Gorlikowski v. Tolbert

Decision Date12 April 1995
Docket NumberNo. 94-3150,94-3150
Citation52 F.3d 1439
PartiesMarian GORLIKOWSKI, Plaintiff-Appellee, v. Richard B. TOLBERT, II and J.W. Express, Incorporated, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Stephen A. Tyler, Friedrich, Bomberger, Tweedle & Blackmun, Highland, IN, Joseph A. Power, Jr., Thomas Michael Power (argued), Power, Rogers & Smith, Chicago, IL, for plaintiff-appellee.

Eric L. Kirschner, Scott A. Bearby, Beckman, Kelly & Smith, Hammond, IN, Larry L. Chubb (argued), Valparaiso, IN, for defendants-appellants.

Before MANION and ROVNER, Circuit Judges, and NORGLE, District Judge. *

MANION, Circuit Judge.

A jury awarded Marian Gorlikowski $1,425,000 for injuries received when a semi-tractor trailer driven by Richard B. Tolbert, II, for J.W. Express, Inc., struck Gorlikowski's vehicle. Tolbert and J.W. Express appeal, alleging that the jury was improperly instructed and that the verdict is excessive. We affirm.

I. Facts

On August 23, 1991, Gorlikowski was driving a tractor trailer down Interstate 65 toward Lafayette, Indiana, when he noticed that his engine's temperature gauge was rising. At first, the gauge rose fairly slowly and Gorlikowski thought he could reach his destination without stopping. But when the temperature began rising at a faster rate, he decided to stop and check his engine. Gorlikowski pulled into the emergency lane, put on his hazard lights, and stopped the truck.

Upon inspecting his engine, Gorlikowski noted a leaking hose. He retrieved some tape from the cab, returned to the front of his truck, and began to patch the hose. In order to do so, Gorlikowski climbed onto his front tire and leaned into the engine compartment where he perched with a large part of his body laying over the engine. While Gorlikowski was making these repairs, a truck driven by Tolbert for J.W. Express (referred to collectively as "Tolbert") and moving at about 60 m.p.h. sideswiped Gorlikowski's truck. Gorlikowski was found a considerable distance from his vehicle. He suffered injuries to his right knee, jaw and teeth, as well as other bruises and contusions.

Gorlikowski filed suit against Tolbert, alleging that Tolbert's negligence caused the collision and his damages. Tolbert answered that Gorlikowski was over 50% negligent for the accident and should recover nothing. After discovery, the parties filed a pretrial order. In that pre-trial order, which required the parties to disclose their contentions, Tolbert stated:

[Tolbert] had only seconds to react once he was upon [Gorlikowski's truck] and just as he attempted to avoid the parked vehicle, his passenger side mirror and front right corner of his trailer impacted the left rear corner of the [Gorlikowski's] trailer causing [Gorlikowski] to fall from the left front tire to the ground.

The case went to trial in this posture, with the parties disputing fault and damages. We describe their arguments in very general terms below because great detail is not required.

At trial, Gorlikowski claimed that Tolbert's negligence caused the collision. More specifically, his proofs and questioning were designed to show that Tolbert was negligent because he failed to leave a safe distance between himself and other vehicles, he was traveling at an excessive speed given traffic conditions, and he failed to stop his truck before the collision. Gorlikowski also presented evidence that Tolbert might have been driving for over eight hours. In addition, he submitted evidence that another trucker traveling with Tolbert warned him that Gorlikowski's vehicle was in the emergency lane, but Tolbert did not hear that warning. Finally he offered evidence that Tolbert did not even see Gorlikowski's trailer until about two seconds before impact. Gorlikowski argued that Tolbert had been driving a long time, was tired and not paying attention, and, as a result, struck his truck while traveling at about 60 m.p.h. According to Gorlikowski, the force of that impact threw him through the air and he landed a considerable distance from his truck.

Tolbert countered that Gorlikowski's own negligence caused the collision. More specifically, Tolbert's proofs and questions were designed to show that Gorlikowski was negligent because he left a portion of his trailer in the travel lane, and he failed to put out the reflective triangles that serve as a hazard warning for other motorists. Tolbert also claimed that Gorlikowski was negligent because he failed to pull over sooner. According to Tolbert, if Gorlikowski had pulled over sooner he would have been able to pull his truck off onto a grassy area bordering the emergency lane, and this would have reduced the risk of an accident. Instead he pulled over at the beginning of a bridge where the shoulder width was restricted by a barrier.

The parties also disputed the nature and extent of Gorlikowski's injuries. Several of Gorlikowski's treating doctors testified. Taken together their testimony provided evidence that Gorlikowski's knee injury was serious and painful and would permanently limit his mobility. Over time it would become progressively worse, and would eventually require a knee replacement. Gorlikowski also submitted his past medical expenses, which included costs for five operations on his knee. Evidence showed that future medical costs, such as the cost of a required knee replacement, would be considerable. Gorlikowski also introduced evidence that he would neither be able to return to his work as a mechanic and truck driver, nor could he take any job which required extended periods of walking, standing, sitting, or frequent stair-climbing, any of which would put excessive stress on his knee. Finally, Gorlikowski testified about the impact which the injury had upon his lifestyle. Among other things, Gorlikowski noted that the injury would preclude him from playing soccer with his children. He made this comment even though his wife and children were still in Poland, waiting for him to bring them over to the United States.

Although Tolbert disputed the nature and extent of Gorlikowski's injuries, he did not introduce any evidence about those injuries or Gorlikowski's future employment prospects. Instead Tolbert limited himself to the cross-examination of Gorlikowski's experts. The general thrust of Tolbert's cross-examination of various witnesses was that Gorlikowski's injuries were fairly marginal so that he would be able to perform a wide variety of functions in about six months, and he could get another job. Tolbert's cross-examination of Gorlikowski focused on the same theme; it was designed to show that Gorlikowski's injuries would have a fairly minimal effect on his lifestyle. To this end Tolbert asked Gorlikowski where his family was currently living, and Gorlikowski testified that his wife and children were still in Poland, his homeland.

During closing argument, Gorlikowski argued that Tolbert's negligence was responsible for the collision which threw him off his truck causing his injuries, that his injuries were serious and would become progressively worse, and that he had no real chance of finding a job given the limitations resulting from his injuries. Gorlikowski asked the jury to compensate him for his past and future medical expenses, lost wages and pain and suffering. Gorlikowski also accused Tolbert of prejudice, arguing that Tolbert had made his immigrant status an issue in the hopes that the jury would not fully compensate him for his injuries because he was not an American citizen. Tolbert objected to this comment, saying it was a "little overboard," but the judge overruled that objection.

For the most part, Tolbert used his closing to argue that the accident was Gorlikowski's fault because he pulled over at a narrow part of the highway, did not pull his whole trailer off the highway, and did not put out his reflective triangles. He also argued that Gorlikowski's injuries were not really serious and he could find work with little difficulty after six months or so. Also, Tolbert briefly argued that Gorlikowski's injuries might have been caused when a second truck's after-draft blew him to the ground, although he noted that this argument "hasn't really been addressed." Here, he asserted that Gorlikowski had not been thrown from the truck by the impact of the collision, but rather, was blown off his truck moments later by another truck's after-draft. Tolbert's "windfall" theory was raised for the first time in his closing argument; it was not presented in his answer, in the pretrial order or, for that matter, in his opening argument. 1

After closing argument, the judge instructed the jury. Significant here is Instruction Number 14. That instruction reads:

On August 23, 1991, the plaintiff, Marian Gorlikowski, was driving a semi-tractor trailer southbound on Interstate 65 when his truck began to overheat. The plaintiff pulled his vehicle off the road onto the shoulder area. He then stood on the front tire in order to put water into the radiator. The defendant, Richard Tolbert, II, who was an employee of the defendant, J.W. Express, Inc., also was driving a semi-tractor trailer southbound on Interstate 65 in the right lane. Tolbert's vehicle struck the plaintiff's parked vehicle, the impact of which caused the plaintiff to fall from the tire to the ground, severely injuring him.

The plaintiff contends that the defendants were negligent in that they breached their duty to exercise reasonable and ordinary care in the operation of a motor vehicle. The defendants deny that they were negligent and contend that the plaintiff's injuries were the result of his own negligence. The defendants also dispute the nature and extent of the plaintiff's injuries. [Emphasis supplied.]

After the jury left the room to deliberate, Tolbert objected to the last sentence in the first paragraph of Instruction 14, on the grounds that the facts described in...

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