Failing to properly preserve an issue before the trial court can result in that issue being waived or forfeited on appeal. With respect to preserving a challenge to a jury instruction, the Illinois Supreme Court has held that a party must make a contemporaneous objection and tender an alternative remedial instruction or the challenge will be forfeited. Mikolajcyzk v. Ford Motor Co., 231 Ill. 2d 516, 557 (2008). However, in an instructive opinion for both appellate and trial practitioners, the Illinois Appellate Court recently held that a party had properly preserved a challenge to a trial court's sua sponte comment during jury instructions when the party "expressed concern" despite not making a formal objection or tendering a remedial instruction.

In Pister v. Matrix Service Industrial Contractors, Inc., 2013 IL App (4th) 120781, plaintiff, a widow, filed a lawsuit on behalf of her deceased husband's estate against defendant, Matrix Service Industrial Contractors, Inc., pursuant to the doctrine of respondeat superior. Id. ¶ 1. Plaintiff's husband had been killed in an auto accident by an employee for defendant who was driving to work. Id. Plaintiff claimed two theories of liability - that defendant's employee was a "traveling employee" and that the employee was on a "special errand" for defendant when the accident occurred. Id. The trial court granted summary judgment in defendant's favor on plaintiff's "traveling employee" theory of liability but denied defendant's motion for summary judgment regarding plaintiff's "special errand" theory of liability. Id. ¶¶ 9, 12.

The matter proceeded to a jury trial. Following the close of evidence, the parties tendered their recommended jury instructions. Id. ¶ 31. While reading the jury instructions to the jury, the trial court, sua sponte, commented on the relationship between the special interrogatory and general verdict instructions. Id. ¶ 32. As the jury retired, plaintiff brought the statement to the trial court's attention. However, plaintiff requested that no remedial instruction be given out of concern that doing so would draw too much attention to the error; nonetheless, the trial court tendered the remedial instruction. Id. The jury returned a verdict in defendant's favor. Id. ¶ 34. Following a hearing on plaintiff's posttrial motion, the trial court determined that it erred in making its sua sponte statement and by refusing a proposed jury instruction from plaintiff regarding agency law. Id. However, the trial court concluded that a new trial was not necessary because the evidence overwhelmingly favored defendant and plaintiff was, therefore, not prejudiced. Id.

Plaintiff appealed and the reviewing court initially rejected plaintiff's first two contentions on appeal - that the trial court committed reversible error by partially granting defendant's summary judgment motion, and by admitting and excluding certain evidence.

The reviewing court then turned to the erroneous jury instructions. Defendant argued that plaintiff had forfeited its contention regarding the trial court's sua sponte statement because plaintiff "expressed concern" as opposed to objecting and plaintiff failed to tender a remedial instruction. Id. ¶¶ 78-79. The reviewing court rejected defendant's forfeiture argument. In doing so, the court opined that "the purpose of an objection is not only to preserve an issue for appeal, but to bring the potential error to the trial court's attention so that it may be contemporaneously addressed." Id. ¶ 78. By expressing "concern" over the potential error, the court noted, plaintiff brought the issue to the court's attention. Id. Therefore, the court concluded that plaintiff's " 'raising concern' adequately brought the issue to the court's attention and preserved the issue for appeal, even without using some form of the word 'objection.' " Id.

The reviewing court further held that plaintiff was not required to tender a remedial instruction. The reviewing court concluded that, because plaintiff argued that the trial court should not have issued a remedial instruction to avoid bringing undue attention to the error, "it would have been illogical for [plaintiff] to have tendered a remedial instruction." Id. ¶ 78. Therefore, failing to tender the remedial instruction was "not fatal." Id.

Thereafter, the reviewing court concluded that the trial court's sua sponte comment constituted error, as the trial court had conceded. Id. ¶ 83. However, reciting the well-known maxim that not all error constitutes reversible error, the reviewing court held that, because the evidence "so overwhelmingly favored [defendant,]" plaintiff was not prejudiced by the trial court's error. Id. ¶¶ 84-85. Further, the record was devoid of any indication that the trial court's error misled the jury. Id. ¶ 85. The reviewing court also rejected plaintiff's other arguments regarding the jury instructions.

Recommended Citation: Charlie Ingrassia, Pitfalls in Preservation: Is "Raising Concern" Over an Improper Jury Instruction, Without a Formal Objection, Enough to Preserve Appellate Review?, The Brief, (March 16, 2014), http://applawyers-thebrief.blogspot.com/2014/03/pitfalls-in-preservation-is-raising.html.