text:
    John JONES and Deborah Jones, Plaintiffs-Appellants, v. PNEUMO ABEX LLC and Owens-Illinois, Inc., Defendants-Appellees.
    NO. 5-16-0239
    Appellate Court of Illinois, Fifth District.
    Filed August 10, 2018
    James R. Wylder, Charles L. Corwin, and Stephen F. Wood, of Wylder Corwin Kelly, LLP, of Bloomington, for appellants.
    Robert Scott Jr., of Swain, Hartshorn & Scott, and Craig L. Unrath, of Heyl, Royster, Voelker & Allen, both of Peoria, Raymond H. Modesitt, of Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, of Terre Haute, Indiana, and Reagan W. Simpson, of Yetter Coleman LLP, of Houston, Texas, for appellee Pneumo Abex LLC.
    Robert H. Riley, Matthew V. Chimienti, Matthew J. Fischer, and Alissa B. Kelso, of Riley Safer Holmes & Cancila LLP, of Chicago, for other appellee.
   JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, John and Deborah Jones, brought an action against defendants, Pneumo Abex LLC (Abex) and Owens-Illinois, Inc. (Owens-Illinois), among others, to recover for harm that John allegedly suffered as a result of asbestos exposure that occurred while John was employed in construction. Plaintiffs' complaint alleged Abex was responsible for John's injuries because it entered into a civil conspiracy with Johns-Manville and other manufacturers of asbestos-containing products to suppress information about the harmful health effects of asbestos and to falsely assert asbestos exposure was safe. The complaint further alleged that Owens-Illinois entered into the same conspiracy with Owens-Corning Fiberglas Corporation (Owens-Corning), a nonparty in this case. The trial court entered summary judgment in favor of defendants on the civil conspiracy claims. On appeal, plaintiffs argue that the trial court erred in granting summary judgment because genuine issues of material fact exist as to (1) whether defendants entered into a conspiratorial agreement to suppress or misrepresent information about the health hazards of asbestos and (2) whether defendants committed acts in furtherance of such an agreement. For the following reasons, we reverse and remand this cause for further proceedings consistent with this opinion.

¶ 2 BACKGROUND

¶ 3 The two defendants in this appeal are (1) Abex, a manufacturer of asbestos-containing brake linings, and (2) Owens-Illinois, a manufacturer and distributor of Kaylo, an asbestos-containing insulation, between 1948 and 1958. Plaintiffs' complaint against defendants is based on civil conspiracy. Neither defendant employed John, and plaintiffs' conspiracy claim against Abex does not allege any asbestos exposure directly attributable to Abex. According to plaintiffs' complaint, John contracted lung cancer from his exposure to asbestos-containing insulation during his career in construction, which began in 1969. The complaint asserted John worked with Johns-Manville and Owens-Corning insulation during his construction career.

¶ 4 As to plaintiffs' claim of conspiracy, the complaint alleged that Abex conspired with other manufacturers of asbestos-containing products to falsely assert it was safe for people to work in close proximity to asbestos and to suppress information about the harmful health effects of asbestos exposure. Plaintiffs claim Abex committed numerous tortious acts in furtherance of the conspiracy. Specifically, plaintiffs argue that although Abex was aware of the health hazards of asbestos exposure, it continued making and distributing asbestos-containing products without adequately protecting employees and customers, and it also manipulated the scientific and legal landscape to shield the asbestos industry from liability and ensure continued profitability. The complaint alleged John was injured as a result of this conspiratorial conduct.

¶ 5 The complaint identified the following overt acts that were allegedly committed by the companies in furtherance of the conspiracy: (1) selling asbestos products, which were used at John's work, without warning customers of the health hazards of asbestos exposure; (2) failing to warn employees about the health hazards of asbestos exposure; (3) editing and altering reports and drafts of publications initially prepared by Dr. Anthony Lanza, a physician employed by another alleged conspirator, Metropolitan Life Insurance, during the 1930s, which concerned the health hazards of asbestos exposure; (4) entering into a written agreement to suppress the results of research on the health effects of asbestos exposure; (5) obtaining an agreement in the 1930s from the editors of ASBESTOS Magazine, the only trade magazine devoted exclusively to asbestos, that the magazine would not publish articles connecting asbestos exposure to disease and sustaining such agreement into the 1970s; (6) suppressing the dissemination of a 1943 report prepared by Dr. LeRoy Gardner, a former director of the Saranac Laboratory for the Study of Tuberculosis (Saranac Laboratory), in which he was critical of the idea that there was a safe level of asbestos exposure; (7) defeating further study of the health of workers through their control of the Asbestos Textile Institute; (8) editing and altering reports and publication drafts initially prepared by Dr. Arthur Vorwald, a former director at Saranac Laboratory, from 1948 through 1951; (9) suppressing the results of the fibrous dust studies conducted between 1966 and 1974 that concluded asbestos exposure caused lung cancer and mesothelioma ; (10) participating in drafting a pamphlet published by the National Insulation Manufacturers Association (NIMA) which purportedly failed to disclose the specific health hazards of asbestos exposure; (11) purchasing asbestos without warning labels from co-conspirators; (12) refusing to warn employees who used asbestos-containing materials in the manufacture of the companies' products; and (13) altering the original report of a study performed by the Industrial Hygiene Foundation to delete all references to the association of asbestosis (scarring of the lungs) and lung cancer. The complaint further alleged that Owens-Illinois engaged in the same conspiracy with Owens-Corning.

¶ 6 In June 2015, Abex filed a motion for summary judgment, asking the trial court to follow Rodarmel v. Pneumo Abex, L.L.C. , 2011 IL App (4th) 100463, 354 Ill.Dec. 6, 957 N.E.2d 107, Menssen v. Pneumo Abex Corp. , 2012 IL App (4th) 100904, 363 Ill.Dec. 543, 975 N.E.2d 345, and Gillenwater v. Honeywell International, Inc. , 2013 IL App (4th) 120929, 375 Ill.Dec. 123, 996 N.E.2d 1179, all Fourth District cases that found there was insufficient evidence to show Abex had agreed with other companies to suppress or misrepresent the health hazards of asbestos. In August 2015, Owens-Illinois filed a separate motion for summary judgment, also arguing, in pertinent parts, that there was insufficient evidence to support a finding of conspiracy. Relying on these Fourth District civil conspiracy cases, the trial court granted summary judgment in favor of defendants.

¶ 7 This appeal followed.

¶ 8 ANALYSIS

¶ 9 "Civil conspiracy is defined as 'a combination of two or more persons for the purpose of accomplishing by concerted action either an unlawful purpose or a lawful purpose by unlawful means.' " McClure v. Owens Corning Fiberglas Corp. , 188 Ill. 2d 102, 133, 241 Ill.Dec. 787, 720 N.E.2d 242 (1999) (quoting Buckner v. Atlantic Plant Maintenance, Inc. , 182 Ill. 2d 12, 23, 230 Ill.Dec. 596, 694 N.E.2d 565 (1998) ). To state a claim for civil conspiracy, a plaintiff must allege the existence of an agreement and a tortious act committed in furtherance of that agreement. Id.

¶ 10 "Civil conspiracy is an intentional tort and requires proof that a defendant 'knowingly and voluntarily participates in a common scheme to commit an unlawful act or a lawful act in an unlawful manner.' " Id. (quoting Adcock v. Brakegate, Ltd. , 164 Ill. 2d 54, 64, 206 Ill.Dec. 636, 645 N.E.2d 888 (1994) ). Accidental, inadvertent, or negligent participation in a common scheme does not result in conspiracy. Id. at 133-34, 241 Ill.Dec. 787, 720 N.E.2d 242. Moreover, mere knowledge of the fraudulent or illegal actions of another does not amount to conspiracy. Id. at 134, 241 Ill.Dec. 787, 720 N.E.2d 242.

¶ 11 Because a conspiracy is almost never susceptible to direct proof, it is usually established by circumstantial evidence and inferences drawn from the evidence, coupled with common sense knowledge of the behavior of persons in similar circumstances. Id. However, if a civil conspiracy is shown by circumstantial evidence, that evidence must be clear and convincing. Id. Our supreme court has determined that "parallel conduct may serve as circumstantial evidence of a civil conspiracy among manufacturers of the same or similar products but is insufficient proof, by itself, of the agreement element of this tort." Id. at 135, 241 Ill.Dec. 787, 720 N.E.2d 242. Evidence of parallel conduct alone is insufficient to establish a civil conspiracy by clear and convincing evidence. Id. at 146, 241 Ill.Dec. 787, 720 N.E.2d 242.

¶ 12 This appeal is before us on the trial court's grant of summary judgment in favor of defendants. Summary judgment is appropriate only where the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. General Casualty Insurance Co. v. Lacey , 199 Ill. 2d 281, 284, 263 Ill.Dec. 816, 769 N.E.2d 18 (2002). A triable issue precluding summary judgment exists where the material facts are disputed or where the material facts are undisputed but reasonable persons might draw different inferences from those facts. Morris v. Union Pacific R.R. Co. , 2015 IL App (5th) 140622, ¶ 23, 396 Ill.Dec. 330, 39 N.E.3d 1156.

¶ 13 In determining whether a genuine issue of material fact exists, the court should construe the pleadings, depositions, admissions, exhibits, and affidavits strictly against the movant and liberally in favor of the nonmoving party, drawing all reasonable inferences in favor of the nonmovant. Id. ; Shuttlesworth v. City of Chicago , 377 Ill. App. 3d 360, 366, 316 Ill.Dec. 581, 879 N.E.2d 969 (2007). Summary judgment is a drastic remedy and should only be allowed when a moving party's right is clear and free from doubt. Morris , 2015 IL App (5th) 140622, ¶ 22, 396 Ill.Dec. 330, 39 N.E.3d 1156. "The purpose of summary judgment is not to try a question of fact, but to determine if one exists." Robidoux v. Oliphant , 201 Ill. 2d 324, 335, 266 Ill.Dec. 915, 775 N.E.2d 987 (2002). We review a summary judgment ruling de novo . Morris , 2015 IL App (5th) 140622, ¶ 23, 396 Ill.Dec. 330, 39 N.E.3d 1156.

¶ 14 After careful review, we find the record is replete with genuine issues of material fact from which a trier of fact could reasonably conclude the existence and acts in furtherance of a civil conspiracy. Consequently, the trial court erred in granting summary judgment in favor of defendants and against plaintiffs.

¶ 15 As to Abex, for example, plaintiffs presented evidence that Abex allegedly entered into an agreement with Johns-Manville to suppress or misrepresent information regarding the health hazards of asbestos. Specifically, plaintiffs introduced evidence that Abex signed a 1936 agreement to underwrite experiments with asbestos dust to be performed by Dr. Gardner. Further evidence shows that after Abex received a copy of the 1948 report of Dr. Gardner's dusting experiments, which was published two years after Dr. Gardner's death, Abex returned the report at the request of Johns-Manville's general counsel, Vandiver Brown, who wanted all references to cancers and tumors deleted from the report. Brown felt it would be unwise to have any copies of the draft report outstanding if the final report was to be different in any substantial respect. Plaintiffs also produced evidence that shows Abex asked Brown to act on its behalf at a conference in which the sponsoring companies of Dr. Gardner's experiments agreed to delete any reference to cancer and tumors from the final published report.

¶ 16 Similarly, plaintiffs presented evidence that Owens-Illinois allegedly entered into an agreement with Owens-Corning to suppress information about the hazards of asbestos. Owens-Corning was formed by Owens-Illinois and Corning Glass in 1938. Plaintiffs presented evidence that Owens-Illinois began manufacturing and selling a thermal insulation product named Kaylo in 1943, and Owens-Illinois continued to sell Kaylo after it received warning that it was potentially a respiratory hazard. One such warning was from Dr. Vorwald, who wrote to Owens-Illinois in 1952 that studies showed "Kaylo dust is capable of producing a peribronchiolar fibrosis typical of asbestosis."

¶ 17 Plaintiffs' evidence indicates Owens-Illinois and Owens-Corning entered into a distributorship agreement in 1953. Under the agreement, Owens-Illinois continued to manufacture Kaylo and Owens-Corning distributed it. This agreement lasted until 1958 when Owens-Illinois sold its Kaylo division to Owens-Corning. Plaintiffs presented evidence that during this agreement, the two companies did not place any warning on Kaylo packaging. Rather, plaintiffs' evidence shows the companies advertised Kaylo as "non-toxic" despite knowing the advertisement was false. Plaintiffs' evidence further indicates the two companies remained close after Owens-Illinois sold its Kaylo division to Owens-Corning in 1958. Owens-Illinois continued to provide warning-free packaging for Kaylo until the late 1960s, and Owens-Illinois maintained a major investment in Owens-Corning into the 1970s. Plaintiffs produced evidence that Owens-Illinois owned over 750,000 shares of Owens-Corning stock as late as 1978. Plaintiffs' evidence also indicates that the profits and earnings of Owens-Corning were a recurrent topic of conversation at Owens-Illinois directors meetings from the 1940s through the 1970s.

¶ 18 The foregoing examples are only a few of the numerous genuine issues of material fact in the record from which a trier of fact could find the elements of civil conspiracy by clear and convincing evidence. When construing the record liberally in favor of plaintiffs, it is possible for a fair-minded trier of fact to find in favor of plaintiffs. We acknowledge that defendants dispute plaintiffs' evidence. At the very least, however, reasonable persons could draw different inferences from the facts of record. At this stage in the litigation, it was error for the trial court to weigh the evidence and grant summary judgment.

¶ 19 The trial court in this case relied on two dispositions rendered by our colleagues in the Fourth District in arriving at its decision to grant summary judgment in favor of defendants. The court cited Rodarmel , 2011 IL App (4th) 100463, 354 Ill.Dec. 6, 957 N.E.2d 107, in support of its decision to grant summary judgment in favor of Abex, concluding "this matter is indistinguishable from Rodarmel on the material issues." The court also cited Gillenwater , 2013 IL App (4th) 120929, 375 Ill.Dec. 123, 996 N.E.2d 1179, in support of its decision to grant summary judgment in favor of Owens-Illinois, concluding "this matter is indistinguishable from Gillenwater on the material issues." There is a fatal flaw in the court's reliance on these two authorities: the action of the trial court at issue in both cases was judgment notwithstanding the verdict (n.o.v. ), not summary judgment.

¶ 20 In Rodarmel , the Fourth District considered whether the agreement between Abex and other asbestos-manufacturing companies to suppress the cancer references in the Saranac publication was a conspiratorial agreement. The court found no evidence that Abex agreed with other companies to suppress or misrepresent the health hazards of asbestos. Rodarmel , 2011 IL App (4th) 100463, ¶ 132, 354 Ill.Dec. 6, 957 N.E.2d 107. Therefore, the court held that Abex was entitled to a judgment n.o.v. "because of a lack of clear and convincing evidence on the agreement element of a civil conspiracy." Id.

¶ 21 In Gillenwater , the Fourth District found there was clear and convincing evidence that Owens-Illinois and Owens-Corning engaged in a conspiracy to conceal that Kaylo dust was potentially a respiratory hazard from 1953 to 1958, during the period of the distributorship between the two companies. Gillenwater , 2013 IL App (4th) 120929, ¶ 96, 375 Ill.Dec. 123, 996 N.E.2d 1179. However, the court concluded the conspiracy ended with Owens-Illinois's sale of its Kaylo division to Owens-Corning at the end of the distributorship agreement in 1958. Id. ¶¶ 107-08. Because the conspiracy between the two companies ended in 1958, 14 years prior to the plaintiff's alleged injury by Kaylo in 1972, the court affirmed the trial court's grant of judgment n.o.v. to Owens-Illinois. Id. ¶¶ 107, 118.

¶ 22 In this case, the action is at the summary judgment stage, not the judgment n.o.v. stage as in the Fourth District cases. Plaintiffs were not required to prove a conspiracy by clear and convincing evidence in order to survive a motion for summary judgment. Rather, plaintiffs were merely required to present sufficient facts, when viewed in the light most favorable to plaintiffs, from which a trier of fact could find the existence of a conspiracy by clear and convincing evidence. At this stage of the litigation, there are genuine factual issues from which a trier of fact may conclude by a clear and convincing standard the elements of civil conspiracy. These questions should have been considered by the trier of fact.

¶ 23 In sum, there are no definitive answers to the disputed questions of fact presented by plaintiffs at this point in the litigation, thereby precluding summary judgment. Again, the purpose of summary judgment is to determine whether a genuine issue of material fact exists, not to try a question of fact. To ignore this standard of analysis and mechanically follow cases applying a different, judgment n.o.v. , standard rather than the rationale and black letter law of summary judgment stands the concept of summary judgment on its head and results in our appellate court, in effect, trying the case. For these reasons, the trial court erred in granting summary judgment in favor of defendants.

¶ 24 CONCLUSION

¶ 25 For the foregoing reasons, we reverse the trial court's order granting summary judgment in favor of defendants and remand this cause for further proceedings.

¶ 26 Reversed and remanded.

Presiding Justice Barberis and Justice Welch concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Aretha L. PETTIGREW, Defendant-Appellant.
    NO. 4-17-0808
    Appellate Court of Illinois, Fourth District.
    FILED August 31, 2018
    James E. Chadd, Jacqueline L. Bullard, and Sheril J. Varughese, of State Appellate Defender's Office, of Springfield, for appellant.
    Julia Rietz, State's Attorney, of Urbana (Patrick Delfino, David J. Robinson, and Erin Wilson Laegeler, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In October 2002, the trial court sentenced defendant, Aretha Pettigrew, in absentia . In September 2017, after being arrested, defendant filed a pro se motion for a good cause hearing. 725 ILCS 5/115-4.1(e) (West 2016). The court denied the motion without an evidentiary hearing. Defendant appeals, arguing that the trial court erred in denying her motion without first conducting an evidentiary hearing. We agree and vacate the order denying defendant's motion and remand with directions.

¶ 2 I. BACKGROUND

¶ 3 A. The Sentence

¶ 4 In February 2002, defendant pleaded guilty to unlawful possession of a controlled substance. 720 ILCS 570/401(c)(2) (West 2000). The trial court sentenced defendant to 24 months of probation. In August 2002, the State filed a petition to revoke her probation. Defendant admitted to the allegations in the petition to revoke.

¶ 5 In October 2002, the trial court conducted a sentencing hearing at which defendant was not present. Apparently, while on bond, defendant fled to Mississippi. The court sentenced defendant, in absentia , to an extended term of six years in prison.

¶ 6 B. The Relevant Procedural History

¶ 7 In March 2017, defendant was arrested while she was in Champaign County, Illinois. Later that month, defendant filed a pro se notice of appeal. In August 2017, this court granted defendant's motion to dismiss appeal. People v. Pettigrew , No. 4-17-0450 (2017) (unpublished summary order under Illinois Supreme Court Rule 23(c) ).

¶ 8 In September 2017, defendant filed a pro se motion for a good cause hearing. 725 ILCS 5/115-4.1(e) (West 2016). In the petition, defendant alleged that while she was on bond, she was raped. She claimed that she fled to Mississippi because she "feared for her life." She claimed that she had lived a "law[-]abiding" life during her 14 years in Mississippi and that she was arrested in Illinois when she went to visit her dying mother.

¶ 9 In October 2017, the trial court denied defendant's motion without an explanation for its ruling. The court did not conduct an evidentiary hearing on whether defendant could establish a valid excuse for her absence.

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 Defendant appeals, arguing that the trial court erred in denying her motion without first conducting an evidentiary hearing. We agree.

¶ 13 A. The Applicable Law

¶ 14 Section 115-4.1(e) of the Code of Criminal Procedure of 1963 provides as follows:

"When a defendant who in his absence has been either convicted or sentenced or both convicted and sentenced appears before the court, he must be granted a new trial or new sentencing hearing if the defendant can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control. A hearing with notice to the State's Attorney on the defendant's request for a new trial or a new sentencing hearing must be held before any such request may be granted. At any such hearing both the defendant and the State may present evidence." (Emphases added.) 725 ILCS 5/115-4.1(e) (West 2016).

¶ 15 A defendant who files a motion for a new trial or a new sentencing hearing under Section 115-4.1(e) must be granted an evidentiary hearing in which the defendant will be given the opportunity to establish that his or her failure to appear in court was (1) without the defendant's fault and (2) due to circumstances beyond the defendant's control. Id. ; People v. Cobian , 2012 IL App (1st) 980535, ¶ 21, 364 Ill.Dec. 758, 977 N.E.2d 247. This hearing is statutorily required, and a motion for a new sentencing hearing cannot be summarily disregarded. People v. Brown , 121 Ill. App. 3d 776, 779, 77 Ill.Dec. 79, 459 N.E.2d 1175, 1177 (1984) (disagreed with on other grounds in People v. Partee , 125 Ill. 2d 24, 34-36, 125 Ill.Dec. 302, 530 N.E.2d 460, 465 (1988) ). A reviewing court cannot affirm a trial court's dismissal of a motion for a good cause hearing unless an evidentiary hearing was conducted. Cobian , 2012 IL App (1st) 980535, ¶ 21, 364 Ill.Dec. 758, 977 N.E.2d 247.

¶ 16 B. This Case

¶ 17 In this case, defendant filed a pro se motion for a good cause hearing.

725 ILCS 5/115-4.1(e) (West 2016). The trial court summarily rejected the motion without conducting an evidentiary hearing. Accordingly, the trial court erred, and we vacate its order and remand with directions.

¶ 18 III. CONCLUSION

¶ 19 For the reasons stated, we vacate the trial court's order and remand for an evidentiary hearing to determine whether defendant's absence from sentencing was without her fault and due to circumstances beyond her control. 725 ILCS 5/115-4.1(e) (West 2016). If the court concludes that defendant's absence was without fault and due to circumstances beyond her control, then the court must conduct a new sentencing hearing.

¶ 20 Vacated and remanded with directions.

Presiding Justice Harris and Justice Cavanagh concurred in the judgment and opinion.


text:
    IN RE MARRIAGE OF Sarah Draper MAYES, Petitioner-Appellee, and James A. Mayes, Respondent-Appellant.
    NO. 4-18-0149
    Appellate Court of Illinois, Fourth District.
    FILED September 4, 2018
    G. Edward Murphy and Michael L. Fenger, of Murphy & Dunn, P.C., of Normal, for appellant.
    Kelli E. Gordon, of Springfield, for appellee.
   JUSTICE KNECHT delivered the judgment of the court, with opinion.

¶ 1 Respondent father, James A. Mayes, appeals from the trial court's judgment granting the emergency motion of petitioner mother, Sarah Draper Mayes, and restricting his parenting time. On appeal, James argues we should reverse the trial court's judgment because Sarah failed to present sufficient evidence to show his conduct seriously endangered his children's mental and emotional health. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In December 1992, Sarah and James married. During their marriage, the parties had two children, E.M. (born July 12, 2002) and J.A.M. (born July 30, 2007). In November 2010, the parties separated.

¶ 4 A. Dissolution of Marriage and Order of Protection

¶ 5 On December 8, 2010, Sarah filed a petition for dissolution of marriage and a petition for emergency relief. Sarah requested, in part, she be awarded temporary custody of the children. On December 15, 2010, the trial court entered a temporary order, granting Sarah temporary custody of the children and allowing James visitation.

¶ 6 On December 20, 2010, Sarah filed a petition for an order of protection in Sangamon County case No. 10-OP-1932. That same day, the trial court entered an ex parte order of protection. The court later consolidated case No. 10-OP-1932 with this case, Sangamon County case No. 10-D-978. The record does not contain a copy of the ex parte order of protection.

¶ 7 On January 24, 2011, the State charged James in Sangamon County case No. 11-CM-86 with violation of an order of protection ( 720 ILCS 5/12-30(a) (West 2010) ). James later pleaded guilty to the charge and was sentenced to one year of court supervision.

¶ 8 On January 31, 2011, James filed a motion to establish a provider for supervised visitation. Following March 9 and 24, 2011, hearings, the trial court granted James's motion and ordered Jane Dodson to supervise visitation between James and the children.

¶ 9 At a November 22, 2011, hearing on Sarah's dissolution petition, the trial court heard evidence concerning the supervised visitations between James and the children. We have previously set forth that evidence as follows:

"Dodson testified James would get 'mad' over where the parties ate during the supervised visitation. On one occasion James got 'mad' because someone other than Sarah was driving her van when the children arrived for visitation. James spoke of the divorce during visitations, 'raise[d] his voice' to Sarah, talked about his health conditions in front of the children, called his daughter a 'liar' on several occasions, and threatened to call the Department of Children and Family Services. James discussed calling the police in the children's presence. This caused the parties' son to cry and 'go[ ] ballistic.' During one visitation in the park, James gave his daughter a 'Nook' (electronic book). James insisted Sarah join them so he could demonstrate how to operate the Nook. When she refused, James withheld the Nook from his daughter. On four or five occasions James has 'talked poorly' about Sarah in front of the children, saying, for example, 'your mom is going to lose the house.' Dodson feels James is 'controlling.' Dodson testified Sarah remains parked outside in her vehicle during visitations but it is not disruptive to the children.
James testified Sarah is always present during his supervised visitations with the children and it is disruptive to the children. James did not threaten to call the police on Sarah in front of the children. James has 'never called [his daughter] to her face a liar [sic ].' James testified he never told the children their mother would lose the home.
James testified he did not give his daughter a Nook and then take it away. James explained he put the Nook back in his Jeep 'for security reasons.' James said it was not him who wanted Sarah to come over to their table at the park; it was the parties' son who wanted Sarah involved in his birthday celebration.
James admitted he pleaded guilty to violation of the order of protection and was placed on court supervision. James explained he violated the order in January 2011 because he had a 'bad gut feeling' something was wrong at the marital residence. James sat in the backyard of the marital residence, covered with a blanket. James has not violated the order since the January incident." In re Marriage of Draper-Mayes , 2013 IL App (4th) 121006-U, ¶¶ 28-31, 2013 WL 992636.

That same day, the trial court granted a plenary order of protection in case No. 10-OP-1932. The plenary order of protection, which is contained in the record on appeal, includes E.M. and J.A.M. as protected parties. The plenary order of protection was later extended until February 2014.

¶ 10 In April 2012, the trial court entered a dissolution judgment, awarding, in part, Sarah full custody of the children and ordering supervised visitation between James and the children.

¶ 11 In September 2012, James appealed from the judgment of dissolution, arguing, in part, the trial court erred in ordering supervised visitation. Id. ¶ 39. In March 2013, we entered an order rejecting James's argument, concluding, based on the evidence presented, the court did not abuse its discretion in ordering visitation be supervised. Id. ¶¶ 55-65.

¶ 12 B. Modification to Visitation

¶ 13 In February 2014, the trial court entered an order dismissing the plenary order of protection and providing for a gradual transition from supervised to unsupervised visitation. Commencing April 5, 2014, James was allowed, in part, unsupervised visitation on alternating weekends from 3:45 p.m. on Friday to 7 p.m. on Sunday and alternating Wednesdays from 3:45 p.m. to 8 p.m. during the summer months.

¶ 14 The order modifying visitation contained a provision concerning E.M.'s cell phone usage. The provision provided as follows:

"During the visitations, a smart phone may be taken by [E.M.] Use of the phone shall be * * * limited to one [c]all per day during normal visitation and vacation. [James's] punishment regarding the smart phone cannot eliminate this use."

¶ 15 C. Sarah's Emergency Motion

¶ 16 In October 2017, Sarah filed an emergency motion under section 603.10(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/603.10(a) (West 2016) ), seeking to restrict James's parenting time. Sarah alleged James's "controlling and angry behavior" had escalated since July 2017, and she cited multiple incidents in support of her allegation. Sarah argued "James's behavior seriously endanger[ed] the children's mental, moral, and physical health such that supervised parenting time [was] needed."

¶ 17 D. James's Motion to Dismiss Sarah's Emergency Motion

¶ 18 In November 2017, James filed a motion to dismiss Sarah's emergency motion, arguing the preponderance-of-the-evidence standard found in section 603.10 violated the due process guarantees of the United States and Illinois Constitutions. In contesting James's argument, Sarah noted the serious-endangerment standard contained in section 603.10 was a "stringent" and "onerous" standard. Following a December 2017 hearing, the trial court denied James's motion to dismiss.

¶ 19 E. Hearing on Sarah's Emergency Motion

¶ 20 On January 23, January 27, and February 2, 2018, the trial court held a hearing on Sarah's emergency motion. The court heard testimony from (1) 15-year-old E.M., who testified in open court with her mother and father present; (2) Sarah; (3) James; (4) James's fiancée, Julie Robertson; and (5) police officer Roger Smith. The testimony largely related to three incidents since July 2017 and the impact those incidents had on the children.

¶ 21 In July 2017, James, Julie, E.M., J.A.M., and Julie's two children visited Disney World on vacation. While there, arguments occurred both at one of the parks and at the hotel.

¶ 22 E.M. testified the argument at the park occurred between her father and Julie. When asked to describe her father's appearance and the sound of his voice during the argument, E.M. testified "[i]t was like yelling, was loud, and like everyone's faces were red and stuff." When asked if the argument between her father and Julie frightened her, E.M. testified "[a] little bit, yeah." After the argument ended, E.M. testified they all stayed at the park.

¶ 23 The second argument occurred later at the hotel between James and E.M. Julie, J.A.M., and Julie's two children were present during the argument. James imposed a rule on vacation requiring all of the children to turn in their electronics to him at night. James imposed such a rule to assure the children would go to sleep early. The argument between James and E.M. stemmed from James's rule.

¶ 24 After preparing for bed, E.M. testified she was trying to find her cell phone in her suitcase in the hotel bedroom when her father "started getting louder and he started like coming, like, a little bit closer and his face was getting kind of red." After finding her phone, E.M. testified she did not want to give the phone to her father because she "didn't feel completely safe" and she knew she was able to keep the phone during visits. E.M. refused to turn over her phone, which she testified caused her father to become angry.

¶ 25 Julie testified James asked her to come into the bedroom after E.M. refused to turn over her cell phone. Julie indicated E.M. threatened James if he took away her phone "she would have something to talk to the [c]ourt about, to talk to the judge about." James testified E.M. stated she had "something to turn over to the judge." Julie testified E.M.'s comment upset James.

¶ 26 E.M. called her mother on her cell phone because she "didn't know what to do." After calling her mother, E.M. testified "everyone was yelling at each other." Sarah testified she could hear James "screaming" in the background and the other children crying. E.M. testified Julie told James to calm down. Sarah testified she could hear J.A.M. yelling that he wanted to talk to her and James telling him he could not. Julie acknowledged James voice was raised but asserted he was not yelling or screaming at E.M. James testified he did not yell or scream at any of the children. Sarah testified she told E.M. to go into the bathroom.

¶ 27 E.M. went into the bathroom with her cell phone. While in the process of closing the door, E.M. testified her father opened it, causing it to "hit [her] against the wall." Sarah testified she heard E.M. repeatedly state she was trying to get into the bathroom and then heard "a slam" and E.M. say, " 'He just pushed me against the wall.' " E.M. testified she was "cornered into a corner" and her father "was like trying to grab the phone from [me] and pushed me around to get to it." Julie testified James attempted to stop E.M. from closing the bathroom door but did not slam the door open. James testified E.M. "slammed the [bathroom] door," and he "stood in the bathroom doorway." James testified he did not push E.M. up against the wall.

¶ 28 E.M. testified her father threatened to call hotel security and have her arrested. Sarah testified E.M. screamed her father was going to have her arrested and she did not know what to do. E.M. testified her mother told her it was her (E.M.'s) decision if she wanted to give her cell phone to her father.

¶ 29 Hotel security came to the hotel room. E.M. testified she showed hotel security a photo on her cell phone of a court order indicating she could have her phone during visits. E.M. testified hotel security told her she could stay with her father or go to a juvenile facility. Sarah testified she spoke with hotel security, who indicated E.M. would have to turn over her phone or go to a juvenile facility. E.M. testified she decided to turn over her phone and stay with her father because she did not want to leave J.A.M. alone.

¶ 30 After E.M. turned over her cell phone to James, Julie called Sarah to discuss the situation and give Sarah her contact information. During that call, Sarah testified she could hear James screaming at Julie not to give Sarah her phone number.

¶ 31 The incident lasted a few hours. E.M. testified the incident caused her to feel "scared and really confused." E.M. testified she was angry she had to turn over her cell phone because she believed a court order said she was entitled to have it and because she "fel[t] safer with it." Julie testified E.M. was "very upset" that night. James testified E.M. was a little agitated the next morning but then went to the park and acted like nothing happened.

¶ 32 In October 2017, an incident occurred at James's home involving James, E.M., and J.A.M.

¶ 33 Sarah testified the incident occurred after a "bad" parenting time exchange, where James was "very agitated" because J.A.M. did not bring with him certain fundraising papers. Sarah testified James cursed at her and yelled at J.A.M. Sarah described James's anger as "over the top."

¶ 34 Later that day, E.M. testified she heard her father yelling at J.A.M. James testified he was speaking with J.A.M. about his grades and "got stern with him" because he was not paying attention or listening. James testified he was not yelling or screaming at J.A.M. but rather speaking to him in a raised, stern manner, standing approximately two feet away from him.

¶ 35 E.M. testified she went to J.A.M.'s bedroom because she did not want J.A.M. to be alone and because "if anything would have happened, I could protect him." James testified E.M. told him he could not speak to J.A.M. in such a manner. James testified he told E.M. she "just needed to go about [her] way" as "[i]t was between [him] and [J.A.M.]"

¶ 36 E.M. described her father as "red, and there was yelling and, like, his eyes were kind of narrowed." E.M. testified her father approached her and tried "to grab my phone or something." E.M. put the phone behind her back and then left J.A.M.'s bedroom to call her mother.

¶ 37 After she left J.A.M.'s bedroom, E.M. testified her father locked the door with him and J.A.M. inside. At her mother's direction, E.M. testified she contacted the police. E.M. testified she was scared for both herself and J.A.M.

¶ 38 Officer Smith responded to James's home and spoke with E.M. Officer Smith testified the children "were upset because their father was yelling." Following the police investigation, J.A.M. and E.M. were allowed to stay with James.

¶ 39 Julie testified she and her children went to James's home later that evening and, based on the demeanor of E.M. and J.A.M., she "had no idea that anything had happened." Julie testified E.M. and J.A.M. were "acting like normal."

¶ 40 In January 2018, an incident occurred at a gas station during a parenting time exchange involving James, Sarah, and E.M.

¶ 41 After entering her father's vehicle, E.M. testified her father told her to go back with her mother to get a winter coat as the coat she was wearing was inappropriate for the cold weather. E.M. testified the coat she was wearing was a North Face fleece, which she wore to the hearing and the trial court had the opportunity to observe.

¶ 42 E.M. exited her father's vehicle and went and told her mother what her father had said. E.M. testified her mother told her to tell her father he could buy her a different coat if he believed her coat was inappropriate. Sarah testified the coat was E.M.'s "everyday" coat.

¶ 43 E.M. returned to her father's vehicle and relayed her mother's message to her father. E.M. testified her father then exited his vehicle and went to speak with her mother. Sarah testified James approached her vehicle screaming and cussing and then began pounding on her window.

¶ 44 E.M. testified her father was "really angry" and yelling when he returned to his vehicle. E.M. testified her father stated he was "going to call the police and file a report or like something about DCFS." E.M. also testified her father stated her mother did not care about her enough to supply for her needs, comments that E.M. testified her father had previously made to both her and J.A.M. E.M. told her father not to make such comments.

¶ 45 After leaving the gas station and entering the ramp to the interstate, E.M. testified her father pulled to the shoulder and told her to get out of the vehicle and walk home since she did not believe it was that cold outside. E.M. testified she told her father "no," and her father told her to "get out" again. She then said "okay," took off her seatbelt, and opened the door. After opening the door, E.M. testified her father "pull[ed] the car away really fast so I just close[d] the door."

¶ 46 While on the interstate, E.M. testified her father made three calls without the use of a speakerphone or other hands-free device. E.M. testified her father called Julie, someone about filing a report, and his attorney. James testified he did not recall making a phone call to Julie, the police, or his attorney while driving.

¶ 47 E.M. described her father's driving as "kind of like bumpy and jerky and slamming if for the red lights." E.M. indicated the incident scared her "[a] little bit."

¶ 48 Sarah generally described the children's demeanor after recent unsupervised visits with their father. Sarah testified E.M. and J.A.M. were "shaken" after the visits and required a few hours to settle down. Sarah testified E.M. would be "shut down" and "withdrawn" and J.A.M. would often cry.

¶ 49 When asked if there was a difference between supervised and unsupervised visits with her father, E.M. testified "[t]here was definitely a difference." E.M. indicated her father was "more calm" and she "felt safer" during supervised visits. E.M. also testified she "felt safer" and "that the burden wasn't always on [her] to feel, protect [J.A.M.]" during supervised visits. E.M. requested supervised visits with her father.

¶ 50 Following arguments, the trial court granted Sarah's emergency motion. The court found the evidence showed James had "an anger issue and this is a continuing issue." The court found James had "an inability to control [his] anger" and often responded inappropriately to heated situations. The court concluded James's actions "do seriously endanger the children's mental health and significantly-well, I think it impairs their mental and emotional health." The court made clear its decision was not based upon a father simply yelling at his children but rather on the "totality of the facts and the circumstances." The court ordered, in part, supervised visitation on alternating Saturdays and Sundays from 12 p.m. to 5 p.m. and alternating Wednesdays from 5 p.m. to 7 p.m. during the summer months. In so ordering, the court noted it also considered ordering James to participate in an anger-management program but decided any such participation should instead be done at James's election. The court informed James of its ability to later modify its order. The court stated:

"Before I would modify * * *, I'm going to [need to] see some changes and it's really on you Mr. Mayes * * * to correct the situation * * *. But I believe this is a situation of your doing and you need to make the change. I don't have any doubt that your children love you and want to be with you but this is not healthy and it's not healthy for their mental well-being."

¶ 51 This appeal followed.

¶ 52 II. ANALYSIS

¶ 53 Prior to addressing the merits of this appeal, we must address the timeliness of our disposition. Illinois Supreme Court Rule 311 (eff. July 1, 2017) requires accelerated dispositions in appeals involving child custody and allocation of parental responsibilities determinations. Rule 311(a)(5) states, in part, "[e]xcept for good cause shown, the appellate court shall issue its decision within 150 days after the filing of the notice of appeal." Ill. S. Ct. R. 311(a)(5) (eff. July 1, 2017). On March 6, 2018, James filed his notice of appeal. On April 30, 2018, James filed a brief with this court, which did not request oral argument. On May 22, 2018, Sarah filed a responding brief, which requested oral argument. On May 29, 2018, James filed a reply brief. In his reply brief, James joined in Sarah's request for oral argument. Because of James's late request for oral argument, the earliest available date to hold oral argument was August 14, 2018, beyond the 150-day deadline. To accommodate the parties' requests for oral argument, we find good cause exists to issue our decision after the 150-day deadline.

¶ 54 On appeal, James argues we should reverse the trial court's judgment because Sarah failed to present sufficient evidence to show his conduct seriously endangered his children's mental and emotional health. Specifically, James argues the court abused its discretion by finding the testimony of his ex-wife and minor daughter was sufficient to meet the onerous, serious-endangerment standard. Sarah maintains she presented sufficient evidence for the court to conclude James's conduct seriously endangered the children's mental and emotional health. That is, Sarah asserts the trial court's judgment was not against the manifest weight of the evidence or an abuse of its discretion.

¶ 55 Section 603.10(a) of the Act ( 750 ILCS 5/603.10(a) (West 2016) ), which became effective January 1, 2016, provides for the restriction of parental responsibilities, decision making, and/or parenting time, due to a parent's conduct. See Pub. Act 99-90, § 5-15 (eff. Jan. 1, 2016). Section 603.10(a) states:

"After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child's mental, moral, or physical health or that significantly impaired the child's emotional development, the court shall enter orders as necessary to protect the child." 750 ILCS 5/603.10(a) (West 2016).

Orders necessary to protect a child may include, inter alia , a reduction in parenting time, supervision, and/or a requirement to complete a treatment program for behavior that served as the basis for restricting parental responsibilities. Id. § 603.10(a)(1), (2), (8).

¶ 56 The parties agree the serious-endangerment standard contained in section 603.10(a) is to be applied in the same manner in which our courts applied the serious-endangerment standard contained in the prior, now-repealed statute addressing restrictions to visitation. See 750 ILCS 5/607(a), (c) (West 2014) (repealed by Pub. Act 99-90 (eff. Jan. 1, 2016) ). The serious-endangerment standard has been described as an "onerous, stringent, and rigorous" burden to meet. In re Marriage of Diehl , 221 Ill. App. 3d 410, 429, 164 Ill.Dec. 73, 582 N.E.2d 281, 294 (1991) ; see also In re Parentage of J.W. , 2013 IL 114817, ¶ 43, 371 Ill.Dec. 510, 990 N.E.2d 698 (noting the same). This is because "liberal visitation [ (parenting time) ] is the rule and restricted visitation [ (parenting time) ] is the exception." Heldebrandt v. Heldebrandt , 251 Ill. App. 3d 950, 957, 191 Ill.Dec. 190, 623 N.E.2d 780, 785 (1993). Sarah, as the party seeking to restrict parenting time, had the burden of proving James's conduct seriously endangered the children. See Marriage of Diehl , 221 Ill. App. 3d at 429, 164 Ill.Dec. 73, 582 N.E.2d 281 ; 750 ILCS 5/603.10(a)(1) (West 2016).

¶ 57 It is well established trial courts are "vested with wide discretion in resolving visitation [ (parenting time) ] issues." In re Marriage of Anderson , 130 Ill. App. 3d 684, 688, 85 Ill.Dec. 951, 474 N.E.2d 911, 913 (1985) ; see also In re Marriage of Minix , 344 Ill. App. 3d 801, 803, 280 Ill.Dec. 256, 801 N.E.2d 1201, 1203 (2003). It has generally been stated a court's decisions on visitation or parenting time issues will not be overturned on appeal unless the court abused its discretion or a manifest injustice has been done to the child or parent. In re Marriage of Betsy M. , 2015 IL App (1st) 151358, ¶ 59, 399 Ill.Dec. 335, 46 N.E.3d 373. This court has also stated a court's decisions on visitation or parenting time issues will not be overturned on appeal unless they are against the manifest weight of the evidence or constitute an abuse of discretion. Heldebrandt , 251 Ill. App. 3d at 954, 191 Ill.Dec. 190, 623 N.E.2d 780 ; see also Stockton v. Oldenburg , 305 Ill. App. 3d 897, 906, 238 Ill.Dec. 1013, 713 N.E.2d 259, 266 (1999) ("The appellate court will not overturn the custodial and visitation arrangements ordered by the trial court unless they are against the manifest weight of the evidence, manifestly unjust, or resulted from a clear abuse of discretion."). To determine the appropriate standard of review in this case, we turn to both the applicable statute and the arguments presented.

¶ 58 Under section 603.10(a), restricting parental responsibilities is a two-step process. The trial court must first make a factual determination the preponderance of the evidence demonstrates the parent has "engaged in any conduct that seriously endangered the child's mental, moral, or physical health or that significantly impaired the child's emotional development." 750 ILCS 5/603.10(a) (West 2016). If the court finds the evidence presented is sufficient to make such a determination, it must then enter orders necessary to protect the child. Id. In doing so, the court must exercise its discretion in selecting appropriate restrictions to parenting responsibilities to provide for the child's safety and welfare. See id. § 603.10(a)(1)(a)(9).

¶ 59 James's argument on appeal relates to the trial court's factual determination the evidence was sufficient for it to conclude his conduct placed a significant emotional and mental toll on the children. We find the manifest weight of the evidence standard of review is the appropriate standard of review to apply when considering such an argument. See Best v. Best , 223 Ill. 2d 342, 348-49, 307 Ill.Dec. 586, 860 N.E.2d 240, 244 (2006) ("When a trial court makes a finding by a preponderance of the evidence, this court will reverse that finding only if it is against the manifest weight of the evidence."). A court's factual determination will be found to be against the manifest weight of the evidence if, upon review of the entire record, the opposite conclusion is clearly evident. In re Daphnie E. , 368 Ill. App. 3d 1052, 1064, 307 Ill.Dec. 123, 859 N.E.2d 123, 135 (2006).

¶ 60 The evidence showed James responded to heated situations by using profanity, speaking poorly of the children's mother and her parenting abilities, and threatening dangerous punishment, such as having his 15-year-old daughter exit his vehicle on the ramp to the interstate and walk home. Regardless of whether defendant yelled at the children or spoke to them in a stern, disciplinary manner, the court's finding James had "an inability to control [his] anger" and responded inappropriately to heated situations was not against the manifest weight of the evidence. E.M. testified she "felt safer" during supervised visits and "that the burden wasn't always on [her] to feel, protect [J.A.M.]" Sarah described the children's demeanor after recent unsupervised visits with their father, indicating they would be "shaken" and require a few hours to settle down, E.M. would be "shut down" and "withdrawn," and J.A.M. would often cry. Based on this testimony as well as the testimony concerning the children's reactions to their father's inappropriate behavior, the court's determination James's conduct placed a significant emotional and mental toll on the children was not against the manifest weight of the evidence. That is, Sarah presented sufficient evidence whereby the court could find the serious-endangerment standard was met. In reaching this decision, we also note the record demonstrates James had a history of inappropriate behavior, which resulted in a plenary order of protection against him and a prior order of supervised visitation. While not explicitly relied upon by the court, we find James's history would have been an appropriate consideration in determining whether James's later conduct placed a significant emotional and mental toll on the children.

¶ 61 After determining James's conduct placed a significant emotional and mental toll on the children, the trial court was required to enter orders necessary to protect the children. 750 ILCS 5/603.10(a) (West 2016). In doing so, the court had to exercise its discretion in selecting appropriate restrictions to provide for the children's safety and welfare. Id. § 603.10(a)(1)(a)(9). The restrictions selected by the court will not be reversed on appeal unless the court abused its discretion. See In re Parentage of K.E.B. , 2014 IL App (2d) 131332, ¶ 36, 383 Ill.Dec. 648, 14 N.E.3d 1259 (finding the trial court abused its discretion by requiring the parties agree to the time and place of visitation given the parties tumultuous history). An abuse of discretion occurs where "no reasonable person would take the view adopted by the trial court." In re Marriage of Nelson , 297 Ill. App. 3d 651, 658, 232 Ill.Dec. 654, 698 N.E.2d 1084, 1090 (1998).

¶ 62 In entering its order, the trial court selected restrictions to include supervision and a reduction in parenting time. 750 ILCS 5/603.10(a)(1), (2) (West 2016). The court declined to order James to participate in an anger management program, concluding any such participation should instead be done at James's election. Based on the evidence presented, we find the restrictions to James's parenting time did not result from an abuse of the court's discretion.

¶ 63 While James may continue to contend his behavior is not inappropriate or harmful to the children, he must acknowledge court decisions have concluded otherwise. He is in control of his behavior and reactions to the frustration that often arises in visitations and in control of what changes he needs to make. We urge both parties to communicate with each other and to not use the children as a conduit for that communication. Without positive change, visitation may continue to be filled with conflict or dwindle, and that would damage everyone.

¶ 64 III. CONCLUSION

¶ 65 We affirm the trial court's judgment.

¶ 66 Affirmed.

Presiding Justice Harris and Justice Cavanagh concurred in the judgment and opinion.


text:
    CAMPBELL HAUSFELD/SCOTT FETZER COMPANY, Appellant (Defendant below) v. Paul JOHNSON, Appellee (Plaintiff below)
    Supreme Court Case No. 18S-CT-548
    Supreme Court of Indiana.
    Argued: June 7, 2018 Filed November 1, 2018
   ATTORNEYS FOR APPELLANT: Peter J. Rusthoven, J. Curtis Greene, Mark J. Crandley, Meredith Thornburgh White, J.T. Larson, BARNES & THORNBURG LLP, Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE, DEFENSE TRIAL COUNSEL OF INDIANA: Julia Blackwell Gelinas, Robert B. Thornburg, Maggie L. Smith, FROST BROWN TODD LLC, Indianapolis, Indiana, Lucy R. Dollens, QUARLES & BRADY, LLP, Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE, THE INDIANA LEGAL FOUNDATION: Anne Cowgur, TAFT STETTINIUS & HOLLISTER LLP, Indianapolis, Indiana

ATTORNEY FOR APPELLEE: Theodore L. Stacy, Valparaiso, Indiana

ATTORNEYS FOR AMICUS CURIAE, INDIANA TRIAL LAWYERS ASSOCIATION: Nicholas C. Deets, Frederick R. Hovde, HOVDE DASSOW & DEETS LLC, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 64A03-1705-CT-984

David, Justice.

Plaintiff was seriously injured after using a tool designed by the manufacturer. He alleges the tool was defective in its design and that the manufacturer failed to provide adequate warnings. The manufacturer argues, among other things, that plaintiff misused the tool by failing to follow its directions. Today we address whether such misuse serves as a complete defense for the manufacturer. We find that it does. Under the facts and circumstances of this case, plaintiff's misuse is the cause of his injuries and could not have been reasonably expected by the manufacturer. Accordingly, we affirm the trial court.

Facts and Procedural History

Campbell Hausfeld/Scott Fetzer Co. designs power tools that it sells to consumers through retailers in the United States. It designed a mini air die grinder, the TL1120 ("the Grinder"). The Grinder is an approximately eight-inch, hand-held, air-powered tool intended for grinding, polishing, deburring, and smoothing sharp surfaces. It comes in a box with wrenches to loosen the metal receiver at the end and to add and remove different attachments. It does not include a safety guard and such a guard would prevent use in tight areas and obscure a user's view.

The Grinder comes with various warnings and instructions. For instance, the instruction manual states "[r]ead carefully," "[p]rotect yourself ... by observing all safety information," that "[f]ailure to comply with instructions could result in personal injury," and to "read all manuals included with this product carefully." (Appellant's App. Vol. 2 at 224.) The instructions further state that the user should retain the instructions for future reference.

The instructions contain a warning that "[s]afety glasses and ear protection must be worn during operation." (Id.) Further, the instructions tell the user to not use a cut-off disc mandrel on the Grinder unless a safety guard is in place.

On the packaging it is stated in two places that the Grinder "[p]roduces 25,000 RPM" (Appellant's App. Vol. 3 at 34.) The user is warned to use only attachments rated for a minimum of 25,000 RPM.

Plaintiff, Paul Johnson, purchased the Grinder and read its instructions. He decided to use the Grinder to help a friend do some work on that friend's truck headlights. That is, they planned to cut around the truck's headlight opening to accommodate larger headlights. Johnson took the Grinder and attached a cut-off disc to it using a mandrel. Johnson's friend expressed concern about him using the cut-off disc, which was rated lower than 25,000 RPM, but Johnson used the cut-off disc anyway.

Johnson wore his prescription glasses as he cut around the headlights with the Grinder. He believed these glasses were sufficient to serve as safety glasses. While using the Grinder, the cut-off disc came apart and a piece struck him in the left side of his face, breaking his eyeglasses and causing serious injuries to his cheek and eye. Johnson ultimately lost his left eye.

Johnson sued Campbell Hausfeld for damages asserting failure to warn and defective design claims under the Indiana Products Liability Act. Thereafter, Campbell Hausfeld filed a motion for summary judgment wherein it argued, among other things, that the designated evidence established each of the three defenses provided by the Act: misuse, alteration and incurred risk, and that further, no reasonable jury could find Johnson less than 51% at fault for his injuries.

The trial court found that Johnson misused the Grinder by failing to use safety glasses and that he was at least 51% responsible for his injuries. It granted summary judgment in favor of Campbell Hausfeld on the defective design claim but denied summary judgment with respect to the failure to warn claim. Campbell Hausfeld moved to certify the order for interlocutory appeal. The Court of Appeals affirmed in part, reversed in part and remanded finding that Campbell Hausfeld's motion for summary judgment should have been denied in its entirety.

Standard of Review

When reviewing a summary judgment order, we stand in the shoes of the trial court. Matter of Supervised Estate of Kent, 99 N.E.3d 634, 637 (Ind. 2018) (citation omitted). Summary judgment is appropriate "if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C).

Discussion and Decision

Under the Indiana Products Liability Act (IPLA), a plaintiff must prove that a product was placed into the stream of commerce in a defective condition unreasonably dangerous to the user and that plaintiff's injuries were caused by this dangerous product. Ind. Code § 34-20-2-1. A product can be defective within the meaning of the Act because of a manufacturing flaw, a defective design or a failure to warn of dangers while using the product. Baker v. Heye-Am. , 799 N.E.2d 1135, 1140 (Ind. Ct. App. 2003).

[I]n an action based on an alleged design defect in the product or based on an alleged failure to provide adequate warnings or instructions regarding the use of the product, the party making the claim must establish that the manufacturer or seller failed to exercise reasonable care under the circumstances in designing the product or in providing the warnings or instructions.

Ind. Code § 34-20-2-2.

The IPLA provides three non-exclusive defenses to a products liability action: incurred risk ( Ind. Code § 34-20-6-3 ); misuse of the product ( Ind. Code § 34-20-6-4 ); and modification or alteration of the product ( Ind. Code § 34-20-6-5 ). Additionally, comparative fault principles apply in products liability cases. ( Ind. Code § 34-20-8-1 ). That is, the fault of the person harmed as well as the fault of all others who caused or contributed to the harm shall be compared by the trier of fact in accord with the comparative fault statutes. Ind. Code § 34-20-8-1(a). The term "fault" means an act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others and includes the "[u]nreasonable failure to avoid an injury or to mitigate damages." Ind. Code § 34-6-2-45(a).

Johnson alleges that the Grinder's instructions failed to warn him regarding the dangers of using the Grinder with a cut-off disc but without a safety guard, and that the Grinder was defective in its design because it was sold without a safety guard and no information on how to obtain or use a safety guard. Campbell Hausfeld has alleged all three defenses: incurred risk, misuse and alteration of the Grinder.

Today we address whether the affirmative defense of misuse serves as a complete bar to recovery in a products liability action in light of inclusion of comparative fault principles in the IPLA, a question this Court left open in Morgen v. Ford Motor Co. , 797 N.E.2d 1146, 1148 n. 3 (Ind. 2003) ("At least two recent decisions have held that under Indiana products liability law, the defense of misuse is not a complete defense, but instead an element of comparative fault...The parties [ ] make no argument along these lines and we express no opinion on it.") We hold that misuse is a complete defense, but it has to be proven. In this case, Johnson misused the Grinder in multiple ways that together could not be reasonably expected by Campbell Hausfeld and that misuse was the cause of his injuries. Thus, we affirm the trial court's summary judgment order.

I. Indiana's Product Liability Law.

Prior to 1978, Indiana imposed strict liability on manufacturers and sellers for injuries caused by unreasonably dangerous products based on the Restatement (Second) of Torts § 402A. See J. I. Case Co. v. Sandefur , (1964) 245 Ind. 213, 197 N.E.2d 519 ; Bemis Co., Inc. v. Rubush , 427 N.E.2d 1058 (Ind. 1981), reh'g denied; Reed v. Central Soya Co., Inc. , 621 N.E.2d 1069 (Ind. 1993), modified on reh'g. In 1978, the Indiana legislature passed the IPLA to govern products liability claims under both strict liability and negligence theories. See Ind. Code §§ 33-1-1.5-1 through 33-1-1.5-8 (1978). In 1983, the IPLA was amended to apply to only strict liability actions.

In 1995, several significant amendments were made to the IPLA. See Ind. Code §§ 33-1-1.5-1 through 33-1-1.5-10 (1995). For instance, the 1995 Amendments eliminated joint or shared liability, limited strict liability claims to manufacturing defect claims, and provided that actions against sellers based on design defects or based on failure to provide adequate warnings/instructions are to be decided using a negligence standard. Ind. Code § 33-1-1.5-1 (1995) ; § 33-1-1.5-3 (1995). The amendments also adopted comparative fault principles to govern product liability actions. Ind. Code § 33-1-1.5-10 (1995). In 1998, the IPLA was recodified but no substantive revisions were made. Ind. Code §§ 34-20-1-1 through 34-20-9-1.

When the IPLA was enacted in 1978, it provided four statutory defenses: 1) incurred risk; 2) product misuse; 3) product alteration; and 4) conformity with state-of-the-art. Ind. Code § 33-1-1.5-4(b) (1975). Three of these defenses-incurred risk, product misuse and product alteration-were retained with the 1995 amendments and remain in effect today. See Ind. Code § 33-1-1.5-4(b) (1978) ; Ind. Code § 33-1-1.5-4(b) (1995) ; Ind. Code §§ 34-20-6-3 through 34-20-6-5 (2018).

II. Like the other statutory defenses, misuse is a complete defense-but it has be proven.

The misuse defense under the IPLA provides:

It is a defense to an action under this article (or IC 33-1-1.5 before its repeal) that a cause of the physical harm is a misuse of the product by the claimant or any other person not reasonably expected by the seller at the time the seller sold or otherwise conveyed the product to another party.

Ind. Code § 34-20-6-4.

Johnson argues and the Court of Appeals found that this defense is not a complete one, but rather it is considered with all other fault in the case under the comparative fault scheme. It is true that since the 1995 Amendment of the IPLA, all fault in products liability cases must be comparatively assessed. Also, since the Amendment, both our Court of Appeals and the Seventh Circuit have held that the misuse does not operate as a complete defense to bar recovery. See Chapman v. Maytag Corp., 297 F.3d 682, 689 (7th Cir. 2002) (determining that "misuse" falls within the definition of "fault"); Barnard v. Saturn Corp., a Div. of Gen. Motors Corp. , 790 N.E.2d 1023 (Ind. Ct. App. 2003) ; Weigle v. SPX Corp. , 729 F.3d 724 (7th Cir. 2013). However, in at least one case, Indianapolis Athletic Club, Inc. v. Alco Standard Corp. , 709 N.E.2d 1070, 1072 (Ind. Ct. App. 1999), our Court of Appeals came to the opposite conclusion: that misuse of a product is a complete defense. This Court has not yet addressed how the 1995 Amendments to the IPLA, which include the addition of comparative fault principles, impact the statutory defense of misuse.

Prior to the 1995 Amendments, this Court held that misuse would bar recovery. Hubbard Mfg. Co., Inc. v. Greeson , 515 N.E.2d 1071, 1073 (Ind. 1987). The reasoning for that defense is because misuse "is considered an intervening cause that relieves the manufacturer of liability where the intervening act could not have been reasonably foreseen by the manufacturer." Indianapolis Athletic Club, 709 N.E.2d at 1072. This logic is no less true today, even after the amendments that adopted comparative fault. Additionally, this Court must presume that the General Assembly was aware of the common law prior to the 1995 Amendments and did not intend to change it beyond the express terms of its enactments and the implications that follow. Johnson v. Wysocki, 990 N.E.2d 456, 466 (Ind. 2013).

Prior to and since the 1995 Amendments, the other two statutory defenses that remain-incurred risk and alteration-have been treated as complete ones. See Vaughn v. Daniels Co. (West Virginia), Inc., 841 N.E.2d 1133, 1146 (Ind. 2006) ("Incurred risk acts as a complete bar to liability with respect to negligence claims brought under the [IPLA]."); Koske v. Townsend Eng'g Co., 551 N.E.2d 437, 441 (Ind. 1990) ("recovery will be denied an injured plaintiff who had actual knowledge and appreciation of the specific danger and voluntarily accepted [incurred] the risk"); Hall v. Graco Inc. , 2004 WL 2137655 at *5 (S.D. Ind. 2004) ("product alteration is a complete defense" to a products liability claim); Foley v. Case Corp. , 884 F.Supp. 313, 315 (S.D. Ind. 1994) ("Modification or alteration of a product is a complete defense to certain product liability actions.") It does not make sense that these two defenses are complete bars, even after the amendments, but that misuse is only a consideration after the amendments. This would violate the doctrine of in pari materia -that statutes relating to the same subject matter should be construed together to produce a "harmonious statutory scheme." Bonnell v. Cotner , 50 N.E.3d 361, 367 n. 5 (Ind. 2016).

Further, it would not make sense to retain the statutory defenses at all if they were only considerations. Statutes are not to be construed in a way that renders them meaningless. City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007). The legislature could have either eliminated the statutory defenses (it eliminated one of them in 1995: compliance with state-of-the-art), modified the language of the defenses or explicitly included misuse in the definition of fault or as part of the comparative fault provision. It did not. When we interpret statutes, we are mindful of both what they do say and what they do not say. ESPN, Inc. v. Univ. of Notre Dame Police Dep't , 62 N.E.3d 1192, 1195 (Ind. 2016) (internal citations omitted).

Other states have expressly incorporated misuse as part of the definition of fault under their comparative fault schemes. For example, Arizona's statutory definition of fault includes "products liability and misuse, modification or abuse of a product." Ariz. Rev. Stat. § 12-2506(F). Similarly, Iowa defines fault to include "misuse of a product for which the defendant would otherwise be liable" Iowa Code § 668.1(1) and Washington includes "misuse of a product" in its definition of fault. Wash. Rev. Code § 4.22.015. However, Indiana has not explicitly included misuse in its definition of fault. The IPLA also omits Model Uniform Product Liability Act language that makes the misuse defense "subject to reduction or apportionment to the extent that the misuse was a cause of the harm." MODEL UNIF. PROD. LIAB. ACT. § 112(C).

The majority view among jurisdictions is that "misuse operates as a complete bar to recovery, and that misuse of a product, irrespective of the existence of a product defect, will preclude the manufacturer's or seller's liability for injury or death resulting from use of the product. " Randy R. Koenders, Products Liability: Product Misuse Defense , 65 A.L.R. 4th 263 (1988). We see no clear indication in the IPLA that the legislature intended to adopt the minority approach for Indiana.

While we acknowledge that the IPLA definition is broad and seems like it could encompass the definition of misuse, it falls short of actually doing so. To engraft misuse into the comparative fault section of the statute would violate the doctrine of in pari materia and render the misuse defense meaningless. Accordingly, we hold that the misuse defense, like the alteration and incurred risk defenses, is a complete one.

This is not to say that any allegation on the part of a seller that a plaintiff misused the product will suffice. The misuse defense is qualified by the plain language in the statute. That is, in order to successfully employ misuse as a defense, the seller must show both that the misuse of the product is: 1) the cause of the harm; and 2) not reasonably expected by the seller. If a plaintiff misuses a product but it is not the cause of the harm and/or the misuse can reasonably be expected by the seller, then the misuse would not serve as a complete defense and comparative fault principles would apply.

III. Johnson's injuries could have been avoided had he followed the instructions, and Campbell Hausfeld could not reasonably expect that a consumer would misuse the Grinder in three distinct ways.

Misuse is typically a question of fact for a jury to decide. Morgen , 797 N.E.2d at 1149. However, summary judgment based on misuse is appropriate when the undisputed evidence proves that the plaintiff misused the product in an unforeseeable manner. Barnard , 790 N.E.2d at 1029. Misuse is established as a matter of law when the undisputed evidence proves that plaintiff used the product in direct contravention of the product's warnings and instructions. Id. at 1030-31.

Campbell Hausfeld alleges that Johnson misused the Grinder in three ways: he did not wear proper safety glasses; he attached and used a cut-off disc without a safety guard in place; and the cut-off disc had an inadequate RPM rating. As for not wearing safety glasses, Johnson claims he believed his prescription eyeglasses were sufficient. As for using the cut-off disc without a guard, the instructions provide: "Do not use a cut-off disc mandrel on this tool unless a safety guard is in place." (Appellant's App. Vol. III at 201.) Johnson attached a cut-off disc but did not use a guard. Finally, the instructions on the grinder warn users to use attachments rated for a minimum of 25,000 RPM and Johnson disregarded this warning as the cut-off disc he used was rated for 19,000 RPM.

Johnson admitted he would not have been injured had he followed the Grinder's instructions about not using a guard. Safety eyeglasses may not have prevented all injury caused when the disc broke loose and struck Johnson in the face, but they would have more adequately protected Johnson's eye. With regard to the RPM rating, it is not clear that this factored into Johnson's injuries in light of testimony by experts on both sides acknowledging that under the particular circumstances of the case, it may not have mattered that the cut-off disc was not the rating called for in the Grinder's instructions. In any case, had Johnson used a guard and safety glasses, his injuries would have been avoided. Thus, his failure to follow the instructions is the cause of his injuries.

At issue then is whether Johnson's failure to follow the instructions was reasonably expected by Campbell Hausfeld. The trial court concluded that the safety glasses instruction was a "clear warning and visual definition of safety glasses that can be understood by a user in any country, speaking any language." (Appellant's App. Vol II. at 21-22.) However, Johnson argues, and the Court of Appeals found that there was an issue of material fact regarding whether Campbell Hausfeld could foresee a user not using safety glasses. The parties also disagree about whether the instruction about not using a cut-off disc without a guard indicates that Campbell Hausfeld could foresee a user not using a guard.

We find that while Campbell Hausfeld could have perhaps reasonably expected a user to not use proper eyewear or for a user to attach a cut-off disc without a guard, or for a user to attach something with an improper RPM rating, it was not reasonably expected for a user to disregard the safety instructions in all three of these ways.

Leon v. Caterpillar Indus., Inc., 69 F.3d 1326, 1344 (7th Cir. 1995), amended Nov. 13, 1995, amended Nov. 22, 1995 is instructive. There, plaintiff admittedly ignored safety warnings and instructions; however, he argued that the manufacturers of the forklift should have foreseen the misuse. The Seventh Circuit held that the forklift manufacturer could not reasonably expect that plaintiff would fail to comply with four independent safety regulations where compliance with one of the instructions would have prevented the injury. Id at 1343-44. Similarly, in Barnard, 790 N.E.2d at 1031, our Court of Appeals applied this reasoning to find a plaintiff who failed to heed multiple warnings misused the product and that under the circumstances no reasonable trier of fact could find he was less than fifty percent at fault for his injuries.

Here, Johnson could have avoided injury had he not used the cut-off disc or worn safety glasses. He did not do so. His multiple failures to follow the Grinder's instructions were the cause of his injuries and taken together, could not be reasonably expected by a seller.

Conclusion

We affirm the trial court's grant of summary judgment for Campbell Hausfeld and we remand for proceedings consistent with this opinion.

Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.


author: Per curiam.

text:
    In the MATTER OF Larry W. ROGERS, Respondent.
    Supreme Court Case No. 64S00-1704-DI-251
    Supreme Court of Indiana.
    FILED November 2, 2018
    RESPONDENT PRO SE: Larry W. Rogers, Valparaiso, Indiana
    ATTORNEYS FOR INDIANA SUPREME COURT DISCIPLINARY COMMISSION: G. Michael Witte, Executive Director, Julie E. Bennett, Staff Attorney, Indianapolis, Indiana
    Attorney Discipline Action
   Per curiam.

We find that Respondent, Larry Rogers, committed attorney misconduct by neglecting an appeal and then failing to refund the unearned fee. For this misconduct, we suspend Respondent for 90 days, with the manner of his reinstatement conditional upon full restitution being made.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's verified disciplinary complaint. Respondent's 1977 admission to this state's bar subjects him to this Court's disciplinary jurisdiction.

Procedural Background and Facts

The Commission filed a "Disciplinary Complaint" against Respondent on April 25, 2017, and we appointed a hearing officer. Following an evidentiary hearing, the hearing officer issued his report on August 16, 2018, finding Respondent committed violations as charged.

No petition for review of the hearing officer's report has been filed. When neither party challenges the findings of the hearing officer, "we accept and adopt those findings but reserve final judgment as to misconduct and sanction." Matter of Levy , 726 N.E.2d 1257, 1258 (Ind. 2000).

After "Defendant" was convicted in March 2015 of murder and battery, but before sentencing, Respondent met with Defendant to discuss an appeal. After that meeting, Defendant and/or several of Defendant's family members paid Respondent $8,000 as part of his fee. Defendant was sentenced in May 2015 and a motion to correct error filed by his trial counsel was denied on July 14, 2015. Six days later, Respondent notified Defendant of the 30-day deadline for filing a notice of appeal and that further payment for transcript costs was needed.

Respondent did not file a notice of appeal and the deadline for doing so passed. Respondent did not notify Defendant he had failed to file the notice of appeal and did not communicate with Defendant for several months. Eventually, Defendant fired Respondent, requested appointment of counsel to pursue a belated appeal, and demanded a refund from Respondent.

To date, Respondent has failed to refund any money to Defendant or his family, despite multiple requests made by Defendant's family and despite Respondent's acknowledgement that a refund is owed.

Discussion and Discipline

We concur in the hearing officer's findings of fact and conclude that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.3: Failure to act with reasonable diligence and promptness.
1.4(a)(3): Failure to keep a client reasonably informed about the status of a matter.
1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.
1.16(d): Failure to refund an unearned fee and to protect the client's interests upon termination of representation.

Neither party has filed a brief on sanction. We agree with the hearing officer's succinct and eloquent assessment of this case. Respondent has served his community and profession with distinction for over four decades and, until just recently, had an unblemished disciplinary record. We also are mindful of the significant personal hardship Respondent was experiencing around the time of his neglect of Defendant's appeal. That said, we are deeply concerned about Respondent's ongoing and inexplicable failure, now more than three years later, to issue a refund that Respondent consistently has acknowledged is owed and that Respondent has claimed he is "ready, willing and able" to pay. (Comm'n Ex. G at 1.) We also are concerned about the relative lack of attention devoted by Respondent to this disciplinary proceeding and to a contemporaneous proceeding involving Respondent's noncooperation with another disciplinary investigation, a shortcoming that Respondent's few pleadings appear to attribute to a heavy caseload. We remind Respondent that attorneys have a duty to cooperate with the disciplinary process. We also take this opportunity to remind Respondent (and all attorneys) that although a commitment to helping others is commendable, clients are best served when an attorney has secured his or her own oxygen mask first.

After careful consideration, we conclude that Respondent should be suspended for 90 days, effective December 14, 2018. We further conclude that the manner of Respondent's reinstatement following this 90-day period should be conditional upon his making restitution to Defendant and/or Defendant's family. If Respondent refunds the unearned $8,000 fee in full and files with this Court a verified accounting and report of same on or before March 1, 2019, then he shall be automatically reinstated to the practice of law in Indiana at the conclusion of his 90-day suspension, subject to the conditions of Admission and Discipline Rule 23(18)(a). If Respondent has not made this refund and filed this verified accounting by March 1, 2019, then Respondent shall not be automatically reinstated and instead shall be required to satisfy the requirements of Admission and Discipline Rule 23(18)(b) prior to resuming practice. Further, any petition for reinstatement filed pursuant to Rule 23(18)(b) shall be accompanied by proof that a full refund has been made and shall be subject to summary dismissal if such proof is lacking.

Conclusion

The Court concludes Respondent violated Professional Conduct Rules 1.3, 1.4(a)(3), 1.4(b), and 1.16(d). For Respondent's professional misconduct, the Court suspends Respondent for 90 days, effective December 14, 2018. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26).

If Respondent makes a full refund and files a verified accounting by March 1, 2019, he shall be automatically reinstated to the practice of law at the conclusion of the 90-day period of suspension. If Respondent does not make a full refund and file a verified accounting by March 1, 2019, then his suspension shall be served without automatic reinstatement, and Respondent may not thereafter resume practice until he has shown a refund has been made and has satisfied the requirements of Admission and Discipline Rule 23(18)(b).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

All Justices concur.

      See Linda Rekas Sloan, Esq., Secure Your Own Mask First , Rhode Island Bar Journal 3 (Jan./Feb. 2018); see also Jeena Cho, A Distressing Business , ABA Journal, June 2018, at 29.

      Despite Respondent's claim to have earned a portion of this fee, Respondent was unable to produce Defendant's client file or adequately document any work he performed on the case. Respondent explained, "I can only make an educated guess regarding the time spent on this case." (Comm'n Ex. E at 2.) Under the circumstances we find Respondent is not entitled to retain any portion of the $8,000 paid to him on Defendant's behalf.