TERRY E. READY, Special Adm‘r of the Estate of Michael P. Ready, Deceased, Appellant, v. UNITED/GOEDECKE SERVICES, INC., et al. (United/Goedecke Services, Inc., Appellee).
No. 108910
Supreme Court of Illinois
October 21, 2010
238 Ill. 2d 582
JUSTICE BURKE joins in this special concurrence.
Edward M. Kay and Paul V. Esposito, of Clausen Miller, P.C., and John W. Patton, Jr., of Patton & Ryan, all of Chicago, for appellee.
CHIEF JUSTICE FITZGERALD delivered the judgment of the court, with opinion.
Justices Freeman and Burke concurred in the judgment and opinion.
Justice Kilbride specially concurred, with opinion.
Justice Garman specially concurred, with opinion, joined by Justice Karmeier.
Justice Thomas took no part in the decision.
OPINION
This case returns to this court for a second time. The issues before us are whether the appellate court followed the instructions of this court on remand and whether its decision on the sole proximate cause issue was correct. For the reasons that follow, we reverse the appellate court.
BACKGROUND
In 1999, Michael Ready (Michael) was killed in an accident at the power plant where he worked when, during a pipe-refitting project, a scaffolding truss fell eight stories and struck him in the shoulder. His wife, Terry Ready (Terry), as administrator of his estate, filed wrongful-death claims in the circuit court of Cook County against the general contractor on the project, BMW Constructors, Inc. (BMW), and the scaffolding subcontractor on the project, United/Goedecke Services, Inc. (United). Those defendants filed third-party contribution complaints against Michael‘s employer, Midwest Genera
Prior to trial, Terry filed motions in limine to exclude evidence regarding the conduct of Midwest and BMW. Regarding Midwest, Terry argued that her good-faith settlement with that company prevented the jury from apportioning fault to it. She further argued that United employees James Talley, Jeffrey Talley, and Troy Burzawa made judicial admissions in their discovery depositions that United was in charge of the project. Regarding BMW, Terry similarly argued again that her good-faith settlement with BMW prevented the jury from apportioning fault to BMW. She further argued that United‘s expert Ralph Barnett stated in his deposition that an alternative means of lifting the trusses—an external crane that BMW may have been responsible, as general contractor, to provide—was not necessarily less dangerous than the internal crane that was actually used.
In response to Terry‘s motion about Midwest‘s conduct, United argued, in part, “the issue of whether [Midwest‘s] conduct is the sole proximate cause of plaintiff‘s [decedent‘s] death is still at issue and paramount in this case.” The record does not contain a response to Terry‘s motion in limine about BMW‘s conduct, but in the hearing on Terry‘s motions, United indicated that its response would be the same concerning both settling defendants: “In this case there is plenty of evidence that the jury could decide that BMW‘s or Midwest[‘s] conduct was the sole proximate cause of Mr. Ready‘s death, and by eliminating our ability to bring in
The trial court decided that
“I think it‘s clear that in [United job supervisor] Jim Talley‘s deposition, he does make admissions that United/Goedecke was in charge of the work.
Now, he also says that Michael Ready or Midwest *** was as much in charge as United was.
And while that may affect one of the other motions in limine, it does not change the fact that Mr. Talley has admitted that United was in charge of the work. And so the argument of the sole proximate cause simply wouldn‘t be borne out by the evidence.”
United filed a motion to reconsider this ruling, arguing almost exclusively that the trial court erred in barring evidence of the settling defendants’ conduct under
At the end of Terry‘s case and at the close of the evidence, United moved for a directed verdict, asserting that the negligence of BMW and Midwest was the sole
The jury returned a verdict in Terry‘s favor, and the trial court entered judgment on that verdict. In its post-trial motion, United argued that the trial court erred in excluding evidence regarding the conduct of BMW and Midwest as the sole proximate cause of the accident. United also argued that the trial court erred in refusing its sole proximate cause jury instruction. The trial court denied United‘s posttrial motion. United appealed.
The appellate court affirmed in part and reversed in part. Ready v. United/Goedecke Services, Inc., 367 Ill. App. 3d 272 (2006). The appellate court held that under
This court reversed the appellate court, holding that
“In its petition for rehearing, United argues that this court, in light of its resolution of the
section 2—1117 question, should address United‘s concern that it was deprived of a sole proximate cause defense when the trial court refused its request for an instruction on sole proximate cause. We note that the issue was raised in the appellate court, but that court concluded that, because it was remanding for a new trial, it ‘need not now address United‘s contention.’ [Ready,] 367 Ill. App. 3d at 279. Because our opinion today reverses the appellate court‘s judgment ordering a new trial, we remand the cause to the appellate court for a decision on United‘s claim that the jury should have been instructed on sole proximate cause.” Ready, 232 Ill. 2d at 385.
On remand, the appellate court, in a footnote, initially noted,
“[T]he supreme court‘s opinion framed the issue that we should address on remand as ‘United‘s concern that it was deprived of a sole proximate cause defense when the trial court refused its request for an instruction on sole proximate cause.’ Ready, 232 Ill. 2d at 385. After reviewing the briefs submitted to this court in the original appeal, it is abundantly clear that United‘s sole proximate cause defense argument had two components: the circuit court‘s exclusion of evidence regarding the conduct of the settling defendants, and the circuit court‘s refusal to instruct the jury on sole proximate cause. Therefore, we address both of United‘s arguments regarding its sole proximate cause defense.” 393 Ill. App. 3d 56, 57 n.2.
The appellate court then discussed Nolan v. Weil-McLain, 233 Ill. 2d 416 (2009), and Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83 (1995), and decided that the trial court abused its discretion in excluding evidence of the settling defendants’ conduct. 393 Ill. App. 3d at 58-59. The appellate court remanded for a new trial, adding, “we need not address United‘s contention that the circuit court erred when it refused United‘s jury
ANALYSIS
The first issue before us is simple: Did the appellate court follow the mandate of this court? We directed the appellate court to decide whether the jury should have been instructed on sole proximate cause, but we also referred to “United‘s concern that it was deprived of a sole proximate cause defense.” That defense included both the jury instruction issue and a related evidentiary issue, namely, whether there was evidence to support a sole proximate cause jury instruction. Resolution of both those issues, then, required the appellate court to determine whether the trial court erred by excluding such evidence in its ruling on Terry‘s motions in limine. This is exactly what the appellate court did. We turn to the second issue before us: Was the appellate court‘s decision on the sole proximate cause issue correct?
Like the appellate court, we begin with Leonardi. In Leonardi, the plaintiff‘s decedent suffered irreversible brain damage shortly after giving birth and died several years later. The plaintiff filed a lawsuit against the hospital where the decedent received treatment and against several doctors who treated her. The plaintiff settled with one of them, Dr. Tierney, prior to trial. The plaintiff then filed a motion in limine seeking to bar evidence regarding the alleged negligence of any person other than the remaining defendants. The trial court denied the motion, and at trial allowed the defendants to question several witnesses regarding Dr. Tierney‘s conduct. The jury found in favor of the defendants, and the trial court entered judgment on that verdict. The plaintiff appealed, and the appellate court affirmed.
Before this court, the plaintiff argued that the trial court‘s denial of his motion in limine was erroneous, and
Last year, we reiterated that a defendant has a right to introduce evidence that some other person or entity was the sole proximate cause of the plaintiff‘s injury. Nolan v. Weil-McLain, 233 Ill. 2d 416 (2009). In Nolan, the plaintiff filed a negligence complaint against various companies, alleging that her decedent developed asbestos-related cancer after being negligently exposed to certain products over his career. All the defendants except one settled with the plaintiff before trial. The nonsettling defendant filed a motion in limine, seeking to present evidence at trial that the sole proximate cause of the decedent‘s death was his exposure to products made by nonparty entities. The plaintiff filed her own motion in limine, seeking to bar such evidence. The trial court allowed the plaintiff‘s motion, and ultimately entered judgment on the jury‘s verdict in favor of the plaintiff. The defendant appealed, and the appellate court affirmed.
Like the trial court in Nolan, the trial court here erred in excluding evidence that would have supported the defendant‘s sole proximate cause defense. United was entitled to present evidence to support a sole proximate cause jury instruction, and the question becomes whether that evidence would have entitled United to such an instruction. “Instructions convey the legal rules applicable to the evidence presented at trial and thus guide the jury‘s deliberations toward a proper verdict.” People v. Mohr, 228 Ill. 2d 53, 65 (2008), citing People v. Hudson, 222 Ill. 2d 392, 399 (2006). There must be some evidence in the record to justify an instruction, and the second paragraph of IPI Civil (2000) No. 12.04 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. Leonardi, 168 Ill. 2d at 101.
Regarding BMW, United indicates that the evidence excluded by the trial court would have shown that BMW should have provided an external crane to lift the scaffolding and that such a crane would have eliminated the need for Michael to work on the project and, thus, would have prevented the accident. Regarding Midwest, United indicates that the evidence excluded by the trial court would have shown that Midwest forced United to accept
Having decided that the trial court committed an error, we must decide whether that error was of sufficient magnitude to require a new trial, that is, whether the error was “harmless.” See Nolan, 233 Ill. 2d at 445. We conclude that it was, and that even a properly instructed jury would not have reached a different verdict because there was significant evidence that United was a proximate cause of the accident.
The subcontract stated, “Crane and Operator to be furnished by [BMW] as United/Goedecke requires,” but the record does not show that United ever requested one. In fact, during the in limine conference United conceded that there was “no evidence either way.” In a discovery deposition, Jeffrey Talley (Jeffrey), United‘s construction manager for the project, testified that BMW told him in a bid meeting and during a walk around the job site that it would provide an external crane. At trial, Terry called Jeffrey as her first witness. When asked on cross-examination by United‘s attorney whether there were discussions between United and BMW as to how the scaffolding would be lifted, Jeffrey answered, “We were supposed to use a crane.” Pursuant to its ruling on Terry‘s motion in limine, the trial court sustained an objection and struck this testimony, but allowed it to stand as an offer of proof.
Terry also called Jeffrey‘s brother James Talley, United‘s job supervisor on the project, as a witness. On direct examination, James testified that he walked
At trial, Anthony Panega, a Midwest employee, testified that Midwest had a rule prohibiting its employees from standing under material or machinery being lifted by a crane unless their work required it. United attempted to introduce Midwest‘s safety manual containing this rule into evidence. The trial court barred it, and United made the manual part of an offer of proof.
James agreed that it was his responsibility as United‘s safety representative to ensure that United‘s employees and any other persons assisting them complied with United‘s safety manual. James further agreed that it was his responsibility, with respect to the scaffolding work, to supply a safe working environment for United‘s employees and any other persons assisting them. James testified that a Midwest employee operated the tugger, and Michael did the signaling from the tugger bay, but only after a “safety meeting” with James. According to James, Michael learned of United‘s plan to lift the trusses, and they reached an understanding about how the work would be done. But the import of James’ trial testimony was that United indeed remained in charge of the scaffolding work, even if United collaborated with Midwest employees on some aspects of how to accomplish it. James even stated that he could have ordered the work done in a different, safer manner.
The work was done pursuant to a plan that James devised with Jeffrey. According to James, Jeffrey chose
On cross-examination, Jeffrey testified that United was not solely responsible for lifting the scaffolding because it had to use Midwest‘s tugger and three Midwest employees, who were “in control of the lift.” Jeffrey, however, agreed that James was responsible for rigging the job and, further, that United was “in charge of” elevating the scaffolding in a safe manner.
The appellate court was incorrect in stating that if the jury had heard the whole story, it may have reached a different verdict. No reasonable jury would have concluded that United was not a proximate cause of the accident, and if United was a proximate cause, the settling defendants could not have been the sole proximate cause. United may have expected to use an external crane, but the subcontract required it to request one, and the record does not show that it ever did. Additionally, United may have used a Midwest tugger operator and two other Midwest employees, including Michael, for this project, but the record shows that United retained significant control over the work and the safety of the people doing it. We conclude that the trial court‘s error in refusing to instruct the jury on sole proximate cause was harmless.
CONCLUSION
For the reasons that we have stated, the judgment of
Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE THOMAS took no part in the consideration or decision of this case.
JUSTICE KILBRIDE, specially concurring:
I specially concur only because the majority opinion contains a harmless-error discussion of Nolan v. Weil-McLain, 233 Ill. 2d 416 (2009), that is inconsistent with my prior position in that small portion of Nolan. I acknowledge, however, that the harmless-error ruling in Nolan represents this court‘s holding. Moreover, I completely agree with the majority‘s conclusion in the present appeal that the trial court‘s error was harmless and does not require a remand for a new trial. Thus, I specially concur only to explain my current acceptance of the majority analysis of Nolan in light of my prior separate writing.
JUSTICE GARMAN, specially concurring:
I agree with the plurality that United presented insufficient evidence to warrant a jury instruction that the settling defendants were the sole proximate cause of the accident that resulted in Michael Ready‘s death. I write separately, however, to express my continued disagreement with the holding of this court‘s decision in Ready v. United/Goedecke Services, Inc., 232 Ill. 2d 369 (2008) (Ready I) that
The Ready I plurality‘s interpretation of the statute rewards settling defendants, no matter the degree of their culpability, and punishes nonsettling defendants. In cases where a defendant may have deep pockets, a plaintiff is encouraged not to settle, knowing that a jury, lacking knowledge of any fault of the settling defendants, may hold the nonsettling defendant solely liable for the injury, absent any comparative negligence on the plaintiff‘s part. Thus, a nonsettling defendant who may have a lesser degree of fault than the settling defendants ends up paying most of the damages. This is not only unfair to the nonsettling defendant, it may also hurt the plaintiff. If the evidence at trial shows that the only defendant in the case has limited responsibility for the plaintiff‘s injury, the jury, faced with the necessity of assigning 100% of the fault to someone, may be tempted to assign greater fault to the plaintiff. In contrast, if a jury is able to consider the fault of settling defendants, a greater share of the fault may be assigned to those defendants and the degree of the plaintiff‘s fault reduced.
In the instant case, the jury found United to be 65% liable for the accident and Michael Ready‘s fault was assessed at 35%. If the jury had been allowed to consider
As I stated in my dissent in Ready I, the plurality‘s reading of
JUSTICE KARMEIER joins in this special concurrence.