Clarke v. MEDLEY MOVING AND STORAGE, INC.

885 N.E.2d 396, 381 Ill. App. 3d 82, 319 Ill. Dec. 125, 2008 Ill. App. LEXIS 187
CourtAppellate Court of Illinois
DecidedMarch 7, 2008
Docket1-06-3072
StatusPublished
Cited by28 cases

This text of 885 N.E.2d 396 (Clarke v. MEDLEY MOVING AND STORAGE, INC.) 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
Clarke v. MEDLEY MOVING AND STORAGE, INC., 885 N.E.2d 396, 381 Ill. App. 3d 82, 319 Ill. Dec. 125, 2008 Ill. App. LEXIS 187 (Ill. Ct. App. 2008).

Opinion

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 plaintiffs comments during closing argument concerning the special interrogatory; (5) the cumulative effect of allegedly prejudicial comments by plaintiffs counsel during closing argument deprived defendants of a fair trial; and (6) that remittitur should be 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 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.

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 X-ray 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 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.

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Bluebook (online)
885 N.E.2d 396, 381 Ill. App. 3d 82, 319 Ill. Dec. 125, 2008 Ill. App. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarke-v-medley-moving-and-storage-inc-illappct-2008.