No. 3--02--0701

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE SCHMIDT delivered the opinion of the court:

A jury found for the defendant, Jason L. Hentz (Hentz), andagainst the plaintiff, Roberta J. Canopy (Canopy), in a personalinjury action stemming from two-vehicle motor vehicle accident. The trial court granted Canopy's motion for a new trial. Becauseno jury demand was on file, a bench trial was held. The trialcourt found for Canopy and awarded damages in the amount of$50,000. Hentz now appeals the trial court's granting of themotion for a new trial. We reverse.

On August 28, 1998, Hentz's 1984 Ford LTD struck the rear ofthe 1984 Chevrolet Chevette in which Canopy was a passenger. TheChevette was stopped to make a left-hand turn, and the LTD wasbehind it, also preparing to turn left onto Route 29.

The driver of the Chevette, the plaintiff's ex-boyfriend,Joe Simmons (Simmons), stated that he saw the LTD stopped a fewfeet behind him prior to the accident. Before he was able tomake his turn, the vehicles collided.

Testimony at trial made it clear that two significant issueswere disputed between the parties. The first difference ofopinion centered around the severity of the impact. The seconddispute focused on what, if any, injuries the plaintiff sufferedas a result of the accident.

THE IMPACT

The plaintiff and Simmons characterized the impact assevere. Simmons claimed the impact caused his vehicle to "nose-dive" and noted it was a "pretty good jolt." He also testifiedthat the impact caused damage to the driver's side rear taillightand bumper. The plaintiff, when discussing the impact, stated,"all of a sudden, just wham, and the car did -- I was looking atthe pavement instead of the car hood, and I thought we wereflipping over into the road." She further stated that she"thought we were going upside down and being shoved out into"traffic. When asked if the impact did any damage to the car inwhich she was riding, the plaintiff stated, "I didn't give a shitabout the car." Further questioning revealed that at some pointshe did inspect the car and that the car was never taken in forany repairs following the accident.

The defendant and passenger in the defendant's carcharacterized the impact as minimal. The defendant testifiedthat he was stopped behind Canopy's vehicle at a stop sign. Hethought the Chevette had begun to turn into the intersection. Hetook his foot off the brake, but he was not certain whether ornot he began to press on the accelerator. He looked down, andwhen he looked up Canopy's vehicle was stopped. He applied hisbrake, but his car struck Canopy's.

The testimony of Hentz's passenger was consistent withHentz's testimony. Hentz's father testified that he tookpictures of the Ford that Hentz was driving shortly after theaccident.

Photographs of both vehicles were entered into evidence.They showed no damage to the LTD and minor damage to theChevette. The rear bumper of the Chevette was bent slightly downand in on the driver's side; the photographs revealed no damageto the taillight or the rear of the vehicle.

THE INJURIES

The plaintiff claimed significant injuries from thisaccident presenting medical bills totaling over $14,000.

Simmons testified that the plaintiff complained that herneck hurt immediately after the accident. After the accident,both cars proceeded to a nearby parking lot, and the police werecalled. Simmons did not remember if Canopy got out of the carwhile they were in the parking lot.

Plaintiff testified that she did not strike anything in thecar upon impact. She had no visible physical manifestations ofinjury, such as bumps, cuts or bruises. However, she noticed herneck hurt immediately after the impact. She went on to state thatas they waited for the police in the parking lot, her neck gotstiffer and stiffer. On the drive home, she wanted her ex-boyfriend to "quit hitting the bumps" because "every bump hurt."While in the parking lot and on the drive home after theincident, the plaintiff's description of her condition was "thepain just kind of went up to the base of my head and then my headwouldn't turn. It was like rusted up on me almost."

This incident occurred on a Saturday. The immediatelyfollowing Monday, the plaintiff went to work. While at work, shefirst indicated the pain became unbearable so it is then that shesought medical attention. She testified that she hadn't sleptsince the accident at the time she first sought medicalattention.

At trial, the plaintiff discussed various activities,including horse back riding and playing with her son, in whichshe could no longer participate following the accident. Shementioned that "after the accident, walking across the yard couldbe a problem."

The plaintiff's family physician testified that when hefirst examined her after the incident, she had "no particulartenderness. Muscle strengths and tendon reflexes normal." Plaintiff's family physician also noted that the plaintiffexperienced muscle spasms on this visit as well as all but oneother following the accident. After prescribing physical therapyand treating her for two months for muscle spasms and headaches,he referred her to an orthopedic surgeon, Dr. Maxey. Thisreferral was made October 30, 1998. The plaintiff preferred adifferent doctor, Dr. Judy Wright and went to see Dr. Wright onDecember 2, 1998.

Dr. Wright treated the plaintiff until May of 1999. Dr.Wright testified that the plaintiff had complaints of neck pain,shoulders aching and occasional tingling in her feet and fingers. Dr. Wright ordered a series of diagnostic tests including an EMG,NCV and a MRI. She also prescribed a TENS unit, which provideselectrical stimulation therapy, and ordered additional physicaltherapy. The results of the EMG and NCV showed "no cervicalspine damage" and "no radiculopathy" but did show mild damage tothe median nerve related to a preexisting injury. The results ofthe MRI noted "a slight reversal of the normal cervical curvaturewith no evidence of subluxation; and, two, there is no herniationor bulging of the discs in the cervical region."

Dr. Wright further noted that when she last treated thepatient on May 7, 1999, the patient's condition was "back to hernormal" and that she had "fully recovered from hercervicothoracic spine strain without permanent disability."

Both Dr. Wright and Dr. Morris opined that the plaintiff'sinjuries were causally related to the automobile accident. Bothphysicians testified that their causation analysis was based uponthe subjective information supplied by the plaintiff. Dr. Wrighttestified that the nature of a person's injury in such mattersdepends on the amount of force, the position of the person andthe body's response. Both physicians testified that they had noknowledge as to the amount of force created by the accident, thespeed of the vehicles or the position of the plaintiff.

When testifying as to the basis for his opinion that thisaccident caused the plaintiff's injuries, the plaintiff's familyphysician testified as follows:

"Q. So really the basis for your causationopinion is that Miss Canopy told you, I wasin an automobile accident, that is why I amhere to see you?

A. That's correct. That is the reasonableconclusion that I would make on a patientthat had not been seeing me for a neckproblem and then comes and says, my neckhurts, and it is because I was in anautomobile accident."

After the evidence concluded, the trial court directed averdict on negligence in favor of the plaintiff, leaving open theissues of proximate cause and damages. The jury returned averdict in favor of the defendant. The plaintiff filed a motionfor a new trial, which the court granted. In the order grantinga new trial, the court stated that the jury's verdict was againstthe manifest weight of the evidence. It was then they discoveredthat there was no jury demand on file and a bench trial wasordered. The parties stipulated that rather than repeating theevidence, the judge could make his decision based on thetranscript of the jury trial. The judge entered a verdict forthe plaintiff and awarded over $50,000 in damages. Hentz nowappeals the granting of the motion for a new trial.

ANALYSIS

The trial court's decision to grant a new trial will not bereversed unless it is affirmatively shown that the court abusedits discretion. Maple v. Gustafson, 151 Ill. 2d at 455, 603N.E.2d at 513 (1992). Since the trial court has the opportunityto consider the trial as a whole, the court is awarded greaterlatitude in granting a new trial than in denying one. Smith v.City of Evanston, 260 Ill. App. 3d at 932-33, 631 N.E.2d at 1275(1994). When there is sufficient evidence to support the jury'sverdict, it is an abuse of discretion for the trial court togrant a motion for a new trial. Gaines v. Townsend, 244 Ill.App. 3d at 576, 613 N.E.2d at 801 (1993).

Unquestionably, it is the province of the jury to resolveconflicts in the evidence, to pass upon the credibility of thewitnesses, and to decide what weight should be given to thewitnesses' testimony. Maple, 151 Ill. 2d at 452, 603 N.E.2d at511-12. On a motion for a new trial, a court will weigh theevidence and set aside the verdict and order a new trial if theverdict is contrary to the manifest weight of the evidence. Maple, 151 Ill. 2d 454, 603 N.E.2d at 512. A verdict is againstthe manifest weight of the evidence where the opposite conclusionis clearly evident or where the findings of the jury areunreasonable, arbitrary and not based upon any of the evidence. Maple, 151 Ill. 2d at 454, 603 N.E.2d at 512-13. A trial courtcannot reweigh the evidence and set aside a verdict merelybecause the jury could have drawn different inferences orconclusions, or because the court feels that other results aremore reasonable. Maple, 151 Ill. 2d at 452, 603 N.E.2d at 512. A careful review of the record indicates this is exactly what thetrial court did: attached different weight than did the jurorsto certain evidence and drew different inferences therefrom.

The jury heard conflicting testimony on the severity of theimpact. Clearly, the jury did not believe this accident injuredthe plaintiff. It also certainly concluded that the plaintiffwas prone to exaggeration. There was ample evidence admitted attrial to support both these conclusions.

The plaintiff's orthopedic surgeon testified that the natureof one's injuries depends upon the force involved in thetraumatic event and body positioning. Both of the plaintiff'smedical experts stated they had no information relating to theamount of force involved in this accident or any informationregarding the plaintiff's body position at the time of impact. Both doctors basically stated that their causation opinions werebased upon the plaintiff telling them she was injured in thisaccident. The jury was free to determine for itself whether itbelieved the plaintiff was a credible historian.

The pictures of the vehicles of this accident showed nodamage to one vehicle and no appreciable damage to theplaintiff's vehicle. The plaintiff testified that the damage toher vehicle was so minor it had been driven for three yearsfollowing the accident without repair. Nevertheless, theplaintiff stated the impact was of such force that she believedher vehicle would flip over upon impact. The jury was, based onthe photos, free to disbelieve the plaintiff, which it obviouslydid.

Other statements made by the plaintiff could have certainlyseemed unrealistic to the jury. Following the impact, the partieswaited in a car dealership parking lot for the police to arrive. On cross-examination, the plaintiff testified as to the pain sheexperienced immediately after the accident, either at "the dealership talking to the police officer" or "drivingback home that afternoon" by noting, "It just kept - the painjust kind of went up to the base of my head and then my headwouldn't turn. It was like rusted up on me almost."

The plaintiff claimed that on the ride home every bump hercar traversed caused her pain. Specifically, she stated:

"Q. How did you feel when you got home?

A. Along the way I wanted him to quit hittingthe bumps, I know that.

Q. Why was that?

A. Every bump hurt."

This was followed by a sleepless night but yet she sought nomedical attention the next day. Another sleepless night followedbut again, rather than seeking immediate medical attention, shewent to work.

The jury certainly was free to assign weight to these claimsby the plaintiff as well as her statement that this accident madewalking across the yard a problem. It was also the province ofthe jury to weigh her physicians' testimony. While the plaintiffis correct in pointing out that it is uncontroverted that herfamily physician noted she suffered from muscle spasms, it isalso uncontroverted that he stated the he based his opinion thather injuries were caused by this accident on what "Miss Canopytold" him. There was no testimony that only trauma could causemuscle spasm. Even had there been such testimony, the jury wouldhave been, based on its own experience, free to reject suchtestimony. Furthermore, the jury was called upon to weigh Dr.Wright's testimony regarding causation of the plaintiff'sinjuries in light of Dr. Wright's admission that she had noknowledge of two of the three factors (amount of force andpositioning of the patient's body upon impact) that the doctoragreed were necessary to make such a determination.

There was ample evidence admitted at trial that could lead ajury to the conclusion that this plaintiff exaggerated theseverity of the impact and the severity of her injuries, if any,that may have resulted from this accident.

A trial court possesses the discretion to vacate a juryverdict if it is against the manifest weight of the evidence. However, as stated above, a verdict is against the manifestweight of the evidence where the opposite conclusion is clearlyevident or where the findings of the jury are unreasonable,arbitrary and not based upon any of the evidence. Maple, 151Ill. 2d at 454, 603 N.E.2d at 512-13.

The jury here could have ruled in favor of or against theplaintiff. It unanimously chose the latter. Here, the oppositeconclusion is not clearly evident. Moreover, the jury's findingswere not unreasonable or arbitrary and were supported by theevidence. The bottom line is that the jury did not believe theplaintiff and the trial judge did. The medical testimonyadmittedly hinged on the credibility of the plaintiff. Therefore, we find it was an abuse of discretion to vacate thejury award and order a new trial.

For the foregoing reasons, the judgment of the circuit courtof Tazewell County is reversed. This cause is remanded to thetrial court to enter an order reinstating the jury verdict infavor of the defendant.

Reversed and remanded with instructions.

SLATER, J., concurs.

HOLDRIDGE, J., dissents.