LILLY v. MARCAL ROPE AND RIGGING INC (1997)

This personal injury case arises from the use of an American Hoist locomotive crane on December 18, 1989.   The plaintiff, David Lilly, an employee at Granite City Steel, claimed that when one of the crane's pendant cables failed, he was severely injured.   Lilly sued Marcal Rope and Rigging (Marcal) and Bethlehem Steel on both negligence and product liability theories.   Lilly dismissed his cause of action against Bethlehem Steel at trial.   Marcal filed a third-party complaint against Granite City Steel for contribution.   The jury returned a verdict in Lilly's favor for $1,200,005.   On the contribution action, the jury attributed 90% of the fault to Granite City Steel and 10% of the fault to Marcal.

Marcal raises two points on appeal.   We will first address an issue of first impression:  is a plaintiff's employer a “third party defendant who could have been sued by the plaintiff” under the provisions of the joint liability law, section 2-1117 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1117 (West 1994))?   The second issue is whether the evidence supported the jury's verdict on the negligence and product liability counts.

Marcal asks that we reduce the judgment because section 2-1117 makes it severally liable since on the contribution action the jury found it only 10% responsible for Lilly's injuries.   Lilly contends, however, that the jury's finding that Marcal was 10% responsible on the contribution action does not entitle Marcal to relief from joint liability because Granite City Steel was not “a third party defendant who could have been sued by the plaintiff” under the terms of section 2-1117.   Therefore, Lilly contends, the jury's attribution of 90% of the fault to Granite City Steel under the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/2 (West 1996)) cannot be used to bring Marcal's responsibility below the 25% level contemplated by section 2-1117.   The question which must be answered is whether Lilly's employer is included in the phrase “any third party defendant who could have been sued by the plaintiff” in the joint liability provision.

The pertinent portion of the first statute to be considered, section 2-1117 of the Code, the joint liability law, is:

“Any defendant whose fault * * * is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant who could have been sued by the plaintiff, shall be severally liable for all other damages.”  (Emphasis added.)  735 ILCS 5/2-1117 (West 1994).

The second statute involved is the exclusivity provision of the Workers' Compensation Act, section 5(a), which provides:

“No common law or statutory right to recover damages from the employer * * * for injury or death sustained by any employee * * * other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act * * *.”  (Emphasis added.)  820 ILCS 305/5(a) (West 1996).

If we were to examine only these two statutes and the cases which have uniformly barred recipients of workers' compensation benefits from bringing a direct action against their employers because of the exclusive-remedy language of section 5(a) (Wells v. Enloe, 282 Ill.App.3d 586, 218 Ill.Dec. 425, 669 N.E.2d 368 (1996);  Laird v. Baxter Health Care Corp., 272 Ill.App.3d 280, 208 Ill.Dec. 758, 650 N.E.2d 215 (1994)), we would conclude that the employer is clearly not a “third party defendant who could have been sued by the plaintiff.”   However, Marcal contends that a third statute, the Contribution Act, and the supreme court's interpretation of it in Doyle v. Rhodes, 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382 (1984), require the employer to be included within those “third party defendants who could have been sued by the plaintiff” under section 2-1117.

The relevant portion of the Contribution Act provides:

“Right of Contribution. (a) * * *  [W]here two or more persons are subject to liability in tort arising out of the same injury * * *, there is a right of contribution among them.”  (Emphasis added.)  740 ILCS 100/2 (West 1996).

Marcal contends that since Doyle held that employers are within the class of those “subject to liability in tort” under the Contribution Act, it must follow that employers are within the class of those “who could have been sued by the plaintiff” under section 2-1117.   We disagree with this contention for several reasons.

 First, when the legislature passed section 2-1117, it did not use the phrase “subject to liability in tort.”   If the legislature had wanted to achieve the same result in section 2-1117 that it had provided for in the Contribution Act (and that the supreme court had specifically recognized in Doyle ), it would have used the same language.   When statutes are enacted after judicial opinions are published, it must be presumed that the legislature acted with knowledge of the prevailing case law.  People v. Hickman, 163 Ill.2d 250, 262, 206 Ill.Dec. 94, 644 N.E.2d 1147, 1153 (1994).   Therefore, the defendant's attempt to extend Doyle to the language of section 2-1117 is less than persuasive.

 The presumption of legislative knowledge of judicial opinions is of particular importance in this area both because of the multitude of Illinois Supreme Court cases that have recognized that section 5(a) prohibits suits by employees against employers and because of the language used in these cases:

“Section 5(a) bars a common law action by an employee against his employer for injuries received in the course of his employment and it also bars a statutory action against his employer for his wrongful death.”  (Emphasis added.)  Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 13 Ill.2d 460, 150 N.E.2d 141, 143 (1958).

Although the above quote is from 1958, similar language can be found in Illinois Supreme Court cases for the last 40 years.  Ramsey v. Morrison, 175 Ill.2d 218, 222 Ill.Dec. 100, 676 N.E.2d 1304 (1997);  Page v. Hibbard, 119 Ill.2d 41, 115 Ill.Dec. 544, 518 N.E.2d 69 (1987);  Chmelik v. Vana, 31 Ill.2d 272, 201 N.E.2d 434 (1964);  O'Brien v. Rautenbush, 10 Ill.2d 167, 139 N.E.2d 222 (1956).

The point that is made by these cases is that it is not just Doyle that the legislature is presumed to be aware of;  it is also the other cases, all of which had held that an employer is not one who “could have been sued by the plaintiff.”   If the legislature had intended to include employers within the class of those who could have been sued by the plaintiff for purposes of the joint liability law, it clearly would have used the one phrase that would have insured their inclusion:  “subject to liability in tort.”   The legislature's use of a different phrase, a phrase which has never been held to allow employers to be sued by injured employees, supports our conclusion that the legislature did not intend to include employers in that class in the joint liability law.

The second reason for our conclusion is found in a close reading of Doyle.   We begin by examining the actual question that Doyle decided, which was not whether injured employees can sue their employers, but, in the language of Doyle:

“whether the immunity of an employer from an action at law by an injured employee provided by sections 5(a) and 11 of the Workers' Compensation Act (Ill.Rev.Stat.1981, ch. 48, pars.138.5(a), 138.11) also bars an action for contribution against the employer by a third party * * *.” (Emphasis added.)  Doyle, 101 Ill.2d at 4, 77 Ill.Dec. at 760-61, 461 N.E.2d at 383-84.

Two things should be noted from the supreme court's statement of the issue it was addressing in Doyle.   First, and most important, it was not addressing the question of whether an employee could maintain a direct action against his or her employer;  it was addressing the question of whether a third-party defendant could maintain a contribution action against the employer.   Second, in the first emphasized portion of the question it was going to resolve, the supreme court recognized the inability of employees to bring actions against their employers.

The supreme court's statement of the issue before it in Doyle is not the only part of the opinion that indicates that the court was examining the meaning of “subject to liability in tort” only in the context of contribution actions.   First, the statement of the issue is repeated by the court just after its description of the procedural background of the case:

“We address first the third-party defendant's contention that its statutory immunity under sections 5(a) and 11 of the Workers' Compensation Act from tort actions by its employees also immunizes it from this claim under the Contribution Act.” Doyle, 101 Ill.2d at 6, 77 Ill.Dec. at 761, 461 N.E.2d at 384.

In addition, in rejecting the holding of Lake Motor Freight, Inc. v. Randy Trucking, Inc., 118 Ill.App.3d 626, 74 Ill.Dec. 192, 455 N.E.2d 222 (1983), Doyle recognized a distinction between contribution statutes that required joint liability or actual liability on a tort theory and the Contribution Act, which “requires only that the parties be ‘subject to liability in tort arising out of the same injury.’ [citation].”  Doyle, 101 Ill.2d at 12, 77 Ill.Dec. at 764, 461 N.E.2d at 387.

Further, although Doyle discusses an employee's theoretical ability to file a claim against his or her employer, it is clear from Doyle's concluding language on this point that the supreme court was focusing on the ability of third-party defendants to maintain actions against the employer under the Contribution Act:

“[W]e conclude that the Contribution Act focuses, as it was intended to do, on the culpability of the parties rather than on the precise legal means by which the plaintiff is ultimately able to make each defendant compensate him for his loss.”  (Emphasis added.)  Doyle, 101 Ill.2d at 14, 77 Ill.Dec. at 765, 461 N.E.2d at 388.

Indeed, the emphasized language in the last quote suggests the supreme court's recognition that there may well be different factors to consider between the Contribution Act's concern over the relative culpability of defendants and the plaintiff's ability to collect from among those defendants.

Finally, the actual holding of Doyle is in no way a recognition that injured workers can sue their employers:

“Consequently, we hold that, under the Contribution Act, the employer's immunity from a suit in tort by its employee as plaintiff is not a bar to a claim for contribution against it by a defendant held liable to such a plaintiff.”  (Emphasis added.)  Doyle, 101 Ill.2d at 14, 77 Ill.Dec. at 765, 461 N.E.2d at 388.

Instead, Doyle, in its actual holding:

(1) limited its interpretation of “subject to liability in tort” to the Contribution Act, and

(2) as the emphasized language establishes, specifically recognized that an employer was immune from suit in tort by its employees.

As indicated earlier, the conclusion and the actual holding of Doyle are important for another reason:  they, at least implicitly, recognize that there may be different concerns that are to be addressed depending upon whether the legislature is concerned with contribution among joint tortfeasors or the allocation of responsibility among defendants against whom the plaintiff has obtained a judgment.

 In examining that question, we must remember that, although the joint liability law and the Contribution Act share some elements, they are concerned with two different issues and two different time frames.

 The joint liability law is a limitation on the plaintiff's ability to recover from defendants, each of whom has been found to be the proximate cause of plaintiff's injuries and is therefore responsible for all the damages done to the plaintiff.   The joint liability law, however, provides a limitation on the amount the plaintiff can recover from defendants whose comparative culpability to one another is less than 25% of the total culpability.   The significant time frame of the joint liability law is after the judgment and before collection by the plaintiff.   The significant time for the Contribution Act is after collection by the plaintiff.

 If the plaintiff always collected from the defendants in accordance with the jury's assessment of their respective culpabilities under the Contribution Act, it would never come into play;  it is only when the plaintiff collects the judgment in a manner inconsistent with the jury's determination of responsibility under the Contribution Act that any action under it is necessary.

Under the common law, defendants who were jointly and severally liable were each responsible for all the damages sustained by a plaintiff.   Of course, this did not mean that the plaintiff could recover the full measure of damages from each defendant;  such a procedure was barred by restrictions against double recovery.   It did mean, however, that in a case involving three jointly liable defendants, a plaintiff could recover 50% of the damages from each of two of the defendants or 331/313% of the damages from each of the three defendants or 100% of the damages from only one of the defendants.   This ability of the plaintiff to pick and choose was not inequitable when viewed as between the plaintiff and the defendants because, after all, each of the liable defendants had been found to be a sufficient cause of the plaintiff's injury to be responsible for 100% of the plaintiff's loss.   W. Prosser, Torts § 52, at 347 (5th ed.1984);  see also Coney v. J.L.G. Industries, Inc., 97 Ill.2d 104, 73 Ill.Dec. 337, 454 N.E.2d 197 (1983).

The real inequity that occurred when the plaintiff chose to collect 100% of the damages from only one of the defendants was not an inequity between the plaintiff and that defendant.   The inequity arose because that defendant was unable to recover in an appropriate manner from the other defendants whose conduct was more culpable than his when the conduct of the defendants was compared.   This inability of defendants to recover from one another led to the supreme court's decision in Skinner v. Reed-Prentice Division Package Machinery Co., 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437 (1977).

In pre-Skinner days, if a plaintiff obtained a judgment for $100,000 against three defendants, A, B, and C, and decided to collect it all from defendant A, defendant A had no right to seek contribution from either B or C. Defendant A might, depending on the circumstances, be able to maintain an indemnification action against either B or C, or perhaps both of them, but Skinner recognized that indemnification was a crude tool at best because it was an all-or-nothing proposition.   Either A recovered from B and/or C all of the judgment it had paid to the plaintiff or A recovered nothing.   Since the relative culpabilities of the multiple defendants were rarely so clearly delineated, indemnification was not really a satisfactory tool.  Skinner recognized the unsatisfactory state of the law, recognized that defendants should be allowed to recover from one another based upon their culpability, and allowed contribution to occur.   The Contribution Act codified Skinner and is concerned with defendants' rights vis-a-vis other defendants.

As Doyle held, this ability of defendants to recover from one another in amounts proportionate to their relative culpabilities includes the ability to recover from the employer, who, under Doyle, is “subject to liability in tort” within the meaning of the Contribution Act. Obviously, the supreme court has determined that a relatively expansive reading of “subject to liability in tort” was necessary to allow defendants to equitably adjust their relative culpabilities depending upon the collection choices of the plaintiff.   The expansive reading of Doyle was later curtailed by Kotecki v. Cyclops Welding Corp., 146 Ill.2d 155, 166 Ill.Dec. 1, 585 N.E.2d 1023 (1991), which limited the responsibility of the employer in such actions to the amount of its workers' compensation lien.

 Is a similar expansive reading needed to achieve the purposes of section 2-1117, the joint liability law?   Obviously, the statute restricts a plaintiff's common law rights, and thus it should be strictly construed.   Summers v. Summers, 40 Ill.2d 338, 342, 239 N.E.2d 795, 798 (1968);  see also American Ambassador Casualty Co. v. City of Chicago, 205 Ill.App.3d 879, 150 Ill.Dec. 755, 563 N.E.2d 882 (1990).   Under the 1986 version of section 2-1117, which applies to this case, the plaintiff was no longer able to collect 100% of the nonmedical portions of a judgment from any defendant unless that defendant's fault was more than 25% of the total fault of certain enumerated parties who were involved in producing the injury.

The question that must be answered is, Whose fault is to be counted in determining whether any particular defendant's fault exceeds 25% of the total?   Obviously, the defendants sued by the plaintiff would be included, and the statute says that.   The legislature has also determined that the plaintiff's fault should be included:  “the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and * * *.”  (Emphasis added.)  735 ILCS 5/2-1117 (West 1994).

What about the third category that the legislature included and that is obviously the focus of this appeal:  “any third party defendant who could have been sued by the plaintiff”?   Did the legislature intend to include the plaintiff's employer within that description?   As has been indicated earlier, the failure of the legislature to use the phrase “subject to liability in tort” from the Contribution Act, a phrase which had already been construed to include the employer, strongly suggests that it did not.   When the failure to use the “subject to liability in tort” language is coupled with the section 5(a) language of the Workers' Compensation Act and the strong and the repeated pronouncements of the supreme court that employees are not allowed to sue their employers because of section 5(a), this strong suggestion becomes almost a certainty.

In addition to the background of the Contribution Act, Doyle, section 5(a), and the multitude of cases under section 5(a), there is a third basis for our decision:  the words of the statute itself suggest that the employer should not be included.   If, as the defendant contends, the legislature meant to include the employer (and anyone else who might be immune to suit), even though that employer or that spouse or the United States of America would be immediately successful on a section 2-619 motion to dismiss because of the appropriate immunity, then we must conclude that the legislature was speaking of theoretical actions.  “Could have been sued” in that context is reduced to meaning “Could plaintiff physically file a piece of paper naming a party as a defendant?”   Certainly, a plaintiff can physically do that.   A plaintiff can name anyone as a defendant-himself, his wife, his pet iguana, his State, his God, or his employer.   And all are immune from his suit.   Should we conclude that the legislature meant such a ridiculous result?

Our answer to the question is suggested by the question itself, but that is not the only basis for the answer.   In addition, it must be remembered that, in the same tort reform package that contained the restriction on joint liability, there was also a provision which penalized any party who filed a pleading which was not:

“after reasonable inquiry * * * well grounded in fact and warranted by existing law or good faith argument for the extension, modification, or reversal of existing law * * *.”  Ill.Rev.Stat.1986 Supp., ch. 110, par. 2-611.

The only basis that could support even a theoretical claim against plaintiff's employer was the supreme court's dicta in Doyle which interpreted the Contribution Act. Therefore, it is significant to note that the same Contribution Act provides:

“Rights of plaintiff unaffected.   A plaintiff's right to recover the full amount of his judgment from any one or more defendants * * * is not affected by the provisions of this Act.” (Emphasis added.)  740 ILCS 100/4 (West 1994).

Our fourth and final reason for our conclusion is found in this early legislative statement that the Contribution Act should not affect plaintiffs' rights to recover the full amount of the damages.   The statement is a recognition of the differences between the concepts behind the two statutes, a recognition that has also been described by legal commentators:

“All of these statements reflect a fundamental confusion between each defendant's individual full responsibility for the damages that she tortiously caused and the comparative responsibility percentages that are obtained by comparing the defendants' individual full responsibilities for the injury.   Neither defendant in either of these situations was merely ‘50% negligent’ or ‘50% responsible.’   Such statements make as much sense as saying that someone is ‘50% pregnant.’ ”   Nor did either defendant's negligence cause or occasion only 50% of the plaintiff's injury.   Rather, each defendant was 100% negligent, each defendant's negligence was an actual and proximate cause of 100% of the injury, and each defendant therefore is fully responsible for the entire injury.   Only when we compare their individual full responsibilities, and assume that they were equally negligent, does it make sense to say that each defendant, when compared to the other, bears 50% of the total comparative responsibility for the injury.”  (Emphasis added.)   R. Wright, The Logic and Fairness of Joint and Several Liability, 23 Memphis St. U.L.Rev. 45, 56 (1992) (Wright).

 As the legislature realized when it passed the Contribution Act, and as Professor Wright cogently points out, the Contribution Act is concerned with sorting out the relative rights of multiple defendants after the plaintiff has collected from among those defendants who are each fully responsible for all of his damages.   To illustrate this point, Professor Wright uses as an example two defendants, each of whom put enough poison into the plaintiff's coffee to kill her.   Clearly, each defendant's conduct would be sufficient by itself to cause plaintiff's death, and the plaintiff would be entitled to collect 100% of the damages from either defendant.   Professor Wright then modifies his hypothetical to highlight the different interests involved in contribution claims.

“Assume in the coffee drinker hypothetical that the first defendant deliberately put enough poison in the coffee cup to kill the coffee drinker, while the second negligently put the same amount in, so that the first defendant's comparative responsibility might be set at 90% and the second defendant's at 10%.   Can it really be that the first defendant, despite deliberately putting sufficient poison in the cup to kill the coffee drinker regardless of what the second defendant did, as a matter of logic or justice is only ‘90% responsible’ for the coffee drinker's death and thus should receive only 90% of the specified criminal punishment for murder (e.g., a 90% capital punishment) and be liable in tort for only 90% of the damages caused to the coffee drinker's survivors or estate?   Can it really be that the second defendant, despite negligently putting enough poison in the cup to kill the coffee drinker regardless of what the first defendant did, is only ‘10% responsible’ for the coffee drinker's death and thus is only liable for 10% of the damages caused to the coffee drinker's survivors or estate, even if for some reason no damages can be obtained from the first defendant?

* * *

The tortfeasor who initially pays the plaintiff has an equitable restitutionary (unjust enrichment) claim against the other tortfeasors for contribution or indemnity based on their comparative responsibility for the injury.   If she cannot obtain contribution from another tortfeasor because he is immune, insolvent or otherwise unavailable, this does not mean that she is being held liable for more than she tortiously caused, for more than she is responsible, for the other's tortious actions, or for his portion of the damages.   Whether or not she can obtain contribution, she is individually fully liable to the plaintiff for all the damages that were the actual and proximate result of her tortious behavior.   Her paying for all these damages fulfills her own responsibility to the plaintiff;  it is not a shifting to her of the unavailable tortfeasor's responsibility.   If one of the tortfeasors ends up paying all or a disproportionate share of the damages due to the immunity, insolvency, or unavailability of another tortfeasor, an unfair result unquestionably has occurred.   But the unfairness exists only in the context of the first tortfeasor's equitable restitutionary claim against the other tortfeasor for contribution, which is secondary to the plaintiff's prior and independent corrective justice claim against each tortfeasor, who is individually fully responsible for the plaintiff's injury.

A plaintiff necessarily faces the risk that any particular tortfeasor from whom he attempts to recover his damages may be immune, insolvent, or otherwise unavailable.   The immunity or insolvency of one tortfeasor, however, does not, as the critics of joint and several liability sometimes argue, provide any reason or justification for limiting the plaintiff's right to obtain full recovery from a different solvent and available tortfeasor, who is individually fully responsible for the plaintiff's injury.   Indeed, such a limitation would be an unjustified shifting of the unavailable tortfeasor's formal or ‘de facto’ immunity to the available tortfeasor, who has no such immunity.”  (Emphasis added.)   Wright, 23 Memphis St. U.L.Rev. at 60-62.

The individual responsibility of concurrent actors for the entire injury has also been recognized by the supreme court.   In Coney v. J.L.G. Industries, Inc., 97 Ill.2d 104, 121-22, 73 Ill.Dec. 337, 454 N.E.2d 197, 205 (1983), the court stated:

“A concurrent tortfeasor is liable for the whole of an indivisible injury when his negligence is a proximate cause of that damage.   In many instances, the negligence of a concurrent tortfeasor may be sufficient by itself to cause the entire loss.   The mere fact that it may be possible to assign some percentage figure to the relative culpability of one negligent defendant as compared to another does not in any way suggest that each defendant's negligence is not a proximate cause of the entire indivisible injury.”

 Just as the Contribution Act does not come into play until the plaintiff has collected more than a pro rata share from a defendant, so, too, the joint liability law does not come into play until a plaintiff has obtained a judgment against a defendant.   Therefore, in order to determine whether “any third party defendant who could have been sued by the plaintiff” should include the plaintiff's employer, the relevant inquiry is not whether there is a theoretical or philosophical possibility of suing the employer at the outset, but whether the plaintiff could obtain a judgment against an employer.   The judgment is the relevant time of inquiry under the joint liability law.   Could a plaintiff obtain a judgment?   If the employer did not raise the exclusivity provisions of section 5(a), presumably he could.   If the plaintiff did obtain such a judgment, then it would be fair to allow that judgment, and the jury's assessment of the employer's culpability, to be included in the section 2-1117 equation of allocation.   If, however, it was not the plaintiff but a third-party plaintiff who obtained the judgment, as will universally be the case in the real world, then the allocation provisions of section 2-1117 should not include the plaintiff's employer.

Is this result unfair to the defendant?   If the employer's conduct is not considered for purposes of the allocation of responsibility under section 2-1117, or if a settling defendant's conduct is not considered, or if any immune defendant's conduct is not considered, what is the practical effect?   Taking the settling defendant's conduct first, it is clear that the remaining defendants' rights under section 2-1117 have not been abridged.   The argument that the nonsettling defendants are entitled to keep the settling defendants in the case so as to hopefully reduce their own percentage of allocation of responsibility below the 25% level of section 2-1117 has been rejected.   Snoddy v. Teepak, Inc., 198 Ill.App.3d 966, 145 Ill.Dec. 64, 556 N.E.2d 682 (1990);  cf.  Lannom v. Kosco, 158 Ill.2d 535, 199 Ill.Dec. 743, 634 N.E.2d 1097 (1994).   As Snoddy indicates, the nonsettling defendants' responsibility is reduced by the amount already paid by the settling defendant.   In fact, as Blake v. Hy Ho Restaurant, Inc., 273 Ill.App.3d 372, 375, 210 Ill.Dec. 5, 652 N.E.2d 807, 810 (1995), points out:

“[A]ppellants' argument that their respective liability should be reduced by the pro rata share of the dismissed defendant's liability is misdirected and erroneous.   If such were the case, a nonsettling defendant would receive a double benefit.   First, any judgment amount entered in favor of a plaintiff would be reduced to reflect the partial settlement.   Then, potentially, the nonsettling defendants would reap an additional benefit if found less than 25% at fault because the judgment having once been reduced to reflect the settlement could be subject to less than full satisfaction under the terms of section 2-1117.”

Turning to defendants who are immune from suit, such as the plaintiff's employer, the State of Illinois, and others, what is the practical effect of eliminating them from the allocation equation?   First, as we indicated earlier, if for some unfathomable reason an immune defendant does not raise its immunity and is subjected to a judgment, then the allocation provisions of section 2-1117 would properly include that defendant's fault in the equation.   This result would be fair to all parties because as the plaintiff is able to collect whatever portion of the judgment was attributable to the immune defendant, so also should that immune defendant's conduct be considered under section 2-1117's allocation of fault.   But if the immune defendant asserts its immunity, or if the plaintiff does not file against the immune defendant because he or she is obeying the dictates of the supreme court rule which prohibits such unmeritorious filings (155 Ill.2d R. 137), then the immune defendant will never be subject to any collection procedure by the plaintiff and its conduct should not play any part in the allocation equation of section 2-1117.

This result is not unfair to the defendant in this case because both the original defendant, Marcal, and the employer and third-party defendant, Granite City Steel, are each responsible for 100% of the plaintiff's injury.   The conduct of each was a proximate cause of one indivisible injury, just as the negligent dispenser of poison and the intentional dispenser of poison were each fully responsible for the coffee drinker's death.   The fact that the relative culpability of the defendants vis-a-vis one another was calculated at 90%/10% under the Contribution Act does not change the responsibility of each to the plaintiff.   The fact that Marcal cannot recover the full amount of its contribution claim from Granite City Steel is the result of Kotecki, not the result of the language of section 2-1117.

 For all the foregoing reasons, we hold that, for purposes of section 2-1117, an employer is not a “third party defendant who could have been sued by the plaintiff.”   Therefore, Marcal's percentage of responsibility under section 2-1117 is not below 25%, and it is jointly liable for all damages to plaintiff.

[The following material is nonpublishable under Supreme Court Rule 23 (Official Reports Advance sheet No. 25 (July 20, 1994), R.23, effective July 1, 1994)].

We now turn to the second question, whether the evidence supported the jury's verdict on the negligence and product liability counts.

To prevail on his negligence claim, Lilly had to prove that Marcal owed him a duty, that it breached that duty, and that Marcal's breach proximately caused his injury.  Boyd v. Travelers Insurance Co., 166 Ill.2d 188, 194-95, 209 Ill.Dec. 727, 730, 652 N.E.2d 267, 270 (1995).   To recover under strict liability in tort, Lilly had to prove:  (1) that his injuries resulted from a condition of the pendant cable;  (2) that the condition was an unreasonably dangerous one;  and (3) that the condition existed at the time the product left the defendant's control.   See West v. Deere & Co., 145 Ill.2d 177, 164 Ill.Dec. 122, 582 N.E.2d 685 (1991);  Artis v. Fibre Metal Products, 115 Ill.App.3d 228, 71 Ill.Dec. 68, 450 N.E.2d 756 (1983).   Marcal does not contend that Lilly failed to prove that the pendant cable failed or that this cable failure caused his injuries.   Marcal argues that Lilly presented no evidence that the pendant cable's failure was caused by an act or omission on the part of Marcal.

The crane in this case is called a locomotive crane because it runs on railroad tracks.   The pendant cables are two parallel cables that run from a bail at the back of the cab to support the boom tip.   We note that the pendant cable which is the subject of this suit was lost after the accident and was not available at trial.   Granite City Steel employees testified that they last saw the cable cut in pieces and lying on the floor at the plant.

Dick Miller testified that he has a business degree and has been president and manager of Marcal for nearly 20 years.   He testified that from 1988 to 1989 Marcal replaced two pendant cables at Granite City Steel.   Miller testified that at that time Granite City Steel asked him to get 40-foot pendant lines as quickly as possible.   When Miller was asked why he sent a pendant cable that had a lesser breaking strength than was required by the crane manufacturer, Miller testified that he was not given specifics on what was required.   He was told only that they needed a 40-foot pendant line.   Miller testified that he knew that Granite City Steel was relying on him when they ordered the cable.   He told them what was available, and that is what he supplied.

Miller testified that the component hardware that was used on the cable that ultimately broke was the weak link in the whole assembly.   He testified that the pendant socket exceeded the safe working load of that assembly and that the result in this case would have been the same no matter what diameter cable was used.   He testified that Granite City Steel abused its locomotive cranes by moving slabs, which imposes repeat shock on the cranes from the pulling of a load up-and-down and side-to-side.

Miller's company was asked to make a pendant cable that has a 11/212-inch wire rope and a 13/838-inch socket on each end.   His company made the assembly used in securing the wire to fit on the crane.   When asked whether Miller made an assembly weaker than the wire, he stated, “Only because there was one at the factory that they asked me to duplicate, and I did.”   Miller testified that he told Don Bowles at Granite City Steel that the assembly did not have matching component parts. Miller testified that although Marcal had in fact weakened the assembly, he did not tell Bowles that Marcal had weakened the assembly.   Miller testified that in order to accommodate 11/212-inch wire rope into a 13/838-inch socket, he had to bore the sockets out.   He testified that as a result, Granite City Steel had a weaker assembly than a person would expect with a 11/212-inch rope.

Miller also testified that after replacing the cable and reworking the assembly, the crane had a wire rope with a safe working load of 22.8 tons and a socket with a safe working load of 16 tons.   In Miller's opinion, the socket in this assembly would break first in an overload situation.   The socket did not break, and Miller testified that he cannot see what the socket has to do with this case as the socket did not fail.

After the accident, Miller examined the pendant cable and found that it had four broken strands with numerous broken wires in each of the strands.   He testified that the internal wire core appeared to be breaking up.   He explained that when evaluating a break, one looks for a balanced or staggered break, which indicates that each part of the cable shared the load as it was failing.   Miller testified that based upon his observation of the broken strands in this case, he felt that there was a staggered break.   The break occurred at the base of the socket.   Miller testified that he believed that this was a fatigue failure, as opposed to a shearing of the cable.

Russell Maier, an employee at Granite City Steel, testified that he is a crane operator and the person in charge of torch repairs.   Maier inspects 187 cranes on a semiannual basis.   In addition to Maier's inspection, the cranes are inspected monthly by operators and maintenance personnel.   Maier testified that an inspection of the crane such as the one involved in this case usually takes him three hours.   Maier tries to coordinate his inspections with the monthly service inspection and maintenance operation.   Maier testified that he usually conducts a visual inspection of the running wires, which include the boom cables and hoist cable.   He also conducts a physical examination of the cables.   Wearing cotton gloves, Maier runs his hand down the length of the cable.   If there is a broken wire, it will catch on the gloves.   Maier testified that this procedure seems to work best because a visual inspection cannot always detect a broken wire through the paraffin buildup on the cable.   Maier testified that the industry standard with respect to the number of wires that may be broken in a pendant cable is two/one, meaning two wires broken anywhere in one lay or one broken against the socket.   Maier testified that at Granite City Steel if he sees two wires broken anywhere on a pendant cable in one lay, he asks for it to be replaced.   If he sees one wire broken within an inch of a socket, he will ask that it be replaced.

Maier was called to inspect the broken pendant cable in this case in December of 1989.   Maier had inspected the pendant cable just five weeks prior to this incident, and at that inspection he did not find any abnormalities regarding the pendant cables.   After the accident Maier observed that the cable was broken near and in the socket.   There were wires broken inside the socket and immediately outside the socket.   The broken wires were straight or square across the end.   Maier testified that the socket was not broken.

Maier testified that on the day of the December 1989 inspection he made a report of a conversation he was privy to.   Maier testified that to his knowledge the information in his report is true and accurate.   Maier acknowledged that his report states, “Dick Miller from Marcal said he thought it broke inside the coupling closest to the cab.”

William Moss testified that he was at Granite City Steel working as a crane operator the day the pendant cable failed.   He testified that slab work, the type of work performed by this crane, is the most stressful work for a crane at Granite City Steel.   The crane moves slabs weighing up to 23 tons.   Slab work is stressful because there is constant shock-loading on the crane and the cables that work the crane.   Moss testified that at the time of this accident Granite City Steel was operating this crane 24 hours a day, seven days a week.

Moss testified that on the day of the accident he and the shop steward, Rich Stallard, had noticed two broken wires up near the boom tip of the operator's right pendant cable.   Moss testified that after the accident he observed broken wires inside the pendant cable socket.   Moss further testified that Dick Miller never told him that Marcal had reduced the rated load capacity of this particular crane's assembly by using a 13/838-inch socket on a 11/212-inch rope.

Moss further testified regarding a report from as outside contractor which he received on March 11, 1988.   According to that report, as of March 11, 1988, $25,000 worth of repairs were needed on the crane that is subject of this lawsuit.   Included in this report were suggested repairs to solve problems that were possibly causing the boom cables to prematurely wear out.   Moss testified, however, that the report did not refer to any problems with the pendant cable.   Moss acknowledged that a new pendant line was installed in May of 1988.   He also testified that some repairs were made in 1990, but he was not sure what those repairs were.   Moss testified that between January 1988 and November 1989, the boom cables were replaced 20 times.

Richard Stallard, a crane operator, employed at Granite City Steel since 1964, testified that he was called the day of the accident to investigate it.   Stallard testified that the slab David Lilly had been lifting at the time of the incident weighed between 10 and 14 tons, which is not over capacity.   Stallard noticed that the cable was pulled out of the socket two or three inches.   Stallard testified that Marcal had told him that it was impossible for the cable to come out of the socket;  however, after the accident Stallard observed there were perhaps two broken wires.

Stallard also testified that prior to the accident he had discussed the possibility of the cable breaking with Mr. Miller of Marcal.   According to Granite City Steel standard crane maintenance procedures, which Stallard helped institute, cables were to be replaced if the number of broken wires exceeded a certain number.   According to the standard maintenance procedures, the 10 to 15 broken wires in existence prior to the accident were within the tolerance permitted.   Stallard, however, was concerned because he had never seen the wires break from the inside-out before.   He asked Miller to inspect the cable.   Miller inspected the cable and assured Stallard that, even though there were 10 to 15 broken wires every two or three feet in the line, there was no need for concern.

Hans Seemiller testified that he is a supervisor in the Granite City Steel maintenance department.   He testified that after the David Lilly incident he noted that the pendant cable was broken.   He stated that while three strands of the cable were holding, it looked like a bird's nest with the wires spread out about an inch from the socket.   Seemiller testified that the socket was not broken, but that approximately five inches of wire were involved in the break.

John McMullin testified that he is a general foreman of the roundhouse and garage department at Granite City Steel.   McMullin testified that in 1988 two pendant cables were changed on the crane at issue because there were a few broken wires and rust around the socket.   McMullin also testified that between January of 1988 and November of 1989, the boom cables on that crane were replaced quite frequently.   McMullin testified that after the accident he noted that the pendant line had broken near the socket.   The socket was not broken, but there were several broken wires resembling a bird's nest effect.   McMullin testified that it appeared to him that all of the broken wires were outside the socket and that none of the wires had pulled out of the socket.

Marcal argues that David Lilly failed to prove that his injuries were proximately caused by Marcal's alleged negligence or by a defect in the pendant cable which made it unreasonably dangerous.   Marcal insists that Lilly presented no evidence to show that anything done by Marcal even contributed to the cable failure.

Although a legal inference of defectiveness may not be drawn merely from evidence that an injury occurred (Renfro v. Allied Industrial Equipment Corp., 155 Ill.App.3d 140, 154, 107 Ill.Dec. 844, 857, 507 N.E.2d 1213, 1226 (1987)), a prima facie case that a product was defective and that defect existed when it left the manufacturer's control is made by proof that in the absence of abnormal use or secondary causes, the product failed to perform in light of its nature and intended function.  Varady v. Guardian Co., 153 Ill.App.3d 1062, 1066, 106 Ill.Dec. 908, 911, 506 N.E.2d 708, 711 (1987).   The issue of whether a product is defective is ordinarily a question of fact for the jury.  Anderson v. Hyster Co., 56 Ill.App.3d 41, 48, 13 Ill.Dec. 562, 567, 371 N.E.2d 279, 284 (1977), aff'd, 74 Ill.2d 364, 24 Ill.Dec. 549, 385 N.E.2d 690 (1979).   A verdict is contrary to the manifest weight of the evidence only where, upon review of all of the evidence in the light most favorable to the party who prevailed at trial, an opposite conclusion is clearly apparent or the jury's finding is palpably erroneous and wholly unwarranted, is clearly the result of passion or prejudice, or appears to be arbitrary and unsubstantiated by the evidence.  Renfro, 155 Ill.App.3d at 156, 107 Ill.Dec. at 858, 507 N.E.2d at 1227.

Here, the jury was instructed in pertinent part as follows:

“The plaintiff claims that he was injured and sustained damage and that the defendant was negligent in one or more of the following respects:

(a) Negligently and carelessly constructed the pendant cable assembly in that it failed to properly support the boom and load of crane #8.

(b) Negligently and carelessly failed to properly inspect the pendant cable assembly.

(c) Negligently and carelessly failed to adequately wedge the pendant cable assembly's sockets to the cable.

(d) Negligently and carelessly constructed the pendant cable assembly with wire rope and/or sockets that were not capable of meeting, or designed to meet, the stress placed on them by use at Granite City Steel.

(e) Negligently and carelessly failed to notify Granite City Steel Corporation that the pendant cable assembly failed to meet minimum safety standards prescribed by the manufacturer of the crane when the defendant knew, or in the exercise of due care should have known, that such presented a hazard to plaintiff.

The plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries.

The defendant denies that it did any of the things claimed by the plaintiff, denies that it was negligent in doing any of the things claimed by the plaintiff, and denies that any claimed act or omission on the defendant's part was a proximate cause of the plaintiff's claimed injuries.

The defendant further denies that the plaintiff was injured or sustained damages to the extent claimed.

* * *

The plaintiff claims that he was injured as a result of the pendant cable assembly and that there existed in the pendant cable assembly at the time it left the control of the defendant a condition which made the pendant cable assembly unreasonably dangerous in one or more of the following respects:

(a) It was defectively designed in that when crane #8 was lifting a load the pendant cable assembly broke.

(b) Defendant constructed the pendant cable assembly out of sockets and/or wire rope that was not fit for its use at Granite City Steel.

The plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries.

The defendant denies that any claimed condition of the pendant cable assembly made the pendant cable dangerous;  and denies that any claimed condition of the pendant cable assembly was a proximate cause of plaintiff's injuries.

The defendant further denies that the plaintiff was injured or sustained damages to the extent claimed.  * * *”

Here, the record was sufficient for the jury to find that Marcal was negligent and that its negligence was a proximate cause of Lilly's injuries.   Marcal admittedly weakened the strength of the pendant cable assembly when it bore the socket out in order to wedge the cable.   There was evidence that the pendant cable broke in or near the socket assembly.   Although Marcal was called to inspect the pendant cable as to breaks in the wire, soon after the inspection the pendant cable broke and plaintiff was injured.

In addition, there is sufficient proof in the record to show that there existed in the pendant cable assembly, at the time it left the defendant's control, a condition which made it unreasonably dangerous and which proximately caused plaintiff's injuries.   The existence of a defect may be proved inferentially by either direct or circumstantial evidence.  Ralston v. Casanova, 129 Ill.App.3d 1050, 1057, 85 Ill.Dec. 76, 81, 473 N.E.2d 444, 449 (1984).   Here, the pendant cable was less than two years old.   Although the cranes were admittedly being used on a 24-hour basis, Richard Stallard testified that pendant cables are expected to last 10 to 14 years.   Because the cable was lost soon after the accident, the precise problem was never pinpointed.   Dick Miller, president of Marcal, testified that the cable suffered a staggered break, wich was evidence of fatigue failure.   Nevertheless, Miller admitted that Marcal had in fact weakened the socket assembly in order to accommodate a 11/212-inch wire rope.   Russell Maier and William Moss testified that they observed broken wires inside and immediately outside the socket.   In addition, both John McMullin and Hans Seemiller testified that, although the socket was not broken, there were broken wires around the socket protruding in a bird's nest effect.

Bases on this evidence, the jury could have concluded that the socket assembly, which Marcal Rope admittedly altered, contributed to the cable breakage and, hence, was defective.   The jury could have concluded that the cable and attached socket were in an unreasonably dangerous condition when they left Marcal Rope's control and were proximate cause of David Lilly's injuries.   We cannot find that the jury's decision was against the manifest weight of the evidence.

Since we have concluded that, for purposes of section 2-1117, an employer is not a “third party defendant who could have been sued by the plaintiff” and that the evidence supports the jury's verdict, we affirm the decision of the trial court.

Affirmed.

Justice CHAPMAN delivered the opinion of the court: