New Illinois Caselaw Regarding Allocation Of Fault At Trial:

Alert Category: Illinois

Alert Type: Personal Injury

In Ready v. United/Goedecke Services, Inc., 854 N.E.2d 758 (1st Dist., 2006), the Illinois First District Appellate Court was presented with the following question: “Is a defendant who settles with the plaintiff prior to trial still a ‘defendant sued by the plaintiff’ within the meaning of section 2-1117 of the Code of Civil Procedure” such that fault may be allocated to settling defendants at trial? The court answered this question in the affirmative, holding that “all defendants sued by the plaintiff, including those who settled prior to trial, may be included on the jury verdict form so that a fact finder can assign each defendant their degree of relative fault, if any.” The First District came to a different conclusion than the Fifth District in Blake v. Hy Ho Restaurant, Inc., 652 N.E.2d 807 (5th Dist., 1995) and the Seventh Circuit, which relied upon Blake, in Freislinger v. Emro Propane Co., 99 F.3d 1412 (7th Cir., 1996). The First District instead agreed with the Fourth District’s interpretation of 2-1117 in Skaggs v. Senior Services of Central Illinois, Inc., 823 N.E.2d 1021 (4th Dist., 2005). Interestingly, the court rejected the plaintiff’s argument that the defendant would be able to “levy fault to nonparties at trial,” and stated that “[F]ault is to be apportioned among all defendants sued by the plaintiff,” and “[a]ny settlement entered into with any defendant should not serve to alter the remaining defendant(s)' degree of fault.” Ready, 854 N.E.2d at 764.