Protect Your Appellate Records: Ask For Jury Instructions Explaining The Operation And Effect Of Joint And Several Liability
December, 2007
by Melinda S. Kollross and Edward M. Kay
The Illinois legislature modified the common law rule of joint and several liability through 735 ILCS §2-1117. A minimally responsible tortfeasor (i.e., less than 25%), has several liability only. Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 78, 783 N.E.2d 1024 (2002). With exception for medical expenses, a plaintiff may only collect from that tortfeasor an amount equaling its percentage of fault. Id. But if a tortfeasor’s share of fault is 25% or more, its liability is joint and several. A plaintiff may collect the entire judgment from that tortfeasor, even amounts greatly exceeding its share.
When a plaintiff’s comparative fault is at issue, Illinois courts routinely instruct juries on the legal effect of an allocation of fault to plaintiff. E.g., IPI B11.06 (child’s claim/parent’s claim); B21.02, B21.02.01, B21.02.02, B21.03, B21.04, B21.05, B21.07 (burden of proof); B22.01 (res ipsa loquitur); B22.02 (burden of proof); B45.02 (verdict form). Juries learn that a plaintiff may not recover if his/her fault exceeds 50%. Armed with this knowledge, juries fashion verdicts consistent with their intent. Defendants are entitled to the same treatment. Juries should be advised of the legal effect of an allocation of fault to defendants.
This is an issue of first impression in Illinois. However, supreme courts in other states have ruled that it is proper to explain to a jury the legal effect of an allocation of defendants’ fault. Kaeo v. Davis, 719 P.2d 387, 394-96 (Hawaii 1986); Coryell v. Town on Pinedale, 745 P.2d 883, 884-86 (Wyo. 1987); Luna v. Shockey Sheet Metal & Welding Co., 743 P.2d 61, 63-65 (Idaho 1987); DeCelles v. State Through Department of Highways, 795 P.2d 419, 420-22 (Mont. 1990). Commentators have also recognized that the better-reasoned view and the weight of authority allow for juries to be instructed about the legal effects of their verdicts. C. Wright and A. Miller, Federal Practice and Procedure: Civil 2d §2509 (1995); Steven B. Hantler, et al., Moving Toward The Fully Informed Jury, Geo. J. L. & Pub. Pol’y, Vol. 3:21, 40-47 (2005); DeCelles, 795 P.2d at 420-21 (citing authorities). The authorities correctly reason that fully instructing juries minimizes erroneous speculation about the law and allows juries to fashion relief consistent with their desires:
Joint and several liability may produce results a jury never intended when making their decision. Often plaintiffs will join a state, city, county, school, hospital, large corporation, or other “deep pocket” defendant in a negligence action solely to impose joint and several liability. In these situations, “[a]n argument by the plaintiff that this defendant contributed a few percentage points to an injury is often plausible.” If the jury is not informed of the effects of joint and several liability, it may believe “this defendant will only be liable for a small contribution to the total damage award and the main defendant will be liable for the remainder.” What the unsuspecting jury does not realize is that “[i]n reality, this deep pocket defendant may be liable for the entire award, with little hope of contribution from the party that is mainly at fault.” (Hantler, Moving Toward The Fully Informed Jury, Vol. 3.21, 43)
Protect Your Record
We recommend tendering jury instructions to trial courts that would explain to juries the operation and effect of allocation findings on a defendant’s joint and several liability. In order to preserve your rights to argue this issue on appeal, you must tender a written instruction on the issue and obtain a ruling by the trial court on the instruction.
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