Illinois Jury Verdict Upheld Even Though Trial Judge Erred; Ramirez v. FCL Builders

Teodoro Ramirez was injured while working for his employer and subcontractor, Sullivan Roofing. The case was tried before a jury in Cook County against the general contractor on the project, FCL Builders. At the end of the trial, the trial judge included Sullivan Roofing on the jury verdict form for apportioning fault under Illinois Code of Civil Procedure, §2-1117. 

The jury’s verdict of $1.588 million against FCL included a finding that Ramirez was 20 percent at fault for his own injuries while FCL and Sullivan were held to be 40 percent at fault each. 

FCL appealed, arguing that Sullivan Roofing should not have been on the verdict form. 

The appellate court reviewed 735 ILCS 5/2-1117 on comparative fault. According to that section, any fault of Sullivan Roofing, as the plaintiff’s employer, should not have been included in the apportionment of fault for the purposes of determining the defendant’s joint and several liability. FCL argued that Sullivan Roofing should not have been included on the verdict form.

There had been no Illinois cases considering the issue of whether a plaintiff’s employer should be included on the verdict form filed after the Illinois Supreme Court issued its decision in Ready v. United/Goedecke Services, 232 Ill.2d 369 (2008). That decision controlled the outcome in this case. 

In the Ready case, the Illinois Supreme Court considered whether settling tortfeasors were considered “defendants sued by the plaintiff” within the meaning of Section 2-1117.

In the Ready case, the plaintiff’s husband was killed during a construction project. A wrongful death lawsuit was filed against the building owner, the husband’s employer, the general contractor and a subcontractor on the project.

In the Ready case, the building owner and its general contractor settled before the trial began. During the trial, the subcontractor was not allowed to present any evidence as to the conduct of the settling defendants and the settling defendants were not listed on the jury verdict form. In Ready, the jury found the subcontractor was liable for negligence, and the trial court found the subcontractor jointly and severally liable for the amount of the verdict remaining after offsets for the husband’s comparative negligence and the amount of the settlements paid by the other former defendants.

In that case, the appellate court agreed with the subcontractor that the trial court erred by failing to include the settling defendants on the verdict form claiming that if the jury had been able to consider their share of fault, the subcontractor’s share may have been less than 25%, making the subcontractor only severally liable.  The appellate court agreed with that finding that all defendants, including settling defendants should have been included on the verdict form for purposes of apportionment.  But the Supreme Court in Ready after considering the language and history of the statute found that non-settling defendants are not “defendants sued by the plaintiff” within the meaning of Section 2-1117, stating that “we disagree with the appellate court’s holding that, under Section 2-1117, a remaining defendant’s culpability must be assessed relative to the culpability of all defendants, including settling defendants.”  Ready, 232 Ill. 2d at 383.

The Illinois Supreme Court held that under Section 2-1117, good-faith settling tortfeasors who have been dismissed from the lawsuit are not part of a 2-1117 analysis and reversed the portion of the appellate court’s judgment that reversed the trial court as to liability. Ready, 232 Ill. 2d at 385.

As a result of the Ready decision, appellate courts and parties have uniformly accepted the Ready interpretation to mean that settling defendants do not appear on a verdict form. 

In the Ramirez case, the appellate court was asked to consider the presence of the plaintiff’s employer, Sullivan Roofing, on the verdict form. The appellate court came to the same conclusion and result. The answer to the question reached was that since 2-1117 expressly excludes Sullivan Roofing as plaintiff’s employer, Sullivan Roofing should not have been listed on the jury’s verdict form. However, despite that conclusion that the jury’s verdict form was faulty, reversal was found to be not warranted in the Ramirez case because the error did not result in a serious prejudice to the appellant’s right to a fair trial.  The appellate court found that since the defendant FCL was not seriously prejudiced by the erroneous verdict form, the court found that there was no reversible error.

Ramirez v. FCL Builders, 2013 IL App. (1st) 123663 (Nov. 15, 2013).

Kreisman Law Offices has been handling construction accident cases, work injury cases and nursing home abuse cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Oak Park, Addison, Arlington Heights, Glendale Heights, Round Lake Beach, Elgin, Rolling Meadows, Crystal Lake, Woodstock, St. Charles, Lyons, Bolingbrook, Cicero, Chicago (Lincoln Square, Lincoln Park, Logan Square, Gresham) and Prospect Heights, Ill.

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