71 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448834 ], "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0126-01" ] }, { "cite": "356 N.E.2d 93", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "100" } ], "opinion_index": 0 }, { "cite": "64 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5428585 ], "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0380-01" ] }, { "cite": "205 N.E.2d 461", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "463" } ], "opinion_index": 0 }, { "cite": "32 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2840708 ], "pin_cites": [ { "page": "383-84" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0380-01" ] }, { "cite": "274 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "358" } ], "opinion_index": 0 }, { "cite": "49 Ill. 2d 168", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911757 ], "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0168-01" ] }, { "cite": "187 N.E. 495", "category": "reporters:state_regional", "reporter": "N.E.", "pin_cites": [ { "page": "497" } ], "opinion_index": 0 }, { "cite": "353 Ill. 324", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5292047 ], "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill/353/0324-01" ] }, { "cite": "330 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "268" } ], "opinion_index": 0 }, { "cite": "29 Ill. App. 2d 238", "category": "reporters:state", "reporter": "Ill. App. 2d", "pin_cites": [ { "page": "242" } ], "opinion_index": 0 }, { "cite": "466 N.E.2d 210", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "213" } ], "opinion_index": 0 }, { "cite": "102 Ill. 2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3155765 ], "pin_cites": [ { "page": "407-08" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0402-01" ] }, { "cite": "205 N.E.2d 461", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "32 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2840708 ], "pin_cites": [ { "page": "383-84" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/32/0380-01" ] }, { "cite": "336 N.E.2d 528", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "32 Ill. App. 3d 188", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2796136 ], "pin_cites": [ { "page": "192" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/32/0188-01" ] } ], "analysis": { "cardinality": 748, "char_count": 13789, "ocr_confidence": 0.748, "pagerank": { "raw": 1.3758683623538168e-07, "percentile": 0.6394401758558125 }, "sha256": "bf2f67681e6c88b91eb272b6ff5aa2b872f6dd1facca0ea9b49a8a9ef98ea78d", "simhash": "1:c1c4fc996f4ca56c", "word_count": 2323 }, "last_updated": "2023-07-14T16:36:50.288778+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "EARNS, J., concurring." ], "parties": [ "MARILYN PARVIN, Plaintiff-Appellee, v. JAMES G. SILL et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE WELCH\ndelivered the opinion of the court:\nJames Sill and Heartland Enterprises, Inc., defendants, appeal from a judgment entered by the circuit court of St. Clair County on a jury verdict of $225,400 in favor of plaintiff Marilyn Parvin. The operative facts arise out of an automobile accident. There is no cross-appeal. We reverse and remand for a new trial.\nParvin testified at trial as follows: She was driving to work on the morning of January 31, 1980, in her 1973 Ford Pinto. Because the road was icy in patches, she drove at 10 to 15 miles per hour. As she approached an icy spot, she very gently touched her brake pedal. The Pinto slid right and turned so that it stopped entirely in its proper lane of travel but facing the opposite direction. The vehicle behind her stopped about 2 to 4 feet from Parvin\u2019s car. Between 10 and 15 seconds later, as Parvin was about to turn the Pinto, a third car (Sill\u2019s struck the second, pushing it against Parvin\u2019s and resulting in the injuries complained of.\nHarry Cook, the driver of the second car, testified at trial as follows: The road was \u201cvery icy.\u201d He and Parvin were driving at about 20 miles per hour. He saw the Pinto \u201cfishtailing just a little bit\u201d shortly before it turned around. After Cook stopped and prepared to exit his car to help Parvin, he saw Sill\u2019s car come over the crest of a hill about 200 feet behind him. Sill was driving 30 to 35 miles per hour, too fast for the conditions in Cook\u2019s opinion. Sill\u2019s car began sliding to the right after it came over the hill; it skidded about half the distance between the crest of the hill and the point of impact, then \u201ccame back to the side of the road\u201d and \u201cwas still coming pretty fast\u201d when it struck Cook\u2019s car.\nSill testified at trial: He was traveling about 30 miles per hour and following Cook\u2019s car by three to four car lengths, not 200 feet. He saw Parvin\u2019s car fishtailing prior to the collision. Plaintiff was traveling about 20 miles per hour, a safe speed under the circumstances.\nThe trial court directed a verdict for Parvin on the issue of her contributory negligence. Sill and his employer, Heartland, contend that this was error. We agree. When the evidence and the reasonable inferences from it are considered in their aspect most favorable to the defendants, and it appears therefrom that there is no evidence from which the plaintiff\u2019s contributory negligence could be inferred, it is the trial court\u2019s duty to direct a verdict for the plaintiff on the issue of contributory negligence. Moreover, a court of review passing on the ruling of the trial court should consider that the trial court saw and heard the witnesses. However, if a question remains whether the plaintiff has performed his legal duty, or has observed the degree of care required of him by law, the question must be submitted as one of fact. (Smith v. Bishop (1965), 32 Ill. 2d 380, 383-84, 205 N.E.2d 461, 463.) Here the evidence regarding Parvin\u2019s exercise of due care or failure thereof was at least capable of supporting different inferences. That Parvin was aware of the hazard posed by the condition of the pavement was shown by her admission to that effect as well as the speed at which she was traveling. Cook and Sill were in agreement that Parvin had lost control of the vehicle prior to the maneuver which led to the Pinto turning around. There was no indication in the testimony of Cook or Sill that Parvin slowed down after \u201cfishtailing,\u201d and Parvin, who did not admit the \u201cfishtailing,\u201d obviously could not testify that after fishtailing she slowed down. Thus a substantial question of fact exists as to whether Parvin was guilty of negligence in her operation of the Pinto, which negligence was a proximate cause of the spin which left her in a vulnerable position at the bottom of a hill in an icy lane of traffic. On this record we are compelled to conclude that the issue of Parvin\u2019s contributory negligence was a question of fact for the jury. Accordingly, the judgment must be reversed and the cause remanded for a new trial.\nParenthetically, the foregoing discussion suggests that the crux of Parvin\u2019s position at trial regarding her contributory negligence was that she was not negligent. However, Parvin\u2019s position at trial was that her negligence, if any, was not the proximate cause of the occurrence, and the proximate cause issue was the basis of the trial court\u2019s directing a verdict for Parvin as to her contributory negligence. Our supreme court has repeatedly stated that the question of proximate cause is ordinarily a question for the jury:\n\u201cWe emphasize, however, that each case must turn on its own facts. Defendant remains liable for its negligence if the intervening event was foreseeable. Moreover, to escape liability, defendant must demonstrate that the intervening event was unforeseeable as a matter of law. This we cannot conclude. Proximate cause is ordinarily a question for the jury to decide.\u201d (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 395, 356 N.E.2d 93, 100.)\nA foreseeable intervening cause does not break the chain of legal causation. It is not necessary that the precise nature of the intervening cause be foreseen. (Felty v. New Berlin Transit, Inc. (1978), 71 Ill. 2d 126, 131, 374 N.E.2d 203, 205.) There may be more than one proximate cause of an injury. (Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 17, 413 N.E.2d 1242, 1246.) The intervention of a new, independent intervening cause does not necessarily relieve one of responsibility for a negligent act when the intervening cause of an injury is of such a nature as could reasonably have been anticipated. (Lemings v. Collinsville School District No. 10 (1983), 118 Ill. App. 3d 363, 367, 454 N.E.2d 1139, 1141.) We cannot conclude as a matter of law that the likelihood that a following driver would not exercise sufficient care to avoid a collision involving Parvin was so slight that it was unforeseeable as a matter of law. Accordingly, the issue of whether Sill\u2019s negligence was the sole proximate cause of Parvin\u2019s injuries to the exclusion of her own negligence if any is for the jury to consider on remand.\nAnderson v. Jones (1966), 66 Ill. App. 2d 407, 213 N.E.2d 627, cited by Parvin, is useful for comparison but does not require a contrary result. There, after an accident had blocked both westbound lanes of a highway, the plaintiff\u2019s car was stopped behind a line of cars which could not get through when it was struck by another car whose driver was obviously negligent in having failed to observe the stopped traffic. The issue on appeal was whether the plaintiff was entitled to recover against the driver whose negligence caused the initial blockage of the highway. The appellate court concluded that the latter driver\u2019s negligence was not the proximate cause of the plaintiff\u2019s injury. However, the difference in time frame between that case and the case at bar is critical. In Anderson v. Jones it was apparent that the driver whose car struck the plaintiff\u2019s could have stopped had he observed the stopped traffic before him. Such a conclusion is not obvious on the instant record. Here, the jury could have believed Sill\u2019s testimony that he was following Cook by no more than four car lengths, and that this was so short a distance that Sill could not have prevented the collision once Parvin lost control of her car.\nWhile our conclusion that this cause must be remanded obviates the need to decide certain other issues raised by Sill and Heartland, observations on some issues which may arise on retrial are in order. The issues raised regarding the \u201clast minute\u201d filing of a count alleging Heartland\u2019s wilful and wanton entrustment of an automobile to Sill should not arise on remand. The same is true of issues regarding proof of Sill\u2019s prior speeding tickets, of the trial court\u2019s denial of defendants\u2019 motion for continuance, and of the trial court\u2019s excusal of two jurors for cause.\nSill and Heartland argue that it was error to instruct the jury that an aggravation of a preexisting ailment or condition is a separate element of compensable damages. (See Illinois Pattern Jury Instruction (IPI), Civil, No. 30.03 (2d ed. 1971).) It is well settled, however, that a tortfeasor is liable for injuries he causes, even when those injuries consist of the aggravation of a preexisting condition. (Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 455, 394 N.E.2d 391, 393, cert. denied (1980), 444 U.S. 1018, 62 L. Ed. 2d 648, 100 S. Ct. 671.) Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill. 2d 375, 438 N.E.2d 152, cited by Sill and Heartland, does not stand for a contrary proposition, as the propriety of the IPI instruction concerning aggravation of a preexisting condition was not at issue there. Defendants also contend that the court erroneously gave an instruction that the nature, extent and duration of Parvin\u2019s injuries were to be considered as a separate element of damages. We perceive this to be a strained construction of the instructions given; the jury was instructed only to consider those factors in determining damages generally. \u201cWe do not hold that a jury may never be instructed to consider the nature, extent and duration of the plaintiff\u2019s injury but simply that a jury should not be instructed to consider it as a separate and compensable element of damage ***.\u201d Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill. 2d 375, 384, 438 N.E.2d 152, 156.\nThe remaining issues raised by Sill and Heartland do not require extended discussion. We cannot say that the court abused its discretion in not allowing defendants to question Parvin\u2019s medical expert about a report prepared by the expert\u2019s medical partner, as limitation of cross-examination of a medical expert rests within the sound discretion of the trial court. (Sears v. Rutishauser (1984), 102 Ill. 2d 402, 407-08, 466 N.E.2d 210, 213.) That Parvin\u2019s expert was a radiologist did not render his testimony regarding Parvin\u2019s need for, and the cost of, back surgery inadmissible, particularly as the witness worked as a consultant to back specialists. (See Skaug v. Johnson (1975), 29 Ill. App. 2d 238, 242, 330 N.E.2d 265, 268 (allowing specialist in internal medicine to testify regarding hearing loss was not improper).) Parvin\u2019s testimony that she was having epigastric complaints due to her back medicine was not rendered upon \u201ca scientific question that must be determined by professional men, skilled in the practice of medicine ***.\u201d (American Smelting & Refining Co. v. Industrial Com. (1933), 353 Ill. 324, 329, 187 N.E. 495, 497.) Testimony by Cook as to whether Sill\u2019s speed was too fast should not have been given (Delany v. Badame (1971), 49 Ill. 2d 168, 178, 274 N.E.2d 353, 358), and we trust that that testimony will not be elicited on retrial.\nFor the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed, and the cause remanded for a new trial at which the issue of Parvin\u2019s contributory negligence shall be submitted to the jury.\nReversed and remanded.\nEARNS, J., concurring.", "type": "majority", "author": "JUSTICE WELCH" }, { "text": "JUSTICE HARRISON,\ndissenting:\nI cannot agree that the court erred in directing a verdict for plaintiff on the issue of her contributory negligence. Our supreme court has recognized that, where the evidence and the reasonable inferences from it are considered in their aspect most favorable to defendants, and it appears therefrom that there is no evidence from which a plaintiff\u2019s contributory negligence could be inferred, it is the trial court\u2019s duty to direct a verdict for the plaintiff on the contributory negligence issue. Moreover, a court of review passing on the trial judge\u2019s ruling should take into consideration the fact that the trial judge saw and heard the witnesses. (Smith v. Bishop (1965), 32 Ill. 2d 380, 383-84, 205 N.E.2d 461.) Analysis of the record here reveals that the trial court did not, under the unique facts presented, err in directing a verdict on the contributory negligence issue. While plaintiff\u2019s car turned around on the icy road, the record is devoid of any evidence tending to establish that this event was caused by negligence on'the part of plaintiff. Contrary to the majority\u2019s statement that there is no evidence that Parvin slowed down after \u201cfishtailing,\u201d there is absolutely nothing of record which contradicts plaintiff\u2019s testimony to the effect that the road was icy, that she in fact touched her brake lightly in an effort to slow down a bit more, and that the turning of her vehicle was sudden and unforeseeable. Moreover, defendant Sill testified that plaintiff was driving at a safe speed under the circumstances. Additional uncon-tradicted evidence establishes that plaintiff\u2019s car did not hit anything when it turned around, that it stopped in its own lane of traffic, and that Cook, who was closer to plaintiff\u2019s vehicle than was Sill, was able to stop his vehicle without hitting plaintiff\u2019s. The question of a plaintiff\u2019s contributory negligence may, under appropriate circumstances, be decided as a matter of law (Pearson v. Ford Motor Co. (1975), 32 Ill. App. 3d 188, 192, 336 N.E.2d 528), and the trial court\u2019s action in directing a verdict on that issue here is fully supported by the record. Since my review of the record persuades me that defendants\u2019 remaining contentions are also without merit, I would affirm the judgment in its entirety.", "type": "dissent", "author": "JUSTICE HARRISON," } ], "attorneys": [ "Dunham, Boman & Leskera, of East St. Louis (Pamela A. Klekner, W. Michael Gnavi, Jr., and Robert D. Francis, of counsel), for appellants.", "Michael J. Reagan, of Kassly, Bone, Becker, Dix & Tillery, P.C., of Belle-ville, for appellee." ], "corrections": "", "head_matter": "MARILYN PARVIN, Plaintiff-Appellee, v. JAMES G. SILL et al., Defendants-Appellants.\nFifth District\nNo. 5\u201484\u20140758\nOpinion filed August 30, 1985.\nDunham, Boman & Leskera, of East St. Louis (Pamela A. Klekner, W. Michael Gnavi, Jr., and Robert D. Francis, of counsel), for appellants.\nMichael J. Reagan, of Kassly, Bone, Becker, Dix & Tillery, P.C., of Belle-ville, for appellee." }, "file_name": "0325-01", "first_page_order": 347, "last_page_order": 353 }