Appeal from the Circuit Court of Cook County; the Hon. Brian
L. Crowe, Judge, presiding.
PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 7, 1983.
Plaintiff, Kathy Simpson, brought an action for wrongful death predicated on a strict products liability theory against defendants General Motors (GM) and Midco Sales & Service (Midco). Plaintiff's decedent, Leland Simpson, died as a result of injuries sustained while operating a product manufactured by GM and distributed by Midco. Defendants pleaded assumption of risk. After trial, in answer to a special interrogatory, the jury found that decedent "was guilty of assumption of risk." Based on a "comparative fault" instruction, the jury also attributed 5% of the total fault to plaintiff. The jury returned a verdict in favor of plaintiff for $875,000, which the trial court reduced to $831,250 based on the jury's comparative fault findings. Additionally, a directed verdict was entered in Midco's favor on its counterclaim for indemnity against GM. GM and Midco appeal from the judgment entered in favor of plaintiff, and GM also appeals from the directed verdict entered against it.
The pertinent facts are as follows. On February 3, 1976, plaintiff's decedent was killed when the Terex TS-24 earth scraper machine that he was operating overturned in the course of his employment at a stone quarry. The earth scraper was designed and manufactured by defendant GM and was sold to decedent's employer by defendant Midco. At trial, plaintiff introduced expert testimony that the earth scraper was unreasonably dangerous because it lacked an effective roll-over protective structure.
GM filed two separate affirmative defenses. The first defense was based on assumption of risk and the second was predicated on the contributory negligence of plaintiff's decedent. The trial court ruled that neither of the affirmative defenses were proper, and refused to give GM's instructions setting forth assumption of risk as a complete bar to plaintiff's claim and its instructions on contributory negligence. Instead, the court instructed the jury on the subjective elements of the assumption of risk defense and gave two special interrogatories to the jury. The first interrogatory asked whether plaintiff's decedent was guilty of assumption of risk. The jury answered "yes" to this first interrogatory. The trial court further instructed the jury that if they answered in the affirmative to the first special interrogatory, as they did, they were to proceed to answer a second interrogatory which provided as follows:
"Assuming that 100% represents the combined fault of the plaintiff's decedent and of the defendant that contributed as a proximate cause to plaintiff's decedent's death, what proportion of such combined fault is attributable to the plaintiff's decedent on the one hand and what proportion is attributable to the defendant on the other hand?
Answer: `to plaintiff' ________% `to defendant' __________ %."
The jury answered this second interrogatory by attributing 5% of the total fault to plaintiff's decedent and 95% of the fault to defendants. It subsequently returned a total damage verdict of $875,000, which the trial court reduced to $831,250 pursuant to the fault allocations made by the jury.
On appeal, GM and Midco argue that judgment be entered in their favor as a matter of law based on the jury's answer to the special interrogatory finding decedent guilty of assumption of risk.
• 1 We must reject defendants' first argument in view of the recent holding by the supreme court in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104. Prior to Coney, misuse and assumption of risk by the plaintiff were total defenses to recovery in strict products liability actions. (Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305.) Coney, however, extended comparative fault principles to strict products liability actions, holding that the defenses of misuse and assumption of risk no longer preclude recovery in such actions. The court held that once the defendant's liability is established, and where the plaintiff's misconduct contributes to cause the damages, the comparative fault doctrine will operate to reduce plaintiff's recovery by that amount which the trier of fact finds him at fault. Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, 119.
Accordingly, in the instant case the trial judge was correct in apportioning damages attributed to the assumption of risk by the plaintiff.
We next consider defendants' contention that the trial court erred in failing to submit the question of plaintiff's contributory negligence to the jury. Defendants allege that if the comparative fault principle applies in a strict products liability action, it should apply to all aspects of plaintiff's decedent's culpability, including his alleged contributory negligence. We disagree.
• 2 Initially, we note that after reviewing the record we find no evidence indicating any contributory negligence on the part of plaintiff's decedent, and the trial court therefore properly refused to instruct the jury on that issue. Even assuming, however, such evidence existed, we nevertheless find no error on the part of the trial court.
In Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305, the supreme court held that the contributory negligence of a plaintiff will not be available as a defense in a strict products ...