                                   Illinois Official Reports

                                           Appellate Court



                             Hamilton v. Hastings, 2014 IL App (4th) 131021



Appellate Court               WARREN G. HAMILTON, Plaintiff-Appellant, v. BLAKE C.
Caption                       HASTINGS, Defendant-Appellee.


District & No.                Fourth District
                              Docket No. 4-13-1021


Filed                         July 28, 2014


Held                          Although plaintiff appealed from the denial of his motion for a new
(Note: This syllabus          trial in an action for the injuries he suffered when defendant’s truck
constitutes no part of the    struck plaintiff’s car on an icy and snow-covered road, he was
opinion of the court but      essentially asking the appellate court to enter a judgment n.o.v., and
has been prepared by the      even though he did not renew his request for a judgment n.o.v. in his
Reporter of Decisions         posttrial motion and even though the appellate court would have been
for the convenience of        justified in declining to consider the denial of the posttrial motion due
the reader.)                  to plaintiff’s failure to clearly brief the issue, the issue would be
                              considered in view of defendant’s election to brief that issue, and
                              based on the evidence, the jury could have found that plaintiff’s
                              injuries were not caused by the accident, but by past injuries and
                              degeneration due to aging, and the trial court did not abuse its
                              discretion in denying a new trial on the ground that the jury’s verdict
                              was not against the manifest weight of the evidence.




Decision Under                Appeal from the Circuit Court of Coles County, No. 11-L-76; the Hon.
Review                        Teresa K. Righter, Judge, presiding.



Judgment                      Affirmed.
     Counsel on                H. Kent Heller (argued), of Heller, Holmes & Associates, P.C., of
     Appeal                    Mattoon, for appellant.

                               Michael K. Radloff (argued), of Ryan, Bennett, Radloff & O’Brien, of
                               Mattoon, for appellee.




     Panel                     JUSTICE POPE delivered the judgment of the court, with opinion.
                               Presiding Justice Appleton and Justice Harris concurred in the
                               judgment and opinion.




                                                OPINION

¶1         In October 2011, plaintiff, Warren G. Hamilton, filed a complaint against defendant, Blake
       C. Hastings, alleging on January 10, 2010, defendant negligently lost control of his truck and
       struck plaintiff’s vehicle, causing damage. After the jury found in favor of defendant, plaintiff
       filed a posttrial motion seeking a new trial. The trial court denied the motion, and plaintiff
       appeals.
¶2         On appeal, plaintiff requests this court to enter a verdict in his favor as to defendant’s
       liability and remand for further proceedings on damages only. We conclude plaintiff forfeited
       this issue because he did not request a judgment notwithstanding the verdict (judgment n.o.v.)
       in his posttrial motion. Defendant has briefed the issue of whether the trial court erred in
       denying plaintiff’s motion for a new trial. Because plaintiff filed a notice of appeal from the
       denial of his motion for a new trial and defendant has briefed the issue, we will also address
       that issue.

¶3                                          I. BACKGROUND
¶4         On October 31, 2011, plaintiff filed a complaint against defendant alleging defendant was
       negligent due to (1) his failure to keep a sufficient lookout, (2) driving too fast given the
       weather conditions, (3) failure to reduce speed to avoid an accident, and (4) failure to use a
       reasonable degree of care to keep his vehicle from colliding with another vehicle on the road.
       Plaintiff also alleged defendant’s negligence caused defendant’s truck to slide out of control
       and strike plaintiff’s vehicle. Plaintiff sought damages for medical costs, lost time from his
       normal pursuits, great pain and emotional distress, and the loss of a normal life.
¶5         On October 7, 2013, the trial court held a jury trial. Plaintiff testified on January 10, 2010,
       he was driving out of his subdivision with his wife, Deena Hamilton, when defendant’s truck
       left its lane and collided with his car in plaintiff’s lane. Plaintiff testified the road was
       snow-packed but had been plowed. Plaintiff was driving around a curve in the road and down
       an incline when he noticed defendant’s truck about 50 to 60 yards away. Plaintiff edged over to
       the side of the road as far as he could go and took his foot from the accelerator. Plaintiff

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       estimated he was traveling less than five miles per hour and did not know how fast defendant
       was traveling. Defendant’s truck then slid into plaintiff’s lane and car and “the back end
       slam[med] into the whole front of the car all the way down the side.” The collision pushed
       plaintiff’s car toward a ravine along the side of the road.
¶6         Plaintiff also testified, at the scene of the accident, he told an ambulance he did not need
       any assistance. After the accident, plaintiff began to feel stiff, experienced headaches, and had
       a burning pain in his neck. He visited Dr. David Winograd, his family doctor, and Dr. Terry
       Ward, a chiropractor he had seen in the past. During this time, he was not able to do things he
       normally enjoyed, such as cutting firewood and woodworking.
¶7         On cross-examination, plaintiff explained he realized the road, which had not been salted,
       was slick as soon as he exited his driveway. Plaintiff testified his wife warned him defendant’s
       truck was coming toward them and might hit their vehicle. He saw defendant’s truck only
       briefly, stating he was not looking at it because he was watching the road in front of him to stay
       as close to the outer edge as he could. Plaintiff stated the air bags did not deploy and the car did
       not go into the ravine.
¶8         Plaintiff called defendant as a witness. Defendant testified he was driving home from
       church in his father’s truck, using the truck’s four-wheel-drive feature. Defendant was
       traveling about 15 to 20 miles per hour, the same speed he typically goes down the road, when
       he lost control of the truck. Defendant explained he did not have any problems controlling his
       vehicle on his way to church a few hours before and believed he was traveling at a safe speed,
       as the truck had four-wheel drive.
¶9         Both Dr. Winograd and Dr. Ward testified as to plaintiff’s injuries. Dr. Winograd, who
       testified by evidence deposition, said plaintiff visited him twice complaining of headaches and
       he had some limitation in his ability to move his neck from right to left. Dr. Winograd testified
       plaintiff’s symptoms “could be contributed [sic] to the car accident.” Dr. Ward testified about
       his treatment of plaintiff’s injuries and stated he believed, within a reasonable degree of
       chiropractic certainty, plaintiff’s injuries were caused by the collision. Plaintiff introduced his
       medical bills as evidence.
¶ 10       Defendant did not present any medical testimony. However, when cross-examining
       Dr. Winograd, defendant brought out plaintiff had only seen Dr. Winograd on two occasions
       following the accident. At the initial exam, Dr. Winograd found no tenderness on direct
       palpation of the cervical or thoracic spine. Plaintiff was able to touch his chin to his chest and
       look up and down without any problems. In turning his neck from left to right, plaintiff had a
       range of 60 degrees. For a person plaintiff’s age, the expected rotation would be 90 degrees.
       Dr. Winograd never restricted plaintiff from any activities and never diagnosed any damage to
       the nerves in his neck or back. At the second visit on January 22, 2010, plaintiff reported being
       30% improved. Dr. Winograd told plaintiff to see him again in two to three weeks if his
       symptoms had not improved significantly. Plaintiff did not see Dr. Winograd again as a result
       of the accident. In December 2010, plaintiff saw Dr. Winograd for a routine physical exam. At
       that time, plaintiff reported no headaches and did not report any ongoing problems with neck
       or back pain.
¶ 11       The chiropractor, Dr. Ward, testified plaintiff had degenerative changes throughout the
       cervical spine that existed long before the accident happened. None of the radiological
       findings, including bone spurs, disc degeneration, or arthritic changes, related to the accident.
       Dr. Ward’s treatment related to whiplash injuries. March 5, 2010, was the last date Dr. Ward

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       treated plaintiff in that year for problems related to the accident. During the remainder of 2010,
       2011, and 2012, Dr. Ward did not treat plaintiff for any injuries related to the accident.
       Dr. Ward admitted the pain plaintiff suffered could come from the degenerative changes that
       were unrelated to the accident. Dr. Ward also stated plaintiff suffered from significant arthritis
       and degenerative changes in his neck before the accident even happened.
¶ 12        Deena Hamilton testified before the collision occurred she noticed defendant’s truck would
       likely hit them and told her husband to pull over. Defendant’s truck then collided with their car.
       After the accident, plaintiff needed “a lot of therapy treatments” and was less physically active
       than he had previously been.
¶ 13        Defendant testified he was 18 years old at the time of the accident. Defendant reiterated he
       did not slip on his way to the church and the road’s condition had not changed from when he
       earlier drove to church. Defendant was driving about 15 to 20 miles per hour and he believed
       he was traveling at a safe speed, given the four-wheel-drive truck he was operating. As a result
       of the accident, defendant received a traffic ticket for driving too fast for conditions and
       pleaded guilty to the traffic violation. Defendant testified he pleaded guilty because he had just
       turned 18 and wanted his license back as quickly as possible. He explained he would not have
       pleaded guilty had he known he would be sued a year later.
¶ 14        Defendant admitted his car was out of control when the accident happened. When asked,
       “in fact, you were going too fast for those conditions, weren’t you?,” defendant responded,
       “[t]he moment I lost control is when I hit the gas pedal, so I guess.” Defendant further
       explained he hit the gas pedal because it was the only way to get up the hill, stating, “[y]ou’re
       not going to glide up ice without hitting the gas.”
¶ 15        During the jury-instruction conference, plaintiff moved for a directed verdict (735 ILCS
       5/2-1202(a) (West 2012)) on the issue of liability. Defendant argued he had presented evidence
       tending to show he was driving at a safe speed and the evidence was sufficient to submit the
       case to the jury. The trial court agreed and denied plaintiff’s motion. The jury returned a
       general verdict in favor of defendant.
¶ 16        On October 11, 2013, plaintiff filed a posttrial motion requesting a new trial. The motion
       listed grounds supporting the request, including the following: (1) the jury’s verdict was
       against the manifest weight of the evidence, (2) “the jury’s verdict was contrary to law,” (3)
       “plaintiff was not contributorily negligent as a matter of law,” (4) “[d]efendant was negligent
       as a matter of law,” (5) “[p]laintiff did prove damages,” (6) “the [c]ourt erred in failing to
       direct a verdict for the [p]laintiff at the close of evidence,” and (7) “the [c]ourt erred in failing
       to direct a verdict on the issue of contributory negligence.” The conclusion of the motion
       states, “[p]laintiff prays that this [c]ourt grant his Motion for a New Trial.” Plaintiff did not
       request a judgment n.o.v. in his posttrial motion.
¶ 17        At the November 7, 2013, hearing on the motion, plaintiff argued the jury’s verdict was
       against the manifest weight of the evidence because defendant admitted he lost control of his
       car, crossed the centerline, and struck plaintiff’s car in plaintiff’s lane of traffic. Plaintiff also
       argued that, from the evidence presented, no “serious issue” could be raised he was
       contributorily negligent and any negligence on his part could not have been the proximate
       cause of the collision. The trial court denied plaintiff’s motion, explaining, “although the
       verdict may have been different than I personally would have entered if I was the finder of fact,
       I think there was evidence to support their findings.”
¶ 18        This appeal followed.

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¶ 19                                           II. ANALYSIS
¶ 20       Plaintiff appeals from the trial court’s denial of his posttrial motion. Plaintiff’s posttrial
       motion sought only a new trial. However, plaintiff is seeking a judgment of liability against
       defendant from this court and a remand for trial on damages only. Defendant’s brief addresses
       the issue as framed by plaintiff’s notice of appeal, i.e., whether the trial court erred in denying
       plaintiff’s posttrial motion seeking a new trial. Because different standards of review apply to
       the decision to deny a motion for directed verdict/judgment n.o.v., as opposed to a denial of a
       motion for new trial, we will first discuss this important distinction. Thereafter, we will discuss
       the procedural posture of this case.

¶ 21           A. Standard Governing a Motion for Directed Verdict and Judgment N.O.V.
¶ 22       As noted above, there are distinct standards to be used by the trial court in deciding
       whether to grant a directed verdict, judgment n.o.v., or a new trial. Maple v. Gustafson, 151 Ill.
       2d 445, 453, 603 N.E.2d 508, 512 (1992). Trial courts apply what is known as the Pedrick
       standard when deciding a motion for directed verdict or a motion for judgment n.o.v. Under
       that standard, a directed verdict or judgment n.o.v. is properly granted only where “all of the
       evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors
       movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria &
       Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). In ruling on these
       motions, “a court does not weigh the evidence, nor is it concerned with the credibility of the
       witnesses; rather it may only consider the evidence, and any inferences therefrom, in the light
       most favorable to the party resisting the motion.” Maple, 151 Ill. 2d at 453, 603 N.E.2d at 512.
       Our supreme court pointed out motions for a directed verdict and motions for judgment n.o.v.,
       although made at different times, raise the same questions and are governed by the same rules
       of law. Id. at 453 n.1, 603 N.E.2d at 512 n.1.
¶ 23       A trial court is not free to enter a directed verdict or judgment n.o.v. “if there is any
       evidence, together with reasonable inferences to be drawn therefrom, demonstrating a
       substantial factual dispute, or where the assessment of credibility of the witnesses or the
       determination regarding conflicting evidence is decisive to the outcome.” (Emphasis added.)
       Id. at 454, 603 N.E.2d at 512. This is a very high standard. The trial court, or for that matter, a
       reviewing court, is not free to reweigh the evidence and substitute its judgment for that of the
       jury because the court feels a different result is more reasonable. Id. at 452-53, 603 N.E.2d at
       512.
¶ 24       We review a trial court’s decision on a motion for directed verdict or judgment n.o.v.
       de novo. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242,
       257 (1999).

¶ 25                         B. Standard Governing a Motion for New Trial
¶ 26       When a party files a posttrial motion seeking a new trial, the trial court weighs the evidence
       and may set aside the verdict and order a new trial “ ‘if the verdict is contrary to the manifest
       weight of the evidence.’ ” Maple, 151 Ill. 2d at 454, 603 N.E.2d at 512 (quoting Mizowek v.
       De Franco, 64 Ill. 2d 303, 310, 356 N.E.2d 32, 36 (1976)). “A verdict is against the manifest
       weight of the evidence where the opposite conclusion is clearly evident or where the findings
       of the jury are unreasonable, arbitrary and not based upon any of the evidence.” (Internal


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       quotation marks omitted.) Id. at 454, 603 N.E.2d at 512-13. The application of this standard is
       addressed to the sound discretion of the trial court. Id. at 455, 603 N.E.2d at 513. “A court’s
       ruling on a motion for a new trial will not be reversed except in those instances where it is
       affirmatively shown that it clearly abused its discretion.” Id. The abuse-of-discretion standard
       applies because the trial judge had the benefit of observing the witnesses firsthand at the trial
       and credibility issues may have been relevant to the jury’s verdict. Id. at 456, 603 N.E.2d at
       513. In determining whether the trial court abused its discretion, we consider whether the
       jury’s verdict was supported by the evidence and whether the losing party was denied a fair
       trial. Id. at 455, 603 N.E.2d at 513.

¶ 27                                  C. Procedural Posture of This Case
¶ 28        During the jury-instruction conference, plaintiff moved for a directed verdict, which the
       trial court denied. Plaintiff filed his posttrial motion, delineating various errors that occurred
       during the trial, including the trial court’s failure to grant plaintiff a directed verdict. Plaintiff’s
       posttrial motion requested only a new trial. It did not request, in the alternative, a judgment
       n.o.v. While not waiving any of his bases for the motion, delineated above, plaintiff basically
       argued the jury’s verdict was against the manifest weight of the evidence. As noted above, this
       is the standard the trial court applies to a motion for a new trial.
¶ 29        Under section 2-1202(a) of the Code of Civil Procedure (735 ILCS 5/2-1202(a) (West
       2012)), if the trial court denies a motion for a directed verdict in a jury trial, “the motion is
       waived unless the request is renewed in the post-trial motion.” All relief desired after a jury
       trial, whether, inter alia, judgment n.o.v. or for a new trial, must be sought in a single posttrial
       motion. 735 ILCS 5/2-1201(b) (West 2012). The posttrial motion must “contain the points
       relied upon, particularly specifying the grounds in support thereof, and must state the relief
       desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate
       relief.” Id. The relief requested in the motion may be in the alternative or conditioned on the
       trial court denying other requested relief. Id.
¶ 30        Under Illinois Supreme Court Rule 366(b)(2)(iii) (eff. Feb. 1, 1994), “[a] party may not
       urge as error on review of the ruling on the party’s post-trial motion any point, ground, or relief
       not specified in the motion.” (Emphasis added.) Rule 366(b)(2)(iii) prohibits what plaintiff
       attempts to do in this case, which is to claim, on appeal, the trial court essentially erred in
       failing to grant him a judgment n.o.v. when he did not request such relief in his posttrial
       motion. See Ill. S. Ct. R. 366(b)(2)(iii) (eff. Feb. 1, 1994); see also Maple, 151 Ill. 2d at 454,
       603 N.E.2d at 513 (the appellate court effectively grants a judgment n.o.v. when it remands a
       cause for further proceedings on damages only). The plain language of section 2-1202(a), that
       a party “renew” a “request” for a directed verdict, read in conjunction with section 2-1202(b)’s
       requirement a party specify the type of relief desired, requires a party to request a judgment
       n.o.v. in its posttrial motion to preserve the issue for review. While plaintiff’s posttrial motion
       states the trial court erred in denying plaintiff’s motion for a directed verdict, it frames the
       argument as a point supporting his request for a new trial. Under both section 2-1202 and Rule
       366(b)(2)(iii), this mere allegation of error in the posttrial motion is insufficient to raise the
       issue without a corresponding request for a judgment n.o.v.
¶ 31        Plaintiff’s failure to request a judgment n.o.v. in his posttrial motion is not a mere technical
       deficiency. A request for a judgment n.o.v. and a motion for a new trial differ from each other,
       and, as discussed above, the supreme court has carefully preserved the distinction in the

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       evidentiary standard courts apply to each. Maple, 151 Ill. 2d at 453, 603 N.E.2d at 512. “A
       directed verdict or a judgment n.o.v. is properly entered in those limited cases where ‘all of the
       evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors
       movant that no contrary verdict based on that evidence could ever stand.’ ” Id. (quoting
       Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14). On the other hand, a motion for a new trial is
       properly entered when the trial court, after weighing the evidence, concludes the verdict is
       contrary to the manifest weight of the evidence. Id. at 454, 603 N.E.2d at 512. Plaintiff’s
       motion for a new trial would not implicate the evidentiary standard applicable to a request for a
       judgment n.o.v. Moreover, by failing to request a judgment n.o.v., plaintiff did not give the trial
       court an opportunity to reconsider its decision to deny his request for a directed verdict.
¶ 32       Plaintiff’s posttrial motion did not request a judgment n.o.v. Consequently, plaintiff is
       precluded from asking this court to enter judgment on liability.

¶ 33                                     D. Motion for New Trial
¶ 34       While plaintiff appeals from the denial of his motion for a new trial, as noted above, he is
       essentially asking this court to enter a judgment n.o.v. Defendant has chosen to brief the issue
       as framed by the notice of appeal. Although this court would be justified pursuant to Illinois
       Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013) in declining to address the denial of the
       posttrial motion because of plaintiff’s failure to clearly and sufficiently brief that issue,
       defendant is not prejudiced by our choosing to address the issue, in light of the fact he briefed it
       fully.
¶ 35       Here, plaintiff had to prove defendant was negligent, that plaintiff suffered damages, and
       the damages were proximately caused by defendant’s negligence. While plaintiff submitted
       sufficient evidence for the jury to return a verdict in his favor, there was evidence before the
       jury to support a finding the accident did not proximately cause plaintiff’s injuries. While Dr.
       Winograd testified plaintiff sought treatment following the accident, he was only able to say
       plaintiff’s complaints of pain and discomfort could have been attributed to the accident. Dr.
       Ward testified all of the objective findings on radiology reports were the result of past injuries
       and degeneration due to aging. None of the bone spurs, stenosis, or degeneration was a result
       of the accident. Thus, the jury, based on the evidence, could have found the medical issues for
       which plaintiff sought treatment were not the result of the accident. While the trial judge may
       have found differently, she was not at liberty to substitute her judgment for that of the jury, and
       neither are we.
¶ 36       As a result, we are unable to find the trial court abused its discretion when it denied
       plaintiff’s motion for a new trial on the basis the jury verdict was not against the manifest
       weight of the evidence.

¶ 37                                      III. CONCLUSION
¶ 38      For the reasons stated, we affirm the trial court’s judgment.

¶ 39      Affirmed.




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