author: JUSTICE LINDBERG

text:
    JAMES J. TRACY, Plaintiff-Appellee, v. THE VILLAGE OF LOMBARD, Defendant-Appellant.
    Second District
    No. 82—441
    Opinion filed July 14, 1983.

      Marvin J. Clink and Katherine S. Janega, both of Ancel, Clink, Diamond, Murphy and Cope, P.C., of Chicago, for appellant.
    Robert E. Dyer, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant village appeals from the judgment of the circuit court of Du Page County in favor of plaintiff, who broke his leg after falling on a stairway in the village hall. Because we find no error at trial and the case was properly submitted to the jury, we affirm.

Plaintiff, James J. Tracy, brought this action to recover from injuries suffered in a fall on a stairway in the village hall of defendant, the village of Lombard (village). On the morning of May 21, 1980, Tracy appeared in traffic court in the courtroom on the top floor of the village hall. Tracy at that time was on crutches, having suffered an injury to his left hip in a prior accident. Tracy was found guilty of a traffic offense and left the courtroom accompanied by Debbie Jean Phillips, who has since married Tracy. Eyewitnesses for the village testified that Tracy was angry and moved rapidly as he left, which was denied by Tracy and his wife. Tracy proceeded down the first series of stairs a few steps behind Phillips. He fell when he reached the third step up from the first landing, asserting that his left crutch caught in the stair tread. In his fall, Tracy broke his left femur about three inches below the previously suffered fracture.

The stairs where Tracy fell were dry and clear of debris. However, there were cracks in the tile of which Tracy and the village submitted numerous photographs. The only measurements of the cracks admitted into evidence were those taken by Donald Ross Bauer, the village’s building inspector, with a ruler. At trial, Bauer described the design of the stairs and the tile and their maintenance. Bauer reported the dimensions of the nine measurable cracks on the third step up from the landing. Although no widths were taken on those nine cracks, Bauer testified that none were significantly wider than the ruler, which he described as “a weak 1/8” inch. Depths ranged from 1/16 inch to 3/32 inch. Lengths ranged from two to nine inches. The village introduced into evidence a diagram of Bauer’s measurements.

For Tracy, Dr. Joseph C. Ritscherle testified concerning Tracy's medical condition before and after the accident at issue here. Also for Tracy, Lynn Barnes testified concerning construction work he would have given to Tracy to do on his restaurant if Tracy had been able.

The jury returned a verdict in Tracy’s favor, but found Tracy to be 50% comparatively negligent. It therefore assessed recoverable damages of $62,500 as 50% of the $125,000 that it had determined to be the amount of damages suffered. The trial court denied the village’s motions for a directed verdict, for a judgment notwithstanding the verdict, and for a new trial, and entered judgment on the verdict.

On appeal, the village raises several issues: (1) whether cracks in stairway tile of the size in this case are nonactionable as a matter of law; (2) whether a judgment for the village notwithstanding the verdict should be awarded; (3) whether proffered evidence of the absence of previous accidents on the stairway was properly excluded; (4) whether the village’s jury instructions relating to its notice of the unsafe condition were properly denied; (5) whether Tracy’s evidence on lost earnings was too speculative to be admissible; (6) whether the jury was properly instructed on aggravation of a prior injury; (7) whether Tracy’s counsel’s arguments warrant a new trial; and (8) whether the damages awarded were excessive.

A local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition. (Ill. Rev. Stat. 1979, ch. 85, par. 3—102; Hennings v. Centreville Township (1973), 56 Ill. 2d 151.) The village first contends that under this standard the cracks in the tile of the stairway were so small as to be nonactionable as a matter of law. The village’s witness measured the cracks to be no more than 3/s2-inch deep and about Vs-inch wide.

The village cites Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, and its progeny for the proposition that, where all reasonable minds would agree that a defect is so minor that no danger could reasonably be foreseen, the question should be withdrawn from the jury. These cases all related to sidewalk defects and emphasized that, in determining which defects are “minor,” each case must be examined as to its own particular facts. (11 Ill. 2d 601, 604; Warner v. City of Chicago (1978), 72 Ill. 2d 100, 104; Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 20, 405 N.E.2d 1383, 1387; Baker v. City of Granite City (1979), 75 Ill. App. 3d 157, 160, 394 N.E.2d 33, 34.) While all agreed that minor sidewalk defects are not actionable, each concluded that the defect in the sidewalk at issue, which ranged in those cases from IV2 inches deep to “about 2” inches deep, was actionable under the circumstances. (Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601; Warner v. City of Chicago (1978), 72 Ill. 2d 100; Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 405 N.E.2d 1383; Baker v. City of Granite City (1979), 75 Ill. App. 3d 157, 394 N.E.2d 33.) However, Warner suggests that a lVs-inch variance would not be actionable (72 Ill. 2d 100, 104), and in Walter v. City of Rockford (1947), 332 Ill. App. 243, 74 N.E.2d 903, a 3/4- to 1-inch variance was held nonactionable.

More on point, the village discusses five cases in which the condition of a stairway is at issue. In each of the five, the reviewing court held that a directed verdict or judgment notwithstanding the verdict in the defendant’s favor would have been appropriate. In Robinson v. Southwestern Bell Telephone Co. (1960), 26 Ill. App. 2d 139, 167 N.E.2d 793, the court concluded that there was no evidence of negligence where the plaintiff allegedly tripped on a rubber mat at the top of a stairway. The mat, which had 1:L/i6-mch wide and Vs to 1Ia inch deep hexagonal holes, was not shown to be damaged or in a defective condition. In Turner v. Chicago Housing Authority (1956), 11 Ill. App. 2d 160, 136 N.E.2d 543, testimony that the metal nosing of a step was “shiny” and “slippery” was insufficient to establish the existence of an unsafe condition. In Heneghan v. Carson Pirie Scott & Co. (1936), 285 Ill. App. 595, 3 N.E.2d 153 (abstract of opinion), the plaintiff failed to make out a prima facie case since there was no proof that the stair or the metal strip on which she allegedly tripped was in a defective or dangerous condition. In McKnight v. Wire Properties, Inc. (D.C. App. 1972), 288 A.2d 405, the plaintiff claimed that her heels caught in the metal corrugations or grooves measuring 3/8-inch wide and 3/16-inch deep. The reviewing court affirmed the judgment n.o.v. for defendant because there was no evidence of negligent construction or maintenance. Finally, in State-Planters Bank & Trust Co. v. Gans (1939), 172 Va. 76, 200 S.E. 591, the court found insufficient evidence of negligence where the 3/16 inch thick rubber treads on marble stairs were somewhat frayed around the edges and had holes the size of a 25 or 50 cent piece.

As noted, the determination of whether a defect is so minor as to be nonactionable depends upon the particular facts of each case. (Warner v. City of Chicago (1978), 72 Ill. 2d 100, 104.) However, in River v. Atlantic & Pacific Tea Co. (1961), 31 Ill. App. 2d 232, 175 N.E.2d 593, the court, while recognizing the particularities of each case, found a discernible pattern in negligence cases involving the conditions of flooring in business establishments. That court noted that “if there is positive evidence of defects in the flooring, such as holes, worn boards or depressions, and some direct evidence, however slight, which associates plaintiff’s fall with that defect, the problem becomes a jury question and verdicts for plaintiffs are usually affirmed. [Citations.] Where, however, the fall occurs upon a floor not having any depression, concavity, hole or other defective condition and there is nothing upon which the jury can reasonably find negligence, it is improper to submit the case to the jury.” 31 Ill. App. 2d 232, 236-37, 175 N.E.2d 593, 595-96.

Similarly, in Robinson v. Southwestern Bell Telephone Co. (1960), 26 Ill. App. 2d 139, 167 N.E.2d 793, the court stated the following:

“Examination of rules of law on this subject discloses that liability may result when some foreign substance is placed or allowed to remain on the floor so that it causes a person to slip and fall. On the other hand, it is held that if slipping and falling occurs on the natural floor, such as polished wood, tile or terrazzo, there is no liability on the ground that there is no negligence in having a floor of common accepted design.” 26 Ill. App. 2d 139, 143, 167 N.E.2d 793, 795.

Thus, it appears that in flooring cases some positive evidence of a defect, however slight, is enough to send the case to the jury, provided causation is also established. In each of the cases cited by the village, with the exception of the non-Illinois case of State-Planters Bank & Trust Co. v. Gans (1939), 172 Va. 76, 200 S.E. 591, the only possible defect would have been in design, and the plaintiff did not prove unreasonably dangerous design. By contrast, in the present case it is undisputed that measurable cracks not originally in the tiles had developed. The existence of these cracks places this case in the first category of cases discussed in River v. Atlantic & Pacific Tea Co. (1961), 31 Ill. App. 2d 232, 175 N.E.2d 593, those in which “there is positive evidence of defects in the flooring, such as holes, worn boards or depressions.” See Swanson v. S.S. Kresge Co. (1939), 302 Ill. App. 455, 24 N.E.2d 62, and other cases cited in River v. Atlantic & Pacific Tea Co. (1961), 31 Ill. App. 2d 232, 236-37, 175 N.E.2d 593, 595.

While the pattern in cases involving a flooring or stairway defect appears to allow smaller defects to go to the jury than in some of the sidewalk cases discussed earlier, the difference may be justifiable for several reasons. Defects in sidewalks may be avoided more easily than defects in stairs. Indoor flooring and stairways are not exposed to the weather. Further, they may be more easily monitored for defects. A trip on a stairway is potentially more dangerous because of the likelihood of a fall down the stairway.

In sum, although the measurable cracks here were very small, we hold that they constituted positive evidence of a defective condition, the unsafe character of which was properly given to the jury to determine.

The village next contends that it is entitled to a judgment notwithstanding the verdict because Tracy failed to establish a prima facie case. Under the rule in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, a judgment notwithstanding the verdict or a directed verdict ought to be granted only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. The village argues that the lack of evidence of duty, proximate cause, and the village’s notice of the unsafe condition warranted a judgment notwithstanding the verdict. The village also contends that it is entitled to a judgment notwithstanding the verdict because it established the prima facie elements of an affirmative defense to which Tracy offered no contrary evidence: the village’s lack of notice of the unsafe condition.

The village notes that for a court to find the existence of a legal duty the occurrence involved must have been reasonably foreseeable, not simply foreseeable. (Cunis v. Brennan (1974), 56 Ill. 2d 372; Reed v. Danville Concrete Products Co. (1981), 102 Ill. App. 3d 205, 429 N.E.2d 605.) It argues then it was not reasonably foreseeable that a crutch the size of Tracy’s should catch in such a small crack in the stairway tile as present here. The village concedes, however, that foreseeability of a person on crutches using the stairs and its duty to exercise ordinary care in maintaining the stairs in a reasonably safe condition. Given our determination that the cracks here were not so small as to be nonactionable and the foreseeability of the use of the stairs by someone on crutches, we conclude that it was reasonably foreseeable that an accident of the nature that did take place would occur.

The village next argues that Tracy failed to establish proximate cause. Its first point is that if Tracy was standing where he said he was, his left crutch (i.e., the one that he alleged caught in a crack) would have touched the tile in an area where there were only unmeasurable, hairline cracks. Our examination of the exhibits refutes this position. It is apparent from Tracy’s indications on the photo exhibits that he claimed that his crutch caught in a crack on step 3, most likely crack No. 2, but possibly Nos. 1, 3, or 4 (as numbered in defendant’s exhibit No. 17). Tracy testified that his shoulder was six inches from the right-hand railing. The bottom of his . crutch, because the crutch was “flanged up,” was only three or four inches from the end of the step. He testified that his two crutches were “maybe feet apart, 2 feet.” Defendant’s exhibit No. 17 shows crack No. 2 to stretch between 23 and 27 inches from the end of the step. Thus, Tracy’s right crutch would have been 19 to 24 inches from the length of crack No. 2. Similarly measured, Tracy’s right crutch would have been 31 to 35 inches from the length of crack No. 4. A distance of 19 to 24 or 31 to 35 inches is reasonably approximate to the estimated distance between the crutches of 2 to feet. Therefore, this was sufficient evidence that Tracy’s fall was proximately caused by his left crutch catching in a crack in the alleged manner to give the question to the jury.

The village secondly argues that the testimony of Tracy’s wife places Tracy’s crutches in a different location and one equally unsupportive of his theory of the cause of the fall. Because this court must look at the evidence in its aspect most favorable to Tracy, the testimony of Tracy’s wife, even if accurately characterized by the village, will not be used to detract from the sufficiency of Tracy’s testimony.

The village also argues that the evidence of the manner in which Tracy fell was inherently unbelievable. Tracy testified that, after catching his left crutch in a crack on the third step up from the landing, he fell, hitting his left hip on the first or second step. His fall was not directly forward but toward the middle of the stairs to his left as he still held the right-hand crutch. Although his wife partially broke his fall, he rolled onto his right side and ended up on the landing. On the landing, his head was just about even with the left railing and his feet were three or four feet from the right railing. This version of the fall presents a plausible sequence of events. Once again, to the extent that Tracy’s wife’s testimony may be inconsistent with Tracy’s version, it should not detract from it when the evidence is viewed most favorably to Tracy.

Finally with regards to causation, the village maintains that Tracy’s testimony was equivalent to the testimony in Robinson v. Southwestern Bell Telephone Co. (1960), 26 Ill. App. 2d 139, 167 N.E.2d 793, and in McKnight v. Wire Properties Inc. (D.C. App. 1972), 288 A.2d 405, which testimony those courts held to be insufficient to permit the case to go to the jury. However, those cases are distinguishable. In Robinson, the court held that there was no evidence of negligence where the plaintiff claimed that her fall was caused by a rubber mat which was shown to be in excellent condition. In McKnight the court upheld a judgment n.o.v. because the plaintiffs testimony that something caught her heel and that the tread of the steps contained corrugations or grooves was not evidence of defective construction of design of the steps nor proof that the grooves caused her fall. Here, the tile in the steps was defective in that it contained cracks, obviously contrary to the original design. Additionally, Tracy’s testimony placed his left crutch in an area of the stair which was dry, clear and smooth except for the cracks. This was sufficient for causation.

The third element of the prima facie case which the village contends was not established is actual or constructive notice of the unsafe condition of the stairs. A local public entity is not liable for an injury unless it is proved that it has actual or constructive notice of the existence of the condition that is not reasonably safe and sufficient time prior to the injury to have taken corrective action. (Ill. Rev. Stat. 1979, ch. 85, par. 3—102; Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 405 N.E.2d 1383; Baker v. City of Granite City (1979), 75 Ill. App. 3d 157, 394 N.E.2d 33.) It is unclear whether notice of the unsafe condition is an element of the plaintiff’s prima facie case or only becomes an issue if lack of notice is raised as an affirmative defense. (See generally Edwards v. Willcutts (1974), 20 Ill. App. 3d 699, 313 N.E.2d 529, stating the rule that a party relying on a statute need not negative an exception or a proviso unless it is contained in the enacting clause rather than a subsequent clause.) However, the distinction is not important here because on appeal the village argues lack of evidence of notice both as a deficiency in Tracy’s prima facie case and as an affirmative defense. Moreover, Tracy does not attempt to argue this distinction. We must address the issue of notice in any event.

A distinction which the parties do argue is the nature of the requisite notice itself. The village concedes that it had notice of the cracks in the stairway tile, but maintains that it did not have notice that the condition was not reasonably safe. Tracy argues that the statute only requires notice of the condition; it is the jury’s function to determine whether that condition was not reasonably safe. Neither party provides authority interpreting the provision at issue.

Section 3 — 102(a) provides in part that “a local public entity *** shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe ***.” (Ill. Rev. Stat. 1979, ch. 85, par. 3—102(a).) The village would suggest a reading of this provision to the effect that it must have notice both of the condition and of the unsafe nature of that condition. However, we believe that the phrase “that is not reasonably safe” modifies the word “condition” and is not meant to list a second element the notice of which must be proved. Thus, our reading is that the village must have notice of a condition which, whether or not the village knows it, happens to be unsafe.

Although we find no case directly addressing this particular issue of statutory interpretation, we do find support for our reading in analogous cases. In City of Murphysboro v. O’Riley (1890), 36 Ill. App. 157, it was held that when a city has notice, either actual or constructive, of the existence of a defect in a sidewalk, it becomes the duty of the city to look after it, and proof at trial that it was dangerous or unsafe is sufficient without proof of notice to the city before the injury that the defect was such a one as rendered the walk unsafe. Therefore, the appellate court affirmed the trial court’s refusal of a jury instruction that stated that, in order for the city to be liable, the plaintiff must prove not only notice of the defect, but also notice of the dangerous character of the defect. While that opinion was rendered long before the 1965 enactment of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 1—101 through 10—101), the notice provision of that statute codified a preexisting common law requirement. (See Boender v. City of Harvey (1911), 251 Ill. 228.) Also, it has been held that under the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69) notice of a condition is notice of a dangerous condition, if the condition is in fact dangerous. Schultz v. Henry Ericsson Co. (1914), 264 Ill. 156; Miller v. DeWitt (1965), 59 Ill. App. 2d 38, 208 N.E.2d 249, aff’d in part, rev’d in part on other grounds (1967), 37 Ill. 2d 273.

The village notes the provision in subsection (b)(1) of section 3—102 that a public entity does not have constructive notice if its reasonably adequate inspection system would not have discovered the existence of the condition and its character of not being reasonably safe. (Ill. Rev. Stat. 1979, ch. 85, par. 3—102(b)(1).) It argues .that this provision lends support to its reading of subsection (a). However, it is consistent with our reading of the notice provision for the legislature to provide that constructive notice be more easily defeated by a defense such as the reasonably adequate inspection system. Particularities of that defense do not necessarily affect the nature of the notice requirement in subsection (a).

Because the village concedes notice of the condition, Tracy has met his prima facie burden, if any, to show notice of the unsafe condition.

For the reasons just stated, the village has not established the prima facie elements of its affirmative defense for lack of notice of the unsafe condition. Since Tracy established a prima facie case and the village did not establish its affirmative defense, the village is not entitled to a judgment notwithstanding the verdict.

The village next raises an evidentiary question related to the notice issue. The trial court refused to permit testimony offered by the village that there had been no prior accidents on that stairway in the past 14 years to which the witness could attest. The village asserts that that evidence was relevant to the issue of its notice of the unsafe condition. The trial court blocked this testimony as irrelevant because the village had, by stipulation to notice of the condition of the stairway, removed that issue from the trial.

Evidence of a history of no accidents is permissible for the limited purpose of showing absence of notice of a dangerous condition, provided that the proof shows that the condition had been unchanged. (Wolczek v. Public Service Co. (1930), 342 Ill. 482; Robinson v. Southwestern Bell Telephone Co. (1960), 26 Ill. App. 2d 139, 167 N.E.2d 793; see discussion in E. Cleary and M. Graham, Handbook of Illinois Evidence sec. 401.15 (3d ed. 1979).) The village stipulated to notice of the condition of the stairway as depicted in Tracy’s photographic exhibit while not stipulating to a defect. However, as discussed, this stipulation was sufficient to prove statutory notice. Once notice of the unsafe condition was removed as a disputed issue in the cause, evidence of the absence of previous accidents became irrelevant. Therefore, there was no error in the trial court’s refusal to permit that proffered testimony.

The village’s final contention relating to the notice issue pertains to jury instructions. It assigns error in the trial court’s refusal of its instructions Nos. 15, 18, and 19 and in the trial court’s giving of Tracy’s instructions Nos. 2 and 3. Defendant’s instruction No. 15 restated in full section 3 — 102. Defendant’s instruction No. 18 and plaintiff’s instruction No. 2, both patterned after Illinois Pattern Jury Instruction (IPI), Civil, No. A20.01 (2d ed. 1981 Supp.), are similar except that the village’s recites its affirmative defenses. Likewise, defendant’s instruction No. 19, patterned after IPI Civil No. A21.03, and plaintiff’s instruction No. 3, patterned after IPI Civil No. A21.02, are similar except that the village’s again recites its affirmative defenses. The trial court’s decision with regard to each of these instructions was predicated on its determination that the defense of notice was no longer in the case. In light of the previous discussions, the trial court did not abuse its discretion with regard to these instructions. See Livings v. City of Chicago (1975), 26 Ill. App. 3d 850, 326 N.E.2d 170, where no error was found in the trial court’s refusal to instruct on the issue of notice in part because the plaintiff’s evidence of notice was such that the trial court might well have found that the defendant-city had constructive notice as a matter of law.

The village contends that the testimony of Tracy and Lynn Barnes, owner of El Adobe Restaurant, regarding Tracy’s lost earnings of the profits on work for which he would have received $7,581 was too speculative. It argues that the prejudice resulting from this testimony coupled with other trial errors warrants a new trial. Testimony as to loss of earnings which is merely speculative, remote or uncertain is improper. (Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, 432 N.E.2d 920.) Most of the village’s criticisms of the loss of earnings testimony are matters affecting credibility only. These criticisms include the following facts: that the firms actually hired by Barnes to do the jobs that Barnes said Tracy would have done did other jobs for Barnes both before and after Tracy’s accident; that Tracy was not licensed as an electrical contractor; that Tracy’s estimations of the profits that he would have received were not documented; and the fact that a late 1980 roof job which Barnes testified that Tracy would have done was not included in a document Barnes had submitted to the village as a list of all work done. The village correctly points out that while Barnes testified that he offered jobs to Tracy in January and May 1980 and knew he was on crutches, Barnes did not testify that he offered any work to Tracy after May 1980. However, Barnes was never specifically asked if he offered Tracy jobs after May 1980 and did affirm that he would have given certain jobs in the latter half of 1980 to Tracy if Tracy had been able to do them.

This testimony, aside from the question of credibility, was not too speculative or uncertain. In order to recover lost earnings, all the law requires is that the plaintiff present evidence which will establish, with a fair degree of probability, a basis for the assessment of damages. (Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143; Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, 425 N.E.2d 1060.) Barne’s positive testimony that he would have hired Tracy but for Tracy’s disability and Tracy’s estimation of profit margin were sufficient. Compare Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, 432 N.E.2d 920, where testimony of the average restaurant owners’ earnings when owning a restaurant was only an ambition of the plaintiff was inadmissible.

In its reply brief, the village notes that Tracy would have been incapable of doing most of the jobs that Barnes listed. This was because Tracy, before the May accident, was scheduled for a July hip replacement operation with an estimated three-month recovery period. However, points not argued in the initial brief may be deemed waived and cannot be raised in a reply brief. (87 Ill. 2d R. 341(e)(7); Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 424 N.E.2d 911.) Thus, we do not consider this argument.

The village next contends that the trial court improperly rejected defendant’s instruction No. 21 and gave plaintiff’s instruction No. 4A. These instructions both pertained to the elements of damages. The difference which the village relies upon is that only Tracy’s contains the element of aggravation of a prior injury. Although this part of the instruction is contained in IPI Civil No. 30.03, the village argues that there was insufficient evidence to support it.

A tortfeasor is liable for the injuries he causes, even though the injuries consist of aggravation of a preexisting condition. (Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451.) If IPI Civil No. 30.03 is applicable, considering the facts and the prevailing law, it should be given. (See Balestri.) If, however, there is no sufficient evidentiary basis for that instruction, it is reversible error to give it. See Falkenthal v. Public Building Com. (1982), 111 Ill. App. 3d 703,444 N.E.2d 498.

Dr. Ritscherle testified for Tracy that the fracture of the femur he received in May 1980 may have aggravated Tracy’s preexisting condition of a restriction of abduction (placing the leg in a spread-eagle fashion away from the midline of the body) by preventing Tracy from doing exercises. Dr. Ritscherle also testified that Tracy’s pain in the left hip area was due to multiple surgeries and he could not rule out the possibility that the fracture, and the constant scarring from the fracture, contributed to the pain. The parties discuss various other portions of Dr. Ritscherle’s and Tracy’s testimony, but these two factors are sufficient evidence of aggravation of a prior condition to warrant giving the challenged jury instruction.

The village next points to three arguments of plaintiff’s counsel at trial, arguing that they were prejudicial by attempting to impose a new legal duty upon the village and by interjecting unfounded theories into the case. First, the village argues that one remark of plaintiff’s counsel attempted to impose a greater duty upon the village for a person, such as Tracy, who was on crutches. Because the village neither objected to the remark during argument nor raised the issue in its post-trial motion, it is waived. Thompson v. Lietz (1981), 95 Ill. App. 3d 384, 420 N.E,2d 232.

Second, the village argues that counsel interjected a new theory of liability pertaining to inadequate lighting on the stairway. During his argument, plaintiff’s counsel said, “we have also stated that the light was not adequate, even though it was a sunny day, you will see the pictures and see ***.” No objection by defense counsel was made. During defense counsel’s argument he noted that “apparently light is now a factor in this” although not raised in the complaint. Plaintiff’s counsel objected. At a sidebar conference, the court noted that the lighting issue was not part of the jury instructions and the issue was not before the jury. Resuming his argument, defense counsel argued that the evidence showed adequate lighting. The village’s post-trial motion does raise the issue of the propriety of plaintiff’s counsel’s lighting argument.

We may consider the challenge to the lighting argument to be waived: at no time during trial did the village object to the argument and ask that the jury be instructed to disregard it. (McElroy v. Force (1967), 38 Ill. 2d 528.) Besides waiver, however, any error in the argument was harmless because the village was permitted to respond and rebut the argument. See Estate of Whittington v. Emdeko National Housewares, Inc. (1981), 96 Ill. App. 3d 1007, 422 N.E.2d 26.

Third, the village points to plaintiff’s counsel’s remarks that “there had never been a place where there was [sic] more cracks or more indentations or more grooves or more gullys [sic],” and that “[t]here’s cracks all over the place.” It argues that these remarks were improper because they drew attention to the whole stairway instead of just to the precise step that Tracy identified as the location of his crutch catching. Again, no objection to these remarks were made at that time, although the issue was raised in the village’s post-trial motion. Thus, this argument may be considered waived. McElroy v. Force (1967), 38 Ill. 2d 528.

No error is apparent in any event. Considerable latitude must be afforded counsel in closing argument. (Northern Trust Co. v. Skokie Valley Community Hospital (1980), 81 Ill. App. 3d 1110, 401 N.E.2d 1246.) Other remarks of plaintiff’s counsel focus in on the precise area of the stairway identified by Tracy as the place his crutch caught. The challenged remarks do not tend to prejudice the jury by giving undue focus on an area not at issue at trial.

Finally, the village contends that the damages awarded were excessive. The jury awarded Tracy $62,500 on the basis of a determination of $125,000 in damages reduced by 50% as a result of Tracy’s comparative negligence. Tracy’s medical expenses totaled $8,200. His lost gross earnings were estimated at $7,581. At closing argument, plaintiffs counsel without objection asked for 50% profit on this latter figure, although Tracy’s testimony placed estimated profit at 30% for materials and 40% for labor. Tracy’s complaint also alleged and his evidence proved injuries in the form of permanent disability and disfigurement and pain and suffering. Dr. Ritscherle testified that the fracture sustained in May 1980 and the scarring resulting from that fracture contributed to Tracy’s persistent pain, to a delay in his muscle development following the prior injury, and to the permanent shortening of his left leg. The last of these necessitated the use of a 3/8-inch heel lift. Dr. Ritscherle also stated that the scarring and the alteration of Tracy’s femur due to the fracture were permanent conditions.

As a general rule, the amount of damages to be awarded is within the jury’s sound discretion, but that discretion is not without limitation. (Stamat v. Merry (1979), 78 Ill. App. 3d 445, 397 N.E.2d 141.) Other cases involving injuries to a hip, leg, or foot have held awards in excess of $125,000 not to be excessive. (See, e.g., Kottmeyer v. Consolidated Rail Corp. (1981), 98 Ill. App. 3d 365, 424 N.E.2d 345; Malone v. A. L. Mechling Barge Lines, Inc. (1978), 63 Ill. App. 3d 756, 380 N.E.2d 497; Elizer v. Louisville & Nashville R.R. Co. (1970), 128 Ill. App. 2d 249, 261 N.E.2d 827; Blyzes v. Midwest Towing Co. (1969), 109 Ill. App. 2d 48, 248 N.E.2d 305.) We note especially the analogous case of McKasson v. Zimmer Manufacturing Co. (1973), 12 Ill. App. 3d 429, 299 N.E.2d 38, wherein a jury award of $175,000 was approved upon proof of $16,000 special damages and upon proof that the plaintiff suffered pain and a permanent shortening of his leg as a result of the breaking of an intramedullary rod, manufactured and distributed by the defendants, which had been implanted in the plaintiff’s left femur. We conclude that a determination of damages in the amount of $125,000, before reduction to $62,500 by the comparative negligence factor, was not so palpably excessive as to indicate that the trier acted from passion, prejudice, or other improper motive.

Accordingly, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

SEIDENFELD, P.J., and HOPF, J., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    KAMAL W. ABDUL-KARIM et al., Plaintiffs-Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHAMPAIGN, Defendant-Appellee.
    Fourth District
    No. 4—82—0809
    Opinion filed July 6, 1983.
    James A. Martinkus, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellants.
    Gary R. Lietz, of Franklin, Flynn & Palmer, of Champaign, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

A “due-on-sale” clause in the mortgage.

But not in the note.

A covenant without a remedy?

No!

The mortgagor is bound by his promise.

We affirm.

The parties signed a mortgage instrument and a promissory note in 1978. The mortgage instrument provided that plaintiffs, Kamal and Leila Abdul-Karim, mortgaged to defendant, First Federal Savings and Loan Association of Champaign (First Federal), property in the city of Champaign to secure the payment of a promissory note executed by plaintiffs payable to First Federal. The mortgage instrument contained, inter alia, a due-on-sale clause which provided:

“If *** in case of the sale of said real estate without the written consent of the Mortgagee, *** then all said mortgage indebtedness shall be at the option of the Mortgagee become due and payable, and this mortgage may be foreclosed ***.”

The promissory note contained plaintiffs’ promise to pay First Federal $400,000 in monthly installments plus interest. The only default provision in the note related to untimely payments of the principal and interest. The note contained no due-on-sale clause, nor was there a clause in the note incorporating the provisions of the mortgage.

Plaintiffs attempted to sell the property in 1981. When First Federal learned of the pending sale it notified plaintiffs that it would either enforce the due-on-sale provision of the mortgage instrument or significantly increase the interest rate to be paid on the loan. Plaintiffs responded by filing a complaint in the circuit court of Champaign County seeking (1) a declaration of rights under the mortgage instrument and note, (2) an injunction to prevent First Federal from either enforcing the due-on-sale clause or increasing the interest charged on the loan, and (3) money damages resulting from plaintiffs’ inability to sell their home. The trial court entered summary judgment in favor of First Federal and plaintiffs appealed.

I

Plaintiffs, citing 2140 Lincoln Park West v. American National Bank & Trust Co. (1980), 88 Ill. App. 3d 660, 410 N.E.2d 990, argue that the absence of a due-on-sale clause in the note renders the due-on-sale clause in the mortgage instrument unenforceable. In 2140 Lincoln Park West, the plaintiff bank attempted to enforce a due-on-sale clause in a trust deed by foreclosing on the deed after the defendant transferred property subject to the deed. The appellate court, relying on Conerty v. Richtsteig (1942), 379 Ill. 360, 41 N.E.2d 476, and Oswianza v. Wengler & Mandell, Inc. (1934), 358 Ill. 302, 193 N.E. 123, stated:

“We believe the reasoning in Conerty and Oswianza to be sound and therefore adopt it. Applying the rationale in those cases to the facts presented here, we find the trust deed and the note are wholly independent documents, and unless there is sufficient language in the note that would incorporate a provision in the trust deed, that provision is entirely ineffective as to the note. It follows, therefore, that [the due-on-sale clause] of the trust deed is ineffective in triggering acceleration of the note as there is no language in the note that would so provide. Consequently, there can be no foreclosure of the trust deed since acceleration of the note necessarily precedes foreclosure. As a result, [the foreclosure provision] of the trust deed never becomes operative.” (88 Ill. App. 3d 660, 664, 410 N.E.2d 990, 993.)

While the court noted that its “harsh outcome” resulted in a covenant without a remedy, it pointed out that “the drafters of the provision could have used more appropriate language in its drafting so as to insure an adequate remedy in the event of a breach.” 88 Ill. App. 3d 660, 664, 410 N.E.2d 990, 993.

We also believe the reasoning of Oswianza and Conerty to be sound; however, the rationale of those cases does not require the result reached in 2140 Lincoln Park West.

In Oswianza, the plaintiff brought suit to recover the principal and interest due on bonds which were issued by the defendant and secured by a trust deed. The defendant argued that the suit was barred because the trust deed contained a “no action” clause which vested every right of action on the debt in the trustee and specifically extinguished the right of a bond holder to sue on a bond secured by the trust deed. The supreme court took note of the universal rule of contract construction that instruments made at the same time and as part of the same transaction should be construed as constituting a single instrument. However, the court stated that there was a well recognized exception in cases of mortgages and notes. It was held in Oswianza that in order to make a provision in the mortgage part of the bond, the bond must specifically refer to the particular clause in the mortgage and adopt it by reference. But see Provident Federal Savings & Loan Association v. Realty Centre, Ltd. (1983), 97 Ill. 2d 187, where the court did not require an incorporation clause in the mortgage instrument to specifically refer to a due-on-sale clause in the note.

In Conerty, the defendant executed a promissory note which was secured by a mortgage. The mortgage instrument provided that payments on the note would be made according to the note or according to any agreement extending the time of the payments. The defendants conveyed the mortgaged property, and the grantee assumed the mortgage. Subsequently, the grantee and the note holder entered into several agreements to extend the time of payment on the note. When the grantee defaulted on the payments, the note holder foreclosed and obtained a deficiency judgment against the defendants based on their liability on the note. The defendants argued that the suit against them was barred by the statute of limitations because the due date on the note was July 1, 1925, and the suit was not brought until 1936. The supreme court held that any provision in the mortgage relating to the time of payment could not change or add to the provisions of the note and, therefore, the suit against the defendants was barred.

The clear holdings of Oswianza and Conerty are that a person’s rights and liabilities on a note are unaffected by provisions in a mortgage instrument which are not incorporated in the note.

The court in 2140 Lincoln Park West reasoned that an acceleration of payments on the note was a prerequisite to foreclosure and, since the defendants’ liability on the note was unaffected by the due-on-sale clause in the mortgage, there could be no acceleration, and hence, no foreclosure. This reasoning fails to recognize that acceleration of the mortgage indebtedness may be effective for the purpose of foreclosure even though it would be ineffective for the purpose of maintaining a suit for money damages on the note. Yet, this is precisely the rationale of the out-of-State cases relied on by the supreme court in Conerty in reaching its conclusion that provisions in a mortgage instrument relating to time of payment have no effect on the debtor’s liability under the note.

For example, in White v. Miller (1893), 52 Minn. 367, 54 N.W. 736, a bond holder brought suit on a bond after the defendants defaulted on a payment on one of several bonds. The Supreme Court of Minnesota held that the bond holder could not sue on the bonds before the maturity date appearing on the face of the bonds even though a provision in the mortgage instrument contained an acceleration clause with respect to the indebtedness on all bonds upon a default in payment on any bond. The court noted that the bond holder’s remedy was to foreclose on the mortgage since the acceleration clause was effective for the purpose of foreclosure. Quoting from McClelland v. Bishop (1884), 42 Ohio St. 113, the court stated:

“ ‘The stipulation in the mortgage should be construed as providing a remedy in the mortgage, and that, so far as foreclosure proceedings are concerned, the notes for that purpose are due, but for general purposes the obligations on the notes are to be determined by their own expressed terms. In this way, both contracts can stand, and be fully enforced according to the manifest intention of the parties.’ ” (Emphasis ours.) 52 Minn. 367, 375, 54 N.W. 736, 738. See also Baird v. Meyer (1927), 55 N.D. 930, 215 N.W. 542.

The court in Conerty was well aware of the rationale of the foregoing cases, for it stated:

“It has been held by the courts of several States that a provision in a mortgage for an acceleration of maturity extends only to the right to foreclose the mortgage and subject the property pledged to the payment or reduction of the debt, and that the mortgage and note are separate contracts. ***.
These cases hold that the acceleration of the time of payment when authorized in the mortgage does not accelerate the maturity date of the debt as provided in the note, or in any way affect the liability of the maker of the note, which constitutes the contract on which his personal liability is based.” 379 Ill. 360, 366-67, 41 N.E.2d 476, 479.

In the present case, plaintiffs’ personal liability on the note was unaffected by the due-on-sale clause in the mortgage instrument. However, First Federal, as mortgagee (as opposed to note holder), would have a right to foreclose the mortgage even though it would not have a right to obtain a money judgment against plaintiffs in a suit on the note.

We hold that when a due-on-sale clause appears only in a mortgage instrument and is not incorporated in the underlying note, the mortgagee — upon the mortgagor’s default of the due-on-sale clause and pursuant to the clause — may maintain an action to foreclose the mortgage.

II

In Fidelity Federal Savings & Loan Association v. de la Cuesta (1982), 458 U.S. 141, 73 L. Ed. 2d 664, 102 S. Ct. 3014, the Supreme Court held that the Home Owners’ Loan Act of 1933 (12 U.S.C., sec. 1461 et seq. (1976), empowered the Federal Home Loan Bank Board to issue regulations authorizing due-on-sale clauses in the loan contract of Federal savings and loan associations and that the Board’s regulations preempted conflicting State limitations on the due-on-sale practices of Federal savings and loan associations. Plaintiffs argue that a decision by this court to uphold the enforceability of the due-on-sale clause in their mortgage would conflict with Federal regulations which, according to plaintiffs, require a due-on-sale clause to appear in the promissory note in order to be valid. Plaintiffs cite 12 C.F.R. sec. 545.8—3(f), at 195 (1982), which provides:

“Due-on-sale clauses. An association continues to have the power to include, as a matter of contract between it and the borrower, a provision in its loan instrument whereby the association may, at its option, declare immediately due and payable sums secured by the association’s security instrument if all or any part of the real property securing the loan is sold or transferred by the borrower without the association’s prior written consent.” (Emphasis added.)

Plaintiffs contend that “loan instrument” means only the promissory note and not the mortgage instrument. Therefore, according to plaintiffs, the due-on-sale clause in their mortgage instrument was invalid.

First, there is little to support plaintiffs’ contention that the drafters of the Federal regulations intended “loan instrument” to mean only the promissory note. The regulations provide no definition of the phrase “loan instrument” and such phrases .as “loan instrument,” “loan contracts,” and “mortgage loan contracts” appear to be used haphazardly throughout the regulations. See 12 C.F.R. secs. 545.8—3(f), 556.9(f)(2) (1982).

Second, plaintiffs’ contention is emasculated by the fact that in Fidelity Federal the due-on-sale clauses appeared in the trust deed and there was no reference to a due-on-sale clause in the promissory notes. The opinion in Fidelity Federal stated, “Each deed of trust contained a due-on-sale clause.” (Emphasis added.) (458 U.S. 141, 148, 73 L. Ed. 2d 664, 672, 102 S. Ct. 3014, 3019.) In a footnote it was stated, “*** appellees are deprived of no vested rights if Fidelity is permitted to enforce the due-on-sale clauses in the two pre-1976 deeds." (Emphasis added.) (458 U.S. 141, 171 n.24, 73 L. Ed. 2d 664, 686 n.24, 102 S. Ct. 3014, 3031 n.24.) The Supreme Court clearly considered a mortgage instrument to be a “loan instrument” within the meaning of 12 C.F.R. sec. 545.8—3(f) (1982).

We find that our decision in the present case does not conflict with Federal regulations governing the due-on-sale practices of Federal savings and loan associations.

Ill

First Federal filed a motion in this court for attorney fees incurred in defending this appeal. It relies on the mortgage instrument which provided in part:

“If the Mortgagee *** be a party to any suit, *** relating to the premises *** all costs of such proceedings, and any review thereof, including all reasonable attorney’s and solicitor’s fees so incurred by the Mortgagee * * * shall become a part of the Mortgage indebtedness *** and may be included in any judgment or decree rendered.”

The record discloses that First Federal filed a motion with the trial court — also based on the foregoing provision — for attorney fees incurred during proceedings below. This motion was denied and First Federal did not challenge this ruling by cross-appeal. The trial court found that First Federal was not entitled to attorney fees under the provision in the mortgage instrument. As a result of First Federal’s failure to cross-appeal from the court’s ruling, the ruling has become the law of the case and we refrain from passing on the issue raised in First Federal’s motion in this court. (See 5 C.J.S. Appeal and Error sec. 1464(1), at 666 (1958).) First Federal’s motion for attorney fees is stricken.

The judgment of the trial court is affirmed.

Affirmed.

WEBBER, P.J., and GREEN, J., concur.