Application of the Affirmative Defense of Comparative Negligence in Non-Traditional Scenarios

April 2020

By: Dylan R. Besser

1. Introduction

Two recent Federal courts interpreted Illinois law regarding the affirmative defense of comparative negligence in unique scenarios outside the typical personal injury lawsuit. The first case involved medical malpractice. Clanton v. United States, 18-3060 (7th Cir. 2019) (“Clanton”). The second case alleged breach of fiduciary duty.  Federal Deposit Insurance Corp. v. Chicago Title Insurance Co., No. 12-CV-05198 (Dec. 3, 2019), (“FDIC”), While the defendants in both cases argued that the plaintiff’s own comparative negligence should act as a defense to the plaintiff’s claims, the courts came to different conclusions.

2. The Proper Legal Standard(s)

To assess a plaintiff’s comparative negligence under Illinois law, courts apply the reasonable-person standard, an objective test that asks “whether plaintiff . . . used that degree of care which an ordinarily careful person would have used . . . under like circumstances.” McCarthy v. Kunicki, 355 Ill.App.3d 957 (2005). Essentially, as Clanton explained, “[t]he district court must determine how a reasonable person in the same position [as plaintiff] would have acted and compare Clanton’s behavior to that objective standard of care.” Clanton, 943 F.3d at 323. As such, courts are required to go beyond a plaintiff’s subjective understanding and compare it to that of a reasonable person in his situation’s understanding.

The FDIC court went further in its analysis, explaining that Illinois recognizes both statutory and common law doctrines of comparative negligence. Illinois’ comparative fault statute governs the apportionment of fault only to actions involving “death, bodily injury or physical damage to property.” 735 ILCS 5/2-116(c). By contrast, the common law defense of contributory negligence applies to “tort actions for recovery of economic loss.” Board of Trustees of Community College District No. 508 v. Coopers & Lybrand, 803 N.E.2d 460 (Ill. 2003).

3. Applied in a Medical Malpractice Action

In Clanton, Kevin Clanton sued the United States for damages, alleging that Denise Jordan, a nurse practitioner employed by the US Public Health Service, provided poor medical care that led to his kidney failure. Clanton’s treatment history, however, was not so cut and dry. Clanton initially went to Jordan after high blood pressure caused him to fail a pre-employment physical exam. Jordan ordered routine lab work and diagnosed Clanton with obesity and hypertension.

On Clanton’s second visit, Jordan gave him medication and told him to return in one week. However, Clanton did not return in one week and, instead, returned two years later after he showed high blood pressure at another employment-related physical exam. Following this second visit, Clanton returned to Jordan for care ten times over the next two years, but waited for long periods between visits and failed to take his prescribed medication if he felt well.

Three years after Clanton’s first visit, Jordan ordered new lab tests but never reviewed the results. Had Jordan reviewed the lab work, she allegedly would have noticed signs of kidney disease and referred Clanton to a nephrologist. Instead, Clanton did not learn for another year and a half that his hypertension had caused serious damage to his kidneys when a doctor finally diagnosed him with end-stage renal disease. Clanton eventually received a successful kidney transplant, but he would probably need further treatment, including one or more transplants, in the future.

After a five-day bench trial, the US District Court determined Jordan deviated from the standard of care.  Further, the court found no comparative fault on Clanton’s part and awarded him $30,000,000.

Jordan appealed. The US Circuit Court of Appeals remanded the case to the district court to consider the Illinois test for comparative negligence and whether Clanton was comparatively negligent.

The reviewing court explained that the wrong standard was used when the district court found no comparative negligence on behalf of Clanton. The district court focused its assessment of Clanton’s negligence based on his own limited understanding of his condition. The court reasoned that, because Clanton did not understand the seriousness of his severe hypertension, he did not act negligently when he missed medical appointments or when he failed to take his prescribed medication. The reviewing court reasoned that the assessment must go beyond Clanton’s own subjective understanding. Illinois law requires the court to take the additional step of comparing Clanton’s understanding of his condition to that of a reasonable person in his situation. Despite Jordan’s failure to provide information about the severity of Clanton’s condition, he still had external clues that he was seriously unwell. For example, Clanton underwent two physical exams that showed he had dangerously high blood pressure. It follows that the reviewing court vacated the judgment and remanded the case to the district court so that it could assess Clanton’s comparative negligence under Illinois’ reasonable-person standard.

4. Applied in Breach of Fiduciary Duty Claim

In FDIC, the Federal Deposit Insurance Corp (“FDIC”), acting as Receiver for Founders Bank, sued Chicago Title Insurance Co. (“Chicago Title”), asserting claims for breach of contract, breach of fiduciary duty, negligence, and negligent misrepresentation based on Chicago Title’s actions as escrow agent for four fraudulent real estate transactions funded by Founders Bank. A jury found Chicago Title liable on all four counts and awarded damages totaling $1,450,000.

Although the jury found that Founders Bank was 50% at fault, it also found that Chicago Title was not entitled to a reduction in the damages based on Founders Bank’s own alleged negligence.

As explained above, while Illinois does recognize both statutory and common law doctrines of comparative negligence, the common law doctrine applies to tort actions for recovery of economic loss. Given that the FDIC sought to recover for economic losses, only the common law defense was potentially applicable.

A claim for breach of fiduciary duty has similar elements as those for a standard tort claim. A plaintiff must show that a fiduciary duty exists, that the fiduciary duty was breached, and that such breach proximately caused the injury of which the plaintiff complains. However, in Illinois, a claim for breach of fiduciary duty is not treated as a tort claim but is analyzed under laws of agency, contract and equity.. Kinzer v. City of Chicago, 539 N.E.2d 1216 (Ill. 1989).

In concluding that the Illinois Supreme Court would hold that comparative negligence is not a defense to breach of fiduciary duty, FDIC cited several rulings that determined when a breach of fiduciary duty has been proven, “the wrongdoer is liable for the entire amount of the loss occasioned by his [or her] act.” Toro Petroleum v. Newell, 338 N.E.2d 491 (Ill. App. 1974).

The FDIC court noted a fiduciary relationship is characterized by the “trust and confidence” accorded to the fiduciary and the position of “influence and superiority” the fiduciary obtains by virtue of that relationship.  Tully v. McLean, 948 N.E.2d 714 (Ill. App. 2011). If a beneficiary’s negligent conduct could be used by the fiduciary as a defense against the person he or she is supposed to protect (the beneficiary), the purpose of a fiduciary relationship would be completely undermined. Bear Med. v. United States, 192 F. Supp. 2d 1053 (D. Mont. 2002).

Ultimately, the FDIC court concluded that, because breach of fiduciary duty is not a tort and a fiduciary such as Chicago Title occupied a position of trust and superiority relative to the party owed the fiduciary duty, Founders Bank, Illinois courts would not recognize comparative negligence as a defense to a breach of fiduciary duty claim.

5. Conclusion

In short, while comparative negligence may be an obvious defense in traditional personal injury matters such as a slip and fall, when asserted in other scenarios, the courts may reach divergent conclusions given the nature of the lawsuit, the facts, and the relationship of the parties. When the affirmative defense of comparative negligence is asserted in the medical malpractice setting, courts are required to look beyond a plaintiff’s subjective understanding and, in doing so, compare it to that of a reasonable person in his situation’s understanding. But keep in mind, with breach of fiduciary duty claims, Illinois courts would likely not recognize comparative negligence as a defense given the legal relationship between fiduciary and beneficiary.