Ryan v. Katz

600 N.E.2d 1206, 234 Ill. App. 3d 536, 175 Ill. Dec. 748, 1992 Ill. App. LEXIS 1530
CourtAppellate Court of Illinois
DecidedSeptember 23, 1992
Docket2-91-0965
StatusPublished
Cited by40 cases

This text of 600 N.E.2d 1206 (Ryan v. Katz) 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
Ryan v. Katz, 600 N.E.2d 1206, 234 Ill. App. 3d 536, 175 Ill. Dec. 748, 1992 Ill. App. LEXIS 1530 (Ill. Ct. App. 1992).

Opinion

JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, Winifred Ryan, was injured when her car was struck by a car driven by the defendant, Marianne Katz. A jury found the defendant negligent and awarded the plaintiff $8,300 in damages. The plaintiff appeals the damage award, arguing that the defendant’s closing argument misstated the evidence of damages. We affirm.

Before discussing the substance of this appeal, we feel bound to comment on a matter of appellate procedure. Supreme Court Rule 341(e)(6) (134 Ill. 2d R. 341(e)(6)) requires an appellant’s statement of facts to “contain the facts necessary to an understanding of the case, stated accurately and fairly, without argument or comment, and with appropriate reference to the pages of the record on appeal.” The plaintiff’s initial statement of facts consisted of three short paragraphs with almost no citations to the record. The statement of facts completely omitted any summary of any of the testimony or argument at trial. On our own motion, we ordered the plaintiff to file “a complete statement of the facts needed to understand the case fully, with appropriate citations to the record on appeal, or the brief will be stricken.”

The plaintiff’s counsel filed an amended statement of facts slightly over one page long. Aside from a few additional record references, the only new matter is a two-paragraph summary of part of the specific trial testimony and closing argument on which the plaintiff relies to argue for reversal. Originally, this summary was placed (improperly) in the “Argument” section of the plaintiff’s brief.

The plaintiff has failed, after due warning, to comply with Rule 341(e)(6). The rules of procedure are rules and not merely suggestions (People v. Wilk (1988), 124 Ill. 2d 93, 103; Roberson v. Liu (1990), 198 Ill. App. 3d 332, 335-36). We would be well within our discretion under Rule 375(a) (134 Ill. 2d R. 375(a)) to strike the plaintiff’s brief and dismiss the appeal. However, because the record is not long and the issues are simple, we decline to penalize the plaintiff so severely for the lapses of her appellate counsel. See Falk v. Martel (1991), 210 Ill. App. 3d 557, 559; Coffey v. Hancock (1984), 122 Ill. App. 3d 442, 444.

We summarize the relevant testimony. At the time of the accident, the plaintiff’s car was sitting at an intersection. The collision pushed her car across the intersection and off the road. The plaintiff was thrown forward; her head hit the dashboard, and her left knee hit a light in the area of the fuse box underneath the dashboard. The defendant exited her car and asked the plaintiff how the plaintiff felt. The plaintiff said she was all right.

John Anderson of the Lake County sheriff’s department investigated the accident. He estimated that there was about $250 worth of damage to the rear of the plaintiff’s car. The plaintiff was not visibly injured, although she told Anderson she felt some pain in her neck. No part of her body was cut or bleeding. Paramedics arrived, but the plaintiff drove home. When she arrived home at about 9 p.m., she told her husband, Edward Ryan, that she felt some injuries. Because it was late, her husband did not drive her to a hospital that day.

The next morning, the defendant called her house and asked the plaintiff how she was feeling. According to the defendant’s testimony, the plaintiff responded that she was all right. That day, the plaintiff and her husband went to a doctor. Three days after the accident, the plaintiff went to a hospital emergency room. On May 17, 1988, she made the first of her several visits to Dr. Thad Penn, an orthopedic surgeon.

The plaintiff testified that, before the accident, she was in excellent health. In 1980 or 1981, she injured her right knee, but she had completely recovered from that injury. In 1987, she was treated at a hospital for a right wrist fracture. By the time of the collision with the defendant, the plaintiff’s right wrist was weak, but it gave her pain only after the accident. Her only hospitalization before the accident was for gallbladder surgery in February 1988. According to her husband, the plaintiff had never complained, before the accident, of any problems with her neck, left shoulder or left knee.

Both the plaintiff and her husband stated that the accident had greatly reduced the plaintiff’s activity. Before the accident, the plaintiff did most of the couple’s housework, cooking and laundry. After the accident, her husband did most or all the laundry, cooking, housework and grocery shopping. Before the accident, the plaintiff regularly went swimming, dancing, skiing, skating and golfing with her husband. After the accident, she was unable to engage in these activities. According to her husband, the accident caused the plaintiff a persistent limp, and she regularly woke up during the night with pain. He had to help her get dressed. The plaintiff admitted that, since the accident, she travelled twice to Ireland and once to Florida, with the former two trips necessitated by illness in her family. The plaintiff testified that, as of the time of trial, she still experienced pain, which she treated with liniment, aspirin, heat, and whirlpool baths.

Dr. Penn, the plaintiff’s expert witness, testified that, on her first visit to his office, the plaintiff told him that, after her accident, she developed pain in her neck, shoulders, and left knee. Two days after the injury, she developed more pain in these areas, and, four days after the accident, she underwent X rays at Victory Memorial Hospital in Waukegan.

At her first consultation, the plaintiff told Dr. Penn that her left knee was swollen and bruised, especially over the inner side and the back side. She also told him that she experienced pain with the movement of her head and neck and that her right shoulder pain, which she had experienced since fracturing her right wrist, had worsened since the accident.

Directly after taking this patient history, Dr. Penn examined the plaintiff. The plaintiff’s neck was tender in areas, and there was some limitation on her ability to move her neck without pain. Movement of the plaintiff’s right shoulder was slightly limited. However, Dr. Penn could not say if the problems in the plaintiff’s right shoulder were the result of the accident. There was a large area of ecchymosis, or a hemorrhage into the skin, and accompanying discoloration on the inner side of the thigh. Dr. Penn opined that this ecchymosis was caused by trauma and was consistent with a knee striking a portion of the dashboard. The plaintiff had tenderness elsewhere in her knee, but knee motion was not impaired, there was no swelling in the joint, and the ligaments were intact. Dr. Penn’s diagnoses were “sprain, cervical spine, strain, left shoulder girdle, and contusion, left knee.” Dr. Penn told the plaintiff to take ibuprofen, as she had been doing since the X rays, and to start physical therapy.

The plaintiff next visited Dr. Penn June 14, 1988. She reported some improvement in her neck and left shoulder. She reported swelling and cramping of her left knee, and she experienced pain in her left knee when she walked or when she extended the knee. The knee buckled occasionally and it felt stiff after periods of inactivity. Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
600 N.E.2d 1206, 234 Ill. App. 3d 536, 175 Ill. Dec. 748, 1992 Ill. App. LEXIS 1530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ryan-v-katz-illappct-1992.