White v. Lueth

No. 3--96--0073
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1996

ED WHITE and LINDA WHITE, ) Appeal from the Circuit Court
Individually and as Parents ) of the 14th Judicial Circuit,
and Next Friends of ADAM ) Rock Island County, Illinois
WHITE, a Minor, )
)
Plaintiffs-Appellants, )
)
v. ) No. 94--L--152
)
CHARLES J. LUETH III and )
NOLA M. LEUTH, d/b/a CHUCK'S )
APPLIANCES and GEIFMAN FOOD )
STORES, INC., ) Honorable
) Dana R. McReynolds
Defendants-Appellees. ) Judge, Presiding

_________________________________________________________________

JUSTICE MICHELA delivered the opinion of the court:
_________________________________________________________________

Plaintiffs-appellants, Ed White and Linda White, individually
and as parents and next friends of Adam White, a minor
(plaintiffs), brought a negligence action against defendants-
appellees, Charles J. Lueth III and Nola M. Lueth, d/b/a Chuck's
Appliances and Geifman Food Stores, Inc., to recover damages for
injuries sustained to Adam White (Adam) when a truck driven by
Charles J. Lueth III (Lueth) collided with Adam while he was riding
his bicycle. The jury awarded plaintiffs $70,000.00 for medical
expenses and pain and suffering, but awarded zero dollars for
disability and disfigurement. The jury further found Adam 25
percent contributorily negligent and reduced the damages
accordingly. Plaintiffs' post-trial motion for a new trial was
denied. Plaintiffs now appeal arguing the jury's assessment of
damages was irreconcilably inconsistent and the jury's finding of
contributory negligence was contrary to law and against the
manifest weight of the evidence. For the reasons which follow, we
disagree and affirm.
On June 10, 1992, Adam and his friend, Jeramy Sanders, were
travelling by bicycle on a sidewalk in front of Chuck's Appliances
in the Ridgewood Shopping Center in Moline. At the same time, a
truck driven by Lueth was traversing a vacant lot which was
adjacent to Chuck's Appliances. Lueth, an employee of Chuck's
Appliances and son to owner Nola M. Lueth, was approaching the
sidewalk in front of Adam's path. Lueth testified he crossed the
sidewalk at a speed of five to eight miles per hour without
stopping or slowing to check for pedestrian traffic. As the truck
crossed the sidewalk, Adam's bicycle collided with the driver's
side door. Due to the obstruction of Chuck's Appliances, neither
Lueth nor Adam could see each other approaching the eventual point
of impact.
Lueth testified his truck was already on the sidewalk before
he saw Adam approaching. He further testified he saw Adam's head
turned to the right, at "about three o'clock," as Adam approached
the truck. Lueth stated that Adam's head turned towards the truck
just prior to impact. Lueth also stated that Adam was
approximately 13 feet from the truck when his bicycle first came
into view. Jeramy Sanders testified that he and Adam were
travelling at approximately five to ten miles per hour when Adam's
bicycle collided with the truck. Jeramy further stated that Adam
was looking straight ahead prior to the collision. Adam also
testified he was looking straight ahead prior to the collision. He
did not recall seeing the truck at all, nor does he remember
impact.
The collision knocked four teeth from Adam's mouth and broke
one tooth in half. One tooth was never recovered. Dr. C. Scott
Hlady, an oral and maxillofacial surgeon who attended to Adam's
injuries, secured a stainless steel bar in Adam's mouth to stable
his teeth. He re-implanted the recovered teeth by tying stainless
steel wire around the re-implanted teeth and attaching the wire to
the bar. Dr. Hlady testified via videotape evidence deposition
that Adam would get a fair amount of swelling around the mouth
during the healing process. He further testified that at least
two, and possible three teeth, would require replacement in the
future. According to Dr. Hlady, Adam would be restricted from
participating in any physical activity for approximately six weeks
after the accident. Also, Adam would be placed on a liquid diet
during that same time period. On cross-examination, Dr. Hlady
testified Adam sustained no permanent loss of function to his teeth
as a result of his injuries. Further, there would be no permanent
restrictions placed on Adam with regard to his diet and physical
activity. Also, according to Dr. Hlady, no complications arose
during the healing process.
Dr. Brent Ludens, a dentist specializing in prosthodontics,
examined Adam on June 28, 1994. Dr. Ludens, also testifying via
videotape evidence deposition, stated Adam would require an
implanted supported crown in the site of the lost tooth. Dr.
Ludens testified to the complex nature of the attachment and opined
as to a minimum six-month healing period. In Dr. Ludens' opinion,
the two teeth next to the missing tooth would have to be removed
with implants inserted within five to ten years. On cross-
examination, Dr. Ludens testified that if the above procedure were
performed, Adam would suffer no loss of function to his tooth nor
would there be any permanent restrictions placed on Adam's diet or
physical activity. Adam eventually received a replacement tooth.
Both Dr. Dale Fehr, an orthodontist, and Dr. Richard Eggar,
Adam's pediatric dentist, testified Adam would need braces because
of his injuries. Adam, in fact, wore braces from December, 1992
through November, 1993. Dr. Eggar further believed Adam would
eventually experience problems with bacteria and gum disease
because of bone loss around his teeth which occurred as a result of
the accident.
Adam testified he was not bothered by a resultant scar or his
physical appearance. Adam further testified that after he received
his new tooth, the mouth injury no longer affected his social life.
In fact, Adam testified he sometimes removes his tooth to serve as
an "ice breaker" at parties.
Prior to trial, the claims against Geifman Food Stores, Inc.
were settled. The jury returned a verdict against the remaining
defendants, Lueth and Chuck's Appliances, awarding plaintiffs
$70,000.00 for past and future medical expenses and pain and
suffering. However, the jury awarded zero dollars for
disfigurement and disability and found Adam 25 percent
comparatively negligent. Plaintiffs' post trial was denied.
Plaintiffs now appeal.
On appeal, plaintiffs first argue that a $70,000.00 award for
medical expenses and pain and suffering, without any award for
disfigurement and disability, makes the jury's assessment of
damages irreconcilably inconsistent. Plaintiff contends such a
discrepancy warrants a new trial on damages. Plaintiffs next argue
the finding of contributory negligence is not supported by the
record. We disagree with both contentions.
Turning to the first issue, plaintiffs direct us to a line of
cases which hold that an award for medical expenses without a
corresponding award for pain and suffering and/or disability and
disfigurement requires reversal per se. See Hinnen v. Burnett, 144
Ill. App. 3d 1038, 495 N.E.2d 141 (1986); Urban v. Zeigler, 261
Ill. App. 3d 1099, 634 N.E.2d 1237 (1994); Kumorek v. Moyers, 203
Ill. App. 3d 908, 561 N.E.2d 212 (1990); Slavin v. Saltzman, 268
Ill. App. 3d 392, 643 N.E.2d 1383 (1994). However, our supreme
court recently examined this line of cases and held that a jury may
award pain-related medical expenses and may also determine that the
evidence of pain and suffering was insufficient to support a
monetary award. Snover v. McGraw, 172 Ill. 2d 438, 448, 667 N.E.2d 1310, 1315 (1996). In rejecting the reversal per se rule, the
court emphasized that such a determination turns solely on the
facts of the case and that under certain circumstances, an award of
medical expenses without a corresponding award for pain and
suffering may be inappropriate. Snover, 172 Ill. 2d at 449, 667 N.E.2d at 1316. The court concluded by reaffirming the traditional
rule that a jury's assessment of damages is entitled to substantial
deference and that a ruling on a new trial is best made by the
trial court in a post-trial motion which will not be reversed
unless the trial court abuses its discretion. Snover v. McGraw,
172 Ill. 2d at 449, 667 N.E.2d at 1316.
In the instant case, the jury awarded damages for past and
future medical expenses and pain and suffering, but not for
disability and disfigurement. This situation is somewhat different
than Snover where the award was for pain-related medical expenses
only, and not pain and suffering. However, we find the reasons
more compelling in the present case to reject the reversal per se
rule. Snover stands for the proposition that, under the proper
circumstances, a jury may award no monetary figure for pain and
suffering when awarding damages for corresponding pain-related
medical expenses. Despite this apparent inconsistency, our supreme
court upheld a jury award as well within its sound discretion.
Here, we do not necessarily have a corresponding nexus between
disability and disfigurement and the other compensable damage
elements. While pain-related medication and treatment are
necessary to combat pain and suffering, disability speaks to a
"loss of a normal life" (Smith v. City of Evanston, 260 Ill. App.
3d 925, 631 N.E.2d 1269 (1994)) and disfigurement to an impairment
to beauty, symmetry or appearance (Rapp v. Kennedy, 101 Ill. App.
2d 82, 242 N.E.2d 11 (1968)). We therefore conclude that an award
for past and future medical expenses and pain and suffering,
without an award for disability and disfigurement is not reversible
per se.
Turning to the facts of the present case, both Dr. Hlady and
Dr. Ludens testified that Adam would experience no permanent loss
of function to his teeth and no permanent restriction in diet or
physical activity. Adam testified he was not bothered by a
resultant scar or his physical appearance. Adam further testified
that after he received his new tooth, the mouth injury no longer
affected his social life. Thus, we find the evidence sufficient to
support the jury verdict awarding no monetary amount for disability
and disfigurement and conclude the trial court did not abuse its
discretion by denying plaintiffs' post-trial motion for a new trial
on damages.
Plaintiffs next argue the jury's finding that Adam was
contributorily negligent is contrary to the law and against the
manifest weight of the evidence. A plaintiff is guilty of
contributory negligence when he fails to exercise that degree of
care which a reasonably prudent person would have exercised for his
own safety under the same or similar circumstances. Healy v.
Bearco Management, Inc., 216 Ill. App. 3d 945, 576 N.E.2d 1195
(1991); Reuter v. Kocan, 113 Ill. App. 3d 903, 446 N.E.2d 882
(1983). In the present case, there was conflicting testimony
presented as to where Adam was looking when he approached the open
field next to Chuck's Appliances. Faced with this conflict, the
jury was free to determine whether Adam was maintaining a proper
lookout or not. See Cates v. Kinnard, 255 Ill. App. 3d 952, 626 N.E.2d 770 (1994). Thus, we find no error in the jury's finding
that Adam was contributorily negligent.
Accordingly, the judgment of the circuit court of Rock Island
County is affirmed.
Affirmed.
HOLDRIDGE, P.J. and McCUSKEY, J., concur.