2026 IL App (1st) 251733-U
FIRST DIVISION June 15, 2026
No. 1-25-1733
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
TANYA M. ZAWADZKI and PATRICK M. GARCIA, ) ) Appeal from the Plaintiffs-Appellants, ) Circuit Court of ) Cook County. v. ) ) No. 21 L 001376 JARAH J. BURGIN, JR., Individually and as Agent of ) Fix It 1st, Inc., a Corporation; and FIX IT 1ST, INC., a ) Honorable Corporation, ) Bridget A. Mitchell, ) Judge Presiding. Defendants-Appellees. )
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Howse and Cobbs concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order denying the plaintiffs’ motion for a new trial is affirmed. The circuit court did not abuse its discretion when it found that the jury’s verdict was not against the manifest weight of the evidence, and the plaintiffs had waived all claims of instructional error by not objecting to the jury instructions at trial.
¶2 This cause of action stems from a complaint filed by the plaintiffs-appellants, Tanya M.
Zawadzki and Patrick M. Garcia, against the defendants-appellees, Jarah J. Burgin, Jr., No. 1-25-1733
individually, and as an employee of Fix It 1st, Inc. (hereinafter Fix It), seeking to recover damages
allegedly sustained after a van, owned by Fix It, and driven by Burgin as part of his employment,
negligently rear-ended their vehicle. After a jury trial, the jury returned a verdict in favor of the
defendants, and the circuit court entered judgment in their favor and against the plaintiffs. The
plaintiffs filed a motion for a new trial which was denied. The plaintiffs now appeal from the
circuit court’s denial of that motion, arguing that: (1) the jury’s verdict was against the manifest
weight of the evidence; (2) the jury ignored the tendered jury instructions; and (3) several
erroneously tendered jury instructions prejudiced the outcome of their trial. For the following
reasons, we affirm.
¶3 I. BACKGROUND
¶4 At the outset, we note that the record before us is incomplete and does not contain a report
of the proceedings below, or any acceptable substitute—such as a bystanders’ report or an agreed
statement of facts—as authorized under Illinois Supreme Court Rule 323 (eff. Dec. 13, 2005). The
common law record, which includes some of the parties’ pleadings, however, contains excerpts of
transcripts of portions of the pretrial proceedings and the jury trial, attached as exhibits. From these
excerpts and the trial court’s orders contained in the common law record, we have been able to
glean the following pertinent facts and procedural history.
¶5 At approximately 6 p.m. on February 7, 2019, the plaintiffs, Zawadzki and Garica, and the
defendant, Burgin, were involved in a two-vehicle collision on Cicero Avenue near 39th Street.
On February 5, 2021, the plaintiffs filed a complaint alleging that Burgin negligently drove his van
into their vehicle and that Fix It was vicariously liable for Burgin’s conduct because, at the time
of the accident, he was operating the van on its behalf. The defendants filed answers admitting that
at the time of the collision, Burgin was working for Fix It but denying any negligence. The
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defendants also filed affirmative defenses against Zawadzki for comparative fault, and a
counterclaim for contribution against Zawadzki for injuries to Garcia.
¶6 On the eve of trial, the parties reached a settlement as to the defendants’ counterclaim
against Zawadzki, and on June 6, 2024, the circuit court entered an order dismissing the
counterclaim with prejudice.
¶7 The parties proceeded with a jury trial. The following evidence was undisputed. On the
night of the accident, the weather was cold, rainy and snowy, it was dark out, and the road was
wet. At the time of the collision, Zawadzki was driving her 1999 Ford Expedition SUV northbound
on Cicero Avenue and her partner, Garcia, was in the front-passenger seat, while their five-year-
old daughter sat in the back. While driving Fix It’s van as part of his job, Burgin collided with
Zawadzki’s SUV. The points of impact were the front of Fix It’s van and the back end of
Zawadzki’s SUV.
¶8 At trial, the parties disputed liability and damages. With respect to the incident, Zawadzki
and Garcia testified that Zawadzki was driving the SUV downhill and northbound on Cicero
Avenue. The SUV was in the center lane of the two northbound lanes throughout the incident and
Zawadzki never changed from the left lane to the center lane. Zawadzki was driving at a speed of
10 mph in the 30 or 40 mph zone because the weather was poor and she was approaching the train
tracks. About half-way down the block, the SUV was struck “hard” from behind and pushed
forward about two car lengths. Neither Zawadzki nor Garcia saw the van that hit them or had any
inkling that a collision was about to happen until the impact.
¶9 In contrast, Burgin testified that prior to the accident, he was driving within the speed limit
in the center lane of Cicero Avenue heading northbound. There were no cars immediately in front
of him. The right lane was stopping and moving slowly. About 100 to 200 feet before the train
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tracks, Zawadzki’s SUV suddenly cut over from the right lane into his lane. Burgin pressed on his
break as hard as he could and braced for impact, but his van slid because of the slippery road and
hit the SUV with “medium” force. Burgin testified that there were no other evasive maneuvers
available to him because there were cars on both sides of his van. The impact of the collision
pushed the SUV across the train tracks and left Burgin’s van in the middle of the tracks. Burgin
acknowledged that the van was inoperable after the crash and had to be towed, but that the SUV
appeared to have sustained little damage.
¶ 10 With respect to their injuries, Zawadzki and Garcia testified that although they were
wearing their seatbelts, upon impact, they went “forwards and backwards very hard.” Neither of
their airbags deployed, and Zawadzki’s chest hit the steering wheel, while Garcia braced for impact
with his hands. Garcia immediately felt pain in his right shoulder and arm, while Zawadzki was
“more in shock.” Garcia had no movement in his right hand, so he used his left to open the
passenger side door and exit the SUV, while Zawadzki proceeded to the backseat to comfort their
daughter who was crying. Zawadzki and Garcia did not request an ambulance at the scene.
According to Garcia, although the SUV sustained damage in the collision, and subsequently
needed repairs, “surprisingly it wasn’t that bad” because it “sits pretty high” so “the bumper
absorbed most of the hit.” Because the SUV was operational after the collision, after speaking with
the police, Zawadzki drove Garcia and their daughter home in it.
¶ 11 Zawadzki testified that although she did not think she was injured during the collision, later
that same night, she began experiencing pain radiating from her neck to her right arm, through her
back and down her right leg. Zawadzki went to the emergency room (ER) early next morning.
After being treated there, she was subsequently seen by Dr. Blair Rhode, who ordered MRIs of her
neck and back, which revealed two bulging discs. Dr. Rhode initially referred Zawadski to physical
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therapy, but after that did not work, she was treated by pain management specialist Dr. Chundri,
who administered two injections into her lower back. Zawadzki admitted that before she was given
her second pain injection, on July 31, 2019, she fell on her tailbone, necessitating a separate visit
to the ER.
¶ 12 Garcia testified that he first sought medical treatment a week after the accident because he
believed his arm would get better on its own. After an MRI, Dr. Rhode informed Garcia that he
had a “massive rotator cuff tear” and needed surgery. On July 16, 2019, Garcia underwent shoulder
surgery, after which he wore a brace and did physical therapy for four months. In that time, he was
unable to work or enjoy his every day activities.
¶ 13 With respect to damages, each party presented its own expert witnesses. The record before
us, however, is unclear as to how, and to what extent, this evidence was presented to the jury—i.e.
by way of the expert’s testimony or the presentation of portions of the experts’ prerecorded
videotaped evidence depositions. Nonetheless, because the parties seemingly agree as to the
identity of the experts and the substance of the evidence they offered, we briefly summarize it here.
¶ 14 Dr. Rhode, Zawadzki’s and Garcia’s treating physician, who is board-certified in
orthopedic and sports medicine, testified that he diagnosed Zawadzki with a cervical, thoracic, and
lumbar sprain, a protruding disc at T7-T8, an annular bulge at C4-C6, facet arthrosis, and loss of
lordosis. Without the benefit of an MRI taken prior to the accident to rule out if any of these were
preexisting conditions, Dr. Rhode could not be certain that the car crash was the sole cause of
Zawadzki’s injuries and, instead, opined that the injuries were either caused or aggravated by that
car crash. Dr. Rhode further testified that Zawadzki’s treatment (i.e., ER visit, MRIs, physical
therapy and two pain injections) was necessary and the costs reasonable. On cross-examination,
Dr. Rhode admitted that he was unaware that while being treated for her crash-related injuries
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Zawadzki fell and injured her tailbone and acknowledged that such a fall could have affected her
lumbar spine and exacerbated the need for her second pain management injection. Dr. Rhode
further testified that he diagnosed Garcia with a full thickness rotator cuff tear and cervical strain,
and opined that these injuries were caused by the car crash. According to Dr. Rhode, Garcia’s
subsequent surgery and physical therapy were necessary and the costs reasonable.
¶ 15 Defense expert, and board-certified orthopedic surgeon, Dr. Jason Rotstein, who reviewed
Garcia’s medical records and deposition testimony, opined that it was more probably true than not
(i.e., a greater than 50 percent likelihood) that Garcia sustained the rotator cuff tear in the car
accident. However, according to Dr. Rotstein there was no “definitive evidence of a mechanism
of injury during the accident to result in the rotator cuff tear.” Dr. Rotstein also opined that except
for the administration of stem cells during Garcia’s shoulder surgery, Garcia’s treatment was “for
the most part” appropriate and necessary.
¶ 16 Defense expert, and board-certified pain medicine and physical rehabilitation specialist,
Dr. Karina Bouffard testified that after reviewing Zawadzki’s medical records, the parties’
interrogatories, and photos of the two vehicles involved in the collision, it was her opinion that
Zawadzki only sustained cervical and lumbar sprains in the car crash. Dr. Bouffard testified that
these injuries should have been treated and could have been resolved by four to six weeks of
physical therapy, rest, and medication. According to Dr. Bouffard, the lower back pain
management injections given to Zawadzki were not reasonable nor necessitated by the car crash
as they were treating an underlying degenerative condition (i.e., lumbar spondylosis). Dr. Bouffard
acknowledged, however, that this preexisting condition could have been worsened or exacerbated
by the car crash.
¶ 17 Registered nurse and certified professional medical coder, Mary Rossi, testified that she
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reviewed the plaintiffs’ medical records and bills. Among other things, Rossi challenged certain
billing practices used by the providers and opined that of the $76,330.44 charged for Zawadzki’s
treatment, the reasonable value was $44,153.77, and of $96,353.12, charged for Garcia’s
treatment, the reasonable value was $30,755.42.
¶ 18 After hearing closing arguments, the jury deliberated for two and a half hours, after which
it returned a verdict in favor of the defendants and against each plaintiff. Judgement was entered
for the defendants and against the plaintiffs on June 10, 2024. After several extensions, on
November 8, 2024, the plaintiffs filed a posttrial motion seeking a new trial. The plaintiffs argued
that the jury’s verdict was against the manifest weight of the evidence, the jury ignored the
tendered jury instructions, and they were prejudiced by several improper jury instructions. In
support, the plaintiffs attached an affidavit from their counsel, attesting that after trial she spoke
with the jury foreman who informed her that the jury was confused as to how to render a verdict
in favor of Garcia as they believed Zawadzki shared some portion of liability but the verdict forms
did not explain what to do in that situation.
¶ 19 After the parties briefed the motion, the circuit court held a hearing on May 1, 2025. The
record before us, however, does not contain a transcript from that hearing, or any acceptable
substitute, such that we cannot know what transpired there. The record only contains the circuit
court’s August 4, 2025, written order denying the plaintiffs’ motion for a new trial, from which
the plaintiffs now appeal.
¶ 20 II. ANALYSIS
¶ 21 A. Jury Verdict
¶ 22 On appeal, the plaintiffs first argue that the circuit court should have granted their motion
for a new trial because the jury’s verdict was against the manifest weight of the evidence. We
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disagree.
¶ 23 It is axiomatic that when a party files a posttrial motion seeking a new trial, the circuit court
weighs the evidence and may set aside the verdict and order a new trial where “the verdict is
‘contrary to the manifest weight of the evidence.’ ” Hassard v. DS Retail, L.L.C., 2023 IL App
(4th) 220687, ¶ 32 (quoting Hamilton v. Hasting, 2014 IL App (4th) 131021, ¶ 26); see also Maple
v. Gustafson, 151 Ill. 2d 445, 454 (1992). “A verdict is against the manifest weight of the evidence
where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable,
arbitrary, and not based upon any of the evidence.” (Internal quotation marks omitted.) Hassard,
2023 IL App (4th) 220687, ¶ 32. A reviewing court will not reverse the circuit court’s ruling on a
motion for a new trial absent an abuse of discretion. Id. “This is so because the trial judge had the
benefit of observing the witnesses firsthand and the trial and credibility issues may have been
relevant to the jury’s verdict.” Hamilton, 2014 IL App (4th) 131021, ¶ 26; Maple, 151 Ill. 2d at
456. In deciding whether the circuit court abused its discretion, we consider whether the jury’s
verdict was supported by the evidence and whether the losing party was denied a fair
trial. Hassard, 2023 IL App (4th) 220687, ¶ 32.
¶ 24 In the present case, to succeed on a negligence claim, the plaintiffs were required to prove
that: (1) the defendants (Burgin individually and Fix It vicariously) owed them a duty of care; (2)
the defendants breached that duty; and (3) the breach was the proximate cause of their injuries.
Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 235-35, (2010); Trigsted v. Chicago Transit
Authority, 2013 IL App (1st) 122468, ¶ 52. While the driver of a vehicle generally has “a duty to
see other cars traveling ahead in the traffic lane and to be sufficiently in control of his vehicle so
as to be able to stop it without running into other traffic lawfully on the road,” a rear-end collision
does not itself automatically create a legal inference that the driver of the rear car was negligent.
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Kropalski v. Lyman, 114 Ill. App. 3d 563, 566 (1983). Instead, the jury, as the trier of fact, must
determine whether the rear driver was acting reasonably under the circumstances and whether the
accident was avoidable. Id. Similarly, whether proximate cause exists is a question of fact reserved
for the jury. Krywin, 238 Ill. 2d at 226.
¶ 25 In the present case, the jury heard contradictory versions regarding the accident. While
the parties agreed that conditions were poor and the roadway was wet, they disagreed as to who
was responsible for the collision. On one hand, the plaintiffs claimed that throughout the incident
they were travelling northbound in the central lane of Cicero Avenue, and that they did not see or
anticipate Burgin’s van until he rear-ended their SUV. On the other hand, Burgin testified that
shortly before the collision, the plaintiffs made a sudden lane change from the right into the central
lane, such that despite his best efforts to avoid them by pressing on his breaks as hard as he could,
his van slid into their SUV.
¶ 26 Based on this evidence, and their ability to observe the demeanor of each witness, the
jury was well within its province to choose which version of events to believe. See Maple, 151 Ill.
2d at 452 (“Unquestionably, it is the province of the jury to resolve conflicts in the evidence, to
pass upon the credibility of the witnesses, and to decide what weight should be given to the
witnesses’ testimony.”). We find nothing manifestly erroneous in its decision to credit Burgin’s
testimony over that of the plaintiffs and render a verdict in favor of the defendants solely on
liability. Since the jury’s verdict was supported by the evidence, we find no abuse of discretion in
the circuit court’s order denying the plaintiffs’ request for a new trial. Hassard, 2023 IL App (4th)
220687, ¶ 32.
¶ 27 To the extent that the plaintiffs argue that in denying their motion for a new trial, the
circuit court improperly evaluated the parties’ evidence regarding damages, we disagree. In its
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written order denying that motion, the circuit court explicitly stated that, given that the jury found
in favor of the defendants as to each of the plaintiff’s negligence, it did not consider the damages
analysis in its decision. The court merely commented that the plaintiffs’ damages and the nature
and extent of their injuries were also disputed at trial and that the jury therefore may have been
persuaded by this testimony. The court, nonetheless, explicitly found that there was sufficient
evidence presented at trial for the jury to conclude that the defendants were not at fault for the
accident, supporting a verdict for the defendants solely on the issue of liability.
¶ 28 B. Jury Instructions
¶ 29 The plaintiffs next argue, just as they did before the circuit court, that they are entitled to a
new trial based on several errors arising from the jury instructions. First, the plaintiffs assert that
the jury disregarded two jury instructions informing them that the “rights of the plaintiffs,
Zawadzki and Garcia” were “separate and distinct” and that “contributory negligence did not apply
to Garcia.” See Illinois Pattern Jury Instructions, Civil (hereinafter IPI Civil), Nos. 11.02 and 41.01
(2011). The plaintiffs argue that because there was no evidence that “Garcia did anything wrong,”
and there was no dispute that he suffered an injury, had the jury followed these instructions, it
could not have ruled in favor of the defendants and did so, as per the jury foreman’s posttrial
comments to their attorney, only because it was not given an appropriate verdict form. The
plaintiffs assert that the jury should have been given a modified version of IPI Civil No. 45.03(A)
(2011), which it calls “Verdict Form B2,” under which it would have been permitted to consider
Zawadzki’s contributory negligence in the context of the defendants’ liability to Garcia. Lastly,
the plaintiffs argue that the jury should not have been instructed that in deciding Zawadzki’s
negligence, it could consider whether Zawadzki violated the following statute, which was in effect
in Chicago at the time of the accident: “A vehicle shall be driven as nearly as practicable entirely
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within a single lane and shall not be moved from such lane until the driver has first ascertained
that such movement can be made with safety.” 625 ILCS 11-709(a) (West 2020). See with IPI
Civil No. 60.01 (2011).
¶ 30 The defendants contend that the plaintiffs’ arguments regarding the jury’s failure to follow
the given instructions are purely conclusory, that the jury foreman’s comments to the plaintiffs’
attorney did not entitle them to a new trial 1, and that any objections the plaintiffs now have to the
tendered jury instructions being improper are waived since they did not object to them at trial. In
addition, the defendants assert that contrary to the plaintiffs’ assertion, “Verdict Form B2” and all
other references to Zawadzki’s comparative fault in causing Garcia’s injuries were removed from
the jury instructions after the parties reached a settlement on the defendants’ counterclaim against
Zawadzki.
¶ 31 For the following reasons, we affirm the judgment of the circuit court with respect to any
claims arising from the jury instructions. Our supreme court has repeatedly held that the burden is
on the appellant to present a sufficiently complete record of the trial proceedings to support a claim
of error on appeal. Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 156 (2005); Webster v.
Hartman, 195 Ill. 2d 426, 432 (2001); Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984); see also
Dargis v. Paradise Park, Inc., 354 Ill. App. 3d 171, 176 (2004). A reviewing court “is not a
1 See Redmond v. Socha, 216 Ill. 2d 622, 636 (2005) (“The law in Illinois is clear on the subject of the use of juror testimony or affidavits for the purpose of impeaching a verdict. Juror testimony or affidavit will not be admitted to show the motive, method, or process by which the jury reached its verdict. *** This rule serves to protect not only the finality of judgments but the privacy of the jury room. In addition *** it protects [the] jurors from being “ ‘ “harassed and beset by the defeated party” ’ ” post- trial in an effort to upset an unfavorable outcome [Citations]”); Taylor v. R.D. Morgan & Assoc., Ltd., 205 Ill. App. 3d 682, 692 (1990) (“It is well established in this State, and almost universally recognized, that a jury may not impeach its verdict by affidavit or testimony which shows the motive, method or process by which the verdict was reached. The authorities are in accord that the testimony or affidavits of jurors cannot be used to show that the jury misunderstood the instructions or the law.”); see also Chalmers v. City of Chicago, 88 Ill. 2d 532, 537 (1982) (same). 11 No. 1-25-1733
depository in which an appellant may dump its arguments without factual foundation in the hopes
that [this court] will sift through the entire record to find support for a determination favorable to
appellant’s position.” Coffey v. Hancock, 122 Ill. App. 3d 442, 444 (1984). In the absence of an
adequate record supporting the plaintiffs’ claims of error, we must resolve “[a]ny doubts which
may arise from [that] incompleteness *** against the appellant[s],” and will presume that the
circuit court’s order had a sufficient factual basis and that it conforms with the law. Foutch, 99 Ill.
2d at 392; see also Corral, 217 Ill. 2d at 157; Webster, 195 Ill.2d at 432; .
¶ 32 Here, the plaintiffs’ claimed errors arise from the tendered jury instructions. Yet, the record
before us does not contain those instructions. As previously noted, we are without a report of the
proceedings and therefore without a transcript of the trial judge’s charge to the jury. While the
common law record contains some of the parties’ proposed instructions, and an excerpt from a
portion of the jury instruction conference, neither clearly establishes which of the proposed
instructions were ultimately tendered to the jury. In fact, that excerpt of the jury instruction
conference ends in the trial judge inviting the parties to “shoot [her] an email” if “there’s an issue
and there is something you’re not able to work out, just send me the instruction. You know, if
there’s one you’re not sure what you want to do with it and you’re having a dispute, just send it to
me.”
¶ 33 In its written order denying the plaintiffs’ motion for a new trial based on the same
instructional errors the plaintiffs raise in this appeal, the circuit court stated that “the parties
presented [it] with a combined set of proposed jury instructions” and that the plaintiffs
subsequently made no objections to the instructions ultimately tendered to the jury. Given that “the
plaintiffs made no objections” to these tendered jury instructions, the court concluded that the
plaintiffs’ claims were waived. See Studt v. Sherman Health Systems, 2011 IL 108182 ¶ 28 (to
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challenge a jury instruction, a party must make a specific objection and tender an alternative
instruction at the jury instruction conference, thereby giving the trial court an opportunity to correct
the problem).
¶ 34 In the absence of a complete record and the ability to ascertain which instructions were
tendered, which alternatives, if any, were proposed, and whether and how the instructions impacted
the jurors’ ability to apply the law to the facts of this case, we must resolve any doubts arising
from such incompleteness against the appellants, and conclude that the circuit court’s order had a
sufficient factual basis and was in conformity with the law. See Corral, 217 Ill. 2d at 156 (holding
that absent an adequate record preserving the claimed error, a reviewing court will presume that
the circuit court’s ruling was in conformity with the law and had a sufficient factual basis, and any
doubts arising from the incompleteness of the record will be resolved against the appellant, and
the order of the circuit court will be affirmed). Accordingly, we find no error in the circuit court’s
denial of the plaintiffs’ motion for a new trial.
¶ 35 III. CONCLUSION
¶ 36 For these reasons, we affirm the judgment of the circuit court.
¶ 37 Affirmed.