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09/05/95 JEROME LIMANOWSKI v. ASHLAND OIL COMPANY

September 5, 1995

JEROME LIMANOWSKI, PLAINTIFF-APPELLANT,
v.
ASHLAND OIL COMPANY, INCORPORATED; BUCHER PETROLEUM CHEMICAL COMPANY; CHARTER INTERNATIONAL OIL COMPANY; ETHYL CORPORATION; PPG INDUSTRIES, INCORPORATED; SHELL OIL COMPANY; SUN REFINING AND MARKETING COMPANY; TECHNICAL PETROLEUM; MR. VON DOERSTEN, MR. MOBBERLY, JACK SWEET, JACK FROST, AND OTHER UNKNOWN DEFENDANTS, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JAMES J. HEYDA, PRESIDING.

The Honorable Justice Braden delivered the opinion of the court: Campbell, P.j., and Buckley, J., concur.

The opinion of the court was delivered by: Braden

JUSTICE BRADEN delivered the opinion of the court:

Plaintiff, Jerome Limanowski (Limanowski), appeals from a September 23, 1992, order by the circuit court of Cook County, denying his motion for judgment notwithstanding the verdict.

Limanowski argues that the trial court erred by (1) allowing defense counsel to make statements during closing argument as to the type of conduct constituting specific intent, where such comments were inconsistent with the trial court's final jury instructions; (2) instructing the jury that an employee, seeking to recover against his employer on an intentional tort theory, must prove that the employer specifically intended to injure plaintiff; (3) submitting a supplemental instruction to the jury; (4) allowing direct examination of Limanowski concerning previous settlements with third parties as well as allowing references to Limanowski's remedies under the Workers' Compensation Act during both cross-examination and closing argument.

We affirm.

This action was originally commenced by Limanowski to recover damages occasioned by the conduct of his employer, Ashland Oil Company and various supervisors employed by Ashland (collectively Ashland), who allegedly caused Limanowski to handle, inhale, smell or otherwise ingest toxic vapors and fumes and otherwise withheld the toxic and poisonous nature of these chemicals. On October 22, 1984, Limanowski filed a multicount complaint against numerous manufacturers and distributors, as well as Ashland and four of its employees. In his complaint Limanowski sought damages for alleged injuries sustained due to his exposure to chemicals in the work place. Limanowski based his action on various legal theories including intentional tort, negligence, products liability and breach of warranty. Limanowski subsequently filed numerous amended complaints in which he ultimately claimed that Ashland, by its employees, had an ongoing policy to intentionally and feloniously poison him. In their answer to counts I and II of Limanowski's fifth amended complaint, Ashland and its employees raised several affirmative defenses including the exclusive remedy provisions of the Workers' Compensation Act (Act) and the Occupational Diseases Act.

In 1989, Ashland and four of its employees filed a motion for summary judgment, claiming that the deposition testimony, affidavits and other discovery produced to date, failed to prove any facts supporting Limanowski's claim that Ashland or its employees specifically intended to injure or kill him. On August 27, 1990, the trial court denied the motion for summary judgment. At the close of discovery on March 16, 1992, Ashland and its employees brought another motion for summary judgment. This motion was also denied. On August 10, 1992, a jury rendered a verdict in favor of Ashland and its employees and against Limanowski.

The first issue on appeal is whether the trial court committed plain error by allowing defense counsel to make statements during closing arguments as to the type of conduct constituting specific intent, where such comments were inconsistent with the trial court'sfinal jury instructions and where Limanowski failed to make a contemporaneous objection or raise such issue in post trial motion. Ashland asserts that Limanowski failed to raise such objections during closing argument or in a post trial motion, and as such, waived appellate review of such errors. We agree.

Failure to raise objection at trial or during post-trial proceedings results in waiver of the right to raise the issue on appeal. ( Williamsburg Village Owners' Association v. Lauder Associates (1990), 200 Ill. App. 3d 474, 479, 558 N.E.2d 208, 210, 146 Ill. Dec. 245.) Failure to object to alleged errors in opponent's closing argument is considered waiver of the objection. ( Pharr v. Chicago Transit Authority (1991), 220 Ill. App. 3d 509, 515, 581 N.E.2d 162, 166, 163 Ill. Dec. 211.) Generally, failure to object to any impropriety in counsel's closing argument results in waiver unless comments are so inflammatory and prejudicial that plaintiff is denied a fair trial. Jarmon v. Jinks (1987), 165 Ill. App. 3d 855, 864, 520 N.E.2d 783, 788, 117 Ill. Dec. 432.

Here, the record is devoid of a single objection to defense counsel's comments regarding jury instructions. Therefore, Limanowski waived appellate review by failing to object to such comments during trial or in his post trial motion.

In determining whether a party has been denied a fair trial because of improper closing argument, the reviewing court gives considerable deference to the trial court because it is in a superior position to assess the accuracy and effect of counsel's statements. ( Guzeldere v. Wallin (1992), 229 Ill. App. 3d 1, 15, 593 N.E.2d 629, 638, 170 Ill. Dec. 740.) The determination of whether improper remarks of counsel are so prejudicial as to deprive the other party of their right to a fair trial is a matter resting within the sound discretion of the trial court. ( Balzekas v. Looking Elk (1993), 254 Ill. App. 3d 529, 535, 627 N.E.2d 84, 89, 193 Ill. Dec. 925.) Even if the issue was not waived, Limanowski's argument still must fail because the record is devoid of any indication that the trial court may have abused its discretion in allowing such remarks.

The next issue raised on appeal is whether the trial court erred in instructing the jury that an employee, seeking to recover against his employer on an intentional tort theory, must prove, by a preponderance of the evidence, that the employer specifically intended to injure plaintiff.

Limanowski contends that under Illinois law the "substantial certainty test" is the standard for determining whether an injury suffered in the work place is accidental and not intentional for purposes of determining whether he is limited to the exclusive remedy provided under the Act. Limanowski asserts that if an act is committed with the belief ...


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