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Bullard v. Barnes

OPINION FILED JUNE 29, 1984

ROBERT G. BULLARD, INDIV. AND AS ADM'R, ET AL., APPELLANTS,

v.

BRUCE E. BARNES ET AL., APPELLEES.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Livingston County, the Hon. William T. Caisley, Judge, presiding.

JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 28, 1984.

Robert G. Bullard, as administrator of the estate of his deceased son, Scott Bullard, and Robert and Sharon Bullard, in their individual capacities as Scott's parents, filed an action in Livingston County circuit court seeking recovery against Bruce Barnes and Livingston County Ready-Mix, Inc., under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1 through 2.2), the Survival Act (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 27-6), and for funeral expenses for which parents are liable under section 15 of "An Act to revise the law in relation to husband and wife" (Ill. Rev. Stat. 1979, ch. 40, par. 1015; hereinafter referred to as the Family Expense Act). The complaint also sought punitive as well as compensatory damages for injury to property, a recovery for the emotional distress the parents suffered due to the death of their son, and damages for negligent entrustment.

The cause of action arose out of a motor vehicle accident that occurred shortly before 8 a.m. on October 1, 1979, in which 17-year-old Scott Bullard was fatally injured. Sometime between 7:30 and 8 a.m., Scott was driving south on a paved, two-lane road, known in Livingston County as the Katydid Road, in order to get to his part-time cooperative education job in Cornell. Northbound defendant Bruce Barnes, who was driving a semitrailer truck for his employer and co-defendant, Livingston County Ready-Mix, Inc., despite fog and poor visibility, moved into the southbound lane and proceeded to pass two vehicles. He passed the vehicle directly in front of him, a stationwagon driven by Robert Graves, and then continued traveling in the southbound lane past a truck loaded with road-building materials driven by Harold Bohm. Bohm and Graves both testified that the approaching Bullard car swerved onto the west shoulder of the road to avoid a collision with the Ready-Mix truck. Graves further noted that Scott appeared to lose control of his car when he suddenly swung back on the road to avoid hitting a culvert. The Bullard car then crossed the road in front of the truck Bohm was driving, and the front of the Bohm truck struck the passenger side of the Bullard car.

Both Bohm and Graves stopped at the accident scene, although Barnes did not. Bohm went up to the Bullard car, where decedent was lying on his right side on the seat, and asked him whether he was "okay." Scott did not respond, except to shake his shoulders. Graves went to the home of a nearby relative to phone the police. Sharon Bullard, Scott's mother, and her youngest son, Todd, came upon the scene on their way to school shortly after 8 a.m. Mrs. Bullard spoke to Scott, and observed that he was rubbing his left shoulder although he did not respond. While Mrs. Bullard did not notice it at the time, her oldest son, who arrived later, observed that Scott's neck was swollen and that blood was dripping from his mouth. Later, upon retrieving Scott's personal effects from the car, he found teeth on the car floor, which were apparently knocked out by the force of the collision. By approximately 8:15 a.m., Eldon Finkenbinder, a Livingston County deputy sheriff, had arrived. Finkenbinder took decedent's pulse and determined that he was still alive, although unconscious. Approximately 10 minutes after Finkenbinder's arrival, an ambulance came and Scott was taken to a Pontiac hospital, where he died that morning, apparently without regaining consciousness.

Those portions of the complaint seeking recovery for emotional distress were dismissed for failure to state a claim upon which relief could be granted, and the propriety of that action is not in issue here. During voir dire proceedings, defendants admitted liability under both the wilful and wanton and the negligence counts which sought recovery under the Wrongful Death Act, the Survival Act, and the Family Expense Act. The trial court then held the claim for negligent entrustment barred since defendant had admitted liability under a respondeat superior theory. The court also granted defendant's motion to sever the property-damage claim, in which plaintiff sought both punitive and compensatory damages, from all other counts.

Defendants admitted liability for $3,236.10 under the Family Expense Act, so that, in the first portion of the bifurcated trial, the jury considered only the damages to be awarded on the wrongful death and survival claims. In instructing the jurors that they could consider loss of the son's society in determining what weight to give the presumption that the parents suffered a pecuniary loss upon his death, the trial court improvised somewhat on a pattern jury instruction (Illinois Pattern Jury Instruction (IPI), Civil, No. 31.01. (2d ed. 1971)). The jury was instructed:

"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 have reasonably 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, physical and mental characteristics, habits and the parents' loss of society with the decedent." (Added material emphasized.)

The verdicts were $285,000 in the wrongful death action and $40,000 in the survival action. In the second part of the trial, the parties stipulated to compensatory property damages of $750 and the jury returned a verdict of $500 in punitive property damages against defendant Barnes only. Judgments were entered accordingly.

Defendants appealed to the appellate court on a variety of grounds, and plaintiffs cross-appealed, arguing that the trial court erred in dismissing the claims for emotional distress. The appellate court reversed and remanded for a new trial on damages under the survival and wrongful death claims and affirmed the property-damage judgments, as well as the trial court's dismissal of plaintiff's emotional-distress counts. 112 Ill. App.3d 384.

The appellate court held that the jurors had been improperly instructed that they could consider the parents' loss of their son's society as an element of the presumption prevailing under the Wrongful Death Act that the parents suffered a pecuniary loss due to his death. The appellate court's reversal was also predicated on the admission of the following evidence which it deemed irrelevant: testimony concerning defendant Barnes' passing maneuver and his failure to stop after the collision between the Bohm and Bullard vehicles, and the admission of two morgue photographs of the decedent. That court also determined that certain jury instructions could have misled the jury into thinking that plaintiff could recover for decedent's unconscious pain and suffering. Its opinion commented on other alleged trial errors but found them to be harmless.

Section 2 of our Wrongful Death Act governs all recoveries under the Act, and it provides in relevant part:

"[I]n every such action 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, to the surviving spouse and next of kin of such deceased ...


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