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Wednesday, August 21, 2019

Seventh Circuit affirms $5 million wrongful death verdict over I-70 crash; Son came upon father’s burning tractor trailer ‘in a tragic coincidence’

By Heather Isringhausen Gvillo | Feb 15, 2018

The Seventh Circuit Court of Appeals affirmed a jury’s $5 million wrongful death verdict and $625,000 rescue doctrine award in district judge David Herndon’s courtroom involving a fiery tractor trailer collision on Interstate 70. 

Appellate judge Ilana Rovner delivered the Feb. 7 opinion with judges Frank Easterbrook and David Hamilton concurring. 

The opinion states that in the early hours of March 17, 2012, defendant Orentio Thompson was driving his tractor/trailer westbound on Interstate 70 while employed with defendant JBS Carriers Inc. when he noticed a malfunctioning light blinking on the side of his trailer. 

Thompson activated his right turn signal and pulled onto the shoulder of the highway just past the Brownstown, Ill., exit. After coming to a stop, he turned on his four-way flashers and walked around his truck to inspect the lights. 

Thompson unplugged and reattached the electrical connection between the tractor and the trailer, which resolved the blinking light. He returned to the cab of the vehicle. With his flashers still on, he reentered the right lane of the highway and was traveling between 15 and 18 miles per hour when plaintiff Hasib Karahodzic, a commercial truck driver for E.J.A. Trucking, crashed into the back of his trailer. 

Hasib had just come around a large curve in the road before hitting Thompson’s slow-moving truck. The impact form the crash killed Hasib instantly and set his truck on fire, the opinion states. 

Hasib’s son, Edin Karahodzic, was also driving westbound on Interstate 70 for E.J.A. Trucking “in a tragic coincidence.”

Shortly after the collision, Edin came upon the crash 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 thought he was still alive. Edin attempted to pull him from the cab and put out the fire, suffering burns to his hands and face. His attempts to rescue his father were unsuccessful, and he watched his father’s body burn, the opinion states.

Thompson survived the crash but died unexpectedly during the course of litigation. 

Edin called his brother Selvedin Karahodzic to tell him what happened, who drove 80 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, about the tragedy. 

The family suffered emotional trauma from Hasib’s death. Esma had to be taken to a hospital after learning of her husband’s death and never returned to work due to “Major Depressive Disorder.” Edin suffered post-traumatic stress disorder and Selvedin endured emotional suffering every time he drove past the location of the collision. Edina attempted suicide at her father’s grave near the first anniversary of his death, the opinion states. 

Following the collision, JBS Trucking sued Hasib’s estate and E.J.A. Trucking in the U.S. District Court for the Southern District of Illinois. It sought compensation for the damages done to JBS Trucking’s trailer and its contents. E.J.A. Trucking countersued for the damages done to its trailer and contents. 

Edin also countersued JBS Trucking and brought a third-party complaint against Thompson on behalf of the Karahodzic family. Edin also filed a claim individually for injuries he suffered while attempting to rescue his father. The defendants responded by filing a counterclaim against Hasib’sestate.

The parties settled some of the claims before trial, dismissing some claims with prejudice as a result. The court also granted a joint motion to realign the parties so that Edin Karahodzic was recognized as the plaintiff with JBS Carriers and Thompson recognized as the defendants.

Following a nine-day trial, jurors returned verdicts in favor of the plaintiffs on both claims. The jury awarded the Karahodzic family $5 million for their wrongful death claim. However, the jury attributed 55 percent fault to JBS Carriers and Thompson and 45 percent fault to Hasib Karahodzic. The $5 million award was reduced to $2.75 million, as a result. 

Edin Karahodzic was awarded $625,000 for his individual rescue doctrine claim. 

The defendants appealed. They argued that the court erred in refusing to give an Illinois pattern jury instruction on the duty to mitigate damages. They also argued that the court should have apportioned the award given to Edin on his rescue doctrine claim by the same percentage that the jury used in the wrongful death claim. They further argued that the court erred when it allowed the jury to award Esma’s lost earnings as damages under the wrongful death act.  They also argued that they were denied a fair trial due to certain evidentiary rulings, the opinion states. 

Rovner wrote that the trial court did 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.”

“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,” Rovner wrote. 

Rovner added that the defendants could have argued about the plaintiffs’ duty to mitigate in their closing argument if they felt more discussion on the topic was necessary. 

The appellate court also rejected the defendants’ claims that the “careful habits” and “exigent circumstances” instructions mislead and confused the jury.

“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,” Rovner wrote. “We see no abuse of discretion in allowing the jury to consider Edin’s testimony as evidence of his father’s careful habits.”

As for “exigent circumstances,” the appellate court held that this is 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.”

Turning to the defendants’ argument that Edin Karahodzic should be contributorily negligent for his own injuries, the appellate court affirmed the jury’s allocation of fault.

“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,” Rovner wrote.

“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,” she added. 

In regards to Esma Karahodzic’s award for lost earnings, Rovner wrote that the jury was asked to state an amount for Esma’s grief, sorrow and mental suffering, not lost wages. The plaintiffs argued that the decedent’s wife was precluded from working due to her emotional and mental suffering. They characterized her lost wages as a way of quantifying her suffering. 

“Grief, sorrow and mental suffering are highly subjective experiences which are difficult to quantify,” Rovner wrote. “But the inability to work due to that grief is the kind of concrete ‘pecuniary injury’ that the Illinois statute provides for.”

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U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Southern District of Illinois