No. 1-18-1525

Opinion filed on September 24, 2019.

Second Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

JAMES DENTON and THERESA DENTON, ) Appeal from the ) Circuit Court of Plaintiffs-Appellees, ) Cook County. ) v. ) No. 2015 L 1727 ) UNIVERSAL AM-CAN, LTD., a Corporation; ) The Honorable DAVID LEE JOHNSON; and LOUIS ) Lorna E. Propes, BROADWELL, LLC, ) Judge Presiding. ) Defendants-Appellants. )

JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Coghlan concurred in the judgment and opinion. OPINION

¶1 Following a lengthy jury trial, plaintiffs, James and Theresa Denton, prevailed in their

personal injury action against defendants, Universal Am-Can, Ltd. (UACL), Louis Broadwell,

LLC (Broadwell), and David Lee Johnson (an employee of UACL and Broadwell), 1 for a

vehicular accident that occurred in Jasper County, Indiana. Previously, we held that the

1 Johnson is an employee of UACL for “safety purposes” and ensuring compliance with the Federal Motor Carrier Safety Regulations. See

(2018). He is a statutory employee of Broadwell for “purposes of payroll and workers’ comp[ensation].” No. 1-18-1525

substantive law of Indiana would govern this case in Denton v. Universal Am-Can, Ltd.,

(Denton I). The jury awarded plaintiffs compensatory damages of

$19,155,900, after it found that all defendants were negligent and that UACL was also negligent

in hiring and retaining its employee, Johnson. In addition, the jury awarded punitive damages of

$35 million, having determined that UACL’s conduct was willful and wanton. Defendants

subsequently moved for a judgment notwithstanding the jury’s punitive damages verdict and a

new trial. The trial court denied their motion and entered judgment in favor of plaintiffs.

¶2 Defendants now appeal, contending that the trial court failed to follow this court’s

mandate in Denton I when the trial court applied Illinois law to the issues of damages and

admissibility of evidence related to the collateral source rule. Defendants also contend that the

jury’s punitive damages award is excessive, unsupported by the evidence, and fomented by

inflammatory statements made by plaintiffs’ counsel during closing argument. Last, they contend

that Indiana law precludes recovery of the damages against UACL attributable to negligent

hiring and retention because UACL admitted vicarious liability for Johnson’s actions. For the

reasons that follow, we affirm.

¶3 BACKGROUND

¶4 UACL Hires Johnson

¶5 Even though this is the second time we will consider this matter, we will examine the

facts fully because it is readily apparent that the facts as stated in the first appeal were

inaccurately presented to this court based on incorrect facts and conclusions in a police report.

Here, we will report the accurate evidence that was adduced at trial.

¶6 UACL is an international trucking company that leased semitrailers from Broadwell, an

independent contracting company, to carry and transport freight. Johnson applied to be a

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commercial truck driver for UACL on January 19, 2010. At that time, Nicole Perttunen, a safety

coordinator for UACL, 2 reviewed Johnson’s application. Her duties included determining

whether Johnson was qualified to work for UACL based on the company’s well-established

safety standards. She would then either accept or reject his application. As part of that process,

Perttunen obtained Johnson’s driver qualification file from one of UACL’s recruiters, which

consisted of his certified application, motor vehicle record and background check, among other

things. Johnson’s file revealed the following disturbing negative information.

¶7 Johnson held a commercial driver’s license from South Carolina even though he had

never completed a truck driving course. Within three years of applying to UACL, Johnson was

involved in four accidents, had three moving violations, and had his license suspended twice.

Johnson’s application only listed two accidents, no moving violations, and one license

suspension. Within 10 years, he was employed by seven different companies, but his application

listed six. And even though his application listed one termination, Johnson testified that he was

never fired. Conversely, Johnson was actually terminated from four of those seven companies for

reasons that included tailgating a motorist, a felony conviction, too many points on his license,

and crashing into a vehicle after refusing to let it merge onto an interstate ramp. Regarding the

last incident, Johnson testified, “I don’t have to let nobody off a ramp.”

¶8 In the seven years prior to applying at UACL, Johnson was convicted of nine traffic-

related offenses, notably, three for speeding and one for speeding more than 10 miles per hour

over the speed limit. Additionally, he was convicted of disobeying an official traffic device,

failing to pay a speeding ticket or otherwise appear, turning unlawfully, improperly parking, and

not wearing a seatbelt. Johnson was also convicted of four counts of “felony reckless aggravated

2 Perttunen was an official employee of UACL’s parent company, Universal Truckload Services, Incorporated. -3- No. 1-18-1525

assault” on November 29, 2004, for attempting to break, with a tire thumper, the headlights on a

vehicle occupied by four women. Johnson testified that while he was driving a truck, a car was

tailgating him on the highway with its high beams on so he pulled off “to bust its headlights ***

for blinding [him].” Johnson testified that as a result of the conviction, he learned to ignore those

“ignorant people, out [there] on the interstate, that don’t know nothing about driving a truck.”

Three weeks later, Johnson was convicted of “misdemeanor assault and battery of high and

aggravated nature.”

¶9 Perttunen testified that Johnson’s felony conviction, having occurred within the last 10

years, automatically disqualified him under UACL’s safety standards. 3 Consequently, she

rejected his application. After Perttunen rejected any potential employee application, the process

called for a recruiter to put that driver’s qualification file into the company’s “no-hire” file and

inform the applicant of UACL’s decision. Instead, the file went to Doug Moat, UACL’s safety

director. Moat acknowledged Perttunen’s “unequivocal” rejection but nonetheless considered

Johnson’s application. Moat admitted that Johnson was but a “marginal candidate,” conceding

that UACL was forced to accept “marginal drivers” in order to make a profit. Regarding

Johnson’s felony conviction, Moat testified that it was “directly related” to Johnson’s occupation

as a professional truck driver. Furthermore, Moat agreed that Johnson “never should have been

allowed to drive a UACL rig” under the company’s standards. Yet, he still hired Johnson on

February 3, 2010.

¶ 10 UACL Retains Johnson

¶ 11 Pursuant to UACL’s policy, drivers were required to attend a safety orientation within a

week of being hired. Johnson took a slower approach, waiting nearly a month to attend. Johnson

3 We note there is conflicting testimony regarding UACL’s automatic disqualification time period for felony convictions; however, the record supports Perttunen’s testimony that it was a 10-year period and defendants do not dispute this fact on appeal. -4- No. 1-18-1525

received five warning violations a few weeks later and consequently was put on probation for six

months. During that time, Johnson was required to attend a safety meeting before he could be

dispatched. Furthermore, Moat advised Johnson: “If you have any additional moving violations,

accidents or safety incidents, we will be forced to revoke your driving privileges under [UACL]

authority.” Johnson failed to attend the mandatory safety meeting and, within weeks, received a

speeding ticket, three moving violations, a logbook violation, and had his license suspended over

the next nine months. UACL not only continued to employ Johnson, but it also dispatched

Johnson while his license was suspended. Moat testified that after Johnson was hired, UACL

“never ran” his motor vehicle report or monitored his license, which meant that UACL never

made itself aware of the various deficiencies detailed there.

¶ 12 UACL also had a policy that assessed a different number of points for every violation,

accident, or safety incident. For each instance, the corresponding number of points would be

added to the driver’s record where it would remain for 30 months. According to Moat, a driver

who had more than 30 points on his record would be terminated. As for Johnson, he was not

terminated despite having at least 36 points on his record that year.

¶ 13 Accident

¶ 14 On February 8, 2011, George Kallis, now deceased, was driving the wrong way on an

interstate highway in Indiana. As a result, two vehicles swerved off the road but effectively

avoided Kallis and any other vehicles. Meanwhile, Johnson was in the left lane, driving a truck

above the speed limit on a suspended license. Johnson had “no idea” there was a wrong-way

driver but still crashed into the Jeep ahead of him occupied by James Denton. That collision

pushed the Jeep into the right lane where it slammed into the fuel tank of another semitruck.

James testified, “I sure did feel it because I hit his fuel tanks and diesel fuel went everywhere,

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including all over me, the inside of the car, my eyes, everywhere.” After James eventually

managed to crawl out the rear passenger window, he was taken to Jasper County Hospital.

¶ 15 After the accident, James suffered from multiple traumatic injuries, resulting in post-

traumatic stress, depression and anxiety. James underwent nine surgeries, which included spinal

fusions, as well as three knee surgeries. He now has a prosthetic metal knee. In addition, James

sustained severe nerve damage and consequently had spinal surgery to open his nerve canals,

which was unsuccessful. Due to the nerve damage, James experienced urinary incontinence and

ultimately sustained a neurogenic bladder. James regularly has to catheterize himself and wear

adult diapers, which, in turn, has negatively impacted his marriage and strained relationships

with his children and grandchildren. James has been unable to work since the accident and

regularly takes Norco to manage his pain as an alternative to wearing fentanyl patches, which left

him with debilitating side effects. James also continues to see a counselor for depression and

anxiety.

¶ 16 Verdict

¶ 17 The record reveals that the jury was instructed on Indiana law as it applied to punitive

damages, gross negligence, comparative fault and contribution liability. As such, the verdict

form that was provided to the jury allowed the jury to find Kallis liable by ascribing a percentage

of negligence owing to his conduct. Following deliberations, the jury found in favor of plaintiffs

on their negligence claim against Johnson, individually and as an agent of Broadwell and UACL,

and assigned 40% of the fault to Johnson, Broadwell and UACL for that claim. In addition, the

jury found in favor of plaintiffs on their claim for negligent hiring and retention against UACL

and assigned 60% of the fault to UACL for that claim. The jury specifically assigned 0% fault to

Kallis.

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¶ 18 The jury awarded James compensatory damages in the total amount of $16,095,900,

which included: $1,178,900 for reasonable expenses of necessary medical care, treatment and

services rendered; $2,917,000 for present cash value of earnings reasonably certain to be lost in

the future; $6 million for pain and suffering experienced and reasonably certain to be

experienced in the future; and $6 million for the disability experienced and reasonably certain to

be experienced in the future. The jury awarded Theresa compensatory damages in the total

amount of $3,060,000, which included: $60,000 for reasonable value of the services of her

husband which she has been deprived and the present cash value of the services reasonably

certain to be lost in the future, and $3 million for the reasonable value of the society,

companionship and sexual relationship with her husband of which she has been deprived and

reasonably certain to be deprived of in the future.

¶ 19 In addition, the jury found that UACL’s conduct was willful and wanton related to its

hiring and retention of Johnson and awarded James $35 million in punitive damages. The trial

court subsequently entered judgment in the amount of $7,662,360 against defendants, and

$11,493,540 against UACL for compensatory damages, as well as $35 million against UACL for

punitive damages.

¶ 20 Posttrial Motion

¶ 21 Defendants filed a posttrial motion raising multiple claims, including a request for a

judgment notwithstanding the jury’s punitive damages verdict, a new trial, and alternatively, a

remittitur of the jury’s punitive damages award. After conducting extensive briefing on the

matter and hearing arguments from the parties, the trial court denied defendants’ posttrial motion

on June 18, 2018. Defendants now appeal.

¶ 22 ANALYSIS

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¶ 23 As stated, defendants first challenge the trial court’s actions in light of this court’s

mandate in Denton I. Before proceeding to the merits, however, we must address defendants’

flagrant disregard for the Illinois Supreme Court Rules, which are mandatory, not optional.

Miller v. Lawrence,

. Even a casual reader of defendants’

statement of facts would find it chockablock with argumentative, conclusory allegations like this:

“[t]here is nothing in Johnson’s driving history that would suggest he was a dangerous truck

driver.” Illinois Supreme Court Rule 341(h)(6) (eff. May 25, 2018) provides that the appellants’

statement of facts must be “stated accurately and fairly without argument or comment.”

Accordingly, we will not consider any statements made by defendants that are argumentative or

without reference to the record. Beitner v. Marzahl,

(2004).

¶ 24 Furthermore, defendants’ overly emphatic and inarguably hyperbolic brief failed to

include the applicable standards of review for the issues raised on appeal, in violation of Illinois

Supreme Court Rule 341(h)(3) (eff. May 25, 2018). That rule provides that the appellants “must

include a concise statement of the applicable standard of review for each issue, with citation to

authority.”

And, where a standard of review was provided, it was erroneous. For example, in

challenging the denial of their requests for a new trial and a remittitur, defendants provided only

the de novo standard of review, when it is well settled that neither request for relief is reviewed

under that standard, as will be discussed in more detail below. Undaunted, defendants’ reply

brief paid no heed to these “few minor technical deficiencies,” in violation of Illinois Supreme

Court Rule 341(j) (eff. May 25, 2018). We reemphasize that this court is not a repository into

which appellants may foist the burden of argument and legal research. Melamed v. Melamed,

.

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¶ 25 Defendants are not alone in this regard and have correctly observed that plaintiffs’ brief

violates Illinois Supreme Court Rule 341(a) (eff. May 25, 2018), insofar as the text appears to be

printed in 11-point typeface, rather than the required 12-point minimum. Although apparently a

minor deficiency, this error carries more weight given that plaintiffs failed to file a motion to

submit their brief in excess of the required 50-page limit pursuant to Illinois Supreme Court Rule

341(b) (eff. May 25, 2018), and instead, elected to utilize the smaller typeface as an end run

around our authority and the requirements. While we cannot condone these practices and caution

all parties to refrain from such noncompliance going forward, we will proceed to consider the

merits of defendants’ appeal.

¶ 26 Denton I

¶ 27 Defendants contend that the trial court failed to adhere to this court’s mandate in

Denton I because the trial court applied Illinois law to the issue of damages when it excluded

evidence under the collateral source rule. We disagree and proceed in our de novo review. See

People ex rel. Department of Transportation v. Firstar Illinois,

(2006).

¶ 28 Where, as here, this court’s mandate remands for further proceedings consistent with the

opinion, then the lower court must examine the content of the opinion and proceed in any

manner that is not inconsistent with our judgment. See id.; Pioneer Trust & Savings Bank v.

Zonta,

(1981). Having carefully reviewed the record in light of

Denton I, we cannot say that the trial court’s actions were inconsistent with our judgment. Cf.

Aardvark Art, Inc. v. Lehigh/Steck-Warlick, Inc.,

(1996) (holding that

the trial court failed to follow the reviewing court’s mandate “for a new trial on the issue of

damages only” by allowing the jury to address liability on remand).

-9- No. 1-18-1525

¶ 29 In Denton I, we held that “the substantive law of Indiana” would apply in this case.

Denton I,

. Our mandate therefore reversed the lower court’s

ruling in favor of Illinois substantive law and “remand[ed] for further proceedings consistent

with this opinion.”

It did not, however, provide the trial court with specific instructions as to

how to proceed on the issue of damages. As such, the trial court had to examine our decision and

proceed in any manner that was not inconsistent with it. We acknowledge our statement earlier in

the opinion that “Indiana law governs the liability and damages issues in this case.” Id. ¶ 1. In the

context of our analysis, however, that statement refers to Indiana law regarding the

apportionment of damages for contribution liability. See id. ¶ 13 (“the two states present

substantially different ways of apportioning fault and damages”). Compare id. ¶ 10 (“Under

Illinois’s joint and several liability law, if Johnson were found responsible for 25% of the

damages caused to plaintiffs, then he could nonetheless be responsible for the full amount of

damages.”), with id. ¶ 11 (“Indiana, by contrast, maintains that defendants can only be held

severally liable for their own percentage of fault.”). And notably, “Indiana law allows a

defendant to prove the negligence of an absent or settling tortfeasor.” Id.

¶ 30 It bears repeating that the two main issues defendants were focused on in the earlier

appeal centered around the difference in each state’s law as it related to contribution liability and

the ability to have a nonparty’s conduct addressed on the verdict form. Our ruling mandated that

Indiana law as it related to several liability would be applied at trial and that Kallis’ name would

be on the verdict form pursuant to Indiana law. Ergo, defendants got just what they asked for.

Here, the trial court applied Indiana law to the issues of contribution liability and apportionment

of fault and damages. Furthermore, defendants were allowed to argue, albeit unsuccessfully, that

- 10 - No. 1-18-1525

the accident was caused entirely by Kallis’ negligence in driving the wrong way on the interstate.

Accordingly, we conclude that the trial court’s actions conformed to our judgment and mandate.

¶ 31 Even assuming arguendo, that the trial court’s actions were improper, that is of no import

as defendants’ entirely specious argument ignores that the admissibility of damages is an

evidentiary issue, which, in this case, is governed by Illinois law. The law of the forum governs

the admissibility of a particular piece of evidence, particularly when that evidence is subject to

exclusion under a local rule. Christopherson v. Hyster Co.,

(1978);

People v. Saiken,

(1971); see Restatement (First) of Conflict of Laws § 597

(1934); see also Restatement (First) of Conflict of Laws § 597 cmt. a (stating that “the court at

the forum applies the local rule of exclusion of evidence”).

¶ 32 To that end, the trial court correctly barred testimony regarding the reduced rates

providers accepted for James’ medical treatment under the collateral source rule. In Illinois, the

collateral source rule prevents defendants from introducing any evidence that plaintiffs’ losses

are subject to or have been covered by insurance or other independent sources. Wills v. Foster,

(2008); Arthur v. Catour,

(2005). Notably, in their

motions for summary judgment and posttrial relief, defendants conceded that “[p]rocedural and

evidentiary issues are governed by the law of the forum, in this case, the law of Illinois.” 4 And,

in their brief, defendants acknowledge that the trial court’s rulings were consistent with Illinois

law, which “prohibits a jury from knowing the reduced rates providers accept based on the

collateral source rule.” Accordingly, we find no error.

4 Interestingly, defendants insisted on applying Illinois law when it was to their benefit, arguing in their posttrial motion that: “Illinois Evidentiary Law Should Be Juxtaposed with Indiana Law and Result in Barring the Presentation of Prejudicial and Confusing Evidence about Mr. Johnson.” Cf. Powell v. Dean Foods Co.,

, ¶¶ 101, 116-17 (holding that the introduction of the truck driver’s prior bad acts was improper where there was no claim for punitive damages). Regardless, the jury in this case was instructed to consider any evidence of Johnson’s prior convictions only insofar as it related to plaintiffs’ negligent hiring and retention claim against UACL. - 11 - No. 1-18-1525

¶ 33 Negligent Hiring and Retention

¶ 34 We also reject defendants’ claim that a company’s acceptance of vicarious liability for

the alleged negligence caused by its employee categorically relieves that company of any

additional liability for negligent hiring and retention, finding their reliance on Sedam v. 2JR

Pizza Enterprises, LLC,

(Ind. 2017), misplaced.

¶ 35 Initially, we note that Sedam involved the lower court’s summary judgment ruling on the

plaintiffs’ negligent hiring and retention claim, not a jury’s damages award assessed on that

claim.

. In any event, while the Sedam court found that generally, a claim for negligent

hiring and retention may not be pursued in conjunction with a negligence claim under the

doctrine of respondeat superior when an employer admits liability, it also acknowledged that

both claims have been permitted under “special circumstances.” See

(finding that

special circumstances likely exist when ordinary respondeat superior principles would fail). As

noted by the Sedam court, that exception was delineated in Tindall v. Enderle,

(Ind. Ct. App. 1974). 5 Sedam,

. There, the Tindall court explained that

“[t]he sole possible advantage to the pursuit of a negligent hiring theory in cases such as that

before us would be the potential assessment of punitive damages.” Tindall,

.

¶ 36 In Indiana, punitive damages cannot be imposed against an employer “strictly on the

basis of respondeat superior for an employee’s misconduct.” Estate of Mayer v. Lax, Inc.,

(Ind. Ct. App. 2013). Conversely, “there must be evidence of positive or

collusive action by the employer,” as Indiana has adopted the Restatement (Second) of Torts for

vicarious liability.

. Section 909(b) provides, in relevant part, that punitive damages

may be properly awarded against a principal because of an act by an agent where “the agent was

unfit and the principal or a managerial agent was reckless in employing or retaining him.” 5 The Sedam court reaffirmed Tindall, finding it “controlling.” Sedam,

. - 12 - No. 1-18-1525

Restatement (Second) of Torts § 909(b) (1979). That rule “results from the reasons for awarding

punitive damages, which make it improper ordinarily to award punitive damages against one

who himself is personally innocent and therefore liable only vicariously.” Id. § 909 cmt. b.

¶ 37 As set forth above, defendants were allowed to argue that Kallis was the “sole

protagonist” in this case and that his actions, not Johnson’s, were responsible for plaintiffs’

injuries. Had defendants been successful, plaintiffs’ respondeat superior claim likely would have

failed as it was contingent upon finding Johnson negligent. Moreover, without their negligent

hiring and retention claim, plaintiffs would have been unable to seek punitive damages against

UACL under Indiana law. Based on the foregoing, we conclude that “special circumstances”

existed in this case. Accordingly, we find no error.

¶ 38 Punitive Damages Award

¶ 39 Defendants contend that the trial court erroneously denied their motion for a directed

verdict and posttrial relief 6 because the punitive damages award is unsupported by the evidence.

Specifically, they argue that plaintiffs failed to show UACL consciously disregarded a known

safety risk by employing Johnson. Contrarily, plaintiffs argue that Johnson was the proverbial

accident waiting to happen.

¶ 40 There are well-established standards to be used in determining whether a directed verdict,

judgment notwithstanding the verdict, or a new trial should be granted. Maple v. Gustafson,

(1992). A directed verdict or judgment notwithstanding the verdict is appropriate

only when all of the evidence, when viewed in the light most favorable to the nonmoving parties,

so overwhelmingly favors the movants that no contrary verdict based on that evidence could ever

6 To the extent defendants assert that the circuit court erred in denying summary judgment on plaintiffs’ punitive damages claim, this issue was decided at trial; thus, any error in that denial merged into the final judgment. Mansmith v. Hameeduddin,

(2006). Accordingly, their claim is not subject to our review.

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stand.

(citing Pedrick v. Peoria & Eastern R.R. Co.,

(1967)). Simply put, a

judgment notwithstanding the verdict should not be granted unless there is a total failure or lack

of evidence to prove any necessary element of the plaintiffs’ case. Neuhengen v. Global

Experience Specialists, Inc.,

. In contrast, a motion for a new

trial should not be granted unless the jury’s verdict is against the manifest weight of the

evidence, i.e., only when the opposite conclusion is clearly evident or the jury’s findings are

unreasonable, arbitrary and not based upon any of the evidence. Id. ¶ 76.

¶ 41 In Indiana, punitive damages may be awarded upon a showing of “willful and wanton

misconduct, which, under existing conditions, the [defendant] knows will probably result in

injury.” Gray v. Westinghouse Electric Corp.,

(Ind. Ct. App. 1993). Notably,

“[w]illful and wanton misconduct need not include malice or intent to injure.”

. And,

punitive damages are justified when the defendant’s conduct amounts to gross negligence, not

resulting from a mistake of law or fact, honest error of judgment, overzealousness, mere

negligence or other noniniquitous human failing.

; Westray v. Wright,

(Ind. Ct. App. 2005). The Indiana Supreme Court has defined gross negligence as a

“conscious, voluntary act or omission in reckless disregard of … the consequences to another

party.” (Internal quotation marks omitted.) Westray,

.

¶ 42 Here, defendants have not shown that there was insufficient evidence to support the

jury’s punitive damages award. As set forth above, the jury was presented with extensive

evidence regarding Johnson’s history prior to applying at UACL, as well as UACL’s internal

safety policies. Despite Johnson’s history, UACL nevertheless hired him, even though doing so

violated its own company policies. 7 Cf.

(holding that there was insufficient evidence to

7 In arguing that evidence showing an employer violated its own company policy is insufficient to support an award of punitive damages, defendants’ reliance on Wanke v. Lynn’s Transportation Co., 836 - 14 - No. 1-18-1525

support the jury’s punitive damages award based on wrongful hiring where the driver was

qualified under the company’s exceptionally strict standards). To the extent defendants argue

that Johnson’s history never involved substantially similar conduct to that at issue here, this is

belied by Moat’s testimony that Johnson’s felony conviction was “directly related” to his

occupation as a professional truck driver.

¶ 43 Furthermore, UACL retained Johnson after he continued to violate its policies and

specifically neglected to monitor Johnson’s commercial driver’s license or motor vehicle record

after he was hired. That failure resulted in Johnson driving a truck on a suspended license when

he hit James. Given the foregoing, we cannot say that the jury’s punitive damages verdict was

against the manifest weight of the evidence or that the evidence was insufficient to support the

award.

¶ 44 In the same vein, we reject defendants’ claim that the jury’s verdict is against the

manifest weight of the evidence because it failed to assign any fault to Kallis. To set aside the

jury’s verdict on that basis, defendants would have this court substitute its view for that of the

jury, which clearly did not believe that Kallis’ conduct was a cause of the accident between

Johnson and James’ vehicles. Thus, the jury in this case clearly disagreed with defendants’ oft-

stated position that Kallis was the “principal protagonist in the accident.” More importantly, our

observation in Denton I that Kallis “was the precipitating factor in the accident” was the product

of arguments made by defense counsel in their brief that largely stemmed from a police report

that was inaccurate, misleading and was never admitted into evidence at trial. According to

defendants, that police report had stated:

F. Supp. 587, 601-02 (N.D. Ind. 1993), is misplaced and not binding on us or our supreme court. See Mekertichian v. Mercedes-Benz U.S.A., L.L.C.,

(2004); cf. Wanke, 836 F. Supp. at 601-02 (where the employer violated its company policy by hiring a driver with less than two years’ experience, the court found there was insufficient evidence that the driver was inherently unsafe or that the employer knowingly hired an unsafe driver to justify the imposition of punitive damages). - 15 - No. 1-18-1525

“Once at the 225 MM, V1 [Kallis] caused a major crash. *** Both V4 [Byro]

and V5 [Harris] slowed to avoid V1 [Kallis]. Both V4 and V5 moved to the right to allow

[Kallis] by and pass. As this was happening, V3 [Denton] did not see what was going on

and struck V4 in his *** tires and fuel tank on the V4’s driver side. V4 pulled onto the

emergency lanes and came to a stop. [Denton] was in the middle of I-65 after hitting V4.

V2 [Johnson] rear-ended [Denton] and shoved [Denton] into the rear trailer of V5. V5

came to a rest in the passing lane of I-65.”

Conversely, Kallis caused two vehicles to swerve off the road, neither of which crashed into

other vehicles. Michael Twardak, the driver of one of those vehicles, had swerved off to the left,

where he “ran into the police turn-around *** and landed in a snow pile.” Matthew Singan, the

other driver, had swerved to the right, where he hit the guardrail, but then pulled off the highway

and called the police from a nearby gas station. Additionally, Johnson testified that he had “no

idea” there was a wrong-way driver when he crashed into James, who incidentally was driving in

the left lane, not the middle, of the two-lane highway. Furthermore, Johnson’s testimony was

corroborated by Moat, who confirmed that UACL’s internal accident report indicated Johnson

had no knowledge of a wrong-way driver, as set forth above.

¶ 45 Similarly, we reject defendants’ claim that the jury was required to “apportion fault to

Kallis because he drove his car in violation of the law.” But cf. First Springfield Bank & Trust v.

Galman,

(1999) (holding that the defendants’ illegally parked truck

constituted a condition, as opposed to a legal cause, that made the plaintiff’s injury possible by

the subsequent third party). Under Illinois and Indiana law, it is well settled that where a party’s

alleged negligence merely furnishes a condition by which the subsequent injury producing acts

of another are made possible, the existence of the first condition cannot be the proximate cause

- 16 - No. 1-18-1525

of the injuries but is a remote cause. Id.; see also Walker v. Jones,

(Ind. Ct.

App. 1987). As established supra, there was sufficient evidence to support the jury’s verdict that

assigned no fault to Kallis, and defendants have offered only speculation that the jury

disregarded the instructions on that basis. 8 Accordingly, we conclude that the jury’s verdict was

not against the manifest weight of the evidence.

¶ 46 This does not end our analysis of this issue, however, as defendants alternatively contend

that the jury’s award of $35 million for punitive damages was unconstitutionally excessive.

Plaintiffs respond, and we agree, that defendants have forfeited this issue by failing to raise it in

their posttrial motion. A posttrial motion must set forth the specific grounds for any alleged error

and where the parties fail to raise an issue in their motion for posttrial relief, that issue is

forfeited on appeal. Calabrese v. Benitez,

; Brown v. Decatur

Memorial Hospital,

(1980). As noted by the trial court in ruling on their

posttrial motion, defendants “didn’t make an argument *** about excessive punitive damages,

just that the punitive damages award was driven by the mistakes in the closing argument.”

Accordingly, we conclude that defendants have forfeited their claim.

¶ 47 Forfeiture aside, defendants have not demonstrated that the jury’s punitive damages

award is excessive. It is well settled that the amount of damages to be assessed is quintessentially

a question of fact for the jury to determine. Neuhengen,

. As

such, we will not reverse a jury’s award of punitive damages unless it is against the manifest

weight of the evidence, i.e., only when the amount awarded is so excessive that it demonstrates

passion, partiality, or corruption on the part of the jury. Leyshon v. Diehl Controls North

8 We note that during oral argument, defense counsel conceded that Kallis’ violation of the Indiana Code or Federal Motor Carrier Safety Regulations could be excused if that violation constituted a condition, rather than a legal cause, that made plaintiffs’ injuries possible by the subsequent acts of Johnson. - 17 - No. 1-18-1525

America, Inc.,

(2010). Having determined that the jury’s punitive damages

award was not against the manifest weight of the evidence, we conclude the trial court properly

denied defendants’ request for a remittitur.

¶ 48 Defendants also contend that plaintiffs’ counsel engaged in a pattern of misconduct

during closing argument by making several improper comments that substantially prejudiced

defendants. Defendants thus contend that the cumulative effect of those comments warrants a

new trial. Improper comments do not constitute reversible error unless they were so prejudicial

that defendants were deprived of a fair trial. Clarke v. Medley Moving & Storage, Inc.,

(2008). Furthermore, we will not reverse a trial court’s determinations regarding

the prejudicial effect of comments made during closing argument absent a clear abuse of

discretion.

¶ 49 First, defendants argue that plaintiffs’ counsel inflamed the jury by referring to the now

infamous pedophilic priest scandal, relying on the decision in Copeland v. Stebco Products

Corp.,

(2000). We find Copeland distinguishable. There, the

plaintiff’s counsel repeatedly referred to the Rachel Barton case during closing argument and

compared the facts of that case, which were not in evidence, to those of the plaintiff’s case.

After the trial court sustained two objections, the plaintiff’s counsel, nonetheless, continued to

make comparisons that were also not based on the evidence.

. The Copeland court

ultimately held that the “repeated reference[s] directly or indirectly to the Rachel Barton case,

even after objections were sustained,” constituted reversible error.

.

¶ 50 In contrast, here, plaintiffs’ counsel made one broad reference to the widespread

pedophilic priest scandal: “[t]hat’s like having *** a pedophile [sic] priest be transferred from

one Archdiocese to the other.” He also did not refer to a specific case, despite defendants’

- 18 - No. 1-18-1525

suggestion that the comment clearly implicated a particular case that was then in the news.

Moreover, the trial court immediately sustained defendants’ objection and instructed the jury to

disregard plaintiffs’ counsel’s statement. And, while that statement would surely have been

better left unsaid, we find that any prejudicial impact of this alleged error was cured. See First

National Bank of La Grange v. Glen Oaks Hospital & Medical Center,

(2005).

¶ 51 Second, defendants argue that plaintiffs’ counsel invited the jury to consider themselves

as “plaintiffs’ partners” by stating that James had a contract with “[e]ach and every one of you.”

The trial court overruled defendants’ objection, finding the comment was merely “a figure of

speech.” Defendants have failed to show, let alone argue, any prejudicial effect of that comment.

¶ 52 Likewise unavailing is defendants’ claim that plaintiffs’ counsel improperly commented

on the allocation of a punitive damages award in violation of Indiana law, as we previously

determined that Illinois law was correctly applied to this issue. 9 Regardless, the jury was

properly instructed on the applicable law for punitive damages as noted above. See People v.

Jackson,

(finding that a misstatement of the law during closing

argument, while improper, generally does not constitute reversible error if the jury was properly

instructed on the law). For the reasons set forth above, we find that the remarks by plaintiffs’

counsel during closing argument do not constitute reversible error.

¶ 53 In sum, our mandate, stated simply, was that Indiana law should govern the issue of

contribution liability, which is specifically what defendants requested. In Denton I, we noted

there was a disparity in the law between the two states that operated to the disadvantage of

defendants if Illinois law were applied. Most notably, this related to the ability to have the jury

9 We note that defendants’ claim relies on section 34-51-3-3 of the Indiana Code (

(West 2018)), which governs “Restrictions on jury instructions,” not closing arguments. - 19 - No. 1-18-1525

consider the percentage of fault, if any, for a nonparty and to have fault determined on the basis

of several liability, as opposed to joint and several liability. Defendants steadfastly claimed that it

was “beyond peradventure” that Kallis would not be found to be the principal cause of this

roadway accident. The trial court accommodated defendants at each and every turn as related to

this mandate. Despite these proper rulings, defendants were simply unable to prove that any of

Kallis’ conduct was a proximate cause of the injuries suffered by James. Simply put, the jury’s

finding of zero percent fault on Kallis’ part, reflects its belief that James was injured as a result

of the conduct of defendants owing to the negligent operation of the semitractor trailer truck and

the willful and wanton retention of an obviously unqualified and dangerous over-the-road truck

driver.

¶ 54 Similarly, while defendants argued that the punitive damages award was “excessive,” the

trial court gave all instructions on Indiana law related to this singular issue and defendants failed

to raise the issue of excessiveness in their posttrial motion. Defendants’ claims therefore must

fail.

¶ 55 CONCLUSION

¶ 56 Based on the foregoing, the judgment of the trial court is affirmed.

¶ 57 Affirmed.

- 20 - No. 1-18-1525

No. 1-18-1525

Cite as: Denton v. Universal Am-Can, Ltd.,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2015-L- 1727; the Hon. Lorna E. Propes, Judge, presiding.

Attorneys Carlton D. Fisher and Stephen R. Swofford, of Hinshaw & for Culbertson, LLP, of Chicago, and Morley Witus and Kevin M. Appellant: Aoun, of Barris, Sott, Denn & Driker, PLLC, of Detroit, Michigan, for appellants.

Attorneys Robert J. Napleton, of Motherway & Napleton, L.L.P., of for Chicago, Christopher T. Theisen and James M. Roche, of Appellee: Theisen & Roche, of Wheaton, and Lynn D. Dowd, of Naperville, for appellees.

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