*1 thе errors which occurred in this trial a wit- (permitting Without ness to to a act which testify strength bad demonstrated defendant’s toddler, when the coupled victim was with erroneous court rulings unperfected and about defendant’s impeachment testimony employ- ment and what defendant said to a friend about the history reportedly injuries), child’s we cannot would found defend- say have ant murder a reasonable guilty attempted beyond doubt. reasons, foregoing
For reverse and for a we remand new trial.
Reversed and remanded. McNULTY, JJ.,
MURRAY and concur. PASQUALE, Pasquale, Diane De DAVID R. Adm’r of the Estate of K. ceased, Pasquale, Plaintiff-Appellee, v. SPEED the Benefit of Samantha ENGINEERING, Defendant-Appellee Cross-Appellee PRODUCTS and (F Manufacturing Third-Party Plaintiff-Appellee Company, and B Defend ant-Appellant Third-Party Defendant-Appellant; Pasquale, R. Deceased, Pasquale, and as Adm’r of the Estate of Diane K. Plaintiff Indiv. Law, Cross-Appellant; Wesley Special Raymond Adm’r of the Estate of Law, Deceased, Plaintiff). (4th Division)
First District No. 1 — 91—1738 27, 1993. Opinion August 26, 1993. Rehearing September filed denied *3 Bell, Ltd., Chicago (Thomas Fegan Kallus, Johnson & H. Mindy and counsel), appellant Manufacturing Company. for F & B Associates, P.C., Ring (Leonard Chicago Ring, Leonard M. & M. Wil- Jovan, Rosen, counsel), liam J. appellees. and Leslie J. for JUSTICE HOFFMAN delivered the of the court: opinion Diane K. a Pasquale died as result of she sustained on injuries 27, 1979, May when of the clutch part mechanism a race car struck husband, her in the head as she and her David R. were Pasquale, watching Grove, a race at the drag Great Lakes Union Dragway husband, Wisconsin. addition to her Diane was her mi- by survived nor Samantha E. daughter, Pasquale. occurrence, David,
As a result of the both and as ad- individually Diane, sought against, among ministrator the estate of recovery others, Manufacturing (F Engi- F & B & Products Company B), Speed neering (Great Lakes). and Great Lakes Inc. Prior (Speed), Dragway, trial, against Great Lakes settled the action it. The cause brought to trial F & B proceeded against before which retumed.verdicts and and on their claims Speed apportioned contribution all The trial court denied against Speed. 70% 30% and against against the verdicts for certain setoffs motions provided and and David, individually settlement. both Lakes by reason of Great F estate, appealed. administrator of and B as & have rеcitation issues on a brief addressing appeal, Before giving litigation appropriate. facts rise car distributing parts. and race Speed selling is in business 1960’s, Speed fabricating F B in the In the late & is metal business. Originally, B to housings (bellhousings). F & clutch engaged fabricate F B from alumi- produced & for were made bellhousings by Speed hot produced were from they one-quarter-inch num but subsequently rolled steel. building Brothers chassis (Peak), company engaged
Peak from had been cars, Speed race a steel which purchased bellhousing F car that produced bellhousing & B. Peak installed the a race by Harris, сar driver. Clayton professional built for race drag and rac- May spectators On David Diane were at at the was ing Dragway. competing event Great Lakes Harris accelerated, him driving event the car Peak. As his car built bellhousing apart. the clutch mechanism located within the broke bellhousing penetrated propelled Pieces clutch were the head into the One of the struck Diane in spectator pieces area. next velocity instantly. with such she was killed David seated time. her at the Lakes The instant action was filеd After Great July settlement, effectuated its a fourth-amended complaint David filed F B only ap & as For of this naming Speed purposes defendants. II, com peal, I, we are concerned with and III of that only counts I Stat. plaint. (see Counts and II were death actions Ill. Rev. seq.) brought 1 et administrator liability. Diane’s estate and of strict grounded allegations F brought Count I was both B and for the benefit against Speed Samantha, against only of kin. II as Diane’s next Count brought surviving spouse. of David as Diane’s benefit I manner in which and II were was necessitated pled counts had F & for fact that could not be David’s benefit action two-year because the & was not filed within the *4 1991, ch. period (Ill. limitations Death Act. Rev. Stat. However, minor, wrongful a 2(c).) because Samantha was F & B for her was not barred. against similarly death action benefit D.F. Bast Co. Wilbon (Ill. par. 2(c); Rev. Stat. David, indi- an action Count III was brought and on a of strict vidually, against Speed only theory seeking for emotional distress. tried on the fourth-amended jury complaint The case was before F & B and brought by Speed and the cross-claims contribution against wrong- each other. F B moved for a directed verdict on the & the close of ful death claim Samantha’s benefit both at David’s case and at the close of all of the evidence. The trial court denied the against motions. F & moved for a directed verdict Additionally, Speed on counterclaim for contribution. That motion was also Speed’s rested, in- denied. After all of the the trial court refused to parties and, struct the on David’s individual claim for emotional distress jury effect, a directed verdict on count III. After deliber- granted Speed which, returned verdicts relate tо this ating, multiple they read as follows: appeal, FORM 1-A
“VERDICT As the claim of the plaintiff, Pasquale, David benefit we, of Samantha Pasquale, jury, plain- find favor defendants, Manufacturing tiff against Company and Engineering plaintiff’s damages and Products and assess Speed $1,500,000.” in the sum FORM II-A
“VERDICT As to claims of the as Adminis- plaintiff, Pasquale, of him- trator of the Estate of Diane for the benefit Pasquale, we, and self, plaintiff against find in favor of the jury, defendant, Engineering plaintiff’s Products and assess $150,000.” damages in the sum F B filed a motion notwith- post-trial requesting: judgment in its David in his standing representa- favor or, alternative, a setoff of tive for Samantha’s benefit capacity awarded for the benefit of Samantha judgment and a not- judgment reason of the settlement with Great Lakes claim withstanding against Speed the verdict its favor F B’s motions for for contribution. The trial court denied & granted & a setoff notwithstanding the verdicts $430,894.50 against it for the benefit against the verdict rendered Lakes share of the Great Samantha and further found David’s against Speed of the verdict settlement would act as full satisfaction on the claim for his brought benefit. estate, also filed a
David, as administrаtor individually trial on the issue of alia, a new motion inter requesting, for his benefit brought claim on the death damages only
729 claim for emo- reinstating and an order his individual against Speed on the issue of only. and a new trial thereon tional distress motion. The trial court denied David’s B error in the de- are as follows: F & claims The on appeal issues verdict, the denial notwithstanding the nial of its motion for judgment claim, and the failure to dismiss contribution its motion with the court a setoff for the full amount of the settlement grant individual Great claims error in the dismissal of his Lakes. David of dam- claim for emotional distress and seeks a new trial on the issue ages only brought in the death action for his benefit. first address the issues F & B.
We raised the design of F & B’s defense that it did not bell- theory was F & B elicited evidence that housing Speed. which manufactured for B that F & did not know how Speed specifications, supplied used, to test the part prod- would be and that & was never asked Further, not that Speed’s uct. F & B contends that David did show specifications obviouslydangerous. were party a third
Compliance specifications provided by with specifications is a defense in a strict action unless dangerous competent were so that no manufаcturer would obviously 203, 368; 74 Ill. (Hunt (1978), follow them. v. Blasius 2d 384 N.E.2d Savers, Loos v. Inc. 168 Ill. 3d Energy (1988), American However, manufacturer can be 841.) component part N.E.2d in the com an is attributable to defect strictly injury liable when (Thomas Agricultural (1980), itself. v. Kaiser Chemicals ponent part regardless 81 Ill. This is true 32.) proposition 407 N.E.2d it to malfunction or the whether the defect in the causes component Thomas, 81 Ill. 2d design faulty. renders it component N.E.2d 32. B that F & received drawing that the testimony
David introduced amateurish, that F & bellhousing was fabricating from almost that the drawing, part changes B’s made employees company, for another race car making onе that F & B was identical to from one- made although Speed requested part and that grade selected the steel, it F & that hot rolled quarter-inch Yonker, Jr., and Norris Kelsay, H. Boulter experts, steel used. David’s product. of a design part testified that material selection there are testified that employees, of F & B’s Coakley, Charles one strength greater and some have different of hot rolled steel grades resistance. impact notwithstanding the verdict and judgments Directed verdicts evidence, in which all only should entered in those cases of the mo opponent when in its most favorable to the aspect viewed tion, no overwhelmingly contrary so favors movant that v. (Pedrick based on that evidence could ever stand. Peoria & East (1967), 504.) jury’s ern Co. 37 Ill. 2d 229 N.E.2d It is R.R. evidence, weigh judge function to contradictory credibility witnesses, as to the facts. (Finley and draw the ultimate conclusion New York Central R.R. Co. relating duty, conclusions to the issues of breach causa jury’s
tion, other factual matters should not be set aside damages, and Finley, different conclusions could be drawn. merely because 428, 167 N.E.2d 212. asрect the evidence in this case is viewed its most When *6 as to F & B’s plaintiff, favorable to the reveals factual question bellhousing. the The resolved that issue designing involvement not usurp jury’s F B and this court cannot and will the & The reweighing function the evidence on the issue. trial court F B’s motion for the judgment notwithstanding denied & properly verdict. its for a argument
F & B’s next concerns the denial of motion Speed’s directed on contribution claim and the denial of its trial, motion thereto. At F & B contended that the post-trial relating counterclaim was the statute of limitations and the barred both grounds. court on both reрose. statute of trial denied motion however, B motion, In its F relief from the denial sought & grounds sought of its motion statute of limitations but no relief In repose grounds. from the denial of the motion on statute of this argues that the trial court erred in its motion appeal, denying to the on statute of no issue has been raised as stat repose grounds; ute of limitations.
F & on this must fail for two reasons. argument question B’s First, trial by failing to raise court’s denial its propriety repose grounds post- motion for directed verdict on statute of its motion, F B purposes appeаl. & has waived the issue for (Brown 344, v. Decatur Memorial Hospital (1980), Second, waived, N.E.2d if F argu- even the issue was not & B’s ment is without merit. The statute to strict repose applicable prod- uct liability 213(b) actions is set forth in section of the Code of 13— Procedure, Civil which as follows: provides no
“Subject (c) (d) prod- of subsections provisions uct action on the doctrine of strict in tort liability based shall be commenced within the limitations except applicable and, event, period within 12 from date first years from or 10 years a seller sale, delivery possеssion lease or ini- to its sale, possession delivery lease or the date of first ex- non-seller, period whichever consumer, or other user, tial injured to have that is claimed earlier, unit any product pires has expressly the defendant unless plaintiff, damaged or longer period for a product or promised warranted 1991, ch. (111.Rev. Stat. period.” within that brought action is 110, 213(b).) par. 13— to contribution applicable is contained therein period
The repose
liability. Thompson
product
of strict
upon
theory
actions premised
531,
Peak was A “seller” is 213(b)) bellhousing. ch. par. Stat. 13— Procedure as “one 213(aX4) defined in section Code Civil 13— sells, dis- who, purрose, in the of a conducted course business manufactures, leases, assembles, installs, fabri- tributes, produces, labels, markets, main- cates, constructs, prepares, packages, repairs, tains, in the stream of is involved in placing otherwise Peak, 213(aX4).) commerce.” Stat. (111.Rev. 13— *7 bellhousing, the an car and as the installer of assembler of Harris’ user, the initial falls within the definition of a “seller.” Harris was bellhousing. of the consumer, possession and nonseller to come into such, filing the of in December 1978. As possession Harris acquired 2, 1988, was F B on February сontribution claim & repose. within the 10-year period final the appeal adequacy raised F & on involves by issue for awarded the granted by
the setoff the trial court Diane’s death. in this earlier, its verdicts
As after the returned indicated $430,894.50 (50% case, F B a setoff of granted the trial court rendered settlement) against Great verdict value of the Lakes David’s found that for of Samantha and further benefit act to Lakes would $430,894.50 share of the settlement with Great against Speed. $150,000 rendered for his benefit satisfy the argues by apportioning the setoff for the settlement in ratio to the distribution of the effect, in proceeds, court only granted $580,894.50 a setoff of as to the full opposed set- off required under section 2(c) of the Contribution (111. Act. Rev. Stat. 70, par. ch. 302(c).) responds that if a by arguing full set- $861,789 off of granted, were Samantha would fail to realize the full million of loss pecuniary $1.5 sustained her as fixed by jury. David contends that such a result would unjustly enrich F & B and de- prive Samantha of a portion substantial of her recovery upon a claim separate and distinct from his claim. 2(a)
Sections 2(c) Contribution Act provide as follows: “(a) Except Act, as otherwise рrovided in this where 2 or persons subject more are to liability in tort out arising same to injury or or person property, wrongful death, the same right them, there is a of contribution even among though judg- ment has not been entered against or all of them. any
(c) aWhen release or covenant not to or sue not enforce given good persons to one or more liable faith arising tort out the same or the injury wrongful same death, discharge it does not of the other any tortfeasors from liability injury death unless its terms so provide any but reduces the on clаim against the others to the extent of any amount stated the release or the covenant, or in the amount of the consideration actually paid it, greater.” whichever is Ill. (Emphasis added.) Rev. Stat. 70, pars. 302(a),(c). ch. $695,000 exchange payment cash and certain fu ture Great Lakes received a payments, David, release all both individually and administrator of the estate of Diane K. Pas quale, deceased. The release document not discharge did the liability of F & The B. Great Lakes settlement was found to faith good by order of court entered on re May Although actual lease document states that it releases from all Great Lakes claims Diane, David both and as administrator of the estate of individually July the order of which distributed the of the set proceeds tlement, no question leaves entire amount was distributed David and Samantha as and next of kin of the decedent under spouse (Ill. Death Act Rev. Stat. provisions seq.) nothing et to David individual distributed for the release of paid claim he have had. The consideration had a as found order present Great Lakes value
733 of faith good either the disputed has party and neither July order found That settlement distribution the settlement or its value. next of surviving spouse and Diane’s Samantha were that David and each. her at 50% upon fixed their kin, dependency and respectively, court distrib- dependency, of percentages their upon equal Based to equally with Great Lakes settlement uted proceeds and David Samantha. to the erred it looked trial court when
We believe determining the set- prior of the Great Lakes settlement allocation (Foster settlemеnt. upon entitled that off to which based 677, is no ques 608 N.E.2d There App. 241 Ill. 3d (1992), Kanuri liability in tort subject F & B were tion that Great Lakes and both unambiguous The and arising wrongful plain from the same death. paid the consideration provides the Contribution Act language of good-faith recovery reduces the Great Lakes for its wrong of that same against F B on claim reason against If, as ar 302(c).) (Ill. ful death. Rev. Stat. of the setoff the Contribution gues, application provisions strict her than a full for receiving Act will Samantha less result that circumstance will be as pecuniary jury, loss fixеd proceeds had to him 50% of the having apportioned result David total the Great Lakes fixed his subsequently settlement when jury suffered as a pecuniary at 9% the total recoverable loss result of Diane’s death. case as if there presented jury fact this had be F & separate against Speed, joint
were two and distinct actions B’s tortfeasor, expired due of limitations on the statute B, death for F & convert a sin- against action David’s benefit does not gle against cause of action into two actions. Speed separate fa- rights Death Act does not of action in create individual for terms may vor those whose benefit an action under its 352; brought. (1958), Hall v. Gillins 147 N.E.2d See Hospital Governing (1977), App. Addison v. Health & Comm’n 1060; Ill. re Edwards In Estate of N.E.2d 1379. case, of David after returned its verdicts favor in his & B Speed, they both F representative capacity million single judgment should combined into a have been $1.65 severally for which and F & liable jointly would stand remaining stand Speed only million would liable $1.5 $150,000. court accomplished, that was then should Once granted joint portion have setoff judgment, leaving a total amount owed on the combined $788,211, for which F B& and Speed would jointly and severally *9 $638,211 liable fоr and Speed only would be liable for the remaining $150,000. a Such procedure would comply with totally the letter of the Contribution Act and F B& would receive the setoff to which it is entitled reason of the Great Lakes remand, settlement. On trial court shall first combine the against verdicts F B& and Speed into a single judgment and grant then $861,789 & a setoff of against the million portion of that judgment $1.5 for which it stands jointly severally liable. It shall then order the remaining sums dis- tributed pursuant to section 2 of the Wrongful Death (111. Act Rev. 1991, 70, Stat. 2), taking into consideration the sums David already pursuant receivеd to the order distributing the proceeds of the settlement. David, his cross-appeal, estate, administrator of the requests
that the jury’s award of damages “his” under the Wrongful Death Act be vacated and the matter remanded for a new trial on that issue only. If a appropriate, court has the power grant a new trial re stricted to the issue of damages (Hollis v. only. R. Latoria Construc tion, (1985), Inc. 485 4.) However, N.E.2d the assess ment of damages is a factual question committed to the discretion of the jury. (Johanek Lines, v. Ringsby Truck (1987), Inc. 157 Ill. App. 3d 509 N.E.2d A 1295.) court will not substitute its adequаcy of damage award unless the jury’s determination on the issue is to the contrary manifest weight of the (Voss evidence. v. Tune (1984), 121 Ill. App. 3d 51.) N.E.2d To weight manifest of evidence, jury’s damages award must be clearly erroneous and unreasonable when examined in light of the facts and evidence in the (Gilman case. v. Kessler (1989), 192 Ill. App. 3d 1371.) 548 N.E.2d As was noted in Barr v. (1991), Groll Ill. 318, 322, 3d App. 567 N.E.2d verdict may be found “[a] contrary manifest of the weight evidence where the size of the award is the result of or passion prejudice where the amount is [or] palpably inadequate.”
The jurors heard the evidence relating to David’s loss pecuniary on the death of his wife. They were informed that he remarried 37 months after her death and were properly instructed that they could not award damages for his loss of society and sexual relations for any period after the date of his remarriage. We cannot find that fixing David’s pecuniary loss at weight the manifest the evidence. attempt argue David’s of the inadequacy jury’s award on this element of damage by comparison damage to a award inappropriate. is wholly an unrelаted case society loss a compari not measured damages an award propriety County Trust Co. (Northern in other cases. son with verdicts Each must 135 Ill. (1985), Cook in a set circum particular injury given light be examined making its determination. jury deference stances with humble 442, 158 N.E.2d WestTownsBus Co. Lau v. that, the conclusion support does not The record this case wife, death of his for David’s loss fixing damages pecuniary damages were or passion or prejudice acted out say cannot clearly erroneous unreasonable. We did not reasons, the trial court and for these inadequate, were clearly of dam trial on the issue err it denied David’s motion for new when ages. trial court’s final propriety issue for review is individual in favor of on David’s
grant a directed verdict action in strict grounded claim. III of the was an complaint Count *10 for emotional distress. Our product liability seeking damages solely v. Davis Co. 79 Ill. supreme (1980), court in Woodill Parke to 402 should not extended in held that strict be N.E.2d anguish. (See mental also recovery clude for emotional distress and David Rahn v. 455 N.E.2d Gerdts in for emotional distress argues right damagеs to recover rules at governed by strict should same liability action David recovery negligence tendant to a in a action. plaintiff’s right recovery negligence product liability contends that in both and strict and, upon foreseeability rests the same cornerstone of harm such, logical type there is no reason to differentiate between the upon plaintiff’s be recovered based solely ory recovery. writing slate, on a we address David’s the-
Were we clean would However, ory on its merits. are our court’s supreme we fоreclosed decision in Woodill because courts lack the author- appellate trial and ity Rickey supreme modify to overrule the court to its decisions. Chicago Authority (1983), Transit Ill. 2d reasons, For in a ver- directing these the trial court was correct dict at close of the on individual claim. evidence David’s we of the trial court as re- Accordingly, judgment reverse to for granted lates the setoff F & and remand the cause further in consistent with this affirm the trial court proceedings decision. We verdict, its F & notwithstanding denial of B’s motion for in F its denial of & relating B’s motion timeliness contribution, for directing claim in on David’s indi- vidual distress, action for emotional for denying David’s motion a new trial on the issue damages. part; in part
Affirmed reversed and remanded with directions. J., CAHILL, concurs. JIGANTI,
PRESIDING dissenting: JUSTICE I respectfully dissent from the on the mat- opinion majority ter of the setoff. court returned a verdict favor of in the Samantha $1,500,000
amount of in the favor David amount $150,000. settlement, numbers, There had been a in round previously $860,000. A judge of the circuit court found the settlement faith good apportioned on a 50-50 basis so that $430,000. David and Samantha each received At the conclusion of the trial, judge the trial determined the setoff as follows: for $1,500,000
Verdict Samantha - 430,000 for Setoff settlement for Judgment $1,070,000 Samantha 150,000 Verdict for David $ 430,000 for Setoff Judgment $ The majority appeal calculates the setoff as follows: $1,500,000
Verdict Samantha 150,000 Verdict for David + $1,650,000 Total of verdicts *11 - 860,000 Setoff 790,000 to Judgment by be apportioned $ trial court the first holding majority gives settling plaintiff right the the a
in to a many wrongful cases affect a in either adversely coplaintiff death or a example, common law situation. For assume David settled good in with not faith one defendant million and Samantha did $2 A joint following settle. verdict of million result the cal- would $1.5 culation: $1,500,000
Verdict 2,000,000 Setoff to Judgment to be distributed $ and David Samantha procedural pe- the might by
The matter be somewhat obscured David and Samantha the Death Act. Assume Wrongful culiarities of liable severally the jointly had common tort claims law as the instant setting the factual assume same tortfeasors. Also $430,000,' then to case, is, they proceeded that that each settled remaining judgments the defendant and obtained tort $1,500,000. The in that сommon law judgments this by same as entered the trial court in action would be the those I the same in a wrongful death case. believe the results should be a common situation. wrongful death or law “single that death action is states majority at and notes that the Contri- (252 App. 733) cause of action” Ill. reduces the recov- good-faith Act that a provides bution original.) (252 Ill. at ery (Emphasis “on claim.” this, From the citing 302(c).) major- Ill. Rev. Stat. the that the entire verdict must be off set entire ity concludes reasoning single the fiction cause legal settlement. This carries not reasoning an This is neces- action to unreasonable conclusion. the defendant. sary a double is asserted prevent recovery, conclusion is to Instead, majority’s the ultimate denouement the if who settles subject coplaintiff plaintiff because fortuity, the excess will deducted give, receives more than would be I nothing from due the see intrinsic plaintiff. other majori- Death Act to result. Nor is the warrant While one supported by logic. only conclusion there ty’s for his lawsuit, parties separate right each of the has a recover her injury. pecuniary Instructions, Jury in Illinois Pattern This embodied concept Civil, 1992) 3d). IPI That instruc- (3d (hereafter No. 31.09 ed. Civil in a plaintiff brings representative tion states that the action spouse represents surviving but that capacity plaintiff parties It further are the real “[t]hey next of kin. states lawsuit, plaintiffs in this and in that sense are real interest (IPI 3d No. 31.09 whose are to determine.” Civil you those (1992).) rights, parties may compromise As with all other any recovery those rights rights compromised and after are he against any other will reduced what party has defendant *12 or she has This is cleаr in an action in- already patently received. volving common and should no less in a injury wrong- law clear ful overcompensation by settling plaintiff death situation. An one cannot the recovery any plaintiff. appears diminish other It me legislature’s cavil that this was not intent beyond wrongful death more than it would any situation have been its in- tent in a common situation. law majority remands the to the circuit Act,
court under section 2 of the Death hearing Wrongful which provides that the court shall the amount recovered distribute spouse and next of kin on the рercentage depen- based dency of each on the Rev. person (111. deceased. Stat. does previous not consider the order of the majority
trial court the setoff dividing evenly as constituting required on the hearing percentage of It is true that there is dependency. nothing in the that a fact suggest hearing record was in held on However, I that dependency. applying believe the trial court in setoffs did what it was under required do section Death that Act, is, it the dependency considered of Sa- mantha and David on the decеdent. While not have been done in a formal court in a position to consider way, evidence, ultimate effect of actions that its the de- considering was so considered. After that pendency dependency, deducted amounts each had received in settlement party just the same would have been done in a common law action.
This situation is unusual in that the stated jury, reasons separate set for David and majority, verdicts Samantha. situation, there ordinary verdict, will be one and in that only event I court set believe the trial should the amount of dependency and then deduct from a any party receives set- tling defendant.