Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Rock Island
County, the Hon. L.E. Ellison, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 29, 1985.
On October 14, 1978, the members of the Sitzmacher Ski Club, Inc., embarked upon a hayrack ride conducted by the Hidden Lake Management Corporation, hereafter defendant. Because of a flat tire on one of the wagons, three wagons pulled onto the shoulder of the road. A number of the riders left the wagons, and as the result of being struck by an automobile driven by Rickey J. Mitchell, three of them were killed and two were injured. Actions filed against Mitchell, defendant, and the Sitzmacher Ski Club, Inc., in the circuit court of Rock Island County by the administrators of the estates of the decedents pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1977, ch. 70, par. 2), and by the injured individuals, were consolidated for trial.
During the conference on jury instructions, defendant tendered, and the court, over the plaintiffs' objections, gave the following instruction:
"If you award damages to any plaintiff in this case, you are instructed that any such award as you may make is not subject to federal or state income taxes."
In all five cases the jury returned verdicts against defendant and Mitchell and in favor of the ski club. This appeal involves only the wrongful death action filed by plaintiff Gaylen W. Klawonn as administrator of the estate of his deceased wife, Connie L. Klawonn. The jury found damages to be $81,906.12 and that decedent was 50% negligent. The circuit court entered judgment against defendant and Mitchell in the amount of $40,953.06.
Plaintiff's post-trial motion sought a new trial and contended, inter alia, that the court erred in instructing the jury that any award was not subject to taxation. The court vacated the judgment and ordered a new trial solely because of its determination that it had erred in instructing the jury as to the nontaxable nature of its award. All other grounds asserted in the motion were overruled.
Defendant sought leave to appeal from the order granting a new trial. (87 Ill.2d R. 306(a)(1).) The appellate court denied the petition, and we allowed defendant's petition for leave to appeal (87 Ill.2d R. 315(a)).
There can be no dispute that under present law compensatory damage awards are tax exempt. The Internal Revenue Code specifically exempts from the definition of gross income "the amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness." (26 U.S.C. § 104(a)(2) (1982); as to Illinois income tax see Ill. Rev. Stat. 1981, ch. 120, pars. 2-201 through 2-203(e).) This exemption applies even though such damages often include compensation for loss of past and estimated future earnings which would have been taxable had plaintiff not been injured. The section applies not only in the personal injury context but also to wrongful death awards. See Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 62 L.Ed.2d 689, 100 S.Ct. 755.
Although the nontaxable nature of compensatory damage awards is clear, this court has previously noted the inadvisability of instructing or otherwise informing the jury of this fact. Hall v. Chicago & North Western Ry. Co. (1955), 5 Ill.2d 135, involved an action under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1946)) for personal injuries sustained by the plaintiff while employed by the defendant railroad. During closing argument defense counsel advised the jurors that, if they found for the plaintiff, "whatever amount he receives by way of verdict in this case is not subject to Federal income tax." (Hall v. Chicago & North Western Ry. Co. (1955), 5 Ill.2d 135, 149.) Upon objection by the plaintiff, this remark was stricken, but the circuit court nevertheless granted plaintiff a new trial. In affirming the new trial order, this court relied upon the fact that the jury had been generally instructed on the proper measure of damages and it was therefore no more appropriate to include specific reference to the issue of taxes than to innumerable similar factors. (5 Ill.2d 135, 150-51.) Further, this court indicated that it believed the determination not to tax compensatory damage awards was intended by Congress to give the injured party a tax benefit. The court ultimately determined that "the incident of taxation is not a proper factor for a jury's consideration, imparted either by oral argument or written instruction. It introduces an extraneous subject, giving rise to conjecture and speculation." 5 Ill.2d 135, 152.
When presented in Raines v. New York Central R.R. Co. (1972), 51 Ill.2d 428, cert. denied (1972), 409 U.S. 983, 34 L.Ed.2d 247, 93 S.Ct. 322, an action also brought under the Federal Employers' Liability Act, in the context of a jury instruction rather than argument of counsel, the court relied upon Hall to hold that the circuit court had correctly refused to instruct the jury that any award in favor of the plaintiff would not be subject to income tax. (51 Ill.2d 428, 430.) Relying on Hall and Raines, our appellate court decisions consistently precluded evidence or instructions concerning income tax in personal injury and wrongful death actions brought pursuant to State law.
In 1980, however, the Supreme Court ruled, in a wrongful death action arising under the Federal Employers' Liability Act, that evidence of income taxes payable on the decedent's past and future earnings was admissible and held it to be error to refuse to instruct the jury that an award of damages would be tax free, thereby overruling Hall and Raines. Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 62 L.Ed.2d 689, 100 S.Ct. 755.
In Liepelt, the Supreme Court noted that, in a wrongful death action under the FELA, the measure of recovery is those damages that flow from the deprivation of the pecuniary benefits which the beneficiaries might reasonably have received. It reasoned that it is the wage earner's "after-tax income, rather than his gross income before taxes, that provides the only realistic measure of his ability to support his family. It follows inexorably that the wage earner's income tax is a relevant factor in calculating the monetary loss suffered by his dependents when he dies." (444 U.S. 490, 493-94, 62 L.Ed.2d 689, 693-94, 100 S.Ct. 755, 757.) The court recognized that there are many variables which may affect a wage earner's future income tax liability but saw no greater difficulty in their handling than in the solution of other similar problems, such as the amount of a decedent's expected expenditures. It rejected the contention that evidence describing a decedent's estimated after-tax earnings was too speculative or complex for a jury's consideration. (444 U.S. 490, 494, 62 L.Ed.2d 689, 694, 100 S.Ct. 755, 757-58.) It rejected, too, the theory upon which Hall had, in part, relied, that the award exemption was intended by Congress as a tax benefit to the victim.
The Supreme Court emphasized that tax-conscious jurors may mistakenly assume that a plaintiff's recovery will be subject to Federal taxation and therefore substantially increase an award to insure that he is fully compensated, thus awarding an amount improperly inflated beyond the earnings which the injured plaintiff would have received or the decedent would have provided. In concluding to eliminate this potential windfall, the Supreme Court quoted language used by the United ...