                                                                                    FILED
                                                                               November 30, 2017
                                    2017 IL App (4th) 160741
                                                                                   Carla Bender
                                                                               4th District Appellate
                                          NO. 4-16-0741                              Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

PATRICIA J. MARXMILLER and KEN                               )       Appeal from
MARXMILLER,                                                  )       Circuit Court of
            Plaintiffs-Appellees,                            )       Champaign County
            v.                                               )       No. 15L38
THE CHAMPAIGN-URBANA MASS TRANSIT                            )
DISTRICT,                                                    )
            Defendant-Appellant.	                            )       Honorable
                                                             )       Michael Q. Jones,
                                                             )       Judge Presiding.


                JUSTICE APPLETON delivered the judgment of the court, with opinion.
                Justices Holder White and DeArmond concurred in the judgment and opinion.

                                            OPINION
¶1              In this negligence action, plaintiffs, Patricia J. Marxmiller and Ken Marxmiller,

recovered a money judgment against defendant, Champaign-Urbana Mass Transit District

(CUMTD). Defendant appeals, arguing the Champaign County circuit court erred in two of the

instructions it gave the jury.

¶2              The first instruction at issue informed the jury that the trial court had found

defendant to be liable to plaintiffs. See Illinois Pattern Jury Instructions, Civil, No. 1.02 (2011)

(hereinafter, IPI Civil (2011) No. 1.02) (“Pre-Trial Judicial Determination in Favor of Plaintiff”).

Defendant argues this instruction was misleading and prejudicial and that, instead, the court

should have given IPI Civil (2011) No. 1.03B (“Admitted Fault and Causation”), considering

that by withdrawing its affirmative defense of comparative fault, defendant had forthrightly

admitted negligence and proximate cause.
¶3              For the following reasons, we are unconvinced by this first challenge to the jury

instructions. Before defendant withdrew its affirmative defense, the trial court made summary

determinations that (1) Patricia J. Marxmiller was no more than 50% at fault in the accident and

(2) defendant’s negligence was a proximate cause of her injuries. The court thereby found

defendant to be liable to plaintiffs. Defendant’s negligence and the proximately resulting injuries

were established by the court’s summary determinations, not by defendant’s admissions. Thus,

IPI Civil (2011) No. 1.02, rather than IPI Civil (2011) No. 1.03B, was the correct instruction to

give, and we find no abuse of discretion in the giving of that instruction. Without that instruction,

the jury would have been confused as to why the question of defendant’s liability was being

skipped over in the trial.

¶4              The second jury instruction at issue is an instruction coupled with a verdict form.

The instruction informed the jury that, on one line of “Verdict Form A,” which was for Patricia J.

Marxmiller, it could award damages for pain and suffering (if it found such damages to be

proved) and that, on another line of the verdict form, it could award damages for emotional

distress. See IPI Civil (2011) Nos. 30.01 (“Measure of Damages—Personal and Property”);

30.05 (“Measure of Damages—Pain and Suffering—Past and Future”); 30.05.01 (“Measure of

Damages—Emotional Distress—Past and Future”); B45.02.A (“Verdict Form A—Single

Plaintiff and Defendant—No Contributory Negligence Pleaded”). Defendant argues the court

thereby authorized a double recovery since emotional distress was a form of suffering.

¶5              We agree that emotional distress is a form of suffering and that itemizing

emotional distress and suffering as separate elements of damages creates a risk of double

recovery. It does not appear, though, that the jury was misled in this particular case. Because the

jury awarded half a million dollars less for pain and suffering than for emotional distress, we see



                                                -2­
no evidence of a double recovery. In Verdict Form A, the elements of damages had to be added

together to yield a total, and evidently the jury perceived the illogic of duplication. Even though,

normally, emotional distress would be regarded as a component of suffering, it appears that, in

the context of Verdict Form A, the jury understood the item of suffering as excluding the item of

emotional distress—or else the award for pain and suffering would have been greater than the

award for emotional distress, rather than less.

¶6             Therefore, we affirm the trial court’s judgment. See McHale v. W.D. Trucking,

Inc., 2015 IL App (1st) 132625, ¶ 116 (“[A] judgment will not be reversed where the jury

instructions are faulty unless they mislead the jury and the complaining party suffered

prejudice.” (Internal quotation marks omitted.)).



¶7                                      I. BACKGROUND

¶8             On February 25, 2015, in Champaign, Illinois, Patricia J. Marxmiller was struck

by one of defendant’s buses. Her legs were so severely injured they had to be amputated. She

sued for her personal injuries, and her spouse, Ken Marxmiller, sued for loss of consortium.

Defendant pleaded an affirmative defense of comparative fault.

¶9             Before the jury trial, the parties filed cross-motions for partial summary judgment.

See 735 ILCS 5/2-1005(d) (West 2016). Plaintiffs sought a summary determination of

defendant’s negligence and also a summary determination against defendant’s affirmative

defense that Patricia J. Marxmiller was comparatively at fault. Defendant, on the other hand,

sought a summary determination that she was at fault to some degree.

¶ 10           The trial court ruled on the cross-motions for summary judgment as follows. It

granted plaintiffs’ motion for a summary determination that (1) defendant’s negligence was a



                                                  -3­
proximate cause of Patricia J. Marxmiller’s injuries and (2) she could be no more than 50% at

fault. It declined to make a summary determination, however, that she was completely free of

comparative fault. By the same token, it denied defendant’s motion for a summary determination

that she was at fault to some degree. Essentially, then, the court ruled that the issue of whether

she was at fault to the extent of 50% or less was for the jury to resolve.

¶ 11           After the trial court made those rulings on the cross-motions for summary

judgment, defendant filed an amended answer, which omitted the affirmative defense of

comparative fault (previously pleaded in the original answer).

¶ 12           Thus, both the summary determinations and the amendment of the answer

removed issues from the upcoming jury trial. Because of the summary determinations, the jury

would not be asked to decide whether defendant was liable to plaintiffs; it would be a trial on

damages alone. Because of the amendment of the answer, the jury would not be asked to decide

whether Patricia J. Marxmiller was comparatively at fault to the extent of 50% or less. See

Blackburn v. Johnson, 187 Ill. App. 3d 557, 564-65 (1989) (comparative negligence is an

affirmative defense, which is forfeited if not pleaded).

¶ 13           Given the summary determinations, plaintiffs tendered to the trial court plaintiffs’

instruction No. 2A, which was based on IPI Civil (2011) No. 1.02. (Incidentally, we grant

defendant’s unopposed motion to supplement the record, by stipulation, with plaintiffs’

instruction No. 2A and defendant’s instruction No. 1. See Ill. S. Ct. R. 329 (eff. July 1, 2017).)

Plaintiffs’ instruction No. 2A read as follows: “The court has found the defendant, CUMTD,

liable, so that is not an issue you will need to decide.”

¶ 14           Defendant objected to plaintiffs’ instruction No. 2A because defendant regarded it

as misleading. In defendant’s view, that instruction suppressed the fact that defendant, in its



                                                 -4­
amended answer, had effectively conceded the issue of comparative fault. Defendant tendered, as

an alternative, defendant’s instruction No. 1, which was based on IPI Civil (2011) No. 1.03B and

which, defendant believed, would give due credit for its concession on the issue of comparative

fault. Defendant’s instruction No. 1 read as follows: “The defendant, Champaign-Urbana Mass

Transit District, has admitted it was negligent. The defendant, Champaign-Urbana Mass Transit

District, has also admitted that its negligence was a proximate cause of damages to the plaintiff.

There are other issues you will need to decide in this case.”

¶ 15           The trial court refused defendant’s instruction No. 1 and accepted plaintiffs’

instruction No. 2A. Accordingly, on August 10, 2016, at the beginning of the trial, after giving

the standard cautionary instructions, the court additionally instructed the jury: “[T]he court has

found the Defendant[,] CU-MTD[,] liable[,] so that is not an issue you will need to decide.”

¶ 16           On August 16, 2016, after the close of evidence in the jury trial, the trial court

held a jury instruction conference, in which the controversy of IPI Civil (2011) No. 1.02 versus

IPI Civil (2011) No. 1.03B arose again. Plaintiffs tendered their instruction No. 5, which was a

modification of IPI Civil (2011) No. 1.02. It read as follows: “The Court has found the

defendant, Champaign-Urbana Mass Transit District, is liable, so that is not an issue you will

need to decide. You need only decide what amount of money will reasonably and fairly

compensate the plaintiffs for injuries and damages caused by the collision of February 25, 2015.”

¶ 17           Defendant renewed its earlier objection that “it [was] inappropriate to say that [the

court] ha[d] made the finding of liability against [defendant].” The court responded: “I’ve

already said [IPI Civil (2011) No.] 1.02 is appropriate as opposed to [IPI Civil (2011) No.]

1.03[B]. The argument is much like a jury finding a criminal defendant guilty and then the

defendant popping up and saying[,] [‘]I’d like to switch my plea from not guilty to guilty.[’] ”



                                               -5­
¶ 18           Additionally, defendant objected to plaintiffs’ instruction No. 8, an instruction on

damages, which was based on IPI Civil (2011) Nos. 30.01, 30.04, 30.04.01, 30.05, 30.05.01,

30.06, and 30.07. Plaintiffs’ instruction No. 8 stated in part:

                       “You must fix the amount of money which will reasonably and fairly

               compensate the Plaintiff, Patricia J. Marxmiller[,] for any of the following

               elements of damages proved by the evidence to have resulted from the collision of

               February 25, 2015, taking into consideration the nature, extent[,] and duration of

               the injury.

                                                ***

                               The emotional distress experienced and reasonably certain to be

                       experienced in the future.

                               The pain and suffering experienced and reasonably certain to be

                       experienced in the future.”

Defendant objected to plaintiffs’ instruction No. 8 because, as a matter of plain English,

“emotional distress” was included in “suffering.” Therefore, defendant argued, this instruction

invited a duplicative recovery.

¶ 19           Defendant saw the same danger of a duplicative recovery in the associated verdict

form, plaintiffs’ instruction No. 17, which was based on IPI Civil (2011) No. B45.02.A. This

form, Verdict Form A, read “We, the jury, assess the damages for the Plaintiff, Patricia J.

Marxmiller, against the Defendant Champaign Urbana Mass Transit District, in the sum of:

$__________, itemized as follows,” and then separate elements of damages were listed. Among

the listed elements were “The emotional distress experienced and reasonably certain to be

experienced in the future,” followed by a dollar sign and a blank line, and “The pain and



                                                 -6­
suffering experienced and reasonably certain to be experienced in the future as a result of the 


injuries,” followed by a dollar sign and a blank line. Defendant argued that the item of


“emotional distress” was duplicative because it was a component of the following item,


“suffering.”


¶ 20            The trial court asked plaintiffs’ attorney if it was “permissible to have discrete


awards of damages for pain and suffering and emotional distress.” He responded with a question:


                       “MR. HAGLE: And do I have the understanding if you didn’t use the

                words ‘emotional distress,’ that the word ‘suffering’ would include the emotional

                injuries which are clearer in this case?

                       THE COURT: I would have to think so. 


                       MR. HAGLE: Yeah. That’s the way I would take it. 


                       THE COURT: It’s compens—it’s compensable how—you know,


                emotional effects on the plaintiff are compensable.

                       MR. HAGLE: Thank you.

                       THE COURT: I’m just not sure right now whether they have to be folded

                into pain and suffering or whether they can be separate ones. I don’t know.

                       MR. HAGLE: We’re going to research it as well.”

¶ 21            The next day, August 17, 2016, plaintiffs pointed out to the trial court the case of

Babikian v. Mruz, 2011 IL App (1st) 102579, which contained the following relevant discussion:

                       “The defendant further claims that the modified jury instruction and the

                verdict form, which included a separate line for emotional-distress damages,

                induced the jury to grant the plaintiff a double recovery for her mental pain and

                suffering. This claim, however, is not supported by the record. It is presumed that



                                                 -7­
               the jury understood and followed the court’s instructions. [Citations.] Here, there

               is no indication in the record that the jury was confused in its determination of the

               appropriate amount of damages for the plaintiff’s mental pain and suffering. Also,

               the defendant did not submit any special interrogatories, the answers to which

               would have demonstrated whether a double recovery had been awarded. In the

               absence of some supporting evidence in the record, the defendant’s claim that the

               modified instruction and the verdict form induced the jury to award the plaintiff a

               double recovery for her mental distress is mere conjecture. Consequently, we find

               no abuse of discretion in the trial court’s instructions to the jury.” Id. ¶ 20.

¶ 22           Defendant’s attorney responded: “We recognize that this Court is bound by

Babikian until the Fourth District addresses the issue. We persist in our objection for the record.”

¶ 23           The trial court ruled:

                       “You have convinced me that it is appropriate to ask for these items,

               elements, of damages separately[,] and of course[,] as always[,] as we all

               understand[,] this is predicated upon[:] [I]is there evidence to support the same[?]

               In this case, clearly there is evidence to support pain and suffering[,] and clearly

               there is evidence to support emotional distress. Accordingly[,] I am overruling the

               Defendant’s objection and allowing this instruction and those that relate to it.”

¶ 24           The jury was called into the courtroom, the attorneys made their closing

arguments, and the trial court instructed the jury. The instructions included plaintiffs’ instruction

Nos. 5, 8, and 17.

¶ 25           On August 17, 2016, the jury awarded Patricia J. Marxmiller a total of $9,422,232

in compensatory damages, which included (as itemized in Verdict Form A) $1.5 million for



                                                 -8­
“[t]he emotional distress experienced and reasonably certain to be experienced in the future” and

$1 million for “[t]he pain and suffering experienced and reasonably certain to be experienced in

the future as a result of the injuries.” The jury awarded Ken Marxmiller $450,000. The trial court

entered a judgment on the verdicts.

¶ 26           On September 16, 2016, defendant filed a posttrial motion. The motion contended

the trial court had erred by (1) “instructing the jury on Plaintiffs’ jury instruction No. 5 (IPI 1.02

as modified by Plaintiffs), instead of instructing the jury on Defendant’s tendered jury instruction

pursuant to IPI 1.03B” and (2) “tendering Plaintiffs’ jury instruction Nos. 8 [and] 17 containing

separate elements of damages for emotional distress from that of pain and suffering.”

¶ 27           On October 5, 2016, the trial court denied defendant’s posttrial motion and made

a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no

just reason for delaying enforcement or appeal. (A motion for sanctions was pending. See

Valdovinos v. Luna-Manalac Medical Center, Ltd., 307 Ill. App. 3d 528, 539 (1999) (“[A]n

appeal may be taken from a final judgment, notwithstanding the fact that a motion for sanctions

remains pending and unresolved, if the trial court has made a written finding consistent with the

requirements of Supreme Court Rule 304(a).”).)

¶ 28           Defendant filed its notice of appeal on October 12, 2016.



¶ 29                                       II. ANALYSIS

¶ 30                        A. The Instruction Informing the Jury That
                        the Trial Court Had Found Defendant To Be Liable

¶ 31           Defendant argues the trial court abused its discretion by giving the jury plaintiffs’

instruction No. 5, which was based on IPI Civil (2011) No. 1.02. See Jacobs v. Yellow Cab

Affiliation, Inc., 2017 IL App (1st) 151107, ¶ 119 (“Jury instructions are reviewed under the

                                                -9­
abuse of discretion standard ***.”). Again, that instruction read as follows: “The Court has found

the defendant, Champaign-Urbana Mass Transit District, is liable, so that is not an issue you will

need to decide. You need only decide what amount of money will reasonably and fairly

compensate the plaintiffs for injuries and damages caused by the collision of February 25, 2015.”

According to defendant, plaintiffs’ instruction No. 5 violated the rule that “jury instructions must

state the law fairly and distinctly and must not mislead the jury or prejudice a party.” (Internal

quotation marks omitted.) Doe v. University of Chicago Medical Center, 2014 IL App (1st)

121593, ¶ 77. Defendant maintains that by “inform[ing] the jury that the court had ruled totally

in favor of the plaintiffs,” the court misled the jury by giving “no recognition of defendant’s

concession.”

¶ 32           But the trial court never instructed the jury that the court had “ruled totally in

favor of the plaintiffs.” Rather, the court instructed the jury that the court had found defendant to

be “liable.” To be “liable” means to be “[r]esponsible or answerable in law.” Black’s Law

Dictionary 927 (7th ed. 1999). By making summary determinations that (1) defendant’s

negligence was a proximate cause of Patricia J. Marxmiller’s injuries and (2) she was no more

than 50% at fault, the court had found defendant to be responsible or answerable in law for her

injuries. See 735 ILCS 5/2-1005(d) (West 2016) (“Upon the trial of the case, the facts so

specified [by the summary determination] shall be deemed established, and the trial shall be

conducted accordingly.”); Gillespie Community Unit School District No. 7 v. Union Pacific R.R.

Co., 2015 IL App (4th) 140877, ¶ 197 (under the rule of modified comparative fault, the plaintiff

is barred from recovery if his or her own fault was more than 50% of the cause of the injury,

whereas if the plaintiff’s fault was 50% or less, the plaintiff’s recovery is reduced by that

percentage); Johnson v. Burlington Northern, Inc., 107 Ill. App. 3d 130, 136-37 (1982) (“For a



                                               - 10 ­
defendant to be liable for negligence, he must have a duty towards plaintiff, he must breach that

duty, and the breach must have been the proximate cause of the injury thereby damaging

plaintiff.”).

¶ 33            Plaintiffs’ instruction No. 5 did not state that the trial court had found defendant

to be “totally” or “solely” liable or responsible for Patricia J. Marxmiller’s injuries. See Alvis v.

Ribar, 85 Ill. 2d 1, 18 (1981) (“[W]e believe that the need to deter negligent parties supports the

adoption of the comparative negligence doctrine in which each party would be liable for

damages in direct proportion to his degree of carelessness.”). Rather, the instruction stated

merely that the court had found defendant to be “liable.” In that respect, the instruction was

correct. Jury instructions should be accurate (Palmer v. Palmer, 169 Ill. App. 3d 828, 831

(1988)), and plaintiffs’ instruction No. 5 was an accurate instruction.

¶ 34            The instruction that defendant tendered as an alternative was inaccurate.

Defendant tendered defendant’s instruction No. 1 was based on IPI Civil (2011) No. 1.03B, and

it read: “The defendant, Champaign-Urbana Mass Transit District, has admitted it was negligent.

The defendant, Champaign-Urbana Mass Transit District, has also admitted that its negligence

was a proximate cause of damages to the plaintiff. There are other issues you will need to decide

in this case.” The first two sentences of that instruction were misleading. Defendant’s negligence

and the existence of resulting damages were established not by defendant’s admission but by the

trial court’s summary determinations. To quote from defendant’s brief, the court “granted

plaintiffs’ motion for a summary finding that defendant’s negligence was a proximate cause of

[Patricia J. Marxmiller’s] injuries and that [she] could be no more than [50%] at fault.” By

omitting from its amended answer the affirmative defense of comparative fault, defendant—if it




                                               - 11 ­
thereby admitted anything—admitted only that Patricia J. Marxmiller was free of any

comparative fault.

¶ 35           Granted, the trial court never instructed the jury that defendant had conceded the

issue of whether Patricia J. Marxmiller was comparatively at fault to the extent of 50% or less.

Defendant, however, never tendered an instruction to that effect, and “[n]o party may raise on

appeal the failure to give an instruction unless the party shall have tendered it.” Ill. S. Ct. R.

366(b)(2)(i) (eff. Feb. 1, 1994).

¶ 36           Besides, it is unclear how defendant was prejudiced by the lack of such an

instruction, or why such an instruction was needed. Maybe defendant believed that, in the trial,

defendant would have looked better to the jury—that is, would have looked more reasonable and

more candid—if defendant’s concession as to comparative fault had been made known. The jury,

however, was supposed to assess the amount of damages solely on the basis of the evidence

presented in the trial, not on the basis of sympathy aroused by a concession. As the trial court

instructed the jury, without objection: “[I]t is your duty to resolve this case by determining the

facts based on the evidence and following the law given in my instructions. Your verdict must

not be based upon speculation, prejudice, or sympathy.” See IPI Civil (2011) No. 1.01.

¶ 37           In sum, we are unconvinced of the superior accuracy of defendant’s instruction

No. 1. Plaintiffs’ instruction No. 5 was perfectly accurate: by finding negligence on defendant’s

part and proximately caused damages and by eliminating any claim that Patricia J. Marxmiller

was more than 50% at fault, the trial court had effectively found that defendant was liable to

plaintiffs. See Gillespie, 2015 IL App (4th) 140877, ¶ 197; Johnson, 107 Ill. App. 3d at 136-37.

Therefore, we find no abuse of discretion in the giving of plaintiffs’ instruction No. 5 (IPI Civil

(2011) No. 1.02) and in the rejection of defendant’s instruction No. 1 (IPI Civil (2011) No.



                                              - 12 ­
1.03B). See Jacobs, 2017 IL App (1st) 151107, ¶ 119; Doe, 2014 IL App (1st) 121593, ¶ 77;

Palmer, 169 Ill. App. 3d at 831.



¶ 38                    B. The Jury Instruction Allowing Both an Award
                       for Emotional Distress and an Award for Suffering

¶ 39                         1. The Asserted Forfeiture of This Issue

¶ 40           Over defendant’s objection, the trial court instructed the jury that, on one line of

Verdict Form A, the jury could award damages to Patricia J. Marxmiller for her “emotional

distress experienced and reasonably certain to be experienced in the future” and that, on another

line, the jury could award her damages for her “pain and suffering experienced and reasonably

certain to be experienced.” IPI Civil (2011) Nos. 30.05, 30.05.01. The jury awarded her $1.5

million on the line for emotional distress and $1 million on the line for pain and suffering. On

appeal, defendant argues that because emotional distress was encompassed within suffering, the

instructions permitted a duplicative recovery. Defendant cites a case in which the Fifth District

warned: “[I]t is axiomatic that for one injury there may be but one satisfaction. The instructions

given by a court must be so framed as not to mislead the jury into duplicating the elements of

damages in a recovery or into awarding damages twice for the same injury.” Galyean v. Duncan,

125 Ill. App. 3d 464, 468 (1984).

¶ 41           Plaintiffs’ initial response (before arguing Babikian) is that by failing to tender an

alternative verdict form and an alternative damages instruction, defendant forfeited this issue.

Plaintiffs quote Illinois Supreme Court Rule 366(b)(2)(i) (eff. Feb. 1, 1994): “No party may raise

on appeal the failure to give an instruction unless the party shall have tendered it.” Also, they

quote from Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 549 (1984): “A party is not permitted

to appeal his overruled objection to an erroneous jury instruction when he fails to tender an

                                               - 13 ­
alternate one which he contends on appeal, but failed to argue in the trial court, presents the

proper statement of the law.”

¶ 42           Auton is distinguishable because defendant raises on appeal the inclusion of

objectionable language in plaintiffs’ jury instructions, not the omission of an alternative

instruction. The plaintiff in Auton argued the trial court had erred by omitting to, sua sponte, give

an alternative instruction setting forth a theory of the case that was fundamentally different from

the theory she had pursued in the trial. The supreme court held:

               “By failing to tender an instruction permitting assumption of risk as a damage-

               reducing factor [in her action for strict products liability], the plaintiff waived

               [(that is, forfeited)] her right to maintain on appeal, as she now does, that this was

               the proper instruction rather than the instruction which stated that assumption of

               risk was a defense to the action. Her failure to tender such an instruction left the

               trial judge in a position where he did not have before him an instruction covering

               the manner in which, according to the plaintiff’s current argument, comparative

               fault should correctly have been applied.” Id. at 550.

In other words, the plaintiff had insisted in the trial court that comparative negligence was

inapplicable to an action for strict products liability. Id. at 544-45. Consequently, she never

tendered a jury instruction on comparative negligence. Id. at 549. Given the asserted

inapplicability of comparative negligence, the court instructed the jury, instead, on the now

obsolete rule that assumption of risk was a complete bar to an action for strict products liability

(instead of merely a damage-reducing factor under a regime of comparative negligence). Id. at

547-48. After the jury returned a verdict in the defendant’s favor, the plaintiff appealed, arguing

the court should have instructed the jury on comparative negligence. Id. at 542. Naturally, the



                                               - 14 ­
supreme court responded: “We cannot regard as error the omission of the court to give

instructions which were not asked.” (Internal quotation marks omitted.) Id. at 549.

¶ 43           The present case is different in that defendant does not raise the failure to give a

damages instruction, as the plaintiff in Auton raised the failure to give an instruction on

comparative negligence. It is not that defendant, in retrospect, has devised a new and different

theory of the case and now faults the trial court for omitting to, sua sponte, instruct the jury on

the new and different theory. Instead of “rais[ing] *** the failure to give an instruction,”

defendant raises the failure to delete certain objectionable language from plaintiffs’ proposed

instructions on damages. Ill. S. Ct. R. 366(b)(2)(i) (eff. Feb. 1, 1994).

¶ 44           To impose a forfeiture on defendant for omitting to tender an alternative

instruction would make no sense. It may be that if defendant had its druthers, no damages

instruction at all would have been given. If, in the trial court, defendant simply had taken the

position that a proposed instruction by plaintiff should be refused in its entirety—period—

defendant obviously would not have had to tender an alternative instruction. An alternative

instruction would have been necessary only if defendant believed that plaintiffs’ instruction

should be replaced by another instruction. By corollary, if defendant took the position that

certain language should be stricken from plaintiffs’ proposed instructions, alternative instructions

would be necessary only if defendant believed that other language should be substituted. We

understand defendant as contending simply that the phrase “[t]he emotional distress experienced

and reasonably certain to be experienced in the future” should have been stricken from plaintiffs’

instruction Nos. 8 and 17, not that this language should have been replaced by other, newly

suggested language. Therefore, we find Rule 366(b)(2)(i) and Auton to be inapplicable, and we

reject plaintiffs’ contention of forfeiture. See Lancaster v. Jeffrey Galion, Inc., 77 Ill. App. 3d



                                                - 15 ­
819, 822 n.1 (1979) (“In the instant appeal, the plaintiff is not raising the failure to give an

instruction (interrogatory)[,] but rather he is raising the overruling of his objection to an

interrogatory that was given. The plaintiff was under no obligation to tender an alternative

interrogatory or clarifying instruction.” (Emphases omitted.)).



¶ 45                           2. Duplicative Elements of Damages

¶ 46                        a. Even Though Their Use Is Prescribed, the
                       Illinois Pattern Jury Instructions Are Not Sacrosanct

¶ 47           Plaintiffs note that by including a separate line for emotional distress in both the

damages instruction and Verdict Form A, they merely followed the Illinois Pattern Jury

Instructions. See IPI Civil (2011) Nos. 30.01, 30.05, 30.05.01, B45.02.A.

¶ 48           Likewise, in Powers v. Illinois Central Gulf R.R. Co., 91 Ill. 2d 375, 377 (1982),

the plaintiff followed the Illinois Pattern Jury Instructions by including a separate line for “ ‘The

nature, extent[,] and duration of the injury.’ ” Even so, the instructions were not immune from

critique. The supreme court held “it was error to give the IPI instruction relating to the nature,

extent[,] and duration of the plaintiff’s injury as a separately compensable element of damage

when the jury also was given the instruction on the other IPI elements of damage,” such as

disability and pain and suffering. Id. at 384. As the appellate court had explained, “ ‘the jury [had

to] consider the nature, extent, and duration of the injury’ ” not as a separate element of damages

but, rather, “ ‘as a means of determining the appropriate amount to award for elements such as

disability and pain and suffering.’ ” Id. at 380 (quoting Powers v. Illinois Central Gulf R.R. Co.,

92 Ill. App. 3d 1033, 1036-37 (1981)).




                                               - 16 ­
¶ 49           Thus, as Powers demonstrates, the Illinois Pattern Jury Instructions are “not

exempt from challenge.” Id. at 385. They should be used if they “accurately state the law”

applicable to the case at hand—but not otherwise. Ill. S. Ct. R. 239(a) (eff. Apr. 8, 2013).


¶ 50                   b. The Overlap Between the Commonly Understood
                        Meanings of “Suffering” and “Emotional Distress”

¶ 51           The advantage of Verdict Form A (IPI Civil (2011) No. B45.02.A) is that it has

built-in special interrogatories, so to speak: we know exactly how the jury arrived at the total of

compensatory damages because the verdict form required the jury to specify a dollar amount for

each element of damages. There is a danger, however, in itemizing elements of damages in this

manner: one must watch out for redundant or overlapping elements. (By the way, we realize the

trial court had no choice but to follow Babikian.) “There is a danger *** that in the instructions

given[,] an element of damage may be duplicated or elements may overlap[,] with the result that

the jury may give duplicative awards.” Powers, 91 Ill. 2d at 379. For example, in Smith v. City of

Evanston, 260 Ill. App. 3d 925, 938 (1994), the First District held that “disability” and “loss of

normal life” could not be itemized as separate elements of damages because “loss of a normal

life” was included within the meaning of “disability.” “Illinois courts [had] found that disability

damages include[d] damages for loss of a normal life.” Id. at 937.

¶ 52           Similarly, “suffering” includes “emotional distress.” In fact, “suffering” is another

word for “distress.” A dictionary defines “distress” as “pain or suffering affecting the body, a

bodily part, or the mind” and lists “suffering” as a synonym. Merriam-Webster’s Collegiate

Dictionary 338 (10th ed. 2000). The same dictionary defines “suffer” as “to endure death, pain,

or distress.” Id. at 1177. Suffering means distress, whether physical or emotional. Suffering can

be physical, in the form of pain, fatigue, or other bodily distress. Suffering also can be mental, in



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the form of fear, shock, anxiety, frustration, grief, depression, or boredom. See Holston v. Sisters

of the Third Order of St. Francis, 247 Ill. App. 3d 985, 1002 (1993). Emotional distress or

mental anguish is a component of suffering, not an element of damages unto itself. See id.

(holding that “mental suffering caused by physical injury even without pain is compensable”

(emphasis added)).

¶ 53           This is not to deny that emotional distress should be taken into consideration

when assessing damages in a personal-injury action. See id. at 1001-02. If, as a result of a bodily

injury, the plaintiff has suffered anguish of mind, the plaintiff deserves compensation for that

aspect of his or her suffering, and the jury should be so instructed. Id. It is one thing, however, to

consider emotional distress when assessing damages for suffering, and it is another thing to

make emotional distress an element of damages separate and distinct from suffering. Cf. Powers,

91 Ill. 2d at 383 (“But instructing a jury to consider the nature, extent[,] and duration [of the

plaintiff’s injuries] is not the same as instructing it to separately award for the nature, extent[,]

and duration of the injury.”). The pertinent element of damages is suffering. Emotional distress is

a form of suffering, not a separate element. See Holston, 247 Ill. App. 3d at 1002 (“Among the

possible forms of mental suffering are fright, shock, and anguish ***.”).



¶ 54                  c. Despite Our Disagreement With Babikian, We Find
                     No Evidence, in the Present Case, of Duplicative Damages

¶ 55           In Babikian, the First District concluded: “In the absence of some supporting

evidence in the record, the defendant’s claim that the modified instruction and the verdict form

induced the jury to award the plaintiff a double recovery for her mental distress is mere

conjecture.” Babikian, 2011 IL App (1st) 102579, ¶ 20. Evidently, though, the record in Babikian

did indeed contain evidence of a double recovery. The evidence was the modified jury

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instruction and the completed verdict form to which the First District referred. The trial court had

“instructed the jurors that, if they found in favor of the plaintiff, they could award damages for

pain and suffering and also for emotional distress, as long as those elements of damages were

supported by the evidence.” Id. ¶ 10. As the First District noted, the jury was presumed to have

understood and followed the instructions. Id. ¶ 20. The court never instructed the jury to limit the

award for “pain and suffering” to physical pain and suffering. Id. ¶ 18. Presumably, the jury

followed the court’s instructions quite literally, to the letter. Id. ¶ 20. “The jury returned a verdict

for the plaintiff in the amount of $500,500, which included specific awards of $200,000 for pain

and suffering and $130,000 for emotional distress.” Id. ¶ 10. One needed to look no further for

evidence of a double recovery.

¶ 56            But the present case is different in that the award for “emotional distress” exceeds

the award for “pain and suffering.” In Verdict Form A, the jury awarded Patricia J. Marxmiller

$1.5 million for emotional distress but only $1 million for pain and suffering. It appears, then,

that the jury excluded emotional distress from suffering. Itemizing emotional distress and

suffering as separate items of damages could mislead a jury into awarding duplicative damages,

but evidently the jury was not misled into doing so in the present case. Therefore, we find no

cause for reversal. See McHale, 2015 IL App (1st) 132625, ¶ 116 (“[A] judgment will not be

reversed where the jury instructions are faulty unless they mislead the jury and the complaining

party suffered prejudice.” (Internal quotation marks omitted.)).



¶ 57                             C. Plaintiffs’ Motion for Sanctions




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¶ 58           Plaintiffs have moved that we impose sanctions upon defendants for filing a

frivolous appeal. See Ill. S. Ct. R. 375 (eff. Feb. 1, 1994). We disagree with plaintiffs’

characterization of this appeal.

¶ 59           An appeal is frivolous if it would not have been brought in good faith by a

reasonable, prudent attorney. Penn v. Gerig, 334 Ill. App. 3d 345, 357 (2002). A reasonable,

prudent attorney could argue, in good faith, that itemizing emotional distress as an element of

damages separate from suffering invites a double recovery. That argument is not only reasonable

but, as we have held, correct.

¶ 60           Granted, Babikian holds otherwise, and until now, no reported decision has

disagreed with Babikian. Litigants are permitted to argue to us, however, that a decision by the

appellate court is erroneous, and in so doing, they may rely on the commonly accepted meanings

of words—as juries do when reading and interpreting instructions. See Ill. S. Ct. R. 375(b) (eff.

Feb. 1, 1994) (“a good-faith argument for the extension, modification, or reversal of existing

law”). Suffering is commonly understood to include emotional distress. Emotional suffering is a

form of suffering. To that extent, defendant is correct. Defendant merely overlooks that if the

award for emotional distress exceeds the award for pain and suffering, it is unlikely that the

award for suffering duplicated the award for emotional distress, considering that emotional

distress is a component of suffering. Overlooking that subtle point hardly equates to bad faith.

Therefore, we deny the motion for sanctions.



¶ 61                                   III. CONCLUSION

¶ 62           For the foregoing reasons, we affirm the trial court’s judgment.

¶ 63           Affirmed.



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