*1 hearing at the notice, and appeared he had actual court held that as fulfilled, were provision of the notice purposes his attorney, 228, 572 143 Ill. 2d at (Splett, harmless. and the error was deemed strict compliance the need for 886.) Splett does not lessen N.E.2d at in the Code. are contained in mental health cases that to the deadlines hearing of a of formal notice proof It excused the requirement had actual notice. respondent indicated the when the circumstances County of Macon reversed. of the circuit court Judgment Reversed. McCULLOUGH, JJ., concur.
SPITZ Johnson, Deceased, al., et JOHNSON, Cory Adm’r of the Estate of LARRY O’NEAL, the Estate of Speсial Adm’r of Plaintiffs-Appellants, v. DAN O’Neal, Deceased, al., (The County of Mc- Defendants-Appellees et Michael
Lean, Defendant). Fourth District No. 4—90—0617 25,1991.
Opinion July filed *2 LUND, P.J., specially concurring. O’Sullivan,
Eileen Associates, of Jerome Mirza & Bloomington, for appellants.
Guy Echols, C. Fraker and John T. Costigan Wollrab, EC., both of & Bloomington, appellee Dan O’Neal.
W. Thomas Gilfillan, Johnston and Paul P. Quinn, Johnston, both Pretorius, Peoria, Henderson & for appellee Lexington Township. JUSTICE STEIGMANN delivered the opinion of the court: Plaintiffs, Johnson, Larry as administrator of the estate of Cory Johnson, deceased (decedent), and Larry Johnson and Patricia John son, in their capacities, individual appeal judgment a entered in an action for wrongful (Ill. 1985, death Rev. 70, Stat. ch. pars. through 2.2), (Ill. 1985, survival 110, Rev. Stat. ch. par. 1008(b); IIOV2, ch. 2— par. 6), and family (Ill. 1985, expense 40, Rev. Stat. ch. par. 27— 1015), arguing that the damages awarded thеm are The inadequate. principal issues on are appeal (1) should computational verdict forms provided be cases, in all comparative negligence and (2) does the prayer for relief contained in a notice of appeal control issues may in a adjudicated new trial. History
I. Procedural 1986, this action November commenced when a plaintiffs filed complaint against administrator special estate of decedent McLean, Lexing- (O’Neal’s estate), County Michael O’Neal summary judg- (the township). On November Township ton McLean, it is a County in favor ment was entered to this appeal. party held on filed, ultimately and trial were complaints
Amended Com- filed in December 1989. plaintiffs’ complaint, fourth-amended that on December allegations mon counts are complaint to all of that driven Michael passenger by a car decedent was car off the O’Neal, when the went injuries and decedent sustained curve, over, in a field. road in the area rolled and came rest ultimately that the caused crash complaint alleged injuries complaint death. The first three counts resulted car (1) he drove his too alleged negligent that O’Neal was because conditions, proper fast automobile under keep failed to his alleged proximately control. These counts that O’Nеal’s I sought damages injuries caused the decedent’s and death. Count for dece- II wrongful theory; requested compensation death count ex- (under family dent’s funeral III for dece- pense sought damages count theory recovery); and suffering to his death. pain prior dent’s These through against township. Counts IV VI were directed or the road on which alleged counts owned maintained *3 alleged accident counts that because fatal occurred. These further of in in area of the severity the number and of curves the road accident, dangerous permit- travel at the or posted road was for was not ted and that and of curves speed, severity number traveling alleged a motorist the road. Plaintiff readily apparent to in erect- to exercise due care township negligently duty breached its in of on the road ing warning and and motorists hazards posting signs of the number township (1) identify failed to correctly speed or reduce the road, (2) speed curves in the failed to a safe post occurred, and (3) limit on the road in area where accident in the road and the of curves severity failed to advise motorists alleged safely curves traveled. Plaintiffs speed at which the could be injuries and death. caused decedent’s negligence proximately V re- theory; count sought damages wrongful Count IV on a death and funeral quested reimbursement decedent’s pain and expenses; requested and count VI suffering prior death. 1990, into and O’Neal’s estate entered February plaintiffs
On an agreement agreed pay under which the estate $300,000 loan, a $600,000. repayable The this amount was first of only to the extent plaintiff recovered that amount aor lesser sum from the township. agreement This did not preclude plaintiffs’ claims against trial, O’Neal’s estate from proceeding provided and it if plaintiffs judgment against obtained a in an O’Neal’s estate $600,000, excess pay O’Neal’s estate was to the excess amount $50,000. Otherwise, extent it did not exceed O’Neal’s estate was required to make any payments plaintiffs. further 22, 1990,
On February O’Neal’s estate moved for a finding good as faith to the loan receipt agreement, (2) dismissal town- ship’s counterclaim against estate, (3) O’Neal’s dismissal O’Neal’s against estate’s counterclaim and township, (4) O’Neal’s estate’s discharge from any liability for contribution the township. On Feb- ruary the circuit court entered order granting an the relief requested motion, and the two involving counterclaims O’Neal’s estate and the township were dismissed with prejudice.
In March the township filed an affirmative defense to the plaintiffs’ complaint, alleging that decedent was guilty which proximately injuries caused his and in that he negligently death carelessly (1) stayed operated a vehicle a being person whom he knew or driving dangerous should have known was at speeds; excessive (2) encouraged the driver to operate the vehicle at such speeds; (3) failed remove himself from a being vehicle op- dangerous erated at speeds, although excessive there were oppor- do so. tunities to
II. The Trial trial of this cause was held in March The plaintiffs’ 1990. first Freed, witness was Richard police who was a officer with the City Lexington at the time of fatal accident. Freed testified that on the evening 13, 1985, he December a citizen’s received band radio report an accident a or road county south road, At Lexington. a curve in the he lying discovered a car field. He found four boy victims at the accident scene. One in the car alive, was ground there was another on the boy who also alive, with a on top dead of him. Freed boy Subsequently, discovered girl dead the accident scene. Freed further that a testified driver traveling (in south the road on which the accident occurred the di- rection place accident) upon would come the crest of *4 curve, hill and see one but to see a would be able second curve which follows. The at the accident occurred second curve.
Also on behalf of Chris testifying plaintiffs was Juvenal. Juvenal accident, stated evening dеcedent and O’Neal
979 time, years Juvenal was At that his residence. him at picked up his car and had obtained had a new that O’Neal testified old. Juvenal then Juvenal, O’Neal, and decedent before. day driver’s license Eventually, drove around.” “just Quinn up Cathy picked town, which from a lights and saw the country in the up wound group Lexington, passen- in arriving After Lexington. turned out to be from the back car, moving with Juvenal gers changed positions from the front seat moving decedent seat to the front seat and get to “kind of Lexington around then drove group back seat. recalled out of town. Juvenal drove bearings” subsequently our bins, grain some accident; seeing he remembered details of the fеw time,” seeing the am- period to in the car a brief “coming bulance arrive. Juvenal testi- township, counsel for
On cross-examination at driving O’Neal was evening question, during fied that stated, “I know.” 80,” then don’t really 70 and but “[mjaybe between Lexington, the car was stopped Juvenal also testified that while acknowledged that driving. one said O’Neal’s Juvenal anything about accident, in which voluntary he statement days signed six after on the Lexington he the three other entered youths said that he and trial, However, at Juvenal same road on the accident occurred. which on the same road. Juvenal testified that the accident did not occur he he statement before returned signed voluntary stated that the scene of the accident “to see how the actual road was.” curvey August plaintiffs
Rhonda Bennett testified on behalf of old, her after she obtained years shortly when she was at the same location license, driver’s she was involved in an accident the car as the decedent killed. She stated accident which airborne, curve, driving she was went out of control on became went into a bean field. Elston, an officer
Also was Jeff testifying behalf to the detec- department assigned with the McLean sheriff’s County 23, 1985, another Elston testified that on November tive division. the acci- the same location as virtually one-car accident occurrеd at 1985 accident oc- dent decedent was killed. The November into curve. The car skidded the driver lost control on the curred when field, it rolled over into a where subsequently a ditch and vaulted coming stop. twice before their rela- concerning Johnson testified Larry
Both Patricia and record, and decedent, and school decedent’s character tionship with Larry the accident. their decedent after presence hospital 1, 1986. Plaintiffs also February died on Johnson stated that decedent *5 presented testimony medical relevant to survival claims for dam- ages for pain decedent’s and after the suffering accident and to prior his death.
Thе trial court denied motions for directed by verdicts both the township and at the of plaintiffs’ O’Neal’s estate close case. Serone,
Bonnie a McLean sheriff’s on County deputy, testified be- of township. half Serone stated that based on her investigation of scene, the accident vehicle which decedent riding was was trav- eling per 65 miles it hour when left the road.
The township also presented testimony medical relevant survival claims.
No evidence was of presented behalf estate. O’Neal’s At the conclusion of evidence, the trial court denied a mo- (1) by tion for a plaintiffs finding directed verdict that decedent was of guilty negligence, (2) a motion for contributory a directed verdict of estate, favor O’Neal’s (3) a motion for a directed verdict fa- of vor the township. conference,
At the jury instructions court circuit refused jury computational instruction consisted of a verdict form on which the could jury have indicated the which it found percentage by decedent of guilty comparative negligence. The court refused this in- struction it signature because did not contain lines for the jurors. Counsel for the indicated he instruction, would retender this contains but record no indication that he did The jury so. was nev- instructed, as ertheless in part, follows:
“It duty plaintiff [sic], and at before the time occurrence, use ordinary care for his own safety. a person failure of to use ordinary care for his own safety known as contributory negligence.
Plaintiff’s negligence, if contributory any, does not bar [sic] However, recovery. his damages total amount of to which he proportion would otherwise be entitled is reduced in to the amount of his negligence. negli- This is known as comparative gence.” O’Neal’s Estate’s instruction No. 2.
“Involved this lawsuit are three distinct against claims defendant; each by one estate Johnson which seeks Cory for damages pain his claimed conscious one suffering, by his father and who for compensation money spent mother seek or amounts for which become they reasоnably have liable bills, doctor bills and other necessary hospital estate of so- Cory Johnson which seeks loss [sic] ciety. decedent’s conduct plaintiffs’ find that
If should you then contributory negligence, amounted would other- or the parents the estate damages to which money to the amount in proportion reduced entitled must be wise be Town- decedent.” plaintiffs’ attributable of negligence 6. instruction No. ship’s in favor a verdict trial, the returned
At the conclusion IV as counts I and against defendants both plaintiffs II and V $200,000, as to counts in the amount death) (wrongful $50,000, in the amount expenses) and funeral (hospital, (conscious pain suffering prior III and as counts and VI death) in the amount $0. rеquesting filed a motion April post-trial
On n.o.v. in their favor the issue entry judgment *6 or, fault, alternatively, a trial as to (2) only, new additur The additur $132,334.49. in the amount of (3) entry an the award jury’s is the difference between plaintiffs requested which ($50,000) funeral and expenses for decedent’s and trial of those established undisputed expenses the ($182,334.49). 23, 1990, filed motions April post-trial requesting
On the n.o.v. favor, in the (2) of a its that unconditional (1) entry judgment the to pursuant the to O’Neal’s estate portion payment plaintiffs by it, loan set entered agreement against judgment against off the additur (3) in of an the entry against township, and the event additur against remaining setoff the amount of the uncondi- por- tional estate the payment plaintiffs by plus forgiven O’Neal’s to plaintiffs. tion of the loan which O’Neal’s estate made motions, court indicated hearing At the on the the trial post-trial the accident was suffering that decedent’s after pain conscious “clearly jury. respect a fact issue” to be determined With fault, the issue of the trial court stated: in- rate, “At the special form does contain any the verdict had have been finding what the verdict would terrogatories per- there and then the contribuotry negligence, [sic] been Decedent, of Plaintiffs’ contributory centage not an option then the reduced net verdict amount. That was case, and I think that at given Jury in this was go that all intendments have favor stage trial must that verdict, presume the Court Jury’s they returning heard they upon acted the evidence which that they verdict did.
So I are while concede there uncontested bills medical $50,000, and funeral bills in excess of is the there possibility an Jury that the found element of on contributory negligence part Plaintiffs’ Decedent.” In an 27, 1990, order entered July (1) plain- trial court denied motions, tiffs’ post-trial denied (2) township’s post-trial motion for n.o.v., judgment (3) allowed the township’s post-trial motion against setoff against verdict returned it in the amount of the un- conditional portion payment which O’Neal’s estate made trial plaintiffs. The court further township’s post-trial ruled motion against a setoff requesting additur entered any against it was moоt.
On August plaintiffs appeal filed notice of from judgment entered verdict and from order jury’s which de- nied their In post-trial motion. their notice of re- plaintiffs appeal, of a quest entry judgment n.o.v. on the issue com- of decedent’s fault, parative (2) a trial on the or, new issue of damages only, alternatively (3) entry of an additur with to medical fu- respect neral $132,334.49. the amount of Judgment Comparative III. A. O.F — Decedent’s Fault first argue
Plaintiffs that the court trial erred in them a denying judgment n.o.v. the issue of decedent’s Plain- comparative fault. that, tiffs contend a light defendants, viewed in most favorable evidence overwhelmingly so favors finding that no of com- fault on the parative part of decedent could ever stand. support argument, plaintiffs contend that evidence speed as to unsafe vehicle which riding decedent was to its prior arrival Lexington too remote and as speculative serve a basis for im- *7 a on posing decedent to duty remove himself from the Fur- vehicle. thermore, plaintiffs that if argue even the evidence car establishes the being was at an driven excessive it was ex- speed, not reasonable to decedent, who pect only was years old did not have a driver’s license, to remove from himself the when he car was some distance from his home in Bloomington.
The township asserts there is ample evidence of com- decedent’s parative negligence to create a on jury question that issue. The town- ship that argues recognizes (1) Illinois a in an passenger law automo- may guilty contributory failing bile be to exercise due her safety, occurring care his or own events hours before accident to may comparative an relevant the issue the fault at- tributable ato party. Deputy that Serene’s contend argument, plaintiffs reply their to issue of irrelevant speed vehicular
testimony pertaining fault. comparative decedent’s in those cases in entered n.o.v. should be
Judgments most favorable to evidence, aspect in its all viewed contrary that no ver favors the movant overwhelmingly so opponent, v. Peoria & (Pedrick ever stand. dict that evidence could based on 513-14.) 229 N.E.2d 37 Ill. 2d (1967), Eastern R.R. Co. rode for a party that a that evidence agree We a jury ques a vehicle creates speeding time in fairly lengthy period safety. due care for his own tion as that exercised party to whether speeding just has that a vehicle was Moreover, jury a evidence when had con accident, jury infer that the been may speeding before an 560, 566-67, 72 Ill. 2d Hayes Alsburg (1978), tinuous. See 242. decedent was Serone testified that vehicle which Deputy riding at 65 hour when it left the road. Con- traveling per was miles contention, trary testimony is relevant the issue plaintiff’s of the jury decedent’s fault. The instructed: was Lexington Township plaintiff
“Defendant claims that [sic] negligent failing decedent was to remove him- contributorily self operating from vehicle which the driver was excessive rates dangerous of speed. that
Defendant further claims the fore- Lexington Township going in- proximate plaintiff was cause decedent’s [sic] (Plaintiffs’ 8.) and death.” instruction No. jury Deputy testimony Serone’s was as to the issue whether probative previous evening O’Neal was occasions speeding during accident, this in turn decedent was relevant whether guilty he failed to remove himself comparative negligence because from a vehiclе. speeding
Given the inferences which could have jury reasonably Deputy drawn from Serone’s is sufficient to testimony, evidence to find some fault of decedent. permit part From inferred testimony, jurors properly could have prior vehicle passenger speeding in which decedent was a had been its Lexington. arrival in could have further concluded jurors decedent during should have himself from the vehicle its removed stop his or else Bloom Lexington, telephoned parents someone ington, up. Thus, him as to issue of requested they pick evidence, in a fa comparative fault, light viewed most defendants, vorable favor overwhelmingly does not so *8 finding that no of fault on decedent’s part could ever stand.
IV. New Trial —Additur Plaintiffs maintain are entitled to they a new trial damages as only damages because awarded in this case are in- manifestly adequate, (2) proved damages ignored, elements of and (3) were amount the damages award relationship bears reasonable to the loss which suffered. Plaintiffs note the jury awarded $50,000 expenses, funeral when uncon- troverted evidence established that the total expenses which they in- $182,334.49. Moreover, curred for these items was plaintiffs contend of no damages award on the survival counts for decedent’s pain and suffering after the accident is to the contrary weight manifest еvidence, of testimony view that after the accident and before death, his decedent responded to oral commands and to stim- painful uli and showed signs purposeful activity.
Plaintiffs given alternatively argue alleged inadequacy of award, the jury’s damages the circuit court should have entered an additur in their favor. Plaintiffs assert that premise on which the circuit court essentially addi- denying relied in their for an request plaintiffs’ tw—that decedent was 72.6% at fault —is irrational and im- as permissible a matter law.
The township contends the is generally evidence sufficient to sup- port $50,000 jury’s damages, awards and the for hospi- award tal, medical, and funeral reflects a reduction damages account decedent’s comparative negligence. The also as- serts that because there is question a close as to liability, its a new trial as damages only would grossly unfair.
A. Computational Verdict Forms In considering awards, must adequacy we first determine whether the evidence finding suffices to support 72.6% fault on which circuit part, appar- court ently implicit concluded was Our jury’s verdict. review question is made provide difficult the trial court’s failure to jury with a form it computational verdict on which could have entered as to finding of fault percentage attributable to decedent. Ab- form, sent necessarily such verdict there must speculation be some as to jury par- attributed ties. appellate courts court and decisions prior
Some computational provide hold that failure other districts error. cases not reversible comparative negligence verdict forms 762, 773, 115 Ill. 3d Day (4th Harris v. 1983), App. Dist. (E.g., R.R. Dist. (4th Illinois Central Hazelwood 268; Gulf *9 also 1199, 1204-05; see 703, N.E.2d 709, 450 App. 114 Ill. 3d 1983), Northern, Inc. 1983), App. Dist. 112 Ill. Burlington Stromquist v. (3d Harris, However, Justice 1113, 1118-19.) in 37, 45, 3d 444 N.E.2d court, stated, require “This writer would for this writing Trapp, cases negligence jury] in [comparative forms all computational verdict [(Lawrence v. Florida Lawrence listed opinion for the reasons Su Co. 1977), 1012)] So. of the Florida Ry. East Coast (Fla. 346 2d (Harris, 3d at 451 at ***.” 115 Ill. preme App. Court Lawrence court af in the decision which 268.) aрpellate As noted a determina firmed, permits of verdict forms computational use negligence being applied. is comparative actually tion of whether (Florida Co. Lawrence 1976), 328 So. 2d Ry. East Coast (Fla. App. Also, compara forms insure computational verdict 253-54.) goal apportioning damages its desired negligence tive achieves (Florida Ry., East Coast 255.) 328 So. 2d The the basis fault. errors, for the correction of jury use of such verdict forms allows case by jury, forces detailed consideration of the enables instructions which using complicated jury trial court to avoid long, (Florida Coast Ry., East error. 328 So. 2d at would invite reversible Negligence Timmons & Sil Pure in Flоr vis, Comparative citing Law, ida: A New Adventure in Common 28 Miami L. U. Rev. States, ver (1974).) computational In at least the use required comparative negligence dict forms is now in all cases jury Schwartz, Comparative Neg either statute or See V. judicial decision. ligence 1990). ed. 1986 & (2d Supp. §17.4 desirability
The case illustration of the present perfect provides in all comparative the use of verdict forms requiring computational in com- cases, findings negligence having computational jury trials. The award parative cases which are tried bench $50,000 medical, funeral expenses, for decedent’s hospital, of these considered in view of proved concluded, signify as the trial cоurt reduction ($182,334.49) may, so, it If is is damages comparative to account for decedent’s fault. death award reflects a questionable $200,000 wrongful whether same wrongful damages percent- death plaintiffs’ reduction medical, and age expenses. as does the award for funeral hospital, for these words, figures could two jurors simply picked other have damage awards which felt they were somewhat lower than those which would have been appropriate comparative if negligence were chargeable plaintiffs. may not have jurors first determined the plaintiffs’ damages total death wrongful medical, and for hospital, and funeral expenses, then reduced each these figures by uniform percentage, as if they would have had to do had been they provided awith computational hand, verdict form. On the other of damages small amount awarded for and funeral expenses could reflect the simply jury’s inadvertent omission of vari- ous damages elements of from the amount of this award.
The speculation which arises when are computational forms used impedes effective seriously jury’s apportionment review the reasons, fault. all For of the above it would be better practice to provide computational verdict forms to the in all cases case, where Where, fault an issue. as in this сounsel fail to forms, tender proper computational verdict the court should di- rect if so; counsel to do the court product finds their to be unsatisfac- then it is the tory, duty the court sua sponte provide the jury Further, such verdict forms. trials, suggest bench we that the trial court make the findings same on the record which are required *10 by computational Lawrence, verdict forms. See 346 2d So. at 1017.
In suggesting the use of computational verdict forms in all jury issue, cases where is comparative fault an we are mindful it gen that is not erally upon incumbent the court to give jury trial instructions on its own motion. (Chicago Land Clearance Convm’n v. Darrow 365, 12 (1957), 375, Ill. 2d 1, 7.) 146 N.E.2d The Supreme Illinois has, however, Court recоgnized that there may exceptions be to this rule “special where circumstances” exist. Land (Chicago Clearance Comm’n, 12 Ill. 2d 7.) 146 N.E.2d at of safe necessity guarding the process effective apportionment review of of fault is the type “special circumstance” which a justifies departure from the that principle courts to generally duty have instruct the jury a manner not requested any of by parties; the this is the likewise ba sis of our suggestion that in bench trials comparable findings be made of record. Jury’s Apportionment B. Fault Comparative a computational
Because form provided verdict was not the case, jury present we must from attempt to dеduce the record us before whether the jury’s implicit apportionment fault —on which the premised trial court its denial of for an plaintiffs’ request additur medical, for hospital, and funeral contrary the mani- —is
987 counsel, indi- As out the best pointed by of the weight fest evidence. fault comparative the jury’s apportionment cation in the record of funeral ex- $50,000 for is of only the award for these damages amount proved undisputed the penses, when dam- the of these $182,334.49. If the reduced jury items was fault, that the it means ages to account for decedent’s to dece- was attributable negligence of the total found 72.6% dent. of some fault on supports finding the record
While guilty сompara of 72.6% finding that decedent was part, (Jun weight the manifest the evidence against tive fault would ker 1138) Ziegler (1986), v. 113 Ill. 2d N.E.2d failing negligence the us. Decedent’s the basis of record before outweighed was far speeding by remove himself from a vehicle the in a manner negligence failing operate O’Neal’s vehicle safe danger to warn of the township’s negligence failing by Junker, In posed plain which the curve the road to motorists. adult, tiff, hunting was an in a which was placed who himself blind blind, firing range within another not take suffi occupied did hit from the precautions being cient to avoid fire other blind. The court nevertheless affirmed the trial court decision supreme against contrаry assessment of fault jury’s plaintiff 65% weight the manifest of the of the negligence evidence in view arrang owner of the in which the accident occurred in hunting park ing and in hunter who fired blinds view case, argua there was pellet plaintiff. present struck bly evidence of to decedent comparative negligence less attributable Junker, greater than in an even yet, jury probably attributed of the total fault to percentage decedent.
Ordinarily, holding apportionment of fault con jury’s trial as trary weight requires manifest evidence a new Material Service (See of fault issue. apportionment Bofman Corp. (1984), 1053, 1062, 1064, 1070.) If Ill. 3d App. damages manifestly are in the record establishеs that assessed or if or that elements of were adequate proved ignored, *11 losses, damage relationship assessments plaintiff’s bear rational time at adjudicated issue must also be a second Construction, Hollis v. R. Latoria Inc. 108 (See (1985), the new trial. 407, 401, 4, Ill. us to the next issue 6.) brings 2d 485 N.E.2d This raised this appeal.
988 Appeal
V. Of Notice case, despite general principles above, discussed we conclude that plaintiffs’ notice of appeal precludes us from grant ing a new trial as to the comparative fault issue plaintiffs because did not request Further, relief. the relationship between the degree of fault of each and the party amount of recoverable damages pro hibits a new trial as to damages or only of an entry additur as to the and funeral expenses. states,
Plaintiffs’ notice of appeal in part, the following: “Plaintiffs-Appellants that pray Appellate Court reverse judgement said and enter judgement notwithstand- [sic] [sic] ing the verdict of the jury respect to the issue of compara- tive fault of the Plaintiffs-Appellants decedent, CORY [sic] JOHNSON, order a new trial on the issue of damages or, alternative, that this Court enter an additur with respect to the medical and funeral the amount of $132,334.49.”
In McCottrell v. Benson (1961), 367, 32 Ill. 2d App. 178 N.E.2d 144, the defendant-appellant complained of an error in the admission of evidence. The aрpellate court held that the erroneous admission of the evidence would ordinarily have entitled defendant to a new trial. However, in his notice of appeal, defendant requested only outright reversal of the judgment entered against him. Defendant explicitly stated he did not wish cause be remanded further proceedings. Relying (1) the release of errors doctrine (2 Ill. L. & Prac. Appeal §71, and Error at 168 (1953)), the principle that right to a new trial may be abandoned by (a) failure to argue motion for a new trial in the trial court (Berg New York Central (1944), R.R. Co. 221, 223-24, 323 Ill. App. 394, 396, 55 N.E.2d aff’d 391 (1945), Ill. 676), N.E.2d or (b) failure of the trial court to rule on such a motion (Fulford v. O’Connor 3 Ill. (1954), 2d 501-02, 121 N.E.2d 773), the court held that an who appellаnt states he specifically does not want a cause remanded for a new trial circumscribes the relief which he seeks court. reviewing (Mc Cottrell, 370-71, 32 Ill. App. 2d at 145-46.) N.E.2d at Because the defendant-appellant reversal, was not entitled to outright the appel late court affirmed the judgment against McCottrell, him. 32 Ill. App. 2d at 147.
Here, counsel plaintiffs’ argument was asked at oral about the re- lief requested, responded did not want a new trial on the issue of the apportionment parties. of fault as to all con-We
989 appellant position into the the brings this elude that but McCottrell, and we will requested, not relief not grant apportionment the issue of judgment, our disсlaimed. specifically that a damages the issue intertwined with case is so fault in this the nor would granted; fairly cannot be damages only new trial on appropriate. be by plaintiffs relief requested other *** relief the “specify shall appeal that a notice By providing Supreme 303(c)(2)), Ill. 2d R. (134 court” reviewing the from sought some ex limit to appeal notice of that a contemplates 303 Court Rule some Although grant. reviewing may the court relief tent the which does appeal of a notice of portion for relief prayer hold the decisions (e.g., court reviewing granted by relief bemay not limit the Corp. (1980), Purex Co. v. 3d Telephone App. Illinois Bell 90 Ill. Precision, Inc. Singеr General Peluso 106, 108-09; 413 N.E.2d 390, 397), these deci 842, 850-51, 3d (1977), App. 47 Ill. appel that argued the appellee situations where sions involved granting from reviewing court prevented for relief prayer lant’s con appeal. By on arguments in the appellant’s the relief requested a review whether trast, question are here confronted with we sponte grant sua neither of relief requested type court ing may litigants rights Respect nor the appellant appellee. that we answer litigation requires the course of their control negative. question fault, we comparative trial as do not order new
Because we case, we to even were damages trial cаnnot order a new as In cases inadequate. manifestly are damage awards hold that of a issue, proper an negligence is where of fault attributable the percentage is a function of damage award Although is entered. damage award in whose favor party same, amount of remains damages plaintiff’s total amount of percentage on the depends recover plaintiff may damages which Where, here, the assess as the plaintiff. negligence attributable weight manifest contrary fault is ment of comparative as to that a new trial evidence, granting are from precluded but we of an additur the entry or damages only, as to issue, a new triаl (Cf. (MB) Negligence Comparative appropriate. not be would if apportionment (1991) (suggesting §15.20[3][b], at 15—35 negligence limited to issue, new trial damages part Therefore, we appropriate).) damages may apportionment awarded contentions consider plaintiffs’ need not inadequate. counts are family expense the survival additur, Because we are precluded from entering an we also need not consider the township’s argument it is entitled to a set off against any additur which we may enter.
Affirmed.
KNECHT, J., concurs.
PRESIDING LUND, JUSTICE specially concurring: I concur with Justice Steigmann’s opinion. Hereafter, I will be in- reverse, clined to based the failure give a computational verdict form when there is a negligence issue.
BOARD OF EDUCATION OF U-46, SCHOOL Petitioner, DISTRICT v. IL LINOIS EDUCATIONAL LABOR al., RELATIONS BOARD Respond et
ents. Fourth District No. 4—90—0739
Opinion 25,1991. July filed