The Journal of The DuPage County Bar Association

Back Issues > Vol. 10 (1997-98)

Damages: Apportionment Among Joint Tortfeasors
By Alan J. Brinkmeier

Tort law in the past few decades, has undergone significant changes. Several states, including Illinois, have moved away from doctrines such as contributory negligence and joint and several liability toward a fault-based concept of tort liability. In recent years, the changes have come dramatically, particularly involving those cases that have multiple tortfeasors. This article will examine some of those changes in Illinois and other states, and provide a historical analysis of their effect on litigants.

 I. "No-Apportionment" Doctrines

A. Contributory Negligence

The concept of contributory negligence, once the method of determining whether a plaintiff could proceed with a court case, was based on the theory that the plaintiff had to be fault-free to recover any damages. Most often, the reasoning behind this rule was stated to be that a plaintiff had to have "clean hands" to justify any damages recovery from another. The concept appears to have first started in England. The case of Butterfield v. Forrester, 103 Eng. Rep. 926 (K.B. 1809) is usually mentioned as the origination of the doctrine. The original common law rule was that any contributory negligence on the part of the plaintiff would completely bar recovery in a negligence case. See, William L. Prosser, Handbook Of The Law of Torts, section 65, at 416 (4th Ed. 1971), [hereinafter "Prosser"]. In this country, Massachusetts was the first jurisdiction to recognize contributory negligence as a complete bar to recovery, as stated in the case of Smith v. Smith, 19 Mass. (2 Pick.) 621 (1824). Over the next century, the majority of our courts adopted the doctrine.

B. Joint and Several Liability

The doctrine of joint and several liability allowed a plaintiff to sue any jointly liable tortfeasor and recover full damages from that party. See. Prosser, section 52, at 313. This doctrine, like the concept of contributory negligence, was based on the belief that injury to a party was indivisible and therefore the fault could not be apportioned. Id. at 315.

II. Comparative Fault and Contribution Among Joint Tortfeasors

A. Comparative Fault

In the last 40 years, many courts began to realize the harsh results these two doctrines visited upon litigants. By the early 1970s, only a few states recognized the concept of comparative negligence, with the majority still using contributory negligence principles. See, Prosser, section 67, at 433. Between then and the early-1980s, the majority of states adopted some form of comparative fault, including Illinois. See, Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886 (1981). By the early-1990s, 46 states had adopted some form of comparative negligence and had rejected contributory negligence. See, McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). After that decision and by the end of 1995, only four states, North Carolina, Alabama, Maryland and Virginia, retained contributory negligence. See, Golden v. McCurry, 392 So. 2d 815 (Ala. 1980) and Williams v. Delta Int’t. Mach. Corp., 619 So.2d 1330 (Ala. 1993)- (comparative negligence not adopted); Harrison v. Montgomery County Board of Ed., 456 A.2d 894 (Md. 1983); Smith v. Fiber Controls Corp., 268 S.E.2d 504 (N.C. 1980); Virginia Elec. & Power Co. v. Winesett, 303 S.E.2d 868 (Va. 1983).

B. Contribution Among Joint Tortfeasors

Along with the adoption of comparative negligence, the courts and legislatures began to develop the doctrine of contribution among joint tortfeasors. The common law rule of no contribution was based upon the theory that fault could not be apportioned because injuries were indivisible. See, Prosser, section 50, at 305. The no contribution rule originated in 1799 in the case of Merryweather v. Nixan, 101 Eng. Rep. 1337 (1799). Over the years, the no contribution rule was criticized because it encouraged plaintiffs to sue "deep pocket" defendants who might be only slightly at fault. By the early 1970s, almost half the states had adopted some form of contribution among joint tortfeasors. See, Prosser, Id. Now, virtually every state that has adopted a comparative negligence approach also had or subsequently has provided for contribution, because once apportionment of damages was permitted between plaintiffs and defendants, there was no longer a logical reason for denying the right of apportionment between joint tortfeasors through the method of contribution, [See, Alvis, Id.; Prosser, Id.] or a continued reliance on the doctrine of joint and several liability. See, McIntyre, Id. ("Having thus adopted a rule more closely linking liability and fault, it would be inconsistent to simultaneously retain a rule, joint and several liability, which may fortuitously impose a degree of liability that is out of all proportion to fault.")

III. Tort Reform: Move Toward Apportionment of Damages

While contribution solved some of the inequities that came from joint and several liability, contribution provided no real solution for the "deep pocket" defendant when an "empty pocket" co-defendant or non-party was the major cause of the plaintiff’s injury. In such a case, the "deep pocket" would be liable for all the plaintiff’s damages, pursuant to the doctrine of joint and several liability. The case this author found that most dramatically shows the shortcomings of contribution is the Walt Disney World v. Wood, 515 So. 2d 198 (Fla. 1987) case. In that case, the plaintiff was injured at the grand prix racecar attraction in the Magic Kingdom when she was rear-ended by her fiancé. The jury determined that the fiancé co-defendant was 85 % at fault, the plaintiff was herself 14 % at fault and Walt Disney World was only1 % at fault. Applying the doctrine of joint and several liability, the court entered judgment against Walt Disney World for 86 % of the plaintiff’s damages, who under the then applicable Florida law, had no recourse against the plaintiff’s fiancé. In a recent trial conducted with the author as defense attorney, the party responsible for only 33.3% of the fault has an adverse judgment against it to pay 100% of the plaintiffs’ damages, and retire the co-defendant’s 66.6% responsibility, which amounted to over $815,000.00 in damages. The case, which was appealed, was decided on other grounds. Spiel v. Celmer, Docket No. 96-318, (Ill. 1st Dist.- 4th Div.).

In the past ten years, numerous states have restricted or eliminated the concept of joint and several liability. See, McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). In fact, about two-thirds of the states had adopted some form of apportionment of damages approach. See, Wood, Id.; See also, Newville v. Department of Family Services, 833 P.2d 793 (Mont. 1994).

In Illinois for example, the legislature in the recent tort reform legislation, has moved toward abolishing joint and several liability. Under the previous rule, several liability applied to a tortfeasor that was less than 25 % at fault. 735 ILCS 5/2-1117 (1993). [See generally, IPI B45.03.A, and the commentary following about Joint and Several Liability]. In a recent trial in January, using the literal language of the old statute and the discussion in Lannom v. Kosco, 158 Ill. 2d 535, 634 N.E.2d 1097 (1994), this author conducted a trial asking for and obtaining full apportionment of damages including apportionment of damages to tortfeasors not present and defending in court. The jury was instructed:

Apportionment Form

You should determine the degree of negligence of various parties by assigning percentages of actual responsibility to those listed below. If you find that any party listed below was not negligent in any way that proximately caused the injuries to [the decedent] and the damages to [the decedent and the surviving spouse], then you should enter a zero [0] as to that party. The total of the percentages you list below must equal 100 percent.

(A) [Decedent and Surviving Spouse]____%

(B) [Defendant, sued and defending in court at trial]____%

(C) [Defendant that settled six weeks before trial]____%

(D) [Party not sued by Plaintiffs]____%

(E) [Party not able to be sued by Plaintiffs]____%

(F) [Party not sued by Plaintiffs]____%

This jury form, which is called the Scott Form named after the trial judge that conducted the trial in Springfield, Illinois, the Honorable Jeanne E. Scott, outlines a method to instruct the jury about their duty under the previous version of 2-1117. Since the current statute is not retroactive and applies only to all causes of action filed on or after March 9, 1995, the Scott Form may prove valuable to those that need a method of instructing the jury about fault percentages for absent tortfeasors.

A. Joint and Several Liability Abolished

The current version of the Illinois apportionment statute is to abolish joint and several liability in favor of several liability, thereby limiting the defendant’s damages to the actual percentage of fault. The most recent version Section 2-1117, applicable to all causes of action filed on or after March 9, 1995, provides, in part:

In any action brought on account of death, bodily injury to person, or physical damage to property . . . a defendant is severally liable only and is liable only for that proportion of recoverable economic and non-economic damages, if any, that the amount of that defendant’s fault, if any, bears to the aggregate amount of fault of all other tortfeasors . . .

735 ILCS 5/2-1117 (1995).

This version essentially eliminates joint and several liability in favor of pure several liability in Illinois. It is arguably the only way to ensure that the public policy goals supporting Section 2-1117’s enactment will be met. It protects the minimally culpable "deep pocket" defendant and mandates that no defendant contribute more than its proportionate share of the verdict amount.

This approach has been taken in at least six other states. See, Ark. Code Ann. sec. 16-64-122 (Michie 1995); Ky. Rev. Stat. Ann. sec. 411.182 (Michie 1995); McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992); Utah Code Ann. sec. 78-27-40 (Michie 1996); Vt. Stat. Ann. Tit. 12, sec. 1036 (1995); Wyo. Stat. Ann. sec. 1-1-109 (1996). For an excellent discussion, See, Sullivan v. Scoular Grain Co., 853 P.2d 877 (Utah 1993).

B. Modified Joint and Several Liability

Some states have modified joint and several liability either in limiting its application to certain types of torts [e.g. Idaho Code sec. 6-803 (1990) - hazardous waste cases] or to retain its application only in cases when the plaintiff is totally free of fault [See, Calmes v. Goodyear Tire & Rubber Co., 575 N.E.2d 416 (Ohio 1991).

Some states have modified the application of joint and several liability depending on the percentage of the defendant’s fault. Iowa is a 50% state [See, Schwennen v. Abell, 430 S. W.2d 98 (Iowa 1988) and Montana is a 50% state [See, Newville, supra]. Illinois used to be, under the old version of the statute, a 25 % state [See, In Re Matter of Colorado Springs Air Crash, 867 F. Supp. 630 (N.D. Ill. 1994)].

C. Apportionment To Absent Tortfeasors

This topic is the one most written about currently when the issue of apportionment of damages arises. The trend is toward full and complete apportionment. If there is no specific state statute on the topic, most courts have routinely held that true apportionment cannot be achieved unless it includes all negligent parties, regardless of whether they are parties to the litigation. See, Fabre v. Marin, 623 So.2d 1182 (Fla. 1993); Scott Form, supra, and the discussion in the case of Lannom v. Kosco, 158 Ill.2d 535, 634 N.E.2d 1097 (1994) - ("the defendant’s rights under section 2-1117 are not abolished simply because a defendant or third party defendant settled or is dismissed from the action."); See, Sullivan v. Scoular Grain Co., 853 P.2d 877 (Utah 1993)- ("There is nothing inherently fair about a defendant who is [for example] 10% at fault paying 100% of the loss ...." citing, Brown v. Keill, 224 Kan. 195, 580 P.2d 867, 874 (Kan. 1978).

On September 24, 1997, the First District Appellate Court ordered that a new trial must be held in a contribution action because the trial court did not allow a non-party tortfeasor to be included in the jury verdict form. This case represented the first time an Illinois appeals court specifically has held that the conduct of a party who is not named in a contribution action must be included in the jury’s calculation of fault. See, Stanislaw Truszewski v. Outboard Motor Marine Corp. and Lester Engineering Co., Nos. 1-95-0059 and 1-95-1756 (Ill. App. September 24, 1997).

In that case, the plaintiff in the underlying personal injury lawsuit, had been injured while cleaning a machine manufactured by Lester Engineering Company which was owned and operated by Outboard Motor Marine Corporation. The plaintiff settled with the defendants for $387,500, of which $100,000, was Lester’s share. The settlement agreement included a promise by Lester and Outboard to dismiss their contribution claims against each other. In the contribution litigation between Outboard and Mutual Maintenance Company, the plaintiff’s employer, the trial judge refused to instruct the jury as requested by Mutual Maintenance Co., and ruled that Lester Engineering Co., not be included on the jury verdict form. The trial judge ordered instead that only the parties before the court could be included on the jury verdict form.

The First District Appellate Court reversed the ruling and remanded the case for a new trial. The court stated that IPI 600.16 required that Lester be included on the jury verdict form. "Because a party cannot be forced to pay more than his pro rata share of the common liability, and because the common liability here is the sum of Lester’s, Mutual’s and Outboard’s fault (a percentage that must equal 100%), Mutual’s pro rata share of the common liability cannot be fairly assessed without reference to Lester’s pro rata share. 740 ILCS 100/2(b)." This ruling is consistent with the goal that true apportionment must include the fault of all persons potentially responsible for tort damages, whether all parties are before the court or not.

 IV. Conclusion

There is a clear trend in tort reform efforts to move toward complete apportionment of damages, truly equating fault with liability. True apportionment — satisfying a damages verdict only for the actual percentage of fault — is the only real answer to the "deep pocket" defendant dilemma, and true apportionment brings a sense of logic and fairness to the litigation process that has historically been absent for defendants.

Alan J. Brinkmeier
is a Principal of Merlo, Kanofsky & Brinkmeier, Ltd., Chicago. His practice is concentrated in Civil Litigation Defense. He received his Undergraduate Degree in 1976 from Elmhurst College and his Law Degree in 1984 from DePaul University.

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