Complexities in Construction Negligence Litigation

IDC Quarterly Vol. 13, No. 3 (13.3.18)

Summary: This article picks up where the Illinois construction negligence law left off following repeal of the Structural Work Act. It also traces the evolution of comparative fault principles in this state following the adoption of Sections 2-1116 and 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1116, 5/2-1117) and the Illinois Contribution Among Joint Tortfeasors statute (740 ILCS 100/1 et seq.). It discusses Section 414 of the Restatement (Second) of Torts and its so-called “control” requirement as a substitute for strict liability under the repealed statute. In pointing out the evolution of Illinois construction negligence law the article points out the preclusion of self-indemnification in construction contracts, as well as the so-called “Kotecki” limitation upon the contribution exposure of third party defendants/employers, as well as exceptions to that limitation. Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d 201 (1997) and Liccardi v. Stolt Terminals, Inc., 178 Ill. 2d 540 (1997). As no discussion of the respective exposures between contractors on a project is complete without consideration of applicable insurance coverage issues, the article also deals with the so-called “targeted tender” phenomenon. All in all, complexities in construction negligence litigation is an excellent primer on Illinois substantive negligence, comparative fault, liability limiting defenses and insurance coverage issues.

"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)