CBA Record February-March 2019

The defendant in Clayton filed a PLA but it was denied. Clayton, 209 Ill.2d 578 (2004). There was no petition filed in Abruzzo. Douglas was settled the day before the opinion was published but the opinion was issued, nonetheless. If you are a lawyer or judge looking to have your ver- dict affirmed, is it the better course to follow the six justices of the First District, including one of whom is now a member of the Supreme Court, or to follow the two justices who think “sole” means “more than one?” To the extent there should ever be a sole proximate cause instruction, it behooves the parties and courts to follow the six justices who rightly decided that“sole” means“one.” The better view is not to instruct on sole proximate cause at all. Sole proximate cause is not an affirmative defense, Leonardiv.Loyola, 168 Ill.2d 83, 93-94.There is no burden of proof set forth in the long form 12.04 or 12.05 instruc- tion. The long form leads nowhere but confusion. To prevail in any tort case, a plaintiff must prove defendant’s fault was a proximate cause of the injuries claimed. IPI 21.02. The definition of proximate cause, IPI 15.01, does not need further elaboration. If plaintiff fails to prove proximate cause forwhatever reason, defendant prevails. IPI 21.02 (“On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.”) The extra instruction about proximate cause embodied in 12.04 or 12.05 does not provide guidance to the jury. Bruce R. Pfaff Pfaff, Gill & Ports, Ltd. Chicago


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Letters to the Editor

Sole is the Loneliest Number I write to comment on Judge Brosnahan’s timely article (The Proper Use and Application of the Sole Proximate Cause Defense, January 2019 CBA Record, by Judge Janet Brosnahan) on sole proximate cause. As lawyers, we tend to focus on the most recent case, but in the context of whether “sole” means “one” or “more than one,”that would be wrong. There are three key decisions about the long form IPI 12.04 instruction at issue: Clayton v. County of Cook , 346 Ill. App.3d 367 (2004), Abruzzo v. City of Park Ridge, 2013 IL App (1st) 122360, and Douglas v. Arlington Park Racecourse, 2018 IL App (1st) 162962. In the first two, unanimous courts held sole means one. In the last, two justices said sole can mean two, one justice said sole means one. Justice Quinn was on the panels that decided Clayton and Abruzzo; in total, six differ- ent justices of the First District have held in published opinions that sole means one (Quinn, Hartman, Theis, Howse, Lavin and Gordon). JusticeTheis now sits on the Illinois Supreme Court.

Law At The Library

The CBA is proud to partner with the Chicago and Evanston public library systems to offer a free monthly legal information series offering practical insight for the general public into a wide variety of everyday legal topics. CBA members will offer their legal expertise in free seminars that will be held each month at Chicago’s Harold Washington Library and the Evanston Public Library. The sessions are free and registration is not required. For a complete schedule of dates for 2018-2019, go to


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