Janky v. Perry

797 N.E.2d 1066, 343 Ill. App. 3d 230, 278 Ill. Dec. 148, 2003 Ill. App. LEXIS 1190
CourtAppellate Court of Illinois
DecidedSeptember 25, 2003
Docket3-02-0632
StatusPublished
Cited by11 cases

This text of 797 N.E.2d 1066 (Janky v. Perry) 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
Janky v. Perry, 797 N.E.2d 1066, 343 Ill. App. 3d 230, 278 Ill. Dec. 148, 2003 Ill. App. LEXIS 1190 (Ill. Ct. App. 2003).

Opinions

JUSTICE HOLDRIDGE

delivered the opinion of the court:

The plaintiff, Barbara Janky, filed a negligence cause of action against the defendant, Doris Perry. Janky claimed that her shoulder was injured as the result of an automobile accident caused by Perry. A jury ruled in favor of Perry. Janky’s motion for a judgment notwithstanding the verdict was denied. On appeal, Janky argues that the trial court erred by (1) allowing Perry’s attorney to elicit testimony from Janky that she had complained of shoulder pain to her family doctor three or four years before the automobile accident occurred; and (2) denying her motion for a judgment notwithstanding the verdict. We affirm.

BACKGROUND

The automobile accident at issue occurred on April 17, 1999. On that date, Janky was a passenger in a car driven by her husband. The Jankys’ granddaughter was in the front passenger seat and Janky was in the backseat on the driver’s side. While stopped at a traffic light, Janky leaned forward to talk to her granddaughter.

Perry was driving her car, which was stopped directly behind the Jankys’ car. Perry testified that while stopped for the light, she reached down to the floor of her car to retrieve an object. When Perry bent over to retrieve the object, her foot slipped off the brake. Perry’s car moved forward and struck the Jankys’ car from behind. As a result of the collision, Janky’s left shoulder struck the driver’s seat in front of her.

Janky testified that when her shoulder struck the seat, she immediately felt pain from her shoulder down to her elbow. After the accident, Janky did not seek immediate medical attention. Instead, Janky and her husband took their granddaughter to visit the granddaughter’s father. The Jankys then drove to their home.

The accident occurred on a Saturday. Janky stated that her shoulder continued to hurt on Sunday. On Monday, her husband made an appointment for her with an orthopedist, Dr. Timothy J. Morgan.

During direct examination, the following exchange took place between Janky’s lawyer and Janky:

“Q. *** pr^or this accident, did you have any problems with your left shoulder?
A. Well, I had pain[,] but it wasn’t down in my shoulder. It was more up in here (Indicating) in my neck area.
Q. Now, how often[,] and we’re still talking about before the accident, before April 17th of 1999, how often would you have this pain that you talked about in your left shoulder?
A. Not frequent at all, not frequent at all.”

On cross-examination, Perry’s attorney asked Janky, “You complained of pain in your shoulder to your family physician as early as March of 1995, didn’t you?” Janky’s attorney immediately asked to approach the bench, and a sidebar was held off the record. Following the sidebar, the judge stated for the record that Janky’s objection was overruled. The nature of Janky’s objection, however, is not preserved in the record.

The following exchange then took place between Perry’s lawyer and Janky:

“Q. I had asked if isn’t it correct that you made complaints of left shoulder pain to your family physician, Dr. Blair, as early as March of 1995?
A. I don’t remember what, when it was, you know, what year it was or anything.
Q. Were you — do you remember making complaints to Dr. Blair? A. Um-hum.
Q. About your left shoulder?
A. Yes.
Q. Do you remember telling him that you were in, that your left shoulder was very painful? Do you remember telling him that?
A. Yes.
Q. That was back in March or April of 1995? •
A. I’m not sure when, when it was, the dates.
Q. But it was several years ago?
A. Yeah.
Q. Did you know that you had a rotator cuff tear at the time that you went to see Dr. Morgan?
A. No, I didn’t.
Q. Was Dr. Morgan the first doctor that had told you that the rotator cuff was torn?
A. Yes.
Q. You understand that Dr. Morgan says that the rotator cuff tear predates the date of the accident with Miss Perry? You understand that?
A. Yes, I do. He didn’t tell me that, but I know that now.”

Later in the proceeding, Janky offered Morgan’s testimony by way of an evidence deposition, which was read to the jury. Morgan stated that he first saw Janky on April 28, 1999. On that date, Janky told Morgan

“that she had had pain in the region of her left shoulder for several years, but that pain had recently worsened at the time of an automobile accident.
As far as her shoulder was concerned, she stated that she had seen some other physicians but had not obtained any relief of her pain.”

Morgan said that he initially ordered an X ray of Janky’s shoulder. The X ray showed “degenerative changes in the form of mild spurring and narrowing of the acromioclavicular joint.” Morgan testified that the acromioclavicular joint is “the small joint where the collarbone articulates with the shoulder bone on top of the shoulder.” He said that a portion of the rotator cuff is located under that joint. Morgan gave Janky a cortisone injection in an attempt to relieve the inflammation and pain in her shoulder.

When Morgan saw Janky again on May 10, 1999, Janky told the doctor that the cortisone injection had not significantly reduced her pain. Morgan said that Janky “stated that she had also had some pain in the region of her neck which she also felt may have worsened since the motor vehicle accident.”

Morgan then ordered a magnetic resonance image (MRI) of Janky’s shoulder. The MRI “revealed evidence of a large tear of the rotator cuff, *** retraction” of a tendon, “wasting” of a muscle, and other “degenerative changes” in her shoulder. The doctor stated that the degenerative changes were likely to have been present prior to the car accident.

Morgan recommended surgery to repair Janky’s shoulder condition and physical therapy to strengthen the muscles around the injury. He stated that, within a reasonable degree of medical certainty, the car accident had aggravated Janky’s previously existing shoulder condition.

After the evidence was presented, the trial judge directed a verdict in favor of Janky on the issue of negligence. He instructed the jurors that they still were to decide if Perry’s negligence proximately caused Janky’s injury and, if so, to determine Janky’s damages. The jury returned a verdict in favor of Perry.

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Janky v. Perry
797 N.E.2d 1066 (Appellate Court of Illinois, 2003)

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Bluebook (online)
797 N.E.2d 1066, 343 Ill. App. 3d 230, 278 Ill. Dec. 148, 2003 Ill. App. LEXIS 1190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/janky-v-perry-illappct-2003.