Ready v. United/Goedecke Services ( 2010 )

Docket No. 108910.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
________________________
TERRY E. READY, Special Adm’r of the Estate of Michael P.
Ready, Deceased, Appellant, v. UNITED/GOEDECKE SERVICES,
INC., et al. (United/Goedecke Services, Inc., Appellee).
Opinion filed October 21, 2010.
CHIEF JUSTICE FITZGERALD delivered the judgment of the
court, with opinion.
Justices Freeman and Burke concurred in the judgment and
opinion.
Justice Kilbride specially concurred, with opinion.
Justice Garman specially concurred, with opinion, joined by
Justice Karmeier.
Justice Thomas took no part in the decision.
OPINION
This case returns to this court for a second time. The issues before
us are whether the appellate court followed the instructions of this
court on remand and whether its decision on the sole proximate cause
issue was correct. For the reasons that follow, we reverse the
appellate court.
BACKGROUND
In 1999, Michael Ready (Michael) was killed in an accident at the
power plant where he worked when, during a pipe-refitting project,
a scaffolding truss fell eight stories and struck him in the shoulder. His
wife, Terry Ready (Terry), as administrator of his estate, filed
wrongful-death claims in the circuit court of Cook County against the
general contractor on the project, BMW Constructors, Inc. (BMW),
and the scaffolding subcontractor on the project, United/Goedecke
Services, Inc. (United). Those defendants filed third-party contribution
complaints against Michael’s employer, Midwest Generation EME,
L.L.C. (Midwest), and Terry amended her complaint to add Midwest
as a defendant. United filed an affirmative defense, claiming that the
accident “was caused either in whole, or in part, by and through the
action or inactions of a third party or parties” for which United is not
responsible. Terry entered settlement agreements with Midwest and
BMW and proceeded to trial against United.
Prior to trial, Terry filed motions in limine to exclude evidence
regarding the conduct of Midwest and BMW. Regarding Midwest,
Terry argued that her good-faith settlement with that company
prevented the jury from apportioning fault to it. She further argued
that United employees James Talley, Jeffrey Talley, and Troy Burzawa
made judicial admissions in their discovery depositions that United
was in charge of the project. Regarding BMW, Terry similarly argued
again that her good-faith settlement with BMW prevented the jury
from apportioning fault to BMW. She further argued that United’s
expert Ralph Barnett stated in his deposition that an alternative means
of lifting the trusses–an external crane that BMW may have been
responsible, as general contractor, to provide–was not necessarily less
dangerous than the internal crane that was actually used.
In response to Terry’s motion about Midwest’s conduct, United
argued, in part, “the issue of whether [Midwest’s] conduct is the sole
proximate cause of plaintiff’s [decedent’s] death is still at issue and
paramount in this case.” The record does not contain a response to
Terry’s motion in limine about BMW’s conduct, but in the hearing on
Terry’s motions, United indicated that its response would be the same
concerning both settling defendants: “In this case there is plenty of
evidence that the jury could decide that BMW’s or Midwest[’s]
conduct was the sole proximate cause of Mr. Ready’s death, and by
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eliminating our ability to bring in the conduct of Midwest *** or
BMW you would preclude the defense from making that case and
establishing that theory.”
The trial court decided that section 2–1117 of the Code of Civil
Procedure (735 ILCS 5/2–1117 (West 2002)) does not permit
apportionment of fault to settling defendants, making evidence of their
conduct irrelevant, but the court also disagreed with United on the
sole proximate cause issue, stating:
“I think it’s clear that in [United job supervisor] Jim Talley’s
deposition, he does make admissions that United/Goedecke was
in charge of the work.
Now, he also says that Michael Ready or Midwest *** was as
much in charge as United was.
And while that may affect one of the other motions in limine,
it does not change the fact that Mr. Talley has admitted that
United was in charge of the work. And so the argument of the
sole proximate cause simply wouldn’t be borne out by the
evidence.”
United filed a motion to reconsider this ruling, arguing almost
exclusively that the trial court erred in barring evidence of the settling
defendants’ conduct under section 2–1117. The final paragraph of the
motion stated that the trial court’s ruling was incorrect “for a reason
unrelated to section 2–1117,” namely, “the evidence [of negligence by
BMW and Midwest] is relevant to the issue of whether those entities
were the sole proximate cause of plaintiff’s injuries.” At the hearing
on this motion, United stated, “[Y]our honor, we feel that you should
respectfully reconsider your ruling with regard to not allowing the
defendant to introduce and argue to the jury that other parties, such
as BMW and [Midwest] are the sole proximate cause of plaintiff’s
[decedent’s] death in this case.” The trial court returned to Talley’s
deposition testimony and denied United’s motion to reconsider.
At the end of Terry’s case and at the close of the evidence, United
moved for a directed verdict, asserting that the negligence of BMW
and Midwest was the sole proximate cause of the accident. The trial
court denied those motions. United then tendered a sole proximate
cause jury instruction–the so-called long form of Illinois Pattern
Instructions (Civil) No. 12.04. See Illinois Pattern Jury Instructions,
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Civil, No. 12.04 (2000) (hereinafter IPI Civil (2000) No. 12.04). The
trial court declined to use this instruction, stating: “As I had ruled
earlier, I think case law prohibits me from admitting evidence of
BMW and Midwest’s negligence in this case since they have settled
in good faith, and so far as I know there *** shouldn’t be any
evidence in the record of Midwest and BMW’s negligence.”
The jury returned a verdict in Terry’s favor, and the trial court
entered judgment on that verdict. In its posttrial motion, United
argued that the trial court erred in excluding evidence regarding the
conduct of BMW and Midwest as the sole proximate cause of the
accident. United also argued that the trial court erred in refusing its
sole proximate cause jury instruction. The trial court denied United’s
posttrial motion. United appealed.
The appellate court affirmed in part and reversed in part. Ready v.
United/Goedecke Services, Inc., 367 Ill. App. 3d 272 (2006). The
appellate court held that under section 2–1117 a nonsettling
defendant’s fault should be assessed relative to the fault of all
defendants, including those who have settled in good faith. Ready,
367 Ill. App. 3d at 278. Consequently, the appellate court further held
that Midwest and BMW should have been included on the verdict
form for purposes of fault apportionment. Ready, 367 Ill. App. 3d at
278. Because it reversed and remanded on the statutory issue, the
appellate court did not reach the sole proximate cause issue. Ready,
367 Ill. App. 3d at 280.
A plurality of this court reversed the appellate court, holding that
section 2–1117 did not permit apportionment of fault to settling
defendants. Ready v. United/Goedecke Services, Inc., 232 Ill. 2d 369(2008) (plurality op.). The plurality opinion was modified on denial of
rehearing, and closed with this paragraph:
“In its petition for rehearing, United argues that this court,
in light of its resolution of the section 2–1117 question, should
address United’s concern that it was deprived of a sole
proximate cause defense when the trial court refused its
request for an instruction on sole proximate cause. We note
that the issue was raised in the appellate court, but that court
concluded that, because it was remanding for a new trial, it
‘need not now address United’s contention.’ [Ready,] 367 Ill.
App. 3d at 279. Because our opinion today reverses the
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appellate court’s judgment ordering a new trial, we remand
the cause to the appellate court for a decision on United’s
claim that the jury should have been instructed on sole
proximate cause.” Ready, 232 Ill. 2d at 385.
On remand, the appellate court, in a footnote, initially noted,
“[T]he supreme court’s opinion framed the issue that we
should address on remand as ‘United’s concern that it was
deprived of a sole proximate cause defense when the trial
court refused its request for an instruction on sole proximate
cause.’ Ready, 232 Ill. 2d at 385. After reviewing the briefs
submitted to this court in the original appeal, it is abundantly
clear that United’s sole proximate cause defense argument had
two components: the circuit court’s exclusion of evidence
regarding the conduct of the settling defendants, and the
circuit court’s refusal to instruct the jury on sole proximate
cause. Therefore, we address both of United’s arguments
regarding its sole proximate cause defense.” 393 Ill. App. 3d
56, 57 n.2.
The appellate court then discussed Nolan v. Weil-McLain, 233 Ill.
2d 416 (2009), and Leonardi v. Loyola University of Chicago, 168 Ill.
2d 83 (1995), and decided that the trial court abused its discretion in
excluding evidence of the settling defendants’ conduct. 393 Ill. App.
3d at 58-59. The appellate court remanded for a new trial, adding,
“we need not address United’s contention that the circuit court erred
when it refused United’s jury instruction on sole proximate cause.”
393 Ill. App. 3d at 60. This court allowed Terry’s petition for leave to
appeal. 210 Ill. 2d R. 315(a).
ANALYSIS
The first issue before us is simple: Did the appellate court follow
the mandate of this court? We directed the appellate court to decide
whether the jury should have been instructed on sole proximate cause,
but we also referred to “United’s concern that it was deprived of a
sole proximate cause defense.” That defense included both the jury
instruction issue and a related evidentiary issue, namely, whether there
was evidence to support a sole proximate cause jury instruction.
Resolution of both those issues, then, required the appellate court to
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determine whether the trial court erred by excluding such evidence in
its ruling on Terry’s motions in limine. This is exactly what the
appellate court did. We turn to the second issue before us: Was the
appellate court’s decision on the sole proximate cause issue correct?
Like the appellate court, we begin with Leonardi. In Leonardi, the
plaintiff’s decedent suffered irreversible brain damage shortly after
giving birth and died several years later. The plaintiff filed a lawsuit
against the hospital where the decedent received treatment and against
several doctors who treated her. The plaintiff settled with one of them,
Dr. Tierney, prior to trial. The plaintiff then filed a motion in limine
seeking to bar evidence regarding the alleged negligence of any person
other than the remaining defendants. The trial court denied the
motion, and at trial allowed the defendants to question several
witnesses regarding Dr. Tierney’s conduct. The jury found in favor of
the defendants, and the trial court entered judgment on that verdict.
The plaintiff appealed, and the appellate court affirmed.
Before this court, the plaintiff argued that the trial court’s denial
of his motion in limine was erroneous, and as a result of that ruling,
its decision to instruct the jury on sole proximate cause was also
erroneous. We held that the trial court did not err in denying the
motion in limine (Leonardi, 168 Ill. 2d at 95) and further did not err
instructing the jury on sole proximate cause (Leonardi, 168 Ill. 2d at
101). We stated that “ ‘an answer which denies that an injury was the
result of or caused by the defendant’s conduct is sufficient to permit
the defendant in support of his position to present evidence that the
injury was the result of another cause.’ ” Leonardi, 168 Ill. 2d at 94,
quoting Simpson v. Johnson, 45 Ill. App. 3d 789, 795 (1977). We
later explained, “A defendant has the right not only to rebut evidence
tending to show that defendant’s acts are negligent and the proximate
cause of claimed injuries, but also has the right to endeavor to
establish by competent evidence that the conduct of a third person, or
some other causative factor, is the sole proximate cause of plaintiff’s
injuries.” Leonardi, 168 Ill. 2d at 101. Accord McDonnell v.
McPartlin, 192 Ill. 2d 505, 520-21 (2000).
Last year, we reiterated that a defendant has a right to introduce
evidence that some other person or entity was the sole proximate
cause of the plaintiff’s injury. Nolan v. Weil-McLain, 233 Ill. 2d 416(2009). In Nolan, the plaintiff filed a negligence complaint against
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various companies, alleging that her decedent developed asbestos-
related cancer after being negligently exposed to certain products over
his career. All the defendants except one settled with the plaintiff
before trial. The nonsettling defendant filed a motion in limine,
seeking to present evidence at trial that the sole proximate cause of
the decedent’s death was his exposure to products made by nonparty
entities. The plaintiff filed her own motion in limine, seeking to bar
such evidence. The trial court allowed the plaintiff’s motion, and
ultimately entered judgment on the jury’s verdict in favor of the
plaintiff. The defendant appealed, and the appellate court affirmed.
We reversed and remanded for a new trial. We held that “our well-
settled rules of tort law” provide that “the plaintiff exclusively bears
the burden of proof to establish the element of causation through
competent evidence, and that a defendant has the right to rebut such
evidence and to also establish that the conduct of another causative
factor is the sole proximate cause of the injury.” Nolan, 233 Ill. 2d at
444. Thus, the trial court erred in preventing the nonsettling defendant
from presenting evidence in support of its sole proximate cause
defense. Nolan, 233 Ill. 2d at 445.
Like the trial court in Nolan, the trial court here erred in excluding
evidence that would have supported the defendant’s sole proximate
cause defense. United was entitled to present evidence to support a
sole proximate cause jury instruction, and the question becomes
whether that evidence would have entitled United to such an
instruction. “Instructions convey the legal rules applicable to the
evidence presented at trial and thus guide the jury’s deliberations
toward a proper verdict.” People v. Mohr, 228 Ill. 2d 53, 65 (2008),
citing People v. Hudson, 222 Ill. 2d 392, 399 (2006). There must be
some evidence in the record to justify an instruction, and the second
paragraph of IPI Civil (2000) No. 12.04 should be given where there
is evidence, albeit slight and unpersuasive, tending to show that the
sole proximate cause of the accident was the conduct of a party other
than the defendant. Leonardi, 168 Ill. 2d at 101.
Regarding BMW, United indicates that the evidence excluded by
the trial court would have shown that BMW should have provided an
external crane to lift the scaffolding and that such a crane would have
eliminated the need for Michael to work on the project and, thus,
would have prevented the accident. Regarding Midwest, United
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indicates that the evidence excluded by the trial court would have
shown that Midwest forced United to accept additional workers on
the project, including the tugger operator and Michael, who had little
or no rigging experience; decided how the signaling would be done
and who would do it; and failed to abide by its own safety manual.
This evidence would have tended to show that the settling defendants’
conduct was the sole proximate cause of the accident, and Michael’s
death, and the trial court erred in excluding it and refusing to give the
second paragraph of IPI Civil (2000) No. 12.04.
Having decided that the trial court committed an error, we must
decide whether that error was of sufficient magnitude to require a new
trial, that is, whether the error was “harmless.” See Nolan, 233 Ill. 2d
at 445. We conclude that it was, and that even a properly instructed
jury would not have reached a different verdict because there was
significant evidence that United was a proximate cause of the
accident.
The subcontract stated, “Crane and Operator to be furnished by
[BMW] as United/Goedecke requires,” but the record does not show
that United ever requested one. In fact, during the in limine
conference United conceded that there was “no evidence either way.”
In a discovery deposition, Jeffrey Talley (Jeffrey), United’s
construction manager for the project, testified that BMW told him in
a bid meeting and during a walk around the job site that it would
provide an external crane. At trial, Terry called Jeffrey as her first
witness. When asked on cross-examination by United’s attorney
whether there were discussions between United and BMW as to how
the scaffolding would be lifted, Jeffrey answered, “We were supposed
to use a crane.” Pursuant to its ruling on Terry’s motion in limine, the
trial court sustained an objection and struck this testimony, but
allowed it to stand as an offer of proof.
Terry also called Jeffrey’s brother James Talley, United’s job
supervisor on the project, as a witness. On direct examination, James
testified that he walked around the factory with Jeffrey. James recalled
walking by an internal crane or tugger, and he stated he and Jeffrey
mentioned the “possibility we could use that [tugger] being the
[external] crane wasn’t on site yet.” James stated that Jeffrey ordered
him to check into that possibility because it was the only logical way
of lifting the trusses. James added that the “original plan” was to use
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a crane, but the crane was not available, so they “looked at alternative
options” for raising the trusses.
At trial, Anthony Panega, a Midwest employee, testified that
Midwest had a rule prohibiting its employees from standing under
material or machinery being lifted by a crane unless their work
required it. United attempted to introduce Midwest’s safety manual
containing this rule into evidence. The trial court barred it, and United
made the manual part of an offer of proof.
James agreed that it was his responsibility as United’s safety
representative to ensure that United’s employees and any other
persons assisting them complied with United’s safety manual. James
further agreed that it was his responsibility, with respect to the
scaffolding work, to supply a safe working environment for United’s
employees and any other persons assisting them. James testified that
a Midwest employee operated the tugger, and Michael did the
signaling from the tugger bay, but only after a “safety meeting” with
James. According to James, Michael learned of United’s plan to lift
the trusses, and they reached an understanding about how the work
would be done. But the import of James’ trial testimony was that
United indeed remained in charge of the scaffolding work, even if
United collaborated with Midwest employees on some aspects of how
to accomplish it. James even stated that he could have ordered the
work done in a different, safer manner.
The work was done pursuant to a plan that James devised with
Jeffrey. According to James, Jeffrey chose not only the materials for
this job, but also the manner in which they would be rigged and
elevated. James stated that on the day before the scaffolding work
began, he and his brother walked through the factory. They discussed
where the scaffolding would be built and different ways to build it.
James stated that United did not control who operated the tugger, but
agreed that United controlled everything else, including “signaling and
things of that nature.” In fact, it was James who decided where the
trusses would be tied to the tugger in order to lift them.
On cross-examination, Jeffrey testified that United was not solely
responsible for lifting the scaffolding because it had to use Midwest’s
tugger and three Midwest employees, who were “in control of the
lift.” Jeffrey, however, agreed that James was responsible for rigging
the job and, further, that United was “in charge of” elevating the
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scaffolding in a safe manner.
The appellate court was incorrect in stating that if the jury had
heard the whole story, it may have reached a different verdict. No
reasonable jury would have concluded that United was not a
proximate cause of the accident, and if United was a proximate cause,
the settling defendants could not have been the sole proximate cause.
United may have expected to use an external crane, but the
subcontract required it to request one, and the record does not show
that it ever did. Additionally, United may have used a Midwest tugger
operator and two other Midwest employees, including Michael, for
this project, but the record shows that United retained significant
control over the work and the safety of the people doing it. We
conclude that the trial court’s error in refusing to instruct the jury on
sole proximate cause was harmless.
CONCLUSION
For the reasons that we have stated, the judgment of the appellate
court is reversed, and the trial court’s judgment on the jury’s verdict
is affirmed.
Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE THOMAS took no part in the consideration or decision
of this case.
JUSTICE KILBRIDE, specially concurring:
I specially concur only because the majority opinion contains a
harmless-error discussion of Nolan v. Weil-McLain, 233 Ill. 2d 416(2009), that is inconsistent with my prior position in that small portion
of Nolan. I acknowledge, however, that the harmless-error ruling in
Nolan represents this court’s holding. Moreover, I completely agree
with the majority’s conclusion in the present appeal that the trial
court’s error was harmless and does not require a remand for a new
trial. Thus, I specially concur only to explain my current acceptance
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of the majority analysis of Nolan in light of my prior separate writing.
JUSTICE GARMAN, specially concurring:
I agree with the plurality that United presented insufficient
evidence to warrant a jury instruction that the settling defendants were
the sole proximate cause of the accident that resulted in Michael
Ready’s death. I write separately, however, to express my continued
disagreement with the holding of this court’s decision in Ready v.
United/Goedecke Services, Inc., 232 Ill. 2d 369 (2008) (Ready I) that
section 2–1117 of the Code of Civil Procedure (Ill. Rev. Stat. 1987,
ch. 110, par. 2–1117) prohibits the jury from apportioning fault to
settling defendants. Contrary to the plurality’s holding in that case,
section 2–1117 unambiguously includes those defendants by providing
that “[a]ny defendant whose fault, as determined by the trier of fact,
is 25% or greater of the total fault attributable to the plaintiff, the
defendants sued by the plaintiff, and any third party defendants who
could have been sued by the plaintiff, shall be jointly and severally
liable for all other damages.” (Emphasis added.) Ill. Rev. Stat. 1987,
ch. 110, par. 2–1117. As I stated in my dissent in Ready I, the plain
language of section 2–1117 requires that fault must be allocated
among all defendants, settling and nonsettling alike. This reading of
the statute comports with and furthers the legislature’s “goal of
protecting minimally responsible tortfeasors from excessive liability.”
Ready, 232 Ill. 2d at 405 (Garman, J., dissenting, joined by Karmeier,
J.).
The Ready I plurality’s interpretation of the statute rewards
settling defendants, no matter the degree of their culpability, and
punishes nonsettling defendants. In cases where a defendant may have
deep pockets, a plaintiff is encouraged not to settle, knowing that a
jury, lacking knowledge of any fault of the settling defendants, may
hold the nonsettling defendant solely liable for the injury, absent any
comparative negligence on the plaintiff’s part. Thus, a nonsettling
defendant who may have a lesser degree of fault than the settling
defendants ends up paying most of the damages. This is not only
unfair to the nonsettling defendant, it may also hurt the plaintiff. If the
evidence at trial shows that the only defendant in the case has limited
responsibility for the plaintiff’s injury, the jury, faced with the
necessity of assigning 100% of the fault to someone, may be tempted
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to assign greater fault to the plaintiff. In contrast, if a jury is able to
consider the fault of settling defendants, a greater share of the fault
may be assigned to those defendants and the degree of the plaintiff’s
fault reduced.
In the instant case, the jury found United to be 65% liable for the
accident and Michael Ready’s fault was assessed at 35%. If the jury
had been allowed to consider the fault of Midwest and BMW, the
degree of Michael’s fault may have been reduced because the jury
would have had the full picture of the respective liability of all
defendants sued by plaintiff. This is not mere speculation. Plaintiff
herself apparently believed that BMW had a significant degree of
liability for the accident. In her response to BMW’s motion for
summary judgment, plaintiff argued that BMW had the responsibility
under its contract with United to provide an external crane to lift the
trusses. It was undisputed that no crane was provided. Plaintiff
argued that had BMW provided the external crane, the accident would
not have happened. Whatever the actual degree of fault of BMW and
Midwest, the jury should have been able to hear evidence on that
issue. That was the only way to properly allocate the damages for the
accident. But, because of the plurality’s interpretation of section
2–1117, the jury only heard part of the story of what happened on the
day of Michael’s death.
As I stated in my dissent in Ready I, the plurality’s reading of
section 2–1117 upsets the balance struck by the legislature between
the goals of full compensation for injured plaintiffs and imposition of
liability on defendants commensurate with their fault. That erroneous
reading of the statute has had and will continue to have unfortunate
consequences for both plaintiffs and defendants.
JUSTICE KARMEIER joins in this special concurrence.
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