593 N.E.2d 522 (Ill. 1992), 71524, Burke v. 12 Rothschild's Liquor Mart, Inc.

Docket Nº:71524.
Citation:593 N.E.2d 522, 148 Ill.2d 429, 170 Ill.Dec. 633
Party Name:Henry L. BURKE, Appellee, v. 12 ROTHSCHILD'S LIQUOR MART, INC., et al. (The City of Chicago, Appellant).
Case Date:May 21, 1992
Court:Supreme Court of Illinois

Page 522

593 N.E.2d 522 (Ill. 1992)

148 Ill.2d 429, 170 Ill.Dec. 633

Henry L. BURKE, Appellee,


12 ROTHSCHILD'S LIQUOR MART, INC., et al. (The City of

Chicago, Appellant).

No. 71524.

Supreme Court of Illinois.

May 21, 1992.

Page 523

[170 Ill.Dec. 634] [148 Ill.2d 432] Kelly R. Welsh, Corp. Counsel, Chicago (Jean Dobrer, Lawrence Rosenthal and Benna Ruth Solomon, Asst. Corp. Counsel, of counsel), Chicago, for appellant.

Knight, Hoppe, Fanning & Knight, Ltd., Des Plaines (Elizabeth Knight, and Jonella L. Barbrow, of counsel), Des Plaines, for amicus curiae Illinois Governmental Assn. of Pools.

Scott D. Lane, Lane & Lane, Chicago, for amicus curiae Illinois Trial Lawyers Assoc.

Pavalon & Gifford (Eugene I. Pavalon, Gary K. Laatsch and Richard L. Kumlin, of counsel), Chicago, for appellee.

Justice THOMAS J. MORAN delivered the opinion of the court:

This action was filed by plaintiff, Henry L. Burke (Burke), to recover damages for personal injuries allegedly caused by negligent acts of employees of 12 Rothschild's Liquor Mart, Inc. (Rothschild's), and by willful and wanton conduct on the part of police officers of the City of Chicago (City). The circuit court of Cook County instructed the jury that as a matter of law Burke was not contributorily negligent as to the City. The jury returned a verdict for Burke and against both defendants in the amount of $7,487,000. On another verdict form, [148 Ill.2d 433] the jury reduced Burke's award against Rothschild's by 32%, the percentage determined to be due to plaintiff's own negligence. The amount recoverable from the City remained at $7,487,000. The appellate court affirmed the judgment (209 Ill.App.3d 192, 154 Ill.Dec. 80, 568 N.E.2d 80), and this court granted the City's petition for leave to appeal (134 Ill.2d R. 315).

The case before us presents two issues. The first is whether a plaintiff's negligence can be compared to a defendant's willful and wanton misconduct to reduce the amount of damages recoverable by the plaintiff, and the second is whether one joint tortfeasor should be required to pay damages caused by the plaintiff's negligence as to the other tortfeasor. Our analysis and conclusions are based on the following facts.


Rothschild's was a liquor and beverage store which also sold other miscellaneous items. On the evening of November 20, 1977, Burke, a 25-year-old shipping department worker, went to Rothschild's in order to purchase some pop for his mother. Burke took two cases of pop from a stack at the rear of the store, placed them on the counter, and left them while he looked at some phonograph records. A Rothschild's employee approached Burke and asked when he was going to pay for the pop. Burke responded that he would pay at some other time. The employee returned the cases of pop to their stack. Burke retrieved the pop and placed it on the counter. Once again the employee returned the pop to its stack and asked Burke for payment. Once again Burke seized the pop and put it back on the counter. Voices were raised. At that point the store manager appeared and told Burke that he would have to leave if he was not going to pay for anything. When Burke tried to push past the manager to take the pop, the manager grasped [148 Ill.2d 434] Burke by the shoulders and shoved him toward the door. Burke's

Page 524

[170 Ill.Dec. 635] foot caught on a broken floor tile, and he fell forward, striking his head against a steel panel at the bottom of the door. Burke testified that he was knocked unconscious for a time, and that, on awakening, he became aware that he could not move his arms or legs. Two police officers summoned by the manager arrived as Burke was regaining consciousness, and asked him to get up. According to plaintiff and other witnesses, Burke told the police that he could not get up, because he was hurt. The senior officer, however, testified that Burke said nothing about his injuries at that time. The officer related that Burke did not appear to be seriously injured, but told the officers that they would have to carry him away if they were going to lock him up. The officers called for a paddy wagon. According to the senior officer, Burke told him for the first time of his injuries just as the officers from the paddy wagon were arriving. The officer relayed that information to the paddy wagon officers. Nevertheless, the newly arrived officers sprayed a substance in Burke's face which caused his eyes to burn, seized him by the arms and legs, and dragged him from the store. Burke and other witnesses related that he was dropped on the sidewalk, picked up again, and thrown into the paddy wagon in such a way that his head struck an interior steel wall. Burke testified that, when the paddy wagon stopped, the officers grabbed him by the legs, causing his head to hit the back step of the wagon and the ground, and kicked him while ordering him to stand up. Burke then lapsed into unconsciousness, and did not awaken until he was in Cermak Hospital. As a result of irreversible injury to his spinal cord, plaintiff became permanently quadriplegic. (Henry Burke died on June 23, 1989. His mother has been substituted as plaintiff and appointed special administrator. In order to [148 Ill.2d 435] avoid confusion, we shall continue to refer to Henry Burke as plaintiff.)

At the close of trial, the court refused the City's proffered instruction, which would have allowed any negligence found on the plaintiff's part to offset the City's damages. Instead, the court granted Burke's motion for a finding that, as a matter of law, Burke was not contributorily negligent towards the City. The court then instructed the jury in accordance with that finding. The jury returned a verdict for plaintiff and against both defendants in the amount of $7,487,000. On a second verdict form, it apportioned fault between the defendants at 65% for Rothschild's and 35% for the City. The jury also found, on a third verdict form, that (1) Burke's total damages against Rothschild's were $4,866,550 (or 65% of the total award of $7,487,000); (2) Burke's own negligence was responsible for 32% of the injury caused by Rothschild's; and (3) Burke's total damages recoverable from Rothschild's were therefore $3,309,254.

Burke and both defendants filed post-trial motions, and the defendants filed amended motions. The City, contending for the first time in its post-trial motion that the defendants were not joint tortfeasors, argued that it was liable for only 35% of the total damages. Alternatively, the City contended that the trial judge had erred in ruling that the City's liability could not be reduced by Burke's negligence. During oral argument on the motion, plaintiff asserted that the jury was properly instructed to find joint and several liability, and that the apportionment figures related solely to defendant's counterclaims against each other for contribution. The court denied the defendants' original and amended motions, and granted plaintiff's motion, amending the third verdict form so that the total damages were $7,487,000 and the amount recoverable from Rothschild's was $5,091,160 (the total damages of $7,487,000 reduced by [148 Ill.2d 436] 32%, or $2,395,840). The court entered a judgment incorporating the amended verdict. The City filed a notice of appeal from the judgment and the denial of its post-trial motions. Rothschild's did not appeal, appear or file a brief in the appeal.

The appellate court affirmed the judgment and rulings of the trial court. However, the court vacated the contribution judgments, holding that they were void because the Contribution Among Joint Tortfeasors Act (the Contribution Act) (Ill.Rev.Stat.1987,

Page 525

[170 Ill.Dec. 636] ch. 70, par. 301 et seq.) did not apply to causes of action accruing before March 1, 1978. The appellate court also held that negligence cannot be compared to willful and wanton conduct, as there is a qualitative difference between the two forms of conduct. Thus, the court rejected the City's argument that, if it were a joint tortfeasor, it should be liable for only those damages caused by its conduct and that of Rothschild's, and not for damages caused by Burke.

The Illinois Governmental Association of Pools filed a brief, as amicus curiae, in support of the City's position, and the Illinois Trial Lawyers Association filed an amicus curiae brief supporting the position taken by Burke.


Before reaching the other issues before us, we must cross a threshold hurdle first erected by the City and now positioned by Burke. Although this case was tried on a theory of joint and several liability, the City argued in a post-trial motion, and again before the appellate court, that it was a successive tortfeasor, and should thus be liable for only its proportionate share of the damages. In responding to the City's motion, Burke, on the other hand, argued that the jury was properly instructed to find joint and several liability. The appellate court correctly found that, where the City's position before[148 Ill.2d 437] that court was inconsistent with its stance in an earlier court proceeding, the City had waived its right to complain of an error in the jury instructions. (209 Ill.App.3d at 201, 154 Ill.Dec. 80, 568 N.E.2d 80; see Auton v. Logan Landfill, Inc. (1984), 105 Ill.2d 537, 543, 86 Ill.Dec. 438, 475 N.E.2d 817.) Now Burke argues before this court that the defendants were successive tortfeasors, while the City maintains that it and Rothschild's acted jointly. We deem the argument to be waived by Burke as well as by the City. However, as this court has previously noted, the waiver rule exists as an admonition to litigants rather than as a limitation upon the jurisdiction of the reviewing court. (American Federation of State, County &...

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