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SECOND DIVISION
APRIL 13, 2004

This is a negligence action arising from an incident onSeptember 25, 1998, in which the plaintiff, Virginia Luye, wasinjured while exiting a taxicab driven by codefendant MichaelSchopper and owned by codefendant Garden City Cab (Garden). InApril 2001, Luye filed a three-count complaint alleging: (1)Schopper was negligent in failing to either hold the cab dooropen while she was exiting or to take steps to ensure the cabdoor would not close; (2) Schopper was an employee of Garden andwas acting as an agent of Garden when the alleged negligenceoccurred; and (3) res ipsa loquitur. Following trial in October2001, the jury returned an itemized verdict awarding Luye$247,580.45, $112,000 of which was for aggravation of apreexisting condition. The defendants filed a motion for post-trial relief in November 2001, which was denied in January 2002. Subsequently, this appeal was filed in February 2002, pursuant toSupreme Court Rule 303 (155 Ill. 2d R. 303).

On appeal, the defendants raise three issues: (1) whetheraggravation of a preexisting condition is a separate andcompensable element of damages in addition to pain and sufferingand loss of a normal life; (2) whether the evidence supported thejury instruction and verdict form allowing recovery foraggravation of a preexisting condition; and (3) whether theverdict on aggravation of a preexisting condition was against themanifest weight of the evidence or, alternatively, whether anaward of $112,000 for aggravation of a preexisting condition wasexcessive. Luye responds claiming the verdict was not againstthe manifest weight of the evidence, the award was not excessive,and the trial court properly tendered Illinois Pattern JuryInstructions, Civil, Nos. 30.03 and 30.21 (3d ed. 1995)(hereinafter IPI Civil 3d) on the issue of aggravation of apreexisting condition. Luye further contends that the trialcourt properly tendered an itemized verdict form listingaggravation of a preexisting condition. Luye also argues thatthe defendants' brief does not comply with supreme court rulesand, further, that there are no actual issues to be considered bythis court as grounds for appeal.

BACKGROUND

On September 25, 1998, Schopper picked up Luye and hersister, Agnes Margalus, from the grocery store and drove them toLuye's home. Luye was seated in the backseat of the cab on thepassenger side. When the cab arrived at Luye's home, Schopperreached across with his right hand, opened the rear passengerdoor and held it open for a moment before he went to open theother door for Margalus. While Schopper was holding the dooropen for Luye, she was putting her left foot outside the car, butafter Schopper let go of the door, it closed on Luye's leg, shin,and ankle. Luye cried out when the door closed and her leg waspinned for a few seconds until Schopper came around and held thedoor open. Luye told Schopper her leg hurt and remained in thecab for a few moments before Schopper helped her up the stairs toher apartment. At the time of the accident, Luye's leg had nocuts and she did not call a doctor.

Approximately one week after the accident, Luye noticed herleg was hurting and that it was beginning to discolor. There wasalso a lump and liquid under the skin. Luye went to ChristHospital in Oak Lawn, where they took X rays for fractures andtested for blood clots. The results of both were negative. Luyewas released with instructions to take Tylenol and to follow upwith her doctor, Dr. Lee Waidzunas. Luye saw Dr. Waidzunas, buther leg did not improve. Luye returned to Christ Hospital andwas hospitalized for two days. At the hospital, her ankle wasbandaged, she was given intravenous antibiotics, pus was drainedfrom her leg, and her leg was elevated.

Over the next couple years, Dr. Waidzunas continued to treatLuye for her injury. The healing was slow and riddled withrecurring low-grade infections. Dr. Waidzunas prescribedantibiotics, skin cream, and anti-inflammatory medication. Luyetestified she had never injured her leg prior to the incident onSeptember 25, 1998. However, Dr. Waidzunas testified that priorto the September 25, 1998 incident, Luye had a history ofperipheral vascular disease (a circulatory condition), whichprimarily affected her right side; however, Luye had vascularproblems in both legs. Dr. Waidzunas testified the accident madea "bad situation worse" regarding her left leg.

At the time of trial, Luye had three scars on her left legand was experiencing neuropathic pain of five to six on a scaleof 10. Dr. Waidzunas defined neuropathic pain as pain from nervetrauma, usually from a crushing injury. Luye's leg continued tobe painful and discolored and sensitive to touch and water. Additionally, Luye walked with a cane.

At the close of evidence, over the defendant's objection,the jury was instructed in accordance with IPI Civil 3d Nos.30.01, 30.03, 30.04.01, 30.05, and 30.06:

"If you find for the Plaintiff, VirginiaLuye, on the question of liability, then youmust then fix the amount of money which willreasonably and fairly compensate her for anyof the following elements of damage proved bythe evidence to have resulted from negligenceof the Defendants.

The reasonable expense of necessarymedical care, treatment and servicesreceived.

The pain and suffering experienced andreasonably certain to be experienced in thefuture as a result of the injuries.

The aggravation of any pre-existingailment or condition.

Loss of a normal life experienced andreasonably certain to be experienced in thefuture.

Whether any of these elements of damagehas been proved by the evidence is for you todetermine."

Additionally, without objection, the jury was instructed inaccordance with IPI Civil 3d No. 30.21: "If you decide for theplaintiff on the question of liability, you may not deny or limitthe plaintiff's right to damages resulting from this occurrencebecause any injury resulted from an aggravation of a pre-existingcondition or a pre-existing condition which rendered theplaintiff more susceptible to injury."

The jury was then given a verdict form as set out below:

"We, the jury find for Virginia Luye andagainst Michael Schopper and Garden CabCompany. We assess the damages in the sum of$______, itemized as follows:

The reasonable expense of necessary medicalcare, treatment and services received.

$______

The pain and suffering experienced as aresult of the injuries.

$______

The pain and suffering reasonably certain tobe experienced in the future as a result ofthe injuries.

$______

The aggravation of any pre-existing ailmentor condition.

$______

The loss of a normal life experienced.

$______

The loss of a normal life reasonably certainto be experienced in the future.

$______"

The defendants objected to the inclusion of the aggravation ofany preexisting ailment or condition as a separate itemized element of damages in both the jury instructions and the juryverdict form. The jury returned an itemized verdict awardingLuye a total of $247,580.45, with $112,000 designated for theaggravation of a preexisting ailment or condition.

The defendants filed a motion for posttrial relief based onSmith v. City of Evanston, 260 Ill. App. 3d 925, 631 N.E.2d 1269(1994), regarding the inclusion of aggravation of a preexistingailment as a separate itemized element of damages. In January2002, the trial court denied the defendants' motion andquestioned whether Smith was still good law. In denying thedefendants relief, the trial court stated:

"THE COURT: [W]ith regard to the givingof a jury instruction having, as an elementof damages, aggravation of a preexistingcondition and also being a damage instructionin the 30.01-plus series, the -- And theCourt is aware of Smith v. City of Evanston,and my own personal feeling about it is Ipersonally do not like aggravation of apreexisting condition as an element ofdamages.

However, cases subsequent to Smith inthe First District have said that it is anappropriate element of damages. And therehave been other cases that have said Smithshould not be followed with regard to theissue of loss of a normal life, and it shouldbe disability. There is a divergence ofopinion in the First District.

The author of the Smith opinion is nolonger sitting on the Appellate Court. Thejudges that have written those subsequentopinions are presently sitting on theAppellate Court. There may be a sway in theAppellate Court, at least in the FirstDistrict, maybe that Smith would not befollowed. Smith is not followed in otherdistricts -- Appellate Districts in the Stateof Illinois.

The Supreme Court, to my knowledge, hasnot ruled on those specific issues; however,even subsequent to the Smith v. City ofEvanston decision, the Illinois Supreme Courtcommittee on pattern jury instructions incivil cases has seen fit to keep aggravationof a preexisting condition as a compensableelement of damages.

And for those reasons -- even thoughpersonally I do not like that as an elementof damages, and I can understand Counsel'sconcern that there may be overlap -- I thinkit is an element of damages that a jury canconsider if there is a factual basis for it.

***

Can there be overlap? You know, ifyou're considering overlap between pain andsuffering, disability and loss of a normallife and aggravation of a preexistingcondition, yeah, perhaps there is overlapbetween all of those. I mean, maybe that'swhy you look in FELA [Federal Employers'Liability Act] cases. Those are not allelements that might be compensable; some maybe included in others. But right now, that'snot the law in Illinois, that they should beincluded in one."

ANALYSIS

On appeal, the defendants raise three issues: (1) whetheraggravation of a preexisting condition is a separate andcompensable element of damages in addition to pain and sufferingand loss of a normal life; (2) whether the jury instruction andverdict form for aggravation of a preexisting ailment weresupported by the evidence; and (3) whether the verdict onaggravation of a preexisting condition was against the manifestweight of the evidence or, alternatively, whether an award of$112,000 for aggravation of a preexisting condition wasexcessive. The defendants have not challenged the finding thatLuye sustained new injuries resulting from the accident or thefinding that the defendants were responsible for those injuries. Additionally, the defendants do not challenge the amount of thejury award unrelated to the aggravation of a preexistingcondition.
 

I. Compliance With Supreme Court Rules

As a preliminary note, this court addresses Luye's claimthat the defendants' brief does not comply with supreme courtrules and presents no actual issues to be considered by thiscourt as grounds for appeal. Luye claims the defendants fail toset out the necessary standards of review and, accordingly, thedefendants' brief does not comply with supreme court rules. Wedo not agree. The applicable standards of review are set out inthe defendants' main brief, which we find to be cogent andpersuasive.
 

II. Jury Instructions and Verdict Form

1. Elements of Damages

On appeal, the defendants first question whether aggravationof a prior existing condition is a separate compensable elementof damages and whether the trial court erred in treating it assuch. "The trial court has discretion to determine whichinstructions to give the jury and that determination will not bedisturbed absent an abuse of that discretion." Schultz v.Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260,273, 775 N.E.2d 964 (2002). Specifically, the trial court hasthe discretion to determine if a particular jury instruction isapplicable, supported by evidence in the record, and an accuratestatement of the law. Lewis v. Haavig, 337 Ill. App. 3d 1081,1085-86, 788 N.E.2d 758 (2003) (trial courts have discretion todetermine whether an instruction is applicable and an accuratestatement of the law); Demos v. Ferris-Shell Oil Co., 317 Ill.App. 3d 41, 56, 740 N.E.2d 9 (2000) ("An instruction is justifiedif it is supported by some evidence in the record, and the trialcourt has discretion in deciding which issues are raised by theevidence"). "The standard for deciding whether a trial courtabused its discretion is whether, taken as a whole, theinstructions fairly, fully, and comprehensively appraised thejury of the relevant legal principles." Schultz, 201 Ill. 2d at273-74.

Once a trial court determines an instruction is to be given,then Supreme Court Rule 239(a)(177 Ill. 2d R. 239(a)) creates apresumption that the Illinois Pattern Instructions (IPI) are tobe used. Kravcik v. Golub & Co., Inc., 286 Ill. App. 3d 406,411, 676 N.E.2d 668 (1996). Rule 239(a) requires a trial courtto use the IPI when it contains an instruction applicable in acivil case and the court determines that the jury should beinstructed on the subject, unless the court determines that theIPI does not accurately state the law. 177 Ill. 2d R. 239(a);Snelson v. Kamm, 204 Ill. 2d 1, 31, 787 N.E.2d 796 (2003).

We first address whether IPI Civil 3d No. 30.03, allowingaggravation of a preexisting condition as a separate compensableelement of damages, is an accurate statement of the law inIllinois. Because this is a pure question of law, we review thisissue de novo. Hendricks v. Riverway Harbor Service St. Louis,Inc., 314 Ill. App. 3d 800, 808, 732 N.E.2d 757 (2000) ("[t]heissue of what law is used to assess damages is a question of lawand is reviewed de novo").

When IPI Civil 3d No. 30.03 is given, the phrase "[t]heaggravation of any pre-existing ailment or condition" is insertedbetween the two paragraphs of IPI Civil 3d No. 30.01 so that thecombined instruction reads:

"If you decide for the plaintiff on thequestion of liability, you must then fix theamount of money which will reasonably andfairly compensate him for any of thefollowing elements of damages proved by theevidence to have resulted from the[negligence] [wrongful conduct] [of thedefendant] ***.

The aggravation of any pre-existingailment or condition.

Whether any of these elements of damageshas been proved by the evidence is for you todetermine." IPI Civil 3d Nos. 30.01, 30.03.

IPI Civil 3d No. 30.21, which should be given whenever IPI Civil3d No. 30.03 is given, states:

"If you decide for the plaintiff on thequestion of liability, you may not deny orlimit the plaintiff's right to damagesresulting from this occurrence because anyinjury resulted from [an aggravation of apre-existing condition] [or] [a pre-existingcondition which rendered the plaintiff moresusceptible to injury]." IPI Civil 3d No.30.21.Here, the trial court gave both IPI Civil 3d No. 30.03, which wasobjected to, and IPI Civil 3d No. 30.21, which was not objectedto.

The defendants first argue the trial court erred in givingIPI Civil 3d No. 30.03 and a verdict form that allowed Luye torecover for aggravation of a preexisting ailment or condition, inan itemized amount, separate and apart from the amounts awardedfor pain and suffering and for loss of normal life. Morespecifically, the defendants appeal the use of IPI Civil 3d No.30.03 based on Smith.

We carefully examine the language of IPI Civil 3d No. 30.03and the cases cited by the instruction to determine whether IPICivil 3d No. 30.03 is an accurate statement of Illinois law. Most pattern jury instructions are based on case law thatpredates the use of itemized verdicts. Smith, 260 Ill. App. 3dat 933. The comment following IPI Civil 3d No. 30.03 cites twocases as holding that "[a]n aggravation of a pre-existing ailmentor condition has been held to be a separate element ofcompensable damages in Illinois": Behles v. Chicago TransitAuthority, 346 Ill. App. 220, 231, 104 N.E.2d 635 (1952), andWheeler v. Roselawn Memory Gardens, 188 Ill. App. 3d 193, 543N.E.2d 1328 (1989).

The instruction given in Behles reads:

"'If you find that the defendant was guiltyof one or more of the acts of negligence ascharged in plaintiff's Amended Complaint andthat prior to and at the happening of theoccurrence alleged in said Amended Complaint,plaintiff was in the exercise of ordinarycare for her own safety, and if you furtherfind that plaintiff was injured as a directand proximate result of the said occurrenceas alleged in said Amended Complaint, thenyou are instructed that the plaintiff isentitled to recover for the aggravation of apre-existing ailment or condition to theextent that you may find such aggravation, ifany, to be the natural and proximate resultof the accident alleged in said AmendedComplaint.'" Behles, 346 Ill. App. at 231.The Behles court read this instruction as charging "the jury thateven though they agreed with defendant's medical theory ofruptured aneurysm, plaintiff nevertheless was not remediless ifthe jury found that the blow on the head was the proximate causeof the ultimate brain damage." Behles, 346 Ill. App. at 232. Nowhere in the Behles decision does the court say an aggravationof a preexisting condition is a separate element of compensabledamages.

In Wheeler, the plaintiff was injured by two separatetortfeasors. Wheeler, 188 Ill. App. 3d at 196. The courtprovided the jury with two instructions. First, the courtprovided IPI Civil 2d No. 12.04, providing:

"'More than one person may be to blame forcausing an injury. If you decide that thedefendants were negligent and that theirnegligence was a proximate cause of injury tothe plaintiff, it is not a defense that somethird person who is not a party to the suitmay also have been to blame.'" Wheeler, 188Ill. App. 3d at 202.

The defendant argued that this was an error because there weretwo injuries from two parties. Wheeler, 188 Ill. App. 3d at 202. The court agreed that, given alone, IPI Civil 2d No. 12.04 wouldhave been an error, but the court found that it was given withother instructions, including one that told the jury to take theinstructions as a whole, not picking out one and disregarding therest. Wheeler, 188 Ill. App. 3d at 203. In addition to theabove instruction, the jury received an instruction on damagesthat was similar to IPI Civil 3d No. 30.03. Wheeler, 188 Ill.App. 3d at 203. However, that instruction, similar to IPI Civil3d No. 30.03, was not an issue in the Wheeler decision and thecourt never ruled on whether it was a correct reading of the law. Wheeler, 188 Ill. App. 3d at 203. The court never held thataggravation of a preexisting condition is a separate element ofcompensable damages. Wheeler, 188 Ill. App. 3d 193. The courtnoted that when the plaintiff's injuries consist of anaggravation of a preexisting condition, the elements-of-damagesinstruction alone is inadequate and must be supplemented. Wheeler, 188 Ill. App. 3d at 203-04. However, the courtsupplemented the elements-of-damages instruction with a non-IPIinstruction similar to IPI Civil 3d No. 30.21, reading that aplaintiff's right to recover damages is not barred or limited bya preexisting condition. Wheeler, 188 Ill. App. 3d at 203. Infact, nowhere in the opinion does the court find an aggravationof a preexisting ailment or condition to be a separate element ofcompensable damages. Wheeler, 188 Ill. App. 3d 193.

In these two cases it is clear that the jury was to considerthe aggravation of a preexisting condition when determiningdamages in accordance with the instruction. However, allowingthe jury to consider the aggravation of a preexisting conditionis not the same as allowing the jury to separately award foraggravation of a preexisting condition. See, e.g., Powers v.Illinois Central Gulf R.R. Co., 91 Ill. 2d 375, 383, 438 N.E.2d152 (1982). Neither of these cases holds, as the comments to IPICivil 3d No. 30.03 suggest, that aggravation of a preexistingcondition or ailment is a separate element of damages.

The Illinois Supreme Court has held that patterninstructions are not exempt from challenge. Powers, 91 Ill. 2dat 385. Pattern instructions do not receive advance approval bythe Illinois Supreme Court and are only approved or rejectedthrough judicial questioning and consideration. Powers, 91 Ill.2d at 385.

We find that the Behles and Wheeler decisions do notsupport the IPI's assertion that aggravation of a preexistingailment or condition is a separate element of compensable damagesunder Illinois law. In fact, rather than providing directsupport for the use of IPI Civil 3d No. 30.03, we read the Behlesdecision as holding that the plaintiff may not be denied damagesor be awarded limited damages because she had a preexistingailment or condition, as set out in IPI Civil 3d No. 30.21, whichthe defendants did not challenge.

In Smith, the appellate court determined aggravation of apreexisting condition did not constitute a separate element ofdamages because it would overcompensate plaintiffs due to theoverlap of aggravation of a preexisting injury with awards forother elements of damages. Smith, 260 Ill. App. 3d at 935-36. The Smith court held that although the aggravation of apreexisting injury should be taken into account in awardingdamages, it was error for the trial court to give the jury aninstruction and itemized verdict form with aggravation of apreexisting condition as a separate element of damages. Smith,260 Ill. App. 3d at 935. In reaching its decision, the Smithcourt relied on the reasoning of the Illinois Supreme Court inPowers, where the Court reversed a portion of a judgment that wasbased upon an itemized award for the "nature, extent andduration" of an injury because it was redundant of otherelements, such as pain and suffering, economic loss, anddisability. Smith, 260 Ill. App. 3d at 935; Powers, 91 Ill. 2dat 379. Citing Powers, the Smith court reasoned:

"Just as the court in Powers could find nomeasure for the nature of the injury as aseparate element of damages, we find nomeasure for the value of aggravation of apreexisting condition that is separate fromthe other elements of damages. A juryappraising the monetary value of aggravationof the condition needs to look to theincrease in medical costs, the earnings lostwhich would not have been lost by reason ofthe preexisting condition alone, the increasein pain and suffering, and the worsening ofdisabilities and disfigurement. As Grahamstated, 'Any change in the plaintiff'sailment or condition, being an injury initself, is measured by its consequences tothe plaintiff in the form of the appropriateelements of damage.' [Citation]. An awardfor aggravation of a preexisting conditionoverlaps with awards for all of the otherelements of damages, so inclusion ofaggravation of conditions as a separateelement leads to the same possibility ofovercompensation that led the court in Powersto rule against the use of nature of theinjury as a separate element of damages,despite the approval of that as a separatecategory of damages in the IPI instructionsthen in effect. *** We hold that under thereasoning of Powers, aggravation of apreexisting condition is not a separateelement of damages. It is, like the nature,extent and duration of the injury, a matterto take into account when assessing theproper, separable elements of damages." Smith, 260 Ill. App. 3d at 935-36.

Since the Smith decision, there has been some disagreementabout whether aggravation of a preexisting condition is aseparate element of compensable damages. In denying thedefendants' posttrial motion, the trial court recognized thisdisagreement in stating "[t]here may be a sway in the AppellateCourt, at least in the First District, maybe that Smith would notbe followed. Smith is not followed in other districts --Appellate Districts in the State of Illinois."

The trial court was incorrect in its statement that Smithhas not been followed. First, both the First District and theFourth District have followed Smith. Subsequent to Smith, thiscourt, in Tedeschi v. Burlington Northern R.R. Co., 282 Ill. App.3d 445, 450-51, 668 N.E.2d 138 (1996), cited Smith with approvaland stated, "the category of aggravation of a preexistingcondition is not distinguishable from the other categories ofdamages." The court went on to question what an award foraggravation of a preexisting condition covers apart from theother categories of compensation. Tedeschi, 282 Ill. App. 3d at451. The Fourth District in Boehm v. Ramey, 329 Ill. App. 3d357, 365, 771 N.E.2d 493 (2002), followed Smith and held, "[a]naward of damages for aggravation of a preexisting conditionoverlaps with any award obtained for all of the other elements ofdamages." The Boehm court further held "there is no need forIllinois Pattern Jury Instructions, Civil, No. 30.03 if No. 30.21is given." Boehm, 329 Ill. App. 3d at 365.

Second, most of the disagreement has been with the Smithholding that "loss of normal life" should be used in juryinstructions rather than "disability." See, e.g., Turner v.Williams, 326 Ill. App. 3d 541, 551, 762 N.E.2d 70 (2001)(discussing Smith with regard to the "loss of normal life"instruction); Snelson v. Kamm, 319 Ill. App. 3d 116, 142, 745N.E.2d 128 (2001) (finding "the Smith court acted as a de factoIPI committee" in holding "loss of normal life" should be usedinstead of "disability" and disagreeing with Smith on thatground); Tornabene v. Paramedic Services of Illinois, Inc., 314Ill. App. 3d 494, 502, 731 N.E.2d 965 (2000) (finding that adisability instruction should be given instead of one on "loss ofnormal life"); Jones v. Chicago Osteopathic Hospital, 316 Ill.App. 3d 1121, 1135-6, 738 N.E.2d 542 (2000) (finding errorbecause the jury was provided with an instructions that includedboth "disability" and "loss of normal life"); Van Holt v.National R.R. Passenger Corp., 283 Ill. App. 3d 62, 75, 669N.E.2d 1288 (1996) (finding under a Federal Employers' LiabilityAct suit, "loss of normal life" should not be an independentground for damages); Natalino v. JMB Realty Corp., 277 Ill. App.3d 270, 278, 660 N.E.2d 138 (1995) (finding Smith did not applyin the instant case).

Only a handful of cases have disagreed with theSmith holding that aggravation of a preexisting condition is nota separate element of compensable damages. See, e.g., Kravcik,286 Ill. App. 3d 406; Podoba v. Pyramid Electric, Inc., 281 Ill.App. 3d 545, 551, 667 N.E.2d 167 (1996) (finding "[t]hecombination of IPI Civil 3d No. 30.03 and IPI Civil 3d No. 30.21correctly sets forth the law that a tortfeasor is liable forinjuries he causes, including the aggravation of a preexistingcondition, and adequately instructs 'the jury that the damagesassessed should not be reduced because the disability was due inpart to a preexisting condition ***.' [Citations.]"); Reed v.Union Pacific R.R. Co., 185 F.3d 712 (7th Cir. 1999).

Citing to Behles, the Kravcik court found that IPI Civil 3dNo. 30.03 provides that aggravation of a preexisting condition isa separate element of compensable damages in Illinois. Kravcik,286 Ill. App. 3d at 411. However, as discussed above, Behles hasbeen misread and does not stand for this proposition. Inaddressing Smith, the Kravcik court found Smith to be a deviation"from the 'plethora' of cases holding that the aggravation of apreexisting condition is a separate element of compensabledamages." Kravcik, 286 Ill. App. 3d at 412. However, the"plethora" of cases Kravcik refers to is limited to Behles,Wheeler, and Ficken v. Alton & Southern Ry. Co., 255 Ill. App. 3d1047, 625 N.E.2d 1172 (1993). Kravcik, 286 Ill. App. 3d at 411-13. The court declined to follow Smith because "it ignored priorwell-reasoned case law and the established pattern juryinstructions." Kravcik, 286 Ill. App. 3d at 413. However, asdiscussed above, Behles and Wheeler have been misread and do notsupport that IPI Civil 3d No. 30.03 is an accurate statement ofIllinois law. The holding in Kravcik is not completely at oddswith Smith, as pointed out by appellants' counsel, "[Kravcik]crucially *** went on to 'affirm the trial court's rejection ofthe instruction regarding the itemization for the aggravation ofany preexisting ailment or condition as a separate item ofdamages in the verdict form.' [Kravcik], 286 Ill. App. 3d at414."

Our review of the cases cited in the comments to IPI Civil3d No. 30.03 demonstrates that they do not support theproposition that aggravation of a preexisting condition is aseparate element of compensable damages in Illinois. We findSmith, in relying on the analysis in Powers, to be well-reasonedand an accurate statement of Illinois law. Applying the Smithcourt's reasoning in this case, we find there was an overlapbetween aggravation of a preexisting condition and the otherelements of damages. The award for aggravation of a preexistingcondition is not separate and distinct from pain and sufferingand loss of a normal life.

Based on our discussion of the misapplication of law in IPI30.03 and the reasoning of the courts in Smith and Powers, wehold IPI Civil 3d No. 30.03 should not have been given to thejury. Even if the review of the validity of IPI Civil 3d No.30.03 is not a question of law, we find providing IPI Civil 3dNo. 30.03 was an abuse of discretion under the facts presented inthis case because it allowed for duplicative damages.

The defendants have not challenged the jury's liabilityfinding, but have requested a new trial on damages or, in thealternative, remittitur. "The practice of ordering a remittiturof excessive damages has long been recognized and accepted aspart of Illinois law." Best v. Taylor Machine Works, 179 Ill. 2d367, 412, 689 N.E.2d 1057 (1997). Supreme Court Rule 366(a)(5)(155 Ill. 2d R. 366 (a)(5)) specifically provides that areviewing court has the power to grant any relief, including theentry of a remittitur. See Soto v. Gaytan, 313 Ill. App. 3d 137,148, 728 N.E.2d 1126 (2000). An appellate court may modify atrial court's order to reflect the proper amount of damages. Soto, 313 Ill. App. 3d at 148. "A remittitur is an agreement bythe plaintiff to relinquish, or remit, to the defendant thatportion of the jury's verdict which constitutes excessive damages[citations] and to accept the sum which has been judiciallydetermined to be properly recoverable damages [citation]. Theonly alternative to a remittitur in a case where the verdictexceeds the damages properly proven [citations] *** is for thetrial judge to order a new trial [citations]." Haid v. Tingle,219 Ill. App. 3d 406, 411, 579 N.E.2d 913 (1991).

However, a court does not have the authority to reduce thedamages by entry of a remittitur if the plaintiff objects or doesnot consent. Haid, 219 Ill. App. 3d at 411. "The trial courtmust afford the plaintiff the choice of agreeing or refusing tothe entry of a remittitur, with the proviso that the plaintiff'srefusal to agree to the entry of a remittitur will result in theordering of a new trial." Haid, 219 Ill. App. 3d at 411-12. InHaid, the court emphasized the plaintiff's consent is essentialand issued a remittitur:

"[W]e resolve the issue pursuant to theauthority granted us under Supreme Court Rule366(a)(5) [citation]. We will affirm thejudgment of the trial court awardingplaintiff damages in the reduced sum of$25,572.70 on the condition that within 30days from the date of filing of this opinion,plaintiff files a consent to the remittiturwith the clerk of this court. Upon thefiling of such remittitur, the judgment isaffirmed. In the event such consent is notfiled within 30 days, the judgment isreversed and the case is remanded for a newtrial on the issue of damages." Haid, 219Ill. App. 3d at 417.

As discussed above, IPI Civil 3d No. 30.03 allowed Luye torecover duplicative damages. Therefore, the duplicative portionof the jury award is excessive and subject to remittitur. SeeRichardson v. Chapman, 175 Ill. 2d 98, 113-15, 676 N.E.2d 621(1997). Accordingly, by way of remittitur, we reduce thejudgment by $112,000, the amount of damages awarded foraggravation of a preexisting condition. This remittitur isconditioned upon Luye's consent. If Luye does not consent, thena new trial on the issue of damages is proper.
 

2. Weight of the Evidence and Excessive Award

The defendants also argue that (1) the jury instruction andverdict form for aggravation of a preexisting ailment were notsupported by the evidence and (2) the verdict on aggravation of apreexisting condition was against the manifest weight of theevidence or, alternatively, (3) an award of $112,000 foraggravation of a preexisting condition was excessive due to theduplicative nature of the award.

Because we have found the jury award for aggravation of apreexisting condition duplicative and have ordered a remittitur,these arguments are now moot.
 

CONCLUSION

For the reasons stated, the judgment of the trial court isaffirmed in part, reversed in part, and vacated in part. Pursuant to the authority of Supreme Court Rule 366 (a)(5) (155Ill. 2d R. 366 (a)(5)), we affirm the judgment entered in favorof Luye in the reduced amount of $135,580.45. Should Luyedecline to consent, within a reasonable time period as set by thetrial court, to the entry of a remittitur upon remand, the trialcourt is instructed to grant a new trial on the question ofdamages.

Affirmed in part, reversed in part, and vacated in part;cause remanded.

CAHILL and BURKE, JJ., concur.