Black v. Laggren, No. 1-99-1451

1st District, May 2, 2000

SECOND DIVISION

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

This action resulted from an automobile accident that occurred when the car driven by defendant Robert Laggren collidedwith the rear of a stopped pickup truck being driven by plaintiff Mary Pavkovich. Plaintiff Diane Floros was a passenger inthe truck. A jury returned a verdict for defendant and against plaintiffs on liability. The plaintiffs appeal, contending that theevidence presented proved defendant's liability overwhelmingly. Plaintiffs also contend that the defense counsel madeimproper remarks that prejudiced the jury. The trial court refused to either grant plaintiffs motion for a directed verdict onthe issue of liability or enter a judgment n.o.v. or grant a new trial. We affirm.

BACKGROUND

On September 30, 1992, Diane Floros (Floros) was the passenger in a General Motors pickup truck driven by MaryPavkovich. Floros' brother, Tony Floros, was the owner of the truck. The two women were driving southbound onMcCormick Avenue, toward Oakton Street, in Skokie, Illinois. Pavkovich testified that, as they approached the intersection,traffic was stopped because of a red light. According to the plaintiffs, there were a number of cars in front of them, and theystopped approximately 200 feet from the intersection.

Robert Laggren was driving a car southbound on McCormick Avenue when his car collided with the rear of the truck.According to Laggren, he was looking down to adjust his radio prior to the accident. When he looked up, there was notenough time to avoid the collision.

Both plaintiffs testified that they were injured from the impact of the collision. Floros claimed loss of consciousness.Pavkovich exited the truck to assess its damage and to call the police. Pavkovich testified that she noticed extensive damageto the front area of Laggren's car and damage to the truck's bumper and taillights. Laggren testified that he asked theplaintiffs if they were hurt. They said no.

The paramedics arrived at the accident scene and checked the women. Both women signed waivers against medical adviceand drove home. They stated that they returned home to return the truck to Tony Floros, who was returning to Indiana thatevening.

The next morning the plaintiffs went to the emergency room at Edgewater Hospital. They were admitted for two days oftesting and observation. They were treated by Dr. Ojea, whom both knew. Dr. Rubinstein, an orthopedic surgeon, and Dr.Burnstine, a neurologist, also treated the plaintiffs during their stay.

After leaving the hospital, the plaintiffs received physical therapy at Edgewater, as requested by Dr. Ojea. On their own,they began seeing a chiropractor, Dr. Kazonis. Pavkovich later received treatment at Illinois Masonic Medical Center forswelling and pain in her chest area, which she attributed to injuries received during the collision. Pavkovich wassubsequently terminated from two jobs. She claims that she was terminated because the injuries sustained during theaccident prevented her from adequately performing her job duties.

ANALYSIS

I

Verdicts ought to be directed and judgements n.o.v. entered only in those cases in which all of the evidence, when viewed inits aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidencecould ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513 (1967). The plaintiffsargue that the evidence, when viewed in a light most favorable to Laggren, overwhelmingly favors the plaintiffs on theissue of liability. For the reasons that follow, we disagree and hold that the court did not err in refusing to grant either adirected verdict or a judgment n.o.v.

A plaintiff may recover in a negligence action only by proving each element of the action, i.e., the existence of a duty, abreach of that duty, an injury proximately resulting from the breach, and damages. Lucker v. Arlington Park Race TrackCorp., 142 Ill. App. 3d 872, 873, 492 N.E.2d 536, 538 (1986). As a driver who was following another vehicle, thedefendant, Laggren, had a duty to follow plaintiffs at a sufficient speed and distance so that he could stop or slow downsuddenly if necessary. A driver must also maintain a safe lookout for traffic ahead. Hickox v. Erwin, 101 Ill. App. 3d 585,588, 428 N.E.2d 520, 522 (1981). It is disputed as to why the plaintiffs were stopped, but this does not negate Laggren'sduty to maintain a lookout and to be prepared to stop suddenly. In our view Laggren breached his duty of care. This isbecause he admitted that he was looking down to adjust his radio, for however short a time, and was not keeping a properlookout at the time the collision occurred.

However, although Laggren breached his duty of care, based on the evidence, we cannot say that a reasonable jury couldnot find against the plaintiffs on the issue of liability. This is because weighing the evidence and deciding the credibility ofthe witnesses are the province of the jury. People ex rel. Brown v. Baker, 88 Ill. 2d 81, 85, 430 N.E.2d 1126, 1127 (1981).And, the record in this case establishes that numerous factual issues were raised about the nature and extent of the injuriessuffered by the plaintiffs. Also, plaintiffs' credibility was at issue.

Specifically, the record in this case established that, after the accident, Laggren testified that he asked the plaintiffs if theywere hurt, and both replied no. After being treated by the paramedics, the plaintiffs refused to seek medical treatment anddecided to return the truck to Mr. Floros. After returning the truck, the plaintiffs did not immediately seek medicaltreatment, instead waiting until the next morning before going to the hospital. Both plaintiffs claimed to have suffered aconcussion during the accident, yet Pavkovich was able to drive home, and neither required medical attention until thefollowing day.

When plaintiffs went to the emergency room, the notes taken by the attending nurses reflected that neither complained of aloss of consciousness, nausea or dizziness. Conversely, the charts stated both were alert and oriented. Then too, afterexamining the plaintiffs, the emergency room physician was ready to discharge them. However, without examining theplaintiffs, Dr. Ojea requested they be admitted into the hospital.

Although plaintiffs' witness, Dr. Burnstine, a neurologist, diagnosed the plaintiffs as having concussions, his diagnosis wasbased mostly on information supplied to him by the plaintiffs. Both plaintiffs complained to him of nausea and dizziness,which are symptoms of a concussion, and Floros complained of losing consciousness.

Both plaintiffs also complained of neck and back pains, and Pavkovich complained of numbness and weakness in her leftarm. The tests and X rays that were performed on the plaintiffs, objective measuring sticks, were negative. While it is truethat the tests performed would not have shown soft tissue injuries, the results of the tests given conformed with thedefendant's contention that no injury was caused to either plaintiff as a result of this accident.

Then, too, a few months after the accident, Dr. Ojea signed a letter that stated Pavkovich was able to lift residents or heavyobjects in the nursing home as required for completion of her job. Yet, Pavkovich claimed she was terminated because shewas physically unable to adequately perform her job duties because of her injuries. Also, the defense presented a letter inwhich Pavkovich states that she resigned because of conflicts with her supervisor and not for medical reasons.

The photographs taken of the truck after the accident revealed little if any damage to the vehicle. Pavkovich, when lookingat the photographs, was unable to identify any substantial damage to the truck. Also, there was no evidence in the recordthat reflected that the truck needed any repairs.

II

The standard of review where the trial court has denied a motion for a new trial is whether the jury verdict is against themanifest weight of the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508, 512 (1992). A verdict is againstthe manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury areunreasonable, arbitrary and not based upon any of the evidence. Gustafson, 151 Ill. 2d at 454, 603 N.E.2d at 512. It is thejury's function to weigh contradictory evidence, judge the credibility of the witness, and draw the ultimate conclusion fromthe facts. Guzeldere v. Wallin, 229 Ill. App. 3d 1, 15, 593 N.E.2d 629, 639 (1992). After reviewing the record in the instantcase, we hold the verdict was not against the manifest weight of the evidence. Accordingly, the trial court did not err indenying a motion for a new trial.III

During defense counsel's closing argument, counsel argued there were no cars in front of the plaintiffs prior to the accident,implying the plaintiffs stopped suddenly in the middle of the street. The plaintiffs argue that these comments wereprejudicial and warrant a new trial because they suggested that the plaintiffs were contributorily negligent. The courtgranted the plaintiffs summary judgment, striking Laggren's affirmative defense of contributory negligence, and banned thedefense from mentioning or suggesting contributory negligence during trial. The plaintiffs argue that this order wasdisregarded during the defense's closing argument.

During the trial, both sides argued about the existence of the cars in front of the plaintiffs. Comments on evidence duringclosing argument are proper if they are either proved by direct evidence or are a fair and reasonable inference from the factsand circumstances proven. Wallin, 229 Ill. App. 3d at 13, 593 N.E.2d at 638. Both parties gave conflicting testimony as tothe existence of the cars in front of the plaintiffs. Pavkovich claimed that, when she opened her eyes after the accident, thecars were moving forward. Laggren claimed that he did not see any cars in front of the plaintiffs. Defense counsel'scomments were based on testimony that was heard during trial.

The defense argued that there were no cars in front of the plaintiffs in an attempt to show that because the plaintiffs stoppedsuddenly it was not unreasonable for Laggren to have hit them. A rear-end collision does not create an automatic inferenceof negligence; it must be determined if the defendant was acting reasonably or if the collision was unavoidable. Korpalski v.Lyman 114 Ill. App. 3d 563, 566, 449 N.E.2d 211, 214 (1983). An attorney is permitted wide latitude in closing argument.For a judgment to be reversed, a closing argument must be clearly improper and prejudicial. Wallin, 229 Ill. App. 3d at 13,593 N.E.2d at 638.

During closing argument, defense counsel stated: