CBA Record January 2019

found support for its reasoning in Nolan v. Weil-McLain, 233 Ill.2d 416 (2009) (trial court erred by denying the defen- dant’s sole proximate cause defense where 11 nonparties were charged with causing the plaintiff’s injuries); and in Ready v. United/Goedecke Services, Inc., 238 Ill.2d 582 (2010) (trial court erred in refusing to give the second paragraph of IPI Civil No. 12.04 where two non-parties were accused of negligent actions resulting in the plaintiff’s injuries). The reasoning of the majority in Douglas was consistent with an earlier, unpublished opinion by the Fifth District Appellate Court in Wehmeyer v. Caterpillar, Inc., 2017 IL App (5th) 160100-U, ¶ 37, which concluded, “To the extent the Abruzzo court held that the sole proximate cause instruction never should have been given in the first place because there were multiple other causes, we find the reasoning of the Abruzzo court unpersuasive in light of Nolan and decline to follow it.” The dissent in Douglas sharply dis- agreed, finding that the facts and reasoning in Nolan and Ready were distinguishable, and pointedly stating that “Any competent speaker of English would recognize that sole means one.” Douglas at ¶127. Examining the Utility of Two Sole Proximate Cause Instructions The dissenting opinion in Douglas high- lights another problematic issue pertain- ing to the appropriate use of IPI Civ. No. 12.04. At the jury instruction conference, the parties disagreed over whether the second sentence of I.P.I 12.04 should be given, and whether IPI Civ. No. 12.04 or IPI Civ. No. 12.05 was more appropriate. Arlington Park advocated for the use of the long form IPI Civ. No. 12.04, and plain- tiff’s counsel proffered instead, the short form of IPI Civ. No. 12.05. In its entirety, IPI Civ. No. 12.05 reads:

usually specified individual, unit, or group.” (Emphases added.) Other definitions include “being the only one; only” along with “belonging or pertaining to one individual or group to the exclusion of all others; exclusive.” (Emphasis added.) Douglas at ¶57 (internal citations omit- ted). Thus, the Douglas court concluded that the sole proximate cause instruction is apropos whether one or one hundred nonparties are claimed to be at fault for the plaintiff’s injuries. While disagreeing with the court’s interpretation of “sole” in Clayton and Abruzzo , the Douglas court

Both Clayton and Abruzzo are grounded in the notion that the word “sole” connotes the singular, and thus “sole proximate cause” must refer only to a single nonparty actor or cause, not multiple. There is nothing illogical about that reason- ing, but neither is it the only possible conclusion. If we were to delve into linguistics, the word “sole” does not necessarily imply only the singu- lar. Merriam-Webster’s Dictionary defines “sole” not only as “having no companion: Solitary” or “being the only one” but also as “belonging exclusively or otherwise limited to one

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Negligence—Intervention of Outside Agency

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