{ "id": 3543402, "name": "GORDON V. LEWIS, JR., Plaintiff-Appellant, v. MARK E. JONES, Defendant-Appellee", "name_abbreviation": "Lewis v. Jones", "decision_date": "1987-06-29", "docket_number": "No. 3\u201486\u20140638", "first_page": "327", "last_page": "334", "citations": [ { "type": "official", "cite": "157 Ill. App. 3d 327" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "139 N.E.2d 275", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "10 Ill. 2d 28", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2724293 ], "opinion_index": 0, "case_paths": [ "/ill-2d/10/0028-01" ] }, { "cite": "321 U.S. 29", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 301855 ], "weight": 6, "pin_cites": [ { "page": "35" }, { "page": "525" }, { "page": "412" }, { "page": "35" }, { "page": "525" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/us/321/0029-01" ] }, { "cite": "67 N.E.2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "394 Ill. 71", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2472075 ], "opinion_index": 0, "case_paths": [ "/ill/394/0071-01" ] }, { "cite": "97 Ill. App. 3d 855", "category": "reporters:state", "reporter": "Ill. App. 3d", "pin_cites": [ { "page": "859" } ], "opinion_index": 0 }, { "cite": "417 N.E. 2d 1099", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1100" } ], "opinion_index": 0 }, { "cite": "417 N.E.2d 1099", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1101" }, { "page": "1102" } ], "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 855", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3136418 ], "weight": 3, "pin_cites": [ { "page": "857" }, { "page": "857" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0855-01" ] }, { "cite": "394 N.E.2d 391", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. 2d 451", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983021 ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0451-01" ] }, { "cite": "72 N.E. 755", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1979, "opinion_index": 0 }, { "cite": "213 Ill. 274", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3313503 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill/213/0274-01" ] } ], "analysis": { "cardinality": 770, "char_count": 16013, "ocr_confidence": 0.755, "pagerank": { "raw": 1.0433376359178163e-07, "percentile": 0.5514504899706508 }, "sha256": "296303279c37d4ce2f543badd521ddb645939f182503178b53ffa6af4d75f4ac", "simhash": "1:3be05a443ba58320", "word_count": 2620 }, "last_updated": "2023-07-14T21:36:34.857148+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GORDON V. LEWIS, JR., Plaintiff-Appellant, v. MARK E. JONES, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE SCOTT\ndelivered the opinion of the court:\nThis action was brought by plaintiff-appellant, Gordon V. Lewis, Jr. (referred to as Donny), against defendant-appellee, Mark E. Jones (Jones), for damages resulting from an automobile accident.\nDonny suffers from cerebral palsy. Although this condition does not impair his ability to think, read or remember, it does affect his speech and physical movements. The condition produces involuntary contractions of the muscles in Donny\u2019s body, causing spastic movements.\nOn August 13, 1982, Donny and a friend were involved in an automobile accident with Jones, in which Jones\u2019 car ran into the rear end of the vehicle Donny was driving. Donny\u2019s car was pushed forward, striking the car in front of him. The impact knocked Donny forward and he testified that his neck snapped and he jammed his wrist into the steering wheel. He also stated that he felt dizzy and thought he would get sick.\nDonny was examined by emergency room physicians at Proctor Hospital in Peoria. Upon arrival, Donny testified that he had a bad headache and his neck, lower back, arm and left wrist were hurting. After X rays were taken, Donny was given medication and then went home with his parents. Donny later consulted Dr. Brooks twice within the following month for the injuries received.\nOn September 27, 1982, Donny was examined and placed under the care of Dr. Robert Downs, a chiropractor. Downs diagnosed a post-traumatic cervical injury resulting from hyperextension and hyperflexion. Downs thereafter saw Donny seven times in October, eight times in November, 12 times in December and eight times in January. He further received sporadic treatment from Dr. Downs until the following June of 1983.\nDuring the time Donny saw Downs, he performed physical activity and he testified that the pain came and went. Also during this time, Donny fell down a flight of stairs while carrying a box, causing injury to his ankle. Dr. Downs opined that injuries resulting from the fall were unrelated to the prior automobile accident. At the conclusion of the treatment, however, Dr. Downs expressed the opinion that Donny suffered from no substantial disability other than the preexisting cerebral palsy.\nOn November 11, 1983, Donny consulted Dr. Xuan Truong, a specialist in physical medicine and rehabilitation. A physical examination by Dr. Truong revealed tenderness over the low back, limitations in bending forward and pain on straight leg raising. Dr. Truong prescribed physical therapy. The parties differ as to the effectiveness of the therapy, but the evidence indicates that Donny\u2019s back pain improved. Dr. Truong released Donny from further inpatient treatments on April 27, 1984. Dr. Truong testified at trial that Donny\u2019s symptoms could be related to the accident in question and that the condition could be permanent.\nOn June 19, 1984, Donny broke his right arm when he fell down a stairway at his parents\u2019 house. Just before the fall, he felt a sudden sharp burning pain in his right leg and fell to his right side, striking his elbow. Donny was treated by Dr. Ed Smith, an orthopedic surgeon, f\u00f3r a fracture just above the elbow. Smith testified that people with normal balance usually do not fall regardless of muscle spasm attacks. Smith treated Donny\u2019s fractured elbow and found, at the time of the last visit, the range of motion in Donny\u2019s arm was functional. Donny then returned to St. Francis Clinic in Peoria for therapy and saw Dr. Barry Little.\nDr. Little saw Donny on July 20, 1984. Dr. Little stated that at the examination, Donny complained of significant lower back pain causing limited range of motion in his legs. Further, Donny\u2019s right arm had a wrist drop and he had limited range of motion when attempting to extend the elbow. Little testified that Donny\u2019s low back condition was secondary to the automobile accident and that the condition was aggravated by his cerebral, palsy due to his distorted anatomy. There was no indication, however, that the cerebral palsy condition was aggravated as a result of the accident.\nDr. Little then referred Donny back to Dr. Truong at the Institute of Physical Medicine in Peoria for additional therapy to the right elbow. Dr. Truong testified that the fracture of the right elbow was not caused by or connected with the automobile accident, but was connected with the fall in June of 1984.\nThere was conflicting testimony at the trial level concerning Donny\u2019s condition before and after the automobile accident but prior to the fall of June 1984. Plaintiff asserted that prior to the automobile accident, Donny indicated that he played golf, went fishing, played softball and lived on his own, but that after the accident he was unable to do many of these activities to the same extent as prior to the accident. Defendant asserted, however, that after the accident, Donny was able to do the same things as he did before. Moreover, he often drove to a local tavern and eating establishment to socialize with his friends. Defendant also maintained, through testimony, that Donny was not as physically able prior to the accident as the plaintiff indicated.\nFollowing the consideration of the evidence, the jury found that defendant was negligent and therefore liable for damages suffered as a result of the automobile accident in 1982. A verdict was returned in favor of plaintiff in the amounts of $1,000 for pain and suffering and $1,597.40 as special damages for medical expenses. The special damage award reflected the cost of the initial emergency room services and the medical treatment provided by Dr. Robert Downs in the months following the accident.\nPlaintiff-appellant raised three issues on appeal: (1) whether the trial court committed reversible error in failing to grant plaintiff\u2019s proposed jury instruction number 20; (2) whether a new trial should be granted on the issue of damages only because the jury\u2019s verdict with respect to damages was against the manifest weight of the evidence; and (3) whether a new trial should be granted on the issue of damages only because the damages awarded plaintiff were inadequate as a matter of law. We will consider the issues in order.\nThe proposed jury instruction submitted by the plaintiff, and denied by the trial court, represents the idea that plaintiff\u2019s prior physical condition caused the effect of the injury suffered to be more severe than it would have been had there not been such a prior condition. It reads as follows:\n\u201cIf you find that the. defendant was negligent and that his neg- . ligence was a proximate cause of injury to and disability of the plaintiff, you should then find for the plaintiff, and his right to recover damages for such injuries and disability is not barred or limited in any way by the fact, if you find it to be a fact, that the plaintiff, because of a pre-existing physical condition, was affected by his injuries differently than other persons might have been.\u201d\nPlaintiff readily admits that the damages being sought are not for aggravation of . a preexisting condition. The testimony at trial quite clearly indicated that the prior condition of cerebral palsy had not been aggravated as a result of the injury. Instead, plaintiff argues that he is entitled to damages as a result of his cerebral palsy condition\u2019s causing the injury to be worse than it normally would be to a person without cerebral palsy.\nEssentially, plaintiff is attempting to put a new twist in the law which states that a negligent defendant must take the plaintiff as he finds him. Generally, this rationale has been applied to situations where the injuries caused by the tortfeasor consist of the aggravation of a preexisting condition. (Chicago City Ry. Co. v. Saxby (1904), 213 Ill. 274, 72 N.E. 755; Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 394 N.E.2d 391.) Indeed, the authority cited by plaintiff for his proposition dealt with situations where preexisting conditions were aggravated by the defendant\u2019s negligence. Plaintiff, however, argues that those authorities allow for the expansion of damages to situations where the prior existing condition aggravates the plaintiff\u2019s injuries. In particular, plaintiff relies on Lay v. Knapp (1981), 93 Ill. App. 3d 855, 417 N.E.2d 1099, to support his position.\nIn Lay, the trial court allowed, over objection, plaintiff\u2019s damage instructions No. 13:\n\u201cPlaintiff\u2019s right to recover damages for her injuries and disability is not barred or to be limited in any way by the fact, if you find it to be a fact, that the Plaintiff\u2019s injuries and disability resulted from an aggravation of a pre-existing condition by the occurrence in question nor by reason of the fact, if you find it to be a fact, that the Plaintiff because of a pre-existing physical condition was more susceptible to injury than other persons might have been.\u201d Lay v. Knapp (1981), 93 Ill. App. 3d 855, 857, 417 N.E. 2d 1099, 1100.\nThe court reasoned that based on Balestri, and under Supreme Court Rule 239(a) (87 Ill. 2d R. 239(a)), when Illinois Pattern Jury Instructions, Civil (2d ed. 1981) (IPI Civil 2d) instructions are used, that does not \u201cautomatically preclude the use of a non-IPI instruction on the same subject.\u201d (Lay v. Knapp (1981), 93 Ill. App. 3d 855, 857, 417 N.E.2d 1099, 1101.) Further, the court in Lay held that in certain situations the IPI instructions may be inadequate, and clarification through the use of an additional instruction is appropriate.\nThe court next considered whether the proposed instruction was unduly argumentative or placed undue emphasis on one element of damages. Noting that \u201c[a]ny departure from the use of pattern instructions should be carefully scrutinized\u201d (Lay v. Knapp (1981), 97 Ill. App. 3d 855, 859, 417 N.E.2d 1099, 1102), the court determined that the given instruction briefly and impartially supplemented IPI Civil 2d jury instruction No. 30.03 regarding the aggravation of a preexisting condition.\nWe believe the trial court properly denied plaintiff\u2019s tendered jury instruction in the present case for three reasons. First, in Illinois, a plaintiff is entitled to damages for all injuries that are proximately caused by a defendant, even if those injuries are the result of an aggravation of a preexisting physical condition. The cases cited by plaintiff, however, do not support the proposition that plaintiff\u2019s proposed jury instruction finds support in Illinois law. There can be .no doubt that both Balestri and Lay stand for the idea that a defendant must take the plaintiff as he found him. Certainly that principle applies here also. However, this case does not involve the aggravation of a preexisting condition as did Balestri and Lay and, therefore, we do riot consider those cases persuasive.\nSecond, non-IPI jury instructions must be impartial statements of the law that are simple, brief and free from argument. (87 Ill. 2d R. 239(a).) Plaintiff claims that since a defendant must take a plaintiff as he finds him under Illinois law and since Balestri and Lay allow the use of amplification of instructions of a preexisting condition, proposed instruction No. 20 is proper. We have, however, found no statutory or case law which specifically supports the proposition of the tendered instruction. Thus we cannot say the instruction is impartial or free from argument.\nFinally, we believe those plaintiff\u2019s instructions that were given by the court adequately instructed the jury with regard to compensation of plaintiff\u2019s complained-of injuries. Those instructions dealt with proximate causation and the type and amount of damages to be awarded. For instance, plaintiff\u2019s jury instruction No. 13 defined proximate cause as \u201ca cause which, in natural or probable sequence, produced the injury complained of.\u201d Plaintiff\u2019s jury instruction No. 15 further stated in part:\n\u201cThe plaintiff has the burden of proving each of the following propositions:\nFirst, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;\nSecond, that the plaintiff was injured;\nThird, that the negligence of the defendant was a proximate \u25a0 cause of the injury to the plaintiff.\nIf you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff ***.\u201d\nMoreover, plaintiff\u2019s jury instruction No. 16 stated:\n\u201cIf you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damage proved by the evidence to have resulted from the negligence of the defendant:\nThe disability resulting from the injury.\nThe pain and suffering experienced and reasonable [sic] certain to be experienced in the future as a result of the injuries.\nThe reasonable expense of necessary medical care, treatment, and services received and the present cash value of the reasonable expenses of medical care, treatment and service reasonably certain to be received in the future.\nWhether any of these elements of damages has been proved by the evidence is for you to determine.\u201d\nWe believe that the above instructions, as well as other instructions not repeated here, adequately instructed the jury concerning the amount plaintiff was entitled to recover had the jury believed that Donny\u2019s present condition was a proximate result of Jones\u2019 negligence. Therefore, it was not proper or necessary to give plaintiff\u2019s tendered instruction No. 20, as the proposition asserted therein was fully covered in other instructions. Lasko v. Meier (1946), 394 Ill. 71, 67 N.E.2d 162.\nIt appears from the record that the reason plaintiff was not awarded damages to the extent desired is that the jury simply did not consider defendant\u2019s negligence to be the proximate cause of plaintiff\u2019s current condition. Without speculating as to why the jury made this finding, we note that there was ample evidence in the record for the jury to determine that intervening causes superseded defendant\u2019s negligent act, thus relieving defendant of any liability beyond those damages incurred immediately after the accident. The jury, properly instructed about proximate causation, found that plaintiff\u2019s condition some two years after the accident was not attributable to defendant\u2019s negligence.\nPlaintiff also argues that the jury verdict as to damages was against the manifest weight of the evidence and, therefore, the damages awarded by the jury were inadequate as a matter of law. As heretofore stated, we find sufficient evidence in the record to support the jury\u2019s verdict. It is not the function of the reviewing court \u201cto search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences.\u201d (Tennant v. Peoria & Pekin Union Ry. Co. (1944), 321 U.S. 29, 35, 88 L. Ed. 520, 525, 64 S. Ct. 409, 412.) \u201cCourts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.\u201d 321 U.S. 29, 35, 88 L. Ed. 520, 525, 64 S. Ct. 409, 412. See also Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28, 139 N.E.2d 275.\nSince the damages awarded by the jury are reasonably supported by the evidence of record, the damages awarded are not inadequate as a matter of law.\nThe decision of the trial court is affirmed.\nAffirmed.\nBARRY, P.J., and STOUDER, J\u201e concur.", "type": "majority", "author": "JUSTICE SCOTT" } ], "attorneys": [ "Harvey & Stuckel, Chartered, of Peoria (Jeffrey B. Rock, of counsel), for appellant.", "John A. Kendrick, of Westervelt, Johnson, Nicoll & Keller, of Peoria (Robert D. Jackson, of counsel), for appellee." ], "corrections": "", "head_matter": "GORDON V. LEWIS, JR., Plaintiff-Appellant, v. MARK E. JONES, Defendant-Appellee.\nThird District\nNo. 3\u201486\u20140638\nOpinion filed June 29, 1987.\nHarvey & Stuckel, Chartered, of Peoria (Jeffrey B. Rock, of counsel), for appellant.\nJohn A. Kendrick, of Westervelt, Johnson, Nicoll & Keller, of Peoria (Robert D. Jackson, of counsel), for appellee." }, "file_name": "0327-01", "first_page_order": 349, "last_page_order": 356 }