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Ballweg v. City of Springfield

OPINION FILED OCTOBER 17, 1986.

JOHN E. BALLWEG, ADM'R, APPELLANT,

v.

THE CITY OF SPRINGFIELD ET AL., APPELLEES (PHILIP HENRICI, APPELLANT).



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Richard J. Cadagin, Judge, presiding.

CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 1, 1986.

We have consolidated two cases in this appeal. Both cases arose out of a boating accident on Lake Springfield which resulted in the electrocution deaths of Donna Ballweg and Jana Welch. Donna Ballweg's father, the administrator of her estate (the plaintiff), brought the first of these consolidated cases against the manufacturer of the boat, Coast Catamaran Corporation (Coast); Coast's parent company, the Coleman Company (Coleman); and the city of Springfield. The complaint sought recovery based on strict liability in tort. Coast and Coleman filed counterclaims against the pilot of the boat, Philip Henrici (Henrici), seeking contribution.

The second consolidated case concerns a covenant not to sue which was entered into between the plaintiff, the city, and Henrici, whereby the city paid the plaintiff the sum of $37,500 and Henrici paid the plaintiff the sum of $15,000. Prior to trial, the trial judge, finding this settlement to have been made in good faith, dismissed the city and Henrici.

After a jury trial in the circuit court of Sangamon County, judgment was entered on a jury verdict in favor of the plaintiff for $304,388.35 compensatory damages and $1,021,833 punitive damages. Coast and Coleman appealed to the appellate court.

The appellate court reversed and remanded for a new trial. (130 Ill. App.3d 241.) We granted the plaintiff's and Henrici's petitions for leave to appeal. The issues presented concern: (1) the admission of certain evidence; (2) the award of certain damages; (3) certain jury instructions; and (4) dismissal of the counterclaims against Henrici.

The facts in the case at bar are identical to the facts in Ogg v. City of Springfield (1984), 121 Ill. App.3d 25. Ogg related to the appeal concerning Jana Welch's death. The proof was essentially the same as to both victims of this occurrence. We shall recount the evidence here only to the extent necessary for our disposition of the issues raised.

Ballweg, Welch, and Henrici were sailing a Hobie Cat catamaran on Lake Springfield. Henrici manned the tiller and controlled the main sail while Welch operated another sail. As the boat passed through a channel, its main mast contacted an overhead power line which spanned the channel. The stern 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 once again hit the power lines, 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.

Collateral Estoppel

As stated earlier, the Ogg case dealt with the same set of facts as this case. In Ogg, a jury found Coast and Coleman liable. The plaintiff now asserts that the doctrine of collateral estoppel should apply to the issue of liability and that, therefore, that issue need not be relitigated.

Collateral estoppel is an equitable doctrine of judicial origin created to prevent relitigation of previously adjudicated claims and is founded in principles of judicial economy. Morris v. Union Oil Co. (1981), 96 Ill. App.3d 148.

This court has held that the only pertinent questions for the utilization of collateral estoppel are: (1) whether the issue decided in the prior adjudication is identical with the one presented in the case in question; (2) whether there had been a final judgment on the merits; and (3) whether the party against whom estoppel is asserted is a party or in privity with a party to the prior adjudication. Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill.2d 1, 7.

In this case we have identical issues and parties; however, there was not a final judgment on the merits. For purposes of applying the doctrine of collateral estoppel, finality requires that the potential for appellate review must have been exhausted. (Relph v. Board of Education (1981), 84 Ill.2d 436, 442-44.) The verdict in Ogg v. City of Springfield (1984), 121 Ill. App.3d 25, rendered on June 25, 1982, was appealed. The appeal was not concluded until after the motion for collateral estoppel was denied. Therefore, the appellate court correctly affirmed the trial judge's denial of collateral estoppel due to the lack of finality of the Ogg judgment.

Prior Accidents

Another issue raised by the plaintiff is whether the introduction of evidence concerning prior accidents involving Hobie Cats and power lines was proper.

At trial the plaintiff introduced several charts listing accidents involving Hobie Cat boats and power lines over a 10-year period to indicate that Coast and Coleman had prior notice that the Hobie Cat was dangerous. The charts showed the date of the accident, the State in which it occurred, and the number of resulting deaths and injuries. The exact nature of each accident is not described other than by the charts' titles, which read: "Hobie Cat Power Line Accidents."

The appellate court held that the admission of this evidence was reversible error because the plaintiff failed to show that the prior accidents were caused by a design defect which was substantially similar to that alleged in the present case.

This court held in Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill.2d 434, 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. 77 Ill.2d 434, 441.

The appellate court suggests, and Coast and Coleman argue, that the plaintiff had the burden of showing that each prior electrocution was caused in the same manner as in the present case. That is to say that in each case the mast had to contact the power line, be severed, and electrify the entire boat. The evidence indicated the following regarding the Hobie Cat: (1) the boat is composed of multiple all-metal connective pathways from powerline to ground; (2) the Hobie Cat can electrocute a user on land or in the water; (3) the Hobie Cat can electrocute a person in contact with the boat or several hundred people up to 100 feet away in water according to Doctor Charely, Coleman's own expert witness.

In view of Rucker, the evidence was properly introduced showing that Coast and Coleman had notice that mast-power-line contacts by Hobie Cats resulted in electrocutions.

Remedial Acts

At trial, the plaintiff presented testimony that the city had taken remedial action regarding the power lines crossing Lake Springfield. The city placed warning signs in the area and had placed some of the power lines under water. The issue is whether the circuit court erred in admitting this evidence.

In support of the introduction of this evidence, the plaintiff cited Sutkowski v. Universal Marion Corp. (1972), 5 Ill. App.3d 313. Sutkowski 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 ...


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