Judicial Rulings

Illinois Supreme Court

Burden of proof in damage awards based on comparative negligence

IN DETERMINING the amount of damages to be awarded in a personal injury case, the burden of proving that the plaintiff was negligent falls on the defendant, the Supreme Court ruled February 21. The ruling further clarifies the principle of comparative negligence. Comparative negligence was adopted by the court in 1981 as the governing principle in awarding damages for personal injury. Its landmark decision in Alvis v. Ribar (85 Ill. 2d 1) brought Illinois into agreement with the universal practice in this area.

In this case, Casey v. Baseden (111 Ill. 2d 341), the jury assessed the plaintiff's contributory negligence in an automobile accident at 30 percent and adjusted damages accordingly. The defendants maintained, however, that the trial judge had incorrectly instructed the jury when he said: "If you find for the plaintiffs on the issue of liability, and find that the plaintiffs have proven that they have sustained damages, then the defendants have the burden of proving that the plaintiff . . . was contributory negligent."

The defendants argued that an 1852 rule placing the burden of proving freedom from negligence on the plaintiff was not superseded by Alvis. They said that the adoption of comparative negligence only reduces the effects of the plaintiff's negligence by allowing the plaintiff to collect a reduced amount of damages rather than none at all; it does not remove the plaintiff's obligation to prove freedom from fault, nor is the plaintiff's negligence an affirmative defense.

Speaking for the court, Justice Seymour Simon said that he could see no reason "to continue applying the old burden-of-proof rule after adopting comparative negligence. . . ." He agreed with the appellate court that "the defendant, who stands to benefit from a showing that the plaintiff was negligent, should have the burden of persuading the trier of fact on that issue." Replying to the argument that the plaintiff's negligence cannot be an affirmative defense, he pointed to "... a recently enacted statute which establishes that a plaintiff's negligence is an affirmative defense and requires the defendant to plead the facts constituting the defense" (Public Act 84-624, effective September 20, 1985). "It would be anomalous to require that the defendant allege the plaintiff's negligence but to place the burden of proof on that issue on the plaintiff," Simon said. 

F. Mark Siebert

DuPage County gets no special law on fire protection districts

RAW NUMBERS are an inadequate reason for fashioning special legislation according to the decision of the Illinois Supreme Court In re Belmont Fire Protection District et al. (111 Ill. 2d 373), handed down February 21. At issue was Section 19a of "An Act in relation to fire protection districts" (Public Act 83-1454; Ill. Rev. Stat., 1983 Supp., ch. 127 ½, sec. 38.2a); it sought to remedy a potentially dangerous situation in burgeoning DuPage County by permitting the consolidation of multiple fire protection services within a municipality into one. Since the section applies only to counties with populations between 600,000 and one million, it applies only to DuPage County, and thus it was subject to attack as violative of the special-legislation ban in Article IV, section 13 of the Illinois Constitution.

The plaintiffs pointed out that many of the potential dangers could exist in counties of other sizes, and, in the words of Justice Howard C. Ryan's decision, that "the population classification was neither based upon any rational difference of situation or condition, nor was it rationally related to the object and purpose of the legislation." The court found this to be arbitrary and therefore unconstitutional under Article IV: "The General Assembly shall pass no special or local law when a general law is or can be made applicable.

F. Mark Seibert

Marriage fees ruled improper for funding domestic abuse shelters

FUNDING of domestic violence shelters through a portion of the fees for marriage licenses was found unconstitutional in a 4-3 decision of the Illinois Supreme Court February 21. The Domestic Violence Shelters Act (Illinois Revised Statutes 1983, ch. 40, sec. 2401 et seq.) had provided funds via a levy on the filing fees for divorce actions and a new $10 fee added to that already charged for issuance of marriage licenses. The levy on divorce fees was struck down in 1984 in the high court decision on Crocker v. Finley (99 Ill. 2d 444). With its February decision in John C. Boynton et al. v. Stanley T. Kusper Jr., Cook County Clerk [Docket Nos. 61314, 61315, 61324 cons.], the court had eliminated the entire funding part of the act.

Plaintiffs in the class action charged that their due process rights under Article 1, section 2, of the state Constitution were violated since the fee was in reality a tax on a limited class of individuals for the benefit of a larger class, many of whom might not have to pay the tax. The majority opinion, written by Justice Howard C. Ryan, did not concern itself with the virtues of the domestic violence shelter program but concentrated on the constitutional issue. Ryan said that Crocker was controlling, since the basic provisions of the act had not changed in the interim. In classification for purposes of taxation the Constitution provides that "the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly" (Article IX, section 2). The court's decision defined the question both in Crocker and Boynton as: "whether the legislature could impose such a fee upon a limited group of plaintiffs where the funds collected went into the State Treasury to fund a general welfare program."

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The defendants attempted to establish a rational relationship between marriage and domestic violence, but the court found "the relationship between the purchase of the marriage license and domestic violence to be too remote to satisfy the rational-relation test of due process." Ryan also pointed out that using the same cause-and-effect test,". . . other worthy social programs can be found that are just as closely and reasonably related to marriage as is domestic violence, if no more so."

The court went further, using the "strict scrutiny" test, and found the tax to be "a direct impediment to the exercise of the fundamental right to marry" since the now nominal fee could be raised to prohibitive limits in the future. "Once it is conceded that the State has the power to impose a special tax on a marriage license . . . there is no limit on the amount of the tax that may be imposed."

Dissenting opinions were filed by Justices Ben Miller and Seymour Simon; Justice Joseph H. Goldenhersh concurred in the former. The dissenting opinions objected to the level of strict scrutiny, finding the fee no serious impediment to marriage, with Simon criticizing the application of "hypotheticals not before us which assume a legislature run amok."

Both found the purpose of the legislation constitutional. Miller cited a finding of the U.S. Supreme Court in 1938: "A tax is. ... a means of distributing the burden of the cost of government." Simon said, "Countless taxes which fall on a limited group benefit a larger number of people." Both concluded that the classification was acceptable since, as Simon wrote, "those most likely to use the shelters and services were married."

The effect of the decision, according to the Illinois Coalition Against Domestic Violence, which was an intervenor in the case, is the curtailment of services to at least 10,000 women and children each year and the elimination of needed new programs. The levy on marriage fees was the largest single source of public funds for the services; 57 percent of the costs are provided locally.

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Reaction to the decision included a statement by Senate President Philip J. Rock (D-8, Oak Park), a sponsor of the bill creating the act. He said, "I plan to spearhead efforts to find an alternative funding source. The General Assembly has a responsibility to assure adequate funding for these worthwhile programs.'' 

F. Mark Siebert

Death penalty case: the case of a 'prejudiced' juror amid waivers

IN a death penalty case, the defendant lost his bid for a new trial in a split decision handed down by the court on February 21. In People v. Porter (111 Ill. 2d 386) the defendant waived his right to determination of the sentence by a jury. Between the two stages of the sentence hearing the judge recalled that the jury had not been formally dismissed. At the dismissal it was revealed that one juror realized during the trial that she attended the same church as the mother of one of the victims.

The defendant argued, first, that the preliminary juror examination (voir dire) did not reveal this information. Justice Howard C. Ryan's opinion for the majority held that the defendant did not use the available opportunity to request the court to ask suitable questions. After the revelation at the dismissal, defense counsel moved orally for a mistrial; since his written motion did not question the adequacy of the voir dire, it constituted a waiver of that issue. The motion for a new trial was rejected because the burden of proof was on the defendant, who did not sustain his charge of prejudice.

Finally, the defendant claimed that the revelation about the juror forced him to waive a jury determination of the sentence since the jury would be prejudiced. The decision held that this waiver was made before the revelation of suspected prejudice, and, furthermore, that the defendant could have moved for empanelment of a new jury but did not do so.

Chief Justice William G. Clark dissented, raising several points that seem to support a presumption of prejudice by the juror in question. He quoted his own dissent in a 1985 case: "The right to a trial by an impartial tribunal is so basic that a violation of the right requires a reversal." He was joined by Justices Joseph A. Goldenhersh and Seymour Simon. The latter wrote an additional dissent criticizing the trial judge's effort to determine the degree of the juror's prejudice and his refusal to allow the defense counsel to examine the juror. 

F. Mark Siebert

Nursing home negligence: Double recovery of damages violates due process

DOUBLE recovery of damages is not possible under the Nursing Home Care Reform Act (Ill. Rev. Stat. 1983, ch. 111 1/2, sec. 4151-101 et seq.) according to the decision handed down by the Illinois Supreme Court on February 21 in the case of Harris v. Manor Healthcare Corporation (111 Ill. 2d 350). Justice Thomas J. Moran wrote the decision.

The plaintiff alleged negligence by the home since she developed an infected bedsore, which led to amputation of her leg. The act permits recovery of both treble damages and common law punitive damages. Plaintiff and defendant agreed that this constitutes double recovery and that treble damages are the equivalent of punitive damages. The trial court agreed with the defendant that such double recovery violates due process.

The Supreme Court said, "We believe that the sole purpose ... is to provide plaintiffs with a choice of remedies and, we do not think that the legislature intended to authorize a double recovery. . . ." The remedy is to fashion the verdict "so that plaintiff recovers only one satisfaction."

The defendant claimed that punitive damages are to be assessed only when there is affirmative misconduct rather than negligence. It claimed that the act singled out private nursing homes, since such punishment is not imposed on institutions such as hospitals and public care facilities. The court found that such special attention is needed since nursing homes do not come under systematic, governmental scrutiny as do other institutions. Residents accordingly need special means of redress. The act does not constitute special legislation since its provisions have a rational relationship to its aims.

F. Mark Siebert

Joint tenancy: signing away interest in bank account

SIGNATURE of one joint tenant of a bank account can commit the interest of another tenant if such provision is included in the contract with the bank. Justice Thomas J. Moran wrote the Illinois Supreme Court's decision in Pescetto v. Colonial Trust and Savings Bank (111 Ill. 2d 314) handed down February 21.

The agreement signed by the plaintiff and her husband provided that the bank is "authorized to recognize any of the signatures below in ... the transaction of any business for this account." Without the plaintiff's knowledge, her husband pledged the account as collateral for several loans from the bank. Upon his death the loans were in default, and the bank exercised its interest.

The plaintiff cited the 1984 case Harms v. Sprague (105 Ill. 2d 215) in which one joint tenant mortagaged his interest in a piece of real estate. In that instance the court held that the interest disappeared at his death. In the present case the court found that "Only one signature was required to transact business as to the interest of both joint tenants. Thus Mr. Pescetto's signature on the loan forms pledging the savings account as collateral was sufficient to pledge both his interest and the plaintiff's interest in the account."

F. Mark Siebert

34/May 1986/Illinois Issues