SOLE PROXIMATE CAUSE
Judge Lynn M. Egan
Judge William J. Haddad
August 12, 2013
GENERALLY…
“A defendant is always free to offer
evidence that the conduct of a third
person was the sole proximate cause of
the plaintiff’s injuries.”
Simmons v. Garces, 198 Ill.2d 541 (2002)
HOWEVER…
As with ALL jury instructions, there
must be “some evidence” to warrant
the giving of an instruction on sole
proximate cause.
What Does This Mean?
There must be “some” evidence that
the conduct of a nonparty was the sole
proximate cause of plaintiff’s injury;
OR
There must be “some” evidence that
something other than the defendant’s
conduct was the sole proximate cause
of plaintiff’s injury.
TWO INSTRUCTION OPTIONS:
IPI No. 12.04
“Concurrent
Defendant’s”
Negligence
Other
Than
IPI No. 12.05
“Negligence – Intervention of Outside
Agency”
TO BE OR NOT TO BE…
LONG FORM
OR
SHORT FORM?
THAT is the question
IPI NO. 12.04
Plaintiff’s version (short form):
“More than one person may be to blame for causing an
injury. If you decide that a [the] defendant[s] was [were]
negligent & that his [their] negligence was a proximate
cause of injury to the plaintiff, it is not a defense that
some third person who is not a party to the suit may also
have been to blame.”
Defendant’s version (long form):
“[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.]”
IPI NO. 12.04
This instruction is appropriate where there is SOME
evidence that the conduct of a nonparty caused or
contributed to causing plaintiff’s injury.
The 2nd paragraph (long form) is appropriate ONLY
where there is evidence that the sole proximate
cause of plaintiff’s injury was the conduct of a 3rd
person.
Robinson v. Boffa, 402 Ill.App.3d 401, 402 (1st Dist., 2010)
NOTE
Even though IPI No. 12.04 is entitled,
“Concurrent Negligence…,”
It is NOT necessary for the defendant to
establish that the nonparty’s conduct was
negligent.
Hence, it is called the “empty chair” defense.
McDonnell v. McPartlin, 192 Ill.2d 505, 516 (2000)
IPI NO. 12.05
Plaintiff’s version (short form):
“If you decide that a [the] defendant[s] was [were]
negligent & that his [their] negligence was a proximate
cause of injury to the plaintiff, it is not a defense that
something else may also have been a cause of the injury.”
Defendant’s version (long form):
[“However, if you decide that the sole proximate cause of
the injury to the plaintiff was something other than the
conduct of the defendant, then your verdict should be for
the defendant.”]
NOTE
Similar to IPI No. 12.04, the defendant need not show
that the “something” is negligent.
“Something” can include a variety of non-negligent
causes, such as:
 Pre-existing congenital condition
 Plaintiff’s failure to follow medical instructions
 The very condition for which plaintiff sought
treatment.
HOW MUCH & WHAT TYPE
OF EVIDENCE IS SUFFICIENT ?
 How much evidence?
“Some”
 What type of evidence?
Competent evidence (Yoder v. Ferguson)
WHAT IS
COMPETENT EVIDENCE ?
Depends on the type of case.
 In medical negligence cases, competent
evidence must be supplied by an expert &
based upon a reasonable degree of medical
certainty, UNLESS the common knowledge
exception applies.
Johnson v. Loyola University Medical Center, 384
Ill.App.3d 115, 121 (1st Dist., 2008)
COMPETENT EVIDENCE
NEED NOT…
 Be direct evidence. Causation “may be
established by inference from circumstantial
evidence.”
 Exclude all other possible inferences or support
only one logical conclusion.
Kunz v. Little Company of Mary Hosp., 373 Ill.App.3d 615,
620 (1st Dist., 2007).
HOWEVER…
 The defendant is NOT entitled to a sole
proximate cause instruction if the evidence
merely points to “multifactorial causes.”
 Instead, the evidence must point to a SOLE
proximate cause.
Clayton v. County of Cook, 346 Ill.App.3d 367, 388
(1st Dist., 2003)
NOTE: This does not mean a defendant is
precluded from offering different theories about
the sole cause. (Yoder v. Ferguson, 381 Ill.App.3d 353
(1st Dist., 2008)).
WHAT’S THE BIG DEAL ?
The short form “is implicitly biased towards
the plaintiff’s case…”
AND
Is “unfair where…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.”
Ellis v. Delnor Community Hosp., 237 Ill.App.3d 396,
408 (2d Dist., 1992).
STANDARD OF REVIEW
 Error in precluding evidence of sole proximate
cause or failing to tender the long form
instruction does NOT automatically entitle the
aggrieved party to a new trial.
 Instead, the record must demonstrate “serious
prejudice.”
 VERY difficult to do if special interrogatories
not used.
Tabe v. Ausman, 388 Ill.App.3d 398, 405 (1st Dist., 2009)
PRACTICE TIPS
BY
Judge William J. Haddad
Sample Ruling In A Wrongful Death/Medical
Malpractice Case Tried to Verdict in Cook
County, IL:
“The central issue here is to strike a balance between the
plaintiff’s right to be free from prejudice by disclosing the
negligent conduct of previously dismissed parties to this lawsuit
versus the defendant’s right to disclose the conduct of a 3rd
party which could be the sole proximate cause of injury.
The evidence adduced here should be limited to action or
nonactions that may be the sole proximate cause of injury. The
defendant may show evidence of high bilirubin, failures to
intervene, & other such conduct that has a nexus to the injury.
However, the defendant may not elicit opinions of whether or
not that ‘conduct’ was ‘negligent’ conduct – as negligence is not
the issue & these 3rd parties are not on trial.”
See, McDonnell v. McPartlin, 192 Ill.2d 505 (2000)
IPI NO. 15.01
Proximate Cause – Definition.
“When I use the expression ‘proximate cause,” I
mean a cause that, in the natural or ordinary course
of events, produced the plaintiff’s injury.”
“[It need not be the only cause, nor the last or
nearest cause. It is sufficient if it combines with
another cause resulting in the injury.]”
IPI NO. 12.04
Concurrent Negligence Other Than Defendant’s:
“More than one person may be to blame for causing
an injury. If you decide that the defendant was
negligent and that his negligence was a proximate
cause of injury to the plaintiff, it is not a defense
that some 3rd person 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 plaintiff was the conduct of
some person other than the defendant, then your
verdict should be for the defendant.]”
IPI NO. 12.05
Negligence – Intervention
Agency.
of
Outside
“If you decide that the defendant was negligent &
that his negligence was a proximate cause of injury
to the plaintiff, it is not a defense that something
else may also have been a cause of the injury.
[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.]”
SPECIAL INTERROGATORY
(Referencing IPI No. 12.04)
Was the sole proximate cause that produced
[Plaintiff’s] injury the conduct of some
persons or entities other than [the
Defendant]?
________
YES
________
NO
SPECIAL INTERROGATORY
(Referencing IPI No. 12.05)
Was the sole proximate cause of [Plaintiff’s]
injury [something/some condition] other than
the conduct of Dr. [Jane Doe]?
________
YES
________
NO
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