author: PRESIDING JUSTICE McCULLOUGH

text:
    THE CITY OF SPRINGFIELD, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ronald Mose, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—90—0483WC
    Opinion filed May 7, 1991.
    Rehearing denied July 10, 1991.
    James K. Zerkle and Peggy J. Witt, both of Office of Corporation Counsel, of Springfield, for appellant.
    Gregory A. Scott, of Scott & Scott, P.C., of Springfield, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant suffers from a stress-related mental disease. The arbitrator and Industrial Commission (Commission) awarded temporary total disability benefits. The City of Springfield appeals, contending claimant failed to establish he suffered from a compensable occupational disease.

Claimant was employed by the Springfield fire department for 17 years. For the last 5V2 years of that employment, he was a fire inspector with the rank of captain. Prior to becoming an inspector, he was an engine company captain. Claimant’s duties as a fire inspector involved reviewing plans for fire protection and safety in new and remodeled buildings, responding to complaints of fire hazards in various facilities, and inspecting premises for violations of the fire code. Claimant testified that for the last four years of his employment, he experienced stress-related problems while on the job and sought help from Dr. Sutherland, a psychiatrist. Claimant experienced symptoms of disorientation and a panicky feeling as if he were falling out of a building. When these panic attacks occurred, claimant would have to catch his breath because he felt as if there were a rope around his neck and he could not breathe.

Claimant testified to difficulties in four general areas associated •with his employment: workload, politics, interpretation of rules, and discrimination by supervisors.

WORKLOAD

In December 1987, another safety department inspector was transferred out of the unit. Claimant stated that he was required to assume the duties of the former employee in addition to his own. Claimant’s normal territory involved Springfield’s largest shopping center, White Oaks Mall; a smaller commercial development close to the mall, White Oaks Plaza; and a large area on the west and south side of the city into which numerous housing and building developments were being added. In addition, claimant coordinated two public service programs within the department and, on occasion, would be required to respond to complaints or emergencies anywhere within the city limits.

The duties added to claimant’s workload after the other inspector’s departure included all State-occupied buildings which were privately owned and all Illinois Bell telephone, AT&T, and Western Electric facilities in the city.

Because of the increased workload, claimant was unable to keep up with his paperwork and stated his increased anxiety made it hard for him to function. He testified that Chief Koke, an assistant fire marshal and one of claimant’s immediate supervisors, would assign him additional properties not in his original district because, in Koke’s words, the other inspectors in the department were incompetent and only claimant could handle the projects. Claimant stated he was also told by his other supervisor, Chief Beagles, that White Oaks Mall and White Oaks Plaza were of sufficient size that they, alone, would be a full-time job for a single inspector.

Claimant testified that although new inspectors were brought into the department from time to time, claimant’s workload was not decreased and, although he asked for relief, Chief Koke told him to take vacation or sick time. Claimant also stated that Chief Beagles told him, when claimant announced he was quitting his job, that Beagles was sorry to see claimant leave and realized the workload was stressful.

POLITICS

In 1987, an election was held for the director of the city Office of Public Safety, which oversaw the fire department. Although claimant was not active in politics, he supported the incumbent’s rival. According to claimant, during the campaign, the director’s campaign manager, who was not an employee of the department, approached claimant and told him to stop supporting the director’s opponent because the director would be reelected, heads would fly, and claimant did not want his to be one of them.

Claimant testified that Chief Knox, head of the training division of the department, made a strong, personally derogatory “political and religious” comment to claimant. After this incident, claimant went to his doctor because he felt extremely stressed and had chest pains. Although Knox was subsequently verbally reprimanded for the comment, claimant also received a reprimand because he attempted to file a grievance with the city civil service commission, which did not have jurisdiction over Knox. This caused claimant additional stress.

APPLICATION OF BUILDING AND FIRE CODES

Claimant testified that throughout the period he was an inspector, there was confusion over whether the codes were being applied equally to all people. On one occasion, upon his return from vacation, claimant discovered that a newly constructed State-occupied but privately owned building had received a full occupancy permit despite a number of fire code violations. Claimant testified that Chief Koke told him that the chief had signed off on the building because its owner was losing interest because of the continued vacancy of the building. The owner was a politically active member of the Springfield community.

Claimant stated that the building code for the city was also not uniformly enforced and there was confusion between the building department and the fire department over which codes applied. On one occasion, while claimant was at a Presbyterian home conducting an inspection, the director of building supervisors for the city confronted claimant and, in the presence of several other individuals, verbally abused claimant and the fire department about its application of the fire code rules to various structures.

TRAINING

Claimant testified he repeatedly asked for permission to attend classes and receive schooling in various aspects of fire safety. These requests were always denied. Schools were conducted at a site in Maryland and would last from two to three weeks. Claimant stated that Chief Knox, the director of the training division, saw to it that claimant was not permitted to attend this academy. Other inspectors in the department, including some with less experience than claimant, had been permitted to attend various schools on several occasions. Claimant also stated that he requested to be transferred to the training division or public relations but that the request was denied. Claimant also stated he was told that transfers were granted only to people who had “schooling.”

ANALYSIS

On cross-examination, claimant admitted he was aware of the process for .filing a grievance over Chief Knox’s comments and that he purposely refused to follow this course because he did not believe that grieving under the union contract would end this type of harassment. Claimant also acknowledged that the building commissioner’s comments to him at the Presbyterian home were directed against the entire fire department in general as much as they were against claimant personally. The fire safety division of the department and the building department never got along because of inconsistencies between the two city codes which could not be reconciled. Claimant admitted he was not the only inspector who was involved in disputes over the application or interpretation of these codes. Claimant also believed that too many favors were granted to politically active individuals. Finally, claimant acknowledged that Chief Koke would make derogatory comments about all employees in the department and that claimant was not singled out for this type of criticism.

Thomas Oseland, chief of the fire department, testified for respondent. The department is divided into three divisions: operations (fire fighters), safety (claimant’s department), and training and education. Oseland testified that individual assignments to employees within any particular division could vary from day to day and cover a wide range of tasks with changes occurring on short notice. Claimant, according to Oseland, had not been assigned any duties that were not assigned to all captains within the safety division. Oseland was also not aware of any request for a job change which claimant might have made. Claimant had been transferred to the safety department on his own request because claimant wanted a change from the on 24-hours off 48-hours on routine set for fire fighters.

Regarding the comment Knox made to claimant, Oseland stated that personal problems were something that were part of the job and if the employees could not work them out there was a formal grievance policy under the collective-bargaining contract for reviewing problems. As to politics, Oseland stated that during the previous election, not everyone in the department supported the incumbent. A number of employees openly supported the director’s opponent and some were neutral. None of the employees who supported the challenger, however, were treated any differently after the election in which the incumbent was reelected. The director’s campaign manager was not even a city employee.

Concerning schooling for inspectors, Oseland testified the ability to take a course depended on the type of school requested by the fireman, whether the department had the money to pay for the classes, and whether the Maryland facility had space to accommodate the request. Although Chief Knox would make a recommendation as to whether a particular fire fighter should be allowed to attend a particular school, Oseland had the final say over any request for schooling. Oseland, however, had never disagreed with Knox’s recommendations. When a fire fighter was turned down for schooling, a reason for the rejection was set forth in writing and transmitted to the fire fighter. Oseland testified that claimant never discussed job stress with him and, to Oseland’s knowledge, claimant had never been treated any differently than any other employee. Claimant was not exposed to any stress or tension that others in the department had not been exposed to.

On cross-examination, Oseland admitted he became chief of the department only shortly before claimant left the job and prior to that he had been chief of operations and had no contact with or supervision over claimant.

Oseland also stated it was not unusual for a fire fighter to be turned down for schooling again and again if the particular class or finances were not available. It would be unusual, however, if people with less seniority would receive additional training or schooling while someone with greater seniority would never be permitted to attend.

Oseland acknowledged that he and Chief Knox both supported the incumbent in the prior election and Knox’s comment to claimant was in “bad taste.” There were, in all probability, other verbal exchanges which were just as bad which occurred between employees within the department. Serving in the fire department was stressful to all employees, and one of Oseland’s roles as chief was to implement programs on how to handle stress. Oseland concluded that working in the fire safety division was not more stressful than working as a fire fighter risking one’s life.

Howard Beagles, one of claimant’s two immediate supervisors, testified that he worked for the department for 29 years. He assigned duties to the various inspectors, and each inspector had his own specific territory but might be called upon to take on additional assignments. Changes in the daily schedule would routinely be made on short notice because of emergencies or receipt of a complaint from someone who perceived a serious fire hazard in a particular building which needed immediate attention. These sorts of problems affected all employees within the division.

Beagles contradicted claimant by testifying that claimant did not receive all of the duties assigned to the inspector who had left the division in December 1987. Although some work was assigned to claimant, other work was parceled out to the other inspectors. Beagles testified that he suggested removing White Oaks Mall from claimant’s duties because of the increased workload but that claimant rejected this offer because he preferred to keep the mall under his control.

Beagles also stated that the decision on who would be allowed to attend schools was made up the chain of command and all employees had been turned down on occasion and many had requests rejected a number of times. Beagles agreed there was significant disagreement between the fire safety division and the city building department over how their respective codes were to be administered. Beagles testified claimant was treated no differently from any other inspector and suffered no different strain or tension than that to which every other employee was subjected.

On cross-examination, Beagles could not remember how many times claimant had been turned down for schooling but did remember that claimant was accepted to one school. Claimant, after having been accepted, declined to attend telling Beagles he did not want to be away from his family for an extended length of time. Beagles admitted that the work of the fire safety division was described by many as “crisis management” and that overseeing White Oaks Mall could be a full-time job if the department had the luxury of personnel to staff such an arrangement.

Although claimant told Beagles about the aggravation and stress he was feeling and the anxieties and difficulties the workload was causing him, Beagles stated he told claimant that if claimant had too many things to do, Beagles would assign another inspector to try to work with claimant on particular projects. The policy of reassignment, if one was overloaded, applied to everyone in the department and there was more work for the department than the limited number of employees could reasonably handle.

On the medical evidence presented, and the parties agree, claimant was suffering from both generalized anxiety and what was described as a classic panic disorder which was intermittently intense. The arbitrator awarded 18% weeks of temporary total disability. The Commission affirmed that decision and the circuit court confirmed the Commission’s order.

In Chicago Board of Education v. Industrial Comm'n (1988), 169 Ill. App. 3d 459, 523 N.E.2d 912, this court was asked to consider whether on-the-job mental stress which results in emotional illness in the absence of physical trauma and sudden disablement traced to a definite time, place, or cause is compensable under the Workers’ Occupational Diseases Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 172.36 et seq.). In concluding that certain emotional illnesses may be compensable under the Act, the court nevertheless observed that on-the-job stress, of itself, is not a disease and that events and conditions capable of producing stress exist in every employment environment. The court cautioned that there was a tenuous link in establishing a causal connection between a claimant’s mental disability and the gradual mental stimuli which allegedly produced the disease in a situation where a person suffers a gradually developing mental disability which, in retrospect, is attributed to factors such as worry, anxiety, tension, pressure, and overwork without proof of a specific time, place, and event producing the disability.

Concern that the allowance of compensation for any mental disease or disorder caused by on-the-job stressful events might open a floodgate for workers who succumb to the everyday pressures of life, this court set guidelines for determining under what circumstances the Act permitted compensation for nontraumatically induced mental disorders.

Specifically, the court stated that if the nontraumatically induced mental disorders, due to a gradual deterioration of mental processes, are compensable a causal connection betwéen the employment and the disability must be established by showing that the employment exposed the employee to an identifiable condition of the employment that was not common and necessary to all or to a great many occupations. Stated in different terms, we concluded that mental disorders not resulting from trauma must arise in a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience.

This court also found that not only must the conditions producing the disability be extraordinary, they must, from an objective standpoint, exist in reality, and it is not sufficient that the employee believes, although mistakenly, that the conditions exist. Finally, the court stated that the employee must prove that the employment conditions, when compared with the nonemployment conditions, were the “major contributory cause” of the mental disorder. Chicago Board of Education, 169 Ill. App. 3d at 466-68, 523 N.E.2d at 916-18.

In applying this test to the facts in this case, respondent contends claimant failed to show he was exposed to “a situation of greater dimensions than the day to day emotional strain and tension which all employees must experience” as required by our holding in Chicago Board of Education. We agree.

Claimant stated that his workload was excessive but admitted that everyone else’s workload was heavy. There is no dispute that the amount of work to be accomplished by the department as a whole was greater than the staff could reasonably accommodate especially when, because of the nature of the job, emergencies or citizen complaints arose on an ad hoc basis.

Claimant further testified that he felt political pressure because he supported the incumbent director’s opponent in the election. Yet there was testimony that others in the department also did not support the incumbent and no retribution was meted out to any employee, including claimant, following the election in which the incumbent was victorious.

Claimant testified he was unhappy over political favors which were allegedly being granted to politically active property owners as well as disputes between the city building division and the fire department .over the administration of overlapping and sometimes inconsistent fire and building codes. These sorts of frustrations and conflicts, while real, are nothing more than the generalized sorts of problems which all employees encounter in applying government rules and partisan political considerations are nothing new to the domain of public employment.

Likewise, scurrilous remarks apparently made by one supervisor toward claimant were characterized by others as not uncommon in the workplace and, although in bad taste, were not considered “serious.” Moreover, the particular remark which was directed at claimant was an isolated remark. In addition, claimant testified one of his supervisors made derogatory remarks about employees all the time which were not directed solely at him. In fact, when certain of these comments were made, claimant was being told that he was being given extra work because he was the only one in the department qualified to handle the job because all of the other inspectors, but not claimant, were incompetent. It was not claimant’s aptitude which was being criticized.

Finally, claimant testified he was never permitted to receive additional schooling although he conceded that others in the department were turned down regularly. We need not consider the conflict in the testimony on this point but note only that while this may have been a disappointment to claimant (as it probably was to others on the occasions when their requests for training were refused), there is no testimony that because of this lack of additional schooling claimant was unable to safely perform his tasks or that others’ lives or property were put at risk.

A heavy workload, personal disputes between employees and supervisors, unfulfilled expectations, and political activity within the domain of public employment are endemic to claimant’s occupation. Much like the fact of unruly students, an unresponsive administration, and the burdens of paperwork and record keeping faced by a teacher in Chicago Board of Education, the events to which claimant testified in this case are not out of the ordinary or of greater dimension than one might reasonably find in the normal workplace environment.

We have examined the evidence with care and agree that the employment in which claimant engaged subjected him and all other employees of the department to similar conditions capable of producing stress. Yet, these conditions are not unique to claimant’s employment or, indeed, to claimant himself. Accordingly, we do not believe claimant has established that these conditions are uncommon to all or a great many occupations and, for that reason, has not satisfied the test for determining whether the condition qualifies as an occupational disease. For this reason, the judgment of the circuit court of Sangamon County confirming the Industrial Commission is reversed.

Reversed.

McNAMARA, WOODWARD, STOUDER, and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN PRESIDING JUSTICE REINHARD,

license: Public Domain

text:
    KENO AND SONS CONSTRUCTION COMPANY, Plaintiff-Appellee and Cross-Appellant, v. La SALLE NATIONAL BANK, as Trustee, et al., Defendants (Epernay Properties, Inc., et al., Defendants-Appellants and Cross-Appellees; James Friedman, Intervening Defendant and Counterplaintiff-Appellee; Clyde W. Engle, Counterdefendant-Appellant).
    Second District
    Nos. 2—90—0539, 2—90—0568 cons.
    Opinion filed May 22, 1991.
    Rehearing denied July 16, 1991.
    REINHARD, P.J., dissenting.
    Dardick & Denlow, Richard C. Jones, Jr., and Michael D. Richman, all of Chicago (Morton Denlow, of counsel), for appellants Epernay Properties, Inc., and Clyde W. Engle.
    Paul G. O’Toole, of Bischoff, Mauri des & Swabowski, Ltd., of Chicago (Thomas J. Swabowski, of counsel), for appellant James Friedman.
    Brydges, Riseborough, Morris, Franke & Miller, of Waukegan, and Michael J. Hossack, of Brydges, Riseborough, Morris, Franke & Miller, of Chicago (Thomas A. Morris, Jr., of counsel), for appellee Keno and Sons Construction Company.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendants, Epernay Properties, Inc. (Epernay) and Clyde W. Engle (Engle), appeal from the judgment of the trial court of Lake County, which foreclosed a mechanic’s lien in favor of plaintiff, Keno and Sons Construction Company (Keno), found Epernay in breach of its contract with Keno, and held Engle personally liable for the judgment against Epernay. Keno appeals from the same judgment, contesting the interest rate applicable to its award. In the consolidated case, defendant, La Salle National Bank (La Salle), appeals from the same judgment of foreclosure and sale raising many of the same issues raised by Epernay and Engle. We reverse.

The center of the controversy in this case was work done by Keno to stabilize a bluff and prevent further erosion on property known as Armour House. The property was owned in trust by La Salle. Engle was the 100% beneficial owner of the land trust from 1979 until 1984, when he sold it to James Friedman. Engle is also the sole shareholder and director of Epernay, a land development company. Engle retained Epernay to restore Armour House, which had deteriorated over the years, and to hire a contractor to control erosion of the bluff upon which Armour House was located. Epernay’s general manager, Frederick Weir, chose Keno to perform the bluff restoration and erosion control in 1983. No written contract existed, although Keno submitted a written proposal for the job with a price of $70,500 and a 25% contingency, for a total ceiling of $88,000. Work began in June 1983 and continued, with delays for winter weather and lack of payment by Epernay, until November 12, 1984. In October 1984, Keno presented Epernay with a bill for the work, which totaled $163,205. When payment was not forthcoming, Keno recorded a mechanic’s lien for $89,897.97, the portion of Epernay’s bill Keno claimed remained outstanding.

In October 1985, Keno filed a complaint seeking foreclosure of its mechanic’s lien and damages for breach of contract. Friedman, who had purchased Engle’s interest in Armour House during the period of restoration, was granted leave to intervene and filed a counterclaim against Engle based on indemnification in the event Keno did foreclose its lien. Keno later amended its complaint to seek foreclosure by alleging that it had an oral agreement with Epernay on a “time and materials” basis and that Epernay still owed $89,897 on that bill. The complaint also sought recovery from both Epernay and Engle on various breach of contract and other theories.

Following a bench trial, the court found an oral agreement between Keno and Epernay but found that the agreement was a fixed-price contract, not a “time and material” contract. The court also found Keno was entitled to $76,436.72 from Epernay. The court pierced Epernay’s “corporate veil” and held Engle liable for the judgment against Epernay. Finally, the court found in favor of Friedman on his counterclaim for indemnification against Engle. These appeals followed.

We first address the amount of the award for extras awarded to Keno. The court found “no set price for the extras” but did find an implied agreement to use a “reasonable price.” The court announced a total reasonable cost of the job different from that sought by Keno, then deducted amounts for a disallowed extra, disallowed interest and amounts already paid, to arrive at its final award. Defendants contend that the amount of the award is against the manifest weight of the evidence. We agree.

The burden rests on the party seeking recovery to establish not only that he sustained damages but also a reasonable basis for computation of those damages. (Finance America Commercial Corp. v. Econo Coach, Inc. (1983), 118 Ill. App. 3d 385, 390.) Speculation and conjecture are not proper bases for the award of damages. (Finance America, 118 Ill. App. 3d at 390.) If a party proves his right to damages but fails to provide a proper basis for computing those damages, only nominal damages can be recovered. Rosos Litho Supply Corp. v. Hansen (1984), 123 Ill. App. 3d 290, 300.

In the case before us, Keno has failed to establish both its right to damages and a proper basis for damage computation. The court specifically found that the oral agreement between Keno and Epernay was not on a time and material basis; however, all of Keno’s billings were on a time and material basis. Keno failed to provide any evidence on the breakdown of these billings to show how much of the amount billed was for extras and how much could be attributed to work performed pursuant to the fixed-price contract. The trial court may not conclude that all charges above the amount contained in the contract are charges for extras without supporting evidence. The burden lay with Keno to prove the existence and extent of its alleged damages; all it proved was the amount of the bills it sent to Epernay. Proof of a bill for a particular amount, without more, is not evidence of the value of services rendered or materials furnished. (Wing v. Lederer (1966), 77 Ill. App. 2d 413, 420.) Without any detailed breakdown of costs, there is no way to determine the extent, if any, of recovery to which Keno is entitled. The court found a contract under a theory not pleaded by Keno. “Proof without pleadings is as defective as pleadings without proof.” (Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1021; Department of Transportation v. Rasmussen (1982), 108 Ill. App. 3d 615, 626.) Keno did not move to amend its complaint to include an allegation of breach of a fixed-price contract, nor did it move to reopen the proofs. Keno has already had its opportunity to plead and prove a contract and the damages to which it felt entitled; we will not grant it another opportunity. Therefore, the trial court’s award of damages to Keno was against the manifest weight of the evidence and must be reversed.

Even if Keno had proved the reasonable cost of the claimed extras, the court’s award still would have warranted reversal and remandment for a new trial.

The court’s award was determined as follows:

“Reasonable cost” of work $ 169,171.07
Amount already paid (82,977.94)
Interest improperly charged and collected (455.93)
Disallowed extra (9,300.48)
Amount due $ 76,436.72

Nowhere does the court explain how it arrived at its figure for reasonable cost of work performed. The only other place the figure of $169,171.07 appears is in a footnote in a letter prepared on behalf of Keno two years after litigation commenced. That figure is, in turn, based on an attached schedule which was never introduced into evidence. Thus, the court began its calculations based on figures not in evidence and arrived at a figure not supported by the evidence. This calculation does not withstand scrutiny.

Because of our disposition of the above, we need not address the other issues raised. The judgment of the circuit court of Lake County is reversed.

Reversed.

BOWMAN, J., concurs.

PRESIDING JUSTICE REINHARD,

dissenting:

I disagree with the majority’s outright reversal of the judgment in favor of plaintiff.

The intent of parties to an oral contract is a question to be determined by the trier of fact, and a reviewing court will not set aside such a finding unless it is contrary to the manifest weight of the evidence. (Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc. (1986), 114 Ill. 2d 133, 141.) Here, although plaintiff’s theory was that it had a time and materials contract, I agree with the majority that the trial court’s finding of an oral contract for a fixed price, with extras to be reimbursed separately, is not against the manifest weight of the evidence.

While the majority correctly concludes that there was insufficient evidence to award damages for unpaid extras in the context of a fixed-price contract, this deficiency is hardly surprising. Plaintiff’s theory below was not based on a fixed-price contract, but a time and materials contract. Under plaintiff’s theory, there were no “extras” because the entire bill was to be computed on a time and materials basis. Where, as here, the trial court improperly assessed contract damages and the record does not allow the reviewing court to make the proper assessment, it is appropriate to remand the cause for a new trial on damages. (W.E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1986), 115 Ill. 2d 119, 128.) The majority’s suggestion that plaintiff should have amended its pleadings to conform to the proofs is of no assistance where it is the proofs, not the pleadings, which are lacking. Similarly, while the majority suggests that plaintiff should have moved to reopen the proofs, this could hardly be expected of the party who prevailed at trial on both liability and damages.

Because it would be inappropriate to fault plaintiff for failing to segregate its evidence according to a theory which it did not promote, I believe the proper course is to affirm in part and reverse and remand in part for a new trial on damages. While my approach would also necessitate resolution of several other issues raised herein, inasmuch as the majority’s disposition does not address them, I do not do so.


author: JUSTICE INGLIS PRESIDING JUSTICE REINHARD,

text:
    WILLIAM J. AIMONETTE, Plaintiff-Appellant, v. JOSEPH R. HARTMANN et al., Defendants-Appellees.
    Second District
    No. 2—90—0494
    Opinion filed June 7, 1991.

      REINHARD, P.J., dissenting.

      Thomas R. Cirignani, Stanley J. Heller, and James C. Harman, all of Thomas R. Cirignani & Associates, and Gregory R. Sun, both of Chicago, for appellant.
    William V. Johnson, Thomas H. Fegan, and Pamela L. Gellen, all of Johnson, Cusack & Bell, Ltd., of Chicago, for appellee Joseph R. Hartmann.
    David J. Bressler and John J. Mangan, both of Rooks, Pitts & Poust, of Wheaton, for appellees A.H.M. Medical Associates, Thomas T. Chowattukunnel, and Naperville Medical Associates.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, William Aimonette, filed a medical malpractice action against defendants, Dr. Joseph Hartmann, A.H.M. Medical Associates, Dr. Thomas Chowattukunnel, and Naperville Medical Associates, for allegedly failing to properly diagnose and treat him. Following a lengthy trial, the jury returned a verdict in favor of all defendants. Plaintiff now appeals, contending that the trial court improperly instructed the jury on the issue of plaintiff’s contributory negligence and also erred in failing to tender instructions on comparative negligence. We affirm.

On August 13, 1985, plaintiff filed a complaint seeking damages for defendants’ alleged medical malpractice. On August 27, 1986, Dr. Chowattukunnel filed his answer to the complaint, along with an affirmative defense alleging that plaintiff was contributorily negligent for at least a portion of his injuries. Following a lengthy discovery period, the jury trial began on January 17,1990.

Plaintiff testified that he was an attorney who received his law degree in 1969 and was working for Sunbeam Corporation in 1980. In September 1980, plaintiff began a running program in an attempt to get back into shape. However, he was unable to jog more than one-fourth mile because he was experiencing “[sjhortness of breath and lightheadedness.” On November 19, 1980, Dr. Chowattukunnel examined plaintiff because plaintiff continued to experience problems with breathing and also had chest pains. Plaintiff’s chest X rays were negative, but an EKG revealed an abnormality. Plaintiff then checked into Edward Hospital for additional tests and a consultation with Dr. Hartmann, a cardiologist. Plaintiff told Dr. Hartmann that he was experiencing difficulty with his breathing, had chest pains, and also noticed a numbness in his right arm on occasion. Dr. Hartmann then ordered a treadmill EKG test. Following the test, Dr. Hartmann informed plaintiff that nothing was wrong with him except that he was “out of shape.” On November 20, 1980, plaintiff was released from the hospital.

After plaintiff was released, he and his family went to Florida for a previously scheduled vacation. During the vacation, plaintiff continued to experience problems with his breathing. Plaintiff had similar problems when he returned to work after the vacation. On December 3, 1980, plaintiff began to slur his words and called Dr. Hartmann. Plaintiff spoke to Dr. Hartmann’s secretary but never received a call back from Dr. Hartmann. On December 5, 1990, plaintiff went jogging at night and suffered a stroke. He was taken to Edward Hospital via ambulance.

A few days later, Dr. Hartmann informed plaintiff that his condition was diagnosed as mitral valve prolapse syndrome and that he had suffered a stroke. Plaintiff was released from the hospital on December 24,1990, and entered a rehabilitation center two days later.

On cross-examination, plaintiff stated that he did not tell Dr. Chowattukunnel about any numbness in his arm during the initial medical examination. Plaintiff also told Dr. Chowattukunnel that he did not want to be hospitalized on November 20, 1980, because he had a vacation in Florida already scheduled. In addition, he did not attempt to contact Dr. Chowattukunnel after he began experiencing problems with his speech a few days before he suffered the stroke.

Plaintiff presented two physicians, Dr. William Wehrmacher and Dr. Barry Singer, to testify as expert witnesses at trial. Dr. Wehrmacher, a cardiologist, testified that it was his opinion that plaintiff suffered from mitral valve prolapse syndrome which likely caused his “major cerebral vascular accident” (stroke). Dr. Wehrmacher stated that Dr. Chowattukunnel deviated from the minimum standard of care in treating plaintiff by failing to consider alternative causes of plaintiff’s symptoms after ruling out the initial diagnosis. According to Dr. Wehrmacher, Dr. Chowattukunnel’s deviation from the minimum standard of care “contributed” to plaintiff’s stroke.

Dr. Wehrmacher further testified that it was his opinion that Dr. Hartmann also deviated from the minimum standard of care when he failed to take an adequate medical history and did not continue to monitor plaintiff following his initial discharge from the hospital.

On cross-examination, Dr. Wehrmacher testified that it was appropriate for Dr. Chowattukunnel, a general practitioner, to consult with a cardiologist, Dr. Hartmann, to assist in treating plaintiff’s condition. In addition, he indicated that he could not determine within a reasonable degree of medical certainty whether there was a connection between Dr. Chowattukunnel’s treatment and plaintiff’s stroke.

On redirect examination, Dr. Wehrmacher indicated that he could not specifically connect Dr. Chowattukunnel’s treatment with plaintiff’s stroke because there were “areas of overlap and responsibility” between the two treating physicians. Thus, it was his opinion that both physicians were responsible for plaintiff’s condition to some degree.

Dr. Singer also opined that Dr. Chowattukunnel’s failure to obtain a proper history of plaintiff and to evaluate plaintiff’s symptoms following the November 20, 1980, discharge from the hospital were direct causes of plaintiff’s subsequent stroke. In addition, he stated that Dr. Hartmann failed to meet the minimum standard of care by failing to obtain an adequate history and did not explain to plaintiff the need for further monitoring after coronary artery disease was eliminated as a diagnosis.

Dr. Chowattukunnel testified that his initial impression concerning plaintiff’s symptoms was that plaintiff had “possible tracheal bronchitis” and angina. After reviewing plaintiff’s EKG, Dr. Chowattukunnel noted “nonspecific changes, with history strongly suggestive of unstable angina” in plaintiff’s medical record and recommended that plaintiff be admitted into the hospital for further tests. He also recommended that a cardiologist examine plaintiff. Following various tests at the hospital and after consulting with Dr. Hartmann, Dr. Chowattukunnel discharged plaintiff from the hospital. He told plaintiff to contact him when plaintiff returned from his vacation. However, plaintiff did not contact him and Dr. Chowattukunnel did not see plaintiff again until long after the stroke.

Dr. Hartmann testified that he examined plaintiff on November 20, 1980, at Edward Hospital and found no evidence of any “significant” heart disease. In addition, plaintiff did not exhibit any of the risk factors for a stroke at this time. Thus, according to Dr. Hartmann, the stroke was “[djefinitely not” predictable. Dr. Hartmann further stated that he would have had a neurologist examine plaintiff had plaintiff informed him of any additional symptoms, including problems with his speech.

Dr. Louis Caplan, a neurologist, and Dr. James Talano, a cardiologist, testified that Dr. Hartmann complied with the standard of care in his treatment of plaintiff. In addition, Dr. Finley Brown, a family practice physician, testified that Dr. Chowattukunnel’s examination and treatment of plaintiff complied with the standard of care for a family practitioner.

Dr. Ruth Ramsy, a radiologist who specializes in neurology, testified that it was her opinion that plaintiff had experienced one embolus, which she indicated was a single event.

At the conclusion of the trial, the jury heard closing arguments before deliberating and returned a verdict in favor of all defendants. Plaintiff’s motion for a new trial was denied, and this appeal followed.

Plaintiff first contends that the trial court erred in instructing the jury on contributory negligence. Plaintiff argues that the instruction allowed the jury to return a finding in favor of defendants even though plaintiff may have been responsible only for a small portion of his injuries.

At issue in this case is the propriety of giving the jury Illinois Pattern Jury Instructions, Civil, No. 105.08 (2d ed. 1971) (hereinafter IPI Civil 2d). This instruction, as given in this case, stated:

“A patient is required to follow reasonable advice as to treatment. In addition he must follow the doctor’s instructions. A doctor is not liable for the consequences of a patient’s failure to do so. A patient’s failure to receive treatment or follow instructions does not absolve the doctor from the results of any earlier malpractice. It only absolves him from any injury caused by the patient’s not accepting reasonable treatment or following instructions.”

Plaintiff asserts that the portion of the instruction which indicates that “[a] doctor is not liable for the consequences of a patient’s failure” to follow advice “makes it clear that plaintiff’s contributory negligence bars his recovery as opposed to reducing his recovery” under comparative negligence principles. Plaintiff argues that this instruction is incompatible with the supreme court decision in Alvis v. Ribar (1981), 85 Ill. 2d 1.

In Alvis, our supreme court abolished the doctrine of contributory negligence and adopted in its place a “pure” form of comparative negligence. (85 Ill. 2d at 28.) Our legislature recently has abolished the “pure” comparative negligence system adopted in Alvis and replaced it with a “modified” system in which a plaintiff cannot recover damages if his or her fault is more than 50% of the proximate cause of the injury. See Ill. Rev. Stat. 1987, ch. 110, par. 2—1116.

All defendants rely on Fisher v. Slager (1990), 201 Ill. App. 3d 480, to support their position that the jury was properly instructed in this case. In Fisher, the plaintiff argued that the trial court should not have given IPI Civil 2d No. 105.08 to the jury in that medical malpractice case because there was no evidence to support the instruction. The appellate court disagreed, holding that there was evidence at trial to support the defendants’ theory that the decedent did not follow all of the physicians’ instructions. Fisher, 201 Ill. App. 3d at 487.

Of more importance to the present case is the Fisher court’s discussion of the applicability of IPI Civil 2d No. 105.08 in a comparative negligence situation. The plaintiff argued that the trial court should not have given this instruction to the jury without also providing a modified general verdict form on comparative negligence (see Illinois Pattern Jury Instructions, Civil, No. 45.07 (3d ed. 1990) (IPI Civil 3d)). The appellate court again disagreed, noting that IPI Civil 2d No. 105.08 was “solely a damage-reducing instruction” which was inapplicable in the case because the jury found in favor of all defendants. (Fisher, 201 Ill. App. 3d at 489.) Absent any findings of liability, the jury would have no reason to consider reducing the plaintiff’s damages as provided in IPI Civil 2d No. 105.08. (Fisher, 201 Ill. App. 3d at 489.) The fact that the trial court also instructed the jury that it would not have to consider the question of damages for any defendant it found not liable (see IPI Civil 3d No. 36.01) further bolstered the appellate court’s decision. See Fisher, 201 Ill. App. 3d at 489; see also Misch v. Meadows Mennonite Home (1983), 114 Ill. App. 3d 792, 799 (if a defendant is guilty of no negligence, then there is “nothing to compare”).

We agree with the reasoning expressed in Fisher and likewise find that the instruction at issue in this case was properly tendered to the jury. The jury would need to consider this instruction only if it determined that one or more defendants were liable for at least a portion of plaintiff’s injuries. However, the jury found in favor of all defendants on the issue of liability. Thus, the jury had no reason to consider reducing plaintiff’s damages as provided in IPI Civil 2d No. 105.08.

In addition, we disagree with plaintiff’s assertion that this instruction confused or misled the jury. The jury was instructed, pursuant to IPI Civil 3d No. 36.01, that if the jury decided in favor of a defendant on the question of liability, then it “will have no occasion to consider the question of damages as to that defendant or those defendants.” Thus, the jurors were aware that they would only need to consider IPI Civil 2d No. 105.08 if they first determined that at least one defendant was liable for plaintiff’s injuries. See Schuchman v. Stackable (1990), 198 Ill. App. 3d 209, 231 (alleged errors pertaining solely to question of damages do not afford grounds for reversal where a defendant is found not liable); Mackey v. Daddio (1985), 139 Ill. App. 3d 604, 610 (same).

Furthermore, we do not view this instruction as completely barring plaintiff from recovery if the jury finds that plaintiff did not follow his physicians’ instructions. The jury instruction specifically states that plaintiff’s failure to follow instructions “does not absolve the doctor from the results of earlier malpractice.” Thus, the jury was aware that either physician’s alleged malpractice on November 19-20, 1980, would not be absolved simply because plaintiff failed to follow instructions after he returned from his vacation.

Plaintiff also argues that IPI Civil 2d No. 105.08 was not used properly as a mitigation of damages instruction in this case. Plaintiff asserts that there were no damages to mitigate at the time of his initial consultation with the physicians and that there was no evidence to show that plaintiff’s conduct after he was released from the hospital “in any way caused any of his injuries.”

A party has a right to have the jury instructed on his or her theory of recovery or defense if the facts in evidence or a reasonable inference from those facts support that theory. (Schuchman, 198 Ill. App. 3d at 225; Alden Press, Inc. v. Block & Co. (1988), 173 Ill. App. 3d 251, 260.) We agree with defendants that there was sufficient evidence presented at trial to support this mitigation of damages instruction. Defendants presented evidence which indicated that plaintiff failed to report his new symptoms and did not return to see either of his physicians after his condition began to deteriorate. In addition, plaintiff failed to follow Dr. Chowattukunnel’s instruction that he receive a follow-up examination after plaintiff returned from Florida. It is apparent that the defense theory in this case was that plaintiff did not give defendants an opportunity, after these new symptoms accrued, to treat him properly. Given that there was evidence to support this theory, the instruction was properly tendered. See Fisher, 201 Ill. App. 3d at 488.

We next consider plaintiff’s contention that the trial court erred in refusing to give his tendered instructions on comparative negligence to the jury. Plaintiff cites Leonard v. Pitstick Dairy Lake & Park, Inc. (1990), 202 Ill. App. 3d 817, to support his position on this issue.

In Leonard, the plaintiff was seriously injured when he dove into shallow water in a lake which the defendants owned and operated. The appellate court reversed a jury verdict in favor of the defendants, holding that the trial court erred when it refused to instruct the jury that evidence of the plaintiff’s negligence “does not bar liability but only goes to the reduction of damages.” (Leonard, 202 Ill. App. 3d at 825.) The court noted that the jury must have been confused about the legal effect of the evidence relating to the plaintiff’s fault when no instructions were tendered on comparative negligence. 202 Ill. App. 3d at 824-25.

We find Leonard to be distinguishable from the facts presented in the case at bar. In this case, defendants determined that the issue, was more appropriately labeled as a mitigation of damages situation and chose to withdraw instructions relating to comparative fault. The jury was not misled by the absence of comparative negligence instructions because the evidence supported defendants’ theory in the case with respect to mitigation of damages. Unlike Leonard, the jury was given guidance as to the significance of the evidence relating to plaintiff’s alleged failure to follow his physicians’ advice and not reporting new symptoms.

In addition, we find no error in the trial court’s decision not to allow plaintiff to tender instructions on comparative negligence. Plaintiff’s position in this case was that he followed his physicians’ advice and did everything he was instructed to do. Thus, instructions on comparative fault would not have been consistent with his theory of the case and the court was correct in refusing plaintiff’s request to tender the instructions.

Plaintiff’s final contention on appeal is that the trial court erred in failing to instruct the jury that it was defendants’ burden to prove plaintiff’s failure to mitigate damages. Plaintiff argues that the court’s failure to tender the instruction resulted in reversible error because it misled the jury into believing that defendants did not have to prove anything at trial.

Plaintiff relies upon Casey v. Baseden (1986), 111 Ill. 2d 341, to support his position. In Casey, the court determined that the trial court properly instructed the jury that the defendants had the burden to prove the plaintiff’s comparative negligence and his failure to mitigate damages. Casey, 111 Ill. 2d at 347. See also Rozny v. Marnul (1969), 43 Ill. 2d 54, 73 (defendants have burden of proof with respect to failure to mitigate damages).

In the present case, the following colloquy occurred at the instructions conference:

“MR. THOMAS CIRIGNANI [counsel for plaintiff]: And I would also like to submit to you a form that relates to the defendant having the burden of proof, consistent with the instruction you are going to give, 105 whatever, that he didn’t follow instructions.
MR. JOHNSON [counsel for defendant Hartmann]: We have withdrawn the comparative. Plaintiff doesn’t have a right to interpose a comparative.
THE COURT: I have to take a look at whatever instruction he tenders. Okay. Plaintiff’s 27, which is the comparative verdict form, it was given yesterday over the objection of plaintiff. So now the plaintiff is not withdrawing it; is that right?
MR. MARIO CIRIGNANI [counsel for plaintiff]: That’s right.
MR. THOMAS CIRIGNANI: Because the Court is now giving the other instruction, 105 whatever, and that is why we are asking that that instruction be given.
THE COURT: I imagine now there is an objection by the defendants?
MR. JOHNSON: Yes.
THE COURT: It will be sustained.”

While the record of the instructions conference is unclear and confusing at best, it appears that defendants originally submitted instructions on comparative negligence. The trial court was unsure about the instructions but decided to tender the instructions over plaintiff’s objections. However, defendants later withdrew the instructions after they withdrew their affirmative defense. Plaintiff then attempted to introduce instructions concerning comparative negligence and defendants’ burden of proof. The trial court refused to allow counsel for plaintiff to submit comparative negligence instructions against his own client and sustained defendants’ objections to the instructions.

We disagree with plaintiff’s contention that the trial court committed reversible error in failing to instruct the jury on defendants’ burden of proof. As Casey stated, any burden of proof which defendants may have had would arise “only after the jury had resolved the issue of liability in favor of the plaintiff and had found that plaintiff proved she sustained damages.” (Casey, 111 Ill. 2d at 347-48.) However, the jury in this case did not resolve the liability issue in favor of plaintiff and thus did not award any damages. Thus, the fact that the trial court refused to instruct the jury on defendants’ burden of proof in no way prejudiced plaintiff because the jury had no reason to consider any damage-reducing factors or who had the burden of proving these factors. As such, reversal is not warranted in this case. See Alden Press, 173 Ill. App. 3d at 260; Korpalski v. Lyman (1983), 114 Ill. App. 3d 563, 568.

In addition, defendants withdrew their affirmative defense of plaintiff’s comparative negligence and plaintiff was accordingly not entitled to an instruction on this issue. See Buczyna v. Cuomo & Son Cartage Co. (1986), 146 Ill. App. 3d 404, 416.

Under these circumstances, we find that the jury instructions tendered in this case, taken as a whole, were sufficiently clear so as not to mislead the jury and accurately stated the law. (See Alden Press, 173 Ill. App. 3d at 260.) Consequently, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT, J., concurs.

PRESIDING JUSTICE REINHARD,

dissenting:

I respectfully dissent. The trial court committed reversible error when it instructed the jury pursuant to Illinois Pattern Jury Instructions, Civil, No. 105.08 (2d ed. 1971) (hereinafter IPI Civil 2d).

Where appropriate in a negligence action, the jury is normally instructed as to the plaintiff’s duty to exercise ordinary care. This instruction (Illinois Pattern Jury Instructions, Civil, No. 10.03 (3d ed. 1991) (hereinafter IPI Civil 3d)) pertains to the question of whether the plaintiff has been comparatively or contributorily negligent. This is relevant in a negligence action because, under principles of contributory or comparative negligence, the plaintiff’s failure to exercise due care can be a contributing proximate came of his or her injury. (See Owens v. Stokoe (1986), 115 Ill. 2d 177, 183-84; Restatement (Second) of Torts §§463, 465 (1965).) IPI Civil 2d No. 105.08, on the other hand, is solely a damage-reducing instruction (Fisher v. Stager (1990), 201 Ill. App. 3d 480, 484), which is inappropriate where the real question is whether the plaintiff’s negligence was a contributing cause of a single injury.

IPI Civil 2d No. 105.08 “covers only special instances of a departure from the requirement that a patient use ordinary care” which are not adequately addressed by a comparative negligence instruction. (IPI Civil 2d No. 105.08, Comment.) In my opinion, IPI Civil 2d No. 105.08 allows for mitigation of damages against a physician where the patient does not follow reasonable advice as to treatment or does not follow the physician’s instructions subsequent to the injury caused by the earlier malpractice of the physician. The instruction is not appropriate where, as here, the only question is one of which party’s conduct caused the injury: the physician’s malpractice, the plaintiff’s lack of due care, or some combination thereof.

The Illinois Supreme Court Committee on Jury Instructions in Civil Cases recently published a revised instruction No. 105.08 which is essentially the same as the prior version. (See IPI Civil 3d No. 105.08.) The committee’s notes and comments to the revised instruction make it clear that the instruction does not apply where, as here, there is only one injury and the jury must determine what portion of the injury was proximately caused by the plaintiff’s comparative negligence. The notes on use for IPI Civil 3d No. 105.08 state that the instruction “applies only to those instances where the defendant claims that the plaintiff has failed to mitigate his damages by failing to use ordinary care in not seeking treatment or in not following the doctor’s instructions concerning treatment.” (IPI Civil 3d No. 105.08, Notes on Use.) Furthermore, the comment states that a patient’s duty to mitigate his damages arises “[o]nce an injury has occurred as a proximate result of medical negligence.” IPI Civil 3d No. 105.08, Comment.

In this case, no injury occurred until plaintiff suffered his stroke. The asserted failure to follow instructions occurred before the stroke, and such evidence would properly be raised only to compare plaintiff’s negligence with that of defendants for purposes of determining the proximate cause of the stroke. Plaintiff’s failure to follow instructions could have been a contributing cause of his injury, but it did not aggravate an existing injury caused by defendants’ negligence. As the committee’s comment to IPI Civil 3d No. 105.08 cautions, “[i]t is important *** to distinguish between mitigation of damages and contributory negligence.” (IPI Civil 3d No. 105.08, Comment.) Here, the improper use of IPI Civil 2d No. 105.08 confused plaintiff’s duty to mitigate damages with the separate question of whether his conduct was a contributing cause of the stroke.

Moreover, the error here was highly prejudicial to plaintiff because defendants misused IPI Civil 2d No. 105.08 by characterizing it in the context of liability in their final arguments to the jury. In this regard, defendants argued that IPI Civil 2d No. 105.08 required plaintiff to follow the doctor’s instruction and that, if plaintiff did not do so, the resulting injury was not the doctor’s responsibility. The attorney for Dr. Hartmann argued, in pertinent part, as follows:

“One instruction that I will direct your attention to — even if you were to assume that all of the doctors were wrong, every doctor took an incorrect history, every expert except Dr. Wehrmacher and Dr. Singer are wrong — plaintiff still could not be entitled to recover in this case because of his own conduct.
* * *
And you will be instructed that a patient is required to follow reasonable advice as to treatment and follow the doctor’s instructions, and if the patient doesn’t do it, it’s not the doctor’s responsibility.
Now I know I am talking to a bunch of patients, potential patients, but I don’t think that the law is putting an unreasonable standard on somebody. If you have something wrong with you and you are worried about it, you don’t sit at home.
If you are a child or a baby or you can’t think properly or — but a 36-year-old attorney, if everything that he says is true, he is still not entitled to recover in this case because he didn’t follow the advice of this doctor. And the advice was, hey, if you have a problem, come back. And then Dr. Chowattukunnel told him to come back in 10 days anyway. And he didn’t do it, and he admitted he didn’t do it.” (Emphasis added.)

Later in counsel’s argument, he stated that he was “not even going to talk to [the jury] about damages.”

Dr. Chowattukunnel's attorney also referred to IPI Civil 2d No. 105.08 in final argument:

“Further, the patient was instructed to come back. He didn’t do that. Mr. Johnson has informed you of the instruction that you will be given in that regard. In fact, he never bothered to contact Dr. [Chowattukunnel] again until after he had a stroke.”

Thus, it is clear that the attorneys for both Dr. Hartmann and Dr. Chowattukunnel utilized IPI Civil 2d No. 105.08 on the issue of liability, not mitigation of damages.

The most serious prejudice to plaintiff occurred when the trial court allowed defendants to withdraw their request for an instruction on plaintiff’s comparative negligence and denied plaintiff's request that such an instruction be given. The exclusion of the comparative negligence instruction, combined with the erroneous use of IPI Civil 2d No. 105.08, confused the question of liability. This effectively led the jury to assess responsibility for plaintiff’s injury entirely to one party or the other rather than assessing some proportion of fault to plaintiff and reducing damages accordingly under principles of comparative negligence. This constituted a defacto revival of contributory negligence as a bar to recovery and inevitably tainted the jury’s verdict.

Because the trial court erred in giving the jury IPI Civil 2d No. 105.08, and because this error prejudiced plaintiff for the reasons stated above, I would reverse the judgment for defendants and remand the cause for a new trial.