Negligent Use Of Self Defense
Trial Journal of the Illinois Trial Lawyers’ Association, Vol. 3, No. 1, Winter 2001
You receive a call from a referring attorney. He tells you that one of his clients was recently shot during an altercation. The shooter was arrested and is awaiting trial on attempted murder charges. He asks you if you are interested in representing his client for the injuries he received as a result of the shooting. Do you take the case?
Recent developments concerning the theory of “Negligent Use of Self Defense” may guide you in deciding whether or not to take the case.
Negligent Use of Self-Defense
Negligent use of self defense has long been recognized as a viable cause of action in Illinois. The courts first addressed the theory in Blackburn v. Johnson, 187 Ill. App. 3d 557, 135 Ill. Dec. 200, 543 N.E. 2d 583. In Blackburn, the plaintiffs’ decedent was the victim of a fatal stabbing incident. The defendant, Wendell Johnson, and his wife, Betty, had retired for the night in their trailer. “Their son, Phillip, who was intoxicated and had earlier argued with Wendell, came to the senior Johnson’s trailer, argued with Betty, and knocked her down. Wendell arose, confronted Phillip, and in a fight, obtained a knife and inflicted fatal wounds.” Id., 543 N.E. 2d 584. The plaintiffs’ theory of negligence was that the defendant’s use of excessive force was unreasonable as dictated by the exercise of ordinary care. The jury returned a verdict in favor of the plaintiffs on the negligence count and the defendant appealed. The defendant’s principal issue on appeal was whether the facts of the case could sustain a negligence verdict.
In support of his argument, the defendant argued that the stabbing was done intentionally and therefore a recovery based upon negligence was improper. On the other hand, the plaintiffs argued that the focus should be on the conduct surrounding the stabbing as opposed to the stabbing itself. The plaintiffs “in essence would find that a person using self defense would have a duty to the other party to only use so much force as a reasonably prudent person would in that situation. In the case of deadly force, a person could only employ it if a reasonably prudent person would determine it was necessary to do so to avoid imminent harm or death to himself or others. Thus, whether the ultimate act (the stabbing) is intentional or not is immaterial. The focus is on the determination of the necessity of the use of the force.” Id., 543 N.E. 2d 585.
In adopting the plaintiffs’ argument, the Appellate Court relied on W. Prosser, Law of Torts, Sec. 19, and Illinois Pattern Jury Instruction Civil No. 10.01. Specifically, when Prosser discussed self defense in the context of an intentional tort, he stated that the belief of the apparent necessity to use self defense must be reasonable under the circumstances. Further, the definition of negligence as used in the Illinois Pattern Jury Instruction Civil focuses on “something which a reasonably careful person would do or…not do,” Id, 543 N.E. 2d 586, citing Illinois Pattern Jury Instruction Civil No. 10.01, 53 (2d Ed. 1971). As a result, the court refused to overturn the jury’s verdict, concluding that the evidence could certainly support a finding that the defendant acted unreasonably in fatally stabbing his son.
Since Blackburn, the theory of negligent use of self defense has been upheld in Wegman v. Pratt, 219 Ill. App. 3d 883, 162 Ill. Dec. 221, 579 N.E. 2d 1035 and Tapps v. Ferraro, 235 Ill. App. 3d 43, 175 Ill. Dec. 895, 601 N.E. 2d 292.
Is Coverage Available?
Although it is clear that “Negligent Use of Self Defense” is a viable cause of action in Illinois, the recent trend has been to exclude damages received via such a theory from coverage under a typical homeowner’s policy.
The issue of coverage was first addressed in the context of a declaratory judgment action in Allstate Insurance Co. v. Carioto, 194 Ill.App.3d 767, 141 Ill.Dec.389, 551 N.E.2d 382. In Carioto the plaintiff in the underlying tort action, Jenner Evans, attempted to allege negligence as the result of an incident wherein he was robbed, attacked, and stabbed by Allstate’s insured, Jeffrey Carioto. The facts included a plea of guilty to attempted murder, thereby admitting intentional conduct. Further, the defendant made subsequent admissions of intentional conduct in a deposition. Finally, the defendant stabbed the victim a total of seventeen (17) times. Under this fact scenario, the trial court found that Allstate was neither obligated to defend nor indemnify its insured in the underlying tort action due to the intentional act exclusion. The Appellate Court affirmed.
The issue has subsequently been addressed in a declaratory judgment context in State Farm Fire and Casualty Company v. Leverton, 289 Ill.App.3d 855, 225 Ill.Dec. 308, 683 N.E.2d 476, 314 Ill.App.3d 1080, 247 Ill.Dec. 762, 732 N.E.2d 1094, American Family Mutual Insurance Company v. Savickas, 304 Ill.App.3d 614, and Lincoln Logan Mutual Insurance Company v. Fornshell, 309 Ill.App.3d 479, 242 Ill.Dec. 750, 722 N.E.2d 239.
In Leverton, the plaintiff in the underlying tort action, George Leverton, filed a complaint alleging both assault and negligence as a result of an incident wherein he was struck in the face with a beer bottle. Leverton’s negligence theory was based upon the negligent use of force in self defense. State Farm filed a declaratory judgment action seeking a declaration that it was not required to defend or indemnify its insured based upon the “intentional act” exclusion. The trial court adopted State Farm’s position. However, the Appellate Court reversed. Specifically, the Appellate Court held that the facts alleged in the underlying complaint were within, or potentially within, policy coverage. Accordingly, State Farm had a duty to defend. The court also held that it was premature to address the issue of indemnification since a judgment had not been entered against its insured.
As a result of the above ruling, Leverton’s tort case against State Farm’s insured proceeded to trial on the negligence count alone. The jury returned a verdict in favor of Leverton in the amount of $160,889.66. Subsequently a bench trial was held in the declaratory judgment action to determine the indemnification issue. The trial court ultimately agreed with State Farm finding that the policy did not provide coverage. The Appellate Court affirmed.
The Appellate Court applied the intentional acts exclusion to the facts of the case in reaching its conclusion. Specifically, the court found that the insured was convicted of aggravated battery. The court acknowledges that the conviction, while not conclusive, is indicative of the intentional nature of the insured’s acts. Further, the court found the plaintiff’s negligence allegations of swinging a beer bottle and hitting the plaintiff in the face were “weak”; in light of the fact that the insured was a 6′, 190 lb., correctional facility officer who could bench press 225 lbs. and was trained in self defense. Finally, the insured testified at trial that he intended to hit the plaintiff and get him away. Based upon these facts the court concluded that "Leverton’s injuries were not the result of an accident. Rather, they were the natural and ordinary consequence of Presswood’s intentional act of swinging at someone with a beer bottle in hand”. State Farm Fire and Casualty v. Leverton, 314 Ill.App.3d 1080, 247 Ill.Dec. 762, 732 N.E.2d 1094.
In Lincoln Logan, the parents of a murder victim sued a convicted murderer, Ronald Sturgeon, under a wrongful death and survival theory. Lincoln Logan defended Sturgeon under a reservation of rights. After a trial, the jury returned a verdict in favor of the victim’s parents and against Sturgeon in the amount of $174,329.43. Subsequently, Lincoln Logan filed a declaratory judgment action seeking a declaration that they were not obligated to indemnify Sturgeon based upon the intentional acts exclusion. The trial court determined that the intentional acts exclusion applied to the facts of the case and, consequently, excluded coverage.
In affirming the trial court, the Appellate Court noted that “Sturgeon’s claim of self defense was rejected by three (3) different juries and the trial judge specifically found Sturgeon intended to inflict bodily harm upon Fornshell without legal justification.” Lincoln Logan Mutual Insurance Company v. Fornshell, 309 Ill.App.3d 479, 242 Ill.Dec. 750, 722 N.E.2d 239.
Recently, in American Family Mutual Insurance Company v. Savicka, 304 Ill.App.3d 614, 238 Ill.Dec. 188, 717 N.E.2d 1, the Illinois Supreme Court addressed the issue of an insurer’s duty to defend and indemnify a negligent self defense lawsuit. In Savickas, the plaintiffs’ decedent in the underlying tort action was murdered by American Family’s insured, Michael Savickas. Among other theories, the plaintiff in the underlying tort action pursued a cause of action based on negligent self defense. American Family filed a declaratory judgment action seeking a declaration that its policy did not require American Family to defend or indemnify its insured in the underlying tort action based upon the intentional acts exclusion. The trial court granted American Family’s summary judgment motion. The Appellate Court reversed the trial court. Relying solely upon the allegations in the complaint, the Supreme Court reversed the Appellate Court, finding a duty to defend under the policy. In so doing, the Savickas court overruled that portion of Thornton v. Paul, 74 Ill.2d 132 that held that a criminal conviction only constitutes prima facie evidence that the acts in question fall within a policy exclusion. The Savickas court went on to hold that a criminal conviction can constitute estoppel effect in an appropriate case. The court then examined the facts of the case in an effort to determine whether Savickas’ criminal conviction should estop Savickas from seeking coverage for defense and indemnification under his policy.
In finding that Savickas’ criminal conviction DID estop him, the court found that the threshold requirements for estoppel were met. Specifically, the issues were identical in both the criminal and the declaratory judgment action, i.e., intent. Also, “there was a final judgment on the merits in the criminal litigation, to which Savickas was obviously a party”. American Family Mutual Insurance Company v. Savickas, 304 Ill.App.3d 614, 238 Ill.Dec. 188, 717 N.E.2d 1. The court did not find any unfairness in estopping Savickas since he had a fair opportunity to litigate all issues in the criminal trial. Consequently, the court held that since Savickas was convicted of an intentional act crime in his criminal case, he is estopped from asserting that he was acting negligently in his civil case.
Just as importantly, the court also held that the plaintiff in the civil case was also estopped. Specifically, the court found that since the plaintiff’s rights against American Family would be derivative of Savickas’ rights, the plaintiff can have no greater rights against American Family than Savickas. Since Savickas’ rights against American Family were limited, so, too, were the plaintiff’s.
Two conclusions can be drawn from the case law pertaining to negligent self defense. First, negligent use of self defense IS a viable cause of action in Illinois. Second, the courts have been very restrictive in finding a duty to defend and/or indemnify such a cause of action under a typical homeowner’s policy. However, even though the courts have been restrictive in finding coverage, it is the opinion of the authors under the right fact pattern, coverage may exist.
For instance, situations may arise wherein a person is harmed by someone’s negligent use of self defense, yet no arrest is made. Under those circumstances, coverage might exist. The courts that have addressed the coverage issue in the context of a declaratory judgment action all involved fact patterns wherein the insured either pleaded guilty or was found guilty of an intentional act or crime. Clearly, in light of Savickas, pleading guilty or being found guilty of an intentional act crime will estop the insured and the plaintiff in an underlying civil case. Further, even in situations where a criminal case has arisen, there is the possibility of establishing coverage. If you are retained early in a negligent self defense case it is IMPERATIVE that you meet with and work with the State’s Attorney prosecuting the criminal case. In a non-fatal case, chances are that the defendant will be charged with several crimes, one of which may not be an intentional act crime. Try to see to it that if a plea agreement is reached that the plea is to the crime that is NOT an intentional act crime. Chances are the defendant will receive the same sentence and the State’s Attorney will not care which crime the defendant pleads to. If you are able to make it over this hurdle, you will have a chance of finding coverage under the insured’s policy.