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Board of Trustees of Cummunity College District No. 508 v. Coopers & Lybrand12/18/2003
render accountants immune. Instead, the damages paid by the accountant would not include the client's portion of fault in proximately causing the total economic loss. See McDonnell, 192 Ill. 2d at 532.
Finally, I disagree with the majority's assertion that it is a better policy to continue to apply the audit interference doctrine. Slip op. at 9. As explained by the majority, the doctrine was established by the National Surety case to soften the harshness of contributory negligence rules, which completely barred recovery by the client if the client was at all negligent. Slip op. at 5; see also Scioto Memorial Hospital Ass'n, 74 Ohio St. 3d at 476, 659 N.E.2d at 1272. Such concern is unnecessary under a comparative fault scheme because slight negligence by the client will not act as a complete bar to recovery. We have abolished other doctrines created in response to harsh consequences of the contributory negligence rule in the wake of the adoption of our comparative fault system. See, e.g., Alvis, 85 Ill. 2d at 28 (eliminating the "last clear chance" doctrine).
By applying comparative negligence principles, neither the accountant nor the client is absolved of fault because of the other's negligence, so both parties have an incentive to use due care. Capital Mortgage, 142 Mich. App. at 537, 369 N.W.2d at 925. While the majority cites "other incentives" such as income and civil lawsuits as deterrents of a client's negligent behavior (slip op. at 9), these incentives are diminished by potentially allowing a client to recover damages for the entire economic loss caused at least in part by its own negligence. The client should not be able to recover damages it could have avoided itself through acting with reasonable care. Devco Premium Finance, 450 So. 2d at 1220. Even if other incentives exist, considerations of fairness require damages to be allocated according to the parties' degree of fault in causing the alleged injury . 735 ILCS 5/2-1116(a) (West 2002). No argument by the majority has persuaded me that this statement by the legislature of the purpose of the comparative fault system is inappropriate in accountant malpractice cases.
For the reasons herein, I dissent from the majority's conclusion that the audit interference doctrine is still in force in Illinois . I would abrogate the audit interference doctrine, reverse the trial court's rulings about the doctrine and the damages setoff, and remand the cause for a new trial.
JUSTICE THOMAS joins in this partial concurrence and partial dissent.
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