Appeal from the Circuit Court of St. Clair County; the Hon.
James K. Donovan, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Plaintiff, Robert Pipes, brought an action against American Logging Tool Corporation (American) for injuries he suffered as a result of the use of an allegedly defective load binder manufactured and distributed by American. A contribution claim was brought by American against John Entwistle and appellant Jerry Nelson. The case proceeded to trial. At the close of the evidence but before the case was submitted to a jury, American settled with the plaintiff for $1.3 million. The contribution claim against Entwistle and Nelson was decided by the jury, who found in favor of Entwistle but assessed appellant Nelson's fault at 10%. Nelson appeals from a judgment against him for $130,000.
The evidence adduced at trial showed that Pipes was injured in the court of his employment with Clyde Dial Construction Company (also a third-party defendant who was granted a directed verdict). Nelson and Entwistle, both employed by Nelson's construction company, were working in the Clyde Dial yard at the time of the accident. They were loading a gasoline storage tank onto a lowboy truck, utilizing American's load binder, along with an attached "cheater pipe," to secure the tank. During the loading operation, Pipes helped Nelson and Entwistle in locking down the load binder. Somehow, the handle was released and the pipe struck Pipes in the face, resulting in injuries causing total blindness.
Pipes charged American with negligence and strict liability. American's third-party complaint alleged negligence on the part of Entwistle, Nelson, and Pipes' employer, specifically averring that Nelson and Entwistle committed various negligent acts in using the load binder, including failing to secure the attached pipe and exerting excessive force on the load binder in their loading operation. Nelson and Entwistle denied any negligence and filed several affirmative defenses, two of which form the basis of this appeal.
First, the third-party defendants claimed that American marketed an unreasonably dangerous product and was therefore strictly and solely liable for injuries resulting from its use, and second, the defendants alleged that American's misconduct was wilful and wanton. In response to special interrogatories submitted by the defendants, which addressed each of these defenses, the jury found affirmatively on both issues. Nelson argues on appeal that the finding against American on the affirmative defenses destroys its right to contribution.
The Contribution Act (Ill. Rev. Stat. 1983, ch. 70, par. 301) provides that "where 2 or more persons are subject to liability in tort arising out of the same injury * * * there is a right of contribution among them * * *." Nelson's brief characterizes the contribution provision as a codification of the principles set forth in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 374 N.E.2d 437, and urges that his position be analyzed and decided in accordance with the policies advanced in the decision.
In sanctioning a right of contribution, the court in Skinner recognized that an employer's misuse of a product or his assumption of the risk of using the product should afford the manufacturer a right to contribution based on the relative degree to which the product and the misuse or assumption contributed to cause the injuries sustained. Appellant would persuade us that the court's ruling in Skinner bars American from asserting that merely negligent acts can form the basis for its contribution claim.
To reinforce his argument, Nelson has cited Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, 454 N.E.2d 197, and Simpson v. General Motors Corp. (1983), 118 Ill. App.3d 479, 455 N.E.2d 137, aff'd (1985), 108 Ill.2d 146, 483 N.E.2d 1.) Neither case addressed the rule of contribution, but both analyzed and ruled upon the type of conduct on the part of a plaintiff which could be compared to reduce the damages of a manufacturer in a strict products liability action. The analyses contained in those cases are advanced here as helpful to our disposition of the issues before us.
In Coney, the court's resolution of whether comparative fault principles should apply to reduce recovery in a products liability action was based upon the same equitable concerns articulated in Skinner. In each instance, the supreme court firmly stated that if the misconduct of a plaintiff is a causative factor of the injury sustained, then his or her damages should be reduced proportionately.
In Simpson, the court affirmed the reduction of a damage award when the jury found that the plaintiff's decedent had assumed the risk of using defendant's defective earth scraper, and apportioned decedent's fault at 5%. Citing Coney, the court rejected defendant's argument that the finding that the decedent had assumed the risk required that judgment be entered in favor of the defendant, and the defendant's argument that comparative negligence, in addition to misuse and assumption of risk, with the exception of inadvertent failure to discover a defect, should also apply to reduce plaintiff's damages. The appellate court's decision was recently affirmed (Simpson v. General Motors Corp. (1985), 108 Ill.2d 146, 483 N.E.2d 1), when the supreme court held that ordinary contributory negligence of a plaintiff should not be considered in applying the doctrine of comparative fault.
The policies advanced in the cited cases simply do not support Nelson's argument. Here, American claimed that Nelson and Entwistle:
(a) failed to use reasonable care in the operation of the load binder;
(b) failed to properly secure the pipe to the handle of the load binder;
(c) failed to keep proper lookout for persons around or near the area when using the load ...