dissenting:
I respectfully dissent. The majority asserts that “there was uncontroverted evidence which showed that Obszanski was disabled after the accident.” 328 Ill. App. 3d at 556. The record reveals that the issues of liability and damages were completely controverted at trial. The defense medical expert, Dr. McClellan, testified that plaintiffs herniated disc was due to degeneration over time and was not due to plaintiffs fall. While plaintiffs counsel did argue that plaintiff was permanently disabled as a result of the fall, plaintiff testified that he returned to work immediately after the fall. Plaintiff then worked voluntary overtime the next two days and also worked four additional days before seeing a doctor who recommended that plaintiff cease working. Plaintiff was employed as an ironworker. The record contains much evidence as to how physically demanding this job is. Plaintiff testified that he felt fine when he did return to work after his operation, and his medical expert, Dr. Skaletsky, testified that plaintiff had a “complete recovery” from the herniated disc. Plaintiff subsequently returned to work as an ironworker for more than a year and a half. He then became an electrician, which is also a physically demanding job, and subsequently suffered another slip and fall which injured the exact same area of his lower back as that injured in the instant case.
As support for reversing the jury’s verdict, the majority relies on the holdings in Torres v. Irving Press, Inc., 303 Ill. App. 3d 151 (1999), Burnham v. Lewis, 217 Ill. App. 3d 752 (1991), and Blevins v. Inland Steel, Inc., 180 Ill. App. 3d 286 (1989). In each of these cases, the evidence that the plaintiffs introduced that they were disabled truly was uncontroverted. That is in sharp contrast to the evidence here.
The majority cites Snover v. McGraw, 172 Ill. 2d 438, 447 (1996), for the proposition that “[a] jury’s award of damages in a particular case is entitled to ‘substantial deference.’ ” 328 Ill. App. 3d at 554. That opinion went on: “The determination of damages is a question of fact that is within the discretion of the jury. [Citations.] This court will not upset a jury’s award of damages ‘unless a proven element of damages was ignored, the verdict resulted from passion or prejudice, or the award bears no reasonable relationship to the loss suffered.’ [Citations.]” 172 Ill. 2d at 447.
In Snover, our supreme court held that a jury is permitted to award pain-related medical expenses while at the same time also determining that the evidence of pain and suffering was not sufficient to support a monetary award. In doing so, the court considered the fact that this was not an inconsistency which would call for a new trial on the issue of damages where the jury had to resolve credibility questions, including the plaintiffs delay in seeking some of the treatment, her ability to continue participating in everyday activities, and the conflicting expert witness testimony.
Snover was followed in Zuder v. Gibson, 288 Ill. App. 3d 329 (1997), and White v. Leuth, 283 Ill. App. 3d 714 (1996). In Zuder, plaintiff suffered injuries in a traffic accident. A jury subsequently gave plaintiff an award including damages for medicad expenses, lost income, and pain and suffering but gave no award for loss of normal life or disfigurement. The appellate court held that such an award was not irreconcilably inconsistent based on the conflicting evidence presented and it was within the sole province of the jury to determine the weight and credibility to be given the witnesses and evidence. Similarly, in White, a jury awarded a child bicyclist who crashed into a truck $70,000 for medical expenses and pain and suffering but nothing for disability and disfigurement. In affirming the award, the appellate court focused on trial testimony that the child would not suffer a permanent loss of function of his teeth and no permanent restriction in his diet or physical activity. We held that the determination of damages turned solely on the particular facts of the case and a jury’s assessment of damages is entitled to substantial deference.
As the majority points out (328 Ill. App. 3d at 555), “disability” has been defined as the “[ajbsence of physical, intellectual or moral powers; *** incapacity caused by physical defect or deformity” (Black’s Law Dictionary 461 (6th ed. 1990)). In this case, plaintiffs counsel argued that his client was permanently disabled. Plaintiff continued to work as an ironworker for six days after the fall and subsequently recovered sufficiently after surgery to resume his occupation for more than a year and a half before taking another strenuous job. To reverse the jury’s decision that plaintiff did not suffer a permanent “absence of physical powers” or an “incapacity caused by physical defect or deformity,” it is not enough for the majority to simply disagree with that decision. The majority must find that “ ‘a proven element of damages was ignored, the verdict resulted from passion or prejudice, or the award bears no reasonable relationship to the loss suffered.’ [Citation.]” Snover v. McGraw, 172 Ill. 2d at 447. In the absence of such a finding, the jury’s verdict must be affirmed.
Even if reversal were appropriate, I believe that limiting the retrial to the sole issue of damages is also erroneous. As the majority points out, granting such a new trial is only appropriate when “ ‘the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant.’ ” 328 Ill. App. 3d at 556, quoting Burnham v. Lewis, 217 Ill. App. 3d at 757. In the instant case, the issues of liability and damages are inextricably intertwined.
Finally, I also disagree with the majority’s decision to reverse the trial court’s ruling allowing the admission of evidence of plaintiff s subsequent injury. A trial court’s evidentiary rulings as to the admissibility of evidence will not be overturned, absent a clear abuse of discretion resulting in manifest prejudice to a party. Moore v. Anchor Organization for Health Maintenance, 284 Ill. App. 3d 874, 879 (1996). The trial court weighed the pros and cons of admitting the uncontroverted evidence of plaintiff’s subsequent injury and, after due consideration, chose to allow defense counsel to address it in a severely restricted manner. Plaintiff claimed that his back injury was permanent and that, at the time of trial, he still suffered pain and could not participate in certain activities because of the injury he received in 1996. Plaintiffs 1999 injury occurred as a result of another slip and fall, the injury was identical to that plaintiff suffered in 1996, it was in the exact same location in the lower back, and he was treated by the same doctor. In order to determine the extent of the damages for which this defendant was responsible, the jury had to be able to apportion plaintiffs current pain and current inability to participate in physical activities between the 1996 fall as opposed to the 1999 fall.
The majority’s opinion does not comport with the extremely deferential standard of review we are to give to the decisions of juries and trial judges.