AGGRAVATION OF PREEXISTING INJURY BELONGS IN OTHER DAMAGES

May 24, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Carefully scrutinizing Illinois precedent, the Appellate Court concluded that Illinois Pattern Jury Instruction No. 30.03 -- listing aggravation of a preexisting condition as a separate item of compensable damages -- is not an accurate statement of Illinois law. Luye v. Schopper, 2004 WL 784922 (1st Dist., April 13).

A cab door swung into Virginia Luye's leg as she was exiting the vehicle. Because she had a history of peripheral vascular disease, this seemingly minor incident resulted in serious injuries.

At the close of a negligence case against the cab company and its driver, the jury was given a verdict form, based on IPI 30.03, listing "aggravation of preexisting ailment or condition" as a separate item of compensable damages.

Other categories of compensation listed on the verdict form included reasonable expenses for necessary medical care; pain and suffering; and loss of normal life.

The jury returned a verdict of $247,580 for Luye, including $112,000 for aggravation of her preexisting condition.

Relying on Smith v. City of Evanston, 260 Ill.App.3d 925 (1994), the defendants argued that listing aggravation of a preexisting condition as a separate item on the verdict form was duplicative.

Although the trial judge admitted his "personal feeling" was that aggravation of a preexisting condition should not be separate, he concluded -- based on more recent rulings -- that he was obligated to give the pattern instruction.

The 1st District reversed. Here are some highlights of Justice Rodolfo Garcia's opinion (with various omissions not noted in the quoted text):

"When IPI Civil 3d No. 30.03 is given, the phrase '[t]he aggravation of any preexisting ailment or condition' is inserted between the two paragraphs of IPI Civil 3d No. 30.01 so that the combined instruction reads:

" 'If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from the [negligence] [wrongful conduct] [of the defendant] ...

" 'The aggravation of any preexisting ailment or condition.
" 'Whether any of these elements of damages has been proved by the evidence is for you to determine.' IPI Civil 3d Nos. 30.01, 30.03.
"IPI Civil 3d No. 30.21, which should be given whenever IPI Civil 3d No. 30.03 is given, states:

" 'If you decide for the plaintiff on the question of liability, you may not deny or limit the plaintiff's right to damages resulting from this occurrence because any injury resulted from [an aggravation of a preexisting condition] [or] [a preexisting condition which rendered the plaintiff more susceptible to injury].'

"Here, the trial court gave both IPI Civil 3d No. 30.03, which was objected to, and IPI Civil 3d No. 30.21, which was not objected to.
"The defendants first argue the trial court erred in giving IPI Civil 3d No. 30.03 and a verdict form that allowed Luye to recover for aggravation of a preexisting ailment or condition, in an itemized amount, separate and apart from the amounts awarded for pain and suffering and for loss of normal life. More specifically, the defendants appeal the use of IPI Civil 3d No. 30.03 based on Smith.
"We carefully examine the language of IPI Civil 3d No. 30.03 and the cases cited by the instruction to determine whether IPI Civil 3d No. 30.03 is an accurate statement of Illinois law.

"Most pattern jury instructions are based on case law that predates the use of itemized verdicts. The comment following IPI Civil 3d No. 30.03 cites two cases as holding that '[a]n aggravation of a preexisting ailment or condition has been held to be a separate element of compensable damages in Illinois': Behles v. Chicago Transit Authority, 346 Ill.App. 220, 231 (1952), and Wheeler v. Roselawn Memory Gardens, 188 Ill.App.3d 193 (1989)."

Putting Behles and Wheeler under the microscope, Garcia concluded:

"Neither of these cases holds, as the comments to IPI Civil 3d No. 30.03 suggest, that aggravation of a preexisting condition or ailment is a separate element of damages.

"The Illinois Supreme Court has held that pattern instructions are not exempt from challenge. Pattern instructions do not receive advance approval by the Illinois Supreme Court and are only approved or rejected through judicial questioning and consideration.

"We find that the Behles and Wheeler decisions do not support the IPI's assertion that aggravation of a preexisting ailment or condition is a separate element of compensable damages under Illinois law.

"In fact, rather than providing direct support for the use of IPI Civil 3d No. 30.03, we read the Behles decision as holding that the plaintiff may not be denied damages or be awarded limited damages because she had a preexisting ailment or condition, as set out in IPI Civil 3d No. 30.21, which the defendants did not challenge.

"In Smith, the Appellate Court determined aggravation of a preexisting condition did not constitute a separate element of damages because it would overcompensate plaintiffs due to the overlap of aggravation of a preexisting injury with awards for other elements of damages.

"The Smith court held that although the aggravation of a preexisting injury should be taken into account in awarding damages, it was error for the trial court to give the jury an instruction and itemized verdict form with aggravation of a preexisting condition as a separate element of damages.

"In reaching its decision, the Smith court relied on the reasoning of the Illinois Supreme Court in Powers [v. Illinois Central Gulf R.R. Co., 91 Ill.2d 375, 383 (1982)], where the court reversed a portion of a judgment that was based upon an itemized award for the 'nature, extent and duration' of an injury because it was redundant of other elements, such as pain and suffering, economic loss, and disability. Citing Powers, the Smith court reasoned:

" 'Just as the court in Powers could find no measure for the nature of the injury as a separate element of damages, we find no measure for the value of aggravation of a preexisting condition that is separate from the other elements of damages.

" 'A jury appraising the monetary value of aggravation of the condition needs to look to the increase in medical costs, the earnings lost which would not have been lost by reason of the preexisting condition alone, the increase in pain and suffering, and the worsening of disabilities and disfigurement.

" 'Any change in the plaintiff's ailment or condition, being an injury in itself, is measured by its consequences to the plaintiff in the form of the appropriate elements of damage. An award for aggravation of a preexisting condition overlaps with awards for all of the other elements of damages, so inclusion of aggravation of conditions as a separate element leads to the same possibility of overcompensation that led the court in Powers to rule against the use of nature of the injury as a separate element of damages, despite the approval of that as a separate category of damages in the IPI instructions then in effect.

" 'We hold that under the reasoning of Powers, aggravation of a preexisting condition is not a separate element of damages. It is, like the nature, extent and duration of the injury, a matter to take into account when assessing the proper, separable elements of damages.'

"Since the Smith decision," Garcia recounted, "there has been some disagreement about whether aggravation of a preexisting condition is a separate element of compensable damages. In denying the defendants' post-trial motion, the trial court recognized this disagreement in stating '[t]here may be a sway in the Appellate Court, at least in the 1st District, maybe that Smith would not be followed. Smith is not followed in other districts....'

"The trial court was incorrect in its statement that Smith has not been followed," Garcia explained. "First, both the 1st District and the 4th District have followed Smith. Subsequent to Smith, this court, in Tedeschi v. Burlington Northern R.R. Co., 282 Ill.App.3d 445, 450-51 (1996), cited Smith with approval and stated, 'the category of aggravation of a preexisting condition is not distinguishable from the other categories of damages.' The court went on to question what an award for aggravation of a preexisting condition covers apart from the other categories of compensation.

"The 4th District in Boehm v. Ramey, 329 Ill.App.3d 357, 365 (2002), followed Smith and held, '[a]n award of damages for aggravation of a preexisting condition overlaps with any award obtained for all of the other elements of damages.' The Boehm court further held 'there is no need for Illinois Pattern Jury Instructions, Civil, No. 30.03 if No. 30.21 is given.'

"Second, most of the disagreement has been with the Smith holding that 'loss of normal life' should be used in jury instructions rather than 'disability.'

"Only a handful of cases have disagreed with the Smith holding that aggravation of a preexisting condition is not a separate element of compensable damages. See, e.g., Kravcik [v. Golub & Co., Inc., 286 Ill.App.3d 406, 411 (1996)].

"Citing to Behles, the Kravcik court found that IPI Civil 3d No. 30.03 provides that aggravation of a preexisting condition is a separate element of compensable damages in Illinois. However, as discussed above, Behles has been misread and does not stand for this proposition. In addressing Smith, the Kravcik court found Smith to be a deviation 'from the "plethora" of cases holding that the aggravation of a preexisting condition is a separate element of compensable damages.'

"However, the 'plethora' of cases Kravcik refers to is limited to Behles, Wheeler, and Ficken v. Alton & Southern Railway Co., 255 Ill.App.3d 1047, 625 N.E.2d 1172 (1993). The court declined to follow Smith because 'it ignored prior well-reasoned case law and the established pattern jury instructions.' Kravcik, 286 Ill.App.3d at 413."

Rejecting Kravcik, Garcia decided that "Behles and Wheeler have been misread and do not support that IPI Civil 3d No. 30.03 is an accurate statement of Illinois law." Instead, Garcia explained:
"Our review of the cases cited in the comments to IPI Civil 3d No. 30.03 demonstrates that they do not support the proposition that aggravation of a preexisting condition is a separate element of compensable damages in Illinois.

"We find Smith, in relying on the analysis in Powers, to be well-reasoned and an accurate statement of Illinois law. Applying the Smith court's reasoning in this case, we find there was an overlap between aggravation of a preexisting condition and the other elements of damages. The award for aggravation of a preexisting condition is not separate and distinct from pain and suffering and loss of a normal life.

"Based on our discussion of the misapplication of law in IPI 30.03 and the reasoning of the courts in Smith and Powers, we hold IPI Civil 3d No. 30.03 should not have been given to the jury.

"Even if the review of the validity of IPI Civil 3d No. 30.03 is not a question of law, we find providing IPI Civil 3d No. 30.03 was an abuse of discretion under the facts presented in this case because it allowed for duplicative damages."

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