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09/24/97 STANISLAW TRUSZEWSKI v. OUTBOARD MOTOR

September 24, 1997

STANISLAW TRUSZEWSKI, PLAINTIFF-APPELLEE,
v.
OUTBOARD MOTOR MARINE CORP. AND LESTER ENGINEERING CO., DEFENDANT-APPELLEES. OUTBOARD MOTOR MARINE CORP. AND LESTER ENGINEERING CO., THIRD-PARTY PLAINTIFFS-APPELLEES, V. MUTUAL MAINTENANCE CO., THIRD-PARTY DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Alfred J. Paul, Judge Presiding.

Released for Publication November 10, 1997.

The Honorable Justice Leavitt delivered the opinion of the court. Cousins, P.j., and Gordon, J. concur.

The opinion of the court was delivered by: Leavitt

The Honorable Justice LEAVITT delivered the opinion of the court:

Truszewski, who worked for Mutual Maintenance Co. (Mutual), sued Outboard Motor Marine Corp. (Outboard) and Lester Engineering Co. (Lester) for damages resulting from an injury to his hand which occurred while Truszewski cleaned a machine manufactured by Lester and owned and operated by Outboard. Truszewski received $387,500 in a settlement, $287,500 of which originated with Outboard and $100,000 of which originated with Lester. As part of a settlement, Outboard and Lester dismissed with prejudice their contribution claims against each other. In the remaining contribution action where Outboard sued Mutual, a jury found Mutual responsible for 40% of Outboard's liability to Truszewski. The judge ordered Mutual to pay Outboard $115,000, representing 40% of $287,500. We reverse and remand.

Mutual claims the trial court erred when it rejected Mutual's proffered jury verdict form which read:

"We, the jury, apportion responsibility as follows:

Outboard Marine Corporation %

Mutual Maintenance Company %

Lester Engineering %

Total: 100%."

Instead, the court submitted the verdict form suggested by Outboard which read:

"We, the jury, apportion responsibility as follows:

Outboard Marine Corporation %

Mutual Maintenance Company %

Total: 100%."

Trial courts have discretion to decide which jury instructions to deliver. Gaines v. Townsend, 244 Ill. App. 3d 569, 576, 613 N.E.2d 796, 184 Ill. Dec. 479 (1993). We will grant a new trial only where a party shows it suffered serious prejudice to its right to a fair trial due to the court's failure to give a tendered jury instruction. Gaines, 244 Ill. App. 3d at 576.

Both parties accurately state the axiom "when available, the Illinois Pattern Jury Instruction should be given, unless the court determines that it does not accurately state the law." Harnischfeger Corp. v. Gleason Crane Rentals, Inc., 223 Ill. App. 3d 444, 465, 585 N.E.2d 166, 165 Ill. Dec. 770 (1991). The IPI applicable here is 600.16, which reads:

"Verdict Form - Apportionment of Responsibility - Contribution Following Settlement:

We, the jury, apportion responsibility as follows:

%

name of contribution plaintiff

%

name of first contribution defendant

%

name of second contribution defendant

%

name or describe non-party

TOTAL 100%

If you find that any person or entity was [not negligent] [not at fault] in a way that proximately caused the injured person's injury, then you should enter a zero as to that person or persons."

The "Notes on Use" which follow IPI 600.16 state "*** this verdict form makes provision for determining the fault attributable to nonparties. The trial judge, after verdict, will then have to determine the contribution judgment to be entered." Illinois Pattern Jury Instructions, Civil, No. 600.16 (3d ed. 1993).

Mutual claims the verdict form selected by the court unjustifiably deviated from the relevant IPI. Mutual asserts the instruction utilized did not accurately conform to the law of contribution embodied in Illinois' Joint Tortfeasor Contribution Act [the Contribution ...


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