*1 hide which is rendered uninsured virtue of by a named driver exclu- sion. case, the instant Grace must seek under her recovery pol own
icy for the and death of injury her son while an occupying uninsured vehicle. This would have been the result had the Fred vehicle been uninsured completely rather than uninsured as a result of the exclu sion. We see no frustration of the public expressed in section policy 143a such a result. Since the parties do not dispute any material facts and since construction of an insurance policy is a matter of law, summary judgment is an appropriate in the disposition instant case. See Protective Insurance Co. v. Coleman 1245. reasons,
For the foregoing summary judgments the circuit court of County Marion are affirmed.
Affirmed. LEWIS, JJ.,
HARRISON concur. al., FRANCES E. KEMNER All et Other Cases Consolidated With 80-L-970, COMPANY, Cause Plaintiffs-Appellees, No. v. MONSANTO (Bruce Defendant-Appellant Ryder, Appellant; D. County,Appellee). St. Clair
Fifth District No. 5—88—0420
Opinion July filed 1991.
GREEN, J., concurring. specially
BARRY, J., concurring part dissenting in part. Eaton, Coffield, Slavin, Timothy Ungaretti, Chicago,
J. & Harris Craven, Heinean, P.C., Springfield, James C. and Kenneth R. Bruce D. Holt, Coburn, Putzell, Louis, Ryder, Dudley all Croft & of St. W. Yon Missouri, appellants. *5 Belleville, Baricevie, appellee for St. Clair Attorney, of
John State’s County. Carr, Korein, Kunin, Montroy, Bogard, of Carr, Tillery, Glass &
Rex Louis, Seigfreid, Runge, Leonatti & Seigfreid, East and Jerome W. St. Mexico, Missouri, appellees. Pohlmeyer, of for other of the court: opinion JUSTICE LEWIS delivered the from an ad- Company This an Monsanto appeal by case involves in circuit court of St. Clair verse in of 65 plaintiffs verdict favor County. Illi- brought County,
An action was in the circuit court of St. Clair nois, Monsanto plaintiffs against Company five defendants: (Monsanto), (Norfolk), Norfolk & G.A.T.X. Railway Company Western Corporation (GATX), General American Transportation Corporation Industries, (General American), (Dresser). and Dresser Inc. Plaintiffs’ trial, 20 original complaints were consolidated for trial. Prior to cer- tain claims defendant third-party against third-party Willamette-West- ern Corporation were severed from the case. Certain counterclaims against Monsanto and also These third-party Norfolk were severed. claims and in pending counterclaims remain the circuit court. Prior to verdict, all other settled the plaintiffs. defendants than Monsanto
Plaintiffs’ consolidated cases were tried defendant against Monsanto only. complaints, Plaintiffs’ second amended which were evidence, counts, filed after the close of alleging were two count I a strict count II liability theory and in a wilful and wanton conduct theory. I, The returned a verdict in favor of Monsanto on count jury pertaining dangerous, to the claim that the was product unreasonably II, favor of on count no for plaintiffs awarding losses, losses, noneconomic for plaintiffs to each of 63 economic $1 $14,500 losses, each property damages other two $16,250,000 damage in a verdict. joint punitive
A judgment was entered on the on October 1987. On verdicts 10, 1987, against November the court entered a Monsanto judgment of St. in the amount of County extraordinary favor Clair costs $84,294.26. evidence, Also at the close of the but before instructed, the court its counsel Bruce D. Ryder fined Monsanto and $10,000 $1,000, to section 2—611 of the respectively, pursuant 611). Code of ch. (Ill. par. Civil Procedure Rev. Stat. 2— Monsanto filed a motion issues to the post-trial raising pertaining 22, 1987, II, 10, 1987, judg- October verdicts on count the November 27, 1987, order August the court’s ment on costs and extraordinary only motion relief post-trial requesting Plaintiffs filed a sanctions. II. 22, 1987, verdicts on count nonpunitive damage as to the October A there was no finding just were denied. Both motions post-trial made to Su appeal pursuant enforcement or reason for delaying the remain 304(a)), Ill. 2d R. in view of 304(a) (134 Court Rule preme appeals claims. Monsanto third-party severed counterclaims and ing on ex II, judgment on count from the on the verdicts judgment costs, on sanctions. order traordinary chemical and subsequent This out of a train derailment case arose Missouri, on 1979. Sturgeon, January at spill that occurred Il- Sauget, plant sent from its evidence revealed that defendant contained small linois, of OCP-crude which tank car shipment by formed 8-TCDD. The dioxin was a dioxin called quantities of derailed, gash and a The train manufacturing process. as a part 19,000 of OCP- gallons some on the of the tank car caused bottom *6 rest. There the train came to onto the tracks where spill crude of dioxin in the that there was some question quantity seems to be no should have known that Monsanto either knew or OCP-crude and days that it was some It also revealed the evidence this fact. was of the possibility crews were notified clean-up later before the dioxin in the spill. who were residents in this case are individuals plaintiffs
The spent Sturgeon time spill the time of the who Sturgeon at suffered alleged they Plaintiffs spill. after the various reasons to the dioxins contained exposure a result of personal injuries as injuries for such and that Monsanto was liable chemicals spilled wanton con and wilful and products liability of strict under theories for 3x/2 hearing after evidence returned its verdict duct. The jury on the for Monsanto weeks. It found deliberating eight and years and wan wilful count but for liability strict products set forth. ton conduct count as heretofore in this case to discuss evidence counterproductive It would be addressed to the issues specific of that relevant exception with months, in chief lasted some The case plaintiffs’ this opinion. The trial began its defense. present 24 months to the defendant took re- jury and lasted until on February selection jury of the transcript proceed- 1987. The on October turned its verdict not 6,333 We will some exhibits. 91,555 along with ings pages totals and personal of causation issues relating address evidence to those trial related evidence at The damages. majority injury occurred, injury that no issues, personal determined jury since the but thereon, and no was taken there is no need to address those appeal subjects. defendant, Monsanto, filed a motion but 2,700-page post-trial the court to file an motion not to exceed required by abbreviated This was not error as all issues have been covered pages. fully
and addressed on brief appeal. Although defendant-appellant’s authorities, contains issues and subissues listed in its many points the brief does set forth the issues on fashion. We appeal broader will address those are only necessary issues that this court feels dispose The issues are: appeal. presented by defendant
1. Whether the evidence trial so introduced at overwhelm- favors Monsanto that trial court in not ingly entering erred a judgment notwithstanding the verdicts as to count II of plain- tiffs’ second amended complaints.
2. Whether misconduct of counsel clos- plaintiffs’ during ing argument improperly inflamed the to award jury punitive damages based on passion prejudice.
3. Whether the trial court erred in instructing on the law of corporate complicity.
4. Whether plaintiffs’ prove failure to or actual any injury damages proximately alleged caused Monsanto’s wilful and wanton conduct requires judgment notwithstanding the ver- dicts as to count II of second amended plaintiffs’ complaints.
5. Whether the award of in this case vio- lates public Illinois policy eighth and fourteenth amend- ments of I, the United States Constitution and article section of the Illinois Constitution.
6. Whether Monsanto is entitled ato new trial or remittitur based on the excessiveness of the award of punitive damages.
7. Whether the trial admitting court erred in certain irrele- vant and inflammatory evidence.
8. Whether plaintiffs’ attorney’s improper trial tactics preju- *7 diced Monsanto.
9. Whether the trial court error committed reversible to conduct refusing a voir dire concerning jury’s exposure to the complete transcript trial and extensive that was publicity prejudicial Monsanto.
10. Whether Monsanto deprived right of its fundamental to a fair trial due to the court’s conduct of the trial.
11. Whether the trial court erred in sanctions imposing against Monsanto and its counsel to section 2—611 of pursuant par. Civil Procedure. Ill. Rev. Stat. ch. Code of
2-611. rulings procedures the trial court’s and denied
12. Whether clause of the process Monsanto a fair trial under due United States Constitution. erred in Monsanto’s ordering
13. Whether the trial court of a support motion to stand as a brief original post-trial amended motion which was restricted post-trial court-ordered in length. excluding testimony erred in
14. Whether the trial court Kimbrough. of Dr. Renate errone- cumulative effect of the trial court’s
15. Whether the Monsanto of a fair trial. rulings deprived ous by included claims preempted 16. case plaintiffs’ Whether Federal law. of amounts paid Monsanto is entitled to a setoff
17. Whether codefendants. settling its plaintiffs by assessing extraordinary 18. the trial court erred Whether County. Monsanto favor St. Clair against costs erred in Monsanto’s mo- denying 19. the trial court Whether non conveniens. tion to dismiss on the basis forum briefs, record, exhibits, trial transcripts, The common-law the trial in size and motions, rulings trial are monumental post-trial However, attorneys appellant for both length. way the succinct arguments has their briefs and appellees appeal handled court, all involved are attorneys to this great been of assistance Dealing great with the vol- on their complimented presentation. to be least, been, an over- say counsel has ume of the record task. whelming that could be ad- a number of issues
Although great there are the puni- dressed, basically propriety at the case bar deals $16,250,000 assessed in the sum of damage award exemplary tive overriding a paramount It seem that general in a verdict. would loss and noneconomic finding of verdicts “0” issue is whether a series allow is sufficient to each of 63 plaintiffs economic loss for “$1.00” issue and ruling on this An adverse verdict to stand. exemplary re- without would reversal require to Kemner the issue of new possible go question issues mandment, while other trial. plain- each of 63 in favor of individual verdicts returned follows: damages as
tiffs and assessed damages as follows: compensatory assess “We
197 Economic loss 1.00 $ loss Non[ ]economic $_0” jury also a general returned verdict which read:
“We, the Jury, damages assess in the exemplary amount of $16,250,000.00.” Kemner,
As to Frances E. and William F. assessed dam- jury ages as follows:
“We assess the compensatory damages as follows: $14,500.00
Economic loss jeconomic loss Non[ $_0”
Separate verdicts were returned for each of the Kemners. damages, Noneconomic this, a tort case such as are compensa- tion for the actual injury plaintiff. Plaintiffs’ counsel argued properly closing argument when he described noneconomic loss as the award for disability and for pain suffering and economic loss as the award for such things past and, and future expenses medical in the case of Kemners, their property damage.
Here, awarded no dollars for nom- injury and inal damages of Therefore, economic loss. $1 the question becomes whether a verdict for million in punitive damages $16.25 can stand when there is no damage found for injury and nominal damages for economic loss.
In each of the amended complaints consolidated here the plaintiffs alleged that the defendant committed certain acts and omissions reck- lessly, wilfully, case, In the wantonly. proper there is no question that punitive damages can court, and will be awarded. Our supreme on several occasions recently, has considered punitive damages.
In Loitz v. Remington Arms Co. (1990), 404, 138 Ill. 2d 397, 401, 563 N.E.2d the supreme court stated: “Punitive, or exemplary, damages are not awarded as com pensation, but serve punish instead to the offender and to deter and others from party committing similar wrongdo acts of Welch, (Gertz v. ing in the Robert Inc. future. (1974), 418 U.S. 323, 350, 41 Mat 2997, 3012; L. Ed. 2d 94 S. Ct. tyasovszky v. West TownsBus Co. 61 (1975), 35[, Ill. 2d 330 509]; N.E.2d (Second) Restatement §908(1) Torts & Com a, ment at 464 (1979); Owen, Problems in Assessing Punitive Damages Against Products, 49 U. Manufacturers of Defective Chi. L. Rev. 7-8 (1982).) nature, Because of their penal puni tive damages are not (Deal v. Byford (1989), favored in the law. Motorola, 127 Ill. 2d 267]; Kelsay Inc. 203[, 537 N.E.2d (1978), 172, 188[, 2d 353]; 74 Ill. 384 N.E.2d Cornell v. Langland (1982), 474-75[, 109 Ill. N.E.2d 985].) enough, puni initial decision whether Appropriately tive case in this State damages may imposed particular is a normally judge. matter reserved the trial J.I. Case Co. Plumbing Heating, Inc. & McCartin-McAuliffe 447, 453[, 260]; Ill. 2d Hammond v. North Ameri 195, 211[, can Corp. (1983), 210]; Asbestos 192, 197-98; v. Rawalt Ill. Eshelman Rev. cf. *9 1987, 110, par. Stat. ch. 2-604.1 ***. punitive an of Describing circumstances which award Motorola, damages appropriate, Kelsay is this court Inc. 172, (1978), 186[, 353,] Ill. 2d 384 N.E.2d stated: 74 ‘It long punitive has been established in this State that or damages torts commit may be awarded when are exemplary fraud, malice, oppres ted violence or with actual deliberate sion, gross or such willfully, or when defendant acts disregard rights a negligence as indicate wanton 146 Ill. (Consolidated (1893), 614[, others Coal Co. v. Haenni assessed, 35 162].) punitive damages N.E. Where may in the nature as a warn they are allowed punishment from ing and to deter defendant and others example (Eshelman like in the v. Rawalt committing offenses future. ” 131 (1921), 192, 197[, 675].)’ 298 Ill. N.E. (1983), App. 114 Ill. Hazelwood v. Illinois R.R. 3d Central Gulf 1199, 703, punitive an excellent developed analysis N.E.2d court, dam damage analyzing punitive awards. The Hazelwood after law, age say: went on in Illinois is damages clearly the nature of
“Today,
punitive
(Kelsay.)
is
for the
That
singular
punishment
defendant.
—it
designed
purposes: (1)
is
in turn to
three
punishment
promote
defendant;
to deter the
against
(2)
to act
retribution
future;
committing
wrongs
from
similar
defendant
in origi
others from similar conduct.”
(3)
(Emphasis
deter
Hazelwood,
712,
3d
at 1207.
nal.)
Ill.
at
N.E.2d
App.
However,
into issue
point
bringing
at
this court
is not
on the
damages
a
verdict will stand based
whether
defendant,
rather,
with the
but,
preliminary
we are faced
conduct
damage
injury
for
verdicts which allowed no
problem jury
$1
when
problem
with this
for economic loss. The trial
faced
judge
for
n.o.v.
judgment
with the
motion
dealing
post-trial
not recognize
Illinois does
a cause of action for punitive dam
ages
(Florsheim
alone.
Indemnity
(1979),
v. Travelers
Co.
75 Ill. App.
298,
3d
424. Florsheim court held that since the plaintiff there could not
recover actual
on the
or for
other
policy
claim
injury,
for punitive damages
fail,
must also
citing Tonchen v.
Equip
All-Steel
ment, Inc. (1973), 13 Ill. App.
3d
Plaintiffs apparently concede their brief that a punitive damage award must be supported an actual by damage award argue but that nominal damages satisfy that requirement. Defendant argues that it is when only there is an invasion of a legal right, such as an intentional tort, or when it is not possible for plaintiffs prove the amounts of their loss or damages, damages nominal can a support punitive award. They that, further argue case, in the instant the al plaintiffs leged that were they physically injured by defendant’s conduct and devoted great a portion of the trial to the extent S^-year prove their injuries. If plaintiffs case, had their proved would they have been Here, entitled to actual damages. the jury returned “0” for ac tual injury damage and for economic loss. Their injuries $1 were capa calculated, ble of being fact, and they, asked for million in com $34 pensatory damages. The plaintiffs to liken attempted wilful and wanton conduct to intentional conduct and cited cases that involved general trespass. However, in the instant case there were neither alle gations nor findings tort. jury intentional The instruction submitted
200 plaintiff given by the the court wilful and wanton con defining
duct omitted to intentional This was not any reference conduct. a case or a it was prove intentional tort case where dam impossible trial, ages. The fact is after no plain jury, 3x/2 found years wrongful damage punish actual but decided to defendant acts 1949 incident through years from several after the in Stur occurring geon, Missouri.
Based we that the upon foregoing, punitive damage hold found jury award must be reversed. The that the suffered plaintiffs damage, and, no since there no underlying compen noneconomic are no stand. Nor satory damages, punitive damage award can will indicated, verdict stand on for economic loss. As we have verdicts $1 alleged this tort a is not a case where there was an intentional nor case damages easily not The tried computed. where could argued for actual punitive damages, although they case for we the verdicts economic damages, per plaintiff believe that $1 only punitive damages loss entered to sustain award. were verdict not jury damage, that there was no actual and this found is, therefore, thus, appealed underlying tort; There no by plaintiffs. Builders, cannot v. Home Inc. (Naiditch verdict stand. Shaf 245, 3d 512 N.E.2d do not have to con (1987), App. 1027.) We evidence, sider conflicts because the below made jury Motorola, 74 Ill. Kelsay (1978), stated v. Inc. 2d decision. As was 172, 186, 353, 384 N.E.2d 359: is
“And, damages punitive while measurement of whether facts of question, preliminary question imposition damages case justify particular 73, 87[, 22 Ill. 2d (1961), one of Knierim v. Izzo properly law. N.E.2d 157].” C.A.R. Leasing Leasing, Auto Co. v. Embassy/Main The court 335, App. Inc. 155 Ill. (1987), expressed 3d N.E.2d of courts with respect imposition familiar concerns cautions of punitive damages: law (Kelsay are not a favorite in the
“Punitive
353;
Motorola,
Hazel
(1978),
Inc.
74 Ill.
114 Ill.
wood v. Illinois
R.R.
Central Gulf
with caution and
1199)
only
should
be allowed
450 N.E.2d
(Quad County Distributing
limits
Co.
confined within narrow
Burroughs Corp. (1979),
App. 3d
take
Ill. 2d
must
caution
denied
Courts
appeal
unwisely
awarded.
improperly
to insure
are
they
*11
(1983), 97 Ill.
Corp.
v. North American Asbestos
Hammond
201
Motorola,
210;
N.E.2d
Inc.
Ill. 2d
Kelsay
172,
Whether assess of law. 22 Ill. 2d question (Knierim v. Izzo 157.)” erred its We hold that the trial court and abused discretion not n.o.v. the verdicts were returned granting judgment assessing after loss and economic as compensatory damages “0” noneconomic loss $1 for each plaintiff. did not
Although jury we have address the evidence on ver- discussed, question dict heretofore we do have to consider the evi- dence on loss damage (economic the issue the Kemners’ land ver- dict).
In to the addition verdict for each plaintiffs economic $1 loss, $14,500 returned separate verdicts of for economic loss in favor of both Frances E. Kemner and William Kemner. F. These damage verdicts were for These property losses. verdicts also cannot stand and that, must reversed. Mr. Kemner at the testified time of the spill, land, he was discussing possibility selling including both the land lands, for which he was seeking and other but after the spill, purported buyer However, did want the land. there was no evidence of kind came presented dioxins onto There was property. spill some on the 39 acres in but question, no evidence of that, dioxin there. The evidence from disclosed certain made, 2, 3, 7, tests 8-TCDD, i.e., dioxin, was not identi- specifically fact, fied In soil. plaintiffs’ expert specifically told not to test for dioxin.
The complaint Kemners maintained their second amended Monsanto -wilfully and failed to remove “toxic wantonly substances” (dioxin) from Boone Their was with reference to County. complaint dioxin and not to The OCP-crude. Kemners admitted their brief that Mr. Kemner did not dioxin testify precisely that caused dimi- nution in the did value their nor else so property, anyone testify. contamination, The claim on was based dioxin but no evidence such contamination came in. act alleged of Monsanto was al- wrongful lowing dioxin they land. The must were prove damaged wrongful plaintiffs’ argument, act final alleged. they told the “for Bill jury, you Frances Kemner and Kemner have to decide damaged value that was when dioxin property contaminated it.” our record,
From careful examination of the there is no evi dence, indirect, direct places question. dioxin on the land Further, the circumstantial but no dioxin.
There was some OCP-crude to the soil and would indicated that TCDD binds produced evidence *12 did Although phenols phenols. remain closer to the than would spill the evi- spill, plaintiffs’ in the after the even spring reach the farm the accompany phenols that dioxin did not dence tended to prove from the site. away spill in a tort action is that
“The rule of general from the injuries resulting directly for all wrongdoer is liable not acts, could or should have been wrongful they whether him, legal are the particular damages by provided foreseen to the wrongful imputed of the act and natural consequences antici have been defendant, might reasonably and are such as fall damages do not Remote, contingent, speculative or pated. Hos v. Lutheran General general rule.” Siemieniec within 706. 117 Ill. 2d pital of dioxin of a small amount not that the evidence We do believe spill, site of the could Creek, downstream from the Saling found in flowed from the the dioxin would have to an inference that give rise The was that Kemner evidence property. site of the onto the spill in all likelihood did so that the dioxin was diverted eventually flow property. or onto the Kemners’ go through instructed that the condition and the allege jury The plaintiffs damage, caused dioxin) (presence of the orthochlorophenol-crude prop- the Kemners’ present of dioxin on there was no proof but since little evi- Indeed, precious fail. there was claim must erty, damage Kemner and testimony It was limited to damage. dence on land by experts. evidence some circumstantial Eastern R.R. Co. v. Peoria & case of Pedrick
The landmark the rule that 494, 229 well established Ill. 2d N.E.2d (1967), 37 only entered n.o.v. judgments directed and ought verdicts to be its most evidence, aspect viewed in when in which all those cases no movant that overwhelmingly favors so opponent, to the favorable stand. We believe could ever on that evidence based contrary verdict requires the record damage Kemners’ farm in the case of the Thus, analysis our upon based of a n.o.v. judgment justifies entry is damage compensatory Kemner and the damage issue remandment. sue, verdicts without we would reverse both issues that would other this, will also consider we Having decided for new trial. remandment reversal and require revers- court committed that the trial appeal Monsanto asserts necessary it was to instruct the refusal through error its ible providing a verdict in order to return complicity” “corporate to prove a Monsanto submitted its punitive damages against corporation. court, instruc- rejected instruction No. 11 to which it. Defendant’s tion No. 11 reads follows: through can its corporation only
“The Defendant as a act of- For purposes awarding ficers and employees. compensatory act or omission or within damages, any of an officer employee of his or scope action omission employment corporation. However, in order basis provide Defendant a Defendant, an award the act punitive damages against or omission which caused this Plaintiffs’ in- proximately [sic] juries authorized, in, must have been ratified participated officer of the superior corporation.” Defendant Monsanto vigorously giving lobbied for the of this instruction in conference, citing among cases, instructions other Tolle Inter Lines, state Systems Inc. Truck 625, in which we held that corporate required complicity
to be proved order to impose punitive damages against corpora tion. trial rejected argument court Monsanto’s and gave plain *13 tiffs’ instruction No. 10 over objection. Monsanto’s
The gave 10, court No. plaintiffs’ instruction which is Illinois Pat- Instructions, tern Civil, Jury 1971) (hereinafter No. 50.11 ed. (2d IPI Civil 50.11): 2d No. defendant,
“The Monsanto is a and Company, corporation can act only through its or officers and act employees. Any omis- of sion an officer or employee within the of scope his employ- ment is the or action omission of the corporation.” defendant This instruction is respondeat referred to as the commonly superior instruction and was given without modification.
The corporate
rule
from
complicity
stems
this court’s decision
Lines,
in Tolle
Systems
v. Interstate
Truck
(1976),
Inc.
3d
App.
771,
625,
Tolle,
356 N.E.2d
and others which followed
e.g., Oakview
New Lenox School District
122 v. Ford
Co. (1978),
No.
Motor
61 Ill.
App. 3d
544;
378 N.E.2d
v.
Scaffolding
Pendowski
Patent
Co.
(1980),
910;
89 Ill. App. 3d
411 N.E.2d
Holda v. County Kane
of
(1980),
3d
552;
410 N.E.2d
Lipke
Celotex
Corp. (1987),
153 Ill. App.
appeal
dismissed
(1989),
“Punitive can be awarded if, but by agent only ter other of an act an principal or because if: doing the manner of the
(a) principal authorized act, or reckless in principal was unfit and the was
(b) agent him, or employing managerial capacity in a
(c) agent employed or acting in the scope employment, rati- managerial agent or a (d) principal principal fied or the act.” approved language Mattyasovszky, this court stated
Drawing Lines, Inc. v. Interstate Truck 42 Ill. App. Systems Tolle 625, 627, that court indicated 771, 773-74, supreme (Sec rule as the Restatement approval expressed complicity ond) Agency: *** consistent with the rationale “The rule seems complicity Either a basis for damages. concept punitive
behind the deliberate some wrongdoers, punishment deterrence this sanction corporate participation should shown before punitive applied. analysis will allow complicity [Citation.] corporate conscience where the institutional damages mas- corporate protecting be aroused while master should properly super- when a liability ter from of aggrava- circumstances requisite acts with vised employee added.) (Emphasis tion.” of evidence paucity support there was
We went on to find *14 rule corporate damages complicity the under the punitive award of rules the the ignored truck-line company where a for the driver for checking signal a and without switching lanes without by road as autho- not be construed found these acts could passing traffic. We in- was no evidence defendant, fact that there given the the by rized company and that the was unfit employee to show that the troduced in man- acting a him, the was employee that employing was liable for acts. complained-of the ratified company or that agerial capacity, acts implicated could not be shown be Where the company its aris- punitive damages it was not to liable for employees, found be ing complained-of from those acts. corporate rule set out in Tolle has complicity adopted been
cases from
v.
74 Ill.
(1979),
other districts: Sherman
Field Clinic
154;
App.
County
(1980),
3d
392 N.E.2d
Holda v.
Kane
Ill.
App.
552;
Scaffolding
3d
410 N.E.2d
Pendowski v. Patent
Co.
910;
89 Ill.
and Lee v.
Bank
App.
Heights
The corporate is, therefore, complicity rule current state Webber, law in This recognized Illinois. Paine McCarthy v. Inc. (N.D. 1985), stated, 618 Supp. E wherein the court “Illi nois law is clear that respondeat superior alone principles jus will tify an award of punitive damages against an employer.” (McCarthy, 618 F. at Supp. recognition This rule is extant complicity Inc., well Douglass Magazine, Hustler wherein the court stated: is no question longer open an one for a federal court in “[T]he a diversity case governed by Systems Illinois law. Tolle Interstate *** Lines, Truck Inc. and Oakview New Lennox School Dist. No. 122 *** v. Ford Motor Douglass, Co. rule.” 769 F.2d adopt complicity at 1145. above,
As noted objected strenuously giving Monsanto the respondeat superior instruction the instructions during confer- ence.
In their brief admit its Mattyasovszky progeny hold punitive damages against cannot principal be awarded
206 respondeat adopt corporate
a the rule. superior theory complicity however, the language that of Monsanto’s in plaintiffs argue, struction, injuries wherein it states that a must have been plaintiff’s in, authorized, “superior or ratified a officer” the participated erroneous. Plaintiffs draw on several corporation, defendant 987, cases, 112 446 N.E.2d (1983), App. Lee v. Bank Ill. Heights 74 392 and Sherman Field Clinic Ill. 154, in the of their assertion that term should support proper that use of the term Plaintiffs contend “managerial agent.” is and that Tolle agent” Mattyasovszky, consistent with “managerial on the proof plaintiffs and Pendowski a stricter burden of impose through regard their officer” in cor “superior use of term “a Although big rule. assert that there is porate complicity terms, is cited in support difference” between no case law contention. Journal-Regis is defined Illinois State
“Managerial employee” F ter, .2d (7th 1969), Labor Relations Board Cir. Inc. v. National formulates, 37, 41-42, as an determines effectuates employee who to make ulti authority his one with discretion or policies, employer’s consideration and company ap mate determinations independent agent” is adopted. “Managing of whether a should be proval policy being in an acts supervisory authority, defined as who with employee judgment discretion and general powers vested exercise matters; interests are identified with those dealing with his corporate (7th Cir. Chesapeake Ry. & Ohio Co. of the Heater corporation Court case Board 1974), Appellate F.2d 1248. The Illinois School District Community Consolidated Education of Plainfield Relations Board No. 202 v. Illinois Educational Labor 1130, 1137-38, “managerial 898, 908-10, defines App. 3d determining, and effectu formulating, as someone who employee” Act. Labor Relations in the context of National ating policy Tolle, officer,” in dis- as does “superior the term Pendowski uses dam- complicity liability the basis for cussing corporate constitutes su- discussion what vicariously without ages assessed Richardson-Merrell, However, Roginsky v. Tolle cites perior officer. “supe- for the proposition (2d 1967), Inc. Cir. F.2d in, outrageous miscon- order, ratify or rior officers” must participate damages. for punitive master liable corporate to hold a duct order upon imposed not be damages may That that punitive case states corporation directors, or ‘the officers
“unless,
charged [by
court],
the relevant divi-
is,
company
of the
management’
authorized,
or,
in,
‘either
consented to
after
participated
sion
giving
damages.
the conduct’
rise to such
discovery, ratified
[Ci-
York,
words,
‘complicity
New
other
adheres to the
tations.]
rule,’
holding
corporate
punitive damages
master liable
order,
when
either
in or rat-
superior
participate
officers
‘only
outrageous conduct’.”
378 F.2d at
ify
(Roginsky,
A
to this
that in
case the defendant
footnote
discussion indicates
asserted,
dispute,
did
that for the
plaintiff
purposes
ap-
case, “management”
rule to
plying
complicity
only
included
presidents
vice-presidents
and that
corporation,
*16
whether,
law,
court did not have to
under
York
the acts
decide
New
of
employees
inferior
would
be deemed the acts
supervisory
otherwise
the
of
for
corporation
purposes
assessing
damages.
of
Ro-
punitive
ginsky,
It its appear, would that Tolle and would re- progeny quire corporate deliberate officers or participation by through and its directors order the in to fulfill the of rule for requirements complicity of purposes imposing corporation on the punitive damages vicariously. The Deal Byford (1989), cite v. 127 Ill. 2d N.E.2d for the it is a proposition corpora for necessary tion to through act an officer punitive in order to be held liable for damages. Byford The case an by involved assault an man apartment ager on a tenant the wherein court supreme found that the admission that Byford was the of complex resident the manager apartment agent Associates, an SRP his to employer, was sufficient satisfy standard, the with in of discussed the Re approval Mattyasovszky, statement (Second) of Agency (1958) imposition section 217C for the of to a agent employed as where the in principal a managerial and is within of his capacity acting scope the employ ment. The plaintiffs assert v. allows Byford imposition Deal punitive damages the complained-of where acts were not perpetrated officer, by officer, an let superior alone a if are they perpe trated agent,” aby “managerial corporate the rule is ful complicity However, filled. in Deal v. the in Byford, discussion made connec tion liability appears what from a careful of the case reading to be a partnership not a the corporation, agency’s agent’s roles as manager agent, were on an purported based assertion the there was no discussion of the of the on proper wording instruction punitive damages Furthermore, to the given points as Monsanto jury. out, Deal Byford published March 19 months after charging jury in the case at bar. its instruction language
Monsanto tendered based this court’s regard corporate complicity supported to the rule in Tolle. It its submission of instruction with reference to both Tolle and Pen- rejected dowski and out that had IPI pointed explicitly Pendowski the corporate complicity ap- Civil 2d No. 50.11 cases where rule further plied. plaintiffs’ closing argument Monsanto asserts respondeat superior instruction. compounded giving error at time that, It would the state of the law the appear given to IPI give the case it was to Civil jury, inappropriate went Pendowski, instruction, No. As while valid under 50.11. noted circumstances, other convey principles was ill-suited correct law to it act done an jury, impute liability by since could ordered, in, employee, rather than those only specifically participated (Pendowski Co. superior Scaffolding ratified officer. Patent The court Pendowski at the trial required found that it would be reverse outcome instruc punitive damages level issue based on the erroneous plaintiff presented compa tion even if the evidence of the adequate submission ny’s wilful and wanton conduct so as warrant alleged Pendowski, As this erroneous case to instruction jury. would and remand. require reversal including other issues excessive- many major raises appellant tactics, verdict, failure to con- improper
ness irrelevant and trial conduct, exclu- concerning publicity, duct dire extensive court’s voir rulings, of erroneous court sion of certain cumulative effect testimony, *17 to expressed our determination above light and several others. to those respect questions reverse the of the trial court with judgment discussed, to our deci- of these issues is not crucial already resolution sion. its mo denying that circuit court erred in
Monsanto maintains the fur Monsanto oí non conveniens. tion for dismissal on the issue forum Nor Lowe v. precedent that clear set in court ther asserts the 792, Ill. 463 N.E.2d 124 (1984), & Western Co. Ry. folk same arises out the occurrence Although mandates reversal. Lowe Lowe the case, plain the are the same. In parties as in instant the Rail was the Railway and the defendant employees tiffs were the of the site of the are residents In the instant case way. Monsanto, manufacturer. is occurrence and the defendant the Illinois, and many County, Monsanto’s in St. Clair plant in St. Clair defendant’s acts and omissions claims center around the County.
209
Lowe,
reverse,
trial,
even after
as in
it
Although this court could
is interesting
arguments
basically
to note that the
made now are
the
same
made earlier
this cause. This court
denied
previously
ones
non conveniens
petition
appeal
defendant’s
for leave to
on the
forum
issue,
upheld
and that order was
court on December
supreme
4, 1986.
Recently, the Illinois Court had the Supreme opportunity has to discuss and thoroughly problems arising issues in forum cases. Boner Coal (See Peabody Co. 142 (1991), 568 N.E.2d International, v. Mitsubishi 883; Inc. (1990), Griffith Aircraft 2d 101, Boner and 209.) both were intrastate Griffith cases, to but factors be considered are to both equally applicable (Torres Walsh intrastate and interstate cases. 98 Ill. 2d 601.) N.E.2d The sole issue in the instant case is whether cir cuit court abused its discretion in denying Monsanto’s motions to dis non conveniens. The miss based court consist supreme has forum ently held that a trial is with court vested broad ruling discretion non on a conveniens its motion; decision will be only reversed forum if it is shown the court abused its in weighing discretion relevant (Meyers Textron, v. Bridgeport Machines Division of considerations. Inc. Ill. 2d test is whether the factors, relevant totality, strongly viewed their favor transfer to Griffith, suggested by forum defendant. Ill. 2d N.E.2d 209. factors,
We have all of the pri reviewed and considered both vate public, and find that the circuit did not its court abuse dis cretion in the motion denying distinguish to dismiss. We the instant case from Lowe location upon importance based plant. important Krummrich That factor along plaintiffs’ preference, witnesses, number Illinois and convenience out- of-State witnesses favor trial court’s decision. argued
Monsanto maintained on appeal plaintiffs’ case law, included claims that were Federal preempted by upon based due to preemption Federal statute well as due preclusion impact upon' disagree. commerce. there argue correctly We Plaintiffs was no allegation concerning shipment OCP-crude or dioxins. Count alleged II wilfully that Monsanto recklessly wantonly failed to test dioxin; dioxins; in its plant failed remove to warn failed inhabitants Boone County promptly; per and failed to warn those sons engaged plaintiffs. removal to There adequately protect ap pears no claim It product improperly shipped. *18 clear (Trans- that since the Hazardous Materials Act Transportation
portation Act) (49 app. seq. (1988)) governs U.S.C. et the trans- §1801 and, portation plaintiffs basically hazardous materials since the al- above, set is lege negligence shipment, no as forth there no preemption.
Even if there a sufficient connection with shipment, (49 app. claims not be Section 1811 would U.S.C. preempted. in pertinent part Act §§1811(a),(b) (1988)) Transportation states as follows:
“(a) General section, this provided (b) any re-
Except subsection thereof, or which quirement, political a State subdivision any chap- is set forth in this requirement inconsistent with ter, regulation chapter, pre- or in issued under this is empted.
(b) State laws thereof, political of State or subdivision
Any requirement, forth in which is not consistent with set requirement regulation chapter, under this chapter, this or in issued if, upon application appropriate of an preempted not determines, agency, State accordance Secretary require- procedures prescribed by regulation, to be such greater an level of to (1) equal protection ment affords of this requirements chap- than is afforded public by (2) does regulations chapter ter or of issued under this shall requirement not burden commerce. Such unreasonably in such specified extent determina- preempted not be long political for so as such State or by Secretary tion to administer and enforce ef- thereof continues subdivision such fectively requirement.” also to the regulations but applies apply
This section would preemption it is clear that the doc common quite law. We believe tort law stand imposing trine does States from common prevent law. See prevailing Federal imposed by ards stricter than those 77 Ill. 2d & Co. Ry. Rucker Western Norfolk 534; Coal Co. N.E.2d Ginn Consolidated 564, 793. it is cause, unnecessary we feel that reversing are this
Since we than hold that issue other into this go in-depth analysis an no preemp- case there is Federal all circumstances under tion. argued large also awards
Monsanto
excessive fine
violation
may be an
private parties
between
has
This contention
amendment of the Federal Constitution.
eighth
(See Browning-
States
Court.
rejected
Supreme
been
United
*19
Vermont,
Inc.
Disposal,
Inc. v.
Ferris Industries
Kelco
492
(1989),
219,
257,
106
Ed. 2d
109 S.
Monsanto also raises
U.S.
L.
Ct.
4,
due
claim.
on March
process
Supreme
the
constitutional
The
Court
1991,
the
“punitive damages
jury against
found that
the
assessed
Due
the
Pacific Mutual were not violative of the
Process Clause of
Mutual
(Pacific
Insurance Co.
Fourteenth Amendment.”
Life
Haslip (1991),
U.S___
_,
499
L. Ed.
111
Ct.
113
2d
S.
1032, 1044.)
long
went on to
as discre-
Supreme
say,
Court
“As
constraints,
is
tion
exercised within
due
is satis-
process
reasonable
at_,
21,
499
fied.”
U.S.
Monsanto to preclude admission of the of prior evidence incidents, dissimilar but its vain. efforts were in Plaintiffs maintained spread Monsanto chlorophenols throughout dioxin-contaminated years the world for knew it. 20 about also used this evi- They However, dence to bolster the credibility expert, of their Dr. Camow. the law is that when in- prior evidence incidents admissible those cidents are similar in nature to the to giving litiga- conduct rise The plaintiffs tion. argued testimony was not purpose to show that the incidents were similar but to demonstrate Dr. Car- knowledge beings. now’s its effect human concerning dioxins and Given the massive amount of evidence on this we subject, reject contention.
Loitz Remington Co. Arms (1988), Ill. App. N.E.2d that prior held incidents of similar are a nature admissi ble to show a conscious for disregard safety of others. The su preme reversed, court that, although but on the ground testi mony admissible, it failed Remington’s demonstrate the evidence was not sufficient. Loitz v. awareness. words, other Remington Co. Arms 138 Ill. 2d 397. Cincinnati,
Bass v.
Inc.
1076, 1083-84,
“In we hold that evidence of similar summary, injuries or involving substantially occurrences same simi- may lar not be used show that manufacturer products acted conscious of the of others and cannot disregard safety damages.” claim support a for punitive the opinion are of that the admission into evidence of testi- We mony concerning great and all prior deal incidents sub- error, and, if sequent incidents we were not inclined reverse as set in this forth earlier we would and remand on this opinion, reverse issue. appeal
There remain two issues on that must be addressed. Those (1) imposition issues are: of sanctions Monsanto and Bruce upon Monsanto; D. of an attorney an order di- Ryder, (2) entry Illinois, Clair Monsanto to St. certain recting County, reimburse expenses. Monsanto, trial appeal asserts on that the court erred
Appellant, sanctions, when it section 2—611 of Code of imposed pursuant (Ill. 611), upon Civil ch. par. Procedure Rev. Stat. both 2— *20 sua attorney Ryder sponte. Monsanto and Bruce D. argument fail to in directly The address this their brief. 2— do under section Although they imposition discuss the sanctions court, their the they support position the do so that by only through trial did not Monsanto prejudice against court demonstrate though the feel of sanctions under section 2—611. Even we imposition Kemners do the Monsanto with by the not address issue raised authorities, of the is- clarity sufficient or citation of a brief discussion sue is warranted. the the McCann and
Following juror replace- court’s dismissal argued ment juror by juror, vehemently of this an alternate Monsanto camera against during the dismissal an in discus- replacement time, court should consider suggested sion. At that Monsanto that the itself, alleging the of McCann demonstrated recusing dismissal of the The court the remarks of part bias on the court. characterized the for recusal as attorney request Monsanto uncalled and the being made without basis. 1987, a motion August 27, seeking
The next Monsanto filed day, or, in dismissing of the court’s order McCann juror reconsideration alternative, ar- asking the the to declare a mistrial. Monsanto court gued the what became a motion to dis- joint that because court denied the miss the order dis- entry McCann March court’s juror though plaintiffs’ McCann was even missing juror inappropriate The motion again August ques- to do so on 1987. attorney moved in- that Monsanto was the and asserted tioned basis for the dismissal deci- of the notice in advance court’s by being any not jured provided response it from a documented sion, preventing generating thus the challenged for its action. Monsanto the court's asserted basis the court attorneys McCann that court’s statement to juror It agreed jury. removed from the also faulted had to have her to voir dire to determine court in order whether failing juror mo- was, actuality, plaintiffs. she The prejudiced against effort to diminish tion characterized the court’s action as an apparent jurors sitting panel per- the number of on the final who were case. receptive ceived court to be the defendant’s in camera on August The court heard 1987. At argument It time, replace the court its decision juror discussed McCann. fraught characterized the Monsanto motion as one with misrepresen- and, thus, tation a violation of section the Code of Pro- 2—611 Civil The against cedure. court then assessed Monsanto a sanction in the $10,000 sum of against attorney and assessed who signed motion, $1,000. original Ryder, Bruce D. a sanction in sum of The court awarded fees to attorney plaintiffs’ counsel the amount It August refused at that time to stay day, order. next $500. 28, 1987, the court day’s issued of execution of the stay previous imposing order and attorney sanctions fees and denied defendant’s oral motion to previously imposed. vacate the sanctions On November 10, 1987, the court entered a denying written order defendant’s motion to However, vacate the 2—611 order findings. same stated that the court not impose would sanctions based on those findings.
At the time of the conference conducted for prehearing ap court, peal August pursuant appellate Supreme Rule (134 Court 2d R. 310), parties agreed that the plain tiffs-appellees estopped contesting ap would be from the issue of the propriateness against sanctions Bruce application appellant D. Ryder and that the is stipulated plaintiffs-appellees conceded the *21 18, sue. An order 1988, August issued this court on by August filed 1988, 22, reflects this and concession. stipulation
The posture is, then, of this issue on viola- appeal as follows: the issue, tion of section regard 2—611 in to Monsanto remains viable but because of the 10, 1987, trial court’s order of sanc- November tions imposed pursuant to section not in 2—611 are issue. Neither the violation alleged of section 2—611 nor imposed against the sanctions D. Ryder 10, Bruce are in issue as a result of both November on court the order entered this case order of the trial August 1988. is, Procedure in its 2—611 of the Code of Civil
Section di form, on November drawn which became law present (Rule 11). (Western Procedure 11 from Federal Rule of Civil rectly App. v. Hornback Supply Auto Co. Rules of 11 of the Federal interpreting Federal case law Rule
764.)
of section
interpretation
can
as an aid to
Civil Procedure
be examined
Protection, Inc.
Service Co. v. Personnel
Contracting
2—611. Frisch
218,
Offending attorneys, both parties, of the rule further violations tice as in order to deter early possible (In Brown & Fleischer Yagman, resources. re judicial and conserve As the 1986), advisory 796 F.2d Weinberg (9th Baden Cir. & indicate, though it is the committee notes to Federal Rule “[e]ven un- rule, it may appropriate violates be attorney signature whose client. a sanction on the impose der the circumstances of the case *** notice to the court and seeking give A sanctions should party doing (28 so.” discovering a offending promptly upon basis party Comments, 1990).) 425 (West Supp. U.S.C.A. Rule Committee at and its bar, In the the court sanctions Monsanto imposed case at Monsanto, as the cli- providing notice to attorney sponte, sua without mo- that the court had determined the Monsanto attorney, ent of the made in filing tion to the dismissal of McCann a bad juror reconsider separate hearing does not mandate that a Although faith. the rule to the of sanctions: prior imposition held an issue of or to credibility a court asked resolve
“[W]hen faith can be made for the good argument determine whether taken, imposition risk of an erroneous legal position probable sanctions under limited and the value procedures *22 215 Prior hearing greater. opportunities additional are to be likely extent also influence the to charges to to Rule will respond hearing is necessary. which further *** The more serious the sanction both absolute possible the more expenditures, process size and in relation to actual Donaldson, at that will be due.” 819 F.2d 1561. bar,
In the case sanctions were lev monetary at substantial against ied no attorneys prior both Monsanto and one of its without tice of the intention impose pursuant court’s a sanction to section 611, thus short-circuiting process rights the due of both Monsanto 2— and its client, In view of the fact that was a attorney. Monsanto it, size against considerable sanction no monetary imposed tice to Monsanto was and the lack of for a inadequate, opportunity meaningful hearing abridged process Monsanto’s due impermissibly rights. The of attorney award fees is also The trial court’s improper. finding of a 2—611 regard violation section to Monsanto is therefore reversed.
Monsanto asserts that the trial issuing court erred in an order di- recting it to St. Clair County expenses reimburse for incurred during $84,284.96 the trial amounting fees, for juror juror mileage, juror deliberation, during fees, meals juror parking the cost of con- structing an annex for use storage as a room for agree. evidence. We
Juror fees and
expenses
travel
are the
responsibility
for
county
jurors
which the
their
provide
(Ill.
services
Rev. Stat.
ch.
per
diem par. 62).
juror
The
mileage
fees are to be
taken from
county
treasury and cannot be taxed as costs against
the losing party. (Chicago, Peoria
Ry.
& St. Louis
Co. v. Eaton
(1891),
Likewise, the taxing juror parking fees and meals for ju rors during deliberations as against costs Monsanto improper. No statutory authority mandates the payment personal expenses in curred by jurors the performance of their duties by county for which Sexton v. Henderson (See serve. they 234.) Ill. App. By extension, if the county does not have to pay jurors for monies ex pended on dining and parking serving, while the losing party does not have so, to do in the absence of statutory authorization. No statute authorizes jurors’ taxation of personal as costs expenses against los ing party. $6,540.96 trial court’s order assessing as costs against
Monsanto for jurors’ personal expenses erroneous. We reverse $6,540.96 the award of St. ex- County jurors’ personal Clair penses. charging
The order of the trial court to Monsanto the cost of an annex to store evidence connected with this cause building of action lacks a in law. courts make rules similarly may basis While costs can taxed or the ultimate au imposed, orders under which on a in the thority power impose party costs must be found statutes, allowing statute of costs must be recovery (Gruidl v. Schell strictly construed. “Costs” are allowances the nature of incidental dam *23 for
ages
prevailing party
made
to statute to reimburse the
pursuant
in
of the
expenses
pre
which were
incurred
the assertion
necessarily
Builders,
(Naiditch
Home
Inc.
vailing
in court.
party’s rights
Schaf
(1987),
245, 268,
1041.)
160 Ill.
512 N.E.2d
The
App.
County
case,
of St. Clair is not the
in the instant
and thus
“prevailing party”
the cost
room is
not
taxable to
constructing
storage
clearly
party.
Monsanto as a “cost” to the prevailing
Employment Security (1986),
Thurston v.
Department of
734, 737,
864, 866,
as
“com
being
defined “fees”
App.
individuals,
in the
pensation
public
officers for services rendered
Galpin
20 C.J.S. Costs
cause,”
citing
(1984)
of the
progress
§1
City
Chicago 135, 166,
(1911), 249 Ill.
affd
fees and
de
filing
The the courthouse funding capital improvements either or case litigants supported by statutory authority cessful is not performed by a “fee” for a law. It cannot be characterized as services The losing party. language official that would taxable to a public be expenses which characterizes order of November court,” costs and of the can- being regular upkeep “above and beyond expenses, to the for those county not utilized to make an award County The award to St. Clair authority. the absence of statutory $4,994 room in which to store evidence constructing for the cost of $4,994 pay Monsanto to directing the order improper. We reverse room to house exhibits. building storage for the cost of is reversed of St. Clair assessing County The order costs favor in its entirety. (1) is as follows: of this disposition appeal
In our summary, court on the verdict award- of the of the trial entered part judgment reversed; $16,250,000 (2) is ing plaintiffs punitive entered on the verdict award- part judgment of the of the trial court $14,500 reversed; (3) part judg- the Kemners each is ing awarding ment of the trial court entered on the verdict reversed; (4) other loss is than Kemners each economic $1 order of to St. Clair in the awarding County the trial court costs $84,284.96 reversed; amount of is of a (5) finding the trial court’s violation section 2—611 on the as to Monsanto reversed. Based above, judgment is reversed. We further hold that based our upon error, error, discussion of the other than the reversible this cause would, alternative, in the have to be reversed and remanded for a new trial.
Reversed.
GREEN,
JUSTICE
specially concurring:
expressed
of the
policy
Supreme
regard
Illinois
Court in
awarding
set forth
punitive damages
opinion
is well
in the
court
Loitz,
written
Justice
Frequently,
Lewis.
as of late
court has warned that because of the
penal
nature
dam
ages,
“are not
they
(Loitz,
favored in the law.”
138 Ill. 2d at
N.E.2d at
Mutual
Insurance
v. Haslip
Co.
Pacific
Life
U.S___
1.. L. Ed. 2d
111 S. Ct.
the United
States Supreme Court held that an
of punitive damages
award
does
However,
violate due
necessarily
process.
the majority opinion
there
its
began
analysis
by reciting
concerns which the members
*24
of that court had previously
as to whether award of
expressed
puni
tive
in
damages
civil cases is constitutionally permissible. That opinion
stated,
then
note once again
punitive
our concern about
dam
“[w]e
”
ages that ‘run
at_,
wild.’
Haslip,
U.S.
I in concur the decision to reverse without remandment and in the decision, alternative, in the to trial if merely grant a new our decision to outright reverse does not I agree reasoning stand. with the opinion of Justice I Lewis. write to separately only explain policies which I deem inherently involved in our decision and which I consider necessary prevent that “run punitive damages do wild.” These poli- cies concern whether punitive can damages be based upon merely nominal damages and the consideration to be that given evidence against tortfeasor punitive whom are damages sought has committed other similar acts of misconduct.
Justice Lewis out that no decision of an Illinois correctly points court of review of whether passed directly upon question puni- has tort damages predicated tive nominal that may upon damages, but in various cases indicates that actual language damages, ap- which more pear something damages, required. to be than nominal are opinion explains (1) involving also that no conduct intent to carefully here; present (2) plaintiffs, harm is had the found the other Kemners, than damages larger received actual than nomi- injury, Thus, damages nal could have calculated and awarded. two of been strongest punitive damages only reasons award of based nominal are the case from damages present. Accordingly, differs Corp. (7th 1987), Brown & Williamson Tobacco v. Jacobson Cir. 119, where, law, F.2d Illinois that court a defamation case applying upheld punitive predicated an award of an award of damages upon (1) nominal That court the conduct of only damages. emphasized per se, that defendant was libelous rise to a of giving presumption damages; (2) substantial and malice was shown. cannot asking punitive damages we hold that be based of to the non-Kem-
upon merely damages award nominal economic ner plaintiffs, requesting overruling prior prece- defendant is not stating puni- dent. It is we should not extend the merely operation tive to those whose incidence to the damage allegedly awards are wrongful slight they compensa- conduct is so not entitled circumstances, tion of a decision any substance. Under such based upon seems most policy appropriate.
A that a leading points majority text on the law of torts out damages recovery punitive predicated upon States do not permit it in the damages “[sjince precisely nominal but states that only an damages providing cases of nominal that the incentive for policy bring outrages play,” into court comes into bet- petty ter on nominal punitive damages damages. “view” is to allow based §2, Keeton, Prosser & Keeton on Torts at 14 (Emphasis added.) (W. that, 1984).) However, recognizes text also recent (5th ed. in tort litigation years, policy permitting exemplary and Loitz cases indi- special Haslip has come under as the scrutiny cate. article Professor David G.
The Loitz cites a law review opinion Owen, is, of the use of general, proponent a scholar who Damages Against Punitive damages. (Owen, Assessing Problems Products, (1982).) 49 U. Chi. L. Rev. Manufacturers of Defective large exemplary damage proliferation Professor Owen states liability cases has large product awards manufacturers against *25 to some of the law applicable caused him conclude that modifications He not discuss the types question to those of cases is desirable. does he does damages damages, of nominal but predicating punitive upon of pu- the size taking steps proliferation advocate to minimize damages manufacturers. against large nitive awards cases us, such who not re- permitting people In cases as that before did in- to injury punitive damages greatly ceive measurable recover any here, One exposure alleged plaintiff per- creases the of the tortfeasor. $16,250,000 award, share in not damage mitted to did punitive Sturgeon come to until the summer of well after the January She for 27 a.m. spill. stayed days, spending there hours of until 5 on all her a p.m. visiting but two those mother in hos- days Mexico, pital Missouri, plain- less than 25 miles Another such away. Columbia, Missouri, tiff lived a similar and had not away, distance However, in Sturgeon been the time of the or during spill cleanup. she husband, had washed the clothes of her who three four spent day hours a Sturgeon during cleanup collecting time of trash. of his One customers had a near site of place business and another of his spill, customers was involved in the cleanup. According to that plaintiffs husband, a glass on one occasion con- jar, taining mud and water and found in the rubbish of the latter cus- tomer, and spilled broke on that husband. He testified he felt burn- ing sensation from that liquid and washed himself. spilled immediately The plaintiff strong wife she upon washing testified smelled a odor her husband’s clothing. complained She of a of illness and panoply physical repercussions extending from headache and depression loss of problems. libido menstrual
The jury could have properly concluded misconduct defendant was of such a puni- character as to justify very substantial damage tive awards. If nobody was shown to receive any measurable personal injury conduct, from permitting an award of punitive damages to someone would serve the a tort- purposes punishing feasor punished, who should be others from con- discouraging similar duct, rewarding plaintiffs for and them their compensating expenses in imposing sanctions for dangerous improper and highly However, conduct. when such a wide little group persons having close connection with involving the occurrence the tort are permitted punitive limited, recover best, only at some otherwise reasonableness, undefined standard of dam- danger real “run ages Here, wild” other exists. we do not know how many people could also sue claiming nominal The tort here damages. alleged
does Minors appear subject repose. statute of could sue into the many years future. the proliferation view well-documented concern about awards, I
and size of the better punitive damage policy conclude *26 requires damage for unintentional generally limiting punitive awards torts As I damage. to those who suffer more than nominal have indi- cated, the of that existing prec- I with conclusion Justice Lewis agree damages edent to the award of to appear permit punitive does I also receiving damages those nominal economic here. consider only public considerations that policy support holding. regard damage need for limitation in to awards
Another to of attempts arises here from use evidence other occur- plaintiffs’ I improper rences to the wilful nature of defendant’s conduct. prove that, the agree Justice under court decision in supreme with Lewis Bass, Loitz and that of the in Appellate First District Court much of the evidence of those occurrences should not have been admitted. Prejudice when, closing to defendant compounded argument, to the should not plaintiffs’ jury jury only counsel indicated the of bearing upon severity consider this evidence as the defendant’s here, sought for were but the jury misconduct which should, here, a defendant for its punitive damage punish award by If those other of other misconduct of a conduct on occasions. evidence is to show the wilfulness that defend- properly defendant received trial, to the case giving ant’s in the occurrence rise on misconduct rulings upon receipt trial is its the great by required care the court to likely and failure do so is also to cause Any use of such evidence. awards “run punitive damage wild.” BARRY, dissenting part: concurring part
JUSTICE illogical approach I I deem to an by cannot subscribe to what opinion, The main my policy to reach a desired result. colleagues Pedrick, only outright, delivering allusion to reverses belated to SVz tireless, by work the trial crowning years blow dedicated judge, jurors and the who heard truckload evi- personnel, court dence, weeks, and then rendered verdicts which eight deliberated were in post-trial procedures. confirmed 91,555 (some evidence to the opinion quantity
The main alludes 6,333 exhibits) and then dis pages proceedings of transcribed that no personal “the all, ostensibly jury misses it because determined Ill. occurred, (217 taken thereon.” injury and no appeal jurors reading opinion at I 194-95.) don’t doubt but learn they what surprised, perhaps appalled, will be even sorely presented that the in this may “determined.” It well be true evidence trial, longest running juris trial American history civil review, but a unmanageable purposes jury is our prudence, I heard it all a trial think we must consider that evi judge. and so did evidence, its dence and determine if in fact when viewed in “all of so overwhelmingly most favorable favors aspect plaintiffs], [the contrary that no verdict based on that evidence could ever [Monsanto] 513-14.) (Pedrick, my stand.” 2d at N.E.2d at This colleagues and, guise by have failed do under the of unprecedented view, rationale, i.e., found my “legal” convoluted noneco jury $0 nomic damages, damages,” found no “actual ergo jury ergo (this found “no im injury,” finding being is inviolable thus, in the plicit judgment belongs main to the defendant. It opinion); verdict, is axiomatic that the even ink jury’s paper, reduced to Moreover, not “evidence” contemplated Pedrick. none of precedent cited in main stands for opinion disregarding Pedrick standard col reviewing judgment when motions for n.o.v. My leagues have their from gathered impressions jury’s findings entries on then, drawing an itemized verdict form and from inapposite *27 law, case rationalize their “as rejection verdicts a matter law.”
The majority’s approach a cardinal re appellate violates rule view that we not in “are the business of a second-guessing jury’s ” ‘clear intent.’ (People (1986), 396, 409, v. 112 2d 493 Spears Ill. 1030, case, N.E.2d In 1035.) jury (1) its verdicts by found: proved for liability defendant’s wilful/wanton miscon duct; (2) that plaintiffs their to established entitlement nominal com pensatory damages; and (3) punished that defendants should be for their significance misconduct. I would attach no fact that jurors damages awarded their nominal in the “ec space prelabelled $1 onomic” on the itemized verdict form rather than the “noneco nomic” space.
I believe it significant position being espoused by that the same the main opinion here was summarily rejected the court Harriss by 384, Elliott Ill. (1991), 207 3d 565 In App. N.E.2d 1043. Harriss, here, as the jury entered in the for noneconomic spaces “$0” damages. In the space designated expense for “the of nec reasonable essary care, medical -i.e., treatment services and economic received”— damages entered for jury “punitive dam space “$140.75.” —the ages,” “$5,000.” the jury Judgment entered accordingly. was entered here, Defendant on argued, was no appeal plaintiff as entitled to disagreed, “no The court injury.” holding award because he suffered simply: for and ‘nec did receive ‘reasonable’ compensation
“[P]laintiff
record
essary’
nothing
medical
There is
in the
before
expenses.
and must
finding
jury,
presume
us to contradict this
we
by
O’Bryant
the award
a sufficient factual
Foutch
had
basis.
[v.
389,]
App.
N.E.2d 958.” 207 Ill.
3d
Ill. 2d
at
In like the court v. Storzbach 1065, 1069-70, 211, 214, approved a verdict App. jury’s $35,000 for re awarding disability “the pain suffering $0 sulting appeal, challenged from the On defendant verdict injury.” court, as inconsistent. The after relevant and the reviewing precedent stating: presented jury, disagreed, evidence indication to follow some jury “Absent some failed evidence, indica law, some erroneous or an rule considered tion in that the was the result of the record verdict obvious (Rozner or we cannot that verdict. passion prejudice, upset Chicago Authority (1989), Transit indicated suffered [plaintiff] evidence [Plaintiff’s] and suffer as a result of the accident and disability pain both Yet, her expenses. medical ing. offered no evidence [plaintiff] [plaintiff] evidence indicated that was Conversely, defendants’ the accident in pain suffering prior treated for similar [plaintiff] It is that the concluded question. obvious they of the accident for which suffered a result disability $35,000. the jury It is also obvious that assessed at and suf that the [plaintiff] prove pain concluded that failed she or certain to be fering experienced experienced [sic] The evidence September accident. by caused we conclude jury, conclusion of the cannot supports this evidence or inconsistent, that the unsupported by verdict is the de Accordingly, a result of we affirm passion prejudice. cision of trial court.” in authority approving personal cited court as Perry
Cases
*28
Rogers
for
damages only
awards
economic
were
jury
Griffin
on
(court
approved
3d
Under these it is most to mindful of important the fact was not jury considering merely negligence, wherein resulting trial focuses on the harm to the injured plaintiffs and where evidence relating degree plaintiffs’ credible de- injury termines appropriate measure of compensatory damages. This is a case, wilful/wanton misconduct wherein the focus is on the defend- ant’s misconduct. The reprehensibility of that misconduct need to deter it are primary determining factors the appropriate level of punitive damages. By the nature and comparison, severity plaintiffs’ inexact, injuries may prove, only be difficult nomi- nally compensable being -without on to sup- deemed review insufficient case, port substantial award for In damages. plaintiffs’ proof properly greed focused defendant’s misconduct. Obviously, was the overriding by short-cutting production process, incentive— the profit margin greater. finding By plaintiffs, jury found alleged the misconduct proved, had been and such finding was eminently reasonable and based on the evidence.
In an analogous situation, a in Cook defendant County found asbestos manufacturer liable for compensatory punitive damages on a wilful and theory. wanton (Lipke Corp. (1987), Celotex 1213.) Lipke, the defendant had corpo knowledge rate years between and 40 its products asbestos were dangerous. The corporate defendant was aware of substitutes for asbestos for some years but did use them because asbestos cheaper. corporation “failed to take real measures to protect until 1970 public years before last worked for plaintiff [10 (153 Ill. App. 3d at squamous Plaintiff developed defendant].” *29 224 for the jury former found employer.
cell cancer and sued his review, On punitive damages. and plaintiff compensatory and awarded the law of succinctly and stated the court affirmed the verdict jury’s and wan- of for wilful punitive damages Illinois the review respecting ton misconduct: therefore, of the review, is whether facts
“The for question (Yearian v. Columbia damages. imposing punitive case warrant 508, 63.) ‘The Ill. 3d 408 N.E.2d (1980), App. National Bank 86 whether essentially conduct is of wilful and wanton question that it shows a lack of gross care is so the failure to exercise (1969), Jewel Tea Co. (Moore of others.’ regard safety for 636, 46 Ill. 109, 136, (1970), 2d 253 N.E.2d 116 Ill. App. affd element necessary is not a 288, 263 N.E.2d ‘Ill-will wanton, doing the party an act a wanton act. To constitute conduct, and, of his conscious failing act or to act must be conscious, from his must be having injure, no intent though conditions, and surrounding circumstances knowledge in an injury.’ result naturally probably that his conduct will 234, 238, 191 N.E.2d 357 Ill. (1934), v. Humrichhouse Streeter 505, 3d at 505 added.) App. Lipke, 684.” (Emphasis N.E.2d at 1218. his Lipke established plaintiff appear
While it would years cancer some 10 lung damages by proving right compensatory I no find employ, in defendant’s his to asbestos exposure after last affirming for present in the case grounds factual compelling less lack- Even against this defendant. damages award of jury’s intent, in the rec- the facts ill-will ing evidence of Monsanto’s for wilful liability conclusion jury’s ord us amply support before circumstances, I find no justifica- misconduct. Under the and wanton per- to reject jury’s on tion, public policy, factual or based legal, to nominal com- entitling slight injury that even ception wrongdoer. for punishing be the basis damages could pensatory to their fear of fu related damages evidence of plaintiffs’ Much of their to dioxin in environ from exposure harm or consequences ture Pe recovery. (See basis legitimate is a opinion, ment. In my 377, (Connecticut 576 A.2d 215 Conn. triello v. Kalman plaintiff in which suit malpractice held in Court obstetrical Supreme that plain bowel obstruction increased risk of future subjected consequences fear of future her present tiff could both for recover see also harm); risk of future of the increased and for the value 1987), Cir. (7th v. Jacobson Corp. Tobacco Brown & Williamson law, on review court defamation on Illinois (relying F.2d 1119 even damages in “presumed” compensatory awarded million $1 pecuniary proved approved jury no loss was though specific network $2,050,000 punitive damages against television award broadcaster); (1984), and news In re Busse Application 651, 656 of action for fraud (in context deceit, court least nominal dam presumption recited “a at ages wrong [citations], liability follows from proof legal sufficient damages action”); nominal to sustain a cause of Gertz Welch 41 L. Ed. 2d 94 S. Ct. U.S. context, 3012 (again, in defamation Court observes that awarding verdict sustained compensatory may be based “although evidence need no injury, assigns there evidence which *30 an actual dollar to the But value how does a calculate a injury”).) jury monetary it, compensation for such As I injury? see here jury an found in fact which injury was of susceptible precise calcula tion; and, considering the law of Illinois as it in appeared the instruc they tions were given, awarded a nominal as jury compensa $1 tion Green, therefor. Justice his specially concurring opinion, And, implicitly acknowledges as much. spe so stated aptly by my cially colleague, concurring quoting Torts, from Keeton Prosser & on it precisely is of type damages case in which nominal should be to permitted support punitive damage Neither nor award. Loitz Haslip says otherwise.
My colleague, nonetheless, learned backs off from the enlightened goes view and portend on to of dangers punitive damages “running wild.” Again, as with the main he opinion, way has chosen the easy out, dumping verdict, the entire jury without to the regard substantial factual basis for an award punitive damages. above,
As indicated it is opinion reviewing that a out my court’s right reversal without factual is ill-advised frus analysis always trates jurisprudential system pledged uphold. we have In a situ analogous case, ation to this the district court in the Jacobson case reduced the jury’s damages assessment of for defend compensatory ant’s defamation of the mil plaintiff cigarette manufacturer from $3 lion to In reinstating “pre million verdict for jury’s $1. $1 sumed” damages, circuit court looked to the factual appeals scenario which the statements were made and con defamatory cluded that million was but on it “sizeable the facts this case $1 not ‘substantial’ under Illinois (Jacobson, law.” 827 F.2d at The 1142.) court acknowledged figure its million process reaching the $1 “a very was inexact and arbitrary somewhat but such process” process was inherent Illinois of presumed damages. Philosophi law damages compensatory I need greater “presume” find no
cally award compensatory context a nominal permit the defamation than insidious health causing potentially for wilful and wanton misconduct in this case demon As the evidence poisoning. of dioxin consequences and their deadly are real. Dioxins are strated, dangers of dioxin debilitating to an as-yet-unknown long-term may physically effects is no more reputation loss to one’s presumed degree. Certainly fear of cancer community’s than a protection of this State’s worthy to dioxin. exposure from Supreme of the Court’s our consideration
Defendant has invited
punitive
review of
concerning
proper
pronouncement
most recent
Haslip Insurance Co.
(Pacific Mutual
damages
Life
that the
1032), and I believe
U.S._,
113 L. Ed. 2d
111 S. Ct.
Haslip, plaintiff
insureds
here. In
application
Court’s
merits
opinion
life and health insurance
against
in fraud
defendant
brought an action
made
premium payments
agent’s misappropriation
for its
company
notice to the insureds.
cancelled without
policy
after
was
plaintiffs’
her
ability
pay
far beyond
Mrs.
incurred medical bills
Haslip
ruined. After a trial
rating
Her credit
was
learned she was uninsured.
amount of
entered in the
for Mrs.
Haslip
a verdict
by jury,
damages.
$840,000
$1,040,000,
represented punitive
of which
review of
post-verdict
court,
requiring
to Alabama law
pursuant
trial
in the rec-
awards,
“to reflect
hearing
conducted
verdict,
refusing
to do
with a
interfering
the reasons for
ord
(Hammond, City
damages.”
so, of excessiveness
grounds
af-
The award was
Gadsden
(Ala. 1986), 493 So.
and certiorari
court of Alabama
supreme
firmed on review
procedure
approving
Court.
granted by
Supreme
*31
given
there
Alabama,
that the review
the Court observed
adopted by
their
damages are reasonable
punitive
certain that
the
“makes
has oc-
what
purpose
punish
of their
light
amount and rational in
the Court sanctioned
particular,
In
repetition.”
curred and to deter its
of
awards:
in the review
applied
the
factors to be
following
the pu-
between
relationship
is a reasonable
“(a) whether there
likely to result
from the
and the harm
nitive
award
actually has oc-
the harm that
conduct as well as
defendant’s
reprehensibility
of the defendant’s
curred;
the
of
(b)
degree
conduct,
defendant’s aware-
conduct, the duration
concealment,
ness,
frequency
the existence and
to the defendant
profitability
conduct;
(c)
similar past
removing desirability
and the
wrongful conduct
loss;
(d)
sustain
the defendant also
having
and of
profit
position’
(e) all the costs
defendant;
of the
litiga-
‘financial
tion-, (f)
imposition
of criminal sanctions on the defendant
conduct,
for its
mitigation;
these to be taken in
(g)
ex-
istence of other civil
against
awards
the defendant for the same
conduct,
these
also to be taken
mitigation.”
(Emphasis
(Haslip,
added.)
at_,
499 U.S.
defendant’s motion for judgment notwithstanding the verdict case. I am satisfied that jury’s award plaintiffs’ favor was based on the evidence presented trial, at I and would affirm the trial court’s ruling on the motion.
I further find no reversible error in the trial court’s decision to reject defendant’s corporate complicity I jury instruction. do not deny that the law of Illinois at the time this case was tried was as stated by the majority. But I do not find any instruction error here would in itself require a new trial. In my opinion, the IPI respondeat superior instruction given could not have affected the verdict jury’s on the wilful/wanton misconduct count. The testimony relative to defendant’s knowledge established that corporation had knowl- edge of the dioxins it was at the producing Krummrich plant and their toxicity, and that defendant could have prevented their forma- tion since at least the mid-1950’s. This knowledge imputed to the corporation officers,” via “superior including production defendant’s supervisor, its engineers, chemical its plant its managers, director of research and counsel, development, its house its biohazards commit- tee, and its director of medical and environmental health. Evidence of defendant’s engineers’, managers’, supervisors’, directors’ and coun- sels’ deliberate corporate participation production toxic products despite awareness of state-of-the-art methods to prevent toxicity and defendant’s of the misconduct by continuous ratification production for some 20 to years until 1980 (several years after the accident underlying this case) permeated the trial and overwhelmingly satisfied the corporate rule of this complicity Again, State. cases cited by the main opinion are inapposite.
228 Pendowski v. Patent Co. Scaffolding 89 the court found error because reversible jury finding the “could have based its verdict liable for [defendant] in, not ordered, an act upon participated wilful and wanton conduct that, It to added.) ratified is clear me but (Emphasis by [defendant].” in corporate alleged for the lack evidence of the participation Pendowski, not found wrongdoing the court would have reversible Mat respondeat superior error giving the instruction. tyasovszky Tolle likewise were decisions jury which awards instructions, not punitive damages improper jury were reversed for Haslip, (See for also inadequate corporate liability. but evidence U.S__, 1, 111 in the (Court 113 L. Ed. 2d S. Ct. ruled agent’s entitling context of the fraud suit that insurance misconduct respon company insurance on punitive against superior deat corporate did not defendant of substan theory deprive er contrast, due the here finds reversible majority tive process).) By regard corporate participation ror without to evidence ratification at trial. presented knowledge and corporate amount of evidence of
Based on vast corporation’s production prod- of dioxins in its consumer unabated time, in this case could not period ucts over an extended had corporate complicity have verdict defendant’s contrary reached respondeat superior given. one instruction been substituted for in the trial court’s decision I find no abuse of discretion Accordingly, motion for a new trial on basis. deny defendant’s that trial court’s ad- Next, colleagues I must agree my defendant’s prior plants dissimilar incidents at mission of evidence of etc., world, Prejudicial error. prejudicial located throughout instance, court denied defendant’s occurred, when trial error and counsel that the witnesses to statements made objections to dioxins elderly Lysol, and the exposed defendant babies in 1981 and to the government the Canadian defendant had lied to of dioxin in presence Santophen, E.P.A. in 1980 regarding on American soldiers in illnesses Agent Orange long-term inflicted had Orange case been warning, Agent Nam Viet without settled. hand, testimony complained I much of the
On the other find damages, e.g., that defendant claim for plaintiffs’ relevant chloracne, resulting a skin condition employees misled its own about chemicals used produced that defendant from dioxin exposure; and Weed-B- Lysol such as products, of other consumer manufacture seven dioxins; and that defendant Gone, in fact contained years up pounds of dioxin from its Krummrich daily dumped River, plant Mississippi poisoning downstream food thereby into Even supplies. though particular plaintiffs water these did chemicals, claim from these other I believe that the injury testimony knowledge relevant to the issue of defendant’s wilful/wan- *33 ton count that dioxin was a of its chemical in- by-product production, OCP-crude, damages. cluding and of the claim for supportive count, For the I find no error the purposes product liability admission evidence of misconduct to the extent that post-incident such have been relevant to the issue unreasonable testimony may Cincinnati, (Bass Inc. dangerousness of OCP-crude. as 835.) However, inasmuch
product was liability rejected by jury claim have not such appealed, evidence not be appropriate would on remand.
I agree with my colleagues’ back-up position that this cause must be remanded for another I do not Although trial. find error reversible on any of the individual grounds my colleagues’ treated opinions, having thoroughly considered these and other arguments relative to retrial, issues that are not on I likely arise am of the that opinion effect, primarily errors, cumulative of the evidentiary entitles defendant a new trial. estate,
With to the respect Kemners’ claim for to real I cannot subscribe to the reassessment of the to ar- majority’s evidence rive at the conclusion the diminution their not a property was result of dioxin contamination. In my opinion, from the fact dioxin OCP-crude, the further fact the OCP-crude flowed across Kemners’ land and the further OCP- fact crude was found downstream from the Kemners’ property, could infer that dioxin necessarily contaminated all the land that the OCP-crude touched. Kemner’s William devalua- testimony tion Thus, of his property reversing unrebutted. rather than out- right jury’s owners, considering verdict the cu- property mulative effect of errors claims for affecting wilful wanton misconduct, I grant would a new trial to the Kemners’ property damage claims as well.
I agree generally with opinion’s discussion majority trial ruling plaintiffs’ court’s section 2—611 rever- motions and its sal of an reimbursing County fees, award St. Clair for juror expenses, agree I extraordinary costs. also majority’s rejection non defendant’s conveniens positions. Federal preemption forum I would remand the entire cause for a new trial.