Illinois Supreme Court Finds That Defendants Can Argue Liability Against Settled Defendants.
by Daniel P. Costello, Esq.
Shortly before the end of 2008, the Illinois Supreme Court in Ready v. United issued what at the time was the most significant change to the law on jury instructions in Illinois. Terry E. Ready v. United/Goedecke Services Inc., et al., No. 103474.
We have been following this case since the cold months of December, and in the days just before the July 4th holiday, the 1st District Illinois Appellate court has again heated up the debate on the state of the law in Illinois on contribution among joint tortfeasors.
As I originally wrote in my January 2009 edition of this e-letter, Section 2-1117 of the Illinois Code of Civil Procedure has long been a troublesome statue. Originally crafted as a modified form of contributory negligence, the statute had meant to serve as a protection for minimally culpable defendants in Illinois.
However, the Illinois Supreme Court held in Ready that the legislature did not intend fault to be apportioned to defendants who had settled prior to trial. This decision appeared to be a blow to joint and several liability for those defendants found to be at least 25 percent responsible for the plaintiff’s injury.
Many plaintiff’s attorneys called the court’s decision a win at that time. Prior to the high court’s decision, many plaintiff’s lawyers stated that they were reluctant to engage in partial settlements. They often cited to the concern of the empty chair at trial and a name on the verdict form that wasn’t part of the story they were putting on.
But in two recent decisions the courts have swung back to a middle ground again. The Illinois Supreme Court in its latest ruling on the sole proximate cause argument, in Nolan v. Weil-McLain, No. 103137, 2009 Ill. LEXIS 381 (April 16, 2009), and the Illinois 1st District Court in the rehearing of the Ready v. United, 2009 Ill. App. LEXIS 589(1st Dist, June 30, 2009), both have ruled that despite the fact that settling defendants do not go on the verdict form, the remaining defendants can still argue that those settling were the sole proximate case of the plaintiff’s injuries.
In the Nolan case, all of the defendants but one settled prior to trial in an asbestos litigation case. The trial court in that case barred via a motion in limine that the lone remaining defendant was able to argue any liability on the settling defendants. However, the Illinois Supreme Court in Nolan reversed and found that it was error to exclude this evidence when proximate cause was disputed and the defendant pursued a sole proximate cause defense, following its prior decision in Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 93(1995), Nolan, 2009 Ill. LEXIS 381, at *42.
Following the Nolan decision, the Ready 1st District Appeals Court also found United’s denial of liability was sufficient to permit it to present evidence that Ready’s death was the result of another entity’s conduct. Thus, the court erred by excluding this evidence and the case is set for a new trial.
This is obviously a positive development for defense counsel. Prior to these rulings the courts were barring any evidence of negligence on behalf of settled defendants in motions in limine. Thus, the jury was not hearing any evidence that they were the cause of the plaintiff’s injuries. The court’s new decision will allow defendant’s to argue that it was “not the sole proximate cause” and that the plaintiff’s injuries were a result of the conduct of others.
However, this issue does not appear to be completely settled. The Ready case is being appealed again to the Illinois Supreme Court, and the issue of whether defendants are entitled to a specific jury instruction on sole proximate cause has not been decided. But for the short term it appears that “some” balance has been restored to Illinois law allowing defendants to argue the true responsible parties liability before a jury. We will continue to follow this matter and provide updates as they become available.
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