Illinois Supreme Court Affirms Special Interrogatory Was Inconsistent with General Verdict, Reversing in Plaintiff’s Favor

The Illinois Supreme Court was asked to determine whether this special interrogatory given to the jury in this lawsuit was in proper form and whether the jury’s answer to the special interrogatory was inconsistent with its general verdict in the plaintiff’s favor.

The Circuit Court of Winnebago County held that the jury’s answer to the special interrogatory was inconsistent with the general verdict and entered judgment in favor of the defendants. The Illinois Appellate Court reversed, 2017 IL App (2d) 161086, finding that the special interrogatory was not in proper form and, therefore, should not have been given to the jury.

In addition, the court determined that because the special interrogatory was ambiguous, the jury’s answer was not necessarily inconsistent with its general verdict. For those reasons, the Illinois Supreme Court affirmed the judgment of the appellate court.

The plaintiff, Zachary Stanphill was the administrator of the estate of his deceased father, Keith Stanphill. Zachary filed a wrongful death and survival action against licensed clinical social worker and employee assistance program counselor, Lori Ortberg. Ortberg was an employee of Rockford Memorial Hospital.

It was alleged in the complaint that on Sept. 30, 2005, the decedent, Keith Stanphill, had an initial one-hour appointment with Ortberg and that it was Ortberg’s duty at that time to evaluate and assess Stanphill’s mental health. It was also alleged that Ortberg breached her duty by performing an inadequate assessment of Stanphill’s mental status, and as a result, Ortberg incorrectly diagnosed Stanphill’s condition, chose not to recognize that he was at high risk for suicide. It was also alleged that she failed to refer him to a hospital emergency room or a psychiatrist for immediate evaluation or treatment. Lastly, it was alleged that as a consequence of Ortberg’s professional negligence, Stanphill did not receive the care and assistance he required, which led to his suicide.

A jury trial took place between May 24 and June 2, 2016.

Stanphill’s depression began when he learned that his wife was having an affair with another man. At trial, Ortberg conceded on cross-examination that, as a competent licensed clinical social worker, she believed if the patient was at imminent risk of committing suicide, it would be her duty to see that the person was taken to a hospital emergency room – either by a family member or by the police – for further evaluation and, if a psychiatrist found it to be necessary, admission for inpatient treatment. In this case, however, Ortberg testified that she had concluded that Stanphill was not at imminent risk of committing suicide. Therefore, she did not contact Stanphill’s family or refer him to an emergency room or psychiatrist for further evaluation or observation.

The jury heard testimony from four expert witnesses, two for the plaintiff and two for the defense.

At the end of the trial, the defendants offered a special interrogatory the circuit court submitted to the jury over the plaintiff’s objection. The special interrogatory, which tracked the language of the special interrogatory in a case Garcia v. Seneca Nursing Home, 2011 IL App (1st) 103085, asked the jury to respond “Yes” or “No” to the following question: “Was it reasonably foreseeable to Lori Ortberg on Sept. 30, 2005, that Keith Stanphill would commit suicide on or before Oct. 9, 2015?”

During closing argument, plaintiff’s counsel reminded the jury that they would be required to answer a special interrogatory that asked whether this suicide was reasonably foreseeable to Ortberg on Sept. 30, 2005. Plaintiff’s counsel told the jury: “The answer is absolutely yes, without question.” The defense, on the other hand, advised the jury, “This is our special interrogatory * * * and I would ask that you check the box No.”

After deliberating, the jury entered a general jury verdict, finding in favor of the plaintiff and against the defendants. The damages were awarded on the wrongful death claim in the amount of $1,495,131. However, the jury answered “No” on the special interrogatory.

After hearing argument from the parties, the circuit court concluded that it was bound by the appellate court decision in Garcia and ruled that the answer to the special interrogatory was inconsistent with the general verdict in plaintiff’s favor. Consequently, the circuit court overturned the general verdict and entered judgment in the defendants’ favor. Plaintiff filed a post-trial motion, challenging that decision. Special interrogatories are governed by Section 2-1008 of the Code of Civil Procedure (735 ILCS 5/2-1108) which provides:

“§ 2-1108. Verdict – Special interrogatories. Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact submitted to the jury in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly.”

On appeal, both the appellate court and the Supreme Court found that the special interrogatory was not in proper form because it did not apply the objective “reasonable person” standard for determining foreseeability and, as a result, it misstated the law, was ambiguous and confusing, and should not have been given to the jury.

A special interrogatory is proper and must be given upon a party’s request if it tests an ultimate fact on which the rights of the parties depend. Hooper v. County of Cook, 366 Ill.App.3d 1, 6 (2006). As far as wrongful death cases involving suicide, the general rule is that the injured party’s voluntary act of suicide is an independent intervening act, which is unforeseeable as a matter of law and breaks the causal link between any alleged negligent conduct and injury. Turcios v. DeBruler Co., 2015 IL 117962. Accordingly, whether it is reasonably foreseeable that a person is at risk of suicide is a key factor in determining whether the proximate cause element has been sufficiently proven. As such, whether Keith’s suicide was reasonably foreseeable in this case is an ultimate fact upon which the rights of the parties depend and, therefore, a proper subject for a special interrogatory.

Here the defendants proffered a special interrogatory that was intended to test the foreseeability aspect of a proximate cause. However, the interrogatory did not apply an objective standard and asked whether it was foreseeable to a reasonable person or to a reasonable licensed clinical social worker that Stanphill was at risk of committing suicide.

Instead, the interrogatory was phrased in the subjective, asking whether it was “reasonably foreseeable to Lori Ortberg on Sept. 30, 2005, that Keith Stanphill would commit suicide on or before Oct. 9, 2005?” Because the interrogatory was phrased in the subjective, it was necessarily improper. Indeed, no other conclusion is possible.

The negligent defendant does not foresee the likely result of her tortious conduct. Thus, if legal cause were defined in the subjective, i.e., if it were defined as what the individual defendant foresaw, the likely result of her conduct to be, then legal cause will never exist in those instances where defendant’s conduct is negligent. This cannot be the case. Accordingly, because the interrogatory in this case did not apply an objective standard to determine reasonable foreseeability, it did not test an ultimate fact of the case and should not have been given to the jury.

Accordingly, the Supreme Court found that the special interrogatory given to the jury in this case was in improper form and thus the Supreme Court and the appellate court were correct in reversing the trial court’s entry of the defense verdict.

Stanphill v. Ortberg, et al., 2018 IL 122974.

Kreisman Law Offices has been handling wrongful death lawsuits, misdiagnosis of cancer cases, birth trauma injury cases and medical negligence cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Mettawa, Bannockburn, Deerfield, Riverwoods, Buffalo Grove, Northbrook, Northfield, Morton Grove, Skokie, Evanston, Arlington Heights, Orland Park, Aurora, St. Charles, Chicago (McKinley Park, North Lawndale, Little Village, East Garfield Park, Humboldt Park, Bucktown, Lakeview, Uptown, Edgewater, Bronzeville, Jefferson Park, Belmont Cragin, Portage Park), Lincolnshire, Mount Prospect, Glenview and Highland Park, Ill.