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Board of Trustees of Cummunity College District No. 508 v. Coopers & Lybrand12/18/2003
care for the safety of its property; two, its failure to use such ordinary care is a proximate cause of the alleged injury; and, three, affected Defendant's preparation of the audit."
The appellate court found that the given instruction accurately states the law in Illinois and is neither misleading nor argumentative, although the court observed that it might have been worded differently. 333 Ill. App. 3d at 242. The Board argues that the given instruction distorted the audit interference doctrine and prejudicially allowed the jury to consider evidence of City Colleges' conduct unrelated to the audit.
The first element of the given instruction sets out the duty of care. The Board argues that the "property" suggested by the instruction is the investment portfolio, not the audit. According to the Board, this contradicts the audit interference doctrine because the client's care respecting the conduct of its business may only be considered if it contributes to the failure of the accountants to perform the audit. National Surety, 256 A.D. at 236, 9 N.Y.S.2d at 563. The second element of the instruction requires that the failure of plaintiff to exercise ordinary care for the safety of its property must be a proximate cause of the injury . The Board claims that the appellate court correctly held that the "injury" is the negligent performance of the audit. Yet, according to the Board, the instruction allowed the jury, by implication, to consider the Board's alleged lack of care for the safety of its portfolio (the treasurer's violations of the investment policy) as a proximate cause of the failed audit (the failure to detect and report the investment policy violations). The Board contends that this is an internal inconsistency vitiating the audit interference doctrine.
The Board criticizes the language in the third element because the verb "affected" does not convey the type of hindrance or restraint connoted by such words as "prevented," "interfered" or "contributed." The verb "affect" is defined as "to produce a material influence upon or alteration in." Webster's Third New International Dictionary 35 (1986). Although the Board criticizes the use of "affect" as a "toothless verb," we believe it is broad enough and forceful enough to convey the concept embodied in the audit interference doctrine.
The Board contends that the trial court erred in refusing to give its tendered instruction that properly described the application of the audit interference doctrine. The Board's tendered instruction provided, in pertinent part:
"You can find that the Plaintiff was contributorily negligent only if Plaintiff's negligence prevented or interfered with the proper performance of Defendants' audits."
We are unpersuaded by the Board's argument. Both instructions comply with the requirement of Supreme Court Rule 239(a). Although, as the appellate court noted, "the instruction might have been worded differently in part" the given instruction nevertheless accurately stated the law. 333 Ill. App. 3d at 242. The instruction sufficiently informed the jury that, in order to constitute contributory negligence, plaintiff's conduct must affect the audit. We hold, therefore, that the jury was properly instructed on the issue of contributory negligence.
C. Setoff
The appellate court affirmed the trial court's ruling that Coopers was not entitled to a setoff against the judgment in the amount of the Board's settlement with Andersen, reasoning that the failed audits of each defendant inflicted separate injury on City Colleges. 333 Ill. App. 3d at 238-39. The question of whether the trial court should have ordered a setoff depends upon interpretation
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