Center for America

State Tort Law Profile

State List

 

Illinois

Last updated 08/25/2009

Analysis prepared for the Center for America by by Shook, Hardy & Bacon L.L.P

Liability

Joint and Several

        Economic Damages

Limited

Defendants are jointly and severally liable for past and future medical expenses.  

For all other damages, joint liability applies to defendants that are 25% or more at fault.

Joint liability continues to apply in cases involving discharge of pollutants into the environment.   

735 Ill. Comp. Stat. 5/2-1117, 2-1118 (upheld in Unzicker v. Kraft Food Ingredients Corp., 783 N.E.2d 1024 (Ill. 2002)).

 

      Non-Economic Damages

Limited

See above.

 

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

Yes

Parsons v. Carbondale Township, 577 N.E.2d 779 (Ill. App. Ct. 1991) (“The determination of comparative negligence . . . requires consideration not only of plaintiff's and defendant's fault, but that of nonparty tortfeasors as well.”), appeal denied, 587 N.E.2d 1017 (Ill. 1992).

Smith v. Central Ill. Pub. Serv. Co., 531 N.E.2d 51 (Ill. App. Ct. 1988) (“Moreover, in cases where contributory negligence is involved, it is permissible to introduce evidence of the liability of a nonparty.   The liability of nonparty tortfeasors may be considered in order to determine the extent of plaintiff's responsibility for his injuries.  The liability of nonparty tortfeasors may not be considered to limit defendant's liability.”) (citations omitted).

 

Market Share Liability

No

Smith v. Eli Lilly & Co., 560 N.E.2d 324 (Ill. 1990).

 

Defenses

Comparative Negligence

No

A plaintiff who is more than 50% at fault is barred from recovery. 

735 Ill. Comp. Stat. 5/2-1116; see also Reuter v. Korb, 616 N.E.2d 1363 (Ill. Ct. App.) (declaring statute to be constitutional), appeal denied, 624 N.E.2d 816 (Ill. 1993).

 

Assumption of Risk

No

Implied assumption of risk is subsumed within comparative negligence.  Erickson v. Baxter Healthcare, Inc., 151 F. Supp.2d 952 (N.D. Ill. 2001) (applying Illinois law); Coney v. J.L.G. Indus., Inc., 454 N.E.2d 197 (Ill. 1983); see also Byrne v. SCM Corp., 538 N.E.2d 796 (Ill. App. Ct. 1989) (finding that comparative fault applies in strict liability actions and thus assumption of risk is merely a damage-reducing factor).  But see Hastings v. Exline, 760 N.E.2d 993 (App. Ct. 2001) (finding plaintiff assumed risk when she slipped on wet stairs when alternative stairway was available), appeal denied, 766 N.E.2d 239 (Ill. 2002).

 

Product Misuse

Yes

A defendant is not strictly liable for an unforeseeable misuse of a product.

Perez v. Fidelity Container Corp., 682 N.E.2d 1150 (Ill. Ct. App.), appeal denied, 689 N.E.2d 1146 (Ill. 1997); J. I. Case Co. v. McCartin-McAuliffe Plumping & Heating, Inc., 516 N.E.2d 260 (Ill. 1987).

 

Compliance With Government Standards

No

Evidence that a product complied with government standards is generally admissible as to whether the product is defective, but it is not conclusive.

Moehle v. Chrysler Motors Corp., 443 N.E.2d 575 (Ill. 1982).

 

Statute of Repose

Yes

For strict product liability actions, 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.

735 Ill. Comp. Stat. 5/13-213(b); see also Costello v. Unarco Indus., Inc., 473 N.E.2d 96 (Ill. Ct. App. 1984) (upholding statute), rev'd on other grounds, 490 N.E.2d 675 (Ill. 1986).

 

10-year statute of repose from actions involving improvements to real property.

735 Ill. Comp. Stat. 5/13-214; see also Adcock v. Montgomery Elevator Co., 654 N.E.2d 631 (Ill. Ct. App.) (upholding statute), appeal denied, 660 N.E.2d 1265 (Ill. 1995); Billman v. Crown-Trygg Corp., 563 N.E.2d 903 (Ill. Ct. App. 1990) (same); Cross v. Ainsworth Seed Co., 557 N.E.2d 906 (Ill. Ct. App. 1970.

 

Government Contractor Defense

Yes

Hunt v. Blasius, 370 N.E.2d 617 (Ill. Ct. App. 1977), aff'd, 384 N.E.2d 368 (Ill. 1978) (defective highway pole manufactured and installed by contractor pursuant to government specifications); cf. Hammond v. North Am. Asbestos Corp., 435 N.E.2d 540 (Ill. Ct. App. 1982) (recognizing defense but finding it inapplicable where government specifications were obviously dangerous and contractor was aware of the danger but did not inform the government), aff’d, 454 N.E.2d 210 (Ill. 1983).

A statute providing a presumption of safety, where a product or component was specified or required by a state or federal agency responsible for the safety or use of the product, 735 ILCS 5/2-2103, was found unconstitutional in Best v. Taylor Mach. Works, Inc., 689 N.E.2d 1057 (Ill. 1997).

 

McLawsuits Permitted? 

Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No

745 Ill. Comp. Stat. 43/1 et seq. (Illinois Commonsense Consumption Act).

Compensatory Damages

Is there a statutory limit on economic damages?

No

 

Is there a statutory limit on non-economic damages?

Yes, for medical malpractice actions only

In a medical malpractice action against a hospital or its personnel, noneconomic damages may not exceed $1 million.  In a medical malpractice action against a physician, noneconomic damages may not exceed $500,000.

735 Ill. Comp. Stat. 5/2-1706.5. 

As of September 10, 2009, a constitutional challenge to the statute was pending in the Illinois Supreme Court.  See LeBron v. Gottieb Mem. Hosp., Nos. 105471-105745.

 

A prior Illinois law limiting noneconomic damages in medical malpractice actions to $500,000 was declared unconstitutional in Best v. Taylor Mach. Works, Inc., 689 N.E.2d 1057 (Ill. 1997).

 

Is recovery for medical monitoring permitted without physical injury?

Yes, as damages.

Lewis v. Lead Indus. Ass’n, 793 N.E.2d 869, 873-74 (Ill. App. Ct. 2003); see also Carey v. Kerr-McGee Chem. Corp., 999 F. Supp. 1109, 1119 (N.D. Ill. 1998) ("This court concludes that if faced with the precise issue now before the court, the Illinois Supreme Court would uphold a claim for medical monitoring without requiring plaintiffs to plead and prove either a present physical injury or a reasonable certainty of contracting a disease in the future."); Gates v. Rohm and Haas Co., 618 F. Supp. 2d 362, 368 (E.D. Pa. 2007) (same); Muniz v. Rexnord Corp., 2006 WL 1519571, *7 (N.D. Ill. May 26, 2006) (same).

 

Punitive Damages

Is there a statutory limit?

No

A general limit on the award of punitive damages to three times the award of economic damages was declared unconstitutional in Best v. Taylor Mach. Works, Inc., 689 N.E.2d 1057 (Ill. 1997). 

Punitive damages are not recoverable in healing art and legal malpractice cases.  735 Ill. Comp. Stat. 5/2-1115; see also Bernier v. Burris, 497 N.E.2d 763 (Ill. 1986) (declaring statute to be constitutional).

 

Is there any restriction on imposing multiple punitive damage awards for same conduct?

No

 

Does the state receive a portion of the punitive damage award?

Yes

Judges have discretion to direct a portion of a punitive damages award to the Illinois Department of Human Services.

735 Ill. Comp. Stat. 5/2-1207.

 

What standard is used?

Preponderance of the evidence

 

Procedures

Venue

Conducive to Abuse - 
Does the statute permit forum shopping?

Yes

In general, venue is proper in "the county of residence of any defendant who is joined in good faith" or "the county in which the transaction or some part thereof occurred out of which the cause of action arose."  Corporations organized under the laws of Illinois, and foreign corporations authorized to do business there are deemed to reside in any county in which they have a registered office or other office or are doing business. A foreign corporation not authorized to transact business in Illinois is a nonresident of  Illinois.  If all of the defendants in a case are nonresidents, the action may be commenced in any county.  

735 Ill. Comp. Stat. 5/2-101, 2-102.

 

Class Actions

Is there a right to an immediate appeal of class certification?

No

Effective January 1, 2003, the Illinois Supreme Court changed its rules to replace a provision allowing an appeal as of right with a provision allowing discretionary review of class action certification.

Ill. S. Ct. R. 306(a)(8).

 

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

Yes, but a court may reduce the bond

The bond or other form of security ordinarily shall be in an amount sufficient to cover the amount of the judgment and costs plus interest reasonably anticipated to accrue during the pendency of the appeal. If the court, after weighing all the relevant circumstances, including the amount of the judgment, anticipated interest and costs, the availability and cost of a bond or other form of security, the assets of the judgment debtor and of the judgment debtor’s insurers and indemnitors, if any, and any other factors the court may deem relevant, determines that a bond or other form of security in the amount of the judgment plus anticipated interest and costs is not reasonably available to the judgment debtor, the court may approve a bond or other form of security in the maximum amount reasonably available to the judgment debtor.

Ill. S. Ct. R. 305(a) (as amended June 15, 2004).

 

Evidence

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

No

Illinois applies the Frye "general acceptance" test for admissibility of novel scientific expert evidence.  

In re Commitment of Simons, 821 N.E.2d 1184 (Ill. 2004);  Illinois v. Miller, 670 N.E.2d 721 (Ill. 1996), cert. denied , 520 U.S. 1157 (1997).

 

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

Uncertain as to need to show actual reliance; causation in the form of actual deception is required

815 Ill. Comp. Stat. 505/2, 505/10a; see  Avery v. State Farm Mut. Ins. Co.,  835 N.E.2d 801, 861 (Ill. 2005) ("a plaintiff must prove that he or she was actually deceived by the misrepresentation in order to establish the element of proximate causation"), cert. denied, 547 U.S. 1003 (2006); Shannon v. Boise Cascade Corp., 805 N.E.2d 213, 217 (Ill. 2004) ("deceptive advertising cannot be the proximate cause of damages under the Act unless is actually deceives the plaintiff"); Oliveira v. Amoco Oil, 776 N.E.2d 151, 162 (Ill. 2002) (proximate cause is not satisfied "where a party was not deceived"); Zekman v. Direct Am. Marketers, Inc., 695 N.E.2d 853, 862 (Ill. 1998)  (finding that proximate causation is not satisfied where “the plaintiff’s testimony demonstrates that he was not deceived”). But see Connick v. Suzuki Motor Co., 675 N.E.2d 584, 593 (Ill. 1996) ("reliance is not an element of statutory consumer fraud, but a valid claim must show that the consumer fraud proximately caused plaintiff’s injury").

 

What is the level of scienter (intent) required of a defendant?

Intent that plaintiff rely

Siegel v. Levy Org. Dev. Co., 607 N.E.2d 194 (Ill. 1992).

Are class actions permitted?

Yes

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

No

Actual economic damages; court has discretion to award any relief it deems proper.

815 Ill. Comp. Stat. 505/10a.

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No

Court has discretion to award any relief it deems proper, including punitive damages.

815 Ill. Comp. Stat. 505/10a.

Does every prevailing plaintiff receive attorneys' fees and costs?

No

Court has discretion to award any relief it deems proper, including award of attorney’s fees to prevailing party.

815 Ill. Comp. Stat. 505/10a.

 

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

Yes

 “Nothing in this Act shall apply to any of the following: (1) Actions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States.”

815 Ill. Comp. Stat. 505/10b(1).

Also provides:

“In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.”

815 Ill. Comp. Stat. 505/2.

 

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

Yes

Are the grounds for obtaining an excuse from service closely defined?

No

A county board, jury administrator, or jury commissioner may excuse a prospective juror from service for “undue hardship on account of the nature of the prospective juror’s occupation, business affairs, physical health, family situation, active duty in the Illinois National Guard or Illinois Naval Militia, or other personal affairs.”

705 Ill. Comp. Stat. 305/10.2(a). 

 

May jurors automatically postpone and reschedule service?

Generally, no

Some courts, such as those in DuPage County, offer citizens the opportunity to automatically defer service.

Is a juror's employment and leave time adequately protected during service?

No

Law requires that an employer give an employee time off for jury service and prohibits an employer from discharging, threatening to discharge, intimidating, or coercing an employee because he or she serves on a jury.

705 Ill. Comp. Stat. 305/4.1(a), (b).  

 

Is there a limit on the frequency of jury service?

No

Is the length of service limited to no more than one day or one trial?

In some courts

Illinois law does not set a uniform term of jury service.  The length of jury service varies between courts.  In some areas, jurors may be on call for a week or more and may be required to check a recorded message each day to determine whether they are required to appear.  Several Illinois courts, such as those in Cook, DuPage, and Kane Counties, guarantee that a potential juror will not be required to spend more than one day at the courthouse unless he or she is selected to serve on a jury panel. 

 

Juror per diem

Generally, $5-$20 depending on the court.

Each county is required to pay jurors between $4 and $10 plus travel expenses for each day of necessary attendance as jurors, depending on the county.  Higher amounts may be fixed by the county board.

55 Ill. Comp. Stat. 5/4-11001.

 

Is additional compensation available on lengthy trials?

No

Is the potential penalty for nonappearance sufficient to encourage participation?

No

Fine of between $5 and $100. 

705 Ill. Comp. Stat. 305/15.

Problem Jurisdiction

Cook County

Madison County

St. Clair County

 

Named as Judicial Hellholes by the American Tort Reform Association.

 

 

This Analysis provides a brief overview of the law.  It is not a substitute for consulting with an attorney and is not intended to provide legal advice.  If you know of developments that are more recent than those reflected above, please send an email to LegalReform@lawexec.com.  Original material © 2009 Center for America.