Ill. Pattern Jury Instr. (Civil) 10.00

INTRODUCTION

This introduction is divided into three parts. The first part applies to cases based on

causes of action accruing prior to November 25, 1986, the date P.A. 84- 1431 became effective.

This legislation modified the doctrine of comparative negligence and changed other aspects of

negligence cases. The second part concerns the effect of P.A. 84 -1431. The third part concerns

willful and wanton conduct.

1. Actions Accruing Prior to November 25, 1986

Until June 1981, common law claims for damages based upon a negligence theory

included the traditional elements, issues, and burden of proof. In Alvis v. Ribar , 85 Ill.2d 1, 421

N.E.2d 886, 52 Ill.Dec. 23 (1981), the Illinois Supreme Court made a major change in these

issues and burdens. The Court abolished contributory negligence as a bar to the plaintiff's right to

recover in negligence cases and substituted comparative negligence in its place. A reading of that

opinion is a necessary introduction to Illinois negligence instructions.

The Court adopted the “pure form” of comparative negligence as the law in Illinois. Any

contributory negligence chargeable to a plaintiff diminish es proportionately the amount awarded

as compensatory damages, but no longer entirely bars recovery. The plaintiff is entitled to

recover his total damages reduced by the percentage of negligence attributable to him.

The Court left many aspects of the law of negligence actions unresolved in Alvis. No

direction was given concerning the requirements for pleading and burden of proof on

comparative negligence issues. This vacuum was filled by the legislature in an amendment to §2-

613(d) of the Illinois Civil Practice Law (735 ILCS 5/2 -613(d)). This amendment (H.B. 381),

which became law on September 15, 1985, places on the defendant the burden of pleading the

facts constituting the plaintiff's contributory negligence. The Court has ruled that defendant has

the burden of proof on this issue. Casey v. Baseden, 111 Ill.2d 341, 490 N.E.2d 4, 95 Ill.Dec. 531

(1986).

The Alvis opinion made no statement concerning its effect on joint and several liability,

the defense of assumption of risk, willful and wanton conduct, punitive damages, set off, and the

like, leaving “the resolution of other collateral issues to future cases.” 85 Ill.2d at 28, 421 N.E.2d

at 898, 52 Ill.Dec. at 34. The Alvis opinion was also silent concerning any extension of the

doctrine of comparative fault beyond common law negligence actions.

Since Alvis, the Illinois Supreme Court has found comparative fault applicable to strict

products liability cases ( Coney v. J.L.G. Indus., Inc., 97 Ill.2d 104, 454 N.E.2d 197, 73 Ill.Dec.

337 (1983); Simpson v. General Motors Corp., 108 Ill.2d 146, 483 N.E.2d 1, 90 Ill.Dec. 854

(1985)), but inapplicable under the Structural Work Act. Simmons v. Union Elec. Co., 104 Ill.2d

444, 473 N.E.2d 946, 85 Ill.Dec. 347 (1984); Prewein v. Caterpillar Tractor Co., 108 Ill.2d 141,

483 N.E.2d 224, 90 Ill.Dec. 906 (1985).

In Coney, the Court held that the principles of comparative fault are applicable to strict

products liability cases on the issue of diminution of the plaintiff's damages. The Court said:

Once defendant's l iability is established, and where both the defective product and the

plaintiff's misconduct contribute to cause the damages, the comparative fault principle

will operate to reduce plaintiff's recovery by that amount which the trier of fact finds him

at fault.

97 Ill.2d at 119, 454 N.E.2d at 204, 73 Ill.Dec. at 344. However, the type of misconduct by the

plaintiff that will be compared in strict liability cases is narrower in scope than the traditional

concept of contributory negligence:

[T]he defenses of misuse and assumption of the risk will no longer bar recovery. Instead,

such misconduct will be compared in the apportionment of damages . . . . We believe

that a consumer's unobservant, inattentive, ignorant or awkward failure to discover or

guard against a defect should not be compared as a damage-reducing factor.

Id. Coney was reaffirmed in Simpson v. General Motors Corp., 108 Ill.2d 146, 483 N.E.2d 1, 90

Ill.Dec. 854 (1985).

Coney also reaffirmed the doctrine of joint and several liability. See als o Doyle v.

Rhodes, 101 Ill.2d 1, 461 N.E.2d 382, 77 Ill.Dec. 759 (1984) (joint and several liability

applicable even where liability of one defendant is grounded upon special duties imposed by a

safety statute).

Duffy v. Midlothian Country Club, 135 Ill.App.3d 429, 481 N.E.2d 1037, 90 Ill.Dec. 237

(1st Dist.1985), held that assumption of the risk, where applicable, is a damage reducing factor in

a negligence case.

2. Actions Accruing On and After November 25, 1986

P.A. 84- 1431 (and particularly 735 ILCS 5/2- 1107.1 and 5/2- 1116 through 2-1118),

effective as to all causes of action accruing on and after November 25, 1986, abolished pure

comparative fault. In its place, more than 50% contributory fault of the plaintiff requires a

finding that the defendant is not liable and bars the plaintiff from recovering damages.

Comparative fault of 50% or less results in a diminution of damages in proportion to the amount

of fault attributable to the plaintiff.

With respect to joint and several lia bility, 735 ILCS 5/2- 1117 provides for several

liability for damages (other than “medical and medically related expenses”) for “any defendant

whose fault . . . 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 . . . .”

For any defendant whose fault is 25% or greater, joint and several liability for all damages

remains. This provision does not apply to certain pollution actions or m edical malpractice

actions. 735 ILCS 5/2-1118.

To enable users to identify instructions applicable only to causes of action accruing on

and after November 25, 1986, these instructions are numbered beginning with the letter “B.”

3. Willful and Wanton Conduct

Burke v. 12 Rothschild's Liquor Mart , 148 Ill.2d 429, 593 N.E.2d 522, 170 Ill.Dec. 633

(1992), held that a plaintiff's negligence cannot be compared to a defendant's willful and wanton

conduct to reduce the amount of damages recoverable by the plaintiff. However, Ziarko v. Soo

Line R.R. Co., 161 Ill.2d 267, 641 N.E.2d 402, 204 Ill.Dec. 178 (1994), a contribution case,

stated that the Burke court's analysis was limited to cases where the defendant's wrongful

conduct was intentional.

Poole v. City of Rolling Meadows , 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171

(1995), was a personal injury case where the plaintiff was shot by an on- duty city police officer.

Plaintiff claimed, and the jury found, that the officer acted willfully and wanton ly. Although the

jury found the plaintiff contributorily negligent, plaintiff argued that damages based on willful

and wanton conduct could not be reduced by mere contributory negligence. The trial court

agreed and entered judgment for the full amount of plaintiff's damages without reduction. The

appellate court affirmed, but the Supreme Court reversed and remanded for a new trial, holding

that because it was unclear whether the defendant's willful and wanton conduct was committed

“intentionally” or “recklessly,” the trial court erred in reinstating the verdict.

Poole adopted the Ziarko plurality's analysis, holding that a plaintiff's contributory

negligence will not be a damage- reducing factor if the defendant's willful and wanton conduct

was “intentional.” On the other hand, if a defendant's willful and wanton conduct was “reckless,”

plaintiff's contributory negligence will reduce his or her damages. Poole , 656 N.E.2d at 771- 72,

212 Ill.Dec. at 174-75.