Alexandria DRAKEFORD, Individually and as Special Administrator of the Estate of Valentina Nakia Dearring, Deceased, Plaintiff-Appellee and Cross-Appellant,
UNIVERSITY OF CHICAGO HOSPITALS, Illinois Not-for-Profit Corporation, Defendant-Appellant and Cross-Appellee.
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William V. Johnson, David M. Macksey, Garrett L. Boehm, Jr., and Peter R. Ryndak, all of Johnson & Bell, Ltd., of Chicago, for appellant.
Michael W. Rathsack, of Chicago, for appellee.
HALL Justice delivered the judgment of the court, with opinion. Presiding Justice Lampkin concurred in the judgment and opinion. Justice Gordon dissented, with opinion.
[373 Ill.Dec. 639] ¶ 1 This appeal arises from the death and alleged unauthorized burial of plaintiff Alexandria Drakeford's infant daughter, Valentina Nakia Dearring. Plaintiff gave birth to Valentina on March 8, 2003, at defendant University of Chicago Hospitals. Valentina was born with " Persistent Pulmonary Hypertension of the Newborn" (PPHN), a potentially fatal medical condition affecting infants and young children where blood vessels in the lungs constrict, reducing their capacity to deliver oxygen to the blood. Valentina died on April 10, 2003.
¶ 2 On April 6, 2005, plaintiff filed suit against defendant hospital and various [373 Ill.Dec. 640]
medical personnel. Plaintiff originally alleged causes of action for wrongful death and survival based on medical negligence. Following a third amended complaint, the case went to the jury on medical negligence claims and on a count alleging willful and wanton interference with plaintiff's right to possession of her daughter's remains. In the willful and wanton count, plaintiff alleged the defendant hospital caused her daughter's remains to be buried in a mass, unmarked grave without her knowledge or consent and without performing a requested autopsy. The jury rejected the medical negligence claims but returned a verdict for plaintiff and against defendant hospital on the willful and wanton count, awarding her $4.6 million in damages.
¶ 3 The trial court granted defendant hospital's posttrial motion for a remittiur. The amount of damages was reduced to $3 million conditioned upon plaintiff's acceptance of the remittiur. Plaintiff accepted the remittitur and final judgment was entered in her favor on May 6, 2011. Defendant filed a timely notice of appeal. Plaintiff cross-appealed, challenging the remittitur. For the reasons that follow, we affirm.
¶ 4 ANALYSIS
¶ 5 Defendant hospital raises a number of issues on appeal, none of which warrant reversal of the jury's verdict. We address each issue in turn. Defendant hospital first contends that its conduct in arranging a hospital burial for plaintiff's infant daughter did not rise to the level of willful and wanton conduct and therefore the trial court erred in denying its motion for a judgment notwithstanding the verdict.
¶ 6 A decision on a motion for judgment notwithstanding the verdict is reviewed de novo. Snelson v. Kamm, 204 Ill.2d 1, 42, 272 Ill.Dec. 610, 787 N.E.2d 796 (2003). Defendant hospital was entitled to a judgment notwithstanding the verdict only if it could show that the evidence, when considered in a light most favorable to plaintiff, so overwhelmingly favored the hospital that no verdict against it could ever stand.
See Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967) (a judgment notwithstanding the verdict is properly entered only in those limited cases where " all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." ). Our courts have recognized that this is a difficult standard to meet. Jones v. Chicago Osteopathic Hospital, 316 Ill.App.3d 1121, 1125, 250 Ill.Dec. 326, 738 N.E.2d 542 (2000); Knauerhaze v. Nelson, 361 Ill.App.3d 538, 548, 296 Ill.Dec. 889, 836 N.E.2d 640 (2005). Defendant hospital did not meet the standard in this case.
¶ 7 " In ruling on a motion for a judgment notwithstanding the verdict, a court does not weigh the evidence, nor is it concerned with the credibility of the witnesses * * *." Board of Trustees of Community College District No. 508, County of Cook v. Coopers & Lybrand, 208 Ill.2d 259, 274, 281 Ill.Dec. 56, 803 N.E.2d 460 (2003). It " is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses' testimony." Maple v. Gustafson, 151 Ill.2d 445, 452, 177 Ill.Dec. 438, 603 N.E.2d 508 (1992). In ruling on a motion for a judgment notwithstanding the verdict, an appellate court, like the trial court, must be careful not to " ‘ usurp the function of the jury and substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence which did not greatly preponderate either way.’ " [373 Ill.Dec. 641]
McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 132, 241 Ill.Dec. 787, 720 N.E.2d 242 (1999) (quoting Maple, 151 Ill.2d at 452-53, 177 Ill.Dec. 438, 603 N.E.2d 508). Judgment notwithstanding the verdict is not appropriate if " reasonable minds might differ as to inferences or conclusions to be drawn from the facts presented." Pasquale v. Speed Products Engineering, 166 Ill.2d 337, 351, 211 Ill.Dec. 314, 654 N.E.2d 1365 (1995).
¶ 8 Defendant hospital claims the trial court erred in denying its motion for a judgment notwithstanding the verdict on the willful and wanton count, arguing the evidence was not sufficient to support a finding that the actions of its employee, Ms. Maybleine Griggers, was willful and wanton. Ms. Griggers was employed as an " expiration coordinator." She was " charged with the responsibility of managing all of the paperwork that was necessary if someone died in the hospital." She was required to make sure that all of the appropriate paperwork and documents were accurately prepared and preserved.
¶ 9 Plaintiff contends that Ms. Griggers' failure to follow mandatory hospital policies and procedures concerning the handling of deceased patients' remains caused her daughter's remains to be buried in a mass, unmarked grave without her knowledge or consent and without performing a requested autopsy. Plaintiff alleges these failures amounted to willful and wanton misconduct. She maintains that Ms. Griggers' misconduct made it impossible to give her daughter a proper burial and to have her daughter's remains buried in the family plot.
¶ 10 There is no separate and independent tort of willful and wanton misconduct. Ziarko v. Soo Line R.R. Co., 161 Ill.2d 267, 274, 204 Ill.Dec. 178, 641 N.E.2d 402 (1994). Willful and wanton misconduct encompasses a range of misconduct, covering the area between negligence and intentional wrongdoing, sharing many characteristics with acts of ordinary negligence.
See Pomaro v. Community Consolidated School District 21, 278 Ill.App.3d 266, 269, 214 Ill.Dec. 872, 662 N.E.2d 438 (1995) (" wilful and wanton conduct may lie anywhere between the parameters of intentional misconduct and mere negligence" ); Sparks v. Starks, 367 Ill.App.3d 834, 837, 305 Ill.Dec. 770, 856 N.E.2d 575 (2006) (" willful and wanton misconduct is essentially an aggravated form of negligence, regarded as a hybrid between conduct considered negligent and conduct considered intentionally tortious" ).
¶ 11 Whether certain conduct rises to the level of willful and wanton misconduct depends upon the facts of each case. Giers v. Anten, 68 Ill.App.3d 535, 539, 24 Ill.Dec. 878, 386 N.E.2d 82 (1978);
see Ziarko, 161 Ill.2d at 275-76, 204 Ill.Dec. 178, 641 N.E.2d 402 (" [u]nder the facts of one case, willful and wanton misconduct may be only degrees more than ordinary negligence, while under the facts of another case, willful and wanton acts may be only degrees less than intentional wrongdoing." ). The determination of this issue is generally a question of fact for the jury to decide. Oelze v. Score Sports Venture, LLC, 401 Ill.App.3d 110, 123, 339 Ill.Dec. 596, 927 N.E.2d 137 (2010).
¶ 12 The conduct at issue in this case concerns alleged " reckless" willful and wanton misconduct. Reckless willful and wanton conduct is defined as a course of action that shows an utter indifference to or conscious disregard for the safety or property of others. Pfister v. Shusta, 167 Ill.2d 417, 421-22, 212 Ill.Dec. 668, 657 N.E.2d 1013 (1995). Reckless willful and wanton misconduct may be proven where there is a " ‘ failure, after knowledge of impending danger, to exercise ordinary care to prevent’ the danger, or a ‘ failure to [373 Ill.Dec. 642]
discover the danger through * * * carelessness when it could have been discovered by the exercise of ordinary care.’ " Ziarko, 161 Ill.2d at 274, 204 Ill.Dec. 178, 641 N.E.2d 402 (quoting Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583, 69 N.E.2d 293 (1946)).
¶ 13 In the instant case, the trial court instructed the jury on willful and wanton conduct as follows: " When I use the expression, quote, willful and wanton conduct, end quote, I mean a course of action which shows an utter indifference to or conscious disregard for the safety of others. It was the duty of the defendant University of Chicago Hospitals under the willful and wanton count of the complaint before and at the time of the occurrence to refrain from willful and wanton conduct which would endanger the plaintiff's right to possession of her daughter's remains."
¶ 14 At common law, there is no property right in a dead body. In re Estate of Medlen, 286 Ill.App.3d 860, 864, 222 Ill.Dec. 220, 677 N.E.2d 33 (1997). However, the next of kin have a quasi-property right to possession of a decedent's remains in order to make appropriate disposition thereof. Rekosh v. Parks, 316 Ill.App.3d 58, 68, 249 Ill.Dec. 161, 735 N.E.2d 765 (2000); Leno v. St. Joseph Hospital, 55 Ill.2d 114, 117, 302 N.E.2d 58 (1973). " In Illinois, this right has been construed to give the next of kin the right to determine the time, manner, and the place of burial." In re Estate of Medlen, 286 Ill.App.3d at 864, 222 Ill.Dec. 220, 677 N.E.2d 33. " To state a cause of action based on the right of the next of kin to possession and preservation of the body of a decedent, plaintiffs must demonstrate by specific facts that defendant's conduct was wilful and wanton." Kelso v. Watson, 204 Ill.App.3d 727, 731, 150 Ill.Dec. 172, 562 N.E.2d 975 (1990).
¶ 15 Viewing the evidence in a light most favorable to plaintiff, as we must in considering defendant hospital's motion for judgment notwithstanding the verdict, we find there was sufficient evidence to support the jury's verdict on the willful and wanton misconduct count. Conflicting evidence was presented on the primary issue of whether plaintiff consented to allow defendant hospital to handle the disposition of her daughter's remains. Plaintiff testified she never gave defendant hospital consent to release her daughter's remains or to dispose of the remains. In contrast, Ms. Griggers testified she made repeated telephone calls to plaintiff in the eight days following the infant's death and that the ...