Hendrix v. Stepanek

Case Date: 06/04/2002
Court: 5th District Appellate
Docket No: 5-01-0082 Rel

                NOTICE
Decision filed 06/04/02.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

No. 5-01-0082

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

________________________________________________________________________

WANDA HENDRIX,

     Plaintiff-Appellee, 

v.

BONNIE STEPANEK,

     Defendant-Appellant.

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Appeal from the
Circuit Court of
Madison County.

No. 98-L-626

Honorable
A. A. Matoesian,
Judge, presiding.

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JUSTICE HOPKINS delivered the opinion of the court:

Bonnie Stepanek (defendant) appeals from the trial court's order entered upon thejury's verdict in favor of Wanda Hendrix (plaintiff), awarding plaintiff $80,000 in damagesin this negligence action. On appeal, defendant argues (1) that the trial court erred in failingto grant defendant's motion for a mistrial when one of plaintiff's witnesses testified to anundisclosed opinion, (2) that the trial court erred in giving the jury an instruction to consider,when determining damages, plaintiff's loss of a normal life, and (3) that the trial court erredin granting plaintiff's motion for a directed verdict and then instructing the jury thatdefendant was negligent as a matter of law. We affirm.

FACTS

This case arose from a February 6, 1997, automobile accident in which defendant'scar hit plaintiff's car, causing damage to plaintiff's car and injuring plaintiff. At the jury trial,defendant was plaintiff's first witness. The scene of the accident was the busy intersectionof St. Anthony's Way (St. Anthony's) and the parking lot of the St. Francis Day Care at about5 p.m. on a weekday. Defendant testified that this intersection was very busy at this time ofday because several doctors' offices are located nearby, as well as the day care facility. Atthe time of the accident, plaintiff was traveling south on St. Anthony's, and defendant wasattempting to make a left turn onto St. Anthony's from the day care parking lot.

Defendant testified that there was a hill on the north side of the intersection, thedirection from which plaintiff was traveling, and there was a curve on the south side. Defendant testified that before pulling out, she stopped at least twice while in theintersection. Defendant stopped first to observe the intersection before she got to a sign nextto the intersection that would obstruct her view. Defendant claimed that she was able to seeup the hill to her north without obstruction before she pulled any further into the intersection. Defendant testified that she looked both ways and saw no vehicles on St. Anthony's at thistime.

Although defendant felt that she could clearly see the traffic on St. Anthony's, shetestified that she had to inch out into the intersection in order to fully see. Defendant wasimpeached with her prior testimony that her view was obstructed when she pulled into theintersection. Defendant explained that she did not understand the prior questioning. Defendant testified that she was traveling at about five miles per hour when she pulled ontoSt. Anthony's and hit plaintiff's car.

As defendant pulled onto the street, she struck the left side of plaintiff's car with theright front bumper of her car. Defendant testified that the accident would not have happenedif she had not pulled out when she did. Defendant also testified that plaintiff tried to swerveout of defendant's way but that plaintiff did not have time to stop.

Berkley Frederick York testified that on the day of the accident, he was on his wayto pick up his daughter from the day care center when he witnessed the accident. Yorktestified that for a few seconds before the crash he observed both cars, and he thoughtplaintiff was traveling faster than the speed limit, going about 30 to 40 miles per hour in a30-mile-per-hour speed zone. York agreed with defendant that the accident would not haveoccurred if defendant had not pulled out when she did.

Dr. Edward Blair testified by evidence deposition. Dr. Blair is a physicianspecializing in internal medicine, and plaintiff is an employee for another doctor in thebuilding where Dr. Blair keeps his office. Dr. Blair is plaintiff's primary care physician. Dr.Blair saw plaintiff before the accident on October 11, 1996, at which time he diagnosed heras suffering from migraine headaches and prescribed medication to relieve the nauseaassociated with those headaches. Dr. Blair testified that he next saw plaintiff on October 6,1998, one year and six months after the accident. In 1998, plaintiff complained of almostdaily headaches, and Dr. Blair diagnosed these headaches as a mixed type, composed of bothvascular and muscular components.

Dr. Blair testified that he was aware that plaintiff was involved in a car accident inFebruary 1997, but he did not specifically treat her as a result of that accident. Dr. Blair alsotestified, however, that as a general rule trauma such as that associated with a car accidentcan aggravate and accelerate existing problems, such as headaches, and that it can causeother symptoms, such as the neck pain of which plaintiff complained.

Dr. Blair testified that plaintiff did not indicate that the onset of her headaches wasrelated to the 1997 car accident. When asked if he had any opinion about whether theaccident caused plaintiff to have migraine headaches, Dr. Blair testified that he did not haveany opinion.

Dr. David Schreiber testified in court, even though he had given an evidencedeposition earlier. For reasons unrelated to this appeal, this case had been tried previouslyto a jury, but it ended in a mistrial. Defendant did not object to Dr. Schreiber testifying live,rather than from his evidence deposition, and did not file a motion in limine to bar or limithis testimony.

Dr. Schreiber, a neurologist, testified that Dr. Blair referred plaintiff to him for herheadaches. Dr. Schreiber initially saw plaintiff on March 10, 1997, about three weeks afterthe car accident. Plaintiff described her history of headaches, stating that she began havingmigraine headaches at age 12 and that these headaches continued about twice a year, lastingtwo to three days each and usually occurring close in time to her menstrual period. In histestimony, Dr. Schreiber also related plaintiff's description of the car accident:

"Eventually, on or about February 6th, 1997, she was driving her car. She wasin a seat belt. It was about 5 [o'clock] in the evening in Alton. She was going downthe hill from the hospital, I guess heading towards College Avenue, which is right bythe hospital.

A car suddenly pulled out from a parking lot right near there and hit her car onthe driver's door. Ms. Hendrix saw it coming, kind of grabbed the steering wheel andtried to swerve to her right, but her car was hit. The impact threw her and her headto the right and then to the left."

Dr. Schreiber testified that plaintiff told him that although she was upset after theaccident, she thought she would be okay. However, about three days after the accident,according to plaintiff's statement to Dr. Schreiber, she started having increasing difficultieswith her left shoulder and the area between that shoulder and her neck. When these problemswould not cease upon her taking the medications previously prescribed to her, Dr. Blairreferred plaintiff to Dr. Schreiber.

Dr. Schreiber testified that when he saw plaintiff, she was having several problems,including daily neck pain, headaches in the back of her head, and aching in her head, all ofwhich increased as a day went by. When Dr. Schreiber examined plaintiff, he noticed amuscle spasm in the neck and the area below it between the shoulder blades. Dr. Schreibertestified that this is an objective symptom, one that he could actually see and feel, as opposedto a description of pain, which he could not see or feel and which a patient would have todescribe for him to know about it. Dr. Schreiber testified that these muscle spasms were notsomething plaintiff could fake. Dr. Schreiber found a limited range of mobility in plaintiff'sneck, a significant weakness in the left shoulder muscle, and decreased sensation in her leftshoulder area. Dr. Schreiber tentatively diagnosed plaintiff as suffering from muscle andligament damage to her neck, nerve-root damage to her shoulders, and a cervical strain thatresulted from the car accident.

Dr. Schreiber testified that the pain plaintiff was experiencing in her neck andshoulders could cause her migraine headaches to increase. Dr. Schreiber admitted that hetestified earlier in a deposition that plaintiff's migraines were not caused by the accident. Dr.Schreiber explained that plaintiff did not have migraines caused by the stress of the accidentitself but that her previously existing migraines might have been exacerbated by the painfrom the neck and shoulder injuries she received in the car accident. Dr. Schreiber testifiedthat, to a reasonable degree of medical certainty, the damage to the muscles and ligamentsand the damage to the nerve roots were caused by the car accident and that plaintiff'smigraines could have been exacerbated by such injuries.

Defendant's attorney objected to the last portion of Dr. Schreiber's testimony asundisclosed opinion testimony in violation of Supreme Court Rule 213 (177 Ill. 2d R. 213). Defendant's objection was based upon the fact that in his earlier testimony Dr. Schreiber didnot state that plaintiff's migraines were connected to the accident. Dr. Schreiber testified thathe wanted to testify in person at plaintiff's hearing, even though he had already given anevidence deposition, because he felt that he had done a "terrible job at the deposition," in thathe had not explained himself very well. Dr. Schreiber explained that he charged plaintiff$600 for the evidence deposition but that he was appearing in court for free, to whichdefendant's attorney replied, "The next time you do a terrible job for me, do you promise tocome live?"

Defendant asked the court for a mistrial based upon Dr. Schreiber's improper opiniontestimony, but defendant did not ask for any lesser remedies, such as striking the offendingtestimony. The court denied the motion for a mistrial.

Dr. Lawrence Burch testified that he was traveling south on St. Anthony's about 10to 20 yards behind plaintiff immediately before the accident. Dr. Burch testified that he wastraveling at about 15 to 20 miles per hour as he went down the hill and that he and plaintiffwere traveling at approximately the same speed. Dr. Burch described the accident as follows:

"[A]s we were going down the hill, this other car came out of the parking lot for theday care center and came right out and hit her probably in the driver's-well, the reardoor on the driver's side of the car."

Dr. Burch testified that there was nothing plaintiff could do to avoid the accident.

Plaintiff testified that just before the accident, St. Anthony's was very congested. Plaintiff denied that she was traveling at 40 miles per hour. She claimed that there is toomuch traffic in that area at that time of day to go that fast. Plaintiff testified that as she wascoming down the hill on St. Anthony's, she saw defendant's car coming at her out of herperipheral vision. Plaintiff testified that when she saw defendant's car, she gripped thesteering wheel and tried to pull to the side. Plaintiff testified that she slammed on her brakesand swerved to the right but that there was nowhere to go. Plaintiff testified that the impactof the collision was very hard and that her driver's side door was buckled and had a hole init and that her driver's side passenger door was dented and had an even bigger hole in it.

Immediately after the accident, plaintiff was upset but did not think she was physicallyinjured. After she got home, plaintiff realized that she should have called the police to thescene. So she called defendant, and both went to the police station to provide informationfor an accident report. For a couple of weeks after the accident, plaintiff was sore, stiff, andexperiencing daily headaches, but she thought these symptoms would either subside or goaway. When the symptoms persisted, she first talked to her primary-care physician, Dr. Blair,who referred her to Dr. Schreiber.

Plaintiff explained that the accident affected everything in her life. Plaintiffcharacterized her life before the accident as very active: gardening, housework, camping,canoeing, and motorcycle riding. She testified that all of those activities, which shefrequently enjoyed prior to the accident, she now can do only infrequently, if at all.

Plaintiff testified that after the accident she experienced an increase in both regularand migraine headaches. Plaintiff explained that after the accident she started having dailyheadaches and neck aches, both of which were much worse if she was very active that day. Also, plaintiff testified that after the accident her migraine headaches increased both inintensity and in frequency.

At the close of plaintiff's evidence, plaintiff argued that defendant admitted liabilityin her testimony that the accident would not have happened if she had not pulled out whenshe did and that plaintiff could not have avoided the accident. The trial court agreed andgranted plaintiff's motion for a directed verdict on the issue of liability.

The only witness for the defense was Dr. Peter Anderson. Dr. Anderson examinedplaintiff at defendant's request. He performed a neurological examination, which showedplaintiff to be normal but suffering from cervical strain. Dr. Anderson testified that plaintiffwould not need additional medical treatment and would be able to continue her work asbefore the accident. Dr. Anderson admitted, however, that an injury such as a neck spraincan cause migraines to increase in frequency and intensity.

The jury returned a verdict in favor of plaintiff, awarding her $80,000 in damagesapportioned as follows: aggravation of any preexisting condition, $17,000; loss of a normallife, $15,000; pain and suffering, $30,000; and medical expenses both past and future,$18,000. The trial court entered a judgment on the jury verdict.

Defendant filed a timely posttrial motion, alleging that she was entitled to a new trialdue to the erroneous admission of Dr. Schreiber's undisclosed opinion testimony, an improperjury instruction giving the jury the ability to assess damages for plaintiff's loss of a normallife, and the trial court's error in granting plaintiff's motion for a directed verdict on the issueof liability. The court denied defendant's posttrial motion but later granted defendant'smotion to stay the enforcement of the judgment pending an appeal.

ANALYSIS

1. Plaintiff's Failure to Disclose Dr. Schreiber's Opinion Testimony

Defendant argues that in the pretrial phase, Dr. Schreiber gave a deposition in whichhe said nothing about plaintiff's accident causing an increase in the migraine headaches shesuffered. Defendant argues that plaintiff never disclosed an intention to present any opinionevidence concerning an increase in the nature or extent of migraine headaches that resultedfrom the accident, either through her complaint or her opinion disclosure statement.

Defendant cites to Dr. Schreiber's testimony that plaintiff's migraine headaches, whichshe had been experiencing since she was 12 years old, were not related to the accident. Ina later evidence deposition, taken before the first trial of this cause, Dr. Schreiber testifiedthat he did not think that plaintiff's migraines were related to the accident.

In her opinion-witness disclosure, plaintiff disclosed Dr. Schreiber's testimony as apart of the category of all treating physicians:

"Any and all treating physicians may testify with regard to the nature andextent of plaintiff's injuries, any disability resulting therefrom, the plaintiff's abilityto work or engage in her usual occupation, any disfigurement, and plaintiff's medicalexpenses. See all medical records and bills previously produced in discovery; see alsodeposition [sic] of various treating physicians upon completion of same."

Plaintiff did not supplement this disclosure before the trial, and defendant did not request thatthe disclosure be made more definite and certain.

Defendant complains of Dr. Schreiber's courtroom testimony that the musclecontractions plaintiff experienced in her neck as a result of the accident could trigger anincrease in her migraine headaches. Dr. Schreiber further testified that, based upon areasonable degree of medical certainty, he was of the opinion that the damage to the musclesand ligaments and the damage to the nerve roots were caused by the accident and thatplaintiff's migraine headaches could be "exacerbated" by the accident.

Supreme Court Rule 213(g) states as follows:

"An opinion witness is a person who will offer any opinion testimony. Uponwritten interrogatory, the party must state:

(i) the subject matter on which the opinion witness is expected totestify;

(ii) the conclusions and opinions of the opinion witness and the basestherefor; and

(iii) the qualifications of the opinion witness;

and provide all reports of the opinion witness." 177 Ill. 2d R. 213(g).

Plaintiff's first response to this argument is that defendant has waived her right to thereview of the issue for her failure to object to the verdict form that allowed the jury to assessdamages for "the aggravation of any pre[]existing ailment or condition." Defendant respondsthat she objected appropriately to Dr. Schreiber's testimony, preserving the issue for appealby moving the court for a mistrial based upon that improper testimony. Defendant assertsthat once the trial court overruled her objection to this line of testimony and denied hermotion for a mistrial, the instruction to which plaintiff refers was supported by the evidenceand was not objectionable. Regardless of whether defendant might have objected to theinstruction, we agree with defendant that she properly protected her right to the review of thisissue by moving for a mistrial.

The trial court's decision to admit evidence should not be reversed unless it is an abuseof discretion. Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932 (2000). The primarygoal of the discovery rules is to promote complete disclosure. Buehler v. Whalen, 70 Ill. 2d51 (1977). More particularly, the purpose of discovery rules requiring the timely disclosureof expert witnesses and their opinions is to avoid surprise and to discourage strategicgamesmanship. Copeland, 316 Ill. App. 3d at 937.

The party who is challenging the admission of opinion testimony as a violation ofRule 213(g) must also show some prejudice arising from the alleged error. Linn v.Damilano, 303 Ill. App. 3d 600, 606 (1999). Without a showing of the manner in which theparty was prejudiced, "the judgment need not be reversed on appeal." Linn, 303 Ill. App. 3dat 606. Plaintiff contends that there was other evidence, properly admitted, on the issue ofexacerbation, such that Dr. Schreiber's testimony did not prejudice defendant, even if it hadbeen improperly admitted. We agree with plaintiff.

Plaintiff testified that her migraine headaches occurred more often and were moresevere after the accident. Dr. Blair testified that trauma from the injuries plaintiff receivedin the car accident could aggravate and accelerate existing problems such as headaches. Dr.Anderson, defendant's expert witness, testified that an injury, such as that plaintiff receivedin the car accident, could cause migraine headaches to be more frequent and more painful. Defendant does not complain about the testimony from these witnesses. An error inadmitting evidence will not be considered prejudicial where similar evidence is properlyadmitted elsewhere. Conner v. Ofreneo, 257 Ill. App. 3d 427, 436 (1993).

Since three other witnesses testified that plaintiff's migraine headaches could havebeen exacerbated by the accident, Dr. Schreiber's testimony on that issue, even if in violationof Rule 213(g), did not prejudice defendant. Accordingly, the trial court did not abuse itsdiscretion in denying defendant's motion for a mistrial.

2. Jury Instructions

Defendant next argues that the trial court erred in instructing the jury that it couldaward damages for plaintiff's loss of a normal life as a separate element of damages. Theinstruction to which defendant objects was as follows:

"You must fix the amount of money which will reasonably and fairlycompensate the plaintiff for any of the following elements of damages proved by theevidence to have resulted from the negligence of the defendant, taking intoconsideration the nature, extent[,] and duration of the injury:

The aggravation of any pre[]existing ailment or condition;

The loss of a normal life;

The pain and suffering experienced and reasonably certain to be experiencedin the future as a result of the injuries;

The reasonable expense of necessary medical care, treatment, and servicesreceived and the present value of reasonable expenses of medical care, treatment, andservices reasonably certain to be received in the future;

Whether any of the elements of damages has [sic] been proved by the evidenceis for you to determine."

The verdict forms also included a loss of a normal life as an element of damages. Defendantobjected to these instructions on the grounds that the term "disability" should be used insteadof "loss of normal life" and that the term "loss of normal life" would lead the jury toovercompensate plaintiff. Defendant also objected on the basis that the instructions were not"IPI standard instructions." The trial court used the instructions over defendant's objections. Plaintiff points out that the term "loss of normal life" is now a part of Illinois PatternJury Instructions, Civil, No. 30.04.01 (2000) (IPI Civil 30.04.01). That instruction gives thetrial court the discretion to decide whether to use the term "loss of normal life" or, in thealternative, the term "disability."

Supreme Court Rule 239(a) provides as follows:

"(a) Use of IPI Instruction; Requirements of Other Instructions. WheneverIllinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case,giving due consideration to the facts and the prevailing law, and the court determinesthat the jury should be instructed on the subject, the IPI instruction shall be used,unless the court determines that it does not accurately state the law. Whenever IPIdoes not contain an instruction on a subject on which the court determines that thejury should be instructed, the instruction given in that subject should be simple, brief,impartial, and free from argument." 177 Ill. 2d R. 239(a).

Given that the instruction is a standard Illinois pattern instruction, the only issues arewhether the instructions, when considered as a whole, are clear enough to avoid confusingthe jury and whether they fairly and accurately state the applicable law. Howat v. Donelson,305 Ill. App. 3d 183, 186 (1999). "As a general rule, a judgment will not be reversed wherethe jury instructions are faulty unless they mislead the jury and the complaining partysuffered prejudice." Howat, 305 Ill. App. 3d at 186.

Defendant argues that the trial court should not have chosen the loss-of-normal-lifeinstruction but should instead have chosen the disability instruction. According to defendant,we should reverse the trial court on this issue and follow the First District Appellate Courtin Tornabene v. Paramedic Services, 314 Ill. App. 3d 494 (2000). In Tornabene, the courtreversed the trial court on other grounds and then instructed the trial court to give thedisability instruction rather than use the term "loss of normal life," should the issue arise onremand. Tornabene, 314 Ill. App. 3d at 502. According to the court in Tornabene, the term"loss of normal life" is too subjective and makes damages too difficult to quantify.Tornabene, 314 Ill. App. 3d at 502. We respectfully disagree.

Instead, we agree with the Second District Appellate Court in Turner v. Williams, 326Ill. App. 3d 541 (2001), wherein the court stated as follows:

"The addition of instruction IPI Civil No. 30.04.01, which allows either lossof a normal life or disability to be given as an instruction, depending on the nature ofthe evidence at trial, illustrates that the use of an instruction on loss of a normal lifeis not contrary to Illinois law. Indeed, loss of a normal life has been recognized bythis court as an element of compensable damage. Zuder v. Gibson, 288 Ill. App. 3d329 (1997); see also Hiscott v. Peters, 324 Ill. App. 3d 114, 127 (2001)." Turner, 326Ill. App. 3d at 551.

Other courts share our conclusion that juries could understand the term "loss ofnormal life" much more readily than the term "disability," depending upon the facts presentedat the trial. Abbinante v. O'Connell, 277 Ill. App. 3d 1046, 1052 (1996); Smith v. City ofEvanston, 260 Ill. App. 3d 925, 933 (1994). In the case at bar, plaintiff testified that beforethe accident she was very active and enjoyed gardening, housework, camping, canoeing, andmotorcycle riding but that after the accident either she could not enjoy these activities at allor she was only able to enjoy them much less frequently. Her testimony on this subjectfocused on her diminished quality of life after the accident. Her testimony was clearly thatshe suffered a loss of the normal life activities she enjoyed before the accident. Disability,on the other hand, is typically shown by evidence of physical and mental handicaps that resultfrom injuries. Neither of these categories of damages-"loss of normal life" or "disability"-isparticularly easy for juries to quantify in terms of monetary value. Neither is the categoryof pain and suffering. Nevertheless, juries have been rising to those challenges for quitesome time now. We do not agree with defendant's argument that "loss of normal life" is toodifficult for juries to use in assessing damages.

Defendant has not shown how any other instruction incorrectly informed the jury ofthe law or how she was prejudiced by the use of the loss-of-normal-life instruction. Theinstruction is an Illinois pattern instruction, and there was evidence to support giving it to thejury. Therefore, we hold that the trial court did not abuse its discretion in overrulingdefendant's objection to the use of loss of normal life as an element of damages for the juryto assess.

3. Directed Verdict on the Issue of Defendant's Liability

Defendant next argues that the trial court erred in directing a verdict in plaintiff's favoron the issue of liability. We review rulings on motions for directed verdict by determiningwhether all of the evidence, when viewed in the light most favorable to the opponent of themotion, so overwhelmingly favors the movant that no contrary verdict based upon thatevidence could ever stand. Pedrick v. Peoria Eastern R.R. Co., 37 Ill. 2d 494 (1967). Defendant admits that in directing the verdict against her, the trial court relied upon her ownadmissions. Defendant contends, however, that her statements-that the accident would nothave occurred if she had not pulled into the intersection when she did and that plaintiff couldnot do anything to avoid the accident-show only cause in fact and provide an insufficientbasis for a directed verdict.

To demonstrate negligence, a plaintiff must establish a duty owed by the defendantto the plaintiff, a breach of that duty, and an injury proximately caused by the plaintiff'sbreach of duty. Turner v. Roesner, 193 Ill. App. 3d 482, 488 (1990). Duty is the legalobligation to conform one's behavior to a particular standard for the benefit or protection ofanother. Yager v. Illinois Bell Telephone Co., 281 Ill. App. 3d 903, 907 (1996). Theexistence of a duty is a question of law. Yager, 281 Ill. App. 3d at 907.

In the case at bar, plaintiff claimed that defendant failed to keep a proper lookout,failed to keep her vehicle under control, drove in a reckless manner, and failed to yield theright of way. At the time of the accident, plaintiff was traveling southbound on St. Anthony'sand did not have a stop sign. Defendant, whose course of movement was controlled by ayield sign, turned left onto St. Anthony's and collided with plaintiff. The facts are undisputedthat plaintiff had the right of way as between herself and defendant at the moment of thecollision. It is also undisputed that defendant owed plaintiff a duty to yield the right of wayand to keep a proper lookout.

The next element to consider is whether defendant breached the duties she owedplaintiff. Defendant testified that she pulled into the intersection, that she collided withplaintiff's car, and that the accident would not have occurred if she had yielded the right ofway to plaintiff. Here, where plaintiff had the right of way as a matter of law, defendantbreached her duty to yield and her duty to keep a proper lookout.

The final element is whether defendant's breaches of duty are the proximate cause ofplaintiff's injuries. Since defendant admitted that the accident would not have occurred if shehad not pulled into the intersection when she did and since there is no other evidence to showthat plaintiff's injuries were caused in any other way, the proximate-cause element was alsoestablished as a matter of law.

We hold that the evidence, when viewed in the light most favorable to defendant,meets the Pedrick standard. Therefore, the trial court properly granted plaintiff's motion fora directed verdict on the issue of liability.

Affirmed.

GOLDENHERSH and CHAPMAN, Melissa, JJ., concur.