The opinion of the court was delivered by: Justice McMORROW
Section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1992)) provides that in negligence and strict product liability actions which result in death, bodily injury or damage to property, any defendant whose fault is determined to be less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any other third-party defendant who could have been sued by the plaintiff shall be severally liable for any non-medical damages. If a defendant's fault is determined to be 25% or more, then the defendant shall be jointly and severally liable for any nonmedical damages. *fn1 The sole issue presented in this appeal is whether section 2-1117 is applicable in negligence actions where several tortfeasors act "in concert" to cause a single, indivisible harm. For the following reasons, we conclude that it is not.
The plaintiff, Yvonne Woods, as special administrator of the estate of the decedent, Eric Woods, brought a wrongful death action in the circuit court of Morgan County against the defendant, Todd Cole. As ultimately amended, plaintiff's complaint alleged that defendant had negligently entrusted a firearm to Jason Hill, who was under the influence of alcohol; that defendant had negligently loaded the weapon used by Hill in such a manner that Hill would think the weapon was empty when pointed at decedent; that defendant had induced Hill to discharge the firearm toward decedent, causing decedent's death; and that defendant had acted in concert with Hill in pointing and discharging the firearm at decedent.
Plaintiff's wrongful death action was based upon events which had previously led to defendant's criminal convictions of involuntary manslaughter and the concealment of a homicidal death. See People v. Cole, 253 Ill. App. 3d 603 (1993). Evidence presented at the criminal trial established that on the night of May 8, 1992, defendant, decedent, and their two friends, Hill and Laurenzio Carrera, decided to go shooting at a farm belonging to defendant's grandfather. The group drove to the farm in defendant's pickup truck. During the drive to the farm, decedent fell asleep.
Hill testified at the criminal trial that defendant conceived of a plan to frighten decedent. According to Hill, the plan was for defendant, Carrera and Hill to prepare the guns which they had with them so that they would fire only one shell or bullet. The group would waken decedent by simultaneously firing the single shot in their weapons into the ground. The group would then point their weapons at decedent and click the triggers on an empty chamber or cylinder.
Hill testified that when they got to the farm, defendant's plan was carried out. The pickup truck was driven inside a barn. Defendant, Carrera and Hill got out of the truck, leaving decedent asleep on the front seat. The group fired their weapons into the ground near the truck, awakening decedent. Defendant and Carrera then pointed their guns at decedent, said "it's time to die," and pulled the triggers, producing a click. However, when Hill pulled the trigger on his weapon, the gun discharged, killing decedent. Cole, 253 Ill. App. 3d at 605-08.
Before trial in the instant matter, defendant filed a counterclaim in which he asserted that if he were found liable for plaintiff's death, he would have the right under section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1992)) to have his liability apportioned relative to the liability of Hill and Carrera. Plaintiff objected to the counterclaim. Plaintiff maintained that defendant, Hill and Carrera were "persons acting in concert" under section 876 of the Restatement (Second) of Torts (1979), that the liability for decedent's death could not be apportioned among them, and, therefore, that section 2-1117 was inapplicable. The trial court agreed with plaintiff but certified the following question for interlocutory appeal, pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308):
"Whether the provisions of 735 ILCS 5/2-1117 are applicable to a person found liable in negligence for the bodily injury or death of another where the liability of the person found liable is based on that person having been found to be `acting in concert' under Restatement (Second) of Torts, §876."
The appellate court, with one Justice Dissenting, concluded that section 2-1117 could not be applied under the facts of this case. 285 Ill. App. 3d 721. The appellate court reasoned that the conduct of tortfeasors who act in concert cannot be compared for purposes of apportioning liability under section 2-1117 because each tortfeasor "agreed to cooperate in the tortious conduct or tortious result and each is liable for the entirety of the damages as if there were but one actor." 285 Ill. App. 3d at 724. We granted defendant's petition for leave to appeal. 166 Ill. 2d R. 315.
The question presented in this appeal is one of law. Accordingly, our review is de novo. Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997).
Section 2-1117 provides in full:
"Except as provided in Section 2-1118, in actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, all defendants found liable are jointly and severally liable for plaintiff's past and future medical and medically related expenses. Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant who could have been sued by the plaintiff, shall be severally liable for all other damages. Any defendant whose fault, as determined by the trier of fact, is 25% or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants who could have been sued by the plaintiff, shall be jointly and severally liable for all other damages." 735 ILCS 5/2-1117 (West 1992).
Section 2-1118 excludes two types of actions, those involving environmental pollution and those alleging medical malpractice, from the precepts of section 2-1117. A defendant who is liable in either of these two types of actions is held ...