dissenting:
I believe that there was sufficient evidence of Remington’s willful and wanton misconduct in this case to support the jury’s imposition of punitive damages. Therefore, I respectfully dissent.
Punitive damages may be awarded in Illinois “when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully or with such gross negligence as to indicate a wanton disregard of the rights of others.” (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186.) Willful or wanton misconduct includes acts “ ‘committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.’ ” (Hering v. Hilton (1958), 12 Ill. 2d 559, 562 (quoting Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583).) The question of whether a defendant’s conduct was sufficiently willful or wanton to justify the imposition of punitive damages in a particular case is one for the jury to decide. Smith v. Hill (1958), 12 Ill. 2d 588, 595.
It is of course true, as the majority notes, that where, as a matter of law, punitive damages cannot be awarded for a particular type of cause of action, a trial court cannot submit the question of punitive damages to the jury. (See 138 Ill. 2d at 414 (citing Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 211, and Eshelman v. Rawalt (1921), 298 Ill. 192, 197-98).) Similarly, the question of punitive damages cannot be submitted to the jury if the plaintiff fails to introduce evidence of the defendant’s willfulness or wantonness. See 138 Ill. 2d at 414-15 (citing J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 453).
This court has stated that “[w]hile a trial court’s determination [as to punitive damages] is always subject to review, we will not disturb that finding or substitute our own opinion unless it is against the manifest weight of the evidence.” (In re Estate of Wernick (1989), 127 Ill. 2d 61, 85.) This standard requires that a jury’s verdict not be .reversed unless there is “evidence which, when viewed most favorably to the party prevailing in the trial court, nevertheless so overwhelmingly favors the [party seeking reversal] that no contrary verdict could stand.” York v. Stiefel (1983), 99 Ill. 2d 312, 321.
Remington, through a written stipulation that was read to the jury, admitted it knew prior to plaintiff’s accident that at least 94 Model 1100 shotgun barrels had exploded in a manner similar to the explosion in this case. Five of the victims of the explosions claimed to have been using normal, new factory ammunition, while the other 89 victims claimed to have been using normal, reloaded ammunition: The plaintiff had three of these victims testify, two of whom stated that they had been using normal, new factory ammunition.
I believe that this evidence, standing alone, would be sufficient to support the jury’s award of punitive damages. The jury could have concluded that Remington acted willfully or wantonly in failing to discover the defect in the gun after 94 complaints (see Hering, 12 Ill. 2d at 562; see also City of Chicago v. Jarvis (1907), 226 Ill. 614, 617; Moore v. Jewel Tea Co. (1969), 116 Ill. App. 2d 109, 129 (evidence of prior accidents and complaints is admissible to establish notice of a defect)), or acted willfully and wantonly in failing to warn plaintiff of the defect in the gun (see Lipke v. Celotex Corp. (1987), 153 Ill. App. 3d 498, 505-06). The majority, however, holds that the evidence pertaining to the 94 prior explosions was somehow negated by the fact that Remington had two of its employees testify that the company had investigated all of the prior explosions. (See 138 Ill. 2d at 426-27.) According to these employees, the company concluded in each case that, contrary to the claims of the victims, the explosions had to have been caused by high-pressure shells rather than by defects in the guns. The majority, without citing to the applicable standard for reviewing jury determinations, gives the employees’ testimony conclusive effect. In so doing, the majority invades the province of the jury.
It is axiomatic that “[i]t is the function of the jury to assess the credibility of witnesses and the weight to be accorded their testimony ***, and the jury’s determination will not be overturned unless contrary to the manifest weight of the evidence.” (Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1987), 118 Ill. 2d 306, 312-13.) In this case, there are many reasons it would not have been against the manifest weight of the evidence for the jury to have found the employees’ testimony less than credible.
First, both witnesses, as longtime employees of Remington, obviously were biased. Both employees also conceded that the records pertaining to these alleged investigations were not available for trial because they had been destroyed by Remington. Furthermore, neither employee explained what procedures, if any, Remington utilized in undertaking these alleged investigations. Thus, the only pieces of evidence in the case pertaining to the alleged investigations were the unsubstantiated statements by the employees that such investigations did in fact take place. Finally, due to the fact that the jury did not believe Remington’s claim that the explosion in this case was caused by a high-pressure shell, the jury may have doubted the veracity and sincerity of Remington’s claims concerning the 94 prior cases. Instead, the jury may have believed that even if Remington had investigated each explosion, the investigations were merely done in a perfunctory fashion. Such a belief would have been reinforced by the three victims who testified in this case that, contrary to Remington’s claims, they were not using high-pressure ammunition.
In light of these factors, it would not have been against the manifest weight of the evidence for the jury to have disregarded the employees’ testimony. Having done so, it would not have been against the manifest weight of the evidence for the jury to have awarded punitive damages based upon Remington’s knowledge of the 94 explosions which took place prior to the plaintiff’s accident in this case. Under the manifest weight of the evidence standard of review, I would affirm the appellate court’s decision which affirmed the jury’s award of punitive damages in this case.
JUSTICES WARD and CALVO join in this dissent.