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Ballweg v. City of Springfield

OPINION FILED DECEMBER 13, 1984.

JOHN E. BALLWEG, ADM'R OF THE ESTATE OF DONNA BALLWEG, DECEASED, PLAINTIFF-APPELLEE,

v.

THE CITY OF SPRINGFIELD ET AL., DEFENDANTS (THE COLEMAN COMPANY, INC., ET AL., DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS,

v.

THE CITY OF SPRINGFIELD ET AL., THIRD-PARTY DEFENDANTS; PHILIP HENRICI, THIRD-PARTY DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Sangamon County; the Hon. Richard J. Cadagin, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

JUSTICE MILLS delivered the supplemental opinion of the court:

Hobie Cat II.

A new trial must take place.

A boating accident on Lake Springfield resulted in the electrocution deaths of Donna Ballweg and Jana Welch. The administrator of Ballweg's estate brought the present action against the manufacturer of the boat, Coast Catamaran Corporation (Coast), and Coast's parent company, the Coleman Company (Coleman).

Judgment was entered on a jury verdict in favor of Ballweg for $304, 388.35 compensatory damages and $1,021,833 punitive damages. Coast and Coleman appeal.

The evidence relating to the circumstances of the accident was essentially the same as that set forth in Ogg v. City of Springfield (1984), 121 Ill. App.3d 25, 458 N.E.2d 1331, a suit brought by the administrator of Jana Welch's estate against the city of Springfield (city) and Coleman. We recount the evidence here only to the extent necessary for our disposition.

Ballweg, Welch, and Philip Henrici were sailing a Hobie Cat catamaran on Lake Springfield near Springfield. Henrici manned the tiller and controlled the mainsail, while Welch operated the jib sail.

As the boat passed through a channel of the lake, its mainmast came into contact with an overhead power line spanning the channel. The rear end of the boat momentarily dipped and Henrici received an electrical shock when his legs became immersed in water. The boat began rocking, causing repeated contact between the mast and the power lines. Flames flashed from the mast and from beneath the boat. Ballweg and Welch jumped into the water and, as the mast contacted the power lines again, the two women went limp in the water and sank. Their bodies were subsequently recovered by divers. Henrici, who had remained on the boat, was rescued.

Because of errors in the admission of evidence we must reverse and remand for a new trial. We also shall address defendants' allegations of error respecting the damages, jury instructions, and pleadings in order to afford guidance to the trial court upon retrial.

I

Over defendants' objections, plaintiff introduced into evidence several charts listing accidents involving Hobie Cats and power lines over a 10-year period. The charts show the date of the accident, the State in which it occurred, and the number of resulting deaths and injuries. The injuries total 15 and the deaths total 21. There were two accidents with unknown injuries and deaths. The nature of each accident is not described other than by the charts' titles which state, "Hobie Cat Power Line Accidents." Defendants argue that this evidence should not have been introduced because plaintiff failed to show that the prior accidents were similar to the accident in the present case.

• 1 The supreme court held in Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill.2d 434, 396 N.E.2d 534, that evidence of prior occurrences may be admissible to establish the dangerousness of a product. The prior accidents must, however, be "substantially similar" to the accident in question. Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill.2d 434, 396 N.E.2d 534; Moore v. Remington Arms Co. (1981), 100 Ill. App.3d 1102, 427 N.E.2d 608.

• 2, 3 In the present case, plaintiff alleged that the Hobie Cat was unreasonably dangerous because of its design, which provided an electrical path from the power lines to the water, electrifying the water surrounding the boat. To admit evidence of prior accidents, plaintiffs were required to show that the injuries and deaths of the prior accidents were caused by a design defect substantially similar to that alleged in the present case. No such showing was made, and, therefore, the introduction of the evidence of prior accidents was improper. Moreover, the nature of this evidence was sufficiently prejudicial to require reversal.

Defendants argue that, even if some of the prior accidents can be shown to be substantially similar to this case, plaintiff must also prove that defendants received notice of these accidents prior to Ballweg's accident. No authority is cited by defendants for this proposition. Illinois courts have only required, as a prerequisite to the admission of prior accidents, that they be substantially similar to the accident in question. See Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill.2d 434, 396 N.E.2d 534; Moore v. Remington Arms Co. (1981), 100 Ill. App.3d 1102, 427 N.E.2d 608.

II

Over defendants' objections, plaintiff presented testimony that the city of Springfield (city) had taken precautionary measures with respect to the power lines crossing Lake Springfield which included placing warnings in the area of the lines and eventually running some of the lines under water. Defendants argue that this evidence was irrelevant and immaterial.

• 4 In support of the admission of this evidence, plaintiff cites Sutkowski v. Universal Marion Corp. (1972), 5 Ill. App.3d 313, 281 N.E.2d 749, wherein the court held that, in a products liability case, evidence that a product has been changed after the occurrence of an accident is relevant and material in determining that an alternative design is feasible. Sutkowski is inapposite to the present case. Evidence of the city's remedial acts may have been relevant in a suit against the city, but it clearly has no relevance in determining an alternative design of defendants' Hobie Cat. Nor can we see the relevance of this evidence to any other issue in this case. The trial court's failure to sustain defendants' objections to this evidence was erroneous.

III

Defendants next challenge the award of punitive damages, arguing that the pleadings provided no basis for the imposition of punitive damages.

Plaintiff's second amended complaint sought punitive damages only under the Survival Act (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 27-6). After the jury returned its verdict, plaintiff was allowed to amend his complaint to add counts for punitive damages under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2) and under a common law action for funeral and medical expenses.

Plaintiff concedes that he was not entitled to punitive damages under the Survival Act or the Wrongful Death Act. (See Froud v. Celotex Corp. (1983), 98 Ill.2d 324, 456 N.E.2d 131; National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 383 N.E.2d 919; Howe v. Clark Equipment Co. (1982), 104 Ill. App.3d 45, 432 N.E.2d 621; Winter v. Schneider Tank Lines, Inc. (1982), 107 Ill. App.3d 767, 438 N.E.2d 462.) Plaintiff argues, however, that punitive damages could be awarded on his common law claim for medical and funeral expenses.

The supreme court has recognized a common law cause of action in which the spouse of the deceased or the estate's administrator may recover medical and funeral expenses which are not recoverable under the Wrongful Death Act. In Saunders v. Schultz (1960), 20 Ill.2d 301, 170 N.E.2d 163, the court held that the decedent's spouse — who had become personally liable for funeral expenses under "An Act to revise the law in relation to husband and wife" (Ill. Rev. Stat. 1955, ch. 68, par. 15) — could bring an action individually at common law to recover pecuniary losses which were not recoverable under the Wrongful Death Act. By way of dicta, the court extended this cause of action to administrators as well, stating: "[W]e believe that the common law should be construed to permit the recovery of such funeral and medical expenses in an action either by the decedent's estate, or, as in the instant case where no such claim was made, by the surviving spouse." Saunders v. Schultz (1960), 20 Ill.2d 301, 310, 170 N.E.2d 163, 168.

• 5 The injury which provides the basis for a Saunders-type action is derivative of the injury to the decedent. An analogous situation would be that of a spouse seeking medical expenses in a loss of consortium action. Although the spouse sues in his own name on his own behalf, the damages sued for are incurred through the injury to the other spouse. (See Hammond v. North American Asbestos Corp. (1982), 105 Ill. App.3d 1033, 435 N.E.2d 540.) In the same manner, a spouse or administrator suing for medical or funeral expenses in a Saunders-type action is seeking damages incurred by an injury to the decedent. The supreme court has denied punitive damages in consortium actions on the theory that such actions are indirect or derivative in nature and recovery is intended only as compensation. (Hammond ...


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