Illinois Pattern Jury instruction 12.05 and Reversible Error

Illinois Pattern Jury Instruction 12.05 relates to the negligence of a third party. There are two paragraphs to the instruction, however courts, at their discretion, may opt to omit the second paragraph if the court determines it does not apply. This omission, however, can be seriously prejudicial to a Defendant’s case and ultimately to the verdict. 

The second paragraph of IPI Civil 3d No. 12.05 applies where there is evidence that something other than the defendant’s conduct is the sole proximate cause of the plaintiff’s injury.  McDonnell v. McPartlin, 192 Ill.2d 505, 519, 249 Ill.Dec. 636, 736 N.E.2d 1074 (2000). Accordingly, “[a] defendant has the right not only to rebut the evidence tending to show that defendant’s acts are negligent and the proximate cause of claimed injuries, but also has the right to endeavor to establish by competent evidence that the conduct of a third person, or some other causative factor, is the sole proximate cause of plaintiff’s injuries. Further, if the evidence is sufficient, the defendant is entitled to an instruction on this theory.” Krklus v. Stanley, 359 Ill. App. 3d 471, 493, 833 N.E.2d 952, 970 (2005)

            In Elig v. Delnor Cmty. Hosp. the trial court refused Defendant’s instruction incorporating the second paragraph of IPI 12.05, as the court did in the case at bar. Instead of incorporating the second paragraph, the court accepted the short form of the instructions tendered by plaintiffs. Thus, the second paragraph of each instruction was excluded. As a result, the jury did not receive instructions with respect to the issue of sole proximate cause.

The notes to IPI Civil 3d Nos. 12.04 and 12.05 state that the second paragraph should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was someone or something other than defendant. (IPI Civil 3d Nos. 12.04, 12.05, Notes on Use.) In Elig, Defendant asserted that evidence was presented at the trial below which tended to show that Dr. Taylor, the physician who cared for Plaintiff, was the sole proximate cause of Plaintiff’s injuries. Therefore, defendant argues, the “Notes on Use” guidelines were satisfied and the long forms of Nos. 12.04 and 12.05 should have been tendered to the jury. The appellate court held that failure to instruct the jury on the issue of sole proximate cause was reversible error. Ellig v. Delnor Cmty. Hosp., 237 Ill. App. 3d 396, 405, 603 N.E.2d 1203, 1209 (1992)

The general rule is that the court must instruct the jury on all issues reasonably presented by the evidence. (Lounsbury v. Yorro (1984), 124 Ill.App.3d 745, 80 Ill.Dec. 1, 464 N.E.2d 866.) Each party is entitled to have a jury adequately instructed on his theory of the case and failure to do so may require a new trial. Willhite v. Goodman (1978), 64 Ill.App.3d 273, 275, 21 Ill.Dec. 133, 381 N.E.2d 68.

Defendant argues that the second paragraph of I.P.I. 12.05 should have been given. This second paragraph states:

‘(However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.)’

In French v. City of Springfield, 5 Ill.App.3d 368, 374-375, 283 N.E.2d 18, 23, the court in approving this second paragraph, stated:

‘A defendant has the right, not only to rebut evidence tending to show that its acts are negligent and the proximate cause of claimed injuries, but also has the right to endeavor to establish by competent evidence that the conduct of a third person, or some other causative factor, is the sole proximate cause of plaintiff’s injuries, and if the evidence is sufficient the defendant is entitled to an instruction on his theory of the case. Hack v. New York, Chicago and St. Louis R. Co., 27 Ill.App.2d 206, 225, 169 N.E.2d 372. This proposition, long recognized in the law of this State, was embodied, at the time of this trial, in I.P.I. Instructions 12.04 Revised and 12.05 Revised. The following language contained in I.P.I. 12.04 Revised, ‘However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.’, has been expressly approved in Beccue v. Rockford Park District, 94 Ill.App.2d 179, 195, 236 N.E.2d 105.’

(See Miyatovich v. Chicago Transit Authority, 112 Ill.App.2d 437, 251 N.E.2d 345; Downs v. Camp, 113 Ill.App.2d 221, 252 N.E.2d 46.)

An erroneous instruction requires a new trial when prejudice has resulted. (Korpalski v. Lyman (1983), 114 Ill.App.3d 563, 568, 70 Ill.Dec. 337, 449 N.E.2d 211.) In Korpalski, prejudice was found where the erroneous instruction affected the jury’s understanding of plaintiffs’ burden of proof with respect to the issue of proximate cause. In making its determination about the presence of prejudice, the court assessed whether the instructions, taken as a whole, were sufficiently clear so as not to mislead and whether they fairly and correctly stated the law. Korpalski, 114 Ill.App.3d at 568, 70 Ill.Dec. 337, 449 N.E.2d 211.

Defendant was seriously prejudiced in this case because the jury could have reasonably found, based on the evidence presented, that something else was the sole proximate cause of Plaintiff’s injuries. See, McCall v. Chicago Board of Education (1992), 228 Ill.App.3d 803, 810, 170 Ill.Dec. 732, 593 N.E.2d 621.  The Court in Ellig held that, “as it stands, the short form of the instruction tells the jury that it is not a defense that someone or something else may be to blame. This instruction is implicitly biased towards the plaintiffs’ case.” Ellig v. Delnor Cmty. Hosp., 237 Ill. App. 3d 396, 408-09, 603 N.E.2d 1203, 1211 (1992). The court went further noting:

 “we determine that it is unfair where, as here, evidence was presented showing that another may have been the sole proximate cause of an injury but such evidence was not impartially presented by an appropriate instruction. Thus, the second paragraph of IPI Civil 3d No. 12.04 (and 12.05) must be given to the jury “in order to correct any negative implications arising from the first paragraph.” (Miyatovich v. Chicago Transit Authority (1969), 112 Ill.App.2d 437, 443, 251 N.E.2d 345.) According to Miyatovich, “[w]ithout the benefit of accurate wording to this effect, the jury might cease its inquiry after finding a defendant’s negligence to have been simply a cause of the injury, without considering whether it was a proximate cause thereof.” Miyatovich, 112 Ill.App.2d at 443, 251 N.E.2d 345

If the court decides to exclude this paragraph from your jury instruction you may have cause for an appeal. Case law supports the notion that this exclusion is reversible error.