Third-Party Defendants Can Present Evidence of Plaintiffs’ Contributory Fault

Posted by Bradford S. Purcell | Oct 31, 2017 | 0Comments

In a recent trial where our office successfully defended a third-party defendant/employer with respect to a construction accident, the plaintiff objected to the third-party defendant's presenting evidence of, and cross-examining the plaintiff regarding, the plaintiff's contributory negligence. The plaintiff had filed a suit alleging construction negligence by the general contractor, who in turn filed a third-party complaint for contribution against the employer. Because our client had waived its Kotecki protections in its subcontract, it was at risk for an amount in contribution that exceeded its considerable workers' compensation liability. The plaintiff argued that the issue of his contributory negligence was not relevant to the defendant/general contractor's contribution action. In fact, the plaintiff also moved to sever the third-party action from the plaintiff's complaint against the general contractor.

Although the court seriously considered the plaintiff's arguments, we convinced the court to allow the third-party defendant to present evidence of the plaintiff's contributory negligence. Rule 402 of the Illinois Rules of Evidence provides, “All relevant evidence is admissible, except as otherwise provided by law.” “It is well settled that evidence admitted into a case is available for all purposes, and every party is entitled to the benefit of all evidence whether produced by him or his adversary.” Dudanas v. Plate, 44 Ill.App.3d 901, 909 (1st Dist. 1976). The jury is instructed that it “should consider all the evidence without regard to which party produced it.” Ill. Pattern Jury Instructions, Civil No. 1.01. It therefore makes no difference whether evidence of a plaintiff's contributory fault is presented by the direct defendant or third-party defendant.

Evidence of the plaintiff's contributory negligence is obviously relevant to the third-party defendant's defense because the plaintiff's fault affects the general contractor's contribution action against the third-party defendant. If the jury returns a verdict in favor of the general contractor/defendant, there would be no right of contribution against the third-party defendant/employer. Even if the defendant is found liable to the plaintiff, the more the jury finds the plaintiff to be at fault for his own injury, the lower the damages for which the general contractor/defendant is liable and, correspondingly, the lower the amount for which it can seek contribution from the third-party defendant/employer. See Galliher v. Holloway, 130 Ill.App.3d 628, 636 (5th Dist. 1985) (“Questions probative of the issue of plaintiff's contributory negligence were . . . properly within the scope of third-party defendant's examination.”). This is shown clearly by the Illinois Pattern Jury Instructions' jury verdict form used in tort cases, No. 600.14, where the jury is instructed to assign the percentage of the total fault to the plaintiff, each defendant, and the third-party defendant. Naturally, in order to properly evaluate the fault of all parties, the jury must be able to review all evidence of the plaintiff's negligence.

Our arguments convinced the court to reject plaintiff's position, and we were allowed to cross-examine the plaintiff and his witnesses with respect to his contributory negligence. Our examination, along with questioning from the general contractor/defendant, persuaded the jury to return a full defense verdict, thereby eliminating any contribution action against our client. This experience is an example not only of the need to be fully prepared for any argument a crafty plaintiff's attorney may present (no matter how meritless it appears on its face), but also of how cooperation among defendants can lead to successful resolution of trials for all defendants.


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