FILED July 28, 2014 NO. 4-13-1021 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

WARREN G. HAMILTON, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Coles County BLAKE C. HASTINGS, ) No. 11L76 Defendant-Appellee. ) ) Honorable ) Teresa K. Righter, ) Judge Presiding.

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 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.

-2- 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

-3- 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 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

-4- 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)

-5- "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.

¶ 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

-6- 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,

,

(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.,

,

(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,

,

.

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.

at 453 n.1,

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.)

,

. 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

-7- jury because the court feels a different result is more reasonable.

,

.

¶ 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.,

,

(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,

,

(quoting

Mizowek v. De Franco,

,

(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 quotation marks omitted.) Id. at 454,

. The application of this

standard is addressed to the sound discretion of the trial court.

,

. "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."

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.

,

. 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.

,

.

¶ 27 C. Procedural Posture of This Case

-8- ¶ 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, for

example, the entry of a judgment, the granting of a new trial or other appropriate relief."

The

relief requested in the motion may be in the alternative or conditioned on the trial court denying

other requested relief.

¶ 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,

,

(the appellate court effectively grants a judgment n.o.v. when it remands a

-9- 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 evidentiary standard courts apply to each. Maple,

,

. "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.' "

(quoting Pedrick,

,

). 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,

. 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.

- 10 - ¶ 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

- 11 - ¶ 38 For the reasons stated, we affirm the trial court's judgment.

¶ 39 Affirmed.

- 12 -