In Ready v. United Goedecke Services, Inc., a case that has gone back and forth between the Illinois Supreme Court and the Illinois Appellate Court, creating important law along the way, the appellate court recently resurrected a legal defense despised by most experienced personal injury lawyers, namely, the “Empty Chair Defense.”
Briefly, Ready involved a mechanic who was killed in a construction accident at a factory in Joliet, Illinois, when one of the beams that was to be used for scaffolding fell eight stories and struck him. Plaintiff (the decadent’s relative) settled her claims with defendants Midwest (parent company of the mechanic’s employer) and BMW (the general contractor) prior to trial. The Plaintiff proceeded to trial against United, and a jury returned a verdict for the plaintiff in the amount of $9,250,000 (after being reduced 35% due to Plaintiff’s contributory negligence). The court allowed a further setoff of $1,112,502, which was the total amount paid to plaintiff by the settling defendants. United appealed.
Matthew A. Passen of Passen Law Group has published multiple articles discussing the early Ready decisions, which the Illinois Supreme Court held that defendants who settle with the plaintiff prior to trial should not appear on jury verdict forms in apportioning fault among the parties. However, the Supreme Court later remanded to the appellate court to address the specific issue of “United’s concern that it was deprived of a sole proximate cause defense when the trial court refused its request for an instruction on sole proximate cause.” Ready, 232 Ill. 2d at 385.
Notably, on remand the Illinois appellate court broadened the issue it was specifically asked to address. In a footnote, the appellate court stated that “it is abundantly clear that United’s sole proximate cause defense argument had two components: the circuit court’s exclusion of evidence regarding the conduct of the settling defendants, and the circuit court’s refusal to instruct the jury on sole proximate cause.” Ready, No. 1-04-1762, n.2 (June 30, 2009).
The appellate court held that the circuit court “should not have excluded evidence of Midwest and BMW’s conduct,” despite the fact that those defendants settled prior to trial, and their names will not appear on the verdict forms for the jury to apportion liability. The appellate court stated that under prior Illinois case law, specifically Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 93 (1995), as long as a defendant makes a “general denial that an injury was the result of or caused by the defendant’s conduct,” the defendant may “present evidence that the injury was a result of another cause,” including settled defendants.
Because it ordered a retrial, the appellate court did not even address whether the trial court erred in refusing United’s jury instruction on sole proximate cause. The court stated that a determination regarding the sole proximate cause instruction “will depend upon the evidence adduced at retrial.”
This case sets dangerous precedent for top personal injury and wrongful death lawyers in Illinois. As a result of this decision, plaintiffs may become more hesitant to settle with less than all defendants prior to trial for fear of having to respond to an “empty chair defense” — meaning that the remaining defendants will argue to the jury that the real cause of the plaintiff’s injuries are a defendant who settled prior to trial.
Still, if there is a good faith basis for arguing to a jury that the “sole” cause of the plaintiff’s injuries are another defendant who is not in the case, the remaining defendants should be able to make that argument, as held in Leonardi. However, the trial court should be able to determine whether there is a good faith basis for a sole proximate cause theory prior to trial, rather than allowing all defendants who make a general denial in their answer (which includes basically every defendant) to introduce evidence at trial relating to the conduct of settled defendants.
The plaintiff will no doubt appeal this latest decision to the Supreme Court, especially since the appellate court appeared to have impermissibly broadened the scope of the issue it was specifically asked to address. Hopefully, the Illinois Supreme Court will step in, once again, and correct this error.