{ "id": 1083792, "name": "CONNIE HESS, Plaintiff-Appellee, v. MICHELLE ESPY, Defendant-Appellant", "name_abbreviation": "Hess v. Espy", "decision_date": "2004-07-02", "docket_number": "No. 2\u201403\u20140464", "first_page": "490", "last_page": "501", "citations": [ { "type": "official", "cite": "351 Ill. App. 3d 490" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "204 Ill. App. 3d 961", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2577282 ], "year": 1990, "pin_cites": [ { "page": "983" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0961-01" ] }, { "cite": "278 Ill. App. 3d 1017", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156772 ], "year": 1996, "pin_cites": [ { "page": "1020" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/1017-01" ] }, { "cite": "255 Ill. App. 3d 1047", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2989181 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "1056" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/255/1047-01" ] }, { "cite": "76 Ill. 2d 451", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983021 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/76/0451-01" ] }, { "cite": "286 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544440 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "412-13" }, { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0406-01" ] }, { "cite": "346 Ill. App. 220", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2432400 ], "weight": 3, "year": 1952, "pin_cites": [ { "page": "231" }, { "page": "231-32", "parenthetical": "noting that the defendant's objection to instruction was based on failure to request special damages and that there was no evidence that the accident aggravated a preexisting condition" } ], "opinion_index": 0, "case_paths": [ "/ill-app/346/0220-01" ] }, { "cite": "188 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2689735 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "203-04", "parenthetical": "addressing whether instruction, directing jury that the plaintiffs right to recover damages is not limited or barred because any injury resulted from the aggravation of a preexisting condition, must accompany Illinois Pattern Jury Instructions, Civil, No. 30.03 (2d ed. 1971" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0193-01" ] }, { "cite": "282 Ill. App. 3d 445", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159580 ], "year": 1996, "pin_cites": [ { "page": "449-50", "parenthetical": "holding that jury's award of damages for aggravation of a preexisting condition but not for any other category of damages recognized the possibility of duplicate recovery" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0445-01" ] }, { "cite": "329 Ill. App. 3d 357", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472401 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "365" }, { "page": "367", "parenthetical": "refusing to address propriety of damages where court ordered new trial on damages" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0357-01" ] }, { "cite": "260 Ill. App. 3d 925", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2864479 ], "weight": 7, "year": 1994, "pin_cites": [ { "page": "935-36" }, { "page": "933" }, { "page": "934" }, { "page": "935-36" }, { "page": "936" }, { "page": "935" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0925-01" ] }, { "cite": "348 Ill. App. 3d 767", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4023256 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "776" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0767-01" ] }, { "cite": "91 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091790 ], "weight": 8, "year": 1982, "pin_cites": [ { "page": "385" }, { "page": "385" }, { "page": "377-78" }, { "page": "378" }, { "page": "384" }, { "page": "381" }, { "page": "382" }, { "page": "383-84" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0375-01" ] }, { "cite": "331 Ill. App. 3d 87", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209149 ], "year": 2002, "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0087-01" ] } ], "analysis": { "cardinality": 963, "char_count": 27359, "ocr_confidence": 0.783, "pagerank": { "raw": 4.856319230494445e-08, "percentile": 0.3045623509324289 }, "sha256": "435df264cc0037f93d041e45b38b5fa0b51abf39f09a9eff8590f9c4bd8e85dd", "simhash": "1:8bac96570845d7a0", "word_count": 4407 }, "last_updated": "2023-07-14T15:22:07.473803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "O\u2019MALLEY, EJ., and BOWMAN, J., concur." ], "parties": [ "CONNIE HESS, Plaintiff-Appellee, v. MICHELLE ESPY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GEOMETER\ndelivered the opinion of the court:\nPlaintiff, Connie Hess, filed a complaint against defendant, Michelle Espy, for injuries she allegedly sustained when defendant\u2019s vehicle rear-ended plaintiffs vehicle. Following a trial in the circuit court of Winnebago County, the jury returned a verdict in plaintiffs favor and awarded her damages in excess of $190,000. The trial court denied defendant\u2019s posttrial motion. On appeal, defendant asserts that the jury\u2019s verdict as to liability was against the manifest weight of the evidence. Alternatively, defendant challenges the jury\u2019s award of damages. In the unpublished portion of this decision, we reject defendant\u2019s former argument. In the published portion of this decision, we hold that the trial court erred in (1) instructing the jury that the aggravation of a preexisting condition constitutes a separate element of damages and (2) tendering to the jury an itemized verdict form listing the aggravation of a preexisting condition as a separate element of damages. Accordingly, we affirm in part, vacate in part, and remand this cause for further proceedings.\nI. BACKGROUND\nThe record indicates that on the morning of November 10, 1998, plaintiff was traveling east in the innermost lane of Broadway in Rockford. Defendant was in her vehicle traveling directly behind plaintiff\u2019s vehicle. There was a delivery van in front of plaintiffs vehicle and another automobile in front of the delivery van.\nAt the intersection of Broadway and Eastmoreland, the vehicles stopped at a traffic light. When the traffic signal turned green, the vehicles proceeded through the intersection. The car in front of the van slowed down to make a left turn. According to defendant, a short time later, the delivery van \u201cdipped like he slammed on his brakes.\u201d Defendant then observed plaintiff apply her brakes. Defendant slammed on her brakes but was unable to avoid a collision with plaintiffs vehicle. Defendant described the collision as a \u201cbump\u201d and estimated that her speed just prior to the collision was between 5 and 10 miles per hour. Defendant testified that her air bag did not deploy and that, although she did not observe any damage to either her vehicle or plaintiffs vehicle, there was a \u201cpaint transfer\u201d between the two automobiles. Following the collision, defendant exited her vehicle and asked plaintiff if she was okay. Plaintiff responded that her back hurt. Defendant called 9-1-1, and plaintiff was transported to a hospital by ambulance.\nPlaintiff testified that as a result of the impact, a purse, cellular telephone, and bagged lunch that were on the passenger seat of her car were thrown to the floor. In addition, plaintiff stated that at the moment of impact, her body \u201cwent suddenly forward and came back against the seat,\u201d her neck \u201csnap[ped] back,\u201d and her stomach hit the steering wheel, causing a bruise. After the accident, plaintiff experienced neck discomfort and a burning sensation between her shoulder blades. At the emergency room, plaintiff underwent X rays of the cervical area.\nPlaintiff recalled that between 1993 and 1996, she suffered from stiffness of the neck due to a fall. In July 1996, plaintiff awoke with an extremely stiff neck. Plaintiff\u2019s physician, Lydia Savic, recommended heat and muscle relaxers to alleviate the stiffness. These treatments did not resolve the discomfort, and Dr. Savic referred plaintiff to Dr. Buckingham. Between July 1996 and December 1996, Dr. Buckingham treated plaintiff with heat, muscle relaxers, and epidurals. Eventually, Dr. Buckingham recommended surgery, which plaintiff underwent on December 27, 1996. The surgery resolved her neck problem, and in February 1997, Dr. Buckingham released plaintiff to Dr. Savic\u2019s care.\nTwo days after the accident, plaintiff visited Dr. Savic\u2019s office and was referred for an MRI and prescribed pain medication. Eventually, Dr. Savic referred plaintiff to Dr. Manno, with whom she began treatment on or about November 23, 1998. Despite undergoing physical therapy and traction, plaintiff continued to experience pain and was taking Vicodin. In February 1999, plaintiff underwent a surgical procedure performed by Dr. Manno. Plaintiff recalled that since the surgery, the right side of her neck had improved greatly, but the left side of her neck had not. Subsequently, plaintiff returned to the care of Dr. Savic.\nPlaintiff testified that she was given an off-work slip and that she did not work from the date of the accident until April 7, 2000, due to the pain she was experiencing. Prior to the accident, plaintiff worked at Rockford Clinic. When she returned to work in April 2000, however, plaintiff managed a sandwich shop. She eventually returned to the medical field in October 2001, and, at the time of trial, worked as a certified medical assistant in the field of obstetrics and gynecology. Plaintiff testified that she is no longer able to perform certain duties due to neck pain. Plaintiff calculated the amount of wages she lost during the time she was out of work as $25,704.68.\nPlaintiff testified that despite the surgery, she has trouble turning her head to the left. In addition, plaintiff testified that she can no longer crochet, do ceramics, play video games, or carry her laundry or groceries. She also stated that she is limited in the time she can spend doing certain activities, such as typing, vacuuming, cleaning the bathroom, mopping floors, and changing sheets. Moreover, she does not sleep well at night. Plaintiff testified that her vehicle sustained damage to the bumper. Admitted into evidence was the repair bill, totaling $939.28.\nFollowing deliberations, the jury returned a verdict in plaintiff s favor. The jury awarded damages in the amount of $190,939.28. The jury itemized the damages as follows:\nAggravation of a Preexisting Condition $ 75,000.00\nDisfigurement $ 500.00\nFuture Pain and Suffering $ 45,313.19\nMedical Care and Treatment $ 43,482.23\nLost Earnings $ 25,704.58\nCar Repair $ 939.28\nTOTAL $190,939.28.\nDefendant filed a posttrial motion seeking judgment notwithstanding the verdict, a new trial, or a remittitur. The trial court denied defendant\u2019s motion, and this appeal ensued.\nII. ANALYSIS\nAs a preliminary matter, we point out that defendant\u2019s brief violates Supreme Court Rule 341(e)(7) (210 Ill. 2d R. 341(e)(7)). Specifically, Rule 341(e)(7) requires the appellant\u2019s brief to include \u201c[ajrgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.\u201d (Emphasis added.) The majority of the argument section of defendant\u2019s opening brief does not cite to the pages of the record relied on. We elect not to strike defendant\u2019s brief, because the statement of facts contains sufficient references to the record on appeal. Nevertheless, we remind counsel that our supreme court rules are not mere technicalities or suggestions. Tires \u2019N Tracks, Inc. v. Dominic Fiordirosa Construction Co., 331 Ill. App. 3d 87, 95 (2002). We admonish counsel to adhere to the rules in the future.\nA. Jury Verdict\nThe material in this section is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).\nB. New Trial or Remittitur\nDefendant requests a new trial or a remittitur. In support of this claim, defendant argues that (1) the trial court erred in issuing instructions to the jury that allowed it to award \u201cduplicative or overlapping damages\u201d; (2) the evidence was insufficient to substantiate any claim for the aggravation of a preexisting condition; (3) the evidence was insufficient to substantiate any claim for loss of wages; (4) the evidence was insufficient to substantiate any claim for future pain and suffering; (5) the trial court erred in permitting the jury to consult a mortality table in fixing damages; and (6) the evidence was insufficient to substantiate a claim for medical care and treatment. We find the first issue dispositive.\n1. Duplicative or Overlapping Damages\nDefendant alleges that the trial court committed reversible error when, over defendant\u2019s objection, it granted plaintiffs request to include, as a separate element of damages, the aggravation of a preexisting condition. According to defendant, this resulted in duplicative or overlapping damages. We agree and hold that while a jury may consider the aggravation of a preexisting condition in reaching its verdict, the aggravation of a preexisting condition is not a separate element of damages. Accordingly, it is improper for the trial court to instruct the jury to separately award for the aggravation of a preexisting condition and to provide the jury an itemized verdict form listing the aggravation of a preexisting condition as a separate element of damages. Thus, we remand this cause for a new trial on damages.\nOur analysis begins with an examination of the instructions tendered to the jury in the present case. At the jury-instruction conference, plaintiff tendered Illinois Pattern Jury Instructions, Civil, No. 30.01 (2000) (hereinafter IPI Civil (2000) No. 30.01). IPI Civil (2000) No. 30.01 provides:\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 damages proved by the evidence to have resulted from the [negligence] [wrongful conduct] [of the defendant], [taking into consideration the nature, extent and duration of the injury].\n[Here insert the elements of damages which have a basis in the evidence.]\nWhether any of these elements of damages has been proved by the evidence is for you to determine.\u201d IPI Civil (2000) No. 30.01.\nPlaintiff sought to have the jury consider damages for the aggravation of her preexisting condition (IPI Civil (2000) No. 30.03), disfigurement (IPI Civil (2000) No. 30.04), loss of a normal life (IPI Civil (2000) No. 30.04.01), pain and suffering (IPI Civil (2000) No. 30.05), medical care (see IPI Civil (2000) No. 30.06), and lost earnings (IPI Civil (2000) No. 30.07). Thus, the instruction tendered to the jury read:\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 [sic] for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant, taking into consideration the nature, extent and duration of the injury.\nThe aggravation of any pre-existing ailment or condition.\nThe disfigurement resulting from the injury.\nLoss of a normal life experienced and reasonably certain to be experienced in the future.\nThe pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.\nThe reasonable expense of necessary medical care, treatment, and services received.\nThe value of earnings lost.\nWhether any element of these damages has been proved by the evidence is for you to determine.\u201d\nWhen IPI Civil (2000) No. 30.03 is given, the Notes on Use for that instruction direct that IPI Civil (2000) No. 30.21 also be given. Accordingly, over defendant\u2019s objection, the court tendered to the jury IPI Civil (2000) No. 30.21, which reads:\n\u201cIf you decide for the plaintiff on the question of liability, you may not deny or limit the plaintiffs right to damages resulting from this occurrence because any injury resulted from an aggravation of a pre-existing condition.\u201d\nIn conjunction with these instructions, the following verdict form was tendered to the jury over defendant\u2019s objection:\n\u201cWe, the jury, find for Plaintiff, Connie Hess, and against Defendant, Michelle Espy. We assess the damages in the sum of $_, itemized as follows:\nThe aggravation of any pre-existing ailment or condition...................................$_\nThe disfigurement resulting from the injury..........$_\nLoss of a normal life experienced and reasonably certain to be experienced in the future..............$_\nThe pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries...................................$_\nThe reasonable expense of necessary medical care, treatment, and services received...................$_\nThe value of earnings lost.........................$_.\u201d\nThe verdict form was based on IPI Civil (2000) No. B45.01.A. The jury awarded plaintiff damages in the amount of $190,939.28, $75,000 of which was for the aggravation of a preexisting ailment or condition.\nAll of the instructions at issue here, as well as the itemized verdict form used in this case, were authorized by Illinois Pattern Jury Instructions. Supreme Court Rule 239(a) directs the trial court to use IPI instructions when applicable:\n\u201c(a) Use of IPI Instruction; Requirements of Other Instructions. Whenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law.\u201d 177 Ill. 2d R. 239(a).\nHowever, our supreme court has observed that IPI instructions are not exempt from challenge. Powers v. Illinois Central Gulf R.R. Co., 91 Ill. 2d 375, 385 (1982). Indeed, in Powers, the supreme court pointed out that the IPI instructions do not receive advance approval from the court and that the instructions are approved or rejected only once they are questioned and considered by the judiciary. Powers, 91 Ill. 2d at 385. Whether IPI Civil (2000) No. 30.03 accurately states the law is subject to de novo review. Luye v. Schopper, 348 Ill. App. 3d 767 (2004).\nIn Powers, the defendant argued that the trial court erred in tendering to the jury an instruction and itemized verdict form that directed the jury to award as a separate element of damages the \u201cnature, extent and duration of the injury.\u201d Powers, 91 Ill. 2d at 377-78. The defendant contended that \u201cthe nature, extent and duration of the injury\u201d was not compensable as an element of damages separate and apart from the other elements of damages in the instructions (e.g., disability, pain and suffering) and that instructing the jury as such led to a duplicative recovery for the plaintiff. Powers, 91 Ill. 2d at 378. The supreme court agreed. Powers, 91 Ill. 2d at 384.\nThe instruction tendered to the jury in Powers was based on the Illinois Pattern Jury Instructions. The Powers court noted, however, that the cases cited in the IPI instructions for the notion that \u201cthe nature, extent and duration of the injury\u201d is a separate element of damages did not support that proposition. Powers, 91 Ill. 2d at 381. The court then held that a jury\u2019s award for both \u201cthe nature, extent and duration of the injury\u201d and elements such as disability and pain and suffering results in a double recovery because the latter elements necessarily involve an examination and assessment of the nature, extent, and duration of damages. Powers, 91 Ill. 2d at 382. In other words, while the jury may consider the nature, extent, and duration of an injury, the trial court may not instruct the jury that the nature, extent, and duration of an injury is a separate element of damages. Powers, 91 Ill. 2d at 383-84.\nThe court in Smith v. City of Evanston, 260 Ill. App. 3d 925 (1994), the principal case cited by defendant, found the reasoning in Powers persuasive in assessing whether an award for both the aggravation of a preexisting condition and the other elements of damages constituted a double recovery. In Smith, the plaintiff injured her back in an automobile accident. The plaintiff had a history of back problems prior to the accident. The jury was provided an itemized verdict form and it awarded the plaintiff damages for medical care, lost wages, past pain and suffering, and the aggravation of a preexisting condition. On appeal, the Smith court concluded that the aggravation of a preexisting condition is not a separate element of damages because it overlaps with awards for other elements of damages. Smith, 260 Ill. App. 3d at 935-36. In reaching this decision, the court first examined the history of itemized verdicts in Illinois and the use of IPI instructions on damages. The court noted that itemized verdicts in personal injury cases were not mandated by Illinois law until 1976. Since then, courts have Used the IPI instructions to determine which separate categories of damages to include on the itemized verdict form. However, the court pointed out that most of the IPI instructions were based on law that predates the use of itemized verdicts and that the instructions have not been revised to take itemization into consideration. Smith, 260 Ill. App. 3d at 933. More importantly, the court pointed out that, when approved, the IPI instructions were intended \u201conly to inform jurors of considerations that should affect the determination of what single sum would fully and fairly compensate a plaintiff for losses.\u201d (Emphasis added.) Smith, 260 Ill. App. 3d at 934.\nThe Smith court then looked to the Powers decision, holding:\n\u201cJust as the court in Powers could find no measure for the nature of the injury as a separate element of damages, we find no measure for the value of aggravation of a preexisting condition that is separate from the other elements of damages. A jury appraising the monetary value of aggravation of the condition needs to look to the increase in medical costs, the earnings lost which would not have been lost by reason of the preexisting condition alone, the increase in pain and suffering, and the worsening of disabilities and disfigurement. *** An award for aggravation of a preexisting condition overlaps with awards for all of the other elements of damages, so inclusion of aggravation of conditions as a separate element leads to the same possibility of overcompensation that led the court in Powers to rule against the use of nature of the injury as a separate element of damages, despite the approval of that as a separate category of damages in the IPI instructions then in effect. *** We hold that under the reasoning of Powers, aggravation of a preexisting condition is not a separate element of damages. It is, like the nature, extent and duration of the injury, a matter to take into account when assessing the proper, separable elements of damages.\u201d Smith, 260 Ill. App. 3d at 935-36.\nSimply stated, the Smith court held that the aggravation of a preexisting condition is not a separate element of damages, because it duplicates or overlaps recovery for other elements of damages. Smith, 260 Ill. App. 3d at 936. The Fourth District adopted Smith in Boehm v. Ramey, 329 Ill. App. 3d 357, 365 (2002), holding that an award of damages for the aggravation of a preexisting condition overlaps with an award obtained for all of the other elements of damages. See also Tedeschi v. Burlington Northern R.R. Co., 282 Ill. App. 3d 445, 449-50 (1996) (holding that jury\u2019s award of damages for aggravation of a preexisting condition but not for any other category of damages recognized the possibility of duplicate recovery).\nMore recently, the First District reaffirmed its holding in Smith that the aggravation of a preexisting condition is not a separate element of damages. In Luye, 348 Ill. App. 3d 767, the plaintiff was injured while exiting a taxicab. The jury was instructed that the aggravation of a preexisting condition was a separate element of damages, and the itemized verdict form listed the aggravation of a preexisting condition as a separate element of damages. Ultimately, the jury returned a verdict in the plaintiffs favor, awarding the plaintiff damages in the amount of $247,580.45, $112,000 of which was for the aggravation of a preexisting condition. On appeal, the defendant challenged the propriety of the instruction and the verdict form listing the aggravation of a preexisting condition as a separate element of damages.\nTaking a cue from Powers, the Luye court examined the two cases cited in the comment to the IPI instructions for the proposition that the aggravation of a preexisting condition is a separate element of damages. See IPI Civil (2000) No. 30.03; Wheeler v. Roselawn Memory Gardens, 188 Ill. App. 3d 193 (1989); Behles v. Chicago Transit Authority, 346 Ill. App. 220, 231 (1952). The court noted that while the juries in both Wheeler and Behles were allowed to consider the aggravation of a preexisting condition when determining damages, neither case explicitly held that the aggravation of a preexisting condition is a separate element of damages. Luye, 348 Ill. App. 3d at 776. Indeed, our independent review of Wheeler and Behles indicates that the panels in those cases were not even asked to address the issue of the propriety of the aggravation of a preexisting condition as a separate element of damages. See Wheeler, 188 Ill. App. 3d at 203-04 (addressing whether instruction, directing jury that the plaintiffs right to recover damages is not limited or barred because any injury resulted from the aggravation of a preexisting condition, must accompany Illinois Pattern Jury Instructions, Civil, No. 30.03 (2d ed. 1971); Behles, 346 Ill. App. at 231-32 (noting that the defendant\u2019s objection to instruction was based on failure to request special damages and that there was no evidence that the accident aggravated a preexisting condition).\nIn support of the proposition that the aggravation of a preexisting condition constitutes a separate element of damages, plaintiff relies on Kravcik v. Golub & Co., 286 Ill. App. 3d 406 (1996). The Kravcik court rejected Smith, stating that Smith \u201cdeviated from the plethora of cases holding that the aggravation of a preexisting condition is a separate element of compensable damages\u201d and \u201cignored prior well-reasoned case law and the established pattern jury instructions.\u201d Kravcik, 286 Ill. App. 3d at 412-13.\nThe \u201cplethora\u201d of cases referred to in Kravcik consists of Balestri v. Terminal Freight Cooperative Ass\u2019n, 76 Ill. 2d 451 (1979), Ficken v. Alton & Southern R.R. Co., 255 Ill. App. 3d 1047 (1993), Wheeler, 188 Ill. App. 3d 193, and Behles, 346 Ill. App. 220. However, as the Luye court pointed out, neither Wheeler nor Behles holds that the aggravation of a preexisting condition is a separate compensable element of damages. Likewise, the Balestri court did not address whether the aggravation of a preexisting condition is a separate compensable element of damages. Further, while Ficken does state that the aggravation of a preexisting ailment or condition is a separate element of compensable damages (Ficken, 255 Ill. App. 3d at 1056), Ficken predated the Smith case and relied on Behles for this proposition. Because of the dubious nature of the authorities cited by Kravcik, we disagree with the notion that Smith ignores well-reasoned case law. To the contrary, the Smith decision relies principally on Powers, a well-reasoned decision from our supreme court. Moreover, while we do not dispute that a holding that the aggravation of a preexisting condition does not constitute a separate compensable element of damages disregards the IPI instructions, the rationale for such a holding is simple: the authority for the proposition is not supported by the case law set forth in the comments to the IPI instructions.\nCuriously, while the Kravcik court approved of instructing the jury that the aggravation of a preexisting condition is a separate element of damages, it rejected the proposition that the jury should be provided with an itemized verdict form listing the aggravation of a preexisting condition as a separate element of damages. Kravcik, 286 Ill. App. 3d at 414 (\u201cIn light of the foregoing, we reverse the trial court\u2019s decision, finding that the court abused its discretion when it failed to properly instruct the jury as to IPI Civil 3d No. 30.03, but we affirm the trial court\u2019s rejection of the instruction regarding the itemization for the aggravation of any preexisting ailment or condition as a separate item of damages in the verdict form\u201d). Thus, Kravcik is not entirely at odds with the Smith line of cases.\nAfter considering the cases cited above, we find the reasoning in Smith and its progeny more persuasive than Kravcik. We hold that allowing the jury to separately compensate a party for the aggravation of a preexisting condition overlaps with awards for the other elements of damages. As the Smith court stated, \u201c[a] jury appraising the monetary value of aggravation of the condition needs to look to the increase in medical costs, the earnings lost which would not have been lost by reason of the preexisting condition alone, the increase in pain and suffering, and the worsening of disabilities and disfigurement.\u201d Smith, 260 Ill. App. 3d at 935. In other words, although the jury may consider the aggravation of a preexisting condition when assessing other elements of damages, it is improper for the trial court to instruct the jury to separately award for the aggravation of a preexisting condition and to provide the jury an itemized verdict form listing the aggravation of a preexisting condition as a separate element of damages. Because the jury in this case was instructed that the aggravation of a preexisting condition is a separate element of damages and because the jury compensated plaintiff separately for the aggravation of a preexisting condition, we grant defendant\u2019s request for a new trial on damages.\n2. Remaining Issues\nBefore concluding, we briefly note defendant\u2019s assertion that there was insufficient evidence to substantiate any claim for damages for the aggravation of a preexisting condition, lost wages, future pain and suffering, and medical care and treatment. Because we are remanding the cause for a new trial on damages, these issues are rendered moot. See Boehm, 329 Ill. App. 3d at 367 (refusing to address propriety of damages where court ordered new trial on damages). However, we do address one issue that may arise on remand. According to defendant, a mortality table instruction is proper only where there is evidence of a permanent injury. See Simon v. Van Steenlandt, 278 Ill. App. 3d 1017, 1020 (1996). Plaintiff does not dispute this proposition. Accordingly, on remand, a mortality table instruction shall be tendered to the jury only if there is evidence of a permanent injury.\nIII. CONCLUSION\nFor the aforementioned reasons, we affirm the judgment of the circuit court of Winnebago County on the issue of liability, we vacate the jury\u2019s award of damages, and we remand the cause for a new trial on damages only.\nAffirmed in part and vacated in part; cause remanded.\nO\u2019MALLEY, EJ., and BOWMAN, J., concur.\nThe Ficken court also cites to Grimming v. Alton & Southern R.R. Co., 204 Ill. App. 3d 961, 983 (1990), for the proposition that the aggravation of a preexisting condition is a separate element of damages. However, like Behles, the Grimming court does not hold such.", "type": "majority", "author": "JUSTICE GEOMETER" } ], "attorneys": [ "Gary R. Kardell and Lori L. Hoadley, both of Hinshaw & Culbertson, of Rockford, for appellant.", "James D. Sparkman, of Pete Sullivan & Associates, PC., of Rockford, for appellee." ], "corrections": "", "head_matter": "CONNIE HESS, Plaintiff-Appellee, v. MICHELLE ESPY, Defendant-Appellant.\nSecond District\nNo. 2\u201403\u20140464\nOpinion filed July 2, 2004.\nGary R. Kardell and Lori L. Hoadley, both of Hinshaw & Culbertson, of Rockford, for appellant.\nJames D. Sparkman, of Pete Sullivan & Associates, PC., of Rockford, for appellee." }, "file_name": "0490-01", "first_page_order": 508, "last_page_order": 519 }