641 N.E.2d 402 (Ill. 1994), 74212, Ziarko v. Soo Line R. Co.

Docket Nº:74212.
Citation:641 N.E.2d 402, 161 Ill.2d 267, 204 Ill.Dec. 178
Party Name:Ronald J. ZIARKO v. SOO LINE RAILROAD, Appellant (Milwaukee Motor Transportation Company, Appellee).
Case Date:June 16, 1994
Court:Supreme Court of Illinois

Page 402

641 N.E.2d 402 (Ill. 1994)

161 Ill.2d 267, 204 Ill.Dec. 178

Ronald J. ZIARKO


SOO LINE RAILROAD, Appellant (Milwaukee Motor Transportation

Company, Appellee).

No. 74212.

Supreme Court of Illinois.

June 16, 1994.

Rehearing Denied Oct. 3, 1994.

Page 403

[204 Ill.Dec. 179] James T. Ferrini, [161 Ill.2d 268] Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago (James T. Ferrini, Ivar R. Azeris and Edward M. Kay, of counsel), for appellant.

Cassiday, Schade & Gloor, Chicago (Timothy J. Ashe, Lynn D. Dowd, D. Patterson Gloor and Morgan A. Milne, of counsel), for appellee.

Justice McMORROW delivered the opinion of the court:

In this appeal, we decide that the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 1992)) permits a defendant found guilty of willful and wanton conduct to seek contribution from a defendant found guilty of ordinary negligence, if the willful and wanton acts did not amount to intentionally tortious misconduct. In addition, we conclude that "common liability" under the Contribution Act is the amount agreed upon in a post-judgment settlement between[161 Ill.2d 269] the plaintiff and one of the defendants, where the settlement agreement released the plaintiff's claims against both defendant tortfeasors, and there is no argument that the settlement agreement was entered into in bad faith.


Plaintiff Ronald Ziarko was injured in May 1982 in a railroad yard owned by defendant Soo Line Railroad Company (Soo Line). At the time of the accident, Ziarko, who was employed as a truck driver, had stopped his truck in an area of the railroad yard operated by Milwaukee Motor Transportation Company (Milwaukee Motor). Shortly after Ziarko alighted from his truck, the truck was struck by a Soo Line train. This collision caused the truck to hit Ziarko, inflicting substantial injuries.

Ziarko filed suit against Soo Line and Milwaukee Motor. As ultimately amended, the complaint alleged that Soo Line had been guilty of negligent and willful and wanton misconduct and that Milwaukee Motor had been guilty of ordinary negligence. Soo Line and Milwaukee Motor filed cross-counterclaims for contribution under the Contribution Act (740 ILCS 100/2 (West 1992)).

A jury trial was held and a verdict returned for Ziarko in the amount of approximately $7.1 million. The jury determined that Ziarko's contributory negligence amounted to 3%. In addition, the jury found both defendants liable, and assessed Soo Line's fault at 95% and Milwaukee Motor's

Page 404

[204 Ill.Dec. 180] fault at 5%. In response to a special interrogatory, the jury indicated that it found Soo Line's misconduct had been willful and wanton. The trial court refused to reduce Ziarko's damages by the percentage of his contributory negligence, relying on this court's decision in Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill.2d 429, 170 Ill.Dec. 633, 593 N.E.2d 522 (comparative fault [161 Ill.2d 270] principles inapplicable to contributorily negligent plaintiff where defendant found willful and wanton). The trial court entered judgment according to the percentages of the defendants' liability as apportioned by the jury.

Both Soo Line and Milwaukee Motor appealed from the trial court's judgment. During the appeal, Soo Line and Ziarko entered into a settlement agreement. In this agreement, Soo Line agreed to tender to Ziarko $6.65 million. In exchange, Ziarko agreed to release all of his claims against both defendants.

In view of the settlement agreement between Ziarko and Soo Line, the appellate court entered an order that remanded the matter to the circuit court. Upon remand, the trial court determined that the settlement agreement did not obligate Soo Line to pay more than its pro rata share of the defendants' common liability to Ziarko, as determined in the jury's verdict. As a result, the trial court denied Soo Line's request for contribution from Milwaukee Motor. The appellate court affirmed the trial court's determination (234 Ill.App.3d 860, 176 Ill.Dec. 698, 602 N.E.2d 5). This court granted Soo Line's petition for leave to appeal (134 Ill.2d R. 315). Plaintiff Ziarko is not a party to the instant appeal. The case before this court concerns only the contribution claims of defendants Soo Line and Milwaukee Motor.

Contribution Between a Willful and Wanton Tortfeasor and aNegligent Tortfeasor

The parties' first argument pertains to whether Soo Line is permitted to seek contribution from Milwaukee Motor under the Contribution Act, in light of the jury's determination that Soo Line was guilty of willful and wanton conduct and Milwaukee Motor was guilty only of negligent conduct. Milwaukee Motor contends that neither the provisions of the Contribution Act nor our common law jurisprudence authorizes a willful and [161 Ill.2d 271] wanton tortfeasor to seek contribution from a negligent tortfeasor.

Our Contribution Act is intended to apportion liability based upon the relative fault of the parties, and applies when the parties are "subject to liability in tort arising out of the same injury to person or property, or the same wrongful death." (740 ILCS 100/2(a) (West 1992).) Although the Act does not define the scope of the terms "subject to liability in tort," this court has held that the phrase is intended to exclude intentionally tortious conduct. In Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill.2d 179, 131 Ill.Dec. 155, 538 N.E.2d 530, this court observed that the Contribution Act was adopted to codify the decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, in which the court adopted the rule that a strict product liability defendant could seek contribution from a negligent defendant. (Skinner, 70 Ill.2d at 16, 15 Ill.Dec. 829, 374 N.E.2d 437.) This court's decision in Skinner did not abolish the view, originally announced in Merryweather v. Nixan (K.B.1799), 101 Eng.Rep. 1337, and subsequently adopted in most States of this country, including Illinois, that contribution is not permissible between intentional tortfeasors. (Gerill, 128 Ill.2d at 203-04, 131 Ill.Dec. 155, 538 N.E.2d 530.) The rule prohibiting contribution among intentional tortfeasors was founded on the notion that an intentional tortfeasor, whose liability has arisen "entirely [from the tortfeasor's] own deliberate wrong," should not be afforded the equitable benefits of shifting a portion of that liability to another tortfeasor under principles of contribution. (W. Keeton, Prosser & Keeton on Torts § 50, at 336 (5th ed. 1984); see also Neuman v. City of Chicago (1984), 110 Ill.App.3d 907, 910, 66 Ill.Dec. 700, 443 N.E.2d 626.) The legislative history of the Contribution Act reveals that the General Assembly's adoption of the Act was not intended to alter or modify the common law rule which did not permit contribution among intentional tortfeasors. [161 Ill.2d 272] (Gerill, 128 Ill.2d at 204-05, 131

Page 405

[204 Ill.Dec. 181] Ill.Dec. 155, 538 N.E.2d 530.) For these reasons, this court has held that intentional tortfeasors are not entitled to contribution under the Contribution Act. Gerill, 128 Ill.2d at 206, 131 Ill.Dec. 155, 538 N.E.2d 530.

The question presented for our determination in the present appeal is whether a defendant found guilty of willful and wanton conduct should be precluded from obtaining contribution from a defendant found guilty of ordinary negligence. (See Lannom v. Kosco (1994), 158 Ill.2d 535, 199 Ill.Dec. 743, 634 N.E.2d 1097; Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill.App.3d 445, 103 Ill.Dec. 513, 501 N.E.2d 830 (barred contribution for willful and wanton tortfeasor); Pipes v. American Logging Tool Corp. (1985), 139 Ill.App.3d 269, 93 Ill.Dec. 757, 487 N.E.2d 424 (permitted contribution for willful and wanton tortfeasor); Neuman v. City of Chicago (1982), 110 Ill.App.3d 907, 66 Ill.Dec. 700, 443 N.E.2d 626 (acknowledged viability of equitable apportionment for willful and wanton tortfeasor whose conduct fell short of intentional behavior); McQueen v. Shelby County (C.D.Ill.1990), 730 F.Supp. 1449 (followed ruling in Bresland ).) To resolve this question, we look to the similarities, and dissimilarities, between negligent, willful and wanton, and intentional conduct.

Our jurisprudence has defined negligent conduct as "a failure to exercise the care that a reasonable man of ordinary prudence would exercise to guard against any reasonably foreseeable, unreasonable risks of harm which might flow from his conduct." (Beccue v. Rockford Park District (1968), 94 Ill.App.2d 179, 190, 236 N.E.2d 105; see also Illinois Pattern Jury Instructions, Civil, No. 10.02 (3d ed. 1989); No. 10.03 (3d ed. 1993) (hereinafter IPI Civil 3d).) Generally, "[t]ort intent means * * * a desire to cause consequences or at least [a] substantially certain belief that the consequences will result. [Citations.]" 1 M. Polelle & B. Ottley, Illinois Tort Law § 1.01, at 1-3 n. 8 (2d ed. 1993); see also Aetna Casualty & Surety Co. v. Freyer (1980), 89 Ill.App.3d 617, 620, 44 Ill.Dec. 791, 411 N.E.2d 1157.

[161 Ill.2d 273] In contrast, this court has offered the following definition of willful and wanton acts:

"A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care." Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293.

See also IPI Civil 3d No. 14.01.


To continue reading