Palumbo v. Kuiken

559 N.E.2d 206, 201 Ill. App. 3d 785, 147 Ill. Dec. 206, 1990 Ill. App. LEXIS 1108
CourtAppellate Court of Illinois
DecidedJuly 27, 1990
Docket1-89-1518
StatusPublished
Cited by8 cases

This text of 559 N.E.2d 206 (Palumbo v. Kuiken) 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
Palumbo v. Kuiken, 559 N.E.2d 206, 201 Ill. App. 3d 785, 147 Ill. Dec. 206, 1990 Ill. App. LEXIS 1108 (Ill. Ct. App. 1990).

Opinion

JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Nicholas Palumbo, filed a personal injury action against the defendant, Hilda Kuiken, for damages allegedly sustained when the defendant’s car collided with the rear end of the plaintiff’s pickup truck on February 14, 1986. The jury returned a verdict in favor of the plaintiff and awarded the sum of $16,500 in damages. The trial judge denied the plaintiff’s motion for a new trial on the issue of damages. The plaintiff contends that the judge committed reversible error in two evidentiary rulings.

On February 14, 1986, the plaintiff was working as a pipefitter in Hammond, Indiana. He was driving north on Torrence Avenue in his pickup truck around 5 p.m. As he approached the intersection of 176th Street and Torrence Avenue, he stopped behind a vehicle which was attempting to turn left.

The defendant was driving her son and his classmate home from school. She also was proceeding north on Torrence Avenue. She was driving 30 or 35 miles per hour when she first noticed the plaintiff’s pickup truck. She never saw the plaintiff’s brake lights or taillights illuminated.

Once she observed the plaintiff’s truck, she slammed on her brakes very hard. She could not avoid the impact; only the force of the collision itself stopped her car. The front of her car went under the back of the truck, and then it bounced back off the truck.

The plaintiff testified that he felt the impact of the collision; it was very hard. The impact jolted him back and forward and all around. While his head went back at impact, it did not hit the back of the cab. He was shaken up immediately after the collision. Nevertheless, he “ran” over to the defendant’s car and asked whether she was all right and whether anybody was hurt; the defendant was crying. She told him that his brake lights were not on.

The impact apparently knocked the plaintiff’s rear bumper into the street; and the lower fender was bent. The impact also allegedly disconnected a wire or two from the back of the truck. The grille of the defendant’s car was broken; part of the hood was crushed back toward the windshield; the headlights on the right side were broken; and the left directional signal was knocked out. The whole front end looked “like an accordion.”

The plaintiff never told anyone at the scene of the accident that he was injured. He never complained to anybody about any pain or discomfort. The defendant testified that she saw him getting in and out of his truck and picking up the pieces that fell off his truck. He never told her that he had been jolted in the accident. The defendant remained at the scene for about 45 minutes to one hour after the collision.

The plaintiff was able to drive his truck away from the scene. He testified that as he was driving home, he noticed that his neck and both shoulders were bothering him. They started to hurt, and he got a “tremendous headache.” He spent a couple of hours at home and then had his wife drive him to Palos Community Hospital (Palos). Palos admitted him and gave him a neck brace, a muscle relaxer and a pain killer. However, the plaintiff did not complain of pain to both shoulders while at the hospital. A couple of X rays were taken, and he was sent home after four hours.

The plaintiff testified that the collision also fractured one of his upper front teeth which held his bridge in place.

Four days later the plaintiff visited his family orthopedic physician, Dr. Robert J. Atkenson. Atkenson testified that the plaintiff told him that he had been in an automobile accident at 176th Street and Torrence Avenue; the plaintiff complained of neck and left shoulder pain. However, a medical questionnaire which the plaintiff filled out for the doctor indicated that he had complained only of pain to the right side of his neck. It did not indicate any complaints about his left shoulder, his back, his right shoulder, headaches or his fractured tooth.

Dr. Atkenson’s initial examination of the plaintiff’s cervical spine on February 18, 1986, revealed a cervical scoliosis. The plaintiff’s reflexes and motor neurological levels were basically normal. He had tenderness to palpation at the front of his left shoulder, and he exhibited objective signs of left shoulder pain. He also had a positive impingement sign which indicated that he suffered from an element of tendonitis or inflammation inside the left shoulder joint. A positive impingement sign can come and go. Dr. Atkenson testified that impingement syndrome was a degenerative condition, but that it was not always a degenerative process. He subsequently performed arthroscopic surgery on the plaintiff’s left shoulder on November 7, 1986. During the surgery he found a tear in the glenoid labrum, which was the lip around the shoulder socket. It was the doctor’s opinion that the injuries to the plaintiff’s left shoulder were caused by the accident.

The condition of the plaintiff’s shoulder improved significantly, but on December 4, 1986, the plaintiff complained of pain in his right shoulder. On December 26, the doctor performed an arthroscopic examination and surgery on the plaintiff’s right shoulder. The medical findings on the right shoulder were basically the same as those on the left shoulder, except for the glenoid labrum tear in the left shoulder. The cause of the pain in the right shoulder was a degenerative process which may have preexisted the accident. In the doctor’s opinion, the accident did not cause any injury to the right shoulder. He had expressed the same opinion at his deposition.

The plaintiff filed answers to interrogatories in which he claimed injuries, lost wages and medical expenses unrelated to the rear-end collision of February 14. Specifically, he claimed the medical expenses associated with arthroscopic surgery for both of his shoulders and dental treatment for gum disease unrelated to the accident. Subsequently he filed answers to supplemental interrogatories in which he was asked to describe any personal injuries sustained by him as a result of the occurrence not previously disclosed in the original answers to interrogatories. He answered, “None, except treating doctor testified that one of my shoulders was not hurt in this collision.” The plaintiff never withdrew his answers to either set of interrogatories. He never sought to amend the answers or to have them superseded in any way. Consequently, before trial, in a motion in limine, the defendant’s attorney advised the trial judge that he intended to cross-examine the plaintiff using the plaintiff’s previously filed answers to both sets of interrogatories which included claims of medical conditions and damages for injuries which were unrelated to the accident.

In response, the plaintiff’s attorney advised the trial judge that the plaintiff was withdrawing any claim for injuries to his right shoulder and for the cost of dental treatment for gum disease. The plaintiff orally moved the court to bar the parties from mentioning any injuries which were unrelated to the collision. The trial judge ruled that he would permit the cross-examination; during the trial the plaintiff’s attorney registered a continuing objection to any questioning which involved the unrelated and verbally withdrawn claims.

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Bluebook (online)
559 N.E.2d 206, 201 Ill. App. 3d 785, 147 Ill. Dec. 206, 1990 Ill. App. LEXIS 1108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palumbo-v-kuiken-illappct-1990.