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Simpson v. General Motors Corp.





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Brian L. Crowe, Judge, presiding.


Rehearing denied September 27, 1985.

General Motors Corporation (hereafter defendant) and Midco Sales & Service (hereafter Midco) appealed from the judgment of the circuit court of Cook County entered upon a jury verdict in favor of plaintiff, Kathy Simpson, administrator of the estate of Leland Simpson. The appellate court affirmed (118 Ill. App.3d 479), and we allowed defendant's petition for leave to appeal (94 Ill.2d R. 315). The facts are adequately set forth in the opinion of the appellate court and will be stated here only to the extent necessary to discuss the issues.

Plaintiff's decedent, Leland Simpson, died as the result of injuries suffered while he was operating a Terex TS24 earth scraper which overturned on an icy hill. The earth scraper was designed and manufactured by defendant and was sold to decedent's employer, Charleston Stone Company, by Midco. At trial, plaintiff introduced expert testimony that the earth scraper was unreasonably dangerous because it lacked a rollover protective structure. The evidence also showed that decedent was aware of the risk created by the absence of the roll bar. The circuit court held that defendant's affirmative defenses of assumption of risk and comparative negligence were not applicable and refused defendant's instructions setting forth assumption of risk as a complete bar to plaintiff's claim and its instructions on comparative negligence. The jury returned a verdict for plaintiff and against both defendant and Midco on the issue of liability and, in response to special interrogatories, found that plaintiff's decedent was guilty of assumption of the risk, attributing 95% of the fault to defendant and Midco jointly and 5% to decedent. The jury assessed damages in the amount of $875,000 which the circuit court reduced to $831,250 based on the comparative fault allocation made by the jury.

Defendant and Midco had filed cross-claims for indemnity against each other, and at the conclusion of the plaintiff's case the circuit court directed a verdict in favor of Midco and against defendant on the cross-claims.

The appellate court affirmed the judgment. It held that Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, "extended comparative fault principles to strict products liability actions" (118 Ill. App.3d 479, 481), and that the defenses of misuse and assumption of risk no longer preclude recovery (Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418), but "operate to reduce plaintiff's recovery by that amount which the trier of fact finds him at fault" (118 Ill. App.3d 479, 481). The appellate court rejected defendant's contention that comparative fault should apply to all aspects of the plaintiff's decedent's culpability, including his alleged contributory negligence.

Defendant contends that limiting consideration of plaintiff's decedent's comparative fault to the decedent's misuse of the product and assumption of the risk, thus eliminating from consideration comparative negligence, defeats the purpose of the comparative fault doctrine and produces inconsistent and inequitable results. It argues that under Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, all of plaintiff's decedent's contributory negligence, except failure to discover the defect, should serve to reduce damages in an action based on strict tort liability and that the application of comparative negligence does not conflict with any principle of strict liability in tort.

Amici curiae, the Motor Vehicle Manufacturers Association and the Product Liability Advisory Council, argue that applying comparative fault to strict product liability cases advances the fundamental goals of tort law, that comparative fault "works best in its absolute form and should be applied to all of a product user's conduct," and that the proper application of comparative fault "permits the courts to discard the outmoded and artificial distinctions perpetuated by section 402(a) of the Restatement." They contend that the judgment should be reversed and the cause remanded for submission to a jury with instructions to apply comparative negligence.

Plaintiff contends that in Coney this court expressly declined to adopt the position espoused here by defendants and amici. Plaintiff notes that in Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, the court defined three types of misconduct which other jurisdictions have generically denominated "contributory negligence" and distinguished contributory negligence from assumption of the risk and misuse of the product. She argues that contributory negligence of a consumer/user, as distinguished from assumption of the risk and misuse of the product, is not a defense in a strict liability action and therefore, when comparative fault is considered, is not properly a damage-reducing factor.

In Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, it was necessary to decide whether contributory negligence consisting of the failure to discover the defect in the product, or to guard against the possibility of its existence, was a defense to the action. (45 Ill.2d 418, 423.) The court defined contributory negligence, misuse, and assumption of the risk, stating that "[plaintiffs'] recovery-barring conduct, while given different labels, is ofttimes treated within the general concept of `contributory negligence.' [Citations.]" (45 Ill.2d 418, 425.) The court noted that plaintiffs who misuse a product (i.e., use it for a purpose neither intended nor foreseeable by the defendant) and plaintiffs who assume the risk (i.e., proceed in disregard of a known dangerous condition) possess a "greater degree of culpability" than plaintiffs who are guilty of simple contributory negligence (i.e., lack of due care for one's own safety as measured by the objective reasonable-man standard). (45 Ill.2d 418, 425-26.) The late Justice Dooley, characterizing the distinction, said:

"Contributory negligence is fault by the plaintiff consisting of his departure from the standard of the reasonable man. It comes into play when there is a question whether the plaintiff exercised the degree of care an ordinarily prudent person would have exercised under similar circumstances. By contrast, assumption of risk relates to a plaintiff's intentional exposure of himself to a known danger." 1 J. Dooley, Modern Tort Law sec. 4.04, at 94 (1982).

This appeal presents the question whether contributory negligence, as defined in Williams, should be compared in allocating fault in a strict products liability action. Simply stated, defendant's argument is that (1) the best argument against considering a product user's negligence in failing to discover or inspect for defects was the inequity of the contributory negligence system; (2) the adoption of comparative fault has moderated the common law's harsh rule precluding recovery to a plaintiff who may be only minimally negligent; (3) therefore, because of the elimination of these harsh results, we should impose upon plaintiff the duty of due care for his own safety and liability for that proportion of his injury proximately caused by a breach of this duty.

The decision of the issue presented requires consideration of the reasons for the adoption of the doctrine of comparative fault. In Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, the court recognized the right of contribution as between tort-feasors responsible for the plaintiff's injury, holding that it was inequitable to place the entire burden of the loss on a single defendant when another defendant was also at fault.

In Alvis v. Ribar (1981), 85 Ill.2d 1, it was held that comparative negligence should be applied in place of contributory negligence in order to avoid the inequitable results which often occurred in negligence actions, where contributory negligence, even if fairly minor in nature, precluded recovery against a negligent defendant. The rationale of comparison of fault for the purpose of allocation of damages is that conduct which previously would have barred the plaintiff's claim serves instead to reduce the recovery so that the plaintiff bears the burden of his loss in direct proportion to his fault. (Alvis v. Ribar (1981), 85 Ill.2d 1.) In Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, the court extended comparative negligence principles to strict liability actions, holding that ...

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