EDIN KARAHODZIC, Individually and as Personal Representative of the Estate of Hasib Karahodzic v. JBS CARRIERS, INC. and CHRISTOPHER THOMPSON, Temporary Administrator of the Estate of Orentio Thompson
No. 16-3931
United States Court of Appeals For the Seventh Circuit
ARGUED OCTOBER 24, 2017 — DECIDED FEBRUARY 7, 2018
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.
I.
In the early morning hours of March 17, 2012, Thompson was driving his tractor/trailer westbound on Interstate 70 when he noticed a malfunctioning light blinking on the side of his trailer. Just past the Brownstown, Illinois exit, he activated his right turn signal and pulled onto the shoulder of the highway. Once stopped, he turned on his four-way flashers and then walked around his truck to inspect the lights. He unplugged and then reattached the electrical connection between the tractor and the trailer. That resolved the errantly blinking light and he returned to the cab. With the four-way flashers still on, he had just reentered the right lane of the highway and was traveling between fifteen and eighteen miles an hour when Hasib crashed into the back of his trailer. Hasib had just come
In a tragic coincidence, Hasib‘s son, Edin, who also drove for E.J.A. Trucking, was also driving westbound on Interstate 70 that morning. Shortly after the crash, Edin came upon the scene and saw that his father‘s truck was on fire. He parked in front of Thompson‘s truck and ran to help his father. He saw his father in the truck cab, and believing him to still be alive, attempted to pull him from the cab and put out the fire. Edin suffered burns to his hands and face from his unsuccessful attempt to rescue his father, and watched as his father‘s body burned. He called his brother Selvedin to tell him what had happened. Selvedin drove eighty miles to the scene of the accident and also saw his father‘s burned body. The brothers then drove home to tell their mother, Esma, and sister, Edina, what had happened.
Every member of the Karahodzic family suffered emotional trauma from Hasib‘s death. Esma‘s emotional reaction on hearing of her husband‘s death was so severe that she had to be taken to a hospital. As a result of Major Depressive Disorder brought on by Hasib‘s death, Esma never returned to work. Edin suffered Post Traumatic Stress Disorder as a result of his father‘s death and his failed attempt to rescue him. Hasib‘s daughter, Edina, attempted suicide at her father‘s grave near the first anniversary of his death. Selvedin, who is also a truck driver, had constant reminders of his father‘s death when he drove past the location of the accident once or twice a week. Family dynamics changed and relationships suffered as Hasib‘s family struggled to move forward after his death.
A nine-day jury trial resulted in a verdict in favor of the plaintiffs on both claims. On the wrongful death claim, the jury attributed fifty-five percent of the fault to Thompson and JBS Carriers, and forty-five percent to Hasib Karahodzic. The jury accordingly reduced its $5,000,000 damage award by forty-five percent, awarding the estate damages in the amount of $2,750,000. The jury awarded Edin Karahodzic $625,000 on his individual rescue doctrine claim. The defendants appeal.
On appeal, the defendants first assert that the court committed reversible error in refusing to give an Illinois pattern jury instruction on the duty to mitigate damages, and in giving instructions related to “careful habits” and “exigent circumstances.” The defendants also argue that the court should have apportioned the award given to Edin personally on his rescue doctrine claim by the same percentages that the jury used in setting the estate‘s damages on the wrongful death claim. The defendants further maintain that the court erred when it allowed the jury to award Esma‘s lost earnings as damages under the Wrongful Death Act. And finally, the defendants contend that they were denied a fair trial due to certain evidentiary rulings made by the trial court.2
We consider first whether the trial court erred by refusing to give the Illinois pattern instruction on the plaintiffs’ duty to mitigate damages. According to the defendants, Illinois Supreme Court Rule 239(a) dictates that the pattern instruction “shall be used” unless the court determines that it does not accurately state the law. The defendants contend that, by refusing to follow Rule 239(a), the trial court erroneously took from the jury the question of whether the Karahodzic family complied with their legal duty to mitigate their damages. The defendants also complain that they were “denied the opportunity to argue in closing” that the family had a duty to mitigate their damages and could not recover damages proximately caused by their failure to mitigate.
There are a number of problems with this argument. First, federal district courts sitting in diversity are bound by state substantive law but not by state court procedural rules. Erie R.R. v. Tompkins, 304 U.S. 64, 78–79 (1938); Wallace v. McGlothan, 606 F.3d 410, 419 (7th Cir. 2010). The Illinois rule that mandates the use of Illinois pattern instructions is procedural, not substantive. Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 768–69 (7th Cir. 2013) (in a diversity action, we look to state law to determine whether the instruction properly stated the substantive law but federal law governs whether the instruction was sufficiently clear); Beul v. ASSE Int‘l, Inc., 233 F.3d 441, 449 (7th Cir. 2000) (“Rules of general applicability
Under those federal standards, we review de novo whether the jury instructions stated the law correctly, affording the district court substantial discretion as to the precise wording of the instructions so long as the final result, read as a whole, completely and correctly states the law. Ryobi, 725 F.3d at 768. See also Paldo Sign & Display Co. v. Wagener Equities, Inc., 825 F.3d 793, 796 (7th Cir. 2016) (we review jury instructions de novo to determine whether they fairly and accurately summarized the law). The trial court‘s decision to give a particular instruction is reviewed for an abuse of discretion. Paldo Sign, 825 F.3d at 796. We reverse only if the instructions, taken as a whole, misled the jury. Paldo Sign, 825 F.3d at 796; United States v. Curtis, 781 F.3d 904, 907 (7th Cir. 2015). Thus any argument that the court committed reversible error simply by refusing to follow Illinois Supreme Court Rule 239, a procedural rule, is foreclosed by the Erie doctrine.
Defendants argue in the claim of Edin Karahodzic that the compensation sought by him must be reduced by his failure to obtain medical treatment. If you find that Edin Karahodzic did not take reasonable actions to reduce his damages, and Edin Karahodzic would have reasonably been able to reduce his damages by obtaining medical treatment, you should reduce any amount you might award Edin Karahodzic by the amount you unanimously determine was impacted by Edin Karahodzic not taking reasonable actions to reduce his damages by the failure to obtain medical treatment. Defendants
must prove both the reduction should be made and its amount.
R. 167-2. Thus the jury was informed that it should reduce the amount it awarded to Edin if he failed to take reasonable actions to reduce his damages and if he could have reasonably reduced his damages by obtaining medical treatment. This is no different from telling the jury that Edin could not recover damages caused by a failure to take ordinary care to obtain medical treatment. The court declined to give the defendants’ pattern instruction because the substance was covered by these other instructions. There was no abuse of discretion in choosing one instruction over the other when both accurately stated the law.
The third problem is that the defendants fail to explain what is missing from the instruction given, and complain primarily that the given instruction referred to defendants’ “argument” that the plaintiffs failed to mitigate rather than the plaintiffs’ legal duty to mitigate. But there is nothing misleading in characterizing the issue as being raised by the defendants. Failure to mitigate is an affirmative defense in Illinois, and the defendants bore the burden of proof. Rozny v. Marnul, 250 N.E.2d 656, 666 (Ill. 1969). The duty to mitigate was spelled out by the directive to reduce Edin‘s damages if he could have avoided the harm by seeking medical care and failed to do so. See Amalgamated Bank of Chicago v. Kalmus & Assocs., 741 N.E.2d 1078, 1086 (Ill. App. Ct. 2000) (the duty to mitigate imposes a duty on the injured party to exercise reasonable diligence and ordinary care in attempting to minimize his damages after injury has been inflicted). The defendants’ proposed instruc-
Finally, the defendants were not, in fact, deprived of an opportunity to argue about the plaintiffs’ duty to mitigate in their closing argument. The court did not prohibit the defendants from making that argument and the defendants argued the issue in closing. Specifically, the defendants argued that the jury must take mitigation into account in determining damages, that the plaintiffs are under an obligation to seek medical treatment, that treatments are available for Edin‘s post-traumatic stress disorder, and that Edin and his siblings had not sought treatment that could have made them better. The defendants also argued that Edin‘s damages for his rescue claim should be limited to $50,000 given his failure to mitigate. In sum, the jury was adequately instructed and the defendants argued the mitigation issue to the jury. There is no reversible error related to the court‘s refusal to give the pattern instruction.
B.
The defendants next argue that the “careful habits” and “exigent circumstances” instructions misled and confused the jury, and did not address any issue raised by the evidence presented at trial. We begin with the “careful habits” instruction. The jury was instructed that if there was evidence tending to show that Hasib was a person of careful habits, the jury could infer that Hasib was “in the exercise of ordinary care for his own safety and the safety of others at and before the time of the occurrence, unless the inference is overcome by other evidence.” R. 167-3. In Illinois, the plaintiff in a personal injury
However, in wrongful death cases where there are no competent eyewitnesses the plaintiff cannot prove his decedent‘s exercise of due care by direct testimony. In such instances, considering the practical problem of demonstrating freedom from contributory negligence, evidence of the prior careful habits, if pertinent, of the deceased may be admitted as tending to prove the deceased‘s exercise of due care.
Hardware State Bank, 302 N.E.2d at 261. See also Jacobs v. Yellow Cab Affiliation, Inc., 73 N.E.3d 1220, 1259 (Ill. App. Ct. 2017) (careful habits evidence is admissible to show due care when the plaintiff is unavailable to testify and no eyewitnesses other than the defendant are available).
Edin testified, without objection from the defendants, that he had driven in the truck with his father for a period of eight or nine months when they were “team driving” a number of years before the fatal accident. Edin explained that he was able to observe his father‘s driving habits when they drove together. He said that when his father encountered a vehicle pulled over on the shoulder of the road, he would move into the left lane if it was safe to do so, or would slow down and stay in the right lane if it was not safe to move left. Over the defendants’ objection, the jury was later given the Illinois
It is within the trial court‘s sound discretion to admit or deny evidence of careful habits, and, in any case, this evidence came in without objection. Jacobs, 73 N.E.3d at 1259. The defendants assert, however, that the evidence presented on Hasib‘s driving habits was insufficient to support giving the instruction, that Edin‘s observations of his father‘s habits were too remote in time to be relevant, and also that the instruction was inappropriate because Hasib did not act in accordance with the habit on this occasion. That is, Hasib did not move into the left lane and did not slow down before striking Thompson‘s truck. The instruction given by the trial court completely and accurately states the Illinois law regarding “careful habits” and so the only issue is whether the district court abused its discretion in deciding to give this instruction in this situation. Paldo Sign, 825 F.3d at 796. The defendants’ argument largely amounts to a request to reweigh the trial court‘s determination that the plaintiffs presented enough evidence to justify giving the instruction. We see no abuse of discretion in allowing the jury to consider Edin‘s testimony as evidence of his father‘s careful habits. Hasib and Edin drove together for a significant amount of time and Edin was able to observe his father‘s regular practice many times in similar situations. The defendants’ argument that Hasib did not act in accordance with his usual practice at the time of the accident was an issue for the jury to decide. The very reason for the “careful habits” rule is that the decedent is not available to tell the jury why he did not move to the left lane or slow down. One inference that the jury could draw is that Hasib could not
We turn to the “exigent circumstances” instruction. One of the defendants’ theories at trial was that Hasib had violated Federal Motor Carrier Safety Administration Regulation 395.3(a) by driving too many hours without sufficient breaks. The regulation requires that drivers take ten consecutive hours off duty before driving no more than eleven hours in the next fourteen-hour period. The defendants proposed a jury instruction that allowed the jury to take that regulation into account in deciding whether Hasib was negligent before and at the time of the accident. The plaintiffs countered that the instruction was incomplete without also alerting the jury to certain exceptions to the regulation. Specifically, the regulation allows drivers to exceed the hours of driving during certain adverse conditions caused by traffic and weather. A driver may do so once a week and may subjectively decide that conditions warrant the additional hours. Because the defendants’ expert had testified to the existence of the exception (which the parties refer to as the “exigent circumstances” rule), the court decided to instruct the jury on the adverse driving condition exception so that the jury would have the full context of the regulation. The court explained to defendants’ counsel:
I understand that you‘re wearing blinders here, but there is a dispute in the evidence. So, you know, the
jury has a right to see what the regulations are and they have a right to see both sides of the case here, not just the one side you want them to see. I want them to have that context. So, you know, it‘s a neutral position. They get to see what the law is, what the regulation is. It doesn‘t — there‘s nothing that says, and he was confronted with this adverse condition. It‘s just what the law is. Let them make that decision. Whether they believe he was confronted with that or not, that‘s up to them to decide. Let them have the context, let them have the law, let them decide what the facts are.
R. 213, Tr. at 1165 (emphasis in original). As with the careful habits instruction, the defendants do not contend that the jury was presented with an incorrect statement of the law; rather, they simply complain that the evidence did not support giving this particular instruction. As is apparent from the passage we just quoted, however, this was a quintessential exercise of the court‘s discretion and nothing about the court‘s reasons for giving the instruction even hints at an abuse of that discretion.
C.
We turn to the defendants’ claim that the court should have entered judgment in their favor and against Hasib‘s estate on the contribution counterclaims they filed in response to Edin‘s rescue doctrine claim. According to the defendants, the jury found that Hasib was 45% at fault for the accident,3 and
[W]here 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though
judgment has not been entered against any or all of them.
Further, on the claim of Edin Karahodzic as Personal Representative for the Estate of Hasib Karahodzic, the jury will first be asked to determine the relative fault between Defendants and the Estate. This determination will then be used to determine allocation of fault on the individual injury claim of Edin Karahodzic.
R. 142, at 4.
The rescue doctrine applies when a plaintiff brings a negligence action against a defendant whose actions have placed a third party or the defendant himself or herself in a position of peril. Reed v. Ault, 969 N.E.2d 515, 527 (Ill. App. Ct. 2012). A rescuer who voluntarily attempts to save the life or secure the safety of another person in peril is protected by the rescue doctrine from a claim of contributory negligence unless the rescuer has acted rashly or recklessly. Reed, 969 N.E.2d at 527; Strickland v. Kotecki, 913 N.E.2d 80, 83 (Ill. App. Ct. 2009). A plaintiff who is injured in a rescue attempt is also allowed to
We agree that the plain language of the Contribution Act resolves this question, but we conclude that it resolves it against the defendants. By its terms, the Contribution Act applies “where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death.”
It is easiest to see the distinction when considering a Contribution Act case outside the context of the rescue doctrine. See Laue v. Leifheit, 458 N.E.2d 622 (Ill. App. Ct. 1983). In that case, Leifheit, the driver of a car, was originally the plaintiff (along with four members of her family who were passengers) in an action against Laue, a truck driver from whom they recovered damages for injuries sustained in a car/truck collision. The original jury found that Leifheit was thirty-three percent comparatively negligent in causing her own injuries in that action. Laue subsequently brought a claim for contribution against Leifheit, seeking payment from her for thirty-three percent of the damages that Laue paid to Leifheit‘s four passengers in the original action. Laue was granted judgment on a motion on the pleadings in this second action, and Leifheit appealed. Id. at 624.
In the original case, the jury that found that Leifheit was thirty-three percent negligent in causing her own injuries had been instructed that the issue of contributory negligence did not apply to the passengers. Nevertheless, in the second case, the trial court determined that “it axiomatically follows if it [her contributory negligence] contributed to her injuries, it would also contribute to the injuries of the other people in her car.” Id. at 626. The appellate court disagreed, finding that no jury had yet determined Leifheit‘s liability to her
Even in cases where a plaintiff is partially at fault, his culpability is not equivalent to that of a defendant. The plaintiff‘s negligence relates only to a lack of due care for his own safety while the defendant‘s negligence relates to a lack of due care for the safety of others; the latter is tortious, but the former is not.
Laue, 458 N.E.2d at 627 (quoting Coney v. J.L.G. Indust., Inc., 454 N.E.2d 197, 205 (Ill. 1983)). The court also agreed with Leifheit that:
she was improperly precluded from litigating the issues of her liability to her passengers and her culpability relative to Laue‘s. The jury‘s finding that 33% of the combined negligence which caused the
damage to Leifheit was attributable to her does not translate to a judgment that she is therefore subject to liability in tort in that percentage as well. Consequently, for purposes of a contribution action, her liability “in tort” has never been established; only her lack of due care for her own safety.
Laue, 458 N.E.2d at 628. In other words, in the original action, the jury had not found Leifheit to be a tortfeasor, a person subject to liability in tort.
The defendants bore the burden of pleading and proving their right to contribution from the estate on Edin‘s rescue doctrine claim. To make out their third party claim, the defendants needed to prove that Hasib was negligent towards Edin. To successfully prove that claim, they should have demonstrated Hasib‘s duty to Edin as rescuer, proved that Hasib breached that duty, and shown that the breach proximately caused Edin‘s injury and resulted in his damages. Laue, 458 N.E.2d at 628. See also Carter, 487 N.E.2d at 1270.6 Not only did the defendants make no attempt to prove Hasib‘s negligence towards Edin, they did not correctly allege negligence towards Edin in their third-party complaint. R. 33. See Carter, 487 N.E.2d at 1269 (in order to make a claim for contribution
D.
Finally, the defendants claim that the trial court erred as a matter of law in allowing the jury to award damages for Esma‘s lost earnings. The Illinois Wrongful Death Act provides that, “the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin of such deceased person.”
There was no line on the verdict form asking the jury to award damages for Esma‘s lost wages. The jury was asked generally to state an amount for “[g]rief, sorrow and mental suffering.” R. 170. The plaintiffs argued to the jury that Esma was precluded from working because of the mental health consequences she suffered as a result of Hasib‘s death. The
AFFIRMED.