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.
The Practice: How to Create Reusable Forms
Frequently the practice of law uses form documents. It can be tremendously time consuming and ultimately costly to the client, to recreate these similar documents over and over. Don’t re-invent the wheel. Below is an easy way to use Microsoft Word to create fill-in-the-blank type forms that your or your clients can use simply and cost effectively. The Microsoft Office Online Help Desk lays out how to create forms step by step:
You need to complete several tasks to create forms for users to view and complete in Microsoft Word.
- Create a template.
- Start a new document, or open the document or template that you want to base the template on.
- On the File menu, click Save As.
- In the Save as type box, click Document Template.
- In the File name box, type a name for the new template, and then click Save.
NOTE The new template appears on the General tab.
- Design the form by sketching a layout first, or use an existing form as a guide.
NOTE In your form, you can use form fields, form controls, tables and nested tables, and text boxes.
- On the View menu, point to Toolbars, and then click Forms to open the Forms toolbar.
- Add form fields for text boxes, check boxes, and drop-down lists.
- In the document, click where you want to insert the form field.
- Do any of the following:
Insert a fill-in field where users can enter text
- On the Forms toolbar, click Text Form Field
.
Double-click the field to specify a default entry so that the user does not have to type an entry except to change the response.
Insert a check box next to an independent option that users select or clear
- On the Forms toolbar, click Check Box Form Field
.
You can also use this button to insert a check box next to each item in a group of choices that are not mutually exclusive — that is, users can select more than one.
Insert a drop-down list box that restricts available choices to those you specify
- On the Forms toolbar, click Drop-Down Form Field
. - Double-click the drop-down form field.
- To add an item, type the name of the item in the Drop-down item box, and then clickAdd.
- If necessary, edit the appearance of the fields. Do any of the following:
Remove or change the order of items in a drop-down list form field
- Double-click the drop-down form field you want to change.
- Do any of the following, and then click OK:
- To delete an item, click the item in the Items in drop-down list box, and then click Remove.
- To move an item, click the item in the Items in drop-down list box, and then click the Movearrow buttons.
Change the formatting of form field results
- Select the form field you want to format.
- On the Format menu, click Font.
- Select the options you want.
- Click Form Field Shading
on the Forms toolbar.
NOTE The shading appears on the screen so users can quickly identify the fields they need to respond to. This shading does not print.
- Set or edit properties for the form field.
- Add Help or automation to the form. Do any of the following:
Add Help text to a form control
- Double-click the form field to which you want to add Help text.
- Click Add Help Text.
- To display Help text in the status bar, click the Status Bar tab, click Type your own, and then type your Help text in the box.
To display Help text in a message box when a user presses F1, click the Help Key (F1) tab, click Type your own, and then type your Help text in the box.
- Create the macros you want to use, and store them in the form template.
If another template contains macros you want to use, copy them into the form template.
SECURITY Use caution when you are adding macros to your form. Macros may be designed in such a way that their use could pose a security risk. We recommend that you use macros from trusted sources only.
- Double-click the form field you want to assign a macro to.
- To run a macro when the insertion point enters the form field, click the macro in the Entry box.
To run a macro when the insertion point exits the form field, click the macro in the Exit box.
NOTE If you store the entry and exit macros in your Normal template and then distribute a form to others, the entry and exit macros may not run because the macros won’t be available to the users. You must store the macros that you use in a form in the form template.
- Add protection to the form. Users cannot fill out a form until you add protection to it. Word provides several types of protection. Do any one of the following:
Add protection to test a form as you design or change it
- On the Forms toolbar, click Protect Form
.
NOTE You can manually reset form fields by clicking Reset Form Fields 
on the Forms toolbar.
Add protection to help prevent users from changing a form
NOTE When you follow these steps to add protection to a document, the form fields are reset.
- On the Tools menu, click Protect Document.
- In the Protect Document task pane, under Editing restrictions, select the Allow only this type of editing in the document check box, and then click Filling in forms in the list of editing restrictions.
- To add protection to only parts of a form, click Select sections, and then clear the check boxes for the sections you don’t want to add protection to.
NOTE To add protection to only parts of a form, those parts must be in separate sections. (On the Insertmenu, click Break to create section breaks.)
- Click Yes, Start Enforcing Protection.
- To assign a password to the form so that users who know the password can remove the protection and change the form, type a password in the Enter new password (optional) box, and then confirm the password. Users who don’t know the password can still enter information in the form fields.
- Save the form, and then distribute it as you would any other document that you send for review.
- You can also create a form by starting with a sample template. Many are available on the Microsoft Office Online Web site.
- If you want, you can test the form prior to distributing it. Open the form, fill it out as the user would, and then save a copy in the designated location.
Denying Subsequent Remedial Measures
Illinois courts have held that evidence of subsequent repairs is not admissible for the purpose of showing prior negligence, but is admissible for the purpose of showing who had control of the premises on which the injury occurred when control is an issue. (Kellems v. Schiele, 297 Ill. App. 388, 17 N.E.2d 604 (1938)). If properly admissible for one of the exceptions noted above, the court may admit evidence for the purpose of showing control under a limiting instruction which warns the jury not to consider the evidence for the purpose of the issue of negligence. (Dallas v. Granite City Steel Co., 64 Ill. App.2d 409, 211 N.E.2d 907 (1965)). The admission of evidence of subsequent repairs to show control is an exception to the general rule. See, Seipp v. Chicago Transit Authority, 299 NE 2d 330 (Ill. Ct. App. 1973)
In Dallas v. Granite City Steel Co., 211 NE 2d 907 (Ill. Ct. App. 1965), the court noted that Defendant was correct in its contention that evidence of what was done subsequent to the date of the accident in question was not admissible as proof of defendant’s negligence, but that does not affect its admissibility for the purpose for which the evidence was offered, in this case proving the cost of the subsequent remedial measure to show feasibility. In Eizerman v. Behn, 9 Ill. App.2d 263, at 279, 132 NE2d 788, the Appellate Court, First District, said: “It is a well settled rule of law that evidence which is competent for one purpose does not become incompetent because the jury might improperly consider it in some other capacity for which it could not properly be admitted. The opponent of the evidence may, if he so wishes, ask for an instruction confining the evidence to its legitimate sphere; and if he fails to so act, he is deemed to have waived any objection he may have.”
In, Demos v. Ferris-Shell Oil Co., 740 NE 2d 9 (Ill. Ct. App. 2000), the court declined to review whether evidence of defendant’s subsequent remedial measure was reversible error but stated, “Subsequent remedial measures may be admitted into evidence to show ownership or control where disputed by the defendant, to prove feasibility of precautionary measures where disputed by the defendant and for impeachment purposes.” Demos at 19 quoting (Herzog v. Lexington Township, 167 Ill.2d 288, 300, 212 Ill.Dec. 581, 657 N.E.2d 926, 932 (1995)).
The Illinois Supreme Court, in Herzog v. Lexington Tp., set out the standard for the admission of evidence of subsequent remedial measures. 657 NE 2d 926 (Ill Sup. Ct. 1995). Although evidence of subsequent remedial measures is not admissible to prove prior negligence, such evidence may be admissible for other purposes. For example, evidence of subsequent remedial measures may be admissible for the purpose of proving ownership or control of property where disputed by the defendant. Id. See also, Schultz v. Richie, 148 Ill.App.3d 903, 910, 102 Ill.Dec. 289, 499 N.E.2d 1069(1986); Coshenet v. Holub , 80 Ill.App.3d 430, 431, 35 Ill. Dec. 733, 399 N.E.2d 1022(1980)).
The court in Coshenet explained that where a single defendant owned or rented a space, there was no dispute as to control. “The Illinois cases involving control and subsequent repairs deal with a building with either multiple tenants or common areas (see Gula v. Gawel , 71 Ill. App.2d 174, 218 N.E.2d 42 (1966); Campagna v. Cozzi, 59 Ill. App.2d 208, 207 N.E.2d 739(1965)), in which there genuinely existed a dispute as to who was required to make repairs and who controlled the area.” Coshenet at 432. Evidence of subsequent repairs is admissible to show who controlled the premises when control is an issue. Id. See also, Campagna v. Cozzi, 59 Ill. App.2d 208, 207 N.E.2d 739(1965); Kuhn v. Illinois Central R.R. Co., 111 Ill. App. 323 (1903).
Such evidence may also be admissible for the purpose of proving feasibility of precautionary measures where disputed by the defendant. See Sutkowski v. Universal Marion Corp., 5 Ill.App.3d 313, 319, 281 N.E.2d 749 (1972)(products liability); Lewis v. Cotton Belt Route—St. Louis Southwestern Ry. Co., 217 Ill. App.3d 94, 159 Ill.Dec. 995, 576 N.E.2d 918 (1991)(feasibility of spotter for crane operation).
Illinois has long recognized that subsequent remedial measures may also be used for impeachment purposes. (See City of Taylorville v. Stafford, 196 Ill. 288, 63933*933 N.E. 624 (1902)).
The Herzog court discussed the use of evidence of subsequent remedial measures for impeachment purposes. Herzog, 57 NE 2d 926. “Where the impeachment value rests on inferences other than prior negligence, such evidence may be admitted where its probative value outweighs the prejudice to defendant.” Id.
The Illinois Supreme Court first recognized that evidence of subsequent remedial measures may be admissible for the purpose of impeachment in City of Taylorville v. Stafford, 196 Ill. 288, 63 N.E. 624(1902). In that case, plaintiff was injured when she stumbled on a stake jutting up from a walkway. Defendant introduced evidence of a measurement of the stake taken after the accident that differed from plaintiff’s measurement. The Supreme Court found that plaintiff was properly permitted to attack defendant’s testimony with evidence that the difference in defendant’s measurement was due to defendant’s subsequent repair of the walkway. Stafford, 196 Ill. at 290-91, 63 N.E. 624.
Similarly, the court in Herzog holds that “where the defendant goes beyond stating that the original condition was safe or adequate, and attempts to make exaggerated claims that the condition was the “safest possible,” fairness may require that conduct inconsistent with these claims be admitted.” Id. See also, Muzyka v. Remington Arms Co., 774 F.2d 1309 (5th Cir.1985)(allowing impeachment of gun manufacturer with evidence of subsequent changes to safety mechanism where defendant repeatedly stated that mechanism was “safest” possible).) In such a situation, the defendant has gone beyond simply stating that he was not negligent prior to the accident and claimed that no greater care was possible. The court in Herzog recognized that in situations where the defendant has claimed that no greater care was possible, “any subsequent remedial measure taken by the defendant is directly impeaching of this claim without an inference of prior negligence.” Id. See also Lewis, 217 Ill.App.3d 94, 159 Ill.Dec. 995, 576 N.E.2d 918 (allowing impeachment of defendant’s witness who claimed that placing spotter was not “feasible” with evidence that a spotter was used later the same day).
Social Media Laws: Protecting Your Privacy
Employers in California and Illinois are now prohibited from demanding access to workers’ password-protected social networking accounts thanks to new laws taking effect in 2013.
Additionally three more states have jumped on the bandwagon. Arkansas, New Mexico and Utah have all passed legislation to prevent employers from requiring employees to hand over their usernames and passwords to social networking sites.
New Jersey is next on the list with pending legislation in the state house. The specifics of the bills are as follows, courtesy of Orrick Employment Litigation Blog
Arkansas
Act 1480, signed by Governor Mike Beebe on April 22, 2013, prohibits an Arkansas employer from requiring or requesting a current or prospective employee to (1) disclose his or her username or password for a personal social media account; (2) add an employee, supervisor or administrator to the list or contacts associated with the personal social media account; or (3) change the privacy setting associated with the personal social media account. The Act further prohibits employers from retaliating against current or prospective employees for exercising their rights under the Act. Under the Act, employers are permitted to view publically available information, are not liable for inadvertently receiving an employee’s login information, and may require access to an employee’s social media account if it is reasonably believed to be relevant to a formal investigation by the employer of allegations of an employee’s violation of federal, state or local laws or regulations or the employer’s written policies.
Violation of Title 11, Chapter 2 of the Arkansas Code may result in a fine of between $10 to $100, imprisonment for up to six months, and/or a misdemeanor conviction. It is not clear when this new law takes effect.
New Mexico
New Mexico’s governor, Susana Martinez, signed S.B. 371 into law on April 5, 2013. S.B. 371 makes it unlawful for a New Mexico employer to request or require a prospective employee to provide a password in order to gain access to the prospective employee’s account or profile on a social networking site or to demand access in any manner to a prospective employee’s account or profile. Unlike Arkansas’ law (and several other state laws), New Mexico does not prohibit employers from seeking access to their current employees’ social networking accounts. Further, the law does not limit an employer’s right to (1) have policies regarding work place internet, social networking or email use; (2) monitor employees’ usage of the employer’s electronic equipment; and (3) obtain information about a prospective employee that is in the public domain.
S.B. 371 goes into effect on July 1, 2013. Currently, there are no penalties for violating this new law.
Utah
On March 26, 2013, Governor Gary Herbert signed Utah’s Internet Employment Privacy Act (“IEPA”) into law. Under the IEPA, public and private employers are prohibited from asking an employee or job applicant to disclose login information for the employee or applicant’s personal internet account. It is also unlawful under the IEPA to retaliate against an employee or applicant for failing to disclose personal login information. Employers may, however, (1) request login information to gain access to the employer’s electronic communications device, account or service; (2) discipline or discharge an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal internet account without authorization; (3) investigate certain misconduct that involved the use of the employee’s personal internet account; (4) restrict or prohibit employees from accessing certain websites while using the employer’s electronic communications device or computer network; (5) monitor, review, access or block electronic data and communications stored on the employer’s electronic communications device or network; (6) screen certain employees and job applicants; and (7) view information that is available in the public domain.
The IEPA creates a private right of action for aggrieved employees or job applicants to recover up to $500 in damages. It goes into effect on May 14, 2013.
Social Media Legislation Pending in New Jersey
New Jersey’s A.B. 2878 prohibits employers from requiring current and prospective employees to disclose login information for accessing personal social networking sites or inquiring as to whether they have personal social networking accounts. The Bill received final legislative approval on March 21, 2013 and is currently awaiting Governor Chris Christie’s signature.
Employers in these states should make sure to review company policies to ensure that they are not requesting or requiring disclosure of social network passwords and usernames. Employees wishing to keep private what they post on social media sites would be wise to change their names on popular social networking sites to exclude their last name, increase the privacy of their profiles and make it more difficult for employers to seek out and find them on social media. Last, think before you post. One it’s out on the internet, it can never truly be erased.
Missouri v. McNeely: New DUI Standards
The Supreme Court, in Missouri v. McNeely, ruled that blood tests in DUI investigations require warrants. The court held specifically that, in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.
You can read the entire decision here: Missouri v. McNeely Opinion.
The impact of this decision on DUI prosecution is yet to be seen. However, this decision will likely serve to protect the rights of drivers in DUI prosecutions under the 4th Amendment. The right to privacy in one’s person is strengthened by this decision. It will prevent police from using subjective judgment before ordering invasive blood draws, prevent innocent prosecutions and vindicate those wrongly accused. Furthermore, requiring a warrant ensures that probable cause exists to prosecute in the first place.
Minnesota attorney Charles Ramsay explains:
A healthy respect for everyone’s privacy does nothing to prevent law enforcement from doing their jobs – instead, it ensures that fewer innocent people will be subjected to intrusive searches on the whim of police officers. Hundreds of DWIs may be thrown out of court as a result of this decision, but in the long term, the legal system will be further strengthened and we will see less examples of “rogue” cops who would like to act with as little judicial oversight as possible.
The warrant requirement not only protects innocent individuals from being prosecuted, but will also save the state costly litigation. It will not serve to make the roads a dangerous place but instead will ensure that proper protocols, inherent in the 4th Amendment, are followed to ensure a balance between safety and individual rights.
