FOURTH DIVISION July 22, 2010
1-08-1072
MARIA COLELLA, as Special Administrator of the Estate ) Appeal from the of Francesco Colella, Deceased, )) Circuit Court of )) Cook County Plaintiff-Appellee, )) )) v. ) No. 04 L 401 ) JMS TRUCKING COMPANY OF ILLINOIS, INC., ) Honorable an Illinois Corporation, and SAMUEL J. INENDINO, ) Susan Ruscitti Grussel, Individually, ) Judge Presiding. ) Defendants-Appellants and Third- ) Party Plaintiffs-Appellants )
(Benchmark Construction Company, Inc.,
Third-Party Defendant-Appellee).
PRESIDING JUSTICE O’MARA FROSSARD delivered the opinion of the court:
Plaintiff-appellee, Maria Colella, as special administrator of the estate of Francesco
Colella, deceased, brought the instant lawsuit to recover damages after her husband Francesco
was struck and killed by a dump truck in a construction accident. Maria Colella brought this suit
against the owner of the truck and its driver, defendants-appellants JMS Trucking Company of
Illinois, Inc., an Illinois corporation (JMS), and Samuel J. Inendino, individually. In turn, JMS
filed a third-party complaint for contribution against Francesco’s employer, Benchmark
Construction Company, Inc. (Benchmark).
Following a jury trial, a multimillion dollar judgment was entered in favor of the plaintiff
and against JMS and Inendino. The jury returned an itemized verdict in the amount of
$9,264,000. That amount was reduced to $8,338,140 based on the finding by the jury that the 1-08-1072
percentage of negligence attributable to Francesco Colella was 10%. The jury found the
percentage of negligence attributable to defendants was 90%. The jury found against defendants
on their contribution claims. The jury found the percentage of negligence attributable to
Benchmark was 0%. A subsequent posttrial motion attacking the judgments filed by JMS and
Inendino was denied, and they now appeal. For the reasons that follow, we affirm.
BACKGROUND
Maria Colella, acting as special administrator of the estate of her deceased husband
Francesco, filed the instant lawsuit on January 13, 2004. The complaint generally alleged that on
January 4, 2004, Francesco was employed by Benchmark and was working on a construction site
in Chicago. While working on that site, Francesco was killed in an accident involving a dump
truck owed by JMS and driven by its employee Inendino. Seeking to recover for the injuries and
expenses incurred by Francesco and his family as a result of the fatal accident, the three-count
negligence complaint was brought pursuant to the Wrongful Death Act (740 ILCS 180/1 et seq.
(West 2004)), the Rights of Married Persons Act (750 ILCS 65/15 (West 2004)), and the
Survival Act (755 ILCS 5/27-6 (West 2004)). JMS and Inendino subsequently filed a third-party
contribution claim against Benchmark, asserting that it was Benchmark’s negligence that led to
Francesco’s death.
Prior to trial, the lower court addressed a number of motions in limine. Among them was
a defense motion to bar the testimony of the plaintiff’s expert, James Brennan. The trial court
denied that motion, finding that Brennan’s proffered experience qualified him as an expert.
However, the trial court granted Benchmark’s motion in limine to limit the scope of the
2 1-08-1072 appellants’ questioning of its employees. Specifically, Benchmark was concerned that JMS and
Inendino would attempt to question its employees about their duties on the jobsite and their
breach of those duties. The trial court found that the plaintiffs could not discuss any such
opinions, because they were never properly disclosed. However, the trial court indicated that the
appellants were free to question the employees about their duties, their activities, and their
observations.
The matter proceeded to a jury trial in April and May of 2007. At trial, several of
Francesco’s coworkers testified about the accident. Specifically, the jury heard testimony from
Benchmark employees John Braglia, Michael D’Andrea, John Fiordirosa, and Joseph Etter, as
well as Benchmark supervisor Wayne Crew. Each coworker generally testified that Benchmark
was involved in the installation of a new water main along 79th Street on the southwest side of
Chicago. On the day of the accident, the Benchmark crew were removing some backfill from a
ditch that surrounded the new water main. They were preparing the area for new concrete to be
poured to complete the project. JMS, and its driver Inendino, were also involved in the project
that day. They provided a dump truck to receive the backfill and remove that material from the
construction site.
In order to complete this process, the Benchmark employees also had to elevate existing
manhole covers to the proper height to ensure that they would be at grade when the new concrete
was poured to cover the ditch. To accomplish this task, the crew would run a string line from
one side of the ditch to the other. In that manner, they could measure the level of the existing
manhole in reference to the level of the existing pavement and make any necessary adjustments.
3 1-08-1072 Colella was involved in this measurement process when the accident occurred.
Braglia testified that he and Colella held the string line taut while Fiordirosa took the
measurement at the manhole cover. Colella was holding the string on the east side of the ditch,
in a narrow area between the ditch and the rear of the JMS dump truck. Just after he and Colella
had finished the measurement, and just as Braglia got up to retrieve the materials needed to
elevate the manhole cover to the proper height, Braglia heard Colella yell and turned to see him
tangled in the JMS truck’s rear tires as it pulled away. Braglia testified that he never saw
Inendino walk around the dump truck before driving off. Braglia believed that if that had
occurred, he would have noticed because Inendino would have been required to step over the
string line to do so.
Fiordirosa confirmed that the accident occurred directly after he, Colella, and Braglia
finished taking the measurement. He testified that Colella stood under the JMS truck to take the
measurement and that he believed the truck was running at the time. Fiordirosa was not too
concerned about Colella’s location because the JMS truck cab was empty at the time. Fiordirosa
also testified that the accident occurred immediately after taking the measurement, and he
indicated that he did not hear any warning before the JMS truck pulled out. He did hear the truck
being put into gear as it pulled out, and when he turned to look, he saw Colella being run over
and dragged by the rear wheels of the truck. Fiordirosa never observed Inendino walk around the
truck prior to pulling away.
D’Andrea testified that he was operating a backhoe, excavating the ditch, and placing the
material in the JMS truck. He stated that shortly before the accident, Inendino indicated that he
4 1-08-1072 had been told to leave. D’Andrea assumed Inendino meant that Benchmark foreman Wayne
Crew told Inendino to do so. Shortly thereafter, he heard screams and saw the JMS truck run
over Colella, near where he had previously observed Colella with the string line.
Etter provided similar testimony to the other Benchmark employees, although he was
located on the far south side of the ditch and only peripherally observed the other workers before
the accident. He did observe Colella being run over by the rear tires of the JMS truck after he
heard screaming and turned to look.
Benchmark’s foreman, Wayne Crew, testified that when he arrived on the site on the
morning of the accident, his crew was already working. It appeared that Braglia, Fiordirosa, and
Colella were preparing to take a string line measurement. At the time, Colella was inside the
ditch but Crew never saw his exact position at the time of the accident as his view was blocked.
Crew testified that he spoke with Inendino and told him that if he had a full load he could leave.
He then observed Inendino and D’Andrea have a brief exchange. He never saw Inendino walk
around his truck before pulling away. Shortly thereafter he heard screams and observed Colella
being run over.
Crew did admit that as foreman, he had a responsibility for the safety of the Benchmark
crew. He also stated that it was wrong for a worker to position himself in front of the rear tires of
a dump truck to complete the string line measurement. The appellants also read a portion of
Crew’s deposition testimony which he stated it was his responsibility to ensure that all was clear
before a dump truck pulled out of a construction site. At trial, Crew stated that he was referring
to an open site with nearby traffic and not a closed site such as the one at issue in this case.
5 1-08-1072 Defendant Inendino also testified at trial, indicating that the accident occurred as he was
leaving with his second load of the day. He stated that his truck was parked very near the ditch,
and that he observed the Benchmark crew complete the string line measurement while his truck
was being loaded by the backhoe operated by D’Andrea. However, by the time his truck was full
and he was ready to leave, that measurement had long been completed and there were no
Benchmark employees in or around the ditch. Inendino testified that Crew told him to leave, he
informed D’Andrea to stop filling the truck, and he then did a safety walk around the truck prior
to leaving. He then got in the cab, checked his rearview mirrors, and pulled away. He did not
hear anything as he left the site and only found out about the accident later.
Inendino admitted that in prior statements he had either indicated he did not complete a
walk around his truck or had failed to state that he had done so. He also acknowledged that it
was his duty to complete such a walk around on a construction site, but maintained at trial that he
did so.
The jury heard testimony from Chicago police officer James Mullins. Mullins was
assigned to investigate the accident as part of the major accident investigation unit. As part of
his investigation he compiled a written report after he interviewed the members of the
Benchmark crew and Inendino. At trial, and over a defense objection, Mullins was allowed to
read from his report and testify regarding those interviews. In general, that testimony coincided
with the testimony those witnesses themselves gave at trial. Notably, however, Mullins testified
that Crew told him that he had indicated that Inendino could leave and Inendino told Mullins that
he did not walk around the truck prior to leaving.
6 1-08-1072 Colella’s trucking expert, James Brennan, also testified over defendant’s objection.
Brennan stated that he had 38 years of professional experience driving trucks in construction
settings, 13 of which were spent driving a dump truck similar to the JMS truck involved in this
accident. Brennan had held a commercial driver’s license (CDL) during that time, but he did not
hold one at the time of trial. Brennan testified that, based upon his knowledge and experience, a
dump truck driver is required to walk around his vehicle before leaving a construction site to
check for any safety issues. A driver should check his mirrors in the cab before pulling away,
and if those mirrors were properly adjusted, the area in front of the rear wheels would be visible.
The Benchmark employees also testified about the events just after the accident. In
general, they each testified that the JMS truck appeared to have run over and dragged Colella
with its rear tires. Colella had extensive injuries to his leg, arm, and mid-section. Braglia
testified that he reached Colella almost immediately after the accident and that Colella was
groaning. Colella was trying to say something and his eyes remained open for three to four
minutes. An ambulance arrived within 10 minutes of the accident.
Dr. Kendall Crowns, the Cook County medical examiner’s office physician who
conducted a postmortem examination of Colella on the day after the accident, concluded that
Colella had died as a result of multiple injuries suffered after being struck by the JMS dump
truck. Those injuries included two severed fingers and a partially severed thumb. Colella had
multiple abrasions to his face, arms, and legs, as well as lacerations to his left leg. A large
laceration cut across his abdomen, exposing internal organs. There were additional injuries to
Colella’s lower torso, including significant damage to his intestines, prostate, and scrotum.
7 1-08-1072 However, Dr. Crowns found no internal damage to the upper body and opined that Colella’s
heart and brain likely continued to function after the accident. He further opined that Colella
could have remained conscious until he ultimately bled to death, which would have taken
approximately three minutes. Colella would not have been able to move or talk if he were not
conscious.
Finally, the jury was presented with evidence regarding the loss suffered by Colella’s
family. Maria Colella, Colella’s wife, testified that the two had been married for 37 years and
had three adult children. Their two sons lived at home, and their daughter lived less than a mile
away. The two were born and were married in Italy, before they moved to this country in 1974.
Maria testified through an interpreter, as her English was poor and she had previously relied on
Colella to assist her in that regard.
Two of Colella’s children, Loretta Verna and John Colella, also testified. They each
described their father as a loving, generous, and engaged person. They also testified that he had a
very close relationship with his wife and his third child, Michael. Michael was mentally disabled
and was very dependent on his parents, especially his father. Michael seems to have regressed
since his father died, and Maria is no longer as social as she used to be.
Following the presentation of evidence and closing arguments, the jury returned a verdict
in favor of the plaintiff and against JMS and Inendino. A verdict was also entered against JMS
and Inendino on their contribution claim against Benchmark. The jury awarded the following
amounts as damages: $20,600 for medical expenses, $244,000 for lost future earnings, $1 million
for Colella’s pain and suffering, and $8 million for the loss of society suffered by Colella’s
8 1-08-1072 family. This $9,264,600 overall judgment was then reduced to $8,338,140, based upon the jury’s
conclusion that the percentage of negligence attributable to JMS and Inendino, Colella, and
Benchmark was 90%, 10%, and 0%, respectively. The jury also answered two special
interrogatories, finding that Benchmark’s conduct was not a proximate cause of the accident and
Collella’s own negligence was not more than 50% of the proximate cause of the accident.
Thereafter, JMS and Inendino filed a posttrial motion requesting either a new trial, a
remittitur, and/or judgment notwithstanding the verdict on their counterclaim against Benchmark.
The trial court denied that motion, and JMS and Inendino now appeal.
ANALYSIS
On appeal, JMS and Inendino assert that various errors in the admission of evidence,
limitations on their questioning of Benchmark’s employees, and instructions given to the jury
entitle them to a new trial on the issue of their liability to Colella. They also contend that the
damages awarded by the jury were so excessive that they are entitled to either a remittitur or a
new trial on damages. Finally, JMS and Inendino claim that the jury’s verdict on their
counterclaim against Benchmark was not supported by the evidence and request that we grant
judgment notwithstanding the verdict. We address these issues in turn, ultimately finding each of
the appellants’ assertions of error either waived, harmless, or unpersuasive.
I. Motion for New Trial – Trial Court Errors
We first address the assertion by JMS and Inendino that various errors made by the trial
court entitle them to a new trial on liability.
In considering whether a motion for a new trial should be granted, the trial court should
9 1-08-1072 set aside a jury’s verdict only if it was contrary to the manifest weight of the evidence or a party
has been denied a fair trial. Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). The trial court is in
a superior position to consider any errors that occurred, the fairness of the trial to all parties, and
whether substantial justice was accomplished. Smith v. City of Evanston, 260 Ill. App. 3d 925,
932-33 (1994). A trial court’s ruling on a motion for new trial will not be reversed unless there is
an affirmative showing that it clearly abused its discretion. Gustafson, 151 Ill. 2d at 455.
A. Evidentiary Issues
Our first consideration is the appellants’ assertion that the trial court made a number of
evidentiary errors.
The admission of evidence is within the sound discretion of a trial court, and a reviewing
court will not reverse the trial court absent a showing of an abuse of that discretion. Snelson v.
Kamm, 204 Ill. 2d 1, 33-34 (2003). An abuse of discretion occurs when no reasonable person
would take the view adopted by the trial court. Bauer v. Memorial Hospital, 377 Ill. App. 3d
895, 912 (2007).
1. Richard Brennan’s Expert Testimony
JMS and Inendino first contend that Brennan should not have been allowed to testify as
an expert because either he was not qualified to do so or his opinions were not a proper subject of
expert testimony. They also assert that the trial court improperly ruled upon certain documents
discussed during Brennan’s testimony. We disagree.
Expert testimony is not limited to scientific or technical areas, but rather all areas of
specialized knowledge. Meyers v. Woods, 374 Ill. App. 3d 440, 451 (2007). Indeed, “[t]here is
10 1-08-1072 no predetermined formula for how an expert acquires specialized knowledge or experience and
the expert can gain such through practical experience, scientific study, education, training or
research.” Favia v. Ford Motor Co., 381 Ill. App. 3d 809, 816 (2008). A witness will be
allowed to testify as an expert if his experience and qualifications provide him with knowledge
that is not common to the layperson and where such testimony will aid the trier of fact. Favia,
381 Ill. App. 3d at 816. Whether a witness is allowed to testify as an expert is within the sound
discretion of the trial court. Meyers, 374 Ill. App. 3d at 451.
Here, Brennan testified that he had held a specialized CDL and had a total of 38 years of
professional experience driving large trucks in construction settings. Over 13 years of that time
was spent driving a dump truck similar to the one involved in this case. Moreover, the subject of
his testimony was the various responsibilities of a driver of such specialized equipment in the
specific context of a construction site. We see no reason why this extensive practical experience
was insufficient to qualify Brennan as an expert in this area, nor do we find that the trial court
abused its discretion in finding the subject of Brennan’s testimony to be outside the knowledge of
the common juror.
With respect to the documents used during Brennan’s testimony, the appellants initially
object to Brennan’s testimony regarding the JMS safety manual for its drivers. Brennan
identified this document and quoted from various specific portions therein. However, Brennan
also specifically testified that he relied on the JMS manual to form his opinions at trial. Our
supreme court has recognized that an expert may be allowed to testify regarding the basis for his
opinion, as an expert's opinion is only as valid as the reasons that underlie it. Schultz v.
11 1-08-1072 Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 298-99 (2002). Furthermore,
the admissibility of facts underlying an expert's opinion is within the sound discretion of the trial
court. Bass v. Cincinnati Inc., 281 Ill. App. 3d 1019, 1023-24 (1996). We find that the trial
court did not abuse its discretion by allowing Brennan to testify regarding the JMS safety
manual. Our decision on this matter is further supported by the fact that Inendino himself also
testified regarding the safety manual, its contents, and his agreement with its provisions.
The appellants also object to testimony regarding the existence of a 157-page Illinois
CDL study guide and the trial court’s admission of that guide into evidence. Without respect to
whether the trial court’s decision was correct or not, the guide was only mentioned briefly and
was never shown or provided to the jury. The appellants have not identified any prejudicial
effect this brief mention of the mere existence of such a study guide had in this case, and we do
not see any. We are mindful that a party is not entitled to a reversal based upon evidentiary
rulings unless the error was substantially prejudicial and affected the outcome of the trial.
Simmons v. Garces, 198 Ill. 2d 541, 566-67 (2002).
2. Officer Mullins’ Testimony and Report
We next consider the appellants’ contention that the trial court improperly allowed certain
testimony from Officer Mullins and incorrectly admitted his report into evidence as a business
record. While we agree that the trial court committed error, we find that appellants cannot
demonstrate reversible error.
Here, the trial court determined that Officer Mullins’ report was admissible as a business
12 1-08-1072 record pursuant to Supreme Court Rule 236(a) (145 Ill. 2d R. 236(a)). This decision was
incorrect, as Rule 236(b) clearly states “[a]lthough police accident reports may otherwise be
admissible in evidence under the law, subsection (a) of this rule does not allow such writings to
be admitted as a record or memorandum made in the regular course of business.” 145 Ill. 2d R.
236(b). Accordingly, Mullins’ report was incorrectly admitted into evidence as a business
record. However, we fail to see how the appellants were prejudiced by this admission.
The statements the Benchmark employees made to Mullins and which were contained in his
report were used by both parties in questioning Officer Mullins at trial. Indeed, it was the
appellants who first made reference to the those statements and the police report in the prior
questioning of Braglia. “It is established that a party may introduce evidence, ordinarily
improper, where the opponent has opened up the issue and the party seeking to introduce the
evidence would be prejudiced unless allowed to introduce it.” Conner v. Ofreneo, 257 Ill. App.
3d 427, 434 (1993). While is it clear that the trial court improperly admitted the report into
evidence, the record is also clear that Mullins’ report was never provided to the jury and did not
go into the jury room during jury deliberations. For the reasons previously discussed, the
appellants cannot establish the substantial prejudice required for a reversal. Simmons, 198 Ill. 2d
at 566-67.
Finally, we also note that JMS and Inendino specifically complain they were prejudiced
by Mullins’ testimony regarding the “opinions and conclusions” contained in his report.
However, our review of the record establishes that in all but a single instance, the plaintiff’s
attempts to introduce such opinions and conclusions were unsuccessful. The trial court either
13 1-08-1072 sustained the defendants’ objection or the question was withdrawn. The single exception
occurred when Mullins was permitted to testify regarding his conclusion that the metal
undercarriage of the dump truck did not appear to have struck Colella. The appellants have not
identified how this testimony was prejudicial and we are unable to discern any prejudice as this
issue does not appear to have been relevant or controverted at trial.
In sum, we find no reversible error in the trial court’s handling of Mullins’ report and
testimony.
3. Questioning of Benchmark’s Employees
The next issue raised by the appellants is the trial court’s limitation of their questioning of
Benchmark’s employees at trial. They contend that it was error for the trial court to grant
Benchmark’s motion in limine barring them from questioning Benchmark employees regarding
their opinions on the basis that those opinions were not properly disclosed. We conclude that
this argument by appellants is essentially waived and ultimately fails to support their motion for a
new trial. A trial court maintains broad discretion in both the admission of evidence and in
ruling upon a motion in limine, and a decision on a motion in limine will not be disturbed absent
an abuse of that discretion. Todd W. Musburger, Ltd. v. Meier, 394 Ill. App. 3d 781, 801-02
(2009).
As an initial matter, the appellants have waived any review of the motion in limine with
respect to the testimony of those Benchmark employees other than Wayne Crew. “When a
motion in limine is granted, the key to saving for review an error in the exclusion of evidence is
an adequate offer of proof in the trial court.” Snelson v. Kamm, 204 Ill. 2d 1, 23 (2003). An
14 1-08-1072 offer of proof informs the trial court, opposing counsel, and the reviewing court of the nature and
substance of the evidence sought to be introduced. K4 Enterprises, Inc. v. Grater, Inc., 394 Ill.
App. 3d 307, 318 (2009). A proper offer of proof is the key to preserving a trial court's alleged
error in excluding evidence. K4 Enterprises, 394 Ill. App. 3d at 318. The appellants have not, in
the trial court or on appeal, identified exactly what testimony from these employees they were
precluded from presenting. They have also failed to make a proper offer of proof or identify how
they were prejudiced by the trial court’s limitation. We, therefore, have no way of determining
any possible prejudice and must find this argument waived with respect to any such testimony.
The situation is somewhat different regarding the testimony of Crew. The record reflects
that the appellants identified specific evidence and opinions they sought to elicit from Crew.
This evidence and these opinions were either contained in portions of Crew’s discovery
deposition or were sought by the appellants in their cross-examination of Crew. The trial court
initially granted Benchmark’s motion in limine on the basis that such opinions were not properly
disclosed pursuant to Supreme Court Rule 213(f) (210 Ill. 2d R. 213(f)). However, Supreme
Court Rule 213(g) provides:
“The information disclosed in answer to a Rule 213(f)
interrogatory, or in a discovery deposition, limits the testimony that
can be given by a witness on direct examination at trial.
Information disclosed in a discovery deposition need not be later
specifically identified in a Rule 213(f) answer, but, upon objection
at trial, the burden is on the proponent of the witness to prove the
15 1-08-1072 information was provided in a Rule 213(f) answer or in the
discovery deposition. Except upon a showing of good cause,
information in an evidence deposition not previously disclosed in a
Rule 213(f) interrogatory answer or in a discovery deposition shall
not be admissible upon objection at trial.
Without making disclosure under this rule, however, a
cross-examining party can elicit information, including opinions,
from the witness.” Official Reports Advance Sheet No. 26
(December 20, 2006), R. 213(g), eff. January 1, 2007.
By granting Benchmark’s motion in limine and sustaining Benchmark’s objections during
portions of the trial, the trial court would appear to have failed to comply with the provisions of
Supreme Court Rule 213(g). Specifically, Rule 213(g) allowed the appellants to introduce
opinions that were either contained in Crew’s discovery deposition, identified in a Rule 213(f)
answer, or elicited on cross-examination without the need for a specific Rule 213(f) disclosure
before trial.
We note, however, that a ruling on a motion in limine is interlocutory and subject to
reconsideration. Schuler v. Mid-Central Cardiology, 313 Ill. App. 3d 326, 334 (2000). Despite
the trial court’s initial ruling, the record establishes that the appellants were able to elicit Crew’s
opinions on cross-examination that: (1) it was his duty to supervise the Benchmark employees
and ensure they worked in a safe manner, and (2) it would be wrong for a worker to position
himself in front the JMS rear wheels to complete the string line measurement. The appellants
16 1-08-1072 were also able to read into the record Crew’s deposition testimony, which indicated that it was
part of his responsibility to ensure that the area around a dump truck was clear before the truck
left the site. The parties were then allowed to further question Crew about that statement at trial.
Finally, the appellants were able to utilize this evidence to argue to the jury that Crew, third-party
defendant’s foreman, was “not doing his job.”
Thus, the record reflects that the testimony and opinions specifically identified by the
appellants were ultimately admitted into evidence and considered by the jury. The appellants
further contend that there was other deposition testimony they wanted to address and other
questions they would have liked to have asked Crew on cross-examination; however, they failed
to support any such assertions of error with a proper offer of proof in the trial court. For the
reasons previously discussed, we conclude that the trial court did not abuse its discretion in
denying the appellants a new trial on this basis.
B. Jury Instructions
We next address the appellants’ contention that the trial court erred in instructing the jury.
Specifically, they assert that the trial court improperly gave duplicative instructions on Inendino’s
alleged violations of the Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West 2004)) and the
common law. They also argue that the trial court’s instruction on the ability to recover for pain
and suffering was improper.
It is within the discretion of the trial court as to which instructions to give to the jury, and
the court's decision will not be disturbed absent an abuse of that discretion. Schultz, 201 Ill. 2d at
273. Whether a trial court abused its discretion depends on whether, taken as a whole, the
17 1-08-1072 instructions fairly, fully, and comprehensively inform the jury of the relevant legal principles.
Schultz, 201 Ill. 2d at 273-74.
The appellants initially take issue with plaintiff’s jury instructions Nos. 28, 29, 30, as well
as the issues instruction No. 11. Instruction Nos. 28, 29, 30 were modeled after Illinois Pattern
Jury Instructions, Civil, No. 60.01 (2006) (hereinafter IPI Civil (2006)). Each instruction set
forth a separate section of the Illinois Vehicle Code, stated that the code section was in force at
the time of the accident, and provided that should the jury decide that a party violated that
section, the jury may consider that fact together with all other facts and circumstances in
evidence on the question of defendants' negligence. Instruction No. 11, modeled after IPI Civil
(2006), No. 600.04, contained an issues instruction on negligence for cases involving a third-
party contribution claim. That instruction also included the plaintiff’s allegations of the
defendants’ common law negligence.
The appellants assert that these separate instructions essentially contain the same legal
principles and that providing all of these instructions to the jury was duplicative and confusing.
However, while the appellants raised other, unrelated objections to some of these instructions
below, they did not raise this specific objection. A party waives the right to object to jury
instructions when the party fails to make a specific objection during the jury instruction
conference. Ozik v. Gramins, 345 Ill. App. 3d 502, 520 (2003). Timely objection assists the trial
court in correcting any problem and prohibits the challenging party from gaining an advantage by
obtaining reversal based on the party’s own failure to act. Ozik, 345 Ill. App. 3d at 520, citing
Morus v. Kapusta, 339 Ill. App. 3d 483, 489 (2003). Furthermore, the doctrine of invited error
18 1-08-1072 prohibits a party from complaining of an error on appeal “ ‘which that party induced the court to
make or to which that party consented.’ ” Oldenstedt v. Marshall Erdman & Associates, Inc.,
381 Ill. App. 3d 1, 14 (2008), quoting In re Detention of Swope, 213 Ill.2d 210, 217 (2004).
Because the plaintiffs did not object on this basis at trial, we find this argument waived.
Moreover, even if not waived, this contention would not be availing to JMS and Inendino, as
mere repetition of an instruction does not alone constitute reversible error. Grossman v.
Gebarowski, 315 Ill. App. 3d 213, 224 (2000).
The appellants also contend that plaintiff’s instruction No. 16, regarding the damages
available in the plaintiff’s survival action, was improper. This instruction, modeled on IPI Civil
(2006), Nos. 31.10, 30.05, and 30.06, in part informed the jury that the plaintiff could recover for
“[t]he pain and suffering experienced as a result of the injuries” to Colella before his death. JMS
and Inendino assert that the trial court erred in not providing an alternative instruction limiting
recovery to “conscious pain and suffering” in light of Murphy v. Martin Oil Co., 56 Ill. 2d 423,
431-32 (1974), which held that “conscious” pain and suffering was recoverable in a Survival Act
claim.
We disagree with this contention. The trial court is required to use a pattern instruction
when it is applicable and when it accurately states the law, and the court does not abuse its
discretion by refusing to give a nonpattern instruction if an appropriate pattern instruction exists.
Schultz, 201 Ill. 2d at 285. In this case, the pattern instruction states that recovery is available for
“pain and suffering experienced,” not “conscious pain and suffering.” Moreover, we fail to see
any real prejudice in the different language. As instructed, the jury could only award damages
19 1-08-1072 for pain and suffering “experienced.” We do not see how this instruction misled the jury or
resulted in prejudice to the appellants. See, Schultz, 201 Ill. 2d at 273-74 (a trial court will be
reversed based on giving an improper instruction only if it clearly misled the jury and resulted in
prejudice to the appellant).
II. Motion for Remittitur or New Trial - Jury Awards
The appellants next argue that the jury’s award of $1 million for Colella’s pain and
suffering and $8 million for his family’s loss of society was excessive. They ask for a remittitur
or, alternatively, a new trial on damages.
The standards applicable to a jury award challenge have been previously summarized by
this court:
“The amount of a verdict is generally at the discretion of
the jury. [Citation.] A damage award is not subject to scientific
computation. [Citation.] A question of damages is to be
determined by the trier of fact, and ‘a reviewing court will not
lightly substitute its opinion for the judgment rendered in the trial
court.’ [Citations.] However, a court will order a remittitur, or, if
the plaintiff does not consent, a new trial, if a verdict is excessive.
[Citation.] *** [T]he supreme court [has] indicated that an award
may be viewed as excessive if it (1) exceeds the range of fair and
reasonable compensation, (2) is the result of passion or prejudice,
or (3) is so large that it shocks the judicial conscience. [Citation.]
20 1-08-1072 But remittitur will not be ordered when an award ‘ “falls within the
flexible range of conclusions which can reasonably be supported
by the facts.” ’ [Citations.]” Velarde v. Illinois Central R.R. Co.,
354 Ill. App. 3d 523, 540 (2004).
In support of their position that the $1 million award for Colella’s conscious pain and
suffering was excessive, the appellants point to the evidence that he was conscious for at most
three to four minutes after the accident. They also cite to three cases in which either lower
awards were made for longer periods of pain and suffering, or a similar amount was awarded for
a longer period. Drews v. Gobel Freight Lines, Inc., 144 Ill. 2d 84, 104 (1991) ($150,000
awarded on evidence of 30 minutes of conscious pain and suffering before death); Balzekas v.
Looking Elk, 254 Ill. App. 3d 529, 537-38 (1993) ($600,000 awarded on evidence of 10 hours of
conscious pain and suffering before death); Pantaleo v. Our Lady of the Resurrection Medical
Center, 297 Ill. App. 3d 266, 278-79 (1998) ($1 million awarded on evidence of 26 hours of
conscious pain and suffering before death).
We are not persuaded by these arguments. As an initial matter, the appellants do nothing
to compare this case to the three cited cases other than identifying the total amount of the award
and the time period of conscious pain and suffering involved. Even if they had done so, our
courts have “traditionally declined to make such comparisons in determining whether a particular
award is excessive.” Richardson v. Chapman, 175 Ill. 2d 98, 114 (1997). Nor did the appellants
provide any discussion of the truly horrific injuries Colella suffered or the types of pain and
suffering he experienced before he lost consciousness and died. We note that the plaintiff
21 1-08-1072 requested a $3 million award for Colella’s pain and suffering and the jury awarded one-third of
that amount. Based on the totality of the circumstances, the record does not reflect that this
award exceeded the range of fair and reasonable compensation or was the result of passion or
prejudice or that it shocks the judicial conscience such that we should substitute our judgment for
that of the jury.
JMS and Inendino have supported their challenge to the $8 million award by the jury for
loss of society only by noting that the amount of the award was high, Colella was 61 years old at
the time of his death and it appeared to bear no relationship to the family’s financial loss. They
do not address the evidence that, even at the age of 61, the evidence established that Colella had
a life expectancy of 21.5 years. They do not address the evidence of Colella’s active family and
social life, his wife’s reliance on his English skills, or his disabled son Michael’s reliance upon
him and his regression since his death.
Moreover, while as noted above, comparisons to other cases are not typically useful in
these discussions, we do note that one of the cases cited by the appellants did affirm an award of
$8.3 million in damages for loss of society suffered by the victim’s wife and two children.
Drews, 144 Ill. 2d at 97. In light of all the evidence, we find that the jury’s award for loss of
society, which was less than the $14 million award plaintiff requested, was not excessive so as to
require either a remittitur or a new trial on damages.
III. Motion for Judgment Notwithstanding the Verdict – Contribution Claim
Finally, we consider the appellants’ motion for judgment notwithstanding the verdict
(judgment n.o.v.) on their contribution claim. They argue that the jury’s verdict on their third-
22 1-08-1072 party claim against Benchmark was not supported by the evidence.
Judgment n.o.v. should be granted only when all of the evidence, when viewed in the
light most favorable to the opponent, so overwhelmingly favors the movant such that no contrary
verdict based on that evidence could ever stand. York v. Rush-Presbyterian-St. Luke’s Medical
Center, 222 Ill. 2d 147, 178 (2006). “The court has no right to enter a judgment n.o.v. if there is
any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a
substantial factual dispute, or where the assessment of credibility of the witnesses or the
determination regarding conflicting evidence is decisive to the outcome.” Gustafson, 151 Ill. 2d
at 454. The denial of a motion for judgment n.o.v. is reviewed de novo. Donaldson v. Central
Illinois Public Service Co., 199 Ill. 2d 63, 88-89 (2002).
The appellants’ argument rests on the testimony of Benchmark foreman Wayne Crew.
They note that Crew acknowledged that part of his responsibilities as foreman included making
sure that his crew performed their work in a safe manner. He also acknowledged that, at the time
of the accident, he was positioned in such a way that he could not observe his crew working in
the ditch. From this testimony, the appellants assert that the jury’s attribution of 0% of the
negligence proximately causing Colella’s accident to Benchmark cannot stand. We disagree.
To establish Benchmark’s alleged negligence and succeed on their counterclaim, JMS
and Inendino were required to allege and prove that Benchmark owed a duty to Colella, that
Benchmark breached that duty, and that the breach was the proximate cause of Colella’s injuries.
Thompson v. County of Cook, 154 Ill. 2d 374, 382 (1993). Proximate cause ordinarily is a
question for the trier of fact, and judgment n.o.v. cannot be granted on this issue unless, as we
23 1-08-1072 have noted above, “ ‘all of the evidence, when viewed in its aspect most favorable to the
opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence
could ever stand.’ ” First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257 (1999),
quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967).
In the instant case, the jury heard testimony regarding Crew’s duties regarding safety on
the jobsite and the events leading up to the accident. However, the jury was also presented with
testimony from Brennan, and Inendino himself, that Inendino had specific duties to walk around
his truck and to adjust and check his mirrors before pulling away. The jurors also heard
testimony suggesting that Inendino failed to complete some or all of these specific tasks just
before the accident took place. Clearly, in this case the issue of proximate cause was the subject
of conflicting evidence and factual dispute. Gustafson, 151 Ill. 2d at 454. The determination of
that issue was therefore a question for the jury. Based on our review of the record, we cannot say
that the evidence so overwhelmingly favored the appellants that the jury’s verdict cannot stand,
and we therefore reject the request to enter a judgment n.o.v. Maple, 151 Ill. 2d at 452 (“A trial
court cannot reweigh the evidence and set aside a verdict merely because the jury could have
drawn different inferences or conclusions, or because the court feels that other results are more
reasonable”).
CONCLUSION
For the reasons previously discussed, we affirm the judgment entered by the circuit court
on the jury’s verdict. We deny the request by JMS and Inendino for a new trial or a remittitur as
to plaintiff. We deny the request by JMS and Inendino for judgment notwithstanding the verdict
24 1-08-1072 or a new trial as to Benchmark.
Affirmed.
O’BRIEN and NEVILLE, JJ., concur.