Woods v. Cole

Annotate this Case
Woods v. Cole, No. 82895 (3/19/98)

Docket No. 82895--Agenda 30--September 1997.
YVONNE WOODS, Special Adm'r of the Estate of Eric Woods, Deceased,
Appellee, v. TODD COLE, Appellant.
Opinion filed March 19, 1998.

JUSTICE McMORROW delivered the opinion of the court:
Section 2--1117 of the Code of Civil Procedure (735 ILCS 5/2--1117 (West
1992)) provides that in negligence and strict product liability actions which result
in death, bodily injury or damage to property, any defendant whose fault is
determined to be less than 25% of the total fault attributable to the plaintiff, the
defendants sued by the plaintiff, and any other third-party defendant who could
have been sued by the plaintiff shall be severally liable for any nonmedical
damages. If a defendant's fault is determined to be 25% or more, then the
defendant shall be jointly and severally liable for any nonmedical damages.[fn1]
The sole issue presented in this appeal is whether section 2--1117 is applicable in
negligence actions where several tortfeasors act "in concert" to cause a single,
indivisible harm. For the following reasons, we conclude that it is not.

Background
The plaintiff, Yvonne Woods, as special administrator of the estate of the
decedent, Eric Woods, brought a wrongful death action in the circuit court of
Morgan County against the defendant, Todd Cole. As ultimately amended,
plaintiff's complaint alleged that defendant had negligently entrusted a firearm to
Jason Hill, who was under the influence of alcohol; that defendant had negligently
loaded the weapon used by Hill in such a manner that Hill would think the
weapon was empty when pointed at decedent; that defendant had induced Hill to
discharge the firearm toward decedent, causing decedent's death; and that
defendant had acted in concert with Hill in pointing and discharging the firearm
at decedent.
Plaintiff's wrongful death action was based upon events which had
previously led to defendant's criminal convictions of involuntary manslaughter and
the concealment of a homicidal death. See People v. Cole, 253 Ill. App. 3d 603
(1993). Evidence presented at the criminal trial established that on the night of
May 8, 1992, defendant, decedent, and their two friends, Hill and Laurenzio
Carrera, decided to go shooting at a farm belonging to defendant's grandfather.
The group drove to the farm in defendant's pickup truck. During the drive to the
farm, decedent fell asleep.
Hill testified at the criminal trial that defendant conceived of a plan to
frighten decedent. According to Hill, the plan was for defendant, Carrera and Hill
to prepare the guns which they had with them so that they would fire only one
shell or bullet. The group would waken decedent by simultaneously firing the
single shot in their weapons into the ground. The group would then point their
weapons at decedent and click the triggers on an empty chamber or cylinder.
Hill testified that when they got to the farm, defendant's plan was carried
out. The pickup truck was driven inside a barn. Defendant, Carrera and Hill got
out of the truck, leaving decedent asleep on the front seat. The group fired their
weapons into the ground near the truck, awakening decedent. Defendant and
Carrera then pointed their guns at decedent, said "it's time to die," and pulled the
triggers, producing a click. However, when Hill pulled the trigger on his weapon,
the gun discharged, killing decedent. Cole, 253 Ill. App. 3d at 605-08.
Before trial in the instant matter, defendant filed a counterclaim in which
he asserted that if he were found liable for plaintiff's death, he would have the
right under section 2--1117 of the Code of Civil Procedure (735 ILCS 5/2--1117
(West 1992)) to have his liability apportioned relative to the liability of Hill and
Carrera. Plaintiff objected to the counterclaim. Plaintiff maintained that defendant,
Hill and Carrera were "persons acting in concert" under section 876 of the
Restatement (Second) of Torts (1979), that the liability for decedent's death could
not be apportioned among them, and, therefore, that section 2--1117 was
inapplicable. The trial court agreed with plaintiff but certified the following
question for interlocutory appeal, pursuant to Supreme Court Rule 308 (155 Ill.
2d R. 308):
"Whether the provisions of 735 ILCS 5/2--1117 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, sec. 876."
The appellate court, with one justice dissenting, concluded that section 2--
1117 could not be applied under the facts of this case. 285 Ill. App. 3d 721. The
appellate court reasoned that the conduct of tortfeasors who act in concert cannot
be compared for purposes of apportioning liability under section 2--1117 because
each tortfeasor "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." 285
Ill. App. 3d at 724. We granted defendant's petition for leave to appeal. 166 Ill.
2d R. 315.

Analysis
The question presented in this appeal is one of law. Accordingly, our
review is de novo. Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997).
Section 2--1117 provides in full:
"Except as provided in Section 2--1118, in actions on
account of bodily injury or death or physical damage to property,
based on negligence, or product liability based on strict tort
liability, all defendants found liable are jointly and severally liable
for plaintiff's 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. Any defendant whose fault, as determined by
the trier of fact, is 25% or greater of the total fault attributable to
the plaintiff, the defendants sued by the plaintiff, and any third
party defendants who could have been sued by the plaintiff, shall
be jointly and severally liable for all other damages." 735 ILCS
5/2--1117 (West 1992).
Section 2--1118 excludes two types of actions, those involving
environmental pollution and those alleging medical malpractice, from the precepts
of section 2--1117. A defendant who is liable in either of these two types of
actions is held jointly and severally liable. 735 ILCS 5/2--1118 (West 1992).
As previously noted, the question which the trial court certified for appeal
is whether section 2--1117 is applicable to a defendant whose liability is
predicated on acting "in concert" under section 876 of the Restatement (Second)
of Torts. Section 876 is entitled "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 sec. 876, at 315 (1979).
Defendant acknowledges that, under the common law, individuals who
engage in tortious, concerted action are held jointly and severally liable for any
damages resulting from that action. Defendant emphasizes, however, that section
2--1117 modifies the common law with respect to joint and several liability.
Defendant further notes that while section 2--1118 expressly exempts medical
malpractice actions and environmental pollution actions from the provisions of
section 2--1117, neither section 2--1118 nor section 2--1117 includes any
exception for cases involving concerted action.
Defendant also observes that liability under section 876 of the Restatement
requires a finding of some affirmative conduct on the part of those who are
alleged to have acted in concert. Defendant distinguishes liability based upon
concerted action from liability founded on the doctrine of respondeat superior.
Under the doctrine of respondeat superior, a principle may be held liable for the
tortious actions of an agent which cause a plaintiff's injury, even if the principle
does not himself engage in any conduct in relation to the plaintiff. In such a
situation, defendant notes, it is inappropriate to compare the actions of the
principal and agent for purposes of apportioning liability. See, e.g., American
National Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center, 154 Ill. 2d 347, 354 (1992) (noting that for purposes of the Contribution Act, "[i]n cases
of vicarious liability, there is only a basis for indemnity, not for apportionment of
damages as between the principal and agent [citation]. Only the agent is at fault
in fact for the plaintiff's injuries"). However, defendant asserts that there is no
barrier to apportioning the liability of tortfeasors who act in concert, each of
whom must engage in some form of affirmative conduct to be liable under section
876. Therefore, defendant reasons, section 2--1117 should apply to a defendant
whose liability is based upon having acted in concert with other individuals. We
disagree.
In general, the common law doctrine of joint and several liability provides
that when two or more individuals tortiously contribute to the same, indivisible
injury, each individual may be held jointly and severally liable for the entire
injury. See generally 3 F. Harper, F. James & O. Gray, Torts secs. 10.1, 10.2 (2d
ed. 1986); W. Keeton, Prosser & Keeton on Torts secs. 47, 50 through 52 (5th ed.
1984); Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 119-20 (1983). Under the
common law, there are several distinct circumstances in which a contributing
tortfeasor may be held jointly and severally liable. See 3 F. Harper, F. James &
O. Gray, Torts sec. 10.1 (2d ed. 1986) (identifying four categories in which the
courts have historically imposed joint and several liability). In perhaps the most
frequently occurring situation, a tortfeasor who acts independently and
concurrently with other individuals to produce an indivisible injury to a plaintiff
may be held jointly and severally liable for that injury, even though the tortfeasor
does not act in concert with the other individuals, and shares no common purpose
or duty with them. Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429,
438 (1992). Such an "independent concurring tortfeasor" (3 F. Harper, F. James
& O. Gray, Torts sec. 10.1, at 7 (2d ed. 1986)) is not held liable for the entirety
of a plaintiff's injury because he or she is responsible for the actions of the other
individuals who contribute to the plaintiff's injury. Rather, an independent,
concurring tortfeasor is held jointly and severally liable because the plaintiff's
injury cannot be divided into separate portions, and because the tortfeasor fulfills
the standard elements of tort liability, i.e., his or her tortious conduct was an
actual and proximate cause of the plaintiff's injury. See generally 3 F. Harper, F.
James & O. Gray, Torts sec. 10.1, at 17-28 (2d ed. 1986); R. Wright, Allocating
Liability Among Multiple Responsible Causes: A Principled Defense of Joint and
Several Liability for Actual Harm and Risk Exposure, 21 U.C. Davis L. Rev.
1141, 1141-68 (1988); R. Michael, Joint Liability: Should It Be Reformed or
Abolished?--The Illinois Experience, 27 Loy. U. Chi. L.J. 867, 906-08 (1996). The
fact that another individual also tortiously contributes to the plaintiff's injury does
not alter the independent, concurring tortfeasor's responsibility for the entirety of
the injury which he or she actually and proximately caused. See Restatement
(Second) of Torts sec. 875, Comment c, at 315 (1979); Coney, 97 Ill. 2d at 121-
22.
In contrast, a tortfeasor who acts in concert with other individuals in
causing a plaintiff's injury is held jointly and severally liable for that injury
because the tortfeasor is legally responsible for the actions of the other individuals.
See 27 Loy. U. Chi. L.J. at 909. A determination that a tortfeasor has acted in
concert with other individuals establishes a legal relationship with those
individuals. By virtue of this relationship, the tortfeasor becomes liable for the
actions of those with whom he acted in concert. "In legal contemplation, there is
a joint enterprise, and a mutual agency, so that the act of one is the act of all, and
liability for all that is done is visited upon each." (Emphasis added.) W. Keeton,
Prosser & Keeton on Torts sec. 52, at 346 (5th ed. 1984). Thus, while the
tortfeasors who act in concert in causing a plaintiff's injury may all engage in
some affirmative conduct relating to that injury, the legal relationship which exists
among them eliminates the possibility of comparing their conduct for purposes of
apportioning liability. Indeed, if an apportionment of liability were permitted, the
act of one tortfeasor would no longer be the act of all, and the essence of the
doctrine of concerted action would be destroyed.
Defendant maintains, however, that section 2--1117 contains no exception
for concerted action. Therefore, according to defendant, under the plain terms of
the statute, section 2--1117 must apply in cases where the tortfeasors act in
concert in causing the plaintiff's injury. We believe this argument reflects a
fundamental misunderstanding of the nature of section 2--1117. Section 2--1117
requires, as a threshold matter, that the liability of the tortfeasors which is at issue
be capable of being legally apportioned. If the liability cannot be legally
apportioned, then section 2--1117 never comes into play. We have noted that it
is legally impossible to apportion liability among tortfeasors who act in concert.
Logically, therefore, section 2--1117 cannot apply to cases where the tortfeasors
act in concert to cause a plaintiff's injury. See also L. Pressler & K. Schieffer,
Joint and Several Liability: A Case for Reform, 64 Denv. U.L. Rev. 651, 680-81
(1988) (advocating the abolition of joint and several liability for independent
concurring tortfeasors but noting that the doctrine should be retained for concerted
action); R. Wright, The Logic and Fairness of Joint and Several Liability, 23
Memphis St. U.L. Rev. 45, 47 n.7 (1992) ("All parties [those advocating the
abolition of joint and several liability and those in favor of retaining the doctrine]
generally agree that joint and several liability should be retained at least for
defendants acting in concert").
We note, moreover, that defendant's argument that section 2--1117
contains no exception for concerted action is simply another way of saying that,
by enacting section 2--1117, the legislature intended to eliminate concerted action
as a basis for joint and several liability in the nonintentional torts. The general
principle that tortfeasors who negligently act in concert are held jointly and
severally liable for the damages which they cause has been recognized in Illinois
for over 100 years. See Andrews v. Boedecker, 126 Ill. 605, 610 (1888) ("Parties
who act in concert, and co-operate in doing a negligent act which causes an
injury, are liable, either jointly or severally, to the person injured, for the damage
thereby occasioned"). There is no indication, in either the operation or language
of section 2--1117, that the legislature intended to abolish this well-established
principle of the common law. See In re Illinois Bell Switching Station Litigation,
161 Ill. 2d 233, 240 (1994) (statutes in derogation of the common law are to be
strictly construed, and nothing will be read into them by implication).

Conclusion
For the foregoing reasons, we answer the certified question in the negative.
Section 2--1117 is not applicable in negligence actions where several individuals
act in concert to cause a single, indivisible harm. We note that it remains to be
determined, as a question of fact, whether the defendant in this case engaged in
concerted action so as to preclude the application of section 2--1117. The
judgment of the appellate court is affirmed.

Appellate court judgment affirmed.

[fn1] A 1995 amendment to section 2--1117 eliminated the doctrine of joint and
several liability entirely, replacing it with proportionate several liability. The
amended version of section 2--1117, which is not at issue in this case, was
declared unconstitutional by this court in Best v. Taylor Machine Works, 179 Ill. 2d 367, 423-33 (1997).