                                                                      FIFTH DIVISION
                                                                      March 7, 2008




No. 1-06-3072

GARCIA CLARKE, as Executor of the Estate of George               )    Appeal from the
Clarke, Jr., Deceased,                                           )    Circuit Court of
                                                                 )    Cook County
                Plaintiff-Appellee,                              )
                                                                 )    No. 03 L 6457
       v.                                                        )
                                                                 )
MEDLEY MOVING AND STORAGE, INC., and                             )    Honorable
GREGORY GRIFFIN,                                                 )    John B. Grogan,
                                                                 )    Judge Presiding.
                Defendants-Appellants.                           )


       JUSTICE O'MARA FROSSARD delivered the opinion of the court:

       After a jury trial, defendants Medley Moving and Storage, Inc. (Medley), and Gregory

Griffin were found liable in the survival claim for the pain and suffering George Clarke, Jr.

(Clarke), endured prior to his death and the wrongful death claim for his four surviving children.

On appeal, defendants contend: (1) the trial court erred in denying their motion for judgment

notwithstanding the verdict on damages for loss of past and future gifts, benefits, goods and

services; (2) the trial court erred in denying their motion for judgment notwithstanding the verdict

on damages for pain and suffering; (3) the trial court erred by not including the modifier

conscious in the jury instruction for compensation for pain and suffering; (4) the trial court erred

in denying a new trial due to plaintiff's comments during closing argument concerning the special

interrogatory; (5) the cumulative effect of allegedly prejudicial comments by plaintiff's counsel

during closing argument deprived defendants of a fair trial; and (6) that remittitur should be
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entered because the record does not support the significant amounts awarded by the jury. For the

reasons that follow, we affirm the judgment of the circuit court.

                                         BACKGROUND

       In May 2002, 83-year-old Clarke was crossing the street when he was struck by a truck

driven by defendant Griffin and owned by defendant Medley. Clarke died of his injuries shortly

after he was transported to a hospital. In 2003, plaintiff Garcia Clarke, individually and as

independent executor of the estate of Clarke, sued defendants, alleging damages sustained by

Clarke's estate under the Illinois Wrongful Death Act (740 ILCS 180/0.01 (West 2002)) and

Survival Act (755 ILCS 5/27-6 (West 2002)).

       At trial, the witnesses' testimony established that the pedestrian-vehicle collision occurred

at the intersection of Michigan Avenue and 95th Street in Chicago, Illinois. Griffin had driven the

Medley 26-foot moving van west on 95th Street and was waiting in the left-turning lane to

continue south on Michigan Avenue. Griffin turned left when his traffic signal was yellow and

was driving south on Michigan Avenue when his van struck Clarke, who was crossing Michigan

Avenue.

       Defendant Griffin testified that he was driving the van and accompanied by Medley

employee George Thornton at the time of the collision. Griffin had an unobstructed view of the

southwest corner of the intersection in question, and he did not see Clarke on the corner or in the

street when Griffin was making his left turn. Griffin did not see Clarke until a second before the

collision. According to Griffin, at the time of the impact with Clarke, the nose of Griffin's truck

was south of the crosswalk, and the truck was heading straight southbound. Griffin applied his


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brakes, but did not have time to slow his truck or maneuver around Clarke. Griffin testified that

Clarke was outside the crosswalk when he was struck.

       Denise Watkins testified that she witnessed the collision while she was in her vehicle on

Michigan Avenue and facing north. She was stopped at the traffic light and in the first vehicle in

the left-hand turning lane, waiting to turn left onto 95th Street and proceed west. She saw Clarke

walking east inside the crosswalk, from Watkins' left to her right. He was crossing with the green

light or the "walk man." Clarke was walking very slowly but started to run across the road when

he saw the light change. At the time of the collision, Watkins was involved in a conversation with

her passengers. When Griffin's van struck Clarke, Watkins exited her vehicle to tend to Clarke.

His eyes were open and moving to the right and left. He looked directly at Watkins and moved

his lips to ask for help but made no sound. Clarke's body was shaking and his chest was moving

very fast, as though he was having difficulty breathing. Watkins estimated that she was at the

scene for 10 or 15 minutes. An ambulance arrived at the scene, and the police followed. Watkins

did not identify herself to the paramedics or the police. No police officer spoke to Watkins except

to ask her to move her vehicle.

       Fredella Robertson testified that she saw the collision from the front seat of Watkins'

vehicle. Robertson corroborated Watkins' testimony, adding that she (Robertson) exited the

vehicle and stood over Clarke while Watkins knelt beside him. Robertson also thought that

Clarke was attempting to speak but she could not determine what he was trying to say. He was

bleeding, gasping for air, and blood was running out of his mouth. Both Robertson and Watkins

thought Clarke would expire at the scene.


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       Chicago police officer Derrick Jerry testified that Clarke was transported to the hospital

before he (Officer Jerry) arrived at the scene. It was his normal procedure to speak with anyone

at the scene who may have tended to the injured person, but he did not recall any people

identifying themselves as witnesses.

       John Merlotti, M.D., a trauma surgeon, testified that he treated Clarke at the hospital.

Clarke was a level one trauma patient, coming to the emergency room as a significantly injured

victim. He could not communicate upon arrival. He had suffered a scalp laceration with blood

oozing from his ears and nose, which was clinical evidence of a basilar skull fracture. A chest X-

ray revealed a large hemothorax. Paramedics gave a history of "diminished level of

consciousness" at the scene of the accident.

       Dr. Merlotti testified that, upon arrival at the emergency room, Clarke's Glasgow coma

score was three. That scoring system was used to characterize the level of consciousness of a

patient with a head injury, and the scores ranged from 3 to 15. Clarke was not alert or awake.

He exhibited no eye opening or verbal response, had no motor function, made no sounds, and did

not withdraw from pain. Dr. Merlotti stated that although a Glasgow coma score of three did not

mean there was no pain or suffering, a score that low so soon after the injury indicated that pain

and suffering were unlikely. He explained that open eyes, without more, were an insufficient basis

to reach an opinion about consciousness. Dr. Merlotti opined that, assuming the accuracy of

Watkins' observations that Clarke was actually moving and verbalizing words, there potentially

was a time period of pain and suffering. Dr. Merlotti, however, confirmed that there was no

evidence Clarke was conscious from the time the paramedics arrived at the scene until the time of


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Clarke's death. Dr. Merlotti testified that the injuries Clarke sustained, including rib fractures, an

open front right ankle fracture, scalp laceration, basilar skull fractures, and hemothorax, would

cause pain to a conscious person. Although Clarke had outlived the average life expectancy

according to the life table statistics, a person's life expectancy gets longer as he ages, and Clarke

had no evidence of any life-threatening injury or illness aside from the trauma he sustained.

        Three of Clarke's four adult children testified regarding the relationship they had with their

father and their personal losses resulting from his death. All three children testified that their

father gave them an occasional gift when appropriate but did not give them money on a regular

basis. They stated that their father was healthy, active and of sound mind before his death. They

described how he gave them guidance and taught them patience and determination. They

submitted pictures depicting his involvement at the various family gatherings. He lived

independently and worked for a bus company driving a school bus. He enjoyed morning walks,

fishing and gardening, and was involved with his church, helping with repairs.

        Clarke's 56-year-old daughter Delores Alexander testified that she was not currently

employed. She was dealing with her own personal medical issues because she had suffered a

stroke in 1996. She regained her ability to walk and avoided having to live in a nursing home due

to her parents' help and, especially, her father's encouragement and emotional support. She tried

to visit her father, a widower, at his home every day because it gave her something to do to try to

better herself. She described him as a tough taskmaster who refused to allow her to wallow in

self-pity. After his death, she understood better the lessons about independence and

determination that he was trying to instill in her.


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       Clarke's 55-year-old son Elpento Clarke testified that he worked in customer service for

an airline and currently lived in Clarke's house with his brother Garcia. When he lived in St.

Louis, Missouri, he spoke with his father, who was his friend and advisor, frequently by

telephone. Elpento relied on his father's advice in raising his own nine-year-old daughter, and the

three of them would periodically go out to restaurants, the zoos, the lakefront or do other

activities like fishing. Because Elpento worked in the airline industry, he and his father were able

to fly at significant discounts and consequently took trips to Texas to visit Clarke's youngest son

Labinco, to England and Jamaica to visit relatives, and to Rome as Catholics. Longevity was a

trait of the Clarke family; Clarke had siblings in their 80s and 90s who were in good health.

       Clarke's 52-year-old son Garcia Clarke previously worked as a computer technician. He

was attending school to change fields and not currently employed. He and his father visited each

other frequently at their homes. Garcia explained that he was all thumbs and enlisted his father's

assistance for home repairs and maintenance. For example, in 2002, Clarke helped paint and do

other various things when Garcia was preparing to sell his house. Clarke enjoyed it as a way to

keep busy and spend time with his son. Garcia had lost his job and was planning on moving in

with his father, and they had a few projects to do together on that house. When Garcia sold his

house, he had some money and was trying to determine what he would do with his life. His father

had just finished driving the bus for the school year, so they both had free time and were going to

travel. They were planning to go deep sea fishing and to Europe to visit family.

       The jury rendered a verdict for the plaintiff heirs and against defendants in the amount of

$1,725,000, reduced by 1% for the contributory negligence of Clarke to $1,707,750. The


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awarded damages were as follows: $275,000 for the pain and suffering experienced by Clarke;

$250,000 for the loss of past and future gifts, benefits, goods and services of Clarke; and

$1,200,000 for the loss of past and future society of Clarke.

       The trial court denied defendants' posttrial motion, and defendants appealed.

                                            ANALYSIS

                  1. Loss of Past and Future Gifts, Benefits, Goods and Services

       The jury awarded the estate $250,000 for "loss of past and future gifts, benefits, goods,

and services of [Clarke]." Defendants argue there was a complete dearth of evidence on this issue

and the trial court should have granted their motion for judgment notwithstanding the verdict

(judgment n.o.v.) on this element of damages. Specifically, defendants contend Clarke's adult,

financially independent children offered no evidence of habitual guidance, services, or benefits in

their recent adult lives, except for Garcia Clarke's testimony that his father helped him paint his

house. Defendants argue the evidence so overwhelmingly favored them on this issue that the

verdict cannot stand.

       We review the denial of a motion for judgment n.o.v. de novo. Donaldson v. Central

Illinois Public Service Co., 199 Ill. 2d 63, 88-89 (2002). Judgment n.o.v. should be granted only

when all of the evidence, when viewed in the light most favorable to the opponent, so

overwhelmingly favors the movant that no contrary verdict based on that evidence could ever

stand. York v. Rush-Presbyterian-St. Luke's Medical Center, 222 Ill. 2d 147, 178 (2006).

       A presumption of loss to the lineal heirs is created by the relationship of the parties alone

(Hall v. Gillins, 13 Ill. 2d 26, 31 (1958)) and applies here, where both the decedent and the lineal


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heirs are adults (Cooper v. Chicago Transit Authority, 153 Ill. App. 3d 511, 518 (1987)). In

discussing the compensation for "pecuniary injuries" under the Wrongful Death Act, our supreme

court noted that the term was interpreted broadly to include items of damage for deprivation of

support as well as deprivation of the companionship, guidance, advice, love and affection of the

deceased. Hall, 13 Ill. 2d at 31. See also Bullard v. Barnes, 102 Ill. 2d 505 (1984) (the court

expanded the scope of pecuniary injury to include nonmonetary losses).

        Here, the trial court properly instructed the jury that compensation for the next-of-kin's

pecuniary loss may include loss of gifts, benefits, goods, services and society. Specifically, the

jury could consider: the gifts, benefits, goods and services Clarke customarily contributed in the

past and was likely to have contributed in the future; Clarke's personal expenses and other

deductions; what instruction, moral training, superintendence of education Clarke might

reasonably have expected to give his children had he lived; his age, sex and health; his habits of

industry and thrift; his occupational abilities; and his relationship with his four children.

        The record refutes defendants' claim that the testimony of Clarke's heirs did not support

the award of $250,000 for past and future gifts, benefits, goods and services. Delores Alexander

testified at length that her father was instrumental in her on-going recovery from her stroke. He

insisted that she regain her independence and ability to walk. She visited him almost daily in an

effort to remain mobile and improve herself. Elpento testified that he relied on Clarke's guidance

and advice throughout his life, and found it particularly relevant in raising his own daughter.

Garcia testified that when he lost his job, he embarked on a career change, went back to school

and sold his house, intending to live with his father. Clarke helped Garcia with home maintenance


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and repairs. The painting and maintenance work they did together before Garcia sold his house

was just one example of such assistance.

       The evidence also established that Clarke was healthy and independent despite his

advanced years, and longevity was a family trait. He drove a school bus, maintained his own

home, and gave his family gifts on appropriate occasions. All of the evidence, when viewed in the

light most favorable to plaintiff, does not so overwhelmingly favor defendants that the $250,000

award for Clarke's heirs based on that evidence could not stand. Therefore, we do not disturb the

trial court's denial of defendants' motion for judgment n.o.v. on this element of damages.

                                      2. Pain and Suffering

       Defendants argue the trial court should have granted their motion for judgment n.o.v. on

the element of pain and suffering, contending the evidence was not sufficient to support an award

for Clarke's conscious pain and suffering. We disagree.

       The plaintiff must present evidence that the injured party was conscious in order to

recover for his pain and suffering. Ellig v. Delnor Community Hospital, 237 Ill. App. 3d 396,

401-02 (1992). Medical testimony is not required to establish conscious pain and suffering. Hall

v. National Freight, Inc., 264 Ill. App. 3d 412, 427 (1994).

       Here, plaintiff introduced evidence from both lay witnesses (Watkins and Robertson) and a

medical expert (Dr. Merlotti) that Clarke suffered conscious pain and suffering before his death.

Specifically, Watkins, who knelt beside Clarke for about 10 to 15 minutes after the collision,

testified that Clarke looked directly at her while she spoke to him, moved his eyes–which were

open–and moved his lips to ask for help but was not able to make a sound. Robertson


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corroborated Watkins' testimony, adding that she stood over Watkins and Clarke, who was trying

to speak.

       Dr. Merlotti acknowledged that more than open eyes were required for a determination of

consciousness. He also acknowledged the paramedics' recorded observations, which indicated

that Clarke was not conscious when they arrived at the scene. Dr. Merlotti, however, testified

that, according to Watkins' deposition, she observed that "Clarke was actually moving and

verbalizing words; meaning that there was some conscious awareness of what was–what had

happened and what was going on around him." Dr. Merlotti then opined that there potentially

was a 10- to 15-minute period of conscious pain and suffering, assuming that Watkins'

observations about Clarke were accurate.

       On appeal, defendants contend Dr. Merlotti's expert opinion that Clarke was conscious

was based on his mistaken assumption that Watkins actually heard Clarke's spoken words. The

record, however, refutes defendants' assertion that Dr. Merlotti misunderstood Watkins'

deposition testimony. Specifically, on redirect examination of Dr. Merlotti, the following

exchange occurred:

               "Q. [Plaintiff's Attorney:] Now just so we're clear, Ms. Watkins provided

       testimony beyond just seeing Mr. Clarke's eyes open. She also indicated that he

       mouthed the word help to her, correct?

               A. I believe on–somewhere in Pages 38 to 46 she did testify that he was

       trying to say words and she thought one of them was help, yes."




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        In any event, defendants failed to object at trial to Dr. Merlotti's testimony or cross-

examine him regarding his understanding of Watkins' observations. Furthermore, defendants'

argument concerning a mistaken assumption would have affected merely the weight of Dr.

Merlotti's testimony and not its admissibility. All of the evidence, when viewed in the light most

favorable to plaintiff, does not so overwhelmingly favor defendants that an award for Clarke's pain

and suffering based on the testimony of Watkins, Robertson and Dr. Merlotti could not stand.

Therefore, we do not disturb the trial court's denial of defendants' motion for judgment n.o.v. on

this element of damages.

                              3. Jury Instruction for Pain and Suffering

        Defendants contend the trial court committed reversible error when it instructed the jury

on the element of damages of pain and suffering. Defendants claim the instruction was confusing,

misleading and highly prejudicial because the modifier conscious was not included in the jury

instruction. We find that defendants failed to preserve this issue for review and the trial court did

not abuse its discretion in giving the jury instruction.

        A jury instruction is justified if it is supported by some evidence in the record, and the trial

court has discretion in deciding which issues are raised by the evidence. Demos v. Ferris-Shell Oil

Co., 317 Ill. App. 3d 41, 56 (2000). "The decision to give or deny a jury instruction is within the

trial court's discretion, and a new trial should be granted only if a party's right to a fair trial has

been seriously prejudiced." Demos, 317 Ill. App. 3d at 56. In reviewing this issue, we consider

"whether, taken as a whole, the instructions fully, fairly and comprehensively informed the jury of

the relevant legal principles." Demos, 317 Ill. App. 3d at 56.


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       According to the record, defendants moved for a directed verdict on the conscious pain

and suffering claim, arguing there was contradictory evidence concerning Clarke's consciousness.

The trial court, however, found the testimony sufficient to present the issue to the jury and denied

the motion.

       At the conference on jury instructions, defendants objected to the tendered jury instruction

concerning pain and suffering damages, arguing the same reason set forth with their motion for a

directed verdict, i.e., insufficient evidence of consciousness to present the pain and suffering issue

to the jury. Defendants did not argue that the instruction was incomplete because it lacked the

modifier conscious and did not present any alternative jury instruction to the trial court for its

consideration that included the term conscious before the reference to pain and suffering. The

court gave the tendered jury instruction over defendants' objection.

       In accordance with the Illinois pattern civil jury instructions (Illinois Pattern Jury

Instructions, Civil, Nos. 30.01, 30.05 (2006) (hereinafter IPI Civil (2006)), the following

instruction was tendered to the jury regarding the survival claim:

               "On the survival action, if you decide for the Plaintiff, Garcia Clarke,

       Independent Executor of the Estate of George Clarke, Jr., on the question of

       liability, you must then fix the amount of money which will reasonably and fairly

       compensate George Clarke, Jr., for any of the following elements of damages

       proved by the evidence to have resulted by the negligence of the Defendants taking

       into consideration the nature and extent and duration of the injury:




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               1. the disfigurement resulting from the injury;

               2. the pain and suffering experienced; and

               3. the disability experienced.

               Whether any of these elements of damages has been proved by the

       evidence is for you to determine."

       In their posttrial motion, defendants argued for the first time that "the modifier 'conscious'

should have [preceded] the words 'pain and suffering'." Defendants' posttrial motion also referred

to the comments in IPI Civil (2006) No. 31.10 and the cases cited therein.

       By failing to timely raise an objection at trial, defendants forfeited review of the issue of

the inclusion of the modifier conscious in the instructions for damages for pain and suffering.

Morgan v. Richardson, 343 Ill. App. 3d 733, 742 (2003) (failure to both object at trial and raise

the issue in a posttrial motion forfeits it on appeal). The record establishes that defendants failed

to raise this argument during the conference on jury instructions and failed to tender any

alternative jury instruction to the trial court. Barry v. Owens-Corning Fiberglas Corp., 282 Ill.

App. 3d 199, 205 (1996) ("A party ordinarily will not be heard to complain about a jury

instruction unless it offers a proposed alternative").

       Such forfeiture notwithstanding, we find that the trial court properly instructed the jury on

the pain and suffering claim. The text, notes on use, and comments for IPI Civil (2006) Nos.

30.01 and 30.05 do not even mention inclusion of the modifier conscious. Moreover, IPI Civil

(2006) No. 31.10, which concerns survival action damages, does not state that the modifier

conscious must be included in the instruction tendered to the jury. IPI Civil (2006) No. 31.10.


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Rather, the cases cited within the comments for IPI Civil (2006) No. 31.10 indicate merely that

consideration of the decedent's consciousness is covered by the language instructing the jury to

consider the "nature, extent, and duration" of the pain and suffering "during the period between

the time of the decedent's injuries and the time of his death." IPI Civil (2006) No. 31.10,

(Comment, at 157, citing Murphy v. Martin Oil Co., 56 Ill. 2d 423 (1974), and Glover v. City of

Chicago, 106 Ill. App. 3d 1066 (1982)).

       Furthermore, the cases cited by defendants on appeal do not support their assertion that

the modifier conscious must be inserted into the text of the instruction for pain and suffering

damages. In Bullard, 102 Ill. 2d at 520, the defendants argued that the jury was given repetitious

and inconsistent instructions that sometimes referred to "pain and suffering" and other times to

"conscious pain and suffering." The defendants argued the jury might infer that there was such a

thing as "unconscious pain and suffering." Bullard, 102 Ill. 2d at 520. Our supreme court,

however, ruled that such inconsistent use of the word conscious in the jury instructions was not

reversible error. In Northern Trust Co. v. County of Cook, 135 Ill. App. 3d 329, 334 (1985),

which involved malpractice litigation concerning a profoundly retarded child, it was not reversible

error to refuse the tendered jury instruction specifying that the plaintiff should recover only for

conscious pain and suffering where plaintiff's therapist testified the plaintiff responded to the pain

associated with vigorous physical therapy.

       Here, in contrast, no jury instruction including the modifier conscious was ever tendered

to the trial court. Furthermore, the trial court's clear jury instruction was reinforced by counsel's

examinations of the witnesses and closing arguments, which emphasized to the jury the


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importance of the issue of Clarke's consciousness for the 10- to 15-minute time period after the

collision. The record refutes defendants' assertion that the instruction could have confused the

jury on the pain and suffering issue and affected the jury's understanding of whether plaintiff had

met his burden of proof. We conclude that the trial court properly instructed the jury on the

element of pain and suffering, the evidence supported the jury's verdict awarding $275,000 for

Clarke's pain and suffering, and the trial court properly denied defendants' motion for a new trial

regarding the jury instruction issue.

                                    4. The Special Interrogatory

        Defendants argue that plaintiff's counsel's reference to the special interrogatory during

closing argument deprived them of a fair trial. Defendants contend plaintiff's counsel advised the

jury of the source and effect of the special interrogatory and, thus, incited the jury's passion and

prejudice.

        According to the record, defendants tendered a special interrogatory that asked the jury:

                "Was contributory negligence on the part of George Clarke Jr. more than

        50 percent of the total combined negligence which proximately caused his injuries

        and death?"

        During closing argument, the defense argued that even though Clarke caused the accident

by running into the street and Griffin exercised more than ordinary care when he drove the

moving van, defendants still ended up in court for four days, listening to demands for incredible

sums of money because Watkins and Robertson would say anything to help the plaintiff's case. In

response, plaintiff's counsel argued that Clarke's family, for the last several days, had to listen to


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specific descriptions of Clarke's death and suffering, plus defendants' assertion that the collision

was Clarke's fault. Then, plaintiff's counsel, referencing defendants' argument, said:

       "And we're not only going to say it's his fault. We are going to go for the home-

       run. Not guilty. It's all his fault or he was more than 50 percent contributory

       negligence [sic]. That's what that means. The special interrogatory is the home-

       run."

The defense objected, and the trial court overruled the objection, noting counsel had not "crossed

the threshold of what you all know what it is." Plaintiff's counsel proceeded to argue that no

negligence was attributable to Clarke, that a pedestrian in the crosswalk has the right-of-way, and

defendants were not entitled to any reduction of their responsibility.

       The jury answered the special interrogatory in the negative, rendered a verdict finding for

plaintiff and against defendants, and found 1% of the negligence attributable solely to Clarke.

       Special interrogatories test the general verdict against the jury's conclusions as to the

ultimate controlling facts. Sommese v. Maling Brothers, Inc., 36 Ill. 2d 263, 267 (1967).

Consequently, telling the jury to conform its answer to a special interrogatory to its verdict and

revealing which party submitted the interrogatory has been held to constitute reversible error

because it allows the jury to protect its verdict without regard to the evidence. Sommese, 36 Ill.

2d at 266 (reversible error where counsel informed the jury that the defendant "slipped in" the

special interrogatory, that the jury's answer to it supercedes the verdict, and that the jury should

harmonize its answer to the interrogatory with the verdict so as not "to deprive this woman of any

right to recovery"). However, an attorney is not prohibited from commenting on a special


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interrogatory in closing argument or suggesting how a special interrogatory should be answered.

See DeFranze v. Valenzia, 118 Ill. App. 2d 306, 310 (1969) (counsel's reference to several verdict

forms and the special interrogatory and suggestion of the proper answer the jury should reach on

the special interrogatory did not constitute improper urging that the interrogatory answer should

conform to the general verdict); Ehret v. Loyal Protective Life Insurance Co., 112 Ill. App. 2d

289, 295 (1969) (explanation of special interrogatory and suggestion that jury should answer in

one way was entirely proper and not a violation of Sommese). In Blevins v. Inland Steel Co., 180

Ill. App. 3d 286, 292 (1989), the court noted that "[w]hile the distinction may seem slight, the

cases do hold that [an attorney's suggestion to the jury that the plaintiff would not recover if the

jury answered the interrogatory in the affirmative] is not error, whereas if the attorney takes the

next step and instructs them to harmonize the interrogatory answer with the general verdict,

reversible error may result."

        Here, plaintiff's counsel did not tell the jury that defendants were the source of the special

interrogatory. Moreover, plaintiff's counsel did not tell the members of the jury to harmonize

their special interrogatory answer and verdict. Therefore, we follow Blevins in holding that

plaintiff's counsel's remark did not constitute reversible error.

                                        5. Closing Argument

        Defendants contend the cumulative effect of inflammatory comments during plaintiff's

closing argument deprived them of a fair trial and merits the granting of a new trial.

        Attorneys are afforded wide latitude during closing argument and may comment and argue

on the evidence and any inference that may be fairly drawn from that evidence. Black v. Laggren,


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313 Ill. App. 3d 39, 44 (2000). Improper comments by counsel constitute reversible error only

where the comments are so prejudicial as to deprive the other party of the right to a fair trial.

Balzekas v. Looking Elk, 254 Ill. App. 3d 529, 535 (1993). Issues concerning the prejudicial

effect of comments made during closing argument are within the discretion of the trial court, and

determinations regarding such issues will not be reversed absent a clear abuse of discretion.

Compton v. Ubilluz, 353 Ill. App. 3d 863, 873 (2004). "In determining whether there has been an

abuse of discretion, we may not substitute our judgment for that of the trial court, or even

determine whether the trial court exercised its discretion wisely." Simmons v. Garces, 198 Ill. 2d

541, 568 (2002).

       First, defendants complain plaintiff's counsel invited the jury to trade places with the

decedent. According to the record, the trial court overruled defendants' objection when plaintiff's

counsel stated, "Who would trade spots with George Clarke as he laid [sic] on the ground with

his chest moving in and out?"

       "Juries specifically should not be asked to put themselves in the places of the parties."

Chakos v. Illinois State Toll Highway Authority, 169 Ill. App. 3d 1018, 1029 (1988). Here,

counsel's statement was not inappropriate because it did not refer to the jurors.

       Next, defendants complain that plaintiff's counsel accused them of attempting to "kick

[Clarke] in the grave." According to the record, plaintiff's counsel argued that the defense's

suggestion that Clarke's children somehow pieced together photographs and testimony to falsely

portray a close relationship with Clarke was "to kick him in the grave." We find no improper

argument here; plaintiff's counsel merely responded to defense counsel's argument that plaintiff


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exaggerated damages and disingenuously fabricated a claim. Lee v. Grand Trunk Western R.R.

Co., 143 Ill. App. 3d 500, 520 (1986).

        Finally, defendants complain that plaintiff's counsel accused them of hiding a witness when

he said, "Where is the passenger? Where are the Medley's Mover's–" According to the record,

the trial court sustained defendant's objection and instructed the jury that witnesses that are not

available to both parties may not be commented on, and that absences may not be commented on.

        A reference to a witness outside the control of a party is improper. Wetherell v. Matson,

52 Ill. App. 3d 314, 318-19 (1977). However, we find that the remark about an absent witness

was harmless in the context of the entire trial, given the fact that the court sustained defendants'

objection to the remark. See Ramirez v. City of Chicago, 318 Ill. App. 3d 18, 26 (2000).

Moreover, the record indicates that the defense provoked the response when it attacked Watkins'

credibility by arguing that she could not tell how many people were in defendants' truck whereas

Robertson thought there were three people in the front seat and defendant Griffin was speaking

with one of them.

        Consequently, we conclude that plaintiff's closing argument was not prejudicial and, when

viewed in its entirely, did not deprive defendants of a fair trial. Accordingly, the trial court did

not err in denying defendants' motion for a new trial on that basis.

                                            6. Remittitur

        Defendants contend we should order a remittitur of the damage amounts awarded, or, if

remittitur is refused by plaintiff, order a new trial on the issue of damages. Defendants complain

that the $275,000 for Clarke's pain and suffering, the $250,000 for the loss of past and future


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gifts, benefits, goods and services of Clarke, and the $1,200,000 for the loss of Clarke's past and

future society were unreasonably high and unsupported by the evidence.

        The purpose of remittitur is to correct excessive jury verdicts in limited and appropriate

circumstances. Best v. Taylor Machine Works, 179 Ill. 2d 367, 411 (1997). The standard of

review applied to a trial court's refusal to grant a motion for remittitur is abuse of discretion.

Buckholtz v. MacNeal Hospital, 337 Ill. App. 3d 163, 168 (2003).

        The trier of fact determines the amount of damages, and reviewing courts give great

deference to a jury's damage award. Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997). An

award of damages will be considered excessive only if it exceeds the range of fair and reasonable

compensation, results from passion or prejudice, or is so large that it shocks the judicial

conscience. Best, 179 Ill. 2d at 412. A reviewing court will order a new trial on damages only if

the amount awarded bears no reasonable relationship to the loss suffered by plaintiff or is

unsupported by the manifest weight of the evidence and the opposite conclusion is clearly evident.

York, 222 Ill. 2d at 178-79. Illinois courts have consistently rejected the approach of attacking

the propriety of a particular award by analogizing it to another verdict. Verlarde v. Illinois

Central R.R. Co., 354 Ill. App. 3d 523, 547-48 (2004); Drews v. Global Freight Lines, Inc., 197

Ill. App. 3d 1049, 1059 (1990).

        As discussed above, the record refutes defendants' assertion that the evidence does not

support the awards for Clarke's pain and suffering, and for his heirs' loss of past and future gifts,

benefits, goods and services. Furthermore, as in this case, where a decedent leaves adult children,

the law presumes a pecuniary loss which obtains solely from the children's relationship to the


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decedent. See, e.g., Balzekas, 254 Ill. App. 3d at 537. Plaintiff presented substantial evidence

concerning the loss of society to Clarke's four children to bolster the legal presumption that they

sustained substantial pecuniary loss. The jury learned that Delores and Garcia saw Clarke

frequently. Delores's almost daily visits to her father motivated her to improve herself as she

continued to deal with medical issues from her stroke. Moreover, Garcia intended to live with his

father while he changed careers and completed school. Clarke helped Garcia with home repairs as

a way to stay active and spend time with his son. Because they both had some free time, Garcia

and Clarke planned to travel to do some deep sea fishing and visit family in Europe. Elpento

explained that his job allowed him to travel by plane as frequently and easily as if he were merely

taking the bus. Consequently, he saw his father often, and they traveled to visit other relatives,

including Clarke's youngest son Labinco and his family in Texas.

       The jury also learned that although Clarke was 83 years old, he was healthy, independent,

and active. He enjoyed traveling, fishing, gardening, daily walks, and assisting others as a handy-

man. Moreover, Clarke was still able to maintain employment as a school bus driver. He enjoyed

a family history of longevity and was likely to continue defying the average life expectancy listed

in the life table statistics because, according to Dr. Merlotti, Clarke's life expectancy increased as

he continued to age and enjoy good health.

       The trial court agreed that there was sufficient evidence presented at trial to support the

jury's award of damages. The trial court did not abuse its discretion in denying defendants'

motion for remittitur.




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                                          CONCLUSION

       For the reasons explained above, we affirm the judgment of the circuit court denying

defendants' motion for judgment n.o.v., a new trial, and remittitur.

       Affirmed.

       FITZGERALD SMITH, P.J., and GALLAGHER, J., concur.




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                    REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                            (Front Sheet to be Attached to Each Case)


            GARCIA CLARKE, as Executor of the Estate of George Clarke, Jr., Deceased,

                                        Plaintiff-Appellee,

                                                v.

                MEDLEY MOVING AND STORAGE, INC., and GREGORY GRIFFIN,

                                     Defendants-Appellants.




                                       No. 1-06-3072

                                   Appellate Court of Illinois
                                First District, FIFTH DIVISION

                                         March 7, 2008


             Justice Margaret O'Mara Frossard authored the opinion of the court:

                Presiding Justice Fitzgerald Smith and Justice Gallagher concur.


                        Appeal from the Circuit Court of Cook County.
                         The Hon. John B. Grogan, Judge Presiding.


                     COUNSEL FOR DEFENDANTS-APPELLANTS
             Haynes, Studnicka, Kahan, O’Neill & Miller, LLC, Chicago, IL 60604
                   OF COUNSEL: Shimon B. Kahan and Elana K. Seifert


                         COUNSEL FOR PLAINTIFF-APPELLEE
                        Power Rogers & Smith, P.C., Chicago, IL 60602
                             OF COUNSEL: Larry R. Rogers, Jr.




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