Harris v. Day

451 N.E.2d 262, 115 Ill. App. 3d 762, 71 Ill. Dec. 547, 1983 Ill. App. LEXIS 1948
CourtAppellate Court of Illinois
DecidedJune 21, 1983
Docket4-82-0167
StatusPublished
Cited by37 cases

This text of 451 N.E.2d 262 (Harris v. Day) 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
Harris v. Day, 451 N.E.2d 262, 115 Ill. App. 3d 762, 71 Ill. Dec. 547, 1983 Ill. App. LEXIS 1948 (Ill. Ct. App. 1983).

Opinion

JUSTICE TRAPP

delivered the opinion of the court:

Defendant, Gerald Day, appeals from a judgment entered on a jury verdict finding for plaintiff, Bruce Harris, and awarding damages of $16,000 in his suit for recovery of personal injuries. We affirm.

On the afternoon of May 15, 1973, plaintiff, age 14, was playing tennis with a friend, Jay Allen, on tennis courts which were bordered on the north by Gregory Street, a four-lane road in Normal. Gregory carries east-west traffic and is divided by a three-foot median. During the match Allen hit a tennis ball over the fence and it landed on Gregory Street. Plaintiff went into the street to retrieve the ball and was struck on the hip and knee by defendant’s auto which was eastbound on Gregory. Only the parties to this suit observed the event, and needless to say their testimony differs.

The plaintiff testified that as he left the courts, he noticed a car traveling on Gregory Street some 600 to 700 feet away. He crossed the sidewalk and trotted to the center line of the two eastbound lanes where the ball was located. While bent over he heard the sound of a car, froze for a second, turned around, and saw the car several feet away. He tried to jump out of the way, but was struck by the right front corner of the defendant’s auto in the southernmost, eastbound lane.

Defendant testified that he was driving his vehicle towards Main Street on Gregory and that he was in the southerly lane of the portion of the road for eastbound traffic. He stated that his car was 100 to 150 feet from plaintiff when he first saw the plaintiff and estimated his car may have been traveling at approximately 25 miles per hour but not over 30 miles per hour. When he first saw plaintiff, plaintiff was trotting at approximately jogging speed into the street. He went over to within at least two or three feet of the concrete median and at that point leaned over to pick up the tennis ball. This was in the northern portion of the two eastbound lanes, and closer to the median than the center of the eastbound lanes. When defendant first saw plaintiff coming out in the street, defendant applied his brakes and testified he slowed down to perhaps 20 miles per hour. Plaintiff picked up the tennis ball with his back toward defendant, and then turned around and looked at defendant’s car. Defendant then took his foot off the brake because plaintiff was stationary. Defendant thought plaintiff had seen him and would wait until defendant has passed. Defendant testified that plaintiff remained motionless for an instant and then began running back across the street to the curb. Defendant slammed on his brakes, leaving skid marks approximately 40 feet long but was unable to avoid a collision. Defendant testified that he was unable to swerve or honk his horn because there just wasn’t time.

The collision threw plaintiff into the grassy portion of the shoulder. Plaintiff testified that his leg swelled up to fill his sweat pants and felt as if it were on fire. Plaintiff’s leg was immobilized by ambulance personnel, and he was taken to Brokaw Hospital in Normal where he received three or four stitches and remained for five days. When he left the hospital he was on crutches and spent a week in physical therapy. He could not get out of bed for two or three days after leaving the hospital and remained on crutches for approximately three weeks after leaving the hospital. He did, however, go back to school and was able to finish his freshman year In high school.

Plaintiff began his sophomore year in the fall of 1973 and went out for the football team after Dr. Lyman, his treating physician, gave him a physical examination which was required for participation. No X rays or tests were done on the knee, but plaintiff told the doctor that the knee was stiff. In late summer practices, which were double sessions, plaintiff’s knee was hit. It was sore for a couple of days, and he then returned to practice. Plaintiff practiced with the team two to 21/2 months that fall, but ultimately quit because he could not keep up.

In April 1975, plaintiff was involved in an automobile accident when his car slid on ice and collided with another vehicle. He received a concussion but, according to plaintiff, neither his right leg nor any part of his lower body was injured. Although plaintiff testified that there were no lower body injuries, Dr. Van Ness testified that plaintiff received ultrasound treatments on his knee following the accident. The doctor did not specify which knee received the treatment, and plaintiff attempted to impeach the doctor’s refreshed collections since the records upon which he relied did not state which part of the body received the ultrasound. Defendant then impeached plaintiff’s testimony that his legs were not injured in this automobile accident with his pretrial deposition in which he stated that he was in an accident on April 3,1975, and received injury to his right knee and leg.

In addition to the above incidents, plaintiff testified that his knee had gone out more than 20 times since the accident in May of 1973. These incidents caused pain, limping and sometimes required the use of crutches. In late September of 1975, plaintiff had an operation on his knee because it kept going out, causing severe inconvenience by its persistent interruptions of his day-to-day life. The operation was performed by Dr. Terry Noonan, who removed some cartilage and tightened his ligaments. He was in the hospital for about a week, then remained at home for about a week and one-half before going back to school.

Dr. Terry Noonan, an orthopedic surgeon, testified that he examined plaintiff on September 3, 1975, in relation to what plaintiff told him was an unstable knee caused when he was hit by a car in 1973. Noonan X-rayed, observed, and manipulated the knee and found that there was abnormal movement of the knee from side to side, apparently because of an old injury to a knee ligament. There was also an abnormal forward movement when the leg was twisted outwards, and some calcification in the knee. These conditions observed in plaintiff’s right knee appeared to have been the result of a traumatic injury. On cross-examination, Noonan testified that plaintiff did not inform Noonan of the automobile accident he was involved in earlier in 1975, nor that plaintiff had broken his left leg while playing basketball in the spring of 1974. Noonan testified that if the right knee was also injured in an accident in April 1975, as well as May of 1973, he would not be able to tell which accident caused the conditions in the knee which he observed in his examination in September of 1975. Noonan examined plaintiff several times subsequent to the operation. In November of 1978, Noonan noted some early arthritic changes in the knee which might be expected to be progressive in nature and which could become painful. Based on his examinations of plaintiff, Noonan believed that plaintiff would suffer pain in the future, would need medical care based on intermittent discomfort, and could possibly need additional reconstructive surgery. He was of the opinion that the instability in plaintiff’s knee and his arthritis would be permanent.

Another orthopedic surgeon, Dr. Gerald Bratberg, examined plaintiff for the first time in March of 1981. He testified that the injury to the knee was traumatic in origin, and that it resulted from an injury rather than being a congenital problem, or a problem occurring from normal wear.

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Bluebook (online)
451 N.E.2d 262, 115 Ill. App. 3d 762, 71 Ill. Dec. 547, 1983 Ill. App. LEXIS 1948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-day-illappct-1983.