The End To The Saga Of Ready v. United/Goedecke Services
January, 2011
by Melinda S. Kollross and Edward M. Kay
On October 21, 2010, the Illinois Supreme Court issued its second opinion in Ready v. United/Goedecke Services, Inc. The Supreme Court was called upon to decide whether a non-settling defendant can point the finger at "empty chair" settling defendants and argue that they were the sole proximate cause of an accident. Defendant United never had a fair trial in which it was allowed to present all the evidence regarding an industrial accident that resulted in the death of plaintiff's decedent. Plaintiff instead was allowed to present a "fiction" to the jury, keeping hidden from the jury crucial evidence about the fault of settling defendants. On October 21, the Supreme Court answered that question, abruptly terminating, however, United's right to have the full story of this accident told to a jury.
The Saga Begins
Clausen Miller has been lead appellate counsel in this case ever since it was tried in the Circuit Court of Cook County, Illinois in 2004. The case involved an accident in which plaintiff's decedent, Michael Ready, was killed at his employer's factory on December 23, 1999. Ready was a mechanic employed by Midwest Generation and was working on a pipe-refitting project at the factory. The general contractor, BMW, was hired by Midwest and it, in turn, hired defendant United as the scaffolding contractor. Ready was killed when one of the beams that was to be used for scaffolding fell and struck him. It was undisputed that had the general contractor, BMW, provided an external crane, Ready would not have been involved in the accident and would not have died. It was also undisputed that had various rules promulgated by Midwest been followed, Ready would not have been killed in the accident. BMW and Midwest settled out with plaintiff prior to the case proceeding to a jury trial.
The Trial Court -- If You Cannot Allocate Fault You Cannot Introduce Evidence of Sole Proximate Cause
During the initial trial in 2004, the trial court ruled that United could not allocate fault to the settling defendants. The trial court further ruled that since United could not allocate fault to the settling defendants, any evidence regarding the settling defendants was irrelevant. Accordingly, the trial court also ruled that United could not point the finger at these empty chairs and argue that they and not it were the sole proximate cause of the accident.
Appellate Court -- Ready I
The Illinois Appellate Court, First District, in Ready I ruled in favor of United holding that it was entitled to allocate fault to the settling defendants and remanded the case back for a new trial. As far as the sole proximate cause issue, the Court wrote that if United introduced evidence justifying the sole proximate cause instruction, then the trial court was required to give it.
Illinois Supreme Court -- Ready I
The Supreme Court reversed the Appellate Court in what has been described as one of the most politically charged decisions issued by the Court in the last 10 years. In a 4 - 2 vote (4 Democrats versus 2 Republicans) and Justice Thomas recusing himself, the Supreme Court decided that a non-settling defendant could not obtain an allocation of fault against settling defendants. We have examined this decision in prior Sidebars of the CM Report and we will not repeat that analysis here. Suffice it to say that the Supreme Court never addressed United's further argument that even if it could not allocate fault to settling defendants, it should still be able to obtain a long form IPI jury instruction to find that the conduct of others was the sole proximate cause of the injury.
United's Petition for Rehearing
United petitioned the Illinois Supreme Court for rehearing, contending that it was still entitled to a new trial because it was wrongfully deprived of its sole proximate cause defense and was wrongfully deprived of the opportunity to present the whole case -- instead of plaintiff's fiction -- to the jury. The Supreme Court issued a modified opinion in March 2009, remanding the case back to the Appellate Court to determine whether United was wrongfully deprived of its sole proximate cause defense.
The Appellate Court on Remand -- Ready II
On June 30, 2009, a unanimous Appellate Court again ruled that United was entitled to a new trial. The Court found that United was wrongfully deprived of its sole proximate cause defense. The Court found that the error was not harmless -- United had the right to present the jury with the whole truth regarding the accident -- instead of the fiction created by plaintiff. The Court ruled that if the jury learned of the whole truth regarding the accident, it could very well rule in favor of United:
[W]e find that the error was not harmless. United notes in its brief that if it had been able to present evidence of Midwest and BMW's conduct, then the jury could have ultimately found in favor of United. With respect to Midwest's conduct, United notes that the evidence would have shown that Midwest was in charge of operating the tugger and deciding how the signaling would be done. The jury could have also heard that Midwest's workers failed to barricade off the tugger bay where Ready was struck by the beam. With respect to BMW's conduct, United notes that the evidence would have shown that BMW should have provided a crane to lift the beams outside the factory as required by the contract and discussed in the pre-bid meeting. We agree that had the jury heard the ‘whole story,' its verdict may have been different.
Illinois Supreme Court -- Ready II
On October 21, 2010, the Illinois Supreme Court issued its second decision in this matter. The Supreme Court announced that a non-settling defendant always has the right to point the finger at the "empty chair" settling defendant and show that the settling defendant and not it was the sole proximate cause of the injury. The Supreme Court stated:
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.
The Supreme Court ruled that United was entitled to present evidence regarding the conduct of BMW and Midwest to a jury; United was entitled to the long form (sole proximate cause) IPI jury instruction that would have enabled the jury to determine that BMW and Midwest were the sole proximate cause of the accident; and certainly, United had presented some evidence that would have justified that jury instruction. But United would not obtain its chance to finally tell the jury the whole story about this accident.
Undertaking a "harmless error" analysis, which in the opinion of these authors represented nothing more than the Court utilizing a "directed verdict" standard giving plaintiff the benefit of every doubt, the Court ruled that no reasonable jury would have concluded that United was not a proximate cause of the accident. If, as the Court had ruled, United was entitled to the long form sole proximate cause instruction, then it could not have been "harmless error" for United not to have received the instruction. The Supreme Court's reasoning is inconsistent. No matter -- it is clear that the Supreme Court just wanted the case over and this was the quickest line to that point -- even if it meant that United was deprived of the right to have a jury hear the whole story.
Learning Points
The Chicago Daily Law Bulletin recently described Ready II as one of the most significant decisions issued by the Supreme Court in 2010 because it confirmed the right of a non-settling defendant to point the finger at the "empty chair." Given the jurisprudence on this subject in Illinois, which dates back to 1977, non-settling defendants should remain confident that the efforts of the plaintiffs' personal injury bar to abolish the "empty chair" defense will fail -- at least in those arguments made to the Appellate and Supreme Courts of Illinois. Ready II also establishes that a non-settling defendant's burden to obtain the long form "sole proximate cause" instruction is not high. The Supreme Court in Ready II stated that the long form instruction "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."
Finally, Ready II shows that more than one person or entity may be the sole proximate cause of an accident. Ready II teaches that the "sole proximate cause" defense is really misnamed because in Ready II two entities -- BMW and Midwest -- could together have been the sole proximate cause of the accident. In this light, the defense might be more aptly characterized as the "other cause" defense. The point for the defense bar is to "point the finger" at as many other causes as can be identified as the sole proximate cause of an accident.
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