Introduction:​

The Illinois Supreme Court’s recent decision in Ready v. United/Goedecke Services, Inc., Docket No. 103474, 2008 Ill. LEXIS 1439 (November 25, 2008, modified on denial of rehearing on March 23, 2009) settled a long-disputed question regarding the interpretation of a provision of the Illinois Joint Tortfeasors Liability Act, 735 ILCS 5/2-1117. At issue in Ready was whether co-defendants who settle prior to trial should be included on the jury verdict form apportioning fault. The Supreme Court determined that the 2-1117 required exclusion of settling defendants from the verdict form apportioning fault as they are not “defendants sued by the plaintiff” under the statute. This article discusses the Ready decision and the strategy going forward defending tort actions with multiple defendants, including both the question Ready answered and the very important question left unanswered.

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Ready v. United

In Ready, the plaintiff brought a wrongful death action on behalf of her husband’s estate against several parties hired to perform pipe-refitting work at a power plant in Joliet, Illinois. On December 23, 1999, Michael Ready was killed when a wooden truss slipped out of a sling while being lifted causing it to fall more approximately eight stories. Mr. Ready’s wife, Terry Ready, filed suit against the general contractor BMW Constructors, Inc. (“BMW”) and two subcontractors, United/Goedecke Services, Inc. (“United”) hired to perform scaffolding work and Midwest Generation, LLC (“Midwest”), owner of the power plant and the tugger which was being used to lift the wooden truss at the time of the incident. Prior to trial, the plaintiff reached settlement agreements with both BMW and Midwest for a total of $1.113 million. United did not object to the settlements and a good faith finding was entered by the trial court.

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United filed several pre-trial motions in limine, among which it sought to present evidence of the conduct of the settling defendants on the issue of liability and to list BMW and Midwest on the verdict form apportioning fault among the parties, including the co-defendants. Both of these motions were denied by the trial court and the jury awarded the plaintiff $14.23 million after finding United liable for negligence. This amount was then reduced to $8.137 million after off-setting the Mr. Ready’s comparative negligence (35%) and the settlement amounts previously paid by BMW and Midwest.

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United appealed arguing that the trial court erred by refusing to add BMW and Midwest to the verdict form apportioning fault among the parties. If the jury had been allowed to consider BMW and Midwest’s relative fault, United argued that it may have been found less than 25% liable and thus, under Section 2-1117, only severally liable for damages unrelated to past medical care. Section 2-1117 states as follows:

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“Joing Liability. Except as provided in Section 2-1118, in actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, all defendants found liable are jointly and severally liable for plaintiff’s past and future medical and medically related expenses. Any defendant whose fault, as determined by the trial of fact, is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant who could have been sued by the plaintiff, shall be severally liable for all other damages. Any defendant whose fault, as determined by the trier of fact, is 25% or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants who could have been sued by the plaintiff, shall be jointly and severally liable for all other damages.”

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(735 ILCS 5/2-1117).

The appellate court reversed in relevant part finding that Section 2-1117 required that the settling defendants be listed on the verdict form apportioning fault and concluded that evidence of the culpability of the settled defendants was relevant and admissible. The Ready court found it necessary to address only the issue regarding the proper interpretation of Section 2-1117 and held that “defendants sued by the plaintiff” did not include those whom had settled prior to trial.

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In examining the relevant provision, the Ready court found that the statute was ambiguous with regard to whether it includes within its scope settling tortfeasors such as BMW and Midwest. Page 7. In reaching this conclusion, the majority2 found that the phrase “defendants sued by the plaintiff” was ambiguous because it was undefined in the statute and could be read both to include and exclude settling defendants. Using principles of statutory construction, the court found that the ambiguous language was not intended to include settling defendants because: (1) the legislature did not address the appellate court’s opinion in Blake v. Hy Ho Restaurant, Inc., 273 Ill. App. 3d 372 (5th Dist. 1995), which held that settling defendants were not to be included in the apportionment of fault under Section 2-1117; and (2) the legislature attempted to amend Section 2-1117 to include settling defendants on the verdict form in the Tort Reform Act of 1995, Public Act 89-7, which was later found to be unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997). The latter rational is based on the rule of statutory construction that an amendment to a statute creates a presumption that the amendment was intended to change the law. The Supreme Court reasoned that since the legislature intended to include settling defendants on the verdict form by enacting the Tort Reform Act of 1995, it stands that the 1986 un-amended version did not include settling defendants on the verdict form.

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[1] This language was amended in 2003 and excluded the plaintiff’s employer from the third-party defendants subject to a finding of fault. The parties to Ready agreed that the 1986 version applied to the facts of their case and is therefore cited above. The language at issue in this case is present in both versions.
[2] Justice Freeman wrote the majority opinion in which Chief Justice Fitzgerald and Justice Burke concurred. Justice Kilbride specially concurred with opinion writing that he agreed with the judgment, but felt that the legislative intent could be deduced by examining the plain meaning of the statute as a whole. Justices Garman wrote the dissent which was joined by Justice Karmeier and Justice Thomas did not take part in the consideration or decision of the case. 

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Also relevant to this discussion is the Supreme Court’s disposition of United’s argument that it was deprived the opportunity to present its sole proximate cause defense because the trial court refused to instruct the jury on the issue. Although the appellate court found that evidence of the settling defendant’s culpability was relevant and admissible, it also found that it need not address the issue because it reversed the trial court as to liability. Since the Supreme Court reversed the appellate court’s ruling ordering a new trial, it remanded the cause to the appellate court for resolution of this issue.

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Judge Maddux weighs in

Following the Supreme Court’s ruling in Ready, the Honorable William D. Maddux, Presiding Judge of the Law Division of the Circuit Court of Cook County wrote an article analyzing the decision. Judge Maddux wrote to address the public policy reasons supporting the decision which were not addressed by the opinion. He also addressed the question left open by the opinion; whether trial courts should exclude evidence regarding the culpability of settling defendants.

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Judge Maddux wrote that one of the primary reasons for the appellate court’s ruling in Blake v. Hy Ho Restaurant, Inc., which held that the culpability of settling defendants may not be examined in the jury’s apportionment of fault pursuant to Section 2-1117, was the established public policy in Illinois favoring settlements. According to Judge Maddux, had the court reached a contrary decision, the expense to settling defendants of participating in discovery would likely discourage settlement negotiations. Any equitable considerations suggesting that fault should be apportioned among all defendants are outweighed, Judge Maddux argued, by the injustice caused in allowing jurors to pass judgment on unrepresented parties, ex parte, and thwart the public policy of encouraging settlements.

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Finally, Judge Maddux addressed the issue of whether evidence of the settling defendants’ culpability is admissible at trial. He began with the premise that under Illinois law, there can be more than one proximate cause of an injury and thus, evidence of another party’s contributory negligence to the plaintiff is not a defense to liability. The one exception to this rule, Judge Maddux noted, was the sole proximate cause defense in which the defendant must allege that: (1) it was not the proximate cause of the plaintiff’s injuries; and, (2) another person was the sole proximate cause of those injuries. Only then does evidence of the other person’s fault become relevant and admissible at trial. Judge Maddux ended the article predicting that the legislature may provide a clear interpretation of settling and non-settling defendants’ apportionment of fault under Section 2-1117 and that trial courts will continue to struggle with whether to exclude evidence of settling defendants conduct and jury instructions regarding the sole proximate cause defense.

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Nolan v. Weil-McLain

Although the rulings leading to the Illinois Supreme Court’s decision in Nolan v. Weil-McLain, Docket No. 103137, (April 16, 2009), occurred long before the decision in Ready, Judge Maddux’s predictions regarding the difficulty experienced in the state’s trial courts over the exclusion of settling defendants conduct and jury instructions on the sole proximate cause defense proved correct. The Nolan case addressed these issues in the context of a multi-defendant asbestos lawsuit. Clarence and Sally Nolan filed suit against 12 corporations in 2001 alleging that Clarence developed mesothelioma following negligent exposure to the defendants’ respective products during the installation, repair and removal of boilers manufactured by Weil-McLain (“Weil”). Eleven of the defendants settled or were dismissed prior to trial. In its motion in limine, Weil sought to introduce evidence that the sole proximate cause of the Mr. Nolan’s illness and subsequent death was the exposure to products of other non-parties which contained asbestos. Weil argued that the Supreme Court’s decision in Thacker v. UNR Industries, Inc., 151 Ill. 2d 343 (1992), permitted the introduction of evidence that would exclude certain exposures as “substantial contributing causes” of the plaintiff’s injury, and that if the plaintiff meets Thacker’s “frequency, regularity and proximity” test, it is then for the jury to determine whether the defendant conduct proximately caused the plaintiff’s injuries using competent and complete evidence. Relying on Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83 (1995), Weil argued that evidence that a non-party was the sole proximate cause of the plaintiff’s injuries was admissible.

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The trial court ruled that the defendant was barred from introducing evidence of exposure to asbestos products of non-parties. At the conclusion of the trial, the trial judge read a sole proximate cause defense instruction to the jury. The jury returned a verdict in favor of the plaintiff for $2,368,000 in damages which was reduced to $1,222,500 after offsetting amounts received from settling defendants. Weil filed a post-trial motion arguing the court erred in excluding evidence of the plaintiff’s other asbestos exposures which the judge denied in a 57 page order prefaced by stating that he was conflicted between what he felt the law should be and the “current state of the law in asbestos litigation.” The appellate court affirmed stating that once the plaintiff satisfied Thacker’s “frequency, regularity and proximity” test, a presumption arises that the defendant proximately caused the plaintiff’s asbestos injury. The appellate court also ruled that evidence of other exposures is irrelevant to the jury’s independent determination as to whether exposure to the defendant’s product was a substantial factor in causing plaintiff’s injuries.

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Writing for the majority, Justice Freeman identified the issues on appeal as: (1) whether the trial court erred by excluding evidence of decedent’s exposure to asbestos products of non-parties; (2) whether this ruling deprived Weil the opportunity to present evidence in support of its sole proximate cause defense; (3) that the ruling conflicts with the Supreme Court’s decisions in Thacker and Leonardi by creating a presumption of liability thereby preventing the jury to consider and weigh the evidence; and (4) that these errors were not harmless and require a new trial so a jury may consider all of the plaintiff’s asbestos exposures. A significant portion of the court’s ruling in Nolan is devoted to the presumption issue which was limited to asbestos cases and answered in the negative. However, the first two issues identified above provide hope to a non-settling defendant wishing to pursue a sole proximate cause defense at trial.

The Nolan court ruled that the trial court committed reversible error by excluding evidence of the plaintiff’s exposure to asbestos products of non-defendants. In so ruling, the Supreme Court rejected the notion that evidence of other possible causes for a plaintiff’s claimed injury would confuse or ditract the jury’s attention from the issue of whether the named defendant caused the plaintiff’s injuries. Page 20. Rather, it reasoned, the sole proximate cause defense focuses the attention of a properly instructed jury of the plaintiff’s burden to prove that the defendant’s conduct was the proximate cause of his injuries. Id. The case was then remanded to the circuit court for a new trial.

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Effect 

The Ready and Nolan opinions can seem at first glance inconsistent. Ready says that a jury may not consider the conduct of settling defendants when apportioning fault at trial while Nolan says a defendant may ask the jury to consider the conduct of non-parties in determining liability. However, the silver lining is that tort defendants may be able to present evidence of a settling defendant’s conduct, which relates to the apportionment of fault, so long as they dispute liability by pursuing a sole proximate cause defense. It remains to be seen whether Nolan will be limited to asbestos cases, or applied broadly to all tort actions. If applied broadly, however, the sole proximate cause defense could become as popular as the comparative negligence defense in cases with multiple defendants and become a contingency plan for tort defendants unable to settle or obtain dismissal prior to trial.