holding that an offer of proof was not required because the trial court understood - 34 - 2021 IL App (2d) 191113 that the witness would testify as to the medical standard of care
How later courts described this case
- holding that an offer of proof was not required because the trial court understood - 34 - 2021 IL App (2d) 191113 that the witness would testify as to the medical standard of care
- holding that an offer of proof was not required because the trial court understood that the witness would testify as to the medical standard of care
- refusing to set aside a general verdict where the plaintiff alleged multiple theories of liability and the defendants did not submit special interrogatories to the jury because “there [was] no way of knowing on what theory the jury found” the defendants liable
- stating that “where *** pattern instructions are inadequate,” additional instruction with nonpattern instructions is appropriate
Written by the judges who cited it.
The opinion
CHIEF JUSTICE HARRISON, concurring in part and dissenting in part:
The appellate court’s judgment affirming the judgment of the circuit court should be upheld without qualification. Contrary to my colleagues, I would not remand for a new trial on the element of damages for increased risk of future injuries. The damages instruction tendered by plaintiff was adequate as given. Although my colleagues are quite right that the jury’s assessment of increased risk must be based on evidence, not speculation, that is true of every element of damages. Indeed, it is true of every element of plaintiffs cause of action.
Juries are told this at the outset of their deliberations. Illinois Pattern Jury Instructions, Civil, No. 1.01(3) (1995), specifically cautions the jury that its verdict “must be based on evidence and not upon speculation, guess or conjecture.” We do not require this caveat to be repeated in the instructions governing the other aspects of a plaintiffs claim, and there is no reason to require such repetition with respect to a plaintiffs claim for damages based on increased risk of future injuries.
I am also unpersuaded by the majority’s contention that the damages instruction tendered in this case failed to adequately apprise the jury that the size of its award for increased risk of future injuries must reflect the probability that such injuries will occur. The instruction was specifically phrased in terms of “risk.” By definition, risk includes “the product of the amount that may be lost and the probability of losing it.” Webster’s Third New International Dictionary 1961 (1986). Accordingly, the charge to the jury here was sufficient to describe the type of assessment the jury was required to make.
Even if the revisions to the instruction proposed by my colleagues would have been helpful to the jury, that is not an adequate basis under the law for disturbing the jury’s verdict. In assessing the sufficiency of the jury’s instructions, the issue is not whether our court could have phrased the instructions in a better way. It is whether the instructions given, considered as a whole and read as a series, were sufficiently clear so as not to mislead the jury and whether they fairly and correctly stated principles of law which pertain to the case. See Eaves v. Hyster Co., 244 Ill. App. 3d 260, 262 (1993).
If the defendants in this case believed that the wording in the instruction on damages was incorrect, incomplete, or otherwise inadequate, it was their duty to object to that instruction and to offer their own remedial versions. Deal v. Byford, 127 Ill. 2d 192, 203 (1989). They did not do so. In the trial court, defendants’ objection was that the issue of increased risk of future injuries should not be presented to the jury at all. Defendants did not take issue with the way that issue was set forth in the instruction tendered by plaintiff, and defense counsel declined an express invitation by the trial judge to propose alternative language. Under these circumstances, any claim of error with respect to the wording of the instruction has been waived. See Diaz v. Chicago Transit Authority, 174 Ill. App. 3d 396, 401-02 (1988).
In all other respects, I am in complete accord with the majority’s disposition.