J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc., CARTIN-M

• Decision Date: 16 June 1987
• Docket Number: Nos. 62660,CARTIN-M,62803,s. 62660
• Parties: , 114 Ill.Dec. 105, Prod.Liab.Rep. (CCH) P 11,427, Prod.Liab.Rep. (CCH) P 11,615 J.I. CASE COMPANY, Appellant, v. MccAULIFFE PLUMBING & HEATING, INC., Appellee. Steven DUKES, Appellant, v. J.I. CASE COMPANY, Appellee.
• Court: Illinois Supreme Court

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516 N.E.2d 260 118 Ill.2d 447, 114 Ill.Dec. 105,
Prod.Liab.Rep. (CCH) P 11,427,
Prod.Liab.Rep. (CCH) P 11,615 J.I. CASE COMPANY, Appellant,
v.
McCARTIN-McAULIFFE PLUMBING & HEATING, INC., Appellee.
Steven DUKES, Appellant,
v.
J.I. CASE COMPANY, Appellee. Nos. 62660, 62803. Supreme Court of Illinois. June 16, 1987.
As Modified on Denial of Rehearing Dec. 21, 1987.

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[114 Ill.Dec. 106] [118 Ill.2d 450] John E. Guy, Chairman, Amicus Curiae Committee Illinois Ass'n of Defense Trial Counsel, Chicago, for amicus curiae Illinois Ass'n of Defense Trial Counsel (IDC); Querrey, Harrow, Gulanick & Kennedy, Ltd., Chicago, David B. Mueller, Cassidy & Mueller, Peoria, of counsel.

Craig J. Causeman, Howard W. Small, Thomas, Mamer & Haughey, Champaign, for McCartin-McAuliffe Plumbing & Heating, Inc.

Heyl, Royster, Voelker & Allen, Urbana, for J.I. Case Co.; James C. Kearns, Bruce L. Bonds, of counsel.

Phebus, Tummelson, Bryan & Knox, Urbana, for appellant; Joseph W. Phebus, Jeffrey W. Tock, of counsel.

Justice MILLER delivered the opinion of the court:

Steven Dukes brought a product liability action against J.I. Case Company for injuries he sustained while working with machinery manufactured by Case. Case in turn brought a third-party action for contribution from Dukes' employer, McCartin-McAuliffe Plumbing & Heating, Inc. (McCartin). Following a jury trial in the circuit court of Champaign County, Dukes was awarded a net amount of $148,750 in compensatory damages in his product liability action. In Case's third-party action for contribution, the jury found McCartin liable for a little more than half of the reduced award. Dukes and McCartin appealed; with one justice dissenting, the appellate court affirmed the judgment in Dukes' action, on the condition that Case consent to an additur, and reversed the judgment against McCartin on Case's claim for contribution. (137 Ill.App.3d 562, 91 Ill.Dec. 710, 483 N.E.2d 1345.) We allowed

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[114 Ill.Dec. 107] Dukes' and Case's petitions for leave to appeal (103 Ill.2d R. 315(a)) and consolidated the matters for oral argument and disposition.

[118 Ill.2d 451] The accident at issue occurred on December 1, 1978. On that day Dukes was employed by McCartin on a crew that was installing underground gas pipes in Danville for the Illinois Power Company. The work crew was using a Fleetline 40 + 4 trencher with a Hydra-Borer attachment; both pieces of equipment were manufactured by Case. The Hydra-Borer was used to drill small-diameter holes in the earth. As Dukes was attempting to climb out of the trench in which he was working, he was severely injured when the rotating auger, or rod, of the boring machine caught his clothing. The accident resulted in the traumatic amputation of one testicle and the loss of skin on the other testicle and on his penis; eventually his other testicle was surgically removed.

Dukes brought a product liability action against Case, seeking compensatory and punitive damages. Dukes asserted that the trenching machine, with the borer attachment, was defective because it was not equipped with "anchor guides," which could be used to direct the course of the auger. At trial the parties presented extensive evidence on the work procedures followed by Dukes and other members of the McCartin crew. The parties also introduced evidence on the availability of accessory equipment that could have been used with the trencher and borer. Both Dukes and Case presented expert testimony regarding the safety of the machinery. At the conclusion of the trial, the court directed a verdict for Case on the punitive damages count. The count seeking compensatory damages was decided by the jury, which found Case liable and determined the total amount of Dukes' damages to be $175,000. The jury reduced that sum by 15%, however, because of Dukes' misuse or assumption of the risk, leaving a net award of $148,750.

Case brought an action against McCartin under "An Act in relation to contribution among joint tortfeasors" (Ill.Rev.Stat.1985, ch. 70, pars. 301 to 305) (Contribution[118 Ill.2d 452] Act). Case asserted three grounds for recovery from McCartin: negligence, misuse, and assumption of the risk. Finding against McCartin, the jury determined that McCartin was responsible for 52.95% of the damage award and Case for 47.05% of the award. Case had also sought contribution from Illinois Power, but the jury found in favor of the latter company.

Dukes appealed the judgment in his action against Case, and McCartin appealed the judgment on Case's claim for contribution. In Dukes' appeal, the appellate court agreed with the trial judge that the evidence in this case did not warrant an award of punitive damages. The appellate court agreed with Dukes, however, that Case had failed to establish its defenses of misuse and assumption of the risk. But the court believed that the jury's consideration of those defenses would have affected the apportionment of liability between the two parties, Dukes and Case, rather than the computation of damages. Accordingly, the appellate court believed that an additur by Case equal to the 15% reduction made by the jury from Dukes' award would be an appropriate alternative to a new trial. With respect to Case's third party action against McCartin for contribution, the appellate court rejected all three grounds on which Case sought to base its claim. The court concluded that negligence could not be used as the basis for a contribution claim by a party sued in strict liability, that Case had not properly pleaded an action for misuse, and that the evidence was insufficient to establish McCartin's assumption of the risk. Accordingly, the appellate court remanded Case's contribution action to the circuit court for entry of a judgment in McCartin's favor.

I

In his appeal to this court, Dukes raises three issues. Dukes first argues that the trial judge erred in dismissing[118 Ill.2d 453] the count in his complaint seeking punitive damages from Case. He also contends that the jury's determination of damages was inadequate. Finally, he argues that the appellate

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[114 Ill.Dec. 108] court was mistaken in attempting to cure the trial errors through the device of an additur.

Dukes first argues that the trial court erred in taking from the jury that part of his complaint seeking punitive damages from Case. Applying the standard proposed by Dukes--whether the manufacturer's conduct evinced flagrant disregard for public safety (see Moore v. Remington Arms Co. (1981), 100 Ill.App.3d 1102, 56 Ill.Dec. 413, 427 N.E.2d 608)--the appellate court did not believe that the evidence in this case warranted an award of punitive damages.

Dukes based his product liability action on Case's failure to provide anchor guides as standard equipment on the machinery, and on its failure to provide a covering for the rotating auger. In seeking an award of punitive damages, Dukes alleged that Case knew that the failure to...