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SIXTH DIVISION
December 12, 2003

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Plaintiff Daniel Bulger sued defendants, the Chicago Transit Authority (CTA) and Tony E.Williams, for personal injuries plaintiff incurred when he was struck by a CTA bus driven by Williams. Bulger's wife, plaintiff Rodica Lung, sued for loss of consortium. After a trial, the jury returned averdict in plaintiffs' favor. However, the jury found Bulger 50% contributorily negligent and reducedthe damages award accordingly.

On appeal, defendants seek a new trial on the issue of liability, contending that the trial courtimproperly admitted the CTA's post-accident disciplinary measures, that admission of those measureswas highly prejudicial, and that because the CTA's internal rules and procedures lack the force of law,they should not have been incorporated into the jury instructions as evidence of negligence. Oncross-appeal, plaintiffs seek a new trial on both liability and damages. They contend that the jury'sfailure to award Lung any damages for loss of consortium and the jury's minimal damages award forpain and suffering were not justified by the evidence and are inconsistent with the extensive awardfor medical expenses. Plaintiffs further contend that judgment notwithstanding the verdict shouldhave been granted because no evidence established that Bulger was contributorily negligent or thata new trial should be granted as the result of cumulative error.

We reverse and remand for a new trial on liability and damages.

The accident at issue took place around 11:30 a.m. on March 29, 1995, at the intersection ofDearborn and Polk Streets in Chicago. Polk runs east-west, while Dearborn runs north-south, dead-ending at Polk to the south. Bulger was crossing Dearborn from east to west and Williams wasturning left from Polk onto Dearborn when the accident occurred.

At trial, Bulger testified that he walked up to the northeast corner of Dearborn and Polk,waited for a car on Polk to take a right turn onto Dearborn, and then started walking across the streetin the crosswalk. He was about half way across when he was hit by a bus. Bulger stated that he was"knocked off [his] feet and some distance to the north." Eventually, an ambulance took Bulger tothe hospital, where he was treated and released. Bulger testified to several injuries that resulted fromthe accident. On cross-examination by defendants, Bulger insisted that he did not see the bus untilit hit him and acknowledged his deposition testimony that he was approximately four steps into theintersection when he was hit.

An eyewitness to the accident, Ken Kotz, testified that Bulger was walking in the crosswalkwhen he was hit by a bus and knocked backward to the ground. Kotz recalled the bus stopping inthe turn lane on Polk and then accelerating as it turned left onto Dearborn. Kotz did not recall seeingBulger look in the direction of the bus or stop at the curb before entering the intersection.

Williams testified that he came to a complete stop at the stop sign on Polk and put on his leftturn signal. When the intersection and crosswalks were clear, he proceeded to make a left turn ontoDearborn, driving three to five miles per hour. About four or five feet beyond the crosswalk onDearborn, the front left corner of the bus hit Bulger, whom Williams had not seen before impact. Williams "mashed" the brakes and saw Bulger falling backwards onto the ground. Williams got outof the bus to assist Bulger. Later, Williams told a police officer at the scene, "[Bulger] must have ran[sic] out, I don't know where he came from, just a pedestrian all of a sudden appeared in front of thebus."

Williams further testified that the CTA determined he had violated their internal rules, and asa result, he was given additional training. According to Williams, the additional one-day training,which was attended by a number of employees, "consisted of making left-hand turns, intersectionprocedures, pedestrians in crosswalks and basically when you put on your turn signals, stuff like thatas far as approaching the intersection and being aware of everything within that intersection and notbeing -- coming in contact with anything or anybody."

Willy Lipsey, who was employed as a transportation manager for the CTA in March 1995,testified that he was involved in the investigation of the accident. Lipsey went to the scene of theaccident and, a few days later, prepared a "Special Occurrence Report" based solely on his interviewwith Williams. Lipsey did no independent investigation. In the report, Lipsey indicated that Williamshad violated the CTA's internal rule B.4.6.1 and the CTA's standards of procedure (SOPs) 150, 416,417, and 8132. Lipsey testified that Williams was sent to retraining and acknowledged that not everydriver involved in an accident is retrained. He explained why he charged Williams with rule violationsand sent him to retraining.

On cross-examination by defendants, Lipsey stated that the point of retraining is to "correctany bad habits that bus operators might have developed." He further indicated that he did not haveany independent knowledge that Williams had any bad habits that needed correcting, but decided tosend Williams to retraining "due to the accident." He testified that the fact Williams was sent toretraining did not have anything to do with who actually caused the accident, stated that operatorsinvolved in accidents are sent to retraining a "majority of the times," and agreed that retraining is "anautomatic function of the CTA." He also stated that he had reached no conclusions about whetherWilliams saw the pedestrian. On redirect, Lipsey clarified that drivers are not sent to retraining "allthe time," and agreed that whether drivers are sent "has to do with [his] determination as to whetheror not this driver was going to need retraining." On re-cross-examination, he agreed that his decisionto send Williams for retraining was "pretty automatic."

Dr. Aref Senno testified that he examined Bulger on March 30, 1995, the day after theaccident. At that time, Bulger complained of headache and pain in his neck, right foot, and left eye. Dr. Senno diagnosed Bulger with spasm of the neck muscles. He prescribed Bulger an analgesic anda muscle relaxant, ordered a neck X ray, and referred Bulger to a chiropractor. About three weekslater, Dr. Senno, with the agreement of the chiropractor, ordered an MRI (magnetic resonanceimaging) of Bulger's right shoulder. For a time, Bulger "became better and better," yet his neck painwould come and go. When Bulger's reports of shoulder pain did not subside by 1997, Dr. Senno andthe chiropractor enlisted the services of an orthopedic surgeon, Dr. Leonard Smith, who ordered anMRI for Bulger's right shoulder and eventually operated on that shoulder in 1998. In 1999, whenBulger returned to Dr. Smith with complaints of pain in his neck, Dr. Smith ordered an MRI of thatarea. The MRI revealed a herniated disk in Bulger's neck, for which Dr. Smith advised furtherphysical therapy. Dr. Senno stated his opinion, to a reasonable degree of medical and surgicalcertainty, that the accident caused injury to Bulger and that the injuries were permanent.

On cross-examination, Dr. Senno reviewed a number of complaints or reports of pain madeby Bulger after his original release from care on August 5, 1995. Specifically, Dr. Senno confirmedthat Bulger returned on September 16, 1995, complaining of pain in his right shoulder that developedfrom an activity. Bulger returned on December 2, 1995, complaining of a flare-up of right shoulderpain and stiffness. On January 18, 1996, Bulger reported to the chiropractor that he experiencedsharp shoulder pain at the base of his neck when he lifted a bag; on January 29, 1996, Bulger reported"an incident" that aggravated his right shoulder; and on June 14, 1996, he reported acute flare-up ofshoulder pain due to reaching. On December 30, 1996, he reported exacerbation of back and rightshoulder pain. On February 20, 1997, Dr. Senno referred Bulger to Dr. Smith for an orthopedicconsult regarding the shoulder, and Dr. Smith took an MRI on April 26, 1997. On June 18, 1997,Dr. Smith made a notation in his records that "[p]atient exacerbation of right shoulder developedduring activity." Bulger complained of feeling pain in his neck and right shoulder while involved inactivity on November 15, 1997; complained of acute flare-up with stiffness in his shoulder and neckon May 15, 1998; and reported exacerbation of right shoulder pain on June 19, 1998. Afterreviewing these complaints and reports of pain, Dr. Senno agreed that after Bulger was initiallyreleased from treatment, he injured or exacerbated injuries to his shoulder or neck several times whileengaging in activities such as reaching or carrying a bag.

On re-cross-examination, Dr. Senno agreed that it was probable that Bulger suffered fromtendinitis in his right shoulder before the accident, as repetitive motion can create tendinitis. However, he insisted that "the affect and the action point to the accident" as a cause. Dr. Senno alsoacknowledged that in the time between the 1995 and the 1997 MRIs of Bulger's right shoulder,"there were several incidents during activities in which [Bulger] hurt his shoulder and his neck."

Dr. Leonard Smith, the orthopedic surgeon to whom Dr. Senno had referred Bulger, testifiedthat he first examined Bulger on March 11, 1997. At that time, Bulger complained of shoulder painand weakness, and Dr. Smith's physical findings were a restriction of motion and pain in internalrotation and abduction of the shoulder. An MRI of Bulger's shoulder from 1995 suggested tendinitisand a possible tear of the rotator cuff. Because the MRI was old, Dr. Smith ordered a new MRI ofthe right shoulder in April 1997. This MRI was suggestive of persisting tendinitis localized to thearea of attachment of the supraspinatus tendon, which is part of the rotator cuff, and an incompletetear. Based upon Bulger's clinical condition and the MRI, Dr. Smith felt there was a high degree ofprobability that Bulger's rotator cuff was torn. Accordingly, Dr. Smith operated on the shoulder. During the surgery, Dr. Smith confirmed tendinitis and partial rupture of the tendon and repaired thetear. The surgery also revealed a congenital defect in Bulger's shoulder that caused a portion of hisshoulder to be narrower than normal. While asymptomatic, the condition would have renderedBulger more susceptible to injury.

Dr. Smith stated his opinion, based upon the history given to him by Bulger and the lack ofevidence of any other preexisting symptomatic conditions, that the torn rotator cuff was more likelythan not the result of the accident. Dr. Smith also opined that Bulger's torn rotator cuff and tendinitiswould be productive of pain, and that his condition could be partially disabling due to pain, associatedweakness, and some limitation of function. He stated that the operation he performed does notproduce 100% recovery, strength, or range of motion, and that due to scarring, which tends to leadto some inflammation, some residual permanent impairment always exists as a result of a torn rotatorcuff. With regard to Bulger's surgery, Dr. Smith stated, "I would say it was successful, but there isstill some permanent impairment." As of trial, Bulger still experienced some limitation of motion andsome weakness. Dr. Smith also indicated that Bulger's future impairment might include stiffness,soreness, and a minor degree of pain.

Dr. Smith further testified that he later became involved in the care and treatment of Bulger'sneck. An MRI of Bulger's neck, taken on August 9, 1999, was suggestive of a herniated disk. According to Dr. Smith, the type of herniated disk Bulger suffered from causes headaches and painin the neck. Dr. Smith testified that a second MRI of Bulger's neck, taken in April 2000, showed nosignificant change. Based on the absence of any prior symptoms or neck problems, Dr. Smith opinedthat the herniated disk in Bulger's neck was related to the accident. He also stated his opinion thatelements of Bulger's neck problem were going to be permanent and indicated that if the symptomsdid not subside with medication and therapy, future surgical correction was a possibility.

Dr. Smith stated that he diagnosed Bulger with postconcussion syndrome even though theresults of both an EEG (electroencephalogram) and a CAT (computerized axial tomography) scanwere negative. In the absence of objective indications of the syndrome, Dr. Smith based his diagnosison Bulger's symptoms and subjective complaints, such as headaches. Based on the lack of priorcomplaints of headaches, Dr. Smith opined that Bulger's postconcussion syndrome was caused bythe accident. He further opined that "some part of" the syndrome would be permanent.

Following deliberations, the jury returned a verdict for plaintiffs, awarding $66,000 for pastmedical expenses, $50,000 for future medical expenses, $110,000 for past and future disability,$3,000 for past pain and suffering, and $24,000 for future pain and suffering. However, the juryfound Bulger 50% contributorily negligent and reduced the damages award accordingly. The jurygave no award to Lung for loss of consortium.

ADMISSION OF EVIDENCE OF POST-ACCIDENT REMEDIAL MEASURES

We begin our analysis with defendants' contention that the trial court improperly allowedevidence that Williams was "charged" with violating internal CTA rules and procedures regardingoptimal defensive driving techniques and that the CTA sent Williams for safe driving retraining. Defendants argue that the law requires the exclusion of post-accident remedial measures offered toprove negligence. Plaintiffs respond that the trial court properly allowed the admission of the CTA'ssubsequent remedial measures under the holding of Pearl v. Chicago Transit Authority, 177 Ill. App.3d 499 (1988).

A trial court's decision regarding whether to admit evidence is reviewed for abuse ofdiscretion. Gill v. Foster, 157 Ill. 2d 304, 312-13 (1993). Where a trial court abuses its discretionin admitting evidence, a new trial should be ordered only when the improperly admitted evidenceaffected the outcome of the trial. Schmidt v. Ameritech Illinois, 329 Ill. App. 3d 1020, 1040-41(2002), citing Tzystuck v. Chicago Transit Authority, 124 Ill. 2d 226, 243 (1988).

In general, evidence of post-accident remedial measures is not admissible to prove priornegligence. Herzog v. Lexington Township, 167 Ill. 2d 288, 300 (1995). The plaintiff in Herzogclaimed that the absence of signs on the roadway led to his single-car accident. The trial courtexcluded, as post-accident remedial measures, evidence of the defendant placing additional signs onthe roadway following the accident. The appellate court reversed the trial court and allowed theevidence of post-accident remedial measures as impeachment. The Illinois Supreme Court found thatbecause the defendant did not exaggerate the safety of the roadway, the plaintiff was not entitled toimpeach this testimony with evidence of post-accident remedial measures. Herzog, 167 Ill. 2d at 303.Our supreme court in Herzog provided several reasons for the post-accident remedial measuresexclusionary rule: (1) a strong public policy favors encouraging improvements to enhance publicsafety; (2) subsequent remedial measures are not considered sufficiently probative of prior negligence,because later carefulness may simply be an attempt to exercise the highest standard of care; and (3)a jury may view such conduct as an admission of negligence. Herzog, 167 Ill. 2d at 300.

There are several exceptions to the general rule excluding evidence of post-accident remedialmeasures. Evidence of a defendant's post-accident remedial measures may be admitted where thedefendant did not act voluntarily, but was required to act by an outside governmental authority. SeeLoCoco v. XL Disposal Corp., 307 Ill. App. 3d 684, 693 (1999); Gaunt & Haynes, Inc. v. MoritzCorp., 138 Ill. App. 3d 356, 365 (1985); Millette v. Badosta, 84 Ill. App. 3d 5, 19 (1980). Additionally, we are mindful that evidence of a defendant's post-accident remedial measures may beadmissible for purposes such as proving ownership or control of property where disputed by thedefendant, proving feasibility of precautionary measures where disputed by the defendant, orimpeachment without inference of prior negligence. Herzog, 167 Ill. 2d at 300-03. Regarding theuse of post-accident remedial measures as impeachment, Herzog cautioned as follows:

"Just as evidence of subsequent remedial measures is not consideredsufficiently probative to be admissible to prove prior negligence, thatevidence is not admissible for impeachment where the sole value ofthe impeachment rests on that same impermissible inference of priornegligence.

Allowing such evidence in these circumstances would swallowthe general rule prohibiting the introduction of subsequent remedialmeasures and frustrate the policy considerations that support it. Inevery case, a defendant will dispute that his prior conduct wasnegligent. Once a defendant disputes his or her negligence at trial, aplaintiff could always seek to introduce evidence of subsequentremedial measures under the guise of impeachment. Thus, the generalrule of excluding evidence of subsequent remedial measures would beswallowed by the impeachment exception. Furthermore, contrary tothe policies supporting the general rule, parties to lawsuits would bediscouraged from making improvements for fear that such actionswould be used against them at trial.

Where the impeachment value rests on inferences other thanprior negligence, such evidence may be admitted where its probativevalue outweighs the prejudice to defendant." Herzog, 167 Ill. 2d at301-02.

Based on the record, we find that none of the "exceptions" to the general rule apply in theinstant case. Here, the value of the evidence that Williams was charged with violating CTA rules andsent to retraining rested upon the impermissible and highly prejudicial purpose of proving defendants'negligence. The CTA's internal rules were incorporated into the jury instructions regarding evidenceof negligence. Plaintiffs' counsel, in arguing against defendants' motion to bar this evidence, statedthat evidence of CTA rule violations and retraining "will all help the jury understand what theresponsibilities are as to whether or not there is negligence." Moreover, the evidence of CTA ruleviolations and retraining was not offered to show ownership of property, prove feasibility ofprecautionary measures, or impeach any witness. The record does not reflect that the CTA wasrequired to investigate, charge, and discipline Williams by any outside governmental authority. Instead, the CTA did so under its own voluntary internal policy. In essence, the CTA voluntarilydecided to investigate the accident, charge Williams with various violations, and send him toretraining. Thus, the CTA's actions fell within the scope of inadmissible post-accident remedialactions, and evidence of those actions should have been barred. The admission of the evidence wasnot harmless. As noted above, the value of the evidence rested upon the highly prejudicial purposeof proving prior negligence. See Herzog, 167 Ill. 2d at 300.

Plaintiffs argue that our decision on this issue should be controlled by Pearl v. ChicagoTransit Authority, 177 Ill. App. 3d 499 (1988). In Pearl, a pedestrian was struck and injured by aCTA bus. A garage superintendent from the CTA testified in Pearl that he reviewed the accident andprepared a disciplinary report and suspension notice. Pearl, 177 Ill. App. 3d at 500. The notice ofsuspension indicated that the bus driver had violated rules contained in the CTA bus system rule bookpertaining to observation of intersection traffic signals, proceeding through intersections, and generaladherence to defensive driving practices. Pearl, 177 Ill. App. 3d at 500-01. The CTA garagesuperintendent testified that before being returned to service, the bus driver participated in a retrainingprogram. Pearl, 177 Ill. App. 3d at 501. A controller from the CTA testified as to the bus driver'sviolation of the CTA's internal defensive driving rules and the driver's suspension. Pearl, 177 Ill.App. 3d at 501. Additionally, a bus service instructor testified regarding the driver's retraining. Pearl, 177 Ill. App. 3d at 501-02.

In reviewing whether this testimony should have been admitted, the Pearl court noted thattestimony pertaining to post-accident remedial measures generally is excluded in negligence cases,and explained that the rationale for this general rule is that parties should not be discouraged fromundertaking safety measures. Pearl, 177 Ill. App. 3d at 503. The court then explained why thegeneral rule did not apply in the Pearl case:

"That rationale, however, finds no apparent application here becausethe testimony adduced at trial related to procedures automaticallyundertaken as a matter of CTA policy whenever an operator wasinvolved in an accident with a pedestrian. We have difficultyunderstanding why the general rule prohibiting testimony ofsubsequent remedial measures should obtain in this case as the reasonfor the rule, the likelihood of discouraging the undertaking of safetymeasures, would seem obviated by mandated CTA policy." Pearl,177 Ill. App. 3d at 503.

Pearl recognized the general rule prohibiting testimony of post-accident remedial measuresand further noted that the rationale for the rule was that parties should not be discouraged fromundertaking safety measures. Pearl, 177 Ill. App. 3d at 503. After the Pearl court explained whythis rule did not apply, the court concluded that it need not decide the appeal on the basis of thegeneral rule prohibiting testimony of post-accident remedial measures because the testimony at issuein Pearl could not properly be characterized as evidence of post-accident remedial measures. Pearlindicated as follows:

"However, we need not decide this appeal on this basisbecause, after reviewing the testimony of Hinman, Morton, andWilliams, we cannot conclude that that evidence, consisting generallyof the evaluation of Billups' driving ability, may properly becharacterized as post-occurrence remedial measures. Rather, thattestimony established the evaluations made by CTA supervisorypersonnel of Billups' knowledge and ability to operate his bus safelyat the time of the accident and, as such, constituted admissions whichthe trial judge properly permitted as evidence." Pearl, 177 Ill. App.3d at 503-04.

Pearl found that the post-accident remedial measures exclusionary rule did not apply, and thenproceeded to characterize the testimony at issue as admissions rather than evidence of post-accidentremedial measures. In the instant case, relying on Pearl, the trial court allowed evidence of post-accident remedial measures as admissions. Allowing such an admissions "exception" would swallowthe general rule prohibiting the introduction of post-accident remedial measures and frustrate thepolicy considerations that support it. Furthermore, contrary to the policies supporting the generalrule, parties to lawsuits would be discouraged from making improvements or taking increased safetymeasures for fear that such actions would be used against them at trial. See Herzog, 167 Ill. 2d at301-02.

The Illinois Supreme Court in Herzog recognized the risk that the trier of fact may viewevidence of post-accident remedial measures as an admission of negligence and noted that concernas one of the reasons for excluding such evidence. Herzog, 167 Ill. 2d at 300. Thus, Pearl'sadmission exception is in conflict with Herzog. In addition, Pearl's admission exception is in conflictwith the rationale behind the "long-standing rule" that evidence of subsequent remedial measures isnot admissible as proof of negligence. See Schaffner v. Chicago & North Western TransportationCo., 129 Ill. 2d 1, 14 (1989), citing Grubb v. Illinois Terminal Co., 366 Ill. 330, 351 (1937), Hodgesv. Percival, 132 Ill. 53, 56-57 (1890), Lundy v. Whiting Corp., 93 Ill. App. 3d 244, 251-52 (1981),and M. Graham, Cleary & Graham's Handbook of Illinois Evidence