Contributory Negligence in Product Liability Cases: How the IPI Four Hundred Series “Got It Wrong”
Illinois Defense Counsel
IDC Quarterly Volume 31, Number 4 (31.4.20) | Page 1
Illinois Defense Counsel | www.idc.law | 800-232-0169
David B. Mueller
Cassidy & Mueller P.C., Peoria
Contributory Negligence in Product Liability Cases: How the IPI Four Hundred Series “Got It Wrong”
This article reprises and supplements a monograph first published in The Quarterly in 1992. David B. Mueller, Comparative Fault in Strict Liability Cases Under Section 2-1116 of the Code of Civil Procedure, THE QUARTERLY, 1992 at ii. In addition to providing the historic basis and rationale for the statute, it traces the judicial interpretations of the term “contributory fault on the part of the plaintiff” during the intervening 29 years. Of particular interest is the anomaly that while the courts have uniformly recognized that negligence is a component of “fault,” and thereby applies with equal vigor as a defense in product liability cases, the drafters of the “400 series” of the Illinois Pattern Jury Instructions (“IPI”), Civil have failed to grasp that reality.
Pattern jury instructions are intended to accurately state the law on a specific subject as it exists at the time they are published. As such, they are a compendium of statutes, common law decisions and a combination of both. As the law is an historic expression of social conduct, its representation through pattern jury instructions is historic and not predictive. As Justice Holmes aptly stated: “the life of the law is not logic; it is experience.” OLIVER WENDELL HOLMES, JR., THE COMMON LAW (Dover 1991) (1881).
When and whether to use pattern jury instructions is controlled by Illinois Supreme Court Rule 239(a) which states that a trial court “shall” use the IPI, Civil, when it is “applicable in a civil case, giving due consideration to the facts and the prevailing law, … unless the court determines that it does not accurately state the law.” However, a non-IPI instruction should be used if the pattern instruction does not accurately state the law. Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 14; Schultz v. Northeast Illinois Regional Computer R.R. Corp. 201 Ill. 2d 260, 273 (2002), as modified on denial of reh’g (Aug. 29, 2002). Thus, it is incumbent upon counsel and the court to consider whether or not the pattern jury instruction accurately states the law in a given case before tendering or allowing it. That obligation requires an understanding of what the applicable law actually is, which, in turn, merits an understanding and appreciation of how and why the legal rule embodied in the instruction got there and whether it is appropriate in current context.
This article focuses on pattern jury instructions in the IPI, Civil Section 400 (“400 series”), titled “Strict Product Liability.” Specifically, this article addresses the persistent and erroneous assumption that pattern instruction B400.02.01 of the IPI, which limits the plaintiff’s culpable use of a product to “assumption of risk,” is an accurate statement of Illinois law. In that respect IPI B400.02.01 states, inter alia:
If you find from your consideration of all the evidence that any one of these propositions [that the plaintiff must prove, including that the product was “unreasonably dangerous” and the condition of the product was a proximate cause of plaintiff’s injuries,] has not been proved, then your verdict should be for the defendant. But if, on the other hand, you find from your consideration of all the evidence that each of these propositions has been proved, then you must consider the defendant’s claim that the plaintiff assumed the risk of injury.
As to that claim, the defendant has the burden of proving each of the following propositions:
A. That the plaintiff had actual knowledge of the condition which the plaintiff claims made the [product] unreasonably dangerous;
B. That the plaintiff understood and appreciated the risk of injury from that condition and [proceeded] [continued] to use the [product];
C. That the condition known to plaintiff was a proximate cause of the plaintiff’s claimed [injury] [damage].
[However, the plaintiff’s inattentive or ignorant failure to discover or guard against the unreasonably dangerous condition of the [product] does not constitute assumption of the risk.] (Italics supplied).
The preceding admonitions and limitations derive from the historic theoretical distinction between “strict liability in tort” which focuses upon the condition of a product and basic negligence rules which involve the exercise of ordinary care by both the plaintiff and the defendant before and at the time of the injurious occurrence. Suvada v. White Motor Co., 32 Ill. 2d 612 (1965) (impliedly overruled with respect to whether indemnity is available to a party that is itself negligent); Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57 (1963). Adopting that dichotomy, the comments to the current 400 series of the IPI distinguish between contributory negligence, which is excluded as a defense by the drafters, and “assumption of the risk” which is included as a defense:
However, plaintiff’s fault is a defense only if it constitutes assumption of the risk. Plaintiff’s ordinary contributory negligence is not a defense to strict product liability when that negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. Coney v. J.L.G. Indus., Inc., supra at 118-119. A consumer’s unobservant, inattentive, ignorant, or awkward failure to discover or guard against a defect, as opposed to assuming a known risk, is not a defense to a strict product liability claim. Id.
The affirmative defense assumption of the risk requires the defendant to prove that the plaintiff knew of the specific product defect, understood and appreciated the risk of injury from the defect, and nevertheless used the product in disregard of the known danger. Williams v. Brown Mfg. Co, 45 Ill. 2d 418, 426-427 (1970)[.] A user may assume a product is safe; however, if the user finds a defect and proceeds to use the product, the user assumes the risk of injury or property damage. The test of whether the plaintiff assumed the risk is subjective; the conduct and knowledge of the plaintiff is at issue. The jury considers the plaintiff’s age, experience, knowledge, understanding, and the obviousness of the defect in considering assumption of the risk. Williams v. Brown Mfg. Co., supra at 430-431; see Hanlon v. Airco Indus. Gases, 219 Ill. App. 3d 777, 579 N.E.2d 1136, 162 Ill. Dec. 322, (1st Dist. 1991); Calderon v. Echo, Inc., 244 Ill. App. 3d 1085, 1091, 614 N.E.2d 140 (1st Dist. 1993).
It is both interesting and curious to note that the IPI drafters rely upon both Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104 (1983) and § 2-1116 of the Code of Civil Procedure (735 ILCS 5/2-1116) (hereafter “§ 2-1116”), which became effective November 25, 1986. In that regard, they presume that the language in Coney, which rejected contributory negligence in strict liability cases, was approved and adopted by the General Assembly three years later in § 2-1116. As the following discussion demonstrates, the legislature intended the opposite result. In adopting modified “comparative fault” in § 2-1116, the legislature intentionally abolished any artificial theoretical distinctions in the culpability of a plaintiff’s misconduct. In order to appreciate the watershed effect of § 2-1116 in homogenizing concepts of “fault,” an understanding of these evolution of comparative fault concepts through the adoption of the statute and thereafter is helpful.
Evolution of Comparative Fault Principles
On November 25, 1986, Public Act 82-280, § 2-1116, added by 1986 Public Act 84-1431, Article 4, § 1, codified as Ill.Rev.Stat. 1991, ch. 110, ¶ 2-1116, became effective. Section 2-1116 (c) was thereafter rewritten by Public Act 89-7, § 15, effective March 9, 1995; however, Public Act 89-7 was subsequently held unconstitutional in its entirety in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997). To date, the legislature has not amended or repealed this unconstitutional statute, therefore, the version of § 2-1116 currently in effect is, therefore, the version that preceded Public Act 89-7. Titled “Limitation on recovery in tort actions; fault,” § 2-1116 statutorily engrafts modified comparative fault in negligence and product liability actions and, as currently in effect, provides:
Limitation on recovery in tort actions. In all actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, the plaintiff shall be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought. The plaintiff shall not be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is not more than 50% of the proximate cause of the injury or damage for which recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of fault attributable to the plaintiff.
735 ILCS 5/2-1116 (c). At the time of its adoption the legislation was known as “An act in relation to the insurance crisis.” See Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 87 (2002). In addition to the “limitation on recovery in tort actions” effected by § 2-1116, the overall measure altered joint and several liability, modified the collateral source rule, revised procedures for obtaining punitive damages and provided sanctions for the filing of frivolous lawsuits. (735 ILCS §§ 2-1117, 2-1205.1, 2-604.1 and 2-611).
Prior to March 1977, the rule in Illinois was one of indivisible recovery.1 That is to say, a plaintiff recovered “all” from a defendant or “nothing.” Liability was thus full or nonexistent. Defenses were either wholly insubstantial or sufficient to bar recovery in its entirety. The same principles applied downstream between defendants inter se, and in third-party actions between defendants and parties who might be liable to them for full indemnity. Indemnification presupposed: (1) a duty owed by both the putative indemnitor and indemnitee to the plaintiff, Chicago and I. M. Ry. Co. v. Evans Constr. Co., 32 Ill. 2d 600, 604-05 (1965); (2) a pretort relationship between them, Muhlbauer v. Kruzel, 39 Ill. 2d 226, 230 (1968); and a “qualitative” distinction between the liability-producing factors applicable to each. Harris v. Algonquin Ready Mix, Inc., 59 Ill. 2d 445, 449 (1974). With respect to the latter, any negligence or misconduct on the part of the party seeking indemnification which “actively” contributed to the plaintiff’s injury or which was a “major” factor in bringing it about was sufficient to bar recovery, without regard to the magnitude of the indemnitee’s offense. The unfortunate effect of this unitary rule was to require one tortfeasor to “bite the bullet” while others emerged unscathed. Underlying the Draconian impact of the implied indemnity rule was the philosophic assumption that liability was indivisible and therefore incapable of apportionment. Skinner v. Reed-Prentice Div. Package Mach. Co., 70 Ill. 2d 1, 12-15 (1977).
Paralleling the concept of indivisible recovery were doctrinal distinctions between the type of conduct on the plaintiff’s part which would preclude recovery under various circumstances. After 1858, contributory negligence to any degree precluded recovery in a negligence case. Galena & C.U.R. Co. v. Jacobs, 20 Ill. 478 (1858). With the decision in Suvada v. White Motor Co., 32 Ill. 2d 612, 621-22 (1965), Illinois recognized a cause of action for a products related injury not based upon ordinary care. Rather, as the following language from § 402A of the Restatement of Torts Second demonstrates, liability is strict:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”
Focus is upon the product itself, as opposed to the specific acts or omissions of those in the manufacturing-distributive chain. Cunningham v. MacNeal Memorial Hosp., 47 Ill. 2d 443, 453 (1970). Therefore, contributory negligence in its common form, best characterized as the plaintiff’s failure to exercise ordinary care for his own safety, was negated as an absolute defense. Williams v. Brown Mfg. Co., 45 Ill. 2d 418 (1970). In strict liability cases the indivisible recovery rule remained intact. However, as discussed in Williams v. Brown Mfg. Co., supra, “misuse” or “assumption of the risk” by the plaintiff were substituted for “contributory negligence” as defenses which would bar the claim.
The bastion of unitary fault ergo unitary damage was finally breached in the setting of joint tortfeasors, each of whom was guilty of misconduct proximately causing injury to the plaintiff. Skinner, 70 Ill. 2d 1; Stevens v. Silver Mfg. Co., 70 Ill. 2d 41 (1977); Robinson v. International Harvester Co., 70 Ill. 2d 47 (1977). In each of those cases the manufacturer of a product sought relief from the ultimate user which was also the plaintiff’s employer. In each, the application of an “all” or “nothing” rule would, as a matter of law, preclude indemnification or relief of any sort. Griffiths & Son Co. v. National Fireproofing Co., 310 Ill. 331, 339 (1923); Evans Constr. Co., 32 Ill. 2d at 604-605; Burke v. Sky Climber, Inc., 57 Ill. 2d 542, 546-47 (1974). The court in recognizing the rule against apportionment and its implications also considered the inequities which existed in instances where one tortfeasor was required to shoulder the burden of another’s misconduct as well as his own. This latter consideration was found to be sufficient reason to abrogate the doctrine and to substitute in its place the concept of contribution which requires “that ultimate liability for plaintiff’s injuries be apportioned on the basis of the relative degree to which the defective product and the employer’s conduct proximately caused them.” Skinner, 70 Ill. 2d at 14. In so holding, Illinois broke away from the ancient “all or nothing” rule of liability and divided the theretofore “indivisible” tort into as many sections as were required to allocate damages among the various defendants. With the division of damages among defendants and third-party defendants commensurate with causative fault, the path was paved for the short journey which would include plaintiffs in the “comparative” analysis.
As discussed previously, the contributory negligence rule served for more than 120 years to bar a plaintiff’s recovery where he was also at fault, however slight, in causing his own injury. The rule was one which was admirable in its simplicity. A wrongdoer ought not recover. However, a plaintiff who was free from fault ought not have his collection rights impaired, thus bringing about the concept of joint, as well as several, liability. Laubach v. Morgan, 588 P. 2d 1071, 1074 (Okla. 1978). While the rule was simplistic, it worked injustices upon both plaintiff and defendant. Therefore, in Alvis v. Ribar, 85 Ill. 2d 1 (1981) the court took the step contemplated supra and held that a plaintiff was entitled to recover such damages as were not the proximate result of his own misconduct. With Alvis, the apportionment process became complete and, logically, plaintiff or defendant would be held responsible to the extent of his misconduct. Following Alvis, the question became whether comparative negligence by the plaintiff would serve to mitigate his recovery in a products liability action.
At the time Alvis was decided, the vast majority of jurisdictions that considered the issue favored application of comparative fault principles in the setting of strict liability as a means of furthering the policy of “equitable risk distribution.” See, e.g. Daly v. General Motors Corp., 20 Cal. 3d 725 (1978); West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976); Mich. Comp. Laws Ann Sec. 600.2949 (Supp. 1982); and N.Y. Civ.Prac.Law sec. 1411 (McKinney 1976).
Initially, Illinois appeared to follow the same path in Coney, 97 Ill.2d at 116. Specifically approving the California case of Daly, the Illinois Supreme Court in Coney stated:
We believe that application of comparative fault principles in strict products liability actions would not frustrate this court’s fundamental reasons for adopting strict products liability as set out in Suvada. The plaintiff will still be relieved of the proof problems associated with negligence and warranty actions. Privity and a manufacturer’s negligence continue to be irrelevant. Nor would comparative fault lessen the manufacturer’s duty to produce reasonably safe products. The manufacturer’s liability remains strict; only its responsibility for damages is lessened by the extent the trier of fact finds the consumer’s conduct contributed to the injuries. Daly v. General Motors Corp., 20 Cal. 3d 725, 575 P. 2d 1162, 144 Cal. Rptr. 380 (1978).
97 Ill.2d at 116.
Despite this precatory admonition, the opinion went on to except from comparative misconduct “a consumer’s unobservant, inattentive, ignorant or awkward failure to discover or guard against a defect. . .” Id. at 119. Thereafter, the exception consumed the rule. In Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 547 (1985) the court held that only “misuse of the product or assumption of risk” would be mitigating factors. In Simpson v. General Motors Corp., 108 Ill. 2d 146, 149-52 (1985) it then repudiated the language of Coney which applied comparative fault principles to products liability cases. As Justice Ryan found in his enlightened dissent, the foregoing retreat not only severely restricted the holding in Coney, it placed “Illinois with the small minority of States which either did not apply comparative fault to products liability cases or do so on a very limited basis.” Id. at 153.
While the law was flowing from Alvis to Coney to Auton and finally to Simpson in cases involving the relationship between plaintiff and defendant, a different theoretical transition was occurring in the arena of contribution. There, despite the same intellectual distinctions between “negligence” and strict liability concepts, the two were melded for the purposes of apportioning fault among defendants and third-party defendants. As discussed supra, the assessment of damages proportionate to fault had its beginnings with the 1977 trilogy of Skinner, 70 Ill. 2d 1, Stevens, 70 Ill. 2d 41 and Robinson, 70 Ill. 2d 47. Consideration of the facts in all three cases show that contribution was had by manufacturers who were charged with strict liability from employers whose fault rested upon negligence.
The appellate opinion in Skinner categorized the conduct for which contribution was allowed in the following terms taken from the allegations of the third-party complaint:
The third-party complaint further alleged that the Employer had hired plaintiff as a machine operator about June 8, 1972. On August 3, 1972, while this machine was being operated by a different employee, the safety gate became disengaged from the rails. A different employee of Employer was attempting to replace the gate with the assistance of plaintiff when the mold closed and struck plaintiff’s arm. It was further alleged that if the machine was unreasonably dangerous when it left the Manufacturer’s control and if it was unreasonably dangerous when plaintiff was injured, this latter condition was substantially and proximately caused by the negligent acts and omissions of the intervening owners of said machine and of the Employer. It also alleged that the Employer negligently purchased and put in operation a used machine which had been poorly maintained, was in a state of bad repair and had been modified, rewired and rebuilt so it was no longer in the same condition as when it left the Manufacturer’s possession and these changes caused the machine to be unreasonably dangerous when plaintiff was injured.
The Manufacturer also alleged other specified negligent acts or omissions by the Employer, such as allowing the machine to be operated when it knew, or should have known, that the machine was rewired so that safety devices initially installed thereon by the Manufacturer had become inoperative; knowingly allowed the machine to be operated without the adequate guards originally furnished therewith and other specified acts and omissions.
40 Ill. App. 3d at 100-101.
Likewise, in Stevens, the appellate opinion contained a characterization of those allegations of the third-party complaint found to be actionable. Specifically, that pleading claimed that the plaintiff’s employer was at fault in that it:
(a) Having actual knowledge of the safety design and purpose of the feeder end of the machine, failed to use reasonable care in permitting bulky waste materials to pile at the feeder end, thereby requiring operators to feed the machine from the side;
(b) Having actual knowledge of the instructions and warnings accompanying the machine, failed to use ordinary care in communicating to all operators thereof the proper and safe method of feeding the machine, and the proper and safe method of clearing jam-ups of material;
(c) Having actual knowledge of the capacity of the machine, and the anticipated material configuration which could be safely fed into it, failed to use ordinary care in directing and permitting the operators to feed such bulky, unwieldy or other unusual sizes of material that operators were required to and did, in fact, fold the material by hand on the machine itself, and in dangerous proximity to the cutting blades;
(d) Having actual knowledge of the hazards to operators imposed by the particular circumstances of the…material disposal system, caused to be placed over the cutting end of the machine a protective shield or hood, concerning which thereafter [the material disposal system] failed to use ordinary care in permitting it to be removed without substitute, prior to February 11, 1970;
(e) Having actual knowledge of the hazards to operators imposed by the particular circumstances of the…material disposal system, failed to use ordinary care in permitting [plaintiff], a mentally retarded and physically handicapped person, to operate the machine and to feed materials into the machine from the side. 41 Ill. App. 3d at 486.
In Robinson, 70 Ill. 2d 47, the employer was called to account by the defendant, manufacturer, for its failure to purchase and incorporate into the product a number of safety devices, despite the knowledge, actual or imputed, that those devices would be required to avert various dangers associated with its operation.
The so-called Skinner rationale was then legislatively embodied in the Illinois Contribution Among Joint Tortfeasors Act (740 ILCS 100/1 et seq.) As the following language of § 2 (740 ILCS 100/2) demonstrates, definitional distinctions were abolished to apportion damages among those whose tortious conduct contributed to cause them:
Right of Contribution. (a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.
By legislation, the phrase “liability in tort” negated any dispute as to whether a manufacturer would have to show misuse or assumption of risk on the part of a downstream consumer or employer. If the latter were guilty of negligence toward the plaintiff that proximately caused his injury, then the former would be entitled to contribution—despite the fact that the manufacturer’s “tort” was founded upon strict liability.
The question of theoretical distinctions between negligence and strict liability claims was first considered by the Supreme Court in the context of statutory contribution claims in Doyle v. Rhodes, 101 Ill. 2d 1, 17-19 (1984). There the court recognized that an employer whose conduct was subject to the Road Construction Injuries Act was exposed to contribution to a negligent driver. Each owed a duty, albeit theoretically different, to the plaintiff. As the Contribution Act does not require that the two be identical, there was no preclusion of statutory relief.
Next came J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc., 118 Ill. 2d 447 (1987) which involved a products liability claim by the plaintiff against the manufacturer of a product, followed by the latter’s contribution claim against the plaintiffs employer. At issue was the comparison of strict liability and negligence theories on both the principal case and contribution levels. While consistency and common sense would commend identical treatment, the court differentiated between the two. Following Auton and Simpson it held that negligence by the plaintiff does not serve to mitigate his recovery. Conversely, negligence by the employer can be used as the basis for contribution by a manufacturer whose liability is strict. The court accounted for this difference through an analysis of the language of the Contribution Act. As the following language from the opinion demonstrates, where the legislature applies common standards, i.e. liability in tort (Section 2) and “relative culpability” (Section 3]), the courts have no basis upon which to differentiate between the conduct of various parties and its consequences:
Thus, the basis for a contributor’s obligation rests on his liability in tort to the injured party. Accordingly, there is no requirement that the bases for liability among the contributors be the same. [See Doyle v. Rhodes, 101 Ill. 2d l, 461 N.E.2d 382 (1984).] And, as other courts have found, there is no requirement that the basis for contribution mirror the theory of recovery asserted in the original action. [See e.g., Chamberlain v. Carborundum Co., 485 F.2d 31 (3d Cir. 1973); Safeway Store, Inc. v. Nest-Kart, 21 Cal.3d 322, 579 P.2d 441 (1978); Cartel Capital Corp. v. Fireco, 81 N.J. 548, 410 A.2d 674 (1980).] J.I. Case Co., 118 Ill. 2d at 462. As discussed supra, statutory modified comparative fault became the law of Illinois on November 25, 1986. As is the case with the Contribution Act, a common denominator is used in describing the culpable acts and omissions of a plaintiff which will eliminate or reduce recovery in both negligence and strict liability cases. That common denominator is “fault.” The legislature did not say that contributory negligence is a defense in negligence cases but only “misuse” or “assumption of risk” may be considered where injuries result from a defective product. Fault is a unitary concept which focuses upon the conduct of the actor, regardless of third parties, who either fails to exercise ordinary care or places an unreasonably dangerous product in the stream of commerce. In this context the court in Pipes v. American Logging Tool Corp., 139 Ill. App. 3d 269, 273-74 (5th Dist. 1986) (cited with approval in J.I. Case Co, supra, but distinguished by the Supreme Court of Illinois in Gerill Corp. v. Jack L. Hargrove Builders, Inc., 128 Ill. 2d 179, 206 (1989), which held that intentional tortfeasors are not entitled to contribution under the Act) described the effect of the phrase “relative culpability” in the Contribution Act in the following terms:
Section 3 of the [Contribution Act] provides that “the pro-rata share of each tort-feasor shall be determined in accordance with his relative culpability.” (emphasis supplied) (Ill.Rev.Stat. 1983, ch. 70, par. 303.) The action taken by the legislature in adopting the doctrine of contribution following Skinner demonstrates that the law is to be viewed as affording litigants the opportunity to place the loss, in proportionate amounts, on those whose actions have proximately caused injury to person or property without regard to traditional labels characterizing the kind of fault involved. Proportionate fault and relative culpability are the operative concepts, regardless of the labels used when the parties are charged.
The melding of various forms of misconduct into the single concept of “fault” is consistent with the other salutary objectives of “An act in relation to the insurance crisis.” Together with limitations on joint liability and restrictions upon the right to punitive damages, it reflects the ground swell of concern which prompted the legislation. Chiang, 1986 Was An Epic Year For Tort Reform In Many States, Chicago Daily L. Bull., Dec. 26, 1986, at 1, col.3; Kristof, Nationwide Move to Amend Laws on Liability Suits, Chicago Daily L. Bull., Mar. 31, 1986 at 1, col. 2. In signing “An act in relation to the insurance crisis,” Governor Thompson regretted that it did not implement “tort reform” to a greater extent. Letter from Governor James Thompson to the 84th General Assembly (September 26, 1986) (signing into law Senate Bill 1200). That communication also contained the following description of the comparative fault amendment inter alia:
… In any event, for settlement purposes, the comparative fault provision will be most valuable since, unlike the present pure comparative rule, it compels a negligent plaintiff to confront the proposition that he may well recover zero if the case proceeds to trial. (Emphasis supplied).
The elimination of doctrinal distinctions contained in § 2-1116 was also consistent with the interpretation given similar legislation in other jurisdictions. While many state acts specifically defined terms of culpability on the plaintiffs part, Texas, like Illinois, did not. Instead, it had a statute which permitted consideration of the plaintiffs misconduct, denominated as “percentage of responsibility” in the context of claims in tort or strict liability. In addressing the contention that contributory negligence was not a defense in products liability cases the Fifth Circuit Court of Appeals applying Texas law, in Bradshaw v. Freightliner Corp., 937 F. 2d 197, 204 (5th Cir. 1991) stated:
The district judge was correct in his treatment of the comparative causation issues. Section 33.001(b) of the Texas Civil Practice and Remedies Code states: “[i]n an action to recover damages for personal injury…in which at least one defendant is found liable on the basis of strict liability, strict products liability…a claimant may recover damages only if his percentage of responsibility is less than 60 percent.” Section 33.012(a) in turn provides that “[i]f the claimant is not barred from recovery under Section 33.001, the court shall reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a percentage equal to the claimant’s percentage of responsibility.” This statute says nothing about negligent failures to guard against defective products and we do not read Keen into it. Keen was decided under the old law, that much is clear. This case is decided under the tort reform and Bradshaw’s recovery was properly reduced by his negligence.
The Reasoning Behind Comparative Fault In § 2-1116
There was clearly an incongruity between the recognition of negligence principles in contribution cases and their exclusion as a preclusive or mitigating factor in product liability claims by a negligent plaintiff. Recognizing that contributory negligence is as much fault as assumption of the “risk,” the General Assembly adopted statutory modified comparative fault vis a vis plaintiffs and defendants in both negligence and product liability cases.
The preceding discussion describes how comparative fault principles were adopted and evolved to the point where they are an integral part of our civil reparations fabric. In that respect, history, and the common law process, gives expression to Justice Holmes’ reliance upon “experience” as the source of the law. Nonetheless, common sense and thereby logic, has played a significant role. Logic condemns the bifurcation of fault principles between a plaintiff and defendant, as opposed to the common application of those principles to parties in contribution cases. Nor does the distinction make sense where a plaintiff seeks to recover in the same case under both negligence and product liability theories.
If one assumes a two count complaint with the defendant’s negligence asserted in one count and strict liability in the other, can it be said that the identical conduct, which would mitigate recovery in the former, ceases to be “fault” when placed in the crucible of the latter? The negative response, which the foregoing question presupposes, is consistent with the interpretive rules which bear upon the language involved. In the first instance, words are to be given their commonly understood meaning. Fed. Kemper Life Assur. Co. v. Old Republic Sur. Co., 204 Ill. App. 3d 387, 389 (1st Dist. 1990). This is particularly true when that meaning is consistent with the evils which the legislation was intended to remedy. Allstate Ins. Co. v. Winnebago Cty. Fair Ass’n., Inc., 131 Ill. App. 3d 225, 228 (2nd Dist. 1985). In this context “fault” is defined as “responsibility for wrongdoing or failure.” Webster’s Third New International Dictionary 829 (1986). Unlike the chameleon it does not adapt to its surroundings. “Consistency” is another watchword of legislative interpretation. It is assumed that the General Assembly will be consistent in the meaning which it ascribes to terms in statutes upon related subjects. Bd. of Trustees of Cmty Coll. Dist. No. 508, Cook Cty. v. Taylor, 114 Ill. App. 3d 318, 323 (1983). For the purpose of warranty claims and other applications under the Uniform Commercial Code, “fault” meant “wrongful act, omission or breach.” Ill.Rev.Stat. Ch. 26, sec. 1-201(16) (currently, 810 ILCS 5/1-201 (17) provides: “‘Fault’ means a default, breach, or wrongful act or omission”).
Clearly, fault qua fault under § 2-1116 refers to misconduct of whatever nature by the plaintiff. No artificial distinctions are drawn between plaintiff’s inadvertent failure to discover or guard against a defect and any other misconduct on his part. Nor is there any reason to give the term “fault” a definition other than that ascribed by Webster. Nor have any authorities since the adoption of the statute made that distinction.
Decisions under the statute have uniformly disregarded theoretical distinctions in the various forms of contributory fault. Since its adoption in 1986, no reviewing court has differentiated among the types of contributory misconduct that will bar or mitigate a plaintiff’s recovery. To the contrary, every decision on the subject recognizes that the term “contributory fault” applies equally to all varieties of culpable acts and omissions. Gratzle v. Sears, Roebuck & Co., 245 Ill. App. 3d 292, 295 (2nd Dist. 1993); Freislinger v. Emro Propane Co., 99 F. 3d 1412, 1417-18 (7 Cir. 1996); Tidemann v. Nadler Golf Car Sales, Inc., 224 F. 3d 719, 725-26 (7th Cir. 2000); Malen v. MTD Productions, Inc., 628 F. 3d 296, 313 (7 Cir. 2010); Sobczak v. General Motors Corp., 393 Ill. App. 3d 910, 928 (2007).
Of these authorities, only Gratzle, 245 Ill. App. 3d 292, is discussed in the drafter’s comments to the IPI, Civil Instructions on strict product liability. There it is cited as an afterthought following a lengthy discussion of the pre-statute law under Coney, 97 Ill. 2d 104. The error implicit in that citation merits the following repetition:
Comparative fault principles apply to the plaintiff’s assumption of the risk. Coney v. JLG Industries, Inc., supra. If plaintiff’s fault in assuming the risk is 50% or less of the total fault that proximately caused the injury or damage, plaintiff’s damages are reduced by that percentage. But under legislation enacted in 1986, the plaintiff is barred from recovery if the plaintiff’s assumption of the risk is “more than 50% of the proximate cause of the injury” or damage for which recovery is sought. 735 ILCS 5/2-1116; Gratzle v. Sears, Roebuck & Co., 245 Ill. App. 3d 292, 184 Ill.Dec. 485, 613 N.E.2d 802 (2d Dec. 1983).
IPI, Civil Section 400. The preceding analysis is sound, as far as it goes. However, it omits the reasoning in Gratzle that “assumption of the risk” is only one form of “contributory fault” which reduces or bars recovery in product liability cases.
How and why the Gratzle court reached that construction merits consideration of the circumstances of the case, and state of product liability law in Illinois at the time the case was tried. Section 2-1116 was adopted in November 1986 following the Illinois Supreme Court’s decision in Coney. Gratzle was a 1990 case for injuries sustained to the plaintiff’s hand while he was using a table saw manufactured by Emerson Electric Company and sold by Sears. While the Complaint initially alleged product liability, negligence, and breach of warranty claims, at the time it was submitted to the jury only the product liability cause against Emerson, and warranty claim against Sears, remained. Of these, only the former is pertinent to the following discussion.
As affirmative defenses, Emerson had raised “assumption of risk and misuse of the product.” As to those defenses, Emerson contended that each “… accounted for more than 50% of the proximate cause…” of the plaintiff’s injuries, thereby barring his recovery. With respect to the plaintiff’s product liability claims the jury was instructed:
Plaintiff’s assumption of the risk, if any, does not bar his recovery. However, the total amount of damages to which he would otherwise be entitled is reduced in proportion to the amount of his fault in assuming the risk. This is known as comparative fault.
Gratzle, 245 Ill. App. 3d at 294. The jury was then instructed to reduce the plaintiff’s damages to the extent that he was at fault in “assuming the risk.” The jury returned a verdict in favor of the plaintiff and against Emerson. It first found total damages of $200,000.00, which it reduced to $80,000.00 based upon a finding “…that the plaintiff’s assumption of risk constituted 60% of the proximate cause of his injuries.”
As is evident from this outcome, the trial court applied two pre § 2-1116 rules in entering judgment against Emerson for $80,000.00. On the first level in entering judgment for the plaintiff, it applied “pure form” as opposed to “modified form” comparative fault concepts. Under § 2-1116 a finding of 60% comparative fault on the part of the plaintiff would bar recovery. Second, the trial court failed to recognize that “assumption of the risk” fell within the definition of “comparative fault” under the Act.
On appeal, the reviewing court first held that § 2-1116 was applicable to the plaintiff’s “product liability” claim. It then went on to find that “…the legislature intended to treat assumption of risk the same as contributory fault under § 2-1116.” In that respect, the court reasoned that the statute was intended to abolish the distinctions between different types of comparative fault in product liability, as well as negligence cases. Gratzle, 245 Ill. App. 3d at 295. That construction, if not dictated by the clear language of § 2-1116, was mandated by the court’s adoption of and reliance upon the Wisconsin Supreme Court’s interpretation of that state’s comparable statute in Powers v. Hunt-Wesson Foods, Inc., 64 Wis. 2d 532, 535-36, (1974).
There, the Wisconsin court specifically held that contributory negligence and assumption of risk “…are available in determining the apportionment of liability on the part of the manufacturer of an…alleged defective product and the negligent use made thereof by the consumer….” Referring expressly to § 402A of the Restatement (Second), the court went on to hold “…thus the ordinary rules of causation and defenses applicable to negligence are available under our adoption of the restatement rule.” Ibid. Adopting the Wisconsin court’s reasoning in Powers, the Gratzle court specifically found that comparative fault statutes, such as § 2-1116, amount to Illinois’ recognition of “…a trend toward abolishing the distinctions between different types of fault in the context of negligence verdict setoffs….” Gratzle, 245 Ill. App. 3d at 296.
The Seventh Circuit next weighed in on the construction of § 2-1116 in Freislinger v. Emro Propane Co., 99 F. 3d 1412, 1417-18 (7th Cir. 1996). There the plaintiff was severely burned by the ignition of propane gas as he tried to light the pilot light of a dehydrator used in drying wood chips for truck oil filters. He brought suit on strict liability and negligence theories against the lessor of the propane tank, the propane manufacturer and the supplier of a chemical odorant for the propane. The lines connecting the propane tank to the dehydrator had been jury-rigged and leaked regularly. The pilot light valve handle was “broken off” and it had been replaced with a pair of vise-grip pliers attached to the valve assembly. From time to time gas leaking from the pilot valve would catch fire. All of these were known to the plaintiff’s employer, as well as the employees, who would try to remedy the hazards by “…tightening the propane tank valve with a wrench and applying duct tape to the pipe leading to the pilot light assembly.” Due to the accumulation of propane in the dehydrator shed employees would regularly air out the shed with a “…fan before attempting to light the pilot, in order to remove possible accumulations of gas.” In instances where the pilot light would not ignite upon the first effort, employees would air out the shed before trying again. On the morning of the accident, Freislinger took none of these precautions.
The case proceeded to trial against Emro and Marathon on both negligence and strict liability theories. The “centerpiece of the defense was the claim that Freislinger was responsible for the accident, either through assumption of risk or contributory negligence.”
The case went to the jury on both negligence and strict liability claims. The court refused to instruct the jury on assumption of risk and narrowed the charges of contributory negligence to the plaintiff’s continued attempts to light the pilot light when he should have known of the presence of propane. In that respect the court rejected contributory negligence claims regarding maintenance of the lines and the pilot light. The jury returned a verdict in favor of the plaintiff on both theories. On appeal Emro and Marathon argued inter alia “…that the instructions to the jury misstated the relevance of Freislinger’s own negligence or assumption of risk….”
Despite findings in favor of the plaintiff on his negligence and product liability theories, the reviewing court reversed and remanded. In doing so, it specifically held that.” Citing to Gratzle, supra, the court stated that through the 1986 statute the “. . . fact finder must consider all fault attributable to plaintiff in product liability cases.” Freislinger v. Emro Propane Co., at 1417.
The Seventh Circuit subsequently adhered to its reasoning in Freislinger in Tidemann v. Nadler Golf Car Sales, Inc., 224 F. 3d 719, 726 (2000) where the product was a reconditioned golf cart. There the plaintiff propelled the cart through a garage door when she thought it was in neutral. In her complaint, Tidemann raised both strict liability and negligence theories. The trial court dismissed the products liability action and limited trial to the negligence claim. The jury returned a verdict which apportioned 82% of the fault to the plaintiff, which under § 2-1116, mandated judgment for the defendant.
On appeal Tidemann argued inter alia that the trial court erroneously entered judgment in favor of the defendant on her strict liability claim. In affirming, the reviewing court found that the jury’s fault apportionment would compel the same result if the case were tried on a strict liability theory. In that regard it held:
Section 5/2-1116 makes clear that it does not matter whether a plaintiff’s case is based on negligence or “product liability based on strict tort liability.” If the jury concludes that her own negligence was more than 50% of the cause of her injuries, then no damages are to be awarded regardless of the different theories of liability that a plaintiff might assert…
Tidemann, 224 F. 3d at 726.
The fault homogenizing effect of § 2-1116 was further affirmed in Malen v. MTD Products, Inc., 628 F. 3d 296, 313 (7th Cir. 2010) where the court considered the plaintiff operator’s contributory negligence in the setting of a “reconditioned riding lawn mower.” Relying upon Freislinger and Tidemann, supra the court found:
Lastly, even if Malen’s actions can be characterized as negligent, this goes only to apportioning comparative fault. Under Illinois law, whether a claim is based on negligence or strict products liability, an injured party is barred from recovering only if the trier of fact finds that his conduct was more than 50% of the proximate cause of the injury for which recovery is sought…Comparative fault applies so that former defenses such as contributory negligence, assumption of risk, and misuse of the product are merely damage-reducing factors.
Malen, 628 F. 3d at 313.
Sobczak v. General Motors Corp., 373 Ill. App. 3d 910 (2007) was a design defect case which arose out of a passenger compartment fire in a 1999 Chevy Astro M/L van. Inter alia, the plaintiff brought a strict liability claim against GM for a fire that started underneath the van with heat that traveled up through the flooring to the interior. Strict liability claims focused upon the design of the van’s heat shielding system and alleged defects in its fuel management system.
At the conclusion of the plaintiff’s evidence, a directed verdict was entered in favor of GM on the plaintiff’s negligence, res ipsa loquitur, warranty and fuel management system claims. The case then went to verdict on the single product liability design defect claim “concerning the fuel management system.” Throughout the trial, GM defended inter alia, based on the plaintiff’s intoxication as contributory negligence. On that issue, the trial court instructed the jury to find GM not liable if the plaintiff’s contributory negligence comprised “more than 50% of the total proximate cause of [his] injury or damage.” The jury found in favor of the manufacturer.
On appeal, and while reversing and remanding on other grounds, the Appellate Court, referring to the comparative fault instruction in the context of section 2-1116 held:
In the instant case, the trial court instructed the jury in accordance with the plain text of Section 2-1116 and consequently permitted the jury to consider any and all evidence of fault that may be attributable to Sobczak.
Sobczak at 928.
While the case was reversed and remanded on other grounds, there is no question but that plaintiff’s intoxication and attendant contributory negligence was a proper subject for jury instruction under § 2-1116 on both the plaintiff’s negligence and product liability claims.
More than 35 years have passed since the adoption of § 2-1116. As the preceding history of that statute demonstrates, it was enacted inter alia in response to the doctrinal distinction drawn by the Supreme Court in Coney v. JLG Industries, Inc., 92 Ill. 2d 104 (1983) between the defenses which are appropriate to negligence, as opposed to strict liability cases. As the court in Sobczak v. General Motors Corp., supra, found, the “plain text of § 2-1116” is clear in its synthesis of contributory negligence and “assumption of risk” as “contributory fault” that applies to both negligence and products liability cases. The pattern jury instructions on this point have no support for their rejection of contributory negligence as a defense in strict liability litigation. Therefore, the author respectfully submits that appropriate instructions to the contrary should be tendered in product liability cases and as they would accurately state the law, should be given. Hobart v. Shin, 185 Ill. 2d 283, 294 (1998).
1 The historical review case law citations in this historical review have not been updated to reflect their current status—for example, some have been superseded by statute or otherwise overruled.
About the Author
David B. Mueller is a partner in the Peoria firm of Cassidy & Mueller, P.C. His practice is concentrated in the areas of products liability, construction injury litigation, and insurance coverage. He received his undergraduate degree from the University of Oklahoma and graduated from the University of Michigan Law School in 1966. He is a past co-chair of the Supreme Court Committee to revise the rules of discovery, 1983-1993, and presently serves as an advisory member of the Discovery Rules Committee of the Illinois Judicial Conference. He was member of the Illinois Supreme Court Committee on jury instructions in civil cases and participated in drafting the products liability portions of the 1995 Tort Reform Act. He is the author of a number of articles regarding procedural and substantive aspects of civil litigation and lectures frequently on those subjects.
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