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12/23/87 State Farm Mutual v. Scott C. Mendenhall

December 23, 1987





517 N.E.2d 341, 164 Ill. App. 3d 58, 115 Ill. Dec. 139 1987.IL.1915

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.


JUSTICE LUND delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.


On March 23, 1987, the circuit court of Macon County entered an order of declaratory judgment in favor of plaintiff State Farm Mutual Automobile Insurance Company, an insurance corporation (State Farm). Defendant Scott C. Mendenhall appeals.

Mendenhall was injured in a vehicle accident on August 11, 1984. He had uninsured motor vehicle coverage with State Farm, and the other vehicle in the accident was uninsured. Two questions proposed in State Farm's complaint are relevant to this appeal. These are: (1) whether evidence of defendant's negligence can be introduced to reduce the amount of the award when the uninsured motorist's conduct is alleged to have been wilful and wanton; and (2) whether defendant can recover punitive damages arising from the uninsured motorist's conduct from plaintiff. The trial court answered "yes" to the first question and "no" to the second. We affirm.

Our supreme court adopted the concept of comparative negligence in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, doing away with the concept of contributory negligence. The court held that Illinois was adopting the pure form of comparative negligence.

In Alvis, the court analyzed the history of contributory negligence. It observed that three exceptions had been created to ameliorate the harshness of the application of the contributory negligence doctrine. (85 Ill. 2d at 10, 421 N.E.2d at 890.) These were the wilful and wanton exception, an exception involving violations of statutes, and the last clear chance exception. The court specifically abolished the vestiges of last clear chance. (85 Ill. 2d at 10, 421 N.E.2d at 890.) The court left the resolution of other collateral issues to future cases.

Mendenhall contends that comparative negligence should not apply to wilful and wanton allegations because wilful and wanton are only degrees different than intentional wrongdoings. He asserts wilful and wanton cases should be afforded the same noncomparative status as Illinois Structural Work Act (Act) (Ill. Rev. Stat. 1985, ch. 48, pars. 60 through 69) cases. See Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 485 N.E.2d 4.

The argument is made that in both strict liability and products liability cases, the court has strayed from the application of pure comparative negligence. In Coney v. J. L. G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197, the court held that the defense of comparative fault is applicable to strict products liability cases. However, in discussing what conduct by a plaintiff could be used to reduce the amount of damages, the court stated:

"Following the Restatement, this court, in Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, adopted misuse and assumption of the risk as complete defenses to a strict products liability action. But, at the same time, it was said there that '[contributory] negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.' (45 Ill. 2d 418, 423.) We adhere to this statement. We believe that a consumer's unobservant, inattentive, ignorant, or awkward failure to discover or guard against a defect should not be compared as a damage-reducing factor. As the court in West v. Caterpillar Tractor Co. (Fla. 1976), 336 So. 2d 80, 92, said: 'The consumer or user is entitled to believe that the product will do the job for which it was built.'

However, the defenses of misuse and assumption of the risk will no longer bar recovery. Instead, such misconduct will be compared in the apportionment of damages. Specifically, we hold: Once defendant's liability is established, and where both the defective product and plaintiff's misconduct contribute to cause the damages, the comparative fault principle will operate to reduce plaintiff's recovery by that amount which the trier of fact finds him at fault." 97 Ill. 2d at 119, 454 N.E.2d at 203-04.

Mendenhall argues Coney stands for the proposition that in strict liability and products liability cases, the simple negligence of the plaintiff cannot be used as a damage-reducing factor. However, that conduct, which previously acted as a complete bar (i.e., misuse and ...

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