Orava v. Plunkett Furniture Co.
Annotate this Case
No. 2--97--0819
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
KELLY A. ORAVA, a/k/a Kelly A. ) Appeal from the Circuit Court
Sharpenter, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 95--L--220
)
PLUNKETT FURNITURE COMPANY and )
CHARLES J. SAMARS, )
)
Defendants-Appellants )
) Honorable
(Robert A. Sharpenter, ) Patrick J. Dixon.
Plaintiff). ) Judge, Presiding.
_________________________________________________________________
JUSTICE INGLIS delivered the opinion of the court:
Plaintiff, Kelly Sharpenter, was injured when defendant Charles
Samars, a truck driver for defendant Plunkett Furniture Company,
backed his truck into plaintiff's vehicle. A jury awarded plaintiff
damages for the aggravation of a preexisting condition and past
medical expenses but nothing for pain and suffering. (The jury also
denied plaintiff's husband, Robert Sharpenter, recovery for loss of
consortium.) The trial court granted plaintiff's motion for a new
trial on damages only. On appeal (see 166 Ill. 2d R. 306(a)(1)),
defendants argue that the trial court abused its discretion because
the jury's damage award was consistent with the evidence. We agree,
reverse the grant of the new trial on damages, and reinstate the
original judgment on the jury's verdict.
Plaintiff has not filed a brief on appeal. We may not reverse
summarily merely because the appellee has filed no brief. First
Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). However, a reviewing court need not serve as the
appellee's advocate or search the record for reasons to sustain the
judgment. Talandis, 63 Ill. 2d at 133; Plooy v. Paryani, 275 Ill.
App. 3d 1074, 1088 (1995). Thus, unless the record is simple and
the claimed issues are such that we can easily decide them without
an appellee's brief, we may reverse if the appellant's brief
demonstrates prima facie error and the brief's contentions find
support in the record. Talandis, 63 Ill. 2d at 133; Plooy, 275 Ill.
App. 3d at 1088; Cala v. Gerami, 137 Ill. App. 3d 936, 938 (1985).
We believe defendants' prima facie case of trial court error finds
support in the record on appeal.
The jury awarded plaintiff damages of $1,468.99 for medical
expenses and an equal amount for the aggravation of a preexisting
condition. However, the jury specifically refused to award
plaintiff anything for pain and suffering, disability, or lost
salaries or profits. With a reduction by 33% to reflect plaintiff's
negligence, the final award was $1,945.68.
Plaintiff moved for a new trial on damages only, asserting that
(1) the verdict was irreconcilably inconsistent in awarding past
medical expenses but nothing for pain and suffering; and (2) the
verdict demonstrated that the jury ignored a proved element of
damages, that being the new whiplash injury that even defendants'
expert medical witness conceded plaintiff had suffered. Defendants
responded that, under Snover v. McGraw, 172 Ill. 2d 438 (1996),
there was no per se inconsistency between the award of medical
expenses and the denial of pain and suffering. Defendants asserted
further that the jury could find that most of plaintiff's claimed
injuries had no objective medical findings to support them and
actually resulted from her myofascial pain syndrome, a chronic
condition which predated the accident.
The trial court granted plaintiff a new trial on damages. The
court did not explain its decision. After defendants' motion to
reconsider was denied, we granted them leave to appeal. On appeal,
defendants reiterate that the trial court erred in overturning a
damage award that was internally consistent and was within the range
of the evidence. For the reasons that follow, we agree.
We recognize that whether to grant a new trial is a matter for
the trial court's discretion and that a court of review should not
disturb the trial court's decision absent an abuse of that
discretion. Snover, 172 Ill. 2d at 449; Maple v. Gustafson, 151 Ill. 2d 445, 455 (1992). However a jury's award of damages is also
entitled to great respect, and a court should not upset the jury's
exercise of its prerogative unless the damage award ignores a proved
element of damages or is absolutely irreconcilable. Snover, 172 Ill. 2d at 447; Tedeschi v. Burlington Northern R.R. Co., 282 Ill.
App. 3d 445, 448-49 (1996). Thus, we examine the trial court's
decision to determine whether it abused its discretion by nullifying
a damage award that does not ignore a proved element of damages or
contain an irreconcilable inconsistency.
As defendants observe, our supreme court in Snover held that
there is no inherent inconsistency in awarding damages for medical
expenses but not for pain and suffering. Where, as in Snover, the
evidence of pain and suffering is not strong, the jury may conclude
that the plaintiff's injury was so slight that any pain or suffering
was de minimis and need not result in a separate award. Snover, 172 Ill. 2d at 448-49. However, the award of medical expenses without
a corresponding award for pain and suffering may be inconsistent
[i]f the evidence clearly indicates that [the] plaintiff suffered
serious injury[.] Snover, 172 Ill. 2d at 449.
We agree with defendants that, under Snover, there is no
inherent inconsistency between the award of medical expenses and the
refusal to award damages for pain and suffering. As in Snover,
there was ample reason for the jury to discount much of plaintiff's
testimony about the severity or persistence of the injuries that
resulted from the accident. From the testimony of Samars and
plaintiff herself, the jury could find that the impact was
relatively slight and that plaintiff suffered little if any pain at
the time. Moreover, the jury was entitled to credit defendants'
medical expert, who concluded that (1) plaintiff's treating doctors
(other than those in the hospital emergency room) found no objective
signs of injury that correlated with her various complaints of pain;
(2) these symptoms were therefore merely a continuation of
plaintiff's long-standing myofascial pain syndrome, a condition
characterized by subjective evidence of pain in a variety of areas
that show no objective signs of injury; and (3) the accident did no
more than cause a short-term cervical strain, which necessitated
emergency treatment (in part as a precaution) and resolved itself
within about two months of the accident.
As importantly, the alleged inconsistency must be viewed in
context. The jury found that plaintiff aggravated a preexisting
condition that itself consisted of pain without objective findings
of injury. In awarding damages under the preexisting condition
heading, the jury was in effect compensating plaintiff for a
specific type of pain and suffering--that which the accident
increased or revived but did not create independently of plaintiff's
already established pain syndrome. The jury might well have decided
that a separate award for pain and suffering was improper because
plaintiff suffered only minimal new pain that she would not have
experienced had she been perfectly healthy before defendants' truck
hit hers. The jury could also conclude that plaintiff's whiplash
injury caused minimal new pain and that a portion of the medical
expenses the jury awarded fully compensated her for this temporary
harm.
There is an additional reason the jury's award of medical
expenses is consistent with its refusal to award damages for pain
and suffering. The jury had reason to find that not all plaintiff's
medical expenses were pain-related. Defendants' expert conceded
that plaintiff's trip to the hospital emergency room was a
reasonable precautionary measure. Plaintiff went to the emergency
room in large part to find out whether and how badly she was hurt.
Even had the hospital personnel found no injuries at all, this
expense would have been caused by defendants' negligence.
We conclude that defendants have made a prima facie case of
trial court error and that the record supports their contention that
the jury's verdict was proper. Therefore, pursuant to Supreme Court
Rule 366(a)(5)(155 Ill. 2d R. 366(a)(5)), we reverse the trial
court's order granting plaintiff a new trial and reinstate the
judgment on the jury's verdict.
Reversed; judgment reinstated.
McLAREN and HUTCHINSON, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
KELLY A. ORAVA, a/k/a Kelly A. ) Appeal from the Circuit Court
Sharpenter, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 95--L--220
)
PLUNKETT FURNITURE COMPANY and )
CHARLES J. SAMARS, )
)
Defendants-Appellants )
) Honorable
(Robert A. Sharpenter, ) Patrick J. Dixon.
Plaintiff). ) Judge, Presiding.
_________________________________________________________________
JUSTICE INGLIS delivered the opinion of the court:
Plaintiff, Kelly Sharpenter, was injured when defendant Charles
Samars, a truck driver for defendant Plunkett Furniture Company,
backed his truck into plaintiff's vehicle. A jury awarded plaintiff
damages for the aggravation of a preexisting condition and past
medical expenses but nothing for pain and suffering. (The jury also
denied plaintiff's husband, Robert Sharpenter, recovery for loss of
consortium.) The trial court granted plaintiff's motion for a new
trial on damages only. On appeal (see 166 Ill. 2d R. 306(a)(1)),
defendants argue that the trial court abused its discretion because
the jury's damage award was consistent with the evidence. We agree,
reverse the grant of the new trial on damages, and reinstate the
original judgment on the jury's verdict.
Plaintiff has not filed a brief on appeal. We may not reverse
summarily merely because the appellee has filed no brief. First
Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). However, a reviewing court need not serve as the
appellee's advocate or search the record for reasons to sustain the
judgment. Talandis, 63 Ill. 2d at 133; Plooy v. Paryani, 275 Ill.
App. 3d 1074, 1088 (1995). Thus, unless the record is simple and
the claimed issues are such that we can easily decide them without
an appellee's brief, we may reverse if the appellant's brief
demonstrates prima facie error and the brief's contentions find
support in the record. Talandis, 63 Ill. 2d at 133; Plooy, 275 Ill.
App. 3d at 1088; Cala v. Gerami, 137 Ill. App. 3d 936, 938 (1985).
We believe defendants' prima facie case of trial court error finds
support in the record on appeal.
The jury awarded plaintiff damages of $1,468.99 for medical
expenses and an equal amount for the aggravation of a preexisting
condition. However, the jury specifically refused to award
plaintiff anything for pain and suffering, disability, or lost
salaries or profits. With a reduction by 33% to reflect plaintiff's
negligence, the final award was $1,945.68.
Plaintiff moved for a new trial on damages only, asserting that
(1) the verdict was irreconcilably inconsistent in awarding past
medical expenses but nothing for pain and suffering; and (2) the
verdict demonstrated that the jury ignored a proved element of
damages, that being the new whiplash injury that even defendants'
expert medical witness conceded plaintiff had suffered. Defendants
responded that, under Snover v. McGraw, 172 Ill. 2d 438 (1996),
there was no per se inconsistency between the award of medical
expenses and the denial of pain and suffering. Defendants asserted
further that the jury could find that most of plaintiff's claimed
injuries had no objective medical findings to support them and
actually resulted from her myofascial pain syndrome, a chronic
condition which predated the accident.
The trial court granted plaintiff a new trial on damages. The
court did not explain its decision. After defendants' motion to
reconsider was denied, we granted them leave to appeal. On appeal,
defendants reiterate that the trial court erred in overturning a
damage award that was internally consistent and was within the range
of the evidence. For the reasons that follow, we agree.
We recognize that whether to grant a new trial is a matter for
the trial court's discretion and that a court of review should not
disturb the trial court's decision absent an abuse of that
discretion. Snover, 172 Ill. 2d at 449; Maple v. Gustafson, 151 Ill. 2d 445, 455 (1992). However a jury's award of damages is also
entitled to great respect, and a court should not upset the jury's
exercise of its prerogative unless the damage award ignores a proved
element of damages or is absolutely irreconcilable. Snover, 172 Ill. 2d at 447; Tedeschi v. Burlington Northern R.R. Co., 282 Ill.
App. 3d 445, 448-49 (1996). Thus, we examine the trial court's
decision to determine whether it abused its discretion by nullifying
a damage award that does not ignore a proved element of damages or
contain an irreconcilable inconsistency.
As defendants observe, our supreme court in Snover held that
there is no inherent inconsistency in awarding damages for medical
expenses but not for pain and suffering. Where, as in Snover, the
evidence of pain and suffering is not strong, the jury may conclude
that the plaintiff's injury was so slight that any pain or suffering
was de minimis and need not result in a separate award. Snover, 172 Ill. 2d at 448-49. However, the award of medical expenses without
a corresponding award for pain and suffering may be inconsistent
[i]f the evidence clearly indicates that [the] plaintiff suffered
serious injury[.] Snover, 172 Ill. 2d at 449.
We agree with defendants that, under Snover, there is no
inherent inconsistency between the award of medical expenses and the
refusal to award damages for pain and suffering. As in Snover,
there was ample reason for the jury to discount much of plaintiff's
testimony about the severity or persistence of the injuries that
resulted from the accident. From the testimony of Samars and
plaintiff herself, the jury could find that the impact was
relatively slight and that plaintiff suffered little if any pain at
the time. Moreover, the jury was entitled to credit defendants'
medical expert, who concluded that (1) plaintiff's treating doctors
(other than those in the hospital emergency room) found no objective
signs of injury that correlated with her various complaints of pain;
(2) these symptoms were therefore merely a continuation of
plaintiff's long-standing myofascial pain syndrome, a condition
characterized by subjective evidence of pain in a variety of areas
that show no objective signs of injury; and (3) the accident did no
more than cause a short-term cervical strain, which necessitated
emergency treatment (in part as a precaution) and resolved itself
within about two months of the accident.
As importantly, the alleged inconsistency must be viewed in
context. The jury found that plaintiff aggravated a preexisting
condition that itself consisted of pain without objective findings
of injury. In awarding damages under the preexisting condition
heading, the jury was in effect compensating plaintiff for a
specific type of pain and suffering--that which the accident
increased or revived but did not create independently of plaintiff's
already established pain syndrome. The jury might well have decided
that a separate award for pain and suffering was improper because
plaintiff suffered only minimal new pain that she would not have
experienced had she been perfectly healthy before defendants' truck
hit hers. The jury could also conclude that plaintiff's whiplash
injury caused minimal new pain and that a portion of the medical
expenses the jury awarded fully compensated her for this temporary
harm.
There is an additional reason the jury's award of medical
expenses is consistent with its refusal to award damages for pain
and suffering. The jury had reason to find that not all plaintiff's
medical expenses were pain-related. Defendants' expert conceded
that plaintiff's trip to the hospital emergency room was a
reasonable precautionary measure. Plaintiff went to the emergency
room in large part to find out whether and how badly she was hurt.
Even had the hospital personnel found no injuries at all, this
expense would have been caused by defendants' negligence.
We conclude that defendants have made a prima facie case of
trial court error and that the record supports their contention that
the jury's verdict was proper. Therefore, pursuant to Supreme Court
Rule 366(a)(5)(155 Ill. 2d R. 366(a)(5)), we reverse the trial
court's order granting plaintiff a new trial and reinstate the
judgment on the jury's verdict.
Reversed; judgment reinstated.
McLAREN and HUTCHINSON, JJ., concur.
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