CBA Record January 2019

The second paragraph of Illinois Civil Pattern Jury instruction 12.04 embodies what is sometimes known as the “sole proximate cause defense” or the “’empty chair’ defense.” IPI Civ. No. 12.04 states: Concurrent Negligence Other Than Defendant’s More than one person may be to blame for causing an injury. If you decide that a [the] defendant[s] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that some thirdperson who is not a party to the suit may also have been to blame. [However, if you decide that the sole proximate cause of injury to the plaintiffwas the conduct of some person other than the defendant, then your verdict should be for the defendant.]

T HE NOTES ON USE INSTRUCT THAT INCLUSION of the second paragraph (“the long form”) is justified “only where there is evidence tending to show that the sole proxi- mate cause of the occurrence was the conduct of a third person” who is not a party to the lawsuit. As long as a defendant can proffer “some evidence in the record” to support the sole proximate cause theory, that defendant is entitled to the long form of IPI Civil No. 12.04. Leonardi v. Loyola Univ., 168 Ill.2d 83, 101 (1995). Despite these deceptively clear and simple directives, confusion persists concerning when the long form is appropriately given. No Need to Show Negligence What gives rise to the confusion? Well, let’s start with the mis- leading title. Although IPI Civ. No. 12.04 is titled “Concurrent Negligence other than Defendant’s,” the Illinois Supreme Court has recognized that a non-party’s actions that are alleged to have caused the plaintiff’s injury need not be negligent at all. Therefore, in McDonnell v. McPartlin, 192 Ill. 2d 505 (2000), the jury was properly instructed using the long form of IPI Civ. No. 12.04 where the defendant doctor in a medical negligence action argued that the conduct of a non-party physician was the sole proximate cause of the decedent’s death. The defendant doctor was not required to show that the nondefendant’s conduct was negligent. The Supreme Court conceded that the title referenced another’s negligence, but ultimately concluded that the title had no impact on the use and essence of the instruction: Plaintiff places much emphasis on the title of the instruction- ”Concurrent Negligence Other Than Defendant’s.”The title, of course, is not a part of the instruction that a jury receives. In any event, the title appropriately describes the main pro- vision of the instruction contained in the first paragraph, rather than the optional provision contained in the second,

bracketed paragraph, which pertains to sole proximate cause. McDonnell at 518. Sole Doesn’t Mean One Misnomer aside, the substantive meaning of the second paragraph has also been the subject of disagreement and contradictory court opinions. The conflict arises from differing interpretations of the word “sole.” In Douglas v. Arlington Park Racecourse, LLC, 2018 IL App (1st) 162962, the plaintiff, an injured jockey, sued Arlington Park Racetrack, alleging that Arlington Park negligently maintained the synthetic surface of the track, known as Polytrack. In its defense, Arlington Park presented evidence that two non- parties caused the plaintiff’s injuries–a jockey, who improperly allowed his horse to clip the plaintiff’s horse during a race; and the manufacturer of the Polytrack surface, for its failure to provide instructions on the proper way to maintain Polytrack to ensure its safe use. At Arlington Park’s request and over the plaintiff’s objection, the trial court instructed the jury using the long form IPI Civ. No. 12.04. After a verdict in favor of Arlington Park, the trial court granted plaintiff’s motion for a new trial. The trial court found that use of the sole proximate cause instruction was improper and confusing to the jury because the Arlington Park blamed two alleged tortfeasors based upon two alternative and distinct theories of negligence. The First District Appellate Court disagreed, concluding that “sole,” as used in the second paragraph of IPI Civ. No. 12.04 can mean any number more than zero. In so holding, the Appellate Court tacitly disregarded the use of the singular form of the prepositional object (“some other person”), and specifically rejected the rationale in both Clayton v. County of Cook, 346 Ill.App.3d 367 (1st Dist. 2003), and Abruzzo v. City of Park Ridge, 2013 IL App (1st) 122360, which interpreted “sole” as meaning only one:

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