*1 (No.74212. LINE RAILROAD J. ZIARKO v. SOO
RONALD (Milwaukee Trans- Motor COMPANY, Appellant Company, Appellee). portation Rehearing October 1994. denied Opinion June 1994. filed *2 BILANDIC, C.J., part. took no HARRISON, J., concurring.
NICKELS, J., HEIPLE, J., joined by dissenting. Caffrey Clausen, Miller, Gorman, Witous, P.C., & of (James Chicago Ferrini, T. Ivar R. Azeris and Edward counsel), Kay, appellant. M. of for Cassiday, Chicago (Timothy Gloor, Schade & of J. Lynn Morgan Ashe, Dowd, D. Patterson Gloor and A. D. counsel), appellee. Milne, of judg- delivered the of the JUSTICE McMORROW ment court: appeal, we decide that the Joint Tortfeasor Act) (Contribution (740 Act ILCS
Contribution 100/0.01 (West 1992)) guilty permits a defendant found seq. et contribution from a willful and wanton conduct to seek negligence, guilty ordinary if the defendant found amount to willful and wanton acts did not addition, misconduct. In we conclude tortious liability” Act is the under the Contribution "common agreed post-judgment upon settlement be- in a amount defendants, and one of the where the plaintiff tween claims agreement plaintiff’s settlement released tortfeasors, and there is no against both defendant argument agreement the settlement was entered into in bad faith.
BACKGROUND May 1982 in injured Plaintiff Ronald Ziarko was yard by defendant Soo Line Railroad railroad owned Line). (Soo accident, Ziarko, At the time of the Company driver, employed stopped who was as a truck had his yard operated by truck in an area of the railroad (Milwaukee Transportation Company Milwaukee Motor Motor). truck, Shortly alighted after Ziarko from his truck was struck Line Soo train. This collision Ziarko, inflicting caused the truck to hit substantial injuries. against
Ziarko filed suit Line Soo and Milwaukee amended, Motor. ultimately complaint alleged As that Soo Line guilty had been and willful and wanton misconduct and that Milwaukee Motor had guilty ordinary negligence. been Line Soo *3 Milwaukee Motor filed cross-counterclaims for contribu- (740 (West tion under the Contribution Act ILCS 100/2 1992)).
A jury trial was held and a verdict
returned
for
Ziarko in the amount of approximately
million.
$7.1
jury
contributory
negli
The
determined
that Ziarko’s
gence
addition,
jury
amounted to 3%. In
the
found both
liable,
defendants
and assessed Soo Line’s fault at 95%
and Milwaukee Motor’s fault at 5%. In
response to
special
interrogatory,
indicated that
it found
Soo
The
Line’s misconduct had been willful and wanton.
damages by
trial court
refused to
Ziarko’s
reduce
contributory
negligence,
relying
of
percentage
his
on
this court’s decision in Burke v. 12 Rothschild’s Liquor
Mart,
Inc.
(comparative
In view of the settlement Line, an order that appellate court entered and Soo remand, Upon the circuit court. remanded the matter agree the settlement the trial court determined pro more than its obligate pay Soo Line to ment did Ziarko, liability to rata share of the defendants’ common result, verdict. As a the trial jury’s determined in the as from for contribution request denied Soo Line’s the trial The court affirmed appellate Milwaukee Motor. 860). (234 This court Ill. 3d court’s determination (134 Ill. appeal leave to granted petition Soo Line’s 315). the instant party Ziarko is not a R. Plaintiff only concerns the con before this court appeal. The case Line and Milwaukee of defendants Soo tribution claims Motor. and Wanton Between a
Contribution Tortfeasor Willful a Negligent and Tortfeasor to whether Soo argument pertains parties’ first Milwaukee Line to seek permitted Act, light jury’s the Contribution Motor under and willful guilty Line was that Soo determination guilty only Motor was and Milwaukee wanton conduct Motor contends Milwaukee conduct. Act nor our the Contribution provisions neither a willful authorizes jurisprudence law common
271 negligent a contribution from wanton tortfeasor to seek tortfeasor. apportion is intended to
Our Contribution Act
parties,
liability
upon
fault of the
based
the relative
"subject
liability
applies
parties
in
are
to
tort
when the
injury
person
property,
arising
or
the same
out of
100/2(a) (West
(740
wrongful
ILCS
the same
death.”
1992).)Although
scope
the Act does not define
"subject
liability
tort,”
has held
terms
in
this court
phrase
is intended to exclude
Hargrove
Corp.
v. Jack L.
tortious conduct.
Gerill
(1989),
Builders,
179,
Inc.
128 Ill. 2d
this court observed
codify
adopted
the de
that the Contribution Act was
Package
in
v.
cision
Skinner
Reed-Prentice Division
Machinery
Co.
70 Ill. 2d
in which the court
liability
adopted
product
that a
rule
strict
defendant
could seek
(Skinner,
defendant.
contribution from
16.)
70 Ill. 2d at
This court’s decision
originally
view,
Skinner did not abolish the
announced
(K.B. 1799),
Eng.
Merryweather
Rep.
v. Nixan
101
subsequently adopted
1337, and
in most States of this
country,
including Illinois, that contribution is not
(Gerill,
permissible between intentional tortfeasors.
203-04.)
prohibiting
Ill. 2d at
The rule
contribution
among intentional
on the notion
tortfeasors was founded
liability
tortfeasor,
that an intentional
whose
has arisen
"entirely
wrong,”
[from tortfeasor’s]
own deliberate
shifting
equitable
should not be afforded the
benefits of
portion
under
of that
to another tortfeasor
(W.
principles
Keeton,
of contribution.
Prosser & Keeton
(5th
1984);
§ 50,
on
at 336
ed.
see
v.
Torts
also Neuman
City Chicago
legislative history
of the Contribution Act reveals
Assembly’s adoption
the General
of the Act was not
modify
alter or
the common law rule which
intended to
among
permit
did not
intentional tortfea-
*5
204-05.)
(Gerill,
reasons,
sors.
128 Ill. 2d at
For these
held that
are not
has
intentional
tortfeasors
entitled
to contribution
under
the Contribution Act.
Genii,
present appeal is whether defendant found precluded willful and wanton conduct should be obtaining guilty of contribution from defendant found (See (1994), Lannom v. Kosco ordinary negligence. 158 & Co. 535; Graphics Bresland v. Ideal Roller Ill. 2d (barred (1986), App. 150 Ill. 3d 445 Pipes v. American tortfeasor); willful and wanton (1985), Logging Corp. Tool (permitted Ill. 3d 269 App. 139 Neuman tortfeasor); contribution for willful (acknowl v. (1982), City Chicago App. 110 Ill. 3d 907 of edged viability equitable apportionment for willful and tortfeasor whose conduct fell short of wanton (C.D. behavior); McQueen Shelby County v. intentional (followed 1990), ruling Supp. Ill. 730 F. 1449 Bresland.).) question, To resolve this we look to negligent, similarities and dissimilarities between wanton, intentional conduct. willful and as jurisprudence Our has defined conduct a reasonable man of "a failure to exercise the care that any guard against exercise to ordinary prudence would foreseeable, of harm reasonably unreasonable risks (Beccue v. might which flow from his conduct.” Rockford 179, 190; see also Park District App. 94 Ill. 2d (3d Instructions, Civil, 10.02 Jury No. Illinois Pattern (hereinafter 1993) (3d IPI Civil 1989); ed. ed. No. 10.03 *** 3d).) means a desire to cause Generally, intent "[t]ort belief substantially certain [a] or at least consequences 1 M. will result. consequences [Citations.]” 1.01, 1—3 n.8 Tort Law Ottley, & B. Illinois § Polelle Surety & Co. v. (2d Casualty Aetna 1993); ed. see also 620. Freyer following defi- contrast, offered the this court has willful and wanton acts: nition of injury intentional must have been "A wilful or wanton committed under circumstances the act must have been others, safety exhibiting disregard for the a reckless failure, danger, knowledge impending after such as a exercise a failure to discover
ordinary prevent care to it or when it danger through or carelessness recklessness ordinary the exercise could have been discovered Lines, Transit Inc. v. Interstate care.” Schneiderman (1946), Ill. 583. See also IPI Civil 3d No. 14.01. that willful and wanton argues
Milwaukee Motor
conduct that is intention
acts are considered similar to
tortious,
ally
principles
and that as a result contribution
*6
guilty of
cannot
where one defendant
is found
apply
another defendant
willful and wanton conduct and
guilty
ordinary negligence.
support
found
To
this court’s
argument,
upon
Milwaukee Motor relies
Mart,
reasoning
Liquor
in Burke v. 12 Rothschild’s
Inc.
Burke,
(1992),
The Burke court’s negligent and willful and wanton difference” between that willful and premise conduct was founded on the " ' degree of moral "approaches wanton conduct harm, the defen to intentional since blame attached risk of deliberately highly inflicts a unreasonable dant ”’ disregard of it.” upon harm others in conscious (Burke, 448, Remington Loitz v. quoting 148 Ill. 2d at Bresland, 416, (1990), quoting 138 Ill. 2d Arms Co. 457.) However, in this State 3d at decisions App. 150 Ill. have not limited willful and wantonness to instances where the conduct was intentional. Acts have been identified as willful and wanton where the defendant’s intentional, conduct was but have also been found to merely arise where the defendant’s actions were reck- less.
It is well established that willful and wanton acts may be found where the tortious conduct was inten tional. Willful and wanton conduct includes that which (See, performed intentionally. was Schneiderman, e.g., 583.) However, 394 Ill. at unlike tortious behavior, conduct characterized as willful and wanton proven where the acts have been less than failure, where there "a i.e., has been after intentional — knowledge danger, impending ordinary to exercise prevent” danger, care to "failure to discover *** danger through carelessness when it could have ordinary been discovered the exercise of care.” 583.) (Schneiderman, separate 394 Ill. at There is no independent tort of "willful and wanton” misconduct. Associates, See Morrow v. L.A. Goldschmidt Inc. 87; 112 Ill. 2d v. Mucklow John Marshall Law School 895. jurisprudence wholly
Our has not been consistent on degree to which acts are considered simi (See lar to willful and wanton behavior. Wassell v. Ad (7th 1989), 849; Cir. 865 F.2d ams Davis v. United States (7th 1983), example, it has Cir. 716 F.2d For been *7 greater acts bear remarked that willful and wanton intentionally resemblance to tortious misconduct. 457.) (Bresland, App. have 150 Ill. 3d Other cases wanton behavior is more simi observed that willful and ordinary negligence. lar to an act of v. Mara (Spivack (1961), (1966), App. 22, 26; 31 Ill. 69 Ill. 2d v. Cox Cooper 56.) App. 51, inter 2d Our case law has sometimes used negligence,” changeably the "willful and wanton terms
275
conduct.”
"willful and wanton
"gross negligence,” and
Schneiderman,
(reviewing evi
See,
facts may of another willful and wanton acts be only degrees wrongdoing. less than intentional in Burke ruling
The court’s a "qualitative distinc- tion” between willful and negligent acts conduct does not take into account this State’s develop- ment of the dual characteristics of willful and wanton in Burke limited analysis conduct. The court its willful and wanton acts that are committed intention- ally. the Burke conclusion,
To support its relied on meaning of the term "willful and wanton” as that phrase applied punitive damages, has been to awards of significant policy underlying and the considerations an (See Burke, punitive damages. award of 148 Ill. 2d 448-51.) However, willful and wanton conduct grounds only punitive damages, compensa for but tory damages Compensatory damages as well. are designed injuries to make amends for the suffered damages plaintiff, punitive whereas are intended to punish wrongdoer and serve as deterrent Loitz, e.g., (See, antisocial in the future. behavior 414-17.) regarding puni Ill. 2d at Because the concerns retribution, damages upon punishment tive focus inquiry court’s into they predominate should not liability apportionment of defendants’ for damages when one tortfeasor compensatory is found wanton conduct and another tort guilty of willful and negligence. guilty ordinary feasor is found underlying justifiable policies concern over the a rule damages adequately protected by can be punitive punitive prohibits apportionment Gerill in damages, adopted similar to the rule this court both defendants have been that bars contribution where (See Gerill, 128 Ill. 2d guilty found of intentional torts. is a negligence "Keeping comparative mind that compensation plaintiff providing method parties, of the whereas the relative fault proportion to the misconduct damages punish are to punitive defendant, should have no plaintiff the conduct of the (J. damages.” Palmer punitive award of bearing on the 1.310, Negligence Manual Flanagan, Comparative & § S. 1986).) (rev. already established ed. It has been at 63-64 *9 not damages is punitive in that an award of this State v. Archer-Daniels- See Hall subject to contribution. 448, 458-60; Har see also Co. 122 Ill. 2d Midland 384, 389; gener see riss v. Elliott Annot., Comparative Negligence ally Plaintiff’s Effect of Recoverable, 27 A.L.R.4th Damages Punitive Reducing in (1984); Punitive Dam Piegore, 318 The Between Conflict Contribution, 78 Ill. B.J. 338 ages Right and the (1990). justified position its in reliance
The Burke court also (Second) Restatement expressed on the views (Second) Restatement of Torts does not refer Torts. The conduct, to "willful and wanton” but rather character- reckless, negligent, or intentional. izes conduct as either (1965).) (See (Second) of Torts 500 Under Restatement § view, contributory "plaintiff’s the Restatement’s a recovery for harm caused negligence does not bar (Restatement (Second) of reckless” conduct. defendant’s 503(1) (1965).) However, 482(1), the Restate- Torts §§ whose conduct is "plaintiff ment also recites that a disregard safety own is barred reckless of his disregard reckless recovery against a defendant whose safety legal plaintiff’s cause of the plaintiff’s 503(3) (Restatement (Second) 482(2), of Torts harm.” §§ (1965).) in the Restatement expressed Unlike the views (Second) Torts, not addressed the this court has acts willful and wanton plaintiff’s of whether a question bar, damage- or serve as complete should serve as a factor, damages, reducing compensatory in the award of engaged in willful and the defendant has also where addition, wanton conduct. In the definition of "reckless” under the Restatement is not the same as the definition given in this State to the term "willful and wanton.” (Second) (1965) See (defining Restatement of Torts 500§ act, doing recklessness as an or intention- act, ally failing "knowing having do an reason to know of facts which would lead a man reasonable realize, only that his conduct creates an unreason- another, physical able risk of harm to but also such substantially greater risk is than that which is neces- sary negligent”). to make his conduct
Legal commentary has been critical of this court’s (See decision in Burke. The an Status of Bry, Hoffman & Comparative Negligence Damage- Illinois as a Plaintiff’s Reducing Factor Where a Is Found Liable Defendant Misconduct, Theory Under the and Wanton of Willful Long, Strange Trip (1992); Note, So. Ill. L.J. 663 of to Misconduct and a Proposal Wanton Willful (1993).) Doctrine, Clarify the 26 J. Marshall L. Rev. 363 commentary suggests, As this latter continued adher of the Burke decision could lead to scope ence to the full *10 unjust harsh and results neither the clear supported of, for, underlying purposes regard nor our laws terms ing comparative fault and contribution. It is of some legislation introduced in the General note that has been Burke holding in Assembly to alter this court’s where the permit comparative principles apply fault to negligent and the defendant plaintiff has been found Assem., Ill. Gen. found willful and wanton. See 88th (amending Bill Sess. section 2—1116 of Senate 1993 regarding comparative the Code of Civil Procedure fault).
The Burke analysis limited its to willful and conduct. On this intentionally wanton acts as tortious basis, equitable policy and in order to further party of a found principles should not lessen the act, an have committed tortious Burke court held that the willful and wanton defendant liability by could not seek to reduce percentage his plaintiff’s contributory negligence. Burke, See Ill. 2d 448-52. injustice
We find no adopted to the rule in Burke to applied extent it is to willful and wanton However, conduct that amounts intentional behavior. we do not believe that the rule announced in Burke equal carries force or validity applied when to willful reckless, and wanton acts that are rather than inten- tional. The Burke court did not address the interests of parties who have been found willful and wanton because unintentional, reckless behavior. It be equally unjust mitigate refuse to the liability of the willful reckless, defendant whose behavior was intentional, rather than where there are parties other to the incident whose tortious proximately acts also plaintiffs caused the injuries.
Bearing considerations, in mind these we conclude that the determination of whether a willful and wanton defendant should be permitted to seek contribution from defendant depends upon whether the willful and wanton defendant’s acts were reckless or inten- tional. IPI jury Our Civil recognize instructions that a distinction should be drawn between willful and wanton acts that are intentional and willful and wanton conduct is According unintentional but reckless. IPI instructions, jury Civil judge the trial should instruct follows, as where there an allegation willful and wanton acts: I expression
"When use the 'willful and wanton conduct’ I mean a course of action which actual [shows which, intentional,] deliberate intention to harm or if an disregard shows utter indifference to or conscious (IPI person’s safety] safety [a own [and] [the others].” *11 14.01.) Civil 3d No. Use, the IPI Civil its Notes on respect
With to bracketed judges that the first advise trial instructions to or deliberate intention regarding "actual phrase intention be omitted unless deliberate harm” "should by evidence sufficient alleged supported harm is and 14.01, IPI Civil 3d No. make a submissible case.” Use, at 14—3. Notes on autho should not be conclude that contribution
We wanton acts willful and where the defendant’s rized Allowing contribution behavior. to intentional amount found wanton acts are willful and where the defendant’s holdings would contradict been intentional to have ruling including this court’s in Skinner and progeny, its intentional tort contribution for Gerill prohibits very purpose feasors, contradictory to the would be and "govern has affirmed as the This court of contribution. "the costs of ing jurisdiction” in this principle in accordance apportioned to be accidental injury are in the action.” fault of all concerned the relative with added.) Co. (1986), 113 Ill. v. Shell Oil Allison (Emphasis 26, 31. of guilty found addition, that a defendant we hold may seek and wanton conduct willful negligence if the ordinary guilty of a defendant found found to be acts were wanton defendant’s willful and to be less reckless, were determined and thus simply ruling will We believe intentional conduct. than harmonious with more justice and will be serve better loss "[T]he Act. the Contribution underlying policies application upon occur that would deterrent effect wanton willful concepts fault comparative would be ordinary negligence well as as misconduct (Li 825- Cal. 3d Cab Co. v. Yellow slight” 858, 873), and "a 1226, 1241, Rptr. 119 Cal. 26, 532 P.2d should negligence comparative system comprehensive in all cases damages apportionment allow for the
281
being
involving misconduct which falls short of
inten
(Li,
1241,
tional”
Our conclusion in the present
supported by
cause is
greater weight
authority
jurisdictions.
of
in other
(See appendix at the end of
opinion.)
This court’s
prior ruling in
only
Burke considered
in a
decisions
few States on the question
plaintiff’s
of whether
compared
conduct could be
with the defen
(Burke,
dant’s willful and wanton conduct.
For all of these we an respect with may lawfully applied principles damages one defendant compensatory award of where guilty is found negligent and another defendant found *13 intentional did not rise to of willful and wanton acts that cause does not reflect present The record in the conduct. willful jury found Soo Line’s the committed. As been misconduct to have its claim result, preclude misconduct did not Soo Line’s the Milwaukee Motor. Because for contribution erroneously found appellate and the trial court tortfeasor, was Line, willful and wanton that Soo as the contribution, rulings hereby are re- those not entitled to versed. Act the Contribution Liability” Under
"Common issue, regarding the raise a second parties The also liability” under meaning of the term "common proper 2(b) states Act. This section the Contribution section part: in pertinent only in tort- right exists favor of contribution
"The pro his rata share paid more than feasor who has the recovery limited to liability, is and his total common pro rata share. No by in of his paid him excess amount beyond his own make contribution liable to tortfeasor is liability.” ILCS the common 100/ pro rata share of 1992). 2(b) (West is whether by parties the presented question cause is the amount liability”
"common the instant verdict, million, the the jury approximately $7.1 agreed Ziarko and Soo Line in their upon by amount settlement, million. $6.65 liability” pres-
Soo Line that "common in the claims ent case should be the amount in the settlement viz., agreement, million. Soo Line notes that the $6.65 jury On this assessed Milwaukee Motor’s fault 5%. basis, Line Soo claims that it is entitled to contribution amount, from Milwaukee Motor for 5% of settlement viz., $332,500. argues liability”
Milwaukee Motor that "common verdict, jury’s the instant cause is the amount of the approximately million. The record reflects that $7.1 injuries, found Soo Line 95% at fault for Ziarko’s which amounted approximately million. Conse- $6.7 amount, million, quently, Soo Line’s settlement $6.65 less than the amount for which Soo Line was found jury. argues liable Milwaukee Motor that because Soo Line’s settlement amount than the is less amount of jury’s against Line, pay verdict Soo Soo Line did not pro agree- more than its rata share in the settlement reasons, ment. For these Milwaukee Motor contends Line any Soo is not entitled to funds in contribu- tion from Milwaukee Motor.
Generally, statutory provisions given are to be their plain ordinary meaning give in order to effect to objective legislation. (DiFoggio v. Retirement *14 County Annuity Board & Fund Employees of Benefit 382-83.) (1993), 377, 156 Ill. 2d One of the fundamental goals encourage of the Contribution Act is to settlements equitably apportion damages among that the tortfeasors (Wilson according to their relative fault. v. Hoffman 308.) (1989), rule, Group, general Inc. 131 Ill. 2d As a a agreement settlement is considered valid and enforce agreement good able if the was entered into in faith. 284
(Wilson,
validity
131 Ill. 2d
determine the
of
To
agreement,
totality
the settlement
the court looks to the
surrounding
making
of the
the circumstances
Wilson,
agreement.
Our courts have guidepost proper the sole of the settlement amount damages amount injured plaintiffs for the must be the plaintiffs a in a set trial on merits against recognized claims the defendants. "It has been substantially different from the settlements litigation damages are often specula results of because probability [Citation.]” tive and the uncertain. (Smith Texaco, (1992), 463, v. Inc. 232 Ill. 3d 469 App. 827, v. Hinze (1989), (citing App. 181 Ill. 3d 830- Ruffino Service, v. Pinto Inc. 32, (1986), Trucking O’Connor Swasey v. & Co. 911, 916, Doellman Warner App. Ill. 3d Wasmund v. Metro (1986), 842, 848-49, App. 147 Ill. 3d (1985), Chicago politan Sanitary District Greater & and Lowe v. Western 926, 929-30, App. Ill. 3d Norfolk 94-95).) Ry. Co. (1984), A App. disparity 124 Ill. 3d the value of the settlement and the amount between does not damages jury might which the have awarded "The circum agreement render the settlement invalid. liability pursuant eventual [defendant’s] stance greater have been much does jury’s to the verdict would agreement with not void the settlement [defendant’s] a courts have declined to utilize plaintiff], and our [the in range’ test order or 'reasonable 'proportionality’ a settlement with whether defendant’s determine jury’s subsequent plaintiff, compared when McDermott verdict, good faith. [Citations.]” was made App. 240 Ill. 3d Sanitary v. District Metropolitan 1, 46. Dunaway Mallaney v. reasoning
This is reflected appellate in which our raised in the to the issue question similar considered *15 Mallaney in settled all of plaintiff The present cause. agreement in an with one of the defendants. her claims remaining the defendants agreement The also released defendants, plaintiff. the One of the of their agreement, to the settlement party who was not he in a trial of the argued permitted, should be defendants, among actions the to contest contribution question pre the amount stated in the settlement. The " appellate sented the court was whether 'common ” Act was "limited to liability’ under the Contribution injured the has settled her entire party the amount *** agreement] cause of action for the settlement [in *** entitled to third-party [was] whether defendant [the] in the trial action that establish (Mal injured party’s damages exceeded that amount.” laney, App. 178 Ill. 3d at The of the observations Mallaney in are equally applicable present court cause, and bear repeating: policy encourage
"The of the Act Contribution is faith, compromise and settlement in the absence of bad policy promoted by [Citation.] fraud or collusion. This approving represent compromise settlements a fair interests, parties’ though of the even the dollar amount so given accurately represent injured party’s does not damages. given good presumed
A settlement in faith rea timely objection in sonable the absence of a in the trial And, injured party’s court. the mere fact that an actual damages exceed the amount of the settlement does prove [Citation.]” the settlement was unreasonable. Mallaney, App. 178 Ill. 3d at 833. Mallaney light reasoning, the court parties’ liability”
concluded that "common was if the agreement, amount stated the settlement even nonsettling might prove defendant have been able to damages that actual exceeded or were less than the agreement. Mal provided amount for in the settlement laney, 3d at 832-33. cause found Mal appellate in the instant
laney distinguishable
agreement
because the settlement
in that
case was reached
before
the amount
plaintiff’s damages
jury,
was decided
while the
agreement
present
settlement
in the
case was entered
However,
jury’s
into after the
verdict was returned.
*16
modified,
reduced,
may
post-
verdicts
or vacated on
v.
e.g., Henry
St. John’s
(See,
trial motion or on
appeal.
Hospital
(jury
subject
"[Tjhere why plaintiff [a] exist several reasons would settle a than [a defendant] [for with tortfeasor lesser amount jury’s judgment, subsequent the to a none of verdict] point which to collusion or fraud. At the time of the settlement, post-trial pending; a motions were viable plaintiff’s explanation for settlement is that she antici might pated lengthy appeal process a which have fore judgment, providing impetus her an stalled collection of A while for her to settle. further reason for settlement post-trial pending plaintiff’s could be desire motions were certainty.” to settle in order to achieve some measure of Jessee, App. Ill. 3d at 348. analysis, with this we believe that
Consistent good- the liability” "common in the case at bar means agreement in the settlement be- faith amount stated Line, though even the evidence tween Ziarko and Soo jury, plain- the proven, have to reasonable than the sum stated damages exceeded or were less tiff’s agreement. We believe in the settlement language of the Contribu- supported by is conclusion Act does the Act. "Nowhere in the Contribution tion post- or distinguish pretrial between legislature (Jessee, ***.” judgment settlements 2(b) Act, both types of the Under section identically, both agreements are treated settlement to contribution from settling defendant seek entitle liability injured plaintiff another tortfeasor whose extinguished agreement. in the settlement also of the explicit provisions note that settlement We specifically agreement Soo Line and Ziarko between liability Ziarko. extinguished Milwaukee Motor’s 2(c) provides pertinent Act Section Contribution discharge not part agreement settlement "does any liability injury the other for the tortfeasors it re wrongful provide death unless its terms so but recovery any against on claim others duces any [agreement].” the extent of amount stated in the (740 100/2(c) (West 1992).) If the ILCS settlement agreement extinguished had Milwaukee Motor’s Ziarko, pursued Ziarko could Milwaukee have verdict, the full amount on the Motor for net due crediting Line. paid after settlement amount Soo *17 See, (1990), Henry v. John’s e.g., Hospital St. Ill. 2d 533. view, if believed the
In our Milwaukee Motor that agreement accurately not reflect the settlement did Ziarko, to parties’ liability” "common then Milwaukee challenged good-faith nature of Motor should have the (See Hall v. Archer-Daniels- agreement. the settlement 460-61.) Co. In the Midland 122 Ill. 2d good-faith argument, a Milwaukee also context of Motor Line not presented have its claim that Soo should could permitted jury’s be to the determination as to "retain liability, apply the and to then those percentages percentages Soo Line’s own determination as damages.” According to plaintiff’s amount Motor, pick Line cannot and choose Milwaukee "Soo enforce, it verdict wishes to portions those the However, it ignore.” those wishes to Milwaukee Motor did not the complain agreement that settlement was faith, entered into in bad nor has Milwaukee Motor raised argument the that the percentages of fault as by determined inequitable the were or in error. Consequently, arguments we find Milwaukee Motor’s on inadequate these an matters basis to sustain Milwaukee Motor’s position appeal. in this cases by cited Milwaukee not support position Motor do the it has v. cause. See Mason F. Lli Luigi & taken in the instant (7th Franco Dal Maschio Fu G.B. 1987), Cir. 832 F.2d (right 389-90 contribution "contingent, to remains subordinate and inchoate” until defendant makes in payments pro excess his rata share of common liability); Verson Major Spring Allsteel Press Co. v. & (contribu Manufacturing Co. 3d 419 principles apply tion did to action that cause of arose effect; before date on contribution went into which rule rejected argument court "contribution cause of judgment action” paid, accrued on date rather than date arose). negligence on which cause of action By Ziarko, reaching agreement a settlement with accept Line was to to Soo able convince Ziarko less money jury. Moreover, than the amount awarded efforts, agreed because of Soo Line’s Ziarko further to extinguish liability of both Soo and Milwaukee Line result, Motor. As Milwaukee relieved of Motor was its liability Ziarko, approximately which amounted to $353,000 jury’s light verdict. In of these under considerations, in we conclude that the trial was when it determined the defendants’ "common error liability” present case was the amount reached view, jury’s our should have verdict. the court common Ziarko which parties’ held was the subject principles should *18 between Ziarko agreed upon amount the settlement Soo Line. and at bar affirmed case court appellate
The for contribu- request Soo Line’s denial of trial court’s aas Line’s status that Soo we conclude tion. Because seeking not bar it from did and wanton tortfeasor willful present in the Milwaukee Motor contribution common the defendants’ cause, we find and because in the amount stated was the in this case Line, we Ziarko and Soo agreement between settlement and judgments courts’ and circuit appellate reverse consistent proceedings matter for further remand the herewith. reversed; court
Appellate
reversed;
circuit
remanded.
cause
in the
part
took no
BILANDIC
CHIEF JUSTICE
this case.
or decision of
consideration
HARRISON, concurring:
JUSTICE
I
majority.
reached
agree
I
with the result
for
justification
I see no
because
separately
write
Li
v. 12 Rothschild’s
in Burke
revisiting our decision
Mart,
Burke was
Inc.
If we precedent adhere to this no one has not), suggested that we should the conclusion is self- A evident. defendant not seek contribution joint tortfeasor where his willful and wanton conduct cases, was intentional. all other where the conduct is unintentional, permitted express is terms of the Contribution Act. go
For the purposes appeal, we need no fur- in Burke is ther. The analysis soundness of this court’s Burke, reaching reexamine By irrelevant. out willful and nothing provide but accomplishes for avoid- opportunity with another defendants wanton plaintiffs ing the full measure their majority If of the are have the members they injured. goal, they should achieving this intent on unfortunate necessary issue least for a case where the wait disposition appeal. NICKELS, dissenting:
JUSTICE opinion respectfully majority’s I from the dissent tortfeasors, finding joint a right of contribution between wanton one is liable for willful and where tortfeasor *20 appor Contribution Act conduct. The Joint Tortfeasor parties on relative fault of the liability tions based the they "subject liability arising out of where are to tort injury person property, the same or the same (West 1992).) (740 100/2(A) wrongful As a death.” ILCS law, duty court of our determine the intent of the legislature ambiguous. a where statute is unclear or Builders, L. Inc. Corp. Hargrove Gerrill v. Jack 128 Ill. 2d 203. ambiguous,
Although agree I that the term "tort” is acknowledge I majority unlike that this has already only as interpreted encompassing statute In Gerrill Corp., negligent this court tortfeasors. considered whether the term "tort” the Joint Tort Act This court encompassed feasor intentional conduct. legislative and deter history reviewed the Act during mined that "statements made the floor debates sponsors both the Senate and House of the bill that was to Act demonstrate that become Contribution right meant contribution the statute was create (Gerrill added.) negligent (Emphasis tortfeasors.” 204-05.) Thus, Corp., 2d at this court found that Ill. right was for intentional tort- there no feasors because the Act applies to only negligent conduct.
In Burke v. 12 Mart, Rothschild’s Liquor Inc. 148 Ill. 2d this court directly considered the rela tionship negligence between and conduct that is willful and wanton. This court held comparative fault principles cannot be applied to reduce the compensatory damages negligent awarded to a plaintiff, where the defendant’s was premised on willful and wanton conduct. In support, this court stated that "[b]ecause of the qualitative difference between simple negligence and willful conduct, and wanton and because willful and wanton degree conduct carries a of opprobrium not found in merely negligent behavior, we hold that a plaintiffs negligence cannot be compared with defen (Burke, dant’s willful and wanton conduct.” 148 Ill. 2d 451-52.) I see no reason to depart reasoning finding a qualitative difference between negligence and willful and wanton prevents conduct application of comparative fault principles.
Unhappy with the application of our precedent, majority finds legislature "intended” to allow defendant found liable for his willful conduct to seek contribution from a joint tort- feasor, long as as the willful and wanton conduct is not Thus, intentional. after acknowledging the confusion surrounding the concept conduct, of willful and wanton *21 majority further muddies by carving the waters it "recklessly into willful and wanton conduct” and "intentionally willful and wanton conduct.” Contribu- tion is then proper where the willful and wanton conduct is not intentional. majority justifies legislative drawing line
by blurring the distinctions between willful and wanton simple negligence. agree conduct and I prece- with our recognizing dent a significant distinction between is and that which merely negligent
conduct that is of sharing characteristics Although willful and wanton. conduct, and willful negligent and both intentional either is distinct from analytically wanton conduct concept. injurious where the
Engaging in intentional conduct the most "substantially to follow is results are certain” contrast, is negligence wrongful of conduct. form harm, risks of conduct that creates unreasonable a mental The rule state. culpable without reference injury an actor transferring the cost an where negligent culpable rests not on the nature who on the wrongdoing, person but belief a bear creates unreasonable risks should the cost resulting injury. distinguished conduct
Negligent should willful because such conduct conduct (W. Keeton, & quasi-mental involves a state. Prosser Burke, (5th 1984); ed. Keeton on Torts 212-13 § 449.) 148 Ill. 2d at Willful and wanton conduct occurs risk, where aware a acts in specific the actor is and disregard conscious of that risk or with indiffer utter not be consequences. ence While the harm follow, "substantially consciously disregard certain” to ing culpable an risk with it a mental el obvious carries (See Burke, simple negligence. ement absent significance 2d at The law this distinc attaches example, punitive tion. For can be lost and immunities damages and can be awarded where conduct is willful consequences wanton. That such drastic attach willful and belies characterization conduct as wanton majority’s assertion such conduct should be compared the same as conduct. forbidding right
I a of contribution recognize wanton, only where conduct is willful but party’s slightly produce injustice. can responsible injury, for an where is not to contribution Similarly, party entitled *22 intentional, his conduct is only but accounts for a small amount of damages. the I note that legislature the has recently legislation introduced application address the of comparative fault principles to willful and wanton I conduct. believe that the solution to this problem lies in amendment to the Joint Tortfeasor Contribution Act legislature, rather than blurring the distinctions between negligent, willful and wanton and intentional conduct.
The majority only acts as a super legislature in creating this dual concept of willful and wanton conduct for purposes Act, of the Contribution but also in acts place of jury in applying the new concept present majority cause. The finds that "[t]he record in present cause does not reflect jury found Soo Line’s willful and wanton misconduct to have been result, committed. As a Soo Line’s miscon duct preclude did not its claim for contribution (161 Milwaukee Motor.” Ill. 2d at I fail understand how present in the case could have considered conduct, the nature of the willful and wanton where the distinction between "intentional willful and wanton conduct” and "reckless willful and wanton conduct” had been pleaded, proved, neither specifi nor cally jury. asked of the I passing, question holding what effect this has on
the concept of willful and general. wanton conduct in Does a municipality immunity lose under the Tort Immunity only Act where there is "intentional wilful and wanton conduct” or when there is "reckless willful and wanton conduct”? Which type of willful and wanton conduct proper imposing punitive damages? Are there now two forms of willful and wanton conduct pleaded separate should be upon counts? Based all reasons, foregoing I respectfully dissent. JUSTICE HEIPLE joins this dissent.