Apportioning Fault to the Settling Tortfeasor
By Jay Scholl
Whether a jury may consider the negligence of settling defendants in determining and apportioning fault has been the subject of many conflicting Illinois appellate cases. The issue is significant in assessing cases in which a minimally culpable defendant proceeds to trial. Recently, the Illinois Supreme Court clarified this issue in Ready v. United/Goedecke Services, Inc. and Nolan v. Weil-McLain.
The Illinois Code of Civil Procedure (735 ILCS 5/2-1117) states that liability for a plaintiff’s injuries should be apportioned among “the plaintiff, the defendants sued by the plaintiff, and any third party defendant except the plaintiff’s employer.” If a defendant is found by the jury to be less than 25% at fault, that defendant is only liable for its proportionate share of the judgment other than medical expenses. Appellate courts had inconsistently resolved the issue of whether settling defendants were “defendants sued by the plaintiff” who should be included on the jury verdict form in order to apportion relative fault.
In Ready v. United/Goedecke Services, Inc., No. 103474, 2008 WL 5746087 the Illinois Supreme Court examined the meaning of “defendants sued by the plaintiff.” There, the plaintiff was killed after he fell from a construction scaffolding. His estate brought a survival action against his employer, the general contractor, and the scaffolding subcontractor. Both the employer and general contractor settled before trial, leaving only the subcontractor as a defendant at trial. The trial court did not allow the settling defendants’ negligence to be considered in the apportionment of fault, but it applied the settlements as set-offs for the subcontractor’s liability. The Supreme Court affirmed and determined that the statute was never intended to include settling tort-feasors in the apportionment of fault. Thus, the court held that settling tort-feasors should not be considered by a jury when apportioning fault. Rather, the non-settling party’s liability should be reduced by the value of the settlements after a verdict against the defendant has been reached.
While the Ready decision addressed the issue of apportioning fault among settling and non-settling defendants, the decision left open the question of whether the “sole proximate cause defense” remained available to non-settling defendants. Under the sole proximate cause defense a defendant is allowed to argue that he did not cause the plaintiff’s injuries and that they were wholly caused by a party absent from trial. Illinois Pattern Jury Instruction No. 12.04, which is given where the sole proximate cause defense is raised, states:
More than one person may be to blame for causing an injury. If you decide that a defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.
Shortly after its decision in Ready, the Illinois Supreme Court addressed the continued viability of the sole proximate cause defense in Nolan v. Weil-McLain, No. 103137, 2009 WL 1012147 (Ill. April 16, 2009). Like in Ready, the plaintiff sued several defendants, and all but one settled prior to trial. The trial court did not allow the remaining defendant to introduce evidence of the settling defendants’ negligence in arguing that their negligence was the sole proximate cause of the plaintiff’s injuries. Notably, this case differs from Ready because the remaining defendant was arguing that it was not negligent and that someone else’s negligence was the sole proximate cause of the plaintiff’s injuries. In reversing and remanding, the Supreme Court noted that “the concurrent negligence of others does not relieve a negligent defendant from liability” and held that “a defendant has the right to . . . establish that the conduct of another causative factor is the sole proximate cause of the injury.” While the case involved asbestos liability, the court relied upon “general principles of tort law,” so the decision applies to all areas of tort defense.
In sum, recent Illinois Supreme Court decisions clarified whether a jury may consider the negligence of settling defendants in determining and apportioning fault. While the Ready decision determined that “defendants sued by the plaintiff” does not encompass settling defendants, the Nolan decision sustained the viability of the “sole proximate cause defense.” Under these rulings a defendant cannot argue that his negligence combined with a settling defendant’s negligence to cause the plaintiff’s injuries, but a defendant can argue that another’s negligence was the sole cause of the plaintiff’s injuries.
Originally published in the Summer 2009 edition of Quinn Quarterly.