Burnham v. Lewis

577 N.E.2d 922, 217 Ill. App. 3d 752, 160 Ill. Dec. 597, 1991 Ill. App. LEXIS 1472
CourtAppellate Court of Illinois
DecidedAugust 27, 1991
Docket5-90-0432
StatusPublished
Cited by17 cases

This text of 577 N.E.2d 922 (Burnham v. Lewis) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnham v. Lewis, 577 N.E.2d 922, 217 Ill. App. 3d 752, 160 Ill. Dec. 597, 1991 Ill. App. LEXIS 1472 (Ill. Ct. App. 1991).

Opinion

PRESIDING JUSTICE RARICK

delivered the opinion of the court:

On May 12, 1986, Charles Burnham, age 10, was struck and injured by an automobile driven by Cheryl Lewis. Plaintiff filed the present action in the circuit court of Massac County on January 6, 1987, and defendant filed her answer on February 3, 1987. Contained in defendant’s answer was the affirmative defense of comparative fault. On December 8, 1988, plaintiff amended the complaint by adding a count for willful and wanton misconduct. Defendant filed an answer to the new count on January 19, 1989, and filed an amended answer on January 23, 1990. The amended answer addressed each count of plaintiff’s complaint and prayed for a judgment in defendant’s favor but did not include the comparative fault defense.

At trial, which commenced on February 5, 1990, plaintiff produced evidence of medical bills totaling $3,211 and of property damage totaling $60. The plaintiff also produced numerous occurrence and post-occurrence witnesses who testified that immediately after the accident plaintiff was semi-conscious and bleeding profusely from a gash along the side of his head. He also had numerous scratches and bruises.

Dr. Enrique Yap, the initial treating physician, testified that plaintiff had an eight-inch laceration along the left side of his head which exposed the skull along the entire length. Plaintiff’s condition was stabilized and his neck was immobilized by a neck brace. A subsequent X ray revealed a subluxation of the cervical spine. Plaintiff was immediately transferred by ambulance to the care of Dr. John D. Noonan, a neurosurgeon in Paducah, Kentucky. Dr. Yap opined that plaintiff’s injuries were life-threatening.

Dr. Noonan testified that he first saw plaintiff in the emergency room of Western Baptist Hospital. While in X ray, plaintiff went into shock from the scalp laceration and resultant blood loss. Dr. Noonan testified that he had to act then or plaintiff would have died from cardiac arrest. Plaintiff was also found to have cervical strain. Plaintiff was hospitalized for several days. Plaintiff saw Dr. Noonan several times after he was discharged during which times plaintiff complained of difficulty with his ears and his memory. He was advised that this was a normal result of the concussion he had sustained in the accident and that it would probably improve.

Plaintiff’s mother testified that while he was in the hospital he had to be fed because his hands were so badly scraped that it hurt to bend his knuckles. She also stated that he sat slumped because of the injury to his neck and shoulders and could not lift his arm for several days. After coming home, plaintiff began walking on his toes on one foot occasionally, and continued to do so for over a year and a half. He also complained of pain in his knees and ankles. He suffered a blackout spell in the hospital and continues to have brief blackouts and dizzy spells.

Plaintiff’s mother also testified that for about a year after the accident, plaintiff complained of hearing noises in his head or ears. Plaintiff also evidenced memory loss and became quieter, not running and playing as much. She stated that during the year and a half before trial, plaintiff had seemed more like his old self.

Myra Tilley, one of plaintiff’s teachers, testified that plaintiff missed the last four weeks of the school year and upon his return the following year seemed very different. He was quiet and withdrawn, and had difficulty recognizing people. His coordination and his gait were affected. This problem, as well as his problems with his memory and ability to recognize people, persisted for several years.

Plaintiff testified that he remembered waking up after being hit. His hands, knuckles, knees, and face were all badly skinned, and he was bleeding from a head wound. He remembered being taken to the hospital where he remained for three or four days. His arms and shoulders hurt so bad that he could not raise his arms. He began experiencing blackouts and dizziness while at the hospital, and these symptoms continue. His knees have continued to cause him pain.

A jury instruction conference was held on February 8, 1990. Plaintiff objected to the giving of any jury instructions on the affirmative defense of comparative fault, arguing that the defendant waived this defense by not including it in the amended answer. The trial court denied the objection, and the jury subsequently returned a verdict for the plaintiff in the amount of $3,500. The jury also attributed 75% of the fault to plaintiff and 25% to the defendant, and reduced the damage award accordingly.

On appeal, plaintiff argues that defendant’s failure to include the affirmative defense of contributory fault in the amended answer waived such defense, and that the trial court erred in instructing the jury on this issue. We find that plaintiff has waived this argument. Upon examining the record, we find that plaintiff himself tendered numerous instructions on the issue of contributory negligence. Plaintiff’s instruction 2, defining the term “contributory negligence,” was given, as were plaintiff’s instructions 3 and 4, the issue and burden of proof instructions, both of which refer to the issue of contributory negligence. We also note that plaintiff declined to tender an alternate verdict form. The trial court gave the verdict form tendered by defendant, which instructed the jury to apportion any percentage of fault attributed to plaintiff and to reduce the amount of damages amended thereby.

To preserve for review an argument relating to jury instructions, a party must both object during the instruction conference (Misch v. Meadows Mennonite Home (1983), 114 Ill. App. 3d 792, 449 N.E.2d 1358; Russo v. Kellogg (1962), 37 Ill. App. 2d 336, 341-42, 185 N.E.2d 377, 380) and set forth his objection in a post-trial motion (Micklos v. Highsmith (1986), 149 Ill. App. 3d 779, 500 N.E.2d 1154). Both are required. Simply including the argument in the post-trial motion will not preserve it where no objection was raised at trial. (Stephenson v. Dreis & Krump Manufacturing Co. (1981), 101 Ill. App. 3d 380, 428 N.E.2d 190; Aspland v. McMaster (1963), 39 Ill. App. 2d 366, 188 N.E.2d 508.) Both must be sufficiently specific to make clear the nature of the objection. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337; Statler v. Catalano (1988), 167 Ill. App. 3d 397, 521 N.E.2d 565; Mathis v. Burlington Northern, Inc. (1978), 67 Ill. App. 3d 1009, 1012, 385 N.E.2d 780, 782, citing Osborne v. Leonard (1968), 99 Ill. App. 2d 391, 240 N.E.2d 769

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Cite This Page — Counsel Stack

Bluebook (online)
577 N.E.2d 922, 217 Ill. App. 3d 752, 160 Ill. Dec. 597, 1991 Ill. App. LEXIS 1472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnham-v-lewis-illappct-1991.