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.
Monday, July 2, 2007
Spoliation of Evidence
A recent decision in the 5th district discussed an insurance carrier’s liability for spoliation of evidence. Generally, a duty to preserve evidence only exists if the duty is imposed by an agreement or contract, if the duty is imposed by statute, or if a duty is warranted because of a special circumstance. In this case, a wheel flew off of a truck which struck another car, resulting in the death of the driver. The truck owner’s insurance carrier asked that the owner retain the tire as evidence, yet later when the truck was repaired, the wheel was discarded. The plaintiff sued for spoliation of evidence, and the court found that the carrier was liable.
The contractual agreement between insurance carrier and insured party does not create a duty to preserve evidence, but the court held that once an insurance carrier has voluntarily assumed a duty to preserve evidence, the carrier may be liable for spoliation. In addition to having voluntarily assumed the duty, the court must also find that the carrier had enough control over the evidence to be able to preserve it. In this case, by asking the insured to keep tire, the carrier had assumed a voluntary undertaking, and because the insured agreed to do so, the carrier had control.
The contractual agreement between insurance carrier and insured party does not create a duty to preserve evidence, but the court held that once an insurance carrier has voluntarily assumed a duty to preserve evidence, the carrier may be liable for spoliation. In addition to having voluntarily assumed the duty, the court must also find that the carrier had enough control over the evidence to be able to preserve it. In this case, by asking the insured to keep tire, the carrier had assumed a voluntary undertaking, and because the insured agreed to do so, the carrier had control.
Change in Premises Liability Jury Instructions
In October 2006, Scott Britton tried a case which changed the law in premises liability, drawing a key distinction between property managers and owners or occupiers of the land.
The plaintiff tripped over a pneumatic hose and fell in the driveway of her residence, a shareholder cooperative. She brought suit against the property manager and co-op for personal injury, claiming that the defendants breached their duty to maintain the premises in a safe condition. At trial, the court found that the property manager was an agent of the co-op, and the jury returned a verdict for the defendants. However, plaintiff appealed claiming, among other things, that the use of Illinois Pattern Jury Instruction, Civ., No. 120.08 was inappropriate for the property manager and that the instruction itself was defective.
IPI 120.08 is a newer instruction on premises liability which requires the plaintiff to meet a higher standard of proof than IPI 21.02, the ordinary negligence instruction. The appellate court decided that while IPI 120.08 is a valid instruction, it does not apply to property management. The court determined that regardless of whether or not the property manager was determined to be an agent of the co-op, IPI 120.08 does not apply because there is no question that the property manager did not own or occupy the land. Furthermore property manager’s duty is common law, arising out of an agreement with the co-op, and is amenable to an ordinary negligence instruction.
The plaintiff tripped over a pneumatic hose and fell in the driveway of her residence, a shareholder cooperative. She brought suit against the property manager and co-op for personal injury, claiming that the defendants breached their duty to maintain the premises in a safe condition. At trial, the court found that the property manager was an agent of the co-op, and the jury returned a verdict for the defendants. However, plaintiff appealed claiming, among other things, that the use of Illinois Pattern Jury Instruction, Civ., No. 120.08 was inappropriate for the property manager and that the instruction itself was defective.
IPI 120.08 is a newer instruction on premises liability which requires the plaintiff to meet a higher standard of proof than IPI 21.02, the ordinary negligence instruction. The appellate court decided that while IPI 120.08 is a valid instruction, it does not apply to property management. The court determined that regardless of whether or not the property manager was determined to be an agent of the co-op, IPI 120.08 does not apply because there is no question that the property manager did not own or occupy the land. Furthermore property manager’s duty is common law, arising out of an agreement with the co-op, and is amenable to an ordinary negligence instruction.
Illinois Wrongful Death Damages Can Now Include Grief, Sorrow, and Mental Suffering
It has been 140 year since Illinois has allowed recovery for bereavement, but as of May 17, 2007 that will change. The Illinois General Assembly amended the wrongful death statute to include damages for grief, sorrow, and mental suffering of the surviving spouse and next of kin in addition to the current pecuniary damages available. Juries may now award these grief damages for any cause of action accruing on or after May 31, 2007 in any wrongful death case. The amendment also removed some outdated limitations on recovery for deaths occurring before 1967. The administration Office of the Illinois Courts determined that this amendment will not have any fiscal impact on the judiciary. Undoubtedly it can have a substantial fiscal impact on the parties.
Jeff Hebrank, president of the Illinois Association of Defense Trial Counsel, testified against the dramatic increase in liability because it will make plaintiff’s lawyers richer, create millionaires out of grieving spouses and children, encourage big employers to leave Illinois, and raise insurance premiums. He also laments that it is only a short jump to allow personal injury victims and family members to claim grief, sorrow, and mental suffering.
Jeff Hebrank, president of the Illinois Association of Defense Trial Counsel, testified against the dramatic increase in liability because it will make plaintiff’s lawyers richer, create millionaires out of grieving spouses and children, encourage big employers to leave Illinois, and raise insurance premiums. He also laments that it is only a short jump to allow personal injury victims and family members to claim grief, sorrow, and mental suffering.
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