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Rule 23 order filed NO. 5-08-0185

January 22, 2010;

Motion to publish granted IN THE

February 17, 2010, corrected

March 4, 2010. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

________________________________________________________________________

RICHARD D. FORD, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Madison County.

)

v. ) No. 04-L-329

)

TERRY GRIZZLE, ) Honorable

) A. A. Matoesian,

Defendant-Appellee. ) Judge, presiding.

________________________________________________________________________

JUSTICE WELCH delivered the opinion of the court:

The plaintiff, Richard D. Ford, appeals from an order of the circuit court of Madison

County entering a judgment for the defendant, Terry Grizzle, pursuant to a jury verdict. On

appeal, the plaintiff raises numerous issues, which we restate as follows: (1) whether the trial

court erred in denying the plaintiff's motion in limine concerning prior accidents and injuries,

(2) whether the trial court erred in denying the plaintiff's motion in limine concerning the

amount of damage to the plaintiff's vehicle, photographs of the plaintiff's vehicle, and any

argument regarding minimal impact, (3) whether the trial court erred in allowing statements

regarding settlement to be heard by the jury, and (4) whether the trial court erred in denying

the plaintiff's motion for a new trial, directed verdict, or judgment notwithstanding the

verdict (n.o.v.). For the following reasons, we affirm the judgment entered by the circuit

court. 

On April 12, 2004, the plaintiff filed a complaint in the circuit court of Madison

County, alleging that the defendant was negligent when he rear-ended the plaintiff, thereby

causing injury to the plaintiff's neck. The defendant admitted that he was negligent in the
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operation of his motor vehicle, but he denied that the plaintiff was injured to the extent

claimed. Beginning on October 9, 2007, a three-day jury trial ensued, in which the following

evidence was adduced. 

On July 12, 2002, at approximately 4:15 p.m., the plaintiff's vehicle, while stopped

northbound on Main Street in Edwardsville, Illinois, was struck from behind by the

defendant's vehicle. The plaintiff's vehicle was a truck with a hitch on the back. The

plaintiff testified that he was stopped for traffic and noticed that the defendant's vehicle

behind him was not stopping. As a result, the plaintiff let up on his brakes and ducked down

in anticipation of the impact. The plaintiff estimated that the defendant was traveling

between 20 and 25 miles per hour at the time of the collision. The plaintiff testified that his

vehicle only moved forward about a foot as a result of the impact.

The defendant testified that at the time of the accident, he was traveling northbound

on Main Street behind the plaintiff. The defendant was distracted while driving and was not

looking at the road, and when the defendant finally looked up, he saw the plaintiff's vehicle

stopped in front of him. The defendant stated that he did not have time to apply his brakes

once he looked up and saw the plaintiff's vehicle. The defendant estimated that he was

traveling between 15 and 20 miles per hour at the time of the collision. 

Immediately after the accident, both the plaintiff and the defendant looked over the

vehicles for damage. The damage to the defendant's vehicle was located on the front grill,

headlights, bumper, radiator, and fan blade. The defendant testified that his vehicle had some

minor preexisting damage before the accident. The plaintiff's vehicle showed no visible

signs of damage from the accident. The plaintiff testified that he had the wind knocked out

of him and that he felt sore after the collision. However, the defendant testified that the

plaintiff did not complain to him at the scene of the accident about any physical pain the

plaintiff might have been experiencing. The plaintiff did not go to an emergency room as
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a result of the accident. 

The plaintiff testified that he had visited his chiropractor, Dr. Brian Walsh, earlier on

the day of the accident. The plaintiff had been seeing Dr. Walsh and other medical

professionals for treatment for injuries resulting from two earlier motor vehicle accidents,

one occurring in December 2000 and another occurring on June 8, 2002, just more than one

month before the July 2002 accident at issue on appeal. 

In the December 2000 accident, the most significant of the three collisions, the vehicle

the plaintiff was traveling in was "t-boned" by another vehicle traveling approximately 35

miles per hour. The plaintiff's vehicle was pushed 35 to 40 feet as a result. The plaintiff

stated that he had constant, sharp, stabbing pain from the accident, including pain radiating

down both arms and his back, significant neck pain, and pain in his ranges of motion. The

plaintiff's pain affected his sleep habits and daily activities. After the accident, the plaintiff

was treated by a doctor, visited a neurosurgeon, went to a pain management clinic, received

injections and a nerve-block shot in his neck, and participated in physical therapy. In January

2001, the plaintiff had an MRI scan that showed degenerative disc disease with a herniated

disc in his neck at the C5-C6 level. Approximately seven months following the December

2000 accident, the plaintiff was still experiencing pain from the accident. Therefore, in July

2001, the plaintiff visited Dr. Walsh for treatment, complaining of a bulging disc in his neck

at the C5-C6 level. 

The plaintiff's treatment with Dr. Walsh for the December 2000 accident lasted

through November 2001, when the plaintiff moved to Florida to look for work. The plaintiff

testified that at that point he still had neck pain. Dr. Walsh testified that the plaintiff's

condition had improved, but he anticipated that the plaintiff would continue to have chronic

discomfort in his neck in the future. Upon returning to Illinois from Florida in early 2002,

the plaintiff was still experiencing back and neck discomfort, so he resumed his treatment
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with Dr. Walsh. The plaintiff was treated by Dr. Walsh approximately 10 times each month

in April, May, and June of 2002, and he was still receiving treatment when he was involved

in the second motor vehicle accident on June 8, 2002. 

Although the June 2002 accident was less severe than the December 2000 accident,

the plaintiff testified that he reinjured his neck in the June 2002 accident. In the June 2002

accident, the plaintiff's vehicle was rear-ended from behind by another vehicle traveling at

approximately 25 miles per hour. The plaintiff braced for the accident and hit his head on

the headrest. As a result of the accident, the plaintiff complained of neck and back pain, pain

radiating down his arms and midback, headaches, and pain in his eyes. X rays performed by

Dr. Walsh indicated that the June 2002 accident had aggravated the plaintiff's injury in his

neck at the C5-C6 level. Dr. Walsh testified that this accident aggravated the plaintiff's

injuries caused by the December 2000 accident and that this injury could cause the plaintiff

pain in the future. The plaintiff was still receiving treatment from Dr. Walsh for these

injuries when the accident at issue occurred on July 12, 2002. Dr. Walsh testified that the

plaintiff had visited him on the morning before the accident on July 12, 2002, and that the

plaintiff had started rehabilitation and was feeling minimal pain on the day of the July 2002

accident. 

After the accident on July 12, 2002, the plaintiff again visited Dr. Walsh for a second

time that day. The plaintiff complained of neck and back pain, headaches, and pain radiating

down his left arm. Dr. Walsh testified at the trial that he believed that the accident caused

an exacerbation of the plaintiff's prior condition. Dr. Walsh continued treating the plaintiff

after the July 2002 accident, along with referring him to a doctor for nerve-block shots. Dr.

Walsh testified that at some point prior to August 2003, the plaintiff's neck was back to the

condition it was in before the July 2002 accident.

Dr. Walsh saw the plaintiff multiple times monthly until August 2003, when the
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plaintiff again moved to Florida to find work and attend school. Upon moving to Florida,

the plaintiff began treatment with another chiropractor, Dr. David Spargo, in May 2003 until

September 2004. The plaintiff informed Dr. Spargo that his symptoms appeared after he was

involved in an automobile accident in July 2002. The plaintiff did not initially tell Dr.

Spargo of the two earlier accidents he had been involved in. Dr. Spargo treated the plaintiff

for pain in his neck, shoulders, ribs, arms, hands, and back. The plaintiff also complained

of pain when lifting heavy objects. Dr. Spargo diagnosed the plaintiff with neck and upper

back strain, along with a herniated disc at the C5-C6 level, and advised the plaintiff to refrain

from lifting heavy objects. In July 2003, the plaintiff had an MRI scan, which confirmed the

disc herniation and muscle strain. In September 2003, Dr. Spargo referred the plaintiff to a

neurologist, who diagnosed the plaintiff with a herniated disc at the C5-C6 level with nerve

irritation.

At the trial, when asked to compare the plaintiff's MRI in 2001 with the plaintiff's

MRI in 2003, Dr. Spargo stated that they were similar but that the herniation in 2001

appeared minimal compared with the herniation depicted in 2003. Dr. Spargo testified that

if the plaintiff had a chronic condition prior to the July 2002 accident, the subsequent

accident could have aggravated the preexisting injury. Further, although Dr. Spargo testified

that the plaintiff's injuries were causally related to the July 2002 accident, he also opined that

the plaintiff's two earlier accidents could have been significant to the plaintiff's injury if the

plaintiff had not fully recovered from the injuries caused by those prior accidents before the

July 2002 accident. Dr. Spargo was unable to determine what percentage of his treatment

with the plaintiff was for the July 2002 accident versus the accidents in December 2000 and

June 2002. 

The plaintiff testified that although he did not initially inform Dr. Spargo of the earlier

accidents, his treatment with Dr. Spargo was related to all three accidents, not just the July
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2002 accident. Further, the plaintiff testified that parts of the medical bills from Dr. Spargo

and Dr. Walsh that he submitted to the jury were not solely related to the July 2002 accident

but were also related to the two earlier accidents. 

In October 2003, the plaintiff visited Dr. John Jenkins, a neurosurgeon. The plaintiff

complained of pain in his neck and left arm and hand, along with headaches. Dr. Jenkins

diagnosed the plaintiff with a disc herniation at the C5-C6 level with radiculopathy. Dr.

Jenkins testified that since other conservative measures had failed to provide the plaintiff

relief in the past, the plaintiff was a surgical candidate. 

At the trial, Dr. Jenkins opined that the need for surgery was causally linked to the

July 2002 accident, but he also testified that during his treatment of the plaintiff, he was not

aware that the plaintiff had been involved in the two earlier accidents or had prior chronic

pain. Dr. Jenkins testified that if the plaintiff was experiencing pain from earlier motor

vehicle accidents prior to the July 2002 accident, the July 2002 accident would only be an

aggravation of the underlying condition and the plaintiff might have been a surgical

candidate even before the July 2002 accident. Dr. Jenkins explained that if there were no

changes in the MRI scans before and after the July 2002 accident, he would expect the

exacerbation to only be temporary. Further, after reviewing MRI scans of the plaintiff taken

in both 2001 and 2004, Dr. Jenkins testified that the reports were essentially the same.

Finally, Dr. Jenkins also testified that the damage to the vehicles involved in the July 2002

accident would be relevant in evaluating the plaintiff's injuries, because a person would be

more likely to suffer a disc herniation from a high-speed accident than a low-speed accident.

The plaintiff had cervical fusion surgery in Florida in July 2004 to relieve the

problems in his neck. After the surgery, the plaintiff's pain rapidly declined. The plaintiff

testified that he no longer has pain in his arms but that he still has minimal pain in his neck

and back. Both Dr. Jenkins and Dr. Spargo testified that the plaintiff's prognosis after the
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surgery was very good, with only limited work restrictions, but that the plaintiff could

experience some minor problems or exacerbations in the future. 

The plaintiff returned to Illinois and resumed treatment with Dr. Walsh in September

2004 for therapy and adjustments to his middle back. Dr. Walsh testified that he released the

plaintiff from treatment for the July 2002 accident in January 2005 and has only seen the

plaintiff periodically since then. Further, Dr. Walsh stated that the plaintiff should not return

to heavy labor jobs and will likely need to continue chiropractic treatment for the remainder

of his life. However, in his treatment of the plaintiff, Dr. Walsh never put any work or

physical constrictions on the plaintiff. 

In May 2006, the plaintiff was evaluated by the defendant's expert, Dr. Karen Pentella,

a board-certified neurologist and pain medicine specialist. In her evaluation, Dr. Pentella

reviewed the plaintiff's medical records, conducted an independent medical examination of

the plaintiff, and reviewed photographs of the vehicles after the collision. Dr. Pentella

testified that photographs of the vehicles were relevant because the photo of the plaintiff's

vehicle showed no damage and that the general rule in automobile collisions is that the

severity of the impact corresponds to the impact on the vehicle's occupants. Dr. Pentella also

reviewed the MRI films from both 2001 and 2003 and testified that she did not see any

significant difference between them. 

Dr. Pentella stated that the plaintiff's medical records clearly showed that he had

chronic neck problems years before the July 2002 accident. Dr. Pentella opined that based

upon the abnormality and symptoms dating back to 2001, the July 2002 accident did not

cause the C5-C6 herniation for which the plaintiff had surgery. She did not believe that the

plaintiff was even a surgical candidate at the time of surgery because the disc was

asymptomatic and there was no evidence of nerve irritation. Further, based on her evaluation

of the MRIs, she did not believe that the July 2002 accident aggravated the plaintiff's
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preexisting condition or significantly increased his pain level. Finally, Dr. Pentella testified

that she did not believe that the plaintiff suffered any functional disability as a result of the

July 2002 accident. 

In August 2005, the plaintiff was evaluated by the plaintiff's expert, Dr. Robert

Margolis, a neurologist. After reviewing the plaintiff's medical records and conducting a

medical examination of the plaintiff, Dr. Margolis opined that the 2003 MRI revealed further

progression of the disc protrusion at the C5-C6 level, that the July 2002 accident was a direct

cause of the exacerbation of the plaintiff's injury, and that the need for surgery was a result

of the July 2002 accident. However, on cross-examination, Dr. Margolis acknowledged that

the plaintiff had a chronic condition in his neck in 2001. Dr. Margolis opined that if a patient

with that condition gets rear-ended and suffers whiplash, it could exacerbate the preexisting

herniated disc. Further, Dr. Margolis testified that after comparing the 2001 MRI with the

2003 MRI, the plaintiff's C5-C6 disc was in essentially the same condition. Also, Dr.

Margolis compared the 2001 MRI with one conducted on the plaintiff in 2004, and he found

no change in the plaintiff's condition, which could indicate that the July 2002 accident had

no effect on the plaintiff's neck. However, Dr. Margolis indicated that it is also important

to evaluate the plaintiff's symptoms, along with the MRI scans. 

The jury returned a verdict in favor of the defendant. On October 24, 2007, the

plaintiff filed a posttrial motion for a directed verdict or a judgment n.o.v. or, in the

alternative, a new trial. On April 4, 2008, the circuit court denied the plaintiff's posttrial

motion. The plaintiff now appeals. 

The plaintiff's first argument on appeal is that the trial court erred in denying the

plaintiff's motion in limine concerning the plaintiff's prior accidents and injuries.

Specifically, the plaintiff asserts that the defendant failed to introduce evidence showing a

causal connection between the prior accidents and injuries and the present case. The plaintiff
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also argues that the introduction of these prior accidents and injuries was highly prejudicial.

We review a trial court's denial of a motion in limine under an abuse-of-discretion

standard. Janky v. Perry, 343 Ill. App. 3d 230, 234 (2003). An appellate court may find an

abuse of discretion only where no reasonable person would take the view adopted by the trial

court. It is the function of the trial court to determine the admissibility and relevance of

evidence, and its ruling will not be disturbed absent an abuse of discretion. Jackson v. Seib,

372 Ill. App. 3d 1061, 1070 (2007). Evidence must be relevant to be admissible at a trial.

Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 57 (2000). Evidence is deemed relevant if it has

any tendency to make the existence of any fact that is of consequence to the determination

of the action more or less probable than it would be without the evidence. Fronabarger v.

Burns, 385 Ill. App. 3d 560, 564 (2008). 

A prior injury or preexisting condition may be relevant to the issue of a plaintiff's

damages in a personal injury action. Lagestee v. Days Inn Management Co., 303 Ill. App.

3d 935, 944 (1999). Evidence of prior injuries may be relevant to negate causation, to negate

or reduce damages, or for impeachment. Voykin, 192 Ill. 2d at 57. If a defendant wishes to

introduce evidence of a prior injury, the defendant must introduce expert evidence

demonstrating why the prior injury is relevant to causation, damages, or some other issue of

consequence, unless the trial court determines that a layperson can readily appraise the

relationship between those injuries. Voykin, 192 Ill. 2d at 59. 

Before evidence of prior injuries may be admitted at a trial, the defendant must first

present medical or other competent evidence to establish a causal connection between the

evidence offered and the complained-of injury. Lagestee, 303 Ill. App. 3d at 944, 946-47.

For a prior injury to be relevant to causation, the injury must make it less likely that the

defendant's actions caused any of the plaintiff's injuries or an identifiable portion thereof.

Voykin, 192 Ill. 2d at 58. Further, even if the prior injury does not negate causation, it could
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still be relevant to the issue of damages if it could establish that the plaintiff had a preexisting

condition for which the defendant is not liable, thus reducing damages. Voykin, 192 Ill. 2d

at 58. Finally, prior injuries can be relevant to impeachment in that a plaintiff may be

examined with respect to his failure to disclose to his physician that he had previously

suffered an injury to the same part of the body. Voykin, 192 Ill. 2d at 58. 

In this case, we cannot say that the trial court abused its discretion by admitting

evidence of the plaintiff's prior accidents and injuries. At the trial, Dr. Walsh, Dr. Spargo,

Dr. Jenkins, Dr. Pentella, and Dr. Margolis all testified to some degree that the prior injuries

were relevant to the current injuries and that the plaintiff had suffered from a preexisting

chronic pain-causing condition in his neck prior to the July 2002 accident. Further, the

plaintiff was still being treated for his earlier accidents on the day of the July 2002 accident.

The plaintiff testified that some of his treatment after the July 2002 accident was also related

to the two earlier accidents, that some of the medical bills which he submitted to the jury

were not solely related to the July 2002 accident, and that he had failed to inform some of his

doctors of earlier accidents when he sought treatment for the July 2002 accident. Thus, we

find that the trial court did not abuse its discretion in allowing evidence of the plaintiff's prior

accidents and injuries. 

The plaintiff's second argument on appeal is that the trial court erred in denying the

plaintiff's motion in limine concerning the amount of damage to the plaintiff's vehicle,

photographs of the plaintiff's vehicle, and any argument regarding minimal impact.

Specifically, the plaintiff argues that introducing the photos of the plaintiff's vehicle was

highly prejudicial and that no expert testified about the photos or the impact of the vehicle.

We review a trial court's denial of a motion in limine under an abuse-of-discretion

standard. Baraniak v. Kurby, 371 Ill. App. 3d 310, 317 (2007). Recently, this court has had

two opportunities to rule on the admissibility of automobile accident photographs in
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negligence cases, first in the case of Jackson v. Seib, 372 Ill. App. 3d 1061 (2007), and most

recently in Fronabarger v. Burns, 385 Ill. App. 3d 560 (2008). Initially, we recognize that

it is the function of the trial court to determine the admissibility and relevance of evidence,

and its ruling will not be disturbed absent an abuse of discretion. Jackson, 372 Ill. App. 3d

at 1070. An abuse of discretion occurs when no reasonable person would take the position

adopted by the trial court. Fronabarger, 385 Ill. App. 3d at 564. 

Evidence is deemed relevant if it has any tendency to make the existence of any fact

that is of consequence to the determination of the action more or less probable than it would

be without the evidence. Fronabarger, 385 Ill. App. 3d at 564. The plaintiff argues that

absent expert testimony on the correlation between vehicular damage and the plaintiff's

injuries, photographs of the parties' damaged vehicles are inadmissible at the trial; the

plaintiff cites Baraniak v. Kurby, 371 Ill. App. 3d 310 (2007), Ferro v. Griffiths, 361 Ill.

App. 3d 738 (2005), and DiCosola v. Bowman, 342 Ill. App. 3d 530 (2003). We have

declined to accept a rigid rule that photographs are always admissible or that expert

testimony is always necessary for those photographs to be admissible. Fronabarger, 385 Ill.

App. 3d at 564. The critical question in admitting those photographs into evidence is

whether the jury can properly relate the vehicular damage depicted in the photos to the injury

without the aid of an expert. Jackson, 372 Ill. App. 3d at 1070. This question is an

evidentiary question left to the discretion of the trial court. Fronabarger, 385 Ill. App. 3d

at 565.

In this case, we cannot say that the trial court abused its discretion by admitting the

photographs without expert testimony. Upon a review of the photographs and the record of

the proceedings, we find that a jury could assess the relationship between the damage to the

vehicles and the plaintiff's injuries without the aid of an expert. The photographs depicted

some damage to the defendant's vehicle and no damage to the plaintiff's vehicle. The
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photographs were introduced to show why minimal damage to the vehicles was relevant to

the nature and extent of the plaintiff's injuries, as stated by both Dr. Pentella and Dr. Jenkins

at the trial. The trial court could have properly found that the photographs were relevant to

prove that the plaintiff's injury was more or less probable. Therefore, the trial court did not

abuse its discretion. 

Further, the plaintiff asserts that Dr. Pentella's testimony regarding minimal impact

should have been excluded as highly prejudicial. The plaintiff argues that Dr. Pentella gave

contradicting testimony and that she did not analyze the impact on the defendant's vehicle as

a result of the collision. The plaintiff argues that, therefore, the defendant did not lay a

proper foundation to admit Dr. Pentella's testimony. 

The decision whether to admit expert testimony is within the sound discretion of the

trial court, and a ruling will not be reversed absent an abuse of discretion. Fronabarger, 385

Ill. App. 3d at 565-66. An expert's opinion is admissible if the expert is qualified by

knowledge, skill, experience, training, or education in a reliable field and if the testimony

would aid the jury in understanding the evidence. Fronabarger, 385 Ill. App. 3d at 565. The

admission of expert testimony requires the proponent to lay an adequate foundation

establishing that the information on which the expert bases her opinion is reliable.

Fronabarger, 385 Ill. App. 3d at 565. Once a proper foundation has been laid, the expert's

testimony is admissible, but the weight to be assigned to that testimony is for the jury to

decide. Fronabarger, 385 Ill. App. 3d at 565. 

Just as in Fronabarger, we find that the defendant laid a proper foundation for Dr.

Pentella's expert testimony. Dr. Pentella testified regarding her qualifications at the trial,

including her education, observations, and experiences as a physician. See Fronabarger, 385

Ill. App. 3d at 566. Dr. Pentella based her opinions regarding the plaintiff's injuries on her

physical examination of the plaintiff, her review of the plaintiff's medical records, and the
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lack of damage to the plaintiff's vehicle, as depicted in the photographs. Therefore, we find

that the trial court did not abuse its discretion in allowing Dr. Pentella's testimony. 

The plaintiff's next argument on appeal is that the trial court erred in allowing

statements regarding settlement to be heard by the jury. Specifically, the plaintiff points to

the defendant's closing argument where the defendant stated that when the lawsuit was filed,

the plaintiff requested compensation for all the medical bills from all three accidents,

whereas during the trial, the plaintiff asked the jury to only reimburse for those bills related

to the July 2002 accident. The plaintiff objected to those statements, which the trial court

overruled. The plaintiff contends that those statements implied settlement talks and should

not have been admitted to the jury. Alternatively, the plaintiff argues that the statements

implied that the defendant would have to personally pay any judgment rendered for the

plaintiff. The defendant asserts that the statements were made in response to the plaintiff's

suggestion that his medical bills submitted to the jury should be reduced and that the

plaintiff's interpretation of these statements is a mischaracterization of the evidence. We

agree.

The prejudicial impact of remarks made in opening statements or closing arguments

is a matter left within the discretion of the trial court, and the court's ruling will not be

overturned on review absent an abuse of discretion. Morgan v. Richardson, 343 Ill. App. 3d

733, 740 (2003). In Illinois, statements regarding settlement negotiations or offers to settle

are generally not admissible. Morgan, 343 Ill. App. 3d at 740. However, in this case, the

defendant's statements during closing argument cannot be construed to imply prior settlement

offers or negotiations, nor did the defendant make any statements implying that the defendant

would have to personally pay any judgment entered for the plaintiff. Instead, those

statements were utilized by the defendant for impeachment purposes. 

Further, even if the defendant's statements could have been construed by the jury as
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implying settlement discussions or that the defendant would personally have to pay, if the

error did not affect the outcome at the trial or if the appellate court can see from the entire

record that no injury has occurred as a result of the remarks, the appellate court will not

disturb the judgment on review. Morgan, 343 Ill. App. 3d at 740. Thus, we cannot find that

the trial court abused its discretion in allowing the defendant's statements during closing

argument. 

The plaintiff's final arguments on appeal can be combined into one argument that the

circuit court erred in denying the plaintiff's requests for a directed verdict, a judgment n.o.v.,

or a new trial. Established standards are used in determining whether a directed verdict, a

judgment n.o.v., or a new trial should be granted. Maple v. Gustafson, 151 Ill. 2d 445, 453

(1992). In considering such motions, the trial court cannot reweigh the evidence and set

aside a verdict just because the jury could have drawn different inferences or conclusions or

because the court feels that other results are more reasonable. Maple, 151 Ill. 2d at 452.

Likewise, we cannot unsurp the function of the jury and substitute our own judgment for that

of the jury. Maple, 151 Ill. 2d at 452-53. 

We review de novo a trial court's denial of a motion for a directed verdict or a

judgment n.o.v. Jackson, 372 Ill. App. 3d at 1068. A directed verdict or a judgment n.o.v.

is properly entered where all the evidence, when viewed in the light most favorable to the

nonmoving party, so overwhelmingly favors the moving party that no contrary verdict based

on that evidence could ever stand. Maple, 151 Ill. 2d at 453. In ruling on a motion for a

directed verdict or a judgment n.o.v., the court does not weigh the evidence, nor is it

concerned with the credibility of the witnesses. Maple, 151 Ill. 2d at 453. Instead, the court

may only consider the evidence, and any rational inferences therefrom, in the light most

favorable to the nonmoving party. Maple, 151 Ill. 2d at 453. 

Further, a judgment n.o.v. may not be granted merely because a verdict is against the
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manifest weight of the evidence. Maple, 151 Ill. 2d at 453. A trial court has no right to enter

a judgment n.o.v. if there is any evidence demonstrating a substantial factual dispute or where

the assessment of the witnesses' credibility or the determination regarding conflicting

evidence is decisive to the outcome at the trial. Maple, 151 Ill. 2d at 454. 

Alternatively, on a motion for a new trial, a court will weigh the evidence and 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. A verdict is against the manifest weight of the evidence

where the opposite result is clearly evident or where the jury's findings are unreasonable,

arbitrary, and not based on the evidence. Maple, 151 Ill. 2d at 454. We will not reverse a

trial court's ruling on a motion for a new trial unless it is affirmatively shown that the court

clearly abused its discretion, because the trial judge had the benefit of observing the

witnesses firsthand at the trial. Maple, 151 Ill. 2d at 455. In determining whether the trial

court abused its discretion, we must consider whether the jury's verdict was supported by the

evidence and whether the losing party was denied a fair trial. Maple, 151 Ill. 2d at 455. 

After carefully reviewing the evidence adduced at the trial, as set forth above, we

cannot find that the jury's findings were unreasonable, arbitrary, and not based upon the

evidence. The jury in this case heard conflicting testimony regarding what, if any, injuries

the plaintiff sustained as a result of the accident in question. The credibility issues at the trial

were especially significant in light of the subjective nature of the plaintiff's complaints, the

photographic evidence showing minor damage to the plaintiff's vehicle, and Dr. Pentella's

findings. See Jackson, 372 Ill. App. 3d at 1069. Since the witnesses' testimony in this case

conflicted, the question of whom to believe and what weight to give to all the evidence was

a decision for the trier of fact, whose determinations should not be upset on review unless

manifestly erroneous. See Jackson, 372 Ill. App. 3d at 1069. It is the province of the jury

to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to
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decide the weight to be given to the witnesses' testimony. Maple, 151 Ill. 2d at 452. For

these reasons, we cannot conclude that the trial court erred in denying the plaintiff's requests

for a directed verdict, a judgment n.o.v., or a new trial. 

For the foregoing reasons, the judgment of the circuit court of Madison County is

hereby affirmed.

Affirmed.

SPOMER, J., concurs.

JUSTICE CHAPMAN, dissenting: 

I believe that the jury verdict was against the manifest weight of the evidence and that

therefore a motion for a new trial should have been granted. See Maple v. Gustafson, 151

Ill. 2d 445, 454 (1992). In this admitted negligence case, a verdict for the plaintiff was clear

from the testimony and the medical evidence presented at the trial. From the evidence, I

believe that the jury should have concluded that the defendant's negligence, at the very least,

proximately caused an aggravation of a preexisting injury. The amount of the verdict was

much less evident. Determining the nature and extent of the plaintiff's injuries that were

causally related to the accident of July 12, 2002, and not to his two prior automobile

accidents, was no easy task. Despite the difficulty of the task before it, the jury had a duty

to resolve the issue of proximate cause fairly, applying the facts to the law, and not throw up

its hands and award zero damages. For those reasons, I would reverse and remand for a new

trial.
 NO. 5-08-0185

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________________

RICHARD D. FORD, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Madison County.

)

v. ) No. 04-L-329

)

TERRY GRIZZLE, ) Honorable

) A. A. Matoesian,

Defendant-Appellee. ) Judge, presiding.

___________________________________________________________________________________

Rule 23 Order Filed: January 22, 2010

Motion to Publish Granted: February 17, 2010

Opinion Filed: February 17, 2010

___________________________________________________________________________________

Justices: Honorable Thomas M. Welch, J.

Honorable Stephen L. Spomer, J.,

Concurs

Honorable Melissa A. Chapman, J.,

Dissents

___________________________________________________________________________________

Attorneys Lance R. Mallon, Dawna M. Hale, Mallon Law Firm, Ltd., 515 Madison Avenue,

for Wood River, IL 62095

Appellant

___________________________________________________________________________________

Attorney Michael J. Bedesky, Reed, Armstrong, Gorman, Mudge & Morrissey, P.C., 115 N.

for Buchanan, P.O. Box 368, Edwardsville, IL 62025

Appellee

___________________________________________________________________________________