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FIFTH DIVISION
September 1, 2000

Plaintiff, Rosa Kresin (Kresin), brought suit againstdefendants Sears Roebuck and Company (Sears) and Alfredo Jijon(Jijon) (collectively defendants) for injuries she sustained whenJijon, a Sears employee, struck her as he backed a van out of aSears Automotive Center (Auto Center) in St. Charles, Illinois. Ajury returned a verdict in Kresin's favor in the amount of $16.5million, which was reduced to $15,691,690 million after deducting5% for Kresin's negligence. Defendants contend on appeal that: (1) the jury's verdict with respect to Sears' liability was against themanifest weight of the evidence; (2) the jury's allocation of 60%of the fault to Sears was against the manifest weight of theevidence; and (3) the jury's damage award was excessive. For thereasons that follow, we affirm.

Sears operates a retail store with an automotive center at theCharlestown Mall in St. Charles, Illinois. On June 1, 1996, RosaKresin, age 73 at the time of the incident, shopped at the SearsAuto Center and purchased a new battery for her vehicle. Atapproximately 1:40 p.m., Kresin used the "Diehard Express" door toleave the store. The Diehard Express door is located next to theservice bay area, which is used to service vehicles.

Jijon was an employee of Sears at the time and was driving aChevrolet Astro van that had been recently serviced in the servicebay area nearest the Diehard Express door. Jijon backed the vanout of the service bay and hit Kresin, who was crushed under thevan and suffered severe injuries.

Count I of Kresin's complaint was based upon the doctrine ofrespondeat superior and alleged that Jijon, individually and as anemployee of Sears, failed to exercise ordinary care in theoperation of the van and that his failure to do so proximatelycaused Kresin's injuries. Count II of Kresin's complaint alleged,inter alia, that Sears failed to adequately train and instruct itsemployees regarding the safety procedures applicable to theoperation of vehicles in close proximity to the Diehard Expressdoor of the store's Auto Center.

During trial, Edward Sosniak testified that, at the time ofthe accident, he was the store manager. Sosniak testifiedregarding the physical layout of the store and stated that, inorder for customers to enter and exit the Sears store, they had towalk out through the parking lot that adjoined the Auto Center. Sosniak testified that he was aware that vehicles were backed outof the service bay area through the pedestrian area andaccompanying parking lot.

After describing the store layout, Sosniak was asked whetherone of the safety issues addressed while he was store managerrelated to the danger created by both vehicle and foot traffic whenbacking vehicles out of the service bay area. Sosniak agreed thatthis issue had been raised and that there was concern "about thesafety of backing out of these bays." He testified that, duringhis period as store manager, safety meetings were held andemployees were told to be careful and to use common sense whenbacking out of the service bay area to avoid colliding with othervehicles or pedestrians. Despite this concern, Sosniak admittedthat there were no warning signs posted for pedestrians. Therewere only two signs posted in the Auto Center regarding safety: onesign asked customers not to park in front of the service bay doorsand the other sign, posted along the walkway adjacent to theservice bay area leading from the Diehard Express entrance/exit,stated, "Safety Requirements Prohibit Customers From Entering WorkArea."

Sosniak also admitted that Sears had an employee safety andhealth manual which, among other items, required employees to checkbehind a vehicle before backing up. However, Sosniak furtheradmitted that the safety manual was not provided to employees.

Both Alan Delbusto and Robert Ream, automotive techniciansemployed by Sears at the time of the accident, testified that theynever received a safety manual and were never given instructionsabout safety precautions to use when backing vehicles out of theservice bay area.

Jijon also testified that he did not receive a safety manualand that he did not receive any training with regard to backing outof the service bay area. Jijon testified that he was told to "lookout" and "be careful" and that he thought that these instructionswere sufficient because it was common sense to check behind avehicle before backing out. On the date of the accident, Jijon didnot walk behind the van before he backed out of the service bayarea, nor did he give a warning before he backed out. Jijonadmitted that he did not look in the mirror nor does he remember ifhe turned and looked over his shoulder to check for clearancebefore backing out. Jijon testified that he "glanced towards thedriveway" behind the van before initially backing up, stopped whenthe front of the van was even with the doorway to allow traffic toclear, and continued to back up. The van only went a shortdistance before stopping abruptly after hitting Kresin, who landedunderneath the van with her head near the right rear tire. Kresinhas no memory of the accident and could not testify as to whathappened.

Kresin suffered severe injuries as a result of the accident,including facial, rib, leg and collarbone fractures, and a skullfracture which caused permanent blindness. She underwent multiplesurgical procedures and has a permanent shunt underneath her skinfrom her head to her abdominal cavity to drain excess fluid.

Kresin is also wheelchair bound and can no longer stand orwalk unaided. She is incontinent and cannot shower, bath or usethe bathroom without assistance. Furthermore, she is only able tomake minimal movements with her left leg and suffers from a flexioncontracture in her left arm and hand. This condition leaves herunable to straighten her left elbow and causes her left hand to bebent over with the fingers clinched back in a clawed or fistposition.

Kresin remained in the hospital for approximately two monthsafter the accident. During her hospital stay, she developedseveral infections, including hydrocephalus and meningitis. Kresin also suffered a stroke, which caused paralysis in her leftleg and partial weakness in her leg and arm.

Kresin was then transferred to a nursing home facility whereshe resided for approximately nine months and received speech,occupational and physical therapy. She left the nursing home inMay 1997 and moved in with her son and his family.

Prior to the accident, Kresin was in good health. She livedalone, maintained her home, drove a vehicle and did her ownshopping. Now, she requires 24-hour-a-day assistance. At the timeof trial, an aide provided care five times a week with Kresin's sonand other family members providing care the rest of the time. Inher deposition testimony, Dr. Elizabeth Joseph testified that, inher opinion, Kresin would never be independent in the activities ofdaily living.

At the close of Kresin's case, the trial court denied Sears'motion for a directed verdict and found that she had establishedthat Sears failed to adequately train and instruct its employeeswith respect to backing vehicles out of the service bay area.

At the close of evidence, the jury returned a verdict inKresin's favor, itemized as follows:

Reasonable medical expenses $176,000

Present cash value of future
reasonable medical expenses $ 223,380

reasonable expense of past 
caretaking $ 187,000

Pain and suffering present and future $6,000,000

Disability $7,000,000

Disfigurement $2,000,000.

The jury found Kresin 5% at fault, Jijon 35% at fault and Sears 60%at fault for a total award of $15,691,690.

Sears then filed a posttrial motion seeking a judgmentnotwithstanding the verdict, a new trial on liability and damages,or, in the alternative, remittitur. The trial court denied Sears'motion and this timely appeal followed.

Before turning to the merits, we first address the parties'procedural arguments. Kresin asserts that Sears' challenge to thefinding of liability in count I is waived because Sears failed tochallenge count I in its posttrial motion. Kresin argues that theentire argument presented by Sears on the issue of its liability isdirected solely to the evidence as it relates to count II. Inresponse, Sears argues that the posttrial motion asked the court togrant a judgment notwithstanding the verdict in favor of Sears oncount II, to vacate the jury's allocation of fault, and order a newtrial. Sears asserts that because its posttrial motion requesteda new trial, this request encompassed a new trial on count I aswell.

Sears' posttrial motion stated as follows:

"For the reasons stated herein and in Defendants' Memorandum in Support of Their Posttrial Motion,defendants respectfully request that this Court grantjudgment notwithstanding the verdict in favor of Sears oncount II, vacate the jury's allocation of fault, andorder a new trial, or in the alternative, a substantialremittitur."

Posttrial motions are required so as to afford the trial courtthe opportunity to review decisions and to prevent parties fromraising arguments on appeal which the trial court did not have theopportunity to consider. Gorman v. Shu-Fang Chen, M.D., Ltd., 231Ill. App. 3d 982, 991, 596 N.E.2d 1350 (1992). Pursuant to section2-1202(b) of the Code of Civil Procedure, "[t]he posttrial motionmust contain the points relied upon, particlularly specifying thegrounds and support thereof, and must state the relief desired, asfor example, the entry of a judgment, the granting of a new trialor other appropriate relief." 735 ILCS 5/2-1202(b) (West 1998). Moreover, Supreme Court Rule 366(b)(2)(iii) states that, in jurycases, "[a] party may not urge as error on review of the ruling onthe party's posttrial motion any point, ground, or relief notspecified in the motion." 155 Ill. 2d R.366. We hold that becauseSears specifically requested a new trial, this request included arequest on all counts of the complaint.

Sears also argues that it did not address count I in itsposttrial motion because the jury may have been confused as to theallocation of comparative fault between the parties in the verdictform. Sears argues that the jury should have been given a verdictform with instructions to allocate fault between only two parties(Kresin and Jijon), instead of three (Kresin, Sears and Jijon),because without the independent basis for liability in count II,the jury would not have been asked to apportion any fault to Searsand there would not have been a separate line on the verdict formfor Sears. Sears also argues that the allocation-of-fault issuenecessarily impacts count I because the jury's assessment ofresponsibility for the accident applied to both counts and there isno way to know how the jury would have allocated fault between onlyKresin and Jijon.

In response, Kresin maintains that Sears had an opportunity topresent a verdict form that would have separated the findings onthese two counts but chose not to do so. Kresin further arguesthat Sears did not object to the jury's finding on count I duringtrial or at the posttrial stage and that the verdict form on countI named both Jijon and Sears.

While defendants argue that the jury might have been confusedas to the allocation of fault between the parties, the record showsthat the jury did not seek clarification from the trial court anddid not otherwise appear confused about the instructions or itsrole. Furthermore, as Kresin points out, Sears did not object tothe jury verdict form during the instruction conference or when theform was read to the jury. Therefore, any objections are waived. Forrester v. Patrick, 167 Ill. App. 3d 105, 109, 520 N.E.2d 1188(1988); Marek v. Stepkowski, 241 Ill. App. 3d 862, 870, 608 N.E.2d285 (1992).

We also reject Sears' argument that, because the jury assessedliability on count II as well as count I, the amount of Kresin'scontributory negligence (5%) was affected. There is no basis tobelieve that the jury would have found Kresin more negligent ifonly count I had been before it.

Kresin next argues that because Sears filed a notice of appealwhich specified that defendants sought to vacate count II only, butwhich did not seek to set aside the verdict on count I, Sears isbarred from now seeking to set aside the judgment and verdict asentered on count I. She argues that defendants' failure to specifythat they were also appealing from count I failed to vest thiscourt with jurisdiction to review it. Defendants maintain thatbecause the notice of appeal specifically included a request for anew trial, this also meant a new trial as to count I since a newtrial could not be granted unless the final judgment is also setaside.

Defendants' notice of appeal stated as follows:

"Defendants request that the Appellate Court

(1) reverse the judgment of the court below denyingSears's [sic] request for entry of judgment as a matterof law in favor of Sears on count II of plaintiff'scomplaint, (2) vacate the jury's allocation of fault, (3)order a new trial, and (4) order such other relief as itdeems just and proper. In the alternative, defendantsrequest that the Appellate Court reduce the damagesawarded to the plaintiff."

A notice of appeal is to be liberally construed. Jackson v.Retirement Board of Policemen's Annuity and Benefit Fund, 293 Ill.App. 3d 694, 698, 688 N.E.2d 782 (1997). The notice of appealserves to inform the prevailing party in the trial court that theunsuccessful litigant seeks a review by a higher court. Briefs,and not the notice of appeal itself, specify the precise points tobe relied upon for reversal. Burtell v. First Charter ServiceCorp., 76 Ill. 2d 427, 433, 394 N.E.2d 380 (1979). The touchstoneis whether the trial court was adequately apprised of the groundsrelied on. Brown v. Decatur Memorial Hospital, 83 Ill. 2d 344, 415N.E.2d 337 (1980). Unless an appellee is prejudiced, anappellant's failure to strictly comply with the form of the noticeof appeal is not fatal if the deficiency is one of form rather thansubstance. Burtell v. First Charter Service Corp., 76 Ill. 2d at434.

In the case at bar, Kresin has not claimed that she has beenprejudiced by the errors in the notice of appeal. Indeed, Kresinwas able to fully brief and argue the issues raised by defendants'brief. Furthermore, she was clearly informed that defendants wereseeking a new trial and, inferentially, a vacation of the priorjudgment, since a new trial could not be granted unless thejudgment as to count I was also considered. See Illinois BellTelephone Co., v. Purex Corp., 90 Ill. App. 3d 690, 693, 413 N.E.2d106 (1980). Thus, we hold that the notice of appeal was adequate toadvise Kresin of the judgments challenged and the relief sought,thereby apprising her of the nature of the appeal.

We now turn to the merits of the appeal. Sears contends thatthe verdict on count II is legally unsupportable because Kresinfailed to present affirmative evidence establishing with reasonablecertainty that Sears did not adequately train its employees inbacking up vehicles and that Sears negligently caused plaintiff'sinjuries. Sears asserts that there was no evidence at trial tosupport the conclusion that it was negligent in instructing itsemployees or that its failure to provide more detailed instructionsproximately caused the accident.

In response, Kresin asserts that Sears was aware of thepotential danger, and prepared safety literature to be given to itsemployees, but failed to bring to its employees' attention thewarnings and procedures which would have emphasized the need forcaution. Kresin further argues that Sears voluntarily undertook toprepare safety manuals and to conduct safety meetings to bring thisparticular danger to the attention of its employees. Searsresponds that when an employee is already aware of a potentialhazard, it would be futile for the employer to give additionalwarnings and therefore no warning was required. See Kokoyachuk v.Aeroquip Corp., 172 Ill. App. 3d 432, 439, 526 N.E.2d 607 (1988).

When a trial court is presented with a motion for a new trialon the basis of insufficiency of the evidence, it must grant sucha motion only if the verdict is contrary to the manifest weight ofthe evidence. Gaffney v. City of Chicago, 302 Ill. App. 3d 41, 59,706 N.E.2d 914 (1998). We hold that this argument involves issuesthat were questions of fact for the jury to determine. As the jurydecided this issue based on the evidence before it, we see nocompelling reason to disturb the jury's verdict. The inquiry onappeal is not whether other conclusions are possible. Rather, theinquiry is whether the result reached is reasonable. See Nunley v.Village of Cahokia, 115 Ill. App. 3d 208, 214, 450 N.E.2d 363(1983). Here, the result was reasonable. Sosniak testified thatsafety meetings were held in which the backing out of service bayswas discussed. Furthermore, Sears prepared a safety manual thatspecifically addressed backing out of service bays. Although noaccident had occurred prior to the one in this appeal, the locationof the service bay next to the doors used by pedestrians to enterand exit the Auto Center, coupled with the inherent danger inoperating a motor vehicle near pedestrians, required Sears toprovide more instruction to its employees. Therefore, we hold thatKresin presented sufficient evidence to establish that Sears failedto adequately train and instruct its employees on safety procedures to use in operating vehicles near customers and pedestrians in theAuto Center.

Sears also contends that the award of noneconomic damages wasexcessive. The award of damages is not subject to scientificcomputation and thus is generally a question of fact for thediscretion of the jury. Dahan v. UHS of Bethesda, Inc., 295 Ill.App. 3d 770, 692 N.E.2d 1303 (1998). We must examine whether thetotal amount of the verdict falls within the necessarily flexiblelimits of fair and reasonable compensation, or is so large as toshock the judicial conscience. Dahan, 295 Ill. App. 3d at 781. Whether an award of damages falls within the reasonable range mustbe determined from a consideration of the permanency and extent ofthe injury, possible future deterioration, medical expenses, andrestrictions on daily activity because of the injury. Tierney v.Community Memorial General Hospital, 268 Ill. App. 3d 1050, 1064,645 N.E.2d 284 (1994); Mondelli v. Checker Taxi Co., 197 Ill. App.3d 258, 280, 554 N.E.2d 266 (1990).

Sears specifically argues that the disfigurement award of $2million was grossly excessive, particularly considering Kresin'sinjuries and her age. In support of its contentions, it attemptsto compare Kresin's case to a hypothetical situation in which achild or young adult with a longer life expectancy is severelydisabled. It is well settled that we have "traditionally declinedto make such comparisons in determining whether a particular awardis excessive." Richardson v. Chapman, 175 Ill. 2d 98, 114, 676N.E.2d 621 (1997). Thus, we will not engage in such a comparison.

Defendants also urge us to find the $2 million disfigurementaward excessive because the jury's consideration of Kresin'sinability to use her hands goes only to her disability, and hasnothing to do with disfigurement.

"Physical '[d]isability' is defined as '[a]bsence of competentphysical, intellectual, or moral powers; *** incapacity caused byphysical defect or infirmity.' [Citation.] The term 'disfigure'means 'to make less complete, perfect or beautiful in appearance orcharacter.' [Citation.]" Antol v. Chavez-Pereda, 284 Ill. App. 3d561, 570, 672 N.E.2d 320 (1996), quoting Holston v. Sisters of theThird Order of St. Francis, 165 Ill. 2d 150, 175, 650 N.E.2d 985(1995).

The evidence at trial established that Kresin is unable tostraighten her left elbow and that her hand is so contorted that itis permanently fixed in a claw-like position. Kresin also suffersfrom paralysis in her left leg. These injuries certainly affectKresin's appearance and constitute sufficient disfigurement tojustify the jury's award.

We also hold that the record supports the damage award in itsentirety. Kresin presented uncontradicted evidence of the extentand severity of her injuries, the type of necessary medicaltreatment and the home care that she requires for the rest of herlife, and the profound and permanent impact of those injuries onKresin and her family. Consequently, we cannot say that the amountof the jury's verdict for the injuries that Kresin sustained isshocking to a judicial conscience with present-day awareness of thequality of life that a healthy 73-year-old woman can have. We holdthat the jury award does not exceed a fair and reasonable amountand will not be disturbed on review.

Based on the aforementioned reasons, the judgment of thecircuit court of Cook County is affirmed.

Affirmed.

HARTMAN and GREIMAN, JJ., concur.