Nurymar Torres was driving to work when her vehicle collided at the intersection of Halsted and Division streets with a vehicle driven by an employee of Irving Press.

Plaintiff presented evidence that she suffered a shattered kneecap, as well as a fracture to three areas of her right ankle, her heel bone and her wrist joint. She also had some internal injuries, including laceration of her liver and right kidney.

Plaintiff’s evidence indicated that as a result of these injuries, she will never regain full ankle motion, limps in the morning and has a 25 percent chance of getting arthritis.

Plaintiff’s physician testified that she will be unable to run or do any strenuous activity, including carrying a basket of clothes downstairs to the washer, playing soccer or bicycling with her children, playing tennis or volleyball, dancing or walking long distances shopping. These are all activities in which she participated before the accident.

A jury awarded plaintiff $300,000 for past and future pain and suffering, $100,000 for past and future medical expenses, $5,000 for past and future lost wages and $0 for loss of normal life. The verdict was reduced in half by the jury’s finding that plaintiff was 50 percent negligent.

What stands out about this result is that despite unrebutted testimony of plaintiff’s inability to carry out activities that were part of her routine life, the jury awarded her nothing for her "loss of life," ignoring compelling evidence to the contrary. Further examination of the case indicates that plaintiff tendered a jury instruction (which was not objected to by defendant) that requested damages, not for the plaintiff’s "disability," but for her "loss of normal life." Torres v. Irving Press, Inc., 303 Ill.App.3d 151, 707 N.E.2d 248 (1^st Dist. 1999).

The Notes on use of Illinois Pattern Jury Instruction 30.04 allow the alternative instruction to be substituted for the "disability" instruction and cites the case of Smith v. City of Evanston, 260 Ill.App.3d 925, 631 N.E.2d 1269 (1^st Dist. 1994).

This practice has always disturbed me, since I have been an adamant follower of Illinois Supreme Court Rule 329(a), which states IPI instructions should be used wherever they accurately state the law applicable in a case. As Justice Robert Buckley, speaking for the unanimous Torres court, stated, "the trial court should follow the Illinois Supreme Court’s recommended instruction, . . . and instruct the jury on the element of "disability" rather than substituting the element of "loss of normal life" contained in the appellate court’s Smith decision." 303 Ill.App.3d at 159.

I have discussed this issue with a number of lawyers and trial judges and have found the area confusing for litigators as well as jurists.

Although some courts previous to Smith had debated the logic of using the "loss of a normal life" instruction, it wasn’t until that case was decided that courts apparently began taking it seriously. In Smith, the court used the oft-cited phrase that "loss of normal life" is an element of damages awarded to a plaintiff upon proof of one’s "diminished ability to enjoy life that the plaintiff has experienced [citation], which should include plaintiff’s temporary or permanent inability to pursue the pleasurable aspects of life, such as recreation or hobbies." 260 Ill.App.3d at 938. Some attorneys argue they prefer this instruction when the plaintiff is not in a wheelchair because it offers them a greater range of loss.

As for me, I agree with the Torres court.

To determine its propriety, I turn to the very purpose of jury instructions: clarifying the issues for the jury so that both parties receive a fair trial.

An instruction that allows the plaintiff to recover duplicate or overlapping damages clearly is erroneous; but equally true, an instruction that undercompensates a plaintiff for its lack of specificity or clarity also is arguably erroneous. At least one court found that the "loss of normal" instruction misstated the law because it was a component, rather than a separate element, of pain and suffering damages. Fetzer v. Wood, 211 Ill.App.3d 70, 82, 569 N.E.2d 1237 (2d Dist. 1991). Other courts, like Smith, have found such damages to be a component of "disability" damages.

Smith appeared to be the wave of the future - that is, until the Torres case came along. The bottom line for the Torres court was whether the jury’s finding of $0 for loss of normal life fell within the confines of the evidence. The court found it did not.

Furthermore, as the Torres court queried, "What is a normal life? This is an exceedingly subjective standard which makes damages especially difficult to quantify." Id., at 158. I agree. And certainly the jury in Torres must have been confused, given its denying plaintiff any damages in that category, despite apparent uncontradicted evidence of permanent disabling injuries.

The goal of a trial is fair and just compensation of the injured party. Itemization of damages in guiding the jury in the assessment of those damages is necessary to ensure such recovery.

However, "loss of normal life" is not recognized by the Illinois Supreme Court as a separate compensable category of damages, not as a substitute for disability damages. Until the state’s highest court allows otherwise, the determination of a standard jury instruction should not be left to attorneys to willy-nilly decide what is appropriate.

Many courts deem it a discretionary matter to use a "disability" or "loss of normal life" instruction. Trial counsel, however, should be cautious in making the decision to deviate from the IPI instruction because it has been around a long time and has been tried and tested. Perhaps the result in Torres speaks to the wisdom of that.

I suggest, when in doubt, accept "disability" and forego the "loss of normal life." In other words, try to hit singles not home runs.