NO. 5-95-0578
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
CHRIS BROWN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Williamson County.
)
v. ) No. 94-L-87
)
TIMOTHY BAKER, ) Honorable
) William H. Wilson,
Defendant-Appellee. ) Judge, presiding.
_________________________________________________________________
JUSTICE MAAG delivered the opinion of the court:
Plaintiff obtained a jury verdict and judgment against
defendant. Plaintiff filed a posttrial motion seeking a new trial
on damages only. The motion was denied and plaintiff appealed.
The facts are as follows. Plaintiff, Chris Brown, filed a
complaint against defendant, Timothy Baker, alleging that defendant
negligently collided with plaintiff's automobile, causing property
damage and personal injury.
Defendant filed a written admission of liability on the
morning of trial.
For his damages, plaintiff claimed injuries to the person,
pain and suffering, and medical expenses. Plaintiff alleged that
he experienced pain in his neck and lower back. The treating
physician testified that plaintiff had a herniated disc in his
lower back.
Prior to trial, plaintiff's physician was deposed. Defense
counsel asked on cross-examination whether the physician had
treated plaintiff for a previous back problem prior to the
accident. The physician replied affirmatively over plaintiff
counsel's objection.
Before trial, defendant filed a motion in limine seeking to
prevent plaintiff from limiting defendant's inquiry into the prior
back injury. The court granted that portion of defendant's motion
over plaintiff's objections. Consequently, defendant was able to
inquire as to plaintiff's previous back injury. However, the
record fails to indicate that defense counsel ever elicited
testimony to suggest that plaintiff's current ailments were
causally related to plaintiff's prior back problem.
Among the instructions tendered by the plaintiff was an
instruction requesting damages for "physical injury to the body
(not otherwise included in the elements of loss of a normal life or
pain and suffering)." The court refused the instruction.
The jury awarded plaintiff $4,912.50. Plaintiff now appeals.
On appeal, plaintiff contends:
(1) The trial judge erred in allowing evidence of
plaintiff's prior back injury;
(2) The trial judge erred in failing to give
plaintiff's instruction on physical injury to
the body (not otherwise included in the ele-
ments of loss of a normal life or pain and
suffering); and
(3) The trial judge abused his discretion in
failing to order a new trial in light of the
jury's award of $4,912.50, which was palpably
inadequate and the result of passion and
prejudice by the jury against plaintiff.
Plaintiff first argues that the trial judge erred in allowing
the defendant to introduce evidence of plaintiff's prior back
injury. The evidence, plaintiff asserts, should not have been
admitted because defendant did not show a causal connection between
the past and present back injuries. We agree.
It is well settled in Illinois that a plaintiff in a negli-
gence action bears the burden of proving duty, breach of duty, and
proximate cause of the injury. Taake v. WHGK, Inc., 228 Ill. App.
3d 692, 711, 592 N.E.2d 1159 (1992).
Generally, a plaintiff in a personal injury case must present
the testimony of a medical expert to establish causation if the
relationship between the claimed injury and the event in question
requires special knowledge and training to establish. For example,
if a plaintiff suffers a cut in an accident, the jury can readily
determine without expert testimony that the accident caused the
cut. But, if the nature of plaintiff's injury is complex or if the
condition could be the result of some event or condition other than
the accident in question, then expert testimony may be needed to
establish the particular event that caused the pain and the
underlying medical condition. This proof of causation is usually
accomplished by presenting testimony from a physician on the
causation issue. Plooy v. Paryani, 275 Ill. App. 3d 1074, 657
N.E.2d 12 (1995).
We recognize that, historically, when determining whether a
defendant must show causation regarding a preexisting condition,
Illinois courts have focused merely on whether the prior and
present injuries were to the same part of the body. We find this
analysis to be in need of refining.
We are compelled to first consider the reasoning behind the
longstanding "same part of the body" rule. Generally, a defendant
in a personal injury case may cross-examine a plaintiff regarding
any previous injuries if they are relevant and similar to those at
issue. Leahy v. Illinois Power Co., 103 Ill. App. 3d 487, 431
N.E.2d 390 (1981). The rationale for allowing such evidence is to
allow a defendant to show that plaintiff's present ailments
resulted from a previous accident or injury and not from the events
which gave rise to the current litigation. Saputo v. Fatla, 25
Ill. App. 3d, 775, 324 N.E.2d 34 (1975). As long as the past and
present injuries affected the same part of the body, evidence of
the prior injury has been admissible without a further showing that
it is causally related to the current injury.
This rule leaves room for curious results. For instance, a
childhood knee injury (falling and bruising a knee) could arguably
be admissible in the case of a later alleged knee injury, without
any further showing of relevance or causation, even if the prior
injury had completely healed and been symptom free for decades. In
fact, when asked at argument about such a scenario, defense counsel
adopted this very position. Such a rule defies common sense.
Obviously, evidence of the old injury is presented to imply to the
jury that the old injury, and not the occurrence presently at
issue, is responsible for the plaintiff's current complaints.
Without the benefit of testimony regarding causation in these
instances, jury members are invited to speculate on a nexus between
the past accident and the present injury. Such unfounded conjec-
ture and guesswork constitutes a violation of the very cautionary
instructions given to every Illinois juror in civil cases.
Illinois Pattern Jury Instructions, Civil, No. 1.01[3] (3d ed.
1995).
If a prior injury has long since healed and has shown no
recurring symptoms, a defendant should not be permitted to
introduce evidence of the prior injury without establishing
causation.
So that our decision is clear, we are not changing the
evidentiary rules that regulate the admission of evidence to prove
causation. We simply hold that the same standard applicable to the
plaintiff on the issue of causation should also apply to the
defendant. If a plaintiff would be required to present expert
testimony on causation, the defendant should also be required to do
the same. Thus, even if the plaintiff injured the same part of his
body which he had injured previously, if defendant wishes to claim
that the present problem is related to the prior injury, the same
standard applicable to a plaintiff proving causation should be
applied to defendant's attempt to prove causation. Accordingly,
the court erred in admitting evidence that plaintiff had suffered
a prior back injury solely on the basis that it involved the same
part of the body.
Although defendant urges us to base our ruling on Wilson v.
Granite City Steel Division of National Steel Corp., 226 Ill. App.
3d 96, 589 N.E.2d 660 (1992), that case is distinguishable. In
Wilson, we found that evidence of plaintiff's prior knee injury was
properly admissible without an independent showing of causation.
Wilson, 226 Ill. App. 3d at 112, 589 N.E.2d at 670. In Wilson, the
plaintiff had previously injured his knee and filed a claim for
that injury. There was evidence that the symptoms from the prior
injury were similar, and most importantly, in the previous injury
case the plaintiff's doctor testified that plaintiff's symptoms
were permanent. Wilson, 226 Ill. App. 3d at 108, 589 N.E.2d at
668. Because the symptoms were both similar and permanent, the
defendant in Wilson was not compelled to show causation in order to
admit evidence of the prior injury. We find no fault with such
reasoning.
In the instant case, by contrast, there was no evidence of
permanent injury due to plaintiff's prior back injury. Thus, it
was incumbent upon the defense in this case to make an independent
showing of causation for evidence of the prior back injury to be
admissible. We must, therefore, reverse and remand for a new trial
on damages.
We find no merit in defendant's contention that plaintiff
waived his objection to the admission of the prior-injury evidence.
Defendant notes that plaintiff did not contemporaneously object to
the evidence at trial, and therefore, defendant asserts that
plaintiff waived the issue.
The law in Illinois clearly provides that a denial of a motion
in limine does not preserve an objection to disputed evidence later
introduced at trial. When a motion in limine is denied, a
contemporaneous objection to the evidence at the time it is offered
is required to preserve the issue for review. Illinois State Toll
Highway Authority v. Heritage Standard Bank & Trust Co., 163 Ill.
2d 498, 645 N.E.2d 896 (1994); Cunningham v. Millers General
Insurance Co., 227 Ill. App. 3d 201, 591 N.E.2d 80 (1992).
Here, however, defendant's motion in limine was not denied;
rather, it was granted before trial. Thus, plaintiff was in effect
ordered not to object to the disputed evidence. The issue is
therefore not waived.
Defendant's further contention that plaintiff improperly
introduced evidence of the prior injury himself is likewise
unfounded. The court had ruled that the evidence was admissible.
Plaintiff was entitled to address the evidence. See People v.
Spates, 77 Ill. 2d 193, 199-200, 395 N.E.2d 563, 566 (1979); People
v. Norwood, 164 Ill. App. 3d 699, 703 n.l, 518 N.E.2d 46, 249 n.l
(1987); M. Graham, Cleary & Graham's Handbook of Illinois Evidence
§103.4, at 13-14 (6th ed. 1994).
Plaintiff also argues that the court erred in denying
plaintiff's tendered jury instruction regarding damages. The
damaged disc, plaintiff contends, constitutes physical damage to
his body that is not covered by other elements of damages.
Plaintiff maintains that the disc does not cause pain or disabili-
ty, nor does it upset his living a normal life. Consequently,
plaintiff asserts, the jury had no method of awarding damages for
this actual physical damage or "reduction of integrity" in his
damaged disc. We find plaintiff's argument to be without merit.
Plaintiff offers no case law to support his contention. Under
Supreme Court Rule 341(e)(7), an appellant's brief must include
citations to authority supporting his argument. 134 Ill. 2d R.
341(e)(7).
Although plaintiff here speaks at length of Powers v. Illinois
Central Gulf R.R. Co., 91 Ill. 2d 375, 438 N.E.2d 152 (1982), aff'g
in part & rev'g in part 92 Ill. App. 3d 264, 416 N.E.2d 1161
(1981), he fails to cite any authority specifically supporting his
argument for "reduction of integrity" damages. Thus, we find that
plaintiff's contention must fail. We find no error in the court's
refusal of the tendered instruction.
Because of our disposition of the first issue, we need not
address the claim that the damage award was inadequate.
For the foregoing reasons, the judgment of the circuit court
is affirmed in part and reversed in part, and the cause is remanded
for a new trial on damages only.
Affirmed in part and reversed in part; cause remanded with
directions.
CHAPMAN and WELCH, JJ., concur.
NO. 5-95-0578
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
CHRIS BROWN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Williamson County.
)
v. ) No. 94-L-87
)
TIMOTHY BAKER, ) Honorable
) William H. Wilson,
Defendant-Appellee. ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: October 30, 1996
___________________________________________________________________________
Justices: Honorable Gordon E. Maag, J.
Honorable Charles W. Chapman, J., and
Honorable Thomas M. Welch, J.,
Concur
___________________________________________________________________________
Attorneys Harris, Lambert, Howerton & Dorris, 300 West Main Street,
for P.O. Box 1005, Marion, IL 62959
Appellant
___________________________________________________________________________
Attorneys Joseph A. Bleyer, Bleyer and Bleyer, 601 West Jackson
for Street, P.O. Box 487, Marion, IL 62959-0487
Appellee
___________________________________________________________________________