holding that, even though the plaintiff "had other opportunities * * * to amend the pleadings," the trial court did not abuse its discretion in permitting amendment after trial began, because the opponent "was not prejudiced"
How later courts described this case
- holding that, even though the plaintiff "had other opportunities * * * to amend the pleadings," the trial court did not abuse its discretion in permitting amendment after trial began, because the opponent "was not prejudiced"
- holding that, even though the plaintiff “had other opportunities *** to amend the pleadings,” the circuit court did not abuse its discretion in permitting amendment, because the opponent “was not prejudiced”
- concluding that although cumulative, having the head of safety for the Chicago Transit Authority confirm a list of accidents was not unfairly prejudicial
- pleadings may be amended at any time before final judgment on just and reasonable terms
Written by the judges who cited it.
The opinion
JUSTICE HEIPLE, also dissenting:
This case demonstrates once again the casino-like atmosphere of our tort system. A drunken 46-year-old Korean immigrant whose blood alcohol was 0.341, or three times the legal limit for intoxication under the motor vehicle code, walked off the sidewalk and up the Chicago Transit Authority railroad tracks where he was electrocuted by the so-called third rail which supplies power to the electric trains. At his point of entry, the decedent walked past three warning signs, “DANGER,” “KEEP OUT” and “ELECTRIC CURRENT.” These signs were printed in English which the decedent could not read. With a 0.341 concentration of blood alcohol, however, it is questionable whether it would have mattered if the signs had been printed in Korean or even in pictures. The decedent was virtually blind drunk.
In addition to the signing, sharp triangular shaped boards had been installed between the sidewalk and the third rail to make it extremely difficult and awkward for a person to walk up the tracks. Nonetheless, the decedent walked up the tracks approximately 6V2 feet to the point where the third rail began. There, attempting to urinate, he was electrocuted.
At the time of his death, his yearly gross income including all fringe benefits was approximately $8,700. He had a remaining life expectancy of approximately 28 years. He left surviving a widow and two sons. The jury returned a verdict of $3 million reduced by 50% for the decedent’s own negligence. The net verdict was thus $1.5 million.
As with any tort case, there are two primary elements, namely, liability and damages. As to liability, at the time of this accident, Illinois was operating under the pure form of comparative negligence. That is to say, if a defendant were at fault to any extent, the plaintiff could recover that percent of his damages. In other words, a plaintiff who was 90% negligent on his own behalf could still recover 10% of his damages from a partially culpable defendant. Due to a statutory enactment, however, since November 25, 1986, an injured plaintiff may now recover damages only so long as the percentage of his fault does not exceed 50% of the total. Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1116.
Considering the operative facts, it is clear to this writer that the jury finding of 50% fault on the part of the Chicago Transit Authority is grossly erroneous and warrants reversal on that element alone. It is fair to say that some negligence may be attributable to the CTA since various safety devices could or might have been installed that would have made entry to the track area more difficult. A 10% degree of negligence or thereabouts would be in the range of reasonableness. A finding of a 50% degree of negligence is, as I have indicated, grossly erroneous. Such a finding could only be the result of sympathy, passion, prejudice or ignorance.
Regarding the second element, namely, damages, the jury verdict once again overshot the mark. It fixed the plaintiffs damages at $3 million reduced by 50% for its finding of decedent’s own negligence. The net verdict was thus $1.5 million. The oft-quoted aphorism that figures don’t lie but liars can figure is certainly true. The decedent’s estate and survivors were not damaged to the extent of $3 million. It is quite a simple proposition to puff up a damage verdict to offset its reduction by the comparative negligence percentage. Thus, as in this case, a jury wanting to give a decedent $1.5 million but choosing to find him 50% at fault could very simply just double the damage figure. Whether the jury’s calculations in the instant case were the result of intellectual dishonesty and, hence, corrupt or whether they were simply the result of honest mistakes or poor judgment is a matter of conjecture only and not the controlling issue. That the jury was wrong, however, seems clear.
As to the loss to decedent’s estate, simple multiplication of 28 years of life expectancy times his annual earnings would equal approximately $250,000. If one were to add another $250,000 for loss of society to his family and another $250,000 for the one-third to be paid to the attorney, the total verdict would be in the range of $750,000. Reducing this figure under pure comparative negligence by a 90% fault figure attributable to decedent, a net verdict of $75,000 is produced.
It seems apparent in this case that the bulk of the jury verdict could only be allocated to that concept we call “loss of society.” This is so since it could not possibly be justified on a loss of income basis.
What is loss of society worth? In Illinois, we have chosen to give the jury carte blanche authority to fix this figure. The law falsely pretends that the concept “loss of society” has a quantifiable cash value when it clearly does not. Certainly, no one can deny the reality of the feeling of deprivation upon the loss of a loved one. Loss of society is a real loss which causes real suffering. But such a loss cannot be quantified with a dollar sign. As was observed in 1986 by the West Virginia Supreme Court, “if the measure of damages were the value of a human life then, arguably, no jury verdict could be excessive. The death of a family member *** involves inconsolable grief for which no amount of money can compensate. Counsel’s suggestion that the [family] would not have traded [their child’s] life for $10,000,000 is entirely accurate — but they would also not have traded [their child’s] life for $100,000,000 or even $1,000,000,000.” Roberts v. Stevens Clinic Hospital, Inc. (W. Va. 1986), 345 S.E.2d 791, 800 .
By refusing to recognize any limits on such damage awards, litigants, with the assistance of their attorneys, are turning the court system into a giant gambling casino. Pain, suffering, or the loss of a loved one may produce incalculable wealth if only the person causing the injury is wealthy enough or carries enough insurance.
What we are witnessing here is a vast predatory movement of citizen against citizen, the magnitude of which is beyond calculation. All of this predation is taking place under the form of legal, political and governmental procedures. Though selected individuals are being made rich, most notably the plaintiffs’ personal injury lawyers, society as a whole is crippling itself.
No corporation is large enough, no individual is rich enough, no amount of insurance coverage is high enough to prevent a defendant’s financial destruction in a negligence law suit under existing standards. It is long past time for the courts to recognize that damages such as pain and suffering and loss of society do not have a quantifiable dollar value. If society is to allow compensation for such injuries, then society has a duty to limit recovery to some rule of reasonableness.
While the courts could order remittitur in an appropriate case such as the case we decide today, they have shown no willingness to do so. The only recourse for the public is through action on the part of the legislature with the setting of statutory limits. Action is needed now and is long overdue.
For the reasons given, I respectfully dissent.