Fronabarger v. Burns

SUPREME COURT CASES

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State: Illinois

Court: 5th District Appellate

Docket No: 5-07-0433 Rel

Case Date: 09/26/2008

Preview:Rule 23 order filed August 19, 2008; Motion to publish granted September 29, 2008.

NO. 5-07-0433 IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________ ELLEN FRONABARGER, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Madison County. ) v. ) No. 05-L-1141 ) EDITH BURNS, ) Honorable ) Nicholas G. Byron, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________ JUSTICE WELCH delivered the opinion of the court: The plaintiff, Ellen Fronabarger, appeals from an order of the circuit court of Madison County that entered a judgment in her favor and against the defendant, Edith Burns, pursuant to a jury verdict. On appeal, the plaintiff raises two issues, which we restate as follows: (1) whether the trial court erred in allowing into evidence, without expert testimony, photographs of the parties' vehicles following the accident and (2) whether the trial court erred in allowing the defendant's expert's testimony regarding the photographs, the damage to the vehicles, and the plaintiff's corresponding injury. For the following reasons, we affirm the judgment of the circuit court. BACKGROUND On November 4, 2005, the plaintiff filed a one-count complaint in the circuit court of Madison County, alleging that the defendant was negligent when she rear-ended the plaintiff, causing the plaintiff injury. The plaintiff sought damages in excess of $50,000. Beginning on May 14, 2007, a two-day jury trial was held, where the following evidence was adduced. On November 29, 2003, at approximately 11:30 a.m., the plaintiff's vehicle, while

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stopped at the intersection of State Aid 35 and Route 111, was struck from the rear by the defendant's vehicle. The plaintiff intended to turn right at this intersection but was stopped because the light was red. The defendant was traveling on State Aid 35, and she also intended to turn right onto Route 111. The defendant testified she saw that the light was red and slowed down. She looked to the left, checking the traffic on Route 111. When she looked back, she was surprised to see the plaintiff's car still stopped at the light. She slowed but failed to come to a complete stop and struck the plaintiff's vehicle. The defendant described the force of the impact as being similar to a car's front wheels hitting a concrete parking block while parking. She estimated that she was traveling under 14 miles per hour when the accident occurred, because her air bags did not deploy. The defendant testified that only her front bumper was involved in the accident, that her car did not have any damage, and that she observed minor damage to the plaintiff's vehicle. The plaintiff described the force of the impact as "just a push" that made her body move forward. She had no warning and was unaware that the defendant's vehicle was going to hit her vehicle. She was wearing her safety belt and did not hit any part of her body against the inside of her car or lose consciousness as a result of the accident. Her vehicle had scratches on the bumper and the bumper was pushed forward. She testified that she felt stiff immediately after the accident but did not think she was hurt. After the accident, she went to her scheduled hair appointment and worked her regular shift. She also worked her regular shift the following day. On December 1, 2003, two days after her accident, the plaintiff "could not get out of bed" because of her back pain. She saw Dr. Shipley, a chiropractic physician, on that day. Shipley testified that he diagnosed the plaintiff's lower back pain as radiculopathy. Shipley also testified that the plaintiff had degenerative disc disease and degenerative joint disease which predated the accident. The plaintiff had three treatments a week for six months and

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then two treatments a week for six more months. The plaintiff's last treatment was on December 22, 2004. Shipley instructed the defendant not to lift heavy objects and to sit when possible. Shipley testified that he believed, within a reasonable degree of chiropractic certainty, that the November 29, 2003, accident caused the plaintiff's symptoms. The total bill for the treatment was $10,225. Throughout her treatment, the plaintiff was able to work. Three weeks after the accident, she returned to her bowling league three nights a week, playing two games each night. Five weeks after the accident, she began bowling three games a night, three nights a week. During the trial, the defendant presented a series of photographs. Two of the photographs were of the defendant's car after the accident. The defendant testified that these pictures fairly and accurately depicted the way her car looked following the accident. The defendant also presented two other pictures; these pictures were of the plaintiff's car after the accident. The plaintiff stated that these pictures fairly and accurately depicted the plaintiff's vehicle following the accident. The photographs depicted no damage to the defendant's car and minor damage to the plaintiff's bumper. The plaintiff objected to the admissibility of the photographs, and the circuit court overruled the objection, allowing the photographs to be admitted into evidence. The last witness to testify was the defendant's expert, Dr. Karen Pentella, via an evidence deposition. Pentella, who is board-certified in neurology and pain medicine, reviewed the plaintiff's medical records and conducted an independent physical and neurological examination of the plaintiff on September 13, 2006. She did not find any abnormalities in the plaintiff's neck, thoracic spine, or lumbar spine or irritation of the sciatic nerve. She testified that the plaintiff's lower back was tender in the midline and lumbar regions. Her review of Shipley's records revealed that the plaintiff had degenerative disc disease and degenerative joint disease. Pentella testified that these degenerative diseases

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would have predated the accident and that the degenerative joint disease could have caused the pain in the plaintiff's lower back. Pentella opined that the plaintiff did not suffer any significant or permanent injury as a result of the accident and that the plaintiff will not need any more medical treatment. She testified that she was unable to determine if the plaintiff suffered from a soft tissue injury, which usually lasts not longer than 6 weeks, because she examined the plaintiff 2 years and 10 months after the accident. In addition to reviewing the records in this case, Pentella also reviewed the photographs of the defendant's and plaintiff's vehicles. Pentella testified that the photographs were significant because the vehicles in them showed no damage. Pentella testified as follows: "Q. [Defense attorney:] Okay. And Doctor, in looking at those photographs that I think have previously

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