Illinois Appellate Court Reinstates $175,000 Verdict Because Trial Judge Ordered Mistrial after Jury Returned Verdict

On Sept. 9, 2008, the plaintiff, Kevin Burkhamer, was injured when he was struck by a car driven by the defendant, Mel Richard Krumske. Burkhamer filed a lawsuit against Krumske claiming that he injured his hip, elbow, shoulder, left hand, neck and back. Burkhamer was employed as an ironworker and excavator. The plaintiff’s total medical bills were just under $45,000.

At the jury trial, the defendant Krumske admitted negligence and did not attend the trial. During direct examination of Burkhamer, he was asked if he ever had a conversation with the defendant. After the plaintiff responded no, the defendant’s lawyer objected. The trial judge sustained the objection on the basis of relevance. The plaintiff then was asked if he was aware that defendant had admitted negligence just before trial. When the plaintiff answered yes, the trial court sustained defendant’s objection and ordered the jury to “disregard the mention of the timeline.” The plaintiff Burkhamer was then asked if the defendant called him to apologize. Defense counsel objected on the basis of relevance, and the trial court granted his request for a sidebar.

At the sidebar, the defense counsel argued that the plaintiff’s line of questioning was designed to inflame the jury and moved for a mistrial. The court agreed that the line of questioning was improper and sustained the objection trial and the judge took the motion for mistrial under advisement. “I’m going to let us proceed and then we will. I’ll be able to determine this, of course the point is cited at the present. However, it may be possible that future conduct would be an appropriate consideration on my ruling on this motion . . .”

In closing argument, the plaintiff’s lawyer asked the jury to return a verdict in the amount $324,000, which included $44,000 for medical treatment. The defense counsel argued that the evidence supported an award of only $24,536, which included medical expenses and compensation for pain and suffering and loss of normal life. The jury returned a verdict in the amount of $175,000 made up of the following damages:

• $50,000 for loss of normal life;
• 450,000 for pain and suffering;
• $31,000 for future pain and suffering; and
• $44,000 for past medical expenses.

When the jury came out with its verdict form signed, the trial judge asked if there were any matters to address before discharging the jury. When plaintiff’s counsel answered no, the judge thanked the jurors for their service and discharged them.

Then the defense counsel reminded the trial judge that his motion for mistrial was pending. The defendant’s lawyer argued that the verdict was excessive and that the plaintiff’s line of questioning prejudiced the jury against the defendant. On the record, the judge then agreed with defense counsel and said that a mistrial did occur and the judge ordered a new trial. The plaintiff filed a motion to vacate the trial judge’s oral order granting a mistrial and a new trial. The plaintiff also filed a motion to enter judgment on the verdict.

The trial judge denied plaintiff’s motion to enter judgment on the verdict and to vacate the judge’s oral ruling granting the motion for a mistrial. The trial court found that the defendant had not waived his right to a mistrial because the court had not entered a judgment on the verdict prior to the ruling on a motion for a mistrial. The plaintiff appealed pursuant to Illinois Supreme Court Rule 306(a).

The Illinois Appellate Court stated that a mistrial is defined as “either a trial ‘that the judge brings to an end, without a determination on the merits, because of a procedural error or serious misconduct occurring during the proceedings,’ or a trial that ‘ends inconclusively because the jury cannot agree on a verdict.’” Redmond v. Socha, 216 Ill.2d 622, 640 (2005). A motion for a mistrial must be made before a verdict is rendered; it is untimely if it is made either after the verdict is rendered or a judgment is entered on the verdict. In this case, since the defendant’s lawyer waited until the jury entered its verdict to his dissatisfaction, did he renew his motion for mistrial. The judge who entered the order of mistrial and also ordering a new trial was wrong, according to the appeals panel. A mistrial and a new trial are two completely different procedural matters. The appeals court also stated that the defendant’s reliance on §2-1202(c) of the Illinois Code of Civil Procedure, 736 ILCS 5/2-1202(c) is misplaced. Section 2-1202(c) did not prevent defendant from filing a posttrial motion requesting a new trial. It provides only a time limit for filing a posttrial motion.

A new trial contemplates that a case has been tried, a judgment entered and on motion therefore said judgment set aside and a new trial granted, while a mistrial results where, before a trial is completed and judgment entered, the trial court concludes that there is some error or irregularity that prevents a proper judgment being rendered in which event a mistrial may be declared. A mistrial is a matter of law, while a new trial results from the exercise of discretion. McGrath and Williams v. Deasel ,19 Ill.App.3d 353 (1974). The court further explained that an entry of a mistrial is impossible after verdict, judgment and discharge of the jury. It can only be utilized as a pre-verdict motion and not a post-trial motion.

The Illinois Appellate Court, having found that the defendant’s counsel waived any right to a mistrial by not renewing his motion and seeking the court’s order before the verdict, the trial judge’s order of a mistrial and a new trial was reversed with instructions to reinstate the verdict in favor of the plaintiff and against the defendant and enter judgment thereon.

Kevin L. Burkhamer v. Mel Richard Krumske, 2015 IL App (1st) 131863 (June 12, 2015).

Kreisman Law Offices has been handling automobile accident cases, catastrophic injury cases, truck accident cases, motorcycle accident cases and bicycle accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Arlington Heights, Orland Park, Libertyville, Lincolnshire, Lincolnwood, Lansing, Lemont, Oak Park, River Forest, Park Forest, Forest Park, Downers Grove, Antioch, Matteson, Crete, River Grove and Park Ridge, Ill.

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