specially concurring:
I agree with the court that, under the reasoning set forth in Doyle v. Rhodes, 101 Ill. 2d 1, 10-11 (1984), Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d 201, 207-08 (1997), and Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 514 (1994), a plaintiffs employer who is a third-party defendant is a party who “could have been sued by the plaintiff’ under section 2 — 1117 of the Code of Civil Procedure (735 ILCS 5/2 — 1117 (West 1994)). Accordingly, I also agree with the court’s conclusion that the employer’s fault must be included in the apportionment of fault conducted pursuant to that provision.4 I write separately to address plaintiffs’ contention that section 2 — 1117 is unconstitutional.
“The common law doctrine of joint and several liability provides, in general, that when two or more defendants tortiously contribute to the same, indivisible injury, each defendant may be held jointly and severally liable for the entire injury.” Best v. Taylor Machine Works, 179 Ill. 2d 367, 423 (1997). Section 2 — 1117 modifies the doctrine of joint and several liability by providing, in general, that independent concurring tortfeasors will be only proportionately liable for nonmedical damages when those tortfeasors’ percentage of comparative responsibility is less than 25%. Section 2 — 1117 states, in pertinent part:
“[I]n actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, all defendants found liable are jointly and severally liable for plaintiffs past and future medical and medically related expenses. Any defendant whose fault, as determined by the trier of fact, 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. Any defendant whose fault, as determined by the trier of fact, is 25% or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants who could have been sued by the plaintiff, shall be jointly and severally liable for all other damages.” 735 ILCS 5/2 — 1117 (West 1994).
See also Restatement (Third) of Torts: Apportionment of Liability §§ 17, D18 (2000) (listing jurisdictions which have adopted similar “threshold” statutes).
Section 2 — 1117 does not impinge upon a fundamental right or involve a suspect classification. Accordingly, to satisfy the constitutional requirements of due process and equal protection (Ill. Const. 1970, art. I, § 2), the statute need only satisfy the rational basis test. Under the rational basis test, we must determine “whether the method or means employed in the statute to achieve the stated goal or purpose of the legislation is rationally related to that goal.” Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 323 (1996).
A principal reason for modifying joint and several liability that was discussed during the legislative debates on the bill which resulted in section 2 — 1117 was that the doctrine of joint and several liability unfairly requires civil defendants to pay for more damages than they cause or for which they are responsible. Representative Greiman, for example, described the functioning of joint and several liability in terms which were repeated throughout the debates:
“[J]oint and several liability *** means that if you are one percent negligent, you must pay the entire judgment ***. *** We have changed that. We have heard from *** people all across the state that we are concerned that we are minimally hable, five, 10 percent liable, 15 percent liable, and we’re stuck for the whole thing. So we have said that there should be a threshold. If you are 25 percent liable, you are so much involved with causing that accident *** that you should respond in damages for the entire amount. But if you are less than 25 percent, then you should pay only your share. *** The minimally liable are no longer liable for any more than their share. Those people only who have a significant part of the liability will remain (jointly and severally] liable.” (Emphasis added.) 84th Ill. Gen. Assem., House Proceedings, June 30, 1986, at 8-9 (statements of Representative Greiman).
See also, e.g., 84th Ill. Gen. Assem., House Proceedings, June 30, 1986, at 65-68 (statements of Representative Regan); see generally R. Wright, Understanding Joint and Several Liability, 1 Shepard’s Ill. Tort Rep. 278 (1991) (discussing legislative history of section 2 — 1117).
Mirroring the comments made during the legislative debates, defendant Kraft maintains before this court that, under joint and several liability, a civil defendant who is only “minimally negligent” or “minimally culpable” with respect to a plaintiffs injury is required to pay for the entirety of the plaintiff’s damages. Defendant maintains that this is inherently unfair and that the modification of joint and several liability undertaken in section 2 — 1117 is a reasonable means of achieving the goal of eliminating this unfairness.
On several occasions, this court has explained that the doctrine of joint and several liability does not, by itself, require a civil defendant to pay for more damages than they cause or for which they are responsible. For example, in Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104 (1983), this court discussed joint and several liability as it related to the doctrine of comparative negligence or fault. Coney, 97 Ill. 2d at 110. The defendant in Coney maintained that, having adopted comparative negligence, this court should abandon the doctrine of joint and several liability. According to the defendant, “[w]ith the adoption of comparative negligence where damages are apportioned according to each party’s fault, *** it is no longer rational to hold a defendant liable beyond his share of the total damages.” Coney, 97 Ill. 2d at 120. We rejected this argument and held that the adoption of comparative negligence did not require the abolition of joint and several liability. In so holding, we stated:
“The feasibility of apportioning fault on a comparative basis does not render an indivisible injury ‘divisible’ for purposes of the joint and several liability rule. A concurrent tortfeasor is liable for the whole of an indivisible injury when his negligence is a proximate cause of that damage. *** 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.” (Emphases added.) Coney, 97 Ill. 2d at 121-22.
Subsequently, in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), we explained at length that tortfeasors who are held jointly and severally liable are each fully responsible for the entirety of the plaintiffs injury:
“ ‘Joint and several liability only applies to injuries for which the defendant herself is fully responsible. She is responsible for the entirety of some injury only if her tortious behavior was an actual and proximate cause of the entire injury. *** She is not liable for injuries, including separable portions of injuries, to which she did not contribute. She is not liable unless the tortious aspect of her conduct was an actual cause of the injury. Moreover, even then, she is not liable if, for reasons of policy or principle, her connection to the injury is considered too remote or minimal to be “proximate.”
A defendant’s individual full responsibility for an injury that was an actual and proximate result of her tortious behavior is not diminished if some other person’s tortious behavior also was an actual and proximate cause of the injury. Rather each defendant whose tortious behavior was an actual and proximate cause of the injury is individually fully responsible for the entire injury This is most obvious when a defendant’s tortious behavior was either necessary or independently sufficient for the occurrence of the injury, but it remains true whenever a defendant’s tortious behavior was an actual and proximate cause of the injury
* * *
[There is a fundamental difference] between each [joint] 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 [In situations where two defendants are held jointly and severally liable for negligently injuring a plaintiff] [n] either defendant *** [is] 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.’ ” (Emphases in original.) Best, 179 Ill. 2d at 428-29, quoting R. Wright, The Logic and Fairness of Joint and Several Liability, 23 Memphis St. U. L. Rev. 45, 54-56 (1992).
One year after Best, in Woods v. Cole, 181 Ill. 2d 512 (1998), this court again observed that the doctrine of joint and several liability does not require civil defendants to pay for more damages than they cause or for which they are responsible:
“In general, the common law doctrine of joint and several liability provides that when two or more individuals tortiously contribute to the same, indivisible injury, each individual may be held jointly and severally liable for the entire injury. See generally 3 F. Harper, F. James & O. Gray, Torts §§ 10.1, 10.2 (2d ed. 1986); W. Keeton, Prosser & Keeton on Torts §§ 47, 50 through 52 (5th ed. 1984); Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 119-20 (1983). Under the common law, there are several distinct circumstances in which a contributing tortfeasor may be held jointly and severally hable. See 3 F. Harper, F. James & O. Gray, Torts § 10.1 (2d ed. 1986) (identifying four categories in which the courts have historically imposed joint and several liability). In perhaps the most frequently occurring situation, a tortfeasor who acts independently and concurrently with other individuals to produce an indivisible injury to a plaintiff may be held jointly and severally hable for that injury, even though the tortfeasor does not act in concert with the other individuals, and shares no common purpose or duty with them. Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 438 (1992). Such an “independent concurring tortfeasor” (3 F. Harper, E James & O. Gray, Torts § 10.1, at 7 (2d ed. 1986)) is not held liable for the entirety of a plaintiff’s injury because he or she is responsible for the actions of the other individuals who contribute to the plaintiff’s injury. Rather, an independent, concurring tortfeasor is held jointly and severally liable because the plaintiffs injury cannot be divided into separate portions, and because the tortfeasor fulfills the standard elements of tort liability, i.e., his or her tortious conduct was an actual and proximate cause of the plaintiffs injury. See generally 3 F. Harper, F. James & O. Gray, Torts § 10.1, at 17-28 (2d ed. 1986); R. Wright, Allocating Liability Among Multiple Responsible Causes: A Principled Defense of Joint and Several Liability for Actual Harm and Risk Exposure, 21 U.C. Davis L. Rev. 1141, 1141-68 (1988); R. Michael, Joint Liability: Should It Be Reformed or Abolished? — The Illinois Experience, 27 Loy. U. Chi. L.J. 867, 906-08 (1996). The fact that another individual also tortiously contributes to the plaintiff’s injury does not alter the independent, concurring tortfeasor’s responsibility for the entirety of the injury which he or she actually and proximately caused. See Restatement (Second) of Torts § 875, Comment c, at 315 (1979); Coney, 97 Ill. 2d at 121-22.” Woods, 181 Ill. 2d at 518-19.
If the only possible justification for the “threshold” modification of joint and several liability set forth in section 2 — 1117 was that the modification is necessary in order to eliminate unfairness created by the doctrine of joint and several liability itself, then section 2 — 1117 could not be constitutionally sustained. Ensuring that civil defendants do not pay for more damages than they cause or for which they are responsible is a legitimate legislative goal. However, the legislature’s modification of joint and several liability in section 2 — 1117 is not rationally related to that goal because — as this court has explained repeatedly — joint and several liability does not force civil defendants to pay for damages which they do not cause or for which they are not responsible in the first place. See Coney, 97 Ill. 2d at 121-22; Best, 179 Ill. 2d at 426-29; Woods, 181 Ill. 2d at 518-19; see also A. Twerski, The Joint Tortfeasor Legislative Revolt: A Rational Response to the Critics, 22 U.C. Davis L. Rev. 1125, 1145 (1989) (the point that joint and several liability does not, by itself, result in civil defendants’ paying for damages they did not cause or for which they are not responsible “cannot be assailed”).
Although section 2 — 1117 cannot be sustained on the basis that joint and several liability is an inherently unfair doctrine, this conclusion does not end the constitutional inquiry. A statute may be upheld under rational basis review “if any set of facts can reasonably be conceived to justify” (Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 324 (1996)) the statute. Accordingly, the rationality of other possible justifications for the modification of joint and several liability set forth in section 2 — 1117 must be addressed.
One justification that has been frequently advanced for “threshold” statutes, such as section 2 — 1117, is that these statutes help eliminate elements of unfairness found in the civil justice system that are caused by factors other than joint and several liability itself. See, e.g., Restatement (Third) of Torts: Apportionment of Liability § D18, Comment c, at 221 (2000) (the threshold approach addresses unfairness caused by expansive liability rules); 22 U.C. Davis L. Rev. 1125. One problem in particular that is said to be alleviated by threshold statutes is that of “compromise verdicts.” The problem of compromise verdicts has been explained:
“[A] ten percent finding of fault in a multi-defendant case is not particularly difficult to obtain. Juries *** parcel out small portions of liability without significant evidence to support the verdict, and appellate courts are close to impotent if they wish to reverse. The evidence may be just enough to squeak by, and once the plaintiff passes the most minimal of thresholds, the defendant under common-law doctrine is hable for full damages.” 22 U.C. Davis L. Rev. at 1139.
Moreover, “[g]iven a constitutional right to jury trial and severe limitations on the judge’s right to direct a verdict when legitimate fact questions need to be decided, *** the mechanisms to thwart improper jury verdicts are simply not operative.” 22 U.C. Davis L. Rev. at 1139. See also Restatement (Third) of Torts: Apportionment of Liability § D18, Reporters’ Note, Comment c, at 226-27 (2000) (listing four frequently cited cases where defendants assigned a very low percentage of comparative responsibility were held fully liable for plaintiffs damages).
Exactly why compromise verdicts arise is an issue that is not fully discussed in the academic literature. It would appear that such verdicts are the result of juror confusion in cases where a third-party defendant is involved, the jury is instructed on the principles of contribution, and the jury is asked to make percentage allocations of fault. In these cases, the jury is typically not instructed on the effect of joint and several liability and may be unaware that a verdict rendered against the defendant means that the defendant is fully responsible for the plaintiff’s damages. In addition, the jury may confuse its findings on the issue of comparative fault for purposes of contribution with its finding of liability to the plaintiff. In other words, the jury may mistakenly believe that a finding that a defendant’s comparative responsibility is 10% for purposes of contribution is, in fact, a finding that the defendant is only liable to the plaintiff for 10% of the damages. If it is not so instructed, the jury may also be unaware that contribution may not be available to the defendant if the third-party defendant is insolvent or immune. In these situations, some or all of the members of the jury may compromise on the primary question of the defendant’s liability to the plaintiff, believing that the defendant may then recover fully in contribution or that the defendant will never be required to fully pay for the plaintiffs damages in the first place.
Notably, in the case at bar, Kraft describes the jury verdict against it as a type of compromise verdict. According to Kraft, the great disparity in percentages of fault assigned to it and to plaintiffs employer Nogle & Black — 1% versus 99% — means that the jury “found the employer fully responsible for the injury” to plaintiffs. The jury in this case was not instructed on the common law doctrine of joint and several liability and was not instructed on the effect of section 2 — 1117. Nor was the jury instructed on the effect of Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991), which holds that the amount in contribution that may be recovered from a third-party defendant who is a plaintiff’s employer is limited to the amount of any worker’s compensation damages. Thus, according to Kraft, the jury in this case was expressing its intent to find Nogle & Black fully responsible for plaintiffs’ injuries by finding Kraft 1% liable “and then passing] the resulting amount on to Nogle & Black.” In other words, Kraft’s position in this appeal is that the jury compromised on the question of Kraft’s liability to plaintiffs because the jury believed either that Kraft would be able to recover 99% of plaintiffs’ damages in contribution from the employer or that Kraft would not be responsible for 99% of plaintiffs’ damages in the first place.5
Whether compromise verdicts are a pervasive problem in the civil justice system has been seriously questioned. See, e.g., R. Wright, The Logic and Fairness of Joint and Several Liability, 23 Memphis St. U. L. Rev. 45, 63 n.49 (1992); M. Hager, What’s (Not!) In a Restatement? ALI Issue-Dodging on Liability Apportionment, 33 Conn. L. Rev. 77, 104-07 (2000). Furthermore, if compromise verdicts are, in fact, a problem, the more direct way to address that problem — rather than modifying joint and several liability — would be to improve jury instructions or to more vigilantly review jury verdicts. As one commentator has explained:
“Even if in a few cases juries have found deep-pocket defendants liable in the absence of sufficient evidence of tortious behavior or causation, the obvious and usual remedy is policing of the juries’ findings by trial and appellate judges, rather than the elimination of joint and several liability. In such cases, the real problem is not joint and several liability, but rather any liability. Why sacrifice injured plaintiffs in every case involving multiple tortfeasors (by eliminating or limiting joint and several liability) to correct problems that arise, at most, in a very small percentage of cases that can and should be handled by proper judicial supervision of juries?” 23 Memphis St. U. L. Rev. at 65.
However, under rational basis review, the absence of empirical evidence showing that compromise verdicts are, in fact, a serious problem in the civil justice system cannot serve as a basis for holding section 2 — 1117 constitutionally invalid. See Federal Communications Comm’n v. Beach Communications, Inc., 508 U.S. 307, 315, 124 L. Ed. 2d 211, 222, 113 S. Ct. 2096, 2102 (1993) (a legislative choice is generally “not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data”). Moreover, under rational basis review, the wisdom of the solution to the problem of compromise verdicts adopted in section 2 — 1117, i.e., imposing a threshold for joint and several liability, is a question that must be left for the legislature. See, e.g., Best, 179 Ill. 2d at 377 (under rational basis review, the courts “should not and need not balance the advantages and disadvantages of reform”).
Clearly, statutes such as section 2 — 1117 that establish a threshold for joint and several liability are problematic in many respects:
“[A]ny threshold is an imperfect way to screen out tangential tortfeasors, and often the threshold is set too high (50 percent) to serve this function well. When there are many tortfeasors, this [type of statute] does not perform well, as it virtually guarantees that several liability will be imposed, regardless of the role of any given tortfeasor in the plaintiffs injuries. This threshold series also imposes the risk of insolvency on an entirely innocent plaintiff whenever all solvent defendants are below the specified threshold. To the extent that the justification for modifying joint and several liability is the adoption of comparative responsibility, so that the plaintiff may also be legally culpable, imposing the risk of insolvency on an innocent plaintiff is unwarranted.” Restatement (Third) of Torts: Apportionment of Liability § 17, Comment a, at 148-49 (2000).
Cf. Restatement (Third) of Torts: Apportionment of Liability §§ C18 through C21 (2000); Unif. Comp. Fault Act § 2, 12 U.L.A. 39 (West Supp. 1990).
Nevertheless, whatever the policy shortcomings of section 2 — 1117, the modification of joint and several liability undertaken in the statute is rationally related to addressing the problem of compromise verdicts. See Restatement (Third) of Torts: Apportionment of Liability § D18, Reporters’ Note, Comment c, at 226 (2000) ( if low-fault-percentage jury verdicts “are perceived to be a problem, a threshold for joint and several liability would be the appropriate solution”); 22 U.C. Davis L. Rev. at 1139-40; A. Twerski, The Baby Swallowed the Bathwater: A Rejoinder to Professor Wright, 22 U.C. Davis L. Rev 1161, 1161-62 (1989). On this ground, under the deferential standard of rational basis review, the constitutionality of section 2 — 1117 may be sustained.
For the foregoing reasons, I concur in the judgment of the court.
This conclusion also finds support in the Restatement (Third) of Torts. See Restatement (Third) of Torts: Apportionment of Liability § D19(a), Comment ƒ, at 230 (2000).
Before this court, Kraft does not challenge the jury’s finding of negligence.