Illinois Bill may Alter Comparative Fault

Senate bill 1296 proposes to amend section 2-1117 of the Joint Liability Statute to apportion fault only to defendants still remaining in the case at the time of judgment. The fault of any defendants who have settled or been dismissed from the case would be ignored with respect to the remaining defendants’ liability.

Current case law in Illinois is split on whether or not to consider dismissals and settlements in the final apportionment of damages. The 5th District Appellate Court of Illinois and 7th Circuit US Court of Appeals align with the proposed amendment and disregard dismissed and settled defendants. These courts argue that the term “defendants sued by the plaintiff” in section 2-1117 was clearly intended to mean only defendants who remain in the case when it is submitted to the fact finder. They also claim that considering the fault of absent defendants will encourage use of “empty chair” defense.

Conversely, the 4th District Appellate Court of Illinois and 1st District Appellate Court of Illinois maintain that including settled and dismissed defendants in determination of liability promotes more equitable outcomes and prohibits plaintiffs from manipulating defendants to find the deepest pocket. A 1st District case decided along those lines is currently pending before the Illinois Supreme Court. However SB 1296 is currently waiting for a House vote, and if it is enacted, the point will be moot.