Comparative Fault in Strict Liability Cases Under Section 2-1116 of the Code of Civil Procedure

IDC Quarterly Vol. 2, No. 4.

Summary: This article traces developments in Illinois product liability law following the adoption of Section 2-1116 of the Code of Civil Procedure (735 ILCS 5/2-1116). Section 2-1116 was adopted by the General Assembly following the Illinois Supreme Court’s rejection of comparative fault in product liability cases in Coney v. JLG Industries, Inc., 97 Ill. 2d 104 (1983). Section 2-1116 applies comparative fault to “. . . all actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based upon strict tort liability. . .”  (Italics supplied). The statute was adopted effective November 29, 1986. Thereafter, only a few courts have “come to grips” with the concept of contributory negligence as a full or mitigating defense in product liability actions. However, those that have considered the issue have consistently held that contributory negligence qualifies as “fault” under the statute. Freislinger v. Emro Propane Co., 99 F. 3d 1412 (1996); Tidemann v. Nadler Golf Car Sales, Inc., 224 F. 3d 719 (7 Cir., 2000); Malen v. MTD Products, Inc., 628 F. 3d 296 (2010); Sobczak v. General Motors Corp., 373 Ill. App. 3d 910 (2007), and Gratzle v. Sears, Roebuck and Co., 245 Ill. App. 3d 292 (1993).  Read More

"The law is not an inflexible structure whose walls restrain progress. Rather, it needs to be nudged molded and shaped. An able advocate best represents his client by convincing the Courts of that fact."

John E. Cassidy. Sr. (1896-1984)
Firm Founder Illinois Attorney General (1938-1940)