Woods v. Cole

NO. 4-96-0345

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

YVONNE WOODS, Special Administrator of ) Appeal from
the Estate of Eric Woods, Deceased, ) Circuit Court of
Plaintiff-Appellee, ) Morgan County
v. ) No. 93L27
TODD COLE, )
Defendant-Third Party Plaintiff-)
Appellant, )
and ) Honorable
LARRY CARRERA and JASON HILL, ) Tim P. Olson,
Third Party Defendants. ) Judge Presiding.
_________________________________________________________________

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 liabili-
ty 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 plaintiff's injuries are only severally, and not jointly, liable for the plaintiff's 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 lia-
ble are jointly and severally liable for
plaintiff's past and future medical and medi-
cally 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 dis-
charge 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 man-
slaughter 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. Plain-
tiff 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 Restate-
ment), 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 ap-
peal.
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 con-
stitutes a breach of duty and gives substan-
tial 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, con-
stitutes a breach of duty to the third per-
son." 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 consti-
tutes a breach of duty. In our view, each of these scenarios
depict 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.
COOK, J., dissents.
JUSTICE COOK, dissenting:
I respectfully dissent and would answer the certified
question in the affirmative.
The question in this case is not whether persons acting
in concert are subject to joint and several liability at common
law. They clearly are. Section 2-1117 of the Code abrogates the
common law rule in part. The question is whether there is any
reason to refuse to apply section 2-1117 to persons acting in
concert. Section 2-1117 does not itself make any exception for
persons acting in concert, and the majority's engrafting of such
an exception will effectively destroy the section in a large
number of cases.
Section 2-1117 of the Code does make an exception for
intentional torts. Section 2-1117 applies only to negligence and
strict liability actions. An example of a situation where
defendants are acting in concert but section 2-1117 might permit
joint and several liability is this: A and B agree to enter a
house and commit robbery; while doing so A takes a television set
and B strikes the homeowner with a club; A and B are each liable
for the entire damages, and A is liable for the bodily injuries
even though A's fault is less than 25% of the total fault. The
example is taken from illustration 1 of section 876 of the
Restatement. Restatement (Second) of Torts 876, illustration 1,
at 316 (1979). A is liable for the entire amount of damages, not
because A and B were acting in concert, but because an intention-
al tort was involved, and section 2-1117 does not apply to
intentional torts.
An example of a situation where defendants are acting
in concert but section 2-1117 would prevent joint and several
liability is this: A and B are hunting together; they both shoot
across a road at a deer, which is negligent conduct toward
persons on the road; A's bullet hits the deer, but B's bullet
strikes a traveler on the road; A and B would each be liable for
the entire damages at common law, but under section 2-1117 A
would be only "severally liable," if A's fault were less than 25%
of the total fault. 735 ILCS 5/2-1117 (West 1992). The example
is taken from illustration 6 of section 876 of the Restatement.
Restatement (Second) of Torts 876, illustration 6, at 318
(1979).
The distinction between negligence and intentional
conduct is that with intentional conduct there is "'a desire to
cause consequences or at least [a] substantially certain belief
that the consequences will result.'" Ziarko v. Soo Line R.R.
Co., 161 Ill. 2d 267, 272, 641 N.E.2d 402, 405 (1994), quoting 1
M. Polelle & B. Ottely, Illinois Tort Law 1.01, at 1-3 n.8 (2d
ed. 1993). Only negligence is alleged in the present case. It
is not alleged that any of the defendants intended to kill Eric
Woods. Therefore, if we follow section 2-1117 of the Code, and
defendant Cole is able to show that his fault is less than 25% of
the total fault, then defendant Cole is only severally liable.
The majority says that all the scenarios under section
876 of the Restatement "depict a single and indivisible course of
tortious conduct for which each is an equal participant and
equally liable." Slip op. at 5. I disagree. In the illustra-
tion of the hunters, for example, the conduct is divisible: one
hunter shot the deer and the other hunter shot the traveler. No
reason appears why the hunters must be viewed as equal partici-
pants and equally liable. In fact, the same is true of illustra-
tion 1, where one of the burglars took the television and the
other struck the homeowner. The conduct of the burlgars is
certainly divisible, if it were the policy of the law to do so.
Perhaps the majority is referring to single and indi-
visible harm, a phrase often used in connection with joint and
several liability. Most, if not all, instances of joint and
several liability involve a "single and indivisible harm to the
injured party." Restatement (Second) of Torts 875, at 314
(1979). Section 2-1117 of the Code is clearly intended to apply
to cases of joint and several liability, even where there is a
single and indivisible harm. How this is accomplished is made
clear by the March 9, 1995, revision of section 2-1117:
"[A] defendant is severally liable only and
is liable only for that proportion of recover-
able 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." Pub. Act 89-7, 15,
eff. March 9, 1995 (1995 Ill. Laws 284, 299);
735 ILCS 5/2-1117 (West Supp. 1995).
The majority says that because each agreed to cooperate
"in the tortious conduct or tortious result" (slip op. at 5) each
is liable for the entirety of the damages as if there was but one
actor. The majority may have in mind Bristow v. Griffitts
Construction Co., 140 Ill. App. 3d 191, 488 N.E.2d 332 (1986),
where we indicated that the liability of a master and servant is
deemed that of one tortfeasor. In the master-servant situation
the master does not commit any tortious act. The master is not a
wrongdoer but is held liable as a matter of public policy.
Although the servant is required to indemnify the master, there
is no way to compare the conduct of the servant with the conduct
of the master, because the master did not engage in any conduct,
did not commit any tortious act.
The liability of persons acting in concert under
section 876(a) of the Restatement is very much different from
vicarious liability. For there to be liability under the Re-
statement the defendant must commit "a tortious act in concert
with the other." Restatement (Second) of Torts 876(a), at
315(a) (1979). Because liability under the Restatement requires
tortious conduct on the part of both the actor and the person
acting in concert, the conduct of the two may be compared, and
one may be found to be greater than the other. That is not true
of vicarious liability.
Joint and several liability is a harsh rule. See
Skinner v. Reed-Prentice Division Package Machinery Co., 70 Ill. 2d 1, 12-13, 374 N.E.2d 437, 442 (1977). The legislature has
attempted to ameliorate some parts of that harsh rule by its
enactment of section 2-1117 of the Code. Perhaps the aspect of
"agreement" distinguishes acting in concert from other situations
where joint and several liability is imposed, such as where
unrelated consecutive acts result in a single and indivisible
harm. Restatement (Second) of Torts 879, at 324 (1979).
Perhaps those who engage in some types of agreement are not
deserving of the protection of section 2-1117. That, however, is
a question for the legislature, not for this court. The legisla-
ture has not provided any exception to section 2-1117 for those
acting in concert and neither should we.