{ "id": 906713, "name": "JEROME LIMANOWSKI, Plaintiff-Appellant, v. ASHLAND OIL COMPANY, INC., et al., Defendants-Appellees", "name_abbreviation": "Limanowski v. Ashland Oil Co.", "decision_date": "1995-09-05", "docket_number": "No. 1\u201492\u20143657", "first_page": "115", "last_page": "122", "citations": [ { "type": "official", "cite": "275 Ill. App. 3d 115" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "629 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "257 Ill. App. 3d 119", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2889412 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/257/0119-01" ] }, { "cite": "453 N.E.2d 917", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "117 Ill. 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App. 2d", "case_ids": [ 1601073 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-2d/104/0294-01" ] }, { "cite": "546 N.E.2d 670", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "673" } ], "opinion_index": 0 }, { "cite": "190 Ill. App. 3d 276", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2520481 ], "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0276-01" ] }, { "cite": "537 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "271" } ], "opinion_index": 0 }, { "cite": "127 Ill. 2d 192", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564058 ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0192-01" ] }, { "cite": "629 N.E.2d 690", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "694" } ], "opinion_index": 0 }, { "cite": "258 Ill. 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App. 3d", "case_ids": [ 2462919 ], "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0474-01" ] } ], "analysis": { "cardinality": 784, "char_count": 16390, "ocr_confidence": 0.733, "pagerank": { "raw": 1.8961352460194787e-07, "percentile": 0.7296662855633668 }, "sha256": "c2fa6e9a6dd89431b15ca0965b8310b98adee0d591989be6f79fc4cebe232a9f", "simhash": "1:96e35566b87cb5cc", "word_count": 2606 }, "last_updated": "2023-07-14T15:19:22.263448+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JEROME LIMANOWSKI, Plaintiff-Appellant, v. ASHLAND OIL COMPANY, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE BRADEN\ndelivered the opinion of the court:\nPlaintiff, Jerome Limanowski (Limanowski), appeals from a September 23, 1992, order by the circuit court of Cook County, denying his motion for judgment notwithstanding the verdict.\nLimanowski argues that the trial court erred by (1) allowing defense counsel to make statements during closing argument as to the type of conduct constituting specific intent, where such comments were inconsistent with the trial court\u2019s final jury instructions; (2) instructing the jury that an employee seeking to recover against his employer on an intentional tort theory must prove that the employer specifically intended to injure plaintiff; (3) submitting a supplemental instruction to the jury; and (4) allowing direct examination of Li-manowski concerning previous settlements with third parties as well as allowing references to Limanowski\u2019s remedies under the Workers\u2019 Compensation Act (820 ILCS 305/1 et seq. (West 1992)) during both cross-examination and closing argument.\nWe affirm.\nThis action was originally commenced by Limanowski to recover damages occasioned by the conduct of his employer, Ashland Oil Company, and various supervisors employed by Ashland (collectively Ashland), who allegedly caused Limanowski to handle, inhale, smell or otherwise ingest toxic vapors and fumes and otherwise withheld the toxic and poisonous nature of these chemicals. On October 22, 1984, Limanowski filed a multicount complaint against numerous manufacturers and distributors, as well as Ashland and four of its employees. In his complaint Limanowski sought damages for alleged injuries sustained due to his exposure to chemicals in the workplace. Limanowski based his action on various legal theories, including intentional tort, negligence, products liability and breach of warranty. Limanowski subsequently filed numerous amended complaints in which he ultimately claimed that Ashland, by its employees, had an ongoing policy to intentionally and feloniously poison him. In their answer to counts I and II of Limanowski\u2019s fifth amended complaint, Ashland and its employees raised several affirmative defenses, including the exclusive remedy provisions of the Workers\u2019 Compensation Act (Act) and the Workers\u2019 Occupational Diseases Act (820 ILCS 310/1 et seq. (West 1992)).\nIn 1989, Ashland and four of its employees filed a motion for summary judgment, claiming that the deposition testimony, affidavits and other discovery produced to date failed to prove any facts supporting Limanowski\u2019s claim that Ashland or its employees specifically intended to injure or kill him. On August 27, 1990, the trial court denied the motion for summary judgment. At the close of discovery on March 16, 1992, Ashland and its employees brought another motion for summary judgment. This motion was also denied. On August 10, 1992, a jury rendered a verdict in favor of Ashland and its employees and against Limanowski.\nThe first issue on appeal is whether the trial court committed plain error by allowing defense counsel to make statements during closing arguments as to the type of conduct constituting specific intent, where such comments were inconsistent with the trial court\u2019s final jury instructions and where Limanowski failed to make a contemporaneous objection or raise such issue in a post-trial motion. Ashland asserts that Limanowski failed to raise such objections during closing argument or in a post-trial motion and, as such, waived appellate review of such errors. We agree.\nFailure to raise objection at trial or during post-trial proceedings results in waiver of the right to raise the issue on appeal. (Williamsburg Village Owners\u2019 Association, Inc. v. Lauder Associates (1990), 200 Ill. App. 3d 474, 479, 558 N.E.2d 208, 210.) Failure to object to alleged errors in an opponent\u2019s closing argument is considered waiver of the objection. (Pharr v. Chicago Transit Authority (1991), 220 Ill. App. 3d 509, 515, 581 N.E.2d 162, 166.) Generally, failure to object to any impropriety in counsel\u2019s closing argument results in waiver unless comments are so inflammatory and prejudicial that plaintiff is denied a fair trial. Jarmon v. Jinks (1987), 165 Ill. App. 3d 855, 864, 520 N.E.2d 783, 788.\nHere, the record is devoid of a single objection to defense counsel\u2019s comments regarding jury instructions. Therefore, Limanowski waived appellate review by failing to object to such comments during trial or in his post-trial motion.\nIn determining whether a party has been denied a fair trial because of improper closing argument, the reviewing court gives considerable deference to the trial court because it is in a superior position to assess the accuracy and effect of counsel\u2019s statements. (Guzeldere v. Wallin (1992), 229 Ill. App. 3d 1, 15, 593 N.E.2d 629, 638.) The determination of whether improper remarks of counsel are so prejudicial as to deprive the other party of his right to a fair trial is a matter resting within the sound discretion of the trial court. (Balzekas v. Looking Elk (1993), 254 Ill. App. 3d 529, 535, 627 N.E.2d 84, 89.) Even if the issue was not waived, Limanowski\u2019s argument still must fail because the record is devoid of any indication that the trial court may have abused its discretion in allowing such remarks.\nThe next issue raised on appeal is whether the trial court erred in instructing the jury that an employee, seeking to recover against his employer on an intentional tort theory, must prove, by a preponderance of the evidence, that the employer specifically intended to injure plaintiff.\nLimanowski contends that under Illinois law the \"substantial certainty test\u201d is the standard for determining whether an injury suffered in the workplace is accidental and not intentional for purposes of determining whether he is limited to the exclusive remedy provided under the Act. Limanowski asserts that if an act is committed with the belief that injury is substantially certain to occur, then the conduct is deemed to be intentional.\nAshland, on the other hand, contends that such assertion is inconsistent with Illinois law, a's well as the majority of States which have addressed the issue of intent. Ashland contends that for an employee to escape the exclusive remedy of the Act and recover against his employer on an intentional tort theory, an employee must prove, by a preponderance of the evidence, that the employer specifically intended to injure plaintiff. We agree.\nSection 5(a) of the Act states:\n\"No common law or statutory right to recover damages from the employer *** or the agents or employees of [the employer] for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.\u201d (820 ILCS 305/5(a) (West 1992).)\nSection 11 of the Act also states:\n\"The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer *** for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act ***.\u201d 820 ILCS 305/11 (West 1992).\nThese sections bar an employee from bringing a common law cause of action against his or her employer unless the employee plaintiff proves that (1) the injury was not accidental; (2) the injury did not arise from his or her employment; (3) the injury was not received during the course of employment; or (4) the injury was not compensable under the Act. Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 564 N.E.2d 1222.\nIn Copass v. Illinois Power Co. (1991), 211 Ill. App. 3d 205, 569 N.E.2d 1211, the court addressed the standard for determining whether an employee\u2019s injury was accidental for the purposes of escaping the exclusive remedy provided under the Act. In Copass, a suit was brought by a widow whose husband had been killed while working on a gas pipeline for his employer, Illinois Power Company. The husband was killed in an explosion while testing the pipeline for leaks. The widow alleged that the power company committed an intentional tort against her husband when it allowed him to test the pipeline without proper training and without being warned of the danger of the work to be performed. The widow alleged that the power company knew with substantial certainty that its actions would result in injury to her husband. The Copass court rejected the widow\u2019s argument that the Restatement (Second) of Torts\u2019 \"substantial certainty\u201d test should control, reasoning that it was more consistent with the purposes of the Act to require the employee to show a specific intent to injure on the part of the employer. (Copass, 211 Ill. App. 3d at 212-14, 569 N.E.2d at 1215-16.) The court in Copass noted that the Act sought to balance the interests of employers and employees with regard to on-the-job injuries:\n\"Under workers\u2019 compensation, employees may recover for injuries without proving the employer was at fault, and they are to be provided swift and certain recovery. In exchange, workers\u2019 compensation becomes the exclusive remedy because employees give up the right to pursue a potentially larger judgment in a common law action.\u201d Copass, 211 Ill. App. 3d at 213, 596 N.E.2d at 1216, citing 2A A. Larson, Law of Workmen\u2019s Compensation \u00a7 65.11, at 12\u20141 through 12\u20149 (1990).\nThe court in Bercaw v. Domino\u2019s Pizza, Inc. (1994), 258 Ill. App. 3d 211, 630 N.E.2d 166, also relied on the holding in Copass, stating:\n\"We believe, like the Copass court, that use of the substantial certainty standard would be unduly difficult to employ in distinguishing between accidental and nonaccidental injuries and that adoption of the substantial certainty test would upset the Act\u2019s balance of interest.\u201d (Bercaw, 258 Ill. App. 3d at 215, 630 N.E.2d at 169.)\nIn adopting the holding in Copass, the Bercaw court stated that the \"specific intent to injure\u201d test was in keeping with the basic purposes of the Act, and that adoption of this doctrine by the second district would avoid unnecessary litigation. Bercaw, 258 Ill. App. 3d at 218, 630 N.E.2d at 171-72.\nThis court has also adopted the specific intent standard as stated in Copass. In Mayfield v. Acme Barrel Co. (1994), 258 Ill. App. 3d 32, 629 N.E.2d 690, the court addressed whether an injury is accidental for the purpose of applying the Act. The court held that it is only when the employer acts with specific intent to injure the employee that the resultant injury is stripped of its accidental character. The Mayfield court quoted Professor Larson\u2019s treatise as follows:\n\" 'Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully and unlawfully violating a safety statute, *** this still falls short of the kind of actual intention to injure that robs the injury of accidental character.\u2019 2A A. Larson, Workmen\u2019s Compensation Law \u00a7 68.13, at 13\u201436 to 13\u201444 (1990).\u201d Mayfield, 258 Ill. App. 3d at 36, 629 N.E.2d at 694.\nHere, the trial court properly instructed the jury that an employee, seeking to recover against his employer on an intentional tort theory, must prove, by a preponderance of the evidence, that the employer specifically intended to injure plaintiff.\nThe next issue we must address is whether the trial court committed reversible error by submitting a supplemental instruction to the jury, where the jury submitted a written request for clarification regarding the court\u2019s previous instruction and where Limanowski failed to make either a contemporaneous objection or raise such issue in a post-trial motion.\nLimanowski contends that the trial court\u2019s response to the jury\u2019s request for clarification of the court\u2019s previously issued jury instruction confused the jury as to the burden of proof. Specifically, Li-manowski asserts that the trial court stated that the action before the court was not a negligence case, confusing the jury as to whether the burden of proof in such an action was \"more probable than not\u201d or \"clear and convincing.\u201d\nHere, Limanowski has again waived any objection to the jury instruction by failing to object to the instruction and by failing to tender any instruction setting forth the argument made here on appeal. (Deal v. Byford (1989), 127 Ill. 2d 192, 202-03 537 N.E.2d 267, 271.) Although the record indicates that Limanowski\u2019s post-trial motion alleged that the jury was improperly instructed as to the definition of intent in an intentional tort action, the record is devoid of any specific objection by Limanowski to the negligence/burden of proof instruction provided by the trial court. Nor does the record indicate that Limanowski raised any such objection in his post-trial motion. As such, Limanowski failed to properly preserve his objection for review.\nA reviewing court may find error even if the matter was not preserved by the lower court or opposing counsel if prejudicial conduct of one attorney affects the conduct of the case so severely that litigants could not receive a fair trial. McGrath v. Chicago & North Western Transportation Co. (1989), 190 Ill. App. 3d 276, 280, 546 N.E.2d 670, 673.\nHere, the record contains no evidence that the trial court erred in providing the jury with clarification of the meaning of both \"specific intent\u201d and the \"burden of proof\u2019 in a negligence action. The court merely responded to the jury\u2019s request for such clarification. It is well established under Illinois law that a court has the duty to further instruct where the jury requests clarification, at least where the original instructions were incomplete or where the jurors indicate confusion. (People v. Harmon (1968), 104 Ill. App. 2d 294, 244 N.E.2d 358; People v. Kucala (1972), 7 Ill. App. 3d 1029, 288 N.E.2d 622.) The record also indicates that the trial court\u2019s supplemental jury instruction was prepared after consulting with counsel for both parties, neither of which objected to the content of the response. Therefore, Limanowski\u2019s contention is without merit.\nThe final issue we must address is whether defense counsel\u2019s direct examination of Limanowski concerning previous settlements with third parties or defense counsel\u2019s references to Limanowski\u2019s remedies under the Act constituted plain error, depriving him of a fair trial, where he failed to make either a contemporaneous objection or raise such issue in a post-trial motion.\nLimanowski contends that defense counsel\u2019s direct examination of Limanowski concerning prior settlement agreements with third parties and defense counsel\u2019s reference to Limanowski\u2019s remedies under the Act, during both cross-examination and closing arguments, constituted plain error and, as such, Limanowski should be granted a new trial.\nHere, we need not address whether the trial court abused its discretion either as to the scope and latitude of direct and cross-examination or as to the scope of closing argument. By failing to object, Limanowski waived any objections to both defense counsel\u2019s direct examination concerning prior settlement agreements with third parties (Wood v. Mobil Chemical Co. (1977), 50 Ill. App. 3d 465, 365 N.E.2d 1087), and defense counsel\u2019s comments regarding Limanowski\u2019s remedies under the Workers\u2019 Compensation Act, both during cross-examination (Walker v. Maxwell City, Inc. (1983), 117 Ill. App. 3d 571, 453 N.E.2d 917) and in closing argument. Flores v. Cyborski (1993), 257 Ill. App. 3d 119, 629 N.E.2d 74.\nFor the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nCAMPBELL, P.J., and BUCKLEY, J., concur.", "type": "majority", "author": "JUSTICE BRADEN" } ], "attorneys": [ "Michael J. Rovell, Lisa I. Fair, Jeffrey R. Platt, and William F. Zito, Jr., all of Law Offices of Michael J. Rovell, of Chicago, for appellant.", "Stevenson, Rusin & Friedman, Ltd., of Chicago, and Baker, Worthington, Crossley, Stanberry & Woolf, of Knoxville, Tennessee (Larry J. Chilton and W. Kyle Carpenter, of counsel), for appellees Ashland Oil Company, Jack Frost and Jack Sweet." ], "corrections": "", "head_matter": "JEROME LIMANOWSKI, Plaintiff-Appellant, v. ASHLAND OIL COMPANY, INC., et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 1\u201492\u20143657\nOpinion filed September 5, 1995.\nMichael J. Rovell, Lisa I. Fair, Jeffrey R. Platt, and William F. Zito, Jr., all of Law Offices of Michael J. Rovell, of Chicago, for appellant.\nStevenson, Rusin & Friedman, Ltd., of Chicago, and Baker, Worthington, Crossley, Stanberry & Woolf, of Knoxville, Tennessee (Larry J. Chilton and W. Kyle Carpenter, of counsel), for appellees Ashland Oil Company, Jack Frost and Jack Sweet." }, "file_name": "0115-01", "first_page_order": 133, "last_page_order": 140 }