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08/10/95 DAVID R. PASQUALE v. SPEED PRODUCTS

August 10, 1995

DAVID R. PASQUALE, ADM'R OF THE ESTATE OF DIANE K. PASQUALE, DECEASED, FOR THE BENEFIT OF SAMANTHA PASQUALE, APPELLANT,
v.
SPEED PRODUCTS ENGINEERING ET AL. (F&B MANUFACTURING COMPANY, APPELLEE).



The Honorable Justice Freeman delivered the opinion of the court: Justice McMORROW, dissenting: Justice Harrison joins in this dissent.

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

Plaintiff David R. Pasquale, as administrator of Diane K. Pasquale's estate, brought a wrongful-death action against Great Lakes Dragway and Speed Products Engineering in the circuit court of Cook County for the benefit of Samantha Pasquale, the surviving next of kin, and himself (David), the surviving spouse. Wesley Law, acting as the special administrator of the estate of Raymond Law, deceased, joined in bringing the action as co-plaintiff. Prior to trial, plaintiff settled with Great Lakes Dragway (Great Lakes) in the valued amount of $861,789. The case proceeded to trial on plaintiff's fourth-amended complaint and on cross-claims for contribution by the two remaining defendants. The complaint alleged, inter alia, a wrongful-death action sounding in strict liability against joint tortfeasors Speed Products Engineering (Speed) and F&B Manufacturing Company (F&B) in benefit of Samantha (count I), and a separate wrongful-death action sounding in strict liability against Speed alone in benefit of David (count II). After the parties rested, the trial court refused to instruct the jury on a separate claim by plaintiff, as an individual, against Speed, seeking recovery for emotional distress based on a theory of strict liability (count III). The refusal, in effect, granted Speed a directed verdict on that count.

Jury verdict of $1.5 million was subsequently returned against Speed and F&B for the benefit of Samantha, and a separate jury verdict of $150,000 was returned against Speed for the benefit of David. The trial court entered two judgments, nunc pro tunc, on the two verdicts.

During post-trial proceedings, the court denied F&B's motion for judgment notwithstanding the verdict in favor of Samantha, but granted its request for a setoff of the settlement amount. The trial court directed a setoff of $430,894.50 against the judgment in benefit of Samantha. The trial court additionally denied plaintiff's motion for a new trial on damages and reinstatement of count III.

F&B subsequently appealed the trial court's denial of the motion for judgment notwithstanding the verdict as well as the setoff application. Plaintiff, as administrator and individually, cross-appealed the sufficiency of the damages and the grant of directed verdict in favor of Speed. The appellate court affirmed the trial court's rulings, with the exception of the ruling applying the setoff. The appellate court determined that the trial court should have entered one wrongful-death judgment on the two separate verdicts for Samantha and David, and then applied a setoff of $861,789, the full amount of the Great Lakes settlement, against that portion of the judgment, $1.5 million, for which F&B and Speed were jointly and severally liable. The appellate court reversed and remanded with directions to that effect. (252 Ill. App. 3d 724.) Presiding Justice Jiganti dissented, regarding the directed setoff application. Plaintiff's petition for a rehearing and alternative request for certificate of importance were later denied.

We granted plaintiff's petition for leave to appeal (145 Ill. 2d R. 315), allowed F&B's request for cross-relief (145 Ill. 2d R. 315(g)), and permitted the filing of an amicus curiae brief in support of plaintiff (134 Ill. 2d R. 345(a)). For reasons which follow, we now affirm the judgment of the trial court in directing a verdict in Speed's favor on plaintiff's individual action for emotional distress and denying F&B's motion for judgment notwithstanding the verdict in benefit of Samantha. We also affirm that part of the trial court's judgment granting a setoff of $430,894.50 against the judgment in Samantha's benefit.

ISSUES

The issues on appeal are whether the trial court erred by (1) allowing directed verdict in favor of Speed on David's claim for emotional distress brought under a theory of strict liability; (2) denying F&B's motion for judgment notwithstanding the verdict; and (3) allocating the wrongful-death settlement to the claims of individual beneficiaries and applying setoffs against those beneficiaries' individual recoveries.

FACTUAL BACKGROUND

On May 27, 1979, Burgess Clayton Harris, a professional race car driver, was driving his top fuel race car at Great Lakes Dragway when an unknown failure in the car's driveline caused the engine's speed to greatly accelerate. As the engine's speed accelerated, the clutchassembly's rotations also accelerated to the point where the assembly flew completely apart. The intact clutch parts burst out of a bellhousing or containment device in which they were enclosed and flew through the air into the crowd of spectators. One of the clutch parts struck Diane Pasquale in the head, killing her. David Pasquale, Diane's husband, was seated next to her at the time.

Evidence at trial would later reveal that the driveline failure did not cause the accident; such failures happen with frequency due to the amount of power produced by race car engines. Expert testimony was also presented that the accident was caused by the bellhousing's failure to contain the clutch parts. Undisputed expert testimony was presented that steel used in the bellhousing, when tested, yielded a low level of tensile and impact strength, meaning that the material was very brittle. Furthermore, the type of fractures to the container's surface also indicated that the material was brittle. The material did not meet specifications established by the Speed Equipment Manufacturer's Association, an organization which has developed performance specifications and testing procedures for race car parts in order to provide greater safety for drivers and spectators.

The chassis of Harris' car was built by Peek Brothers (Peek), which purchased the bellhousing from Speed on January 12, 1978. Speed was a well-known distributor of race car parts. Speed's owner at the time of the accident was David Russell. Speed did not manufacture any of the parts it sold; it merely operated out of a single room and employed only two non-highly technically skilled employees. Peek ordered the bellhousing or "high gear can" from Speed's catalogue.

Roy Fjastad, the prior owner of Speed, originally contracted with F&B to manufacture the cans. Russell subsequently acquired the company, but continued the practice of ordering the cans from F&B in the same manner as Fjastad. F&B, at the time of trial, was the largest hydroforming company in the world. Hydroforming is the process by which a flat metal plate is stretched to form a desired shape through the use of a die and a diaphragin which exerts pressure on the metal causing it to stretch. F&B was engaged in the manufacture and assembly of certain products, including, but not limited to, designing, engineering and testing. F&B represented itself in at least one trade journal as capable of providing complete technical engineering and development services with over 20 years experience.

This opinion will present additional facts as the discussion warrants.

ARGUMENT(S)

I

David's Claim for Emotional Distress Based on Theory of Strict Liability

Count III of the fourth-amended complaint was an action by David, as an individual, solely against Speed, and sought damages for emotional distress under a theory of strict products liability. Count III alleged:

"As a proximate result of DIANE K. PASQUALE being struck with great force by one of said clutch parts her bone marrow, blood, and brain matter did strike Plaintiff DAVID R. PASQUALE with great force on his face and other parts of his body causing marks which remained for several weeks. As a proximate result of said impact and occurrence Plaintiff experienced and will experience severe suffering, mental anguish and emotional distress, lost and will lose great earnings and profits, had has expended and will expend great expenses for medical care and treatment."

Speed subsequently flied a motion for summary judgment which was granted by the trial court. The trial court ruled that damages for emotional distress were not recoverable under a strict products liability theory.

At trial, evidence established that David and Diane were in the stands at Great Lakes Dragway watching the auto race. David testified that when a race car took off, he heard a noise. Then something which felt like a handful of sand hit the side of his face. David looked over at Diane and saw that she was sitting upright, but was falling over towards him. According to David, Diane's brains and blood were "all over the place." The entire interior of Diane's head, including the backs of her eyeballs, was exposed to David's sight. After he placed the top of Diane's head back in place, he felt her face for a while, then picked her up and carried her down the stands to a waiting ambulance. David then became sick and went into shock. David was aware that Diane was dead as he carried her.

David testified that after Diane's death, he became a "basket case." He could not work, lost weight, was eventually fired from his job and had a difficult time finding work later. He also testified that he was "miserable, lonely and depressed" and still suffered bad dreams by the time of trial.

At the close of the evidence, the trial court denied plaintiff's request for a jury instruction on David's individual claim for emotional distress, thereby granting Speed, in effect, a directed verdict on count III. Plaintiff cross-appealed from that ruling. The appellate court affirmed on the basis that this court's decision in Woodill v. Parke-Davis & Co. (1980), 79 Ill. 2d 26, 37 Ill. Dec. 304, 402 N.E.2d 194, foreclosed consideration on the merits.

On appeal, F&B responds in support of affirming the trial court's ruling because Speed, the only defendant named in count III, is now in bankruptcy and has not appeared or filed a brief. This court denied F&B's motion to dismiss this issue from the appeal on the basis ofmootness. F&B now responds to avoid any potential prejudice to itself.

Plaintiff acknowledges that Woodill refused to recognize a cause of action in strict products liability for emotional distress and mental anguish. Plaintiff contends, however, that Woodill was based on then-existing law which limited recovery for emotional distress injury to instances of intentionally tortious conduct. (See Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157.) Plaintiff argues that this limitation of "nonimpact cases" to the area of intentional tort liability was subsequently extinguished in Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 75 Ill. Dec. 211, 457 N.E.2d 1, and now such a recovery is permitted in negligence cases. Plaintiff argues that because the requirement of a contemporaneous physical injury or impact was extinguished in Rickey and formed the limiting concept in Woodill, there is no longer good reason to deny recovery for emotional distress based on strict products liability. (See Woodill v. Parke Davis & Co. (1978), 58 Ill. App. 3d 349, 355, 15 Ill. Dec. 900, 374 N.E.2d 683 (relying on "physical harm" requirement in section 402A of the Restatement (Second) of Torts (1965)).) Plaintiff characterizes Rickey as emphasizing the element of foreseeability in negligence actions, and notes that foreseeability is also a "cornerstone" of liability based on strict liability theory.

Defendant responds by correctly pointing out that plaintiff refers to himself as a "bystander," as was the plaintiff in Rickey. Defendant argues that plaintiff may not benefit from any potential expansion of Rickey because he did not, in the first instance, sufficiently plead or prove himself to have been a bystander.

Plaintiff, however, does not limit his arguments for allowing recovery for emotional distress under strict products liability theory to instances of bystanders. Plaintiff claims that he was both a direct victim of defendant's conduct as well as a bystander who witnessed its effects upon another. (See Jarka v. Yellow Cab Co. (1994), 265 Ill. App. 3d 366, 202 Ill. Dec. 360, 637 N.E.2d 1096.) Thus, according to plaintiff the relevant inquiry is whether the absence of a contemporaneous impact or injury requirement for emotional distress recovery in negligence actions, for either direct victims or bystanders ( Rickey, 98 Ill. 2d at 550, 554-55), means the allowance of an emotional distress recovery based on strict products liability. The parties thus initially dispute the relevant inquiry here.

We believe that plaintiff's arguments for extending strict liability are broad and not logically dependent on whether he was a direct victim or a bystander. Nor does his argument for expanding strict liability depend solely on Rickey. Although not cited by plaintiff, and decided after Rickey, Corgan v. Muehling (1991), 143 Ill. 2d 296, 158 Ill. Dec. 489, 574 N.E.2d 602, eliminated the contemporaneous injury or impact requirement for a direct victim's recovery for emotional distress on a theory of negligence. The rule plaintiff challenges is the requirement of a "physical harm" for recovery under strict liability (Restatement (Second) of Torts § 402A (1965)); his status as either a direct victim or bystander is immaterial to that broad challenge.

Nonetheless, it is clear that David's proofs at trial showed him to be a bystander and not a direct victim as that distinction is recognized under Illinois law. (See Rickey, 98 Ill. 2d 546 (bystander case); Siemieniec v. Lutheran General Hospital (1987), 117 Ill. 2d 230, 111 Ill. Dec. 302, 512 N.E.2d 691 (bystander case); cf. Corgan v. Muehling, 143 Ill. 2d 296, 158 Ill. Dec. 489, 574 N.E.2d 602 (direct victim case).) In Rickey and Siemieniec, the plaintiffs' alleged emotional distress resulted from their having witnessed or observed the physically harmful effects of the defendant's negligence on a close relative. In Corgan, the plaintiff's emotional distress was the direct consequence of the defendant's negligent conduct; the plaintiff's emotional distress did not result from injury to another.

David's evidence here did not show that he suffered emotional distress as an independent or direct consequence of the failure of F&B's bellhousing. There was no evidence that he greatly feared for his safety beyond that experienced as a result of his wife's accident. We conclude that this case represents a bystander case, despite David's arguments urging expansion beyond these facts. Thus, we confine our inquiry to whether the elimination of the contemporaneous injury or impact requirement for bystander recovery for emotional distress in the area of negligence meaningfully translates into an elimination of the element of physical harm for a bystander's recovery for emotional distress under strict liability theory.

In Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182, strict lability for unreasonably dangerous products was established as Illinois law, and the court adopted section 402A of the Restatement (Second) of Torts. In Woodill, this court agreed with and adopted the appellate court's decision that "strict liability should not be extended to include recovery for [a] plaintiff['s] emotional distress and mental anguish." ( Woodill, 79 Ill. 2d at 38.) The appellate court reached its decision by relying on section 402A of the Restatement (Second) of Torts, which provides that "'one who sells any product in a defective condition unreasonably dangerous to user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer ***.'" (Emphasis in original.) (See Woodill, 58 Ill. App. 3d at 355, quoting Restatement (Second) of Torts § 402A(1) (1965).) The appellate decision additionally recognized that, in Illinois, recovery for emotional distress had been traditionally limited to intentionally inflicted injury. Knierim, 22 Ill. 2d 73, 174 N.E.2d 157.

In Rickey, 98 Ill. 2d 546, 75 Ill. Dec. 211, 457 N.E.2d 1, this court held, in the case of a bystander, that a recovery for emotional distress would be permitted in the case of negligent conduct without a requirement that the plaintiff show a contemporaneous injury or impact. (Cf. Braun v. Craven (1898), 175 Ill. 401, 51 N.E. 657 (establishing the impact rule).) In place of the impact rule, Rickey adopted the zone-of-physical-danger rule which had been applied by a majority of jurisdictions considering the matter. Under Rickey's new rule, a bystander in a zone of physical danger, who reasonably feared for his own safety because of the defendant's negligence, was allowed to recover for physical injury or illness which manifested as a result of emotional distress. Although plaintiff argues otherwise, Rickey stated nothing regarding foreseeability.

In Corgan, 143 Ill. 2d 296, 158 Ill. Dec. 489, 574 N.E.2d 602, this court made clear that Rickey's zone-of-physical-danger rule applied only to bystanders. Corgan, however, extended Rickey's elimination of the impact rule to instances where plaintiffs were the direct victims of the negligent conduct and suffered emotional distress injury.

While Rickey and Corgan expanded recovery in the area of negligence, they did not change the law that there exists in Illinois no recovery for emotional distress under a theory of strict liability. In fact, a fair reading of Rickey conveys that that particular state of the law was implicitly endorsed. (See Rickey, 98 Ill. 2d 546, 75 Ill. Dec. 211, 457 N.E.2d 1.) Neither has plaintiff cited any Illinois appellate court decisions recognizing a strict liability cause of action, nor has he argued that the public interest is prejudiced by the absence of such a cause of action. Plaintiff urges only that courts in other jurisdictions allow such recovery and so should we.

With the exception of only a few cases ( Walker v. Clark Equipment Co. (Iowa 1982), 320 N.W.2d 561; Shepard v. Superior Court (1977), 76 Cal. App. 3d 16, 142 Cal. Rptr. 612), the authorities cited by plaintiff appear to only concern emotional distress recovery under anegligence theory ( In re Air Crash Disaster Near Cerritos, Cal. (9th Cir. 1992), 967 F.2d 1421; Pearsall v. Emhart Industries, Inc. (E.D. Penn. 1984), 599 F. Supp. 207; Masaki v. General Motors Corp. (1989), 71 Haw. 1, 780 P.2d 566; Waid v. Ford Motor Co. (1984), 125 N.H. 640, 484 A.2d 1152); emotional distress recovery by the ultimate user or consumer of a product, rather than a bystander ( Jackson v. Johns-Manville Sales Corp. (5th Cir. 1986), 781 F.2d 394; Kearney v. Phillips Industries, Inc. (D. Conn. 1989), 708 F. Supp. 479; Kately v. Wilkinson (1984), 148 Cal. App. 3d 576, 195 Cal. Rptr. 902); or emotional distress recovery by a plaintiff who was a direct victim in addition to being a bystander ( Walters v. Mintec/International (3d Cir. 1985), 758 F.2d 73).

When a rule of law has once been settled, contravening no statute or constitutional principles, such rule ought to be followed under the doctrine of stare decisis unless it can be shown that serious detriment is thereby likely to arise prejudicial to public interest. ( Maki v. Frelk (1968), 40 Ill. 2d 193, 239 N.E.2d 445; see also Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 128 N.E.2d 691.) While these tenets cannot be so rigid as to incapacitate a court in its duty to develop the law, we do not perceive that the needs of our society have so changed or that injustice results from the rule at issue here such that it requires reevaluation. (See People v. Gersch (1990), 135 Ill. 2d 384, 396, 142 Ill. Dec. 767, 553 N.E.2d 281; cf. Alvis v. Ribar (1981), 85 Ill. 2d 1, 24, 52 Ill. Dec. 23, 421 N.E.2d 886.) Neither do we believe that the changes wrought by Rickey and its progeny, Corgan, the elimination of the impact rule in the area of negligence, support a similar change in Illinois at this time in the area of strict liability.

As discussed by the dissent in Shepard v. Superior Court (1977), 76 Cal. App. 3d 16, 142 Cal. Rptr. 612, there is significant reason not to extend a recovery for emotional distress based on fault liability to the realm of strict liability:

"The fault of a defendant is an indispensable element of duty of care in an action brought for the infliction of emotional distress, and that in the absence of fault or other culpable conduct a defendant may not be rendered liable for this particular harm. To put it another way, it means that in an action instituted for causing emotional trauma, the liability of a defendant is premised plainly and directly on the presence or absence of defendant's fault. Since the doctrine of strict liability is not founded upon fault or culpable conduct, a defendant manufacturer should not be held liable under the doctrine for the special harm of inflicting emotional distress upon a plaintiff." ( Shepard, 76 Cal. App. 3d at 26, 142 Cal. Rptr. at 618-19 (Kane, J., dissenting).)

Consequently, we decline to reexamine the established rule that a physical harm is required to state a bystander's cause of action and ...


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