VITO BALESTRI, Appellee, v. TERMINAL FREIGHT COOPERATIVE ASSOCIATION et al. (Highway & City Transportation, Inc., Appellant)
No. 50581
Supreme Court of Illinois
June 1, 1979
Rehearing denied September 28, 1979
76 Ill. 2d 451 | 394 N.E.2d 391
Appellate court reversed; judgment here for plaintiffs.
(No. 50581.—
VITO BALESTRI, Appellee, v. TERMINAL FREIGHT COOPERATIVE ASSOCIATION et al. (Highway & City Transportation, Inc., Appellant).
Opinion filed June 1, 1979.—Rehearing denied September 28, 1979.
Neil K. Quinn, of Pretzel, Stouffer, Nolan & Rooney, Chartered, of Chicago (Joseph B. Lederleitner and Robert Marc Chemers, of counsel), for appellant.
John A. Doyle, Ltd., of Chicago (William J. Harte, of counsel), for appellee.
MR. CHIEF JUSTICE GOLDENHERSH delivered the opinion of the court:
Plaintiff, Vito Balestri, appealed from the judgment of the circuit court of Cook County entered in his favor on a jury verdict in the amount of $50,000, and against Highway & City Transportation, Inc. (hereafter defendant). The appellate court reversed and remanded for a new trial on the issue of damages only (57 Ill. App. 3d 669), and we allowed defendant‘s petition for leave to appeal.
Plaintiff, while employed as a city pickup and delivery driver, was directed to the premises of Terminal Freight Handling Company for the purpose of picking up cartoned refrigerators. Bernard Boos, defendant‘s employee, was assigned to assist plaintiff in loading the refrigerators onto plaintiff‘s truck. Plaintiff was injured when a two-by-four fell from one of the cartons and struck him on the elbow. During the occurrence the weight of the refrigerator shifted, resulting in plaintiff‘s body being severely twisted.
In reversing the judgment and remanding for a new trial on the issue of damages only, the appellate court held that the circuit court had erred in refusing to give the following instruction:
“If you find that the defendant was negligent and that its negligence 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 to be limited in any way by the fact, if you find it to be a fact, that the plaintiff‘s injury 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.”
This instruction, which is not contained in Illinois Pattern Jury Instructions, Civil (2d ed. 1971) (IPI Civil), is based upon the opinion in Pozzie v. Mike Smith, Inc. (1975), 33 Ill. App. 3d 343. In Pozzie, in holding that the refusal of instructions tendered by the plaintiff was error, the appellate court said:
“Plaintiff tendered four jury instructions regarding the aggravation of a preexisting condition. The only instruction given to the jury was
IPI—Civil 2d 30.03, a general instruction advising the jury to compensate plaintiff for among other things ‘the aggravation of any pre-existing condition.’ The other three instructions which were refused sought to further clarify the law. Plaintiff‘s Instruction 14 informed the jury that plaintiff‘s right to recover damages for his injuries and disabilities is not limited by the fact that plaintiff‘s injuries and disabilities resulted from the aggravation of a preexisting condition. Instruction 15 advised the jury that damages should not be reduced because the injuries and resulting disability were due in part to a preexisting condition of plaintiff. Instruction 16 stated that it is not a defense to this action that plaintiff, because of a preexisting physical condition, was more susceptible to injury than other persons might have been. These three instructions are not in IPI. However, IPI instructions are not intended to be all inclusive. We believe that Plaintiff‘s Instructions 14, 15 and 16 are each a correct statement of the law, and that the failure of the trial court to give at least one of them, with or without modification, left the jury without proper judicial guidance. In this case the singular submission of IPI—Civil 2d 30.03 inadequately advised the jury of its duty under the law.” 33 Ill. App. 3d 343, 347.
Supreme Court Rule 239
“1. The nature, extent and duration of the injury.” (IPI Civil No. 30.02.)
“2. The aggravation of any pre-existing ailment or condition.” (IPI Civil No. 30.03.)
“3. The disability resulting from the injury.” (IPI Civil No. 30.04.)
It was the defendants’ theory that because of a preexisting back condition plaintiff had suffered several periods of disability prior to the date of the injury in question.
Plaintiff‘s testimony showed that he had suffered injuries on three prior occasions, that approximately two years before the injury a work-related injury resulted in his being off work for approximately four months; that approximately a year later another work-related injury to his left elbow and back resulted in his being absent from work for approximately six months; and that several months prior to the occurrence in question he had suffered injuries in an automobile accident which resulted in his being off work for two months. The medical testimony would support the conclusion that there may have been aggravation to the L-5 S-1 area of plaintiff‘s back, and the testimony shows a preexisting condition known as spondylolisthesis.
It is well settled that a tortfeasor is liable for the injuries he causes, even though the injuries consist of the aggravation of a preexisting condition. (Chicago City Ry. Co. v. Saxby (1904), 213 Ill. 274.) We are of the opinion that the instruction given did not adequately instruct the jury on this issue. The third element of damages (IPI Civil No. 30.04) makes no reference to the injuries resulting
A new trial on the question of damages only is appropriately granted “where (1) the jury‘s verdict on the question of liability is amply supported by the evidence; (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict, nor that, in some other identifiable manner, the error which resulted in the jury‘s awarding inadequate damages also affected its verdict on the question of liability.” (Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 224.) The record shows the requisite elements, and the judgment of the appellate court is affirmed.
Judgment affirmed.
MR. JUSTICE UNDERWOOD, dissenting:
In 1954 the Illinois Judicial Conference conducted a study which disclosed that during the preceding 25-year period 38% of the reversals by the reviewing courts of Illinois resulted in whole or in part from errors in instructions. (Foreword to Illinois Pattern Jury Instruc-
The trial judge considered adequate, and gave, the following IPI instruction:
“If 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:
1. The nature, extent and duration of the injury.
2. The aggravation of any pre-existing ailment or condition.
3. The disability resulting from the injury.
4. The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.
5. The reasonable expense of necessary medical care, treatment, and services received.
6. The value of earnings lost and the present cash value of the earnings reasonably certain to be lost in the future.
Whether any of these elements of damages has been proved by the evidence is for you to determine.” (IPI Civil Nos. 30.01, 30.02, 30.03, 30.04, 30.05, 30.06, 30.07.)
This instruction plainly tells the jury that they are “to fix the amount of money which will reasonably and fairly compensate him [plaintiff] for *** 2. The aggravation of any pre-existing ailment or condition.” In view of that mandate, the majority‘s conclusion that the IPI instruction was inadequate because element (3) of damages “makes no reference to the injuries resulting from the aggravation of a preexisting ailment or condition and can be construed to limit damages to the disability resulting from those injuries included in element (1)” (76 Ill. 2d at 455-56) seems to me quite amazing.
The instruction offered by plaintiff, the refusal of which the majority now holds constituted reversible error, was as follows:
“If you find that the defendant was negligent and that its negligence 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 to be limited in any way by the fact, if you find it to be a fact, that the plaintiff‘s injury 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.”
That instruction is a composite of the three instructions
As I read the majority opinion here, it concedes the argumentative nature of plaintiff‘s refused instruction, and the propriety of the court‘s refusal to give it. It then, however, awards plaintiff a new trial because, apparently, the trial judge did not afford plaintiff an opportunity to “modify” the concededly improper instruction, despite the absence of any indication that plaintiff ever requested such opportunity.
Those of us who served as trial judges in pre-IPI days recall what a difficult task it was to sort out, from the mass of repetitive, slanted, verbose instructions frequently tendered by opposing counsel, those which might be thought to instruct the jury with some semblance of accuracy and fairness, or, sua sponte, to prepare others which would do so. That task was greatly simplified with the advent of IPI. The instruction tendered by plaintiff in this case, however, is reminiscent of the pre-IPI days when a prevalent vice consisted of the practice of some attorneys who would mold to their current desires, and incorporate in the form of jury instructions, statements taken out of context from opinions of this court or the appellate court. Those instructions would then be tendered to the trial judge who, with little or no time for research or reflection, decided whether to give or refuse them. As earlier noted, that procedure produced a substantial amount of error,
Reference to the policies pursued by the committee during its labors is apposite here, for the trial judge, in refusing plaintiff‘s composite instruction, indicated its content was more appropriately emphasized by plaintiff‘s counsel in his argument to the jury. In the foreword to IPI Civil, second edition, the committee describes the criteria underlying those policies:
“First, the Committee has been opposed to negative instructions, that is, instructions which tell the jury to not do something.
Second, the Committee has not recommended instructions which single out a particular item of evidence for comment, even where there is judicial authority for the instruction.
Third, the Committee has been reluctant to recommend instructions that would be appropriate only in an exceptional case and are likely to be sources of error.
Fourth, and perhaps most important, the Committee has opposed over particularizing. It has preferred to rely upon one instruction which is general in nature and has avoided creating a number of instructions on a subject which is adequately covered by the single general instruction.
Underlying all these considerations has been a major policy. We have viewed the problem of communicating law to the jury as one best handled by a partnership between court and trial counsel rather than by the court alone. The Court will in understandable language fairly state the law, permitting counsel on each side to supply adversary emphasis, rather than try to neutralize partisan instructions, sounding first like plaintiff‘s counsel and then in the next sentence like defense counsel. In brief, on many occasions when the Committee has rejected an instruction, it has felt not so much that the point ought not be told to the jury, but rather that it should be told to the jury by counsel rather than by the Court.” Foreword to IPI Civil at vi-vii (2d ed. 1971).
In my opinion the trial judge properly held the given IPI instruction was adequate. In any event, the additional instruction tendered by plaintiff was neither simple, impartial nor free from argument as Rule 239 requires, and it was properly refused. It is, in my judgment, neither necessary nor fair to reverse this trial judge for failing to modify and then give a refused instruction he was never requested to change. The court‘s action in doing so seems to me a nullification of the significant benefits from IPI, and a substantial step backward to the undesirable
I would reverse the judgment of the appellate court and affirm the judgment of the trial court.
MR. JUSTICE RYAN, also dissenting:
I join in Mr. Justice Underwood‘s dissent. However, having shared his frustrating experiences as a trial judge in pre-IPI days, I am compelled to separately voice my opposition to the majority‘s rending of the very principle of pattern jury instructions.
The pattern instructions given in this case informed the jury in very simple, straight-forward, nonargumentative language that the plaintiff was entitled to recover as an element of damages the “aggravation of any pre-existing ailment or condition.” If, as the majority holds, the plaintiff is entitled to add to the instruction given another instruction which expands on this element of damages by stating that recovery “is not barred or to be limited in any way by the fact *** that the plaintiff‘s injury and disability resulted from an aggravation of a pre-existing condition” then arguably a plaintiff would likewise be entitled to similarly expand on and more precisely tailor to his benefit instructions as to every element of damages. If this is permissible for the plaintiff, then I assume the defendant would likewise be entitled to an instruction that recovery is barred or limited if the jury finds that the injury did not result from an aggravation of a preexisting condition and to other instructions as to other elements of damages which would be more restrictive than the IPI instruction and which would naturally be tailored to benefit the defendant. The majority opinion, I fear, is regressive and retreats toward pre-IPI days.
The majority conjectures that the plaintiff had no opportunity to offer a modification of the defective instruction. There is no indication that the plaintiff requested a modfication of the tendered instruction. The
Even if the plaintiff were entitled to an instruction on aggravation of a preexisting condition, in addition to the IPI instruction given, the instruction tendered clearly could not be given in the form tendered. If it would have been given and a verdict would have been returned in favor of the plaintiff, the defective instruction would have constituted serious grounds for reversal and the granting of a new trial to the defendant. I therefore do not think that we should order a reversal in this case based upon the trial court‘s refusal to give a clearly erroneous plaintiff‘s instruction.