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04/12/96 GARY CARTWRIGHT AND LAURA CARTWRIGHT v.

April 12, 1996

GARY CARTWRIGHT AND LAURA CARTWRIGHT, HIS WIFE, PLAINTIFFS-APPELLEES/CROSS-APPELLANTS,
v.
THE GOODYEAR TIRE & RUBBER COMPANY, A CORPORATION, DEFENDANT-APPELLANT/CROSS-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Frank Orlando, Judge Presiding.

Presiding Justice Zwick delivered the opinion of the court: Egan, J., and McNAMARA, J., concur.

The opinion of the court was delivered by: Zwick

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

Plaintiff Gary Cartwright instituted this action seeking recoveryfor personal injuries allegedly caused by a defective truck tire manufactured by defendant Goodyear Tire & Rubber Company. Plaintiff Laura Cartwright sought recovery for loss of consortium as a result of the injuries suffered by her husband. The claims were tried before a jury which returned a verdict of $9,040,000 in favor of Gary Cartwright and a verdict of $2,000,000 in favor of Laura Cartwright. Defendant filed a post-trial motion requesting a new trial or, in the alternative, a remittitur of both judgments. While this motion was pending, defendant brought a petition to vacate the judgments pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)). Upon motion of the plaintiffs, the trial court dismissed defendant's petition and denied its request for leave to file an amended petition. The court granted a remittitur as to both judgments as requested in defendant's post-trial motion, finding that evidence relating to plaintiff's military service improperly appealed to the passions and sympathies of the jury and resulted in verdicts which were grossly excessive.

Defendant now appeals, asserting that the trial court abused its discretion in dismissing without a hearing the section 2-1401 petition to set aside the judgments in favor of plaintiffs. Defendant also appeals the denial of its post-trial motion, and plaintiffs have filed a cross-appeal challenging the trial court's grant of a remittitur as to each judgment.

The record reveals that on April 11, 1986, plaintiff Gary Cartwright was employed as a truck driver for Mid-American Growers. At approximately 8:30 a.m., as Cartwright was driving his delivery truck along interstate highway I-74 between Bloomington and Champaign, Illinois, the truck left the roadway, straddled a guardrail for approximately 120 feet, and then collided with a bridge abutment. After the accident, both of the truck's front tires were flat. Cartwright suffered multiple fractures in the accident which required several surgeries during the following three years. As a result of the injuries sustained in the accident, Cartwright was physically impaired and suffered intense pain.

Cartwright brought a product liability action against defendant, the manufacturer of the right front tire on his truck, claiming that a manufacturing defect in the tire resulted in a blowout which caused the accident. Cartwright alleged that this manufacturing defect rendered the tire unreasonably dangerous at the time it left defendant's control and that the defect was the proximate cause of the accident.

The parties engaged in pretrial discovery, during which Cartwright answered an interrogatory requesting information regardinghis employment history at the time of the accident and during the preceding ten years. Cartwright's sworn answer to this interrogatory consisted of 24 individual entries describing his previous employment. The final entry in this answer related to Cartwright's military service and stated that he had served in the military from April 1973 to June 1976 as a Ranger, earning $500 per month.

At trial, plaintiff Gary Cartwright testified that on the morning of the accident, he was traveling eastbound on interstate highway I-74 toward Champaign, Illinois. Cartwright had both hands on the wheel and his window down when he heard a loud bang and the right front corner of his truck dropped down, pulling hard to the right. His truck then left the roadway, went up onto the guardrail, rode the guardrail up to the bridge abutment and hit it. Cartwright testified that the guardrail was straight and ran alongside the edge of the shoulder of the road.

Shortly before Gary Cartwright took the stand to testify, his attorney tendered to defense counsel a letter which purported to be written by an unidentified Lieutenant General at a Fort Morris, Maryland. The letter ostensibly detailed certain highlights of Cartwright's military service approximately 12 years before the accident. Plaintiffs' counsel sought to have the letter admitted, but defense counsel's objection was sustained.

Although the letter was not admitted into evidence, Cartwright was permitted to testify as to its contents. Accordingly, Cartwright testified that he had served in Vietnam and was awarded the Silver Star, Bronze Star with two Oak Leaves, the Purple Heart with an Oak Leaf Cluster, the Army Commendation Medal, the South Vietnam Service Medal, the South Vietnam Medal of Honor, the National Defense Medal and 11 letters of commendation. According to Cartwright, he was also offered both the Distinguished Service Cross and the Medal of Honor, but refused to accept either award because he was only doing his duty as a soldier.

Cartwright testified that these honors were bestowed upon him, in part, as a result of his conduct under fire in Vietnam on July 29, 1974. Cartwright explained that he exposed himself to enemy fire several times that day in order to rescue wounded personnel, and, in fact, received two wounds himself. He further stated that one of the wounded persons that he had rescued was a high-ranking officer. To effect the rescue, Cartwright killed four enemy personnel in hand-to-hand combat and then carried the wounded officer to safety. Cartwright then led his men in an attack on the enemy position. During this action, Cartwright personally destroyed three bunkers and two mortar teams, killing at least thirty of the enemy. Notwithstanding hiswounds, Cartwright refused any medical treatment until his men had been cared for.

Gary Cartwright also testified as to the ways in which his life had changed as a result of the accident. He stated that prior to the accident, he was an active man who enjoyed hunting, fishing and working on models. Since the accident, he has experienced severe pain and is sometimes barely able to get out of bed. He has been unable to hunt, cannot play with his sons, and is not employable. Cartwright also testified that his relationship with his wife was greatly affected by the accident because he has become impotent. He stated that they no longer sleep in the same bed because it causes him pain when she moves in bed and touches his body. Cartwright also stated that he has lost control of his bladder and bowels and suffers great embarrassment as a result.

In addition, Cartwright testified that he has certain mental problems such as forgetfulness, depression and anger. He shouts at his wife and children and has pushed them away. Cartwright stated that he relies on daily pain medication, and he read for the jury certain entries in a journal that he kept after the accident. These journal entries described his pain, depression, despair, including thoughts of suicide. Cartwright testified further that, at the time of trial, his medical expenses were $136,646.55.

Kenneth Halliburton testified for the plaintiffs that prior to the accident he had been operating his truck 400 to 500 feet behind the Cartwright's vehicle. He described Cartwright's driving as straight down the road. Cartwright was not swerving, and there was no indication that Cartwright had fallen asleep at the wheel. Halliburton described the accident as if Cartwright might be aiming to pull over, but then his truck "jumped off" the ...


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