No. 59699 Appeal from the Appellate Court for the Fourth
District; heard in that court on appeal from the Circuit Court of
Macon County, the Hon. Jerry L. Patton, Judge, presiding.
No. 60021 Appeal from the Appellate Court for the Fourth
District; heard in that court on appeal from the Circuit Court of
Macon County, the Hon. James A. Hendrian, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Robert D. Owen, Linda M. Castleman, and Robert M. Owen, of Owen, Roberts & Susler, Ltd., of Decatur, for appellant.
Richard F. Record, Jr., of Craig & Craig, of Mattoon (John O. Hayes and Kathleen R. Gibson, of Moline, of counsel), for appellees.
This appeal involves a claim for damages resulting from an accident which caused the death of Rodney Auton, an employee of Merrill's Contractors, Inc. The deceased was working on a road improvement project in Decatur. He had been assigned the task of checking the grade of a road in conjunction with another workman, Keith Spencer (Spencer). Spencer's job was to operate a road scraper manufactured by John Deere & Company and Deere & Company, related corporations (Deere). While Auton was checking the grade of the road, Spencer backed up the scraper, struck Auton and crushed him beneath the machine.
Judith Auton (Auton), the plaintiff, as administrator of the estate of her husband, filed suit in the circuit court of Macon County against, among others, Deere, Spencer and Logan Landfill, Inc., the owner of the scraper and employer of Spencer. Auton alleged that Spencer and Logan Landfill were negligent; her action against Deere was based on strict products liability. Deere filed a third-party complaint seeking contribution from Logan Landfill, Spencer and Merrill's Contractors. These three parties settled the negligence count with Auton, and an order was entered dismissing Deere's third-party action against them, which dismissal Deere appealed. A jury returned a verdict for Deere in the principal action after receiving instructions which allowed such a verdict on the products liability count if the deceased had assumed the risk of working on or near the Deere equipment.
On appeal, the judgment in favor of Deere was affirmed (121 Ill. App.3d 724), and Deere's appeal in the third-party action was dismissed as moot. Auton's argument in the appellate court was that our decision in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, which applied comparative fault to products liability claims, required that the appellate court reverse the circuit court and order a new trial. The appellate court affirmed the judgment for the defendants because it concluded that Coney applied only prospectively and because Auton's trial was completed prior to our decision in Coney. We allowed Auton's petition for leave to appeal (87 Ill.2d R. 315(a)) in which she contended only that comparative fault should have been applied in the trial of the case. Because of our resolution of this issue, we need not determine the additional issues raised by Deere's petition for leave to appeal, which was also allowed and consolidated with the Auton appeal. That petition was designed to preserve any right it might have to contribution from the third-party defendants.
Auton contends that assumption of risk should not act as a total bar to the action against Deere because it was tried after we filed our decision in Alvis v. Ribar (1981), 85 Ill.2d 1. She maintains that the ruling in Alvis foreshadowed the result reached in Coney, where this court held that the affirmative defense of assumption of risk no longer acted as a total bar to recovery by a plaintiff whose action was grounded in products liability. Auton argues that if she is correct the decision in Coney should be applied retroactively, as such a decision would not conflict with any legitimate reliance interests of the defendants. In view of the manner in which we resolve Auton's appeal, it is unnecessary to decide whether Coney is to be applied only prospectively.
Deere maintains that Auton cannot now be allowed to argue that comparative fault should apply because of her previous inconsistent position in the circuit court. It points to its attempts to amend its answer to the plaintiff's complaint when it moved to plead "comparative negligence" so as to allow that the "appropriate reduction in the amount of recovery be made to reflect the gross negligence and legal culpability of the Plaintiff's decedent for his own death and alleged resulting pecuniary loss arising therefrom." Deere contends that its motion was objected to by the plaintiff during an extended oral argument, and that the plaintiff's position was adopted by the circuit court.
It is fundamental to our adversarial process that a party waives his right to complain of an error where to do so is inconsistent with the position taken by the party in an earlier court proceeding. "A party cannot complain of an error which he induced the court to make or to which he consented. [Citations.]" (McKinnie v. Lane (1907), 230 Ill. 544, 548; see also R.B. Hayward Co. v. Lundoff-Bicknell Co. (1937), 365 Ill. 537, 541.) "The rationale of this rule is obvious. It would be manifestly unfair to allow one party a second trial upon the basis of error which he injected into the proceedings." (Ervin v. Sears, Roebuck & Co. (1976), 65 Ill.2d 140, 144.) Deere's judgment must be affirmed, then, if Auton's position during the trial of her case, which was adopted by the trial judge, was inconsistent with the one she now takes, which is that the decedent's assumption of risk should have been presented to the jury as a damage-reducing factor.
Auton contends that her position at trial was not inconsistent with her present assertion that comparative fault should apply. She urges that Deere's first proposed amendment to its answer, which called for application of comparative negligence, was too broad. Deere's first motion to amend alleged:
"[T]he undersigned should be allowed to plead comparative negligence of the Plaintiff's decedent, which comparative negligence indeed was the sole proximate cause of the death of Plaintiff's decedent and the alleged resulting pecuniary loss to Plaintiff's decedent's next of kin, as an alternative affirmative defense to the denials of liability by the undersigned so as to assure that in the event the Jury or factfinder or Court herein were to assess liability against the undersigned and in favor of the Plaintiff, that appropriate reduction in the amount of recovery be made to reflect the gross negligence and legal culpability of Plaintiff's decedent for his own death and alleged resulting pecuniary loss arising therefrom."
She argues that this amendment would have allowed any fault on the part of the decedent to reduce the award to the plaintiff, but this specific argument was not advanced to the trial judge as a reason for rejecting the proposed amendment. She also points to her numerous objections before, during and after trial to Deere's second amended answer, which set ...