delivered the opinion of the court:
Plаintiff, Mark Knauerhaze, brought suit against defendants George W. Allen, M.D. (hereinafter Dr. Allen), and George W. Allen, M.D., S.C., an Illinois corporation (hereinafter Allen Corporation), alleging that Dr. Allen negligently performed surgery on his ear that resulted in permanent injuries. Dr. Allen died during trial, and on Knauerhaze’s motion, the trial court appointed Oliver Nelson special representative pursuant to section 2 — 1008 of the Code of Civil Procedure (735 ILCS 5/2 — 1008 (West 2004)). On May 22, 2003, a jury found for plaintiff and awarded damages of $2,484,702. The trial court entered judgment on the verdict the same day. Defendants brought a motion for judgment notwithstanding the verdict or, alternatively, a motion for a new trial, arguing that Knauerhaze failed to provide evidence of causation. Defendants further argue that the judgment against Allen Corporation cannot stand because Knauerhaze never proved that Dr. Allen was acting as an agent of the corporation at the time of the surgery such that it could be held vicariously liable. Knauerhaze cross-appeals, alleging that the trial court improperly limited his award through a misinterpretation of section 2 — 1008. For the reasons that follow, we reverse.
I. BACKGROUND
In September of 1998, Knauerhaze, an otherwise healthy man in his forties, sought treatment from Dr. Allen for hearing problems with his left ear. Knauerhaze had otosclerosis, a condition where the stapes bone of the middle ear becomes stiff and stops vibrating properly. The middle ear is comprised of three small bones, the malleus, the incus and the stapes. These bones work together to send vibrations to the inner ear where nerves then send signals to the brain. Knauerhaze had lost approximately 50% of his hearing due to the stiffening of his stapes bone.
Dr. Allen recommended a stapedotomy, a surgery where part of the stapes bone is removed and replaced by a prosthesis which is hooked onto the incus bone with a wire hook. A successful stapedotomy reestablishes the correct interplay of the middle ear bones and can lead to immediate improvement in hearing. A stapedotomy is performed with the surgeon looking into the ear through a microscope at various magnifications. A stapedotomy entails injecting anesthetic and a blood-constricting medication into the ear canal. An incision is then made and the eardrum is moved forward. The bones of the inner ear are then gently pushed to see if they are moving, or are, in fact, showing signs of otosclerosis. If the surgeon verifies that the stapes bone is not moving as it should, a cut is then made between the incus and the stapes with a tiny knife, and the incus is lifted off the top of the stapes. The loop of the prosthesis is then put over the incus bone and thе prosthesis is set in place.
Knauerhaze’s surgery was scheduled for September 11, 1998, as a day surgery, meaning that Knauerhaze would arrive in the morning, have the procedure, remain in the hospital for a matter of hours for rest and observation, and then return home the same day.
Knauerhaze had diminished hearing before the surgery; however, he was still able to work, drive, walk, run and otherwise participate in normal activities. After the surgery, Knauerhaze lost all hearing in his left ear. The hearing loss resulted in ongoing balance problems and vertigo, which, in turn, led to fatigue from compensating for the loss of balance. He has not been able to return to work, or drive, and is no longer able to walk with ease due to disequilibrium.
On September 8, 2000, Knauerhaze brought suit against Dr. Allen and Allen Corporation alleging that he sustained injuries due to the medical negligence of Dr. Allen. Dr. Allen was the sole stockholder of Allen Corporation, and both Dr. Allen and Allen Corporation were insured by the Illinois State Medical Inter-insurance Exchange for the total sum of $1 million.
Before the case proceeded to trial, Dr. Allen died on September 27, 2001. No letters of office were issued and no probate estate was opened on his behalf. Rather, Knauerhaze opted to proceed with the litigation by bringing a motion pursuant to section 2 — 1008(b), which, as shall be set out later, allows a party to proceed with an action against an opponent who dies during litigation by having a special representative appointed to defend the action. 735 ILCS 5/2 — 1008(b) (West 2004). Section 2 — 1008(b) allows the party who invokes it to avoid the formalities of opening a probate estate, but it limits the amount recoverable to the liability insurance protecting the decedent’s estate. 735 ILCS 5/2 — 1008(b) (West 2004). On January 18, 2002, the court granted Knauerhaze’s section 2 — 1008(b) motion and appointed Oliver Nelson as special representative for Dr. Allen.
Dr. Allen’s notes from the Knauerhaze surgery set forth certain facts of the surgery that are not in dispute. Dr. Allen noted that Knauerhaze’s incus bone was much larger than normal. He then noted that in first attempting to put the wire loop of the prosthesis over the incus, the incus became subluxed, or dislocated, when the ligament supporting the incus was torn. Dr. Allen then made several more unsuccessful attempts to place the wire loop over the incus. After these attempts, Dr. Allen noted that there was blood in the vestibule of Knauerhaze’s ear. Also, after these several attempts, Dr. Allen noted that Knauerhaze began to retch, broke out into a cold dripping sweat, became nauseated and started to vomit on the operating table. At the same time, Knauerhaze’s eyes began tо rapidly flick from the left to right, a condition known as nystagmus. At that point, Dr. Allen terminated the surgery and packed Knauerhaze’s ear .with gel foam. In addition, Dr. Allen saw Knauerhaze a week after the surgery on September 27, 1999, for a follow-up appointment. Dr. Allen’s notes from this appointment indicated that he removed the packing from Knauerhaze’s ear and that he was still very dizzy. Dr. Allen also indicated that Knauerhaze’s hearing was still very bad, that he had mild spontaneous nystagmus to the right, and there was a purulent discharge from the ear.
At trial, Knauerhaze called Dr. Ralph Nelson as an expert witness. Dr. Nelson looked at the operative report and notes of Dr. Allen as well as other medical records and a surveillance tape taken of the plaintiff to make his opinion. Dr. Nelson testified that Dr. Allen was negligent in not properly sizing the wire loop of the prosthesis to fit over Knauerhaze’s large incus bone. Dr. Nelson explained that a subluxed incus becomes totally flaccid and loose and it is significantly more difficult to place the prosthesis loop over a subluxed incus. In Dr. Nelson’s opinion, a reasonably well-qualified ear surgeon would have terminated the surgery after subluxing the incus and would have allowed it to heal over a period of months before making any further attempts. According to Dr. Nelson, a prosthesis should not bе attached to a subluxed incus because the prosthesis can then go too far into the inner ear and cause damage.
Dr. Nelson also testified that Dr. Allen was negligent in failing to initially open the prosthesis loop wider after noting the large size of Knauerhaze’s incus. He further testified that if the prosthesis loop does not initially go over the incus with ease, it should be removed and resized to fit over the bone.
Dr. Nelson acknowledged that the act of subluxing the incus did not, in itself, cause any damage to the nerves of the inner ear. However, Dr. Nelson testified that the retching, sweating, nausea, vomiting, and nystagmus that occurred after Dr. Allen had made several unsuccessful attempts to place the prosthesis loop over the incus were signs of inner ear damage. Furthermore, in Dr. Nelson’s opinion, if Dr. Allen had stopped the surgery immediately after subluxing the incus, Knauerhaze would not have had any further injury to his inner ear and no permanent problems.
The defendant’s expert, Dr. Thomas Haberkamp, based his testimony on the same documents as Dr. Nelson and, in addition, he examined Knauerhaze on February 27, 2002. Dr. Haberkamp testified that Dr. Allen complied with the applicable standard of care and was not negligent in operating on the plaintiff. According to Dr. Haberkamp, subluxing the incus is a known and accepted complication of the surgery аnd does not amount to negligence. Dr. Haberkamp further testified that although it is more difficult to place a prosthesis loop over a subluxed incus, it is not negligent to do so, and it is actually the best way to stabilize a flaccid incus. Additionally, according to Dr. Haberkamp, Dr. Allen’s attempts to place the prosthesis loop over the subluxed incus did not cause the complications that followed. Rather, Dr. Haberkamp opined that Knauerhaze’s complications were caused by labyrinthitis, which is an inflamation of the inner ear that can be caused by infection or through the introduction of blood into the inner ear. Dr. Haberkamp further testified that labyrinthitis can occur in the absence of negligence and that because blood is always incident to ear surgery, it is always possible for it to travel from the middle ear to the inner ear and cause irritation. Knauerhaze’s symptoms of retching, sweating, nausea, vomiting and nystagmus during the surgery were consistent with labyrinthitis, according to Dr. Haberkamp, as was the purulent discharge noted by Dr. Allen in the postoperative period.
Knauerhaze’s original complaint dated September 8, 2000, contained the following allegation as count II, paragraph 1:
“At all times relevant to this cause of action, Defendant, George W. Allen, M.D., was and is a physician licensed in Illinois and practiced in the field of otolaryngology and he was an authorized agent, servant and/or employee of George W Allen, M.D., S.C., an Illinois corporation located in Chicago, Cook County, Illinois.”
Defendants admitted this allegation in their answer. However, defendants denied count II, paragraph 2, which stated as follows:
“At all times relevant to this cause of action, Mark Knauerhaze, was under the care and treatment of George W. Allen, M.D., S.C., through its duly authorized agent, George W. Allen, M.D., for purposes of receiving medical care and treatment.”
On May 22, 2003, Knauerhaze amended his complaint to properly recite the remaining defendants and to conform the allegations to Supreme Court Rule 213 (134 Ill. 2d R. 213) opinions that were disclosed during pretrial discovery. The amended complaint contained an allegation identical to the allegation in count II, paragraph 1, from the first complaint. However, in its answer to the amended complaint, Allen Corporation did not simply admit this allegation as it previously had but answered as follows:
“George W. Allen, M.D., S.C. admits Dr. Allen was a physician licensed in Illinois and practiced in the field of otolaryngology and makes no answer to the allegations contained in [this allegation] of the Plaintiffs First Amended Complaint at Law because they call for a legal conclusion.”
In addition, Knauerhaze made a request pursuant to Supreme Court Rule 237 (134 Ill. 2d R. 237) for certain information to be produced at trial. Defendants filed their response to this request on May 23, 2003, at the beginning of trial. In that response, defendants stated: “Dr. George Allen was insured for $1 million and [Allen Corporation] was covered by Dr. Allen’s policy because he was the sole shareholder of the corporation.”
Defendants moved for a directed verdict at the close of plaintiffs case and again at the close of their case. The jury returned a verdict for the plaintiff in the amount $2,484,702. On July 3, 2003, defendants then filed a posttrial motion for judgment notwithstanding the verdict and for remittitur. The trial court denied in part and granted in part defendants’ posttrial motion. The court did not reduce the amount of judgment as sought but, rather, enforced section 2 — 1008 with respect to Oliver Nelson as special representative of Dr. Allen.
Subsequently, on July 23, 2003, Knauerhaze opened a probate estate for Dr. Allen and filed a petition for probate of will and for letters of administration. Letters of office were issued for Dr. Allen’s estate on September 9, 2003, and the Northern Trust Company (hereinafter Northern Trust) was appointed as the independent executor. On October 20, 2003, Knauerhaze also successfully moved to have Northern Trust substituted as defendant in lieu of the special representative, Oliver Nelson.
On аppeal, defendants argue that they are entitled to judgment notwithstanding the verdict because Knauerhaze failed to prove the cause element of the medical negligence cause of action. Defendants contend that Knauerhaze’s expert, Dr. Nelson, did not establish how Knauerhaze’s inner ear was damaged, but merely established a condition, rather than a cause of the injury. Alternatively, defendants argue that they are entitled to a new trial because the jury’s conclusions were against the manifest weight of the evidence because there was no proof of cause. Defendants next contend that the trial court erred in denying their motion for judgment notwithstanding the verdict with respect to Allen Corporation because plaintiff failed to provide any evidence at trial of an agency relationship between Dr. Allen and Allen Corporation that would support a judgment against Allen Corporation for vicarious liability.
Knauerhaze contends that his expert, Dr. Nelson, did provide testimony establishing that Dr. Allen’s negligence caused the injuries. In this regard, he appears to argue that the injury as evidenced by the various symptoms Knauerhaze presented during surgery was caused by Dr. Allen’s repeated unsuccessful attempts to place the prosthesis loop. Knauerhaze further contends that the defеndants’ answer to the first complaint constituted a judicial admission, and the fact of agency was, therefore, removed from issue. Knauerhaze further argues that defendants’ Rule 237 response admitted agency and should also be considered a judicial admission. Finally, Knauerhaze contends that defendants’ failure to submit agency jury instructions constituted a waiver of the issue.
Additionally, Knauerhaze cross-appeals the trial court’s determination to limit his recovery against Dr. Allen to the amount of his insurance coverage pursuant to section 2 — 1008(b). In this regard, Knauerhaze contends that section 2 — 1008 does not limit a plaintiff’s ability to pursue an unsatisfied judgment against a defendant decedent’s probate estate when there is a subsequent timely made claim against the estate. Knauerhaze additionally argues that limiting his ability to pursue a claim against Dr. Allen’s probate estate after the invocation of section 2 — 1008 constitutes an unconstitutional legislative remittitur.
II. ANALYSIS OF APPEAL
Defendants’ first contention on appeal is that the trial court erred in not granting their motion for judgment notwithstanding the verdict because Knauerhaze failed to prove an essential element of negligence. A judgement notwithstanding the verdict presents a question of law that appellate courts review de novo. McClure v. Owens Corning Fiberglas Corp.,
“A trial court cannot reweigh the evidence and set aside a verdict merely because the jury could have drawn different inferences or conclusions, or because the court feels that other results are more reasonable. [Citations.] Likewise, the appellate court should not usurp the function of the jury and substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence which did not greatly preponderate either way.” Maple,151 Ill. 2d at 452-53 ,603 N.E.2d at 512 .
Thus, the standard for obtaining a judgment notwithstanding the verdict is a “ ‘very difficult standard to meet,’ ” and limited to “ ‘extreme situations only.’ ” Jones v. Chicago Osteopathic Hospital,
The plaintiff in a negligence action must establish that the defendant owed a duty of care, that the defendant breached that duty, and that the plaintiff incurred injuries proximately caused by that breach. Espinoza v. Elgin, Joliet & Eastern Ry. Co.,
Defendants do not contest the existence of a duty owed by Dr. Allen to Knauerhaze. Nor do they not contest that Knauerhaze suffered some injury. Rather, they primarily contend that Knauerhaze failed to establish the element of proximate cause because his expert, Dr. Nelson, did not testify to any causal link between Dr. Allen’s actions and Knauerhaze’s subsequent injuries. Defendants additionally dispute the breach element of negligence by denying that Dr. Allen acted negligently in either subluxing the incus or continuing the surgery. However, their primary argument on appeal is on the element of cause. Defendants contend that continuing the surgery after subluxing the incus should not be viewed as the proximate cause of Knauerhaze’s injury because it merely created the condition in which the injury could occur. They further argue that even if Dr. Allen’s negligence was a cause in fact of the injury, it was not the legal cause. For these reasons, defendants argue, the jury did not have sufficient evidence to return a verdict for Knauerhaze.
The proximate cause element of negligence consists of both “cause in fact” and “legal cause.” Thacker v. UNR Industries, Inc.,
“A defendant’s conduct is a ‘cause in fact’ of the plaintiffs injury only if that conduct is a material element and a substantial factor in bringing about the injury. [Citations.] A defendant’s conduct is a material element and substantial factor in bringing about the injury if, absent that conduct, the injury would not have occurred.” Abrams v. City of Chicago,211 Ill. 2d 251 , 258,811 N.E.2d 670 , 675 (2004).
“Legal cause,” on the other hand, examines the foreseeability of the injury, or whether the injury is “of a type which a reasonable man would see as a likely result of his conduct.” Lee v. Chicago Transit Authority,
A plaintiff must generally prove the elements of a medical negligence cause of action through medical expert testimony. See Seef v. Ingalls Memorial Hospital,
Although the question is a close one, the jury arguably had sufficient evidence to find that Dr. Allen’s negligence was the cause in fact of Knauerhaze’s injuries. The jury was presented with the testimony of two experts with generally conflicting opinions. However, as noted, our task is not to reweigh the evidence and make our own determinations. Maple,
Although Dr. Haberkamp disputed Dr. Nelson’s opinions in these regards, such disputes are the very type that juries are expected to resolve through their considered weighing of the relative merit of the experts and their positions. Northern Trust Co.,
Defendants next contend, relying on Simmons v. Garces,
Defendants contend that the instant case is like Simmons in that even if Dr. Allen’s failure to stop the surgery was a cause in fact of Knauerhaze’s injury, it could not be the legal cause. They argue that because the Simmons court refused to hold the physician liable even though he may have been the cause in fact of the injuries, we should similarly refuse to hold them liable even though Dr. Allen’s negligence may have been the cause in fact of Knauerhaze’s injuries. However, the applicability of Simmons to the instant case is limited. Simmons cites the rule that proximate cause consists of both cause in fact and legal cause, and there is no question that this rule applies here. But the holding in Simmons was based on the jury affirmatively refuting a basic premise of the plaintiffs theory of causation through its answer to a special interrogatory and thereby negating the possibility that the defendant’s negligence was the legal cause of the death. The jury in the instant case made no such finding. Rather, the jury found defendants liable for negligence without specifically indicating the cause on which it based its determination. Thus, Simmons applies only insofar as it generally reflects the rule of law with regard to proximate cause.
As with cause in fact, the jury here had sufficient evidence on which to conclude that Dr. Allen’s attempts to place the improperly sized loop of the prosthesis on a subluxed incus was the legal cause of the injuries. As noted, a defendant will be held liable for negligent conduct when the injury caused is foreseeable, or, in other words, it is “of a type which a reasonable man would see as a likely result of his conduct.” Lee,
Thus, we conclude that when viewed in a light most favorable to Knauerhaze, the jury had sufficient evidence to conclude that Dr. Allen proximately caused the injury when he made several negligent attempts to place the prosthesis loop on the subluxed incus. However, even if the jury did not infer that any specific act of Dr. Allen caused Knauerhaze’s injuries, we still believe that its determination should stand based solely on the fact that the injury occurred during a portion of the surgery that was unwarranted.
Viewing the evidence in a light most favorable to Knauerhaze, we find that the jury had ample evidence on which to conclude that Dr. Allen’s negligent continuation of the surgery was the cause in fact of the injury. First, Dr. Nelson testified that it was a breach of the standard of care for Dr. Allen to continue the surgery after subluxing the incus. Next, both experts agreed that Dr. Allen’s notes indicated that blood entered the vestibule of Knauerhaze’s ear only after the incus was subluxed. Additionally, both experts agreed that Dr. Allen reported the symptoms of inner ear injury (the retching, vomiting, nausea, sweating, and nystagmus) as occurring contemporaneously with the blood entering the vestibule and after the incus was subluxed. Both experts agreed that the risk of internal bleeding is always present throughout the duration of any stapes surgery and there is a constant risk that blood will enter the inner ear so as to cause irritation or damage like that suffered by Knauerhaze. Thus, the jury was presented with expert testimony which it was free to accept that Dr. Allen was negligent in continuing the surgery, that the blood entered the inner ear after the point where continuation of the surgery was negligent, that the symptoms of inner ear injury occurred after the point continuation of the surgery was negligent, and that blood entering the inner ear can cause the type of injuries Knauerhaze sustained. Furthermore, Dr. Nelson testified that if Dr. Allen had terminated the procedure immediately after subluxing the incus, no injury would have resulted. Thus, Dr. Allen’s negligent continuation of the surgery extended the period that Knauerhaze would be exposed to the risks of surgery. Based on these testimonial facts, the jury could conclude that Dr. Allen’s negligent continuation of the surgery, without any additional specific act of negligence, was the cause in fact of Knauerhaze’s injuries because absent that conduct, blood would not have infiltrated the inner ear and caused injury. See Abrams,
Defendants contend that Knauerhaze’s expert merely established the condition in which the injury occurred rather than the cause of the injury. Defendants cite Thompson v. County of Cook,
“Illinois courts have long distinguished *** between condition and causation. *** ‘The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for causal agencies to act.’ If a defendant’s negligence does nothing more than furnish a condition by which injury is made possible, that negligence is not the proximate cause of injury.” Thompson,154 Ill. 2d at 383 ,609 N.E.2d at 294 , quoting Briske v. Village of Burnham,379 Ill. 193 , 199,39 N.E.2d 976 , 979 (1942), and citing Merlo v. Public Service Co.,381 Ill. 300 , 306,45 N.E.2d 665 , 675 (1942).
However, in First Springfield Bank & Trust v. Galman,
“When Briske, Merlo, and Thompson ask whether the defendant’s conduct was a cause of the injury or simply furnished a condition by which the injury was made possible, they are in effect asking whether the defendant’s conduct was a material and substantial element in bringing about the injury. Similarly, when Briske, Merlo, and Thompson ask whether the defendant might have reasonably anticipated the intervening efficient cause as a natural and probable result of his or her own negligence, they are in effect asking whether the intervening efficient cause was of a type that a reasonable person would see as a likely result of his or her conduct.” Galman,188 Ill. 2d at 259 ,720 N.E.2d at 1072 .
There is no contention in the instant case that Knauerhaze’s injuries were caused by an intervening third party as was the case in those cases that have employed the condition/cause distinction. See Briske,
Furthermore, the jury could have found that Dr. Allen’s negligent continuation of the surgery was also the legal cause of the injury. Both experts testified that inner ear injury is a risk of stapes surgery. Dr. Nelson testified to the statistical failure rate of stapes surgeries, stating that 10% fail to restore hearing and approximately 2% lead to further hearing impairment due to the development of scar tissue, infection, blood vessel spasm, irritation of the inner ear or a leak of inner ear fluid. Dr. Haberkamp testified that labyrinthitis is a known risk of stapes surgery, that it can be caused by blood entering the vestibule, and that it can be caused in the absence of negligence. However, Dr. Haberkamp did not put a statistical limit on the frequency of this known complication. Thus, there was sufficient evidence from which to infer that any reasonably well-qualified ear surgeon would have been aware that inner ear injury was a risk of ill-advisedly extending the duration of a stapedotomy and, moreover, that in this specific case, that risk would not have materialized had Dr. Allen, in fact, terminated the surgery when he should have.
Although the statistical probability that stapes surgery will further impair hearing was generally established at 2% by Dr. Nelson, that statistic does not address whether those surgeries surveyed were negligently extended in time аnd lends itself, we believe, to a reasonable possibility that the actual likelihood of further impairment under such circumstances would exceed the 2% estimate. More overridingly, however, the extent to which a risk must be foreseeable to trigger liability should not be as significant where that particular risk is not essential to establish whether there is a breach of duty. The rationale that a harm must be reasonably foreseeable in order to satisfy the requirements of proximate cause so as to impose a duty and define its breach is to limit the extent to which a potential tortfeasor must regulate his conduct in order to avoid the possibility of injuring another. See generally W Keeton, Prosser & Keeton on Torts § 42, at 274 (5th ed. 1984). As a matter of policy, if the risk of injury is too remote it does not justify the regulation of a potential defendant’s conduct by imposing the burden of a duty to avoid that particular risk. However, that rationale requiring that an injury be likely would not be fully applicable to consequential damages where the duty of care was already breached for other reasons that satisfied the elements of proximate cause. Thus, in this case, the possibility of blood infiltrating the inner ear and damaging it through the continuation of surgery need not be as foreseeable since the duty and its breach were already defined by the fact that the surgery clearly extended beyond the point where it should have been aborted and, as Dr. Nelson testified, extending the surgery was “inviting a problem.”
In this case, the duty to abort the surgery was imposed by the professional standard of care, which sought to avoid unnecessary and possibly risky continued attempts to attach a prosthesis to a subluxed incus. As noted, Dr. Nelson testified that a “reasonably well-qualified surgeon would stop because things are starting to go bad, and to proceed is inviting a problem.” Thus, the jury was free to conclude that under the prevailing standard of care, the continuation of the surgery after the initial unsuccessful attempt was not only unnecessary, but was laden with risk. There can be no question under this test that the continuation of surgery under these circumstances constituted a breach of duty. Once the duty has been established and a breach has taken place, the consequential injuries to the inner ear resulting, not from the prosthesis pushing into the inner ear, but from a collateral consequence, namely, the flow of blood — a risk incidental to any ear surgery — became simply an element of damage rather than an increment in defining the duty. As such, the likelihood of its occurrence is of lesser import than it would be if that risk was incremental in defining the duty in the first instance.
This conclusion is all the more appropriate in this instаnce where the injury the standard of care was designed to avoid, namely, injury to the inner ear, is the same injury that actually occurred. Even though, according to the testimony of Dr. Nelson, the standard of care requiring the termination of stapes surgery when the incus is subluxed focused on the possible risk of the penetration of the prosthesis rather than blood leakage, which was more likely to account for the injury in this case since there is no evidence that the prosthesis was ever attached, it does not seem an undue burden to impose liability for damages that were consequential to Dr. Allen’s breach of duty under these circumstances. We note, too, that although legal cause is generally defined by foreseeability (Lee,
Defendants alternatively contend that the trial court erred in failing to grant them a new trial because the verdict was against the manifest weight of the evidence. Defendants reiterate the substantive arguments made in their appeal of the denial of their motion for judgment notwithstanding the verdict. A motion for a new trial, however, is subject to different standards at both the trial and appellate levels. A trial court should grant a new trial if, in the exercise of its discretion, it finds that the verdict is against the manifest weight of the evidence. Maple,
Defendants next argue that the trial court erred in denying judgment notwithstanding the verdict or directing a verdict in favor of Allen Corporation because there was no evidence presented at trial to show that Dr. Allen was acting as an agent of Allen Corporation when he performed the surgery. Knauerhaze first contends that defendants’ answer to count II, paragraph 1, constituted a judicial admission to the agency relationship that could not later be denied. Defendants contend that their original answer did not constitute evidence of agency because it was superseded by their answer to Knauerhaze’s amended complaint and was never admitted into evidence at trial.
As a general rule, a statement of fact that has been admitted in a pleading is a judicial admission and is binding on the party making it. State Security Insurance Co. v. Linton,
In this case, all of the relevant pleadings were unverified. In their answer to Knauerhaze’s amended complaint, defendants refused to answer the allegation that Dr. Allen was, “at all times relevant,” an agent of Allen Corporation because it called for a legal conclusion. Thus, defendants’ original answer to Knauerhaze’s original complaint lost its status as a judicial admission once that pleading was amended. See Yarc,
Knauerhaze next contends that defendants’ response to their Supreme Court Rule 237 notice to produce constituted a judicial admission of agency and that the trial court was correct in denying defendants’ posttrial motion on this basis. As noted, in that response, defendants stated: “Dr. George Allen was insured for $1 million and [Allen Corporation] was covered by Dr. Allen’s policy because he was the sole shareholder of the corporation.”
As noted, judicial admissions are formal concessions or stipulations that withdraw a fact from issue and dispense of the need of proof of the fact. J. Strong, McCormick on Evidence § 254, at 142 (4th ed. 1992). As such, to constitute a judicial admission, the admission must clearly and unequivocally admit to the fact that is being removed from issue. See Young v. Pease,
“Agency is a consensual, fiduciary relationship between two legal entities created by law, where the principal has the right to control the activities of the agent, and the agent has the power to conduct legal transactions in the name of the principal.” Caligiuri v. First Colony Life Insurance Co.,
Knauerhaze alternatively argues that if we find that no proof of agency was presented at trial, we should remand pursuant to our power under Supreme Court Rule 366 (155 Ill. 2d R. 366) to the trial court for the purpose of taking more evidence. Knauerhaze points out that in response to defendants’ motion for directed verdict, he alternatively asked for leave to reopen the case and have the defendants’ original answer read to the jury. The trial court, however, denied defendants’ motion, finding that agency was established by the Rule 237 response and that it was unnecessary to reopen the case for more evidence.
Supreme Court Rule 366(a) enumerates the powers of the reviewing courts, which they may exercise in their discretion, including the powers to
“(1) exercise all or any of the powers of amendment of the trial court;
(3) order or permit the record to be amended by correcting errors or by adding matters that should have been included;
(4) draw inferences of fact; and
(5) enter any judgment and make any order that ought to have been given оr made, and make any other and further orders and grant any relief, including a remandment, a partial reversal, the order of a partial new trial, the entry of a remittitur, or the enforcement of a judgment, that the case may require.” 155 111. 2d R. 366(a).
In support of his argument to remand, Knauerhaze cites to Inter-Insurance Exchange of the Chicago Motor Club v. Employers Mutual Casualty Co.,
Knauerhaze contends that the instant case is like Inter-Insurance Exchange of the Chicago Motor Club in that remanding for further evidence does not amount to giving him a second day in court because, as the court in that case stated, “the concept of ‘a day in court’ is not to shut the parties off, but on the contrary to permit the parties to offer all relevant evidence which the court requires to reach an accurate decision and to do justice.” Inter-Insurance Exchange of the Chicago Motor Club,
However, based on the circumstances of this case, we do not deem it appropriate to exercise our discretionary power under Supreme Court Rule 366 to remand this case so that Knauerhaze can prove agency. In Geaslen v. Berkson, Gorov & Levin, Ltd.,
In contrast, in the instant case, Knauerhaze was clearly put on notice that agency was being put back in issue by defendants’ answer to his amended complaint. Although that answer did not deny the existence of an agency relationship, it refused to answer the allegation because it called for a legal conclusion. Thus, the answer clearly notified Knauerhaze that defendants were not going to concede the agency issue and that Knauerhaze would have to prove it. Moreover, unlike in Geaslen, Knauerhaze did have a “meaningful opportunity” to address the deficiency of his case because he had notice of the issue and the opportunity to proffer the defendants’ original answer, which admitted agency, as an evidentiary admission at trial. Thus, contrary to Knauerhaze’s contentions and reliance on Inter-Insurance Exchange of the Chicago Motor Club, a remand would, in fact, amount to a second day in court. Moreover, we note that in contrast to Inter-Insurance Exchange of the Chicago Motor Club, a remand in the instant case would theoretically require the cumbersome process of reconvening a jury. For these reasons, we decline to remand pursuant to our Rule 366 discretionary power so that Knauerhaze can offer proof of agency.
Knauerhaze finally contends that defendants forfeited their right to appeal the agency issue by failing to submit agency jury instructions or failing to object to the lack of jury instructions. In support of this contention, Knauerhaze cites Ozik v. Gramins,
“[A] litigant waives the right to object later, on appeal, to instructions or verdict forms that were given to a jury, when the party fails to make a specific objection during the jury instruction conference or when the form is read to the jury. [Citations.] Additionally, even if the litigant properly objects to an instruction or verdict form, the litigant is still required to submit a remedial instruction or verdict form to the trial court.” Ozik,345 Ill. App. 3d at 520 ,799 N.E.2d at 885 .
However, Ozik does not apply to the present situation because defendants do not object on appeal to jury instructions or verdict forms; rather, they contend that Knauerhaze failed to prove an agency relationship through which Allen Corporation can be held vicariously liable for Dr. Allen’s negligence. See Ozik,
Defendants contend that their motion for judgment notwithstanding the verdict or, alternatively, their motion for a new trial preserved the agency issue for appeal. A motion for judgment notwithstanding the verdict preserves for appeal the question “as to whether, in consideration of all the evidence presented, there [was] any evidence which tends to support the verdict,” and a motion for a new trial may preserve “matters concerning the trial’s outcome where specifically raised in the motion.” Forrester v. Patrick,
III. ANALYSIS OF CROSS-APPEAL
Knauerhaze cross-appeals the trial court’s interpretation and subsequent enforcement of section 2 — 1008(b) with respect to Oliver Nelson, special representative of Dr. Allen, and Northеrn Trust, substitute special representative of Dr. Allen. In this regard, Knauerhaze argues that the language in section 2 — 1008(b) that limits the amount of recovery under the section to the proceeds of any liability insurance does not prohibit him from making a subsequent claim against the decedent’s probate estate for the remainder of his judgment. See 735 ILCS 5/2 — 1008(b) (West 2004). He next contends that the Probate Act, and not section 2 — 1008, which is part of the Code of Civil Procedure, governs his claim against Dr. Allen’s estate. Knauerhaze finally contends that an interpretation of section 2 — 1008 that prohibits his ability to pursue his claim against the probate estate amounts to an unconstitutional legislative remittitur.
Section 2—1008(b) provides:
“(b) Death. If a party to an action dies and the action is one which survives, the proper party or parties may be substituted by order of court upon motion as follows:
(2) If a person against whom an action has been brought dies, and the cause of action survives and is not otherwise barred, his or her personal representative shall be substituted as a party. If no petition has been filed for letters of office for the deceased’s estate, the court, upon the motion of a person bringing an action and after the notice to the party’s heirs or legatees as the court directs and without opening an estate, may appoint a special representative for the deceased party for the purposes of defending the action. If a party elects to have a special representative appointed under this paragraph (2), the recovery shall be limited to the proceeds of any liability insurance protecting the estate and shall not bar the estate from enforcing any claims that might have been available to it as counterclaims.” 735 ILCS 5/2 — 1008(b) (West 2004).
Statutory interpretation presents a question of law that we review de novo. Quad Cities Open, Inc. v. City of Silvis,
We note at the outset of our interpretation of section 2 — 1008(b) that the parties have not brought any case to our attention, nor, for that matter, have we have found any case, that has specifically dealt with the effect of the limitation in section 2 — 1008(b) to liability insurance on subsequent claims against the decedent’s estate. Thus, the issue is one of first impression for this court. Looking solely to the plain language of this section (Balmoral Racing Club,
Furthermore, this plain reading of section 2 — 1008(b) complies with the apparent purpose of limiting the amount recoverable under this section. Section 2 — 1008(b) allows a plaintiff to proceed with his claim against a defendant who dies after the suit is filed without requiring that a probate estate be opened and consequently without invoking the protection and supervision of the probate court and Probate Act. 735 ILCS 5/2 — 1008(b) (West 2004). However, correspondingly, in allowing a plaintiff to proceed against a special representative, section 2 — 1008(b) limits the amount recoverable to the amount of liability insurance protecting the estate so as not to allow, under those circumstances, the financial depletion of the estate itself. 735 ILCS 5/2 — 1008(b) (West 2004). It is axiomatic that a plaintiff should not be able to collect a judgment without such protection and supervision under the special representative provision of section 2 — 1008(b) and then pursue that judgment against the entire estate by attempting to substitute the estate after the judgment was rendered. Cf. Hannah v. Gilbert,
The special representative provided for under section 2 — 1008 is not the same as the administrator of a probate estate. Hannah,
“The appointment of a special administrator does not trigger the issuance of letters of office or empower anyone to distribute the assets of the decedent’s estate in order to satisfy a judgment against the decedent. When a special administrator is appointed for the purpose of defending an action against the decedent, her statutory power is limited to defense of the action” Hannah,207 Ill. App. 3d at 90 ,565 N.E.2d at 297-98 .
Knauerhaze further contends that reading subsections 2 — 1008(b) and 2 — 1008(a) in conjunction supports his proposition.
Subsection 2 — 1008(a) states:
“(a) Change of interest or liability. If by reason of marriage, bankruptcy, assignment, or any other event occurring after the commencement of a cause or proceeding, either before or after judgment, causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after commencement of the action, it becomes necessary or desirable that any person not already a party be before the court, or that any person already a party be made party in another capacity, the action does not abate, but on motion an оrder may be entered that the proper parties be substituted or added, and that the cause or proceeding be carried on with the remaining parties and new parties, with or without a change in the title of the cause.” 735 ILCS 5/2 — 1008(a) (West 2004).
Knauerhaze emphasizes that subsection 2 — 1008(a) allows persons to be substituted where “any other event” results in a change of interest and it becomes “necessary or desirable” that the substitution take place, and that substitutions can be made “either before or after judgment.” Knauerhaze contends that the opening of Dr. Allen’s probate estate was an event that resulted in a change in interest or liability and permitted for the substitution of Dr. Allen’s estate for the special representative Oliver Nelson.
However, there is nothing in subsection 2 — 1008(a) that restores liability under subsection 2 — 1008(b) beyond the liability insurance simply because of a substitution, and the rationale for limiting recovery still applies. In that regard, we would further emphasize that a strict limitation to liability insurance as set forth in subsection 2 — 1008(b) has to prevail over the general substitution language of subsection 2 — 1008(a). Specific statutory language will take precedence over more general language relating to the same topic. Flynn v. Industrial Comm’n,
The fact that Knauerhaze had Northern Trust, the administrator of Dr. Allen’s newly opened probate estate, substituted for Oliver Nelson as special representative does not change the fact that Dr. Allen’s estate had no opportunity to defend its interests during the trial. Thus, it follows that the mere fact of substituting Northern Trust did not, as Knauerhaze would contend, circumvent subsection 2 — 1008(b)’s limitation on recovery to liability insurance. As noted by the trial court, the substitution of Northern Trust for Oliver Nelson was a non-substantive housekeeping matter that did not change the effect of subsection 2 — 1008(b)’s limitation to liability insurance. Knauerhaze did not object to this characterization of the substitution. Knauerhaze chose to invoke subsection 2 — 1008(b) and avoid the additional time and effort involved with opening a probate estate before trial; in so doing, he accepted the limitations of subsection 2 — 1008(b) and waived his right to later proceed against the very estate he opted to not include in the trial.
Knauerhaze finally contends that limiting his recovery against Dr. Allen to the liability insurance proceeds pursuant to section 2 — 1008(b) constitutes an unconstitutional legislative remittitur. With regard to this argument, we first note that there is a “strong presumption that legislative enactments are constitutional [citation] and one who asserts otherwise has the burden of clearly establishing the constitutional violation.” Bernier v. Burris,
In support of his contention, Knauerhaze cites Best v. Taylor Machine Works,
However, there are distinct differences between sections 2 — 1008 and 2 — 1115.1. Section 2 — 1115.1 applied to all causes of action based on negligence or products liability for noneconomic damages and limited the amount of recovery to $500,000. 735 ILCS 5/2 — 1115.1 (West 2004). Thus, section 2 — 1115.1 was automatically applicable to statutorily limit recovery for certain actions. 735 ILCS 5/2' — 1115.1 (West 2004). In contrast, section 2 — 1008(b) will only act to limit a litigant’s recovery when invoked by that party. 735 ILCS 5/2— 1008(b)(2) (West 2004). Knauerhaze had the option to open a probate estate during the pendency of litigation. Instead, he chose to invoke section 2 — 1008(b) to avoid the formalities inherent with probate; however, in making this choice, Knauerhaze implicitly agreed to the limits of the statute he invoked.
Moreover, Best distinguished between causes of action based in сommon law and those legislatively created and noted that, with regard to the latter, the legislature could constitutionally limit damages because it had created both the right and the remedy. Best,
IV CONCLUSION
For the foregoing reasons, we affirm the trial court’s denial of defendants’ motions for judgment notwithstanding the verdict and new trial on the issue of negligence; we reverse the trial court’s denial of defendants’ motions on the issue of agency; and we affirm the trial court on the application of section 2 — 1008.
Affirmed in part; reversed in part.
McBRIDE and O’MALLEY, JJ., concur.