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Bullard v. Barnes

OPINION FILED FEBRUARY 1, 1983.

ROBERT G. BULLARD, ADM'R OF THE ESTATE OF SCOTT R. BULLARD, DECEASED, ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,

v.

BRUCE E. BARNES ET AL., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES.



Appeal from the Circuit Court of Livingston County; the Hon. William T. Caisley, Judge, presiding.

PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 4, 1983.

Defendants appeal from a judgment entered upon jury verdicts in the total amount of $326,250 against them in the circuit court of Livingston County. Plaintiffs have cross-appealed the dismissal of certain counts in the amended complaint seeking damages for emotional distress. For the reasons hereinafter set forth, we reverse the judgment against the defendants and remand for a new trial on damages only; we affirm the dismissal of the emotional distress counts.

Defendants have raised a host of issues concerning matters which occurred at nearly every stage of the trial. We shall deal first with what we consider the more significant issues which led to error below and then comment more briefly on other matters which do not constitute error but which should be avoided on retrial.

The factual background demonstrated that Scott Bullard, a 17-year-old youth, was killed when the automobile he was driving collided with another on a blacktop road north of Pontiac. The accident occurred between 7:30 and 8 am. on the very foggy morning of October 1, 1979. Bullard was driving south on the blacktop; two vehicles were being driven north in the same area, one by Harold Bohm and the other by Robert Graves. Behind the Bohm and Graves vehicles was a semi-trailer truck owned by the defendant Livingston County Ready-Mix, Inc., and driven by defendant Barnes, its employee. According to the testimony of Bohm and Graves, the truck pulled out into the southbound lane and passed both of them, then returned to the northbound lane and continued north without stopping. This forced Bullard's vehicle off the road and out of control. It veered back onto the highway and collided with the Bohm vehicle. Bullard suffered injuries from which he died.

Shortly after the accident Bullard's mother, Sharon Bullard, came upon the scene while driving another son to school. She stated that Scott was lying in the front seat of the car and moving his hand. She observed no blood upon him. A deputy sheriff arrived in response to a call received at 7:53 a.m., took Scott's pulse, and determined that he was alive at about 8:10 or 8:15 a.m. A rescue squad arrived and took Scott to a hospital in Pontiac; his father, Robert Bullard, arrived later and the family was informed that Scott was dead.

An eight-count complaint was filed in the circuit court of Livingston County against the defendants by Robert, the father, individually and as administrator of Scott's estate, and by Sharon, the mother, and Paul and Todd, decedent's brothers, individually. Counts I and II sounded under section 1 and 2 of the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1, 2) and alleged wilful and wanton misconduct in count I and negligence in count II with the same factual allegations in each count. Counts III and IV alleged property damage to Robert's automobile and reiterated the factual allegations from count I. Count III was based on wilful and wanton misconduct and asked for compensatory and punitive damages. Count IV sought compensatory damages only for negligence. Counts V and VI sounded under "An Act to revise the law in relation to husband and wife" (Ill. Rev. Stat. 1979, ch. 40, par. 1015) (Family Expense Act) and reiterated the factual allegations from count I. As with the preceding counts, count V was predicated on wilful and wanton misconduct and count VI on negligence. Counts VII and VIII sounded under the Survival Act (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 27-6) and sought damages for the suffering of the decedent from the time of the collision until the time of his death. These counts also reiterated the factual allegations of count I with count VII being based on wilful and wanton misconduct and count VIII being based on negligence.

Motions to dismiss were allowed as to the complaint and the first amended complaint and on November 6, 1980, the defendants were ordered to answer the second amended complaint whose structure was basically the same as the complaint described above. The trial date had originally been set for April 3, 1981, but was continued on motions for continuance by the parties.

On September 4, 1981, plaintiffs sought to amend their pleading by adding counts IX-XII and to add a specific prayer for punitive damages to count I (Wrongful Death — wilful and wanton) and to count VII (Survival Act — wilful and wanton). The trial court denied the motion as to punitive damages but allowed it as to the additional counts. These alleged in general emotional agony and suffering by the mother and father and were based on wilful and wanton misconduct and negligence as with the prior counts. The wilful and wanton counts sought punitive damages.

Later, on October 7, 1981, plaintiffs were granted leave to amend further by striking a specific figure ($12,000) asked for as punitive damages in count III (property damage — wilful and wanton). Trial was then set for November 23, 1981. On October 13, 1981, plaintiffs once again amended by adding count XIII. It alleged that the defendant Livingston County Ready-Mix, Inc., was negligent in hiring defendant Barnes and in entrusting the vehicle to him.

A pretrial was held on November 13, 1981, and in this proceeding the trial court dismissed counts IX-XII (emotional agony and suffering by the parents) and ordered the defendant to answer count XIII (negligent entrustment). Defendants thereupon moved for a continuance and it was denied. Defendants also moved for a severance of the compensatory damage counts from the punitive damage counts. The trial court denied the severance motion but indicated that it would reconsider if the defendants admitted liability.

Voir dire commenced on November 16, 1981, and continued through November 17. Before its close defendants admitted liability on counts II, IV, VI, and VIII (wrongful death, property damage, family expense, and survival — all negligence) and moved to dismiss counts I, V, VII and XIII (wrongful death, family expense, and survival — all wilful and wanton; and negligent entrustment). The trial court denied the motion to dismiss and thereupon the defendants admitted liability on counts I, V, VII and XIII. They further admitted that liability under the Family Expense Act was $3,236.10. Judgment was then entered on count V in that amount and count VI was dismissed.

The trial court then found that the admissions of liability precluded judgment on count XIII (negligent entrustment) and dismissed that count. It further entered summary judgment as to liability against the defendants on count III (property damage — wilful and wanton) on the ground that defendants had admitted liability as to count IV (property damage — negligence) and that both counts alleged the same facts.

Following the admissions of liability, the trial court allowed the defendants' motion for severance. It found that plaintiffs had alleged wilful and wanton misconduct (admitted) in counts I and VII but had not sought punitive damages under these counts. It further observed that counts II and VIII alleged ordinary negligence (admitted) and that count III was the only remaining count which sought punitive damages. It therefore ordered that the compensatory damage counts, II and VIII (wrongful death and survival — negligence), and I and VII (wrongful death and survival — wilful and wanton), be first submitted to the jury and that immediately upon the return of this verdict, count III (property damage — wilful and wanton — punitive damage claim) be then submitted to the same jury.

The jury returned a single general verdict for wrongful death in the amount of $285,000 and a single general verdict of the decedent's pain and suffering in the amount of $40,000. The following day the matter of property damage and its concomitant punitive damage claim were submitted. Before trial the defendants had admitted that the property damage was $750. The jury returned a verdict for punitive damages in favor of the plaintiffs and against defendant Barnes in the amount of $500; the verdict was in favor of the defendant Livingston County Ready-Mix, Inc. and against the plaintiffs.

Judgment was entered on the verdicts, post-trial motions were denied, and this appeal followed. Defendants, as previously indicated, have appealed a variety of issues; plaintiffs have cross-appealed the dismissal of counts IX-XII (emotional suffering).

In our judgment the two issues raised by the defendants which have sufficiently tainted the proceedings as to require a retrial on damages are the jury instructions and the presentation of evidence going to the question of liability.

• 1 The trial court gave to the jury a plaintiff's instruction (Illinois Pattern Jury Instruction, Civil, No. 31.03 2d ed. 1971) (hereinafter cited as IPI Civil), modified as follows:

"In determining pecuniary loss to the parents and the weight to be given to the presumption of pecuniary loss to the parents, you may consider what benefits of pecuniary value, including money, goods and services the decedent might reasonably have been expected to contribute to his parents and brothers had the decedent lived, bearing in mind what you find the evidence shows concerning the decedent's age, sex, health, ...


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