Woods v. Cole ( 1996 )

JUSTICE McCULLOUGH

delivered the opinion of the court:

In an interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), this court is asked to determine whether section 2 — 1117 of the Code of Civil Procedure (Code) (735 ILCS 5/2— 1117 (West 1992)) is applicable in negligence actions where several tortfeasors acted "in concert” to cause a single, indivisible harm. The question certified by the trial court is:

"Whether the provisions of 735 ILCS 5/2 — 1117 [(West 1992)] are applicable to a person found liable in negligence for the bodily injury or death of another where the liability of the person found liable is based on that person having been found to be 'acting in concert’ under Restatement (Second) of Torts, § 876[.]”

If applicable, those tortfeasors found less than 25% at fault for a plaintiffs injuries are only severally, and not jointly, liable for the plaintiffs nonmedical damages. Section 2 — 1117 of the Code, in relevant part, provides:

"Except as provided in Section 2 — 1118, in actions on account of bodily injury or death or physical damage to property, based on negligence, *** all defendants found liable are jointly and severally liable for plaintiffs past and future medical and medically related expenses. Any defendant whose fault, as determined by the trier of fact, 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, shall be severally liable for all other damages.” 735 ILCS 5/2 — 1117 (West 1992).

Plaintiff Yvonne Woods, as special administrator of the estate of her deceased son, Eric Woods, brought a wrongful death action against defendant Todd Cole. The complaint alleged that defendant negligently entrusted a firearm to Jason Hill, who was under the influence of alcohol, defendant induced Hill to discharge the firearm toward decedent, causing decedent’s death, and defendant acted in concert with Hill in pointing and discharging a firearm at decedent.

A fuller account of the shooting is contained in People v. Cole, 253 Ill. App. 3d 603, 625 N.E.2d 816 (1993), in which this court upheld defendant’s convictions for involuntary manslaughter and concealing a homicidal death. The evidence at the criminal trial established that defendant, Hill, Laurencio Carrera, and decedent planned to go shooting at a farm belonging to defendant’s grandfather. When decedent fell asleep during the drive to the farm, defendant hatched a plan to scare him. At the farm, the group woke decedent as planned by simultaneously firing their weapons into the ground. Defendant and Carrera then pointed their weapons at decedent, said "it’s time to die,” and pulled their triggers on an empty chamber, producing a click. Hill then pulled the trigger of his revolver and it discharged, killing decedent. See Cole, 253 Ill. App. 3d at 605-08, 625 N.E.2d at 818-20.

Prior to trial in this matter, defendant filed a claim for apportionment pursuant to section 2 — 1117 of the Code. Plaintiff objected to any apportionment of fault, contending that defendant, Hill, and Carrera were "persons acting in concert” as defined by section 876 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 876 (1979)) (hereinafter Restatement), thereby eliminating the exception to joint and several liability provided for in section 2 — 1117 of the Code. While agreeing with plaintiff, the trial court noted that there was no case law on point and a determination of the law would help the parties in negotiation and in presenting their case to the jury. The trial court then certified the foregoing question for appeal.

Section 876 of the Restatement applies to "Persons Acting in Concert” and provides:

"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.” Restatement (Second) of Torts § 876, at 315 (1979).

Section 876 of the Restatement has been applied in some Illinois cases, but no case discusses its relationship with section 2 — 1117 of the Code. See, e.g., Sanke v. Bechina, 216 Ill. App. 3d 962, 576 N.E.2d 1212 (1991) (plaintiff stated a cause of action against a passenger in a car under a concert-of-action theory, where the passenger encouraged the driver’s reckless operation of the vehicle). Under the provisions of section 876 of the Restatement, persons are acting in concert if (1) a tortious act is performed in concert or pursuant to a common design, (2) an act known to be tortious is encouraged or substantially assisted, or (3) substantial assistance is rendered to accomplish a tortious result if such assistance itself constitutes a breach of duty. In our view, each of these scenarios depicts a single and indivisible course of tortious conduct for which each is an equal participant and equally liable. The conduct of one actor cannot be compared to the conduct of another for purposes of apportioning liability because each agreed to cooperate in the tortious conduct or tortious result and each is liable for the entirety of the damages as if there were but one actor.

This conclusion is supported by several cases which have noted a distinction between concert of action and concurrent or successive action amongst joint tortfeasors. See Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 438, 593 N.E.2d 522, 526 (1992) (defendants who share neither common purpose or duty nor act in concert, but nevertheless act concurrently to produce an indivisible injury, are held to be joint tortfeasors); Pyskaty v. Oyama, 266 Ill. App. 3d 801, 812, 641 N.E.2d 552, 561 (1994).

Plaintiff here has alleged facts supporting a cause of action under section 876 of the Restatement, although it remains for the trial court to determine as a question of fact whether defendant was acting in concert, rather than merely acting concurrently with other tortfeasors so as to come within the exception provided by section 2 — 1117 of the Code.

Certified question answered; cause remanded.

KNECHT, J., concurs.