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06/16/94 RONALD J. ZIARKO v. SOO LINE RAILROAD

June 16, 1994

RONALD J. ZIARKO
v.
SOO LINE RAILROAD, APPELLANT (MILWAUKEE MOTOR TRANSPORTATION COMPANY, APPELLEE).



McMORROW, Harrison, Nickels, Heiple

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

In this appeal, we decide that the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 1992)) permits a defendant found guilty of willful and wanton conduct to seek contribution from a defendant found guilty of ordinary negligence, if the willful and wanton acts did not amount to intentionally tortious misconduct. In addition, we conclude that "common liability" under the Contribution Act is the amount agreed upon in a post-judgment settlement betweenthe plaintiff and one of the defendants, where the settlement agreement released the plaintiff's claims against both defendant tortfeasors, and there is no argument that the settlement agreement was entered into in bad faith.

BACKGROUND

Plaintiff Ronald Ziarko was injured in May 1982 in a railroad yard owned by defendant Soo Line Railroad Company (Soo Line). At the time of the accident, Ziarko, who was employed as a truck driver, had stopped his truck in an area of the railroad yard operated by Milwaukee Motor Transportation Company (Milwaukee Motor). Shortly after Ziarko alighted from his truck, the truck was struck by a Soo Line train. This collision caused the truck to hit Ziarko, inflicting substantial injuries.

Ziarko filed suit against Soo Line and Milwaukee Motor. As ultimately amended, the complaint alleged that Soo Line had been guilty of negligent and willful and wanton misconduct and that Milwaukee Motor had been guilty of ordinary negligence. Soo Line and Milwaukee Motor filed cross-counterclaims for contribution under the Contribution Act (740 ILCS 100/2 (West 1992)).

A jury trial was held and a verdict returned for Ziarko in the amount of approximately $7.1 million. The jury determined that Ziarko's contributory negligence amounted to 3%. In addition, the jury found both defendants liable, and assessed Soo Line's fault at 95% and Milwaukee Motor's fault at 5%. In response to a special interrogatory, the jury indicated that it found Soo Line's misconduct had been willful and wanton. The trial court refused to reduce Ziarko's damages by the percentage of his contributory negligence, relying on this court's decision in Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 170 Ill. Dec. 633, 593 N.E.2d 522 (comparative faultprinciples inapplicable to contributorily negligent plaintiff where defendant found willful and wanton). The trial court entered judgment according to the percentages of the defendants' liability as apportioned by the jury.

Both Soo Line and Milwaukee Motor appealed from the trial court's judgment. During the appeal, Soo Line and Ziarko entered into a settlement agreement. In this agreement, Soo Line agreed to tender to Ziarko $6.65 million. In exchange, Ziarko agreed to release all of his claims against both defendants.

In view of the settlement agreement between Ziarko and Soo Line, the appellate court entered an order that remanded the matter to the circuit court. Upon remand, the trial court determined that the settlement agreement did not obligate Soo Line to pay more than its pro rata share of the defendants' common liability to Ziarko, as determined in the jury's verdict. As a result, the trial court denied Soo Line's request for contribution from Milwaukee Motor. The appellate court affirmed the trial court's determination (234 Ill. App. 3d 860). This court granted Soo Line's petition for leave to appeal (134 Ill. 2d R. 315). Plaintiff Ziarko is not a party to the instant appeal. The case before this court concerns only the contribution claims of defendants Soo Line and Milwaukee Motor.

Contribution Between a Willful and Wanton Tortfeasor and a Negligent Tortfeasor

The parties' first argument pertains to whether Soo Line is permitted to seek contribution from Milwaukee Motor under the Contribution Act, in light of the jury's determination that Soo Line was guilty of willful and wanton conduct and Milwaukee Motor was guilty only of negligent conduct. Milwaukee Motor contends that neither the provisions of the Contribution Act nor our common law jurisprudence authorizes a willful andwanton tortfeasor to seek contribution from a negligent tortfeasor.

Our Contribution Act is intended to apportion liability based upon the relative fault of the parties, and applies when the parties are "subject to liability in tort arising out of the same injury to person or property, or the same wrongful death." (740 ILCS 100/2(a) (West 1992).) Although the Act does not define the scope of the terms "subject to liability in tort," this court has held that the phrase is intended to exclude intentionally tortious conduct. In Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 131 Ill. Dec. 155, 538 N.E.2d 530, this court observed that the Contribution Act was adopted to codify the decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 15 Ill. Dec. 829, 374 N.E.2d 437, in which the court adopted the rule that a strict product liability defendant could seek contribution from a negligent defendant. ( Skinner, 70 Ill. 2d at 16.) This court's decision in Skinner did not abolish the view, originally announced in Merryweather v. Nixan (K.B. 1799), 101 Eng. Rep. 1337, and subsequently adopted in most States of this country, including Illinois, that contribution is not permissible between intentional tortfeasors. ( Gerill, 128 Ill. 2d at 203-04.) The rule prohibiting contribution among intentional tortfeasors was founded on the notion that an intentional tortfeasor, whose liability has arisen "entirely [from the tortfeasor's] own deliberate wrong," should not be afforded the equitable benefits of shifting a portion of that liability to another tortfeasor under principles of contribution. (W. Keeton, Prosser & Keeton on Torts § 50, at 336 (5th ed. 1984); see also Neuman v. City of Chicago (1984), 110 Ill. App. 3d 907, 910, 66 Ill. Dec. 700, 443 N.E.2d 626.) The legislative history of the Contribution Act reveals that the General Assembly's adoption of the Act was not intended to alter or modify the common law rule which did not permit contribution among intentional tortfeasors. ( Gerill, 128 Ill. 2d at 204-05.) For these reasons, this court has held that intentional tortfeasors are not entitled to contribution under the Contribution Act. Gerill, 128 Ill. 2d at 206.

The question presented for our determination in the present appeal is whether a defendant found guilty of willful and wanton conduct should be precluded from obtaining contribution from a defendant found guilty of ordinary negligence. (See Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 103 Ill. Dec. 513, 501 N.E.2d 830 (barred contribution for willful and wanton tortfeasor); Pipes v. American Logging Tool Corp. (1985), 139 Ill. App. 3d 269, 93 Ill. Dec. 757, 487 N.E.2d 424 (permitted contribution for willful and wanton tortfeasor); Neuman v. City of Chicago (1982), 110 Ill. App. 3d 907, 66 Ill. Dec. 700, 443 N.E.2d 626 (acknowledged viability of equitable apportionment for willful and wanton tortfeasor whose conduct fell short of intentional behavior); McQueen v. Shelby County (C.D. Ill. 1990), 730 F. Supp. 1449 (followed ruling in Bresland).) To resolve this question, we look to the similarities, and dissimilarities, between negligent, willful and wanton, and intentional conduct.

Our jurisprudence has defined negligent conduct as "a failure to exercise the care that a reasonable man of ordinary prudence would exercise to guard against any reasonably foreseeable, unreasonable risks of harm which might flow from his conduct." ( Beccue v. Rockford Park District (1968), 94 Ill. App. 2d 179, 190, 236 N.E.2d 105; see also Illinois Pattern Jury Instructions, Civil, No. 10.02 (3d ed. 1989); No. 10.03 (3d ed. 1993) (hereinafter IPI Civil 3d).) Generally, "tort intent means * * * a desire to cause consequences or at least [a] substantially certain belief that the consequences will result. [Citations.]" 1 M. Polelle & B. Ottley, Illinois Tort Law § 1.01, at 1-3 n.8 (2d ed. 1993); see also Aetna Casualty & Surety Co. v. Freyer (1980), 89 Ill. App. 3d 617, 620, 44 Ill. Dec. 791, 411 N.E.2d 1157.

In contrast, this court has offered the following definition of willful and wanton acts:

"A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care." Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293.

See also IPI Civil 3d No. 14.01.

Milwaukee Motor argues that willful and wanton acts are considered similar to conduct that is intentionally tortious, and that as a result contribution principles cannot apply where one defendant is found guilty of willful and wanton conduct and another defendant is found guilty of ordinary negligence. To support this argument, Milwaukee Motor relies upon this court's reasoning in Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 170 Ill. Dec. 633, 593 N.E.2d 522. In Burke, this court concluded that comparative fault principles cannot be applied to reduce the compensatory damages awarded to a negligent plaintiff for the liability of a willful and wanton defendant. To reach this Conclusion, the Burke court found a "qualitative difference" between acts of negligence and conduct that is willful and wanton. Burke, 148 Ill. 2d at 450.

The Burke court's perception of a "qualitative difference" between negligent and willful and wanton conduct was founded on the premise that willful and wanton conduct "'"approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it."'" ( Burke, 148 Ill. 2d at 448, quoting Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, 416, 150 Ill. Dec. 510, 563 N.E.2d 397, quoting Bresland, 150 Ill. App. 3d at 457.) However, decisions in this Statehave not limited willful and wantonness to instances where the conduct was intentional. Acts have been identified as willful and wanton where the defendant's conduct was intentional, but have also been found to arise where the defendant's actions were merely reckless.

It is well established that willful and wanton acts may be found where the tortious conduct was intentional. Willful and wanton conduct includes that which was performed intentionally. (See, e.g., Schneiderman, 394 Ill. at 583.) However, unlike intentionally tortious behavior, conduct characterized as willful and wanton may be proven where the acts have been less than intentional -- i.e., where there has been "a failure, after knowledge of impending danger, to exercise ordinary care to prevent" the danger, or a "failure to discover the danger through * * * carelessness when it could have been discovered by the exercise of ordinary care." ( Schneiderman, 394 Ill. at 583.) There is no separate and independent tort of "willful and wanton" misconduct. See Morrow v. L.A. Goldschmidt Associates, Inc. (1986), 112 Ill. 2d 87, 96 Ill. Dec. 939, 492 N.E.2d 181; Mucklow v. John Marshall Law School (1988), 176 Ill. App. 3d 886, 895, 126 Ill. Dec. 314, 531 N.E.2d 941.

Our jurisprudence has not been wholly consistent on the degree to which negligent acts are considered similar to willful and wanton behavior. (See Wassell v. Adams (7th Cir. 1989), 865 F.2d 849; Davis v. United States (7th Cir. 1983), 716 F.2d 418.) For example, it has been remarked that willful and wanton acts bear greater resemblance to intentionally tortious misconduct. ( Bresland, 150 Ill. App. 3d at 457.) Other cases have observed that willful and wanton behavior is more similar to an act of ordinary negligence. ( Spivack v. Hara (1966), 69 Ill. App. 2d 22, 26, 216 N.E.2d 173; Cooper v. Cox (1961), 31 Ill. App. 2d 51, 56, 175 N.E.2d 651.) Our case law has sometimes used interchangeably the terms "willful and wanton negligence," "gross negligence," and "willful and wanton conduct." See, e.g., Schneiderman, 394 Ill. at 583 (reviewing evidence to determine whether plaintiff was "guilty of wilful and wanton negligence as a matter of law," where jury found defendant guilty of "gross negligence"); Illinois Central R.R. Co. v. Goodwin (1863), 30 Ill. 117, 118 ("negligence of the plaintiff being so apparent, the defendant could be responsible only for gross negligence, which implies a willful injury"); Oropeza v. Board of Education (1992), 238 Ill. App. 3d 399, 402, 179 Ill. Dec. 650, 606 N.E.2d 482 (defining "willful and wanton negligence"); Batteast v. St. Bernard's Hospital (1985), 134 Ill. App. 3d 843, 853, 89 Ill. Dec. 561, 480 N.E.2d 1304 (observing that pleadings alleged that defendants were guilty of "acts of an intentionally wilful and wanton nature").

Thus, the label "willful and wanton conduct" has developed in this State as a hybrid between acts considered negligent and behavior found to be intentionally tortious. This hybrid character of willful and wantonness is reflected in case law decisions of this State, which have recognized that willful and wanton acts share many similar characteristics with acts of ordinary negligence. In Burke, this court expressly acknowledged that negligent and willful and wanton conduct "share some characteristics." ( Burke, 148 Ill. 2d at 451.) This court has previously observed that there is a "thin line" between simple negligence and willful and wanton acts ( Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 35, 330 N.E.2d 509). The comments of this court in Myers v. Krajefska (1956), 8 Ill. 2d 322, 134 N.E.2d 277, are particularly apt: "[Willful and wanton conduct] is generally considered in that area of fault between ordinary negligence and actual malice. In view of the fact that it is a matter of degree, a hard and thin line definition should not be attempted." ( Myers, 8 Ill. 2d at 329.) Under the facts of one case, willful and wanton misconduct may be only degrees more than ordinary negligence, while under thefacts of another case, willful and wanton acts may be only degrees less than intentional wrongdoing.

The court's ruling in Burke of a "qualitative distinction" between willful and wanton acts and negligent conduct does not take into account this State's development of the dual characteristics of willful and wanton conduct. The court in Burke limited its analysis to willful and wanton acts that are committed intentionally.

To support its Conclusion, the Burke court relied on the meaning of the term "willful and wanton" as that phrase has been applied to awards of punitive damages, and the significant policy considerations underlying an award of punitive damages. (See Burke, 148 Ill. 2d at 448-51.) However, willful and wanton conduct may be grounds not only for punitive damages, but compensatory damages as well. Compensatory damages are designed to make amends for the injuries suffered by the plaintiff, whereas punitive damages are intended to punish the wrongdoer and serve as a deterrent to antisocial behavior in the future. (See, e.g., Loitz, 138 Ill. 2d at 414-17.) Because the concerns regarding punitive damages focus upon punishment and retribution, they should not pre-dominate this court's inquiry into the apportionment of defendants' liability for compensatory damages when one tortfeasor is found guilty of willful and wanton conduct and another tortfeasor is found guilty of ordinary negligence.

The justifiable concern over the policies underlying punitive damages can be adequately protected by a rule that prohibits apportionment of liability for punitive damages, similar to the rule this court adopted in Gerill that bars contribution where both defendants have been found guilty of intentional torts. (See Gerill, 128 Ill. 2d 179, 131 Ill. Dec. 155, 538 N.E.2d 530.) "Keeping in mind that comparative negligence is a method of providing compensation to the plaintiff inproportion to the relative fault of the parties, whereas punitive damages are to punish the misconduct of the defendant, the conduct of the plaintiff should have no bearing on the award of punitive damages." (J. Palmer & S. Flanagan, Comparative Negligence Manual § 1.310, at 63-64 (rev. ed. 1986).) It has already been established in this State that an award of punitive damages is not subject to contribution. See Hall v. Archer-Daniels-Midland Co. (1988), 122 Ill. 2d 448, 458-60, 120 Ill. Dec. 556, 524 N.E.2d 586; see also Harriss v. Elliott (1991), 207 Ill. App. 3d 384, 389, 152 Ill. Dec. 359, 565 N.E.2d 1041; see generally Annot., Effect of Plaintiff's Comparative Negligence in Reducing Punitive Damages Recoverable, 27 A.L.R.4th 318 (1984); Piegore, The Conflict Between Punitive Damages and the Right to Contribution, 78 Ill. B.J. 338 (1990).

The Burke court also justified its position in reliance on the views expressed in the Restatement (Second) of Torts. The Restatement (Second) of Torts does not refer to "willful and wanton" conduct, but rather characterizes conduct as either negligent, reckless, or intentional. (See Restatement (Second) of Torts § 500 (1965).) Under the Restatement's view, a "plaintiff's contributory negligence does not bar recovery for harm caused by the defendant's reckless" conduct. (Restatement (Second) of Torts §§ 482(1), 503(1) (1965).) However, the Restatement also recites that a "plaintiff whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the plaintiff's safety is a legal cause of the plaintiff's harm." (Restatement (Second) of Torts §§ 482(2), 503(3) (1965).) Unlike the views expressed in the Restatement (Second) of Torts, this court has not addressed the question of whether a plaintiff's willful and wanton acts should serve as a complete bar, or serve as a damage-reducing factor, in the award of compensatory damages, where the defendant has also engaged in willful andwanton conduct. In addition, the definition of "reckless" under the Restatement is not the same as the definition given in this State to the term "willful and wanton." See Restatement (Second) of Torts § 500 (1965) (defining recklessness as intentionally doing an act, or intentionally failing to do an act, "knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent").

Legal commentary has been critical of this court's decision in Burke. (See Hoffman & Bry, The Status of an Illinois Plaintiff's Comparative Negligence as a Damage-Reducing Factor Where a Defendant Is Found Liable Under the Theory of Willful and Wanton Misconduct, 16 So. Ill. L.J. 663 (1992); Note, The Long, Strange Trip of Willful and Wanton Misconduct and a Proposal to Clarify the Doctrine, 26 J. Marshall L. Rev. 363 (1993).) As this latter commentary suggests, continued adherence to the full scope of the Burke decision could lead to harsh and unjust results supported by neither the clear terms of, nor underlying purposes for, our laws regarding comparative fault and contribution. It is of some note that legislation has been introduced in the General Assembly to alter this court's holding in Burke and permit comparative fault principles to apply where the plaintiff has been found negligent and the defendant found willful and wanton. See 88th Ill. Gen. Assem., Senate Bill 424, 1993 Sess. (amending section 2-1116 of the Code of Civil Procedure regarding comparative fault).

The Burke court limited its analysis to willful and wanton acts as intentionally tortious conduct. On this basis, and in order to further the policy that equitable principles should not lessen the liability of a party foundto have committed an intentionally tortious act, the Burke court held that the willful and wanton defendant could not seek to reduce his liability by the percentage of the plaintiff's contributory negligence. See Burke, 148 Ill. 2d at 448-52.

We find no inJustice to the rule adopted in Burke to the extent that it is applied to willful and wanton conduct that amounts to intentional behavior. However, we do not believe that the rule announced in Burke carries equal force or validity when applied to willful and wanton acts that are reckless, rather than intentional. The Burke court did not address the interests of parties who have been found willful and wanton because of unintentional, reckless behavior. It may be equally unjust to refuse to mitigate the liability of the willful and wanton defendant whose behavior was reckless, rather than intentional, where there are other parties to the incident whose tortious acts also proximately caused the plaintiff's injuries.

Bearing in mind these considerations, we conclude that the determination of whether a willful and wanton defendant should be permitted to seek contribution from a negligent defendant depends upon whether the willful and wanton defendant's acts were reckless or intentional. Our IPI Civil jury instructions recognize that a distinction should be drawn between willful and wanton acts that are intentional and willful and wanton conduct that is unintentional but reckless. According to the IPI Civil jury instructions, the trial Judge should instruct the jury as follows, where there is an allegation of willful and wanton acts:

"When I use the expression 'willful and wanton conduct' I mean a course of action which [shows actual or deliberate intention to harm or which, if not intentional,] shows an utter indifference to or conscious disregard for [a person's own safety] [and] [the safety of others]." (IPI Civil 3d No. 14.01.)

With respect to its Notes on Use, the IPI Civil jury instructions advise trial Judges that the first bracketed phrase regarding "actual or deliberate intention to harm" "should be omitted unless a deliberate intention to harm is alleged and supported by evidence sufficient to make a submissible case." IPI Civil 3d No. 14.01, Notes on Use, at 14-3.

We conclude that contribution should not be authorized where the defendant's willful and wanton acts amount to intentional behavior. Allowing contribution where the defendant's willful and wanton acts are found to have been intentional would contradict the holdings in Skinner and its progeny, including this court's ruling in Gerill that prohibits contribution for intentional tortfeasors, and would be contradictory to the very purpose of contribution. This court has affirmed as the "governing principle in this jurisdiction" that "the costs of accidental injury are to be apportioned in accordance with the relative fault of all concerned in the action." (Emphasis added.) Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, 31, 99 Ill. Dec. 115, 495 N.E.2d 496.

In addition, we hold that a defendant found guilty of willful and wanton conduct may seek contribution from a defendant found guilty of ordinary negligence if the willful and wanton defendant's acts were found to be simply reckless, and thus were determined to be less than intentional conduct. We believe this ruling will better serve Justice and will be more harmonious with the policies underlying the Contribution Act. "The loss of deterrent effect that would occur upon application of comparative fault concepts to willful and wanton misconduct as well as ordinary negligence would be slight" ( Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 825-26, 532 P.2d 1226, 1241, 119 Cal. Rptr. 858, 873), and "a comprehensive system of comparative negligence should allow for the apportionment of damages in all casesinvolving misconduct which falls short of being intentional" ( Li, 13 Cal. 3d at 826, 532 P.2d at 1241, 119 Cal. Rptr. at 873). See also Neuman v. City of Chicago (1982), 110 Ill. App. 3d 907, 910-11, 66 Ill. Dec. 700, 443 N.E.2d 626.

We believe that the approach we adopt herein will more adequately preserve the important distinctions between negligence, willful and wantonness, and intentionally tortious behavior. By retaining the distinctions between these concepts, our ruling reduces the likelihood that courts, lawyers, and juries will confuse or dilute the different standards applicable to each of these three mental states in tort law. See 1 M. Polelle & B. Ottley, Illinois Tort Law ยง 1.01, at 1-3 (2d ed. 1993) (noting that "confusion in some of the cases * * * seems to authorize an action for assault or battery not merely where the defendant has acted ...


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