Patrick A. Salvi II: Buzzwords aside, advocating for safety is integral to tort law

The following letter to the editor by ITLA President Patrick A. Salvi II appeared in The Chicago Daily Law Bulletin on January 24, 2023.

Dear Editor,

Public safety and deterring negligent conduct have long been considered underlying purposes of tort law. See Johnson v. Equipment Specialists, Inc., 58 Ill. App. 3d 133 (4th Dist. 1978). This was reiterated by the First District in Jarosz v. Buona Cos., LLC, 2022 IL App (1st) 210181. Encouraging due care and deterring negligence are also noted as fundamental policies of tort law in Siemieniec v. Lutheran Gen. Hosp., 117 Ill.2d 230 (1987). The Illinois Supreme Court similarly identified deterrence as a fundamental principle of tort law in Beaman v. Freesmeyer, 2019 IL 122654.

Indeed, “safety” is in the jury instruction on the duty to use ordinary care, Civil IPI 10.04. The word appears in the definition of willful and wanton, where it is willful to consciously disregard the “safety of others.” See IPI 14.01. Under IPI section 55, “a defendant’s ability to implement or enforce safety procedures” and “the defendant’s general right to enforce safety on the job site” is emphasized. In fact, a defendant’s tendered non-IPI instructions removed the word “safety” from these instructions and was properly refused. See Jones v. DHR Cambridge Homes, Inc., 381 Ill. App. 3d 18 (1st Dist. 2008). Instructions on Res Ipsa Loquitur, whether for professional negligence (IPI 105.09) or not (IPI 22.01), explicitly discuss the safety of the plaintiff. Safety is also mentioned continually in the instructions and comments of IPI Section 120 on premises liability. In all, the word “safe” or “safety” is found repeatedly in the IPI and its comments.

Safety rules are frequently admitted at trial. See Hoffman v. Northeast Ill. Reg’l Commuter R.R. Corp., 2017 IL App (1st) 170537. These rules, when supported by a proper foundation, are essential for the jury’s consideration. In fact, evidence of compliance with statutes and safety regulations may be admitted, but is not conclusive, on the question of negligence. See IPI 60.01, citing Moehle v. Chrysler Motors Corp.,93 Ill.2d 299 (1982). The instructions on professional institutional negligence include a defendant hospital owing the patient a “duty of protection,” where conformance with that duty may be proved by evidence such as hospital by-laws.

Recently, these concepts were distorted by Donald P. Eckler in “$41M reversal: Reptile tactics are improper whether cloaked or not.” The term “reptile tactics” is as abstract as it is a buzz phrase used in the hopes that trial judges will knee-jerk grant a motion in limine restricting an attorney’s language at trial, despite law to the contrary. Trial judges should reject those efforts for all the above reasons and rule on an attorney’s argument based on context and the law. Further, a careful look at the opinion discussed by Mr. Eckler (Bland v. Q-West) reveals that “reptile tactics” were not part of the opinion. Rather, the Court noted that various arguments by plaintiff’s counsel crossed the line by directly tying the defendant’s duty to its own internal policies. The opinion did not discuss “reptile tactics” or prohibit the use of a defendant’s internal manuals, as Mr. Eckler suggests.

Patrick A. Salvi II
President, Illinois Trial Lawyers Association