Zimmer v. Melendez

583 N.E.2d 1158, 222 Ill. App. 3d 390, 164 Ill. Dec. 836, 1991 Ill. App. LEXIS 2082
CourtAppellate Court of Illinois
DecidedDecember 17, 1991
Docket2-91-0443
StatusPublished
Cited by21 cases

This text of 583 N.E.2d 1158 (Zimmer v. Melendez) 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
Zimmer v. Melendez, 583 N.E.2d 1158, 222 Ill. App. 3d 390, 164 Ill. Dec. 836, 1991 Ill. App. LEXIS 2082 (Ill. Ct. App. 1991).

Opinions

JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, Leo and Lavergne Zimmer, appeal from a jury verdict against defendant, Eugenio J. Melendez, for $2,500. The issues on appeal are (1) whether the trial court erred in refusing to tender plaintiffs’ jury instruction defining “society and companionship” for loss of consortium; (2) whether the trial court erred in barring evidence of future medical treatment and expenses; and (3) whether damages awarded to plaintiffs were inadequate. We affirm in part, reverse in part and remand.

On February 12, 1989, plaintiffs, residents of Wisconsin, were driving southbound on Skokie Valley Highway in Highland Park, lilinois, on their way to Florida. The vehicle was stopped for a light at the intersection of Skokie Valley Highway and Clavey Road. While stopped, the plaintiffs’ vehicle was hit by the defendant’s vehicle. Defendant’s vehicle sideswiped the right side of plaintiffs’ vehicle after careening off a truck. Defendant had also been traveling southbound.

The police arrived and completed the accident report. Leo did not indicate to the police officer that he hurt his shoulder, but mentioned a sore back. The plaintiffs’ vehicle was towed away. The vehicle was repaired in approximately seven hours, and plaintiffs continued on to Florida. While in Florida, Leo experienced shoulder pain. His daughter, a nurse, put hot packs on his shoulder to help relieve the pain. Leo did not see a doctor during the five-week period he remained in Florida.

After returning to Wisconsin, Leo went to a general practitioner, Dr. Asinas. Dr. Asinas told Leo that he had a sprained shoulder. In April 1989, Dr. Asinas referred Leo to Dr. Shivaram, an orthopedic surgeon. Dr. Shivaram testified that Leo had full range of motion with his right shoulder, but was experiencing pain. Dr. Shivaram’s diagnosis was a rotator cuff tear. Leo saw Dr. Shivaram three more times, the last time in August 1989. The condition of Leo’s shoulder was unchanged. Dr. Shivaram’s prognosis was a 10% permanent partial disability of the right shoulder.

Dr. Shivaram also testified at his evidence deposition that he believed Leo needed to have surgery to repair the torn rotator cuff. He opined that the cost of the surgery would be about $5,000 to $6,000. This evidence was barred by the trial judge and not read to the jury at trial.

Leo sought no additional medical treatment after August 1989. He testified that he had difficulty performing routine tasks and his recreational skills had diminished. Leo also testified that his condition affected his ability to work on his lawn care business.

Plaintiffs filed suit on February 23, 1990, seeking compensation for Leo’s medical expenses, pain and suffering and lost wages. Count II of the complaint sought loss of consortium damages for Lavergne. The trial commenced on January 29, 30 and 31, 1991, solely on the issue of damages. The jury awarded Leo $2,500 for his special and general damages. Lavergne was awarded nothing for loss of consortium. Post-trial motions were denied on March 22, 1991. Plaintiffs filed a timely appeal.

First, the court will address a procedural matter raised by the defendant. Defendant argues in his brief that the plaintiffs’ statement of facts and arguments which cite to the record should be stricken because the record was not properly certified. Defendant was not served with a copy of plaintiffs’ written request for preparation of the report of proceedings. Also, defendant was not notified by the court reporter that the report of proceedings was complete and ready for filing. Defendant argues that plaintiffs’ actions violated Supreme Court Rules 323(a) and (b) (134 Ill. 2d Rules 323(a), (b)). Defendant claims that he was prejudiced by this error in that this court has before it an incomplete and uncertified record.

This argument is essentially the same argument presented in defendant’s motion to strike plaintiffs’ brief or dismiss the appeal. The motion was filed two days after the defendant’s brief was filed. The motion was denied' by this court.

Certification of the report of proceedings is not a jurisdictional requirement to an appeal. (Sakellariadis v. Spanos (1987), 163 Ill. App. 3d 1084, 1088.) A reviewing court may treat the report of proceedings as certified if no prejudice is alleged by the appellee. (Sakellariadis, 163 Ill. App. 3d at 1088.) Defendant has alleged prejudice, but we have reviewed the entire report of proceedings and find it to be complete. No prejudice will result in treating the report of proceedings as properly certified.

The first substantive issue we will address is plaintiffs’ contention that the trial judge erred in refusing to tender a jury instruction defining “society and companionship.” On September 30, 1991, this court granted a motion allowing plaintiffs to supplement the record to include a copy of the tendered and refused jury instruction. As such, the disputed instruction is part of the record.

Plaintiffs argue that the phrase “society and companionship” is not a phrase of common usage. Thus, the jurors needed the phrase defined in an instruction. Plaintiffs cite Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, a wrongful death case in which “society” was defined in an instruction. The Appellate Court, First District, found the definition generally reflected that of “society” in wrongful death actions and allowed the instruction. Singh, 165 Ill. App. 3d at 933.

The trial court has considerable discretion to determine the form in which jury instructions shall be given. (Soderquist v. St. Charles Mall Associates, Ltd. (1988), 177 Ill. App. 3d 207, 222.) The existence of a pattern instruction does not automatically preclude the use of a nonpattern instruction. (Soderquist, 177 Ill. App. 3d at 222.) But, a party has no right to submit an instruction if another instruction has adequately covered the subject. Reed v. Northwestern Publishing Co. (1988), 124 Ill. 2d 495, 520-21.

Here, plaintiffs’ tendered and refused instruction No. 8 was a nonpattern jury instruction:

“When I use the expression ‘society and companionship’ I refer to the broad range of family benefits which one member receives from the other including love, affection, attention, comfort, protection and services.”

Plaintiffs’ instruction No. 7, which was given by the trial court, was a modification of Illinois Pattern Jury Instructions, Civil, No. 32.01 (3d ed. 1991) (hereinafter IPI Civil 3d), which included a claim for loss of consortium:

“The reasonable value of the society and companionship with her husband of which she has been deprived [and] the society and companionship with her husband of which she is reasonably certain to be deprived in the future.”

This phrase is similar to IPI Civil 3d No. 32.04, which defines loss of consortium:

“The reasonable value of the society, companionship and sexual relationship with his wife of which he has been deprived [and the society, companionship and sexual relationship with his wife of which he is reasonably certain to be deprived in the future].”

“Society” in IPI Civil 3d No.

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Zimmer v. Melendez
583 N.E.2d 1158 (Appellate Court of Illinois, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
583 N.E.2d 1158, 222 Ill. App. 3d 390, 164 Ill. Dec. 836, 1991 Ill. App. LEXIS 2082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zimmer-v-melendez-illappct-1991.