Carter v. Kirk

628 N.E.2d 318, 256 Ill. App. 3d 938, 194 Ill. Dec. 821
CourtAppellate Court of Illinois
DecidedNovember 12, 1993
Docket1-92-3809
StatusPublished
Cited by12 cases

This text of 628 N.E.2d 318 (Carter v. Kirk) 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
Carter v. Kirk, 628 N.E.2d 318, 256 Ill. App. 3d 938, 194 Ill. Dec. 821 (Ill. Ct. App. 1993).

Opinion

JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff, Laura M. Carter (Laura), brought this suit to recover damages for personal injuries she sustained as a result of a motor vehicle accident on October 11, 1989. The jury returned a verdict in the amount of $50,848 for the plaintiff as compensation for her injuries. Judgment was entered on the verdict. Upon motion of the defendants, the trial judge entered an order for a remittitur in the amount of $20,000. Plaintiff consented to the remittitur and judgment was entered in the amount of $30,848. Notwithstanding the order of remittitur, defendants filed an appeal from the denial of their alternative request for a new trial. Plaintiff cross-appeals from the granting of the defendant’s motion for a remittitur.

On October 11, 1989, defendant, Oliver Kirk, Jr. (Kirk), was involved in a motor vehicle accident. At the time of the accident Kirk was employed by Bill’s Excavating and Landscaping Service, owned by defendant William H. Schopf II. Kirk was driving on an approved route, going where he was ordered to go for the benefit of Mr. Schopf. The accident occurred when defendant’s truck struck the rear of Thomas Pletzke’s automobile, which then hit the rear of Gordon Keith Powell, Jr.’s stopped automobile, which then bumped the rear of the plaintiff’s automobile. None of the drivers of the other three vehicles claimed to have suffered any injuries as a result of this accident. The rear of Mr. Pletzke’s automobile was damaged and he was compensated for those damages. Neither the front of Pletzke’s car, nor Powell’s car, nor Laura Carter’s car suffered visible damage.

Plaintiff’s aunt, Neaice Craft (Neaice), testified that on October 12, 1989, she went to her niece Laura’s home. Plaintiff was walking very slowly, leaning on Neaice’s shoulder and on some of the furniture. This was unusual behavior for the plaintiff. Laura told Neaice that she had been involved in a car accident the day before and gave Neaice her arm to rub and try to get the circulation back. Neaice stayed with Laura in the house for two months and every time the plaintiff would go to sleep, Neaice massaged her hands, fingers, and her arm. When she massaged the side of Laura’s back she could "feel little lumps there like hard places.” Neaice accompanied Laura to doctor visits and to physical therapy. On cross-examination, Neaice testified that during the period of time that Laura would lean on her to walk around, Laura never used a cane, crutches, or a walker to help her walk. Two months after the accident, Laura did not return to work, instead Neaice would do Laura’s work for her. Neaice cleaned Mrs. Ruggiero’s house and apartment buildings. For two months Laura was paid by Mrs. Ruggiero and Laura in turn paid Neaice.

Plaintiff’s counsel asked Neaice if Laura was responsible for her own mortgage payments and food, whether she knew if Laura owned a home in Justine and "whether or not after this accident a foreclosure suit was brought to the mortgage.” The trial court sustained objections to each of these questions and instructed the jury to disregard.

Joe Wilcox testified that around February 1990 he began doing some work for Laura. He vacuumed hallways and stairwells. He believed Mrs. Ruggiero owned the property where he worked; however, he was not paid by Mrs. Ruggiero, he was paid by Laura. Since February 1990 Mr. Wilcox has continued to work one day a week for Laura doing the heavy work, like vacuuming.

Dr. James Herron testified that he first treated the plaintiff on November 7, 1991. Laura had told him she had been involved in an auto accident in 1989, at which time she injured her neck, her upper back, her lower back and her shoulders. Dr. Herron did a physical examination, X rays on the areas he deemed necessary, and then prescribed a course of treatment. Although he found no abnormalities on the X rays, he found some tenderness and spasm over the trapezius muscles, some swelling with movement of the muscle and some decreased range of motion of her neck muscles. Dr. Herron diagnosed chronic cervical sprain, a chronic sprain of her dorsal spine, chronic sprain of her shoulders, and chronic sprain of her lower back. Dr. Herron concluded that Laura’s injuries were caused by the auto accident in 1989.

The trial court allowed the plaintiff to show Dr. Herron Laura’s medical records from Dr. Sawlani. The jury was instructed that the records were being admitted for the sole purpose of enabling the jury to evaluate the opinion of Dr. Herron since the records formed the basis of his opinion. Laura’s medical records indicated she visited Dr. Sawlani on October 11, 1989, at which time she told the doctor she was involved in an auto accident. Dr. Herron testified that the report of Laura’s injuries was consistent with his findings in 1991. Dr. Herron testified it was possible for the injuries of October 11, 1989, to require a person to be off work for two months and that the type of injuries would be consistent with a person having substantial difficulties vacuuming 100 or more flights of stairs and mopping floors. Dr. Herron was unable to determine whether or not Laura would have a problem in the future.

On cross-examination Dr. Herron testified that his diagnosis was consistent with what the other records he saw indicated and that over two years after the accident there was swelling, even though the record from Marquette Physical Therapy indicated no swelling. Dr. Herron testified that after the accident Laura could have no swelling, yet two years later she could have swelling which he considered to be part of the accident. Dr. Herron also testified that the swelling could have been caused by other reasons during those two years. A part of the diagnosis relies on the patient’s history, so Dr. Herron’s diagnosis depended on what he was told by Laura. Dr. Herron testified that he looked at Dr. Schiappa’s records, wherein it was recorded on December 12, 1989, "Doing well, no pain.” Dr. Herron testified that these are things that can come and go and you can feel much improved and then get worse. Dr. Herron was the only doctor to testify in this case.

Chatka Ruggiero testified she is a real estate investor. She owns a shopping center and apartment buildings. Laura Carter had worked cleaning her home and the hallways in her apartment buildings for approximately eight years. On October 11, 1989, Mrs. Ruggiero was informed Laura was injured and would be taking off work. Approximately two weeks later, when Laura returned to work, she would bring a helper along. Neaice Craft was one of Laura’s helpers. Laura would bring Neaice to help at the house and Joe Wilcox to help at the apartment buildings. After her injury Laura would drop valuable pieces of property. When asked what had happened, Laura would blame the cat. Mrs. Ruggiero also testified that Laura was a little disoriented at times. In 1988 Mrs. Ruggiero paid Laura $7,224.87; in 1989, when Laura didn’t work two months, she paid her $8,408.50, and in 1990 Laura was paid $7,239.63.

Laura Carter testified that on October 11, 1989, she was stopped at a red light when her car was hit from behind. Laura’s forehead hit the sun visor. At the time of the accident Laura was wearing her seatbelt and the sun visor was up. Imriiediately after the accident Laura told a police officer she had only hit her head, but she wasn’t hurt and she felt all right.

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Bluebook (online)
628 N.E.2d 318, 256 Ill. App. 3d 938, 194 Ill. Dec. 821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-kirk-illappct-1993.