Brown v. Baker ( 1996 )


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  •                              NO.  5-95-0578

      

                                     IN THE

      

                           APPELLATE COURT OF ILLINOIS

      

                                 FIFTH DISTRICT

    _________________________________________________________________

      

    CHRIS BROWN,                   )  Appeal from the

                                  )  Circuit Court of

        Plaintiff-Appellant,      )  Williamson County.

                                  )

    v.                             )  No. 94-L-87  

                                  )

    TIMOTHY BAKER,                 )  Honorable

                                  )  William H. Wilson,

        Defendant-Appellee.       )  Judge, presiding.

    _________________________________________________________________

      

        JUSTICE MAAG delivered the opinion of the court:

      

        Plaintiff obtained a jury verdict and judgment against

    defendant.  Plaintiff filed a posttrial motion seeking a new trial

    on damages only.  The motion was denied and plaintiff appealed.

        The facts are as follows.  Plaintiff, Chris Brown, filed a

    complaint against defendant, Timothy Baker, alleging that defendant

    negligently collided with plaintiff's automobile, causing property

    damage and personal injury.  

        Defendant filed a written admission of liability on the

    morning of trial.

        For his damages, plaintiff claimed injuries to the person,

    pain and suffering, and medical expenses.  Plaintiff alleged that

    he experienced pain in his neck and lower back.  The treating

    physician testified that plaintiff had a herniated disc in his

    lower back.

        Prior to trial, plaintiff's physician was deposed.  Defense

    counsel asked on cross-examination whether the physician had

    treated plaintiff for a previous back problem prior to the

    accident.  The physician replied affirmatively over plaintiff

    counsel's objection.

        Before trial, defendant filed a motion in limine seeking to

    prevent plaintiff from limiting defendant's inquiry into the prior

    back injury.  The court granted that portion of defendant's motion

    over plaintiff's objections.  Consequently, defendant was able to

    inquire as to plaintiff's previous back injury.  However, the

    record fails to indicate that defense counsel ever elicited

    testimony to suggest that plaintiff's current ailments were

    causally related to plaintiff's prior back problem.

        Among the instructions tendered by the plaintiff was an

    instruction requesting damages for "physical injury to the body

    (not otherwise included in the elements of loss of a normal life or

    pain and suffering)."  The court refused the instruction.  

        The jury awarded plaintiff $4,912.50.  Plaintiff now appeals.

        On appeal, plaintiff contends:

        (1)  The trial judge erred in allowing evidence of

             plaintiff's prior back injury;

        (2)  The trial judge erred in failing to give

             plaintiff's instruction on physical injury to

             the body (not otherwise included in the ele-

             ments of loss of a normal life or pain and

             suffering); and

        (3)  The trial judge abused his discretion in

             failing to order a new trial in light of the

             jury's award of $4,912.50, which was palpably

             inadequate and the result of passion and

             prejudice by the jury against plaintiff.

        Plaintiff first argues that the trial judge erred in allowing

    the defendant to introduce evidence of plaintiff's prior back

    injury.  The evidence, plaintiff asserts, should not have been

    admitted because defendant did not show a causal connection between

    the past and present back injuries.  We agree.

        It is well settled in Illinois that a plaintiff in a negli-

    gence action bears the burden of proving duty, breach of duty, and

    proximate cause of the injury.  Taake v. WHGK, Inc., 228 Ill. App.

    3d 692, 711, 592 N.E.2d 1159 (1992).

        Generally, a plaintiff in a personal injury case must present

    the testimony of a medical expert to establish causation if the

    relationship between the claimed injury and the event in question

    requires special knowledge and training to establish.  For example,

    if a plaintiff suffers a cut in an accident, the jury can readily

    determine without expert testimony that the accident caused the

    cut.  But, if the nature of plaintiff's injury is complex or if the

    condition could be the result of some event or condition other than

    the accident in question, then expert testimony may be needed to

    establish the particular event that caused the pain and the

    underlying medical condition.  This proof of causation is usually

    accomplished by presenting testimony from a physician on the

    causation issue.  Plooy v. Paryani, 275 Ill. App. 3d 1074, 657

    N.E.2d 12 (1995).

        We recognize that, historically, when determining whether a

    defendant must show causation regarding a preexisting condition,

    Illinois courts have focused merely on whether the prior and

    present injuries were to the same part of the body.  We find this

    analysis to be in need of refining.

        We are compelled to first consider the reasoning behind the

    longstanding "same part of the body" rule.  Generally, a defendant

    in a personal injury case may cross-examine a plaintiff regarding

    any previous injuries if they are relevant and similar to those at

    issue.  Leahy v. Illinois Power Co., 103 Ill. App. 3d 487, 431

    N.E.2d 390 (1981).  The rationale for allowing such evidence is to

    allow a defendant to show that plaintiff's present ailments

    resulted from a previous accident or injury and not from the events

    which gave rise to the current litigation.  Saputo v. Fatla, 25

    Ill. App. 3d, 775, 324 N.E.2d 34 (1975).  As long as the past and

    present injuries affected the same part of the body, evidence of

    the prior injury has been admissible without a further showing that

    it is causally related to the current injury.

        This rule leaves room for curious results.  For instance, a

    childhood knee injury (falling and bruising a knee) could arguably

    be admissible in the case of a later alleged knee injury, without

    any further showing of relevance or causation, even if the prior

    injury had completely healed and been symptom free for decades.  In

    fact, when asked at argument about such a scenario, defense counsel

    adopted this very position.  Such a rule defies common sense.

    Obviously, evidence of the old injury is presented to imply to the

    jury that the old injury, and not the occurrence presently at

    issue, is responsible for the plaintiff's current complaints.

    Without the benefit of testimony regarding causation in these

    instances, jury members are invited to speculate on a nexus between

    the past accident and the present injury.  Such unfounded conjec-

    ture and guesswork constitutes a violation of the very cautionary

    instructions given to every Illinois juror in civil cases.

    Illinois Pattern Jury Instructions, Civil, No. 1.01[3] (3d ed.

    1995).

        If a prior injury has long since healed and has shown no

    recurring symptoms, a defendant should not be permitted to

    introduce evidence of the prior injury without establishing

    causation.

        So that our decision is clear, we are not changing the

    evidentiary rules that regulate the admission of evidence to prove

    causation.  We simply hold that the same standard applicable to the

    plaintiff on the issue of causation should also apply to the

    defendant.  If a plaintiff would be required to present expert

    testimony on causation, the defendant should also be required to do

    the same.  Thus, even if the plaintiff injured the same part of his

    body which he had injured previously, if defendant wishes to claim

    that the present problem is related to the prior injury, the same

    standard applicable to a plaintiff proving causation should be

    applied to defendant's attempt to prove causation.  Accordingly,

    the court erred in admitting evidence that plaintiff had suffered

    a prior back injury solely on the basis that it involved the same

    part of the body.

        Although defendant urges us to base our ruling on Wilson v.

    Granite City Steel Division of National Steel Corp., 226 Ill. App.

    3d 96, 589 N.E.2d 660 (1992), that case is distinguishable.  In

    Wilson, we found that evidence of plaintiff's prior knee injury was

    properly admissible without an independent showing of causation.

    Wilson, 226 Ill. App. 3d at 112, 589 N.E.2d at 670.  In Wilson, the

    plaintiff had previously injured his knee and filed a claim for

    that injury.  There was evidence that the symptoms from the prior

    injury were similar, and most importantly, in the previous injury

    case the plaintiff's doctor testified that plaintiff's symptoms

    were permanent.  Wilson, 226 Ill. App. 3d at 108, 589 N.E.2d at

    668.  Because the symptoms were both similar and permanent, the

    defendant in Wilson was not compelled to show causation in order to

    admit evidence of the prior injury.  We find no fault with such

    reasoning.

        In the instant case, by contrast, there was no evidence of

    permanent injury due to plaintiff's prior back injury.  Thus, it

    was incumbent upon the defense in this case to make an independent

    showing of causation for evidence of the prior back injury to be

    admissible.  We must, therefore, reverse and remand for a new trial

    on damages.

        We find no merit in defendant's contention that plaintiff

    waived his objection to the admission of the prior-injury evidence.

    Defendant notes that plaintiff did not contemporaneously object to

    the evidence at trial, and therefore, defendant asserts that

    plaintiff waived the issue.

        The law in Illinois clearly provides that a denial of a motion

    in limine does not preserve an objection to disputed evidence later

    introduced at trial.  When a motion in limine is denied, a

    contemporaneous objection to the evidence at the time it is offered

    is required to preserve the issue for review.  Illinois State Toll

    Highway Authority v. Heritage Standard Bank & Trust Co., 163 Ill.

    2d 498, 645 N.E.2d 896 (1994); Cunningham v. Millers General

    Insurance Co., 227 Ill. App. 3d 201, 591 N.E.2d 80 (1992).  

        Here, however, defendant's motion in limine was not denied;

    rather, it was granted before trial.  Thus, plaintiff was in effect

    ordered not to object to the disputed evidence.  The issue is

    therefore not waived.

        Defendant's further contention that plaintiff improperly

    introduced evidence of the prior injury himself is likewise

    unfounded.  The court had ruled that the evidence was admissible.

    Plaintiff was entitled to address the evidence.  See People v.

    Spates, 77 Ill. 2d 193, 199-200, 395 N.E.2d 563, 566 (1979); People

    v. Norwood, 164 Ill. App. 3d 699, 703 n.l, 518 N.E.2d 46, 249 n.l

    (1987); M. Graham, Cleary & Graham's Handbook of Illinois Evidence

    §103.4, at 13-14 (6th ed. 1994).

        Plaintiff also argues that the court erred in denying

    plaintiff's tendered jury instruction regarding damages.  The

    damaged disc, plaintiff contends, constitutes physical damage to

    his body that is not covered by other elements of damages.

    Plaintiff maintains that the disc does not cause pain or disabili-

    ty, nor does it upset his living a normal life.  Consequently,

    plaintiff asserts, the jury had no method of awarding damages for

    this actual physical damage or "reduction of integrity" in his

    damaged disc.  We find plaintiff's argument to be without merit.

        Plaintiff offers no case law to support his contention.  Under

    Supreme Court Rule 341(e)(7), an appellant's brief must include

    citations to authority supporting his argument.  134 Ill. 2d R.

    341(e)(7).

        Although plaintiff here speaks at length of Powers v. Illinois

    Central Gulf R.R. Co., 91 Ill. 2d 375, 438 N.E.2d 152 (1982), aff'g

    in part & rev'g in part 92 Ill. App. 3d 264, 416 N.E.2d 1161

    (1981), he fails to cite any authority specifically supporting his

    argument for "reduction of integrity" damages.  Thus, we find that

    plaintiff's contention must fail.  We find no error in the court's

    refusal of the tendered instruction.

        Because of our disposition of the first issue, we need not

    address the claim that the damage award was inadequate.

        For the foregoing reasons, the judgment of the circuit court

    is affirmed in part and reversed in part, and the cause is remanded

    for a new trial on damages only.

      

        Affirmed in part and reversed in part; cause remanded with

    directions.

      

        CHAPMAN and WELCH, JJ., concur.

                                         NO. 5-95-0578

                                        IN THE

                             APPELLATE COURT OF ILLINOIS

                                    FIFTH DISTRICT

    ___________________________________________________________________________

    CHRIS BROWN,                  )  Appeal from the

                                 )  Circuit Court of

        Plaintiff-Appellant,     )  Williamson County.

                                 )

    v.                            )  No. 94-L-87  

                                 )

    TIMOTHY BAKER,                )  Honorable

                                 )  William H. Wilson,

        Defendant-Appellee.      )  Judge, presiding.

    ___________________________________________________________________________

      

    Opinion Filed:                  October 30, 1996

    ___________________________________________________________________________

      

    Justices:      Honorable Gordon E. Maag, J.

                            

                  Honorable Charles W. Chapman, J., and

                  Honorable Thomas M. Welch, J.,

                  Concur

    ___________________________________________________________________________

                            

    Attorneys      Harris, Lambert, Howerton & Dorris, 300 West Main Street,

    for            P.O. Box 1005, Marion, IL 62959

    Appellant      

    ___________________________________________________________________________

      

    Attorneys      Joseph A. Bleyer, Bleyer and Bleyer, 601 West Jackson

    for            Street, P.O. Box 487, Marion, IL 62959-0487

    Appellee       

    ___________________________________________________________________________