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When one is injured twice in the same body part, the injuries are not automatically indivisible when apportioning liability.

Sakellariadis v Campbell, No. 1-07-2845; 2009 WL 1531832 (1st D 2009)

On May 29, 2009, the Illinois Appellate Court, First District, affirmed the judgment of the Circuit Court of Cook County ordering one of two defendants involved in two separate car accidents with the injured plaintiff to pay one half the total verdict, after the other defendant settled. The plaintiff argued that the trial court had erred and that she was entitled to the entire verdict less the settlement amount.

In July 2001, the plaintiff and the first defendant were involved in a collision. Three months later, the plaintiff was involved in another collision with the second defendant. The plaintiff filed a complaint alleging that each defendant's negligence proximately caused her severe and permanent eye injuries, and that the defendants were jointly and severally liable. The trial court held a jury trial solely to determine the question of damages. During the trial, the plaintiff's ophthalmologist testified the plaintiff had suffered eye injuries after the first accident, and the second accident delayed healing of the injuries. He testified that it would be very difficult to distinguish the role of each collision in the plaintiff's eye injuries. The plaintiff's orthopedic surgeon also testified it was difficult to quantify the plaintiff's injuries. On the other hand, doctors obtained by the second defendant testified that the plaintiff showed no evidence of injuries from the accidents.

Afterwards, the trial court instructed the jury to assign monetary damages and percentages of responsibility to each defendant. While the jury deliberated, the plaintiff entered into a settlement agreement with the first defendant for $150,000. After the jury returned a verdict of approximately $518,000, the trial court entered its judgment against the remaining defendant for 50% of the jury verdict. On appeal, the plaintiff argued that she should have received the entire jury verdict, minus $150,000 for the settlement, since the defendants caused her indivisible injuries and were jointly and severally liable.

Generally, the existence of a single, indivisible injury is necessary to establish that multiple defendants are jointly and severally liable. When the defendants are jointly and severally liable, the plaintiff can pursue all, some, or one of the defendants responsible for her injury for the full amount of damages. Although damages are apportioned when each injury is distinct from the other injuries or when there is a reasonable way of determining each defendant's contribution to a single harm, courts do not hold one defendant liable for the harm inflicted by another defendant just because it would be difficult to apportion the damages. Restatement (Second) of Torts [section] 433A. The court compared the facts of this case to the facts of Yanan v Ewing; in that case, although the plaintiff claimed her injuries were indivisible because the second accident aggravated her injuries from the first accident, the court ruled that the plaintiff's allegation that she was injured twice in the same part of her body would not transform two injuries into one single injury. 205 111 App 3d 96, 101, 562 NE2d 1243, 1246 (2nd D 1990).

Relying on Yanan, the appellate court ruled that the injuries were not indivisible just because the plaintiff was injured twice in the same part of her body, and rejected the plaintiff's argument that the defendants were jointly and severally liable. Furthermore, the court ruled that the trial court properly joined two actions for separate injuries into a single trial since it was judicially expedient to combine the cases. Lastly, although the plaintiff argued that the Joint Tortfeasor Contribution Act supported her claim that the second defendant should pay the difference between the settlement and the full jury verdict, the court ruled that she waived this argument because she did not include it in her brief, and as a result, failed to comply with the requirements of Supreme Court Rule 341(h)(7). Consequently, the court affirmed the judgment of the trial court entering a judgment of one half the total verdict.
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Author:Carpenter, Yulee
Publication:Illinois Bar Journal
Date:Aug 1, 2009
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