IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
July 18, 2002
JIM L. FORTAE, PLAINTIFF-APPELLEE,
JAMES W. HOLLAND AND JOHN STOREY AND ROSE STOREY, D/B/A STOREYLAND MOBILE HOME PARK, DEFENDANTS-APPELLANTS, AND DELBERT AKERS AND CAROUSEL BUILDING COMPANY, DEFENDANTS-APPELLEES.
Appeal from the Circuit Court of Madison County. No. 97-L-1063 Honorable Nicholas G. Byron, Judge, presiding.
The opinion of the court was delivered by: Justice Goldenhersh
James W. Holland and John Storey and Rose Storey, doing business as Storeyland Mobile Home Park (Storeyland) (collectively defendants), appeal from a judgment of the circuit court of Madison County awarding damages to Jim L. Fortae (plaintiff) for personal injuries. On appeal, defendants raise numerous issues. This court affirms.
Delbert Akers was driving a semitruck that was hauling part of a manufactured home. Acting as lead vehicle was a pickup truck driven by defendant Holland. The truck driven by Akers collided with the rear end of the vehicle driven by Holland, forcing Holland's vehicle into a lane of oncoming traffic. The Holland vehicle then collided with a vehicle in which plaintiff was a passenger.
Plaintiff filed suit, originally naming Holland, John Storey and Rose Storey, doing business as Storeyland Mobile Home Park, Akers, and Carousel Building Company (Carousel) as defendants. Subsequent to the trial court's finding of a good-faith settlement, Akers and Carousel were released. Plaintiff amended his complaint to allege in-concert liability against Holland and Storeyland. The court denied cross-motions for summary judgment on the claims of in-concert liability, and the case proceeded to a jury trial.
At the trial, both Holland and Akers described how the accident occurred. Holland testified that while he was driving southbound on Route 111, he noticed a couple of vehicles two to three blocks ahead of him slowing down. Holland had been driving approximately 55 miles per hour and began slowing down. At this time, according to Holland, Akers was approximately a half mile behind him. As Holland approached the location he had seen the brake lights, he saw a dog enter the roadway. At that point, the speed limit was 55 miles per hour, and Holland was traveling approximately 20 to 25 miles per hour. Holland testified that he had been applying his brakes up until this time and that he did not apply them harder upon seeing the dog enter the road. Holland testified that, due to a temporary loss of consciousness he suffered from the accident, the last thing he remembers is looking in his rearview mirror and seeing the Akers vehicle immediately behind him striking the rear of his vehicle. Holland was confronted with his deposition testimony that from the time he first saw the other vehicles until the time of the accident three to five minutes had passed, but he stated at the trial that it could have taken less time.
Holland testified that his responsibilities as a lead vehicle included maintaining a distance of between a quarter mile and a half mile away from the transport vehicle when the traffic allowed and notifying the transport vehicle of dangers when possible, via CB radio. Holland testified that he had his hand on the CB radio at the time of the accident but had been unable to use it to contact Akers.
Akers testified that both vehicles had come to a stop at a stop sign prior to the accident and were gaining speed. Akers had reached the speed of 45 miles per hour, and Holland had reached the speed of 55 miles per hour, bringing the distance between the two vehicles to 250 feet. Akers stated that he was not trying to increase the distance between the two vehicles at that time because he was trying to build up speed with the trailer. Akers testified that he then observed Holland slow down and come to a stop but that he was unable to avoid a collision. Akers pled guilty to a citation for the failure to reduce speed to avoid an accident.
Akers testified he believed that the load for his vehicle was too heavy and was unsafe. Akers testified that when making a transport, drivers should keep a distance of a quarter mile to a half mile between them and should stay in constant CB alert in order to give the driver of the transport additional time to brake. Both Akers and Holland testified that, as far as they knew, the radios were working at the time of the accident.
Akers testified that in another incident earlier on the day of the accident, Holland had made an abrupt stop near a Blockbuster Video store. Akers stated that when this occurred, he yelled at Holland on the radio and told him that he should not make such stops because the transport was a heavy load. Akers testified that Holland did not respond. Holland testified that he had not heard Akers make any prior comments about sudden stopping.
The court denied defendants' motions for a directed verdict, made at the end of plaintiff's case and at the close of the evidence. The jury returned a verdict awarding damages to plaintiff. Defendants appeal.
[Nonpublishable text under Supreme Court Rule 23 (166 Ill. 2d R. 23) omitted here.]
Defendants contend that the jury instructions misstated the law regarding "in concert" liability. We note initially that the issues regarding jury instructions were waived by defendants. Defendants failed to tender opposing instructions on the issues of the applicable burden of proof and the definition of in-concert liability. Defendants waived the issues stemming from these instructions, including their arguments regarding clear and convincing evidence, by failing to submit the instructions to the trial court. Vojas v. K-Mart Corp., 312 Ill. App. 3d 544, 549, 727 N.E.2d 397, 401 (2000); Aguinaga v. City of Chicago, 243 Ill. App. 3d 552, 575, 611 N.E.2d 1296, 1313 (1993). Similarly, defendants waived their objections to plaintiff's commentary in closing arguments regarding instructions by failing to object to the statements.
Nonetheless, we feel compelled to discuss the instructions given to the jury defining in-concert liability and setting forth the elements plaintiff was required to prove, so that we may more fully address other matters in this case, including the meaning of in-concert liability. The following instruction defining in-concert liability was submitted to the jury:
"A person acts in concert with another person if:
The defendant knows that the other person's conduct is negligent and gives substantial assistance to the other to so conduct himself; or
The defendant gives substantial assistance to the other in accomplishing a negligent result and his own conduct, separately considered, constitutes a breach of duty to the plaintiff."
The following instruction setting forth the elements plaintiff was required to prove was also submitted to the jury:
"The plaintiff has the burden of proving each of the following propositions:
First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant acted in concert with another person or was negligent;
Second, that the plaintiff was injured;
Third, that the defendant acted in concert or acted negligently and his conduct was a proximate cause of harm to the plaintiff.
If you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendants."
Defendants contend that these instructions improperly allowed the jury to find in favor of plaintiff on the in-concert theory without ever finding that defendants had engaged in any negligent conduct. Defendants support their argument by citing to the following statements made by plaintiff to the court: "[I]t was not necessary that the plaintiff show that Holland's conduct was tortious; it was only necessary that plaintiff show that Holland acted in concert with a person whose conduct was tortious." An investigation into the source of the tendered instructions reveals that defendants' argument is a mere play upon semantics and that the jury was properly informed by accurate instructions on in-concert liability.
Section 876 of the Restatement (Second) of Torts defines in-concert liability:
"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person." Restatement (Second) of Torts §876, at 315 (1977).
The instructions given to the jury accurately state the law. Although Illinois courts have not fully colored-in the law regarding in-concert liability, our courts have stated that section 876 of the Restatement (Second) of Torts provides an accurate definition. Woods v. Cole, 181 Ill. 2d 512, 517, 693 N.E.2d 333, 335 (1998); Umble v. Sandy McKie & Sons, Inc., 294 Ill. App. 3d 449, 451, 690 N.E.2d 157, 158 (1998). There was no requirement that plaintiff prove that Holland's actions fit under the standard definition of negligence, in addition to proving that Holland violated a duty to not act in concert with a tortfeasor who caused harm to plaintiff. Wording the instruction such that plaintiff would have to prove that Holland acted in concert and also negligently would invite confusion as to the meaning of in-concert liability. The wording of the instructions setting forth plaintiff's burdens and defining in-concert liability paralleled section 876 of the Restatement (Second) of Torts and was a clear and accurate statement of the law.
Defendants also contend that they should have been granted a directed verdict. Defendants moved for a directed verdict after plaintiff's voir dire and again after the close of plaintiff's evidence. Defendants claim that plaintiff made judicial admissions during voir dire. In voir dire, plaintiff's counsel stated: "[Plaintiff] is not a victim of a crime. Nobody did anything intentionally to harm him." He further stated, "I'll represent again[,] we are not claiming this is intentional conduct or an intentional tort." Defendants contend that without any such intention there can be no in-concert action. Defendants further contend that a directed verdict should have been granted at the end of plaintiff's case because plaintiff failed to present evidence to support a claim of in-concert liability. Defendants' arguments are based on a misinterpretation of in-concert liability.
Defendants contend that in-concert liability is precluded by plaintiff's admission that Holland did not commit an intentional tort. Plaintiff's statement that Holland did not intend to harm plaintiff does not undermine this claim. Defendants' analysis is based on the similarity between in-concert liability and conspiracy. See Adcock v. Brackgate, Ltd., 164 Ill. 2d 54, 63, 645 N.E.2d 888, 894 (1994) (indicating that intent is necessary for a conspiracy and discussing subsection (a) of section 876 of the Restatement (Second) of Torts); Wolf v. Liberis, 153 Ill. App. 3d 488, 496, 505 N.E.2d 1202, 1208 (1987) (defining aiding-and-abetting liability and in-concert liability). Although there is a similarity between in-concert liability and other forms of liability, in-concert liability is a separate form of action. See Wolf, 153 Ill. App. 3d at 496, 505 N.E.2d at 1208.
A closer look at in-concert liability under the separate subsections of section 876 of the Restatement (Second) of Torts reveals that defendants' characterization of in-concert liability is too narrow. As indicated in our discussion on jury instructions, there are three separate forms of in-concert liability defined in section 876. Plaintiff admits there is no liability under subsection (a), but he contends that defendants are liable under both subsections (b) and (c). Contrary to defendants' characterizations, liability under these subsections is not based on common design or agreement, but on substantial assistance. Because we find liability under subsection (b), we need not discuss subsection (c). In-concert liability under subsection (b) and the factors necessary for liability under this subsection can best be seen by comparing two cases heavily relied on by defendants: Wolf and Umble.
In Wolf, the First District discussed liability under subsection (b). In Wolf, the defendant had left her fiancé's apartment after having a few drinks. The fiancé followed in a separate car to make sure the defendant got home. On the way, the defendant crashed her car into a store window. Her fiancé stopped and helped back the vehicle out of the window. The fiancé told the defendant to stay there while he went to call the police, but the defendant drove away. On the way back to his car the fiancé was approached by three men who attempted to restrain him. The fiancé broke away from the assailants and got into his car. When he began to drive away, one of the assailants pulled open the car door and attempted to take control of the steering wheel. With the assailant hanging onto the steering wheel through an open door, the fiancé drove down the wrong side of a road and into the vehicle driven by the plaintiff's decedent.
The Wolf court found that there was no in-concert liability for the defendant with respect to the plaintiff's injuries. The court separately defined civil conspiracy, aiding-abetting liability, and in-concert liability, but it addressed all three by showing the lack of a relationship between the defendant and the actions of her fiancé that caused the accident. Wolf, 153 Ill. App. 3d at 495-96, 505 N.E.2d at 1208. The court found that the defendant did not encourage her fiancé to act tortiously by leaving the apartment intoxicated or by having her fiancé follow her home. The court also found that the fact that her fiancé removed her car from the store window was not evidence that she assisted her fiancé in his subsequent tortious act. The court stated as follows:
"At the time of the injury to plaintiff's decedent, [the defendant] had driven away from the scene of the original incident in her own car. Having left the scene of the accident, there was no way in which she could have substantially assisted or encouraged the negligent conduct of [her fiancé]." Wolf, 153 Ill. App. 3d at 497, 505 N.E.2d at 1209.
In Umble, the plaintiff sought a recovery against a service station that repaired a headlight and leaking tire of a vehicle being driven by an intoxicated driver. After the vehicle left the shop, the driver was involved in an accident, killing another person. In denying liability, the court stated as follows:
"The complaint contains no allegation that any of defendant's employees actively encouraged Butzen to get back in his car and drive. We do not equate failing to prevent certain conduct with actively encouraging that conduct. Moreover, the complaint's allegations do not establish that defendant provided substantial assistance to Butzen. There is no allegation that Butzen's car was inoperable before defendant made the repairs. The most reasonable inference from the complaint is that Butzen drove the car into the dealership. Had defendant refused to make the repairs, Butzen could simply have continued driving. At least, arguably, defendant's repair of the tire and headlight made Butzen's car safer rather than more dangerous." Umble, 294 Ill. App. 3d at 451- 52, 690 N.E.2d at 159.
The Umble court also distinguished the case before it from other cases where defendants were found liable for selling cars to unlicensed and incompetent drivers. See Small v. St. Francis Hospital, 220 Ill. App. 3d 537, 541, 581 N.E.2d 154, 158 (1991); Seward v. Griffin, 116 Ill. App. 3d 749, 754, 452 N.E.2d 558, 563 (1983). Unlike in cases where cars are sold, the defendant in Umble had no right to refuse to return the vehicle to its owner. Second, the court pointed out that unlike checking a driver's license, determining whether someone is drunk is difficult and requires expertise.
Umble and Wolf may stand for the principle that in-concert liability is not a panoply for liability whenever one party's actions would not have occurred but for the actions of another, but these cases are easily distinguished from the case at hand. Unlike Wolf, in the case at hand Holland was still present and played a crucial role in the negligence alleged to have been committed by Akers. Unlike in Wolf, Holland was present in the most obvious sense, because he was physically involved in the traffic accident. Unlike Umble, the nature of the relationship between Holland and Akers meant that failing to act to prevent Akers from driving too closely was encouragement for such conduct. Due to the relationship of Holland and Akers, defendants' actions in this case are more similar to the cases of selling to an unlicensed driver, distinguished in Wolf. See Small, 220 Ill. App. 3d at 541, 581 N.E.2d at 158; Seward, 116 Ill. App. 3d at 754, 452 N.E.2d at 563. In contrast to a garage mechanic's ability to observe a driver's possible drunkenness, Holland's relationship with Akers placed on him the responsibility to observe Akers' driving. The significance of these distinctions can only be seen by looking at the crucial element of liability under subsection (b) of section 876: substantial assistance.
The factors for determining substantial assistance were outlined in Sanke v. Bechina, 216 Ill. App. 3d 962, 964, 576 N.E.2d 1212, 1214 (1991). In Sanke, the defendant and the plaintiff's decedent were both passengers in a sports car. The defendant allegedly verbally encouraged the driver to disobey the posted speed limit and a stop sign. The vehicle veered off the road and struck some trees, and the plaintiff's decedent was killed.
The court found that the plaintiff had alleged in-concert liability as set forth under subsection (b) of section 876 of the Restatement (Second) of Torts. In distinguishing Wolf, the Sanke court found that, in the case before it, the plaintiff alleged that the defendant, a passenger, encouraged the driver to drive at an excessive speed and to disobey a stop sign as part of a vehicular competition. The court quoted commentary to section 876(b):
" 'd. Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance. If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other's act. This is true both when the act done is an intended [one] *** and when it is merely a negligent act. ***
The assistance of or participation by the defendant may be so slight that he is not liable for the act of the other. In determining this, the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other[,] and his state of mind are all considered.' " Sanke, 216 Ill. App. 3d at 965-66, 576 N.E.2d at 1214 (quoting Restatement (Second) of Torts §876(b), Comment d, at 317 (1979)).
As made evident by Sanke, defendants' argument that in-concert action requires an intentional act is incorrect. The tortious act may be either intentional or negligent. Thus, an analysis of liability for in-concert liability in this case calls for us to look at the language in the commentary of subsection (b) and the factors set forth in Sanke to determine if the participation was so slight that one defendant was to not be liable for the act of the other.
In terms of the factors outlined in Sanke, plaintiff presented evidence that Holland gave substantial assistance to Akers. The nature of the act of negligently driving is directly connected to the relationship between Holland and Akers. Holland's relation to the other (Akers) as an escort vehicle weighs in favor of the assistance being substantial. Akers' testimony that he had previously warned Holland on the radio that he could not make abrupt stops also indicates a state of mind on the part of Holland which supports a finding of substantial assistance. In addition, Holland's presence was necessary for the commission of the tort, and indeed, he was physically involved in the traffic accident. Therefore, the jury had sufficient evidence to conclude that Holland substantially assisted Akers in acting negligently.
Joint and Several Liability
The concept of substantial assistance also explains why the claims against defendants were not resolved by the release between Akers and plaintiff. Defendants argue that their liability is purely vicarious and that, therefore, once Akers was released, there was no basis for holding them liable. Defendants contend that in this case in-concert liability is akin to liability for a joint venture and that in a joint venture a release of an agent also resolves the claim against the principal. See Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 622 N.E.2d 788 (1993); Groark v. Thorleif Larsen & Son, Inc., 231 Ill. App. 3d 61, 596 N.E.2d 78 (1992). Joint ventures in business provide a basis for indemnity that is not based on fault in fact. See American National Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center, 154 Ill. 2d 347, 354, 609 N.E.2d 285, 289 (1992) (business benefits of a principal-agent relationship form the basis for indemnity, not the fault of the principal). Unlike these cases, under in-concert liability a defendant must be personally engaged in the sense of substantially assisting the negligent actor. In contrast to the liability Storeyland faces for Holland under the doctrine of respondeat superior, defendants' liability for Akers' negligence is through acting in concert. Under the theory of acting in concert, liability is joint and several. Woods v. Cole, 181 Ill. 2d 512, 516, 693 N.E.2d 333, 337 (1998). In cases where an action is done in concert, liability for all that is done is visited on each defendant, and a release of one defendant does not preclude an action against another. See Woods, 181 Ill. 2d at 516, 693 N.E.2d at 337; Henry v. St. John's Hospital, 138 Ill. 2d 533, 540, 563 N.E.2d 410, 414 (1990) (a settlement against one party does not affect the right to proceed against a jointly and severally liable defendant).
Similarly, defendants' contention that the release between plaintiff and Akers was not in good faith is also misplaced. Carousel and Akers filed a motion for a good-faith finding, with an attached, unsigned release as an exhibit. After the motion was granted, the words "but does not release" were crossed out; substituted in their place, in handwriting, were the words "with the exception of" in front of the names of the remaining defendants. The revised writing is appropriate due to the joint-and-several nature of liability in this case, and the revision was approved by the trial court. The trial court twice reviewed the issue of good faith in light of the revision-in oral argument prior to the trial and in a posttrial motion. The trial court's determination of good faith will not be reversed absent a showing of an abuse of discretion by clear and convincing evidence. Schramm v. County of Monroe, 325 Ill. App. 3d 760, 764, 758 N.E.2d 880, 883 (2001). We see no reason to disturb this decision.
Accordingly, the judgment of the circuit court of Madison County is hereby affirmed.
MAAG, P.J., and HOPKINS, J., concur.