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Coney v. J.l.g. Industries





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Robert E. Hunt, Judge, presiding.


Clifford M. Jasper died as a result of injuries sustained on January 24, 1978, while operating a hydraulic aerial work platform manufactured by defendant, J.L.G. Industries, Inc. Plaintiff, Jack A. Coney, administrator of Jasper's estate, filed a two-count complaint in the circuit court of Peoria County under the wrongful death and survival acts (Ill. Rev. Stat. 1977, ch. 70, par. 1 et seq., ch. 110 1/2, par. 27-6) based on a strict products liability theory. Defendant filed two affirmative defenses. The first asserted that Jasper was guilty of comparative negligence or fault in his operation of the platform. The second contended that Jasper's employer, V. Jobst & Sons, Inc., was also guilty of comparative negligence in failing to instruct and train Jasper on the operation of the platform and by failing to provide a "groundman." In these defenses, defendant requested that its fault, if any, be compared to the total fault of all parties and any judgment against defendant reflect only its percentage of the overall liability, i.e., that defendant not be held jointly and severally liable.

On plaintiff's motion, the trial court struck the defenses, but it certified three questions for appeal pursuant to Supreme Court Rule 308 (73 Ill.2d R. 308). In an unpublished order, the appellate court denied defendant's application for leave to appeal, indicating the short record supplied did not provide sufficient facts to allow proper consideration of the policy questions involved. We allowed defendant leave to appeal.

The three certified questions are:

"Whether the doctrine of comparative negligence or fault is applicable to actions or claims seeking recovery under products liability or strict liability in tort theories?

Whether the doctrine of comparative negligence or fault eliminates joint and several liability?

Whether the retention of joint and several liability in a system of comparative negligence or fault denies defendants equal protection of the laws in violation of U.S. Const. Amend. XIV, § 1 and Ill. Const. 1970, § 2 as to causes of action arising on or after [sic] March 1, 1978. (Ill. Rev. Stat. 1979, ch. 70, § 301 et seq.)?"



In Suvada v. White Motor Co. (1965), 32 Ill.2d 612, this court eliminated the need for privity of contract or proving the negligence of the manufacturer and instead imposed strict liability in tort as set out in Restatement (Second) of Torts section 402A (1965):

"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."

In adopting strict liability in tort, this court said:

"[P]ublic interest in human life and health, the invitations and solicitations to purchase the product and the justice of imposing the loss on the one creating the risk and reaping the profit are present and as compelling in cases involving motor vehicles and other products, where the defective condition makes them unreasonably dangerous to the user, as they are in food cases." 32 Ill.2d 612, 619.

But imposition of strict liability was not meant to make the manufacturer an absolute insurer. (Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill.2d 77, 85; Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623.) The plaintiff must prove that the injury or damage resulted from the condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time the product left the manufacturer's control. (Woodill v. Parke Davis & Co. (1980), 79 Ill.2d 26, 31; Rios v. Niagara Machine & Tool Works (1974), 59 Ill.2d 79, 83; Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623.) Moreover, the court has heretofore followed the reasoning of the Restatement concerning the available defenses to a strict liability action. It has been held that a manufacturer can assert a user's negligence as a complete bar to recovery when it rises to the level of misuse of the product, or assumption of the risk; but contributory negligence is not a defense. Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill.2d 77, 81; Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418; Restatement (Second) of Torts sec. 402A, comment n (1965).

Traditionally in negligence actions, however, any contributory negligence by the plaintiff was an absolute defense which barred recovery. (Mueller v. Sangamo Construction Co. (1975), 61 Ill.2d 441, 446; Maki v. Frelk (1968), 40 Ill.2d 193, 195.) In response to the harshness of this doctrine, the court adopted comparative negligence in Alvis v. Ribar (1981), 85 Ill.2d 1, and indicated that this concept produced "a more just and socially desirable distribution of loss" and was "demanded by today's society." (85 Ill.2d 1, 17.) In Alvis, we adopted the "pure" form of comparative negligence, reasoning that it "is the only system which truly apportions damages according to the relative fault of the parties and, thus, achieves total justice." 85 Ill.2d 1, 27.

In the instant case, defendant argues that Alvis requires the adoption of a comparative fault system in strict products liability cases. Defendant maintains "total justice" can only be achieved where the relative fault of all the parties is considered in apportioning damages. To illustrate its argument, defendant points to the anomalous situation where, in a single case with alternate counts of negligence and strict liability, the identical conduct by the plaintiff which amounts to an assumption of the risk will completely bar recovery in the strict liability count, yet, as a result of Alvis, will only reduce his award under the negligence count. Moreover, if the plaintiff is only contributorily negligent, he recovers all his damages under strict liability, but his recovery is diminished under the negligence count. Defendant argues that common sense mandates an approach which is consistent in its treatment of all the parties to an action, whether founded on common law negligence or strict liability.

We are not the first to consider the impact of comparative negligence upon strict liability. Some jurisdictions have declined to apply comparative negligence or fault principles in strict liability actions:

Colorado Kinard v. Coats Co. (1976), 37 Colo. App. 555, 553 P.2d 835; but see Colo. Rev. Stat. sec. 13-21-406 (Supp. 1982), as interpreted in Welch v. F.R. Stokes, Inc. (D. Colo. 1983), 555 F. Supp. 1054.

Nebraska Melia v. Ford Motor Co. (8th Cir. 1976), 534 F.2d 795 (applying Nebraska law).

Oklahoma Kirkland v. General Motors Corp. (Okla. 1974), 521 P.2d 1353 (comparative negligence statute not applicable to products liability).

Rhode Island Roy v. Star Chopper Co. (1st Cir. 1978), 584 F.2d 1124, cert. denied (1979), 440 U.S. 916, 59 L.Ed.2d 466, 99 S.Ct. 1234 (applying Rhode Island law).

South Dakota Smith v. Smith (S.D. 1979), 278 N.W.2d 155.

The vast majority, though, have found comparative negligence theory applicable in strict liability cases.

Alaska Butaud v. Suburban Marine & Sporting Goods, Inc. (Alaska 1976), 555 P.2d 42.

Arkansas Ark. Stat. Ann. secs. 27-1763 to 27-1765 (1979).

California Daly v. General Motors Corp. (1978), 20 Cal.3d 725, 575 P.2d ...

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