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06/30/87 Neely Dotson, Indiv. and v. Sears

June 30, 1987

NEELY DOTSON, INDI

v.

AND AS ADM'R OF THE ESTATE OF IDA DOTSON, DECEASED, ET AL., PLAINTIFFS-APPELLEES,

v.

SEARS, ROEBUCK AND COMPANY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

510 N.E.2d 1208, 157 Ill. App. 3d 1036, 110 Ill. Dec. 177 1987.IL.935

Appeal from the Circuit Court of Cook County; the Hon. Albert S. Porter, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE, J., concurs. JUSTICE RIZZI, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

This cause arose from an explosion and fire which occurred in the Dotson home on February 20, 1980, after a repairman employed by defendant repaired a gas clothes dryer located on the premises. Ida Dotson and Stevie Hall were injured in the accident and died approximately two weeks later and plaintiff Tony Dotson suffered minor burns. Plaintiffs alleged that defendant was vicariously liable for the negligent repair of the clothes dryer which caused the explosion and fire. Ultimately, defendant admitted liability and the cause went to trial in the circuit court of Cook County on the issue of damages only. The jury awarded plaintiffs $2,310,000 for the injuries to and wrongful deaths of Ida Dotson and Stevie Hall and the injuries to Tony Dotson. Defendant appeals the $1,700,000 wrongful death award to the estate of Ida Dotson, the $400,000 wrongful death award to the estate of Stevie Hall and the $10,000 award to Tony Dotson.

Defendant contends these awards were excessive, are not supported by the competent evidence and resulted from several errors committed by the trial court. Specifically, defendant complains that the trial court: (1) failed either to prevent plaintiffs' prejudicial and inflammatory closing argument or to declare a mistrial as a result thereof; (2) allowed plaintiff Neely Dotson to advance a claim for loss of consortium after it had been withdrawn; (3) refused to admit evidence of plaintiff Neely Dotson's remarriage in order to limit his recovery for loss of consortium; (4) permitted Steve Dotson to recover for the wrongful death of his illegitimate son, Stevie Hall.

Defendant initially complains of plaintiffs' closing argument. It claims that repeated references to its admission of liability violated a motion in limine, were intended to and did inflame the jury and "went far beyond the permissible [ sic ] limit of drawing reasonable inferences and Conclusions from the evidence." Defendant further claims that plaintiffs' counsel improperly compared their case to others and decedents' lives to animals and inanimate objects. Defendant contends it timely objected to plaintiffs' closing argument and that, even if it did not, the trial court had a duty to sua sponte stop the prejudicial argument. Defendant concludes that the trial court erred in not doing so and in denying its motion for a mistrial at the Conclusion of the arguments.

Plaintiffs respond that defendant failed to object in a timely manner and has thus waived the issue on appeal. Alternatively, they contend that their references to defendant's admission of liability did not violate the motion in limine which prohibited the introduction into the trial or counsel's arguments of "all evidence of the occurrence . . . that gave rise to this action." They further assert that the purpose of the argument was to show the jury that defendant admitted liability and conceded plaintiffs' damages by its failure to present any evidence of its own. Lastly, plaintiffs assert that the determination of whether a closing argument is prejudicial and has denied a party a fair trial is, in the first instance, for the trial court and will not be reversed absent an abuse of discretion.

We believe that defendant failed to timely and adequately object to the errors allegedly committed in plaintiffs' closing argument and, thus, to preserve this issue for appeal. Defendant offers no authority for the assertion that its "objection" during plaintiffs' closing argument, made in the form of a reserved motion, was adequate to preserve any error committed in plaintiffs' closing argument. The rule in Illinois is that a "failure to object at the time of the argument constitutes a waiver of any error." (Emphasis added.) (Duffy v. Midlothian Country Club (1985), 135 Ill. App. 3d 429, 438, 481 N.E.2d 1037.) Moreover, an objection must be sufficiently specific to apprise the trial court of the grounds of objection. (Dixon v. Industrial Com. (1975), 60 Ill. 2d 126, 132, 324 N.E.2d 393.) Here, defendant's counsel merely informed the court that he wanted to make a motion but he would reserve it until plaintiffs' counsel was finished so that he could complete his argument. Thus, during plaintiffs' argument, the court was not apprised of the basis of the motion and had no reason to believe that defendant's counsel had any objection to plaintiffs' closing argument. As a result, defendant has waived any errors in plaintiffs' closing argument.

Even if defendant's reserved motion constitutes an adequate objection, any errors in plaintiffs' closing argument did not deny defendant a fair trial.

The motion in limine sought to bar the parties from introducing into the trial, and from otherwise using, "all evidence" relating to the occurrence which gave rise to the litigation. Defendant contended that it was prejudicial error to admit evidence of the facts of the occurrence giving rise to the suit. (Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 445 N.E.2d 485, aff'd (1984), 102 Ill. 2d 505, 468 N.E.2d 1228.) Plaintiffs' closing argument made no reference to the evidentiary facts "giving rise" to the action. Rather, it argued a nonevidentiary fact, defendant's admission of liability, of which the jury was already well aware. As such, it did not violate the motion in limine.

Additionally, plaintiffs' closing argument did not improperly compare their case to others or decedents' lives to animals or inanimate objects. Plaintiffs' counsel told the jury that the tragedy suffered by plaintiffs was of the magnitude of any litigant that ever came into the courtroom asking for damages and that there had never been a litigant who had sustained the kind of loss that the plaintiffs had. In attempting to illustrate the meaning of "substantial" as used in the jury instruction that the law presumes a substantial pecuniary loss to the spouse and children of a decedent, plaintiffs' counsel told the jury that a million dollars is certainly substantial, but that horses, paintings and computers are bought and sold for that much. These arguments did not exceed the bounds of fair argument.

The closing argument at issue in Richardson v. Nelson (1906), 221 Ill. 254, 77 N.E. 583, overruled on other grounds People ex rel. Noren v. Dempsey (1957), 10 Ill. 2d 288, 139 N.E.2d 780, referred to judgments awarded in other cases. Here, plaintiffs' counsel made no reference to any specific cases or awards. In Hansel v. Chicago Transit Authority (1970), 132 Ill. App. 2d 402, 270 N.E.2d 553, defendant's counsel told the jury that in other cases where employees had been negligent he had advised the giving of money damages. The court held that it was error for counsel to tell the jury what he had done in other cases having no relevance to the suit at issue. (132 Ill. App. 2d 402, 406, 270 N.E.2d 553.) Here, plaintiffs' counsel did not tell the jury that he personally knew plaintiffs' loss exceeded that of any other litigant nor could his argument have been so interpreted.

We also find the Federal court cases cited by defendant distinguishable. In Klotz v. Sears, Roebuck & Co. (7th Cir. 1959), 267 F.2d 53, cert. denied (1959), 361 U.S. 877, 4 L. Ed. 2d 114, 80 S. Ct. 141, plaintiff's counsel asked the jurors to do unto others as they would have done unto them and to test defendant's counsel's sincerity by asking what he would have taken for his eye. He also told them that no amount given defendant's counsel would be enough to him and that defendant had purchased plaintiff's eye and it was their job to decide the amount for which he would sell it. The court held that this argument was similar to arguments asking the jurors to put themselves in plaintiff's place and a deliberate appeal to the jury to substitute sympathy for judgment. (267 F.2d 53, 55.) In Leathers v. General Motors Corp. (4th Cir. 1976), 546 F.2d 1083, plaintiff's counsel asked the jurors how much the loss of the use of their legs would be worth to them. The court held that, while this "golden rule" argument did not automatically require reversal, it did require it when coupled with the closeness of the case. (546 F.2d 1083, 1086.) Here, ...


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