How Two Horrific Injuries Derailed Illinois Tort Reform

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Starting in the late 1980s, insurance companies and their allies throughout the business sector began a push to limit defendants’ exposure in liability lawsuits. The movement, dubbed “tort reform,” targets state legislatures across the country to rewrite laws to protect business interests by making it harder, if not impossible, for injured parties to receive high damage awards.

Although the plan was comprehensive, a key aspect of tort reform was to place a statutory limit, or a cap, on the amount of noneconomic, i.e., pain and suffering, damages. Business interests might be willing to grudgingly concede that pain and suffering was a compensable loss, but they viewed high awards as wasteful “jackpots” that rewarded plaintiffs and punished businesses excessively. Fortunately for injured plaintiffs, an Illinois Supreme Court case demonstrated how absurd a low cap on pain and suffering damages could be.

The year was 1997 when the Illinois Supreme Court heard a challenge to Public Act 89-7, the tort reform that read in pertinent part:

"In all ... actions that seek damages on account of death, bodily injury, or physical damage to property based on negligence, or product liability based on any theory or doctrine, recovery of non-economic damages shall be limited to $500,000 per plaintiff."

Half a million dollars seemed like a reasonable amount to the denizens of Chicago’s corporate boardroom, but that low cap did not hold up to judicial scrutiny when applied to two horrific accident cases, consolidated in Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997).

The first plaintiff, Vernon Best, had been injured “while he was operating a forklift... designed and manufactured by Taylor Machine Works....” While Best was “moving slabs of hot steel... the forklift's mast and support assembly collapsed.” Suddenly, “flammable hydraulic fluid ... ignited and engulfed Best in a fireball.”

“While on fire, Best leaped from the cab of the forklift and fractured both heels.” As a result, “Best also suffered second and third-degree burns over 40% of his body, including his face, torso, arms, and hands.” Best alleged that his injuries had left him with “noneconomic damages in excess of $500,000.” Best sued to get a declaratory judgment that “Public Act 89-7 ... violates the Illinois Constitution.”

The second plaintiff was the representative of a decedent’s estate. Steven Kelso, then 20 years old, “was killed by a train at a railroad crossing in Madison County, Illinois, on December 12, 1995,” while “driving a truck for his employer.” The complaint alleged that “the train that killed Kelso was negligently operated,” in that “the train's speed was excessive, it did not adequately warn of its approach, and it failed to slow or stop before the crash.”

Moreover, “the railroad crossing was negligently constructed, inspected, and maintained, with inadequate warning signals and other deficiencies.” The complaint filed “under the Wrongful Death Act” challenged the constitutionality of a $500,000 pain and suffering recovery for wrongful death.

The horrific facts of these two cases raise questions about the legislative process, and whether the state assembly had given sober consideration to the full range of the new law’s implications. The Court expressed its disapproval of the political arm-twisting that had produced the so-called reform:

“... the ‘fast track’ stratagem adopted by the bill's proponents was designed to curtail deliberation of the bill. Defendants agree that the passage ... was swift and drew significant objections on the grounds that adequate time for debate was lacking.”

Thus, an ill-conceived law designed to serve a special interest lobby had been rushed through to the detriment of the public. Fortunately, an independent judiciary was able to review the law and concluded the damage caps violated the constitutional rights of plaintiffs. Courts in other states followed, rolling back pain and suffering damage caps for most types of personal injury claims.

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Steve Hochfelsen is an Orange County, California business litigation lawyer and author.
To connect with Steve: [hidden email] or 714-907-0697.



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