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An Illinois appellate court has upheld a $15.69 million award to a woman who was disabled at age 73, rejecting defendant Sears Roebuck & Co.’s contention that the award was excessive because of the plaintiff’s advanced age. The court unanimously determined on Sept. 1 that the injuries to plaintiff Rosa Kresin were so severe that the award did not “exceed a fair and reasonable amount.” Whatever Kresin’s age, the court found, “we cannot say that the amount of the jury’s verdict for the injuries that Kresin sustained is shocking to a judicial conscience with present-day awareness of the quality of life that a healthy 73-year-old woman can have.” HEAD UNDER VAN WHEEL Kresin was injured at the Charlestown Mall Sears automotive center in suburban Chicago on June 1, 1996. She had gone to Sears to buy a battery for her car, but while she was leaving the store, “a Sears mechanic backed a customer’s van over her,” said her attorney Charles F. Thompson of Aurora, Ill.’s Thompson, Lamont, Flaherty & Masur. “The van knocked her down. When the vehicle stopped, her head was under the right rear wheel.” Kresin, then 73, sustained multiple fractures, including a skull fracture that caused permanent blindness. Kresin is confined to a wheelchair or bed, is incontinent and unable to walk. Before the accident, “she had been completely independent,” Thompson said. Kresin sued Sears and the mechanic who backed into her, charging negligence. She charged that Sears had failed to train its employees properly on how to back up in the service bay area, had posted no warning signs for pedestrians in the area, and had failed to provide safety manuals to its employees. Kresin v. Sears Roebuck & Co., No. 96 L 8661 (Cir. Ct., Cook Co., Ill.). On March 15, 1999, a Chicago jury awarded Kresin $16.52 million. This was reduced to $15.69 million on the jury’s finding that Kresin was 5 percent responsible. Sears was assigned 60 percent liability and the mechanic, Alfredo Jijon, was assigned 35 percent, but Sears was on the hook for the entire judgment, said Thompson, because Jijon was a Sears employee. Thompson tried the case with colleague John M. Lamont. Sears appealed, contending that the jury’s decision on liability against Sears was contrary to the evidence presented at trial. The court rejected this, finding that “Kresin presented sufficient evidence to establish that Sears failed to adequately train and instruct its employees on safety procedures.” Sears also contended that the award for noneconomic damages was excessive. The jury awarded Kresin $1.52 million for past and future medical expenses and caretaking, but the noneconomic damages — $6 million for pain and suffering, $7 million for disability and $2 million for disfigurement — made up the bulk of the award. The company’s appellate brief focused on the noneconomic damages, alleging in particular that Kresin “was just too old to be worth this kind of money,” said plaintiff’s appellate counsel David A. Novoselsky of Chicago. “Sears seemed to believe that, as a rule of law, a woman who was 73 years old was not entitled to the same recovery as someone in her more productive years.” The appellate court noted specifically Sears’ argument “that the disfigurement award of $2 million was grossly excessive, particularly considering Kresin’s injuries and her age. In support of its contentions [Sears] attempts to compare Kresin’s case to a hypothetical situation in which a child or young adult with a longer life expectancy is severely disabled.” But the court said it had “traditionally declined to make such comparisons in determining whether a particular award is excessive” and would not “engage in such a comparison.” With its decision, Thompson said, the court opted not to make elderly plaintiffs a separate class, to be compensated at a rate lower than that due younger claimants. Kresin, he said, “was left essentially immobile and in total darkness. These are catastrophic injuries no matter when they happen. The jury ignored the issue of age” and the court followed that decision, he said. “The judges felt that, looking at the trial record, there was more than adequate proof to justify every element of the verdict.” Sears appellate counsel James C. Schroeder of Chicago’s Mayer, Brown & Platt declined comment. A spokeswoman for Sears said that the company had not yet determined its next step. But the plaintiff’s attorneys expect the company to seek a rehearing or to petition the Illinois Supreme Court for review.

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