Clarke v. Medley Moving and Storage

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State: Illinois

Court: 1st District Appellate

Docket No: 1-06-3072 Rel

Case Date: 03/07/2008

Preview:FIFTH DIVISION March 7, 2008

No. 1-06-3072 GARCIA CLARKE, as Executor of the Estate of George Clarke, Jr., Deceased, Plaintiff-Appellee, v. MEDLEY MOVING AND STORAGE, INC., and GREGORY GRIFFIN, Defendants-Appellants. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County No. 03 L 6457

Honorable John B. Grogan, Judge Presiding.

JUSTICE O'MARA FROSSARD delivered the opinion of the court: After a jury trial, defendants Medley Moving and Storage, Inc. (Medley), and Gregory Griffin were found liable in the survival claim for the pain and suffering George Clarke, Jr. (Clarke), endured prior to his death and the wrongful death claim for his four surviving children. On appeal, defendants contend: (1) the trial court erred in denying their motion for judgment notwithstanding the verdict on damages for loss of past and future gifts, benefits, goods and services; (2) the trial court erred in denying their motion for judgment notwithstanding the verdict on damages for pain and suffering; (3) the trial court erred by not including the modifier conscious in the jury instruction for compensation for pain and suffering; (4) the trial court erred in denying a new trial due to plaintiff's comments during closing argument concerning the special interrogatory; (5) the cumulative effect of allegedly prejudicial comments by plaintiff's counsel during closing argument deprived defendants of a fair trial; and (6) that remittitur should be

1-06-3072 entered because the record does not support the significant amounts awarded by the jury. For the reasons that follow, we affirm the judgment of the circuit court. BACKGROUND In May 2002, 83-year-old Clarke was crossing the street when he was struck by a truck driven by defendant Griffin and owned by defendant Medley. Clarke died of his injuries shortly after he was transported to a hospital. In 2003, plaintiff Garcia Clarke, individually and as independent executor of the estate of Clarke, sued defendants, alleging damages sustained by Clarke's estate under the Illinois Wrongful Death Act (740 ILCS 180/0.01 (West 2002)) and Survival Act (755 ILCS 5/27-6 (West 2002)). At trial, the witnesses' testimony established that the pedestrian-vehicle collision occurred at the intersection of Michigan Avenue and 95th Street in Chicago, Illinois. Griffin had driven the Medley 26-foot moving van west on 95th Street and was waiting in the left-turning lane to continue south on Michigan Avenue. Griffin turned left when his traffic signal was yellow and was driving south on Michigan Avenue when his van struck Clarke, who was crossing Michigan Avenue. Defendant Griffin testified that he was driving the van and accompanied by Medley employee George Thornton at the time of the collision. Griffin had an unobstructed view of the southwest corner of the intersection in question, and he did not see Clarke on the corner or in the street when Griffin was making his left turn. Griffin did not see Clarke until a second before the collision. According to Griffin, at the time of the impact with Clarke, the nose of Griffin's truck was south of the crosswalk, and the truck was heading straight southbound. Griffin applied his

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1-06-3072 brakes, but did not have time to slow his truck or maneuver around Clarke. Griffin testified that Clarke was outside the crosswalk when he was struck. Denise Watkins testified that she witnessed the collision while she was in her vehicle on Michigan Avenue and facing north. She was stopped at the traffic light and in the first vehicle in the left-hand turning lane, waiting to turn left onto 95th Street and proceed west. She saw Clarke walking east inside the crosswalk, from Watkins' left to her right. He was crossing with the green light or the "walk man." Clarke was walking very slowly but started to run across the road when he saw the light change. At the time of the collision, Watkins was involved in a conversation with her passengers. When Griffin's van struck Clarke, Watkins exited her vehicle to tend to Clarke. His eyes were open and moving to the right and left. He looked directly at Watkins and moved his lips to ask for help but made no sound. Clarke's body was shaking and his chest was moving very fast, as though he was having difficulty breathing. Watkins estimated that she was at the scene for 10 or 15 minutes. An ambulance arrived at the scene, and the police followed. Watkins did not identify herself to the paramedics or the police. No police officer spoke to Watkins except to ask her to move her vehicle. Fredella Robertson testified that she saw the collision from the front seat of Watkins' vehicle. Robertson corroborated Watkins' testimony, adding that she (Robertson) exited the vehicle and stood over Clarke while Watkins knelt beside him. Robertson also thought that Clarke was attempting to speak but she could not determine what he was trying to say. He was bleeding, gasping for air, and blood was running out of his mouth. Both Robertson and Watkins thought Clarke would expire at the scene.

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1-06-3072 Chicago police officer Derrick Jerry testified that Clarke was transported to the hospital before he (Officer Jerry) arrived at the scene. It was his normal procedure to speak with anyone at the scene who may have tended to the injured person, but he did not recall any people identifying themselves as witnesses. John Merlotti, M.D., a trauma surgeon, testified that he treated Clarke at the hospital. Clarke was a level one trauma patient, coming to the emergency room as a significantly injured victim. He could not communicate upon arrival. He had suffered a scalp laceration with blood oozing from his ears and nose, which was clinical evidence of a basilar skull fracture. A chest Xray revealed a large hemothorax. Paramedics gave a history of "diminished level of consciousness" at the scene of the accident. Dr. Merlotti testified that, upon arrival at the emergency room, Clarke's Glasgow coma score was three. That scoring system was used to characterize the level of consciousness of a patient with a head injury, and the scores ranged from 3 to 15. Clarke was not alert or awake. He exhibited no eye opening or verbal response, had no motor function, made no sounds, and did not withdraw from pain. Dr. Merlotti stated that although a Glasgow coma score of three did not mean there was no pain or suffering, a score that low so soon after the injury indicated that pain and suffering were unlikely. He explained that open eyes, without more, were an insufficient basis to reach an opinion about consciousness. Dr. Merlotti opined that, assuming the accuracy of Watkins' observations that Clarke was actually moving and verbalizing words, there potentially was a time period of pain and suffering. Dr. Merlotti, however, confirmed that there was no evidence Clarke was conscious from the time the paramedics arrived at the scene until the time of

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1-06-3072 Clarke's death. Dr. Merlotti testified that the injuries Clarke sustained, including rib fractures, an open front right ankle fracture, scalp laceration, basilar skull fractures, and hemothorax, would cause pain to a conscious person. Although Clarke had outlived the average life expectancy according to the life table statistics, a person's life expectancy gets longer as he ages, and Clarke had no evidence of any life-threatening injury or illness aside from the trauma he sustained. Three of Clarke's four adult children testified regarding the relationship they had with their father and their personal losses resulting from his death. All three children testified that their father gave them an occasional gift when appropriate but did not give them money on a regular basis. They stated that their father was healthy, active and of sound mind before his death. They described how he gave them guidance and taught them patience and determination. They submitted pictures depicting his involvement at the various family gatherings. He lived independently and worked for a bus company driving a school bus. He enjoyed morning walks, fishing and gardening, and was involved with his church, helping with repairs. Clarke's 56-year-old daughter Delores Alexander testified that she was not currently employed. She was dealing with her own personal medical issues because she had suffered a stroke in 1996. She regained her ability to walk and avoided having to live in a nursing home due to her parents' help and, especially, her father's encouragement and emotional support. She tried to visit her father, a widower, at his home every day because it gave her something to do to try to better herself. She described him as a tough taskmaster who refused to allow her to wallow in self-pity. After his death, she understood better the lessons about independence and determination that he was trying to instill in her.

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1-06-3072 Clarke's 55-year-old son Elpento Clarke testified that he worked in customer service for an airline and currently lived in Clarke's house with his brother Garcia. When he lived in St. Louis, Missouri, he spoke with his father, who was his friend and advisor, frequently by telephone. Elpento relied on his father's advice in raising his own nine-year-old daughter, and the three of them would periodically go out to restaurants, the zoos, the lakefront or do other activities like fishing. Because Elpento worked in the airline industry, he and his father were able to fly at significant discounts and consequently took trips to Texas to visit Clarke's youngest son Labinco, to England and Jamaica to visit relatives, and to Rome as Catholics. Longevity was a trait of the Clarke family; Clarke had siblings in their 80s and 90s who were in good health. Clarke's 52-year-old son Garcia Clarke previously worked as a computer technician. He was attending school to change fields and not currently employed. He and his father visited each other frequently at their homes. Garcia explained that he was all thumbs and enlisted his father's assistance for home repairs and maintenance. For example, in 2002, Clarke helped paint and do other various things when Garcia was preparing to sell his house. Clarke enjoyed it as a way to keep busy and spend time with his son. Garcia had lost his job and was planning on moving in with his father, and they had a few projects to do together on that house. When Garcia sold his house, he had some money and was trying to determine what he would do with his life. His father had just finished driving the bus for the school year, so they both had free time and were going to travel. They were planning to go deep sea fishing and to Europe to visit family. The jury rendered a verdict for the plaintiff heirs and against defendants in the amount of $1,725,000, reduced by 1% for the contributory negligence of Clarke to $1,707,750. The

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1-06-3072 awarded damages were as follows: $275,000 for the pain and suffering experienced by Clarke; $250,000 for the loss of past and future gifts, benefits, goods and services of Clarke; and $1,200,000 for the loss of past and future society of Clarke. The trial court denied defendants' posttrial motion, and defendants appealed. ANALYSIS 1. Loss of Past and Future Gifts, Benefits, Goods and Services The jury awarded the estate $250,000 for "loss of past and future gifts, benefits, goods, and services of [Clarke]." Defendants argue there was a complete dearth of evidence on this issue and the trial court should have granted their motion for judgment notwithstanding the verdict (judgment n.o.v.) on this element of damages. Specifically, defendants contend Clarke's adult, financially independent children offered no evidence of habitual guidance, services, or benefits in their recent adult lives, except for Garcia Clarke's testimony that his father helped him paint his house. Defendants argue the evidence so overwhelmingly favored them on this issue that the verdict cannot stand. We review the denial of a motion for judgment n.o.v. de novo. Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 88-89 (2002). Judgment n.o.v. should be granted only when all of the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. York v. Rush-Presbyterian-St. Luke's Medical Center, 222 Ill. 2d 147, 178 (2006). A presumption of loss to the lineal heirs is created by the relationship of the parties alone (Hall v. Gillins, 13 Ill. 2d 26, 31 (1958)) and applies here, where both the decedent and the lineal

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1-06-3072 heirs are adults (Cooper v. Chicago Transit Authority, 153 Ill. App. 3d 511, 518 (1987)). In discussing the compensation for "pecuniary injuries" under the Wrongful Death Act, our supreme court noted that the term was interpreted broadly to include items of damage for deprivation of support as well as deprivation of the companionship, guidance, advice, love and affection of the deceased. Hall, 13 Ill. 2d at 31. See also Bullard v. Barnes, 102 Ill. 2d 505 (1984) (the court expanded the scope of pecuniary injury to include nonmonetary losses). Here, the trial court properly instructed the jury that compensation for the next-of-kin's pecuniary loss may include loss of gifts, benefits, goods, services and society. Specifically, the jury could consider: the gifts, benefits, goods and services Clarke customarily contributed in the past and was likely to have contributed in the future; Clarke's personal expenses and other deductions; what instruction, moral training, superintendence of education Clarke might reasonably have expected to give his children had he lived; his age, sex and health; his habits of industry and thrift; his occupational abilities; and his relationship with his four children. The record refutes defendants' claim that the testimony of Clarke's heirs did not support the award of $250,000 for past and future gifts, benefits, goods and services. Delores Alexander testified at length that her father was instrumental in her on-going recovery from her stroke. He insisted that she regain her independence and ability to walk. She visited him almost daily in an effort to remain mobile and improve herself. Elpento testified that he relied on Clarke's guidance and advice throughout his life, and found it particularly relevant in raising his own daughter. Garcia testified that when he lost his job, he embarked on a career change, went back to school and sold his house, intending to live with his father. Clarke helped Garcia with home maintenance

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1-06-3072 and repairs. The painting and maintenance work they did together before Garcia sold his house was just one example of such assistance. The evidence also established that Clarke was healthy and independent despite his advanced years, and longevity was a family trait. He drove a school bus, maintained his own home, and gave his family gifts on appropriate occasions. All of the evidence, when viewed in the light most favorable to plaintiff, does not so overwhelmingly favor defendants that the $250,000 award for Clarke's heirs based on that evidence could not stand. Therefore, we do not disturb the trial court's denial of defendants' motion for judgment n.o.v. on this element of damages. 2. Pain and Suffering Defendants argue the trial court should have granted their motion for judgment n.o.v. on the element of pain and suffering, contending the evidence was not sufficient to support an award for Clarke's conscious pain and suffering. We disagree. The plaintiff must present evidence that the injured party was conscious in order to recover for his pain and suffering. Ellig v. Delnor Community Hospital, 237 Ill. App. 3d 396, 401-02 (1992). Medical testimony is not required to establish conscious pain and suffering. Hall v. National Freight, Inc., 264 Ill. App. 3d 412, 427 (1994). Here, plaintiff introduced evidence from both lay witnesses (Watkins and Robertson) and a medical expert (Dr. Merlotti) that Clarke suffered conscious pain and suffering before his death. Specifically, Watkins, who knelt beside Clarke for about 10 to 15 minutes after the collision, testified that Clarke looked directly at her while she spoke to him, moved his eyes

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