*1 wаys. have it both We find that the circuit court properly denied defendant’s motion for summary judgment question because a of fact plaintiffs’ existed as to how property damaged.
Accordingly, judgment we reverse the of the circuit court and remand for proceedings further opinion. consistent with this
Reversed and remanded.
THEIS, J., EJ., GREIMAN, concur. MIKOLAJCZYK, Special CONNIE Indiv. Adm’r of the Estate James Mikolajczyk, Deceased, Plaintiff-Appellee, al., v. FORD MOTOR COMPANYet (William Defendant). Timberlake,
Defendants-Appellants D. (3rd Division) First District No. 1 — 05—3133 Opinion filed November 2006. *3 (James Strawn, Braun, Y. Thompson, & LLP Bruce R. Pei Winston R. (Karen counsel), Donohue, Brown,
Chung, Smyth, & Mathewson LLC counsel), Boyle, Chicago, appellants. Kies DeGrand and Mark H. both (Bruce Gill, Gill, Ltd., Chicago & Michael T. Pfaff R. Pfaff and counsel), appellee. opinion
JUSTICE delivered the of the court: GREIMAN Mikolajczyk, individually special and as adminis- Plaintiff Connie Mikolajczyk trator of estate of her deceased husband James (hereinafter James), brought alleging products referred to as suit strict Company Ford Motor against for a defective defendants defendants) (hereinafter and Mazda referred to as Corporation Motor (hereinafter negligence against D. Timberlake defendant William Timberlake). hit his Escort referred to as James died when Ford *4 Summary judgment was entered by from behind Timberlake’s car. on strict against proceeded jury the to a trial the Timberlake and case responsible liability jury claim. The found Timberlake 60% products jury The responsible. 40% causing for James’s death and defendants goods and and money, million for loss of services $2 awarded million for loss society $25 of and sexual appeal, relations. On (1) defendаnts contend trial the court erred instructing (2) jury defects; on the of strict for law trial court erred in declining apportion- instruct the damage about ment, the effect of Timberlake’s intoxication and of concept sole (3) cause; proximate that the admitting emotional, trial court erred in (4) prejudicial hearsay accidents; evidence other about jury’s (5) excessive; arbitrary verdict was and effect cumulative of trial; the trial court’s requires errors new and that section (735 (West of 2—1303 the Code of Civil Procedure ILCS 5/2—1303 2004)) is unconstitutional. The place period trial this case took over a of weeks. Numer- 21h lay ous and expert parties witnesses do dispute testified. concerning the injuries. Instead, facts accident or the extent of James’s above, they dispute as stated propriety instructions, of given evidence, the court’s admission of certain the amount of the award constitutionality and the Therefore, of a statutory provision. we set out necessary those facts for our discussion of issues raised. p.m. 4, 2000,
At 8 February on stopped stoplight, James was at a sitting in daughter the driver’s seat of his Ford Escort. His was seated him in Elizabeth behind the back driver’s-side seat asleep. wearing safety James Elizabeth both their were belts. Timber- lake, traveling speeds upwards hour, at per 60 miles crashed into right Escort, causing spin rear it to into intersection and collide with a van. at Timberlake was intoxicated the time of the accident.
Upon impact, backwards, “ramped” James’s seat flattened backwards, ejected he toward the rear of the car. James’s injured head legs struck the backseat the car Elizabeth’s were by damage the flattened front James brain from seat. suffered impact. prognosis hopeless, support Because his James’s life February 7, he passed away terminated and 2000. against products
Plaintiff filed suit liability, defendants strict alleging defectively seat designed inadequate James’s car making strength unreasonably dangerous, against it Timberlake negligence. Summary plaintiff’s judgment was entered in favor against proceeded plaintiff’s Timberlake and the case to trial on products liability claim, for a seat was determination whether the defectively designed, design proximately whether the caused James’s injuries, the and Timberlake and responsibility relative defendants damages. for an assessment of trial, seat following
At were adduced. The driver’s facts was known co-designed Escort was defendants and James’s
83 seat,” meaning that when “yielding a The CT20 seat was CT20 seat. force, effect, in in direction of the it, yielded to it the applied force was The exceeded impact. from CT20 absorbing some of the shock an that expert testified safety requirements. plaintiffs federal make a seat safe while compliance does not with the standard look the standard for that Ford does not to expert defendants’ testified alternative, what is concerning design a In the advice to seat. how accident, impact In a rear “rigid seat” also available. known as a in opposite the direc- rigid energy a transfers the of the collision seat collision, that, is upon impact, passengеr the thrown tion of the so during his ac- ramped seat backward yielding forward. James’s When Timberlake, according design. to its performed cident it with Shaw, engineer L. Morrie biomechan- experts, including Plaintiffs Saczalski, expert seat Kenneth expert Joseph design ics Burton and yielding the caused James’s design proximately testified that seat feasible, rigid design entirely death and that the use of a seat injuries, have protected would have James from his fatal would better protected passenger a have been utilized. Burton backseat should explained the Saczalski forces involved in James’s accident defendants, noting reasonably were foreseeable that automakers crash tests under accident. conduct circumstances similar James’s in rigid technology developed Saczalski testified seat the 1960s, rigid in the commercially seats were built 1970s and became in the explained yielding available 1980s. Burton further that when a back, seat the ramps passenger protec- use of a seatbelt no offers tion. ramping yielding permits passenger of a seat a to slide up and leaves passenger striking seat vulnerable structures in investigated the rear of his car. Burton further testified that had he involving in in speed accidents half of the this accident which involved yielding way had and performed seat had the same James’s had injury caused and death. cited examples
Saczalski several of automobiles were rigid, with the 1996 Escort that used rather than contemporaneous Chrysler Sebring. yielding, designs, including seat 1996 Saczalski Escort, standard, leaving a series of on the conducted tests pas- replacing the front yielding seat on front driver’s side and senger Sebring rigid impacting the car from seat with seat in the seats. at with various-sized dummies speeds rear various tests, rigid their oc- protect From these Saczalski concluded that seats cupants high-speed, rear-impact yielding while seats do accidents risk to fatal specifically, not. found that of severe More Saczalski yielding seat. injury greater head 25 times experts does not result injury Plaintiff’s admitted that a serious every seat yields time a in a high-speed, rear-impact They accident. that, conceded if passenger is not perfectly aligned his seat at time impact, of an a rigid seat can cause injuries serious neck low-speed collision, out-of-alignment passenger actually safer in yielding rigid seat in a seat. They agreed than further very few cars that were on the specifications market in 1996 met their for a nondefective design. experts permitted
Plaintiffs testify, were objec- over defendants’ tions, to three accidents that also occurred Escorts and resulted injuries and death to passengers therein when the front seats ramped impact. Escorts back on experts,
Defendants’ including Ford engineer Roger Bur- nett, *6 expert Gregory Smith, accident reconstruction engineer research Levitt, experts Corrigan Andrew biomechanics Catherine and Pri- yaranjan engineer Shuji Kumano, Prasad and Mazda testified that very few that cars were on market at the time James’s car of were equipped seat, rigid designing with seats. In the 1996 Escort types accidents, just defendants considered all of severe collisions as occurred to James. rejected rigid Defendants seat for safety rigid design presents reasons. The a risk serious of head and injuries low-speed hand, neck even in a collision. On the other a yield- ing presents seat little injuries low-speed to no risk of neck in a colli- sion and lower in injuries Moreover, a risk of neck all a accidents. yielding seat better protects out-of-position passenger from neck and spine injuries it impact because absorbs the accident and keeps aligned and passenger’s spine causing head and a risk of has injuries only very high accidents, severe impact which are rare. Yielding protect passengers may seats also better backseat who be fact, them In during experts thrown into an accident. defendants’ opined severely injured that Elizabeth more had would have been rigid experts James’s a that very been seat. Defendants’ testified few cars on market rigid at the time of James’s Escort utilized seat designs “high-volume vehicle,” and because the Escort a un- rigid seats, like cited by plaintiffs experts utilizing the cars it was not possible strong seat, for to use a in Be- defendants like that used a hring, in an Escort. surviving family
The Mikolajczyk members of the and friends of death, the family years also testified. At the time of his James was 46 In expected years. old and to live for 31.9 additional James $63,450 assistant, job had a he had held physician’s earned as a for trial, years. At time of her husband’s and of worked death secretary grade and as a at a Catholic school. Plaintiff James were Elizabeth, 1985, they married in In who was born 1980. аddition the time of Adam, Adam was 14 at son, a born 1980. had who was Plaintiff and James’s Elizabeth 10. his father’s death while hands, danc- holding them they frequently that saw children testified family Mikolajczyk The singing to each other. ing the kitchen and together. cleaned, cooked, and watched movies shopped baseball played and his close. James coached Adam and father were After inspired Adam’s love of science. Adam and and basketball with breaking doors, months, death, very angry Adam for James’s placed daily. Adam was through crying fist the wall and punching his graduate as the valedictorian his counseling. Adam on to went University high scholarship from the school class and to earn Notre Dame. sang father “best friends.” James
Elizabeth her were death, sleep night. father’s Elizabeth is every Elizabeth to Since her something surviving members constantly happen afraid will her her Elizabeth’s room filled family, sleeping often with mother. pictures with of her father. attorney closing, plaintiffs jury asked award society. loss million loss of support million for for
$2 $25 attorney suggest damages amount. Timberlake’s Defendants’ did not the accident divided attorney responsibility asked be 50% to his client and 50% to defendants. jury support million in returned verdict loss $2 society. By special interrogatory, million in loss of found
$25 dangerous unreasonably the driver’s seat of James’s Escort was proximately James’s Defendants’ posttrial caused death. motions they were appealed. denied and appeal,
On defendants first take issue the trial court’s *7 regarding instructions strict The design liability. the law defect trial following court read the Jury the modified Illinois Pattern Instruc- (2005) (hereinafter tions, Civil, 400.01, Nos. 400.02 and IPI 400.06 (2005) 400.06): 400.01, 400.02, Civil Nos. plaintiff Mikolajczyk
“The claims that James died as a result of use of his and that in the the car there existed the car at time it Corporation left the control of Mazda and Ford Motor Motor Company unreasonably dangerous car condition which made the following respects: designed The driver’s seat the inadequate strength. plaintiff foregoing proximate
The claims the further that Mikolajczyk’s cause of James death. deny Company Motor Motor that Corporation
Mazda and Ford unreasonably danger- of the car the car the claimed condition made deny proximate the any ous and that claimed condition of car was a Mikolajczyk’s cause of James death. Motor Corporation Company
Mazda and Ford deny Motor that plaintiff damages the sustained to the extent claimed. plaintiff the of proving following has burden each the propositions as to the by plaintiff. condition claimed the by
First: That the claimed you condition the as stated to these instructions existed the car. That unreasonably Second: the condition made the danger- car ous.
Third: That the condition existed at the time the car left the control of the defendant.
Fourth: That the decedent was killed. proximate Fifth: That the condition of the car was a cause Mikolajczyk’s James death. ^ v use expression, ‘unreasonably dangerous,’ When I in these instructions, I put reasonably mean unsafe when to a use foreseeable, considering the nature and of the function car.” The trial court refused to tender modified IPI defendants’ Civil 400.02, No. 400.01 and No. provided, part: which relеvant further assert that on the benefits of the balance[J
“Ford/Mazda design outweigh 1996 Escort’s front of danger seat the risks inher- design.” ent
And: find you your
“If from evidence [sic] consideration all the propositions above], [of each enumerated then the burden shifts prove balance of the the benefits Ford/Mazda design outweigh danger front seat Escort’s risks of inherent in design.” requested The trial court refused to tender defendants’ non-IPI instructions: product design
“A is defective in its when the foreseeable risks by outweigh posed product design harm the benefits of the by adoption can be reduced or avoided of an risks alterna- design. tive designs feasible Feasible alternative must be available product at left the the time control of defendant. Feasibility economy, includes not elements of effectiveness practicality, technological possibilities but also under the state manufacturing product produced.” of the the time the art at requested The court refused to non-IPI also tender defendants’ instructions: alternative, evaluating design
“When the reasonableness of a safety product must be considered. It is not sufficient overall prevented would have reduced alternative plaintiff if it have introduced into harm suffered would also *8 A magnitude. greater dangers equal other product not is product if the reasonably even may safe be product’s proof.” accident court’s instructions the effect
Defendants note but test expectations” on the “consumer instructed jury acknowledge Defendants “risk-utility” test. on the not instructed design defect prove required has been plaintiff that, since See risk-utility test. test or expectations the consumer by either (2004). However, 648, 660-61 Co., App. Ill. Miller v. Rinker Boat the risk- adopted Court defendants, Supreme the Illinois according to products complex design defects test for as the exclusive utility test (2005), and 2d 78 Inc., 215 Ill. Engineering, Environmental in Blue v. simple applicable test is expectations that the consumer held that, Defendants contend dangers. open and obvious products posing expecta consumer inapplicable instructed on the jury because the defendants, test, requested by risk-utility test, than the tions rather Furthermore, legal principles. jury apprised of the relevant was not in instruct the court erred determine that they argue should we than the risk- test rather expectations ing jury consumer risk-utility test would under the utility test, finding for the should therefore the evidence and we against weight the manifest be ask that Alternatively, defendants outright. jury’s reverse the verdict instruc proper trial and this case for a new reverse and remand we concerning risk-utility test. tions in Blue that the argues any insinuation response, plaintiff liability cases in strict test to be used
risk-utility test is the exclusive concludes, Accordingly, plaintiff products is dicta. involving complex liability may a strict prove that a Blue does not affect the rule test or the expectation claim either the consumer design defect jury correctly apprised risk-utility test and the instructions Blue was further notes that before legal Plaintiff principles. relevant that a case, court found design defect decided, in a strict are almost identical instructions that gave jury trial court that v. jury. See Carrillo instructed given properly those in this case Co., Ill. 3d 955 Ford Motor Jury Instruc- Illinois Pattern required
“A court is to use an trial giving due consider- in a civil case after applicable it tion when law, the court unless prevailing facts and the ation to the accurately the law. not state does determines that the instruction accurately instruction state does pattern If the [Citations.] nonpattern jury to a law, may pursuant the court instruct to determine court has discretion The trial [Citation.] instruction. will not determination give and that instructions to which be disturbed absent abuse of that discretion. [Citations.] deciding standard for whether a trial abused its discretion is *9 whether, whole, as a fairly, fully, taken and instructions apprised comprehensively jury legal principles. of relevant reviewing ordinarily A [Citation.] will not reverse trial giving faulty court for they clearly unless misled the instructions prejudice in appellant.” resulted to the Schultz v. Regional 260, Northeast Corp., Illinois Commuter R.R. 201 2d Ill. (2002). 273-74 begin We our analysis of this issue li- overview of strict ability design defect law Illinois.
A duty product manufacturer bears a nondelegable produce that is for all reasonably safe uses intended. Hansen v. Health Baxter (2002). 420, Corp., care 198 Ill. 2d 433 The principle holding manufacturer strictly liable for in sec products defective was set forth Torts, 402A tion of the provides: Second Restatement of which “(1) any One product who sells in a defective condition unreason- ably dangerous subject the user or or property consumer to his is physical thereby harm caused to the user or ultimate consumer, property, or to his if
(a) the is engaged selling seller in the business of such a product, and
(b) it expected is to and reach the user does or consumer change without substantial sold. the condition which it is (2) (1) applies The rule although stated Subsection
(a) possible the seller has exercised care in preparation all product, and sale of his
(b)
or
bought
product
the user
consumer
from or
has not
any
entered into
contractual
with the
relation
seller.” Restate-
(Second)
(1965).
§402A,
ment
of Torts
at 347-48
adopted
Illinois
have
articulated in
402A
courts
the test
section
applied
Second Restatement
have
Torts and
it both
manufacturing
design
See
Motor
defects
defects.
Suvada v. White
Co.,
(1965);
Works,
“A demonstrate li manufacturer to strict subject a retailer and a design, so as to (1) introducing injuries, ways: two ability resulting in one ordinary safelyas an perform failed to product evidencethat the reasonably in an intended expect consumer would when used by introducing evidence manner or foreseeable defendant injury and the product’s design proximately caused his challenged prove fails to that on balance benefits designs.” (Emphasis danger inherent in such outweigh the risk added.) Lamkin, Ill. 2d 529. at e-Blue, a
Hansen, Accordingly, pr at least at 433. *10 only expectations under the consumer prove choose to its claim could Howmedica, test, test, Mele v. risk-utility or under both. See only that Inc., 1, (“plaintiff sought prove App. 348 Ill. 3d 17 ordinary expecta product defendant’s failed to meet the consumer’s Although plaintiff, plead under the safety product. tions for the of the sought design [product] of the ing, might prove also have benefits, by showing outweighed its unreasonably dangerous its risks so”); Miller, (summary App. he decided do 352 Ill. 3d at 671 not to liability improper strict claim was when judgment plaintiffs on the risk-utility or of material fact existed under the test genuine issue test). While, e-Blue, pr “Illinois expectations under the consumer expectation the consumer test to not limited the use of courts have led to the conclusion everyday experience cases in alone which 19), in (Mele, App. Ill. 3d at cases which design unsafe” 348 mechanism the nature of the danger is obvious and nature of design is demonstrate that simple, plaintiff may involved is 211 Corp., risk-utility (Scoby test v. Vulcan-Hart defective under the (1991)). 106, 112 App. Ill. 3d design prove a strict
Concerning necessary the evidence expectations claim, Illinois courts have held that consumer defect applied and should be risk-utility mutually tests are not exclusive (2005), 975, App. Ill. 979 together. Corp., v. 358 Scripto-Tokai Calles Co., (2005); & 237 Ill. allowed, Ill. 2d Besse v. Deere appeal 217 558 (1992). practice 497, The Calles court endorsed App. 501 design as product’s risks of a “consider the benefits and states which 90
evidence of what a reasonable
expect”
consumer should
and other
states which use risk-benefit analysis but “allow evidence of consumer
expectations
especially consumer anticipation
danger
its
—
—for
relevance to the risks and
product’s
benefits of the
design.” Calles,
App.
Indeed,
358 Ill.
3d at 979.
Illinois courts
position
have taken “a
that accorded with courts that
product’s
have viewed evidence of a
risks and benefits as admissible evidence of what a reasonable
consumer
expect
product.” Mele,
should
from a
Moreover, expectation
“[t]he consumer usually test require any does not ordinary evidence of expectations, consumer because the finder of may rely fact experiences on its own ordinary to determine what *** expect. consumer would dangerous product ‘Whether a unreasonably is *** question is a of fact to be jury. determined “[T]he can draw their own reasonable conclusions to the expectations ordinary of the consumer and knowledge common ’ ” community Mele, in the large.” 14-15, at 3d at quoting Giglio Light Co., v. Connecticut 230, & Power 180 Conn. 235, (1980), quoting Ford, A.2d Slepski v. Williams Inc., (1975). 18, 23, 170 Conn. 364 A.2d Having set liability design out the state of strict defect in Il- law linois, pre-Blue, we now turn to a discussion Third Restatement of Torts and Justice Thomas’s comments thereon in Blue. Torts, the Third Restatement of the American Law Institute
(ALI) distinguished manufacturing defects, between defects and “[cjonsumer recognizing that expectations proper product design as to warning typically are more difficult to discern than in the case of (Third) manufacturing defect.” Restatement of Torts: Products Li (1998). §2, ability a, Comment Accordingly, at 16 “[s]ome sort of independent advantages assessment of the and disadvantages, to which some attach ‘risk-utility balancing,’ the label necessary.” Restate (Third) §2, ment Liability a, Torts: Products Comment at 15-16 adopted Torts, The ALI section of the Third Restatement of distinguishes manufacturing defects, which between design defects *11 and failures 2 provides: to warn. Section when,
“A product distribution, is defective at the time sale or defect, manufacturing design, it contains a is defective in or is inadequate warnings. defective because of A instructions or product:
(a) manufacturing product departs contains a defect when the design though possible from its intended even all care was preparation marketing product; exercised in the of the (b) design is defective when the foreseeable risks of harm by product by or posed could have been reduced avoided or other design by the seller of a reasonable alternative adoption of distribu- commercialchain distributor, in the predecessor or a design renders alternative tion, omission of the and the safe; reasonably product not
(c) warnings or inadequate instruсtions because of is defective could by product posed harm foreseeable risks of when the of reasonable by provision or avoided have been reduced distributor, or a or warnings by the seller other or instructions distribution, and the commercial chain predecessor in the product not warnings renders the of the instructions omission (Third) Li- Products of Torts: reasonably safe.” Restatement (1998). §2, ability at 14 design way, prove commented in order to put ALI another design “a reasonable alternative
defect, prove must plaintiff harm cost, the foreseeable risks of would, reduced at reasonable have design of the alternative posed by product [that] the omission in the distributive chain rendered predecessor the seller or a (Third) (Restatement Products reasonably safe” of Torts: product not d, (1998)), Liability §2, “[t]he Comment at 19 and that relative designed and as it advantages disadvantages product as alternatively designed may could have been also be considered” (Restatement (Third) §2, Liability f, Comment at of Torts: Products (1998)). noted, ALI Restatement takes no “[t]his regarding jury should be instructed. So position specifics of how long generally instructions are consistent with the rule law (b), specific set forth in Subsection their form and content are matters (Third) §2, Liability of local of Torts: Products law.” Restatement (1998). f, Comment at 25 specifically rejected expectation
The ALI the consumer test for (b), design defects, commenting “[u]nder Subsection consumer expectations independent judging standard for do not constitute however, ALI product designs”; noted defectiveness expectations “may substantially consumer influence or even be balancing judging ultimately risk-utility determinative on whether product renders the proposed the omission of a alternative (Third) §2, Liability of Torts: Products reasonably safe.” Restatement g, Comment at 27-28 Torts discussed at
Section 2 of the Third Restatement of he stuck his Blue, injured when length in Blue. by the designed and manufactured compactor foot into a trash complaint against the defendants defendants. The filed design. liability negligent defective under the theories of strict proceeded to a dismissed and the case The strict claim was *12 jury trial on the negligent design issue of jury defect. The returned a general against verdict the defendants and found the to be contributorily 32% negligent. The answered in the affirmative a special interrogatory asking whether the risk injury sticking foot compactor into a open and obvious. The trial court found that the verdict was inconsistent with the jury’s answer to the special interrogatory, vacated jury’s the judgment verdict and entered on the interrogatory for the defendants. appeal,
On plaintiff argued interrogatory improperly given and, alternatively, jury’s that the response to the interrogatory was not inconsistent with the verdict. appellate court found that the interrogatory incorrectly given because it did not resolve an ultimate issue of fact. According appellate court, to the risk-utility applied test plaintiffs case, so having demonstrated design product proximately of the injury, caused his the burden shifted defendants to demonstrate that the design benefits of the outweigh opеn its risks. The and obvi- risk, ous held, nature of the the appellate just one factor to balancing consider in the risks and benefits of the design. defendants’ The appellate court judgment, reversed the jury’s reinstated the verdict and remanded the cause for parties’ consideration of the post- trial motions.
The defendants appealed supreme court, to the alleging that the trial court properly judgment entered special on the interrogatory. penned Justice Thomas opinion court, joined Justice Garman.
The court first turned
appellate
its attention to the
court’s reason
ing, couching the issue
it
risk-utility
before
as whether “the
analysis
normally
products
used
strict
liability
applicable
cases is
to defec
product design
tive
involving only
negligence
cases
theory of
recovery.” Blue,
design
negligence
liability between strict
that the difference
court noted
court noted:
fault. The
concept
lies in the
claims
“[Sjtrict
only requires proof
product
on the
focuses
outweigh the risk
challenged design do not
that the benefits
design
alternative
designs,
danger
inherent
such
injury,
that the alternative
prevented the
would have
*13
Blue,
cost,
technology.”
practicality and
in terms of
was feasible
Ill. 2d at 97.
defendant’s conduct.
negligence focuses on the
contrary,
On the
case,
design
a
held,
negligence defective
in a
Consequently, the
that either:
obliged to demonstrate
plaintiff is
“(1)
of care that other
deviated from the standard
the defendant
product
industry
in
followedat the time
manufacturers
known, in
have
the defendant knew or should
designed, or
unreasonably
care,
ordinary
product
that the
the exercise
dangerous propen
dangerous and defendant failed to warn
its
Blue,
sity.”
Moreover,
negligence
in
the court
a
bears
a
and that
does not
proving
negligence
burden of
all elements of
burden
that,
negligence
a
ac-
shift to the defendant. The court held
because
tion,
action,
liability
unlike a strict
focuses on the conduct of
manufacturer,
itself, contrary
appellate
product
rather than the
to the
liability
in
finding,
risk-utility
court’s
test utilized
strict
defective
design defect cases.
design
applicable
negligence
cases was not
it,
Turning to the facts
the case
the court observed that
before
industry
actually presented any
had not
evidence of the
Nonetheless,
prove
negligence
standard and therefore did not
his
case.
plaintiff had
any
by
the court noted that
claim the defendants that the
proven
care or had not
presented
evidence of the standard of
plaintiffs
duty or that there was insufficient evidence to sustain the
defendants
point”
cause of action
“foreclosed at this
because the
posttrial
motion and did not
allegations
had not raised such
their
Blue,
argue
allegations
appeal.
such
Next the court turned to the defendants’
special
on the
inter-
properly
judgment
that the trial court
ordered
danger. The
nature of the
rogatory concerning
open
and obvious
Torts, the
under the
Restatement of
court stated
while
Second
open
is
danger
design
product
fact
of a
presented
that a
action,
liability design defect cause of
obvious is a defense to a strict
courts, and the
courts,” including Illinois
strong majority “[a]
obvious
rejected
open
Third Restatement of Torts “have now
doctrine as an absolute
defense to a claim of
defect in
li
strict
ability
premised
cases not
on the
Blue,
failure to warn.”
215 Ill. 2d
Nonetheless,
Illinois,
103.
“even in
liability
strict
cases where the
risk-utility
applied,
test is
danger
the obvious
product
of the
may still
bar
as a matter
law in
(Emphases
some cases.”
in original.)
Blue,
cases, such
court,
as the case
open
before the
and obvious nature
danger
of a
does not bar recovery
may
but
be
part
considered as
duty analysis. Accordingly,
open
because the
and obvious nature of the
danger
by sticking
created
compactor
foot in a
is not an absolute bar
plaintiffs
to the
recovery,
interrogatory
“the
improper,
as it did
not resolve an ultimate
issue
the case and
necessarily
was not
Blue,
inconsistent.”
Special concurrences filed by were Justice Freeman and Justice Fitzgerald, joined by Justice McMorrow. Justice Kilbride also wrote separately, concurring part dissenting part, while Justice Karmeier did part not take in the decision.
Concerning holding the court’s risk-utility test ap- is not plicable negligent design cases, defect Fitzgerald Justice wrote: majority
“Because the determines that properly defendant has not *14 challenged duty determination, I unnecessary believe it is decide risk-utility whether the applicable determining test is a duty in negligencedesign a Blue, defect case. It is therefore dicta.” J., 215 Ill. 2d (Fitzgerald, specially at 116 concurring,joined by Mc C.J.). Morrow, Fitzgerald
Justice opined does, further that the risk-utility fact, test play assessing a role in whether a exists in duty negligent design a defect case. agreed
Justice Kilbride special with the court’s conclusion that the interrogatory given inappropriate jury’s to the was because the interrogatory answer to the could not have resolved the ultimate issue in the case. He agreed risk-utility further that the apply test does not in negligent design Hоwever, defect cases. Justice Kilbride dissented to Scoby exception the court’s discussion of the risk-utility to the test because, compactor machine, since the a simple analysis was not such unnecessary. was
Justice Freeman specially Though also concurred. he wished to judgment case, concur with Justice Thomas’s final in the Justice Free- sought man to distance himself from reasoning Justice Thomas’s negligent concerning case, one explained, he was present dicta. The contains majority opinion “[t]he design defect. product respect with changes not effecting sweeping pronouncements theory products also negligence but liability based on a cases products Blue, at liability.” upon based strict liability cases agreed Freeman with (Freeman, J., concurring). Justice specially appropri was not an the case before the court Fitzgerald Justice risk-utility applied test decide ate one in which to whether the court’s Justice Kilbride that design defect cases and with negligent noted that Justice Freeman machines discussion was dicta. simple conclusion, expressed support the “only three members of this court in a apply risk-utility that the test does not majority opinion, in the (Freeman, J., Blue, Ill. 2d at negligence design defect case.” specially concurring). change in Illinois opinion marks a argue
Defendants Blue design Specifically, cases. regarding strict defect law Third repeatedly cited the defendants note that Justice Thomas liability design favorably prove and stated that to strict Restatement сlaim, of a feasible alterna- defect must show existence design do design allegedly and that the benefits of the defective tive suggest that Justice Thomas’s outweigh not its risks. Defendants Scoby exception implicitly limited the consumer discussion of design simple concerning test to cases the defective expectations assert open dangers. Defendants further products posing obvious “ [although justices concurred based on the view several risk-utility analysis applies negligent discussion of whether dicta, design justices questioned defect cases was none (Third) 2b the Restatement cor- Court’s conclusion section liability design defect rectly set forth the law in Illinois for strict cases.” disagree defendants’ of Blue. Blue concerned
We construction negligent the ultimate determinative is- design defect case which allegedly danger presented sue whether the fact that a danger an absolute bar to open defective obvious subject plaintiffs recovery special interrogatory so that a on the court, by the appropriate. Though, under the standard created did case, the defendants prove negligence failed to his because issue, Accord- any objection to that error was foreclosed. raise Moreover, Thomas, ingly, the discussion of the issue was dicta. Justice *15 and the Third Restatement risk-utility his discussion of the test or renounced Torts, endorsed the Third Restatement explicitly never simple than expectations anything test for other consumer obvious, allege. products dangers are as defendants whose 96
We disagree further with defendants’ assertion that the discussion of the liability binding law strict was and was not dicta because the concurring justices did explicitly categorize not it as such. On the contrary, Justices Freeman Fitzgerald, joined by Justice McMor row, clearly stated that the regarding entire discussion applicabil ity risk-utility of the negligent design test to defect cases was dicta. integral An part of that analysis discussion was the court’s of the risk- 2(b) utility applied rule as liability to strict cases and section Torts, Third Restatement of clearly which liability concerns strict noted, cases. As Justice only Freeman three sup members of the court ported the regarding Calles, discussion the risk-utility test. See also (“Justice Ill. App. 3d at 982 expounded Thomas length at on tort concerning products law strict liability, portion opinion his dicta”). majority of the court considered Furthermore, if even concurring justices did specifically not denounce the court’s strict li ability dicta, discussion as we find that such clearly discussion was dicta because the case before the did court not concern the standards applicable liability design to a strict defect case and instead concerned a negligent design defect case and because the discussion of the risk- utility test, cases, even the context negligent design defect did not determine the outcome of the case. See Rodriguez v. Sheriffs Comm’n, 342, Merit (finding 218 Ill. by a statement dicta). appellate court that unnecessary holding to its to be Ac cordingly, we find that the law of Illinois remains that plaintiff may prove a strict by defect either the expecta consumer tions test or the risk-utility test.
Here, plaintiff chose proceed under the expectations consumer test. The jury fully instructed on expectations consumer law was, view, in our fully applicable instructed on the law.
Though we have found that change Blue does not the law with regard required to the prove liability design standard a strict defect claim, important if, we believe that it is to note that even as defendants suggest, law, change Blue marked a in Illinois it is doubtful that that change applied point conspicuously would be to this case. This party raised either in its briefs. 15, in this case returned its verdict on March 2005. Blue 7, April
was decided on 2005. A gener decision of our court supreme ally applied retroactively pending to causes at the time the decision Kosco, (1994); announced. Lannom People v. 158 Ill. 2d v. Melka, a supreme applied prospectively only expressly decision will be if the court states is to applied prospectively decision be or a later court give opinion respect par- declines to retroactive effect with to the
97
Park,
Lake
176
appearing
Village
ties
before it. Aleckson v.
Round
(1997).
82,
apply
A
decide to
a decision
may
Ill. 2d
86
later court
or decides
only
past precedent
if the decision overrules
prospectively
Bog
impression
clearly
an issue of first
that was not
foreshadowed.
Emanuel,
proposi
Ill. 2d
If either of those
seth v.
515
true,
retroactively
determining
apply
in
the decision
tions is
whether
the purpose
the later court will also consider whether
prospectively,
or
prospec
retroactive or
promoted by
of the new rule will be retarded or
application
application
prospective
tive
and whether retroactive
Bogseth,
mandated
the
We defendants’ that the trial court denying suggested erred in their regarding risk-utility instructions test it testimony when allowed about the risks and benefits above, Escort’s seat. As noted Illinois courts allow evidence of the risks and allegedly product benefits of an defective that it evidence See, Calles, did not expectations. e.g., conform with consumer 358 Ill. App. 3d at 979. reject argument
We also defendants’ that the trial erred in declining jury risk-utility to instruct rather than consumer expectations specific because no evidence of what a consumer would above, expect presented. of his car seat As stated consumer expectation require specific test does not evidence of consumer expectations jury rely experiences when the can on its own to draw its ordinary own reasonable regarding expectations conclusions of an Mele, consumer. 3d at 14-15.
Finally, brief, reply gener we observe that their defendants ally argue jury’s against weight that the verdict was manifest open evidence. this issue not raised in defendants’ ing brief, contrary, opening brief. On the in their defendants’ argument if the well-developed regard consumer expectations wrongly given instructions were and the court should test, instead jury regarding risk-utility have instructed the against verdict weight the manifest of the evidence because the evidence did yielding not show benefits of a seat were outweighed by its risks. We refuse any argument, to address raised for brief, that, reply jury the first time defendants’ even if the were test, correctly expectations instructed on the consumer under that test, against weight the verdict was the manifest of the evidence. See (1995) (issue Brown, People v. 169 Ill. 2d raised for first time waived). reply brief is prejudicial Defendants next claim that the trial court committed failing apportionment error to tender the instructions drafted defendants.
Again, grounds alleged by we note that we will not reverse on the *17 discretion, defendants unless find that the trial its we court abused and for deciding
“[t]he standard whether a trial court abused its discre whether, whole, fairly, fully, tion is taken as a thе instructions and comprehensively jury apprised legal principles. the of the relevant reviewing ordinarily A [Citation.] court will not reverse a trial giving faulty they clearly for instructions unless misled the Schultz, jury prejudice appellant.” and resulted the 201 Ill. at 273-74.
Here, jury the court instructed the that Timberlake had been responsible jury, found for James’s death. It further instructed the Instructions, Jury pursuant to a modified version of Illinois Pattern Civil, (2005), if No. 600.02 that it found that defendants were also death, responsible proximately causing James’s then it legally degree apportion damages “by determining must the relative and The court further responsibility of” defendants Timberlake. the jury: instructed your you percentage responsi- form
“On verdict will state the defendants, bility treating Corpora- of each of these Mazda Motor single Company tion and Ford Motor as a defendant. percentages up percent.” The total of these must add to 100 However, jury, requested refused to instruct the court defendants, if to either defendants or Timberlake that it attributed causing death, responsibility proximately “less than 25% of the attributed required pay only percentage that defendant will be damage and that if it attributed to that defendant of the total award” responsibil- of the total either defendants or Timberlake “25% or more death,” held causing that defendant would be ity proximately be liable, meaning that that defendant “could jointly severally and awarded, required pay damages percentage 100% of the even if the you attribute to that defendant is less than 100%.” verdict,
After jury jurors signed rendered its three affidavits swearing they thought required рay defendants would be damages of the total they signed 40% would not have verdict form they jointly had known that defendants could be held severally liable for the entire amount of the verdict. The trial court disregarded the affidavits. juror
We first note that the trial court properly disregarded the af fidavits, which, argue, defendants jury demonstrate that the entered a “compromise verdict” with the intention that pay only defendants Generally, jury $10.8 million. cannot impeached by verdict be (1998). juror’s testimony. 404, People Hobley, v. 182 Ill. 2d “This prevents rule juror’s ‘motive, admission of a affidavit to show ” process by method or which the reached its verdict.’ Hobley, 182 457, Ill. quoting Holmes, 2d at People v. 69 Ill. 2d general rule preclude does not juror the admission of af fidavits proof “which are offered as improper extraneous influences on jury.” Hobley, 182 Ill. Here, 2d at 458. juror affidavits were prove offered to setting their motive in the amount of the verdict and in apportioning responsibility between defendants and Timberlake. Accordingly, the court was correct not to consider them.
Defendants do
any
not cite
cases that stand for the proposition
their requested instruction on the
joint
effect of the law of
required.
fact,
several
as Chief Justice McMorrow
observed in her concurrence in Unzicker v.
Ingredients
Food
Kraft
Corp.,
(McMorrow, C.J.,
specially concur
ring),
this,
in cases such as
“the jury
typically
not instructed
joint
effect of
liability.” Furthermore,
several
in response to the
Unzicker
allegation
defendant’s
establishing
the statute
the law
*18
joint
unconstitutional,
several
was
Justice McMorrow
instructing
wrote
whilе
a jury
joint
effect of
several
“[wjhether
liability would help
“compromise
verdicts,”
avoid
compromise
pervasive
verdicts are a
problem
justice
in the
system
civil
(McMor
seriously questioned.” Unzicker,
has been
Defendants next contend the trial court committed prejudicial in denying error request defendants’ that it instruct jury pursuant Instructions, Civil, Jury Illinois Pattern 12.01 No. (2005) (hereinafter (2005) 12.01) IPI Civil No. that it could consider “determining percentage his of fault”
Timberlake’s intoxication person and that intoxicated is held to the same standard of care “[a]n person.” as a sober responds improper
Plaintiff that the instruction was because sum- mary judgment already against had been entered Timberlake. Therefore, whether he breached the standard of care or was at fault bringing forgone about James’s death was a conclusion. Instead of issue, obliged only degree determining jury to assess agree James’s death. We with responsible to which Timberlake was construction of the instruction. plaintiffs agree City Springfield, further that French v. We (1972), support defendants in 3d 368 the case cited give instruc requested their that the court’s failure to contention reversal, requires distinguishable intoxication from the case tion on at bar. French, negligence at trial that the of a argued the defendant
nonparty proximate intoxicated driver was the sole cause may at trial that the driver plaintiffs injury. presented Evidence was jury the trial court did not instruct the drinking. have been Because (2005) 12.01, pursuant jury apprised to IPI Civil No. care. Failure to the effect of the driver’s intoxication or his standard of held instruct the on the standard of care to which driver was here, already the court had contrary, was reversible error. On the negligent. Accordingly,the standard of concluded that Timberlake was jury’s purposes. unimportant he held care to which was denying trial court erred in finally allege Defendants that the Jury to Illinois Pattern request jury pursuant that it instruct the their (2005) (2005) (hereinafter Instructions, Civil, IPI No. 12.04 Civil No. death of 12.04), proximate the sole cause of the that if it decided “that Timberlake and not Mikolajczyk was the conduct of William James Ford/Mazda, verdict should be for your that of then Ford/Mazda.” (2005) state, specifically 12.04 Use of IPI Civil No. The Notes on negligence person where of a “This instruction should be used have concurred or contributed to may is not a to the suit party who added.) 12.04, IPI Civil No. (Emphasis cause the occurrence.” Use, Here, correctly requested denied the at 58. the court Notes on negligence had because, though the issue of Timberlake’s instruction trial, party Timberlake remained already decided at the time of been to the suit. permit that the trial court erred next contend
Defendants argue Defendants testify to other accidents. ting plaintiffs experts ac substantially similar to James’s accidents were not that the other irrelevant, hearsay, testimony experts’ cident and prejudicial.
101 “ ‘The in trial admission of evidence is within the sound discre tion of trial will not be reversed absent an abuse of discretion.’ An [Citation.] abuse of discretion exists where no reason person agree position able would with the of the trial court.” Brax v. Kennedy, App. 343, (2005), 363 Ill. quoting 3d 355 Skubak v. Lutheran (2003). Systems, 30, General Health Care App. 339 Ill. 3d 36 Evidence prior generally accidents is product admissible to show causing Cincinnati, dangerous accidents is and defective. Bass v. (1989). Inc., Ill. App. 180 3d 1080 in order to be admis sible, prior accident must equipment have involved that was in substantially the same condition as that involved the accident in question and the accidents substantially themselves must be similar. Bass, 1079; 180 Ill. App. Co., 3d at Gowler App. v. Ferrell-Ross 206 Ill. 202 It need not be prior shown that the accidents oc curred in an identical manner question, just accident in the accidents substantially Bass, were 1080; similar. 180 Ill. App. 3d at Gowler, 3d at 202. case, presented evidence of three other accidents. first,
In the Escort, driver of a Teters, Yolanda was hit from behind pulling while driveway. out of a yielding Her ramped seat her head struck the back seat of her car causing injuries that resulted in her second, death. In the Escort, driver of a Betty Potter, lost control and hit a tree with the back of her car. yielding Her seat ramped and her head struck the back seat of her car causing injuries that resulted in paralysis. third, her In the the driver of a mid-1980s Escort, Cathy Bitters, was involved in a rear collision that caused her car to roll. Her yielding seat ramped and her head struck the back seat of her car causing injuries that resulted her paralysis.
Defendants contend that these accidents substantially are not similаr to the case at bar because the seats in the other accidents were seats, not was, CT20 as James’s because the seats did not utilize the same system did, seatbelt as James’s because two of the other Escorts were four door sedans while James’s was a two door and because the other accidents were not rear-end occurring collisions while the Escorts were stopped. clearly
While Teters’s, James’s accident identical to Pot accident, ter’s or Bitters’s all defect, involved the same alleged a seat that was built inadequate each, strength, and in allegedly defective seat caused the accident spinal injuries. victim’s brain and (“the Gowler, See Ill. App. cracking at 203 mill involved in each accident had the same design defect as did cracking mill on which injured and the resulting injuries from the other cracking mills injury were similar to the by plaintiff. incurred subsequent
Therefore, admitted evidence of properly the trial court accidents”). Moreover, impact to the rear of all accidents involved Accordingly, say we cannot accident victims. the cars driven abused dissimilar that the trial court the other accidents were so concerning them. admitting evidence its discretion *20 contention, that find, contrary to defendants’ We further of hearsay and that the admission relevant and was not evidence was Curiously, plaintiff has failed overly prejudicial. not the evidence was to these contentions. respond to testimony experts’ that was
First, defendants’ contention of the objected to the admission hearsay Though is wаived. defendants substantially not that the accidents were grounds on the evidence objection. See similar, they hearsay did not as a basis their raise 582, Comm’n, 596 App. 359 Ill. 3d Land Lakes Co. v. Industrial & (“[a] required to (Donovan, J., concurring) party specially evidence, particular grounds, objections to based on specific make to all other objections of to do so results a waiver the failure on”); Waukegan, 133 City Barreto v. specified or relied grounds not of (1985). 119, App. Ill. 3d 130 hearsay fails. regarding aside, contention Waiver defendants’ the truth of the presented for Hearsay is an out-of-court statement credibility of an for its value on the dependent it asserts that is matter Motors, Inc., 351 Hubbard Woods Chapman declarant. v. out-of-court 99, App. Ill. 3d 106 investigations their
First, to the results of experts testified scenes of the ac- Though they were not at the accidents. the other pursuant knowledge place took cidents, of what they personal had accidents; testimony reflected their their investigations of those their declarant. of an out-of-court rather than the statement investigations, on their were not based Moreover, experts’ if statements even they hearsay because observations, inadmissible they are not personal they asserted. truth of the matter for the presented were were Teters, and Bitters that Potter testimony asserted experts’ and their seats the rear were struck from their cars injured when defendants’ to rebut However, testimony presented was ramped. rare, that to show very James’s were such as that accidents assertion that the seat’s and to show dangerous James’s seat was reasonably foreseeable in James’s accident performance defendants. overly and was not testimony was relevant find that the further
We ac- other similar above, testimony regarding As stated prejudicial. unreasonably James’s seat was show that relevant cidents was injuries fatal cause his ramp and the seat would dangerous and that Furthermore, say we cannot reasonably to defendants. foreseeable outweighed its of the probative value evidence fact that light experts’ prejudicial impact, particularly testimony subject on the other accidents was brief. footnote, plaintiffs experts
Notably, in a defendants observe testify regarding permitted, objection, were also over defendants’ police defendants performance rigid seats vehicles. develop admitting erred in argument do not the court evidence, admission, coupled that its with the admis suggesting accidents, Teters’s, testimony regarding sion of Potter’s Bitters’s trial, cite prejudicial and denied defendants a fair and do not authority support thereof. refuse to Accordingly, we address 341(a) See R. (noting contention. 210 Ill. 2d that footnotes are discour 341(h)(7) aged); appellant’s 210 Ill. 2d R. that an (requiring brief include citations to the authorities and of the record pages relied upon); People Department Co., ex rel. Labor v. Electric General (2004) (“[s]ubstantive Ill. App. may arguments not be made responses footnotes and made improper”); thereto are likewise (2001) (lack Marriage Suriano, re of cita contention). legal tion to authority appellant’s results in waiver of an *21 Defendants contend jury’s next $25 million verdict of society arbitrary we, for loss is and They excessive. ask that therefore, vacate the judgment of the trial and court remand for a new or, trial, alternative, in the that we order remittitur to reduce of society amount the loss of award.
“The damages of question determination is a reserved to the trier fact, of reviewing and a lightly court will opinion not substitute its for the judgment rendered in [Citations.] the trial court. An award damages will be deemed range excessiveif it falls outside the fair and compensation reasonable passion or results from prejudice, large judicial or if it is so that it shocks conscience.” (1997). Chapman, Richardson v. 175 Ill. 2d 113 argue Defendants that the loss of verdict society was excessive “[n]o because has an upheld eight-figure Illinois court ever loss society award. some evidentiary Nor is there unusual basis that could an justify eight-figure Il award this case.” Defendants cite several cases in juries society linois which the loss of awarded lesser awards argument. See, than was awarded support e.g., here in of their Jones (2000) Chicago Osteopathic Hospital, v. 316 Ill. 3d 1121 App. (uphold award). ing society a million $2.2 loss of
Plaintiff urges compare us amount in case not verdict this cases, to other such arguing comparison a is not under authorized points Illinois case law. Plaintiff out should we determine that 104
comparison upheld is appropriate, several courts have noneconomic See, awards to accident millions. Richard е.g., survivors the tens of son, Ill. (upholding disability, 175 2d 98 an of $3.5 award million for disfigurement suffering, million for for pain and million and $2.1 $4.6 million); Chicago for a total award of & noneconomic Barton v. $10.2 Co., Transportation App. North Western 325 Ill. 3d 1005 an million for (upholding disability, $9 award million for $8 disfigurement, pain suffering for for million and million $8 $3 mil pain suffering, future lion). total noneconomic award of $28 recently This issue in Velarde Illinois Central addressed v. Co., R.R. Richard App. Ill. The Velarde court cited son, in supreme engage comparison which the court refused to traditionally verdicts noted that Illinois courts have declined to excessive, comparisons determining make is when whether award Tierney Community App. v. 268 Ill. Hospital, Memorial General (1994), it is simply the court stated that law which jury’s awards. The Ve compare in Illinois verdict to other similar (1992), v. May, App. larde court examined Johnson 3d 477 in this case in case cited defendants and the defendants Velarde support comparison of a of awards. The court noted that the Johnson case in award in another passing made reference to support judgment of its conclusion that a the defendants was contrary Specifically, to the the Johnson court weight evidence. stated: reported posttrau persons
“The case law afflicted with shows severity arising comparable matic disorder from accidents stress plaintiffs] [the have much as a a million dollars received as half damages negligent party. in noneconomic from the While cases, scarcely we magnitude controlling of that award in other just mark least some indicia of far off the think that it is at how added.) Johnson, jury’s (Emphasis inwas case.” verdict Ill. 488. 3d at “Johnson to mean that bare The Velarde court refused read deeming an figures appropriate is an basis for comparison dollar weight of Il depart from ‘the clear and declined “to award excessive” *22 ” Velarde, authority reject[s] “comparison” concept.’ [which] linois 543, 268 3d at 1065. 542, quoting Tierney, App. Ill. App. Ill. 3d at 354 Illinois and refuse to of law agree with Velarde’s assessment We in awarded this case to amounts compare the amount awarded determining whether the verdict excessive. cases other society loss of argue jury’s million $25 Defendants further the loss of They note that “punitive, compensatory.” not award
105 award, they “punitive,” as is society categorize which times 12V2 money, goods of the award for loss of and services. Defendants amount Co. Campbell, Mutual Automobile Insurance v. 538 cite State Farm 1513, (2003), 408, 425, 585, 605-06, 2d U.S. 155 L. Ed. 123 S. Ct. exceeding awards practice, in which the Court noted “in few punitive damages, to a single-digit compensatory ratio between v. significant degree, satisfy due and Heldenbrand Road process,” will (1996), Ill. master which this Corp., punitive damage of compensatory noted that a award three times the damage is appropriate. amount argument agree plaintiffs “[cit
We with assessment of this ing punitive damages Although no decisions makes sense.” defendants society punitive contend that a loss of million must $25 award he compensatory, they develop argument. rather than not do Moreover, notes, punitive damages as requested were not society authorized in this casе. The million $25 loss of award was Lines, Inc., pecuniary, punitive. v. Gobel Freight See Drews (1991) (loss society, conjugal companionship and relations suit). compensable pecuniary are damages wrongful death Accord ingly, the three to one applicable assessing punitive ratio whether damage amounts are excessive inapplicable to this case.
Nonetheless, though we society refuse to deem loss of award merely it excessive because was than larger society loss awards in cases, though other we regard society refuse to the loss of award punitive, we cannot allow the million award society $25 loss stand it because exceeds fair and compensation reasonable and shocks judicial conscience. testimony presented at Mikolajczyk trial showed that family very They spent close. deal time great together. James very plaintiff. affectionate with James was best friends his daughter, sports coached his son’s engendered teams and in his son a died, love of science. When James was left to raise the children, old, years who were 10 and 14 alone. Since their father’s death, both children problems. However, have dealt with emotional gone each fact, has also on to be a successful student. Adam has gone scholarship on to earn a Dame. Notre
In plaintiffs closing statement, plaintiffs attorney reiterated testimony concerning family’s relationship. close Plaintiff’s at- torney then stated: it, ability give
“When it comes down to I’m almost without you dollar society. value that sense for makеs the loss It’s something your I have I struggled with because know it’s your uniquely lawyers chore and it’s chore it’s one that the are free both I suggestions side[s] make and will. *23 society appraisal
I fair of the of that can’t believe that a loss million. I people $25 these have suffered would be less than can’t believe it.”
Though suggest damages amount, did a attorney defendants’ jury: he reminded the law, law, required just you’re the under the to find and
“Under you compensation fair and have to be reasonable and fair. done, Standing up [plaintiff’s attorney] here has he can as ask just. It anything. It doesn’t mean it’s fair. doesn’t mean it’s It you mean it’s But that’s for to decide.” doesn’t reasonable. motion, argued In their million posttrial $25 defendants grant society refusing loss of award was excessive. a new trial on award, the of the court stated: that basis or to remit amount the trial attorneys say plaintiffs great “Many plaintiffs’ their are very good a plaintiffs sympathetic good and and families and I person. jury’s going plaintiff. to love the hear that basi- cally every case. individual, Mikolajczyk unique Mr.
In this case it was true. close, very family very,very person, and the much wonderful daily on a closer than most the families we have court basis. The jury heard that.” agree presented certainly the at trial revealed
We evidence relationship Mikolajczyk family’s and the close nature family James by died demonstrated that loss suffered when any is parent family relationship The loss was enormous. parent. catastrophic. expects one of a Gone guidance Gone is so relationships. intimacy is the ever- such Gone love affection howеver, justice family. Unfortunately, system in a our present close society. loss of determine the fair amount of does not have a formula to than the mind. of fact relies more on the heart Often finder disagree jury’s we must sympathy, While we understand the and find of that verdict verdict the trial court’s assessment society all fair and reason- million loss of award exceeds $25 judicial as to conscience. compensation large and is so shock able award, society loss of Turning remedy to the excessive now entirely for an new trial that we remand we note that defendants ask alternative, of the award to damages or, in the order a remittitur on goods million, money, to three times loss of equal an amount $6 proper in remittitur is not responds services Plaintiff award.1 this case. money, million, loss of three times the requesting remittitur or $6 1In commonly accepted in award, rely the ratio defendants
goods and services They Heldenbrand, 674. damages. Ill. 3d at punitive figuring See “ wholly setting ordering ‘The of remittitur lieu of aside an verdict, erroneous, affirmance of which would be has excessive consistently acknowledged promotive been to be of the ends of justice litigation.’ practice ‘The [Citation.] and the termination of ordering damages long been a remittitur of excessive has Supreme [Citation.] recognized accepted part Illinois law.’ *** (155 366(a)(5)) 366(a)(5) specifically 2d R. Court Rule Ill. any relief, provides reviewing power grant that a has the agreement including entry of a ‘A remittitur remittitur. is an remit, relinquish, por to the defendant that jury’s damages tion [cita verdict which constitutes excessive *24 accept judicially to the tions] and sum which has been determined properly damages [citation]. to be The only recoverable alternative to damages a remittitur in a case where the verdict exceeds the [citations], properly proven can where verdict be ac and/or on counted the sole basis from improper acted some [citation], [citation], passion motive prejudice such as or is for the trial to judge order a new trial [citations].’ [Citation.] A court does authority by not have the to the damages entry reduce of a remit objects titur if plaintiff or not ‘The [Citation.] does consent. trial plaintiff agreeing court must afford the choice refusing of remittitur, entry proviso of a plaintiffs with the that refusal agree entry of a ordering remittitur will in the result of a ” new Co., trial.’ Peter Capitol J. Hartmann Co. v. Bank & Trust (2004). App. 700, 353 Ill. 3d 711 406, (1991);
Haid v. Tingle,
App.
219 Ill.
3d
411-12
Taylor
Best v.
Works,
367,
Tri-G,
Machine
(1997);
Burke,
179 Ill. 2d
412-13
Inc. v.
Weaver,
Bosselman &
222 Ill. 2d
253-54
We
contrary
parties’ assertions,
believe
to both
a remittitur
proper
rather than a new trial is
in this case.
Unlike Bart v. Union
California,
Oil Co.
(1989),
Ill.
3d
App.
64
a
which
loss of
of
damage
consortium
award was
and
vacated
the case was remanded for
a
damages
new
trial because the evidence did not show
a
loss of
here,
warranted,
consortium award was
there was sufficient evidence
presented
Moreover,
to support
at trial
a loss
society
award.
unlike
Co.,
in Brown v. Arco
App.
(1989),
Petroleum
Ill.
Products
3d 563
award,
also note that
society
coupled
$6 a million loss of
with
$2
the million
services,
money, goods
award for loss
put
and
awаrd in
would
case’s
See,
upon
e.g.,Barry
line
arrived
awards
other Illinois cases.
v. Owens-
(1996)
Corning Fiberglas Corp.,
App.
(upholding
Ill.
3d 199
mil
$6.85
a
wrongful
award);
lion
death
Holston v.
Third
St.
Sisters
Order
Fran
(1995)
cis,
(upholding
award);
165 Ill.
wrongful
2d 150
a $6.2 million
death
award).
Drews,
(upholding
As find loss of award of stated we Richardson, (finding million to be See 175 Ill. at 115 excessive. $25 $100,000 pain suffering, plaintiff that a award for and when the suf forehead, on with minimal scar fered laceration her which healed accident, ring, nightmares concluding her excessive and about figure pain suffering appropriate that “a more would be Lines, Inc., $50,000”); Ringsby Johanek v. Truck “[ajfter (finding, considering all of evidence most 156-57 $880,000 favorably plaintiff],” award for loss of [the consortium, plaintiff’s spouse “depressed when the was often plaintiff deprived of ornery” after his accident and when the was often stays, spouse’s companionship during hospital his was excessive her sum exceeding “entitled to recover a and $500,000”). We, therefore, court for a remand this case to trial By way hearing appropriate amount of remittitur. to determine the court, trial we find difficult to deem reason guidance to the would it case society figures of more than seven in this able loss of award any find an award more than one-half certainly would unreasonable society upon by jury. After the remit of the loss of award settled court, if does not consent to by is set the trial titur amount the trial period within a reasonable time set the reduced award parties court, then the trial court shall order new trial between society damages. of the amount of loss of issue *25 deprived Next, they contend that were of fair defendants Accordingly, trial cumulative effect of the court’s errors. trial the of trial court and remand judgment ask we reverse the they above, However, having determined, as discussed a new trial. defendants, alleged by errors we trial did not commit the this be without merit. find contention to 2—1303 of the Code defendants contend that section
Finally, (735 (West 2004)), provides ILCS which of Civil Procedure 5/2—1303 at in draw interest any court shall “[¡Judgments recovered satisfied,” judgment of until is annum from date per rate of 9% argument is as follows: entirety of defendants’ unconstitutional. The argued Corporation Electric in by Lakewood “For the same reasons Corp., Electric [Schultz v. Lakewood its before this Court appeal [section (2005), defendants] contend that App. 362 Ill. 3d 716 process of the due and violation 1303] is unconstitutional 2— Illinois constitu of federal and state equal protection clauses tions.” 341(h)(7) “[argu requires brief contain an appellate
Rule that an ment, and the appellant which shall contain the contentions of the therefor, pages and reasons with citation of the authorities 341(h)(7). to Rule comply record relied on.” 210 Ill. R. Failure 341(h)(7) Lantz, generally People results in a waiver the issue. v. Ill. 2d 261-62 case, any meaningful
In argument defendants do not offer or fact, authority citation In their support to their briеf. conten they tion that case section 2—1303 is unconstitutional cite specifically which held that section 2—1303 constitutional. See Schultz, App. (finding 362 Ill. 3d 716 that section 2—1303 does not violate due or process equal protection). Accordingly, they we find that have waived this issue. state, aside, though we tempted simply response
Waiver are to Schultz, argument, to defendants’ that for the reasons set forth in we find process that section does not 2—1303 violate the due clause or protection equal constitution, clause of the federal Illinois we indulge will in a arguments brief discussion of the raised constitutional Schultz, a case to we which adhere. Schultz, on remand from the defendant’s unsuccessful appeal, pay jury’s defendant was ordered to on interest verdict for the plaintiff. Defendant appealed, contending that section 2—1303 of Code of Civil Procedure due process equal protec was “violative of and (due I, tion under article sections 2 process equal protection clauses) (access clause) courts the Illinois Constitution (due and the fourteenth process equal protection amendment clauses) Schultz, United States Constitution.” Concerning process contention, at 719. its argued due the defendant that section 2—1303 contravened its access the courts because the interest rate arbitrary taking the statute set to an amounted property hearing penalized without and because the party statute appealing. argument We declined to address the defendant’s charge arbitrary taking interest was an beсause the defendant had meaningful offered no argument support or citation in of that conten tion. We found that provision the access courts of the Illinois Constitution and the notion of access to in the courts embodied fourteenth amendment of the United States Constitution focused required rights. fees to file or maintain a suit to vindicate one’s Sec tion provi 2—1303 did not concern such a fee. even if those applied, sions because access to courts does not concern a fundamental process right, legislature’s due the award interest serves the *26 purpose compensating money wrongfully of has party whose been withheld, the due process defendant’s claim would fail. contention, argued
Concerning equal protection its the defendant it, debtor, disparately judg a judgment that the statute treated from because, if had the example, paid ment the defendant creditors judgment the the had been plaintiff judgment amount of the but obliged pay have to appeal, reversed on the would not been argued the additionally the interest. The defendant defendant differently parties litigations statute treated it from all other to civil money judgments parties not involved because those would where were ap required pay not interest. held the basis test be to We rational that, therefore, question section 2—1303 plied and was “whether into places similarly persons situated different classifications Schultz, legislation.” purpose to the wholly reasons unrelated argument App. at 728. We found the defendant’s 3d because, in regarding hypоthetical, its judgment creditors failed under the statute and judgment would become the debtor to obliged pay interest. We declined address would therefore be argument regarding parties litigations other to civil defendant’s similarly argued parties that those were because the defendant had judgment Accordingly, we found that section situated debtors. did or the United States Constitution 2—1303 not violate Illinois alleged as the defendant. no persuasive and therefore find reasoning find the of Schultz
We 2—1303 of Code merit to defendants’ contention that section process equal or Civil Procedure violates constitutional notions due n protection. trial reasons, judgment affirm the For the above-stated we regarding the part, judgment of the trial court reverse may society that the trial court loss award and remand case so society award. set a remittitur of loss of part; cause remanded. part Affirmed in and reversed CAMPBELL, concurring: specially JUSTICE case, but write disposition of the agree majority’s I held supreme court has points. minor Our separately clarify two range “if it falls outside damages award of is excessive that an passion prejudice, from or results compensation fair and reasonable judicial (Emphasis conscience.” it shocks the large or if it is so added.) Ill. Richard Chapman, v. Richardson met, ifmay, war standard, any part of which disjunctive son states notes, Moreover, opinion majority rejection of verdict. rant compare verdicts authority Illinois declines weight clear Co., Ill. R.R. v. Illinois Central this context. Velarde Ill *27 (2004). Stocker, App. 542-43 But 34 Ill. see House v.
(a involving comparative many сases similar examination verdicts in injuries confirming reliability of our may purpose be used for conscience). requires judicial own The determination of the issue case-by-case approach. example, having opinion For authored the Co., Chicago Transportation App. Barton v. North 325 Ill. & Western (2001), I majority cited in opinion, note award upheld provide adequate an because the defendants failed to Barton, record for review. 3d at 1042-43. case, taking even into account the evidence noted verdict,
trial I upholding court in conclude that the verdict falls permissible range. my judicial outside the not shock award does conscience, majority but Illinois require join law does such opinion. MURPHY, specially concurring:
JUSTICE agree I with Justice disposition Greiman’s of this case. I separately concerning write remand this case to the trial court hearing for a appropriate determine the amount of remittitur. As majority and separate concurring note, opinion both Illinois courts have consistently compare declined to damages awarded in different cases to determine if award is excessive. Velarde v. Central Illinois Co., R.R. 354 Ill. App. 3d Camp As noted Justice concurrence, bell’s this issue is case-by-case best determined on a ap proach. agree
I that the award in hearing this case is excessive and that a to set a justice remittitur amount better serves interests than a new trial our setting guidance an award. I respect given While by majority, I would defer to the sound judgment of the trial court after the hearing establishing rather than an acceptable range. Great given findings deference should be to the and decision of the trial in determining a proper award.