2018 WL 741698
Only the Westlaw citation is currently available.
United States Court of Appeals,
Seventh Circuit.
Edin KARAHODZIC, Individually and as Personal Representative of
the Estate of Hasib Karahodzic, Plaintiff–Appellee,
the Estate of Hasib Karahodzic, Plaintiff–Appellee,
v.
JBS CARRIERS, INC. and
Christopher Thompson, Temporary Administrator of the Estate of Orentio
Thompson, Defendants–Appellants.
Christopher Thompson, Temporary Administrator of the Estate of Orentio
Thompson, Defendants–Appellants.
No. 16-3931
Argued October 24, 2017
Decided February 7, 2018
Appeal from the United
States District Court for the Southern District of Illinois. No.
3:12–cv–01040–DRH–RJD—David R. Herndon, Judge.
States District Court for the Southern District of Illinois. No.
3:12–cv–01040–DRH–RJD—David R. Herndon, Judge.
Opinion
Rovner, Circuit Judge.
*1 Hasib Karahodzic, a commercial truck
driver for E.J.A. Trucking, Inc., was killed when his vehicle collided with a
truck driven by Orentio Thompson, an employee of JBS Carriers, Inc.1 A
jury trial on the claims brought by Hasib’s estate and by his son Edin,
individually, resulted in a judgment in favor of the plaintiffs. The defendants
appeal and we affirm.
driver for E.J.A. Trucking, Inc., was killed when his vehicle collided with a
truck driven by Orentio Thompson, an employee of JBS Carriers, Inc.1 A
jury trial on the claims brought by Hasib’s estate and by his son Edin,
individually, resulted in a judgment in favor of the plaintiffs. The defendants
appeal and we affirm.
I.
In the early morning
hours of March 17, 2012, Thompson was driving his tractor/trailer westbound on
Interstate 70 when he noticed a malfunctioning light blinking on the side of
his trailer. Just past the Brownstown, Illinois exit, he activated his right
turn signal and pulled onto the shoulder of the highway. Once stopped, he
turned on his four-way flashers and then walked around his truck to inspect the
lights. He unplugged and then reattached the electrical connection between the
tractor and the trailer. That resolved the errantly blinking light and he
returned to the cab. With the four-way flashers still on, he had just reentered
the right lane of the highway and was traveling between fifteen and eighteen
miles an hour when Hasib crashed into the back of his trailer. Hasib had just
come around a large curve in the road when he encountered Thompson’s
slow-moving truck. The impact from the crash killed Hasib instantly and set his
truck on fire.
hours of March 17, 2012, Thompson was driving his tractor/trailer westbound on
Interstate 70 when he noticed a malfunctioning light blinking on the side of
his trailer. Just past the Brownstown, Illinois exit, he activated his right
turn signal and pulled onto the shoulder of the highway. Once stopped, he
turned on his four-way flashers and then walked around his truck to inspect the
lights. He unplugged and then reattached the electrical connection between the
tractor and the trailer. That resolved the errantly blinking light and he
returned to the cab. With the four-way flashers still on, he had just reentered
the right lane of the highway and was traveling between fifteen and eighteen
miles an hour when Hasib crashed into the back of his trailer. Hasib had just
come around a large curve in the road when he encountered Thompson’s
slow-moving truck. The impact from the crash killed Hasib instantly and set his
truck on fire.
In a tragic coincidence,
Hasib’s son, Edin, who also drove for E.J.A. Trucking, was also driving
westbound on Interstate 70 that morning. Shortly after the crash, Edin came
upon the scene and saw that his father’s truck was on fire. He parked in front
of Thompson’s truck and ran to help his father. He saw his father in the truck
cab, and believing him to still be alive, attempted to pull him from the cab
and put out the fire. Edin suffered burns to his hands and face from his
unsuccessful attempt to rescue his father, and watched as his father’s body
burned. He called his brother Selvedin to tell him what had happened. Selvedin
drove eighty miles to the scene of the accident and also saw his father’s
burned body. The brothers then drove home to tell their mother, Esma, and
sister, Edina, what had happened.
Hasib’s son, Edin, who also drove for E.J.A. Trucking, was also driving
westbound on Interstate 70 that morning. Shortly after the crash, Edin came
upon the scene and saw that his father’s truck was on fire. He parked in front
of Thompson’s truck and ran to help his father. He saw his father in the truck
cab, and believing him to still be alive, attempted to pull him from the cab
and put out the fire. Edin suffered burns to his hands and face from his
unsuccessful attempt to rescue his father, and watched as his father’s body
burned. He called his brother Selvedin to tell him what had happened. Selvedin
drove eighty miles to the scene of the accident and also saw his father’s
burned body. The brothers then drove home to tell their mother, Esma, and
sister, Edina, what had happened.
Every member of the
Karahodzic family suffered emotional trauma from Hasib’s death. Esma’s
emotional reaction on hearing of her husband’s death was so severe that she had
to be taken to a hospital. As a result of Major Depressive Disorder brought on
by Hasib’s death, Esma never returned to work. Edin suffered Post Traumatic
Stress Disorder as a result of his father’s death and his failed attempt to
rescue him. Hasib’s daughter, Edina, attempted suicide at her father’s grave
near the first anniversary of his death. Selvedin, who is also a truck driver,
had constant reminders of his father’s death when he drove past the location of
the accident once or twice a week. Family dynamics changed and relationships
suffered as Hasib’s family struggled to move forward after his death.
Karahodzic family suffered emotional trauma from Hasib’s death. Esma’s
emotional reaction on hearing of her husband’s death was so severe that she had
to be taken to a hospital. As a result of Major Depressive Disorder brought on
by Hasib’s death, Esma never returned to work. Edin suffered Post Traumatic
Stress Disorder as a result of his father’s death and his failed attempt to
rescue him. Hasib’s daughter, Edina, attempted suicide at her father’s grave
near the first anniversary of his death. Selvedin, who is also a truck driver,
had constant reminders of his father’s death when he drove past the location of
the accident once or twice a week. Family dynamics changed and relationships
suffered as Hasib’s family struggled to move forward after his death.
*2 JBS Trucking initiated the litigation,
suing Hasib’s estate and E.J.A. Trucking to recover for the damage to JBS Trucking’s
trailer and its contents. E.J.A. Trucking counterclaimed against JBS Trucking
for damage to E.J.A. Trucking’s trailer and its contents. Edin, as personal
representative of his father’s estate, also counterclaimed against JBS Trucking
and brought a third-party complaint against Thompson seeking damages for Esma,
Selvedin, Edina and himself under the Illinois Wrongful Death Act, 740 ILCS
180/1 et seq. Edin also brought a claim in his individual
capacity against JBS Trucking and Thompson under the Illinois rescue doctrine
to recover for his injuries resulting from his attempt to rescue his father. In
response to Edin’s individual claim, the defendants each asserted a
counterclaim against Hasib’s estate pursuant to the Illinois Joint Tortfeasor
Contribution Act, 740 ILCS 100/1 et seq. The parties settled
some of the claims before trial, and certain claims were dismissed with
prejudice as a result. The court then granted a joint motion to realign the
parties so that court records would reflect that Edin Karahodzic, individually
and Edin Karahodzic, as personal representative of the estate were now the
plaintiffs and JBS Carriers and Thompson were now the defendants.
suing Hasib’s estate and E.J.A. Trucking to recover for the damage to JBS Trucking’s
trailer and its contents. E.J.A. Trucking counterclaimed against JBS Trucking
for damage to E.J.A. Trucking’s trailer and its contents. Edin, as personal
representative of his father’s estate, also counterclaimed against JBS Trucking
and brought a third-party complaint against Thompson seeking damages for Esma,
Selvedin, Edina and himself under the Illinois Wrongful Death Act, 740 ILCS
180/1 et seq. Edin also brought a claim in his individual
capacity against JBS Trucking and Thompson under the Illinois rescue doctrine
to recover for his injuries resulting from his attempt to rescue his father. In
response to Edin’s individual claim, the defendants each asserted a
counterclaim against Hasib’s estate pursuant to the Illinois Joint Tortfeasor
Contribution Act, 740 ILCS 100/1 et seq. The parties settled
some of the claims before trial, and certain claims were dismissed with
prejudice as a result. The court then granted a joint motion to realign the
parties so that court records would reflect that Edin Karahodzic, individually
and Edin Karahodzic, as personal representative of the estate were now the
plaintiffs and JBS Carriers and Thompson were now the defendants.
A nine-day jury trial
resulted in a verdict in favor of the plaintiffs on both claims. On the
wrongful death claim, the jury attributed fifty-five percent of the fault to
Thompson and JBS Carriers, and forty-five percent to Hasib Karahodzic. The jury
accordingly reduced its $5,000,000 damage award by forty-five percent, awarding
the estate damages in the amount of $2,750,000. The jury awarded Edin
Karahodzic $625,000 on his individual rescue doctrine claim. The defendants
appeal.
resulted in a verdict in favor of the plaintiffs on both claims. On the
wrongful death claim, the jury attributed fifty-five percent of the fault to
Thompson and JBS Carriers, and forty-five percent to Hasib Karahodzic. The jury
accordingly reduced its $5,000,000 damage award by forty-five percent, awarding
the estate damages in the amount of $2,750,000. The jury awarded Edin
Karahodzic $625,000 on his individual rescue doctrine claim. The defendants
appeal.
II.
On appeal, the
defendants first assert that the court committed reversible error in refusing
to give an Illinois pattern jury instruction on the duty to mitigate damages,
and in giving instructions related to “careful habits” and “exigent
circumstances.” The defendants also argue that the court should have
apportioned the award given to Edin personally on his rescue doctrine claim by
the same percentages that the jury used in setting the estate’s damages on the
wrongful death claim. The defendants further maintain that the court erred when
it allowed the jury to award Esma’s lost earnings as damages under the Wrongful
Death Act. And finally, the defendants contend that they were denied a fair
trial due to certain evidentiary rulings made by the trial court.2
defendants first assert that the court committed reversible error in refusing
to give an Illinois pattern jury instruction on the duty to mitigate damages,
and in giving instructions related to “careful habits” and “exigent
circumstances.” The defendants also argue that the court should have
apportioned the award given to Edin personally on his rescue doctrine claim by
the same percentages that the jury used in setting the estate’s damages on the
wrongful death claim. The defendants further maintain that the court erred when
it allowed the jury to award Esma’s lost earnings as damages under the Wrongful
Death Act. And finally, the defendants contend that they were denied a fair
trial due to certain evidentiary rulings made by the trial court.2
A.
We consider first
whether the trial court erred by refusing to give the Illinois pattern
instruction on the plaintiffs’ duty to mitigate damages. According to the
defendants, Illinois Supreme Court Rule 239(a) dictates that the pattern
instruction “shall be used” unless the court determines that it does not
accurately state the law. The defendants contend that, by refusing to follow
Rule 239(a), the trial court erroneously took from the jury the question of
whether the Karahodzic family complied with their legal duty to mitigate their
damages. The defendants also complain that they were “denied the opportunity to
argue in closing” that the family had a duty to mitigate their damages and
could not recover damages proximately caused by their failure to mitigate.
whether the trial court erred by refusing to give the Illinois pattern
instruction on the plaintiffs’ duty to mitigate damages. According to the
defendants, Illinois Supreme Court Rule 239(a) dictates that the pattern
instruction “shall be used” unless the court determines that it does not
accurately state the law. The defendants contend that, by refusing to follow
Rule 239(a), the trial court erroneously took from the jury the question of
whether the Karahodzic family complied with their legal duty to mitigate their
damages. The defendants also complain that they were “denied the opportunity to
argue in closing” that the family had a duty to mitigate their damages and
could not recover damages proximately caused by their failure to mitigate.
*3 There are a number of problems with this
argument. First, federal district courts sitting in diversity are bound by
state substantive law but not by state court procedural rules. Erie
R.R. v. Tompkins, 304 U.S. 64, 78–79, 58 S.Ct. 817, 82 L.Ed. 1188
(1938); Wallace v. McGlothan, 606 F.3d 410, 419 (7th Cir. 2010).
The Illinois rule that mandates the use of Illinois pattern instructions is
procedural, not substantive. Stollings v. Ryobi Techs., Inc., 725
F.3d 753, 768–69 (7th Cir. 2013) (in a diversity action, we look to state law
to determine whether the instruction properly stated the substantive law but
federal law governs whether the instruction was sufficiently clear); Beul
v. ASSE Int’l, Inc., 233 F.3d 441, 449 (7th Cir. 2000) (“Rules of general
applicability and purely managerial character governing the jury, such as the
form in which a civil jury is instructed, are quintessentially procedural for
purposes of the Erie rule.”). In other words, “state law
determines the content of jury instructions” and federal law governs “the
manner in which instructions are requested and given.” In re Air Crash
Disaster Near Chicago, Ill. on May 25, 1979, 701 F.2d 1189, 1199 (7th Cir.
1983). See also Stutzman v. CRST, Inc., 997 F.2d 291, 293 (7th
Cir. 1993) (“In a diversity case, federal law guides our review of jury
instructions.”). So state law governs whether the instructions were correct
statements of Illinois law on the mitigation of damages, but the particular
wording was within the discretion of the district court judge and our review is
governed by federal standards. Ryobi, 725 F.3d at 768.
argument. First, federal district courts sitting in diversity are bound by
state substantive law but not by state court procedural rules. Erie
R.R. v. Tompkins, 304 U.S. 64, 78–79, 58 S.Ct. 817, 82 L.Ed. 1188
(1938); Wallace v. McGlothan, 606 F.3d 410, 419 (7th Cir. 2010).
The Illinois rule that mandates the use of Illinois pattern instructions is
procedural, not substantive. Stollings v. Ryobi Techs., Inc., 725
F.3d 753, 768–69 (7th Cir. 2013) (in a diversity action, we look to state law
to determine whether the instruction properly stated the substantive law but
federal law governs whether the instruction was sufficiently clear); Beul
v. ASSE Int’l, Inc., 233 F.3d 441, 449 (7th Cir. 2000) (“Rules of general
applicability and purely managerial character governing the jury, such as the
form in which a civil jury is instructed, are quintessentially procedural for
purposes of the Erie rule.”). In other words, “state law
determines the content of jury instructions” and federal law governs “the
manner in which instructions are requested and given.” In re Air Crash
Disaster Near Chicago, Ill. on May 25, 1979, 701 F.2d 1189, 1199 (7th Cir.
1983). See also Stutzman v. CRST, Inc., 997 F.2d 291, 293 (7th
Cir. 1993) (“In a diversity case, federal law guides our review of jury
instructions.”). So state law governs whether the instructions were correct
statements of Illinois law on the mitigation of damages, but the particular
wording was within the discretion of the district court judge and our review is
governed by federal standards. Ryobi, 725 F.3d at 768.
Under those federal
standards, we review de novo whether the jury instructions
stated the law correctly, affording the district court substantial discretion
as to the precise wording of the instructions so long as the final result, read
as a whole, completely and correctly states the law. Ryobi, 725
F.3d at 768. See also Paldo Sign & Display Co. v. Wagener
Equities, Inc., 825 F.3d 793, 796 (7th Cir. 2016) (we review jury
instructions de novo to determine whether they fairly and
accurately summarized the law). The trial court’s decision to give a particular
instruction is reviewed for an abuse of discretion. Paldo Sign, 825
F.3d at 796. We reverse only if the instructions, taken as a whole, misled the
jury. Paldo Sign, 825 F.3d at 796; United States v. Curtis,
781 F.3d 904, 907 (7th Cir. 2015). Thus any argument that the court committed
reversible error simply by refusing to follow Illinois Supreme Court Rule 239,
a procedural rule, is foreclosed by the Erie doctrine.
standards, we review de novo whether the jury instructions
stated the law correctly, affording the district court substantial discretion
as to the precise wording of the instructions so long as the final result, read
as a whole, completely and correctly states the law. Ryobi, 725
F.3d at 768. See also Paldo Sign & Display Co. v. Wagener
Equities, Inc., 825 F.3d 793, 796 (7th Cir. 2016) (we review jury
instructions de novo to determine whether they fairly and
accurately summarized the law). The trial court’s decision to give a particular
instruction is reviewed for an abuse of discretion. Paldo Sign, 825
F.3d at 796. We reverse only if the instructions, taken as a whole, misled the
jury. Paldo Sign, 825 F.3d at 796; United States v. Curtis,
781 F.3d 904, 907 (7th Cir. 2015). Thus any argument that the court committed
reversible error simply by refusing to follow Illinois Supreme Court Rule 239,
a procedural rule, is foreclosed by the Erie doctrine.
The second problem with
the defendants’ argument is that the trial court did in fact instruct the jury
on the issue of the duty to mitigate and there is nothing erroneous or
misleading about the wording of the instructions given. Although the defendants
failed to mention the mitigation instructions given by the court in their
opening brief, and even failed, until the reply brief, to give us the
supposedly critical language of the pattern instruction, there is no meaningful
difference between the two. The pattern instruction tells the jury that, in
deciding the amount of money needed to compensate a plaintiff, “you are to
consider that an injured person must exercise ordinary care to obtain medical
treatment. Damages caused by a failure to exercise such care cannot be
recovered.” The trial court gave two instructions regarding mitigation, one for
the estate’s claim on wrongful death, and one for Edin’s rescue doctrine claim.
Except for accounting for multiple plaintiffs in the wrongful death claim, the
instructions are identical and we quote here the instruction given for Edin’s
rescue claim:
the defendants’ argument is that the trial court did in fact instruct the jury
on the issue of the duty to mitigate and there is nothing erroneous or
misleading about the wording of the instructions given. Although the defendants
failed to mention the mitigation instructions given by the court in their
opening brief, and even failed, until the reply brief, to give us the
supposedly critical language of the pattern instruction, there is no meaningful
difference between the two. The pattern instruction tells the jury that, in
deciding the amount of money needed to compensate a plaintiff, “you are to
consider that an injured person must exercise ordinary care to obtain medical
treatment. Damages caused by a failure to exercise such care cannot be
recovered.” The trial court gave two instructions regarding mitigation, one for
the estate’s claim on wrongful death, and one for Edin’s rescue doctrine claim.
Except for accounting for multiple plaintiffs in the wrongful death claim, the
instructions are identical and we quote here the instruction given for Edin’s
rescue claim:
Defendants argue in the claim of Edin Karahodzic
that the compensation sought by him must be reduced by his failure to obtain
medical treatment. If you find that Edin Karahodzic did not take reasonable
actions to reduce his damages, and Edin Karahodzic would have reasonably been
able to reduce his damages by obtaining medical treatment, you should reduce
any amount you might award Edin Karahodzic by the amount you unanimously
determine was impacted by Edin Karahodzic not taking reasonable actions to
reduce his damages by the failure to obtain medical treatment. Defendants must
prove both the reduction should be made and its amount.
that the compensation sought by him must be reduced by his failure to obtain
medical treatment. If you find that Edin Karahodzic did not take reasonable
actions to reduce his damages, and Edin Karahodzic would have reasonably been
able to reduce his damages by obtaining medical treatment, you should reduce
any amount you might award Edin Karahodzic by the amount you unanimously
determine was impacted by Edin Karahodzic not taking reasonable actions to
reduce his damages by the failure to obtain medical treatment. Defendants must
prove both the reduction should be made and its amount.
*4 R. 167–2. Thus the jury was informed that
it should reduce the amount it awarded to Edin if he failed to take reasonable
actions to reduce his damages and if he could have reasonably reduced his
damages by obtaining medical treatment. This is no different from telling the
jury that Edin could not recover damages caused by a failure to take ordinary
care to obtain medical treatment. The court declined to give the defendants’
pattern instruction because the substance was covered by these other
instructions. There was no abuse of discretion in choosing one instruction over
the other when both accurately stated the law.
it should reduce the amount it awarded to Edin if he failed to take reasonable
actions to reduce his damages and if he could have reasonably reduced his
damages by obtaining medical treatment. This is no different from telling the
jury that Edin could not recover damages caused by a failure to take ordinary
care to obtain medical treatment. The court declined to give the defendants’
pattern instruction because the substance was covered by these other
instructions. There was no abuse of discretion in choosing one instruction over
the other when both accurately stated the law.
The third problem is
that the defendants fail to explain what is missing from the instruction given,
and complain primarily that the given instruction referred to defendants’
“argument” that the plaintiffs failed to mitigate rather than the plaintiffs’
legal duty to mitigate. But there is nothing misleading in characterizing the
issue as being raised by the defendants. Failure to mitigate is an affirmative
defense in Illinois, and the defendants bore the burden of proof. Rozny
v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656, 666 (Ill. 1969). The duty to
mitigate was spelled out by the directive to reduce Edin’s damages if he could
have avoided the harm by seeking medical care and failed to do so. See Amalgamated
Bank of Chicago v. Kalmus & Assocs., 318 Ill.App.3d 648, 251 Ill.Dec.
900, 741 N.E.2d 1078, 1086 (2000) (the duty to mitigate imposes a duty on the
injured party to exercise reasonable diligence and ordinary care in attempting
to minimize his damages after injury has been inflicted). The defendants’
proposed instruction added nothing and the court acted within its discretion in
declining to give a duplicative instruction.
that the defendants fail to explain what is missing from the instruction given,
and complain primarily that the given instruction referred to defendants’
“argument” that the plaintiffs failed to mitigate rather than the plaintiffs’
legal duty to mitigate. But there is nothing misleading in characterizing the
issue as being raised by the defendants. Failure to mitigate is an affirmative
defense in Illinois, and the defendants bore the burden of proof. Rozny
v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656, 666 (Ill. 1969). The duty to
mitigate was spelled out by the directive to reduce Edin’s damages if he could
have avoided the harm by seeking medical care and failed to do so. See Amalgamated
Bank of Chicago v. Kalmus & Assocs., 318 Ill.App.3d 648, 251 Ill.Dec.
900, 741 N.E.2d 1078, 1086 (2000) (the duty to mitigate imposes a duty on the
injured party to exercise reasonable diligence and ordinary care in attempting
to minimize his damages after injury has been inflicted). The defendants’
proposed instruction added nothing and the court acted within its discretion in
declining to give a duplicative instruction.
Finally, the defendants
were not, in fact, deprived of an opportunity to argue about the plaintiffs’
duty to mitigate in their closing argument. The court did not prohibit the
defendants from making that argument and the defendants argued the issue in
closing. Specifically, the defendants argued that the jury must take mitigation
into account in determining damages, that the plaintiffs are under an
obligation to seek medical treatment, that treatments are available for Edin’s
post-traumatic stress disorder, and that Edin and his siblings had not sought
treatment that could have made them better. The defendants also argued that
Edin’s damages for his rescue claim should be limited to $50,000 given his
failure to mitigate. In sum, the jury was adequately instructed and the
defendants argued the mitigation issue to the jury. There is no reversible
error related to the court’s refusal to give the pattern instruction.
were not, in fact, deprived of an opportunity to argue about the plaintiffs’
duty to mitigate in their closing argument. The court did not prohibit the
defendants from making that argument and the defendants argued the issue in
closing. Specifically, the defendants argued that the jury must take mitigation
into account in determining damages, that the plaintiffs are under an
obligation to seek medical treatment, that treatments are available for Edin’s
post-traumatic stress disorder, and that Edin and his siblings had not sought
treatment that could have made them better. The defendants also argued that
Edin’s damages for his rescue claim should be limited to $50,000 given his
failure to mitigate. In sum, the jury was adequately instructed and the
defendants argued the mitigation issue to the jury. There is no reversible
error related to the court’s refusal to give the pattern instruction.
B.
The defendants next
argue that the “careful habits” and “exigent circumstances” instructions misled
and confused the jury, and did not address any issue raised by the evidence
presented at trial. We begin with the “careful habits” instruction. The jury was
instructed that if there was evidence tending to show that Hasib was a person
of careful habits, the jury could infer that Hasib was “in the exercise of
ordinary care for his own safety and the safety of others at and before the
time of the occurrence, unless the inference is overcome by other evidence.” R.
167–3. In Illinois, the plaintiff in a personal injury action has the burden of
proving that the injured person was exercising a proper degree of care for his
or her own safety at the time of the injury. Hardware State Bank v.
Cotner, 55 Ill.2d 240, 302 N.E.2d 257, 261 (1973).
argue that the “careful habits” and “exigent circumstances” instructions misled
and confused the jury, and did not address any issue raised by the evidence
presented at trial. We begin with the “careful habits” instruction. The jury was
instructed that if there was evidence tending to show that Hasib was a person
of careful habits, the jury could infer that Hasib was “in the exercise of
ordinary care for his own safety and the safety of others at and before the
time of the occurrence, unless the inference is overcome by other evidence.” R.
167–3. In Illinois, the plaintiff in a personal injury action has the burden of
proving that the injured person was exercising a proper degree of care for his
or her own safety at the time of the injury. Hardware State Bank v.
Cotner, 55 Ill.2d 240, 302 N.E.2d 257, 261 (1973).
However, in wrongful death cases where there are
no competent eyewitnesses the plaintiff cannot prove his decedent’s exercise of
due care by direct testimony. In such instances, considering the practical
problem of demonstrating freedom from contributory negligence, evidence of the
prior careful habits, if pertinent, of the deceased may be admitted as tending
to prove the deceased’s exercise of due care.
no competent eyewitnesses the plaintiff cannot prove his decedent’s exercise of
due care by direct testimony. In such instances, considering the practical
problem of demonstrating freedom from contributory negligence, evidence of the
prior careful habits, if pertinent, of the deceased may be admitted as tending
to prove the deceased’s exercise of due care.
*5 Hardware State Bank, 302 N.E.2d at
261. See also Jacobs v. Yellow Cab Affiliation, Inc., 411
Ill.Dec. 621, 73 N.E.3d 1220, 1259 (Ill. App. Ct. 2017) (careful habits
evidence is admissible to show due care when the plaintiff is unavailable to
testify and no eyewitnesses other than the defendant are available).
261. See also Jacobs v. Yellow Cab Affiliation, Inc., 411
Ill.Dec. 621, 73 N.E.3d 1220, 1259 (Ill. App. Ct. 2017) (careful habits
evidence is admissible to show due care when the plaintiff is unavailable to
testify and no eyewitnesses other than the defendant are available).
Edin testified, without
objection from the defendants, that he had driven in the truck with his father
for a period of eight or nine months when they were “team driving” a number of
years before the fatal accident. Edin explained that he was able to observe his
father’s driving habits when they drove together. He said that when his father
encountered a vehicle pulled over on the shoulder of the road, he would move
into the left lane if it was safe to do so, or would slow down and stay in the
right lane if it was not safe to move left. Over the defendants’ objection, the
jury was later given the Illinois pattern instruction on “careful habits” that
we described above.
objection from the defendants, that he had driven in the truck with his father
for a period of eight or nine months when they were “team driving” a number of
years before the fatal accident. Edin explained that he was able to observe his
father’s driving habits when they drove together. He said that when his father
encountered a vehicle pulled over on the shoulder of the road, he would move
into the left lane if it was safe to do so, or would slow down and stay in the
right lane if it was not safe to move left. Over the defendants’ objection, the
jury was later given the Illinois pattern instruction on “careful habits” that
we described above.
It is within the trial
court’s sound discretion to admit or deny evidence of careful habits, and, in
any case, this evidence came in without objection. Jacobs, 411
Ill.Dec. 621, 73 N.E.3d at 1259. The defendants assert, however, that the
evidence presented on Hasib’s driving habits was insufficient to support giving
the instruction, that Edin’s observations of his father’s habits were too
remote in time to be relevant, and also that the instruction was inappropriate
because Hasib did not act in accordance with the habit on this occasion. That
is, Hasib did not move into the left lane and did not slow down before striking
Thompson’s truck. The instruction given by the trial court completely and
accurately states the Illinois law regarding “careful habits” and so the only
issue is whether the district court abused its discretion in deciding to give
this instruction in this situation. Paldo Sign, 825 F.3d at 796.
The defendants’ argument largely amounts to a request to reweigh the trial
court’s determination that the plaintiffs presented enough evidence to justify
giving the instruction. We see no abuse of discretion in allowing the jury to
consider Edin’s testimony as evidence of his father’s careful habits. Hasib and
Edin drove together for a significant amount of time and Edin was able to
observe his father’s regular practice many times in similar situations. The
defendants’ argument that Hasib did not act in accordance with his usual
practice at the time of the accident was an issue for the jury to decide. The
very reason for the “careful habits” rule is that the decedent is not available
to tell the jury why he did not move to the left lane or slow down. One
inference that the jury could draw is that Hasib could not safely move into the
left lane at the time of the accident. That was a legitimate argument for the
plaintiffs to make to the jury. Obviously, the jury may not have completely
accepted the argument that Hasib was exercising due care at the time of the
accident because the jury apportioned forty-five percent of the fault to Hasib,
but there was no abuse of discretion in allowing the jury to consider this
argument.
court’s sound discretion to admit or deny evidence of careful habits, and, in
any case, this evidence came in without objection. Jacobs, 411
Ill.Dec. 621, 73 N.E.3d at 1259. The defendants assert, however, that the
evidence presented on Hasib’s driving habits was insufficient to support giving
the instruction, that Edin’s observations of his father’s habits were too
remote in time to be relevant, and also that the instruction was inappropriate
because Hasib did not act in accordance with the habit on this occasion. That
is, Hasib did not move into the left lane and did not slow down before striking
Thompson’s truck. The instruction given by the trial court completely and
accurately states the Illinois law regarding “careful habits” and so the only
issue is whether the district court abused its discretion in deciding to give
this instruction in this situation. Paldo Sign, 825 F.3d at 796.
The defendants’ argument largely amounts to a request to reweigh the trial
court’s determination that the plaintiffs presented enough evidence to justify
giving the instruction. We see no abuse of discretion in allowing the jury to
consider Edin’s testimony as evidence of his father’s careful habits. Hasib and
Edin drove together for a significant amount of time and Edin was able to
observe his father’s regular practice many times in similar situations. The
defendants’ argument that Hasib did not act in accordance with his usual
practice at the time of the accident was an issue for the jury to decide. The
very reason for the “careful habits” rule is that the decedent is not available
to tell the jury why he did not move to the left lane or slow down. One
inference that the jury could draw is that Hasib could not safely move into the
left lane at the time of the accident. That was a legitimate argument for the
plaintiffs to make to the jury. Obviously, the jury may not have completely
accepted the argument that Hasib was exercising due care at the time of the
accident because the jury apportioned forty-five percent of the fault to Hasib,
but there was no abuse of discretion in allowing the jury to consider this
argument.
We turn to the “exigent
circumstances” instruction. One of the defendants’ theories at trial was that
Hasib had violated Federal Motor Carrier Safety Administration Regulation
395.3(a) by driving too many hours without sufficient breaks. The regulation
requires that drivers take ten consecutive hours off duty before driving no
more than eleven hours in the next fourteen-hour period. The defendants
proposed a jury instruction that allowed the jury to take that regulation into
account in deciding whether Hasib was negligent before and at the time of the
accident. The plaintiffs countered that the instruction was incomplete without
also alerting the jury to certain exceptions to the regulation. Specifically,
the regulation allows drivers to exceed the hours of driving during certain
adverse conditions caused by traffic and weather. A driver may do so once a
week and may subjectively decide that conditions warrant the additional hours.
Because the defendants’ expert had testified to the existence of the exception
(which the parties refer to as the “exigent circumstances” rule), the court
decided to instruct the jury on the adverse driving condition exception so that
the jury would have the full context of the regulation. The court explained to
defendants’ counsel:
circumstances” instruction. One of the defendants’ theories at trial was that
Hasib had violated Federal Motor Carrier Safety Administration Regulation
395.3(a) by driving too many hours without sufficient breaks. The regulation
requires that drivers take ten consecutive hours off duty before driving no
more than eleven hours in the next fourteen-hour period. The defendants
proposed a jury instruction that allowed the jury to take that regulation into
account in deciding whether Hasib was negligent before and at the time of the
accident. The plaintiffs countered that the instruction was incomplete without
also alerting the jury to certain exceptions to the regulation. Specifically,
the regulation allows drivers to exceed the hours of driving during certain
adverse conditions caused by traffic and weather. A driver may do so once a
week and may subjectively decide that conditions warrant the additional hours.
Because the defendants’ expert had testified to the existence of the exception
(which the parties refer to as the “exigent circumstances” rule), the court
decided to instruct the jury on the adverse driving condition exception so that
the jury would have the full context of the regulation. The court explained to
defendants’ counsel:
*6 I understand that you’re wearing blinders
here, but there is a dispute in the evidence. So, you know, the jury has a
right to see what the regulations are and they have a right to see both sides
of the case here, not just the one side you want them to see. I want them to
have that context. So, you know, it’s a neutral position. They get to see what
the law is, what the regulation is. It doesn’t—there’s nothing that says, and
he was confronted with this adverse condition. It’s just what the law
is. Let them make that decision. Whether they believe he was confronted with
that or not, that’s up to them to decide. Let them have the context, let them
have the law, let them decide what the facts are.
here, but there is a dispute in the evidence. So, you know, the jury has a
right to see what the regulations are and they have a right to see both sides
of the case here, not just the one side you want them to see. I want them to
have that context. So, you know, it’s a neutral position. They get to see what
the law is, what the regulation is. It doesn’t—there’s nothing that says, and
he was confronted with this adverse condition. It’s just what the law
is. Let them make that decision. Whether they believe he was confronted with
that or not, that’s up to them to decide. Let them have the context, let them
have the law, let them decide what the facts are.
R. 213, Tr. at 1165
(emphasis in original). As with the careful habits instruction, the defendants
do not contend that the jury was presented with an incorrect statement of the
law; rather, they simply complain that the evidence did not support giving this
particular instruction. As is apparent from the passage we just quoted,
however, this was a quintessential exercise of the court’s discretion and
nothing about the court’s reasons for giving the instruction even hints at an
abuse of that discretion.
(emphasis in original). As with the careful habits instruction, the defendants
do not contend that the jury was presented with an incorrect statement of the
law; rather, they simply complain that the evidence did not support giving this
particular instruction. As is apparent from the passage we just quoted,
however, this was a quintessential exercise of the court’s discretion and
nothing about the court’s reasons for giving the instruction even hints at an
abuse of that discretion.
C.
We turn to the
defendants’ claim that the court should have entered judgment in their favor
and against Hasib’s estate on the contribution counterclaims they filed in
response to Edin’s rescue doctrine claim. According to the defendants, the jury
found that Hasib was 45% at fault for the accident,3 and
Hasib’s estate should therefore be liable for 45% of the $625,000 in damages
that the jury awarded to Edin on his rescue doctrine claim. They rely entirely
on a plain language reading of the Illinois Joint Tortfeasor Contribution Act
(“Contribution Act”) in making this argument4 and so we begin
with the relevant language:
defendants’ claim that the court should have entered judgment in their favor
and against Hasib’s estate on the contribution counterclaims they filed in
response to Edin’s rescue doctrine claim. According to the defendants, the jury
found that Hasib was 45% at fault for the accident,3 and
Hasib’s estate should therefore be liable for 45% of the $625,000 in damages
that the jury awarded to Edin on his rescue doctrine claim. They rely entirely
on a plain language reading of the Illinois Joint Tortfeasor Contribution Act
(“Contribution Act”) in making this argument4 and so we begin
with the relevant language:
[W]here 2 or more persons are subject to
liability in tort arising out of the same injury to person or property, or the
same wrongful death, there is a right of contribution among them, even though
judgment has not been entered against any or all of them.
liability in tort arising out of the same injury to person or property, or the
same wrongful death, there is a right of contribution among them, even though
judgment has not been entered against any or all of them.
740 ILCS 100/2. The
defendants maintain that if Hasib was found to be a cause of the accident, then
the defendants would have a right of contribution against the estate for
Hasib’s percentage of the fault. The district court rejected this theory as
inconsistent with Illinois law and the rescue doctrine, and also refused to
give a jury instruction suggesting that the same percentage of relative fault between
the defendants and Hasib on the wrongful death claim should apply to allocate
fault on Edin’s rescue doctrine claim. The rejected instruction stated:
defendants maintain that if Hasib was found to be a cause of the accident, then
the defendants would have a right of contribution against the estate for
Hasib’s percentage of the fault. The district court rejected this theory as
inconsistent with Illinois law and the rescue doctrine, and also refused to
give a jury instruction suggesting that the same percentage of relative fault between
the defendants and Hasib on the wrongful death claim should apply to allocate
fault on Edin’s rescue doctrine claim. The rejected instruction stated:
*7 Further, on the claim of Edin Karahodzic
as Personal Representative for the Estate of Hasib Karahodzic, the jury will
first be asked to determine the relative fault between Defendants and the
Estate. This determination will then be used to determine allocation of fault
on the individual injury claim of Edin Karahodzic.
as Personal Representative for the Estate of Hasib Karahodzic, the jury will
first be asked to determine the relative fault between Defendants and the
Estate. This determination will then be used to determine allocation of fault
on the individual injury claim of Edin Karahodzic.
R. 142, at 4.
The rescue doctrine
applies when a plaintiff brings a negligence action against a defendant whose
actions have placed a third party or the defendant himself or herself in a
position of peril. Reed v. Ault, 360 Ill.Dec. 705, 969 N.E.2d 515,
527 (Ill. App. Ct. 2012). A rescuer who voluntarily attempts to save the life
or secure the safety of another person in peril is protected by the rescue
doctrine from a claim of contributory negligence unless the rescuer has acted
rashly or recklessly. Reed, 360 Ill.Dec. 705, 969 N.E.2d at
527; Strickland v. Kotecki, 392 Ill.App.3d 1099, 332 Ill.Dec. 485,
913 N.E.2d 80, 83 (2009). A plaintiff who is injured in a rescue attempt is
also allowed to negate a presumption that his intentional act of rescue is the
superceding cause of his injuries, thereby allowing him to prove the
defendant’s negligence is the proximate cause of his injuries. Strickland,
332 Ill.Dec. 485, 913 N.E.2d at 83. Edin sued JBS Trucking and Thompson under
the rescue doctrine and those defendants then filed third party complaints
against the estate for contribution.
applies when a plaintiff brings a negligence action against a defendant whose
actions have placed a third party or the defendant himself or herself in a
position of peril. Reed v. Ault, 360 Ill.Dec. 705, 969 N.E.2d 515,
527 (Ill. App. Ct. 2012). A rescuer who voluntarily attempts to save the life
or secure the safety of another person in peril is protected by the rescue
doctrine from a claim of contributory negligence unless the rescuer has acted
rashly or recklessly. Reed, 360 Ill.Dec. 705, 969 N.E.2d at
527; Strickland v. Kotecki, 392 Ill.App.3d 1099, 332 Ill.Dec. 485,
913 N.E.2d 80, 83 (2009). A plaintiff who is injured in a rescue attempt is
also allowed to negate a presumption that his intentional act of rescue is the
superceding cause of his injuries, thereby allowing him to prove the
defendant’s negligence is the proximate cause of his injuries. Strickland,
332 Ill.Dec. 485, 913 N.E.2d at 83. Edin sued JBS Trucking and Thompson under
the rescue doctrine and those defendants then filed third party complaints
against the estate for contribution.
We agree that the plain
language of the Contribution Act resolves this question, but we conclude that
it resolves it against the defendants. By its terms, the Contribution Act
applies “where 2 or more persons are subject to liability in tort arising
out of the same injury to person or property, or the same
wrongful death.” 740 ILCS 100/2. In other words, as is indicated by the title
of the statute, there is a right of contribution against a tortfeasor, another
person subject to liability in tort. The jury determined only that Hasib’s
estate, as plaintiff in the wrongful death action, was contributorily negligent
in causing Hasib’s wrongful death. The defendants’ theory presumes that Hasib’s
contributory negligence to his own wrongful death is identical to Hasib’s
liability as a possible defendant in a rescue doctrine case. But these are not
the same thing. Hasib’s “liability in tort” towards Edin has never been
established, only his lack of due care for his own safety. Carter v.
Chicago & Illinois Midland Ry. Co., 140 Ill.App.3d 25, 94 Ill.Dec. 390,
487 N.E.2d 1267, 1270 (1986). Under the defendants’ theory, there was no need
to establish Hasib’s liability in tort towards Edin because Hasib’s
contributory negligence towards himself was identical to his negligence towards
his rescuer. But under Illinois law, a finding of comparative negligence does
not automatically convert the percentage of comparative negligence into the
same percentage of contribution. Carter, 94 Ill.Dec. 390, 487
N.E.2d at 1270.
language of the Contribution Act resolves this question, but we conclude that
it resolves it against the defendants. By its terms, the Contribution Act
applies “where 2 or more persons are subject to liability in tort arising
out of the same injury to person or property, or the same
wrongful death.” 740 ILCS 100/2. In other words, as is indicated by the title
of the statute, there is a right of contribution against a tortfeasor, another
person subject to liability in tort. The jury determined only that Hasib’s
estate, as plaintiff in the wrongful death action, was contributorily negligent
in causing Hasib’s wrongful death. The defendants’ theory presumes that Hasib’s
contributory negligence to his own wrongful death is identical to Hasib’s
liability as a possible defendant in a rescue doctrine case. But these are not
the same thing. Hasib’s “liability in tort” towards Edin has never been
established, only his lack of due care for his own safety. Carter v.
Chicago & Illinois Midland Ry. Co., 140 Ill.App.3d 25, 94 Ill.Dec. 390,
487 N.E.2d 1267, 1270 (1986). Under the defendants’ theory, there was no need
to establish Hasib’s liability in tort towards Edin because Hasib’s
contributory negligence towards himself was identical to his negligence towards
his rescuer. But under Illinois law, a finding of comparative negligence does
not automatically convert the percentage of comparative negligence into the
same percentage of contribution. Carter, 94 Ill.Dec. 390, 487
N.E.2d at 1270.
It is easiest to see the
distinction when considering a Contribution Act case outside the context of the
rescue doctrine. See Laue v. Leifheit, 120 Ill.App.3d 937, 76
Ill.Dec. 222, 458 N.E.2d 622 (1983). In that case, Leifheit, the driver of a
car, was originally the plaintiff (along with four members of her family who
were passengers) in an action against Laue, a truck driver from whom they
recovered damages for injuries sustained in a car/truck collision. The original
jury found that Leifheit was thirty-three percent comparatively negligent in
causing her own injuries in that action. Laue subsequently brought a claim for
contribution against Leifheit, seeking payment from her for thirty-three
percent of the damages that Laue paid to Leifheit’s four passengers in the
original action. Laue was granted judgment on a motion on the pleadings in this
second action, and Leifheit appealed. 76 Ill.Dec. 222, 458 N.E.2d at 624.
distinction when considering a Contribution Act case outside the context of the
rescue doctrine. See Laue v. Leifheit, 120 Ill.App.3d 937, 76
Ill.Dec. 222, 458 N.E.2d 622 (1983). In that case, Leifheit, the driver of a
car, was originally the plaintiff (along with four members of her family who
were passengers) in an action against Laue, a truck driver from whom they
recovered damages for injuries sustained in a car/truck collision. The original
jury found that Leifheit was thirty-three percent comparatively negligent in
causing her own injuries in that action. Laue subsequently brought a claim for
contribution against Leifheit, seeking payment from her for thirty-three
percent of the damages that Laue paid to Leifheit’s four passengers in the
original action. Laue was granted judgment on a motion on the pleadings in this
second action, and Leifheit appealed. 76 Ill.Dec. 222, 458 N.E.2d at 624.
*8 In the original case, the jury that found
that Leifheit was thirty-three percent negligent in causing her own injuries
had been instructed that the issue of contributory negligence did not apply to
the passengers. Nevertheless, in the second case, the trial court determined
that “it axiomatically follows if it [her contributory negligence] contributed
to her injuries, it would also contribute to the injuries of the other people
in her car.” 76 Ill.Dec. 222, 458 N.E.2d at 626. The appellate court disagreed,
finding that no jury had yet determined Leifheit’s liability to her
passengers.5 The court noted that Leifheit was the
plaintiff, not the defendant, in the original action, and that:
that Leifheit was thirty-three percent negligent in causing her own injuries
had been instructed that the issue of contributory negligence did not apply to
the passengers. Nevertheless, in the second case, the trial court determined
that “it axiomatically follows if it [her contributory negligence] contributed
to her injuries, it would also contribute to the injuries of the other people
in her car.” 76 Ill.Dec. 222, 458 N.E.2d at 626. The appellate court disagreed,
finding that no jury had yet determined Leifheit’s liability to her
passengers.5 The court noted that Leifheit was the
plaintiff, not the defendant, in the original action, and that:
Even in cases where a plaintiff is partially at
fault, his culpability is not equivalent to that of a defendant. The plaintiff’s
negligence relates only to a lack of due care for his own safety while the
defendant’s negligence relates to a lack of due care for the safety of others;
the latter is tortious, but the former is not.
fault, his culpability is not equivalent to that of a defendant. The plaintiff’s
negligence relates only to a lack of due care for his own safety while the
defendant’s negligence relates to a lack of due care for the safety of others;
the latter is tortious, but the former is not.
Laue, 76 Ill.Dec. 222, 458 N.E.2d at 627
(quoting Coney v. J.L.G. Indust., Inc., 97 Ill.2d 104, 73 Ill.Dec.
337, 454 N.E.2d 197, 205 (1983)). The court also agreed with Leifheit that:
(quoting Coney v. J.L.G. Indust., Inc., 97 Ill.2d 104, 73 Ill.Dec.
337, 454 N.E.2d 197, 205 (1983)). The court also agreed with Leifheit that:
she was improperly precluded from litigating the
issues of her liability to her passengers and her culpability relative to Laue’s.
The jury’s finding that 33% of the combined negligence which caused the damage
to Leifheit was attributable to her does not translate to a judgment that she
is therefore subject to liability in tort in that percentage as well.
Consequently, for purposes of a contribution action, her liability “in tort”
has never been established; only her lack of due care for her own safety.
issues of her liability to her passengers and her culpability relative to Laue’s.
The jury’s finding that 33% of the combined negligence which caused the damage
to Leifheit was attributable to her does not translate to a judgment that she
is therefore subject to liability in tort in that percentage as well.
Consequently, for purposes of a contribution action, her liability “in tort”
has never been established; only her lack of due care for her own safety.
Laue, 76 Ill.Dec. 222, 458 N.E.2d at 628. In other
words, in the original action, the jury had not found Leifheit to be a tortfeasor,
a person subject to liability in tort.
words, in the original action, the jury had not found Leifheit to be a tortfeasor,
a person subject to liability in tort.
The defendants bore the
burden of pleading and proving their right to contribution from the estate on
Edin’s rescue doctrine claim. To make out their third party claim, the
defendants needed to prove that Hasib was negligent towards Edin. To
successfully prove that claim, they should have demonstrated Hasib’s duty to
Edin as rescuer, proved that Hasib breached that duty, and shown that the
breach proximately caused Edin’s injury and resulted in his damages. Laue,
76 Ill.Dec. 222, 458 N.E.2d at 628. See also Carter, 94
Ill.Dec. 390,487 N.E.2d at 1270.6 Not only did the defendants
make no attempt to prove Hasib’s negligence towards Edin, they did not
correctly allege negligence towards Edin in their third-party complaint. R.
33. See Carter, 94 Ill.Dec. 390, 487 N.E.2d at 1269 (in order
to make a claim for contribution against decedent’s estate, claimant must show
that the estate is “liable in tort” for the wrongful death of a third party).
Instead of alleging that Hasib owed a duty to Edin or to a rescuer generally,
they simply alleged that Hasib owed a duty to JBS Trucking and Thompson and
that he breached that duty. If the jury had been asked to determine whether
Hasib breached a duty to Edin (or a rescuer generally) and whether that breach
caused Edin’s damages, we would have a different case. Indeed, if the jury had
been asked to determine Hasib’s liability for the collision instead
of his contributory negligence in causing his own injury (i.e.
his death), the defendants might have a point.7 But the jury
was simply asked to determine whether Hasib was partly liable for his own
injuries, not the collision generally. The defendants’ theory that Hasib’s
liability for his own injuries was automatically transferrable to his liability
for Edin’s injuries is not supported by Illinois law. The jury did not find
that Hasib was a tortfeasor or that he breached a duty to Edin that caused
Edin’s damages. The court did not err in refusing to instruct the jury as the
defendants requested.
burden of pleading and proving their right to contribution from the estate on
Edin’s rescue doctrine claim. To make out their third party claim, the
defendants needed to prove that Hasib was negligent towards Edin. To
successfully prove that claim, they should have demonstrated Hasib’s duty to
Edin as rescuer, proved that Hasib breached that duty, and shown that the
breach proximately caused Edin’s injury and resulted in his damages. Laue,
76 Ill.Dec. 222, 458 N.E.2d at 628. See also Carter, 94
Ill.Dec. 390,487 N.E.2d at 1270.6 Not only did the defendants
make no attempt to prove Hasib’s negligence towards Edin, they did not
correctly allege negligence towards Edin in their third-party complaint. R.
33. See Carter, 94 Ill.Dec. 390, 487 N.E.2d at 1269 (in order
to make a claim for contribution against decedent’s estate, claimant must show
that the estate is “liable in tort” for the wrongful death of a third party).
Instead of alleging that Hasib owed a duty to Edin or to a rescuer generally,
they simply alleged that Hasib owed a duty to JBS Trucking and Thompson and
that he breached that duty. If the jury had been asked to determine whether
Hasib breached a duty to Edin (or a rescuer generally) and whether that breach
caused Edin’s damages, we would have a different case. Indeed, if the jury had
been asked to determine Hasib’s liability for the collision instead
of his contributory negligence in causing his own injury (i.e.
his death), the defendants might have a point.7 But the jury
was simply asked to determine whether Hasib was partly liable for his own
injuries, not the collision generally. The defendants’ theory that Hasib’s
liability for his own injuries was automatically transferrable to his liability
for Edin’s injuries is not supported by Illinois law. The jury did not find
that Hasib was a tortfeasor or that he breached a duty to Edin that caused
Edin’s damages. The court did not err in refusing to instruct the jury as the
defendants requested.
D.
*9 Finally, the defendants claim that the
trial court erred as a matter of law in allowing the jury to award damages for
Esma’s lost earnings. The Illinois Wrongful Death Act provides that, “the jury
may give such damages as they shall deem a fair and just compensation with
reference to the pecuniary injuries resulting from such death, including
damages for grief, sorrow, and mental suffering, to the surviving spouse and
next of kin of such deceased person.” 740 ILCS 180/2. Prior to 2007, there was
no provision allowing damages for grief, sorrow and mental suffering, and
plaintiffs were limited to recovering “pecuniary injuries” such as benefits,
goods, services and loss of society. See e.g. Turner v. Williams,
326 Ill.App.3d 541, 260 Ill.Dec. 804, 762 N.E.2d 70, 77 (2001). In 2007, the
statute was amended to allow damages for grief, sorrow and mental suffering.
According to the defendants, grief and mental suffering do not include lost
wages, and yet the plaintiffs were allowed to present expert testimony that
Esma’s lost wages due to the Major Depressive Disorder brought on by Hasib’s
death amounted to $199,744.
trial court erred as a matter of law in allowing the jury to award damages for
Esma’s lost earnings. The Illinois Wrongful Death Act provides that, “the jury
may give such damages as they shall deem a fair and just compensation with
reference to the pecuniary injuries resulting from such death, including
damages for grief, sorrow, and mental suffering, to the surviving spouse and
next of kin of such deceased person.” 740 ILCS 180/2. Prior to 2007, there was
no provision allowing damages for grief, sorrow and mental suffering, and
plaintiffs were limited to recovering “pecuniary injuries” such as benefits,
goods, services and loss of society. See e.g. Turner v. Williams,
326 Ill.App.3d 541, 260 Ill.Dec. 804, 762 N.E.2d 70, 77 (2001). In 2007, the
statute was amended to allow damages for grief, sorrow and mental suffering.
According to the defendants, grief and mental suffering do not include lost
wages, and yet the plaintiffs were allowed to present expert testimony that
Esma’s lost wages due to the Major Depressive Disorder brought on by Hasib’s
death amounted to $199,744.
There was no line on the
verdict form asking the jury to award damages for Esma’s lost wages. The jury
was asked generally to state an amount for “[g]rief, sorrow and mental
suffering.” R. 170. The plaintiffs argued to the jury that Esma was precluded
from working because of the mental health consequences she suffered as a result
of Hasib’s death. The plaintiffs characterize her lost wages as a way of
quantifying, in part, her grief, sorrow and mental suffering. The defendants
argue that nothing in Illinois law allows the jury to award Esma’s lost wages.
But nothing in Illinois law prohibits plaintiffs from using the lost wages due
to mental suffering as a way to quantify the damages for grief, sorrow and
mental suffering. Grief, sorrow and mental suffering are highly subjective
experiences which are difficult to quantify. But the inability to work due to
that grief is the kind of concrete “pecuniary injury” that the Illinois statute
provides for. Because the plaintiffs presented evidence that Esma’s inability
to work was due to the Major Depressive Disorder that was brought on by Hasib’s
death, there was no error in allowing the jury to quantify her grief-based
damages in part with her lost wages.
verdict form asking the jury to award damages for Esma’s lost wages. The jury
was asked generally to state an amount for “[g]rief, sorrow and mental
suffering.” R. 170. The plaintiffs argued to the jury that Esma was precluded
from working because of the mental health consequences she suffered as a result
of Hasib’s death. The plaintiffs characterize her lost wages as a way of
quantifying, in part, her grief, sorrow and mental suffering. The defendants
argue that nothing in Illinois law allows the jury to award Esma’s lost wages.
But nothing in Illinois law prohibits plaintiffs from using the lost wages due
to mental suffering as a way to quantify the damages for grief, sorrow and
mental suffering. Grief, sorrow and mental suffering are highly subjective
experiences which are difficult to quantify. But the inability to work due to
that grief is the kind of concrete “pecuniary injury” that the Illinois statute
provides for. Because the plaintiffs presented evidence that Esma’s inability
to work was due to the Major Depressive Disorder that was brought on by Hasib’s
death, there was no error in allowing the jury to quantify her grief-based
damages in part with her lost wages.
AFFIRMED.
Footnotes
1. Although Mr. Thompson
survived the crash, he died unexpectedly during the litigation of this case.
His estate is represented by his son, Christopher. When we refer to “Thompson,”
we mean Orentio. Edin Karahodzic is the son of Hasib and has sued the
defendants as the representative of his father’s estate and in his capacity as
an individual. Claims have been brought on behalf of several members of the
Karahodzic family (sons Edin and Selvedin, daughter Edina, and wife Esma) and
we will refer to each member of the Karahodzic family by his or her first name
for the sake of clarity.
survived the crash, he died unexpectedly during the litigation of this case.
His estate is represented by his son, Christopher. When we refer to “Thompson,”
we mean Orentio. Edin Karahodzic is the son of Hasib and has sued the
defendants as the representative of his father’s estate and in his capacity as
an individual. Claims have been brought on behalf of several members of the
Karahodzic family (sons Edin and Selvedin, daughter Edina, and wife Esma) and
we will refer to each member of the Karahodzic family by his or her first name
for the sake of clarity.
2 We review the district court’s evidentiary
rulings for abuse of discretion. Reed v. Freedom Mortg. Corp., 869
F.3d 543, 548 (7th Cir. 2017). The defendants complain that some of the expert
testimony regarding the collision was cumulative, and that one expert was
erroneously allowed to testify on “closing speed,” a prejudicial matter on
which he had not previously disclosed his opinion. “As a general rule, errors
in admitting evidence that is merely cumulative of properly admitted evidence
are harmless.” Jordan v. Binns, 712 F.3d 1123, 1138 (7th Cir.
2013). The defendants have failed to demonstrate any unfair prejudice from the
district court’s decision to allow testimony on the same topic from experts
with differing areas of expertise. Holmes v. Elgin, Joliet & Eastern
Ry. Co., 18 F.3d 1393, 1397 (7th Cir. 1994) (admission of cumulative
evidence does not warrant reversal absent a showing of prejudice). The jury was
instructed to ignore the “closing speed” testimony, and juries are presumed to
follow limiting and curative instructions. Sanchez v. City of Chicago,
700 F.3d 919, 932 (7th Cir. 2012) (courts generally presume that juries follow
instructions to disregard objectionable evidence). We find no abuse of
discretion in the district court’s evidentiary rulings and will not address
this issue further.
rulings for abuse of discretion. Reed v. Freedom Mortg. Corp., 869
F.3d 543, 548 (7th Cir. 2017). The defendants complain that some of the expert
testimony regarding the collision was cumulative, and that one expert was
erroneously allowed to testify on “closing speed,” a prejudicial matter on
which he had not previously disclosed his opinion. “As a general rule, errors
in admitting evidence that is merely cumulative of properly admitted evidence
are harmless.” Jordan v. Binns, 712 F.3d 1123, 1138 (7th Cir.
2013). The defendants have failed to demonstrate any unfair prejudice from the
district court’s decision to allow testimony on the same topic from experts
with differing areas of expertise. Holmes v. Elgin, Joliet & Eastern
Ry. Co., 18 F.3d 1393, 1397 (7th Cir. 1994) (admission of cumulative
evidence does not warrant reversal absent a showing of prejudice). The jury was
instructed to ignore the “closing speed” testimony, and juries are presumed to
follow limiting and curative instructions. Sanchez v. City of Chicago,
700 F.3d 919, 932 (7th Cir. 2012) (courts generally presume that juries follow
instructions to disregard objectionable evidence). We find no abuse of
discretion in the district court’s evidentiary rulings and will not address
this issue further.
3 The defendants’ claim is based in part on a
misapprehension of the jury’s finding. The jury did not find Hasib 45% liable
for the accident, but rather 45% liable for his own death. Although these
appear at first glance to be identical findings, as we will discuss below,
there is an important distinction in Illinois law that matters to the outcome
here.
misapprehension of the jury’s finding. The jury did not find Hasib 45% liable
for the accident, but rather 45% liable for his own death. Although these
appear at first glance to be identical findings, as we will discuss below,
there is an important distinction in Illinois law that matters to the outcome
here.
4 The plaintiffs responded to this plain-language
argument by asserting that (1) JBS Carriers dismissed its counterclaim for
contribution when other claims settled; (2) defendants are time-barred from
making a claim against the estate under Missouri law; and (3) defendants are
not entitled to contribution until they have actually paid the estate, which
they had not done at the time of the appeal. Although the stipulation of
dismissal resulting from the partial settlement broadly purports to dismiss the
claims of JBS Carriers against the estate, it appears designed to resolve
claims for property damage while reserving the wrongful death and rescue
doctrine claims, which would include JBS Carriers’ claim for contribution from
the estate. Given that even the plaintiffs treated the contribution claim as a
live claim until they filed their brief in this court, we will not rely on that
ground. There is no merit to the plaintiffs’ other assertions. We therefore
resolve the contribution issue on the defendants’ plain language ground (albeit
not in defendants’ favor).
argument by asserting that (1) JBS Carriers dismissed its counterclaim for
contribution when other claims settled; (2) defendants are time-barred from
making a claim against the estate under Missouri law; and (3) defendants are
not entitled to contribution until they have actually paid the estate, which
they had not done at the time of the appeal. Although the stipulation of
dismissal resulting from the partial settlement broadly purports to dismiss the
claims of JBS Carriers against the estate, it appears designed to resolve
claims for property damage while reserving the wrongful death and rescue
doctrine claims, which would include JBS Carriers’ claim for contribution from
the estate. Given that even the plaintiffs treated the contribution claim as a
live claim until they filed their brief in this court, we will not rely on that
ground. There is no merit to the plaintiffs’ other assertions. We therefore
resolve the contribution issue on the defendants’ plain language ground (albeit
not in defendants’ favor).
5 The appellate court determined that Laue was not
barred from bringing his claim for contribution in a separate action, even
though he could have brought it during the pendency of the original action. The
Illinois Supreme Court later reversed that finding after concluding that the
statute requires that a contribution claim be brought in a pending
action. Laue v. Leifheit, 105 Ill.2d 191, 85 Ill.Dec. 340, 473
N.E.2d 939, 941–42 (1984) (it is clear from section 5 of the statute that, if
there is a pending action, then the party seeking contribution must assert a
claim by counterclaim or by third-party claim in that action). The defendants
here did bring a third-party complaint against Hasib in the original action, so
that is not an issue here. But rather than fully litigate that claim, the
defendants sought to simply apply the results of the wrongful death claim to
the rescue doctrine claim. That theory misapprehended Illinois law as we
discuss infra. The Illinois Supreme Court left the remainder
of the appellate court opinion intact, and at least one court has noted the continuing
validity of the reasoning in the Laue appellate court
opinion. See Carter, 94 Ill.Dec. 390, 487 N.E.2d at 1270.
barred from bringing his claim for contribution in a separate action, even
though he could have brought it during the pendency of the original action. The
Illinois Supreme Court later reversed that finding after concluding that the
statute requires that a contribution claim be brought in a pending
action. Laue v. Leifheit, 105 Ill.2d 191, 85 Ill.Dec. 340, 473
N.E.2d 939, 941–42 (1984) (it is clear from section 5 of the statute that, if
there is a pending action, then the party seeking contribution must assert a
claim by counterclaim or by third-party claim in that action). The defendants
here did bring a third-party complaint against Hasib in the original action, so
that is not an issue here. But rather than fully litigate that claim, the
defendants sought to simply apply the results of the wrongful death claim to
the rescue doctrine claim. That theory misapprehended Illinois law as we
discuss infra. The Illinois Supreme Court left the remainder
of the appellate court opinion intact, and at least one court has noted the continuing
validity of the reasoning in the Laue appellate court
opinion. See Carter, 94 Ill.Dec. 390, 487 N.E.2d at 1270.
6 In Carter, a railway sought in a
counterclaim the same percentage of contribution for damages that it paid in
the death of a child passenger that a jury had found to be the contributory
negligence of her mother, the driver who was killed in the same accident. The court
of appeals, citing the appellate opinion in Laue, remarked that
this was improper because the mother’s liability in tort had not been
established as to her daughter but only as to her lack of due care for her own
safety.
counterclaim the same percentage of contribution for damages that it paid in
the death of a child passenger that a jury had found to be the contributory
negligence of her mother, the driver who was killed in the same accident. The court
of appeals, citing the appellate opinion in Laue, remarked that
this was improper because the mother’s liability in tort had not been
established as to her daughter but only as to her lack of due care for her own
safety.
7 Whether the crash was the proximate cause of
Edin’s injuries would also have been an open question for the jury to resolve.
Edin was injured by the fire and his father was killed instantly by the crash.
Because of the way the defendants framed their contribution counterclaim, the parties
did not litigate the cause of the fire. And so, for example, the fire could
have resulted from some unknown defect in the truck or its contents that would
not be attributable to any negligence by Hasib. In the same way, in a car crash
like Laue, the mother’s injuries might be caused by her failure to
wear a seatbelt, making her contributorily negligent for her own injuries even
if she bore no responsibility for the crash itself. If she had placed seatbelts
on her children, and had not contributed to the crash itself, she would not be
liable in tort for their injuries. Likewise, adult passengers might bear a
different amount of responsibility for their injuries depending on whether they
wore a seatbelt. So deciding fault for the crash does not necessarily resolve
contributory negligence for the injuries.
Edin’s injuries would also have been an open question for the jury to resolve.
Edin was injured by the fire and his father was killed instantly by the crash.
Because of the way the defendants framed their contribution counterclaim, the parties
did not litigate the cause of the fire. And so, for example, the fire could
have resulted from some unknown defect in the truck or its contents that would
not be attributable to any negligence by Hasib. In the same way, in a car crash
like Laue, the mother’s injuries might be caused by her failure to
wear a seatbelt, making her contributorily negligent for her own injuries even
if she bore no responsibility for the crash itself. If she had placed seatbelts
on her children, and had not contributed to the crash itself, she would not be
liable in tort for their injuries. Likewise, adult passengers might bear a
different amount of responsibility for their injuries depending on whether they
wore a seatbelt. So deciding fault for the crash does not necessarily resolve
contributory negligence for the injuries.