Baker v. Hutson8/20/2002
ent unpublished order issued by this court pursuant to Illinois Supreme Court Rule 23 (166 Ill. 2d R. 23). Rule 23(e) expressly provides, "An unpublished order of the court is not precedential *." 166 Ill. 2d R. 23(e). We recognize that certain individuals in the Illinois legal community advocate allowing unpublished Rule 23 orders to be cited and used as some authority in support of legal arguments. See, e.g., J. Rooney, Lawyers Debate What Appeals Court Leaves Unsaid, 148 Chi. Daily L. Bull., April 27, 2002, at 5; M. Reagan, Supreme Court Rule 23: The Terrain of the Debate and a Proposed Revision, 90 Ill. B.J. 180 (2002). We express no view on this subject, inasmuch as Rule 23 was promulgated and adopted by the Illinois Supreme Court. In this case, the trial court's reliance upon an unpublished order, in contravention of Rule 23, was error and should not be repeated.
In the first issue on appeal, defendant contends that the trial court erred in directing a verdict for plaintiff on the issues of causation and past medical expenses. In addressing this claim, we will first review the principles of law that bear upon this issue.
The propriety of a directed verdict must be judged according to the standard established by the Illinois Supreme Court in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967), and reaffirmed in Maple v. Gustafson, 151 Ill. 2d 445, 603 N.E.2d 508 (1992). A verdict should be directed only in those cases in which all of the evidence, when viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14. A trial court has no right to enter a directed verdict if any evidence, together with reasonable inferences to be drawn therefrom, demonstrates a substantial factual dispute or if the assessment of the credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome. Maple, 151 Ill. 2d at 453-54, 603 N.E.2d at 512.
The Pedrick standard does not require that a verdict be directed merely because the defendant has not introduced evidence in his or her own behalf or has failed to dispute facts presented by the plaintiff. See Galarza v. Melter, 116 Ill. App. 2d 173, 178, 253 N.E.2d 469, 471 (1969). Where there is no dispute regarding the facts in evidence but where different inferences may legitimately be drawn from those facts, the question is one for the jury and a verdict should not be directed. See Galarza, 116 Ill. App. 2d at 178, 253 N.E.2d at 471; Hirn v. Edgewater Hospital, 86 Ill. App. 3d 939, 946, 408 N.E.2d 970, 976 (1980) (and cases cited).
The long-standing rule is that positive direct testimony may be contradicted and discredited by adverse testimony, circumstantial evidence, discrepancies, omissions, or the inherent improbability of the testimony itself. See Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 354, 654 N.E.2d 1365, 1375 (1995); Lobravico v. Checker Taxi Co., 84 Ill. App. 2d 20, 27, 228 N.E.2d 196, 200 (1967). The fact finder is not bound to believe a witness when, based upon all of the other evidence or the inherent improbability or contradictions in the testimony, the fact finder is satisfied of the falsity of the testimony. See Larson v. Glos, 235 Ill. 584, 587, 85 N.E. 926, 927 (1908). However, the fact finder may not arbitrarily or capriciously reject unimpeached testimony. Larson, 235 Ill. at 587, 85 N.E. at 927. Where the testimony of a witness is neither contradicted by direct adverse testimony or by circumstances nor inherently improbable and the witness has not been impeached, the testimony cannot
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