In the
United States Court of Appeals
For the Seventh Circuit
No. 16‐3931
EDIN KARAHODZIC, Individually and
as Personal Representative of the Es‐
tate of Hasib Karahodzic,
Plaintiff‐Appellee,
v.
JBS CARRIERS, INC. and CHRISTOPHER
THOMPSON, Temporary
Administrator of the Estate of
Orentio Thompson,
Defendants‐Appellants.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:12‐cv‐01040‐DRH‐RJD — David R. Herndon, Judge.
ARGUED OCTOBER 24, 2017 — DECIDED FEBRUARY 7, 2018
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit
Judges.
2 No. 16‐3931
ROVNER, Circuit Judge. Hasib Karahodzic, a commercial
truck driver for E.J.A. Trucking, Inc., was killed when his
vehicle collided with a truck driven by Orentio Thompson, an
employee of JBS Carriers, Inc.1 A jury trial on the claims
brought by Hasib’s estate and by his son Edin, individually,
resulted in a judgment in favor of the plaintiffs. The defendants
appeal and we affirm.
I.
In the early morning hours of March 17, 2012, Thompson
was driving his tractor/trailer westbound on Interstate 70 when
he noticed a malfunctioning light blinking on the side of his
trailer. Just past the Brownstown, Illinois exit, he activated his
right turn signal and pulled onto the shoulder of the highway.
Once stopped, he turned on his four‐way flashers and then
walked around his truck to inspect the lights. He unplugged
and then reattached the electrical connection between the
tractor and the trailer. That resolved the errantly blinking light
and he returned to the cab. With the four‐way flashers still on,
he had just reentered the right lane of the highway and was
traveling between fifteen and eighteen miles an hour when
Hasib crashed into the back of his trailer. Hasib had just come
1
Although Mr. Thompson survived the crash, he died unexpectedly during
the litigation of this case. His estate is represented by his son, Christopher.
When we refer to “Thompson,” we mean Orentio. Edin Karahodzic is the
son of Hasib and has sued the defendants as the representative of his
father’s estate and in his capacity as an individual. Claims have been
brought on behalf of several members of the Karahodzic family (sons Edin
and Selvedin, daughter Edina, and wife Esma) and we will refer to each
member of the Karahodzic family by his or her first name for the sake of
clarity.
No. 16‐3931 3
around a large curve in the road when he encountered Thomp‐
son’s slow‐moving truck. The impact from the crash killed
Hasib instantly and set his truck on fire.
In a tragic coincidence, Hasib’s son, Edin, who also drove
for E.J.A. Trucking, was also driving westbound on Interstate
70 that morning. Shortly after the crash, Edin came upon the
scene and saw that his father’s truck was on fire. He parked in
front of Thompson’s truck and ran to help his father. He saw
his father in the truck cab, and believing him to still be alive,
attempted to pull him from the cab and put out the fire. Edin
suffered burns to his hands and face from his unsuccessful
attempt to rescue his father, and watched as his father’s body
burned. He called his brother Selvedin to tell him what had
happened. Selvedin drove eighty miles to the scene of the
accident and also saw his father’s burned body. The brothers
then drove home to tell their mother, Esma, and sister, Edina,
what had happened.
Every member of the Karahodzic family suffered emotional
trauma from Hasib’s death. Esma’s emotional reaction on
hearing of her husband’s death was so severe that she had to
be taken to a hospital. As a result of Major Depressive Disorder
brought on by Hasib’s death, Esma never returned to work.
Edin suffered Post Traumatic Stress Disorder as a result of his
father’s death and his failed attempt to rescue him. Hasib’s
daughter, Edina, attempted suicide at her father’s grave near
the first anniversary of his death. Selvedin, who is also a truck
driver, had constant reminders of his father’s death when he
drove past the location of the accident once or twice a week.
Family dynamics changed and relationships suffered as
Hasib’s family struggled to move forward after his death.
4 No. 16‐3931
JBS Trucking initiated the litigation, suing Hasib’s estate
and E.J.A. Trucking to recover for the damage to JBS Truck‐
ing’s trailer and its contents. E.J.A. Trucking counterclaimed
against JBS Trucking for damage to E.J.A. Trucking’s trailer
and its contents. Edin, as personal representative of his father’s
estate, also counterclaimed against JBS Trucking and brought
a third‐party complaint against Thompson seeking damages
for Esma, Selvedin, Edina and himself under the Illinois
Wrongful Death Act, 740 ILCS 180/1 et seq. Edin also brought
a claim in his individual capacity against JBS Trucking and
Thompson under the Illinois rescue doctrine to recover for his
injuries resulting from his attempt to rescue his father. In
response to Edin’s individual claim, the defendants each
asserted a counterclaim against Hasib’s estate pursuant to the
Illinois Joint Tortfeasor Contribution Act, 740 ILCS 100/1 et seq.
The parties settled some of the claims before trial, and certain
claims were dismissed with prejudice as a result. The court
then granted a joint motion to realign the parties so that court
records would reflect that Edin Karahodzic, individually and
Edin Karahodzic, as personal representative of the estate were
now the plaintiffs and JBS Carriers and Thompson were now
the defendants.
A nine‐day jury trial resulted in a verdict in favor of the
plaintiffs on both claims. On the wrongful death claim, the jury
attributed fifty‐five percent of the fault to Thompson and JBS
Carriers, and forty‐five percent to Hasib Karahodzic. The jury
accordingly reduced its $5,000,000 damage award by forty‐five
percent, awarding the estate damages in the amount of
$2,750,000. The jury awarded Edin Karahodzic $625,000 on his
individual rescue doctrine claim. The defendants appeal.
No. 16‐3931 5
II.
On appeal, the defendants first assert that the court
committed reversible error in refusing to give an Illinois
pattern jury instruction on the duty to mitigate damages, and
in giving instructions related to “careful habits” and “exigent
circumstances.” The defendants also argue that the court
should have apportioned the award given to Edin personally
on his rescue doctrine claim by the same percentages that the
jury used in setting the estate’s damages on the wrongful death
claim. The defendants further maintain that the court erred
when it allowed the jury to award Esma’s lost earnings as
damages under the Wrongful Death Act. And finally, the
defendants contend that they were denied a fair trial due to
certain evidentiary rulings made by the trial court.2
2
We review the district court’s evidentiary rulings for abuse of discretion.
Reed v. Freedom Mortg. Corp., 869 F.3d 543, 548 (7th Cir. 2017). The defen‐
dants complain that some of the expert testimony regarding the collision
was cumulative, and that one expert was erroneously allowed to testify on
“closing speed,” a prejudicial matter on which he had not previously
disclosed his opinion. “As a general rule, errors in admitting evidence that
is merely cumulative of properly admitted evidence are harmless.” Jordan
v. Binns, 712 F.3d 1123, 1138 (7th Cir. 2013). The defendants have failed to
demonstrate any unfair prejudice from the district court’s decision to allow
testimony on the same topic from experts with differing areas of expertise.
Holmes v. Elgin, Joliet & Eastern Ry. Co., 18 F.3d 1393, 1397 (7th Cir. 1994)
(admission of cumulative evidence does not warrant reversal absent a
showing of prejudice). The jury was instructed to ignore the “closing speed”
testimony, and juries are presumed to follow limiting and curative
instructions. Sanchez v. City of Chicago, 700 F.3d 919, 932 (7th Cir. 2012)
(courts generally presume that juries follow instructions to disregard
objectionable evidence). We find no abuse of discretion in the district court’s
(continued...)
6 No. 16‐3931
A.
We consider first whether the trial court erred by refusing
to give the Illinois pattern instruction on the plaintiffs’ duty to
mitigate damages. According to the defendants, Illinois
Supreme Court Rule 239(a) dictates that the pattern instruction
“shall be used” unless the court determines that it does not
accurately state the law. The defendants contend that, by
refusing to follow Rule 239(a), the trial court erroneously took
from the jury the question of whether the Karahodzic family
complied with their legal duty to mitigate their damages. The
defendants also complain that they were “denied the opportu‐
nity to argue in closing” that the family had a duty to mitigate
their damages and could not recover damages proximately
caused by their failure to mitigate.
There are a number of problems with this argument. First,
federal district courts sitting in diversity are bound by state
substantive law but not by state court procedural rules. Erie
R.R. v. Tompkins, 304 U.S. 64, 78–79 (1938); Wallace v.
McGlothan, 606 F.3d 410, 419 (7th Cir. 2010). The Illinois rule
that mandates the use of Illinois pattern instructions is proce‐
dural, not substantive. Stollings v. Ryobi Techs., Inc., 725 F.3d
753, 768–69 (7th Cir. 2013) (in a diversity action, we look to
state law to determine whether the instruction properly stated
the substantive law but federal law governs whether the
instruction was sufficiently clear); Beul v. ASSE Int’l, Inc., 233
F.3d 441, 449 (7th Cir. 2000) (“Rules of general applicability
2
(...continued)
evidentiary rulings and will not address this issue further.
No. 16‐3931 7
and purely managerial character governing the jury, such as
the form in which a civil jury is instructed, are quintessentially
procedural for purposes of the Erie rule.”). In other words,
“state law determines the content of jury instructions” and
federal law governs “the manner in which instructions are
requested and given.” In re Air Crash Disaster Near Chicago, Ill.
on May 25, 1979, 701 F.2d 1189, 1199 (7th Cir. 1983). See also
Stutzman v. CRST, Inc., 997 F.2d 291, 293 (7th Cir. 1993) (“In a
diversity case, federal law guides our review of jury instruc‐
tions.”). So state law governs whether the instructions were
correct statements of Illinois law on the mitigation of damages,
but the particular wording was within the discretion of the
district court judge and our review is governed by federal
standards. Ryobi, 725 F.3d at 768.
Under those federal standards, we review de novo whether
the jury instructions stated the law correctly, affording the
district court substantial discretion as to the precise wording of
the instructions so long as the final result, read as a whole,
completely and correctly states the law. Ryobi, 725 F.3d at 768.
See also Paldo Sign & Display Co. v. Wagener Equities, Inc., 825
F.3d 793, 796 (7th Cir. 2016) (we review jury instructions de
novo to determine whether they fairly and accurately summa‐
rized the law). The trial court’s decision to give a particular
instruction is reviewed for an abuse of discretion. Paldo Sign,
825 F.3d at 796. We reverse only if the instructions, taken as a
whole, misled the jury. Paldo Sign, 825 F.3d at 796; United States
v. Curtis, 781 F.3d 904, 907 (7th Cir. 2015). Thus any argument
that the court committed reversible error simply by refusing to
follow Illinois Supreme Court Rule 239, a procedural rule, is
foreclosed by the Erie doctrine.
8 No. 16‐3931
The second problem with the defendants’ argument is that
the trial court did in fact instruct the jury on the issue of the
duty to mitigate and there is nothing erroneous or misleading
about the wording of the instructions given. Although the
defendants failed to mention the mitigation instructions given
by the court in their opening brief, and even failed, until the
reply brief, to give us the supposedly critical language of the
pattern instruction, there is no meaningful difference between
the two. The pattern instruction tells the jury that, in deciding
the amount of money needed to compensate a plaintiff, “you
are to consider that an injured person must exercise ordinary
care to obtain medical treatment. Damages caused by a failure
to exercise such care cannot be recovered.” The trial court gave
two instructions regarding mitigation, one for the estate’s claim
on wrongful death, and one for Edin’s rescue doctrine claim.
Except for accounting for multiple plaintiffs in the wrongful
death claim, the instructions are identical and we quote here
the instruction given for Edin’s rescue claim:
Defendants argue in the claim of Edin Karahodzic
that the compensation sought by him must be
reduced by his failure to obtain medical treatment.
If you find that Edin Karahodzic did not take rea‐
sonable actions to reduce his damages, and Edin
Karahodzic would have reasonably been able to
reduce his damages by obtaining medical treatment,
you should reduce any amount you might award
Edin Karahodzic by the amount you unanimously
determine was impacted by Edin Karahodzic not
taking reasonable actions to reduce his damages by
the failure to obtain medical treatment. Defendants
No. 16‐3931 9
must prove both the reduction should be made and
its amount.
R. 167‐2. Thus the jury was informed that it should reduce the
amount it awarded to Edin if he failed to take reasonable
actions to reduce his damages and if he could have reasonably
reduced his damages by obtaining medical treatment. This is
no different from telling the jury that Edin could not recover
damages caused by a failure to take ordinary care to obtain
medical treatment. The court declined to give the defendants’
pattern instruction because the substance was covered by these
other instructions. There was no abuse of discretion in choos‐
ing one instruction over the other when both accurately stated
the law.
The third problem is that the defendants fail to explain
what is missing from the instruction given, and complain
primarily that the given instruction referred to defendants’
“argument” that the plaintiffs failed to mitigate rather than the
plaintiffs’ legal duty to mitigate. But there is nothing mislead‐
ing in characterizing the issue as being raised by the defen‐
dants. Failure to mitigate is an affirmative defense in Illinois,
and the defendants bore the burden of proof. Rozny v. Marnul,
250 N.E.2d 656, 666 (Ill. 1969). The duty to mitigate was spelled
out by the directive to reduce Edin’s damages if he could have
avoided the harm by seeking medical care and failed to do so.
See Amalgamated Bank of Chicago v. Kalmus & Assocs., 741 N.E.2d
1078, 1086 (Ill. App. Ct. 2000) (the duty to mitigate imposes a
duty on the injured party to exercise reasonable diligence and
ordinary care in attempting to minimize his damages after
injury has been inflicted). The defendants’ proposed instruc‐
10 No. 16‐3931
tion added nothing and the court acted within its discretion in
declining to give a duplicative instruction.
Finally, the defendants were not, in fact, deprived of an
opportunity to argue about the plaintiffs’ duty to mitigate in
their closing argument. The court did not prohibit the defen‐
dants from making that argument and the defendants argued
the issue in closing. Specifically, the defendants argued that the
jury must take mitigation into account in determining dam‐
ages, that the plaintiffs are under an obligation to seek medical
treatment, that treatments are available for Edin’s post‐
traumatic stress disorder, and that Edin and his siblings had
not sought treatment that could have made them better. The
defendants also argued that Edin’s damages for his rescue
claim should be limited to $50,000 given his failure to mitigate.
In sum, the jury was adequately instructed and the defendants
argued the mitigation issue to the jury. There is no reversible
error related to the court’s refusal to give the pattern instruc‐
tion.
B.
The defendants next argue that the “careful habits” and
“exigent circumstances” instructions misled and confused the
jury, and did not address any issue raised by the evidence
presented at trial. We begin with the “careful habits” instruc‐
tion. The jury was instructed that if there was evidence tending
to show that Hasib was a person of careful habits, the jury
could infer that Hasib was “in the exercise of ordinary care for
his own safety and the safety of others at and before the time
of the occurrence, unless the inference is overcome by other
evidence.” R. 167‐3. In Illinois, the plaintiff in a personal injury
No. 16‐3931 11
action has the burden of proving that the injured person was
exercising a proper degree of care for his or her own safety at
the time of the injury. Hardware State Bank v. Cotner, 302 N.E.2d
257, 261 (Ill. 1973).
However, in wrongful death cases where there are
no competent eyewitnesses the plaintiff cannot
prove his decedent’s exercise of due care by direct
testimony. In such instances, considering the practi‐
cal problem of demonstrating freedom from contrib‐
utory negligence, evidence of the prior careful
habits, if pertinent, of the deceased may be admitted
as tending to prove the deceased’s exercise of due
care.
Hardware State Bank, 302 N.E.2d at 261. See also Jacobs v. Yellow
Cab Affiliation, Inc., 73 N.E.3d 1220, 1259 (Ill. App. Ct. 2017)
(careful habits evidence is admissible to show due care when
the plaintiff is unavailable to testify and no eyewitnesses other
than the defendant are available).
Edin testified, without objection from the defendants, that
he had driven in the truck with his father for a period of eight
or nine months when they were “team driving” a number of
years before the fatal accident. Edin explained that he was able
to observe his father’s driving habits when they drove to‐
gether. He said that when his father encountered a vehicle
pulled over on the shoulder of the road, he would move into
the left lane if it was safe to do so, or would slow down and
stay in the right lane if it was not safe to move left. Over the
defendants’ objection, the jury was later given the Illinois
12 No. 16‐3931
pattern instruction on “careful habits” that we described
above.
It is within the trial court’s sound discretion to admit or
deny evidence of careful habits, and, in any case, this evidence
came in without objection. Jacobs, 73 N.E.3d at 1259. The
defendants assert, however, that the evidence presented on
Hasib’s driving habits was insufficient to support giving the
instruction, that Edin’s observations of his father’s habits were
too remote in time to be relevant, and also that the instruction
was inappropriate because Hasib did not act in accordance
with the habit on this occasion. That is, Hasib did not move
into the left lane and did not slow down before striking
Thompson’s truck. The instruction given by the trial court
completely and accurately states the Illinois law regarding
“careful habits” and so the only issue is whether the district
court abused its discretion in deciding to give this instruction
in this situation. Paldo Sign, 825 F.3d at 796. The defendants’
argument largely amounts to a request to reweigh the trial
court’s determination that the plaintiffs presented enough
evidence to justify giving the instruction. We see no abuse of
discretion in allowing the jury to consider Edin’s testimony as
evidence of his father’s careful habits. Hasib and Edin drove
together for a significant amount of time and Edin was able to
observe his father’s regular practice many times in similar
situations. The defendants’ argument that Hasib did not act in
accordance with his usual practice at the time of the accident
was an issue for the jury to decide. The very reason for the
“careful habits” rule is that the decedent is not available to tell
the jury why he did not move to the left lane or slow down.
One inference that the jury could draw is that Hasib could not
No. 16‐3931 13
safely move into the left lane at the time of the accident. That
was a legitimate argument for the plaintiffs to make to the jury.
Obviously, the jury may not have completely accepted the
argument that Hasib was exercising due care at the time of the
accident because the jury apportioned forty‐five percent of the
fault to Hasib, but there was no abuse of discretion in allowing
the jury to consider this argument.
We turn to the “exigent circumstances” instruction. One of
the defendants’ theories at trial was that Hasib had violated
Federal Motor Carrier Safety Administration Regulation
395.3(a) by driving too many hours without sufficient breaks.
The regulation requires that drivers take ten consecutive hours
off duty before driving no more than eleven hours in the next
fourteen‐hour period. The defendants proposed a jury instruc‐
tion that allowed the jury to take that regulation into account
in deciding whether Hasib was negligent before and at the
time of the accident. The plaintiffs countered that the instruc‐
tion was incomplete without also alerting the jury to certain
exceptions to the regulation. Specifically, the regulation allows
drivers to exceed the hours of driving during certain adverse
conditions caused by traffic and weather. A driver may do so
once a week and may subjectively decide that conditions
warrant the additional hours. Because the defendants’ expert
had testified to the existence of the exception (which the parties
refer to as the “exigent circumstances” rule), the court decided
to instruct the jury on the adverse driving condition exception
so that the jury would have the full context of the regulation.
The court explained to defendants’ counsel:
I understand that you’re wearing blinders here, but
there is a dispute in the evidence. So, you know, the
14 No. 16‐3931
jury has a right to see what the regulations are and
they have a right to see both sides of the case here,
not just the one side you want them to see. I want
them to have that context. So, you know, it’s a
neutral position. They get to see what the law is,
what the regulation is. It doesn’t—there’s nothing
that says, and he was confronted with this adverse
condition. It’s just what the law is. Let them make
that decision. Whether they believe he was con‐
fronted with that or not, that’s up to them to decide.
Let them have the context, let them have the law, let
them decide what the facts are.
R. 213, Tr. at 1165 (emphasis in original). As with the careful
habits instruction, the defendants do not contend that the jury
was presented with an incorrect statement of the law; rather,
they simply complain that the evidence did not support giving
this particular instruction. As is apparent from the passage we
just quoted, however, this was a quintessential exercise of the
court’s discretion and nothing about the court’s reasons for
giving the instruction even hints at an abuse of that discretion.
C.
We turn to the defendants’ claim that the court should have
entered judgment in their favor and against Hasib’s estate on
the contribution counterclaims they filed in response to Edin’s
rescue doctrine claim. According to the defendants, the jury
found that Hasib was 45% at fault for the accident,3 and
3
The defendants’ claim is based in part on a misapprehension of the jury’s
(continued...)
No. 16‐3931 15
Hasib’s estate should therefore be liable for 45% of the $625,000
in damages that the jury awarded to Edin on his rescue
doctrine claim. They rely entirely on a plain language reading
of the Illinois Joint Tortfeasor Contribution Act (“Contribution
Act”) in making this argument4 and so we begin with the
relevant language:
[W]here 2 or more persons are subject to liability in
tort arising out of the same injury to person or
property, or the same wrongful death, there is a
right of contribution among them, even though
3
(...continued)
finding. The jury did not find Hasib 45% liable for the accident, but rather
45% liable for his own death. Although these appear at first glance to be
identical findings, as we will discuss below, there is an important distinc‐
tion in Illinois law that matters to the outcome here.
4
The plaintiffs responded to this plain‐language argument by asserting
that (1) JBS Carriers dismissed its counterclaim for contribution when other
claims settled; (2) defendants are time‐barred from making a claim against
the estate under Missouri law; and (3) defendants are not entitled to
contribution until they have actually paid the estate, which they had not
done at the time of the appeal. Although the stipulation of dismissal
resulting from the partial settlement broadly purports to dismiss the claims
of JBS Carriers against the estate, it appears designed to resolve claims for
property damage while reserving the wrongful death and rescue doctrine
claims, which would include JBS Carriers’ claim for contribution from the
estate. Given that even the plaintiffs treated the contribution claim as a live
claim until they filed their brief in this court, we will not rely on that
ground. There is no merit to the plaintiffs’ other assertions. We therefore
resolve the contribution issue on the defendants’ plain language ground
(albeit not in defendants’ favor).
16 No. 16‐3931
judgment has not been entered against any or all of
them.
740 ILCS 100/2. The defendants maintain that if Hasib was
found to be a cause of the accident, then the defendants would
have a right of contribution against the estate for Hasib’s
percentage of the fault. The district court rejected this theory as
inconsistent with Illinois law and the rescue doctrine, and also
refused to give a jury instruction suggesting that the same
percentage of relative fault between the defendants and Hasib
on the wrongful death claim should apply to allocate fault on
Edin’s rescue doctrine claim. The rejected instruction stated:
Further, on the claim of Edin Karahodzic as Personal
Representative for the Estate of Hasib Karahodzic,
the jury will first be asked to determine the relative
fault between Defendants and the Estate. This
determination will then be used to determine alloca‐
tion of fault on the individual injury claim of Edin
Karahodzic.
R. 142, at 4.
The rescue doctrine applies when a plaintiff brings a
negligence action against a defendant whose actions have
placed a third party or the defendant himself or herself in a
position of peril. Reed v. Ault, 969 N.E.2d 515, 527 (Ill. App. Ct.
2012). A rescuer who voluntarily attempts to save the life or
secure the safety of another person in peril is protected by the
rescue doctrine from a claim of contributory negligence unless
the rescuer has acted rashly or recklessly. Reed, 969 N.E.2d at
527; Strickland v. Kotecki, 913 N.E.2d 80, 83 (Ill. App. Ct. 2009).
A plaintiff who is injured in a rescue attempt is also allowed to
No. 16‐3931 17
negate a presumption that his intentional act of rescue is the
superceding cause of his injuries, thereby allowing him to
prove the defendant’s negligence is the proximate cause of his
injuries. Strickland, 913 N.E.2d at 83. Edin sued JBS Trucking
and Thompson under the rescue doctrine and those defendants
then filed third party complaints against the estate for contri‐
bution.
We agree that the plain language of the Contribution Act
resolves this question, but we conclude that it resolves it
against the defendants. By its terms, the Contribution Act
applies “where 2 or more persons are subject to liability in tort
arising out of the same injury to person or property, or the same
wrongful death.” 740 ILCS 100/2. In other words, as is indi‐
cated by the title of the statute, there is a right of contribution
against a tortfeasor, another person subject to liability in tort.
The jury determined only that Hasib’s estate, as plaintiff in the
wrongful death action, was contributorily negligent in causing
Hasib’s wrongful death. The defendants’ theory presumes that
Hasib’s contributory negligence to his own wrongful death is
identical to Hasib’s liability as a possible defendant in a rescue
doctrine case. But these are not the same thing. Hasib’s
“liability in tort” towards Edin has never been established,
only his lack of due care for his own safety. Carter v. Chicago &
Illinois Midland Ry. Co., 487 N.E.2d 1267, 1270 (Ill. App. Ct.
1986). Under the defendants’ theory, there was no need to
establish Hasib’s liability in tort towards Edin because Hasib’s
contributory negligence towards himself was identical to his
negligence towards his rescuer. But under Illinois law, a
finding of comparative negligence does not automatically
18 No. 16‐3931
convert the percentage of comparative negligence into the
same percentage of contribution. Carter, 487 N.E.2d at 1270.
It is easiest to see the distinction when considering a
Contribution Act case outside the context of the rescue
doctrine. See Laue v. Leifheit, 458 N.E.2d 622 (Ill. App. Ct. 1983).
In that case, Leifheit, the driver of a car, was originally the
plaintiff (along with four members of her family who were
passengers) in an action against Laue, a truck driver from
whom they recovered damages for injuries sustained in a
car/truck collision. The original jury found that Leifheit was
thirty‐three percent comparatively negligent in causing her
own injuries in that action. Laue subsequently brought a claim
for contribution against Leifheit, seeking payment from her for
thirty‐three percent of the damages that Laue paid to Leifheit’s
four passengers in the original action. Laue was granted
judgment on a motion on the pleadings in this second action,
and Leifheit appealed. 458 N.E.2d at 624.
In the original case, the jury that found that Leifheit was
thirty‐three percent negligent in causing her own injuries had
been instructed that the issue of contributory negligence did
not apply to the passengers. Nevertheless, in the second case,
the trial court determined that “it axiomatically follows if it
[her contributory negligence] contributed to her injuries, it
would also contribute to the injuries of the other people in her
car.” 458 N.E.2d at 626. The appellate court disagreed, finding
that no jury had yet determined Leifheit’s liability to her
No. 16‐3931 19
passengers.5 The court noted that Leifheit was the plaintiff, not
the defendant, in the original action, and that:
Even in cases where a plaintiff is partially at fault,
his culpability is not equivalent to that of a defen‐
dant. The plaintiff’s negligence relates only to a lack
of due care for his own safety while the defendant’s
negligence relates to a lack of due care for the safety
of others; the latter is tortious, but the former is not.
Laue, 458 N.E.2d at 627 (quoting Coney v. J.L.G. Indust., Inc., 454
N.E.2d 197, 205 (Ill. 1983). The court also agreed with Leifheit
that:
she was improperly precluded from litigating the
issues of her liability to her passengers and her
culpability relative to Laue’s. The jury’s finding that
33% of the combined negligence which caused the
5
The appellate court determined that Laue was not barred from bringing
his claim for contribution in a separate action, even though he could have
brought it during the pendency of the original action. The Illinois Supreme
Court later reversed that finding after concluding that the statute requires
that a contribution claim be brought in a pending action. Laue v. Leifheit, 473
N.E.2d 939, 941–42 (Ill. 1984) (it is clear from section 5 of the statute that, if
there is a pending action, then the party seeking contribution must assert
a claim by counterclaim or by third‐party claim in that action). The
defendants here did bring a third‐party complaint against Hasib in the
original action, so that is not an issue here. But rather than fully litigate that
claim, the defendants sought to simply apply the results of the wrongful
death claim to the rescue doctrine claim. That theory misapprehended
Illinois law as we discuss infra. The Illinois Supreme Court left the
remainder of the appellate court opinion intact, and at least one court has
noted the continuing validity of the reasoning in the Laue appellate court
opinion. See Carter, 487 N.E.2d at 1270.
20 No. 16‐3931
damage to Leifheit was attributable to her does not
translate to a judgment that she is therefore subject
to liability in tort in that percentage as well. Conse‐
quently, for purposes of a contribution action, her
liability “in tort” has never been established; only
her lack of due care for her own safety.
Laue, 458 N.E.2d at 628. In other words, in the original action,
the jury had not found Leifheit to be a tortfeasor, a person
subject to liability in tort.
The defendants bore the burden of pleading and proving
their right to contribution from the estate on Edin’s rescue
doctrine claim. To make out their third party claim, the
defendants needed to prove that Hasib was negligent towards
Edin. To successfully prove that claim, they should have
demonstrated Hasib’s duty to Edin as rescuer, proved that
Hasib breached that duty, and shown that the breach proxi‐
mately caused Edin’s injury and resulted in his damages. Laue,
458 N.E.2d at 628. See also Carter, 487 N.E.2d at 1270.6 Not only
did the defendants make no attempt to prove Hasib’s negli‐
gence towards Edin, they did not correctly allege negligence
towards Edin in their third‐party complaint. R. 33. See Carter,
487 N.E.2d at 1269 (in order to make a claim for contribution
6
In Carter, a railway sought in a counterclaim the same percentage of
contribution for damages that it paid in the death of a child passenger that
a jury had found to be the contributory negligence of her mother, the driver
who was killed in the same accident. The court of appeals, citing the
appellate opinion in Laue, remarked that this was improper because the
mother’s liability in tort had not been established as to her daughter but
only as to her lack of due care for her own safety.
No. 16‐3931 21
against decedent’s estate, claimant must show that the estate
is “liable in tort” for the wrongful death of a third party).
Instead of alleging that Hasib owed a duty to Edin or to a
rescuer generally, they simply alleged that Hasib owed a duty
to JBS Trucking and Thompson and that he breached that duty.
If the jury had been asked to determine whether Hasib
breached a duty to Edin (or a rescuer generally) and whether
that breach caused Edin’s damages, we would have a different
case. Indeed, if the jury had been asked to determine Hasib’s
liability for the collision instead of his contributory negligence
in causing his own injury (i.e. his death), the defendants might
have a point.7 But the jury was simply asked to determine
whether Hasib was partly liable for his own injuries, not the
collision generally. The defendants’ theory that Hasib’s liability
for his own injuries was automatically transferrable to his
liability for Edin’s injuries is not supported by Illinois law. The
7
Whether the crash was the proximate cause of Edin’s injuries would also
have been an open question for the jury to resolve. Edin was injured by the
fire and his father was killed instantly by the crash. Because of the way the
defendants framed their contribution counterclaim, the parties did not
litigate the cause of the fire. And so, for example, the fire could have
resulted from some unknown defect in the truck or its contents that would
not be attributable to any negligence by Hasib. In the same way, in a car
crash like Laue, the mother’s injuries might be caused by her failure to wear
a seatbelt, making her contributorily negligent for her own injuries even if
she bore no responsibility for the crash itself. If she had placed seatbelts on
her children, and had not contributed to the crash itself, she would not be
liable in tort for their injuries. Likewise, adult passengers might bear a
different amount of responsibility for their injuries depending on whether
they wore a seatbelt. So deciding fault for the crash does not necessarily
resolve contributory negligence for the injuries.
22 No. 16‐3931
jury did not find that Hasib was a tortfeasor or that he
breached a duty to Edin that caused Edin’s damages. The court
did not err in refusing to instruct the jury as the defendants
requested.
D.
Finally, the defendants claim that the trial court erred as a
matter of law in allowing the jury to award damages for
Esma’s lost earnings. The Illinois Wrongful Death Act provides
that, “the jury may give such damages as they shall deem a fair
and just compensation with reference to the pecuniary injuries
resulting from such death, including damages for grief,
sorrow, and mental suffering, to the surviving spouse and next
of kin of such deceased person.” 740 ILCS 180/2. Prior to 2007,
there was no provision allowing damages for grief, sorrow and
mental suffering, and plaintiffs were limited to recovering
“pecuniary injuries” such as benefits, goods, services and loss
of society. See e.g. Turner v. Williams, 762 N.E.2d 70, 77 (Ill. App.
Ct. 2001). In 2007, the statute was amended to allow damages
for grief, sorrow and mental suffering. According to the
defendants, grief and mental suffering do not include lost
wages, and yet the plaintiffs were allowed to present expert
testimony that Esma’s lost wages due to the Major Depressive
Disorder brought on by Hasib’s death amounted to $199,744.
There was no line on the verdict form asking the jury to
award damages for Esma’s lost wages. The jury was asked
generally to state an amount for “[g]rief, sorrow and mental
suffering.” R. 170. The plaintiffs argued to the jury that Esma
was precluded from working because of the mental health
consequences she suffered as a result of Hasib’s death. The
No. 16‐3931 23
plaintiffs characterize her lost wages as a way of quantifying,
in part, her grief, sorrow and mental suffering. The defendants
argue that nothing in Illinois law allows the jury to award
Esma’s lost wages. But nothing in Illinois law prohibits
plaintiffs from using the lost wages due to mental suffering as
a way to quantify the damages for grief, sorrow and mental
suffering. Grief, sorrow and mental suffering are highly
subjective experiences which are difficult to quantify. But the
inability to work due to that grief is the kind of concrete
“pecuniary injury” that the Illinois statute provides for.
Because the plaintiffs presented evidence that Esma’s inability
to work was due to the Major Depressive Disorder that was
brought on by Hasib’s death, there was no error in allowing
the jury to quantify her grief‐based damages in part with her
lost wages.
AFFIRMED.