General Cautionary Instructions Introduction - Federal Evidence ...

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Section 1, Page 1 of 12
GENERAL CAUTIONARY INSTRUCTIONS
INTRODUCTION
The instructions in the 1.00 through the 3.00 series are “cautionary” instructions. In 1999
these instructions were redrafted. The redrafted instructions combined, reordered, and condensed
the instructions that previously appeared in these sections. The substance of the instructions is
the same, except where noted.
The instructions in the 1.00 series are intended to be given before opening statements,
along with any substantive instructions the Court deems appropriate. The instructions in the 2.00
series are intended for use during trial. The instructions in the 3.00 series are intended for use
after closing arguments. The Court may also repeat instructions from the 1.00 and 2.00 series
after closing arguments. Supreme Court Rule 239(d) should be consulted with regard to the time
instructions are given.
Giving cautionary instructions is within the sound discretion of the trial court.
Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329, 339; 18 N.E. 804, 808 (1888); Martin v. Kralis
Poultry Co., 12 Ill.App.3d 453, 464; 297 N.E.2d 610, 618 (5th Dist.1973); Beiermann v.
Edwards, 193 Ill.App.3d 968, 981; 550 N.E.2d 587, 597; 140 Ill.Dec. 702, 712 (2d Dist.1990);
DeYoung v. Alpha Const. Co., 186 Ill.App.3d 758, 771; 542 N.E.2d 859, 867; 134 Ill.Dec. 513,
521 (1st Dist.1989); Clay v. Brodsky, 148 Ill.App.3d 63, 72; 499 N.E.2d 68, 74; 101 Ill.Dec. 701,
707 (4th Dist.1986); Tuttle v. Fruehauf Div. of Fruehauf Corp., 122 Ill.App.3d 835, 844; 462
N.E.2d 645, 653; 78 Ill.Dec. 526, 534 (1st Dist.1984). A trial court's refusal to give a certain
instruction is not reversible error unless the complaining party has in some way been prejudiced
by the court's denial. Chloupek v. Jordan, 49 Ill.App.3d 809, 816; 364 N.E.2d 650, 655; 7
Ill.Dec. 489, 494 (1st Dist.1977).
Section 1, Page 2 of 12
1.01 Preliminary Cautionary Instructions
[1] Now that the evidence has concluded, I will instruct you as to the law and your duties.
[2] The law regarding this case is contained in the instructions I will give to you. You
must consider the Court's instructions as a whole, not picking out some instructions and
disregarding others.
[3] It is your duty to resolve this case by determining the facts based on the evidence and
following the law given in the instructions. Your verdict must not be based upon speculation,
prejudice, or sympathy. [Each party, whether a [(i.e., corporation, partnership, etc.)] or an
individual, should receive your same fair consideration.] My rulings, remarks or instructions do
not indicate any opinion as to the facts.
[4] You will decide what facts have been proven. Facts may be proven by evidence or
reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses
and of exhibits admitted by the court. You should consider all the evidence without regard to
which party produced it. You may use common sense gained from your experiences in life, in
evaluating what you see and hear during trial.
[5] You are the only judges of the credibility of the witnesses. You will decide the weight
to be given to the testimony of each of them. In evaluating the credibility of a witness, you may
consider that witness' ability and opportunity to observe, memory, manner, interest, bias,
qualifications, experience, and any previous inconsistent statement or act by the witness
concerning an issue important to the case.
[6] You should not do any independent investigation or research on any subject relating
to the case. What you may have seen or heard outside the courtroom is not evidence. This
includes any press, radio, or television programs and it also includes any information available
on the Internet. Such programs, reports, and information are not evidence and your verdict must
not be influenced in any way by such material.
[7] For example, you must not use the Internet, [including Google,] [Wikipedia,] [[(insert
current examples)]], or any other sources that you might use every day, to search for any
information about the case, or the law which applies to the case, or the people involved in the
case, including the parties, witnesses, lawyers, and judge.
[8] During the course of the trial, do not discuss this case with anyone--not even your
own families or friends, and also not even among yourselves--until at the end of the trial when
you have retired to the jury room to deliberate on your verdict. Even though this is hard to do, it
will be a violation of these instructions and your oath if you discuss the case with anyone else.
[9] You must not provide any information about the case to anyone by any means at all,
and this includes posting information about the case, or your thoughts about it, on any device or
Internet site, including [blogs,] [chat-rooms,] or [[(insert current examples)]], or any socialnetworking websites, such as [Twitter], [Facebook] or [[(insert current examples)]], or any other
means.
[10] You cannot use any electronic devices or services to communicate about this case,
Section 1, Page 3 of 12
and this includes [cell-phones,] [smart-phones,] [lap-tops,] [the Internet,] [[(insert current
examples)]] and any other tools of technology. The use of any such devices or services in
connection with your duties is prohibited.
[11] The reason for these instructions is that your verdict must be based only on the
evidence presented in this courtroom and the law I [will provide] [have provided] to you in my
instructions. It would be unfair to the parties and a violation of your oath to base your decision
on information from outside this courtroom. You should feel free to remind each other that your
verdict is to be based only on the evidence admitted in court and that you cannot use information
from any other sources. If you become aware of any violation of these instructions, it is your
legal duty to report this to me immediately.
[12] Disobeying these instructions could cause a mistrial, meaning all of our efforts have
been wasted and we would have to start over again with a new trial. If you violate these
instructions you could be found in contempt of court.
[13] Pay close attention to the testimony as it is given. At the end of the trial you must
make your decision based on what you recall of the evidence. You will not receive a written
transcript of the testimony when you retire to the jury room.
[14] An opening statement is what an attorney expects the evidence will be. A closing
argument is given at the conclusion of the case and is a summary of what an attorney contends
the evidence has shown. If any statement or argument of an attorney is not supported by the law
or the evidence, you should disregard that statement or argument.
Instruction, Notes on Use and Comment revised January 2011.
Notes on Use
Some trial judges give cautionary instructions at the beginning of the trial; some give them at the
close of the trial before the deliberations; and some give them throughout the trial. Although the trial
judge has discretion as to when to give cautionary instructions, the committee suggests that cautionary
instructions 1.01 [3]-[14] should be given at the beginning of the trial, 1.01 [1]-[14] should be given at the
end of trial, and that the instructions reminding jurors to refrain from doing outside research (1.01 [6] and
[7]), from discussing the case with anyone (1.01 [8] and [9]), and from using electronic devices in
connection with their duties as jurors (1.01 [10]) should be repeated throughout the trial.
For any of the cautionary instructions that refer to particular forms of technology, such as 1.01
[7], [9] and [10], judges should feel free to add new examples as they become available.
The numbers in the brackets preceding each paragraph refer to the Comments and Notes on Use
following the instruction and should not be included when the instruction is given. The instruction, with
brackets removed, should be given as a single instruction.
[1] Comment
This instruction incorporates former IPI 3.01.
[2] Comment
This instruction tells the jury that the source of the law it will apply to the case is the court's
Section 1, Page 4 of 12
instructions. The instruction cautions the jury against capriciously selecting one of several statements of
the law and using it in their deliberations out of context with the whole charge. Henderson v. Shives, 10
Ill.App.2d 475, 488; 135 N.E.2d 186, 192 (2d Dist. 1956).
[3] Comment
In conjunction with paragraph [1], the last sentence of paragraph [3] incorporates former IPI 3.01
and adds to the existing language of IPI 1.01.
Since the remarks and rulings of the trial judge may erroneously be interpreted by the jury as
comments on the evidence, this instruction is proper. An instruction using similar language was approved
in North Chicago St. R. Co. v. Kaspers, 186 Ill. 246, 250, 57 N.E. 849, 851 (1900).
The primary function of the jury is to apply the law to the facts of the case. Guidani v. Cumerlato,
59 Ill.App.2d 13, 36-37, 207 N.E.2d 1, 12 (5th Dist. 1965); Rikard v. Dover Elevator Co., 126 Ill.App.3d
438, 440, 81 Ill.Dec. 686, 687, 467 N.E.2d 386, 387 (5th Dist. 1984). Informing jurors that they are to
find the facts from the evidence, and then to apply the law to those facts, has been held to be a very good
statement of the law. Eckels v. Hawkinson, 138 Ill.App. 627, 633-34 (1st Dist.1908).
Verdicts should not be influenced by sympathy or prejudice. See Garbell v. Fields, 36 Ill.App.2d
399, 403-404, 184 N.E.2d 750, 752 (1st Dist.1962)), where this instruction was approved. The prohibition
against sympathy or prejudice is equally applicable to both parties. Moreover, it is sufficient to caution
the jury once against allowing sympathy and prejudice to enter into their consideration of the case. The
practice of repeatedly warning the jury against sympathy or prejudice in connection with each facet of the
case is not favored. A simple statement on the subject of sympathy, such as the one contained in this
instruction, was suggested in Keller v. Menconi, 7 Ill.App.2d 250, 256, 129 N.E.2d 341, 344 (1st
Dist.1955). As to the caution against deciding a case on the basis of speculation, see Koris v. Norfolk &
West. Rwy. Co., 30 Ill.App.3d 1055, 1060; 333 N.E.2d 217, 221 (1st Dist.1975).
A jury should be informed that a corporation is to be treated no differently from an individual.
Chicago Union Traction Co. v. Goulding, 228 Ill. 164, 165, 81 N.E. 833, 833 (1907).
[4] Comment
This instruction states the familiar principle that once evidence is admitted, it is in the case for all
purposes and every party is entitled to the benefit of the evidence whether produced by him or his
adversary. Morris v. Cent. W. Cas. Co., 351 Ill. 40, 47, 183 N.E. 595, 598 (1932); Dudanas v. Plate, 44
Ill.App.3d 901, 909, 3 Ill.Dec. 486, 492, 358 N.E.2d 1171, 1178 (1st Dist.1976); Dessen v. Jones, 194
Ill.App.3d 869, 873, 141 Ill.Dec. 595, 597, 551 N.E.2d 782, 784 (4th Dist.1990); Wagner v. Zboncak, 111
Ill.App.3d 268, 272, 66 Ill.Dec. 922, 925, 443 N.E.2d 1085, 1088 (2d Dist.1982).
Because jurors have been told it is their duty to determine the facts from evidence produced in
open court, it is also proper to inform them that they may rely on their experiences and observations.
Steinberg v. N. Ill. Tel. Co., 260 Ill.App. 538, 543 (2d Dist.1931); Kerns v. Engelke, 54 Ill.App.3d 323,
331, 369 N.E.2d 1284, 1290, 12 Ill.Dec. 270, 276 (5th Dist.1977), aff'd in part and rev'd in part on other
grounds, 76 Ill.2d 154, 390 N.E.2d 859, 28 Ill.Dec. 500 (1979); Baird v. Chi. B & Q R.R. Co., 63 Ill.2d
463, 473, 349 N.E.2d 413, 418 (1976); Klen v. Asahi Pool, Inc., 268 Ill.App.3d 1031, 1044, 643 N.E.2d
1360, 1369, 205 Ill.Dec. 753, 762 (1st Dist.1994).
[5] Comment
The comprehensive instruction in former IPI 2.01, discussing factors to consider in judging the
credibility of witnesses, was approved in Lundquist v. Chi. Rys. Co., 305 Ill. 106, 112-13, 137 N.E. 92, 94
Section 1, Page 5 of 12
(1922); People v. Goodrich, 251 Ill. 558, 566, 96 N.E. 542 545-46 (1911). Use of the instruction was
found to save a verdict from impeachment in Waller v. Bagga, 219 Ill.App.3d 542, 547-48, 579 N.E.2d
1073, 1076, 162 Ill.Dec. 259, 262 (1st Dist.1991). Use of the instruction in Sobotta v. Carlson, 65
Ill.App.3d 752, 754, 382 N.E.2d 855, 857, 22 Ill.Dec. 465, 467 (3d Dist.1978), helped sustain a verdict in
which the jury rejected uncontradicted testimony of a witness the jury had apparently found not credible.
When there has been evidence of prior inconsistent statements by a witness or witnesses, an
instruction concerning impeachment by such statements should be given. Sommese v. Maling Bros. Inc.,
36 Ill.2d 263, 269, 222 N.E.2d 468, 471 (1966); see also Dep’t of Conservation v. Strassheim, 92
Ill.App.3d 689, 692-95, 415 N.E.2d 1346, 1348-49, 1352, 48 Ill.Dec. 62, 64-65, 68 (2d Dist.1981); Hall v.
Nw. Univ. Med. Clinics, 152 Ill.App.3d 716, 504 N.E.2d 781, 786, 105 Ill.Dec. 496, 501 (1st Dist.1987).
This instruction does not use personal pronouns and thereby avoids the error identified in Wolf v.
Chicago, 78 Ill.App.2d 337, 341, 223 N.E.2d 231, 233 (1st Dist.1966).
[6] Comment
While the criminal precedents relating to publicity have their origins in the Sixth Amendment, see
Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); U.S. v. Thomas, 463 F.2d 1061, 1063-64 (7th Cir.
1972), parallel protection under the Seventh Amendment may be available to civil litigants. See
Gutierrez-Rodrigues v. Cartagena, 882 F.2d 553, 570 (1st Cir. 1989) (implying that trial publicity can
lead to a mistrial if it interferes with “the Seventh Amendment right to a civil trial by an impartial jury”);
see generally Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1535 (4th Cir. 1986), citing McCoy v.
Goldston, 652 F.2d 654, 656 (6th Cir. 1981) (“The right to an impartial jury in civil cases is inherent in
the Seventh Amendment’s preservation of a ‘right to trial by jury’ and the Fifth Amendment’s guarantee
that ‘no person shall be denied life, liberty or property without due process of law.’”).
A jury or juror may not conduct experiments or view extraneous information not offered into
evidence that will have the effect of putting them in possession of evidence not offered at trial. People v.
White, 365 Ill. 499, 514, 6 N.E.2d 1015, 1022 (1937); Gertz v. Bass, 59 Ill.App.2d 180, 183, 208 N.E.2d
113, 115 (1st Dist. 1965). However, not every instance in which extraneous or unauthorized information
reaches the jury results in error so prejudicial so as to require reversal. People v. Holmes, 69 Ill.2d 507,
519, 372 N.E.2d 656, 661, 14 Ill.Dec. 460, 465 (1978). The losing party need not prove actual prejudice
from the juror’s use of extraneous information, but only that the unauthorized information related directly
to an issue in the case and may have improperly influenced the verdict. Id. The prevailing party then has
the burden to demonstrate that no injury or prejudice resulted. Id. Because the actual effect of the
extraneous information on the minds of the jury cannot be proved, the standard to be applied is whether
the conduct involved such a probability that prejudice would result that it is to be deemed inherently
lacking in due process. People v. Holmes, 69 Ill.2d 507, 514, 372 N.E.2d 656, 659, 14 Ill.Dec. 460, 46566 (1978).
Improper experimentation or improper extraneous information obtained or accessed by jurors that
resulted in a new trial includes: jury members attempting to perfectly trace signatures, where an almanac
relating to a specific issue in the case was referenced by a juror and then discussed with the other jurors,
where a bailiff gave jurors a copy of Webster's Dictionary that they requested in order to look up
definitions of key elements in a case, where a juror visited the intersection where the accident in question
had occurred, diagrammed the intersection and then brought the diagram back to the jury room to discuss
with the other juror members, and where jurors went to a shoe store to inspect the various heels of shoes
for the purpose of ascertaining trade design in a case where defendant’s foot prints were at issue. People
v. White, 365 Ill. 499, 514, 6 N.E.2d 1015, 1022 (1937); Haight v. Aldridge Elec. Co., 215 Ill.App.3d 353,
368, 575 N.E.2d 243, 253, 159 Ill.Dec. 14, 17 (2d Dist. 1991); Gertz v. Bass, 59 Ill.App.2d 180, 182, 208
N.E.2d 113, 115 (1st Dist. 1965); People v. Holmes, 69 Ill.2d 507, 510, 372 N.E.2d 656, 657, 14 Ill.Dec.
460, 461 (1978).
Section 1, Page 6 of 12
[7] Comment
A growing number of states now have jury instructions that specifically inform jurors that they
cannot use the Internet to conduct research about the trial or the people involved in the trial. If the
instruction is not specific, jurors might mistakenly believe that they are permitted to conduct online
research, as they would in their jobs or their private lives. See Tricia R. Deleon & Janelle S. Forteza, Is
Your Jury Panel Googling During the Trial?, Advocate, Fall 2010, at 36, 38 (recognizing that one
solution to stop jurors from using the Internet to do research about the trial is for judges to give more
specific jury instructions).
[8] Comment
The practice of instructing jurors not to discuss the case until deliberation is widespread. See,
e.g., Cautionary and General Opening Remarks to Jury--Civil.
[9] Comment
The U.S. Judicial Conference published a very specific set of Model Jury Instructions prohibiting
the use of electronic technology for researching or communicating about a case. The model instructions,
designed for U.S. district court judges and available at www.uscourts.gov/newsroom/2010/DIR10018.pdf, “precisely catalogue” what jurors must refrain from doing with the idea that this approach
“‘would help jurors better understand and adhere to the scope of the prohibition.’” The Third Branch,
Committee Suggests Guidelines for Juror Use of Electronic Communication Technologies, at
http://www.uscourts.gov/ttb/2010-04/article05.cfm (quoting Judge Julie A. Robinson’s letter of
transmittal). Other judges are not only being specific and proactive in their instructions, but also they are
“instructing the jurors early and often, including during orientation and voir dire.” Judge Herbert B.
Dixon, Jr., Guarding Against the Dreaded Cyberspace Mistrial and Other Internet Trial Torpedoes,
Judges J., Winter 2010, at 37, 39.
[10] Comment
The use of Web search engines, wireless handheld devices, and Internet-connected multimedia
smart-phones by jurors in any given case has the potential to cause a mistrial. It is critical to the
administration of justice that these electronic devices not play any role in the decision making process of
jurors. For a recent case in which the jury foreperson used a smart-phone to look up definitions of
“prudent” and “prudence,” see Jose Tapenes v. State, 43 So.3d 159, 2010 Fla.App.LEXIS 13390 (Sept. 8,
2010).
[11] Comment
Courts need to explain to jurors why it is so important that they decide the case based on the
evidence admitted in court and not on information gleaned outside the courtroom. Jurors are more likely
to follow the court’s admonition if they understand the reasons for it. See, e.g., Susan MacPherson & Beth
Bonora, The Wired Juror, Unplugged, Trial, Nov. 2010, at 40, 42 (“Social science research on persuasion
has demonstrated that compliance can be measurably increased by simply adding the word ‘because’ and
some type of explanation.”).
[12] Comment
There have been numerous examples in other states of jurors who conducted online research and
the result was a mistrial and the need for a new trial. For example, in one case in South Dakota, a juror
had used Google before voir dire to see if the defendant seatbelt manufacturer had been sued for the
alleged defect in the past. See Russo v. Takata Corp., 2009 S.D. 83, 774 N.W.2d 441, 2009 S.D. LEXIS
Section 1, Page 7 of 12
155. The juror informed several other jurors during deliberations that he had conducted a Google search
and had not found any prior lawsuits against the defendant. The jury found for defendant on plaintiff’s
claim. Plaintiff filed a motion for a new trial based on alleged juror misconduct. The trial court granted
the motion, and it was affirmed on appeal. In a case from Maryland, a murder conviction was overturned
because jurors had consulted Wikipedia for explanations of certain scientific terms. See Dixon, supra, at
37-38.
When jurors have shared their views online about an on-going trial, they have been removed from
the jury and personally penalized. For example, one juror who offered her view on Facebook that the
defendant was guilty even though the trial had not ended, was removed from the jury, fined, and required
to write an essay. See Ed White, Judge Punishes Michigan Juror for Facebook Post, Associated Press,
Sept. 2, 2010.
[13] Comment
In current trial practice, jurors occasionally request transcripts of the testimony during
their deliberations and are disappointed to learn their requests may not be honored. Absent
special circumstances, within the court’s discretion, transcripts are not provided to jurors. In
order to facilitate responsible fact-finding, the committee recommends that the jury be instructed
that they will not receive a transcript at the outset of the trial.
[14] Comment
Occasionally lawyers argue matters that are within their personal knowledge but are not of
record, or, in the heat of forensic attack, will make statements not based on the evidence. Ordinarily this is
objected to and request is made to instruct the jury to disregard the statement, but it is impossible or
impractical to object to every such statement. It is therefore proper to inform the jury that arguments and
statements of counsel not based on the evidence should be disregarded. Rapacki v. Pabst, 80 Ill.App.3d
517, 522, 400 N.E.2d 81, 85, 35 Ill.Dec. 944, 948 (1st Dist. 1910); Randall v. Naum, 102 Ill.App.3d 758,
760-61, 430 N.E.2d 323, 325, 58 Ill.Dec. 381, 383 (1st Dist. 1981).
Section 1, Page 8 of 12
1.02 Pre-Trial Judicial Determination In Favor of Plaintiff
The Court has found the defendant[s] [(insert name of defendant(s))], [is] [was]
[were][negligent] [liable] [other finding], so that is not an issue you will need to decide. [The
remaining defendants are not to be prejudiced by the fact that the (negligence) (liability) (other
finding) of [(name of defendant(s) above)] is no longer at issue.]
Notes on Use
This instruction should be used when a defendant has been defaulted or summary judgment on an
issue has been granted in favor of plaintiff. In the first sentence, the term “liable” should be used only
when the court has found as a matter of law that all of the elements of the cause of action have been
proved and the only issue remaining is damages. The second sentence should be used when there are two
or more defendants. See Wanner v. Keenan, 22 Ill.App.3d 930, 936-937, 317 N.E.2d 114, 119-120 (2d
Dist.1974).
Section 1, Page 9 of 12
1.03A Admitted Fault Only
The defendant, [(insert name)], has admitted [he] [she] [it] [was negligent] [produced an
unreasonably dangerous product] [other fault admission]. There are other issues you will need to
decide in this case.
Section 1, Page 10 of 12
1.03B Admitted Fault and Causation
The defendant, [(insert name)], has admitted [he] [she] [it] [was negligent] [produced an
unreasonably dangerous product] [other fault admission]. The defendant [(insert name)] has also
admitted that [his] [her] [its] [negligence] [unreasonably dangerous product] [other fault
conduct] was a proximate cause of [injuries] [damages] to the plaintiff. There are other issues
you will need to decide in this case.
Notes on Use
Permission to publish these granted in 2003.
The committee believes that one of these instructions should be given at the outset of the case as
part of the cautionary and general series. These two instructions replace the former 1.03 which dealt with
“admitted liability.” That concept can mean different things to different people. 1.03A should be used
where the defendant admits fault only, and disputes proximate cause and damages. 1.03B should be used
where the defendant admits his fault caused damages, and the only issue is the amount of damages to be
awarded.
In drafting the issues and burden instructions, the parties will need to distinguish between cases
where fault is admitted and those where fault and causation is admitted. Lawler v. MacDuff, 335
Ill.App.3d 144, 779 N.E.2d 311, 268 Ill.Dec. 697 (2d Dist. 2002), is a cautionary case for jury instructions
in admitted liability cases.
Section 1, Page 11 of 12
1.05 Deadlocked Jury
The verdict must represent the considered judgment of each juror. In order to return a
verdict, it is necessary that each juror agree to it. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to deliberate with a view to
reaching an agreement, if you can do so without violence to individual judgment. Each of you
must decide the case for yourself, but do so only after an impartial consideration of the evidence
with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your
own views and change your opinion if convinced it is erroneous. But, do not surrender your
honest conviction as to the weight or effect of evidence solely because of the opinion of your
fellow jurors or for the mere purpose of returning a verdict.
You are not partisans. You are judges--judges of the facts. Your sole interest is to
ascertain the truth from the evidence in the case.
Notes on Use
This instruction should not be given as part of the original series but only if, after reasonable
deliberation, the jury reports an inability to agree or fails to return a verdict. In giving this instruction, the
following procedure should be employed:
1. Before the trial judge attempts to ascertain whether the jury is deadlocked, counsel and the
reporter should be present. At that time, the court should, on the record, state the facts concerning any
communication from the jury on the record or, if there has been no communication, the length of time the
jury has been deliberating and inform counsel that he proposes to give the instruction, giving them an
opportunity to object if they so desire.
2. In the presence of counsel and the reporter, the jury should be returned to the box, and the
court, after cautioning them not to reveal the numerical division in the voting or which side has the
preponderance, should ask the foreman if they are able to reach a verdict. If they are not, he should then
give this instruction and return them to the jury room to deliberate further.
It has not yet been determined whether this instruction should be given in writing. See generally
735 ILCS 5/2-1107 (1994).
Comment
The language of this instruction is mandated by People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601
(1972), cert. denied, 412 U.S. 918, 93 S.Ct. 2731, 37 L.Ed.2d 144 (1973). See also People v. Cowan, 105
Ill.2d 324, 473 N.E.2d 1307, 85 Ill.Dec. 502 (1985); People v. Robertson, 92 Ill.App.3d 806, 416 N.E.2d
323, 48 Ill.Dec. 292 (1st Dist. 1981); Trauscht v. Gunkel, 58 Ill.App.3d 509, 374 N.E.2d 843, 16 Ill.Dec.
68 (1st Dist.1978).
Section 1, Page 12 of 12
1.06 Deadlocked Jury (Follow Up To 1.05)
In a large proportion of cases absolute certainty cannot be expected nor does the law
require it.
If you fail to agree on a verdict the case must be retried. Any future jury must be selected
in the same manner as you were chosen. There is no reason to believe that the case would ever be
submitted to another jury more competent to decide it, or that the case can be tried any better or
more exhaustively than it has been here, or that more or clearer evidence could be produced on
behalf of any party.
You should now retire and reconsider the evidence in light of the court’s instructions.
Instruction, Notes and Comment created October 2008.
Notes on Use
This instruction may be given in the trial court’s discretion only after the jury has received the IPI
1.05 instruction and remains deadlocked. If given, the Committee recommends the procedure set forth in
Notes on Use for IPI 1.05.
Comment
This instruction states in more modern language the “Allen charge” approved in Allen v. U.S., 164
U.S. 492, 501-502 (1896), the use of which was discussed in People v. Iverson, 9 Ill. App.3d 706, 709
(2nd Dist. 1973). This simple, neutral, and not coercive instruction is consistent with the opinion in
Preston v. Simmons, et al., 321 Ill.App.3d 789, 747 N.E.2d 1059, 254 Ill. Dec. 647 (1st Dist. 2001).
Comment revised November 2008 48; 78 N.E.2d 333, 336 (3d Dist.1948).
Section 2, Page 1 of 4
2.00
INSTRUCTIONS DURING TRIAL
2.01 Evaluation of Deposition or Prior Testimony
The testimony of [(name) (several witnesses)] [is now going to be] [will be] [was]
presented by [video tape] [and] [the reading of his/her testimony]. You should give this
testimony the same consideration you would give it had the witness personally appeared in court.
Notes on Use
If only one evidence deposition or videotape is going to be used during trial, the court may want
to give this instruction immediately before the presentation of this testimony and to identify this witness.
When the testimony of more than one witness is to be presented in this manner, the court may elect to
provide a more generic description of these witnesses in order to avoid repetition and the need to submit
several similar written instructions to the jury. In such case, this instruction can be given before trial or
before the first such witness is presented. When reading this instruction during trial, the court should use
the parenthetical phrase “is now going to be.” The written instruction submitted to the jury before
deliberations should use the term “was.”
Comment
This instruction replaces former IPI 2.11.
Informing the jury that evidence depositions are to receive no greater or lesser consideration than
live testimony has been approved. Olcese v. Mobile Fruit & Trading Co., 211 Ill. 539, 545; 71 N.E. 1084,
1087 (1904); Powell v. Myers Sherman Co., 309 Ill.App. 12, 22; 32 N.E.2d 663, 668 (2d Dist.1941);
Pozdro v. Dynowski, 83 Ill.App.2d 79, 88; 226 N.E.2d 377, 381 (1st Dist.1967); Brubaker v. Gould, 34
Ill.App.2d 421, 443; 180 N.E.2d 873, 882-883 (1st Dist.1962).
Under certain circumstances, the former testimony of a witness who is now unavailable may be
admitted. George v. Moorhead, 399 Ill. 497, 500; 78 N.E.2d 216, 218 (1948).
Section 2, Page 2 of 4
2.02 Evidence Admitted For a Limited Purpose
The [following] [preceding] evidence concerning [(describe evidence)] is to be
considered by you [solely as it relates to [(limited subject matter)]] [only as to [(name the party
or parties)]]. It should not be considered [for any other purpose] [as to any other party].
Notes on Use
This instruction formerly appeared as IPI 1.01[7]. The only difference is that it is designed for use
contemporaneously with admission of the evidence to which it is applicable. The Committee realizes that
limiting instructions are routinely given at the time the evidence is elicited and that this practice is
encouraged by the Supreme Court. See People v. Anderson, 113 Ill.2d 1, 5; 495 N.E.2d 485, 486; 99
Ill.Dec. 104, 105 (1986). One court has indicated that the preferred practice is to repeat the instruction
after closing argument. Atwood v. CTA, 253 Ill.App.3d 1, 14; 624 N.E.2d 1180, 1189; 191 Ill.Dec. 802,
811 (1st Dist.1993). If repeated, the instruction should be given in the form found in IPI 3.07.
Comment
Examples of evidence admitted for a limited purpose are found in Eizerman v. Behn, 9 Ill.App.2d
263, 279-280; 132 N.E.2d 788, 795-796 (1st Dist.1956) (use for impeachment but not as substantive
evidence); Dallas v. Granite City Steel Company, 64 Ill.App.2d 409, 423-424; 211 N.E.2d 907, 913-914
(5th Dist.1965) (limited use of post-incident clean-up); and Atwood v. CTA, 253 Ill.App.3d 1, 624 N.E.2d
1180, 1185; 191 Ill.Dec. 802, 807 (1st Dist.1993) (driving record introduced only to show negligent
entrustment by owner). Examples of evidence admitted only against one party are found in Clark v. A.
Bazzoni & Co., 7 Ill.App.2d 334, 338; 129 N.E.2d 435, 437 (1st Dist.1955); Chapman v. Checker Taxi,
43 Ill.App.3d 699, 713, 357 N.E.2d 111, 121, 2 Ill.Dec. 134, 144 (1st Dist.1976); Fedt v. Oak Lawn
Lodge, 132 Ill.App.3d 1061, 1070-1071, 478 N.E.2d 469, 477-478, 88 Ill.Dec. 154, 162-163 (1st
Dist.1985).
Section 2, Page 3 of 4
2.03 Dismissal of Party or Directed Verdict In Favor of a Defendant
[(Name of dismissed party)] is no longer a party to this case. [You should not speculate
as to the reason nor may the remaining parties comment on why [(name of dismissed party)] is
no longer a party.]
Notes on Use
The second sentence should be given unless the court determines that it is proper for the
remaining parties to comment on the dismissal. The court should make a threshold determination as to
whether a settlement agreement has the potential to bias a witness' testimony. Garcez v. Michel, 282
Ill.App.3d 346, 350; 668 N.E.2d 194, 197; 218 Ill.Dec. 31, 34 (1st Dist.1996). In many situations this
danger can exist. See Batteast v. Wyeth Laboratories, 137 Ill.2d 175, 184-185; 560 N.E.2d 315, 319; 148
Ill.Dec. 13, 17 (1990) (court should allow evidence of settlement agreement which requires that the
dismissed party testify in a certain manner); Lam v. Lynch Machinery Division, 178 Ill.App.3d 229, 230;
533 N.E.2d 37, 41; 127 Ill.Dec. 419, 423 (1st Dist.1988) (third-party defendant's settlement agreement
with defendant/third-party plaintiff to pay 70% of plaintiff's verdict against defendant/third-party plaintiff
is admissible to show bias against plaintiff); Reese v. Chicago, Burlington and Quincy R.R. Co., 55 Ill.2d
356, 363-364; 303 N.E.2d 382, 387 (1973) (evidence of loan-receipt agreement admissible if bias of
witness in outcome of case is not otherwise apparent). But see In re Guardianship of Babb, 162 Ill.2d
153, 171; 642 N.E.2d 1195, 1204; 205 Ill.Dec. 78, 87 (1994) (loan-receipt agreements were held to
violate the policies of the Contribution Act so as to preclude a finding that they may be considered a
“good faith” settlement).
Comment
The Committee realizes that courts routinely comment on dismissals during trial and this
instruction is intended to provide some uniformity to that practice. Dismissals may be due to settlement,
directed verdict, voluntary dismissal, etc. The importance of informing the jury of directed findings was
underscored in Wille v. Navistar, 222 Ill.App.3d 833, 839; 584 N.E.2d 425, 429; 165 Ill.Dec. 246, 250
(1st Dist.1991).
Section 2, Page 4 of 4
2.04 Limiting Instruction--Expert Testifies To Matters Not Admitted In Evidence
I am allowing the witness to testify in part to [books] [records] [articles] [statements] that
have not been admitted in evidence. This testimony is allowed for a limited purpose. It is allowed
so that the witness may tell you what he/she relied on to form his/her opinion[s]. The material
being referred to is not evidence in this case and may not be considered by you as evidence. You
may consider the material for the purpose of deciding what weight, if any, you will give the
opinions testified to by this witness.
Notes on Use
This instruction should be given when the facts or data underlying an expert's opinion have been
revealed to the jury but are not admissible in evidence.
Comment
Under Wilson v. Clark, 84 Ill.2d 186, 192-194; 417 N.E.2d 1322, 1326; 49 Ill.Dec. 308, 312
(1981), an expert may base opinions on facts or data which are not admissible in evidence. The facts or
data underlying an expert's opinion may be revealed to a jury in order to explain the basis of the expert's
opinion. When facts or data which are not admissible in evidence are used to explain the basis of an
expert's opinion, it is appropriate to give this instruction to advise the jury that the facts or data should be
considered only to evaluate the basis of the expert's opinion and not as evidence in the case. People v.
Anderson, 113 Ill.2d 1, 12; 495 N.E.2d 485, 490; 99 Ill.Dec. 104, 109 (1986). When an expert's opinion is
based, in part, on facts or data which have been admitted into evidence, the instruction applies only to the
facts or data which have not been admitted in evidence. Lecroy v. Miller, 272 Ill.App.3d 925, 934; 651
N.E.2d 617, 623; 209 Ill.Dec. 439, 445 (1st Dist.1995).
Section 3, Page 1 of 8
3.00
GENERAL INSTRUCTIONS
3.01 Rulings and Remarks of The Court
[WITHDRAWN]
IPI 3.01 is withdrawn. Use the current version of IPI 1.01 for general cautionary
instructions.
Instruction withdrawn May 2010.
Section 3, Page 2 of 8
3.02 Witness Who Has Been Interviewed By Attorney
An attorney is allowed, if the witness agrees, to talk to a witness to learn what testimony
will be given. Such an interview, by itself, does not affect the credibility of the witness.
Notes on Use
This instruction may only be given where the evidence shows, or the jury observed, that a witness
or party has been interviewed by an attorney. This instruction replaces what was IPI 2.06. If appropriate,
this instruction may be given during trial.
Comment
The purpose of this instruction is to attempt to offset the “ancient trick” in which a crossexaminer “questions a witness as to his interview with opposing counsel, often stated in a way to imply to
the witness and jurors that this is an impropriety.” Dorf v. Egyptian Freightways, Inc., 39 Ill.App.2d 2, 4;
188 N.E.2d 103, 104 (4th Dist.1962) (instruction properly refused because interviewing attorney
misrepresented his client's identity). Accord Petrillo v. Syntex Laboratories, 148 Ill.App.3d 581, 602; 499
N.E.2d 952, 966; 102 Ill.Dec. 172, 186 (1st Dist.1986), leave to appeal denied, 113 Ill.2d 584, 505
N.E.2d 361, 106 Ill.Dec. 55 (1987), cert. denied, 483 U.S. 1007, 107 S.Ct. 3232, 97 L.Ed.2d 738 (1987);
People v. Simmons, 138 Ill.App.3d 492, 496-498; 485 N.E.2d 1135, 1140; 92 Ill.Dec. 892, 897 (5th
Dist.1985). This instruction also informs the jury that a witness has a right not to speak with an attorney.
A defense attorney in a personal injury case cannot interview the plaintiff's treating physician ex
parte. Defense counsel can communicate with such a witness only through formal discovery. Petrillo v.
Syntex Laboratories, Inc., 148 Ill.App.3d 581, 587; 499 N.E.2d 952, 956; 102 Ill.Dec. 172, 176 Best v.
Taylor Machine Works, 179 Ill.2d 367, 433-459; 689 N.E.2d 1057, 1089-1101; 228 Ill.Dec. 636, 668-680
(1997); Kunkel v. Walton, 179 Ill.2d 519, 525-528; 689 N.E.2d 1047, 1049-1052; 228 Ill.Dec. 626, 628631 (1997). However, it has been held error to add language to this instruction that a defense attorney
cannot interview the plaintiff's treating physician or nurses. Netto v. Goldenberg, 266 Ill.App.3d 174, 184;
640 N.E.2d 948, 956; 203 Ill.Dec. 798, 806 (2d Dist.1994), overruled on other grounds, Holton v.
Memorial Hospital, 176 Ill.2d 95, 117; 679 N.E.2d 1202, 1212; 223 Ill.Dec. 429, 439 (1997).
Section 3, Page 3 of 8
3.03 Insurance/Benefits
Whether a party is insured or not insured has no bearing on any issue that you must
decide. You must refrain from any inference, speculation, or discussion about insurance.
If you find for the plaintiff, you shall not speculate about or consider any possible sources
of benefits the plaintiff may have received or might receive. After you have returned your
verdict, the court will make whatever adjustments are necessary in this regard.
Instruction, Notes and Comment revised October 2007.
Notes on Use
The Committee believes that this instruction should be given in all cases where insurance could
play a role in the decision of the jury. With the wide prevalence of liability insurance, medical insurance
or government benefits such as Medicaid or Medicare, many jurors question the role of insurance in
contested accident, medical negligence or other cases. This phenomenon has been demonstrated by the
Arizona Jury Project, and is well-known to judges and practitioners on an anecdotal basis. See Diamond
et al., “Jury Ruminations on Forbidden Topics,” 87 Va. L. Rev. 1857 (2001).
The failure to give the former 30.22 was held to be reversible error in Baraniak v. Kurby, 371
Ill.App.3d 310 (1st Dist. 2007).
Comment
This instruction combines the former 3.03 and 30.22. In a case where there is
no mention of insurance throughout the trial, the giving of 3.03 was held not to be
an abuse of discretion as the instruction accurately reflects Illinois law. See Auten
v. Franklin, 404 Ill.App.3d 1130, 942 N.E.2d 500, 347 Ill.Dec. 297 (4th Dist. 2010).
Comment revised December 2011.
Section 3, Page 4 of 8
3.04 Circumstantial Evidence
A fact or a group of facts, may, based on logic and common sense, lead you to a
conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by
circumstantial evidence. [For example, if you are in a building and a person enters who is wet
and is holding an umbrella, you might conclude that it was raining outside.] Circumstantial
evidence is entitled to the same consideration as any other type of evidence.
Instruction revised September 2009.
Notes on Use
Where any of the evidence in a case is circumstantial, a party is entitled to an instruction that a
fact may be proved by circumstantial evidence. Kane v. Northwest Special Recreation Association, 155
Ill.App.3d 624, 508 N.E.2d 257, 108 Ill.Dec. 96 (1st Dist.1987). If there is only direct evidence in a case,
this instruction should not be given. Kaufman v. Firestone Tire & Rubber Co., 3 Ill.App.3d 628, 279
N.E.2d 498 (1st Dist.1972). Whitehurst v. Bauer, 45 Ill.App.3d 462, 359 N.E.2d 1176, 4 Ill.Dec. 224 (4th
Dist.1977).
If there is circumstantial evidence in a case, this instruction may be given even though there is
also direct eyewitness testimony. Oudshoorn v. Warsaw Trucking Co., 38 Ill.App.3d 920, 349 N.E.2d 648
(1st Dist.1976). A party is entitled to instructions on his theory of the case, including the relevance of
circumstantial evidence. Babcock v. Chesapeake and Ohio Railway Company, 83 Ill.App.3d 919, 404
N.E.2d 265, 38 Ill.Dec. 841 (1st Dist.1979).
Comment
“Circumstantial evidence is the proof of certain facts and circumstances from which the fact
finder may infer other connected facts which usually and reasonably follow according to the common
experience of mankind.” Eskridge v. Farmers New World Life Insurance Co., 250 Ill.App.3d 603, 621
N.E.2d 164, 169; 190 Ill.Dec. 295, 300 (1st Dist.1993). Circumstantial evidence need not exclude all
other possible inferences, but it must justify an inference of probability, not mere possibility. McCullough
v. Gallaher & Speck, 254 Ill.App.3d 941, 627 N.E.2d 202, 208; 194 Ill.Dec. 86, 92 (1st Dist.1993).
Section 3, Page 5 of 8
3.05 Impeachment by Proof of Conviction of Crime
The credibility of a witness may be attacked by introducing evidence that the witness has
been convicted of a crime. Evidence of this kind may be considered by you in connection with
all the other facts and circumstances in evidence in deciding the weight to be given to the
testimony of that witness.
Comment
Proof of conviction for purposes of impeachment is no longer limited to proof of infamous
crimes. In People v. Montgomery, 47 Ill.2d 510, 516, 268 N.E.2d 695, 698 (1971), the Illinois Supreme
Court held that the provisions of the 1971 draft of Federal Rule of Evidence 609 (51 F.R.D. 315, 393
(1971)) would henceforth be the test for determining the admissibility of prior convictions used for
impeachment.
After Montgomery, such crimes include those punishable by imprisonment for a term in excess of
one year (felonies) and crimes involving dishonesty or false statement. Thus, impeachment is now proper
with misdemeanors, such as theft, that have as their basis lying, cheating, deceiving, or stealing. People v.
Spates, 77 Ill.2d 193, 201; 395 N.E.2d 563, 567-568; 32 Ill.Dec. 333, 337-338 (1979); People v.
McKibbins, 96 Ill.2d 176, 187; 449 N.E.2d 821, 826; 70 Ill.Dec. 474, 479 (1983); People v. Malone, 78
Ill.2d 34, 38; 397 N.E.2d 1377, 1379; 34 Ill.Dec. 311, 313 (1979); People v. Dalton, 91 Ill.2d 22, 31-32;
434 N.E.2d 1127, 1132; 61 Ill.Dec. 530, 535 (1982); People v. Poliquin, 97 Ill.App.3d 122, 135; 421
N.E.2d 1362, 1372; 52 Ill.Dec. 290, 300 (1st Dist.1981); People v. Elliot, 274 Ill.App.3d 901, 909; 654
N.E.2d 636, 642; 211 Ill.Dec. 174, 182 (1st Dist.1995).
Montgomery limits the time which a conviction can be used for impeachment to a period within
10 years of the date of the conviction or the release from confinement, whichever is later. However, in
each case, the judge must exercise his discretion as to whether or not to allow the impeachment by
weighing the probative value of the evidence of the crime against the danger of unfair prejudice. People v.
Ramey, 70 Ill.App.3d 327, 332; 388 N.E.2d 196, 199; 26 Ill.Dec. 572, 575 (1979); People v. Tribett, 98
Ill.App.3d 663, 675; 424 N.E.2d 688, 697; 53 Ill.Dec. 897, 906 (1st Dist.1981); People v. Jones, 155
Ill.App.3d 641, 647; 508 N.E.2d 357, 361; 108 Ill.Dec. 196, 200 (1st Dist.1987).
Impeachment by use of prior criminal convictions is proper in civil as well as criminal cases.
Knowles v. Panopoulos, 66 Ill.2d 585, 589; 363 N.E.2d 805, 808; 6 Ill.Dec. 858, 861 (1977); People v.
Stover, 89 Ill.2d 189, 194-195; 432 N.E.2d 262, 265; 59 Ill.Dec. 678, 681 (1982); Taylor v. Village
Commons Plaza, Inc., 164 Ill.App.3d 460, 464-465; 517 N.E.2d 1164, 1167; 115 Ill.Dec. 478, 481 (2d
Dist.1987) (burglary and misdemeanor retail theft convictions properly used); Ryan v. Mobil Oil Corp.,
157 Ill.App.3d 1069, 1082; 510 N.E.2d 1162, 1170-1171; 110 Ill.Dec. 131, 139-140 (1st Dist.1987)
(discretion properly exercised to exclude 9-year-old drug conviction).
A good review of the law concerning this subject is found in People v. Kellas, 72 Ill.App.3d 445,
449-452; 389 N.E.2d 1382, 1386-1389, 28 Ill.Dec. 9, 13-16 (1st Dist.1979); People v. Stover, 89 Ill.2d
189, 199-201; 432 N.E.2d 262, 268-269; 59 Ill.Dec. 678, 682-683 (1982); People v. Williams, 161 Ill.2d
1, 39, 45; 641 N.E.2d 296, 312; 204 Ill.Dec. 72 (1994); People v. Kunze, 193 Ill.App.3d 708, 728; 550
N.E.2d 284, 297; 140 Ill.Dec. 648, 661 (4th Dist.1990); Housh v. Bowers, 271 Ill.App.3d 1004, 10061007; 649 N.E.2d 505, 506-507; 208 Ill.Dec. 449, 450-451 (3d Dist.1995).
Section 3, Page 6 of 8
3.06 Directed Finding
The court has determined that [(name)] is [negligent] [liable] [other finding]. This is not
an issue you will need to decide. [The remaining parties are not to be prejudiced by this finding.]
Notes on Use
The importance of informing the jury of directed findings was underscored in Wille v. Navistar,
222 Ill.App.3d 833, 839; 584 N.E.2d 425, 429; 165 Ill.Dec. 246, 250 (1st Dist.1991). If the finding in
favor of the plaintiff is against one but not all defendants, it would be proper to use the second sentence
and inform the jury that the court's finding should not affect those other defendants. Wanner v. Keenan,
22 Ill.App.3d 930, 936-937; 317 N.E.2d 114, 119-120 (2d Dist.1994).
Section 3, Page 7 of 8
3.07 General Limiting Instruction
Evidence that was [received for a limited purpose] [or] [limited to (one party) (some
parties)] should not be considered for [any other purpose] [or] [as to any other (party) (parties)].
Notes on Use
The instruction in this form was formerly found at IPI 1.01[7]. It is meant for use at the end of
closing arguments. See Notes on Use and Comments to IPI 2.02.
Section 3, Page 8 of 8
3.08 Opinion Testimony
You have heard a witness give opinions about matters requiring special knowledge or
skill. You should judge this testimony in the same way you judge the testimony from any other
witness. The fact that such person has given an opinion does not mean that you are required to
accept it. Give the testimony whatever weight you think it deserves, considering the reasons
given for the opinion, the witness's qualifications, and all of the other evidence in the case.
Instruction created October 2007. Notes revised April 2008.
Notes on Use
This instruction should be given in any case in which opinion
testimony is admitted. In a professional negligence case, IPI 105.01 (see version adopted
September 2011 as contained on the Illinois Supreme Court website) or 105.03.01 (2006) should
also be given. See Auten v. Franklin, 404 Ill.App.3d 1130, 942 N.E.2d 500, 347 Ill.Dec. 297 (4th
Dist. 2010). The instruction mirrors the language of the 7th Circuit Approved Instruction 1.21.
Notes on Use revised December 2011.
Section 4, Page 1 of 15
4.00
INSTRUCTIONS RECOMMENDED NOT TO BE GIVEN
4.01 Flight From Accident As Evidence of Negligence
The committee recommends that no instruction on “flight from accident as evidence of
negligence” be given.
Comment
The committee recommends that no instruction be given on the subject of flight from the scene of
an accident. As in the case of admissions, this is peculiarly a subject of argument for the jury. Moreover,
an instruction of this type would unduly single out particular evidence.
Section 4, Page 2 of 15
4.02 Witness Need Not Be Believed
The committee recommends that no instruction that the “witness need not be believed” be
given.
Comment
This instruction was formerly IPI 2.02.
It has been common to instruct juries that “they are not bound to believe anything to be a fact
simply because a witness has stated it to be so provided that they believe the witness is mistaken or has
testified falsely.”
Instructions informing a jury that certain witnesses need not be believed have been held harmless
error by Illinois courts. Village of Des Plaines v. Winkelman, 270 Ill. 149, 110 N.E. 417 (1915); Devaney
v. Otis Elevator Co., 251 Ill. 28, 95 N.E. 990 (1911); Aldridge v. Morris, 337 Ill.App. 369, 374; 86
N.E.2d 143, 145-146 (2d Dist.1949).
It is recommended that no instruction of this type be given. Determination of credibility of
witnesses is solely within the province of the jury and it is superfluous to inform them that certain
witnesses need not be believed. The standards for assessing credibility of witnesses are adequately set
forth in IPI 1.01 [4]. In Hackett v. Ashley, 71 Ill.App.3d 179, 389 N.E.2d 246, 27 Ill.Dec. 434 (3d
Dist.1979), the court noted that the IPI committee recommendation is persuasive.
Section 4, Page 3 of 15
4.03 Inherently Improbable Testimony
The committee recommends that no “inherently improbable testimony” instruction be
given.
Comment
This instruction was formerly IPI 2.03.
It has been the practice of some trial attorneys to offer an instruction to the effect that the jury
need not believe “inherently improbable testimony.” This type of charge is somewhat argumentative and
is quite unnecessary because the same proposition is necessarily implied in IPI 1.01[3] which tells the
jurors that they are the triers of fact and that they have a right to consider the evidence in the light of their
own observations and experiences.
The subject of improbable testimony can be most adequately covered by counsel in argument and
should not be the subject of a charge to the jury.
Section 4, Page 4 of 15
4.04 Witness Willfully False
The committee recommends that no instruction on the willfully false witness be given.
Comment
This instruction was formerly IPI 2.04.
Instructions have been given which inform the jurors that the testimony of a witness who has
knowingly and willfully sworn falsely on a material issue may be disregarded unless it has been
corroborated by other credible evidence. Some courts have required that the witness' testimony be
accompanied by an appropriate instruction defining matter material to the issue. McManaman v. JohnsManville Prods. Corp., 400 Ill. 423, 81 N.E.2d 137 (1948); Schneiderman v. Interstate Transit Lines, 401
Ill. 172, 81 N.E.2d 861 (1948); McQuillen v. Evans, 353 Ill. 239, 187 N.E. 320 (1933).
It is recommended that an instruction of this type not be given. The instruction is argumentative,
invades the province of the jury, and suggests the court's belief that a witness has sworn falsely. It
emphasizes the issue of false testimony, which is a matter solely within the province of the jury. Again,
determination of a witness' credibility is the subject of standards outlined in IPI 1.01[4] on credibility of
witnesses.
The matter of testimony which is knowingly or willfully false is not to be confused with impeachment by
prior inconsistent or contradictory statements, which is adequately covered by IPI 1.01[4].
Section 4, Page 5 of 15
4.05 Party Competent As a Witness
The committee recommends that no instruction on the “party competent as a witness” be
given.
Comment
This instruction was formerly IPI 2.05.
Instructions that the jury should consider the interest of a particular litigant in the outcome of the
lawsuit in determining his credibility as a witness have been given.
It is error to single out the interest of a party when there are individuals on both sides of the case.
Hartshorn v. Hartshorn, 179 Ill.App. 421, 423-425 (2d Dist.1913) (two individuals); Engstrom v. Olson,
248 Ill.App. 480, 487 (2d Dist.1928) (two individuals); Gaffner v. Meier, 336 Ill.App. 44, 48-49; 82
N.E.2d 818, 820 (4th Dist.1948) (individual and partnership); Doellefield v. Travelers Ins. Co., 303
Ill.App. 123, 125-126; 24 N.E.2d 904, 904-906 (2d Dist.1940) (individual plaintiff, corporate and
individual defendants). The court may properly refuse such an instruction. Purgett v. Weinrank, 219
Ill.App. 28, 32-33 (2d Dist.1920). However, the improper use of such an instruction may not be reversible
error if the prevailing party's case is supported by the clear preponderance of the evidence. Wicks v.
Wheeler, 157 Ill.App. 578, 582 (2d Dist.1910) (two individuals).
On the other hand, a defendant corporation may single out the plaintiff's interest. Chicago &
E.I.R. Co. v. Burridge, 211 Ill. 9, 13-15; 71 N.E. 838, 839-840 (1904) (individual plaintiff, railroad
defendant; error to refuse defendant's instruction as to plaintiff's interest in the outcome of the suit); West
Chicago Street Ry. Co. v. Dougherty, 170 Ill. 379, 382; 48 N.E. 1000, 1001 (1897) (same). The court may
modify such an instruction by appending a clause that this same test applies to all witnesses. Dickerson v.
Henrietta Coal Co., 158 Ill.App. 454, 457-558 (4th Dist.1910), aff'd, 251 Ill. 292, 96 N.E. 225 (1911),
which relies on Henrietta Coal Co. v. Martin, 221 Ill. 460, 470; 77 N.E. 902, 905 (1906) (not squarely in
point). If it is used, the plaintiff may use a counter-balancing instruction. Bower v. Chicago Consol.
Traction Co., 156 Ill.App. 452, 456 (1st Dist.1910); Ellguth v. Blackstone Hotel, 340 Ill.App. 587, 596;
92 N.E.2d 502, 506 (1st Dist.1950), aff'd, 408 Ill. 343, 97 N.E.2d 290 (1951).
It is recommended that no separate instruction be given on the subject of the credibility of a party,
even when tendered by a corporate party. IPI 1.01[4], which adequately covers the interest of party
witness, should be given. The varying emphases to be placed upon any particular witness' testimony are
best explained by argument of counsel.
Section 4, Page 6 of 15
4.06 One Witness Against a Number
The committee recommends that no “one witness against a number” instruction be given.
Comment
This instruction was formerly IPI 2.08.
Juries have sometimes been told that preponderance is not determined simply by the number of
witnesses and that the testimony of one credible witness may be entitled to more weight than the
testimony of many others who may be less credible. Instructions of this type are often tendered by the
party having a lesser number of witnesses.
The Illinois Supreme Court has held that it is for the jury to determine to what extent each witness
is credible, and that it is error to give an instruction on that subject which is worded in such a way that,
under the circumstances of the case, the jury might readily infer the court believed the witnesses for one
side to be more credible than the witnesses for the other side. Walsh v. Chicago Rys. Co., 294 Ill. 586,
595; 128 N.E. 647, 650 (1920).
It is recommended that an instruction covering this subject matter not be given, because it tends
to emphasize, minimize, or single out the testimony of certain witnesses.
See Walsh v. Chicago Rys. Co., 294 Ill. 586, 595; 128 N.E. 647, 650 (1920); Lyons v. Joseph T.
Ryerson & Son, 242 Ill. 409, 90 N.E. 288 (1909); Tri-City Ry. Co. v. Gould, 217 Ill. 317, 75 N.E. 493
(1905); Johnson v. Farrell, 215 Ill. 542, 74 N.E. 760 (1905); Keller v. Hansen, 14 Ill.App. 640 (1st
Dist.1884).
Section 4, Page 7 of 15
4.07 Credibility of Special Categories of Witnesses and Weight of Evidence
The committee recommends that no instructions on the credibility of special categories of
witnesses be given.
Comment
This instruction was formerly IPI 2.09.
Although instructions of this type have been approved, the committee recommends that no
instruction be given as to credibility of special categories of witnesses, such as employees, experts, and
lawyers. See the Comment at 4.08 infra, as to expert witnesses. These seem to be simply matters of fact
for the jury and do not involve legal rules. Unless we are to allow the judge to comment in detail on each
witness, it seems wiser to leave these matters to be argued to the jury by counsel.
The court in Department of Pub. Works & Bldgs. v. Tinsley, 120 Ill.App.2d 95, 256 N.E.2d 124
(5th Dist.1970), stated that due to the IPI committee's recommendation that an instruction on this subject
should not be given a tendered instruction on this subject was properly refused.
In Stach v. Sears, Roebuck & Co., 102 Ill.App.3d 397, 429 N.E.2d 1242, 57 Ill.Dec. 879 (1st
Dist.1981), the court cited with approval the committee's comments to this instruction in holding that the
trial court properly refused to give an instruction to the effect that the testimony of an attorney on behalf
of his own client is to be given little weight. In affirming the committee's position that instructions such as
former IPI 2.09 should not be given, it stated that “unless we are to allow the judge to comment in detail
on each witness, it seems wiser to leave these matters to be argued to the jury by counsel.”
Section 4, Page 8 of 15
4.08 Weighing Expert Testimony
The committee recommends that no instruction on “weighing expert testimony” be given.
Comment
This instruction was formerly IPI 2.10.
Expert testimony is commonplace in modern jury trials. There is no good reason why the weight
of expert testimony should be subject to criteria different from that for other witnesses. Accordingly, the
committee recommends that no special instructions on the subject be given. Neville v. Chicago, 191
Ill.App. 372 (1st Dist.1915). IPI 1.01[4] is a sufficient guide to the jury in this respect. This is a subject
which is peculiarly within the province of argument of counsel. Malpractice cases are an exception to this
principle. In malpractice cases jurors must accept the standard supplied by expert witnesses. See IPI
105.01.
Section 4, Page 9 of 15
4.09 Hospital and Business Records
The committee recommends that no instruction be given concerning hospital and
business records.
Comment
This instruction was formerly IPI 2.12.
The committee recommends that no instruction be given on this subject, because it singles out a
portion of the evidence for improper emphasis.
Section 4, Page 10 of 15
4.10 Impeachment By Proof of Bad Reputation For Truth and Veracity
The committee recommends that no instruction on “impeachment by proof of bad
reputation for truth and veracity” be given.
Comment
This instruction was formerly IPI 3.03.
Although a witness may be impeached by proof of his bad reputation for truth and veracity, Frye
v. President, etc., of Bank of Ill., 11 Ill. 367, 378-79 (1849), an instruction on the subject would result in
undue emphasis upon this essentially collateral issue and, therefore, should not be given. The matter can
best be treated by argument of counsel.
Section 4, Page 11 of 15
4.11 Standard of Conduct for Child--Violation of Statute or Ordinance
[Withdrawn]
Comment
Former IPI 10.06 is now the last paragraph of IPI 10.05.
Section 4, Page 12 of 15
4.12 Care Required For Safety of Child
The Committee recommends that no instruction on the care required for the safety of a
child be given.
Comment
The law recognizes the lack of judgment, caution, and discretion of children and requires that an
adult reasonably guard against these tendencies. Johnson v. City of St. Charles, 200 Ill.App. 184 (2d
Dist.1916). The law requires that an adult use ordinary care to ascertain a child's evident purpose, for
example, that a three-year old probably intends to cross a streetcar track if he approaches it. Liska v.
Chicago Rys. Co., 318 Ill. 570, 580; 149 N.E. 469, 474 (1925). However, to state, as some instructions
do, that one must anticipate the ordinary behavior of children and exercise greater care for their protection
and safety appears to be an argument about what constitutes ordinary care under the circumstances rather
than a rule of law. Therefore, the Committee recommends that this type of instruction not be given.
Section 4, Page 13 of 15
4.13 Duty of One In Imminent Peril and Responsibility of The Person Causing the
Perilous Situation
The Committee recommends that no instruction either on the duty of one in imminent
peril or the responsibility of the person causing the perilous situation be given.
Comment
An instruction which states that the law does not require a person to act with deliberation and care
in the face of an unexpected danger not caused by his own negligence should not be given for three
reasons. First, it is argumentative. Second, it states a simple and obvious fact about human behavior.
Third, except in the most obvious case when no juror would need to be reminded of the proposition, it
will probably lead to reversible error. For example, the court has held in Moore v. Daydif, 7 Ill.App.2d
534, 536-37, 130 N.E.2d 119, 121 (2d Dist.1955), that a sudden emergency instruction was erroneous
when the lead car swerved off to the right to avoid a pedestrian whom defendant, in a following car, then
saw and hit with his right fender. See also: Reese v. Buhle, 16 Ill.App.2d 13, 20; 147 N.E.2d 431, 435 (1st
Dist.1957) (error to give a sudden emergency instruction when plaintiff emerged from between two
stopped trucks at crosswalk and was hit by defendant); Minnis v. Friend, 360 Ill. 328, 337; 196 N.E. 191,
195 (1935) (sudden appearance of a fire engine at an intersection must be anticipated; therefore, the court
properly refused to give an unexpected danger instruction); Andes v. Lauer, 80 Ill.App.3d 411, 414; 399
N.E.2d 990, 992; 35 Ill.Dec. 701, 703 (3d Dist.1980).
A companion instruction that the person who negligently causes a sudden emergency is
responsible for injury caused by reasonable attempts on the part of the imperiled person to extricate
himself which caused injury should not be given. The subject is adequately covered by an ordinary
instruction on proximate cause, and this type of instruction is argumentative, painfully obvious, and likely
to be reversed.
See Comment to IPI 4.14 on the non-recommended “unavoidable accident” instruction.
Section 4, Page 14 of 15
4.14 Unavoidable Accident
The Committee recommends that no “unavoidable accident” instruction be given.
Comment
In Illinois when there is any evidence tending to prove that the plaintiff's injury was caused by
negligence, it is reversible error to instruct on “unavoidable accident.” Wolpert v. Heidbreder, 21
Ill.App.2d 486, 158 N.E.2d 421 (3d Dist.1959); Annotation, Instructions on Unavoidable Accident, Or
the Like, In Motor Vehicle Cases, 65 A.L.R.2d 12 (1959); Cook v. Hoppin, 783 F.2d 684, 693 (7th
Cir.1986).
The legal definition of “accident” was stated in Cornwell v. Bloomington Business Men's Ass'n,
163 Ill.App. 461 (3d Dist.1911), which held that it was improper to give this instruction in an action to
recover for burns sustained when the plaintiff, while attending a Fourth of July fireworks demonstration,
was struck by a misfired skyrocket. The issues were whether the plaintiff assumed the risk by attending
the exhibition, whether he was contributorily negligent in crossing a rope to keep spectators away from
the firing area, and whether the defendant was negligent in securing the rocket to the firing rack. The
court defined “accident,” as follows:
“An accident, as defined by legal authorities, for which no liability exists is one which is
the result of an unknown cause or is the result of an unusual and unexpected event happening in
such an unusual manner from a known cause that it could not be reasonably expected or foreseen
and that it was not the result of any negligence.”
163 Ill.App. at 467.
Laymen do not have an understanding of this technical meaning of “accident” but understand it to
mean any occurrence producing injury not implying deliberate or intentional fault. Used in this sense, a
jury can only be misled when informed that a defendant is not responsible for the consequences of an
“accident.” This is true even though “accident” is ostensibly qualified by the term “unavoidable.”
In view of the very limited area of factual situations in which this instruction is proper, and the
possibilities of prejudice arising from the giving of this instruction where it is not proper, the criticism
contained in Williams v. Matlin, 328 Ill.App. 645, 649, 66 N.E.2d 719, 721 (1st Dist.1946), is pertinent.
There, the court said:
“We agree with the statement of the Third Division of this Court in Rzeszewski v. Barth,
324 Ill.App. 345, 356; 58 N.E.2d 269, that the giving of this instruction should be discouraged. It
is only when there is evidence tending to show that the plaintiff was injured through accident
alone not coupled with negligence that the giving of such instruction is permissible. Streeter v.
Humrichouse, 357 Ill. 234, 244; 191 N.E. 684. When proper, it merely tells the jury what should
be known to the man on the street. Moreover, in practically every case, as here, the jury is
instructed that it should find the defendant not guilty unless the plaintiff proves by the
preponderance of the evidence, among other things, that the defendant was guilty of negligence
proximately and directly causing the injuries complained of.”
For these reasons, the Committee recommends that no instruction be given on this subject
and that the matter be left to the argument of counsel.
Section 4, Page 15 of 15
4.15 Evenly Balanced Evidence
The committee recommends that no “evenly balanced evidence” instruction be given.
Comment
An instruction which discusses preponderance of the evidence with the jury in terms of “if the
evidence is evenly balanced, then the jury shall find for the defendant,” illustrates the type of instruction
this work seeks to avoid. This is the typical slanted instruction, i.e., an instruction which, while
acknowledging a principle of law, seeks to minimize or maximize its effects to the advantage of one side
of the litigation.
The history of this instruction is an account of the development, in this State, of the practice of
giving a slanted instruction on each side of a proposition and of its final abandonment by the courts. At
one time, the courts approved an instruction on behalf of the plaintiff that, if the evidence preponderated
in his favor “although but slightly,” he was entitled to recover. Hancheft v. Haas, 219 Ill. 546, 548; 76
N.E. 845, 846 (1906); Chicago City Ry. Co. v. Bundy, 210 Ill. 39, 48; 71 N.E. 28, 31 (1904). To
counteract the thrust of this statement, there was the approved “evenly balanced” instruction. Chicago
Union Traction Co. v. Mee, 218 Ill. 9, 14; 75 N.E. 800, 801 (1905); Koshinski v. Illinois Steel Co., 231 Ill.
198, 203; 83 N.E. 149, 150-151 (1907).
Eventually, the courts began to recognize that instructions of this kind are argumentative and
misleading, and therefore tend to confuse the jury, who look to the court for disinterested guidance. First,
the “although but slightly” instruction was condemned. Wolczek v. Public Serv. Co., 342 Ill. 482, 496;
174 N.E. 577, 583 (1930); Molloy v. Chicago Rapid Transit Co., 335 Ill. 164, 166 N.E. 530 (1929). Then
Hughes v. Medendorp, 294 Ill.App. 424, 431; 13 N.E.2d 1015, 1018 (3d Dist.1938), applied the censure
against the “slight preponderance” instruction to the “evenly balanced” instruction. See also Goertz v.
Chicago & N.W. Ry. Co., 19 Ill.App.2d 261, 153 N.E.2d 486 (1st Dist.1958) (instruction properly
refused).
While it is true the plaintiff should recover if there is the slightest preponderance of the evidence
in his favor, and that he should fail to recover if there is the slightest lack of preponderance, the answer to
the question which a trial judge must continually ask himself, “Will stating the law in these terms aid the
jury?” is an emphatic “No!” What the Illinois Supreme Court said in Teter v. Spooner, 305 Ill. 198, 211,
137 N.E. 129, 135 (1922), states the case against all slanted instructions. “If there is a perceptible
preponderance of the evidence it is sufficient, but it would not be proper for the court to give an
instruction to the jury that a perceptible preponderance of the evidence was sufficient, any more than that
a clear preponderance of the evidence was required. The effect of the adjectives is merely to confuse the
jury and invite them to minimize or maximize the weight of the evidence on one side or the other. Such
instructions ought not to be given.”
Moreover, the history of the “evenly balanced” instruction teaches us that this type of error dies
hard, as witness the defense of the “evenly balanced” instruction in Alexander v. Sullivan, 334 Ill.App. 42,
48; 78 N.E.2d 333, 336 (3d Dist.1948).
Section 5, Page 1 of 4
5.00
FAILURE TO TESTIFY OF PRODUCE EVIDENCE
INTRODUCTION
This section covers the failure of a party to produce evidence under his control, the failure
of a competent party to testify, and the situations which may arise under the “Dead Man's Act”
(735 ILCS 5/8-201 (1994)).
Under the circumstances enumerated in IPI 5.01, a presumption arises that the evidence a
party fails to produce would be unfavorable to him. The instructions explaining the application of
the “Dead Man's Act” state the general rule that a party cannot testify on his own motion when
the adverse party is suing or defending in one of the enumerated capacities, and the exceptions to
the rule.
5.01 Failure To Produce Evidence or A Witness
If a party to this case has failed [to offer evidence] [to produce a witness] within his
power to produce, you may infer that the [evidence] [testimony of the witness] would be adverse
to that party if you believe each of the following elements:
1. The [evidence] [witness] was under the control of the party and could have been
produced by the exercise of reasonable diligence.
2. The [evidence] [witness] was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have
[offered the evidence] [produced the witness] if he believed [it to be] [the testimony
would be] favorable to him.
4. No reasonable excuse for the failure has been shown.
Notes on Use
Before giving this instruction, the trial court must first determine that in all likelihood a party
would have produced the witness/document under the existing facts and circumstances except for the fact
that the testimony/contents would be unfavorable. Tuttle v. Fruehauf Corp., 122 Ill.App.3d 835, 843; 462
N.E.2d 645, 652; 78 Ill.Dec. 526, 533 (1st Dist.1984). Whether to give IPI 5.01 is a matter within the
sound discretion of the trial court. Roeseke v. Pryor, 152 Ill.App.3d 771, 504 N.E.2d 927, 105 Ill.Dec.
642 (1st Dist.1987); Anderson v. Chesapeake & Ohio Ry. Co., 147 Ill.App.3d 960, 498 N.E.2d 586,
594-595; 101 Ill.Dec. 262, 270-271 (1st Dist.1986). The instruction is not warranted when the
unproduced witness's testimony would be merely cumulative. Chuhak v. Chicago Transit Auth., 152
Section 5, Page 2 of 4
Ill.App.3d 480, 504 N.E.2d 875, 881; 105 Ill.Dec. 590, 596 (1st Dist.1987).
Comment
The failure of a party to produce testimony or physical evidence within his control creates a
presumption that the evidence if produced would have been adverse to him. Beery v. Breed, 311 Ill.App.
469, 474-478; 36 N.E.2d 591, 593-595 (2d Dist.1941) (failure to produce grandson of defendant who
drove defendant's automobile at time of occurrence justified presumption that testimony of grandson
would have been unfavorable). See also Zegarski v. Ashland Sav. & Loan Ass'n, 4 Ill.App.2d 118, 123;
123 N.E.2d 855, 857 (1st Dist.1954). The presumption does not apply if the evidence is “equally
available” to either party. Flynn v. Cusentino, 59 Ill.App.3d 262, 375 N.E.2d 433, 16 Ill.Dec. 560 (3d
Dist.1978); Chapman v. Foggy, 59 Ill.App.3d 552, 375 N.E.2d 865, 16 Ill.Dec. 758 (5th Dist.1978);
Wood v. Mobil Chem. Co., 50 Ill.App.3d 465, 365 N.E.2d 1087, 8 Ill.Dec. 701 (5th Dist.1977). A witness
is not “equally available” to a party if there is a likelihood that the witness would be biased against him,
as for example a relative or an employee of the other party. United States v. Beekman, 155 F.2d 580, 584
(2d Cir.1946); Biehler v. White Metal Rolling & Stamping Corp., 65 Ill.App.3d 1001, 382 N.E.2d 1389,
22 Ill.Dec. 634 (3d Dist.1978); Kerns v. Lenox Mach. Co., 74 Ill.App.3d 194, 392 N.E.2d 688, 30 Ill.Dec.
33 (3d Dist.1979). This is an evidentiary instruction dealing with failure to produce evidence. This
instruction is not intended to be an issue or burden of proof instruction dealing with spoliation. Dardeen
v. Kuehling et al., 213 Ill.2d 329, 821 N.E.2d 227, 290 Ill.Dec. 176 (2004).
Giving this instruction to explain this presumption has been approved. Shiner v. Friedman, 161
Ill.App.3d 73, 513 N.E.2d 862, 867; 112 Ill.Dec. 253, 258 (1st Dist.1987) (defendant failed to call
busboys who inspected washroom floor after plaintiff slipped and fell); Ryan v. E.A.I. Const. Corp., 158
Ill.App.3d 449, 511 N.E.2d 1244, 1252-1253; 110 Ill.Dec. 924, 932-933 (1st Dist.1987) (defendants
failed to call employee who had been listed as their expert and twice deposed); DeBow v. City of E. St.
Louis, 158 Ill.App.3d 27, 510 N.E.2d 895, 902; 109 Ill.Dec. 827, 834 (5th Dist.1987) (defendant failed to
produce photos of plaintiff taken by defendant and jail inspection log reports); Kane v. Northwest Special
Recreation Ass'n, 155 Ill.App.3d 624, 508 N.E.2d 257, 261-262; 108 Ill.Dec. 96, 100-101 (1st Dist.1987)
(plaintiff failed to produce underpants of alleged rape victim); Roeseke v. Pryor, 152 Ill.App.3d 771, 504
N.E.2d 927, 932-933; 105 Ill.Dec. 642, 647-648 (1st Dist.1987) (defendant hotel failed to produce night
manager's report summarizing events in question); Santiemmo v. Days Transfer, Inc., 9 Ill.App.2d 487,
499; 133 N.E.2d 539, 545 (1st Dist.1956) (defendant failed to produce doctor who examined plaintiff by
court order secured by the defendant); Petersen v. General Rug & Carpet Cleaners, 333 Ill.App. 47, 65;
77 N.E.2d 58, 67 (1st Dist.1947) (defendant failed to call driver of his truck which struck and injured
plaintiff).
The adverse presumption depends on the lack of a reasonable excuse for the nonproduction, or
the wilful withholding of the evidence. Coupon Redemption, Inc. v. Ramadan, 164 Ill.App.3d 749, 518
N.E.2d 285, 290; 115 Ill.Dec. 760, 765 (1st Dist.1987); Singh v. Air Illinois, Inc., 165 Ill.App.3d 923,
520 N.E.2d 852, 858-859; 117 Ill.Dec. 501, 507-508 (1st Dist.1988) (reasonable excuse shown for failure
to produce all of decedent's W-2 forms). One “reasonable excuse” for not producing the witness was the
witness's conviction of armed robbery. Lee v. Grand Trunk Western R. Co., 143 Ill.App.3d 500, 513; 492
N.E.2d 1364, 97 Ill.Dec. 491, 501 (1st Dist.1986).
The trial court is not required to permit a party to re-open his case to produce the missing
witness. Hollembaek v. Dominick's Finer Foods, Inc., 137 Ill.App.3d 773, 778; 484 N.E.2d 1237, 92
Ill.Dec. 382, 386 (1st Dist.1985); Blackwell v. City Nat'l Bank & Trust Co., 80 Ill.App.3d 188, 399
Section 5, Page 3 of 4
N.E.2d 326, 330; 35 Ill.Dec. 492, 496 (2d Dist.1980) (would have been preferable to allow party to
re-open or refuse instruction, but not abuse of discretion).
5.02 Failure Of Party To Testify
The [plaintiff] [defendant] in this case is [suing] [sued] as [administrator] [executor]
[guardian] for a [deceased person] [incompetent person]. Since the deceased cannot be here to
testify [since the incompetent person is incapable of testifying], the law does not permit the
[defendant] [plaintiff] [or any person directly interested in this action] to testify in his own behalf
[to any conversation with the] [deceased] [incompetent person] [or] [to any event which took
place in the presence of the] [deceased] [incompetent person]. The fact that the [defendant]
[plaintiff] did not testify to those matters should not be considered by you for or against him.
[In this case, however, the (plaintiff)(defendant) called (a witness)(the defendant)(the
plaintiff) to testify on his behalf (to conversations with the)(deceased)(incompetent person)(or)(to
an event which took place in the presence of the)(deceased)(incompetent person), and therefore
the (plaintiff)(defendant)(interested person) had the right to testify as to the same
(conversation)(event).]
[In this case, however, since the deposition of the (deceased)(incompetent person) was
admitted in evidence on behalf of the (plaintiff)(defendant), the (plaintiff)(defendant)(interested
person) had the right to testify as to the same matters admitted in evidence.]
[In this case, however, the law does not prevent the testimony concerning any fact relating
to the heirship of the decedent.]
Notes on Use
The “Dead Man's Act” is applicable and this instruction should be given only when: (1) the
witness is a party or an interested person; (2) the witness is called in his own behalf; and (3) an adverse
party is suing or defending in one of the enumerated representative capacities.
The instruction is intended to avoid confusion in the minds of the jury by reason of the fact that a
party in the case sat silent throughout the trial.
If there is a full waiver of the “Dead Man's Act,” no instruction on the subject is needed. If there
is a partial waiver, paragraph two will be needed. If a party, due to the invoking of the rule, was
incapable of testifying at all, there is no need to use the bracketed portion of the first paragraph.
This instruction is based on the evidence act, 735 ILCS 5/8-201 (1994), as amended effective
October 1, 1973. Prior to that amendment, a protected party waived the protection of the act by calling
the party or interested person but not by calling a non-party witness to the event. The amendment
broadened the waiver to include such witnesses, and the instruction has been modified accordingly.
This instruction combines former IPI 5.02, 5.03, 5.04, 5.05, and 5.06, some of which were
unnecessary and others rendered obsolete by the 1973 statutory amendments. Use only those paragraphs
Section 5, Page 4 of 4
or parts of paragraphs that are applicable to the facts of the case.
Comment
This instruction deals with the competency of a party as a witness and not with the admissibility
of testimony or the competency of witnesses who are not parties. Creighton v. Elgin, 387 Ill. 592, 604; 56
N.E.2d 825, 830, 162 A.L.R. 883 (1944).
The giving of an instruction explaining the statute was approved in Aldridge v. Morris, 337
Ill.App. 369, 374; 86 N.E.2d 143, 145-146 (2d Dist.1949).
The disability is procedural and is waived if not asserted. Karlos v. Pappas, 3 Ill.App.2d 281,
121 N.E.2d 611 (2d Dist.1954)(abstract). However, where the objection is made, counsel may not
comment on that fact. Crutchfield v. Meyer, 414 Ill. 210, 111 N.E.2d 142 (1953).
Section 10, Page 1 of 12
NEGLIGENCE--RISK--MISCONDUCT--PROXIMATE CAUSE
10.00
NEGLIGENCE AND ORDINARY CARE
INTRODUCTION
This introduction is divided into three parts. The first part applies to cases based on
causes of action accruing prior to November 25, 1986, the date P.A. 84-1431 became effective.
This legislation modified the doctrine of comparative negligence and changed other aspects of
negligence cases. The second part concerns the effect of P.A. 84-1431. The third part concerns
willful and wanton conduct.
1. Actions Accruing Prior to November 25, 1986
Until June 1981, common law claims for damages based upon a negligence theory
included the traditional elements, issues, and burden of proof. In Alvis v. Ribar, 85 Ill.2d 1, 421
N.E.2d 886, 52 Ill.Dec. 23 (1981), the Illinois Supreme Court made a major change in these
issues and burdens. The Court abolished contributory negligence as a bar to the plaintiff's right to
recover in negligence cases and substituted comparative negligence in its place. A reading of that
opinion is a necessary introduction to Illinois negligence instructions.
The Court adopted the “pure form” of comparative negligence as the law in Illinois. Any
contributory negligence chargeable to a plaintiff diminishes proportionately the amount awarded
as compensatory damages, but no longer entirely bars recovery. The plaintiff is entitled to
recover his total damages reduced by the percentage of negligence attributable to him.
The Court left many aspects of the law of negligence actions unresolved in Alvis. No
direction was given concerning the requirements for pleading and burden of proof on
comparative negligence issues. This vacuum was filled by the legislature in an amendment to §2613(d) of the Illinois Civil Practice Law (735 ILCS 5/2-613(d)). This amendment (H.B. 381),
which became law on September 15, 1985, places on the defendant the burden of pleading the
facts constituting the plaintiff's contributory negligence. The Court has ruled that defendant has
the burden of proof on this issue. Casey v. Baseden, 111 Ill.2d 341, 490 N.E.2d 4, 95 Ill.Dec. 531
(1986).
The Alvis opinion made no statement concerning its effect on joint and several liability,
the defense of assumption of risk, willful and wanton conduct, punitive damages, set off, and the
like, leaving “the resolution of other collateral issues to future cases.” 85 Ill.2d at 28, 421 N.E.2d
at 898, 52 Ill.Dec. at 34. The Alvis opinion was also silent concerning any extension of the
doctrine of comparative fault beyond common law negligence actions.
Section 10, Page 2 of 12
Since Alvis, the Illinois Supreme Court has found comparative fault applicable to strict
products liability cases (Coney v. J.L.G. Indus., Inc., 97 Ill.2d 104, 454 N.E.2d 197, 73 Ill.Dec.
337 (1983); Simpson v. General Motors Corp., 108 Ill.2d 146, 483 N.E.2d 1, 90 Ill.Dec. 854
(1985)), but inapplicable under the Structural Work Act. Simmons v. Union Elec. Co., 104 Ill.2d
444, 473 N.E.2d 946, 85 Ill.Dec. 347 (1984); Prewein v. Caterpillar Tractor Co., 108 Ill.2d 141,
483 N.E.2d 224, 90 Ill.Dec. 906 (1985).
In Coney, the Court held that the principles of comparative fault are applicable to strict
products liability cases on the issue of diminution of the plaintiff's damages. The Court said:
Once defendant's liability is established, and where both the defective product and the
plaintiff's misconduct contribute to cause the damages, the comparative fault principle
will operate to reduce plaintiff's recovery by that amount which the trier of fact finds him
at fault.
97 Ill.2d at 119, 454 N.E.2d at 204, 73 Ill.Dec. at 344. However, the type of misconduct by the
plaintiff that will be compared in strict liability cases is narrower in scope than the traditional
concept of contributory negligence:
[T]he defenses of misuse and assumption of the risk will no longer bar recovery. Instead,
such misconduct will be compared in the apportionment of damages . . . . We believe
that a consumer's unobservant, inattentive, ignorant or awkward failure to discover or
guard against a defect should not be compared as a damage-reducing factor.
Id. Coney was reaffirmed in Simpson v. General Motors Corp., 108 Ill.2d 146, 483 N.E.2d 1, 90
Ill.Dec. 854 (1985).
Coney also reaffirmed the doctrine of joint and several liability. See also Doyle v.
Rhodes, 101 Ill.2d 1, 461 N.E.2d 382, 77 Ill.Dec. 759 (1984) (joint and several liability
applicable even where liability of one defendant is grounded upon special duties imposed by a
safety statute).
Duffy v. Midlothian Country Club, 135 Ill.App.3d 429, 481 N.E.2d 1037, 90 Ill.Dec. 237
(1st Dist.1985), held that assumption of the risk, where applicable, is a damage reducing factor in
a negligence case.
1. Actions Accruing On and After November 25, 1986
P.A. 84-1431 (and particularly 735 ILCS 5/2-1107.1 and 5/2-1116 through 2-1118),
effective as to all causes of action accruing on and after November 25, 1986, abolished pure
comparative fault. In its place, more than 50% contributory fault of the plaintiff requires a
finding that the defendant is not liable and bars the plaintiff from recovering damages.
Comparative fault of 50% or less results in a diminution of damages in proportion to the amount
of fault attributable to the plaintiff.
Section 10, Page 3 of 12
With respect to joint and several liability, 735 ILCS 5/2-1117 provides for several
liability for damages (other than “medical and medically related expenses”) for “any defendant
whose fault . . . is less than 25% of the total fault attributable to the plaintiff, the defendants sued
by the plaintiff, and any third party defendant who could have been sued by the plaintiff . . . .”
For any defendant whose fault is 25% or greater, joint and several liability for all damages
remains. This provision does not apply to certain pollution actions or medical malpractice
actions. 735 ILCS 5/2-1118.
To enable users to identify instructions applicable only to causes of action accruing on
and after November 25, 1986, these instructions are numbered beginning with the letter “B.”
2. Willful and Wanton Conduct
Burke v. 12 Rothschild's Liquor Mart, 148 Ill.2d 429, 593 N.E.2d 522, 170 Ill.Dec. 633
(1992), held that a plaintiff's negligence cannot be compared to a defendant's willful and wanton
conduct to reduce the amount of damages recoverable by the plaintiff. However, Ziarko v. Soo
Line R.R. Co., 161 Ill.2d 267, 641 N.E.2d 402, 204 Ill.Dec. 178 (1994), a contribution case,
stated that the Burke court's analysis was limited to cases where the defendant's wrongful
conduct was intentional.
Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171
(1995), was a personal injury case where the plaintiff was shot by an on-duty city police officer.
Plaintiff claimed, and the jury found, that the officer acted willfully and wantonly. Although the
jury found the plaintiff contributorily negligent, plaintiff argued that damages based on willful
and wanton conduct could not be reduced by mere contributory negligence. The trial court
agreed and entered judgment for the full amount of plaintiff's damages without reduction. The
appellate court affirmed, but the Supreme Court reversed and remanded for a new trial, holding
that because it was unclear whether the defendant's willful and wanton conduct was committed
“intentionally” or “recklessly,” the trial court erred in reinstating the verdict.
Poole adopted the Ziarko plurality's analysis, holding that a plaintiff's contributory
negligence will not be a damage-reducing factor if the defendant's willful and wanton conduct
was “intentional.” On the other hand, if a defendant's willful and wanton conduct was “reckless,”
plaintiff's contributory negligence will reduce his or her damages. Poole, 656 N.E.2d at 771-72,
212 Ill.Dec. at 174-75.
Section 10, Page 4 of 12
10.01 Negligence--Adult--Definition
When I use the word “negligence” in these instructions, I mean the failure to do
something which a reasonably careful person would do, or the doing of something which a
reasonably careful person would not, under circumstances similar to those shown by the
evidence. The law does not say how a reasonably careful person would act under those
circumstances. That is for you to decide.
Comment
Pierson v. Lyon & Healy, 243 Ill. 370, 377; 90 N.E. 693, 696 (1909); Wilcke v. Henrotin, 241 Ill.
169, 172; 89 N.E. 329, 330 (1909); Perryman v. Chicago City Ry. Co., 242 Ill. 269, 273; 89 N.E. 980, 982
(1909); Rikard v. Dover Elevator Co., 126 Ill.App.3d 438, 467 N.E.2d 386, 81 Ill.Dec. 686 (5th
Dist.1984).
Section 10, Page 5 of 12
10.02 Ordinary Care--Adult--Definition
When I use the words “ordinary care,” I mean the care a reasonably careful person would
use under circumstances similar to those shown by the evidence. The law does not say how a
reasonably careful person would act under those circumstances. That is for you to decide.
Notes on Use
If the plaintiff or defendant is under the age of 18, see IPI 10.05.
Comment
Pierson v. Lyon & Healy, 243 Ill. 370, 377; 90 N.E. 693, 696 (1909); Wilcke v. Henrotin, 241 Ill.
169, 172; 89 N.E. 329, 330 (1909); Perryman v. Chicago City Ry. Co., 242 Ill. 269, 273; 89 N.E. 980, 982
(1909); Larson v. Ward Corby Co., 198 Ill.App. 109, 111, 113 (1st Dist.1916); Fugate v. Sears, Roebuck
& Co., 12 Ill.App.3d 656, 299 N.E.2d 108 (1st Dist.1973).
Section 10, Page 6 of 12
B10.03 Duty To Use Ordinary Care--Adult--Plaintiff—
Definitions of Contributory and
Comparative Negligence--Negligence
[Under Count ____ (for negligence),] [I][i]t was the duty of the plaintiff, before and at
the time of the occurrence, to use ordinary care for [his own safety] [and] [the safety of his
property]. A plaintiff is contributorily negligent if (1) he fails to use ordinary care [for his own
safety] [or] [for the safety of his property] and (2) his failure to use such ordinary care is a
proximate cause of the [alleged] [injury] [death] [property damage].
The plaintiff's contributory negligence, if any, which is 50% or less of the total proximate
cause of the injury or damage for which recovery is sought, does not bar his recovery. However,
the total amount of damages to which he would otherwise be entitled is reduced in proportion to
the amount of his negligence. This is known as comparative negligence.
If the plaintiff's contributory negligence is more than 50% of the total proximate cause of
the injury or damage for which recovery is sought, the defendant[s] shall be found not liable.
[The term “plaintiff” includes a counterplaintiff.]
Notes on Use
This instruction incorporates IPI 11.01, and 11.01 should not be given if this instruction is given.
This instruction is appropriate for negligence cases only.
Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171 (1995), held
that a plaintiff's contributory negligence is a damage-reducing factor if the defendant's willful and wanton
conduct was “reckless,” but not if it was “intentional.” Therefore, if plaintiff's only claim is that
defendant's conduct was the intentional form of willful and wanton conduct, this instruction should not be
used. If plaintiff claims both intentional and reckless willful and wanton conduct, this instruction should
be modified.
The last bracketed sentence should be used only if there is a counterclaim against the plaintiff or
other defendants.
If there was either property damage or personal injury, but not both, omit the inapplicable
bracketed material.
The instruction should be used in conjunction with IPI 10.02 defining “ordinary care” if the
plaintiff is over the age of 18 or is a minor operating a motor vehicle or engaged in any other activity in
which the minor is held to an adult standard of care. See Comment to IPI 10.05. If the plaintiff is a minor
and is not subject to the adult standard of care, use IPI 10.05.
This instruction explains the relationship between the concepts of “ordinary care” and
“contributory negligence” inasmuch as the latter term is frequently used by counsel in argument to the
jury.
Section 10, Page 7 of 12
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
Section 10, Page 8 of 12
10.04 Duty To Use Ordinary Care--Adult--Defendant
It was the duty of the defendant, before and at the time of the occurrence, to use ordinary
care for the safety of [the plaintiff] [and] [the plaintiff's property]. That means it was the duty of
the defendant to be free from negligence.
Notes on Use
The instruction should be used in conjunction with IPI 10.02 defining “ordinary care,” if the
defendant is over the age of 18 or is a minor engaged in certain activities. If the defendant is a minor (and
is not engaged in one of those activities), use IPI 10.05 and 10.01 defining “negligence.” As to the
activities in which an adult standard will be applied, see Comment to IPI 10.05.
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
Comment
This instruction is modified to conform with IPI B10.03 which defines the plaintiff's duty.
Although “negligence” is defined in IPI 10.01, there is no other instruction which informs the jury that the
defendant has a duty to be free from negligence.
Section 10, Page 9 of 12
10.05 Ordinary Care--Minor--Definition
A minor is not held to the same standard of conduct as an adult. When I use the words
“ordinary care” with respect to the [plaintiff] [defendant] [decedent], I mean that degree of care
which a reasonably careful [person] [minor] [child] of the age, mental capacity and experience of
the [plaintiff] [defendant] [decedent] would use under circumstances similar to those shown by
the evidence. The law does not say how such a [person] [minor] [child] would act under those
circumstances. That is for you to decide.
[The rule I have just stated also applies when a (minor) (child) is charged with having
violated (a statute) (or) (an ordinance).]
Notes on Use
This instruction should not be used when a minor is charged with negligence in the operation of a
motor vehicle or any other activity in which the minor is held to an adult standard of care.
When a plaintiff is under the age of seven, use IPI 11.03.
If the minor's standard of care is applicable but the minor is charged with negligence in the
violation of a statute, the last bracketed paragraph (formerly IPI 10.06) should be included. IPI 60.01 may
also be given, but may need to be modified.
Comment
The degree of care to be exercised by a minor over the age of seven years is that which a
reasonably careful person of the same age, capacity, and experience would exercise under the same or
similar circumstances. Wolf v. Budzyn, 305 Ill.App. 603, 605; 27 N.E.2d 571, 572 (1st Dist.1940);
Hartnett v. Boston Store of Chicago, 265 Ill. 331, 335; 106 N.E. 837, 839 (1914). Instructions to this
effect have been upheld. Wolczek v. Public Serv. Co., 342 Ill. 482, 497; 174 N.E. 577, 583-584 (1930);
Peterson v. Chicago Consol. Traction Co., 231 Ill. 324, 327; 83 N.E. 159, 160 (1907); King v. Casad, 122
Ill.App.3d 566, 461 N.E.2d 685, 78 Ill.Dec. 101 (4th Dist.1984) (reversible error to refuse).
This instruction should not be given in a case where the plaintiff or defendant was a minor and
operating a motor vehicle. When so doing, a minor will usually be held to the same standard of care as an
adult. Betzold v. Erickson, 35 Ill.App.2d 203, 209; 182 N.E.2d 342, 345 (3d Dist.1962); Dawson v.
Hoffmann, 43 Ill.App.2d 17, 20; 192 N.E.2d 695, 696, 697 (2d Dist.1963); Ryan v. C & D Motor Delivery
Co., 38 Ill.App.2d 18, 186 N.E.2d 156 (3d Dist.1962) (abstract); Turner v. Seyfert, 44 Ill.App.2d 281,
289; 194 N.E.2d 529, 534 (3d Dist.1963); Fishel v. Givens, 47 Ill.App.3d 512, 517; 362 N.E.2d 97, 101; 5
Ill.Dec. 784, 788 (4th Dist.1977) (good review of the law).
This instruction has been held applicable to a minor driving a farm tractor, Mack v. Davis, 76
Ill.App.2d 88, 221 N.E.2d 121 (2d Dist.1966), and a minor riding a bicycle, Conway v. Tamborini, 68
Ill.App.2d 190, 215 N.E.2d 303 (3d Dist.1966). However, a minor operating a mini-bike, motorcycle,
powerboat, airplane, or the like is held to an adult standard of care (Baumgartner v. Ziessow, 169
Ill.App.3d 647, 523 N.E.2d 1010, 120 Ill.Dec. 99 (1st Dist.1988); Fishel v. Givens, 47 Ill.App.3d 512,
362 N.E.2d 97, 5 Ill.Dec. 784 (4th Dist.1977)), in which case this instruction would not be given. There
may be other activities in which a minor will be held to an adult standard. See Annotation, Modern
Trends As To Contributory Negligence of Children, 32 A.L.R.4th 56, §10 (1984); Prosser & Keeton, The
Law of Torts §32 at 181-182 (5th ed. 1984).
Section 10, Page 10 of 12
Violation of a penal statute may be considered by the jury even though the minor involved is
below the age of criminal responsibility. Kronenberger v. Husky, 38 Ill.2d 376, 231 N.E.2d 385 (1967);
Krause v. Henker, 5 Ill.App.3d 736, 741; 284 N.E.2d 300, 303 (1st Dist.1972).
Section 10, Page 11 of 12
10.08 Careful Habits As Proof of Ordinary Care
If you decide there is evidence tending to show that the [decedent] [plaintiff] [defendant]
was a person of careful habits, you may infer that he was in the exercise of ordinary care for his
own safety [and for the safety of others] at and before the time of the occurrence, unless the
inference is overcome by other evidence. In deciding the issue of the exercise of ordinary care by
the [decedent] [plaintiff] [defendant] you may consider this inference and any other evidence
upon the subject of the [decedent's] [plaintiff's] [defendant's] care.
Notes on Use
This instruction can be given in a negligence or willful and wanton action based on the Wrongful
Death Act when there are no witnesses to the occurrence, other than the defendant, covering the entire
period in which the decedent must be in the exercise of ordinary care.
With modifications this instruction will cover cases of incompetents, and of persons suffering
from retrograde amnesia as a result of which they have no recollection of the occurrence; or to cases in
which the only eyewitness is barred by the Dead Man's Act.
Comment
Prior habits of carefulness are ordinarily not admissible in negligence actions, the test being
whether the respective parties were in the exercise of ordinary care at the time of the occurrence. An
exception, however, to this general rule exists in a cause of action based on the Wrongful Death Act, 740
ILCS 180/1 (1994), where there are no eyewitnesses other than the defendant concerning the occurrence.
Under such circumstances, in this type of action where the administrator has the burden of proving due
care on the part of the decedent, that the deceased was in the exercise of due care may be inferred from
testimony indicating careful habits on the part of the deceased. Hughes v. Wabash R. Co., 342 Ill.App.
159, 95 N.E.2d 735 (3d Dist.1950). The fact that the deceased was sober, industrious and possessed of all
his faculties is admissible as tending to prove due care. Illinois Cent. R. Co. v. Nowicki, 148 Ill. 29, 35
N.E. 358 (1893).
The “eyewitness” rule, however, has been interpreted to mean that unless there are eyewitnesses
to the entire occurrence, due care may be shown by prior habits. In Hawbaker v. Danner, 226 F.2d 843,
847-849 (7th Cir.1955), there were two witnesses who observed decedent's car just before the collision.
The court nevertheless held that evidence of habits of due care was admissible because the witnesses did
not see the car during the entire occurrence. The court said:
“In both of these cases [Parthie v. Cummings, 323 Ill.App. 296, 55 N.E.2d 402 (1st Dist.1944)
(abstract); Noonan v. Maus, 197 Ill.App. 103 (4th Dist.1915) (abstract)], the Illinois Appellate
Court thoroughly recognized that the eyewitness rule should be given a practical construction to
permit proof of reasonable care during the whole transaction and particularly to the material
moments thereof depending upon the circumstances in each case.”
In McElroy v. Force, 38 Ill.2d 528, 232 N.E.2d 708 (1967), evidence of the plaintiff's careful
habits was properly admissible where the plaintiff was the only surviving eyewitness and his testimony
was barred by the Dead Man's Act.
See also Bradfield v. Illinois Cent. Gulf R. Co., 137 Ill.App.3d 19, 484 N.E.2d 365, 91 Ill.Dec.
806 (5th Dist.1985), aff'd on other grounds, 115 Ill.2d 471, 505 N.E.2d 331, 106 Ill.Dec. 25 (1987),
Section 10, Page 12 of 12
adopting Federal Rule of Evidence 406 and holding that in a wrongful death case evidence of decedent's
habits is admissible to show due care, regardless of whether eyewitness testimony was available;
Gasiorowski v. Homer, 47 Ill.App.3d 989, 365 N.E.2d 43, 7 Ill.Dec. 758 (1st Dist.1977) (where only
eyewitnesses are silenced by Dead Man's Act, amnesia, mental incompetency, or death, no eyewitnesses
will be deemed available).
Section 11, Page 1 of 9
11.00
CONTRIBUTORY NEGLIGENCE
11.01 Contributory Negligence--Adult--Definition
When I use the expression “contributory negligence,” I mean negligence on the part of
the plaintiff that proximately contributed to cause the [alleged] [injury] [death] [property
damage].
Notes on Use
This instruction should be used whenever “contributory negligence” is a jury issue and IPI
B10.03 is not given. If IPI B10.03 is given, this instruction should not be used, since it is incorporated
into IPI B10.03.
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
Comment
It is reversible error to omit the element of proximate cause in an instruction defining
contributory negligence. Schmidt v. Anderson, 301 Ill.App. 28, 42, 49-50; 21 N.E.2d 825, 831, 834-835
(1st Dist.1939); Wilkerson v. Cummings, 324 Ill.App. 331, 340; 58 N.E.2d 280, 283 (1st Dist.1944);
Alexander v. Sullivan, 334 Ill.App. 42, 78 N.E.2d 333 (3d Dist.1948); Buehler v. White, 337 Ill.App. 18,
24; 85 N.E.2d 203, 206 (3d Dist.1949); Barenbrugge v. Rich, 141 Ill.App.3d 1046, 490 N.E.2d 1368,
1373; 96 Ill.Dec. 163, 168 (1st Dist.1986).
This instruction was approved in Blacconeri v. Aguayo, 132 Ill.App.3d 984, 478 N.E.2d 546, 88
Ill.Dec. 231 (1st Dist.1985).
Section 11, Page 2 of 9
11.02 Contributory Negligence As To Fewer Than All Plaintiffs
The issue of contributory negligence does not apply to the plaintiff[s] [name(s) of such
plaintiff(s)].
Notes on Use
This instruction should be given when there is evidence raising an issue of fact as to the
contributory negligence of one or more but fewer than all of the plaintiffs.
Section 11, Page 3 of 9
11.03 Presumption That Child Under Seven Years is
Incapable of Contributory Negligence
You must not consider the question of whether there was contributory negligence [on the
part of [name]], because, under the law, a child of the age of [the plaintiff] [name]] is incapable
of contributory negligence.
Notes on Use
The name of the plaintiff may be used if desired.
This instruction may be used only when the plaintiff or decedent was a minor under the age of
seven at the time of the occurrence.
Comment
A child less than seven years old is deemed incapable of contributory negligence. Toney
v. Marzariegos, 166 Ill.App.3d 399, 519 N.E.2d 1035, 1038; 116 Ill.Dec. 820, 823 (1st
Dist.1988); Mort v. Walter, 98 Ill.2d 391, 457 N.E.2d 18, 75 Ill.Dec. 228 (1983).
Section 11, Page 4 of 9
11.04 Parent's Negligence Not an Issue
Contributory negligence of the parent(s) is not an issue in this case.
Notes on Use
This instruction may be given where the parent is not a party in interest other than as next friend
or guardian, but there is evidence from which the jury might conclude that the parents of the child were
guilty of negligence which contributed to the child's injury. It should not be given, e.g., if there is a
contribution claim against the parent(s), or the trial court determines that the conduct of the parent(s) is
properly an issue in the case.
This instruction may not be appropriate in a wrongful death action because negligence of the
parents will bar their recovery. This brief instruction is designed to state the rule without calling undue
attention to the parents' negligence. For a stronger statement of the rule, which may be more useful in
cases where the negligence of the parents is so obvious that the jury may already be considering its
significance, see IPI 11.05. These two instructions are alternatives, and it is not necessary to give both of
them.
Section 11, Page 5 of 9
11.05 Negligence of Parents Not Imputed
If you find that the [mother] [father] [parents] of [child's name] [was] [were] negligent,
that negligence shall not be charged against [child's name], and it does not prevent or reduce a
recovery by [child's name] if he is otherwise entitled to recover.
Notes on Use
The instruction may be given where the parent is not a party in interest, other than as next friend
or guardian, and there is evidence from which the jury might conclude that the parents of the child were
guilty of negligence which contributed to the child's injury. Brownell v. Village of Antioch, 215 Ill.App.
404, 411 (2d Dist.1919); Duffy v. Cortesi, 2 Ill.2d 511, 516-517; 119 N.E.2d 241, 244-245 (1954); Sheley
v. Guy, 29 Ill.App.3d 361, 366; 330 N.E.2d 567, 571 (4th Dist.1975), aff'd, 63 Ill.2d 544, 348 N.E.2d 835
(1976).
Where the parents are both real parties in interest and nominal plaintiffs suing on behalf of a
minor, use IPI B11.06.
This instruction is an alternative to IPI 11.04. For an explanation of the difference, see Notes on
Use to IPI 11.04.
Section 11, Page 6 of 9
B11.06 Contributory Negligence Claimed--Parents, Child Seven or Over, Parent's Cause
of Action Not Assigned To Child
This lawsuit involves two distinct but related claims. The first is brought by the child who
seeks damages for his injuries. The second claim is brought by his [father] [mother] who seeks
compensation for money spent or amounts for which [he] [she] has become liable for reasonably
necessary [expenses] [and for loss of earnings of the child during his minority].
Child's Claim
If you should find that the child was contributorily negligent and if the contributory
negligence of the child was 50% or less of the total proximate cause of the child's injury, then the
damages to which the child would otherwise be entitled must be reduced in proportion to the
amount of negligence attributable to the child. If the contributory negligence of the child was
more than 50% of the total proximate cause of the injury or damage for which recovery is
sought, then the defendant shall be found not liable on both claims. [The (father's) (mother's)
negligence, if any, does not affect the amount, if any, to which the child is entitled on his own
claim.]
Parent's Claim
As to the [father's] [mother's] claim, the [father's] [mother's] damages must [first] [also]
be reduced by the percentage of contributory negligence of the child, if any. [If you find that the
(father) (mother) was negligent and that the (father's) (mother's) negligence was 50% or less of
the total proximate cause of the injury or damage for which recovery is sought, then the (father's)
(mother's) negligence proportionately further reduces the damages to which the (father) (mother)
would have been entitled. If you find that the (father) (mother) was negligent and that the
(father's) (mother's) negligence was more than 50% of the total proximate cause of the injury or
damage for which recovery is sought, then the defendant shall be found not liable on the
(father's) (mother's) claim.]
Notes on Use
This instruction is appropriate for negligence cases only.
Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171 (1995), held
that a plaintiff's contributory negligence is a damage-reducing factor if the defendant's willful and wanton
conduct was “reckless,” but not if it was “intentional.” Therefore, if plaintiff's only claim is that
defendant's conduct was the intentional form of willful and wanton conduct, this instruction should not be
used. If plaintiff claims both intentional and reckless willful and wanton conduct, this instruction should
be modified.
If the parent's claim has been assigned to the child, use IPI B11.06.01.
This instruction should be used only where the child and his parents are suing in the same lawsuit
for their respective damages arising from the same occurrence. Meece v. Holland Furnace Co., 269
Ill.App. 164, 178 (3d Dist.1933).
Section 11, Page 7 of 9
If the child is under the age of seven, this instruction must be modified. A child less than seven
years old is deemed incapable of contributory negligence. Toney v. Marzariegos, 166 Ill.App.3d 399, 404;
519 N.E.2d 1035, 1038; 116 Ill.Dec. 820, 823 (1st Dist.1988); Mort v. Walter, 98 Ill.2d 391, 457 N.E.2d
18, 75 Ill.Dec. 228 (1983). See IPI 11.03.
If there are other legally recognized elements of damages claimed by the parents, and if those
damages are reducible by the parent's contributory negligence, then those elements should be added at the
end of the first paragraph of this instruction.
If there is no issue as to the parents' contributory negligence, either (1) omit the bracketed portion
of the last paragraph or (2) omit this entire instruction. Separate verdict forms for the child's claim and the
parent's claim, each showing the damages reduced by the child's contributory negligence, if any, may be
sufficient to apprise the jury that the child's contributory negligence reduces both claims and thereby
obviate the need for this instruction. The choice between these options is discretionary in each case.
Comment
When a minor is tortiously injured, his parent can recover his medical and hospital expenses,
since the parent is liable for those expenses under the Family Expense Act (750 ILCS 65/15). Reimers v.
Honda Motor Co., 150 Ill.App.3d 840, 502 N.E.2d 428, 429-430; 104 Ill.Dec. 165, 166-167 (1st
Dist.1986); Curtis v. County of Cook, 109 Ill.App.3d 400, 440 N.E.2d 942, 947; 65 Ill.Dec. 87, 92 (1st
Dist.1982). Similarly, a parent is entitled to the earnings of his minor child (Ferreira v. Diller, 176
Ill.App. 447 (3d Dist.1912); Barrett v. Riley, 42 Ill.App. 258 (2d Dist.1891)), and therefore can recover
the child's lost earnings during the child's minority (Stafford v. Rubens, 115 Ill. 196, 3 N.E. 568 (1885)).
Since the parent's action is derivative, it is subject to any defenses available against the child.
Reimers v. Honda Motor Co., 150 Ill.App.3d 840, 502 N.E.2d 428, 430; 104 Ill.Dec. 165, 167 (1st
Dist.1986); Jones v. Schmidt, 349 Ill.App. 336, 110 N.E.2d 688 (4th Dist.1953).
The parent's negligence is not imputed to the child (Rahn v. Beurskens, 66 Ill.App.2d 423, 213
N.E.2d 301 (4th Dist.1966); Romine v. City of Watseka, 341 Ill.App. 370, 91 N.E.2d 76, 80 (2d
Dist.1950)), but it is a defense with respect to the parent's claim (Payne v. Kingsley, 59 Ill.App.2d 245,
207 N.E.2d 177, 180 (2d Dist.1965); City of Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484 (1895)). This is
true even if the parent's claim has been assigned to the child. Reimers v. Honda Motor Co., 150 Ill.App.3d
840, 502 N.E.2d 428, 430; 104 Ill.Dec. 165, 167 (1st Dist.1986); Kennedy v. Kiss, 89 Ill.App.3d 890, 412
N.E.2d 624, 628; 45 Ill.Dec. 273, 277 (1st Dist.1980); Rahn v. Beurskens, 66 Ill.App.2d 423, 213 N.E.2d
301 (4th Dist.1966).
The child's contributory negligence operates as a defense to the parent's claim. Kennedy v. Kiss,
273 Ill.App. 133 (2d Dist.1933).
As yet, there are no reported decisions in Illinois as to the effect of contributory negligence by
both the parent and child after the adoption of comparative fault. The method reflected in this instruction,
successive reductions, is consistent with the theory of the previous decisions and with the method adopted
in other jurisdictions. See, e.g., White v. Lunder, 66 Wis.2d 563, 225 N.W.2d 442, 449-450 (1975).
Section 11, Page 8 of 9
B11.06.01 Contributory Negligence Claimed--Parents, Child Seven or Over, Parent's
Cause of Action Assigned To Child
This lawsuit involves two distinct but related claims. The first is brought by the child who
seeks damages for his injuries. The second claim originally belonged to the child's [father]
[mother] but it has been assigned to the child for recovery by the child in this lawsuit. This
second claim, called the parent's claim, is also brought by the child and seeks compensation for
money spent or amounts for which the [father] [mother] has become liable for reasonably
necessary [expenses] [and for loss of earnings of the child during his minority].
Child's Claim
As to the child's claim for damages, if you should find that the child was contributorily
negligent and if the contributory negligence of the child was 50% or less of the total proximate
cause of the injury or damage for which recovery is sought, then the damages to which the child
would otherwise be entitled must be reduced in proportion to the amount of negligence
attributable to the child. If you should find that the contributory negligence of the child was more
than 50% of the total proximate cause of the injury or damage for which recovery is sought, then
the defendant shall be found not liable on both claims. [The (father's) (mother's) negligence, if
any, does not affect the amount, if any, to which the child is entitled on his own claim.]
Parent's Claim
As to the parent's claim brought by the child in this case, those damages must first be
reduced by the percentage of contributory negligence of the child, if any. If you find that the
(father) (mother) was negligent and that the (father's) (mother's) negligence was 50% or less of
the total proximate cause of the injury or damage for which recovery is sought, then the (father's)
(mother's) negligence proportionately further reduces the damages, if any, to which the parent
would have been entitled, and thus the parent's claim must be reduced accordingly. If you find
that the (father) (mother) was negligent and that the (father's) (mother's) negligence was more
than 50% of the total proximate cause of the injury or damage for which recovery is sought, then
the defendant shall be found not liable on the (father's) (mother's) claim.
Notes on Use
This instruction is appropriate for negligence cases only.
Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171 (1995), held
that a plaintiff's contributory negligence is a damage-reducing factor if the defendant's willful and wanton
conduct was “reckless,” but not if it was “intentional.” Therefore, if plaintiff's only claim is that
defendant's conduct was the intentional form of willful and wanton conduct, this instruction should not be
used. If plaintiff claims both intentional and reckless willful and wanton conduct, this instruction should
be modified.
If there is no issue as to the parents' contributory negligence, this instruction is unnecessary and
may be omitted.
Section 11, Page 9 of 9
This instruction should be used only where the parent has assigned to his child the right to
recover those elements of damages which were, in the first instance, recoverable by the parents. If such an
assignment has not been made, and if a parent is bringing such a claim in the same lawsuit, then use IPI
B11.06.
If the child is under the age of seven, this instruction must be modified. A child less than seven
years old is deemed incapable of contributory negligence. Toney v. Marzariegos, 166 Ill.App.3d 399, 404;
519 N.E.2d 1035, 1038; 116 Ill.Dec. 820, 823 (1st Dist.1988); Mort v. Walter, 98 Ill.2d 391, 457 N.E.2d
18, 75 Ill.Dec. 228 (1983). See IPI 11.03.
If there are other legally recognized elements of damages claimed by the parents, and if those
damages are reducible by the parent's contributory negligence, then those elements should be added at the
end of the first paragraph of this instruction.
Comment
See Comment to IPI B11.06.
This instruction was drafted to accommodate the common practice of the parents assigning their
right to recover these elements to their child. In the case of such an assignment, the defenses originally
available against a parent remain as issues in the case. The contributory negligence of both the child and
the parents must be considered by the jury. In order to increase the logical clarity of the instruction in that
regard, the term “parent's claim” has been adopted to describe those assigned elements of damages. The
jury will already have been informed of the origin of the claim, and the description of the necessary
operation of the potential negligence of both the child and the parents is rendered less prolix by the use of
this term.
Section 12, Page 1 of 4
12.00
SPECIFIC FACTORS AFFECTING NEGLIGENCE AND
CONTRIBUTORY NEGLIGENCE
12.01 Intoxication
Intoxication is no excuse for failure to act as a reasonably careful person would act. An
intoxicated person is held to the same standard of care as a sober person. If you find that [insert
allegedly intoxicated person] was intoxicated at the time of the occurrence, you may consider
that fact, together with other facts and circumstances in evidence, in determining whether [insert
allegedly intoxicated person] conduct was [negligent] [willful and wanton] [or] [contributorily
negligent].
Instruction, Notes on Use and Comment revised May 2009.
Notes on Use
If there is evidence of intoxication on the part of multiple persons, separate instructions should be
submitted for each person to avoid confusion. The use of the instruction is not limited to cases in which
the intoxicated party was operating a motor vehicle. Lee v. Chicago Transit Authority, 152 Ill.2d 432,
454, 605 N.E.2d 493, 502, 178 Ill.Dec. 699, 708 (1992) (intoxicated pedestrian electrocuted by electrified
railway track); Marshall v. Osborn, 213 Ill.App.3d 134, 140, 571 N.E.2d 492, 497, 156 Ill.Dec. 708, 713
(3rd Dist. 1991) (intoxicated pedestrian struck by vehicle).
Comment
Intoxication neither bars recovery nor relieves the intoxicated party of the duty to exercise the
same degree of care as a sober person. Lee v. Chicago Transit Authority, 152 Ill.2d 432, 454, 605 N.E.2d
493, 502, 178 Ill.Dec. 699, 708 (1992) (plaintiff's intoxication relevant to his contributory negligence);
Wilcke v. Henrotin, 241 Ill. 169, 173, 89 N.E. 329, 330 (1909); Petraski v. Thedos, 382 Ill.App.3d 22, 28,
887 N.E.2d 24, 31, 320 Ill.Dec.244, 251 (1st Dist. 2008) (plaintiff's intoxication relevant to her
contributory negligence); Biel v City of Bridgeview, 335 Ill.App. 3d 526, 534-35, 781 N.E.2d 555, 562,
269 Ill.Dec. 758, 765 (1st Dist. 2002) (plaintiff's intoxication was irrelevant to defendant's duty);
Countryman v. Winnebago County, 135 Ill.App. 384, 393, 481 N.E.2d 1255, 1262, 90 Ill.Dec. 344, 351
(2d Dist. 1985); Brown v. Decatur Memorial Hosp., 74 Ill.App.3d 436, 443, 393 N.E.2d 84, 89, 30
Ill.Dec. 429, 434 (4th Dist. 1979), aff'd, 83 Ill.2d 344, 415 N.E.2d 337, 47 Ill.Dec. 332 (1980).
A party's intoxication is not, in and of itself, proof of fault. Evidence of a party's intoxication is
relevant to the extent that it affects his exercise of due care and is therefore admissible as a circumstance
to be weighed by the trier of fact in its determination of the issue of due care. See Lee v. Chicago Transit
Authority, 152 Ill.2d 432, 454, 605 N.E.2d 493, 502, 178 Ill.Dec. 699, 708 (1992) (plaintiff's contributory
negligence); Petraski v. Thedos, 382 Ill.App.3d 22, 28, 887 N.E.2d 24, 31, 320 Ill.Dec. 244, 251 (1st Dist.
2008); Marshall v. Osborn, 213 Ill.App.3d 134, 140, 571 N.E.2d 492, 496-97, 156 Ill.Dec. 708, 712-13
(3rd Dist. 1991).
Evidence of alcohol consumption is inadmissible unless accompanied by proof of a resulting
diminution in the ability to think and act with ordinary care. Bielaga v. Mozdzeniak, 328 Ill.App.3d 291,
296, 765 N.E.2d 1131, 1135-36, 262 Ill.Dec. 523, 527-28 (1st Dist. 2002); Sandburg-Schiller v. Rosello,
Section 12, Page 2 of 4
119 Ill.App.3d 318, 331, 456 N.E.2d 192, 202, 74 Ill.Dec. 690, 700 (1st Dist. 1983); Clay v. McCarthy,
73 Ill.App.3d 462, 466, 392 N.E.2d 693, 696, 30 Ill.Dec. 38, 41 (3rd Dist. 1979). The degree of
impairment required to be deemed intoxicated is that which affects intellect and self-control. See Osborn
v. Leuffgen 381 Ill. 295, 298-99, 45 N.E.2d 622, 624 (1942); People v. Schneider, 362 Ill. 478, 484-85,
200 N.E. 321, 323-24 (1936); Wade v. City of Chicago Heights, 295 Ill.App.3d 873, 885-86, 693 N.E.2d
426, 434, 230 Ill.Dec. 297, 305 (1st Dist. 1998).
Section 12, Page 3 of 4
12.04 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 third 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.]
Notes on Use
This instruction should be used only where negligence of a person who is not a party to the suit
may have concurred or contributed to cause the occurrence. This instruction may not be used where the
third person was acting as the agent of the defendant or the plaintiff. Where two or more defendants are
sued and one or more may be liable and others not liable, use IPI 41.03.
The second paragraph should be used only where there is evidence tending to show that the sole
proximate cause of the occurrence was the conduct of a third person.
See also IPI 12.05 (outside agency); IPI 60.01 (statutory violation).
Comment
“Where a person is guilty of the negligence charged against him, it is no defense that some other
person, or thing, contributed to bring about the results for which the damages are claimed.” Romine v.
City of Watseka, 341 Ill.App. 370, 377; 91 N.E.2d 76, 79 (2d Dist.1950); Manion v. Chicago, R.I. & P.
Ry. Co., 12 Ill.App.2d 1, 18; 138 N.E.2d 98, 106-107 (2d Dist.1956); Liby v. Town Club, 5 Ill.App.2d
559, 565; 126 N.E.2d 153, 156 (1st Dist.1955). This form of instruction was approved in Dickeson v.
Baltimore & O.C.T.R.R. Co., 73 Ill.App.2d 5, 34; 220 N.E.2d 43, 56 (1st Dist.1965), aff'd, 42 Ill.2d 103,
245 N.E.2d 762 (1969); Ballweg v. City of Springfield, 114 Ill.2d 107, 120; 499 N.E.2d 1373, 1379; 102
Ill.Dec. 360, 366 (1986); Berry v. American Commercial Barge Lines, 114 Ill.App.3d 354, 373; 450
N.E.2d 436, 449; 71 Ill.Dec. 1, 14 (5th Dist.1983), cert. denied, 465 U.S. 1029, 104 S.Ct. 1290, 79
L.Ed.2d 692 (1984).
In Frank Parmelee Co. v. Wheelock, 224 Ill. 194, 79 N.E. 652 (1906), and West Chicago St. R.
Co. v. Horne, 100 Ill.App. 259 (1st Dist.1902), aff'd, 197 Ill. 250, 64 N.E. 331 (1902), the courts
approved use of the word “blame.”
Section 12, Page 4 of 4
12.05 Negligence--Intervention of Outside Agency
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 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.]
Notes on Use
The second paragraph should be used only where there is evidence tending to show that the sole
proximate cause of the occurrence was something other than the conduct of the defendant.
See also IPI 12.04 (negligence of third person); IPI 60.01 (statutory violation).
Comment
See Comment to IPI 12.04.
Section 13, Page 1 of 9
13.00
ASSUMPTION OF RISK
INTRODUCTION
Assumption of risk is one of the traditional defenses in a tort action based on negligence
or willful and wanton misconduct. See W. Prosser & W. Keeton, The Law of Torts §68 (5th ed.
1984). In Illinois, it is also a damage-reducing factor in actions based on strict tort liability for
defective products. In this state, these two branches of the doctrine are separate and distinct.
Assumption of risk in strict product liability cases is governed by its own set of rules and the
applicable instructions may be found in the product liability series (IPI 400.00); see IPI B400.03.
Classification: Express and Implied
There are two main categories of assumption of risk: express and implied.
Express Assumption of Risk
Under express assumption of risk, plaintiff and defendant explicitly agree, in advance,
that defendant owes no legal duty to plaintiff and therefore, that plaintiff cannot recover
for injuries caused either by risks inherent in the situation or by dangers created by
defendant's negligence.
Duffy v. Midlothian Country Club, 135 Ill.App.3d 429, 433; 481 N.E.2d 1037, 1041; 90 Ill.Dec.
237, 241 (1st Dist.1985) (hereafter cited as “Duffy II”). This form of the defense is closely
related to consent in the area of intentional torts, which is based on the theory that the plaintiff
has agreed in advance to be exposed to the defendant's culpable conduct and to hold the
defendant harmless for any injury that might result from that conduct. It is commonly found in
written releases, waivers, or exculpatory clauses in lease agreements and other contracts between
the parties. See, e.g., Harris v. Walker, 119 Ill.2d 542, 519 N.E.2d 917, 116 Ill.Dec. 702 (1988)
(horseback rider).
Issues involving express assumption of the risk will usually be decided by the court as a
matter of law. In those cases in which jury issues are presented--e.g., whether the release was
procured by fraud or involuntarily, or under a mutual mistake of fact--the instructions to the jury
will involve narrow fact issues and must be specifically tailored to the particular case. Therefore,
this chapter does not include any instructions concerning express assumption of the risk.
Implied Assumption of Risk
Implied assumption of the risk is that which is unspoken but inferred from the plaintiff's
conduct. It may also be subdivided into two categories: primary and secondary.
Primary assumption of risk is where “the risk of harm is not created by the defendant but
is inherent in the activity which the plaintiff has agreed to undertake. The plaintiff is regarded as
Section 13, Page 2 of 9
tacitly or impliedly agreeing to take his own chances such as where he accepts employment
knowing that he is expected to work with a dangerous horse.” Clark v. Rogers, 137 Ill.App.3d
591, 594; 484 N.E.2d 867, 869; 92 Ill.Dec. 136, 138 (4th Dist.1985). Accord: Duffy II, 135
Ill.App.3d at 433, 481 N.E.2d at 1041, 90 Ill.Dec. at 241. At one time the courts referred to these
as the “ordinary risks” of the employment. Burnett v. Caho, 7 Ill.App.3d 266, 275; 285 N.E.2d
619, 626 (3d Dist.1972).
In this sense, primary assumption of risk is not really a defense to the defendant's
negligence. Instead, it acts to negate liability on the ground that the defendant has no legal duty
to protect the plaintiff from certain hazards. Therefore, like express assumption of risk, this form
of the doctrine acts as a complete bar to recovery by the plaintiff. In Illinois, primary assumption
of risk is recognized only in situations in which (1) the plaintiff is the defendant's employee or
(2) there is some other contractual relationship between the parties under which the plaintiff's
duties involve exposure to an inherent hazard. Barrett v. Fritz, 42 Ill.2d 529, 533-534, 248
N.E.2d 111, 115 (1969); O'Rourke v. Sproul, 241 Ill. 576, 89 N.E. 663 (1909); Conrad v.
Springfield Consol. Ry. Co., 240 Ill. 12, 88 N.E. 180 (1909); B. Shoninger Co. v. Mann, 219 Ill.
242, 76 N.E. 354 (1905); Hensley v. Hensley, 62 Ill.App.2d 252, 210 N.E.2d 568 (5th Dist.1965).
It applies only to “ordinary” risks not created by the defendant's negligence. See Burnett v. Caho,
7 Ill.App.3d 266, 275; 285 N.E.2d 619, 626 (3d Dist.1972). (For convenience, we will refer to
the defendant in these cases as the “employer.” This term is usually applicable in the contractual
relationship cases, as well as in the employer-employee cases, because the plaintiff has been
hired as an independent contractor to perform certain work for the defendant.)
Secondary assumption of risk refers to the situation where the plaintiff is aware of and
appreciates a danger that has been created by the defendant's negligence or other fault, but the
plaintiff nevertheless voluntarily proceeds to encounter it. Duffy II, supra. Functionally, it is
similar to contributory negligence; it is fault-based. Id.; see Kionka, Implied Assumption of Risk:
Does It Survive Comparative Fault?, 1982 S.I.U.L.J. 371.
Prior to the adoption of comparative negligence in Illinois, risks created by the
employer's negligence were referred to as “extraordinary risks.” Burnett v. Caho, 7 Ill.App.3d
266, 275; 285 N.E.2d 619, 626 (3d Dist.1972). There was some confusion in the case law as to
whether an employee or contracting party could assume such risks and therefore whether this
defense was available as to those risks. Compare Stone v. Guthrie, 14 Ill.App.2d 137, 148-150;
144 N.E.2d 165, 170 (3d Dist.1957), and Burnett v. Caho, 7 Ill.App.3d 266, 275; 285 N.E.2d
619, 626 (3d Dist.1972), with Mack v. Davis, 76 Ill.App.2d 88, 98; 221 N.E.2d 121, 126 (2d
Dist.1966). As a practical matter, however, it made little difference, since the same conduct by
the plaintiff was also contributory negligence, which (like assumption of risk) was also a
complete bar to plaintiff's recovery.
After the adoption of comparative negligence in Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d
886, 52 Ill.Dec. 23 (1981), it became important to distinguish clearly between primary and
secondary assumption of risk (or “ordinary” and “extraordinary” risks). Duffy II, supra. The
distinction is that primary assumption of risk--which excuses an employer from any duty to the
plaintiff with respect to certain risks--appears to remain a complete defense. Id. Secondary
assumption of risk, however, is merely another form of plaintiff's negligence. With the adoption
Section 13, Page 3 of 9
of comparative negligence, to the extent that secondary assumption of risk has any vitality, it
becomes merely another form of comparative (damage-reducing) fault. Id. Therefore, no separate
instructions are necessary if the defense asserted is that the plaintiff voluntarily encountered
defendant's negligently-created risk. The IPI instructions on contributory negligence, issues,
burden of proof, damages, and forms of verdict can either be adapted or used as is, depending on
whether the trial court rules that the term “assumption of risk” should be used or not. The
instructions in this chapter should not be used in such cases. The instructions in this chapter are
applicable only if there is a claim that the plaintiff assumed an inherent risk, not created by the
defendant's fault, in an employment or contractual undertaking.
Primary Assumption of Risk
Primary assumption of the risk is an affirmative defense. Perschall v. Raney, 137
Ill.App.3d 978, 985; 484 N.E.2d 1286, 1290; 92 Ill.Dec. 431, 435 (4th Dist.1985). The defendant
has the burden of proof on each of four elements: (1) that the danger was not created by the
defendant's negligence, but is normally incident to, or inherent in, the employment or contractual
activity; (2) that the plaintiff voluntarily encountered the danger; (3) that the plaintiff was fully
aware of, understood, and appreciated the danger; and (4) that the danger was the cause of the
plaintiff's injury. Stone v. Guthrie, 14 Ill.App.2d 137, 148-150; 144 N.E.2d 165, 170 (3d
Dist.1957); Chaplin v. Geiser, 79 Ill.App.3d 435, 398 N.E.2d 628, 631; 34 Ill.Dec. 805, 808 (2d
Dist.1979).
Inherent Danger. The law does not recognize the master's negligence as being an
ordinary and usual risk incident to the employment. Stone v. Guthrie, 14 Ill.App.2d 137, 148;
144 N.E.2d 165, 170 (3d Dist.1957). Nor does an employee assume the risk of injury arising
from the incompetence of a fellow servant. Burnett v. Caho, 7 Ill.App.3d 266, 275; 285 N.E.2d
619, 626 (3d Dist.1972).
Voluntary Exposure. The doctrine is available only against a plaintiff who “voluntarily
exposes himself to a ‘specific, known risk.’ Thus the doctrine ... is ‘not a preclusion of recovery
against a plaintiff whose occupation inherently involves general risks of injury.’ ” Chaplin v.
Geiser, 79 Ill.App.3d 435, 398 N.E.2d 628, 631; 34 Ill.Dec. 805, 808 (2d Dist.1979), citing
Court v. Grzelinski, 72 Ill.2d 141, 379 N.E.2d 281, 19 Ill.Dec. 617 (1978). Thus, the risks of
falling after stepping on a dog's toy left lying on the floor was not a specific, known risk of a
housekeeper's job. Chaplin v. Geiser, supra. But the doctrine was applied to a housekeeper who
fell down a flight of stairs after tripping on a rug on the landing. In that case, the court said that
the plaintiff knew of the danger from the rug and the risk involved in the use of the landing and
stairs were normally incident to her employment. Coselman v. Schleifer, 97 Ill.App.2d 123, 239
N.E.2d 687 (2d Dist.1968).
Ordinarily, an employee who enters into an employment situation with knowledge of an
inherent danger is presumed to have encountered that hazard voluntarily. Chicago & E.I.R. Co. v.
Heerey, 203 Ill. 492, 495; 68 N.E. 74, 75 (1903). Mere economic duress does not vitiate the
voluntariness. However, the voluntary character of the plaintiff's actions may be negated by a
showing that the plaintiff “was induced by his employer to believe that a change would be
made.” Camp Point Mfg. Co. v. Ballou, 71 Ill. 417, 420 (1874).
Section 13, Page 4 of 9
Subjective Knowledge and Appreciation of Danger. The plaintiff must not only have
actual knowledge of the danger, he must also appreciate the danger and the risks connected with
it. Fox v. Beall, 314 Ill.App. 144, 147; 41 N.E.2d 126, 128 (2d Dist.1942). The test is a
subjective one; not what plaintiff should have known, but what he in fact did know and
appreciate. Russo v. The Range, Inc., 76 Ill.App.3d 236, 238-239; 395 N.E.2d 10, 13-14; 32
Ill.Dec. 63, 66-67 (1st Dist.1979); Maytnier v. Rush, 80 Ill.App.2d 336, 349; 225 N.E.2d 83, 90
(1st Dist.1967). However, a plaintiff cannot elude application of the doctrine with “protestations
of ignorance in the face of obvious danger.” Russo v. The Range, Inc., 76 Ill.App.3d 236, 238239; 395 N.E.2d 10, 13-14; 32 Ill.Dec. 63, 66-67 (1st Dist.1979). “A person of sufficient age and
experience is chargeable with knowledge of the ordinary risks and hazards of his employment,
and will be presumed to have notice of and to have assumed such risks which, to a person of his
age and experience, are, or ought to be, obvious.” Mack v. Davis, 76 Ill.App.2d 88, 98; 221
N.E.2d 121, 126 (2d Dist.1966). Ordinarily, this is a fact issue for the jury unless the facts are so
clear that reasonable persons could not differ as to whether the plaintiff appreciated the danger.
Fox v. Beall, 314 Ill.App. 144, 147;, 41 N.E.2d 126, 128 (2d Dist.1942); Hinrichs v. Gummow,
41 Ill.App.2d 428, 434-435; 190 N.E.2d 610, 612-613 (2d Dist.1963).
Causation. The defense is only applicable if the plaintiff's injury was caused by the
danger the risk of which the plaintiff is claimed to have assumed. Therefore, it is important that
the danger be clearly identified, since there may be other risks as to which the defense would not
apply.
Violation of Statute. Assumption of risk cannot be used as a defense to a limited group of
statutes that are intended to protect a certain class of persons from dangers against which they are
deemed less able to protect themselves. In such cases, it is the policy of the law to impose upon
the defendant a nondelegable duty to comply with the statute.
It is often proper to instruct the jury that assumption of the risk is not a defense to such
claims, even though the defendant did not make assumption of the risk an issue in the case.
Gilmore v. Toledo, P. & W. R. Co., 64 Ill.App.2d 218, 212 N.E.2d 117, 120 (3d Dist.1965), aff'd,
36 Ill.2d 510, 224 N.E.2d 228 (1967) (F.E.L.A.); Vandaveer v. Norfolk & W. Ry. Co., 78
Ill.App.2d 186, 222 N.E.2d 897 (5th Dist.1966) (same). Such an instruction should be given
“when the issue of assumption of risk is expressly or implicitly before the jury, even though not
explicitly raised at trial . . . . The issue of assumption of the risk is before the jury whenever
there is any evidence from which it could be inferred that the employee had assumed the risk.”
Hamrock v. Consolidated Rail Corp., 151 Ill.App.3d 55, 501 N.E.2d 1274, 1279; 103 Ill.Dec.
736, 741 (1st Dist.1986).
For an example of such instructions, see IPI 160.09 (FELA).
Instructions on Primary Assumption of Risk
In order for primary assumption of the risk to become an issue, the defendant must assert
it as an affirmative defense. The risk must be an inherent danger associated with the employment
or activity which is the subject of the contract between the parties, and it cannot be a risk created
Section 13, Page 5 of 9
by the defendant's negligence. Thus, when the plaintiff claims negligence in that the defendant
(employer) negligently failed to protect him against an inherent risk, not created by the
defendant's negligence, the defendant may invoke the assumption of risk defense. If, after
presentation of the evidence, fact issues remain concerning this defense, then IPI 13.01 or 13.02
may be appropriate.
On the other hand, when the plaintiff alleges that the defendant (whether an employer or not) is
negligent with respect to a risk created by the defendant's negligence, the proper defense is
contributory/comparative fault. In that case, the instructions in this chapter do not apply.
Section 13, Page 6 of 9
13.01 Assumption of Risk--Contractual Relationship--Burden of Proof
[As to Count ____,] The defendant has raised the affirmative defense that the plaintiff
assumed the risk of injury from the danger which the plaintiff claims caused his injury. To prove
this defense, the defendant has the burden of proving each of the following propositions:
First, that the defendant and the plaintiff had [an agreement] [a contract] under which the
plaintiff was to participate in activities which exposed him to the danger that resulted in the
injury of which he complains[,] [namely, describe danger].
Second, that the danger was one that ordinarily accompanies the activities contemplated
in the [agreement] [contract].
Third, that the plaintiff had actual knowledge of this danger and understood and
appreciated the nature and extent of the risk;
Fourth, that the plaintiff voluntarily subjected himself to this danger; and
Fifth, that this danger was the cause of the plaintiff's [alleged] [injuries] [damages].
If you decide that each of these propositions has been proved, then your verdict should be
for the defendant [as to Count ____]. If, on the other hand, you decide that any of these
propositions has not been proved, then the defendant has not proved the affirmative defense of
assumption of the risk.
Notes on Use
This instruction may be used only when a defendant has affirmatively raised the issue of
assumption of risk by his pleadings.
This instruction is proper only when the specific danger in question was inherent in the
employment or activity and was not created by the defendant's negligence. See Introduction (IPI 13.00). If
the danger allegedly was created by the defendant's negligence, then the contributory/comparative
negligence instructions should be used.
If the plaintiff has other allegations of negligence (or other fault) besides the charge that the
defendant failed to protect him against the danger which is the subject of this defense, then it will be
necessary to include the bracketed phrase naming the particular danger of which the plaintiff allegedly
assumed the risk, so that the jury does not use this defense against claims to which it does not apply. In
such a case, this claim should be identified as a separate count to keep it distinct from such other claims.
Optionally, the bracketed phrase identifying the specific danger may also be used in any case,
even one involving a single risk, to insure that the jury is focused on the specific danger in issue and not
on general risks inherent in the activity. The doctrine does not apply to the latter. Chaplin v. Geiser, 79
Ill.App.3d 435, 398 N.E.2d 628, 631; 34 Ill.Dec. 805, 808 (2d Dist.1979).
If the court rules that one or more propositions are undisputed or are established as a matter of
law, those propositions can be omitted from the instruction and the remaining paragraphs renumbered.
Section 13, Page 7 of 9
This instruction does not apply to the defense of assumption of the risk in strict product liability
cases. See IPI Chapter 400.
Comment
See Introduction (IPI 13.00), supra, for a discussion of this defense.
Section 13, Page 8 of 9
13.02 Assumption of Risk--Employer-Employee Relationship--Burden of Proof
[As to Count ____,] The defendant has raised the affirmative defense that the plaintiff
assumed the risk of injury from the danger which the plaintiff claims caused his injury. To prove
this defense, the defendant has the burden of proving each of the following propositions:
First, that at the time of the occurrence in question, the plaintiff was the defendant's
employee;
Second, that performing the duties of his employment exposed the plaintiff to the danger
that resulted in the injury of which he complains[,] [namely, describe danger];
Third, that the danger was one that ordinarily accompanies the employment;
Fourth, that the plaintiff had actual knowledge of this danger and understood and
appreciated the nature and extent of the risk;
Fifth, that the plaintiff voluntarily subjected himself to this danger; and
Sixth, that this danger was the cause of the plaintiff's [alleged] [injuries] [damages].
If you decide that each of these propositions has been proved, then your verdict should be
for the defendant [as to Count ____]. If, on the other hand, you decide that any of these
propositions has not been proved, then the defendant has not proved the affirmative defense of
assumption of the risk.
Notes on Use
This instruction may be used only when a defendant has affirmatively raised the issue of
assumption of risk by his pleadings.
This instruction is proper only when the specific danger in question was inherent in the
employment or activity and was not created by the defendant's negligence. See Introduction (IPI 13.00). If
the danger allegedly was created by the defendant's negligence, then the contributory/comparative
negligence instructions should be used.
If the plaintiff has other allegations of negligence (or other fault) besides the charge that the
defendant failed to protect him against the danger which is the subject of this defense, then it will be
necessary to include the bracketed phrase naming the particular danger of which the plaintiff allegedly
assumed the risk, so that the jury does not use this defense against claims to which it does not apply. In
such a case, this claim should be identified as a separate count to keep it distinct from such other claims.
Optionally, the bracketed phrase identifying the specific danger may also be used in any case,
even one involving a single risk, to insure that the jury is focused on the specific danger in issue and not
on general risks inherent in the activity. The doctrine does not apply to the latter. Chaplin v. Geiser, 79
Ill.App.3d 435, 398 N.E.2d 628, 631; 34 Ill.Dec. 805, 808 (2d Dist.1979).
Section 13, Page 9 of 9
If the court rules that one or more propositions are undisputed or are established as a matter of
law, those propositions can be omitted from the instruction and the remaining paragraphs renumbered.
This instruction does not apply to the defense of assumption of the risk in strict product liability
cases. See IPI Chapter 400.
Comment
See Introduction (IPI 13.00), supra, for a discussion of this defense.
Section 14, Page 1 of 5
14.00
Willful and Wanton Conduct
14.01 Willful and Wanton Conduct--Definition
When I use the expression “willful and wanton conduct” I mean a course of action which
[shows actual or deliberate intention to harm] [or which, if not intentional,] [shows an utter
indifference to or conscious disregard for (a person's own safety) (and) (the safety of others)].
Notes on Use
This instruction is to be given when an accompanying instruction has indicated the consequences
of a finding of willful and wanton conduct in the given case. The first bracketed phrase should be used
only when a deliberate intention to harm is alleged and is supported by evidence sufficient to make a
submissible case. As to the distinction between willful and wanton conduct involving a deliberate intent
to harm and “reckless” willful and wanton conduct, see Ziarko v. Soo Line R.R. Co., 161 Ill.2d 267, 641
N.E.2d 402, 204 Ill.Dec. 178 (1994) (contribution case) and Poole v. City of Rolling Meadows, 167 Ill.2d
41, 656 N.E.2d 768, 212 Ill.Dec. 171 (1995).
If there is no issue as to the plaintiff's contributory fault, then there may be no need for a jury to
determine which form of willful and wanton conduct was committed by the defendant. However, as the
Poole decision emphasizes, if there is a submissible claim concerning the plaintiff's contributory fault,
and if the jury finds the defendant's conduct to have been willful and wanton, there may need to be a jury
finding (either on the verdict form or in a special interrogatory) as to whether the defendant's willful and
wanton conduct was the “intentional” kind or the “reckless” kind.
Comment
This definition of willful and wanton conduct was approved in Burke v. 12 Rothschild's Liquor
Mart, 148 Ill.2d 429, 593 N.E.2d 522, 170 Ill.Dec. 633 (1992), in Ziarko v. Soo Line R.R. Co., 161 Ill.2d
267, 641 N.E.2d 402, 204 Ill.Dec. 178 (1994) (contribution case) and in Poole v. City of Rolling
Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171 (1995). A similar definition of willful and
wanton conduct is found in §1-210 of the Local Governmental and Governmental Employees Tort
Immunity Act (745 ILCS 10/1-210).
Prior to the adoption of comparative negligence, defendant's willful and wanton conduct negated
the defense of contributory negligence. Green v. Keenan, 10 Ill.App.2d 53, 60; 134 N.E.2d 115, 118 (2d
Dist.1956). Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171 (1995),
held that a plaintiff's negligence cannot be compared to a defendant's “intentional” willful and wanton
conduct to reduce the amount of damages recoverable by the plaintiff, but it can be a damage-reducing
factor if the defendant's willful and wanton conduct is “reckless.” Although an intentional tortfeasor
cannot obtain contribution (Gerill Corp. v. Jack L. Hargrove Builders, Inc., 128 Ill.2d 179, 206; 538
N.E.2d 530, 542; 131 Ill.Dec. 155, 167 (1989), cert. denied, 493 U.S. 894, 110 S.Ct. 243, 107 L.Ed.2d
193 (1989)), Ziarko v. Soo Line R.R. Co., 161 Ill.2d 267, 641 N.E.2d 402, 204 Ill.Dec. 178 (1994), held
that a tortfeasor whose willful and wanton conduct is “reckless” but not “intentional” may seek
contribution.
In addition to its importance in the determination of comparative fault, the doctrine of willful and
wanton conduct is also important with respect to other legal issues:
Section 14, Page 2 of 5
1. As a basis for punitive damages. Loitz v. Remington Arms Co., 138 Ill.2d 404, 563 N.E.2d 397,
150 Ill.Dec. 510 (1990); Dunn v. Illinois Central Gulf R. Co., 215 Ill.App.3d 190, 574 N.E.2d 902, 158
Ill.Dec. 789 (4th Dist.1991).
2. When the plaintiff is a guest passenger in the defendant's automobile, 625 ILCS 5/10-201 (now
limited to illegal hitchhikers).
3. When the plaintiff is a trespasser and the defendant is the owner or occupier of the premises.
Rodriguez v. Norfolk & W. Ry. Co., 228 Ill.App.3d 1024, 593 N.E.2d 597, 170 Ill.Dec. 708 (1st
Dist.1992); Miller v. General Motors Corp., 207 Ill.App.3d 148, 565 N.E.2d 687, 152 Ill.Dec. 154 (4th
Dist.1990); Eaton v. Baltimore & Ohio R. Co., 198 Ill.App.3d 137, 555 N.E.2d 790, 144 Ill.Dec. 431 (4th
Dist.1990); Harkins v. System Parking, Inc., 186 Ill.App.3d 869, 542 N.E.2d 921, 923; 134 Ill.Dec. 575,
577 (1st Dist.1989); Sumner v. Hebenstreit, 167 Ill.App.3d 881, 522 N.E.2d 343, 118 Ill.Dec. 888 (5th
Dist.1988). See also Lee v. Chicago Transit Authority, 152 Ill.2d 432, 605 N.E.2d 493, 498; 178 Ill.Dec.
699, 704 (1992) (dictum, stating rule); 740 ILCS 130/3.
4. When the defendant's liability is limited by statute to cases where defendant's conduct is willful
and wanton. See, e.g., 50 ILCS 750/15.1; 70 ILCS 605/4-40; 70 ILCS 3605/45; 210 ILCS 50/17; 225
ILCS 25/53, 25/54, 65/5, 90/35, 100/4, 115/21; 415 ILCS 5/4(r), 5/22.2(j) (3); 625 ILCS 5/10-201; 740
ILCS 75/1; 745 ILCS 10/2-202, 10/3-106, 109, 10/4-105, 10/5-103, 106, 20/1, 50/3, 50/4, 55/3, 75/2; 805
ILCS 105/108.70; 815 ILCS 645/14; 820 ILCS 225/5.1.
Section 14, Page 3 of 5
14.02 Contributory Willful And Wanton Conduct--Definition
When I use the expression “contributory willful and wanton conduct,” I mean willful and
wanton conduct on the part of the plaintiff that proximately contributed to cause the [alleged]
[injury] [death] [property damage].
Notes on Use
This instruction should be given only when IPI B14.03 is not used. If IPI B14.03 is given, do not
use this instruction; it is incorporated in IPI B14.03.
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
Section 14, Page 4 of 5
B14.03 Duty To Refrain From Willful And Wanton Conduct--Plaintiff
[1]. It was the duty of the plaintiff [under Count __ of the complaint], before and at the
time of the occurrence, to refrain from willful and wanton conduct that would endanger [his
person] [and] [his property]. A plaintiff is contributorily willful and wanton if (1) his conduct is
willful and wanton, and (2) such willful and wanton conduct is a proximate cause of the [alleged]
[injury] [death] [property damage].
[Alternative 1]
[2]. [ The plaintiff's contributory willful and wanton conduct, if any, which is 50% or less
of the total proximate cause of the injury or damages for which recovery is sought, does not bar
his recovery. However, the total amount of damages to which he would otherwise be entitled is
reduced in proportion to the amount of his willful and wanton conduct. This is known as
comparative fault.]
[3]. [If the plaintiff's contributory willful and wanton conduct is more than 50% of the
total proximate cause of the injury or damages for which recovery is sought, it bars plaintiff's
recovery and your verdict shall be for the defendant(s).]
[Alternative 2]
[4]. [The plaintiff's contributory willful and wanton conduct, if any, bars his recovery,
and your verdict shall be for the defendant(s).]
Notes on Use
Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171 (1995), held
that a plaintiff's contributory negligence is a damage-reducing factor if the defendant's willful and wanton
conduct was “reckless,” but not if it was “intentional.” Therefore, if plaintiff's only claim is that
defendant's conduct was the intentional form of willful and wanton, this instruction should not be used. If
plaintiff claims intentional willful and wanton conduct in addition to other claims, this instruction should
be modified accordingly.
Since the adoption of comparative fault, no Illinois case has yet decided the effect of a plaintiff's
contributory willful and wanton conduct. If the trial court rules that the plaintiff's contributory willful and
wanton conduct may be a damage reducing factor, paragraph [2] of this instruction should be used. If the
trial court determines that the plaintiff's contributory willful and wanton conduct may be a complete bar
to the plaintiff's recovery, paragraph [3] of this instruction should be used.
If there was either property damage or personal injury, but not both, omit the inapplicable
bracketed material.
If this instruction is given, also give IPI 14.01 defining “willful and wanton conduct.”
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
Section 14, Page 5 of 5
14.04 Duty To Refrain From Willful And Wanton Conduct--Defendant
It was the duty of the defendant [under Count _____ of the complaint], before and at the
time of the occurrence, to refrain from willful and wanton conduct which would endanger the
safety of the [plaintiff] [decedent] [and] [his property].
Notes on Use
If there are counts in the complaint charging both willful and wanton conduct and ordinary
negligence, the number of the count charging willful and wanton conduct should be indicated by use of
the first bracketed phrase.
If there was either property damage or personal injury, but not both, omit the inapplicable
bracketed material.
The instruction should be used in conjunction with IPI 14.01 defining “willful and wanton
conduct.”
Comment
A similar instruction was approved in Kitten v. Stodden, 76 Ill.App.2d 177, 185; 221 N.E.2d 511,
515 (5th Dist.1966).
Section 15, Page 1 of 3
15.00
PROXIMATE CAUSE
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.]
Instruction and Comment revised September 2009.
Notes on Use
This instruction in its entirety should be used when there is evidence of a concurring or
contributing cause to the injury or death. In cases where there is no evidence that the conduct of any
person other than a single defendant was a concurring or contributing cause, the short version without the
bracketed material may be used.
Comment
***
The Committee modified this instruction in 2007 with the intent of making it more
comprehensible and conversational. That modification used the word “and” in the first sentence instead of
“or.” “Or” is a more accurate statement of the law and more consistent with the predecessor instruction
and case law. “That” is preferred usage in place of “which.”
In negligence actions and in other cases which involve the violation of statutes and ordinances,
the injuries, death or loss of support must have been caused by the negligence or particular statutory
violation alleged in the complaint. The jury is informed that one of the elements of the plaintiff's case is
that the conduct of the defendant is a proximate cause of the plaintiff's damages or injuries. See IPI
B21.02. This instruction, defining proximate cause, should accompany those in which the phrase
“proximate cause” is used, e.g., IPI 11.01 and IPI B21.02.
An instruction encompassing the bracketed material is proper where there is evidence that
something or the acts of someone other than the negligence of the defendant, or intoxication of a person
who has been sold or given intoxicants, was a proximate cause of the injury or death. James v. Checker
Taxi Co., 22 Ill.App.2d 22, 159 N.E.2d 12 (1st Dist.1959); Harrold v. Clinton Gas & Elec. Co., 205
Ill.App. 12 (3d Dist.1917); St. Clair v. Douvas, 21 Ill.App.2d 444, 158 N.E.2d 642 (1st Dist.1959); Heitz
v. Hogan, 134 Ill.App.3d 352, 480 N.E.2d 185, 191-192; 89 Ill.Dec. 299, 305-306 (4th Dist.1985).
However, some courts have determined that if the only possible cause of the occurrence is the conduct of
a single defendant, the use of the long form might be confusing to the jury. Willson v. Pepich, 119
Ill.App.3d 552, 456 N.E.2d 882, 886; 75 Ill.Dec. 61, 65 (2d Dist.1983).
Prior to the Illinois Supreme Court's decision in Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52
Ill.Dec. 23 (1981), adopting comparative negligence, some cases held that when the only possible causes
of the occurrence were the conduct of the plaintiff and the defendant, the material in the brackets would
be improper because it would prejudice the defendant's defense of contributory negligence. Borowski v.
Von Solbrig, 60 Ill.2d 418, 431; 328 N.E.2d 301, 308 (1975); Budovic v. Eschbach, 349 Ill.App. 163,
167-168; 110 N.E.2d 477, 479 (2d Dist.1953) (court properly refused an instruction containing the
Section 15, Page 2 of 3
bracketed material in a case involving a pedestrian injured by an automobile). Cases have also held that
the long form should not be given when the only other possible cause of the harm in question was the
plaintiff's predisposition to the injury. These cases interpret the bracketed phrase to refer only to the
conduct of third persons and not mere “conditions.” Lounsbury v. Yorro, 124 Ill.App.3d 745, 464 N.E.2d
866, 870-871, 80 Ill.Dec. 1, 5-6 (2d Dist.1984).
Some cases have held that it is not necessarily error to give the short form, even when multiple
concurring or contributing causes are possible. See, e.g., Curry v. Summer, 136 Ill.App.3d 468, 474; 483
N.E.2d 711, 715-717, 91 Ill.Dec. 365, 369-371 (4th Dist.1985) (although long form would have been
preferable, short form not error even though there were multiple defendants); Webb v. Angell, 155
Ill.App.3d 848, 508 N.E.2d 508, 514-515; 108 Ill.Dec. 347, 353-354 (2d Dist.1987) (short form proper on
facts; use of term “any” in short form permits argument that injury had multiple causes); Greene v.
Rogers, 147 Ill.App.3d 1009, 498 N.E.2d 867, 874-875; 101 Ill.Dec. 543, 550-551 (3d Dist.1986) (same;
short not error, although long form would have been preferable); Mazur v. Lutheran Gen. Hosp., 143
Ill.App.3d 528, 493 N.E.2d 62, 69; 97 Ill.Dec. 580, 587 (1st Dist.1986) (short form not error where other
instructions sufficiently conveyed idea that more than one defendant could be liable). Conversely, it has
been held error to refuse to give the long form when the evidence shows that the injury complained of
could have been caused by the conduct of two or more persons other than the plaintiff or decedent. Heitz
v. Hogan, 134 Ill.App.3d 352, 480 N.E.2d 185, 191-192; 89 Ill.Dec. 299, 305-306 (4th Dist.1985).
After the adoption of comparative negligence in Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52
Ill.Dec. 23 (1981), the Illinois Supreme Court in Casey v. Baseden, 111 Ill.2d 341, 490 N.E.2d 4, 7; 95
Ill.Dec. 531, 534 (1986), held that the long form was properly given in a motor vehicle accident case
involving only one plaintiff and one defendant:
While it is possible that the long form of the instruction could, in remote circumstances,
prove confusing to a jury when only two parties are involved in an accident, we do not think this
is such a case. Other instructions did not allude to the possible acts of third parties; they clearly
instructed the jury on how to apportion damages if it found that both parties were negligent and
advised the jurors to calculate the comparative negligence of the parties assuming that “100%
represents [their] total combined negligence.” Viewed in their entirety, the instructions fully and
fairly apprised the jury of the relevant principles . . . relating to treatment of the plaintiff's fault.
Other recent decisions have demonstrated a similar reluctance to hold that the long form of the instruction
prejudiced a party. See, e.g., Chambers v. Rush-Presbyterian-St. Luke's Medical Center, 155 Ill.App.3d
458, 508 N.E.2d 426, 431-432; 108 Ill.Dec. 265, 270-271 (1st Dist.1987); Drake v. Harrison, 151
Ill.App.3d 1082, 503 N.E.2d 1072, 105 Ill.Dec. 66 (5th Dist.1987); Shiner v. Friedman, 161 Ill.App.3d
73, 513 N.E.2d 862, 869; 112 Ill.Dec. 253, 260 (1st Dist.1987); Johanek v. Ringsby Truck Lines, Inc., 157
Ill.App.3d 140, 509 N.E.2d 1295, 1305; 109 Ill.Dec. 283, 293 (1st Dist.1987); Lee v. Grand Trunk
Western R. Co., 143 Ill.App.3d 500, 492 N.E.2d 1364, 1375; 97 Ill.Dec. 491, 502 (1st Dist.1986); Roman
v. City of Chicago, 134 Ill.App.3d 14, 479 N.E.2d 1064, 1067-1068; 89 Ill.Dec. 58, 61-62 (1st Dist.1985).
In Willson v. Pepich, 119 Ill.App.3d 552, 456 N.E.2d 882, 886; 75 Ill.Dec. 61, 65 (2d Dist.1983),
the court stated:
We agree that the principal reason for not permitting the inclusion of the bracketed
material in IPI Civil No. 15.01 is no longer present under the doctrine of comparative negligence.
So long as the doctrine of contributory negligence was a viable doctrine in this State, the
negligence of the defendant had to be the sole cause of the injury to the plaintiff when the only
other possible contributing cause was the conduct of the plaintiff herself, and it was for this
reason that the bracketed material was held to be improper in such cases.
Section 15, Page 3 of 3
From these authorities, it may be concluded that (1) it will rarely be error to give the long form of
the instruction, and (2) the short form may now be restricted to those cases where the evidence shows that
the sole cause of the plaintiff's injury (other than the plaintiff's predisposition) was the conduct of a single
defendant and there is no evidence that the plaintiff's conduct was a contributing cause.
Section 20, Page 1 of 10
ISSUES--BURDEN OF PROOF
20.00
ISSUES IN THE CASE
INTRODUCTION
An issue instruction tells the jury what points are in controversy between the parties and
thereby simplifies their task of applying the law to the facts--a task made more difficult in many
instances after jurors have participated in several types of cases.
The committee recommends that such an instruction be given; if tendered, the court has
the duty to give it. Goertz v. Chicago & N.W. Ry. Co., 19 Ill.App.2d 261, 270, 153 N.E.2d 486,
491 (1st Dist.1958).
The practice of informing the jury as to the respective contentions of the parties has
developed gradually.
Some of the early cases indicate that the jury could take pleadings to the jury room and
find the issues by referring to the pleadings. West Chicago St. R. Co. v. Buckley, 200 Ill. 260, 65
N.E. 708 (1902); City of East Dubuque v. Burhyte, 173 Ill. 553, 50 N.E. 1077 (1898). Later cases
held that it was error to refer the jury to charges in the complaint in the absence of further
instructions pointing out what was charged. E.g., Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544,
90 N.E. 266 (1909).
It then became common to have a lengthy commentary read to the jury which elaborately
informed them of the plaintiff's allegations of negligence, proximate cause and whatever other
legal verbiage may have been placed in the complaint. These lengthy quotes from the complaint
lent the office of the trial judge to the plaintiff to state his case to the jury. Frequent warnings by
the appellate court went unheeded by lawyers representing plaintiffs until 1953, when the
Appellate Court for the First District reversed a case in which an almost 800-word summary of
the complaint had been given to the jury. Signa v. Alluri, 351 Ill.App. 11, 113 N.E.2d 475 (1st
Dist.1953).
Signa held that the court should inform the jury of the issues raised by the pleadings in a
clear and concise manner, and that this could be accomplished by a summary of the pleadings
succinctly stated without repetition and without undue emphasis. This method has been approved
in later cases. Smith v. Illinois Valley Ice Cream Co., 20 Ill.App.2d 312, 156 N.E.2d 361 (2d
Dist.1959); Asplund v. Pavlik, 1 Ill.App.2d 220, 117 N.E.2d 408 (1st Dist.1953) (abstract).
Consistent with this view is the conclusion that an instruction which omits reference to a
defendant's affirmative defenses is reversible error. Walton v. Greenberg Mercantile Corp., 1
Ill.App.2d 99, 116 N.E.2d 197 (4th Dist.1953). Similarly, issue instructions which include
charges not found in the complaint or supported by the evidence constitute error. Fraider v.
Hannah, 338 Ill.App. 440, 451-52, 87 N.E.2d 795, 800-01 (2d Dist.1949); Burns v. Stouffer, 344
Section 20, Page 2 of 10
Ill.App. 105, 111, 100 N.E.2d 507, 510 (2d Dist.1951).
Section 20, Page 3 of 10
20.01 Issues Made By The Pleadings--Negligence--One Or More Defendants
[1] The plaintiff claims that he was injured and sustained damage, and that the
defendant[s] [was] [were] negligent in one or more of the following respects:
[Set forth in simple form without undue emphasis or repetition
those allegations of the complaint as to the negligence of the
defendants which have not been withdrawn or ruled out by the
court and are supported by the evidence. If there is more than one
defendant and the allegations of negligence are different as
between them, use a form such as:
“Defendant C, in [e.g., failing to keep a proper lookout.”
“Defendant D, in ______.”]
[2] The plaintiff further claims that one or more of the foregoing was a proximate cause
of his injuries.
[3] The defendant [Defendant C] [denies that he did any of the things claimed by the
plaintiff,] denies that he was negligent [in doing any of the things claimed by the plaintiff] [and
denies that any claimed act or omission on the part of the defendant was a proximate cause of the
plaintiff's claimed injuries].
[4] The defendant[s] claim[s] that the plaintiff was contributorily negligent [in one or
more of the following respects:]
[Set forth in simple form without undue emphasis or repetition
those allegations of the answer as to the plaintiff's
contributory negligence which have not been withdrawn or
ruled out by the court and are supported by the evidence.]
[5] The defendant[s] further claim[s] that one or more of the foregoing was [a] [the sole]
proximate cause of the plaintiff's injuries.
[6] The plaintiff [denies that he did any of the things claimed by defendant(s),] denies
that he was negligent [in doing any of the things claimed by defendant(s),] [to the extent claimed
by defendant(s),] [and denies that any claimed act or omission on his part was a proximate cause
of his claimed injuries].
[7] The defendant [Defendant C] also sets up the following affirmative defense[s]:
Defendant [Defendant C] claims
[here set forth in simple form without undue emphasis or
repetition those affirmative defenses (except contributory
negligence) in the answer which have not been withdrawn or
Section 20, Page 4 of 10
ruled out by the court and are supported by the evidence].
[8] The plaintiff denies that [summarize affirmative defense[s]].
[9] The defendant[s] further den[ies] [y] that the plaintiff was injured or sustained
damages [to the extent claimed].
Notes on Use
This instruction may also be used in this form for multiple plaintiffs if the allegations of
negligence of all plaintiffs are the same. Where multiple plaintiffs allege different acts of negligence, the
instruction must be modified to set forth separately the allegations by each plaintiff. If there is a
counterclaim, use IPI 20.02.
This instruction must be modified to fit the allegations of the complaint and answer. The
bracketed materials cover various contingencies that may result from the pleadings. The pertinent phrases
in the brackets should be used if they fit the particular case. Additional innovations consistent with the
pleadings should, of course, be used whenever required.
All “special defenses” which must be pleaded under the notice requirements of &p;2-613(d) of
the Code of Civil Procedure (735 ILCS 5/2-613(d) (1994)) are not necessarily “affirmative defenses” in
the sense that they bar recovery. Although &p;2-613(d) (as amended in P.A. 84-624, effective 9/20/85)
refers to contributory negligence as an “affirmative defense,” it does not bar the cause of action, but
mitigates damages and therefore is treated in paragraph [4] and not in paragraph [7]. Only affirmative
defenses that bar recovery should be set forth under paragraph [7] of this instruction. Other defenses that
do not bar recovery, such as a claim that the plaintiff failed to mitigate damages, should be set forth in a
separate paragraph, with the plaintiff's denials in a following paragraph.
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
Comment
An issue instruction must meet the standards of Signa v. Alluri, 351 Ill.App. 11, 113 N.E.2d 475
(1st Dist.1953), that the issues made by the pleadings be concisely stated without characterization and
undue emphasis.
Two cases pre-dating the 1985 amendment to &p;2-613(d) held that the defendant does not have
to specify the contributory negligence relied upon, and if specific acts of contributory negligence are not
alleged, they need not be specified in the issues instructions. Marcin v. Kipfer, 117 Ill.App.3d 1065, 454
N.E.2d 370, 73 Ill.Dec. 510 (4th Dist.1983); Witherell v. Weimer, 118 Ill.2d 321, 515 N.E.2d 68, 77; 113
Ill.Dec. 259, 268 (1987).
Under Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52 Ill.Dec. 23 (1981), the plaintiff no longer
has the burden of pleading and proving freedom from contributory negligence. Casey v. Baseden, 111
Ill.2d 341, 490 N.E.2d 4, 95 Ill.Dec. 531 (1986), held that defendant has the burden of proving the
plaintiff's contributory negligence. The present instruction includes not only affirmative defenses which
may defeat the claim, but also contributory negligence which may only diminish damages.
Failure to mitigate damages is an affirmative defense. Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d
656 (1969).
Section 20, Page 5 of 10
20.01.01 Issues Made By the Pleadings--Negligence and Willful and Wanton Counts
[1] The plaintiff's complaint consists of two counts. The issues to be decided by you
under Count I of the complaint are as follows:
[2] The plaintiff claims that he was injured and sustained damage and that the defendant
was negligent in one or more of the following respects:
[Set forth in simple form without undue emphasis or repetition
those allegations of the complaint as to negligence which have
not been withdrawn or ruled out by the court and are supported
by the evidence.]
[3] The plaintiff further claims that one or more of the foregoing was a proximate cause
of his injuries.
[4] The defendant [denies that he did any of the things claimed by the plaintiff,] denies
that he was negligent [in doing any of the things claimed by the plaintiff] [and denies that any
claimed act or omission on the defendant's part was a proximate cause of the plaintiff's claimed
injuries].
[5] The defendant claims that the plaintiff was contributorily negligent [in one or more
of the following respects:]
[Set forth in simple form without undue emphasis or repetition
those allegations of the answer as to the plaintiff's contributory
negligence which have not been withdrawn or ruled out by the
court and are supported by the evidence.]
[6] The defendant further claims that one or more of the foregoing was [a] [the sole]
proximate cause of the plaintiff's injuries.
[7] The plaintiff [denies that he did any of the things claimed by defendant,] denies that
he was negligent [in doing any of the things claimed by defendant,] [to the extent claimed by
defendant,] [and denies that any claimed act or omission on his part was a proximate cause of his
claimed injuries].
[8] [The defendant also sets up the following affirmative defense(s):
Defendant (Defendant C) claims
(here set forth in simple form without undue emphasis or
repetition those affirmative defenses in the answer which have
not been withdrawn or ruled out by the court and are
supported by the evidence).]
[9] The plaintiff denies that [summarize affirmative defense(s)].
Section 20, Page 6 of 10
[10] [The defendant further denies that the plaintiff was injured or sustained damages
(to the extent claimed).]
[11] Turning now to Count II of the complaint the issues to be decided by you under that
Count are as follows:
[12] The plaintiff claims that he was injured and sustained damage and that the conduct
of the defendant was willful and wanton in one or more of the following respects:
[Set forth in simple form without undue emphasis or repetition
those allegations of the complaint as to willful and wanton
conduct which have not been withdrawn or ruled out by the
court and are supported by the evidence.]
[13] The plaintiff further claims that one or more of the foregoing was a proximate
cause of his injuries.
[14] The defendant [denies that he did any of the things claimed by the plaintiff,] denies
that he was willful and wanton [in doing any of the things claimed by the plaintiff,] [denies that
any claimed act or omission on the defendant's part was a proximate cause of the plaintiff's
claimed injuries].
[15] [The defendant claims that the plaintiff was contributorily willful and wanton (in
one or more of the following respects):
(Set forth in simple form without undue emphasis or repetition
those allegations of the answer as to the plaintiff's contributory
willful and wanton conduct which have not been withdrawn or
ruled out by the court and are supported by the evidence.)]
[16] [The defendant further claims that one or more of the foregoing was (a) (the sole)
proximate cause of the plaintiff's injuries.]
[17] The plaintiff [denies that he did any of the things claimed by defendant,] [denies
that he was willful and wanton] [in doing any of the things claimed by defendant,] [to the extent
claimed by defendant,] [and denies that any claimed act or omission on his part was a proximate
cause of his claimed injuries].
[18] [The defendant also sets up the following affirmative defense(s):
(Set forth in simple form without undue emphasis or repetition
those affirmative defenses in the answer which have not been
withdrawn or ruled out by the court and are supported by
evidence).]
[19] [The plaintiff denies that (summarize affirmative defense(s)).]
Section 20, Page 7 of 10
[20] The defendant further denies that the plaintiff was injured or sustained damages [to
the extent claimed].
Notes on Use
This instruction should be used where the case is submitted to the jury on charges of negligence
in one or more counts, and on charges of willful and wanton conduct in another count or counts.
Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171 (1995), held
that a plaintiff's contributory negligence is a damage-reducing factor if the defendant's willful and wanton
conduct was “reckless,” but not if it was “intentional.” Therefore, if plaintiff's only claim is that
defendant's conduct was the intentional form of willful and wanton, this instruction should not be used. If
plaintiff claims intentional willful and wanton conduct in addition to other claims, this instruction should
be modified accordingly.
Whether a plaintiff's contributory willful and wanton conduct bars the plaintiff's recovery or
reduces the total amount of damages to which the plaintiff would otherwise be entitled was a question
left open by the court in Poole. This instruction, with modifications, can be used whichever way the court
rules on this issue.
All “special defenses” which must be pleaded under the notice requirements of §2-613(d) of the
Illinois Civil Practice Law (735 ILCS 5/2-613(d)) are not necessarily “affirmative defenses” in the sense
that they bar recovery. Although §2-613(d) (as amended in P.A. 84-624, effective 9/20/85) refers to
contributory negligence as an “affirmative defense,” it does not bar the cause of action, but mitigates
damages and therefore is treated in paragraph [5] and not in paragraph [8].
Only affirmative defenses that bar recovery should be set forth under paragraphs [8] and [18] of
this instruction. Other defenses that do not bar recovery, such as a claim that the plaintiff failed to
mitigate damages, should be set forth in a separate paragraph, with the plaintiff's denials in a following
paragraph.
Section 20, Page 8 of 10
20.02 Issues Made By the Pleadings--Negligence--One or More
Defendants--Counterclaim
Each party to this suit claims to be entitled to damages from the other: the plaintiff, under
his complaint, and the defendant [Defendant C] under his counterclaim.
[1] The plaintiff claims that he was injured and sustained damage, and that the
defendant[s] [was] [were] negligent in one or more of the following respects:
[Set forth in simple form without undue emphasis or repetition those
allegations of the complaint as to the negligence of the defendants
which have not been withdrawn or ruled out by the court and are
supported by the evidence. If there is more than one defendant and
the allegations of negligence are different as between them, use a
form such as:
“Defendant C, in [e.g., failing to keep a proper lookout].”
“Defendant D, in ___________________.”]
[2] The plaintiff further claims that one or more of the foregoing was a proximate cause
of his injuries.
[3] The defendant [Defendant C] [denies that he did any of the things claimed by the
plaintiff,] denies that he was negligent [in doing any of the things claimed by the plaintiff] [and
denies that any claimed act or omission on the part of the defendant was a proximate cause of the
plaintiff's claimed injuries].
[4] The defendant[s] claim[s] that the plaintiff was contributorily negligent [in one or
more of the following respects:]
[Set forth in simple form without undue emphasis or repetition those
allegations of the answer as to the plaintiff's contributory negligence
which have not been withdrawn or ruled out by the court and are
supported by the evidence.]
[5] The defendant[s] further claim[s] that one or more of the foregoing was [a] [the sole]
proximate cause of the plaintiff's injuries.
[6] The plaintiff [denies that he did any of the things claimed by defendant(s),] denies
that he was negligent [in doing any of the things claimed by defendant(s),] [to the extent claimed
by defendant(s),] [and denies that any claimed act or omission on his part was a proximate cause
of his claimed injuries].
[7] The defendant [Defendant C] also sets up the following affirmative defense[s]:
Defendant [Defendant C] claims
Section 20, Page 9 of 10
[here set forth in simple form without undue emphasis or repetition
those affirmative defenses in the answer which have not been
withdrawn or ruled out by the court and are supported by the
evidence].
[8] The plaintiff denies that [summarize affirmative defense[s]].
[9] The defendant[s] further den[ies] [y] that the plaintiff was injured or sustained
damages [to the extent claimed].
[10] The defendant [Defendant C] counterclaims that he was injured and sustained
damage, [and that the plaintiff was negligent in one or more of the ways previously mentioned]
[and that Defendant D was negligent in one or more of the following ways]:
[Set forth in simple form without undue emphasis or repetition those
allegations of the counterclaim against Defendant D which have not
been withdrawn or ruled out by the court and are supported by the
evidence.]
[11] The plaintiff [denies] [and Defendant D each deny] [that he (they) did any of the
things claimed in the counterclaim] [that he was (they were) negligent] [in doing or omitting to
do any of the things claimed in the counterclaim,] [to the extent claimed] [and] claims that
[defendant's] [Defendant C's] injury or damage was proximately caused [solely] by the
negligence of [defendant] [Defendant C].
[12] The plaintiff claims that defendant [Defendant C] was contributorily negligent [in
one or more of the following respects:]
[Set forth in simple form without undue emphasis or repetition those
allegations of the answer as to defendant's contributory negligence
which have not been withdrawn or ruled out by the court and are
supported by the evidence.]
[13] The plaintiff further claims that one or more of the foregoing was [a] [the sole]
proximate cause of defendant's [Defendant C's] injuries.
[14] The defendant [Defendant C] [denies that he did any of the things claimed by the
plaintiff,] denies that he was negligent [in doing any of the things claimed by the plaintiff,] [to
the extent claimed by the plaintiff,] [and denies that any claimed act or omission on his part was
a proximate cause of his claimed injuries].
[15] [(The plaintiff) (and) (Defendant D) further set(s) up the following affirmative
defense(s):
The plaintiff (and) (Defendant D) claim(s)
(Summarize in simple form and without undue emphasis or
repetition any affirmative defenses alleged in the answer to the
Section 20, Page 10 of 10
counterclaim that are supported by the evidence).]
[16] [The defendant(s) (Defendant C) (denies) (deny) that (summarize affirmative
defense[s]).]
[17] The plaintiff [denies] [and Defendant D each deny] that [Defendant C] was injured
or sustained damages [to the extent claimed].
Notes on Use
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
See Notes on Use and Comment to IPI 20.01.
Section 21, Page 1 of 19
21.00
BURDEN OF PROOF
INTRODUCTION
This series of instructions deals with burden of proof. IPI 21.01 defines burden of proof
in terms of what is more probably true than not true. This is considered preferable to a statement
requiring proof by a “preponderance” or “greater weight” of evidence.
IPI 21.02 and B21.02 enumerates the elements which a plaintiff must prove in a personal
injury case.
Expressions such as “evenly balanced,” “if you are in doubt and unable to say,” and “not
required to prove any fact beyond a reasonable doubt” were abandoned because they distort
rather than clarify the true meaning of the principle involved, as explained in the Comment under
IPI 21.06.
21.01 Meaning Of Burden Of Proof
When I say that a party has the burden of proof on any proposition, or use the expression
“if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in
the case, that the proposition on which he has the burden of proof is more probably true than not
true.
Notes on Use
This instruction should be given with any instruction involving burden of proof.
Comment
This instruction embodies the standard definition of “burden of proof.” Reivitz v. Chicago Rapid
Transit Co., 327 Ill. 207, 158 N.E. 380 (1927); Molloy v. Chicago Rapid Transit Co., 335 Ill. 164, 166
N.E. 530 (1929); Pierson v. Lyon & Healy, 243 Ill. 370, 90 N.E. 693 (1909); Sharp v. Brown, 349 Ill.App.
269, 110 N.E.2d 541 (3d Dist.1953); Slovinski v. Beasley, 316 Ill.App. 273, 45 N.E.2d 42 (4th Dist.1942).
While the admonition that “proof beyond a reasonable doubt is not required” has often been given in the
past, that admonition relates to an effort to differentiate between the burdens of proof in criminal and civil
cases. It has no place in civil actions.
See Rikard v. Dover Elevator Co., 126 Ill.App.3d 438, 467 N.E.2d 386, 81 Ill.Dec. 686 (5th
Dist.1984) (reversible error to refuse this instruction).
Section 21, Page 2 of 19
21.02 Burden of Proof on the Issues--Negligence—
One Plaintiff and One Defendant--No
Contributory Negligence
The plaintiff has the burden of proving each of the following propositions:
First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff
as stated to you in these instructions and that in so acting, or failing to act, the defendant was
negligent;
Second, that [the plaintiff was injured] [and] [the plaintiff's property was damaged];
Third, that the negligence of the defendant was a proximate cause of [the injury to the
plaintiff] [and] [the damage to the plaintiff's property].
If you find from your consideration of all the evidence that each of these propositions has
been proved, then your verdict should be for the plaintiff. On the other hand, if you find from
your consideration of all the evidence that any of these propositions has not been proved, then
your verdict should be for the defendant.
Notes on Use
This instruction should be given with IPI 21.01, which defines the phrase “burden of proof” when
there is no issue of comparative negligence.
If the case involves an affirmative defense (other than contributory negligence), a counterclaim,
or third-party complaint, use either IPI 21.03 or 21.04 instead of this instruction. If the case involves not
only an affirmative defense, but also a counterclaim, these basic instructions will have to be modified to
fit the particular case.
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
Comment
See Comment to IPI 20.01.
Section 21, Page 3 of 19
B21.02 Burden of Proof on the Issues--Negligence—
One Plaintiff and One Defendant—
Contributory Negligence an Issue
The plaintiff has the burden of proving each of the following propositions:
First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff
as stated to you in these instructions and that in so acting, or failing to act, the defendant was
negligent;
Second, that [the plaintiff was injured] [and] [the plaintiff's property was damaged];
Third, that the negligence of the defendant was a proximate cause of [the injury to the
plaintiff] [and] [the damage to the plaintiff's property].
If you find from your consideration of all the evidence that any of these propositions has
not been proved, then your verdict shall be for the defendant. On the other hand, if you find from
your consideration of all the evidence that each of these propositions has been proved, then you
must consider the defendant's claim that the plaintiff was contributorily negligent.
As to that claim, the defendant has the burden of proving both of the following
propositions:
A: That the plaintiff acted or failed to act in one of the ways claimed by the defendant as
stated to you in these instructions and that in so acting, or failing to act, the plaintiff was
negligent;
B: That the plaintiff's negligence was a proximate cause of [his injury] [and] [the damage
to his property].
If you find from your consideration of all the evidence that the plaintiff has proved all the
propositions required of the plaintiff and that the defendant has not proved both of the
propositions required of the defendant, then your verdict shall be for the plaintiff and you shall
not reduce plaintiff's damages.
If you find from your consideration of all the evidence that the defendant has proved both
of the propositions required of the defendant, and if you find that the plaintiff's contributory
negligence was more than 50% of the total proximate cause of the injury or damage for which
recovery is sought, then your verdict shall be for the defendant.
If you find from your consideration of all the evidence that the plaintiff has proved all the
propositions required of the plaintiff and that the defendant has proved both of the propositions
required of the defendant, and if you find that the plaintiff's contributory negligence was 50% or
less of the total proximate cause of the injury or damage for which recovery is sought, then your
verdict shall be for the plaintiff and you shall reduce the plaintiff's damages in the manner stated
to you in these instructions.
Section 21, Page 4 of 19
Notes on Use
This instruction is appropriate for negligence cases only.
This instruction must be given with IPI 21.01, which defines the phrase “burden of proof.” IPI
B21.07 has been combined with this instruction, and therefore B21.07 should not be given when this
instruction is used.
If the case involves an affirmative defense (other than contributory negligence), a counterclaim,
or third-party complaint, use IPI B21.03, B21.04, or B21.05 instead of this instruction. If the case
involves not only an affirmative defense, but also a counterclaim, these basic instructions will have to be
modified to fit the particular case.
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
Comment
See Comment to IPI 20.01.
Section 21, Page 5 of 19
B21.02.01 Burden of Proof on The Issues—
Negligence--One Plaintiff and Two or
More Defendants
The plaintiff has the burden of proving each of the following propositions as to each
defendant:
First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff
as stated to you in these instructions and that in so acting, or failing to act, the defendant was
negligent;
Second, that [the plaintiff was injured] [and] [the plaintiff's property was damaged];
Third, that the negligence of the defendant was a proximate cause of [the injury to the
plaintiff] [and] [the damage to the plaintiff's property].
You are to consider these propositions as to each defendant separately.
If you find from your consideration of all the evidence that any of these propositions has
not been proved as to [any one] [or more] [or all] of the defendant[s], then your verdict shall be
for [that] [those] defendant[s]. On the other hand, if you find from your consideration of all the
evidence that all of these propositions have been proved as to [any one] [or more] [or all] of the
defendant[s], then you must consider [that] [those] defendant['s] [s'] claim[s] that the plaintiff
was contributorily negligent.
As to [that] [those] claim[s], [that] [those] defendant[s] [has] [have] the burden of
proving each of the following propositions:
A: That the plaintiff acted or failed to act in one of the ways claimed by the defendant[s]
as stated to you in these instructions and that in so acting, or failing to act, the plaintiff was
negligent;
B: That plaintiff's negligence was a proximate cause of [his injury] [and] [the damage to
his property].
If you find from your consideration of all the evidence that plaintiff has proved all the
propositions required of the plaintiff and that [the] [those] defendant[s] [has] [have] not proved
both of the propositions required of the defendant[s], then your verdict shall be for the plaintiff
as to [that] [those] defendant[s] and you shall not reduce plaintiff's damages.
If you find from your consideration of all the evidence that [the] [those] defendant[s]
[has] [have] proved both of the propositions required of [the] [those] defendant[s], and if you
find that the plaintiff's contributory negligence was greater than 50% of the total proximate cause
of the injury or damage for which recovery is sought, then your verdict shall be for [that] [those]
defendant[s].
Section 21, Page 6 of 19
If you find from your consideration of all the evidence that the plaintiff has proved all the
propositions required of the plaintiff and that [the] [those] defendant[s] [has] [have] proved both
of the propositions required of [the] [those] defendant[s], and if you find that the plaintiff's
contributory negligence was 50% or less of the total proximate cause of the injury or damage for
which recovery is sought, then your verdict shall be for the plaintiff as to [that] [those]
defendant[s] and you will reduce the plaintiff's damages in the manner stated to you in these
instructions.
Notes on Use
This instruction is appropriate for negligence cases only.
This instruction must be given with IPI 21.01, which defines the phrase “burden of proof.” IPI
B21.07 has been combined with this instruction, and therefore B21.07 should not be given when this
instruction is used.
If the case involves an affirmative defense (other than contributory negligence), a counterclaim,
or third-party complaint, use IPI B21.03, B21.04, or B21.05 instead of this instruction. If the case
involves not only an affirmative defense, but also a counterclaim, these basic instructions will have to be
modified to fit the particular case.
Comment
See Comment to IPI 20.01.
Section 21, Page 7 of 19
B21.02.02 Burden of Proof on the Issues--One
Plaintiff and One Defendant—
Negligence and Willful and Wanton
Counts
[1] The plaintiff has the burden of proving each of the following propositions in Count I
of his complaint:
[2] First, that the defendant acted or failed to act in one of the ways claimed by the
plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant
was negligent;
[3] Second, that [the plaintiff was injured] [and] [the plaintiff's property was damaged];
[4] Third, that the negligence of the defendant was a proximate cause of [the injury to the
plaintiff] [and] [the damage to the plaintiff's property].
[5] In order to recover in this action on Count I, the plaintiff must prove all of the above
propositions. If you find from your consideration of all the evidence that all of the propositions
(First, Second, and Third) in Count I have been proved, then you must next consider the
defendant's claim that the plaintiff was contributorily negligent as to Count I.
[6] As to that claim, the defendant has the burden of proving each of the following
propositions:
[7] A: That the plaintiff acted or failed to act in one of the ways claimed by the
defendant as stated to you in these instructions and that in so acting, or failing to act, the plaintiff
was negligent;
[8] B: That the plaintiff's negligence was a proximate cause of [his injury] [and] [the
damage to his property].
[9] If you find from your consideration of all the evidence that the plaintiff has proved
all of the propositions required of the plaintiff (First, Second, and Third) in Count I, and if you
find from your consideration of all the evidence that either of the propositions required of the
defendant (A or B) has not been proved, then your verdict shall be for the plaintiff and you shall
not reduce the plaintiff's damages.
[10] If you find from your consideration of all the evidence that one or more of the above
propositions required of the plaintiff (First, Second, or Third) has not been proved, then your
verdict shall be for the defendant.
[11] If you find from your consideration of all the evidence that the plaintiff has proved
all of the propositions required of the plaintiff (First, Second, and Third) in Count I, and if you
further find from your consideration of all the evidence that the defendant has proved both of the
propositions required of the defendant (A and B) and that the plaintiff's negligence was greater
than 50% of the total proximate cause of the injury or damage for which recovery is sought, then
Section 21, Page 8 of 19
your verdict shall be for the defendant.
[12] If you find from your consideration of all the evidence that the plaintiff has proved
all of the propositions required of the plaintiff (First, Second, and Third) in Count I, and if you
further find from your consideration of all the evidence that the defendant has proved both of the
propositions required of the defendant (A and B) and that the plaintiff's negligence was 50% or
less of the total proximate cause of the injury or damage for which recovery is sought, then your
verdict shall be for the plaintiff and you shall reduce plaintiff's damages in the manner stated to
you in these instructions.
[13] The plaintiff has the burden of proving each of the following propositions in Count
II of his complaint:
[14] First, that the defendant acted or failed to act in one of the ways claimed by the
plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant
was willful and wanton;
[15] Second, that [the plaintiff was injured] [and] [the plaintiff's property was damaged];
[16] Third, that the willful and wanton conduct of the defendant was a proximate cause
of [the injury to the plaintiff] [and] [the damage to the plaintiff's property].
[17] If you find from your consideration of all the evidence that any of these propositions
(First, Second, and Third) has not been proved, then your verdict shall be for the defendant as to
Count II. But if, on the other hand, you find from your consideration of all the evidence that all
the propositions (First, Second, and Third) in Count II have been proved, then you must next
consider the defendant's claim that the plaintiff was contributorily willful and wanton as to Count
II.
[18] As to that claim, defendant has the burden of proving each of the following
propositions:
[19] A: That the plaintiff acted or failed to act in one of the ways claimed by the
defendant as stated to you in these instructions and that in so acting, or failing to act, the plaintiff
was willful and wanton;
[20] B: That the plaintiff's willful and wanton conduct was a proximate cause of [his
injury] [and] [the damage to his property].
[21] If you find from your consideration of all the evidence that plaintiff has proved all
of the propositions required of the plaintiff (First, Second, and Third) in Count II, and if you find
from your consideration of all the evidence that either of the propositions required of the
defendant (A or B) has not been proved, then your verdict shall be for the plaintiff [and you shall
not reduce the plaintiff's damages].
Section 21, Page 9 of 19
[Alternative A]
[22]. [If you find from your consideration of all the evidence that the plaintiff has proved
all of the propositions required of the plaintiff (First, Second, and Third) in Count II, and if you
further find from your consideration of all the evidence that the defendant has proved both of the
propositions required of the defendant (A and B) and that the plaintiff's willful and wanton
conduct was greater than 50% of the total proximate cause of the injury or damage for which
recovery is sought, then your verdict shall be for the defendant.]
[23]. [If you find from your consideration of all the evidence that the plaintiff has proved
all of the propositions required of the plaintiff (First, Second, and Third) in Count II, and if you
further find from your consideration of all the evidence that the defendant has proved both of the
propositions required of the defendant (A and B) and that the plaintiff's willful and wanton
conduct was 50% or less of the total proximate cause of the injury or damage for which recovery
is sought, then your verdict shall be for the plaintiff and you shall reduce plaintiff's damages in
the manner stated to you in these instructions.]
[Alternative B]
[24] [If you find from your consideration of all the evidence that the defendant has
proved both of the propositions required of the defendant (A and B), then your verdict shall be
for the defendant on Count II.]
Notes on Use
This instruction must be given with IPI 21.01, which defines the phrase “burden of proof.” IPI
B21.07 has been combined with this instruction, and therefore B21.07 should not be given when this
instruction is used.
Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171 (1995), held
that a plaintiff's contributory negligence is a damage-reducing factor if the defendant's willful and wanton
conduct was “reckless,” but not if it was “intentional.” Therefore, if plaintiff's only claim is that
defendant's conduct was the intentional form of willful and wanton, this instruction should not be used. If
plaintiff claims intentional willful and wanton conduct in addition to other claims, this instruction should
be modified accordingly.
Since the adoption of comparative fault, no Illinois case has yet decided the effect of a plaintiff's
contributory willful and wanton conduct. If the trial court rules that the plaintiff's contributory willful and
wanton conduct may be a damage reducing factor, then use Alternative A (paragraphs [22] and [23]). If
the trial court determines that the plaintiff's contributory willful and wanton conduct may be a complete
bar to the plaintiff's recovery, then use Alternative B (paragraph [24]).
If the case involves an affirmative defense (other than contributory negligence), a counterclaim,
or third-party complaint, use IPI B21.03, B21.04, or B21.05 instead of this instruction. If the case
involves not only an affirmative defense, but also a counterclaim, these basic instructions will have to be
modified to fit the particular case.
In a wrongful death or survival action, substitute “decedent” or decedent's name in place
of “plaintiff” whenever appropriate.
Section 21, Page 10 of 19
B21.03 Burden of Proof on the Issues--Affirmative Defenses
The plaintiff has the burden of proving each of the following propositions:
First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff
as stated to you in these instructions and that in so acting, or failing to act, the defendant was
negligent;
Second, that [the plaintiff was injured] [and] [the plaintiff's property was damaged];
Third, that the negligence of the defendant was a proximate cause of [the injury to the
plaintiff] [and] [the damage to the plaintiff's property].
In this case defendant has asserted [the affirmative defense that] [certain affirmative
defenses that]:
[Concisely state affirmative defenses.]
The defendant has the burden of proving [this] [these] affirmative defense[s].
If you find from your consideration of all the evidence, that any one of the propositions
the plaintiff is required to prove has not been proved, [or that (any one of) the defendant's
affirmative defense(s) has been proved,] then your verdict shall be for the defendant. If, on the
other hand, you find from your consideration of all the evidence that each of the propositions
required of the plaintiff has been proved and that [none of] the defendant's affirmative defense[s]
has [not] been proved, then you must consider the defendant's claim that the plaintiff was
contributorily negligent.
As to that claim, defendant has the burden of proving each of the following propositions:
A: That the plaintiff acted or failed to act in one of the ways claimed by the defendant as
stated to you in these instructions and that in so acting, or failing to act, the plaintiff was
negligent;
B: That the plaintiff's negligence was a proximate cause of [his injury] [and] [the damage
to his property].
If you find from your consideration of all the evidence that the plaintiff has proved all of
the propositions required of him and that the defendant has not proved both of the propositions
required of him, then your verdict shall be for the plaintiff and you shall not reduce the plaintiff's
damages.
If you find from your consideration of all the evidence that the plaintiff has proved all of
the propositions required of him and that the defendant has proved both of the propositions
required of him, and if you find that the plaintiff's contributory negligence was greater than 50%
Section 21, Page 11 of 19
of the total proximate cause of the injury or damage for which recovery is sought, then your
verdict shall be for the defendant.
If you find from your consideration of all the evidence that the plaintiff has proved all the
propositions required of him and that the defendant has proved both of the propositions required
of him, and if you find that the plaintiff's contributory negligence was 50% or less of the total
proximate cause of the injury or damage for which recovery is sought, then your verdict shall be
for the plaintiff and you shall reduce the plaintiff's damages in the manner stated to you in these
instructions.
Notes on Use
See Notes on Use to IPI B21.02.
This instruction must be given with IPI 21.01, which defines the phrase “burden of proof.” IPI
B21.07 has been combined with this instruction, and therefore B21.07 should not be given when this
instruction is used.
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
Comment
See Comment to IPI 20.01.
Section 21, Page 12 of 19
B21.04. Burden of Proof--Counterclaim--Negligence Only—
One Plaintiff and One Defendant
[1] In this suit, there is not only the complaint of the plaintiff but also a counterclaim by
the defendant.
[2] Because there is a counterclaim in this case you shall reach one of four results.
[3] First, you may find for the plaintiff on his complaint and against the defendant on his
counterclaim.
[4] Second, you may find for the defendant on his counterclaim and against the plaintiff
on his complaint.
[5] Third, you may find against both, the plaintiff on his complaint and the defendant on
his counterclaim.
[6] Fourth, you may find for both, the plaintiff on his complaint and the defendant on his
counterclaim.
[7] In order for the plaintiff to recover, he has the burden of proving each of the
following propositions:
[Insert here points “First” through “Third” of IPI B21.02.]
[8] If you find from your consideration of all the evidence that any of these propositions
has not been proved, then your verdict shall be for the defendant as to plaintiff's complaint. On
the other hand, if you find from your consideration of all the evidence that all of these
propositions have been proved, then you must consider defendant's claim that plaintiff was
contributorily negligent.
[9] As to that claim, defendant has the burden of proving each of the following
propositions:
[10] A: That the plaintiff acted or failed to act in one of the ways claimed by the
defendant as stated to you in these instructions and that in so acting, or failing to act, the plaintiff
was contributorily negligent;
[11] B That plaintiff's contributory negligence was a proximate cause of [his injury]
[and] [the damage to his property].
[12] If you find from your consideration of all the evidence that the plaintiff has proved
all the propositions required of the plaintiff and that defendant has not proved both of the
propositions required of the defendant, then your verdict should be for the plaintiff and you shall
not reduce the plaintiff's damages.
Section 21, Page 13 of 19
[13] If you find from your consideration of all the evidence that the plaintiff has proved
all the propositions required of the plaintiff and that the defendant has proved both of the
propositions required of the defendant, and if you find that the plaintiff's contributory negligence
was greater than 50% of the total proximate cause of the injury or damage for which recovery is
sought, then your verdict shall be for the defendant.
[14] Finally, if you find from your consideration of all the evidence that plaintiff has
proved all the propositions required of the plaintiff and that the defendant has proved both of the
propositions required of the defendant, and if you find that plaintiff's contributory negligence
was 50% or less of the total proximate cause of the injury or damage for which recovery is
sought, then your verdict shall be for the plaintiff and you shall reduce the plaintiff's damages in
the manner stated to you in these instructions.
[15] In order for the defendant to recover on his counterclaim, the defendant has the
burden of proving each of the following propositions:
[Here adapt points “First” through “Third” of IPI B21.02 to the allegations in
the defendant's counterclaim.]
[16] If you find from your consideration of all the evidence that any of these propositions
has not been proved, then your verdict should be for the plaintiff as to the defendant's
counterclaim. On the other hand, if you find from your consideration of all the evidence that all
of these propositions have been proved, then you must consider the plaintiff's claim that the
defendant was contributorily negligent.
[17] As to that claim, the plaintiff has the burden of proving each of the following
propositions:
[18] A: That the defendant acted or failed to act in one of the ways claimed by the
plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant
was contributorily negligent;
[19] B: That defendant's contributory negligence was a proximate cause of [his injury]
[and] [the damage to his property].
[20] If you find from your consideration of all the evidence that the defendant has proved
all the propositions required of the defendant and that the plaintiff has not proved both of the
propositions required of the plaintiff, then your verdict should be for the defendant on the
counterclaim and you will not reduce the defendant's damages.
[21] If you find from your consideration of all the evidence that the defendant has proved
all the propositions required of the defendant and that the plaintiff has proved both of the
propositions required of the plaintiff, and if you find that the defendant's contributory negligence
was greater than 50% of the total proximate cause of the injury or damage for which recovery is
sought, then your verdict should be for the plaintiff on the defendant's counterclaim.
[22] Finally, if you find from your consideration of all the evidence that the defendant
Section 21, Page 14 of 19
has proved all the propositions required of the defendant and that the plaintiff has proved both of
the propositions required of the plaintiff, and if you find that the defendant's contributory
negligence was 50% or less of the total proximate cause of the injury or damage for which
recovery is sought, then your verdict shall be for the defendant on the counterclaim and you shall
reduce the defendant's damages in the manner stated to you in these instructions.
Notes on Use
This instruction applies only to a negligence complaint. It does not apply if there is any willful
and wanton allegation. If there is a willful and wanton claim, the instruction must be modified along the
lines of B21.02.02.
This instruction must be given with IPI 21.01, which defines the phrase “burden of proof.” IPI
B21.07 has been combined with this instruction, and therefore B21.07 should not be given when this
instruction is used.
If the complaint is no longer in the case and only the counterclaim is submitted to the jury, then
the instruction should not be used and IPI B21.02 should be given with appropriate modifications,
accompanied by IPI 21.01 defining “burden of proof.”
With the adoption of comparative negligence, it is now possible that both the plaintiff and the
defendant may recover.
Consideration should be given to using the parties' names or other description instead of the terms
“plaintiff” and “defendant.” See Introduction.
If the case involves not only a counterclaim but also an affirmative defense other than
contributory negligence, this basic instruction will have to be modified.
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
Comment
A plaintiff's burden of proving the issues raised by the complaint cannot be distinguished from a
defendant's burden of proving the issues made by the counterclaim. The two pleadings are of equal
dignity in that they embody separate causes of action and must be resolved by verdicts. It is necessary,
therefore, to instruct separately as to the complaint and the counterclaim. The form of this instruction has
frequently been approved. North Chicago St. R.R. v. Boyd, 156 Ill. 416, 419; 40 N.E. 955, 956 (1895);
Paulissen v. Jonas, 311 Ill.App. 346, 348; 35 N.E.2d 958, 959 (2d Dist.1941).
See Comment to IPI 20.01.
Section 21, Page 15 of 19
B21.05 Burden of Proof--Third-Party Complaint—
Negligence Only
[1] In this suit there is not only the complaint of [plaintiff's name] but also the complaint
of [name of third-party plaintiff].
[2] In order for [plaintiff's name] to recover, he has the burden of proving each of the
following propositions:
[Insert here points “First” through “Third” of IPI B21.02.]
[3] If you find from your consideration of all the evidence that any of these propositions
has not been proved, then your verdict shall be for [defendant's name] as to [plaintiff's name]'s
complaint. On the other hand, if you find from your consideration of all the evidence that all of
these propositions have been proved, then you must consider [defendant's name]'s claim that
[plaintiff's name] was contributorily negligent.
[4] As to that claim, [defendant's name] has the burden of proving both of the following
propositions:
[5]A: That [plaintiff's name] acted or failed to act in one or more of the ways claimed by
[defendant's name] as stated to you in these instructions, and that in so acting, or failing to act,
[plaintiff's name] was contributorily negligent;
[6]B: That [plaintiff's name]'s contributory negligence was a proximate cause of [his
injury] [and] [the damage to his property].
[7] If you find from your consideration of all the evidence that [plaintiff's name] has
proved all the propositions required of him and that [defendant's name] has not proved both of
the propositions required of him, then your verdict shall be for [plaintiff's name] and you shall
not reduce [plaintiff's name]'s damages.
[8] If you find from your consideration of all the evidence that [plaintiff's name] has
proved all the propositions required of him and that [defendant's name] has proved both of the
propositions required of him, and if you find that [plaintiff's name]'s contributory negligence was
greater than 50% of the total proximate cause of the injury or damage for which recovery is
sought, then your verdict shall be for [defendant's name] as to [plaintiff's name]'s complaint.
[9] If you find from your consideration of all the evidence that [plaintiff's name] has
proved all the propositions required of him and that [defendant's name] has proved both of the
propositions required of him, and if you find that [plaintiff's name]'s contributory negligence was
50% or less of the total proximate cause of the injury or damage for which recovery is sought,
then your verdict shall be for [plaintiff's name] as to [plaintiff's name]'s complaint, and you shall
reduce [plaintiff's name]'s damages in the manner stated to you in these instructions.
[10] In order for [third party plaintiff's name] to recover on his complaint, he has the
burden of proving each of the following propositions:
Section 21, Page 16 of 19
[Here adapt points “First” through “Third” of IPI B21.02.]
[11] If you find from your consideration of all the evidence that any of these
propositions has not been proved, then your verdict shall be for [third party defendant's name] as
to [third party plaintiff's name]'s complaint. On the other hand, if you find from your
consideration of all the evidence that all of these propositions have been proved, then you must
consider [third party defendant's name]'s claim that [third party plaintiff's name] was
contributorily negligent.
[12] As to that claim, [third party defendant's name] has the burden of proving both of
the following propositions:
[13]A: That [third party plaintiff's name] acted or failed to act in one of the ways claimed
by [third party defendant's name] as stated to you in these instructions and that in so acting, or
failing to act, [third party plaintiff's name] was contributorily negligent;
[14]B: That [third party plaintiff's name]'s contributory negligence was a proximate
cause of [his injury] [and] [the damages to his property].
[15] If you find from your consideration of all the evidence that [third party plaintiff's
name] has proved all of the propositions required of him and that [third party defendant's name]
has not proved both of the propositions required of him, then your verdict shall be for [third party
plaintiff's name] and you shall not reduce [third party plaintiff's name]'s damages.
[16] If you find from your consideration of all the evidence that [third party plaintiff's
name] has proved all the propositions required of him and that [third party defendant's name] has
proved both of the propositions required of him, and if you find that [third party plaintiff's
name]'s contributory negligence was greater than 50% of the total proximate cause of the injury
or damage for which recovery is sought, then your verdict shall be for [third party defendant's
name] as to [third party plaintiff's name]'s complaint.
[17] If you find from your consideration of all the evidence that [third party plaintiff's
name] has proved all the propositions required of him and that [third party defendant's name] has
proved both of the propositions required of him, and if you find that [third party plaintiff's
name]'s contributory negligence was 50% or less of the total proximate cause of the injury or
damage for which recovery is sought, then your verdict shall be for [third party plaintiff's name]
as to [third party plaintiff's name]'s complaint, and you shall reduce [third party plaintiff's
name]'s damages in the manner stated to you in these instructions.
Notes on Use
This instruction applies only to a negligence complaint. It does not apply if there is any willful
and wanton allegation. If there is a willful and wanton claim, this instruction must be modified. See IPI
B21.02.02.
This instruction must be given with IPI 21.01, which defines the phrase “burden of proof.” IPI
Section 21, Page 17 of 19
B21.07 has been combined with this instruction, and therefore B21.07 should not be given when this
instruction is used.
If the case involves not only a complaint and third party complaint, but also affirmative defenses
or a counterclaim, this basic instruction must be modified.
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
Section 21, Page 18 of 19
B21.07 Burden of Proof on the Issue of Contributory Negligence
If you find in favor of the plaintiff and against [the defendant] [one or more defendants],
you must then consider defendant's claim that the plaintiff was contributorily negligent.
As to that claim, the defendant has the burden of proving both of the following
propositions:
A: That the plaintiff acted or failed to act in one of the ways claimed by the defendant as
stated to you in these instructions and that in so acting, or failing to act, the plaintiff was
negligent;
B:. That the plaintiff's negligence was a proximate cause of [his injury] [and] [the
damage to his property].
If you find from your consideration of all the evidence that the plaintiff has proved all of
the propositions required of him and that the defendant has not proved both of the propositions
required of him, then your verdict shall be for the plaintiff and you shall not reduce the plaintiff's
damages.
If you find from your consideration of all the evidence that the plaintiff has proved all of
the propositions required of him and that the defendant has proved both of the propositions
required of him, and if you find that the plaintiff's contributory negligence was greater than 50%
of the total proximate cause of the injury or damage for which recovery is sought, then your
verdict shall be for the defendant.
If you find from your consideration of all the evidence that the plaintiff has proved all of
the propositions required of him and that the defendant has proved both of the propositions
required of him, and if you find that the plaintiff's contributory negligence was 50% or less of the
total proximate cause of the injury or damage for which recovery is sought, then your verdict
shall be for the plaintiff and you shall reduce the plaintiff's damages in the manner stated to you
in these instructions.
Notes on Use
This instruction applies only to a negligence complaint. It does not apply if there is any willful
and wanton allegation. In that case, use IPI B21.02.02.
This instruction has been carried forward from the previous edition and modified as required by
P.A. 84-1431 effective for causes of action accruing on and after November 25, 1986. See 735 ILCS 5/21107.1 (1994). However, this instruction will rarely be necessary, since it has been incorporated into the
other burden of proof instructions above. It is included here for two reasons. First, it supersedes IPI 21.07,
which is no longer accurate for cases based on causes of action accruing on and after November 25, 1986.
In such cases IPI 21.07 should not be used. Second, it may be used in conjunction with a burden of proof
instruction other than those suggested in this chapter in cases where such an instruction is proper.
However, in those cases this instruction ordinarily should be incorporated into the burden of proof
instruction to which it relates.
Section 21, Page 19 of 19
This language is appropriate in cases in which defendant, in his answer or other appropriate
pleading (735 ILCS 5/2-610(d) (1994)), has raised the issue of the plaintiff's contributory negligence and
where there is sufficient evidence of the plaintiff's contributory negligence to make a submissible issue
for the jury. Casey v. Baseden, 111 Ill.2d 341, 344; 490 N.E.2d 4, 5; 95 Ill.Dec. 531, 532 (1986) (in a
comparative negligence action, an instruction requiring defendant to prove plaintiff's negligence is
proper).
In a wrongful death or survival action, substitute “decedent” or decedent's name in place of
“plaintiff” whenever appropriate.
Section 22, Page 1 of 7
22.00
BURDEN OF PROOF--RES IPSA LOQUITUR
22.01 Res Ipsa Loquitur--Burden Of Proof--No Contributory Negligence
[Under Count ____,] The plaintiff has the burden of proving each of the following
propositions:
First: That [the plaintiff was injured] [or] [the plaintiff's property was damaged.]
Second: That the [injury [damage] was received from a [name of instrumentality, e.g., a
folding chair] which [was] [had been] under the defendant's [control] [management].
Third: That in the normal course of events, the [injury] [damage] would not have
occurred if the defendant had used ordinary care while the [instrumentality] was under his
[control] [management].
If you find that each of these propositions has been proved, the law permits you to infer
from them that the defendant was negligent with respect to the [instrumentality] while it was
under his control or management.
If you do draw such an inference, and if you further find that the plaintiff's injury was
proximately caused by that negligence, your verdict shall be for the plaintiff under this Count.
On the other hand, if you find that any of these propositions has not been proved, or if you find
that the defendant used ordinary care for the safety of the plaintiff in his [control] [management]
of the [instrumentality], or if you find that the defendant's negligence, if any, was not a
proximate cause of the plaintiff's [injury] [damages], then your verdict shall be for the defendant
under this Count.
Notes on Use
“Highest degree of care consistent with the type of vehicle used and the practical operation of its
business as common carrier by (rail)” rather than “ordinary care” should be used when the case is one
involving a common carrier. See IPI 100.02.
Fill in the blanks with the name of the instrumentality under the defendant's management.
Use “had been” in the second element if the instrumentality was not under the defendant's control
at the time of the injury.
In professional negligence cases, use IPI 105.09.
Comment
The elements now necessary to establish a res ipsa loquitur case are:
Section 22, Page 2 of 7
1. The result must be caused by an agency or instrumentality which was within the defendant's
control or management at the time of the injury or when the negligence, if any, occurred.
2. The result must be one which normally does not occur without negligence in the control or
management of the agency or instrumentality.
The former requirement of proving the plaintiff's due care has been eliminated with the adoption
of comparative negligence in Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52 Ill.Dec. 23 (1981); Dyback v.
Weber, 114 Ill.2d 232, 500 N.E.2d 8, 102 Ill.Dec. 386 (1986); Daniels v. Standard Oil Realty Corp., 145
Ill.App.3d 363, 495 N.E.2d 1019, 99 Ill.Dec. 284 (1st Dist.1986); Mileur v. Briggerman, 110 Ill.App.3d
721, 442 N.E.2d 1356, 66 Ill.Dec. 443 (5th Dist.1982).
The agency or instrumentality which causes the injury need not be in the control or management
of the defendant at the time the injury occurs. It is sufficient if the instrumentality has been in the control
of the defendant at a time prior to the injury and there is insufficient evidence of an intervening cause to
explain the occurrence since the instrumentality left the defendant's control. Cobb v. Marshall Field &
Co., 22 Ill.App.2d 143, 152; 159 N.E.2d 520, 524 (1st Dist.1959).
The element “Second” uses the terms “control” and “management” rather than “exclusive
control.” The Illinois Supreme Court recognizes that it is not always necessary that the instrumentality
have been in the “exclusive” control of the defendant at the relevant time. Lynch v. Precision Mach. Shop,
Ltd., 93 Ill.2d 266, 443 N.E.2d 569, 66 Ill.Dec. 643 (1982). The standard of control is a flexible one-sufficient control, under the facts of each case, to infer that it was defendant who was responsible for the
negligence, if any, that caused the injury. Douglas v. Board of Education, 127 Ill.App.3d 79, 468 N.E.2d
473, 82 Ill.Dec. 211 (1st Dist.1984). It is not necessary that the defendant have had actual physical control
if the defendant at all relevant times had a duty to maintain or supervise the instrumentality in question.
Lynch, supra; Metz v. Central Ill. Elec. & Gas Co., 32 Ill.2d 446, 207 N.E.2d 305 (1965).
Whether the maxim, res ipsa loquitur, may be applied in a given case is a question of law, but
whether the presumption arising when the maxim has been applied has been overcome by proof is a
question of fact. McCleod v. Nel-Co Corp., 350 Ill.App. 216, 112 N.E.2d 501 (2d Dist.1953); Roberts v.
Economy Cabs, 285 Ill.App. 424, 2 N.E.2d 128 (4th Dist.1936).
The presumption of negligence is not a true presumption. It is an instructed inference of fact and
is circumstantial evidence to be considered by the jury. It does not vanish when defendant introduces
evidence of his due care in managing the injuring instrumentality, but remains in the case. The jury must
weigh the circumstantial evidence of the plaintiff against the direct evidence of the defendant. Cobb v.
Marshall Field & Co., 22 Ill.App.2d 143, 152; 159 N.E.2d 520, 524 (1st Dist.1959); Bornstein v.
Metropolitan Bottling Co., 26 N.J. 263, 270; 139 A.2d 404, 409 (1958); McCleod v. Nel-Co Corp., 350
Ill.App. 216, 112 N.E.2d 501 (2d Dist.1953); McCormick's Handbook of the Law of Evidence, §§309, 311
(E. Cleary, ed., 3d ed. 1984). In Dyback v. Weber, 114 Ill.2d 232, 500 N.E.2d 8, 102 Ill.Dec. 386 (1986),
the Court stated:
A plaintiff need not conclusively prove all the elements of res ipsa loquitur in order to invoke the
doctrine. He need only present evidence reasonably showing that elements exist that allow an
inference that the occurrence is one that ordinarily does not occur without negligence. [Citation.]
The inference that there was negligence does not disappear if the defendant simply presents direct
evidence to the contrary, but the defendant's evidence will be considered with all of the other
evidence in the case.
The application of the doctrine has been extended to medical malpractice and hospital negligence
Section 22, Page 3 of 7
cases. Edgar County Bank & Trust Co. v. Paris Hosp., Inc., 57 Ill.2d 298, 312 N.E.2d 259 (1974); Spidle
v. Steward, 79 Ill.2d 1, 402 N.E.2d 216, 37 Ill.Dec. 326 (1980); McMillen v. Carlinville Area Hosp., 114
Ill.App.3d 732, 450 N.E.2d 5, 70 Ill.Dec. 792 (4th Dist.1983). In such cases, however, a different form of
the instruction is proper. See IPI 105.09.
Section 22, Page 4 of 7
B22.01 Res Ipsa Loquitur--Burden Of Proof--Contributory Negligence
[Under Count ____,] The plaintiff has the burden of proving each of the following
propositions:
First: That [the plaintiff was injured] [or] [the plaintiff's property was damaged.]
Second: That the [injury] [damage] was received from a [name of instrumentality, e.g., a
folding chair] which [was] [had been] under the defendant's [control] [management].
Third: That in the normal course of events, the [injury] [damage] would not have
occurred if the defendant had used ordinary care while the [instrumentality] was under his
[control] [management].
If you find that each of these propositions has been proved, the law permits you to infer
from them that the defendant was negligent with respect to the [instrumentality] while it was
under his control or management.
If you do draw such an inference, and if you further find that the plaintiff's injury was
proximately caused by that negligence, you must next consider the defendant's claim that the
plaintiff was contributorily negligent.
As to that claim, the defendant has the burden of proving each of the following
propositions:
A: That the plaintiff acted or failed to act in one of the ways claimed by the defendant as
stated to you in these instructions and that in so acting, or failing to act, the plaintiff was
negligent;
B: That the plaintiff's negligence was a proximate cause of [his injury] [and] [the damage
to his property].
If you find from your consideration of all the evidence that the defendant has not proved
both of the propositions required of him, then your verdict shall be for the plaintiff and you shall
not reduce the plaintiff's damages.
If you find from your consideration of all the evidence that the defendant has proved both
of the propositions required of him, and if you find that the plaintiff's contributory negligence
was greater than 50% of the total proximate cause of the injury or damage for which recovery is
sought, then your verdict shall be for the defendant.
If you find from your consideration of all the evidence that the defendant has proved both
of the propositions required of him, and if you find that the plaintiff's contributory negligence
was 50% or less of the total proximate cause of the injury or damage for which recovery is
sought, then your verdict shall be for the plaintiff and you shall reduce the plaintiff's damages in
the manner stated to you in these instructions.
Section 22, Page 5 of 7
On the other hand, if you find that any of the propositions required of the plaintiff has not
been proved, or if you find that the defendant used ordinary care for the safety of the plaintiff in
his [control] [management] of the [instrumentality], or if you find that the defendant's
negligence, if any, was not a proximate cause of the plaintiff's [injury] [damages], then your
verdict shall be for the defendant under this Count.
Notes on Use
This instruction has been modified to meet the requirements of P.A. 84-1431 effective for causes
of action accruing on and after November 25, 1986. See 735 ILCS 5/2-1107.1 (1994). For causes of
action accruing prior to November 25, 1986, use IPI 22.01 in lieu of this instruction. IPI 22.01 may be
used if there is no issue as to the plaintiff's contributory negligence.
Unlike the old version of IPI 22.01, this instruction is now a complete burden of proof instruction.
This instruction must be given with IPI 21.01, which defines the phrase “burden of proof.” IPI B21.07 has
been combined with this instruction, and therefore B21.07 should not be given when this instruction is
used.
“Highest degree of care consistent with the type of vehicle used and the practical operation of its
business as common carrier by (rail)” rather than “ordinary care” should be used when the case is one
involving a common carrier. See IPI 100.02.
Fill in the blanks with the name of the instrumentality under the defendant's management.
Use “had been” in the second element if the instrumentality was not under the defendant's control
at the time of the injury.
In professional negligence cases, use IPI 105.09.
Comment
The elements now necessary to establish a res ipsa loquitur case are:
1. The result must be caused by an agency or instrumentality which was within the control or
management of the defendant at the time of the injury or when the negligence, if any, occurred.
2. The result must be one which normally does not occur without negligence in the control or
management of the agency or instrumentality.
The former requirement of proving the plaintiff's due care has been eliminated with the adoption
of comparative negligence in Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52 Ill.Dec. 23 (1981); Dyback v.
Weber, 114 Ill.2d 232, 500 N.E.2d 8, 102 Ill.Dec. 386 (1986); Daniels v. Standard Oil Realty Corp., 145
Ill.App.3d 363, 495 N.E.2d 1019, 99 Ill.Dec. 284 (1st Dist.1986); Mileur v. Briggerman, 110 Ill.App.3d
721, 442 N.E.2d 1356, 66 Ill.Dec. 443 (5th Dist.1982).
The agency or instrumentality which causes the injury need not be in the control or management
of the defendant at the time the injury occurs. It is sufficient if the instrumentality has been in the control
of the defendant at a time prior to the injury and there is insufficient evidence of an intervening cause to
explain the occurrence since the instrumentality left the defendant's control. Cobb v. Marshall Field &
Section 22, Page 6 of 7
Co., 22 Ill.App.2d 143, 152; 159 N.E.2d 520, 524 (1st Dist.1959).
The element “Second” uses the terms “control” and “management” rather than “exclusive
control.” The Illinois Supreme Court recognizes that it is not always necessary that the instrumentality
have been in the “exclusive” control of the defendant at the relevant time. Lynch v. Precision Machine
Shop, Ltd., 93 Ill.2d 266, 443 N.E.2d 569, 66 Ill.Dec. 643 (1982). The standard of control is a flexible
one--sufficient control, under the facts of each case, to infer that it was defendant who was responsible for
the negligence, if any, that caused the injury. Douglas v. Board of Education, 127 Ill.App.3d 79, 468
N.E.2d 473, 82 Ill.Dec. 211 (1st Dist.1984). It is not necessary that the defendant have had actual physical
control if the defendant at all relevant times had a duty to maintain or supervise the instrumentality in
question. Lynch, supra; Metz v. Central Ill. Elec. & Gas Co., 32 Ill.2d 446, 207 N.E.2d 305 (1965).
Whether the maxim, res ipsa loquitur, may be applied in a given case is a question of law, but
whether the presumption arising when the maxim has been applied has been overcome by proof is a
question of fact. McCleod v. Nel-Co Corp., 350 Ill.App. 216, 112 N.E.2d 501 (2d Dist.1953); Roberts v.
Economy Cabs, 285 Ill.App. 424, 2 N.E.2d 128 (4th Dist.1936).
The presumption of negligence is not a true presumption. It is an instructed inference of fact and
is circumstantial evidence to be considered by the jury. It does not vanish when defendant introduces
evidence of his due care in managing the injuring instrumentality, but remains in the case. The jury must
weigh the circumstantial evidence of the plaintiff against the direct evidence of the defendant. Cobb v.
Marshall Field & Co., 22 Ill.App.2d 143, 152; 159 N.E.2d 520, 524 (1st Dist.1959); Bornstein v.
Metropolitan Bottling Co., 26 N.J. 263, 269-270; 139 A.2d 404, 409 (1958); McCleod v. Nel-Co Corp.,
350 Ill.App. 216, 112 N.E.2d 501 (2d Dist.1953); McCormick, Evidence, §§342, 344 (3d ed. 1984). In
Dyback v. Weber, 114 Ill.2d 232, 500 N.E.2d 8, 102 Ill.Dec. 386 (1986), the Court stated:
A plaintiff need not conclusively prove all the elements of res ipsa loquitur in order to invoke the
doctrine. He need only present evidence reasonably showing that elements exist that allow an
inference that the occurrence is one that ordinarily does not occur without negligence. [Citation.]
The inference that there was negligence does not disappear if the defendant simply presents direct
evidence to the contrary, but the defendant's evidence will be considered with all of the other
evidence in the case.
The application of the doctrine has been extended to medical malpractice and hospital negligence
cases. Edgar County Bank & Trust Co. v. Paris Hosp., Inc., 57 Ill.2d 298, 312 N.E.2d 259 (1974); Spidle
v. Steward, 79 Ill.2d 1, 402 N.E.2d 216, 37 Ill.Dec. 326 (1980); McMillen v. Carlinville Area Hosp., 114
Ill.App.3d 732, 450 N.E.2d 5, 70 Ill.Dec. 792 (4th Dist.1983). In such cases, however, a different form of
the instruction is proper. See IPI 105.09.
Section 22, Page 7 of 7
22.02 Res Ipsa Loquitur and Specific Negligence As Alternative Theories of Recovery
Under our law [a plaintiff] [[plaintiff's name]] may attempt to prove in either of two ways
that [a defendant] [[defendant's name]] was negligent. He may prove either what [a defendant]
[defendant's name] actually did or did not do, or, on the other hand, he may attempt to prove the
following propositions: [[complete this instruction by using IPI B22.01, omitting the first
sentence of that instruction.]]
Notes on Use
If the court allows both specific negligence and res ipsa loquitur to go to the jury, this instruction
should be used in lieu of IPI B22.01.
Comment
“If there is an inference of general negligence and proof of specific negligence, but
reasonable men may differ as to the effect of this evidence, it should then be for a jury to
determine under which theory, if any, the plaintiff should prevail.” Erckman v. Northern Ill. Gas
Co., 61 Ill.App.2d 137, 149-150; 210 N.E.2d 42, 47, 48 (2d Dist.1965). Accord: Coffey v.
Brodsky, 165 Ill.App.3d 14, 518 N.E.2d 638, 116 Ill.Dec. 16 (4th Dist.1987); Smith v. General
Paving Co., 24 Ill.App.3d 858, 321 N.E.2d 689 (3d Dist.1974); Freer v. Rowden, 108 Ill.App.2d
335, 341-342; 247 N.E.2d 635, 638-639 (4th Dist.1969); Decatur & Macon County Hosp. Ass'n
v. Erie City Iron Works, 75 Ill.App.2d 144, 160; 220 N.E.2d 590, 598 (4th Dist.1966); Turner v.
Wallace, 71 Ill.App.2d 160, 167-168; 217 N.E.2d 11, 14 (3d Dist.1966).
Section 23, Page 1 of 2
23.00
ADMITTED LIABILITY
23.01A Admitted Fault Only
The defendant admits that [he] [she] [it] [was negligent] [produced an unreasonably
dangerous product] [other fault conduct]. You need only decide whether that [negligence]
[unreasonably dangerous product] [fault conduct] was a proximate cause of [injuries] [damages]
to the plaintiff, and, if so, what amount of money will reasonably and fairly compensate the
plaintiff for those [injuries] [damages].
Section 23, Page 2 of 2
23.01B Admitted Fault and Causation
The defendant admits that [he] [she] [it] [was negligent] [produced an unreasonably
dangerous product] [other fault conduct]. The defendant also admits that [his] [her] [its]
[negligence] [unreasonably dangerous product] [other fault conduct] was a proximate cause of
[injuries] [damage] to the plaintiff. You need only decide what amount of money will reasonably
and fairly compensate the plaintiff for those [injuries] [damages].
Notes on Use
Permission to publish granted in 2003.
These two instructions replace the former 23.01 titled “Admitted Liability.” That concept can
mean different things to different people. Unless the instructions clearly state what is admitted and what
must be proved, there is a potential for confusion. Cf. Lawler v. MacDuff, 335 Ill.App.3d 144, 268 Ill.Dec.
697, 779 N.E.2d 311 (2d Dist.2002).
The general and cautionary instruction, 1.03A or 1.03B, should not be repeated at the end of the
case. Either 23.01A or 23.01B should be used, depending on the scope of the admission of fault.
If a directed verdict has been entered on one or more claims, use 3.06.
Section 30, Page 1 of 36
30.00
DAMAGE INSTRUCTIONS
INTRODUCTION
The following sets of instructions relate to damages for injury to person or property,
wrongful death, and injury to a spouse. Each series consists of a basic instruction stating that if
the defendant is found liable the jury is to award damages as proved by the evidence. Following
the basic instruction is a number of phrases setting out the various elements of damages. These
elements are to be inserted in the basic instruction when the evidence justifies their use.
Panepinto v. Morrison Hotel, Inc., 71 Ill.App.2d 319, 338; 218 N.E.2d 880, 890 (1st Dist.1966).
The omission of an element means the element is not to be considered by the jury. A separate
instruction to disregard that element is not required. Buckler v. Sinclair Ref. Co., 68 Ill.App.2d
283, 292-293; 216 N.E.2d 14, 19 (5th Dist.1966).
These instructions contemplate a case involving a single plaintiff and defendant.
This type of instruction eliminates any need for reiteration of the words, “if any,”
following each element of damages. No less than ten “if anys” appeared in a typical instruction
used before IPI in Krichbaum v. Chicago City Ry. Co., 207 Ill.App. 44 (1st Dist.1918). The
origin of the phrase is probably Martin v. Johnson, 89 Ill. 537, 538 (1878), in which the jurors
were instructed that they were the sole judges of the amount of damages which the plaintiff
should recover without being told that the damages should be determined from the evidence
introduced at the trial. The Court specifically held that it “was the province of the jury to
determine the damages plaintiff should recover, if any.” The general phraseology of the
instruction suggested in the Krichbaum decision requires that the “if any” ending be repeated
throughout the body of the charge.
The first paragraph of IPI 30.01, however, specifically informs the jurors that they may
compensate the plaintiff only for “any” of the elements of damages proved, and the concluding
paragraph of this instruction specifically tells the triers of the facts that whether “any” of the
elements of damages has been proved is for the jury to decide. This is sufficient safeguard that
the amount of damages will be based on the evidence.
Section 30, Page 2 of 36
30.01 Measure of Damages--Personal and Property
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate him for any of the following elements of
damages proved by the evidence to have resulted from the [negligence] [wrongful conduct] [of
the defendant], [taking into consideration (the nature, extent and duration of the injury) (and) (the
aggravation of any pre-existing ailment or condition)].
[Here insert the elements of damages which have a basis in the evidence]
Whether any of these elements of damages has been proved by the evidence is for you to
determine.
Notes on Use
This instruction cannot be given in the form shown on this page. It must be completed by
selecting the appropriate elements of damages from among phrases IPI 30.04 through IPI 30.20.
The phrases so selected should reflect the relevant items of damage and be inserted between the
two paragraphs of IPI 30.01.
The bracketed words “taking into consideration the nature, extent and duration of the
injury” are to be used only in cases involving an injury to the person. See comment to IPI 30.02.
The bracketed words “the aggravation of any pre-existing ailment or condition” are to be
used only in those cases where there is a claim that the plaintiff's injuries arose in whole or in
part from an aggravation of a pre-existing ailment or condition. See comment to IPI 30.03.
The bracketed words “wrongful conduct” in the first paragraph may be used instead of
“negligence” when the misconduct alleged includes a charge such as willful and wanton conduct
or other fault.
Other phrases may be substituted for the bracketed terms “negligence” or “wrongful
conduct” or “wrongful conduct of the defendant” where appropriate, such as “unreasonably
dangerous condition of the product.”
If the plaintiff sustained no impact to his body and his injury or illness resulted entirely
from emotional distress under circumstances where his injury or illness is compensable, insert at
the end of the first paragraph of the instruction the phrase “resulting from emotional distress.”
Comment
A bystander present in a zone of physical danger who, because of the defendant's
negligence, has a reasonable fear for his own safety is given a right of action for physical injury
or illness resulting from emotional distress caused by that fear. Rickey v. Chicago Transit Auth.,
98 Ill.2d 546, 457 N.E.2d 1, 75 Ill.Dec. 211 (1983). This decision abrogated the former “impact
Section 30, Page 3 of 36
rule” which required a bystander to have suffered a contemporaneous physical injury or impact
to permit recovery.
A cause of action is also available for the intentional infliction of emotional distress.
Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157 (1961).
The “aggravation of any pre-existing ailment or condition” is a factor but not an element
of damage. Luye v. Schopper, 348 Ill.App.3d 767, 284 Ill.Dec. 34, 809 N.E.2d 156 (1st
Dist.2004); Hess v. Espy, 351 Ill.App.3d 490, 286 Ill.Dec. 213, 813 N.E.2d 270 (2nd Dist.2004);
Smith v. City of Evanston, 260 Ill.App.3d 925, 631 N.E.2d 1269, 197 Ill.Dec. 810 (1st
Dist.1984).
Section 30, Page 4 of 36
30.02 Measure of Damages--Nature and Extent of Injury
[Withdrawn]
Comment
IPI 30.02 formerly read, “The nature, extent and duration of the injury.” Powers v.
Illinois Cent. Gulf R. Co., 91 Ill.2d 375, 438 N.E.2d 152, 63 Ill.Dec. 414 (1982), held that this is
not a separate element of damages. IPI 30.02 has therefore been deleted. However, in
determining damages the jury may consider the nature, extent and duration of the injury. See IPI
30.01.
Section 30, Page 5 of 36
30.03 Measure of Damages--Aggravation of Pre-Existing Ailment or Condition
[Withdrawn]
Permission to withdraw granted in 2004.
Comment
IPI 30.03 formerly read, “The aggravation of any pre-existing ailment or condition.” It
has been deleted as a separate element of damage in light of Luye v. Schopper, 348 Ill.App.3d
767, 284 Ill.Dec. 34, 809 N.E.2d 156 (1st Dist.2004) and Hess v. Espy, 351 Ill.App.3d 490, 286
Ill.Dec. 213, 813 N.E.2d 270 (2nd Dist.2004). However, in determining damages the jury may
consider the aggravation of any pre-existing ailment or condition. See IPI 30.01.
Section 30, Page 6 of 36
30.04 Measure of Damages--Disfigurement
The disfigurement resulting from the injury.
Notes on Use
This element is to be inserted between the two paragraphs of IPI 30.01 when the evidence
justifies its use.
Comment
Disfigurement is recognized as a separate element of compensable damages in Illinois.
Holston v. Sisters of the Third Order of St. Francis, 165 Ill.2d 150, 175; 650 N.E.2d 985, 997;
209 Ill.Dec. 12, 24 (1995); Simon v. Kaplan, 321 Ill.App. 203, 52 N.E.2d 832 (1st Dist.1944).
Section 30, Page 7 of 36
30.04.01 Measure of Damages--Disability/Loss of a Normal Life
[The disability experienced (and reasonably certain to be experienced in the future).]
[Loss of a normal life experienced (and reasonably certain to be experienced in the
future).]
Notes on Use
These are alternatives. One of these elements may be inserted between the two
paragraphs of IPI 30.01 when the evidence justifies its use.
Smith v. City of Evanston, 260 Ill.App.3d 925, 631 N.E.2d 1269, 197 Ill.Dec. 810 (1st
Dist.1994), disapproved of the term “disability,” holding that the phrase “loss of a normal life”
more accurately described this element of damages and would be less confusing to the jury. If
the trial court rules that the Smith case is applicable, then the phrase “loss of a normal life” may
be substituted for the term “disability” and the Committee recommends that IPI 30.04.02 also be
given.
Torres v. Irving Press, Inc., 303 Ill.App.3d 151, 707 N.E.2d 248, 236 Ill.Dec. 403 (1st
Dist.1999), [leave to appeal denied] disapproved of the term “loss of a normal life,” holding that
“disability” was the appropriate element of damages on which the jury should be instructed.
If “disability” is chosen, do not give IPI 30.04.02.
Comment
Disability is recognized as a separate element of compensable damages in Illinois.
Holston v. Sisters of the Third Order of St. Francis, 165 Ill.2d 150, 175; 650 N.E.2d 985, 997;
209 Ill.Dec. 12, 24 (1995), Krichbaum v. Chicago City Ry. Co., 207 Ill.App. 44 (1st Dist.1917);
and Torres v. Irving Press, Inc., 303 Ill.App.3d 151, 707 N.E.2d 248, 236 Ill.Dec. 403 (1st
Dist.1999), [leave to appeal denied].
Loss of a normal life is recognized as a separate element of compensable damages in
Illinois. Smith v. City of Evanston, 260 Ill.App.3d 925, 631 N.E.2d 1269, 197 Ill.Dec. 810 (1st
Dist.1994); Zuder v. Gibson, 288 Ill.App.3d 329, 680 N.E.2d 483, 223 Ill.Dec. 750 (2d
Dist.1997), Abbinante v. O'Connell, 277 Ill.App.3d 1046, 662 N.E.2d 126, 214 Ill.Dec. 772 (3d
Dist.1996); Knight v. Lord, 271 Ill.App.3d 581, 648 N.E.2d 617, 207 Ill.Dec. 917 (4th
Dist.1995); and VanHolt v. National Railroad Passenger Corp., 283 Ill.App.3d 62, 669 N.E.2d
1288, 218 Ill.Dec. 762 (1st Dist.1996).
The Committee recommends that either “disability” or “loss of a normal life” be used,
but not both.
Section 30, Page 8 of 36
Section 30, Page 9 of 36
30.04.02 Loss of a Normal Life--Definition
When I use the expression “loss of a normal life”, I mean the temporary or permanent
diminished ability to enjoy life. This includes a person's inability to pursue the pleasurable
aspects of life.
Notes on Use
The Committee recommends that this instruction be used if the option in IPI 30.04.01
concerning loss of a normal life is given.
Comment
This definition is derived from Smith v. City of Evanston, 260 Ill.App.3d 925, 631 N.E.2d
1269, 197 Ill.Dec. 810 (1st Dist.1994). Defining loss of a normal life in this manner when it is
given as an element of compensable damages was approved in Zuder v. Gibson, 288 Ill.App.3d
329, 680 N.E.2d 483, 223 Ill.Dec. 750 (2d Dist.1997); Abbinante v. O'Connell, 277 Ill.App.3d
1046, 662 N.E.2d 126, 214 Ill.Dec. 772 (3d Dist.1996); and VanHolt v. National Railroad
Passenger Corp., 283 Ill.App.3d 62, 669 N.E.2d 1288, 218 Ill.Dec. 762 (1st Dist.1996).
No holding requiring the use of a definition of loss of a normal life exists. Decisions
approving the use of a definition of this element are Abbinante v. O'Connell, 277 Ill.App.3d
1046, 662 N.E.2d 126, 214 Ill.Dec. 772 (3d Dist.1996) and Knight v. Lord, 271 Ill.App.3d 581,
648 N.E.2d 617, 207 Ill.Dec. 917 (4th Dist.1995). Decisions considering this element where no
definition was given are Slavin v. Saltzman, 268 Ill.App.3d 392, 643 N.E.2d 1383, 205 Ill.Dec.
776 (2d Dist.1994) [overruled on other grounds in Zuder v. Gibson, 288 Ill.App.3d 329, 680
N.E.2d 483, 223 Ill.Dec. 750 (2d Dist.1997)]; White v. Lueth, 283 Ill.App.3d 714, 670 N.E.2d
1143, 219 Ill.Dec. 255 (3d Dist.1996); Smith v. City of Evanston, 260 Ill.App.3d 925, 631 N.E.2d
1269, 197 Ill.Dec. 810 (1st Dist.1994); Sands v. Glass, 267 Ill.App.3d 45, 640 N.E.2d 996, 203
Ill.Dec. 846 (2d Dist.1994); and Martin v. Cain, 219 Ill.App.3d 110, 578 N.E.2d 1161, 161
Ill.Dec. 515 (5th Dist.1991).
Section 30, Page 10 of 36
30.04.03 Increased Risk of Harm--Measure of Damages
The increased risk of future [specific condition] [harm] resulting from the [injury]
[injuries] [condition] [conditions].
Permission to publish 30.04.03, 30.04.04 granted in 2004.
Notes on Use
This instruction should be inserted into the 30.01 instruction in a case where the damages
claimed are within the scope of the ruling in Dillon v. Evanston Hospital, 199 Ill.2d 483, 264
Ill.Dec. 653, 771 N.E.2d 357 (2002). When this instruction is used, IPI 30.04.04 must also be
used.
Comment
Dillon v. Evanston Hospital, 199 Ill.2d 483, 264 Ill.Dec. 653, 771 N.E.2d 357 (2002)
established that a plaintiff could obtain an instruction seeking damages for future harm in some
circumstances where the harm is less than 50% likely to occur. In those cases, damages for future
harm can be obtained but only to the percentage extent that such harm is likely to occur. The
Court established a formula multiplying the value of the future harm if certain to occur by the
percentage likelihood that the future harm will occur. Dillon v. Evanston Hospital, supra at 506.
That formula is set forth in IPI 30.04.04.
See the discussion in Lewis v. Lead Industries, 342 Ill.App.3d 95, 101, 109; 793 N.E.2d
869; 276 Ill.Dec. 110 (1st Dist.2003), about whether a “present injury” distinct from the future
harm is required under Dillon to warrant this instruction. Cf. Dillon, supra at 498, 501, 506.
Section 30, Page 11 of 36
30.04.04 Increased Risk of Harm--Calculation
To compute damages for increased risk of future [specific condition] [harm] only, you
must multiply the total compensation to which the plaintiff would be entitled if [specific
condition] were certain to occur by the proven probability that [specific condition] will in fact
occur.
[You do not reduce future damages by this formula if those damages are more [likely
than not] [probably true than not true] to occur.]
Notes on Use
This instruction should be given whenever IPI 30.04.03 is given.
Neither this instruction nor IPI 30.04.03 should be given unless the plaintiff claims
damages that are less than 50% certain to occur.
A plaintiff is entitled to all future damages proven more likely than not to occur. It has
never been plaintiff's burden to establish future damages with 100% certainty to recover full
compensation for those damages. Reducing damages for future losses, where the likelihood of
occurrence is greater than 50%, is not permissible, and these two instructions should not be used
in such a case. If the plaintiff seeks compensation for future damages established by less than a
50% certainty, then IPI 30.04.03 and IPI 30.04.04 should be given.
Care must be used in drafting instructions where some of the future damages are
established by greater than a 50% likelihood of occurrence, and some by less than a 50%
likelihood of occurrence. Identifying conditions for which future damages are sought in IPI
30.04.04 should obviate any potential jury confusion. Future damages which are more than 50%
likely to occur should not be reduced by this formula.
The second paragraph should only be used when the plaintiff is seeking both Dillon type
future damages and future damages that are more likely than not to occur. See Notes on Use at
IPI 30.04.03 concerning the verdict.
The committee envisions the itemized verdict form to appear something like the
following sample (with other elements of damages also listed if appropriate).
VERDICT
We, the jury, find for ([plaintiff's name]) and against ([defendant's name]). We assess the
damages in the sum of $________, itemized as follows:
The increased risk of future [condition] [harm] resulting from the [injury] [injuries]
[condition] [conditions] is itemized as follows:
[Medical expenses:] $________
[Disfigurement:] $________
Section 30, Page 12 of 36
[Disability:] $________
[Loss of normal life:] $________
[Pain and suffering:] $________
[Time] [Earnings] [Profits] [Salaries]
[Benefits] lost: $________
[Risk of future harm:]
Medical expenses $________
Disfigurement $________
Loss of normal life $________
Pain and suffering $________
TOTAL $________
The LIKELIHOOD that the future [condition] [harm] will occur is ____%
The TOTAL DAMAGES multiplied by the LIKELIHOOD that they are going to occur is
________ [TOTAL DAMAGES] x ____% [LIKELIHOOD] = _________
TOTAL DAMAGES $________
Section 30, Page 13 of 36
30.04.05 Measure of Damages--Shortened Life Expectancy
Shortened life expectancy.
Instruction, Notes on Use and Comment approved May 2008.
Notes on Use
This instruction is appropriate if there is evidence that plaintiff's life expectancy has been
shortened by the tort. It should appear as a separate element of damages on the verdict form.
This element of damages may be used in cases where the court also instructs on disability
or loss of a normal life, where such evidence is present. IPI 34.01 should be given with this
instruction.
Comment
The element “shortened life expectancy” can arise when the tort causes a plaintiff to be
likely to die prematurely. Dillon v. Evanston Hosp., 199 Ill.2d 483, 500 (2002) supports this
element of damages. See DePass v. United States, 721 F.2d 203, 208 (7th Cir. 1983) (Posner, J.
dissenting) citing out of state cases to support the conclusion that Illinois law does not permit a
tortfeasor to get off scot-free because, instead of killing the victim, he inflicts an injury that is
likely to shorten the victim's life. Shortened life expectancy is recognized as a separate element
of compensable damages in Bauer ex rel. Bauer v. Memorial Hosp., 377 Ill.App.3d 895, 920-921
(5th Dist. 2007).
Section 30, Page 14 of 36
30.05 Measure of Damages--Pain and Suffering--Past and Future
The pain and suffering experienced [and reasonably certain to be experienced in the
future] as a result of the injuries.
Notes on Use
This element is to be inserted between the two paragraphs of IPI 30.01 when the evidence
justifies its use. To warrant inclusion of the bracketed material relating to future pain and
suffering, there must be evidence that such pain and suffering is reasonably certain to occur in
the future.
Comment
Pain and suffering are compensable elements of damages. Donk Bros. Coal & Coke Co.
v. Thil, 228 Ill. 233, 241; 81 N.E. 857, 860 (1907); Krichbaum v. Chicago City Ry. Co., 207
Ill.App. 44 (1st Dist.1917); McDaniels v. Terminal R.R. Ass'n, 302 Ill.App. 332, 350; 23 N.E.2d
785, 793 (4th Dist.1939). These elements are not included in “disability.” Wood v. Mobil Chem.
Co., 50 Ill.App.3d 465, 476; 365 N.E.2d 1087, 1095; 8 Ill.Dec. 701, 709 (5th Dist.1977).
Section 30, Page 15 of 36
30.05.01 Measure of Damages--Emotional Distress--Past and Future
The emotional distress experienced [and reasonably certain to be experienced in the
future].
Notes on Use
This element is to be inserted between the two paragraphs of IPI 30.01 when the evidence
justifies its use and when the court rules that damages for emotional distress can be claimed.
Comment
Under certain circumstances, a plaintiff can recover damages for negligent infliction of
emotional distress even in the absence of a physical impact. Rickey v. Chicago Transit Auth., 98
Ill.2d 546, 457 N.E.2d 1, 75 Ill.Dec. 211 (1983); Corgan v. Muehling, 143 Ill.2d 296, 574 N.E.2d
602, 158 Ill.Dec. 489 (1991); Lewis v. Westinghouse Electric Corp., 139 Ill.App.3d 634, 487
N.E.2d 1071, 94 Ill.Dec. 194 (1st Dist.1985); Courtney v. St. Joseph Hosp., 149 Ill.App.3d 397,
500 N.E.2d 703, 102 Ill.Dec. 810 (1st Dist.1986); Robbins v. Kass, 163 Ill.App.3d 927, 516
N.E.2d 1023, 114 Ill.Dec. 868 (2d Dist.1987); Koeller v. Cook County, 180 Ill.App.3d 425, 535
N.E.2d 1118, 129 Ill.Dec. 353 (1st Dist.1989); Seef v. Sutkus, 205 Ill.App.3d 312, 562 N.E.2d
606, 150 Ill.Dec. 76 (1st Dist.1990), aff'd on other grounds, 145 Ill.2d 336, 583 N.E.2d 510, 164
Ill.Dec. 594 (1991); Allen v. Otis Elevator Co., 206 Ill.App.3d 173, 563 N.E.2d 826, 150 Ill.Dec.
699 (1st Dist.1990); Hayes v. Illinois Power Co., 225 Ill.App.3d 819, 587 N.E.2d 559, 167
Ill.Dec. 290 (4th Dist.1992); Leonard v. Kurtz, 234 Ill.App.3d 553, 600 N.E.2d 896, 175 Ill.Dec.
653 (3d Dist.1992); Jarka v. Yellow Cab Co., 265 Ill.App.3d 366, 637 N.E.2d 1096, 202 Ill.Dec.
360 (1st Dist.1994). See also Kapoulas v. Williams Ins. Agency, Inc., 11 F.3d 1380 (7th
Cir.1993).
The United States Supreme Court has recognized a cause of action for negligent infliction
of emotional distress under the Federal Employers' Liability Act. Consolidated Rail Corp. v.
Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). See Chapter 160, infra.
Section 30, Page 16 of 36
30.06 Measure of Damages--Medical Expense--Past and Future--Adult Plaintiff,
Emancipated Minor, or Minor Whose Parent Has Assigned Claim to Minor
The reasonable expense of necessary medical care, treatment, and services received [and
the present cash value of the reasonable expenses of medical care, treatment and services
reasonably certain to be received in the future].
Notes on Use
This element is to be inserted between the two paragraphs of IPI 30.01 when the evidence
justifies its use. To warrant inclusion of the bracketed material relating to future medical
expenses, there must be evidence that such expenses are reasonably certain to be incurred.
If the plaintiff is a minor or minor's representative and the right to recover these expenses
during minority has not been assigned to the minor, use IPI 30.08.
Comment
The reasonable expense of necessary medical care is an element of damages. Donk Bros.
Coal & Coke Co. v. Thil, 228 Ill. 233, 241; 81 N.E. 857, 860 (1907).
In actions for damages arising out of an injury to an unemancipated minor, the items of
damage listed in this element are recoverable by the parents. Reimers v. Honda Motor Co., 150
Ill.App.3d 840, 502 N.E.2d 428, 429-430; 104 Ill.Dec. 165, 166-167 (1st Dist.1986); Curtis v.
County of Cook, 109 Ill.App.3d 400, 440 N.E.2d 942, 947; 65 Ill.Dec. 87, 92 (1st Dist.1982),
judgment aff'd in part, rev'd in part, on other grounds, 98 Ill.2d 158, 456 N.E.2d 116, 74 Ill.Dec.
614 (1983). However, the usual practice in Illinois is to sue for those damages in the minor's
action. This is accomplished by alleging an assignment, or waiver or relinquishment by the
parents of their right to recover these damages. Curtis v. Lowe, 338 Ill.App. 463, 87 N.E.2d 865
(2d Dist.1949).
A derivative action for medical expenses arising under § 15 of the Husband and Wife Act
(750 ILCS 65/15) tolls during the child's infancy and must be filed within two years of the child
reaching eighteen years of age. 735 ILCS 5/13-203, 5/13-211.
An individual is not entitled to recover for the value of free hospital, nursing and medical
services that he has obtained without expense, obligation, or liability. Peterson v. Lou Bachrodt
Chevrolet, 76 Ill.2d 353, 392 N.E.2d 1, 5; 29 Ill.Dec. 444, 448 (1979).
On the issue of present cash value, see the 34.00 series.
Section 30, Page 17 of 36
30.07 Measure of Damages--Loss of Earnings or Profits--Past and Future--Adult Plaintiff,
Emancipated Minor, or Minor Whose Parent Has Assigned Claim to Minor
[The value of (time) (earnings) (profits) (salaries) (benefits) lost] [.] [and] [(T)he present
cash value of the (time) (earnings) (profits) (salaries) (benefits) reasonably certain to be lost in
the future].
Notes on Use
One or more of these elements is to be inserted between the two paragraphs of IPI 30.01
when the evidence justifies its use.
If the plaintiff is a minor or minor's representative and the right to recover these expenses
during minority has not been assigned to the minor, use IPI 30.08.
Comment
The first phrase of this instruction concerns earnings and profits lost prior to trial.
With reference to past lost time, an injured party may recover for the time lost even
though he was paid his regular wage during incapacitation. Hoobler v. Voelpel, 246 Ill.App. 69
(2d Dist.1927); Cooney v. Hughes, 310 Ill.App. 371, 34 N.E.2d 566 (1st Dist.1941) (loss
incurred by unemployed plaintiff who provided services in the home); Jerrell v. Harrisburg Fair
& Park Ass'n, 215 Ill.App. 273, 280 (4th Dist.1919) (plaintiff must present evidence of lost
earnings, time or wages); Wever v. Staggs, 264 Ill.App. 556, 564 (3d Dist.1932) (homemaker's
lost services are a proper element of damages if value of lost services is established); McManus
v. Feist, 76 Ill.App.2d 99, 106-107; 221 N.E.2d 418, 421-422 (4th Dist.1966).
The second portion of this instruction includes diminution of the plaintiff's capacity to
earn. It may be based upon inability to earn in occupations or fields of endeavor like or unlike his
past earning experience, so long as his lost capacity to earn is established by the evidence.
Consequently, damages incurred as a result of impaired earning capacity are not necessarily
measured by proof of past lost wages. Buckler v. Sinclair Ref. Co., 68 Ill.App.2d 283, 216
N.E.2d 14 (5th Dist.1966). The element of damages for future lost earnings does not depend on
whether the injured party was employed on the date of the occurrence. Casey v. Baseden, 131
Ill.App.3d 716, 475 N.E.2d 1375, 86 Ill.Dec. 808 (5th Dist.1985), aff'd, 111 Ill.2d 341, 490
N.E.2d 4, 95 Ill.Dec. 531 (1986). The instruction may also be proper even though he was
employed at the time of trial and earning more than at the time of his injury. Jackson v. Illinois
Cent. Gulf R. Co., 18 Ill.App.3d 680, 309 N.E.2d 680, 688 (1st Dist.1974).
In actions for damages arising out of an injury to an unemancipated minor, the loss of
earnings during minority are recoverable by the parents. Ferreira v. Diller, 176 Ill.App. 447 (3d
Dist.1912); Barrett v. Riley, 42 Ill.App. 258 (2d Dist.1891). However, the usual practice in
Illinois is to sue for these damages in the minor's action. This is accomplished by alleging an
assignment, or waiver or relinquishment by the parents of their right to recover these damages.
Curtis v. Lowe, 338 Ill.App. 463, 87 N.E.2d 865 (2d Dist.1949).
Section 30, Page 18 of 36
735 ILCS 5/13-203 (1994) provides that a derivative claim (i.e., a right of action arising
out of an injury to the person of another) is governed by the same limitation period as is the
action for damages for injury to such other person.
On the issue of present cash value, see the 34.00 series.
Section 30, Page 19 of 36
30.08 Measure of Damages--Loss of Future Earnings--Future Medical Expenses--Minor
Plaintiff
The present cash value of (time) (earnings) (profits) (salaries) (benefits) [(medical) care,
treatment, and services] (caretaking expense) reasonably certain to be lost (or incurred) in the
future after the plaintiff has reached the age of eighteen.
Notes on Use
This element is to be inserted between the two paragraphs of IPI 30.01 when the evidence
justifies its use.
The legal age of majority is 18 years. 755 ILCS 5/11-1 (1994). Before age 18, the parents
are entitled to the earnings if the minor is unemancipated.
If the parents' right to recover medical expenses during the child's minority has been
assigned to the child, then the child can recover all such expenses, not merely those commencing
with his majority. In such cases, therefore, do not include the bracketed material concerning
medical expenses in this instruction; use IPI 30.06 instead. If the assignment includes caretaking
expenses, and there is evidence of such expenses, omit the bracketed reference to caretaking
expenses and use IPI 30.09.
Similarly, if the parents have assigned to the child their right to recover for any earnings
he may have during his minority, and there is evidence to support such earnings, use IPI 30.07 in
lieu of this instruction.
Comment
In actions for damages arising out of an injury to an unemancipated minor, the loss of
earnings, medical and caretaking expense during the child's minority are recoverable by the
parents. The child, therefore, is limited to the loss of earnings, medical or caretaking expense he
would have incurred after reaching his majority. Wolczek v. Public Service Co. of N. Ill., 342 Ill.
482, 496; 174 N.E. 577, 583 (1930). The usual practice in Illinois, however, is to sue for all
damages in the minor's action. This is accomplished by alleging an assignment, or waiver or
relinquishment by the parents of their right to recover these damages. Curtis v. Lowe, 338
Ill.App. 463, 87 N.E.2d 865 (2d Dist.1949). See Comment to IPI B11.06.01.
On the issue of present cash value, see the 34.00 series.
Section 30, Page 20 of 36
30.09 Measure of Damages--Caretaking Expenses, Necessary Help--Past and Future--Adult
Plaintiff, Emancipated Minor, or Minor Whose Parent Has Assigned Claim to Minor
The reasonable expense of necessary help [and the present cash value of such expense
reasonably certain to be required in the future].
Instruction and Comment revised January 2010.
Notes on Use
This element is to be inserted between the paragraphs of IPI 30.01 when the evidence
justifies its use.
To include the bracketed material relating to future caretaking expense, there must be
evidence that such expense is reasonably certain to be incurred in the future.
If the plaintiff is a minor or minor's representative and the right to recover these expenses
during minority has not been assigned to the minor, use IPI 30.08.
Comment
Plaintiff is entitled to recover all damages that naturally and proximately flow from the
tort. Horan v. Klein's-Sheridan, Inc., 62 Ill.App.2d 455, 459, 211 N.E.2d 116, 118 (3d Dist.
1965). Incidental caretaker expenses resulting from personal injuries are therefore appropriate
elements of damages. Hoobler v. Voelpel, 246 Ill.App. 69 (2d Dist. 1927) (court allowed
recovery of expense of hiring help in plaintiff's home during convalescence). Recovery is not
limited to caretaking expenses incurred in the home, however, and extends to all necessary help
reasonably incurred as a result of the injury suffered. In North Chicago St. R. Co. v. Zeiger, 182
Ill. 9, 54 N.E. 1006 (1899), the Illinois Supreme Court approved the use of this instruction where
plaintiff, a butcher employing 25 workers, had to pay a substitute superintendent to perform
plaintiff's duties for a period of five months after his accident. Worley v. Barger, 347 Ill.App.3d
492, 807 N.E.2d 1222, 283 Ill. Dec. 381(5th Dist. 2004) (the court noted plaintiff should be
permitted to seek recovery for the reasonable value of caretaking services that would have been
allowed had someone been employed to care for her child).
On the issue of present cash value, see the 34.00 series.
Section 30, Page 21 of 36
30.10 Measure of Damages--Damage to Personal Property--Repairs and Depreciation or
Difference in Value Before and After Damage
The damage to property, determined by the lesser of two figures which are calculated as
follows:
One figure is the reasonable expense of necessary repair of the property plus the
difference between the fair market value of the property immediately before the occurrence and
its fair market value after the property is repaired.
The other figure is the difference between the fair market value of the property
immediately before the occurrence and the fair market value of the unrepaired property
immediately after the occurrence.
You may award as damages the lesser of these two figures only.
Notes on Use
This instruction is not to be used alone, but it is to be inserted between the two
paragraphs of IPI 30.01 when the evidence justifies its use.
If there is no claim that the repaired property has depreciated in value, use IPI 30.11.
If the cost of repairs plus depreciation will be less than the difference in value between
the damaged and undamaged property, use IPI 30.12.
If only the reasonable expense of necessary repairs is claimed and that is less than the
difference in value of the property before and after the damage, use IPI 30.13.
If the difference in the value of property before and after it was damaged is less than the
reasonable cost of repairs, use IPI 30.14.
This instruction should not be used for damages to real estate or improvements thereon.
See IPI 30.17 to 30.20. Where real and personal property claims occur together, use instructions
for both where appropriate, and substitute the name of the personal property item instead of
“property” in the introductory clause.
Comment
Since compensatory damages are only to make a party whole, and not to enable him to
make a profit on the transaction, a party may recover the reasonable expense of necessary repairs
plus any difference between the value of the property immediately before the occurrence and
after it has been repaired, provided that these amounts do not exceed the difference between the
value of the undamaged and damaged property. Santiemmo v. Days Transfer, Inc., 9 Ill.App.2d
487, 502; 133 N.E.2d 539, 546 (1st Dist.1956) (a verdict of $4,417.16, representing the costs of
repairs, was reduced by $717.76 to equal highest estimate of the value of the truck before it was
damaged); McDonell v. Lake Erie & W. Ry. Co., 208 Ill.App. 442, 454 (2d Dist.1917)
Section 30, Page 22 of 36
(“Sometimes, after the repairs, the property is still not as good as it was before, and then the
difference between the value of the property after it has been repaired and the value of the
property before the injury should be added to make up the loss.”); Welter v. Schell, 252 Ill.App.
586, 589-590 (1st Dist.1929) (plaintiff recovered $423.25 for repairs and $475 for depreciation
after repair on his automobile which was worth $2,200 immediately before being damaged). See
generally Fowler, Loss of Earnings and Property Damage, 1956 U. Ill. L.F. 453, 462-465.
Section 30, Page 23 of 36
30.11 Measure of Damages--Damage to Personal Property--Repairs or Difference In Value
Before and After Damage
The damage to property, determined by the lesser of (1) the reasonable expense of
necessary repairs to the property or (2) the difference between the fair market value of the
property immediately before the occurrence and its fair market value immediately after the
occurrence.
Notes on Use
This instruction is to be used as an alternative to IPI 30.10 if there is no claim that the
property after repairs has suffered reduction in fair market value. The instruction is not to be
used alone, but is to be inserted between the two paragraphs of IPI 30.01 when the evidence
justifies its use.
This instruction is to be used when there is an issue as to whether the cost of repairs or
the difference in value of the property before and after it is damaged is the lesser amount. When
the cost of repairs is admittedly the lesser amount, use IPI 30.13; when the converse is true, use
IPI 30.14.
This instruction should not be used for damages to real estate or improvements thereon.
See IPI 30.17 to 30.20. Where real and personal property claims occur together, use instructions
for both where appropriate, and substitute the name of the personal property item instead of
“property” in the introductory clause.
Comment
See Comment to IPI 30.10.
Section 30, Page 24 of 36
30.12 Measure of Damages--Damage to Personal Property--Cost of Repairs and
Depreciation of Repaired Property
The reasonable expense of necessary repairs to the property which was damaged plus the
difference between the fair market value of the property immediately before the occurrence and
its fair market value after it is repaired.
Notes on Use
The instruction is not to be used alone, but is to be inserted between the two paragraphs
of IPI 30.01 when the evidence justifies its use.
This instruction is to be used as an alternative to IPI 30.10 where the costs of repairs plus
depreciation is less than the difference in value between the damaged and undamaged property.
This instruction should not be used for damages to real estate or improvements thereon.
See IPI 30.17 to 30.20. Where real and personal property claims occur together, use instructions
for both where appropriate, and substitute the name of the personal property item instead of
“property” in the introductory clause.
Comment
McDonell v. Lake Erie & W. Ry. Co., 208 Ill.App. 442, 452 (2d Dist.1917) (“Sometimes,
after the repairs, the property is still not as good as it was before, and then the difference between
the value of the property after it has been repaired and the value of the property before the injury
should be added to make up the loss.”); Welter v. Schell, 252 Ill.App. 586, 589-590 (1st
Dist.1929) (plaintiff recovered $423.25 for repairs and $475 for depreciation for damage to his
automobile which was worth $2,200 immediately before being damaged).
Section 30, Page 25 of 36
30.13 Measure of Damages--Damage to Personal Property--Repairs
The damage to property, determined by the reasonable expense of necessary repairs to the
property which was damaged.
Notes on Use
The instruction is not to be used alone, but is to be inserted between the two paragraphs
of IPI 30.01 when the evidence justifies its use.
This instruction is to be used as an alternative to IPI 30.10 if only the reasonable expense
of necessary repairs is claimed and that is less than the difference in value of the property before
and after the damage.
This instruction should not be used for damages to real estate or improvements thereon.
See IPI 30.17 to 30.20. Where real and personal property claims occur together, use instructions
for both where appropriate, and substitute the name of the personal property item instead of
“property” in the introductory clause.
Comment
Repairs to damaged property are recognized as a compensable element of damages.
McDonell v. Lake Erie & W. Ry. Co., 208 Ill.App. 442, 450 (2d Dist.1917).
Section 30, Page 26 of 36
30.14 Measure of Damages--Damage to Personal Property--Difference in Value Before and
After Damage
The damage to property, determined by the difference between its fair market value
immediately before the occurrence and its fair market value immediately after the occurrence.
Notes on Use
This instruction is to be used as an alternative to IPI 30.10 if the difference in the value of
property before and after it was damaged is less than the reasonable cost of repairs. The
instruction is not to be used alone, but is to be inserted between the two paragraphs of IPI 30.01
when the evidence justifies its use.
This instruction is appropriate only where the property, though destroyed or damaged
beyond repair, is still in existence and has salvage value. If the property is not in existence or if it
lacks salvage value, IPI 30.15 is appropriate.
This instruction should not be used for damages to real estate or improvements thereon.
See IPI 30.17 to 30.20. Where real and personal property claims occur together, use instructions
for both where appropriate, and substitute the name of the personal property item instead of
“property” in the introductory clause.
Comment
The difference in values immediately before and after the occurrence is recognized as a
compensable element of damages in Illinois, where the property is destroyed beyond repair or
the cost of repair exceeds the difference in value. Crossen v. Chicago & Joliet Elec. Ry. Co., 158
Ill.App. 42, 44 (2d Dist.1910); Latham v. Cleveland, C., C. & St. L. Ry. Co., 164 Ill.App. 559,
563 (2d Dist.1911); Albee v. Emrath, 53 Ill.App.3d 910, 916; 369 N.E.2d 62, 67; 11 Ill.Dec. 608,
613 (1st Dist.1977); Collgood, Inc. v. Sands Drug Co., 5 Ill.App.3d 910, 917; 284 N.E.2d 406,
410 (5th Dist.1972).
Section 30, Page 27 of 36
30.15 Measure of Damages--Damage to Personal Property--Value Before Damage--No
Salvage
The damage to property, determined by the fair market value of the property immediately
before the occurrence.
Notes on Use
This instruction is not to be used alone, but is to be inserted between the two paragraphs
of IPI 30.01 when the evidence justifies its use.
This instruction may be used (1) where the property is damaged beyond repair and has no
salvage value or (2) where there is no evidence as to the salvage value. New York, Chicago & St.
L.R. Co. v. American Transit Lines, 408 Ill. 336, 339-342; 97 N.E.2d 264, 266-268 (1951).
Where the property admittedly has salvage value, use IPI 30.14.
This instruction should not be used for damages to real estate or improvements thereon.
See IPI 30.17 to 30.20. Where real and personal property claims occur together, use instructions
for both where appropriate, and substitute the name of the personal property item instead of
“property” in the introductory clause.
Section 30, Page 28 of 36
30.16 Measure of Damages--Damage to Personal Property--Loss of Value
The reasonable rental value of similar property for the time reasonably required for the
[repair] [replacement] of the property damaged.
Notes on Use
This instruction is not to be used alone, but is to be inserted between the two paragraphs
of IPI 30.01 when the evidence justifies its use.
If the property has been replaced, the bracketed material should be used in lieu of the
word “repair.”
This instruction should not be used for damages to real estate or improvements thereon.
See IPI 30.17 to 30.20. Where real and personal property claims occur together, use instructions
for both where appropriate, and substitute the name of the personal property item instead of
“property” in the introductory clause.
Comment
Reasonable rental value is a recognized element of compensable damages in Illinois.
Lawndale Steam Dye Works v. Chicago Daily News Co., 189 Ill.App. 565, 566 (1st Dist.1914);
Berry v. Campbell, 118 Ill.App. 646 (2d Dist.1905); McDonell v. Lake Erie & W. Ry. Co., 208
Ill.App. 442, 450 (2d Dist.1917).
It is not necessary that similar property be actually rented during the period of time
reasonably required for repair. Damages are available for loss of use of the damaged property
during the period required for repair, even though rental of similar property is not undertaken by
the impaired party. Trailmobile Div. of Pullman, Inc. v. Higgs, 12 Ill.App.3d 323, 325; 297
N.E.2d 598, 600 (5th Dist.1973). Proof as to the value of the loss of use must be present, such as
the cost of renting a replacement vehicle. Plesniak v. Wiegand, 31 Ill.App.3d 923, 335 N.E.2d
131 (1st Dist.1975).
In National Contract Purchase Corp. v. McCormick, 264 Ill.App. 63 (1st Dist.1931), the
court valued the loss of use of the plaintiff's vehicle by computing the cost of renting a
replacement, even though the plaintiff did not rent a replacement.
Section 30, Page 29 of 36
30.17 Measure of Damages--Damage to Real Property--Repairable Damage
The damage to real property, determined by the reasonable expense of necessary repairs
to the property which was damaged [and the value of loss of the use of the (building)
(improvements) for the time reasonably required for the repair] [and the difference between the
fair market value of the real property immediately before the occurrence and its fair market value
immediately after the repairs].
Notes on Use
This element is to be inserted between the two paragraphs of IPI 30.01 when the evidence
justifies its use. This instruction must be used, in general, where the damages to real estate are
not permanent.
The first bracketed clause should be inserted where the evidence shows that the property
was unable to be occupied, or used, during the period of repair. Proof as to the value of the loss
of the use must be presented.
The second bracketed portion should be used in those situations where the evidence
reflects that, after the repairs are performed to the real property, there is still a decrease in the fair
market value of the property.
This instruction is appropriate in a nuisance case where the nuisance can be abated.
Comment
Where damages to real property are not permanent, then the measure of damages is the
cost of restoration. If the damages are permanent, the measure of damages is the diminution in
market value of the realty. Arras v. Columbia Quarry Co., 52 Ill.App.3d 560, 367 N.E.2d 580, 10
Ill.Dec. 192 (5th Dist.1977).
In characterizing an injury to realty as permanent or temporary, a court must necessarily
look to the nature of the thing injured (Arras v. Columbia Quarry Co., supra) and the exact
interest harmed. Myers v. Arnold, 83 Ill.App.3d 1, 403 N.E.2d 316, 38 Ill.Dec. 228 (4th
Dist.1980); Zosky v. Couri, 77 Ill.App.3d 1033, 397 N.E.2d 170, 33 Ill.Dec. 837 (3d Dist.1979)
(tire ruts not permanent and required repair, rather than diminution in fair market value).
In Arras, damage to a well was held not permanent, because the injury was abatable by
the drilling of a new well. Myers approved an award of damages in excess of diminution of
market value because the property was a family residence, not an investment, and the interest
harmed could be corrected with a reasonable expenditure, even though the cost exceeded the
diminution in value of the land.
Cost of repair or restoration is the proper measure of damages in mine subsidence cases
(Donk Bros. Coal & Coke Co. v. Novero, 135 Ill.App. 633 (4th Dist.1907)), and in blasting
cases. Fitzsimons & Connell Co. v. Braun & Fitts, 199 Ill. 390, 65 N.E. 249 (1902); Peet v.
Section 30, Page 30 of 36
Dolese & Shepard Co., 41 Ill.App.2d 358, 190 N.E.2d 613 (2d Dist.1963).
Costs of repair can include the expense necessary to conform those repairs to existing
building codes. Peluso v. Singer General Precision, Inc., 47 Ill.App.3d 842, 365 N.E.2d 390, 8
Ill.Dec. 152 (1st Dist.1977).
For a case involving damages for mining coal after expiration of a lease, see Dethloff v.
Zeigler Coal Co., 82 Ill.2d 393, 412 N.E.2d 526, 45 Ill.Dec. 175 (1980), cert. denied, 451 U.S.
910, 101 S.Ct. 1980, 68 L.Ed.2d 299 (1981).
Section 30, Page 31 of 36
30.18 Measure of Damages--Damage to Real Property--Permanent or Continuing Damage
The damage to real property, determined by the difference between the fair market value
of the real property immediately before the occurrence and its fair market value immediately
after the occurrence.
Notes on Use
This element is to be inserted between the two paragraphs of IPI 30.01 when the evidence
justifies its use.
This instruction is appropriate in a nuisance case, where the nuisance cannot be abated.
For repairable damage, see IPI 30.17.
Comment
For permanent damage to land or buildings, the usual measure of damages is the decrease
in the value of the property. Illinois Cent. Ry. Co. v. Ferrell, 108 Ill.App. 659 (4th Dist.1902);
Clark v. Public Service Co. of N. Ill., 278 Ill.App. 426 (2d Dist.1934); Stirs, Inc. v. City of
Chicago, 24 Ill.App.3d 118, 320 N.E.2d 216 (1st Dist.1974). An exception to this general rule is
damage to property as a result of mine subsidence, where the cost of repair or restoration is the
proper measure. Donk Bros. Coal & Coke Co. v. Novero, 135 Ill.App. 633 (4th Dist.1907).
Blasting is another exception requiring repair. Fitzsimons & Connell Co. v. Braun, 199 Ill. 390,
65 N.E. 249 (1902); Peet v. Dolese & Shepard Co., 41 Ill.App.2d 358, 190 N.E.2d 613 (2d
Dist.1963).
In characterizing an injury to realty as permanent or temporary, a court must necessarily
look to the nature of the thing injured, and the exact interest harmed. Arras v. Columbia Quarry
Co., 52 Ill.App.3d 560, 367 N.E.2d 580, 10 Ill.Dec. 192 (5th Dist.1977); Myers v. Arnold, 83
Ill.App.3d 1, 403 N.E.2d 316, 38 Ill.Dec. 228 (4th Dist.1980). See comment to IPI 30.17.
The measure of damages for the destruction of trees and land is the difference in value of
the land immediately before and immediately after the damage. This rule has been applied to
ornamental or shade trees (First Nat'l Bank v. Amco Engineering Co., 32 Ill.App.3d 451, 335
N.E.2d 591 (2d Dist.1975); Rogers v. Enzinger, 339 Ill.App. 376, 89 N.E.2d 853 (2d Dist.1950)),
and to orchard or fruit trees. Collins v. Illinois Cent. R.R., 161 Ill.App. 95 (4th Dist.1911).
Damage for the destruction of forest trees is the value of the trees, rather than the difference in
value of the land before and after the destruction. Citizens Nat'l Bank v. Joseph Kesl & Sons Co.,
378 Ill. 428, 38 N.E.2d 734 (1941); Jones v. Sanitary Dist. of Chicago, 252 Ill. 591, 97 N.E. 210
(1911).
Section 30, Page 32 of 36
30.19 Measure of Damages--Damage to Real Property--Mature Crops
The market value of the crop as it was at the time of the loss [less the cost of harvesting
and marketing, including all care and preparation for marketing, and transportation to market].
Notes on Use
This element is to be inserted between the two paragraphs of IPI 30.01 when the evidence
justifies its use.
For growing crops, or immature crops, where the market value of the products cannot be
fairly determined, see IPI 30.20.
The bracketed clause should be inserted only in those situations where the crop is fully
matured and ready to be harvested, and the tort is not willful.
Comment
Where the crop is more or less matured so that the yield can be fairly determined, the
value of the crop at the time of the loss is the measure of damages. Baltimore & Ohio
Southwestern R. Co. v. Stewart, 128 Ill.App. 270 (4th Dist.1906). This includes the value of the
right which the owner had to mature the crops and harvest or gather them at the proper time. St.
Louis Merchants' Bridge Terminal Ry. Ass'n v. Schultz, 226 Ill. 409, 80 N.E. 879 (1907).
The value of the right which the owner had to mature the crops and harvest or gather
them at the proper time is generally the amount someone would pay for an immature crop in its
condition before the loss. This value depends upon a number of factors, including the quality of
the soil, the nature of the crop, and the hazard of maturity. Zuidema v. Sanitary Dist. of Chicago,
223 Ill.App. 138 (1st Dist.1921).
The measure of damage to mature crops is the market value of those crops, less the costs
which would have been incurred in harvesting the damaged portion of the crop, and marketing
said damaged portion, including transportation of the damaged portion to market. Baltimore &
Ohio Southwestern R. Co. v. Stewart, supra. Where crops are converted at harvest, the measure
of damages is the market value at that time and place. Agrinetics, Inc. v. Stob, 90 Ill.App.3d 107,
412 N.E.2d 714, 45 Ill.Dec. 363 (2d Dist.1980).
Cf. Dethloff v. Zeigler Coal Co., 82 Ill.2d 393, 412 N.E.2d 526, 45 Ill.Dec. 175 (1980),
cert. denied, 451 U.S. 910, 101 S.Ct. 1980, 68 L.Ed.2d 299 (1981) (discussing measure of
damages for willful trespass and conversion of coal).
Section 30, Page 33 of 36
30.20 Measure of Damages--Damage to Real Property--Growing Crops
The value of the crop at the time it was damaged, which includes the annual rental value
of the land in question, the cost of seed, the value of labor and expenses incurred in preparing the
ground and planting the crop [, and the value of labor and the expenses incurred after planting].
Notes on Use
This element is to be inserted between the two paragraphs of IPI 30.01 when the evidence
justifies its use.
The instruction should be used when the crop is not yet up. Where the crop is up, but not
so far mature that the yield can be fairly determined, then the bracketed clause should be
included in the instruction. Where the crop is so grown, or nearly matured, as to be fairly
determined, or where the crop is matured, IPI 30.19 should be used.
This instruction may not be appropriate in landlord-tenant situations with respect to rental
value, depending on the terms of the lease agreement, and this instruction may need to be
modified accordingly.
Comment
The rule in Illinois for measuring damages to immature crops was stated in Baltimore &
Ohio Southwestern R. Co. v. Stewart, 128 Ill.App. 270, 274-275 (4th Dist.1906):
The general rule is: “where the crop is not up, the damage should be estimated upon the
basis of the rental value and the cost of seed and labor, preparing the ground and planting
the crops; where the crop is up, but not so far mature that the product can be fairly
determined, the injured party can recover, in addition to the above, the cost of any labor
bestowed after the planting; where the crop is more or less matured so that the product
can be fairly determined, the value of the crop at the time of the loss is the measure of
damages, and it is only where the crop is fully matured and ready to be harvested, that the
damage can be determined by the market value of the crop, less the cost of harvesting and
marketing, which must include all care and preparation for marketing, such as packing,
crating and baling, threshing and the like, according to the nature of the crop.”
This test was used in Young v. West, 130 Ill.App. 216 (3d Dist.1906), and Enright v.
Toledo, P. & W. Ry. Co., 158 Ill.App. 323 (3d Dist.1910).
Growing crops are difficult to evaluate because of the uncertainty of their value at
maturity, and the measure of damages is the value of the crops as they were when destroyed,
with the right of the owner to mature and harvest them at the proper time. Opinion evidence
tending to show what the crops in question would yield if allowed to mature, or what the market
value was at the time of maturity, is not admissible in proof of damages. Zuidema v. Sanitary
Dist. of Chicago, 223 Ill.App. 138 (1st Dist.1921).
Section 30, Page 34 of 36
30.21 Measure of Damages--Personal Injury--Aggravation of Pre-Existing Condition--No
Limitations
If you decide for the plaintiff on the question of liability, you may not deny or limit the
plaintiff's right to damages resulting from this occurrence because any injury resulted from [an
aggravation of a pre-existing condition] [or] [a pre-existing condition which rendered the
plaintiff more susceptible to injury].
Notes on Use
In FELA cases, IPI 160.27 should be used.
Comment
See IPI 30.03.
In Balestri v. Terminal Freight Co-op. Ass'n, 76 Ill.2d 451, 394 N.E.2d 391, 31 Ill.Dec.
189 (1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 671, 62 L.Ed.2d 648 (1980), the court held it
was reversible error to refuse an instruction that the plaintiff's right to recover damages for his or
her injuries and disability is not barred or limited by the fact that they arose out of an aggravation
of a pre-existing condition which made the plaintiff more susceptible to injury. See also Pozzie v.
Mike Smith, Inc., 33 Ill.App.3d 343, 337 N.E.2d 450 (1st Dist.1975).
Other courts have approved giving this instruction. See Ficken v. Alton & Southern Ry.
Co., 255 Ill.App.3d 1047, 625 N.E.2d 1172, 1176-1178; 193 Ill.Dec. 51, 55-57 (5th Dist.1993);
Worthy v. Norfolk & W. Ry. Co., 249 Ill.App.3d 1096, 619 N.E.2d 1371, 189 Ill.Dec. 322 (5th
Dist.1993); Dabros v. Wang, 243 Ill.App.3d 259, 611 N.E.2d 1113, 183 Ill.Dec. 465 (1st
Dist.1993) (refusal was error, but harmless in view of verdict for defendant); Grimming v. Alton
& Southern Ry. Co., 204 Ill.App.3d 961, 562 N.E.2d 1086, 1098-1100; 150 Ill.Dec. 283, 295-297
(5th Dist.1990) (similar instruction); Wheeler v. Roselawn Memory Gardens, 188 Ill.App.3d 193,
543 N.E.2d 1328, 1335; 135 Ill.Dec. 581, 588 (5th Dist.1989) (similar instruction). But see Smith
v. City of Evanston, 260 Ill.App.3d 925, 631 N.E.2d 1269, 197 Ill.Dec. 810 (1st Dist.1994).
Section 30, Page 35 of 36
30.22 Collateral Source--Damages
[Withdrawn; former content is combined into 3.03]
Instruction withdrawn October 2007.
Section 30, Page 36 of 36
30.23 Injury from Subsequent Treatment
If [a defendant] [defendants] negligently cause[s] [injury to] [a condition of] the plaintiff,
then the defendant[s] [is] [are] liable not only for the plaintiff's damages resulting from that
[injury] [or] [condition], but [is] [are] also liable for any damages sustained by the plaintiff
arising from the efforts of health care providers to treat the [injury] [or] [condition] caused by the
defendant[s] [even if (that) (those) health care provider(s) (was) (were) negligent.]
Notes on Use
Permission to publish granted in 2003.
This instruction is intended to be used when there is evidence that a subsequent health
care provider caused or aggravated the injury. The last bracketed material should be used when
there is a claim that the subsequent health care provider was negligent. See Kolakowski v. Voris,
94 Ill.App.3d 404, 418 N.E.2d 1003, 50 Ill.Dec. 9 (1st Dist.1981).
Comments
If the issue of the subsequent medical provider having caused or aggravated an injury is
injected into the case, there is a likelihood the jury may be confused as to the applicable law. The
jury might perceive the subsequent provider as the wrongdoer and “acquit the defendants on that
basis.” Kolakowski v. Voris, supra. This proposition is not necessarily obvious and should be told
to the jury. See Daly v. Carmean, 210 Ill.App.3d 19, 30; 568 N.E.2d 955, 154 Ill.Dec. 734 (4th
Dist.1991) citing Gertz v. Campbell, 55 Ill.2d 84, 302 N.E.2d 40 (1973). No other instruction
tells the jury that the defendant, if culpable, is liable for damages caused by the subsequent
health care provider's conduct.
Section 31, Page 1 of 33
31.00
DAMAGES--WRONGFUL DEATH
INTRODUCTION
Previously at common law, actions for personal injuries were abated if, before a verdict
was returned, the plaintiff died from the injuries for which he sued. Susemiehl v. Red River
Lumber Co., 376 Ill. 138, 33 N.E.2d 211 (1941). This was true in spite of the Survival Statute.
755 ILCS 5/27-6. The law was changed by the Illinois Supreme Court in Murphy v. Martin Oil
Co., 56 Ill.2d 423, 308 N.E.2d 583 (1974). The Survival Statute now has the same application to
all cases resulting in death that it has always had in cases where death resulted from a cause other
than the initial tortious injury.
If death results from the initial tortious injury, the Wrongful Death Act creates a cause of
action in the name of the personal representative for the benefit of the widow and next-of-kin for
their “pecuniary injuries.” 740 ILCS 180/1, 180/2. The term “pecuniary injuries” has been
interpreted to include benefits of a pecuniary value, which includes money, goods, and services
received by the next of kin of the deceased. When there are surviving children, it also includes
the instruction, moral training, and superintendence of education that the children would have
received from the deceased parent. “Pecuniary injuries” has also been held to include the loss of
consortium by the surviving spouse, Elliott v. Willis, 92 Ill.2d 530, 442 N.E.2d 163, 65 Ill.Dec.
852 (1982); the loss of a minor child's society by the parents, Bullard v. Barnes, 102 Ill.2d 505,
468 N.E.2d 1228, 82 Ill.Dec. 448 (1984); the loss of an unmarried adult child's society by the
parents, Prendergast v. Cox, 128 Ill.App.3d 84, 470 N.E.2d 34, 83 Ill.Dec. 279 (1st Dist. 1984);
the loss of a parent's society by an adult child, In re Estate of Keeling, 133 Ill.App.3d 226, 478
N.E.2d 871, 88 Ill.Dec. 380 (3d Dist. 1985); and the proven loss of a sibling's society, In re
Estate of Finley, 151 Ill.2d 95, 601 N.E.2d 699, 176 Ill.Dec. 1 (1992).
If there is both a survival action and a wrongful death action, pecuniary injuries, such as
those for loss of support, should be carefully confined to the period after death. This helps avoid
duplication of those damages allowable under the survival action for lost wages during the
lifetime of the injured party.
Where the decedent leaves direct lineal kin, or a widow or widower, there is a
presumption that they have suffered some substantial pecuniary loss by reason of the death.
Ferraro v. Augustine, 45 Ill.App.2d 295, 196 N.E.2d 16 (1st Dist. 1964); Hall v. Gillins, 13 Ill.2d
26, 147 N.E.2d 352 (1958); Dukeman v. Cleveland, C., C. & St. L. Ry., 237 Ill. 104, 86 N.E. 712
(1908); Dodson v. Richter, 34 Ill.App.2d 22, 180 N.E.2d 505 (3d Dist. 1962). This presumption
applies even where the decedent was an adult and the next of kin are also adults. Ferraro, supra;
Dukeman, supra. The presumption of some substantial pecuniary loss will be an element which
the jury must consider with other evidence, if there is other evidence, or alone, if there is no
other evidence, to determine what they will award if they decide in favor of the plaintiff. The
power of the jury to determine the weight that should be given to this presumption was upheld in
Flynn v. Vancil, 41 Ill.2d 236, 239; 242 N.E.2d 237, 240 (1968), the court cites these instructions
with approval.
Section 31, Page 2 of 33
Bullard, supra, held there is no longer a presumption of loss of earnings upon the death
of a minor child, but there is a presumption of pecuniary injury to the parents in the loss of a
minor child's society. Ballweg v. City of Springfield, 114 Ill.2d 107, 499 N.E.2d 1373, 102
Ill.Dec. 360 (1986), and Prendergast v. Cox, supra, extended this presumption to include the loss
of an adult child's society by the parents. No such presumption attaches in the case of siblings. In
re Estate of Finley, supra.
It is now also possible to recover for the wrongful death of an unborn child if the fetus
was viable at the time of the tortious act. Green v. Smith, 71 Ill.2d 501, 377 N.E.2d 37, 17
Ill.Dec. 847 (1978). The presumption of the parents' loss of society injury extends to a stillborn
child. Seef v. Sutkus, 145 Ill.2d 336, 583 N.E.2d 510, 164 Ill.Dec. 594 (1991). Of course, there
can be no cause of action against a physician for the wrongful death of a fetus caused by an
abortion which was permitted by law and where the requisite consent was given. 740 ILCS
180/2.2.
Punitive damages may not be recovered in an action under the Wrongful Death Act.
Mattyasovszky v. West Towns Bus Co., 61 Ill.2d 31, 330 N.E.2d 509 (1975). Nor may a common
law action for punitive damages survive under the Survival Act. Froud v. Celotex Corp., 98
Ill.2d 324, 456 N.E.2d 131, 74 Ill.Dec. 629 (1983). However, a statutory right to punitive
damages, such as that provided for under the Public Utilities Act, may pass unabated to
decedent's estate under the Survival Act. National Bank of Bloomington v. Norfolk & W. Ry., 73
Ill.2d 160, 383 N.E.2d 919, 23 Ill.Dec. 48 (1978); Churchill v. Norfolk & W. Ry., 73 Ill.2d 127,
383 N.E.2d 929, 23 Ill.Dec. 58 (1978). (Effective January 1, 1986, the Public Utilities Act was
amended to exclude railroads and certain other entities from its coverage. 220 ILCS 5/3-105.)
Under the “Family Expense Statute” (750 ILCS 65/15), a spouse or parent may be liable
for medical and funeral expenses. Therefore, an independent cause of action may be maintained
by a surviving spouse for any of these expenses not recoverable under the Survival Statute.
Thompson v. City of Bushnell, 346 Ill.App. 352, 105 N.E.2d 311 (3d Dist. 1952) (spouse);
Saunders v. Schultz, 20 Ill.2d 301, 170 N.E.2d 163 (1960) (spouse); Graul v. Adrian, 32 Ill.2d
345, 205 N.E.2d 444 (1965) (spouse); Ragan v. Protko, 66 Ill.App.3d 257, 383 N.E.2d 745, 22
Ill.Dec. 937 (5th Dist. 1978) (parent); Rodgers v. Consolidated Railroad Corp., 136 Ill.App.3d
191, 482 N.E.2d 1080, 90 Ill.Dec. 797 (4th Dist. 1985) (parent). Alternatively, the administrator
of an estate can bring an independent action for medical and funeral expenses. Eggimann v.
Wise, 56 Ill.App.2d 385, 206 N.E.2d 472 (3d Dist. 1964).
Section 31, Page 3 of 33
31.01 Measure of Damages--Wrongful Death--Minor Child Decedent--Lineal Next of Kin
Surviving
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate the [lineal next of kin, e.g. parent] of the
decedent for the pecuniary loss proved by the evidence to have resulted to the [lineal next of kin]
from the death of the decedent.
“Pecuniary loss” may include loss of money, benefits, goods, services, and society.
Where a decedent leaves [lineal next of kin], the law recognizes a presumption that the
[lineal next of kin] has sustained some substantial pecuniary loss by reason of the loss of the
child's society. The weight to be given this presumption is for you to decide from the evidence in
this case.
In determining pecuniary loss, you may consider what the evidence shows concerning the
following:
[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily
contributed in the past;]
[2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to have
contributed in the future;]
[3. His age;]
[4. His sex;]
[5. His health;]
[6. His physical and mental characteristics;]
[7. His habits of (industry,) (sobriety,) (and) (thrift);]
[8. His occupational abilities;]
[9. The grief, sorrow, and mental suffering of [next of kin];]
[10. The relationship between [lineal next of kin] and the decedent.]
[The pecuniary loss must be reduced by the expenditures that you find the parent(s)
would have been likely to incur for the child had the child lived.]
Instruction, Notes and Comment revised October 2007.
Section 31, Page 4 of 33
Notes on Use
Item 9 is a new addition to the instruction. Its inclusion is based on the 2007 amendment
to the Wrongful Death Act, 740 ILCS 180/2. That amendment (P.A. 95-3) permits the recovery
of damages for grief, sorrow and mental suffering of the next of kin and applies to causes of
action accruing on and after its effective date, May 31, 2007.
Use only those factors 1-10 which are applicable to the facts of the case.
This instruction should be used with IPI 31.09 which explains why the suit is brought in
the name of the personal representative of the deceased.
This instruction should be used with IPI 31.11 defining “society” whenever loss of
society is claimed.
Comment
In Bullard v. Barnes, 102 Ill.2d 505, 517, 468 N.E.2d 1228, 1234, 82 Ill.Dec. 448, 454
(1984), the Illinois Supreme Court abolished the former presumption of loss of earnings and
created a presumption for loss of the minor child's society. The Court held:
[T]here can be no presumption of loss of earnings upon the death of a child since such a
presumption represents an aberration from, rather than a reflection of, the typical family
experience. However, we have concluded that parents are entitled to a presumption of
pecuniary injury in the loss of a child's society, based on the holding expressed earlier in
this opinion that the pecuniary injury for which parents may recover under the wrongful
death statute includes this form of loss.
Section 31, Page 5 of 33
31.01(a) Measure of Damages--Wrongful Death--Stillborn or Infant Decedent--Lineal Next
of Kin Surviving
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate the [lineal next of kin, e.g., parent] of the
decedent for the pecuniary loss proved by the evidence to have resulted to the [lineal next of kin,
e.g., parent] from the death of the decedent.
“Pecuniary loss” may include loss of money, benefits, goods, services, and society.
Where a decedent leaves [lineal next of kin, e.g., parent], the law recognizes a
presumption that the [lineal next of kin, e.g., parent] has sustained some substantial pecuniary
loss by reason of the loss of the [decedent's] society. The weight to be given this presumption is
for you to decide from the evidence in this case.
In determining pecuniary loss, you may consider what the evidence shows concerning the
following:
[1. What the decedent's health and physical and mental characteristics would have been;]
[2. What the relationship between [lineal next of kin e.g. parent] and [decedent] would
have been;]
[3. The grief, sorrow and mental suffering of the next of kin.]
[Pecuniary loss must be reduced by the expenditures that you find the parent(s) would
have been likely to incur for the child had the child lived.]
Instruction, Notes and Comment created October 2007.
Notes on Use
This instruction should be used with IPI 31.09 which explains why the suit is brought in
the name of the personal representative of the deceased and with IPI 31.11 defining “society.”
This instruction should be used when the decedent was stillborn or when there had been
insufficient time between the decedent's birth and his death for family members to establish a
relationship with the child.
Any instruction given to the jury with respect to a family's loss of a child's society should
clearly indicate that the determination of the loss is not dependent upon the family having
enjoyed a past relationship with the decedent, but is a consideration of the future companionship
the family may have enjoyed with the decedent. Thornton v. Garcini, 364 Ill.App.3d 612, 301
Ill.Dec. 386, 846 N.E.2d 989 (3rd Dist. 2006).
For causes of action that accrue before May 31, 2007, paragraph 3 should be deleted from
this instruction. Under P.A. 95-2, effective May 31, 2007, lineal next of kin may recover
Section 31, Page 6 of 33
damages for their grief, sorrow and mental suffering.
Comments
Regardless of the state of gestation, an unborn fetus is recognized as a person and the
next of kin may recover damages for pecuniary loss resulting from the death of the fetus. Seef v.
Sutkus, 145 Ill.2d 336, 164 Ill.Dec. 594, 583 N.E.2d 510 (1991); Smith v. Mercy Hosp. &
Medical Ctr., 203 Ill.App.3d 465, 148 Ill.Dec. 567, 560 N.E.2d 1164 (1st Dist. 1990); Illinois
Wrongful Death Act, 740 ILCS 180/2.2. The next of kin's right to recover for loss of society
does not depend upon whether there has been some exchange of society in the past, but whether
but for the defendant's negligence, society would have been exchanged. Seef, 145 Ill.2d at 342,
164 Ill.Dec. 594, 583 N.E.2d at 513. Although consideration of the length, intensity, and quality
of the relationship may in some cases be useful in measuring the magnitude of the next of kin's
loss, it does not determine whether a loss occurred. Seef, 145 Ill.2d at 344, 164 Ill.Dec. 594, 583
N.E.2d at 514; Thornton v. Garcini, 364 Ill.App.3d 612, 301 Ill.Dec. 386, 846 N.E.2d 989 (3rd
Dist. 2006).
Section 31, Page 7 of 33
31.02 Measure of Damages--Wrongful Death--Minor Child Decedent--Collateral Next of
Kin Surviving
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate the [collateral next of kin, e.g., brother] of
the decedent for the pecuniary loss proved by the evidence to have resulted to [collateral next of
kin] from the death of the decedent. “Pecuniary loss” may include loss of money, benefits,
goods, services, and society.
In determining pecuniary loss, you may consider what the evidence shows concerning the
following:
[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily
contributed in the past;]
[2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to have
contributed in the future;]
[3. His age;]
[4. His sex;]
[5. His health;]
[6. His physical and mental characteristics;]
[7. His habits of (industry,) (sobriety,) (and) (thrift);]
[8. His occupational abilities;]
[9. The grief, sorrow, and mental suffering of [collateral next of kin];]
[10. The relationship between [collateral next of kin] and [decedent].]
Whether pecuniary loss has been proved by the evidence is for you to determine.
Instruction, Notes and Comment revised October 2007.
Notes on Use
Item 9 is a new addition to the instruction. Its inclusion is based on the 2007 amendment
to the Wrongful Death Act, 740 ILCS 180/2. That amendment (P.A. 95-3) permits the recovery
of damages for grief, sorrow and mental suffering of the next of kin and applies to causes of
action accruing on and after its effective date, May 31, 2007.
Use only those factors 1-10 which are applicable to the facts of the case.
Section 31, Page 8 of 33
This instruction should be used with IPI 31.09 which explains why the suit is brought in
the name of the personal representative of the deceased.
This instruction should be used with IPI 31.11 defining “society” whenever loss of
society is claimed.
Comment
Resolving a conflict in the decisions of the appellate court, the Illinois Supreme Court has
ruled that proven loss of a sibling's society is a “pecuniary injury” for which the other siblings
can recover. In re Estate of Finley, 151 Ill.2d 95, 601 N.E.2d 699, 176 Ill.Dec. 1 (1992). Unlike
surviving spouses and lineal heirs, however, siblings are not entitled to any presumption of loss
of society damages. Id.
Since there is no presumption of loss of a sibling's society, and there never has been any
presumption of any loss of support or other damages in the case of siblings or other collateral
heirs (Rhoads v. Chicago & A. R.R., 227 Ill. 328, 335, 81 N.E. 371, 373 (1907); Wilcox v. Bierd,
330 Ill. 571, 580, 162 N.E. 170, 174, 175 (1928); Howlett v. Doglio, 402 Ill. 311, 316, 83 N.E.2d
708, 711 (1949); Shehy v. Bober, 78 Ill.App.3d 1061, 398 N.E.2d 80, 34 Ill.Dec. 405 (1st Dist.
1979); Dodson v. Richter, 34 Ill.App.2d 22, 25, 180 N.E.2d 505, 507 (3d Dist. 1962)), it follows
that only proven wrongful death damages are recoverable by collateral heirs.
Section 31, Page 9 of 33
31.02(a) Measure of Damages--Wrongful Death--Stillborn or Infant Decedent--Collateral
Next of Kin Surviving
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate the [collateral next of kin, e.g., brother] of
the decedent for the pecuniary loss proved by the evidence to have resulted to the [collateral next
of kin, e.g., brother] from the death of the decedent.
“Pecuniary loss” may include loss of money, benefits, goods, services, and society.
In determining pecuniary loss, you may consider what the evidence shows concerning the
following:
[1. What the decedent's health and physical and mental characteristics would have been;]
[2. What the relationship between [collateral next of kin, e.g., brother] and [decedent]
would have been;]
[3. The grief, sorrow and mental suffering of the next of kin.]
Whether pecuniary loss has been proved by the evidence is for you to determine.
Instruction, Notes and Comment created October 2007.
Notes on Use
This instruction should be used with IPI 31.09 which explains why the suit is brought in
the name of the personal representative of the deceased and with IPI 31.11 defining “society.”
This instruction should be used when the decedent was stillborn or when there had been
insufficient time between the decedent's birth and his death for family members to establish a
relationship with the child.
Any instruction given to the jury with respect to a family's loss of a child's society should
clearly indicate that the determination of the loss is not dependent upon the family having
enjoyed a past relationship with the decedent, but is a consideration of the future companionship
the family may have enjoyed with the decedent. Thornton v. Garcini, 364 Ill.App.3d 612, 301
Ill.Dec. 386, 846 N.E.2d 989 (3rd Dist. 2006).
For causes of action that accrue before May 31, 2007, paragraph 3 should be deleted from
this instruction. Under P.A. 95-2, effective May 31, 2007, lineal next of kin may recover
damages for their grief, sorrow and mental suffering.
Comments
Regardless of the state of gestation, an unborn fetus is recognized as a person and the
next of kin may recover damages for pecuniary loss resulting from the death of the fetus. Seef v.
Section 31, Page 10 of 33
Sutkus, 145 Ill.2d 336, 164 Ill.Dec. 594, 583 N.E.2d 510 (1991); Smith v. Mercy Hosp. &
Medical Ctr., 203 Ill.App.3d 465, 148 Ill.Dec. 567, 560 N.E.2d 1164 (1st Dist. 1990); Illinois
Wrongful Death Act, 740 ILCS 180/2.2. The next of kin's right to recover for loss of society does
not depend upon whether there has been some exchange of society in the past, but whether but
for the defendant's negligence, society would have been exchanged. Seef, 145 Ill.2d at 342, 164
Ill.Dec. 594, 583 N.E.2d at 513. Although consideration of the length, intensity, and quality of
the relationship may in some cases be useful in measuring the magnitude of the next of kin's loss,
it does not determine whether a loss occurred. Seef, 145 Ill.2d at 344, 164 Ill.Dec. 594, 583
N.E.2d at 514; Thornton v. Garcini, 364 Ill.App.3d 612, 301 Ill.Dec. 386, 846 N.E.2d 989 (3rd
Dist. 2006).
Section 31, Page 11 of 33
31.03 Measure of Damages--Wrongful Death--Minor Child Decedent--Lineal and
Collateral Next of Kin Surviving
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate the [lineal and collateral next of kin, e.g.
brother, parent, etc.] of the decedent for the pecuniary loss proved by the evidence to have
resulted to [the lineal and collateral next of kin] from the death of the decedent. “Pecuniary loss”
may include loss of money, benefits, goods, services, and society.
Where a decedent leaves [lineal next of kin], the law recognizes a presumption that the
[lineal next of kin] have sustained some substantial pecuniary loss by reason of the loss of the
child's society. The weight to be given this presumption is for you to decide from the evidence in
this case.
There is no presumption of pecuniary loss to the [collateral next of kin] of the decedent.
In determining pecuniary loss, you may consider what the evidence shows concerning the
following:
[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily
contributed in the past;]
[2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to have
contributed in the future;]
[3. His age;]
[4. His sex;]
[5. His health;]
[6. His physical and mental characteristics;]
[7. His habits of (industry,) (sobriety,) (and) (thrift);]
[8. His occupational abilities;]
[9. The grief, sorrow, and mental suffering of [next of kin];]
[10. The relationship between [lineal and collateral next of kin] and [decedent].]
[Pecuniary loss must be reduced by the expenditures that you find the parent(s) would
have been likely to incur for the child had the child lived.]
Instruction, Notes and Comment revised October 2007.
Section 31, Page 12 of 33
Notes on Use
Item 9 is a new addition to the instruction. Its inclusion is based on the 2007 amendment
to the Wrongful Death Act, 740 ILCS 180/2. That amendment (P.A. 95-3) permits the recovery
of damages for grief, sorrow and mental suffering of the next of kin and applies to causes of
action accruing on and after its effective date, May 31, 2007.
Use only those factors 1-10 which are applicable to the facts of the case.
This instruction should be used with IPI 31.09 which explains why the suit is brought in
the name of the personal representative of the deceased.
This instruction should be used with IPI 31.11 defining “society” whenever loss of
society is claimed.
Comment
See Comments to IPI 31.01 and 31.02.
Section 31, Page 13 of 33
31.03(a) Measure of Damages--Wrongful Death--Stillborn or Infant Decedent--Lineal and
Collateral Next of Kin Surviving
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate the [lineal and collateral next of kin, e.g.,
parent, brother, etc.] of the decedent for the pecuniary loss proved by the evidence to have
resulted to the [lineal and collateral next of kin, e.g., parent, brother, etc.] from the death of the
decedent.
“Pecuniary loss” may include loss of money, benefits, goods, services, and society.
Where a decedent leaves [lineal next of kin, e.g., parent], the law recognizes a
presumption that the [lineal next of kin, e.g., parent] has sustained some substantial pecuniary
loss by reason of the loss of the child's society. The weight to be given this presumption is for
you to decide from the evidence in this case.
There is no presumption of pecuniary loss to a [collateral next of kin, e.g., brother] of the
decedent.
In determining pecuniary loss, you may consider what the evidence shows concerning the
following:
[1. What the decedent's health and physical and mental characteristics would have been;]
[2. What the relationship between [collateral next of kin, e.g., brother] and [decedent]
would have been;]
[3. The grief, sorrow and mental suffering of the next of kin.]
[Pecuniary loss must be reduced by the expenditures that you find the parent(s) would
have been likely to incur for the child had the child lived.]
Instruction, Notes and Comment created October 2007.
Notes on Use
This instruction should be used with IPI 31.09 which explains why the suit is brought in
the name of the personal representative of the deceased and with IPI 31.11 defining “society.”
This instruction should be used when the decedent was stillborn or when there had been
insufficient time between the decedent's birth and his death for family members to establish a
relationship with the child.
Any instruction given to the jury with respect to a family's loss of a child's society should
clearly indicate that the determination of the loss is not dependent upon the family having
enjoyed a past relationship with the decedent, but is a consideration of the future companionship
Section 31, Page 14 of 33
the family may have enjoyed with the decedent. Thornton v. Garcini, 364 Ill.App.3d 612, 301
Ill.Dec. 386, 846 N.E.2d 989 (3rd Dist. 2006).
For causes of action that accrue before May 31, 2007, paragraph 3 should be deleted from
this instruction. Under P.A. 95-2, effective May 31, 2007, lineal next of kin may recover
damages for their grief, sorrow and mental suffering.
Comments
Regardless of the state of gestation, an unborn fetus is recognized as a person and the
next of kin may recover damages for pecuniary loss resulting from the death of the fetus. Seef v.
Sutkus, 145 Ill.2d 336, 164 Ill.Dec. 594, 583 N.E.2d 510 (1991); Smith v. Mercy Hosp. &
Medical Ctr., 203 Ill.App.3d 465, 148 Ill.Dec. 567, 560 N.E.2d 1164 (1st Dist. 1990); Illinois
Wrongful Death Act, 740 ILCS 180/2.2. The next of kin's right to recover for loss of society
does not depend upon whether there has been some exchange of society in the past, but whether
but for the defendant's negligence, society would have been exchanged. Seef, 145 Ill.2d at 342,
164 Ill.Dec. 594, 583 N.E.2d at 513. Although consideration of the length, intensity, and quality
of the relationship may in some cases be useful in measuring the magnitude of the next of kin's
loss, it does not determine whether a loss occurred. Seef, 145 Ill.2d at 344, 164 Ill.Dec. 594, 583
N.E.2d at 514; Thornton v. Garcini, 364 Ill.App.3d 612, 301 Ill.Dec. 386, 846 N.E.2d 989 (3rd
Dist. 2006).
Section 31, Page 15 of 33
31.04 Measure of Damages--Wrongful Death--Adult Decedent--Widow and/or Lineal Next
of Kin Surviving
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate the [lineal next of kin, e.g., widow] of the
decedent for the pecuniary loss proved by the evidence to have resulted to the [lineal next of kin]
of the decedent. “Pecuniary loss” may include loss of money, benefits, goods, services, [and]
society [and sexual relations].
Where a decedent leaves [lineal next of kin], the law recognizes a presumption that the
[lineal next of kin] have sustained some substantial pecuniary loss by reason of the death. The
weight to be given this presumption is for you to decide from the evidence in this case.
In determining pecuniary loss, you may consider what the evidence shows concerning the
following:
[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily
contributed in the past;]
[2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to have
contributed in the future;]
[3. Decedent's personal expenses (and other deductions);]
[4. What instruction, moral training, and superintendence of education the decedent might
reasonably have been expected to give his child had he lived;]
[5. His age;]
[6. His sex;]
[7. His health;]
[8. His habits of (industry,) (sobriety,) (and) (thrift);]
[9. His occupational abilities;]
[10. The grief, sorrow, and mental suffering of [next of kin];]
[11. The relationship between [lineal next of kin, e.g. son] and [decedent].]
[12. The marital relationship that existed between [widow/widower] and [decedent].]
[Widow/widower] is not entitled to damages for loss of [decedent's] society and sexual
relations after [date of remarriage].
Section 31, Page 16 of 33
Instruction, Notes and Comment revised October 2007.
Notes on Use
Use only those factors 1-12 which are applicable to the facts of this case. If the surviving
spouse has remarried, the bracketed paragraph should be utilized to insert the date of the
remarriage. See Carter v. Chicago & Ill. Midland Ry. Co., 130 Ill.App.3d 431, 474 N.E.2d 458,
85 Ill.Dec. 730 (4th Dist. 1985).
This instruction should be used with IPI 31.09 which explains why the suit is brought in
the name of the personal representative of the deceased.
This instruction should be used with IPI 31.11 defining “society” whenever loss of
society is claimed.
Item 10 is a new addition to the instruction. Its inclusion is based on the 2007 amendment
to the Wrongful Death Act, 740 ILCS 180/2. That amendment (P.A. 95-3) permits the recovery
of damages for grief, sorrow and mental suffering of the next of kin and applies to causes of
action accruing on and after its effective date, May 31, 2007.
Comment
Various factors in addition to loss of support or monetary contributions are proper in
determining pecuniary damages. Rasmussen v. Clark, 346 Ill.App. 181, 104 N.E.2d 325 (2d Dist.
1952) (decedent's payment of utility bills and personal services at home); Hudnut v. Schmidt, 324
Ill.App. 548, 58 N.E.2d 929 (3d Dist. 1944) (mental and physical capacity, habits of industry and
sobriety, usual earnings and probability of future earnings); O'Brien v. Chicago & N.W. Ry. Co.,
329 Ill.App. 382, 68 N.E.2d 638 (2d Dist. 1946) (prospects of increased earnings from inflation
and rise of cost of living); Hall v. Gillins, 13 Ill.2d 26, 147 N.E.2d 352 (1958) (loss of father's
instruction and moral training); Flynn v. Fogarty, 106 Ill. 263 (1883) (net income); Kaiserman v.
Bright, 61 Ill.App.3d 67, 377 N.E.2d 261, 18 Ill.Dec. 108 (1st Dist. 1978) (future support and
attention, care, superintendence, and education); Illinois Cent. R. Co. v. Baches, 55 Ill. 379
(1870) (prospective pecuniary benefits); Graul v. Adrian, 32 Ill.2d 345, 205 N.E.2d 444 (1965)
(value of decedent's contributions to family unit); Elliott v. Willis, 92 Ill.2d 530, 442 N.E.2d 163,
65 Ill.Dec. 852 (1982) (loss of consortium, consisting of society, companionship, and sexual
relations, by the surviving spouse); Bullard v. Barnes, 102 Ill.2d 505, 468 N.E.2d 1228, 82
Ill.Dec. 448 (1984) (loss of a minor child's society by the parent); Prendergast v. Cox, 128
Ill.App.3d 84, 470 N.E.2d 34, 83 Ill.Dec. 279 (1st Dist. 1984) (loss of unmarried adult child's
society by parents); In re Estate of Keeling, 133 Ill.App.3d 226, 478 N.E.2d 871, 88 Ill.Dec. 380
(3d Dist. 1985) (loss of parent's society by an adult child).
“Other deductions” do not include income taxes. See Klawonn v. Mitchell, 105 Ill.2d 450,
475 N.E.2d 857, 86 Ill.Dec. 478 (1985); cf. McCann v. Lisle--Woodridge Fire Protection Dist.,
115 Ill.App.3d 702, 450 N.E.2d 1311, 71 Ill.Dec. 432 (2d Dist. 1983).
In Carter v. Chicago & Ill. Midland Ry. Co., 130 Ill.App.3d 431, 474 N.E.2d 458, 85
Section 31, Page 17 of 33
Ill.Dec. 730 (4th Dist. 1985), it was held that there can be no claim for loss of consortium by a
spouse for the period of time after his or her remarriage.
Section 31, Page 18 of 33
31.05 Measure of Damages--Wrongful Death--Adult Decedent--Collateral Next of Kin
Surviving
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate the [collateral next of kin] of the decedent
for the pecuniary loss proved by the evidence to have resulted to the [collateral next of kin] from
the death of the decedent. “Pecuniary loss” may include loss of money, benefits, goods, services,
[and] society.
In determining pecuniary loss, you may consider what the evidence shows concerning the
following:
[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily
contributed in the past;]
[2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to have
contributed in the future;]
[3. Decedent's personal expenses (and other deductions);]
[4. His age;]
[5. His sex;]
[6. His health;]
[7. His physical and mental characteristics;]
[8. His habits of (industry,) (sobriety,) (and) (thrift);]
[9. His occupational abilities;]
[10. The grief, sorrow, and mental suffering of [collateral next of kin];]
[11. The relationship between [collateral next of kin] and [decedent].]
Whether pecuniary loss has been proved by the evidence is for you to determine.
Instruction, Notes and Comment revised October 2007.
Notes on Use
Item 10 is a new addition to the instruction. Its inclusion is based on the 2007 amendment
to the Wrongful Death Act, 740 ILCS 180/2. That amendment (P.A. 95-3) permits the recovery
of damages for grief, sorrow and mental suffering of the next of kin and applies to causes of
action accruing on and after its effective date, May 31, 2007.
Section 31, Page 19 of 33
Use only those factors 1-11 which have a basis in the evidence.
This instruction should be used with IPI 31.09 which explains why the suit is brought in
the name of the personal representative of the deceased.
This instruction should be used with IPI 31.11 defining “society” whenever loss of
society is claimed.
Comment
See Comments to IPI 31.02 and 31.04.
Section 31, Page 20 of 33
31.06 Measure of Damages--Wrongful Death--Unmarried Adult Decedent--Lineal and
Collateral Next of Kin Surviving
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate the [lineal and collateral next of kin] of the
decedent for the pecuniary loss proved by the evidence to have resulted to [the next of kin] from
the death of the decedent.
“Pecuniary loss” may include loss of money, benefits, goods, services, [and] society [and
sexual relations].
Where a decedent leaves [lineal next of kin], the law recognizes a presumption that the
[lineal next of kin] has sustained some substantial pecuniary loss by reason of the death. The
weight to be given this presumption is for you to decide from the evidence in this case.
In determining pecuniary loss, you may consider what the evidence shows concerning the
following:
[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily
contributed in the past;]
[2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to have
contributed in the future;]
[3. Decedent's personal expenses (and other deductions);]
[4. His age;]
[5. His sex;]
[6. His health;]
[7. His physical and mental characteristics;]
[8. His habits of (industry,) (sobriety,) (and) (thrift);]
[9. His occupational abilities;]
[10. The grief, sorrow, and mental suffering of [next of kin];]
[11. The relationship between [next of kin] and [decedent].]
Instruction, Notes and Comment revised October 2007.
Notes on Use
Section 31, Page 21 of 33
Item 10 is a new addition to the instruction. Its inclusion is based on the 2007 amendment
to the Wrongful Death Act, 740 ILCS 180/2. That amendment (P.A. 95-3) permits the recovery
of damages for grief, sorrow and mental suffering of the next of kin and applies to causes of
action accruing on and after its effective date, May 31, 2007.
Use only those factors 1-11 which have a basis in the evidence.
This instruction should be used with IPI 31.09 which explains why the suit is brought in
the name of the personal representative of the deceased.
This instruction should be used with IPI 31.11 defining “society” whenever loss of
society is claimed.
Comment
See Comments to IPI 31.02 and 31.04.
Section 31, Page 22 of 33
31.07 Measure of Damages--Wrongful Death--Factors Excluded
[Under Count ____,] In determining “pecuniary loss” you may not consider the
following:
[1. The pain and suffering of the decedent;]
[2. The grief or sorrow of the next of kin;] [or]
[3. The poverty or wealth of the next of kin.]
Instruction, Notes and Comment revised October 2007.
Notes on Use
For causes of action that accrue after May 31, 2007, paragraph 2 should be deleted from
this instruction. Under P.A. 95-3, effective May 31, 2007, next of kin may recover damages for
their grief, sorrow and mental suffering.
This instruction is designed to prevent the jury from considering factors which are not
elements of damage in a cause of action based on pecuniary injury. If used, it should follow IPI
31.01, 31.04, or 31.06.
Ordinarily evidence is not admitted as to wealth or poverty of the widow or next of kin.
Item 3 may be used only when such evidence has been admitted.
In cases brought under the Survival Act, the decedent's pain and suffering may be
compensable. Where a trial involves concurrent claims under the Survival Act and the Wrongful
Death Act, paragraph 1 should be deleted from this instruction because of the possibility of
confusing the jury.
Comment
The emotional aspects of a death are not compensable to the next of kin. Chicago & A.R.
Co. v. Shannon, 43 Ill. 338 (1867); Chicago & N.W.R. Co. v. Swett, 45 Ill. 197 (1867) (pain and
suffering of bereavement); Wilcox v. Bierd, 330 Ill. 571, 162 N.E. 170 (1928), aff'g 235 Ill. App.
126 (3d Dist. 1924) (wealth or poverty of beneficiary); Illinois Cent. R. Co. v. Baches, 55 Ill. 379
(1870) (helplessness of beneficiary).
The Legislature has modified the Wrongful Death Act to permit recovery of damages for
grief, sorrow and mental suffering of the lineal next of kin. This amendment applies to all causes
of action accruing on and after May 31, 2007. 740 ILCS 180/2.
31.08 Damages--Wrongful Death--Contributory Negligence--More Than One Beneficiary
Section 31, Page 23 of 33
[Withdrawn]
Comment
IPI 31.08 formerly read, “If you find that [surviving spouse] [or] [next of kin] negligently
contributed to cause the death of the decedent, the negligence of that person does not bar
recovery by the plaintiff, but in any award you make you may not include damages for any
pecuniary injuries suffered by that person.” It has been withdrawn due to the amendment of
section 2 of the Wrongful Death Act (740 ILCS 180/2).
Instruction withdrawn March 2007.
Section 31, Page 24 of 33
B31.08 Damages--Wrongful Death--Contributory Negligence--More Than One Beneficiary
If you find that [beneficiary and/or decedent] contributed to the total proximate cause of
the death of the decedent you shall determine the percentage of contributory fault of [beneficiary
and/or decedent].
[If you find that the contributory (fault) (negligence) of the decedent was more than 50%
of the total proximate cause of the death of the decedent, then you shall enter a verdict in favor of
the defendant(s). If you find that the contributory fault of the decedent was 50% or less of the
total proximate cause of the death of the decedent, then your verdict should be for the plaintiff
and you will reduce damages in the manner stated in the instructions.]
[The contributory fault of a beneficiary affects his/her right to recover damages.]
If you find that the contributory fault of [beneficiary] was more than 50% of the total
proximate cause of the death of the decedent, then [beneficiary] shall not recover damages from
this suit. However, you are not to consider this fact in arriving at the total amount of damages, if
any, in this case.
If you find that the contributory fault of [beneficiary] was 50% or less of the total
proximate cause of the death of the decedent, his/her damages shall be reduced in that proportion
and the Court shall make the adjustments required by law with respect to the recovery of
[beneficiary].
Notes on Use
This instruction should be used whenever there is an issue of contributory fault of one or
more of several of the beneficiaries on behalf of whom the suit is brought. If there is no issue of
the decedent's contributory fault, the second paragraph should not be used. If contributory fault
of several beneficiaries is in issue the instruction should be amended.
Comment
Contributory fault of a beneficiary no longer bars recovery, but will only reduce that
beneficiary's recovery if no greater than 50% of the total fault. 740 ILCS 180/2. The jury's
verdict will be adjusted by the Court after hearing on the issue of dependency. See provisions of
740 ILCS 180/2 for the proper procedure. If the contributory fault of the beneficiary is more than
50% of the total fault, that beneficiary takes nothing and the percentage of dependency the trial
judge finds for that beneficiary will inure to the benefit of the defendant. If the contributory fault
of the beneficiary is not more than 50% of the total fault, the damages he would recover based on
the percentage of dependency are reduced by his fault, thus reducing the total judgment amount
payable by the defendant.
Section 31, Page 25 of 33
31.08.01 Damages--Wrongful Death--Contributory Negligence--One Beneficiary
[Withdrawn]
Comment
IPI 31.08.01 formerly read, “If you find that [name of beneficiary] negligently
contributed to cause the death of the decedent, then you must return a verdict in favor of the
defendant.” It has been withdrawn due to amendment of section 2 of the Wrongful Death Act
(740 ILCS 180/2).
Instruction withdrawn March 2007.
Section 31, Page 26 of 33
B31.08.01 Damages--Wrongful Death--Contributory Fault of Sole Beneficiary
If you find that [beneficiary and/or decedent] contributed to cause the death of the
decedent, then you must determine the percentage of the contributory fault of [beneficiary and/or
decedent].
[If you find that the contributory (fault) (negligence) of the decedent was more than 50%
of the total proximate cause of the death of the decedent, then you shall enter a verdict in favor of
the defendant(s). If you find that the contributory fault of the decedent was 50% or less of the
total proximate cause of the death of the decedent, then your verdict should be for the plaintiff
and you will reduce damages in the manner stated in the instructions.]
[If you find that the contributory (fault) (negligence) of [beneficiary] was more than 50%
of the total proximate cause of the death of the decedent, then your verdict should be for the
defendant(s).
If you find that the (fault) (negligence) of [beneficiary] was 50% or less of the total
proximate cause of the death of the decedent, then your verdict should be for the plaintiff and
you will reduce plaintiff's damages in the manner stated in these instructions.]
Notes on Use
This instruction should be used whenever there is an issue of contributory fault by the
sole beneficiary on whose behalf the suit is brought.
*Changes to heading only. No changes to existing instruction.*
Section 31, Page 27 of 33
31.09 Action for Wrongful Death and Survival Action Brought by Personal Representative
The plaintiff [administrator's or executor's name] brings this action in a representative
capacity by reason of his being [administrator] [executor] of the estate of [deceased's name],
deceased. He represents [names of widow and/or next of kin], the [widow] [and] [next of kin] of
the deceased [, and the estate of the deceased]. They are the real parties in interest in this lawsuit,
and in that sense are the real plaintiffs whose damages you are to determine if you decide for the
[administrator] [executor] of the estate of [deceased's name].
Notes on Use
This instruction should be given in cases based on the Wrongful Death Act (740 ILCS
180/1 (1994)) and the Survival Statute (755 ILCS 5/27-6 (1994)), and should be accompanied by
the appropriate charges enumerated in IPI 31.01 through 31.10.
If there is a survival action, the bracketed phrase “[and the estate of the deceased]” may
be used after naming the widow and next of kin.
Comment
The Wrongful Death Act provides that “every such action shall be brought by and in the
names of the personal representatives of” the deceased. 740 ILCS 180/1 (1994). This instruction
properly informs the jury of the role the nominal plaintiff has assumed and that the administrator
is merely representing the interests of the next of kin.
In the usual case, the widow and next of kin would be the only parties in interest, and
there would be no need to mention the estate of the deceased. Under some circumstances,
however, it may well be necessary to maintain a clear distinction between the wrongful death
count and the survival count throughout the trial, even to the point of separate verdict forms. As
is clearly pointed out in the dissent to National Bank of Bloomington v. Norfolk & W. Ry. Co., 73
Ill.2d 160, 383 N.E.2d 919, 23 Ill.Dec. 48 (1978), the estate may include persons other than the
widow and next of kin; or even if only the widow and next of kin are included, they may well
take the money in significantly different proportions under each count.
31.10 Damages--Survival Action
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate the estate for any of the following elements
of damages proved by the evidence to have resulted from the [negligence] [wrongful conduct] of
the defendant during the period between the time of the decedent's injuries and the time of his
death, taking into consideration the nature, extent, and duration of the injury:
[Here insert the elements of damages which have a basis in the evidence.]
Section 31, Page 28 of 33
Whether any of these elements of damages has been proved by the evidence is for you to
determine.
Notes on Use
If there is both a wrongful death count and a survival count the specific count involved
should be designated at the beginning of this instruction.
The bracketed words “wrongful conduct” in the first paragraph may be used instead of
“negligence” when the misconduct alleged includes a charge such as wilful and wanton conduct
or other fault.
Other phrases may be substituted for the bracketed terms “negligence” or “wrongful
conduct” or “wrongful conduct of the defendant” where appropriate, such as “unreasonably
dangerous condition of the product.”
Comment
The phrase “nature, extent, and duration of the injury” is no longer a separate element of
damages; rather, it is a factor to be considered in evaluating the other elements. See Comment to
IPI 30.02.
Murphy v. Martin Oil Co., 56 Ill.2d 423, 308 N.E.2d 583 (1974), specifically referred to
survival-action damages of conscious pain and suffering, loss of earnings, medical expenses,
physical disability, and property damage.
The fact that a decedent has suffered for only a short period of time is not a bar to a claim
for conscious pain and suffering. The duration of the pain and suffering affects the amount of
damages to be awarded, not the right to recover damages. Glover v. City of Chicago, 106
Ill.App.3d 1066, 436 N.E.2d 623, 62 Ill.Dec. 597 (1st Dist. 1982).
Section 31, Page 29 of 33
31.11 Damages--Loss of Society--Definition
When I use the term “society” in these instructions, I mean the mutual benefits that each
family member receives from the other's continued existence, including love, affection, care,
attention, companionship, comfort, guidance, and protection.
Notes on Use
This instruction should be given whenever any other instruction includes the term
“society.”
Comment
See Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 585; 94 S.Ct. 806, 815; 39 L.Ed.2d
9 (1974) (“embraces a broad range of mutual benefits each family member receives from the
others' continued existence, including love, affection, care, attention, companionship, comfort
and protection”) (cited in McDonald v. Federal Barge Lines, Inc., 496 F.2d 1376 (5th Cir.
1974)); Bullard v. Barnes, 102 Ill.2d 505, 514; 468 N.E.2d 1228, 1232; 82 Ill.Dec. 448, 452
(1984) (“companionship, guidance, advice, love, and affection”); Vernon's Ann.Mo. Stat. §
537.090 (“companionship, comfort, instruction, guidance, counsel, training, and support”);
California Jury Instructions Civil (BAJI) No. 14.50 (“love, companionship, comfort, affection,
society, solace or moral support”); Washington Pattern Jury Instructions Civil No. 31.02 (“love,
care, guidance, training, instruction, and protection”).
A similar instruction was approved in Singh v. Air Illinois, Inc., 165 Ill.App.3d 923, 520
N.E.2d 852, 117 Ill.Dec. 501 (1st Dist. 1988), and Drake v. Harrison, 151 Ill.App.3d 1082, 503
N.E.2d 1072, 1076; 105 Ill.Dec. 66, 70 (5th Dist. 1987). See also Lorenz v. Air Illinois, Inc., 168
Ill.App.3d 1060, 522 N.E.2d 1352, 119 Ill.Dec. 493 (1st Dist. 1988) (similar instruction not
error).
Section 31, Page 30 of 33
31.12 Wrongful Death Case--Discount of Future Damages
If you find for the plaintiff, then in assessing damages you may consider how long the
[names of widow and/or next of kin] will be likely to sustain pecuniary losses as a result of
[decedent's name]'s death, considering how long [decedent's name] was likely to have lived and
how long [names of widow and/or next of kin] [is] [are] likely to live.
In calculating the amount of these pecuniary losses consisting of money, benefits, goods
or services, you must determine their present cash value. “Present cash value” means the sum of
money needed now which, together with what that sum may reasonably be expected to earn in
the future, will equal the amounts of those pecuniary losses at the times in the future when they
will be sustained.
Damages for [loss of sexual relations] [loss of society] are not reduced to present cash
value.
Notes on Use
If mortality tables are in evidence use IPI 31.13 instead.
Comment
This instruction was formerly IPI 34.03.
See Comments to IPI 34.02 and 34.04.
This instruction is intended to satisfy the requirement that the jury be informed that they
must reduce to present cash value any award for future pecuniary damages suffered by next of
kin. Allendorf v. Elgin, J. & E. Ry. Co., 8 Ill.2d 164, 133 N.E.2d 288 (1956), cert. denied, 352
U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53 (1956).
See 59 Ill. B.J. 581, 60 Ill. B.J. 97, and 60 Ill. B.J. 520.
This instruction and IPI 31.13 (formerly IPI 34.03 and 34.05) were approved in Baird v.
Chicago, B. & Q.R. Co., 32 Ill.App.3d 1, 7, 334 N.E.2d 920, 925 (4th Dist. 1975), aff'd, 63 Ill.2d
463, 349 N.E.2d 413 (1976).
The appellate court has held that damages for loss of a decedent's consortium or society
are not reduced to present cash value. Lorenz v. Air Illinois, Inc., 168 Ill.App.3d 1060, 522
N.E.2d 1352, 119 Ill.Dec. 493 (1st Dist. 1988); Exchanges Nat'l Bank of Chicago v. Air Illinois,
Inc., 167 Ill.App.3d 1081, 522 N.E.2d 146, 118 Ill.Dec. 691 (1st Dist. 1988). See also Singh v.
Air Illinois, Inc., 165 Ill.App.3d 923, 520 N.E.2d 852, 117 Ill.Dec. 501 (1st Dist. 1988) (issue
waived, but would not have been error even absent waiver).
For a discussion of a stipulated calculation of future damages from date of death rather
than from date of trial, see In re Air Crash Disaster Near Chicago, Illinois, on May 25, 1979,
Section 31, Page 31 of 33
644 F.2d 633 (7th Cir. 1981) (court construes the requirement of this instruction and IPI 31.13
(formerly IPI 34.03 and 34.05) as requiring discounting of future earnings from date of trial).
Section 31, Page 32 of 33
31.13 Mortality Tables as Evidence of Damages--Wrongful Death Case
If you find for the plaintiff, then in assessing damages you may consider how long the
[names of widow and/or next of kin] will be likely to sustain pecuniary losses as a result of
[decedent's name]'s death, considering how long [decedent's name] was likely to have lived and
how long [names of widow and/or next of kin] [is] [are] likely to live.
According to a table of mortality in evidence, the life expectancy of a [male] person aged
____ years is ____ years. That of a [female] person aged ____ years is ____ years [and that of a
(male) person aged ____ years is ____ years]. These figures are not conclusive. They are the
average life expectancies of persons who have reached those ages. They may be considered by
you in connection with other evidence relating to the probable life expectancies of the decedent
and [his widow] [and] [his next of kin] including evidence of the decedent's occupation, health,
habits and activities, bearing in mind that some persons live longer and some persons live less
than the average.
In calculating the amount of these pecuniary losses consisting of money, benefits, goods
or services, you must determine their present cash value. “Present cash value” means the sum of
money needed now which, together with what that sum may reasonably be expected to earn in
the future, will equal the amounts of those pecuniary losses at the times in the future when they
will be sustained.
Damages for [loss of sexual relations] [loss of society] are not reduced to present cash
value.
Notes on Use
If mortality tables are not in evidence, use IPI 31.12 instead.
The age of the deceased at the time of his death and his life expectancy and the ages of
the widow and respective next of kin and their life expectancies should be placed in the
appropriate blanks in this instruction. The bracketed material should be used when the evidence
requires it.
Comment
This instruction was formerly 34.05.
See Comments to IPI 34.02 and 34.04.
This instruction (as IPI 34.05) was approved by the Illinois Supreme Court. Baird v.
Chicago, B. & Q. R. Co., 63 Ill.2d 463, 471, 349 N.E.2d 413, 417 (1976).
The appellate court has held that damages for loss of a decedent's consortium or society
are not reduced to present cash value. Lorenz v. Air Illinois, Inc., 168 Ill.App.3d 1060, 522
N.E.2d 1352, 119 Ill.Dec. 493 (1st Dist. 1988); Exchange Nat'l Bank v. Air Illinois, Inc., 167
Section 31, Page 33 of 33
Ill.App.3d 1081, 522 N.E.2d 146, 118 Ill.Dec. 691 (1st Dist. 1988). See also Singh v. Air Illinois,
Inc., 165 Ill.App.3d 923, 520 N.E.2d 852, 117 Ill.Dec. 501 (1st Dist. 1988) (issue waived, but
would not have been error even absent waiver).
Section 32, Page 1 of 7
32.00
INJURY TO SPOUSE AND FAMILY MEMBERS
INTRODUCTION
The instructions in this chapter apply to the recovery of consequential damages by a
spouse and other family members in other than wrongful death cases. For instructions on
wrongful death damages, see Chapter 31.
In Illinois both husband and wife may recover for loss of consortium. Dini v. Naiditch, 20
Ill.2d 406, 170 N.E.2d 881 (1960). The loss of consortium action must be joined with the
principal action. Brown v. Metzger, 104 Ill.2d 30, 470 N.E.2d 302, 83 Ill.Dec. 344 (1984).
However, punitive damages are not allowed in an action for loss of consortium.
Hammond v. North Am. Asbestos Corp., 97 Ill.2d 195, 454 N.E.2d 210, 73 Ill.Dec. 350 (1983).
The “Family Expense Statute,” 750 ILCS 65/15 (1994), makes a spouse liable for
medical and funeral expenses. Therefore, an independent cause of action may be maintained by a
spouse for these expenses. Saunders v. Schultz, 20 Ill.2d 301, 170 N.E.2d 163 (1960); Thompson
v. City of Bushnell, 346 Ill.App. 352, 105 N.E.2d 311 (3d Dist.1952).
A parent does not have a cause of action for loss of a child's society resulting from a
negligently-caused non-fatal injury to the child. Dralle v. Ruder, 124 Ill.2d 61, 529 N.E.2d 209,
124 Ill.Dec. 389 (1988). Likewise, a child does not have a cause of action for loss of a parent's
society resulting from a negligently-caused non-fatal injury to the parent. Karagiannakos v.
Gruber, 274 Ill.App.3d 155, 653 N.E.2d 932, 210 Ill.Dec. 737 (1st Dist.1995).
Section 32, Page 2 of 7
32.01 Measure of Damages--Injury to Spouse or Family Member
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate him for any of the following elements of
damages arising out of injuries to [his wife] [his child] [his parent] proved by the evidence to
have resulted from the [negligence] [wrongful conduct] [of the defendant].
[Here insert the elements of damage which have a basis in the evidence.]
Whether any of these elements of damages has been proved by the evidence is for you to
determine.
Notes on Use
The instruction cannot be given in the form set out above. It must be completed by
selecting the elements of damages shown by evidence from among IPI 32.02, 32.03, 32.04,
32.05, and 32.06. The relevant elements of damage should be inserted between the two
paragraphs of IPI 32.01.
The bracketed words “wrongful conduct” in the first paragraph may be used instead of
“negligence” when the misconduct alleged includes a charge such as willful and wanton conduct
or other fault.
Other phrases may be substituted for the bracketed terms “negligence” or “wrongful
conduct” or “wrongful conduct of the defendant” where appropriate, such as “unreasonably
dangerous condition of the product.”
Section 32, Page 3 of 7
32.02 Measure of Damages--Injury to Spouse--Medical Expense--Past and Future
The reasonable expense of necessary medical care, treatment and services received by his
wife [and the present cash value of the reasonable expense of necessary medical care, treatment
and services reasonably certain to be received in the future.]
Notes on Use
This element is to be inserted between the two paragraphs of IPI 32.01 when the evidence
justifies its use. To include the bracketed material which relates to future medical expenses, there
must be evidence that such expenses are reasonably certain to be incurred.
Comment
Common law and statutory provisions allow each spouse to recover for medical expenses
for which he is obligated resulting from injury to the other spouse. Brown Metzger, 104 Ill.2d 30,
470 N.E.2d 302, 83 Ill.Dec. 344 (1984).
On the issue of present cash value, see the IPI 34.00 series.
Section 32, Page 4 of 7
32.03 Measure of Damages--Injury to Spouse--Loss of Services--Past and Future
The reasonable value of the services of his wife of which he has been deprived [and the
present cash value of the services of his wife of which he is reasonably certain to be deprived in
the future].
Notes on Use
This element is to be inserted between the two paragraphs of IPI 32.01 when the evidence
justifies its use. To include the bracketed material which relates to the loss of future services,
there must be evidence that such loss is reasonably certain to occur.
Comment
Damages to the husband for loss of services of his wife and for a wife suing to recover
for her loss of services where a husband has suffered bodily injury are compensable in Illinois.
Manders v. Pulice, 102 Ill.App.2d 468, 242 N.E.2d 617 (2d Dist.1968), aff'd, 44 Ill.2d 511, 256
N.E.2d 330 (1970); Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881 (1960).
Testimony that the husband no longer shared in the family decision making, in the
rearing and disciplining of children, or in the household repairs and chores as he had before the
injury supported giving IPI 32.03. Wood v. Mobil Chem. Co., 50 Ill.App.3d 465, 365 N.E.2d
1087, 1096; 8 Ill.Dec. 701, 710 (5th Dist.1977).
On the issue of present cash value, see the IPI 34.00 series.
Section 32, Page 5 of 7
32.04 Measure of Damages--Injury to Spouse--Loss of Consortium
The reasonable value of the society, companionship and sexual relationship with his wife
of which he has been deprived [and the society, companionship and sexual relationship with his
wife of which he is reasonably certain to be deprived in the future].
Notes on Use
This element is to be inserted between the two paragraphs of IPI 32.01 when the evidence
justifies its use. To include the bracketed material which relates to the loss of consortium in the
future, there must be evidence that such loss is reasonably certain to occur.
Comment
Society, companionship and sexual relations between husband and wife, oftentimes
referred to as consortium, are elements of compensable damages in Illinois in actions brought
either by a husband or wife. Brown v. Metzger, 104 Ill.2d 30, 470 N.E.2d 302, 83 Ill.Dec. 344
(1984).
On the issue of present cash value, see the IPI 34.00 series, and particularly the Comment
to IPI 34.02.
Section 32, Page 6 of 7
32.05 Measure of Damages--Injury to a Child--Medical Expenses--Past and Future
The reasonable expense of necessary medical care, treatment and services received by the
child [and the present cash value of the reasonable expenses of necessary medical care, treatment
and services reasonably certain to be received in the future until the child reaches age 18.]
Notes on Use
This element is to be inserted between the two paragraphs of IPI 32.01 when the evidence
justifies its use. To include the bracketed material which relates to future medical expenses, there
must be evidence that such expenses are reasonably certain to be incurred.
If the parent remains liable for future medical expenses after the child reaches age 18,
such as where the child is incompetent or disabled, the phrase “until the child reaches age 18”
may be deleted.
Comment
Parents may recover for medical expenses for which they are obligated resulting from
injury to their minor children. 750 ILCS 65/15 (1994); Graul v. Adrian, 32 Ill.2d 345, 205
N.E.2d 444 (1965). The usual practice in Illinois is to sue for all damages in the minor's action.
This is accomplished by alleging an assignment, or waiver or relinquishment by the parents of
their right to recover these damages. Curtis v. Lowe, 338 Ill.App. 463, 87 N.E.2d 865 (2d
Dist.1949). Any defenses to the parents' action remain defenses to this assigned action. Kennedy
v. Kiss, 89 Ill.App.3d 890, 412 N.E.2d 624, 45 Ill.Dec. 273 (1st Dist.1980).
Parents are not generally liable for medical expenses incurred by adult children. Ragan v.
Protko, 66 Ill.App.3d 257, 383 N.E.2d 745, 22 Ill.Dec. 937 (5th Dist.1978); Sapp v. Johnston, 15
Ill.App.3d 119, 303 N.E.2d 429 (3d Dist.1973). However, support obligations for a mentally or
physically disabled child have been imposed upon the husband and wife after the child attains
majority. Strom v. Strom, 13 Ill.App.2d 354, 142 N.E.2d 172 (1st Dist.1957); Freestate v.
Freestate, 244 Ill.App. 166 (1st Dist.1927). See also 750 ILCS 5/513 (1994); 755 ILCS 5/11A-1
et seq. (1994).
While the parents of a minor child are always responsible for the child's medical
expenses, the child is not responsible unless the medical care has been rendered on the child's
own credit and not on the credit of a parent. Kennedy v. Kiss, 89 Ill.App.3d 890, 412 N.E.2d 624,
45 Ill.Dec. 273 (1st Dist.1980).
On the issue of present cash value, see the IPI 34.00 series.
Section 32, Page 7 of 7
32.06 Measure of Damages--Loss of Services of Child--Past and Future
The reasonable value of the services of the minor child of which the parent has been
deprived [and the present cash value of the services of the minor child of which the parent is
reasonably certain to be deprived in the future until the child reaches age 18.]
Notes on Use
This element is to be inserted between the two paragraphs of IPI 32.01 when the evidence
justifies its use. To include the bracketed material which relates to loss of future services or
income, there must be evidence that such loss is reasonably certain to occur.
Comment
In actions for damages arising out of an injury to an unemancipated minor, the loss of
earnings during the child's minority are recoverable by the parents. The child is limited to the
loss of earnings he would have received after reaching his majority. Wolczek v. Public Serv. Co.
of N. Ill., 342 Ill. 482, 496; 174 N.E. 577, 583 (1930).
A parent has the right to the services and earnings of an unemancipated minor child. See
Zozaski v. Mather Stock Car Co., 312 Ill.App. 585, 38 N.E.2d 825 (1st Dist.1942); 59 Am. Jur.
2d, Parent & Child § 46, pp. 131-33.
See Comment to IPI 32.05 regarding the potential assignment by the parent to the child of
this element of damages.
On the issue of present cash value, see the IPI 34.00 series.
Section 33, Page 1 of 3
33.00
DAMAGES—MITIGATION
33.01 Mitigation of Damages--Personal Injury
In fixing the amount of money which will reasonably and fairly compensate the plaintiff,
you are to consider that an injured person must exercise ordinary care to obtain medical
treatment. Damages proximately caused by a failure to exercise such care cannot be recovered.
Notes on Use
This instruction should never be given unless (1) there is evidence creating an issue of
fact as to the plaintiff's negligence in securing medical attention, and (2) the damages resulting to
the plaintiff from the failure to exercise due care in obtaining medical care are separable from his
other injuries. Kennedy v. Busse, 60 Ill.App. 440 (1st Dist.1895); Chicago & E. R. Co. v. Meech,
163 Ill. 305, 45 N.E. 290 (1896); Wong v. Richards, 10 Ill.App.3d 514, 294 N.E.2d 784 (4th
Dist.1973); Bartimus v. Paxton Community Hosp., 120 Ill.App.3d 1060, 1071; 458 N.E.2d 1072,
1080; 76 Ill.Dec. 418, 426 (4th Dist.1983).
A doctor's failure to exercise ordinary care is not a basis for giving of this instruction if
the plaintiff has used ordinary care in the selection of the doctor. Chicago City Ry. Co. v. Saxby,
213 Ill. 274, 72 N.E. 755, 68 L.R.A. 164, 104 Am.St.Rep. 218 (1904); Pullman Palace Car Co.
v. Bluhm, 109 Ill. 20 (1884). See IPI 30.23.
Comment
This instruction recognizes the proposition that an injured person must mitigate his
damages by using ordinary care in obtaining medical treatment. Chicago Union Traction Co. v.
Mee, 136 Ill.App. 98 (1st Dist.1907).
No instruction should be given with reference to the plaintiff's duty to submit to major
surgical operations. Whether the plaintiff is to undergo a serious operation is a matter for him to
decide. Howard v. Gulf M. & O. R. Co., 13 Ill.App.2d 482, 142 N.E.2d 825 (4th Dist.1957);
Morris v. Despain, 104 Ill.App. 452 (2d Dist.1902); Lapidus v. Hahn, 115 Ill.App.3d 795, 450
N.E.2d 824, 71 Ill.Dec. 136 (1st Dist.1983); Montgomery v. Terminal R.R. Ass'n, 73 Ill.App.3d
650, 392 N.E.2d 77, 29 Ill.Dec. 520 (5th Dist.1979) (trial court properly refused evidence that
surgery was recommended to improve plaintiff's condition, and the reasons for plaintiff's
rejection of that recommendation).
Failure to mitigate damages is an affirmative defense. Rozny v. Marnul, 43 Ill.2d 54, 250
N.E.2d 656 (1969).
Section 33, Page 2 of 3
Section 33, Page 3 of 3
33.02 Mitigation of Damages--Property
In fixing the amount of money which will reasonably and fairly compensate the plaintiff,
you are to consider that a person whose [property] [business] is damaged must exercise ordinary
care to minimize existing damages and to prevent further damage. Damages proximately caused
by a failure to exercise such care cannot be recovered.
Comment
This instruction recognizes the proposition that a plaintiff must use ordinary care to
mitigate damage to his property. Hartford Deposit Co. v. Calkins, 186 Ill. 104, 57 N.E. 863
(1900).
See also Behrens v. W. S. Bills & Sons, Inc., 5 Ill.App.3d 567, 283 N.E.2d 1 (3d
Dist.1972) (plaintiff's instruction providing that “while reasonable efforts to avoid loss are
required,” plaintiff was not required to take action which he was financially unable to take,
correctly stated applicable law).
Failure to mitigate damages is an affirmative defense. Rozny v. Marnul, 43 Ill.2d 54, 250
N.E.2d 656 (1969).
Section 34, Page 1 of 8
34.00
DAMAGES--FUTURE DAMAGES--LENGTH OF TIME DAMAGES WILL
CONTINUE--DISCOUNT OF DAMAGES--MORTALITY TABLES
34.01 Damages Arising in the Future--Extent and Amount
If you find that [a] [the] plaintiff is entitled to damages arising in the future [because of
injuries] [or] [because of future (medical) (caretaking) expenses] [or] [because of loss of
earnings] [or] [loss of the services of [name of minor child]] [or] [because of (loss of society)
(or) (loss of companionship and sexual relations)], you must determine the amount of these
damages which will arise in the future.
[If these damages are of a continuing nature, you may consider how long they will
continue.] [If these damages are permanent in nature, then in computing these damages you may
consider how long the plaintiff (and his spouse) (is) (are) likely to live.]
[With respect to a loss of future earnings, you may consider that some persons work all
their lives and others do not; that a person's earnings may remain the same or may increase or
decrease in the future.]
Notes on Use
The elements of damages used in the first paragraph of this instruction must be consistent
with the elements of damages used in other damages instructions, e.g., IPI 30.06-30.09, 31.13,
and 32.02-32.04.
This instruction is intended to inform the jury that they should consider the length of time
the various elements of damage will continue, point out that earnings may not equal life
expectancy and may vary, and lay the basis for the instruction on discounting particular elements
of damages to present cash value. See IPI 34.02.
The instruction is drawn to cover both temporary and permanent future damages. If there
is evidence to support a finding that future damages are continuing but not permanent, use the
first sentence of the second paragraph. If there is evidence sufficient to support a finding that
future damages are permanent, use the second sentence of the second paragraph. Buskirk v.
Burlington N., Inc., 103 Ill.App.3d 414, 431 N.E.2d 410, 412, 59 Ill.Dec. 125, 127 (5th
Dist.1982), cert. denied, 459 U.S. 910, 103 S.Ct. 217, 74 L.Ed.2d 173 (1982). If the evidence
would support both findings, both sentences should be used.
The last paragraph will be used only when there is evidence of a loss of future earnings.
If mortality tables are in evidence, also use IPI 34.04.
Section 34, Page 2 of 8
Comment
See Comment to IPI 32.06 concerning the parent's right to recover for the loss of the
services of an unemancipated minor child.
Section 34, Page 3 of 8
34.02 Damages Arising in the Future--Discount to Present Cash Value
In computing the damages arising in the future [because of future (medical) (caretaking)
expenses] [or] [because of the loss of (future earnings) (benefits) (or) (services)] you must
determine their present cash value. “Present cash value” means the sum of money needed now,
which, when added to what that sum may reasonably be expected to earn in the future, will equal
the amount of the [expenses] [and] [earnings] [benefits] at the time in the future when [the
expenses must be paid] [or] [the earnings (benefits) would have been received].
Damages for [pain and suffering] [disability] [loss of a normal life] [and] [disfigurement]
[loss of (society) (companionship) (and) (sexual relations)] are not reduced to present cash value.
Notes on Use
This instruction may be used with IPI 34.01. If mortality tables are in evidence, also use
IPI 34.04.
Comment
This instruction has been modified from earlier versions. Prior 34.02 included the phrase
“... you must not [simply multiply the (expenses) (earnings) (benefits) (by the length of time you
have found they will continue) (or) (by the number of years you have found that the plaintiff is
likely to live)].”
Inclusion of this phrase requires the court to favor one method of determining present
cash value over another. There is a sound economic basis (though certainly not the only one) that
permits present cash value to be determined in exactly the manner prohibited by the former
instruction. This is known as the “total offset method.” See Beaubien v. Elliot, 434 P.2d 665
(Alaska 1967) and Kaczkawski v. Bolubasz, 461 Pa. 561, 421 A.2d 1027 (1980), wherein two
state supreme courts have judicially adopted this method. Also see 104 Dick. L. Rev. 679
(Summer 2000). The Illinois Supreme Court in Richardson v. Chapman, 175 Ill.2d 98, 676
N.E.2d 621, 221 Ill.Dec. 818 (1997) approved of this method of determining present cash value
in the “upper bound” figures used by plaintiff's expert. However, the Court did not adopt this
method or indicate it was preferred over other methods. Therefore, the committee makes no
recommendation as to which of several methods may be used to determine present cash value.
Future damages except for pain and suffering, disfigurement, disability, loss of normal
life, and loss of society and consortium are to be reduced to present cash value. Allendorf v.
Elgin, J. & E. Ry. Co., 8 Ill.2d 164, 133 N.E.2d 288 (1956), cert. denied, 352 U.S. 833, 77 S.Ct.
49, 1 L.Ed.2d 53 (1956); Avance v. Thompson, 387 Ill. 77, 55 N.E.2d 57 (1944), cert. denied,
323 U.S. 753, 65 S.Ct. 82, 89 L.Ed. 603 (1944); Howard v. Gulf, M. & O.R.Co., 13 Ill.App.2d
482, 142 N.E.2d 825 (4th Dist.1957). Cf. Lorenz v. Air Illinois, Inc., 168 Ill.App.3d 1060, 522
N.E.2d 1352, 119 Ill.Dec. 493 (1st Dist.1988), and Exchange Nat'l Bank v. Air Illinois, Inc., 167
Ill.App.3d 1081, 522 N.E.2d 146, 118 Ill.Dec. 691 (1st Dist.1988) and Drews v. Globel Freight
Lines, Inc., 144 Ill.2d 84, 161 Ill.Dec. 324, 578 N.E.2d 970 (1991) (damages for loss of
consortium and society not reduced to present cash value in a wrongful death case).
Section 34, Page 4 of 8
There is no requirement that actuarial or statistical evidence be present to guide the jury
in its determination of present cash value when this instruction is given. Robinson v. Greeley &
Hansen, 114 Ill.App.3d 720, 449 N.E.2d 250, 253; 70 Ill.Dec. 376, 379 (2d Dist.1983); Crabtree
v. St. L.-S.F. Ry. Co., 89 Ill.App.3d 35, 411 N.E.2d 19, 44 Ill.Dec. 113 (5th Dist.1980); Kirk v.
Walter E. Deuchler Associates, Inc., 79 Ill.App.3d 416, 426-427; 398 N.E.2d 603, 610; 34
Ill.Dec. 780, 787 (2d Dist.1979).
See also Schaffner v. Chicago & North Western. Transportation Company, 129 Ill.2d 1,
541 N.E.2d 643, 133 Ill.Dec. 432 (1989) (improper for defendant to argue that any sum awarded
Plaintiff could be invested to produce a “stream of income”); Lorenz v. Air Illinois, Inc., 168
Ill.App.3d 1060, 522 N.E.2d 1352, 1356; 119 Ill.Dec. 493, 497 (1st Dist.1988) (expert testimony
as to cost of annuity properly excluded on issue of present cash value); Singh v. Air Illinois, Inc.,
165 Ill.App.3d 923, 520 N.E.2d 852, 856-857; 117 Ill.Dec. 501, 505-506 (1st Dist.1988) (same);
Exchange Nat'l Bank v. Air Illinois, Inc., 167 Ill.App.3d 1081, 522 N.E.2d 146, 150-151; 118
Ill.Dec. 691, 695-696 (1st Dist.1988) (same; reference to “inflation” in closing argument not
prejudicial error).
Section 34, Page 5 of 8
34.03 Death Case--Discount of Future Damages
Comment
This instruction is now IPI 31.12.
Section 34, Page 6 of 8
34.04 Damages Arising in the Future--Mortality Tables as Evidence of Damages--Injury
Case
According to a table of mortality in evidence, the life expectancy of a person aged ____
years is ____ years. This figure is not conclusive. It is the average life expectancy of persons
who have reached the age of ____. It may be considered by you in connection with other
evidence relating to the probable life expectancy of the plaintiff in this case, including evidence
of his occupation, health, habits, and other activities, bearing in mind that some persons live
longer and some persons less than the average.
Notes on Use
The age of the injured person at the time of the trial and the expectancy of a person of his
age as shown by the mortality tables in evidence should be inserted in the blank spaces in this
instruction.
If mortality tables are in evidence, this instruction should be given in addition to any
other instructions on the calculation of damages, such as IPI 34.01 or 34.02.
Comment
Mortality tables are admissible in evidence in personal injury cases where there is
evidence that the injuries are of a permanent nature. Avance v. Thompson, 387 Ill. 77, 55 N.E.2d
57 (1944), cert. denied, 323 U.S. 753, 65 S.Ct. 82, 89 L.Ed. 603 (1944); Howard v. Gulf, M. &
O.R. Co., 13 Ill.App.2d 482, 142 N.E.2d 825 (4th Dist.1957).
In Avance v. Thompson, supra, the Illinois Supreme Court held that: “The jury should be
carefully instructed as to the purposes for which such tables may be considered in fixing
pecuniary damages.” The court indicated that it was the responsibility of the party offering the
tables to accompany the offer with a proper instruction to the jury. In Nickell v. Baltimore &
O.R. Co., 347 Ill.App. 202, 210; 106 N.E.2d 738, 741-742 (4th Dist.1952), the defendant
contended that the court committed reversible error when it failed to instruct the jury on the
application of mortality tables which had been introduced into evidence by the plaintiff. The
court held it was incumbent upon the defendant to make a request for an instruction relative to
the application of mortality tables and that it was not reversible error for the court to fail to
instruct on this subject in the absence of tender of such an instruction. Illinois Supreme Court
Rule 366(b) (2) (i) states, “No party may raise on appeal the failure to give an instruction unless
he shall have tendered it.”
In Crabtree v. St. Louis-San Francisco Ry. Co., 89 Ill.App.3d 35, 39; 411 N.E.2d 19, 22;
44 Ill.Dec. 113, 116 (5th Dist.1980), the court, in rejecting an objection to IPI 34.04, noted that
there is no requirement in Illinois that plaintiff introduce actuarial or statistical evidence to guide
the jury in determining the present cash value of future lost earnings, although such evidence is
Section 34, Page 7 of 8
“often helpful to juries in reducing damages to monetary figures and could have been presented
by defendant had it felt the necessity therefor.”
This instruction has been approved in various cases. Jurney v. Lubeznik, 72 Ill.App.2d
117, 218 N.E.2d 799, 806 (1st Dist.1966); Sherman v. City of Springfield, 111 Ill.App.2d 391,
401; 250 N.E.2d 537, 546 (4th Dist.1969); Avery v. Moews Seed Corn Co., 131 Ill.App.2d 842,
268 N.E.2d 561 (3d Dist.1971); Canales v. Dominick's Finer Foods, Inc., 92 Ill.App.3d 773, 416
N.E.2d 303, 48 Ill.Dec. 272 (1st Dist.1981); Ciborowski v. Philip Dressler & Associates, 110
Ill.App.3d 981, 443 N.E.2d 618, 66 Ill.Dec. 692 (1st Dist.1982); Martin v. Kralis Poultry Co., 12
Ill.App.3d 453, 465; 297 N.E.2d 610, 619 (5th Dist.1973).
This instruction was previously an alternative to IPI 34.01 or 34.02 but is now given in
addition to those instructions or any other instructions referring to mortality tables.
Section 34, Page 8 of 8
34.05 Mortality Tables as Evidence of Damages--Death Case
Comment
This instruction is now IPI 31.13.
Section 35, Page 1 of 7
35.00
PUNITIVE DAMAGES
35.01 Punitive/Exemplary Damages--Willful and Wanton Conduct
In addition to compensatory damages, the law permits you under certain circumstances to
award punitive damages. If you find that [(Defendant's name)] conduct was [fraudulent]
[intentional] [willful and wanton] and proximately caused [injury] [damage] to the plaintiff, and
if you believe that justice and the public good require it, you may award an amount of money
which will punish [(Defendant's name)] and discourage [it/him/her] and others from similar
conduct.
In arriving at your decision as to the amount of punitive damages, you should consider
the following three questions. The first question is the most important to determine the amount of
punitive damages:
1. How reprehensible was [(defendant's name)] conduct?
On this subject, you should consider the following:
a) The facts and circumstances of defendant's conduct;
b) The [financial] vulnerability of the plaintiff;
c) The duration of the misconduct;
d) The frequency of defendant's misconduct;
e) Whether the harm was physical as opposed to economic;
f) Whether defendant tried to conceal the misconduct;
g) [other]
2. What actual and potential harm did defendant's conduct cause to the plaintiff in this case?
3. What amount of money is necessary to punish defendant and discourage defendant and others
from future wrongful conduct [in light of defendant's financial condition]?
[In assessing the amount of punitive damages, you may not consider defendant's similar
conduct in jurisdictions where such conduct was lawful when it was committed.]
The amount of punitive damages must be reasonable [and in proportion to the actual and
potential harm suffered by the plaintiff.]
Section 35, Page 2 of 7
Instruction, Notes and Comment revised January 2007.
Notes on Use
This instruction should be given in conjunction with IPI 14.01 when punitive damages
could be awarded. The U.S. Supreme Court has provided direction to courts for instructing a jury
on punitive damages in cases, culminating with State Farm v. Campbell, 538 U.S. 408, 123 S.Ct.
1513, 155 L.Ed.2d 585 (2003).
The phrase “financial vulnerability” comes from State Farm and BMW of North America
v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). By context, it appears that the
jury should also be permitted to consider other vulnerabilities if such evidence is in the record.
In identifying factors to consider concerning defendant's reprehensibility, the U.S.
Supreme Court did not limit other factors the jury may consider. If appropriate, and if additional
factors are present in the evidence, the court may instruct the jury to consider them.
“Financial condition” is bracketed because it is not necessary for a defendant's financial
condition to be in evidence for a jury to award punitive damages. Deal v. Byford, 127 Ill.2d 192,
204, 130 Ill.Dec. 200, 537 N.E.2d 267 (1989); Ford v. Herman, 316 Ill.App.3d 726, 734-735,
249 Ill.Dec. 942, 737 N.E.2d 332 (5th Dist. 2000).
The next to last paragraph should be used only in those cases like State Farm where
conduct that may give rise to punitive damages in the forum state may be lawful in other states.
There must be a basis in the evidence of such extra-jurisdictional conduct and its lawfulness to
warrant the inclusion of this bracketed paragraph.
The idea of proportionality of the punitive award to the compensatory award is expressed
in State Farm v. Campbell and BMW v. Gore. The Court did not specify what “in proportion”
means. The Court refused to approve a punitive award that was 145 times the compensatory
award. State Farm, supra at 429. The Court included language favoring a single digit multiplier.
(“Single-digit multipliers are more likely to comport with due process, while still achieving the
State's goals of deterrence and retribution, than awards with ratios in the range of 500 to 1 ... or,
in this case, 145 to 1,” State Farm, supra at 425.) See Mathias v. Accor Economy Lodging, 347
F.3d 672 (7th Cir. 2003); Philip Morris USA v. Williams, 340 Or. 35 (2005), cert. granted, 126
S.Ct. 2329 (2006), judgment vacated, 127 S.Ct. 1057 (2007). Instructing a jury concerning
“proportionality” was not mandated or prohibited by State Farm or by Illinois case law. Whether
the bracketed language concerning “proportionality” should be included in the instruction should
be decided on a case by case basis.
Comment
Where punitive damages may be assessed, they are allowed in the nature of punishment
and as a warning and example to deter the defendant and others from committing like offenses in
the future. Kelsay v. Motorola, Inc., 74 Ill.2d 172, 186, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978);
Loitz v. Remington Arms Co., 138 Ill.2d 404, 415-416, 563 N.E.2d 397 (1990); Mattyasovszky v.
Section 35, Page 3 of 7
West Towns Bus Co., 61 Ill.2d 31, 35, 330 N.E.2d 509 (1975).
The Illinois Supreme Court established that a reviewing court would “not disturb an
award of punitive damages on grounds that an amount is excessive unless it is apparent that the
award is a result of passion, partiality or corruption.” Deal v. Byford, 127 Ill.2d 192, 204, 130
Ill.Dec. 200, 537 N.E.2d 267 (1989). There were no clear guidelines in Illinois for determining
when a punitive damages award was excessive. Hazelwood v. Illinois Central Gulf R.R., 114
Ill.App.3d 703, 711, 71 Ill.Dec. 320, 450 N.E.2d 1199 (4th Dist. 1983). Relevant circumstances
that a reviewing court should consider in determining whether a punitive damage award is
excessive are to include the nature and enormity of the wrong, the financial status of the
defendant, and the potential liability of the defendant. Deal v. Byford, supra at 204, citing
Hazelwood v. Ill. Cent. Gulf R.R., supra at 712-713.
In a series of cases beginning in 1989, the U.S. Supreme Court squarely faced the
question of what constituted an excessive punitive damage award. Browning-Ferris Indus. of
Vermont, Inc., v. Kelco Disposal, Inc., 492 U.S. 257 (1989); Pac. Mut. Life Ins. Co. v. Haslip,
499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991); TXO Prod. Corp. v. Alliance Res. Corp., 509
U.S. 443 (1993); Honda Motor Co. v. Oberg, 512 U.S. 415, 114 S.Ct. 2331, 129 L.Ed.2d 336
(1994); BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996);
Cooper Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); State Farm Mut. Auto Ins.
Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003).
In BMW v. Gore, supra, the Court declared that constitutional principles embodied in the
due process clause of the 14th Amendment required that reviewing courts use three “guideposts”
to determine whether a punitive damage award is excessive:
(1) the degree of reprehensibility;
(2) the disparity between the actual or potential harm suffered by the plaintiff and the
punitive damage award;
(3) the difference between the punitive damage award and the civil penalties authorized or
imposed in comparable cases.
BMW v. Gore, supra; State Farm v Campbell, supra; Int'l Union of Operating Eng'rs, Local 150
v. Lowe Excavating Co., 327 Ill. App. 3d 711, 765 N.E.2d 21, 262 Ill. Dec. 195 (2002) and cited
in Turner v. Firstar Bank, N.A., 363 Ill.App.3d 1150, 1163, 300 Ill.Dec. 927, 845 N.E.2d 816
(5th Dist. 2006). Of these guideposts, “the most important indicium of the reasonableness of a
punitive damage award is the degree of reprehensibility of the defendant's conduct.” BMW v.
Gore, supra at 575. “Reprehensibility” is a quality the Supreme Court asks reviewing courts to
recognize through careful consideration of the following factors:
(1) Whether the harm caused was physical as opposed to economic;
(2) Whether the tortious conduct evinced an indifference to or a reckless disregard of the
health or safety of others;
Section 35, Page 4 of 7
(3) Whether the target of the conduct had financial vulnerability;
(4) Whether the conduct involved repeated actions or was an isolated incident; and
(5) Whether the harm was the result of intentional malice, trickery, deceit or mere accident.
International Union of Operating Engineers, Local 150 v. Lowe, supra.
While any punitive damages imposed should reflect the enormity of the tortfeasor's
offense, BMW, 517 U.S. at 525, the second guidepost--the disparity between the actual or
potential harm suffered and the punitive award--reminds the reviewing court that the award
should not be “grossly out of proportion to the severity of the offense,” Id. citing Pacific Mutual
Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). The Court has
indicated its reluctance “to identify concrete constitutional limits on the ratio between the harm,
or potential harm, to the plaintiff and the punitive damage award,” State Farm, 538 U.S. at 424,
citing BMW, 517 U.S. at 582. While refusing a “bright line ratio” above which punitive damages
cannot exceed, the Court did suggest that “few awards exceeding single-digit ratio between
punitive and compensatory damages, to a significant degree, will satisfy due process.” State
Farm, 338 U.S. at 425.
In translating this concept of proportionality, the Seventh Circuit of the U.S. Court of
Appeals in Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 676 (7th Cir. 2003) held not
only that “punitive damages should be proportional to the wrongfulness of the defendant's
actions,” but also that “the punishment should fit the crime.” Still, the Seventh Circuit avoided
any semblance of rigid measurement by embracing the challenges that extreme examples of bad
acts might pose to a jury. In other words, proportionality may be “modified when the probability
of detection is very low (a familiar example is the heavy fines for littering) or the crime is
potentially lucrative (as in the case of trafficking in illegal drugs).” Id.
Before State Farm v. Campbell, (2003), the Illinois Supreme Court last addressed the
concept of proportionality in a 1989 decision, Deal v. Byford, 127 Ill. 2d 192, 204, 130 Ill.Dec.
200, 537 N.E.2d 267 (1989), where it said “There is no requirement that the amount of punitive
damages imposed on a defendant bear any particular proportion to the size of the plaintiff's
compensatory recovery.” No subsequent pronouncement has been made by the Court.
Nevertheless, the concept of proportionality as expressed by the U.S. Supreme Court has
surfaced, relatively intact, in Illinois appellate decisions, such as Turner v. Firstar Bank, N.A.,
363 Ill.App.3d 1150, 300 Ill.Dec. 927, 845 N.E.2d 816 (5th Dist. 2006) (reducing punitive
damages to an amount that would be less than the double-digit ratio between punitive and
compensatory damages against which the State Farm Court cautioned); Franz v. Calaco
Development, 352 Ill.App.3d 1129, 288 Ill.Dec. 669, 818 N.E.2d 357 (2nd Dist. 2004) (“While
the amount to be awarded in punitive damages rests largely within the province of the jury, that
“discretion” is not arbitrary or unlimited”); and Hazelwood v. Illinois Central Gulf Railroad, 114
Ill.App.3d 703, 713, 71 Ill.Dec. 320, 450 N.E.2d 1199 (4th Dist. 1983) (“recognizing that
punitive damages are in the nature of a criminal sanction, we are simply saying that the
punishment should fit the crime. An award which is disproportionate to the wrong serves none of
the purposes of punitive damages and is excessive.”).
Section 35, Page 5 of 7
The Illinois Supreme Court recently reduced a punitive damages award to a ratio of 11:1
from an Appellate Court remittitur of 75:1 in International Union of Operating Engineers, Local
150 v. Lowe, supra. The Court discussed the idea of proportionality and the Mathias v. Accor
Economy Lodging, Inc., supra, decision.
Cognizant of the fact that its admonishments were directed to reviewing courts, the U.S.
Supreme Court has also indicated that vague instructions that merely inform the jury to avoid
“passion or prejudice” do little to aid the decision maker in its task of assigning appropriate
weight to evidence that is tangential or only inflammatory. State Farm v. Campbell, supra at
418. The Committee, in revising the jury instructions addressing punitive damages, sought to
honor the three constitutional “guideposts” established by U.S. Supreme Court while
simultaneously emphasizing that the ultimate determination as to the size of the penalty imposed
must be dictated by the circumstances of each particular case. Deal v. Byford, 127 Ill.2d 192,
205, 130 Ill.Dec. 200, 537 N.E.2d 267 (1989). “Even though the assessment of punitive damages
is not a purely factual finding, it is a 'fact sensitive' undertaking.” Franz, 352 Ill.App.3d at 1143,
citing Cooper Industries, Inc., 532 U.S. at 437. Room is to be left for relatively high punitive
damage awards in situations where particularly loathsome acts resulted in but small amounts of
measurable economic damages. Turner, 363 Ill.App.3d 1150, 1164, citing State Farm, 538 U.S.
at 425.
The Committee formulated an instruction that incorporated the distinguishing factors of
reprehensibility. Precisely which factor must be included in an instruction submitted to a jury is
case specific and to be carefully weighed. For instance, the State Farm opinion suggests that the
jury consider whether the harm was physical rather than economic, yet, experience allows that
under certain circumstances an economic loss willfully created can be equally as devastating to a
plaintiff. Regardless, in any punitive assessment, the degree of reprehensibility of the defendant's
conduct must be the pivotal consideration.
The Committee is also of the opinion that current definitions of the term “willful and
wanton” (14.01) and “proximate cause” (15.01) are plainly stated, well settled under current
Illinois law and not inconsistent with the U.S. Supreme Court decisions. The instructions were
designed to provide guidance to a jury that must determine whether punitive damages should be
awarded at all; and if so, how to go about the process of evaluating the defendant's misconduct in
light of their own experience and the facts of the case.
The Committee also considered the following cases: Home Savings & Loan Ass'n v.
Schneider, 108 Ill.2d 277, 91 Ill.Dec. 590, 483 N.E.2d 1225 (1985); Proctor v. Davis, 291
Ill.App.3d 265 (1st Dist. 1997); Heldenbrand v. Roadmaster Corp., 277 Ill.App.3d 664 (5th Dist.
1996).
Section 35, Page 6 of 7
35.02 Punitive/Exemplary Damages--Willful and Wanton Conduct--Corporate Defendant's
Liability
[(Defendant's name)] is a corporation and can act only through its officers and
employees. As to plaintiff's claim for compensatory damages against [(Defendant's name)], any
act or omission of an officer or employee within the scope of his employment is the act or
omission of the defendant corporation.
As to plaintiff's claim for punitive damages against [(Defendant's name)], a different rule
applies. Punitive damages may be awarded against [(Defendant's name)] only (1) if you find in
favor of plaintiff(s) and against [(Defendant's name)] under Count __ of the complaint, and (2) if
you find that, as to the act(s) or omission(s) giving rise to liability under Count __, [[State
condition (a), (b), (c) or (d)].] [one or (more) (both) of the following conditions (is) (are)
proved:]
[(a)] [The corporation, through its management, authorized the doing and the manner of
the act or omission] [; or]
[(b)] [The employee responsible for the act or omission was unfit, and the corporation
was reckless in employing him] [; or]
[(c)] [The act or omission was that of a managerial employee who was acting in the scope
of his employment] [; or]
[(d)] [The corporation, through its management or a managerial employee, ratified or
approved the act or omission].
Instruction, Notes and Comment approved January 2007.
Notes on Use
This instruction should be given with IPI 35.01 in any case in which a submissible case
for punitive damages has been made and such damages are sought against a corporate defendant.
Use the appropriate subparagraphs (a)-(d), depending on the facts of the case.
Additional agency instructions may be used as appropriate. See Chapter 50.
Comment
This instruction is based on the requirements of Restatement (Second) of Torts, Section
909 and the Restatement (Second) of Agency, Section 217C. Those sections have been cited in
Mattyasovszky v. West Towns Bus Co., 61 Ill.2d 31 (1975); Deal v. Byford, 127 Ill.2d 192, 130
Ill.Dec. 200, 537 N.E.2d 267 (1989); Kennan v. Checker Taxi Co., 250 Ill.App.3d 155 (1st Dist.
1993); Kemner v. Monsanto Co., 217 Ill.App.3d 188, 207, 160 Ill.Dec. 192, 576 N.E.2d 1146
(5th Dist. 1991); Bryant v. Livigni, 250 Ill.App.3d 303, 311, 188 Ill.Dec. 925, 619 N.E.2d 550
Section 35, Page 7 of 7
(5th Dist. 1993); Abshire v. Stoller, 235 Ill.App.3d 849, 857-859, 176 Ill.Dec. 559, 601 N.E.2d
1257 (1st Dist. 1992).
This instruction embodies the “corporate complicity” concept which is necessary for an
award of punitive damages against a corporation. Mere proof of scope and course conduct of an
agent is insufficient to impose punitive damages against a corporation. Kemner v. Monsanto Co.,
supra at 208, discussed the error of giving a simple agency instruction (IPI 50.11) when
corporate liability for punitive damages is at issue. See also Kochan v. Owens-Corning
Fiberglass Corp., 242 Ill.App.3d 781, 797-798, 182 Ill.Dec. 814, 610 N.E.2d 683 (5th Dist.
1993).
Section 36, Page 1 of 1
36.00
NO LIABILITY--NO DAMAGES
36.01 In Absence of Liability--No Occasion to Consider Damages
If you decide for [a] [the] defendant on the question of liability, you will have no
occasion to consider the question of damages [as to that defendant].
Comment
This instruction was approved in Malpica v. Sebastian, 99 Ill.App.3d 346, 350; 425
N.E.2d 1029, 1032; 54 Ill.Dec. 812, 815 (1st Dist.1981), and in Misch v. Meadows Mennonite
Home, 114 Ill.App.3d 792, 799; 449 N.E.2d 1358, 1363; 70 Ill.Dec. 754, 759 (4th Dist.1983)
(liability still has a place under comparative negligence as established by Alvis, “If a defendant is
guilty of no negligence, i.e., not liable, there is nothing to compare.”). See also Bednar v.
Commonwealth Edison, 156 Ill.App.3d 568, 575; 509 N.E.2d 687, 692; 109 Ill.Dec. 26, 31 (3d
Dist.1987). But see Mileur v. Briggerman, 110 Ill.App.3d 721, 728; 442 N.E.2d 1356, 1361; 66
Ill.Dec. 443, 448 (5th Dist.1982) (liability determined as a matter of law).
Section 41, Page 1 of 4
MULTIPLE PARTIES AND PLEADINGS--VERDICT FORMS
41.00
MULTIPLE PARTIES AND PLEADINGS
41.01 Two or More Plaintiffs
The rights of the plaintiffs [plaintiffs' names] are separate and distinct. Each is entitled to
a fair consideration of his own case and you will decide each plaintiff's case as if it were a
separate lawsuit. Each plaintiff's case must be governed by the instructions applicable to that
case.
Notes on Use
The use of this instruction avoids the practice of giving separate instructions on behalf of two or
more plaintiffs in cases where the same issues and questions of law are applicable to each plaintiff.
Comment
Although Meng v. Lucash, 329 Ill.App. 512, 69 N.E.2d 367 (4th Dist.1946) (abstract), held it was
not error to give separate burden of proof instructions for each of two plaintiffs, Triolo v. Frisella, 3
Ill.App.2d 200, 205; 121 N.E.2d 49, 51 (2d Dist.1954), rejected the use of separate sets of similar
instructions for each of four defendants. The court stated that counsel have “a duty to assist the court in
settling on a set of instructions which fully and yet concisely state the law as it affects all parties to the
case.”
Section 41, Page 2 of 4
41.02 Assess Plaintiffs' Damages Separately
If you find that [both] [two or more] plaintiffs are entitled to recover, you will assess the
damages of each separately and return a verdict in a separate amount for each.
Comment
In an action by several plaintiffs each of whom has made a separate claim for damages in a
different amount, the jury must be required to return a verdict in a separate amount as to each plaintiff.
Caton v. Flig, 343 Ill.App. 99, 101; 98 N.E.2d 162, 163 (1st Dist.1951); 735 ILCS 5/2-1201 (1994)
(formerly §68(3) of the Civil Practice Act).
Section 41, Page 3 of 4
41.03 Two or More Defendants
The rights of the defendants [defendants' names] are separate and distinct. Each is entitled
to a fair consideration of his own defense and you will decide each defendant's case separately as
if it were a separate lawsuit. Each defendant's case must be governed by the instructions
applicable to that case.
Notes on Use
The use of this instruction avoids the practice of giving separate iterative instructions on behalf
of two or more defendants in cases where the same issues and questions of law are applicable to each
defendant.
This instruction should not be used where the relationship between multiple defendants is based
solely on vicarious liability. See IPI 50.01 et seq.
The defendants' names may be inserted in the instruction if that will make the references clearer.
Comment
A previous version of this instruction, as modified, was approved in Wanner v. Keenan, 22
Ill.App.3d 930, 317 N.E.2d 114 (2d Dist.1974).
See Comment to IPI 41.01.
Section 41, Page 4 of 4
41.05 Counterclaim--Third Party Complaint
In this action a [counterclaim] [third-party complaint] has been filed. As to the issues
raised by the [counterclaim] [third-party complaint] and the answer to it, the parties therein
named stand in the same relation to one another as do a plaintiff and a defendant. Therefore, the
instructions given to you which apply to the plaintiff[s] [plaintiffs' names] and the defendant[s]
[defendants' name(s)] apply with the same effect to the [counter-plaintiff [counter-plaintiff's
name] and counter-defendant [counter-defendant's name] [third-party plaintiff [third-party
plaintiff's name] and third-party defendant [third-party defendant's name], respectively.
Notes on Use
Use of this instruction may not be necessary if other instructions (i.e. issues and burden of proof)
and verdict forms using parties' names rather than terms such as “third party plaintiff” are properly
drafted.
This instruction is not to be used in indemnity or contribution cases. In those cases, see IPI
500.00 and 600.00.
Section 45, Page 1 of 26
45.00
FORMS OF VERDICTS
INTRODUCTION
The following instructions and related verdict forms are for illustrative purposes only. In
drawing verdict forms, care must be taken to ensure that they cover every possible finding the
jury may make.
Additional verdict forms specific to particular topics are to be found in other chapters.
SPECIAL NOTE ON USE
The following notes and instructions were drafted prior to the amendment of 735 ILCS
5/2-1117, which became effective 6/4/03. This amendment should be considered when utilizing
the following instructions and notes.
Section 45, Page 2 of 26
B45.01 Instruction on Use of Verdict Forms—
Negligence Only--Single Plaintiff and
Defendant
When you retire to the jury room you will first select a foreperson. He or she will preside
during your deliberations.
Your verdict must be unanimous.
Forms of verdicts are supplied with these instructions. After you have reached your
verdict, fill in and sign the appropriate form of verdict and return it to the court. Your verdict
must be signed by each of you. You should not write or mark upon this or any of the other
instructions given to you by the court.
If you find for [plaintiff's name] and against [defendant's name] and if you further find
that [plaintiff's name] was not contributorily negligent, then you should use Verdict Form A.
If you find for [plaintiff's name] and against [defendant's name] and if you further find
that [plaintiff's name]'s injury was proximately caused by a combination of [defendant's name]'s
negligence and [plaintiff's name]'s contributory negligence and that [plaintiff's name]'s
contributory negligence was 50% or less of the total proximate cause of the injury or damage for
which recovery is sought, then you should use Verdict Form B.
If you find for [defendant's name] and against [plaintiff's name], or if you find that
plaintiff's contributory negligence was more than 50% of the total proximate cause of the injury
or damage for which recovery is sought, then you should use Verdict Form C.
Notes on Use
This instruction has been drafted for a negligence case. It must be modified if there are willful
and wanton allegations.
This instruction, or a variation of it, should be used in cases where there is one plaintiff and one
defendant and no counterclaim. If the claim involves multiple counts, the operative paragraphs may need
to be repeated for each count with the count identified, e.g., “under Count ______.”
If there are multiple plaintiffs and a single defendant, separate instructions regarding verdict
forms and separate verdict forms must be submitted for each plaintiff.
If there is no issue as to plaintiff's contributory negligence, delete all references to contributory
negligence.
The letters used to designate the verdict forms and their corresponding references in the
instruction (A, B, C, etc.) should begin with “A” and be consecutive.
See IPI B45.02 and B45.03, and their Notes on Use.
Section 45, Page 3 of 26
B45.01.A Verdict Form A--Single Plaintiff and
Defendant--No Contributory Negligence
Pleaded
VERDICT FORM A
We, the jury, find for [plaintiff's name] and against [defendant's name]. We assess the
damages in the sum of _______$, [itemized as follows:]
[Signature Lines]
Section 45, Page 4 of 26
B45.01.B Verdict Form B--Single Plaintiff and
Defendant--Contributory Negligence—
Less Than 50%
VERDICT FORM B
We, the jury, find for [plaintiff's name] and against [defendant's name] and further find
the following:
First: Without taking into consideration the question of reduction of damages due to the
negligence of [plaintiff's name], we find that the total amount of damages suffered by [plaintiff's
name] as a proximate result of the occurrence in question is ____$, [itemized as follows:]
Second: Assuming that 100% represents the total combined negligence of all persons
whose negligence proximately contributed to the plaintiff's [injuries] [damages], including
[plaintiff's name] and [defendant's name] [and all other persons], we find that the percentage of
such negligence attributable solely to [plaintiff's name] is ____ percent (%).
Third: After reducing the total damages sustained by [plaintiff's name] by the percentage
of negligence attributable solely to [plaintiff's name], we assess [plaintiff's name]'s recoverable
damages in the sum of ____$.
[Signature Lines]
Section 45, Page 5 of 26
B45.01.C Verdict Form C--Single Plaintiff and
Defendant--Contributory Negligence—
More Than 50%
VERDICT FORM C
We, the jury, find for [defendant's name] and against [plaintiff's name].
[Signature Lines]
Section 45, Page 6 of 26
B45.02 Instruction on Use of Verdict Forms—
Negligence Only--Single Plaintiff and
Defendant--Counterclaim
When you retire to the jury room you will first select a foreperson. He or she will preside
during your deliberations.
Your verdicts must be unanimous.
Forms of verdicts are supplied with these instructions. After you have reached your
verdicts, fill in and sign the appropriate forms and return them to the court. You must return one
verdict as to the [complaint] [claim of [plaintiff's name] against [defendant's name]], and one
verdict as to the [counterclaim] [claim of [defendant's name] against [plaintiff's name]]. [Since
there is more than one plaintiff in this action, you must return one verdict as to each plaintiff's
complaint and a second verdict as to any claim of a defendant against any plaintiff.]
Your verdicts must be signed by each of you. You should not write or mark upon this or
any of the other instructions given to you by the court.
If you find for [plaintiff's name] and against [defendant's name] on [plaintiff's name]'s
complaint, and if you further find that [plaintiff's name] was not contributorily negligent, then
you should use Verdict Form A.
If you find for [plaintiff's name] and against [defendant's name] on [plaintiff's name]'s
complaint, and if you further find that [plaintiff's name]'s injury was proximately caused by a
combination of [defendant's name]'s negligence and [plaintiff's name]'s contributory negligence
and that [plaintiff's name]'s contributory negligence was 50% or less of the total proximate cause
of the injury or damage for which recovery is sought, then you should use Verdict Form B.
If you find for [defendant's name] and against [plaintiff's name] on [plaintiff's name]'s
complaint, or if you find that plaintiff's contributory negligence was more than 50% of the total
proximate cause of the injury or damage for which recovery is sought, then you should use
Verdict Form C.
If you find for [counterplaintiff's name] and against [counterdefendant's name] on
[counterplaintiff's name]'s counterclaim, and if you further find that [counterplaintiff's name] was
not contributorily negligent, then you should use Verdict Form D.
If you find for [counterplaintiff's name] and against [counterdefendant's name] on
[counterplaintiff's name]'s counterclaim, and if you further find that [counterplaintiff's name]'s
injury was proximately caused by a combination of [counterdefendant's name]'s negligence and
[counterplaintiff's name]'s contributory negligence, and that [counterplaintiff's name]'s
contributory negligence was 50% or less of the total proximate cause of the injury or damage for
which recovery is sought, then you should use Verdict Form E.
If you find for [counterdefendant's name] and against [counterplaintiff's name] on
[counterplaintiff's name]'s counterclaim or if you find that [counterplaintiff's name]'s contributory
negligence was more than 50% of the total proximate cause of the injury or damage for which
Section 45, Page 7 of 26
recovery is sought, then you should use Verdict Form F.
Notes on Use
This instruction has been drafted for a negligence case. It must be modified if there are willful
and wanton allegations.
This instruction, or a variation of it, should be used in cases where there is one plaintiff and one
defendant, but the defendant makes a counterclaim. If the claim or counterclaim involves multiple counts,
the operative paragraphs may need to be repeated for each count with the count identified, e.g., “under
Count ____.”
If there are multiple plaintiffs and multiple defendants, a separate set of verdict forms should be
given for each plaintiff (B45.02 and Verdict Forms A-F inclusive, modified to reflect the plurality of
defendants and naming each plaintiff).
If there is no issue as to plaintiff's contributory negligence, delete all references to contributory
negligence.
The letters used to designate the verdict forms and their corresponding references in the
instruction (A, B, C, etc.) should begin with “A” and be consecutive.
Section 45, Page 8 of 26
B45.02.A Verdict Form A--Single Plaintiff and
Defendant--No Contributory Negligence
Pleaded
VERDICT FORM A
We, the jury, find for [plaintiff's name] and against [defendant's name]. We assess the
damages in the sum of $____, [itemized as follows:]
[Signature Lines]
Section 45, Page 9 of 26
B45.02.B Verdict Form B--Single Plaintiff and
Defendant--Contributory Negligence
Alleged--Less Than 50%
VERDICT FORM B
We, the jury, find for [plaintiff's name] and against [defendant's[s'] name[s]] and further
find the following:
First: Without taking into consideration the question of reduction of damages due to the
negligence of [plaintiff's name], we find that the total amount of damages suffered by [plaintiff's
name] as a proximate result of the occurrence in question is $_____ .
Second: Assuming that 100% represents the total combined negligence of [plaintiff's
name] and of [defendant's[s'] name[s]] [and all other persons], we find that the percentage of
negligence attributable solely to [plaintiff's name] is ____ percent (%).
Third: After reducing the total damages sustained by [plaintiff's name] by the percentage
of negligence attributable solely to [plaintiff's name], we assess [plaintiff's name]'s recoverable
damages in the sum of $_______, [itemized as follows:]
[Signature Line]
Section 45, Page 10 of 26
B45.02.C Verdict Form C--Single Plaintiff and
Defendant--Contributory Negligence
Alleged--More Than 50%
VERDICT FORM C
We, the jury, find for [defendant's name] and against [plaintiff's name].
[Signature Lines]
Section 45, Page 11 of 26
B45.02.D Verdict Form D--Single Plaintiff and
Defendant--Counterclaim--No
Contributory Negligence Pleaded
VERDICT FORM D
We, the jury, find against [plaintiff's name] and for [defendant's name] on [plaintiff's
name]'s complaint.
We further find for [defendant's name] and against [plaintiff's name] on [defendant's
name]'s counterclaim. We assess [defendant's name]'s damages on his counterclaim in the sum of
$_______, [itemized as follows:]
[Signature Lines]
Section 45, Page 12 of 26
B45.02.E Verdict Form E--Single Plaintiff and
Defendant--Counterclaim--Contributory
Negligence Alleged--Less Than 50%
VERDICT FORM E
We, the jury, find for [counterplaintiff's name] and against [counterdefendant's name] and
further find the following:
First: Without taking into consideration the question of reduction of damages due to the
negligence of [counterplaintiff's name], if any, we find that the total amount of damages suffered
by [counterplaintiff's name] as a proximate result of the occurrence in question is $_____
Second: Assuming that 100% represents the total combined negligence of
[counterplaintiff's name] and of [counterdefendant's name] [and of all other persons], we find
that the percentage of negligence that was a proximate cause of [counterplaintiff's name]'s
[injury] [or] [damage] attributable solely to [counterplaintiff's name] is ____ percent (%).
Third: After reducing the total damages sustained by [counterplaintiff's name] by the
percentage of negligence attributable to [counterplaintiff's name], we assess [counterplaintiff's
name]'s recoverable damages in the sum of $_______, [itemized as follows:]
[Signature Lines]
Section 45, Page 13 of 26
B45.02.F Verdict Form F--Single Plaintiff and
Defendant--Counterclaim--Contributory Negligence
Alleged--More Than 50%
VERDICT FORM F
We, the jury, find for [counterdefendant's name] and against [counterplaintiff's name].
[Signature Lines]
Section 45, Page 14 of 26
B45.03 Instruction on Use Of Verdict Forms—
Negligence Only--Single Plaintiff and
Multiple Defendants
When you retire to the jury room you will first select a foreperson. He or she will preside
during your deliberations.
Your verdict[s] must be unanimous.
Forms of verdicts are supplied with these instructions. After you have reached your
verdict[s], fill in and sign the appropriate form[s] and return [it] [them] to the court. Your
verdict[s] must be signed by each of you. You should not write or mark upon this or any of the
other instructions given to you by the court.
The parties in this case are:
Plaintiff: [name of plaintiff]
Defendants: [names of defendants]
________________
If you find for the plaintiff and against any of the defendants and if you further find that
plaintiff was not contributorily negligent, then you should use Verdict Form A, writing in “0%”
on Line “(a)” of Paragraph “Second” of Verdict Form A.
If you find for [plaintiff's name] and against one or more of the defendants, and if you
further find that [plaintiff's name]'s injury was proximately caused by a combination of the
negligence of that defendant or defendants and [plaintiff's name]'s contributory negligence, and
that [plaintiff's name]'s contributory negligence was 50% or less of the total proximate cause of
the injury or damage for which recovery is sought, then you should use Verdict Form A, writing
in the percentage of the plaintiff's contributory negligence on Line “(a)” of Paragraph “Second”
of Verdict Form A.
If you find in favor of all defendants or that [plaintiff's name]'s contributory negligence
was more than 50% of the total proximate cause of the injury or damage for which recovery is
sought, then you should use Verdict Form B.
Notes on Use
This instruction has been drafted for a negligence case. It may need to be modified if there are
willful and wanton allegations or other theories of liability.
This instruction, or a variation of it, should be used in cases where there is one plaintiff and more
than one claimed tortfeasor. If there are multiple counts, the operative paragraphs may need to be
repeated for each count with the count identified, e.g., “under Count ____.”
Section 45, Page 15 of 26
If there is no issue as to plaintiff's contributory negligence, delete all references to contributory
negligence.
The letters used to designate the verdict forms and their corresponding references in the
instruction (A, B, etc.) should begin with “A” and be consecutive.
Section 45, Page 16 of 26
B45.03.A Verdict Form A--Single Plaintiff and
Claimed Multiple Tortfeasors—
Comparative Negligence--Verdict for
Plaintiff Against Some But Not All Defendants
VERDICT FORM A
We, the jury, find for [plaintiff's name] and against the following defendant or
defendants:
Name of defendant 1 Yes No
_______ _______
Name of defendant 2 Yes No
_______ _______
Name of defendant 3 Yes No
_______ _______
We further find the following:
First: Without taking into consideration the question of reduction of damages due to the
[negligence] [other damage reducing defense] of [plaintiff's name], if any, we find that the total
amount of damages suffered by [plaintiff's name] as a proximate result of the occurrence in
question is $_______, itemized as follows:
The reasonable expense of past medical and medically related expenses: $_______
(Other damages, insert from IPI 30 series) $_______
PLAINTIFF'S TOTAL DAMAGES: $_______
Second: Assuming that 100% represents the total combined legal responsibility of all
[persons] [or] [entities] who [that] proximately caused [plaintiff's name] injury, we find the
percentage of legal responsibility attributable to each as follows:
a) Plaintiff's name _______%
b) Defendant #1's name _______%
c) Defendant #2's name _______%
d) Other1 _______%
1 Under Bofman v. Material Service Corporation, 125 Ill.App.3d 1053, 1064 (1st Dist. 1984) and Smith v.
Central Illinois Public Service Company, 176 Ill.App.3d 482 (4th Dist. 1988), in a case where there is a potential
finding of contributory fault by the plaintiff, the jury should evaluate the fault of non-parties because “it is essential
for determining liability commensurate with degree of total fault.” The fault of the settling parties, however, should
Section 45, Page 17 of 26
TOTAL 100%
(Instructions to Jury: If you find that plaintiff was not [contributorily negligent] [other
damage reducing defense], or if you find any other party listed on the verdict form was not
legally responsible in a way that proximately caused plaintiff's injury, you should enter a zero
(0)% as to that party.)
Third: After reducing the plaintiff's total damages [(from paragraph First)] by the
percentage of [negligence] [other damage reducing defense], if any, of ____ [(from line (a) in
paragraph Second)], we award [plaintiff's name] recoverable damages in the amount of $_____
[Signature lines]
Verdict Form, Notes and Comment revised January 2010. Notes revised May 2010.
Notes on Use
This instruction should be used when there is a claim of contributory fault of the plaintiff and
multiple defendants. If there is no claim of contributory fault, use IPI Civil B45.03A2. If contribution is
sought against third-party defendants, use IPI 600.14 or 600.14A.
The bracketed itemization of damages in paragraph [First] should be used in any case where
itemization of damages is required under 735 ILCS 5/2-1117 (joint and several liability) or if requested
pursuant to 735 ILCS 5/2-1109, by any party. Also, if requested, each element of damages should be
further itemized to provide separate lines for past and future loss pursuant to 735 ILCS 5/2-1109
(economic loss) and Maddox v. Rozek, 265 Ill. App. 3d 1007, 1011, 639 N.E.2d 164, 167, 203 Ill. Dec.
125, 128 (1st Dist. 1994) (non-economic loss). See also Doering v. Janssen, 76 Ill. App. 3d 62, 67, 394
N.E.2d 721, 725, 31 Ill. Dec. 519, 523 (3d Dist. 1979) where the court held it was not error to submit an
itemized verdict form for both economic and noneconomic loss with separate lines for past and future
damages.
Fill in the names of the parties and others before submitting this form to the jury.
Where “Defendant A,” “Defendant B,” etc. appear, insert the names of each defendant on a
separate line. Provision is made for the possible inclusion on the verdict form of tortfeasors who are not
parties.
This instruction, or a variation of it, should be used in cases where there is one plaintiff and more
than one defendant. If there are multiple counts, the operative paragraphs may need to be repeated for
each count with the count identified, e.g. “under Count.”
In the event that any party moves for a separate verdict on any count, separate verdicts in
addition to this verdict must be submitted. 735 ILCS 5/2-1201(c).
The committee believes that the italicized language could be helpful to explain the verdict form
to the jury.
be disregarded for purposes of the 2-1117 calculation. Ready v. United/Goedecke Services, Inc., 232 Ill.2d 369, 385
(2008)
Section 45, Page 18 of 26
Comment
This computational verdict form is to be used in cases involving a single plaintiff and more than
one entity which could or might have caused the plaintiff's injury or damage, and where comparative
negligence, contribution between defendants or joint and several liability is an issue. IPI 600.14 is
identical to this instruction, with the addition of a paragraph in that instruction providing for express
findings for or against third-party defendants. Because there are many issues in common between the use
of a verdict form involving multiple tortfeasors (but not contribution) and cases which do involve
contribution, this comment is a combined discussion of matters pertaining to both this instruction and IPI
600.14.
Four verdict forms (IPI B45.03A, B45.03A2, 600.14 and 600.14A) are intended to reflect the
jury's findings as to damages and fault, which provide the data for the calculations necessary to the entry
of a judgment or judgments.
The need for the jury to consider the fault of nonparty tortfeasors arose subsequent to the
adoption of comparative negligence in Alvis v. Ribar, 85 Ill.2d 1 (1981). Consideration of the negligence
of both parties and non-parties to an action is essential for determining liability commensurate with
degree of total fault.” Bofman v. Material Serv. Corp., 125 Ill.App.3d 1053 (1st Dist. 1984). In cases
where contributory negligence is involved, it is permissible to introduce evidence of the liability of a
non-party. The liability of non-party tortfeasors may be considered in order to determine the extent of
plaintiff's responsibility for his injuries.” Smith v. Central Ill. Pub. Serv. Co., 176 Ill.App.3d 482 (4th
Dist. 1988). See also American Motorcycle Ass'n v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182,
190, 578 P.2d 899, 906 (1978).
In Bofman, a plaintiff was able to obtain reversal of a verdict because the jury was not properly
instructed to account for the negligence of a settled nonparty. While Ready v. United/Goedecke Services,
Inc., 232 Ill.2d 369 (2008) held that the percentage fault of a defendant who settled is not part of the
calculation under 735 ILCS 5/2-1117, that case did not reduce the vitality of Bofman or Smith. If the jury
hears evidence to suggest fault on the part of settled parties and if contributory negligence is claimed, the
settled parties should be listed on the verdict form to correctly determine the percentage contributory
fault of the plaintiff. The fault of the settling parties, however, should be disregarded for purposes of the
2-1117 calculation. Ready, supra at 385 (“We hold that section 2-1117 does not apply to good-faith
settling tortfeasors who have been dismissed from the lawsuit.”). See also, Heupel v. Jenkins, _ N.E.2d _,
2009 WL 3762941 (1st Dist. 2009).
Persons or entities that were never sued are not part of the 2-1117 calculation either. Jones v.
DHR Cambridge Homes, Inc., 381 Ill.App.3d 18, 31-32, 885 N.E.2d 330 (1st Dist. 2008).
Before this form of verdict was adopted, two separate forms were used, which permitted
inconsistent calculations by the jury of plaintiff's fault and the 2-1117 calculation. That inconsistency led
to a reversal in Hackett v. Equip. Specialists, Inc., 201 Ill.App.3d 186 (1st Dist. 1990). In Hackett, the
jury found the defendant to be 55% at fault with respect to the plaintiff, but not at fault at all with respect
to the third-party defendant. The appellate court held that the fault of the defendant could not simply
have disappeared for contribution purposes. This form of verdict should prevent similar problems.
If contribution claims are tried simultaneously with the plaintiff's underlying action, this verdict
form (in the event of only counterclaims among defendants) or IPI 600.14 (in the event of third-party
claims) is to be used as the form of verdict for both the plaintiff's claim and those contribution claims.
This verdict form is also to be used in those cases where contribution is not sought but where one or
more defendants seek to be held only severally liable.
This form eliminates the need for separate calculations or allocations by the jury for comparative
Section 45, Page 19 of 26
negligence, joint and several liability, and contribution. Further, it was designed to provide the bar with
sufficient resemblance to the prior verdict forms such that the transition would be comfortable. Although
it is not practically or legally necessary, provision is made for the jury to continue the former practice of
calculating the plaintiff's net recovery by reducing the plaintiff's total damages by the plaintiff's fault.
Burke v. 12 Rothschild's Liquor Mart, 148 Ill.2d 429 (1992), holds that a willful and wanton
tortfeasor cannot use the plaintiff's comparative negligence to reduce damages. Ziarko v. Soo Line R.R.,
161 Ill.2d 267 (1994), holds that “a defendant found guilty of willful and wanton conduct may seek
contribution from a defendant found guilty of ordinary negligence if the willful and wanton defendant's
acts were found to be simply reckless and thus were determined to be less than intentional conduct.”
Ziarko and Burke raise a number of comparative fault issues among all parties that must be considered in
the preparation and use of instructions and verdict forms.
First, if it is known prior to the submission of the case to the jury that one of the defendants can
be liable only upon a willful and wanton theory, the calculation of the percentage to be attributable to that
defendant's conduct may still be an issue for the jury's consideration, even if that defendant is not entitled
to a reduction of damages for comparative negligence purposes. Both the plaintiff (for comparative
negligence purposes as to the other defendants) and the other defendants and third-party defendants (for
several liability purposes, and perhaps for contribution purposes) might wish to argue that the percentage
of causation attributable to the willful and wanton defendant be compared with the rest of the causal
fault.
Second, a particular defendant might be liable for (1) negligent conduct, (2) “reckless” willful
and wanton conduct, or (3) that type of willful and wanton conduct described in Ziarko as “intentional.”
If the plaintiff's case and the contribution issues are submitted together to the same jury, the court must
determine: (1) the allowable basis of comparison between the party or parties found to be negligent and
the party or parties whose fault was willful and wanton; (2) whether any aspect of those issues is to be
decided by the court as a matter of law as opposed to being determined by the jury; and (3) the extent to
which any willful and wanton defendant's fault is not considered in allocating fault. The committee takes
no position on these issues.
Because of the absence of case law on various issues, the committee does not yet have sufficient
guidance from the courts to draw instructions that would expressly accommodate every situation. In the
meantime, it is anticipated that most cases can be tried using these forms and instructions accompanied
by special interrogatories on the issue of willful and wanton conduct.
The committee recommends that a non-party not be included on the verdict form until the trial
judge first makes the determination that sufficient evidence has been presented to support a jury finding
of fault with respect to that nonparty. Assuming sufficient evidence is presented and if the jury will need
to decide whether plaintiff was contributorily negligent, then the non-party should be listed on the verdict
form based on Bofman, supra, and Smith, supra. If there is no issue of contributory negligence, the
Committee recommends against including non-parties on the verdict form. Ready, supra at 385; Jones,
supra at 31.
Section 45, Page 20 of 26
B45.03A2 Verdict Form A--Single Plaintiff and
Claimed Multiple Tortfeasors--No
Comparative Negligence--Verdict for
Plaintiff Against Some But Not All Defendants
VERDICT FORM A
We, the jury, find for [plaintiff's name] and against the following defendant or
defendants:
Name of defendant 1 Yes No
_______ _______
Name of defendant 2 Yes No
_______ _______
Name of defendant 3 Yes No
_______ _______
We further find the following:
First: We find that the total amount of damages suffered by [plaintiff's name] as a
proximate result of the occurrence in question is $_______, itemized as follows:
The reasonable expense of past medical and medically related expenses: $_______
(Other damages, insert from IPI 30 series) $_______
PLAINTIFF'S TOTAL DAMAGES: $_______
Second: Assuming that 100% represents the total combined legal responsibility of all
[persons] [or] [entities] who [that] proximately caused [plaintiff's name] injury, we find the
percentage of legal responsibility attributable to each as follows:
a) Defendant #1's name _______%
b) Defendant #2's name _______%
c) Defendant #3's name _______%
TOTAL 100%
(Instructions to Jury: If you find that any party listed on the verdict form was not legally
Section 45, Page 21 of 26
responsible in a way that proximately caused plaintiff's injury, you should enter a zero (0)% as
to that party.)
[Signature lines]
Verdict Form, Notes and Comment adopted January 2010. Notes revised May 2010.
Notes on Use
This verdict form should be used when there is no claim of contributory fault of the plaintiff and
where the defendants do not have a contribution claim pending against any third party. If there is a claim
of contributory fault, use B45.03A. If there is a contribution claim pending against a third party, use IPI
600.14 or 600.14A.
The bracketed itemization of damages in paragraph [First] should be used in any case where
itemization of damages is required under 735 ILCS 5/2-1117 (joint and several liability) or if requested
pursuant to 735 ILCS 5/2-1109, by any party. Also, if requested, each element of damages should be
further itemized to provide separate lines for past and future loss pursuant to 735 ILCS 5/2-1109
(economic loss) and Maddox v. Rozek, 265 Ill. App. 3d 1007, 1011, 639 N.E.2d 164, 167, 203 Ill. Dec.
125, 128 (1st Dist. 1994) (non-economic loss). See also Doering v. Janssen, 76 Ill. App. 3d 62, 67, 394
N.E.2d 721, 725, 31 Ill. Dec. 519, 523 (3d Dist. 1979) where the court held it was not error to submit an
itemized verdict form for both economic and noneconomic loss with separate lines for past and future
damages.
Fill in the names of the parties and others before submitting this form to the jury. Where
“Defendant A,” “Defendant B,” etc. appear, insert the names of each defendant on a separate line.
This instruction, or a variation of it, should be used in cases where there is one plaintiff and more
than one defendant. If there are multiple counts, the operative paragraphs may need to be repeated for
each count with the count identified, e.g. “under Count.”
In the event that any party moves for a separate verdict on any count, separate verdicts in
addition to this verdict must be submitted. 735 ILCS 5/2-1201(c).
The committee believes that the italicized language could be helpful to explain the verdict form
to the jury.
Comment
See Comment to B45.03A.
Section 45, Page 22 of 26
B45.03.B Verdict Form B--Single Plaintiff and Multiple Defendants
VERDICT FORM B
We, the jury, find for all of the defendants and against the plaintiff.
[Signature Lines]
Section 45, Page 23 of 26
45.04A Wrongful Death Act--Survival Act--Verdict Form A--Contributory Fault of
Decedent Only
We, the jury, find for the Estate of ____, deceased, and against the following defendants:
____________________
Defendant 1 Yes _____ No _____
____________________
Defendant 2 Yes _____ No _____
We further find the following:
First: We find that the total amount of damages suffered by the Estate of ___________, deceased,
is $______, itemized as follows:
[Loss of money, goods and services]: $__________$
[Loss of society] and [loss of sexual relations]: $__________
(Other damages: insert from 30.04, 30.04.01,
30.05, 30.05.01, 30.06, 30.07, 30.09
or as applicable) $__________
PLAINTIFF'S TOTAL DAMAGES $__________
Second: Assuming that 100% represents the total combined[negligence] [fault] [responsibility]
of all [persons] [or entities] whose[negligence] [fault] [responsibility] proximately caused the
death of [decedent], we find the percentage of [negligence] [fault] [responsibility] attributable to
each as follows:
a) ___________________ _____%
decedent
b) ___________________ _____%
Defendant 1
c) ___________________ _____%
Defendant 2
Third: After reducing the plaintiff's total damages from paragraph “First” by the percentage of
[negligence] [[(other damage reducing defense)]] if any, of [decedent] from line (a) in paragraph
“Second,” we award [plaintiff] recoverable damages in the amount of $_______
_________________________________ ___________________________
Foreperson
_________________________________ ___________________________
Add additional lines for juror signatures.
Section 45, Page 24 of 26
Notes on Use
Use this verdict form in conjunction with IPI B31.08 when the contributory fault of only the
decedent is an issue for the jury. If there is an issue of contributory fault of a beneficiary alone or a
beneficiary and a decedent, use verdict form IPI 45.04B. Add additional lines on the damage itemization
as appropriate if a Family Expense Act claim is part of the plaintiff's case.
Comment
The contributory fault of the decedent is a defense in a wrongful death action, which was created
by statute in Illinois. 740 ILCS 180/2.
The Survival Act is not a statutory cause of action, but rather a statute that allows for the
continued existence of a cause of action that arose during the lifetime of the decedent. Myers v. Heritage
Enters., Inc., 332 Ill.App.3d 514, 516-517 (4th Dist. 2002). The decedent's contributory fault is a defense
to a claim brought under the Survival Act.
Section 45, Page 25 of 26
45.04B Wrongful Death Act--Survival Act--Verdict
Form A--Contributory Fault of Beneficiary
and Decedent or Beneficiary Only
We, the jury, find for the Estate of ____, deceased, and against the following defendants:
____________________
Defendant 1 Yes _____ No _____
____________________
Defendant 2 Yes _____ No _____
We further find the following:
First: We find that the total amount of damages suffered by the Estate of ____, deceased is
$______, itemized as follows:
[Loss of money, goods and services]: $__________$
[Loss of society] and [loss of sexual relations]: $__________
(Other damages: insert from 30.04, 30.04.01,
30.05, 30.05.01, 30.06, 30.07, 30.09
or as applicable) $__________
PLAINTIFF'S TOTAL DAMAGES $__________
Second: Assuming that 100% represents the total combined[negligence][fault][responsibility] of
all [persons] [or entities] whose [negligence][fault][responsibility] proximately caused the death
of [decedent], we find the percentage of [negligence][fault][responsibility] attributable to each as
follows:
a) ___________________ _____%
decedent
b) ___________________ _____%
beneficiary
c) __________________ _____%
Defendant 1
d) ___________________ _____%
Defendant 2
_________________________________ ___________________________
Section 45, Page 26 of 26
Foreperson
_________________________________ ___________________________
Add additional lines for juror signatures.
Notes on Use
Use this verdict form in conjunction with IPI B31.08 or B31.08.01 when the contributory fault of
a beneficiary or a beneficiary and the decedent is at issue. If there is only an issue as to the decedent's
contributory fault, use verdict form 45.04A. Add additional lines on the damage itemization as
appropriate if a Family Expense Act claim is part of the plaintiff's case.
Comment
The contributory fault of a beneficiary is a potential defense to that beneficiary's right to recover
damages in a wrongful death action created by statute in Illinois. 740 ILCS 180/2. The trial court makes
the findings of dependency post verdict, and any adjustments to the amount of the judgment that may be
occasioned by findings of a beneficiary's contributory fault are made after the assessment of dependency.
740 ILCS 180/2.
The Survival Act is not a statutory cause of action, but rather a statute that allows for the
continued existence of a cause of action that arose during the lifetime of the decedent. Myers v. Heritage
Enters., Inc., 332 Ill.App.3d 514, 516-517 (4th Dist. 2002). The decedent's contributory fault is a defense
to a claim brought under the Survival Act, but the Committee found no authority for allowing the
contributory fault of a beneficiary under the decedent's estate to reduce the judgment or award to that
person in a Survival Act claim.
Section 50, Page 1 of 19
AGENCY
50.00
AGENCY
INTRODUCTION
This set of agency instructions has been drafted for use in tort cases in which there is an
issue of vicarious liability based on principles of agency. It is equally applicable in cases
involving respondeat superior liability based on an employer-employee (“master-servant”)
relationship. Warren v. LeMay, 142 Ill.App.3d 550, 575-76, 491 N.E.2d 464, 480; 96 Ill.Dec.
418, 434 (5th Dist.1986). The Committee has not attempted, however, to determine whether and
to what extent these instructions may be accurate in cases based on other theories of liability,
such as contract. They should be used outside the tort area only with great caution.
Section 50, Page 2 of 19
50.01 Both Principal And Agent Sued--No Issue As To Agency
The defendants are sued as principal and agent. The defendant [principal's name] is the
principal and the defendant [agent's name] is [his] [its] agent. If you find that the defendant
[agent's name] is liable, then you must find that the defendant [principal's name] is also liable.
However, if you find that [agent's name] is not liable, then you must find that [principal's name]
is not liable.
Notes on Use
This instruction should not be given where there is an issue of fact as to agency or where there is
an independent basis of liability of the principal apart from the agency. It is proper when agency is not an
issue. Baikie v. Luther High School South, 51 Ill.App.3d 405, 409-410; 366 N.E.2d 542, 545-546; 9
Ill.Dec. 285, 288-289 (1st Dist.1977) (agency admitted in pleadings and proved by agent's own
testimony); Casey v. Baseden, 131 Ill.App.3d 716, 721; 475 N.E.2d 1375, 1378; 86 Ill.Dec. 808, 811 (5th
Dist.1985), aff'd, 111 Ill.2d 341, 490 N.E.2d 4, 95 Ill.Dec. 531 (1986).
If either the existence of the agency, or the scope of the agency at the particular time, is in
dispute as an issue of fact and both principal and agent are sued, then IPI 50.03 should be used, but if the
principal is sued alone, then IPI 50.04 should be used.
If by the pleadings and evidence there is an issue of fact as to the liability of the principal for his
own acts independent of acts of the agent, then a separate instruction appropriate to such independent
basis of liability should also be used and the last sentence of this instruction should be modified or
stricken accordingly.
Comment
A principal is bound by the acts of his agent committed or performed within the course and scope
of the agency. The use of the instruction is not limited to tort cases but may also be used in various
contract situations as appropriate. Hogan v. City of Chicago, 319 Ill.App. 531, 536; 49 N.E.2d 861, 863
(1st Dist.1943) (action for personal injuries); Fox River Distilling Co. v. Andrichik, 175 Ill.App. 305, 307
(2d Dist.1912) (action for balance due for goods sold).
Section 50, Page 3 of 19
50.02 Principal Sued But Not Agent--No Issue As To Agency
[agent's name] was the agent of the defendant [principal's name] at [and before] the time of this
occurrence. Therefore, any act or omission of the agent at that time was in law the act or
omission of the defendant [principal's name].
Notes on Use
This instruction should not be given where there is an issue of fact as to agency. This
instruction may be used where the principal is sued alone. See Notes on Use to IPI 50.01.
If negligence rests on acts or omissions before the time of the occurrence, the bracketed
words should be used.
If either the existence of the agency or the scope of the agency at the particular time is in
dispute as an issue of fact and both principal and agent are sued, then IPI 50.03 should be used,
but if the principal is sued alone, then IPI 50.04 should be used.
If the agent is the officer of the defendant corporation, IPI 50.11 may be given in lieu of
this instruction. Schmidt v. Blackwell, 15 Ill.App.3d 190, 196; 304 N.E.2d 113, 118 (3d
Dist.1973).
Section 50, Page 4 of 19
50.03 Both Principal and Agent Sued--Agency Denied—
Principal Sued Under Respondeat Superior Only
Defendant [principal's name] is sued as the principal and the defendant [alleged agent's
name] as his agent. [It is denied that any agency existed.] [It is (also) denied that [alleged agent's
name] was acting within the scope of his authority as an agent of the defendant [principal's name]
at the time of the occurrence.]
If you find that the defendant [alleged agent's name] [was the agent of the defendant
[principal's name]] [and] [was acting within the scope of his authority] at the time of the
occurrence, and if you find [alleged agent's name] is liable, then both are liable. If you find that
[alleged agent's name] is not liable, then neither defendant is liable.
If you find that the defendant [alleged agent's name] is liable but was not acting [as an
agent of the defendant [principal's name]] [or] [within the scope of his authority as an agent of
the defendant [principal's name]] at the time of the occurrence, then the defendant [principal's
name] is not liable.
Notes on Use
This instruction should be used only where agency or the scope of the agency or both are in
dispute as an issue of fact and where principal and agent are both sued in the same case. If there is a basis
of liability against the principal independent of the agency, this instruction should be modified
accordingly or replaced by other instructions.
If the principal is sued alone and the agency is in dispute as an issue of fact, IPI 50.04 should be
used. When agency is not disputed use IPI 50.01.
If the negligence charged includes acts or omissions prior to the act or omission at the time of the
occurrence, then the phrase “at the time of this occurrence” should be modified to read “at and before the
time of this occurrence.”
Comment
This instruction applies where both principal and agent are parties defendant and the agency is
the only basis of liability against the principal, but some phase of the agency is in dispute as an issue of
fact. Hogan v. City of Chicago, 319 Ill.App. 531, 536; 49 N.E.2d 861, 863 (1st Dist.1943); Fox River
Distilling Co. v. Andrichik, 175 Ill.App. 305, 307 (2d Dist.1912); Drury v. Barnes, 29 Ill.App. 166, 169
(3d Dist.1890). See Baikie v. Luther High School South, 51 Ill.App.3d 405, 409-410; 366 N.E.2d 542,
545-546; 9 Ill.Dec. 285, 288-289 (1st Dist.1977) (not error to refuse this instruction when agency is
admitted in pleadings and proved by evidence, and IPI 50.01 was given).
Section 50, Page 5 of 19
50.04 Principal Sued, But Not Agent--Agency Denied—
Principal Sued Under Respondeat Superior Only
The defendant [principal's name] is sued as the principal and the plaintiff claims that
[alleged agent's name] was acting as [principal's name] at the time of the occurrence. The
defendant [principal's name] denies that [alleged agent's name] [was acting as his agent] [and]
[was acting within the scope of his authority as an agent of the defendant] at the time of the
occurrence.
If you find that [alleged agent's name] [was the agent of the defendant [principal's name]]
[and] [was acting within the scope of his authority as the agent of the defendant], at the time of
the occurrence, then any act or omission of [alleged agent's name] at that time was in law the act
or omission of the defendant.
If you find that [alleged agent's name] [was not acting as the agent of the defendant] [or]
[was not acting within the scope of his authority as an agent of the defendant] at the time of the
occurrence, then the defendant is not liable.
Notes on Use
This instruction should be used only where a principal is sued for the acts of an alleged agent
who is not sued and the existence or scope of the agency is denied. If the negligence charged includes
acts or omissions prior to the act or omission at the time of the occurrence, then the phrase “at the time of
this occurrence” should be modified to read “at and before the time of this occurrence.”
This instruction should not be given where there is no issue of fact as to the agency or where the
alleged agent is also a party defendant.
Section 50, Page 6 of 19
50.05 Agent--Definition
An agent is a person who, by agreement with another called the principal, represents the
principal in dealings with third persons or transacts business, manages some affair or does some
service for the principal, with or without compensation. The agreement may be oral or written,
express or implied.
[If you find that one person has the right to control the actions of another at a given time,
you may find that the relation of principal and agent exists, even though the right to control may
not have been exercised.]
Notes on Use
This instruction should be given only where there is an issue as to the existence of an
agency. It should not be given in those circumstances where a person is estopped to deny agency
as a matter of law or if there is a question of fact as to the estoppel.
The bracketed second paragraph should be used only if the right to control the purported
agent is an issue.
In a proper case, both IPI 50.05 and 50.10 may be given. Pease v. Ace Hardware Home
Center, 147 Ill.App.3d 546, 498 N.E.2d 343, 101 Ill.Dec. 161 (2d Dist.1986) (not redundant).
Comment
An agent is a person who acts for a principal in accordance with a consensual arrangement and
who is subject to the control or right to control by the principal. Olympic Commissary Co. v. Industrial
Comm'nr, 371 Ill. 164, 171; 20 N.E.2d 86, 89 (1939) (control by right of termination or discharge);
Postal Telegraph Sales Corp. v. Industrial Comm'n, 377 Ill. 523, 37 N.E.2d 175 (1941) (same); Hartley
v. Red Ball Transit Co., 344 Ill. 534, 539; 176 N.E. 751, 753-754 (1931) (control by right to supervise
acts and manner of performance); Lawrence v. Industrial Comm'n, 391 Ill. 80, 87; 62 N.E.2d 686, 689
(1945) (same); Shannon v. Nightingale, 321 Ill. 168, 151 N.E. 573 (1926) (same); Sacks v. Helene Curtis
Industries, 340 Ill.App. 76, 86; 91 N.E.2d 127, 131-132 (1st Dist.1950) (defense of lack of agency); see
generally, Restatement of Agency §1; Mosby v. Kimball, 345 Ill. 420, 427; 178 N.E. 66, 68 (1931); Black
v. Texas Co., 247 Ill.App. 301 (4th Dist.1928).
This instruction should not be given if there is no proof of an agency relationship but there is
proof of “holding out” from which an agency is sought to be established by estoppel. Feitl v. Ricker, 287
Ill.App. 329, 335-340; 4 N.E.2d 907, 909-911 (1st Dist.1936) (because the purchaser of the property did
not rely on the mortgagee when he assumed that the person to whom he made mortgage payments was
the mortgagee's agent, the mortgagee was not estopped to deny that an agency existed and prove that he
had never received the final mortgage payment); Indemnity Ins. Co. v. Midwest Transfer Co., 184 F.2d
633, 635 (7th Cir.1950) (the fact that the insurance company designated a broker as its agent on certain
binders and policies presented a question of fact as to whether it would be estopped to deny the agency
although in fact none existed).
Section 50, Page 7 of 19
50.06 Agent--Issue As To Scope of Authority of Agent Only
One of the questions for you to determine is whether or not [alleged agent's name] was
acting within the scope of his/her authority.
An agent is acting within the scope of his/her authority if he/she is engaged in an activity
which has been assigned to him/her by his/her principal, or if he/she is doing anything that may
reasonably be said to have been contemplated as a part of that activity which benefits the
principal. It is not necessary that an act or failure to act must have been expressly authorized by
[principal].
Instruction, Notes and Comment revised September 2009.
Notes on Use
If both principal and agent are sued and the scope of the agency is in dispute, IPI 50.03 should
accompany IPI 50.06. If the principal alone is sued and he disputes the scope of the agency relation, IPI
50.04 should accompany IPI 50.06. If scope of employment is at issue, use IPI 50.06.01. If apparent
agency is at issue in a medical malpractice action, use 150.10.
Comment
The statements of the alleged agent, made outside the presence of the principal and not
subsequently approved by him, do not establish the existence of the principal-agent relationship. The
principal is the source of the power and the agent's authority can be proved only by tracing it to that
source in some word or act of the alleged principal. Yugoslav-American Cultural Ctr., Inc. v. Parkway
Bank & Trust Co., 289 Ill. App. 3d 728, 682 N.E.2d 401, 224 Ill. Dec. 840 (1st Dist. 1977).
The party asserting agency has the burden of proving the existence of agency but may do so by
inference and circumstantial evidence. The agent may bind his principal by acts which the principal has
not given the agent actual authority to perform, but which the agent appears authorized to perform.
Lundberg v. Church-Farm, Inc., 151 Ill. App.3d 452, 502 N.E.2d 1240, 104 Ill. Dec. 309 (5th Dist.
1986).
Where the principal places an agent in a situation to act for the principal, the principal is
estopped as against a third person from denying the agent's apparent authority. Sakun v. Taffer, 268 Ill.
App.3d 343, 643 N.E.2d 1271, 205 Ill. Dec. 644 (1st Dist. 1994); see also Martinez v. Knochel, 123 Ill.
App.3d 555, 462 N.E.2d 1281, 78 Ill. Dec. 927 (4th Dist. 1984).
An existing agency relationship may be determined not to exist when the agent fails to act for the
benefit of the principal, Cheatem v. Cook, 8 Ill. App.3d 425, 290 N.E.2d 707 (1st Dist. 1972), or when
the acts of the agent are determined to have exceeded the scope of the agent's authority. In re Estate of
Romanowski, 329 Ill. App. 3d 769, 771 N.E.2d 966, 265 Ill. Dec. 7 (1st Dist. 2002); see also Lombard
Pub. Facilities Corp. v. Dep’t. of Revenue, 378 Ill. App. 3d 921, 881 N.E.2d 598, 317 Ill. Dec. 430 (2d
Dist. 2008).
Section 50, Page 8 of 19
50.06.01 Employee--Issue As To Scope of Employment
One of the questions for you to determine is whether or not [alleged employee name] was
acting within the scope of his/her employment.
An employee is acting within the scope of his/her employment if each of the following is
shown by the evidence:
1.
The employee's conduct is of a kind he/she is employed to perform or reasonably
could be said to have been contemplated as part of his/her employment; and
b. The employee's conduct occurs substantially within the authorized time and space
limits of his/her employment; and
c. The employee's conduct is motivated, at least in part, by a purpose to serve the
employer.
Instruction, Notes and Comment created September 2009.
Notes on Use
This instruction has been drafted to conform with the Supreme Court's decision concerning the
scope of employment in Bagent v. Blessing Care Corp., 224 Ill.2d. 154, 862 N.E.2d 985, 308 Ill. Dec.
782 (2007). If agency is unrelated to employment, IPI 50.06 should be used. If apparent agency in a
medical malpractice action is at issue, IPI 150.10 should be used.
Comment
Each of the criteria listed in the Restatement 2nd of Agency §228, for determining whether an
employee’s acts were within the scope of employment, must be met to conclude that an employee was
acting within the scope of employment for purposes of a respondeat superior claim. A hospital
phlebotomist who exceeded the scope of employment by disclosing confidential patient information at a
tavern was not the kind of conduct an employee of the hospital was employed to perform nor was such
conduct motivated to serve her employer. Such employee’s conduct was beyond the scope of her
employment. Bagent, supra; see also Adames v. Sheahan, 2009 WL 711297 (Ill. 2009).
Section 50, Page 9 of 19
50.07 Inference of Agency--Agency and Scope of
Employment Inferred From Ownership of Automobile
If you decide that the automobile being driven by [driver's name] was owned by the
defendant, you may infer from such evidence that [driver's name] was acting as the agent of the
owner and within the scope of his authority, unless you find that inference is overcome by other
believable evidence. You may consider that inference [and any other evidence in the case] in
deciding whether [driver's name] was acting as agent and within the scope of his authority as the
defendant's agent.
Notes on Use
This instruction may be given only where existence of agency is in issue and it is sought to be
established from evidence of ownership of a motor vehicle. The bracketed phrase may be used if there is
evidence other than ownership on the agency issue.
Comment
The inference of agency from proof of ownership of the vehicle has long been recognized in the
law. Paulsen v. Cochfield, 278 Ill.App. 596, 603 (2d Dist.1935).
Section 50, Page 10 of 19
50.08 Inference of Agency--Ownership of Automobile and Employment or Agency
Admitted, But Scope of Authority Denied
At the time of the occurrence, the automobile being driven by [driver's name] was owned
by the defendant and [driver's name] was the employee of the defendant. You may infer from this
fact that [driver's name] was acting within the scope of his authority, unless you decide that the
inference is overcome by other believable evidence. You may consider this inference [and any
other evidence in the case] in deciding whether [driver's name] was acting in the scope of his
authority as the defendant's agent.
Notes on Use
This instruction may be given only where ownership and agency are not in issue, but it is denied
that the agent was acting within the scope of his authority at the time of the occurrence. See Comment to
IPI 50.07. The bracketed phrase may be used if there is evidence other than the employment relationship
on the issue of scope of authority.
Section 50, Page 11 of 19
50.09 Deviation
No instruction has been drafted on this subject.
Comment
No instruction has been drafted on this subject. The resolution of the question whether a
deviation by an agent from the scope of his employment is casual or so substantial in kind or area that in
fairness the principal should not be held for the actions of his agent depends on many detailed
circumstances which vary widely from case to case. Because of this fact, the Committee was unable to
draw an instruction for deviation more concrete than IPI 50.06 which relates to the scope of an agent's
authority. The Committee suggests that that instruction may be used as a basis for the contention that an
agent has deviated far enough from the scope of his employment to relieve the principal from liability for
his actions.
The court approved this approach in Fischer v. Ross, 79 Ill.App.2d 372, 377; 223 N.E.2d 722,
724-725 (2d Dist.1967).
Section 50, Page 12 of 19
50.10 Agent or Independent Contractor
The question has been raised whether at the time of the occurrence [alleged agent's name]
was the agent of the defendant [defendant's name] or was an independent contractor. An agent is
a person who by agreement with another, called the principal, represents the principal in dealings
with third persons or transacts some other business, manages some affair, or does some service
for the principal, with or without compensation. The agreement may be oral or written, express
or implied. [The term “agent” is broader than either “servant” or “employee.” A servant or
employee is an agent, but one may be an agent although he is neither servant nor employee.]
[If you find that one person has the right to control the actions of another at a given time,
you may find that the relation of principal and agent exists, even though the right to control may
not have been exercised.]
An independent contractor is one who undertakes a specific job where the person who
engages him does not have the right [to discharge him] [or] [to direct and control the method and
manner of doing the work].
In determining whether at the time of the occurrence [alleged agent's name] was the agent
of the defendant [defendant's name] or was an independent contractor, you may also consider
[the method of payment;] [the right to discharge;] [the skill required in the work to be done;]
[who provides tools, materials or equipment;] [whether the worker's occupation is related to that
of the employer;] [whether the employer deducted for withholding tax;] [and] [[other relevant
factor(s)].
The principal is liable to third persons for the negligence of his agent in the transaction of
the business of the principal, if the agent himself is liable. But one who engages an independent
contractor is not liable to others for the negligence of the contractor.
Notes on Use
The bracketed material in the first paragraph should be used only where there is need to point out
that a person may be an agent without being a servant or employee.
The bracketed material in the second paragraph should be used only if the right to control the
purported agent is an issue.
Only such elements of the bracketed material in the fourth paragraph should be used as may be
supported by the evidence. See Wenholdt v. Industrial Comm'n, 95 Ill.2d 76, 447 N.E.2d 404, 69 Ill.Dec.
187 (1983).
In a proper case, both IPI 50.05 and 50.10 may be given. Pease v. Ace Hardware Home Center,
147 Ill.App.3d 546, 498 N.E.2d 343, 101 Ill.Dec. 161 (2d Dist.1986) (not redundant).
Section 50, Page 13 of 19
Comment
Generally, a principal is liable for the acts of an agent within the course and scope of the agent's
employment, but not for the acts of an independent contractor. The principal difference between the two
relationships is that the principal has the right to control the agent, but not the independent contractor.
For control by right of termination or discharge, see Olympic Commissary Co. v. Industrial Comm'nr,
371 Ill. 164, 171; 20 N.E.2d 86, 89-90 (1939); Postal Telegraph Sales Corp. v. Industrial Comm'n, 377
Ill. 523, 37 N.E.2d 175 (1941). For control by right to supervise acts and manner of performance, see
Hartley v. Red Ball Transit Co., 344 Ill. 534, 539; 176 N.E. 751, 753-754 (1931); Lawrence v. Industrial
Comm'n, 391 Ill. 80, 87; 62 N.E.2d 686, 689 (1945); Shannon v. Nightingale, 321 Ill. 168, 151 N.E. 573
(1926). See generally, Restatement of Agency, §1; Mosby v. Kimball, 345 Ill. 420, 427; 178 N.E. 66, 68
(1931); Richardson v. United States Mortgage & Trust Co., 194 Ill. 259, 62 N.E. 606 (1901); Black v.
Texas Co., 247 Ill.App. 301 (4th Dist.1928); City of Moline v. McKinnie, 30 Ill.App. 419, 424 (2d
Dist.1888).
However, in certain types of cases the duty to exercise ordinary care cannot be delegated. City of
Joliet v. Harwood, 86 Ill. 110 (1877) (work inherently dangerous); Frost v. Andes Candies, Inc., 329
Ill.App. 535, 69 N.E.2d 732 (1st Dist.1946) (abstract) (hazard accompanies work); People ex rel.
Hepburn v. Maddox, 340 Ill.App. 34, 38; 91 N.E.2d 107, 109 (3d Dist.1950) (work creates public
nuisance); Girdzus v. Van Etten, 211 Ill.App. 533 (1st Dist.1918) (duty imposed by statute); Kennerly v.
Shell Oil Co., 13 Ill.2d 431, 150 N.E.2d 134 (1958) (same); Orange v. Pitcairn, 280 Ill.App. 566, 572
(4th Dist.1935) (nondelegable corporate power); City of Chicago v. Murdoch, 113 Ill.App. 656 (1st
Dist.1904), aff'd, 212 Ill. 9, 72 N.E. 46, 103 Am. St. Rep. 221 (1904) (same); Starr v. Stanard-Tilton
Milling Co., 183 Ill.App. 454 (4th Dist.1913) (injury resulting from acts rendered necessary by the
contract); Raxworthy v. Heisen, 191 Ill.App. 457 (1st Dist.1915), aff'd, 274 Ill. 398, 113 N.E. 699 (1916)
(duty of furnishing employee safe place to work); Chicago Economic Fuel Gas Co. v. Myers, 168 Ill.
139, 48 N.E. 66 (1897) (exercise of powers granted under franchise); Louis v. Youngren, 12 Ill.App.2d
198, 138 N.E.2d 696 (1st Dist.1956) (same).
Section 50, Page 14 of 19
50.11 A Corporation Acts Through Its Employees
The [ (plaintiff) (defendant) is a corporation] [the parties are corporations] and can act
only through [its] [their] officers and employees. Any act or omission of an officer or employee
within the scope of his employment is the action or omission of the [plaintiff] [defendant]
corporation.
Notes on Use
If the agent is the officer of the defendant corporation, this instruction may be given in lieu of IPI
50.02. Schmidt v. Blackwell, 15 Ill.App.3d 190, 196; 304 N.E.2d 113, 118 (3d Dist.1973).
When the requirements for holding a corporate master liable for punitive damages have not been
fulfilled, this instruction may not be given in this form when its effect would be to permit vicarious
liability for punitive damages, since it would impute liability for any act done by an employee, rather
than only those specifically ordered, participated in or ratified by a superior officer. Pendowski v. Patent
Scaffolding Co., 89 Ill.App.3d 484, 488-489; 411 N.E.2d 910, 913-924; 44 Ill.Dec. 544, 547-548 (1st
Dist.1980).
Section 50, Page 15 of 19
50.12 Partner--Liability of--No Issue As To
Partnership, Agency, or Scope of Authority
The defendants [1st partner's name] and [2d partner's name] are partners. [allegedly
negligent partner's name] was acting on behalf of the partnership and within the scope of his
authority. Therefore, if you decide for the plaintiff, your verdict must be against all the
defendants.
Notes on Use
This instruction should be used only where there is no issue as to the existence and scope of a
partnership. If the partnership is a plaintiff, the instruction should be modified accordingly, or applied to
both sides, if the suit is by one partnership against another.
Comment
A partnership is a contract of mutual agency, each partner acting as a principal in his own behalf
and as agent for his co-partner. 805 ILCS 205/9 (1994). Schumann-Heink v. Folsom, 328 Ill. 321, 159
N.E. 250 (1927). Like any other agency relationship, the act or omission of a partner must be within the
scope of the undertaking in order to charge it to the other partners. McDonald v. McDonald, 408 Ill. 388,
394; 97 N.E.2d 336, 339 (1951).
Section 50, Page 16 of 19
50.13 Partnership--Existence Admitted--Scope of
Authority In Issue--Consequence of Relationship
[1st partner's name] and [2d partner's name] are partners.
If you find that [1st partner's name] action in [insert action or inaction of 1st partner] was
[apparently] in furtherance of the partnership business, then [2d partner's name] is responsible for
[1st partner's name]'s action.
Notes on Use
This instruction should be used only when the existence of the partnership is admitted but the
scope of the partner's authority is in issue.
Comment
The instruction is based on §9 (1), (2) of the Uniform Partnership Act. 805 ILCS 205/9(1), (2)
(1994); Crane Co. v. Tierney, 175 Ill. 79, 83; 51 N.E. 715, 716 (1898) (an instruction that the partnership
would be liable only for purchase of goods within the apparent scope of the partnership articles or within
the apparent scope of business warranted by the articles was held to be erroneous; liability extends to the
apparent scope of the business actually transacted).
Where it was shown that the act giving rise to the debt was apparently done in carrying on the
business of the partnership in the usual way, plaintiff could recover without evidence that the partner had
given express authority to contract. It was defendant's burden to establish absence of authority.
Stratemeyer v. West, 125 Ill.App.3d 597, 466 N.E.2d 306, 80 Ill.Dec. 854 (5th Dist.1984).
Section 50, Page 17 of 19
50.14 Partnership--Existence of Relationship And
Scope of Authority In Issue--Consequence of Relationship
The act or omission of one partner [apparently] in furtherance of the partnership business
is, in law, the responsibility of all the partners [even though they did not know of the act or
omission].
If you find that [1st partner's name] and [2d partner's name] were partners and that [1st
partner's name]'s act or omission in [insert action or inaction of partner] [apparently] was in
furtherance of the partnership business, then [2d partner's name] is responsible for [1st partner's
name]'s act or omission.
Notes on Use
This instruction should be used only when the existence of the partnership and the question of
the scope of the partner's authority are in issue.
Comment
If the action of a partner is apparently in furtherance of the partnership business, it binds the
other partners. 805 ILCS 205/9(1), (2) (1994); J.L. Gardenhire Drilling Co. v. Ray, 302 Ill.App. 268,
274; 23 N.E.2d 927, 929-930 (4th Dist.1939). An act by a partner within his authority binds the
partnership even though the other partners do not know of the act. Swannell v. Byers, 123 Ill.App. 545
(1st Dist.1905); Schwabacker v. Riddle, 84 Ill. 517 (1877); Stratemeyer v. West, 125 Ill.App.3d 597, 466
N.E.2d 306, 80 Ill.Dec. 854 (5th Dist.1984).
Section 50, Page 18 of 19
50.15 Partnership--Definition
One of the issues in this case is whether [1st partner's name] and [2d partner's name] were
partners. Persons who join together or agree to join together in a business or venture for their
common benefit, each contributing property, money, or services to the business or venture and
having a community of interest in any profits, are partners.
Notes on Use
This instruction should be used only where the existence of a partnership is in issue.
Comment
A partnership is defined in paragraph 6 of the Uniform Partnership Act as an “association of two
or more persons to carry on as co-owners a business for profit.” The existence of a partnership is a
question of intention to be gathered from all the facts and circumstances surrounding a transaction. A
partnership may exist under written or verbal agreement. When persons associate to carry on a business
or venture for their common benefit, contribute property or services to the business and have a
community of interest in the profits, they are partners. Uniform Partnership Act, §6, 805 ILCS 205/6
(1994); Peck v. Peck, 16 Ill.2d 268, 280; 157 N.E.2d 249, 257 (1959); Rizzo v. Rizzo, 3 Ill.2d 291, 298;
120 N.E.2d 546, 550 (1954); Swannell v. Byers, 123 Ill.App. 545, 549 (1st Dist.1905).
What constitutes a partnership under an uncontested set of facts may be a question of law. Sharp
v. Gallagher, 94 Ill.App.3d 1128, 419 N.E.2d 443, 50 Ill.Dec. 335 (1st Dist.1981), rev'd on other
grounds, 95 Ill.2d 322, 447 N.E.2d 786, 69 Ill.Dec. 351 (1983).
Section 50, Page 19 of 19
50.16 Apparent Agency
Comment
The Committee has prepared instructions dealing with these issues which can be found at 105.10
and 105.11.
Section 55, Page 1 of 7
CONSTRUCTION NEGLIGENCE
55.00
CONSTRUCTION NEGLIGENCE
PERMISSION TO PUBLISH GRANTED IN 2002
INTRODUCTION
Prior to February 14, 1995, workers injured in construction related settings had a number
of avenues under the law by which to pursue a cause of action. Among those were the Illinois
Structural Work Act, 740 ILCS 150/1 through 150/9, repealed by P.A. 89-2 §5, effective Feb. 14,
1995, Restatement (Second) of Torts §343 & §343A and Restatement (Second) of Torts §414.
Construction negligence law has existed for some time, however it was rarely used due to the
availability of the Illinois Structural Work Act. Following the Act's repeal in 1995, construction
negligence actions have been thrust into the forefront. The law is currently in a state of flux and
continues to be an area that is changing and developing.
Restatement (Second) of Torts §414 remains a viable remedy for some construction
related injuries. This section is an exception to the general rule of agency dealing with
independent contractors. The Restatement is as follows:
One who entrusts work to an independent contractor, but who retains control of any part
of the work, is subject to liability for physical harm to others for whose safety the employer owes
a duty to exercise reasonable care, which is caused by his failure to exercise his control with
reasonable care.
Comment a. If the employer of an independent contractor retains control over the operative detail
of doing any part of the work, he is subject to liability for the negligence of the employees of the
contractor engaged therein, under the rules of that part of the law of Agency which deals with the
relation of master and servant. The employer may, however, retain a control less than that which
is necessary to subject him to liability as master. He may retain only the power to direct the order
in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to
himself or others. Such a supervisory control may not subject him to liability under the principles
of Agency, but he may be liable under the rule stated in the Section unless he exercises his
supervisory control with reasonable care so as to prevent the work which he has ordered to be
done from causing injury to others.
Comment b. The rule stated in this Section is usually, though not exclusively, applicable when a
principal contractor entrusts a part of the work to subcontractors, but himself or through a
foreman superintends the entire job. In such a situation, the principal contractor is subject to
liability if he fails to prevent the subcontractors from doing even the details of the work in a way
unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know
that the subcontractors' work is being so done, and has the opportunity to prevent it by exercising
the power of control which he has retained in himself. So too, he is subject to liability if he
Section 55, Page 2 of 7
knows or should know that the subcontractors have carelessly done their work in such a way as
to create a dangerous condition, and fails to exercise reasonable care either to remedy it himself
or by the exercise of his control cause the subcontractor to do so.
Comment c. In order for the rule stated in this Section to apply, the employer must have retained
at least some degree of control over the manner in which the work is done. It is not enough that
he has merely a general right to order the work stopped or resumed, to inspect its progress or to
receive reports, to make suggestions or recommendations which need not necessarily be
followed, or to prescribe alterations and deviations. Such a general right is usually reserved to
employers, but it does not mean that the contractor is controlled as to his methods of work or as
to operative detail. There must be such a retention of a right of supervision that the contractor is
not entirely free to do the work in his own way.
Restatement (Second) of Torts §414 (West 2000).
“Control over any part of the work” is the key element imposing liability under §414. The
term “control” has been compared to the “in charge of” requirement under the Structural Work
Act, 740 ILCS 150/1 through 150/9, repealed by P.A. 89-2 §5, effective Feb. 14, 1995. Adopted
by the Illinois Supreme Court in Larson v. Commonwealth Edison, 33 Ill.2d 316, 211 N.E.2d 247
(1965), §414 was most notably discussed and clarified in the cases of Weber v. Northern Illinois
Gas Co., 10 Ill.App.3d 625, 295 N.E.2d 41 (1st Dist.1973) and Pasko v. Commonwealth Edison
Co., 14 Ill.App.3d 481, 302 N.E.2d 642 (1st Dist.1973). These cases set the early standard for
§414's interpretation and application in Illinois.
In Larson, the court held that a general contractor who retains control of any part of the
work of a subcontractor will be liable for injuries resulting from his failure to exercise this
control with reasonable care. Id. 33 Ill.2d 316, 325; 211 N.E.2d at 252-253. Although a
defendant's conduct is an appropriate consideration under §414, the most significant question to
analyze is whether the defendant retained the authority to control the work. Larson, 33 Ill.2d 316,
324-335; 211 N.E.2d at 252. (emphasis added). At common law, retention of the right to control
the work is sufficient to subject one to duty and tort responsibility. Id. 211 N.E.2d at 252-253,
citing Restatement of Torts, §414.
The Weber court found that §414 “is applicable to anyone with authority who entrusts
work to an independent contractor, e.g., an owner, general contractor or architect.” Id. 10
Ill.App.3d 625, 639; 295 N.E.2d at 50. Thus, more than one person may have “control” over a
contractor's work. Further, “a contractor owes an independent contractor whom he employs and
all the subcontractors' employees a non-delegable duty to provide a safe place to work.” Id. 10
Ill.App.3d 625, 640; 295 N.E.2d at 51. This duty applies to anyone connected to a construction
project who evidences the requisite level of control. Damnjanovic v. United States, 9 F.3d 1270
(7th Cir.1993).
In Pasko, the court stated that “[t]he power to forbid work from being done in a manner
likely to be dangerous to himself or others is given as an illustration of the type of power retained
by an employer which could subject him to liability.” Id. 14 Ill.App.3d 481, 488; 302 N.E.2d at
648. The Pasko court placed great emphasis on a defendant's ability to implement or enforce
safety procedures. Id.
Section 55, Page 3 of 7
Due to the availability of the Structural Work Act, there was a long period of time where
there were not many cases decided under §414. Since the repeal of the Act, conflicts have arisen
regarding the application of §414, and, specifically, what control is sufficient to render a party
liable for failing to exercise that control with reasonable care. These conflicts are most evident in
the cases of Fris v. Personal Products Company, 255 Ill.App.3d 916, 627 N.E.2d 1265, 194
Ill.Dec. 623 (3d Dist.1994), Rangel v. Brookhaven Constructors, Inc., 307 Ill.App.3d 835, 719
N.E.2d 174, 241 Ill.Dec. 313 (1st Dist.1999), Brooks v. Midwest Grain Products of Illinois, Inc.,
311 Ill.App.3d 871, 726 N.E.2d 153, 244 Ill.Dec. 557 (3d Dist.2000), and Bokodi v. Foster
Wheeler Robbins, Inc., 312 Ill.App.3d 1051, 728 N.E.2d 726, 245 Ill.Dec. 644 (1st Dist.2000).
The Third District in Fris focused on whether the defendant actually exercised its control
over the means and methods of the work. Even though the Fris court acknowledged that the
defendant retained the right to inspect the work, issue change orders, ensure that safety
precautions were observed and ensure the work was done in a safe manner, it held that the
defendant did not retain sufficient control over the “operative details” or “routine and incidental
aspects” of the plaintiff's work. Id. 255 Ill.App.3d 916, 924-925; 627 N.E.2d at 1270; 194
Ill.Dec. 623. The term “routine and incidental aspects” has no progenitor and is not defined in the
case.
In Rangel, a subcontract between the defendant and the plaintiff's employer provided that
the defendant would exercise complete supervision and control over the plaintiff's work. Id., 307
Ill.App.3d 835, 838; 719 N.E.2d at 177, 241 Ill.Dec. at 316. The First District stated that liability
would not be imposed on the defendant unless it retained control over the “incidental aspects” of
the plaintiff's work. Id. 307 Ill.App.3d 835, 839; 719 N.E.2d at 178; 241 Ill.Dec. at 316 (citing
Fris, 255 Ill.App.3d at 924). The court held that the defendant never actually exercised its control
over the “operative details” of the plaintiff's work and therefore the §414 exception did not apply.
Id. 307 Ill.App.3d 835, 839; 719 N.E.2d at 177-178; 241 Ill.Dec. at 316. The court did not define
“incidental aspects” of the work.
Less than one year later, the First District decided Bokodi. In Bokodi, the defendant
superintended the entire job and retained a right of supervision such that the subcontractors were
not free to do their work without compliance with safety regulations. Id. 312 Ill.App.3d 1051,
1064; 728 N.E.2d at 736; 245 Ill.Dec. at 658. Additionally, the defendant discussed safety
matters in meetings, was responsible for the overall construction schedule and coordination of
subcontractors. Id. 312 Ill.App.3d 1051, 1053-1054; 728 N.E.2d at 728 245 Ill.Dec.at 647.
Further, the defendant retained the authority to stop the work of any subcontractor if they
witnessed a potential safety hazard and subsequently would not allow work to resume until they
were satisfied safety issues were in compliance. Id. 312 Ill.App.3d 1051, 1054; 245 Ill.Dec. 644,
728 N.E.2d at 728-729. The court specifically found the general contractor's authority over job
site safety to be a determining factor and found the general contractor had “control” for purposes
of §414 as a matter of law.
In Brooks, the Third District reviewed the standard for control under §414 as set forth by
both Fris and Rangel. The defendant was present on the construction site and retained the
authority to stop the work if safety rules were not followed. Id. 311 Ill.App.3d 871, 873; 726
N.E.2d at 154; 244 Ill.Dec. at 558. The Brooks court specifically pointed to §414, which states
that a general contractor “who retains the control of any part of the work, is subject to liability for
physical harm to others caused by the [plaintiff's] employer's failure to exercise his control with
Section 55, Page 4 of 7
reasonable care.” Id. 311 Ill.App.3d 871, 874; 726 N.E.2d at 155, 244 Ill.Dec. at 558. Thus, the
defendant need not affirmatively direct the subcontractor's work. Rather, a defendant's omission
in regards to its retained right of control is determinative in deciding whether a duty existed and
whether that duty was breached.
The Brooks court distinguished the holdings in both Rangel and Fris and reversed the
trial court's finding that the defendant did not owe the plaintiff a duty of care. The committee had
difficulty reconciling Fris and Rangel with Brooks and Bokodi.
Illinois courts have identified a number of factors to be considered in determining
whether a defendant is in control of the work. These include, but are not limited to: (1) the right
to stop work for safety reasons; (2) authority to implement safety rules/procedures; (3) safety
consultant consistently present on job site; (4) supervision and control of the work; (5) retention
of the right to supervise and control the work; (6) supervision and coordination of subcontractors;
(7) responsibility for taking safety precautions at the job site; (8) authority to issue change orders;
(9) holding meetings in which safety issues are discussed; (10) ownership of the equipment used
at the job site; and (11) authority to order unsafe equipment removed. See Haberer v. Village of
Sauget, 158 Ill.App.3d 313, 511 N.E.2d 805, 110 Ill.Dec. 628 (5th Dist.1987); Sobczak v. Flaska,
302 Ill.App.3d 916, 706 N.E.2d 990, 236 Ill.Dec. 116 (1st Dist.1998); Weber; Pasko; Brooks;
and Bokodi.
Cases in which the defendant did not retain sufficient control include Rogers v. West
Construction Co., 252 Ill.App.3d 103, 623 N.E.2d 799, 191 Ill.Dec. 209 (4th Dist.1993)
(defendant completely vacated the construction site prior to plaintiff's arrival); Hutchcraft v.
Independent Mechanical Industries, Inc., 312 Ill.App.3d 351, 726 N.E.2d 1171, 244 Ill.Dec. 860
(4th Dist 2000) (insufficient control because plaintiff could not establish causation in fact based
on surmise or conjecture as to the cause of injury); Fris v. Personal Products Company, 255
Ill.App.3d 916, 627 N.E.2d 1265, 194 Ill.Dec. 623 (3d Dist.1994) (defendant did not retain
sufficient control over the “operative details” or “routine and incidental aspects” of the plaintiff's
work); and Rangel v. Brookhaven Constructors, Inc., 307 Ill.App.3d 835, 719 N.E.2d 174, 241
Ill.Dec. 313 (1st Dist.1999) (defendant never exercised its control over the “operative details” of
the plaintiff's work).
Due to the lack of consensus among the appellate courts and no Supreme Court cases on
this subject since Larson in 1965, the concept of “control” caused the committee great difficulty.
The committee chose to concentrate on the area of “safety” in these instructions. The committee
believed that the overriding consideration throughout all of these cases is the ability of the
controlling entity to affect overall job safety. It would appear that the ability to stop unsafe work
and not permit it to be resumed until done to the satisfaction of the controlling entity satisfies
both the requirement of “control” and demonstrates that the contractor is “not entirely free to do
the work in his own way.”
In addition, the committee was cognizant of the fact that the term “having charge of the
work” was never defined in the Structural Work Act IPI instructions. See Illinois Pattern Jury
Instructions 180.16 (2000). In Larson the Supreme Court chose not to define “having charge of”
stating it was a “generic term of broad import”. Id. 33 Ill.2d 316, 321, 323; 211 N.E.2d at
251-252. Whether the term “control” will be treated similarly will depend on further judicial
interpretation to help guide the committee.
Section 55, Page 5 of 7
The instructions that follow allow the jury to determine whether the defendant retained
sufficient “control” to give rise to the duty to exercise that control in a reasonable manner.
55.01 Construction Negligence--Work Entrusted To Another
A[n] [owner] [contractor] [other] who entrusts work to a [subcontractor] [contractor]
[other] can be liable for injuries resulting from the work if the [owner] [contractor] [other]
retained some control over the safety of the work and the injuries were proximately caused by the
[owner's] [contractor's] [other's] failure to exercise that control with ordinary care.
Notes on Use
This should be given as an introduction to the subject of construction negligence.
Comment
See Restatement (Second) of Torts, §414 (West 2000), and the Introduction to this section.
55.02 Construction Negligence--Duty
A party who retained some control over the safety of the work has a duty to exercise that
control with ordinary care.
Notes on Use
This should be used in conjunction with IPI 55.03.
Comment
(Cf. Restatement (Second) of Torts, §414: “one who entrusts work to an independent contractor,
but who retains the control of any part of the work, is subject to liability for physical harm to others for
whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to
exercise his control with reasonable care.”)
55.03 Construction Negligence--Issues Made by the Pleadings/Burden of Proof
Plaintiff ____ seeks to recover damages from defendant[s] ____. In order to recover
damages, the plaintiff has the burden of proving:
1. [The defendant] [Defendants __, __, and __] retained some control over the safety of
the work;
2. Defendant[s] [acted] [or] [failed to act] in one or more of the following ways:
a. ____; or
b. ____; or
c. ____.;
Section 55, Page 6 of 7
and in so [acting] [or] [failing to act], was [were] negligent in the manner in which it [exercised]
[or] [failed to exercise] its control.
3. Plaintiff [name] was injured; and
4. [The defendant's] [Defendants' ____, ____, or ____] negligence was a proximate
cause of plaintiff's injuries.
[You are to consider these propositions as to each defendant separately.] If you find that
any of these propositions has not been proven as to [the defendant] [any one] [or more] [or all]
[of the defendants], then your verdict should be for [the] [that] [those] defendant[s]. On the other
hand, if you find that all of these propositions have been proven as to [the defendant] [any one]
[or more] [or all] [of the defendants], then you must consider defendant['s] [s'] claim[s] that the
plaintiff was contributorily negligent.
As to [that] [those] claim[s], defendant[s] has the burden of proving:
A. Plaintiff [name] acted or failed to act in one or more of the following ways:
1. ____; or
2. ____; or
3. ____.;
and in so [acting] [or] [failing to act] was negligent, and
B. Plaintiff's negligence was a proximate cause of [his injury] [and] [damage to his
property].
If you find that plaintiff has proven all the propositions required of [him] [her], and the
defendant[s] ha[s][ve] not proven all of the propositions required of the defendant[s], then your
verdict should be for the plaintiff as to [that] [those] defendant[s] and you will not reduce
plaintiff's damages.
If you find that defendant[s] [has] [have] proven all of the propositions required of [the]
[those] defendant[s], and if you find that the plaintiff's contributory negligence was greater than
50% of the total proximate cause of the injury or damage for which recovery is sought, then your
verdict should be for [that] [those] defendant[s].
If you find that defendant[s] [has] [have] proven all of the propositions required of [the]
[those] defendant[s], and if you find that the plaintiff's contributory negligence was less than 50%
of the total proximate cause of the injury or damage for which recovery is sought, then your
verdict should be for the plaintiff as to [that] [those] defendant[s] and you will reduce the
plaintiff's damages in the manner stated to you in these instructions.
Notes on Use
This is a new instruction. In prior editions of the IPI, there were no specific instructions dealing
with common law construction negligence cases. Most cases that could have been tried under that theory
Section 55, Page 7 of 7
were typically tried as Structural Work Act cases. Cf. IPI 180.01 et seq. (IPI 2000 ed.).
This combined issue-burden instruction is designed for use in a common law construction
negligence case. The committee drew heavily on Restatement (Second) of Torts, §414, and Illinois cases
construing it. E.g. Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247 (1965); Weber v.
Northern Ill. Gas Co., 10 Ill.App.3d 625, 295 N.E.2d 41 (1st Dist.1973); Pasko v. Commonwealth Edison
Co., 14 Ill.App.3d 481, 302 N.E.2d 642 (1st Dist.1973); Ryan v. Mobil Oil Co., 157 Ill.App.3d 1069, 510
N.E.2d 1162, 110 Ill.Dec. 131 (1st Dist.1987); Haberer v. Village of Sauget, 158 Ill.App.3d 313, 511
N.E.2d 805, 110 Ill.Dec. 628 (5th Dist.1987); Claudy v. City of Sycamore, 170 Ill.App.3d 990, 524
N.E.2d 994, 120 Ill.Dec. 812 (1st Dist.1988); Bezan v. Chrysler Motors Corporation, 263 Ill.App.3d 858,
636 N.E.2d 1079, 201 Ill.Dec. 647 (2d Dist.1994); Fris v. Personal Products Company, 255 Ill.App.3d
916, 627 N.E.2d 1265, 194 Ill.Dec. 623 (3d Dist.1996); Fancher v. Central Illinois Public Service Co.,
279 Ill.App.3d 530, 664 N.E.2d 692, 216 Ill.Dec. 55 (5th Dist.1996); Rangel v. Brookhaven
Constructors, Inc., 307 Ill.App.3d 835, 719 N.E.2d 174, 241 Ill.Dec. 313 (1st Dist.1999); Brooks v.
Midwest Grain Prod. of Ill., 311 Ill.App.3d 871, 726 N.E.2d 153, 244 Ill.Dec. 557 (3d Dist.2000); {fs22
Bokodi v. Foster Wheeler Robbins, Inc.
Section 60, Page 1 of 6
Statutory Violations
60.00
Statutory Violations
Introduction
Two different types of legislation can affect civil remedies for personal injuries and
property damage.
Statutory Causes of Action
Statutes can themselves create a tort or tort-like cause of action for personal injury
(including death) or property damage. Examples include the Federal Employers' Liability Act
(injuries to railroad workers), the Jones Act (injuries to seamen), the Illinois Dram Shop Act
(injuries caused by intoxicated persons), and the Illinois Public Utilities Act (unsafe conditions
created by specified public utilities).
These statutes are beyond the scope of this chapter. Other IPI chapters contain
instructions for cases brought under some of those statutes. See Chapter 150 (Dram Shop Act);
Chapter 160 (Federal Employers' Liability Act); Chapter 170 (Safety Appliance and Boiler
Inspection Acts).
Legislation as Evidence of Standard of Care
In a negligence or product liability action, and certain other cases, relevant legislation
may be admitted into evidence to assist the trier of fact in determining the applicable standard of
conduct. Thus, in Illinois, violation of a statute, ordinance, or an administrative ruling, regulation
or order designed for the protection of human life or property is prima facie evidence of
negligence or other fault. French v. City of Springfield, 65 Ill.2d 74, 357 N.E.2d 438, 2 Ill.Dec.
271 (1976); Davis v. Marathon Oil Co., 64 Ill.2d 380, 356 N.E.2d 93, 1 Ill.Dec. 93 (1976); Dini
v. Naiditch, 20 Ill.2d 406, 417; 170 N.E.2d 881, 886 (1960). Where it is shown that a party has
violated a statute, this prima facie evidence of his negligence may be rebutted by proof that the
party acted reasonably under the circumstances of the case, despite the violation. Johnson v.
Pendergast, 308 Ill. 255, 139 N.E. 407 (1923); Davis v. Marathon Oil Co., 64 Ill.2d 380, 356
N.E.2d 93, 1 Ill.Dec. 93 (1976).
The prima facie evidence of negligence does not, of course, establish a prima facie case
of liability, since the element of proximate cause must still be proved. Tenenbaum v. City of
Chicago, 60 Ill.2d 363, 325 N.E.2d 607 (1975); Ney v. Yellow Cab Co., 2 Ill.2d 74, 78-79; 117
N.E.2d 74, 77-78 (1954).
Section 60, Page 2 of 6
No distinction is made between a statute and an ordinance, if the ordinance is one which
the city is authorized to enact. United States Brewing Co. v. Stoltenberg, 211 Ill. 531, 537; 71
N.E. 1081, 1084 (1904); Mangan v. F.C. Pilgrim & Co., 32 Ill.App.3d 563, 577; 336 N.E.2d 374,
379 (1st Dist.1975). Administrative rules, regulations and orders must be validly adopted, and
have the force of law. Such rules may also be admissible as indicia of standards of care. Davis v.
Marathon Oil Co., 64 Ill.2d 380, 356 N.E.2d 93, 1 Ill.Dec. 93 (1976); Darling v. Charleston
Community Memorial Hosp., 33 Ill.2d 326, 332; 211 N.E.2d 253, 257 (1965), cert. denied, 383
U.S. 946, 86 S.Ct. 1204, 16 L.Ed.2d 209 (1966); American State Bank v. County of Woodford, 55
Ill.App.3d 123, 371 N.E.2d 232, 13 Ill.Dec. 515 (4th Dist.1977).
The statute, ordinance, or regulation must be one which is designed to protect against the
type of injury complained of, Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74 (1954), and the
plaintiff must also show that he is within the class intended to be protected by the statute,
ordinance, or regulation. Brunnworth v. Kerens-Donnewald Coal Co., 260 Ill. 202, 216-217, 103
N.E. 178, 184 (1913).
Instructions concerning violations of a statute, ordinance or regulation should not be
given unless the evidence is adequate to support a finding that a violation actually occurred
(Tenenbaum v. City of Chicago, 60 Ill.2d 363, 325 N.E.2d 607 (1975); Figarelli v. Ihde, 39
Ill.App.3d 1023, 351 N.E.2d 624 (1st Dist.1976)) and that the violation was a proximate cause of
the injury (French v. City of Springfield, 65 Ill.2d 74, 79-80; 357 N.E.2d 438, 440-441; 2 Ill.Dec.
271, 273-274 (1976)).
Section 60, Page 3 of 6
60.01 Violation of Statute, Ordinance, or Administrative Regulation
There was in force in the [State of Illinois] [City of ________] at the time of the
occurrence
e.g., Peoria
in question a certain [statute] [ordinance] [administrative (regulation) (rule) (order)] which
provided that:
[Quote or paraphrase applicable part of statute, ordinance or regulation as construed by
the courts.]
If you decide that [a party] [the parties] [_______________] violated the [statute]
[ordinance]
description of non-party
[regulation] [rule] [order] on the occasion in question, then you may consider that fact together
with all the other facts and circumstances in evidence in determining whether and to what extent,
if any, [a party] [the parties] [_____________] [was] [were] negligent before and at the time of
the
description of non-party
occurrence.
Instruction revised December 2011.
Notes on Use
Permission to publish amended Notes on Use granted in 2002.
This instruction should be given only where the evidence would support a finding that the injury
complained of was proximately caused by a violation of a statute, ordinance, or administrative regulation,
rule, or order intended to protect against such an injury, and that the injured party is within the class
intended to be protected by the statute, ordinance, or administrative regulation. This instruction should be
given provided that the statute, ordinance, or administrative regulation has the force of law. Davis v.
Marathon Oil Co., 64 Ill.2d 380, 356 N.E.2d 93, 1 Ill.Dec. 93 (1976). If the subject standard does not
have the force of law, this instruction should not be given. Poelker v. Warrensburg-Latham School
District, 251 Ill.App.3d 270, 621 N.E.2d 940, 190 Ill.Dec. 487 (4th Dist.1993) (rules and
recommendations of the National Federation of High School Associations at issue). When IPI 60.01 has
been given for standards that do not have the force of law, the appellate court has noted the holding in
Davis and affirmed this practice only when waiver or other factors are present. See, e.g., American State
Bank v. County of Woodford, 55 Ill.App.3d 123, 371 N.E.2d 232, 13 Ill.Dec. 515 (4th Dist.1978) (precise
objection not made at jury instruction conference); Carlson v. City Construction Co., 239 Ill.App.3d 211,
606 N.E.2d 400, 179 Ill.Dec. 568 (1st Dist.1992) (compliance with standards required in contract
between the parties). In at least one instance, however, the appellate court has affirmed, without
reservation and without citation to Davis, a trial court's usage of IPI 60.01 where the standard did not
have the force of law. King v. American Food Equipment Co., 160 Ill.App.3d 898, 513 N.E.2d 958, 112
Ill.Dec. 349 (1st Dist.1987) (ANSI standard at issue).
Section 60, Page 4 of 6
This instruction may be used in a case where there is evidence tending to show that a violation of
a statute by a non-party third person may have been a proximate cause of the occurrence. See, e.g.,
Roberts v. City of Chicago, 105 Ill.App.3d 383, 385; 434 N.E.2d 420, 422-423; 61 Ill.Dec. 267, 269-270
(1st Dist.1982); Mizowek v. DeFranco, 64 Ill.2d 303, 311; 356 N.E.2d 32, 36; 1 Ill.Dec. 32, 36 (1976);
Nowak v. Witt, 14 Ill.App.2d 482, 144 N.E.2d 813 (2d Dist.1957). If it is so claimed, then a phrase
describing the non-party should be included where indicated, and IPI 12.04 should be given addition to
this instruction.
A party is not entitled to multiple instructions containing the same legal principle. Thus, a party
may properly be required to choose between several tendered instructions that embody the same or
similar statutory violations. Bernardoni v. Hebel, 101 Ill.App.3d 172, 176-177; 427 N.E.2d 1288,
1291-1292; 56 Ill.Dec. 742, 745-746 (3d Dist.1981).
Evidence that a party complied with a relevant statute, ordinance, or administrative regulation,
rule, or order, intended to protect against the injury complained of, may be admissible as evidence that
the party was not negligent, or that a product was not defective or unreasonably dangerous. Rucker v.
Norfolk & W. Ry. Co., 77 Ill.2d 434, 396 N.E.2d 534, 33 Ill.Dec. 145 (1979). Just as in the case of other
such legislation, compliance with applicable statutes and safety regulations is not conclusive evidence on
the question of negligence, but it is relevant to that issue. Moehle v. Chrysler Motors Corp., 93 Ill.2d
299, 305; 443 N.E.2d 575, 577-578; 66 Ill.Dec. 649, 651-652 (1982); Christou v. Arlington
Park-Washington Park Race Tracks Corp., 104 Ill.App.3d 257, 261; 432 N.E.2d 920, 923-924; 60
Ill.Dec. 21, 24-25 (1st Dist.1982). If the court rules that such a statute or other enactment is admissible
for this purpose, and that an instruction is appropriate, this instruction may be modified and used.
Comment
Ordinarily the language of the statute, ordinance, or regulation may be used in the instruction.
Davis v. Marathon Oil Co., 64 Ill.2d 380, 356 N.E.2d 93, 1 Ill.Dec. 93 (1976) (regulation pertaining to
tank trucks); Tenenbaum v. City of Chicago, 60 Ill.2d 363, 325 N.E.2d 607 (1975); Darling v. Charleston
Community Memorial Hosp., 33 Ill.2d 326, 211 N.E.2d 253, 257 (1965) (hospital regulations of State
Department of Public Health); Bertrand v. Adams, 344 Ill.App. 559, 562; 101 N.E.2d 841, 842 (4th
Dist.1951) (statute prohibiting overtaking and passing near intersections); Hann v. Brooks, 331 Ill.App.
535, 551; 73 N.E.2d 624, 631 (2d Dist.1947) (statute providing for driving on the right side of the road).
But if a judicial interpretation has modified the language, the change must be reflected in the instruction.
McElligott v. Illinois Cent. R. Co., 37 Ill.2d 459, 227 N.E.2d 764 (1967) (maintenance of railroad
crossing); De Legge v. Karlsen, 17 Ill.App.2d 69, 79, 81; 149 N.E.2d 491, 495-497 (1st Dist.1958)
(peremptory instruction in language of right-of-way statute held error); Anderson v. Steinle, 289 Ill.App.
167, 171; 6 N.E.2d 879, 881 (4th Dist.1937) (same ruling as to “flare statute”).
If the statute, ordinance, or regulation is not intended to protect against the type of injury in
question, Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74 (1954), or if the injured party is not within
the protected class, Brunnworth v. Kerens-Donnewald Coal Co., 260 Ill. 202, 216-217; 103 N.E. 178,
184 (1913), Bitner v. Lester B. Knight & Associates, Inc., 16 Ill.App.3d 857, 307 N.E.2d 136 (3d
Dist.1974), the statute, ordinance, or regulation should not be called to the jury's attention. In addition,
there must be evidence from which the jury can find that the violation was a proximate cause of the
injury. French v. City of Springfield, 65 Ill.2d 74, 79-80; 357 N.E.2d 438, 440-441; 2 Ill.Dec. 271,
273-274 (1976).
Violation of a statute, ordinance or regulation is not negligence per se, but only prima facie
evidence of negligence. Such prima facie evidence may be rebutted by a showing that, under all the facts
and circumstances of the case, the party who violated the statute acted reasonably. See IPI 60.00.
Accordingly, violation of a statute, ordinance or regulation is but one fact to be taken into consideration
Section 60, Page 5 of 6
by the jury along with all of the other facts and circumstances in determining the issue of negligence.
Davis v. Marathon Oil Co., 64 Ill.2d 380, 356 N.E.2d 93, 1 Ill.Dec. 93 (1976).
It can be reversible error to use the phrase “prima facie evidence” in an instruction (Hicks v.
Hendricks, 33 Ill.App.3d 486, 342 N.E.2d 144 (5th Dist.1975) (“yield right-of-way” statute; not error on
facts of this case); Klinkenberg v. Horton, 81 Ill.App.2d 152, 224 N.E.2d 597 (3d Dist.1967) (“yield
right-of-way” statute; reversible error)), and, in any event, it would not be understood by a jury. See
Johnson v. Pendergast, 308 Ill. 255, 264; 139 N.E. 407, 410 (1923); Harris v. Piggly Wiggly Stores, Inc.,
236 Ill.App. 392 (1st Dist.1925).
This instruction may not be modified so that it names one party only. An instruction on statutory
violation which singles out one party is slanted, partial and argumentative and constitutes reversible
error. Macak v. Continental Baking Co., 92 Ill.App.2d 63, 235 N.E.2d 855 (1st Dist.1968). Nor may it be
used without the second paragraph. Ryan v. Fleischman, 64 Ill.App.3d 75, 79; 380 N.E.2d 1099, 1102; 20
Ill.Dec. 890, 893 (2d Dist.1978); Fornoff v. Parke Davis & Co., 105 Ill.App.3d 681, 688; 434 N.E.2d
793, 799; 61 Ill.Dec. 438, 444 (4th Dist.1982).
Section 60, Page 6 of 6
60.02 Violation of Statute, Ordinance, or
Administrative Regulation Both By
Defendant and Third Person or Third Person Alone
[Withdrawn]
Comment
This instruction formerly provided for situations where it was claimed that a third person
violated a statute or ordinance, and that the third person was the sole proximate cause of the occurrence.
The adoption of comparative fault has eliminated the need for a separate instruction to cover this
situation. Under comparative fault, a non-party's violation of a statute is no longer relevant only on the
sole proximate cause issue; it is now a factor in determining all parties' relative fault. IPI 60.01 has been
modified to include non-parties, and former IPI 60.02 has therefore been deleted.
Section 70, Page 1 of 8
MOTOR VEHICLES
70.00
MOTOR VEHICLES
72.00
AUTOMOBILE GUESTS—JOINT ENTERPRISE—
PASSENGERS
73.00
RAILROAD CROSSINGS
70.00
Introduction
The instructions in this section deal with some of the duties of persons operating motor
vehicles upon the public highways of Illinois. IPI 70.01 is a statement of the common law duty
of ordinary care. This common law duty is supplemented by numerous specific obligations
imposed by the various sections and subsections of the Illinois Vehicle Code, 625 ILCS 5/1-100
et seq. (1994). IPI 70.02 is a statement of the combined statutory and case law governing the
difficult subject of the right of way at unmarked intersections. Other violations of the statute may
be covered by adapting IPI 60.01.
An example of an instruction pertaining to the duties of pedestrians is set out in IPI 70.03.
IPI 70.02, pertaining to the right of way at an open, unmarked intersection, presents
unique problems. The governing statute, now 625 ILCS 5/11-901 (1994), does not clearly codify
the applicable law. A proper understanding of the statute requires some knowledge of its history.
Prior to its amendment in 1953, the predecessor of this section (then §165) read as follows:
Except as hereinafter provided, motor vehicles traveling upon public highways
shall give the right-of-way to vehicles approaching along intersecting highways from the
right and shall have the right-of-way over those approaching from the left.
The cases have made it clear that a driver does not have an unqualified right of way
simply because he is approaching from the right. Instead, the car approaching from the right has
the right of way only where, with both cars being driven within the recognized speed limits, the
car on the right would reach the intersection before or at about the same time as the car on the
left. Salmon v. Wilson, 227 Ill.App. 286, 288 (1st Dist.1923); Heidler Hardwood Lumber Co. v.
Wilson & Bennett Mfg. Co., 243 Ill.App. 89, 94-95 (1st Dist.1926); Gauger v. Mills, 340 Ill.App.
1, 6; 90 N.E.2d 790, 792-793 (2d Dist.1950); Sharp v. Brown, 343 Ill.App. 23, 30; 98 N.E.2d
Section 70, Page 2 of 8
122, 125 (3d Dist.1951); Relli v. Leverenz, 23 Ill.App.3d 718, 320 N.E.2d 169 (1st Dist.1974).
In 1953, in an apparent attempt to put this judicial construction into the express terms of
the statute, the legislature amended §165 to read as follows:
(a) The driver of a vehicle approaching an intersection shall yield the right-ofway to a vehicle which has entered the intersection from a different highway.
(a) When two vehicles enter an intersection from different highways at
approximately the same time, the driver of the vehicle on the left shall yield
the right-of-way to the vehicle on the right.
Subsection (b) of the amended statute appears to be an attempt to codify the language of
the cases which, under the old statute, had held that “where two vehicles at approximately the
same time approach an intersection, the vehicle at the right has the right of way.” Leech v.
Newell, 323 Ill.App. 510, 56 N.E.2d 138 (1st Dist.1944) (emphasis added); Partridge v.
Enterprise Transfer Co., 307 Ill.App. 386, 30 N.E.2d 947 (1st Dist.1940); Salmon v. Wilson, 227
Ill.App. 286, 288 (1st Dist.1923). Note that the express terms of subsection (b) of the amended
statute apply only to the case where “two vehicles enter an intersection . . . at approximately the
same time.” This language would seem too narrow to provide the necessary guidance to
motorists, since, when two vehicles have actually entered an intersection at approximately the
same time, it is usually too late to avoid a collision. It would appear that subsection (b) should
have been addressed, as were the cases noted above, to the situation where two vehicles
approach an intersection at approximately the same time.
Ordinary rules of reasonable care would seem to require that motorists approach
intersections in such a manner that they will be able to comply with the terms of subsection (b)
when they actually enter the intersection. Such a rule would, in effect, give the right of way to
the driver on the right, where the vehicles approach the intersection at approximately the same
time. This appears to be the result intended by the legislature. In this connection, it should be
remembered that the Illinois courts developed the rule of relative speeds and distances at a time
when the old §165 was silent on the subject.
The Supreme Court of Minnesota, confronted with the problem of construing a provision
identical to subsection (b) of the 1953 version of the Illinois statute, held:
By approximately, the legislature must have meant the approach to an intersection of two
vehicles so nearly at the same time that there would be imminent hazard of a collision if
both continued the same course at the same speed. In that case, he on the left should yield
to him on the right. While the driver on the left is not required to come to a dead stop, as
at a through highway stop sign, unless it is necessary to avoid a collision, he nevertheless
must approach the intersection with his car so under control that he can yield the rightof-way to a vehicle within the danger zone on the right. Such must have been the
legislative intent.
Moore v. Kujath, 225 Minn. 107, 112; 29 N.W.2d 883, 886 (1947) (emphasis on “approach”
supplied).
Section 70, Page 3 of 8
Still another problem is created by the language of subsection (a) of the 1953 version of
the statute, which provides that a driver who is “approaching” an intersection shall yield the right
of way to one who has “entered” the intersection. What of the case where the car on the left
enters the intersection before the car on the right, but where the two cars were nonetheless
approaching the intersection at approximately the same time? In such a case, which car has the
right of way, the car on the left, under subsection (a), or the car on the right under the suggested
construction of subsection (b)? The Supreme Court of Minnesota also offered a resolution of this
apparent dilemma in the Moore case (225 Minn. at 112, 29 N.W.2d at 886):
Obviously, both of the foregoing sentences (subsections a and b) were placed in the
statute by the legislature in an endeavor to promote safety on the highways, and they
should be so interpreted. As we view the two sentences, the second one (subsection b) so
modifies the first (subsection a) as to require the driver on the left, even though he may
reach the intersection first, to yield the right-of-way to the driver on the right in a
situation where the two vehicles would collide were each to continue its course and
maintain its rate of speed. To otherwise interpret the law and to arbitrarily give to him
who first enters the intersection the right-of-way over another vehicle approaching at
approximately the same time from the right would be to increase rather than diminish the
hazards of driving.
The Illinois statute was amended in 1969 (effective July 1, 1970) to its present form:
§ 11-901 Vehicles approaching or entering intersection.
(a) When 2 vehicles approach or enter an intersection from different roadways at
approximately the same time, the driver of the vehicle on the left must yield the rightof-way to the vehicle on the right.
(b) The right-of-way rule declared in paragraph (a) of this Section is modified at through
highways and otherwise as stated in this Chapter.
625 ILCS 5/11-901 (1994). Although the language of the present version is significantly
different from that of former §165, which it replaced, the 1969 provision does not appear to
clarify the difficulty with the old statute which is described above. Section 11-901(a) provides
that the driver on the right has an unqualified right-of-way if the two vehicles enter or approach
the intersection at approximately the same time. Yet, the Illinois courts had interpreted the old
statute to provide that the car on the left would have the right-of-way if it could, while being
driven at a reasonable speed, clear the intersection before the vehicle on the right entered it, even
if the car on the right could be said to have been approaching the intersection “at approximately
the same time.” It is this proposition which is expressed in the second paragraph of IPI 70.02.
The disparity between the decisional law and the unqualified statement of the statute remains.
Since, however, there is no reason to believe that the General Assembly intended to change the
substance of the decisional law when it enacted the 1969 Illinois Vehicle Code, IPI 70.02 has not
been revised.
IPI 70.02 as it appeared in the first edition was held to be a correct statement of the law
Section 70, Page 4 of 8
(Payne v. Kingsley, 59 Ill.App.2d 245, 250; 207 N.E.2d 177, 179 (2d Dist.1965)), and to be
couched in terms fair to all (Tipsword v. Melrose, 13 Ill.App.3d 1009, 301 N.E.2d 614, 617 (3d
Dist.1973)). It has been held that the instruction provides the only reasonable interpretation of
§11-901 of the Illinois Vehicle Code. Martin v. Clark, 92 Ill.App.3d 518, 522; 415 N.E.2d 30,
33; 47 Ill.Dec. 305, 308 (3d Dist.1980).
In a 1990 decision, the appellate court reaffirmed that IPI 70.02 accurately reflects
Illinois law, emphasizing that the vehicle on the left has the right-of-way only if the driver of that
vehicle justifiably believes that he will be able to “pass through the intersection, that is, clear the
intersection, before the vehicle on the right enter[s] the intersection.” Seaman v. Wallace, 204
Ill.App.3d 619, 561 N.E.2d 1324, 1334; 149 Ill.Dec. 628, 638 (4th Dist.1990).
Section 70, Page 5 of 8
70.01 Duty of Driver Using Highway
It is the duty of every [driver] [operator] of a vehicle using a public highway to exercise
ordinary care at all times to avoid placing [himself or] others in danger and to exercise ordinary
care at all times to avoid a collision.
Notes on Use
This instruction defines the common law duty of persons operating motor vehicles on public
highways and, when given, should be followed by IPI 10.02, which defines the term “ordinary care.” If
there are issues of both common law negligence and violation of statute, this instruction may be given in
addition to the instructions on the statute involved.
If a driver is charged with contributory negligence, the bracketed phrase “himself or” should be
included.
Comment
The common law duty of ordinary care and the specific duties imposed by statute are cumulative.
Christy v. Elliott, 216 Ill. 31, 48-49; 74 N.E. 1035, 1043 (1905). This instruction provides a guideline of
fairness to all parties. Tipsword v. Melrose, 13 Ill.App.3d 1009, 301 N.E.2d 614, 618 (3d Dist.1973).
Section 70, Page 6 of 8
70.02 Right of Way--Intersection
At the time of the occurrence in question, there was in force in the State of Illinois a
statute governing the operation of motor vehicles approaching intersections.
If two vehicles are approaching an intersection from different highways at such relative
distances from the intersection that if each is being driven at a reasonable speed, the vehicle on
the right will enter the intersection first or both vehicles will enter the intersection at about the
same time, then this statute requires the driver of the vehicle on the left to yield the right of way
to the vehicle on the right.
On the other hand, if two vehicles are approaching the intersection from different
highways at such relative distances from the intersection that if each is being driven at a
reasonable speed, the vehicle on the left will enter the intersection and pass beyond the line of
travel of the vehicle on the right before the vehicle on the right enters the intersection, then this
statute requires the driver of the vehicle on the right to yield the right of way to the vehicle on the
left.
The fact that a vehicle has the right of way does not relieve its driver from the duty to
exercise ordinary care in approaching, entering and driving through the intersection.
If you decide that a party violated the statute on the occasion in question, then you may
consider that fact together with all the other facts and circumstances in evidence in determining
whether and to what extent, if any, that party was negligent before and at the time of the
occurrence.
Notes on Use
This instruction applies only when the occurrence involved an open, unmarked intersection, with
neither vehicle on a preferential highway; if one of the vehicles was on a preferential highway, this
instruction should not be used. Voyles v. Sanford, 183 Ill.App.3d 833, 837; 539 N.E.2d 801, 803; 132
Ill.Dec. 238, 240 (3d Dist.1989).
This instruction should not be given when an intersection's traffic lights are temporarily
inoperative due to a mechanical failure. In that case, the driver must stop before entering the intersection
in accordance with the rules applicable in making a stop at a stop sign. 625 ILCS 5/11-305(e) (1994). This
statute effectively overrules Spiotta v. Hamilton, 120 Ill.App.2d 387, 393-394; 256 N.E.2d 649, 651-652
(2d Dist.1970), which had held that under such circumstances this instruction was proper.
Comment
The statute governing right-of-way at unmarked intersections, 625 ILCS 5/11-901 (1994), reads
as follows:
§ 11-901 Vehicles approaching or entering intersection.
Section 70, Page 7 of 8
(a) When 2 vehicles approach or enter an intersection from different roadways at
approximately the same time, the driver of the vehicle on the left must yield the
right-of-way to the vehicle on the right.
(b) The right-of-way rule declared in paragraph (a) of this Section is modified at
through highways and otherwise as stated in this Chapter.
This instruction does not quote the right-of-way statute, nor does it paraphrase the literal
provisions of the statute. The reason for this is that the literal terms of the present statute are
ambiguous, and would only confuse a jury. For a complete discussion of the history of this
statute and the cases interpreting it, see the introduction to this chapter.
IPI 70.02 as it appeared in the first edition was held to be a correct statement of the law
(Payne v. Kingsley, 59 Ill.App.2d 245, 250; 207 N.E.2d 177, 179 (2d Dist.1965)), and to be
couched in terms fair to all (Tipsword v. Melrose, 13 Ill.App.3d 1009; 301 N.E.2d 614, 617 (3d
Dist.1973)). It has been held that the instruction provides the only reasonable interpretation of
§11-901 of the Illinois Vehicle Code. Martin v. Clark, 92 Ill.App.3d 518, 522; 415 N.E.2d 30,
33; 47 Ill.Dec. 305, 308 (3d Dist.1980).
In a 1990 decision, the appellate court reaffirmed that IPI 70.02 accurately reflects
Illinois law, emphasizing that the vehicle on the left has the right-of-way only if the driver of that
vehicle justifiably believes that he will be able to “pass through the intersection, that is, clear the
intersection, before the vehicle on the right enter[s] the intersection.” Seaman v. Wallace, 204
Ill.App.3d 619, 561 N.E.2d 1324, 149 Ill.Dec. 628 (4th Dist.1990).
Section 70, Page 8 of 8
70.03 Pedestrians--Crossing At Other Than Crosswalks
There was in force in the State of Illinois at the time of the occurrence in question a
certain statute which provided that:
[Quote or paraphrase applicable part of statute or ordinance as construed by the courts
(see, e.g., 625 ILCS 5/11-1001 to 11-1010 (1994)). For example:
Every pedestrian crossing a roadway at any point other than within a marked crosswalk
or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles
upon the roadway.
Notwithstanding the foregoing provisions of this section every driver of a vehicle shall
exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning
by sounding the horn when necessary and shall exercise proper precaution upon observing any
child or any obviously confused or incapacitated person upon a roadway.]
If you decide that [a party] [the parties] violated the [statute] [ordinance] on the occasion
in question, then you may consider that fact together with all the other facts and circumstances in
evidence in determining whether and to what extent, if any, [a party] [the parties] [was] [were]
negligent before and at the time of the occurrence.
Notes on Use
This instruction is similar to IPI 60.01. See the Notes on Use and Comment to that instruction.
If 625 ILCS 5/11-1003(a) (1994) is applicable but there is a factual dispute as to distance and
speed so as to raise the question of whether the motorist had the right-of-way, the language of that
subsection may have to be modified if used in this instruction. An exact quotation of that paragraph might
create the erroneous impression that the driver of a vehicle has an absolute right-of-way at places other
than crosswalks. Randal v. Deka, 10 Ill.App.2d 10, 17; 134 N.E.2d 36, 40 (1st Dist.1956); Parkin v.
Rigdon, 1 Ill.App.2d 586, 588-595; 118 N.E.2d 342, 343-347 (3d Dist.1954).
When children may reasonably be expected to be in the vicinity, a motorist, although still held to
a standard of ordinary care, must exercise greater care for the safety of those children than he would for
adults. Toney v. Marzariegos, 166 Ill.App.3d 399, 403; 519 N.E.2d 1035, 1037; 116 Ill.Dec. 820, 822 (1st
Dist.1988).
Comment
See introduction to IPI 10.00 and IPI 10.01 and 10.02 (negligence and ordinary care).
Section 72, Page 1 of 8
72.00
Automobile Guests--Joint Enterprise—Passengers
Introduction
The instructions in this section were prepared at a time when the rights of a guest and the
duty of a host driver in Illinois were proscribed by the “guest act” (see Ill. Rev. Stat. ch. 95 1/2,
&p;10-201 (1971)). IPI 72.01, 72.02, and 72.05 were prepared for use in cases brought under the
“Guest Act”. IPI 72.03 and 72.04 are useful in situations in addition to the guest-host situation.
In 1971, the “Guest Act” was repealed. For occurrences after January 1, 1972, a person
riding as a guest need only prove negligence in order to recover from his host. 625 ILCS 5/10201 (1994). However, a hitchhiker must still prove wilful and wanton conduct on the part of his
host in order to recover damages from his host. 625 ILCS 5/10-201 (1994). For the hitchhiker,
IPI 14.01, which defines wilful and wanton conduct, and the second portion of IPI 20.01.01,
which states the issues in a case requiring proof of wilful and wanton conduct, may be used
together with the second portion of IPI B21.02.02, which states the plaintiff's burden in a case
requiring proof of wilful and wanton conduct.
Because it is unlikely that “Guest Act” cases remain unresolved, the Committee has
withdrawn IPI 72.01, 72.02, 72.05, and 72.06. Where the injury occurred after January 1, 1972,
IPI 20.01 (issues) and B21.02 (burden of proof) will be appropriate.
In Rosenbaum v. Raskin, 45 Ill.2d 25, 257 N.E.2d 100 (1970) the supreme court refused
to apply the Guest Act to a child of 4 years. The court reasoned that a question arises as to
mental capacity of a child of tender years to understand and accept the status of a guest-host.
A third person, usually the driver of another car, owes a rider the duty of ordinary care no
matter in what legal relationship the rider stands to his own driver.
72.01 Definition of Guest In Motor Vehicle and Motorcycle Cases
Withdrawn
Comment
The “Guest Act” was repealed in 1971, effective January 1, 1972, and therefore this instruction
has been withdrawn.
Section 72, Page 2 of 8
72.02 Definition of Guest--Motor Vehicle and Motorcycle Cases--Issues As To Driver's
Authority To Invite
Withdrawn
Comment
The “Guest Act” was repealed in 1971, effective January 1, 1972, and therefore this
instruction has been withdrawn.
Section 72, Page 3 of 8
72.03 Negligence of Driver Not Attributable To Passenger
If you find that there was negligence on the part of the driver of the vehicle in which the
plaintiff was riding, then the driver's negligence cannot be charged to the plaintiff. The care
required of the plaintiff in this case is that which a reasonably careful person riding as a
passenger would use under similar circumstances.
Notes on Use
This instruction may not be given when the plaintiff is either the driver's employer, principal,
partner or joint venturer.
This instruction should not be given where there is a dispute as to who was driving the vehicle.
Comment
Generally, the negligence of a driver may not be imputed to a passenger. Milis v. Chicago
Transit Authority, 1 Ill.App.2d 236, 117 N.E.2d 401 (1st Dist.1954) (negligence of taxicab driver
not imputable to passengers); Ohlweiler v. Central Engineering Co., 348 Ill.App. 246, 109
N.E.2d 232 (2d Dist.1952) (error to refuse instruction to this effect in action by guest passenger
against driver and highway contractor who failed to erect warning signs on road construction);
Buehler v. White, 337 Ill.App. 18, 85 N.E.2d 203 (3d Dist.1949) (negligence of husband in
parking at highway edge to adjust mechanical difficulty not imputable to plaintiff wife); Walsh v.
Murray, 315 Ill.App. 664, 43 N.E.2d 562 (2d Dist.1942) (action for wrongful death of minor
child of plaintiff; held: misconduct of driver could not be imputed to plaintiff because there was
no evidence that driver had been appointed plaintiff's agent to bring minor child home).
An apparent exception to the foregoing rule is Opp v. Pryor, 294 Ill. 538, 547; 128 N.E.
580, 584 (1920), where, to sustain her burden of proof that she was in the exercise of ordinary
care at the time of the accident, plaintiff relied upon the testimony of the driver and another
passenger, the latter sitting in the rear seat while plaintiff occupied the front seat with the driver,
as to what they could see. The court held it was erroneous to instruct that if the plaintiff was a
guest, had no authority to control the operation of the automobile, and was in the exercise of due
care for her own safety, then the negligence of the driver could not be imputed to her. Actually,
the reasoning of the court indicates that, under such circumstances, the instruction is confusing
because the only evidence from which due care on the part of the plaintiff could be inferred was
the testimony of the driver as to her own care in the management of the automobile.
A difficult problem is presented where the owner is a passenger.
In Palmer v. Miller, 380 Ill. 256, 43 N.E.2d 973 (1942) a guest sued the son of the car
owner for injuries received when the son's friend negligently drove the car in which the three
were riding into a tree. The Supreme Court held that there could be no agency between the driver
and the son because of the son's minority; that the negligence of the driver could not be imputed
to the son, and that any liability of the son had to rest on his own negligence in failing to control
the driving of the car.
Section 72, Page 4 of 8
In Rigdon v. Crosby, 328 Ill.App. 399, 66 N.E.2d 190 (2d Dist.1946) (abstract), it was
held error to instruct that the plaintiff could recover if the injuries were caused by the defendant's
negligence and if the plaintiff was exercising due care, because it omitted the question of the due
care of the driver of the car where plaintiff owned the car and had a duty to control the driver.
In Koch v. Lemmerman, 12 Ill.App.2d 237, 139 N.E.2d 806 (4th Dist.1956), the
defendant owner was a passenger in the rear seat and his son was driving. Noting that there was
evidence of wilful and wanton misconduct and that the owner had the right to control the manner
in which the car was driven and had a duty to control the driver, the court sustained a recovery
by another passenger against the owner. See also Staken v. Shanle, 23 Ill.App.2d 269, 162
N.E.2d 604 (3d Dist.1959); Simaitis v. Thrash, 25 Ill.App.2d 340, 166 N.E.2d 306, 311 (2d
Dist.1960).
IPI 72.03 was held proper under the facts of the case. Butler v. Chicago Transit
Authority, 38 Ill.2d 361, 367-368; 231 N.E.2d 429, 432-433 (1967).
It was held in Dooley v. Darling, 26 Ill.App.3d 342, 324 N.E.2d 684 (5th Dist.1975), that
the use of IPI 72.03 is not precluded in owner-passenger cases. However, the court ruled that it
may have been desirable and appropriate to temper the instruction in view of the plaintiff's de
facto ownership powers over the use of the automobile. In this case, the plaintiff (passengerowner's administrator) made a claim against his driver and the driver of the other car involved.
In Bauer v. Johnson, 79 Ill.2d 324, 403 N.E.2d 237, 38 Ill.Dec. 149 (1980), the Illinois
Supreme Court reviewed the current cases and settled the law regarding the obligation of the
owner-passenger. The court held an owner-passenger-plaintiff can be contributorily negligent in
failing to control the conduct of the driver:
The passenger's ownership of the car is relevant only insofar as it is a circumstance which
gives the passenger reason to believe that his or her advice, directions or warnings would
be heeded. (Restatement (Second) of Torts §495, comment e (1965).) But no passenger
has a duty to keep a lookout or to control the driver unless the plaintiff knows or should
know that such actions are essential to his or her safety. Restatement (Second) of Torts
§495, comments c and d (1965).
Id. at 332, 403 N.E.2d at 241, 38 Ill.Dec. at 153.
7
Section 72, Page 5 of 8
72.04 Joint Enterprise--Definition
One of the issues to be decided by you is whether ____ and ____ were engaged in a joint
enterprise. A joint enterprise exists if these four elements are present:
(1) An agreement, express or implied, between ____ and ____; and
(2) A common purpose to be carried out by ____ and ____; and
(3) A common business interest in that purpose between ____ and ____; and
(4) An understanding between them that each had a right to share in the control of the
operation of the car.
As to the fourth element, the question for you to decide is whether there was a right in
each to share the control of the operation of the car rather than the actual exercise of the right.
Notes on Use
Fill in the blanks with the names of the persons claimed to have been engaged in the joint
enterprise at the time of the occurrence.
This instruction should be given only when the issues and burden of proof instructions include the
“joint enterprise” element.
Comment
The previous version of this instruction required only a finding of a “community of
interest” on the part of a driver and passenger rather than a common business enterprise. That
instruction was criticized in a note in Campanella v. Zajic, 62 Ill.App.3d 886, 379 N.E.2d 866,
20 Ill.Dec. 33 (2d Dist.1978). In that case, the court carefully reviewed the law of Illinois with
respect to a joint enterprise and also relied upon the Restatement (Second) of Torts, §§491 and
548. The previous version of this instruction did in fact omit the “common business enterprise”
requirement established by the cases and the Restatement. For that reason, the instruction has
been redrawn to incorporate the “common business enterprise” and the other requirements of the
Restatement (Second) of Torts to accurately state the issues involved in a joint enterprise.
In Grubb v. Illinois Terminal Co., 366 Ill. 330, 338-340; 8 N.E.2d 934, 938-939 (1937),
the court held that an instruction which stated that the negligence of the driver could not be
imputed to the passenger was erroneous where the evidence showed that three sisters were
traveling to Springfield in order to purchase materials to decorate their home and that the
expense of these materials and the cost of the trip were to be shared equally in accordance with
an arrangement made before the trip started. Birnbaum v. Kirchner, 337 Ill.App. 25, 29-31; 85
N.E.2d 191, 192-194 (3d Dist.1949) (a guest en route to spend a weekend in the driver's cabin
was not engaged in a joint enterprise while extricating the car from the ditch because he did not
have “some” control over the operation); Schmalzl v. Derby Foods, Inc., 341 Ill.App. 390, 94
N.E.2d 86 (1st Dist.1950) (a person who rode home from work every night with the driver who
occasionally paid some money to the driver had neither a common interest nor some right to
Section 72, Page 6 of 8
control the enterprise).
It has been held error to instruct with respect to joint enterprise where the issue is not
submitted and the term defined. Stahnke v. American Carloading Corp., 308 Ill.App. 318, 31
N.E.2d 323 (1st Dist.1941) (abstract). However, in Miller v. Green, 345 Ill.App. 255, 261-263;
103 N.E.2d 188, 191, 192 (1st Dist.1951), the court held that failure to include a definition of
joint enterprise in an instruction stating that plaintiff would be chargeable with the driver's
negligence in case the jury found that the three police officers who were making their rounds in a
private car owned by one of them were engaged in a joint enterprise was not reversible error. In
that case the plaintiff who was appealing had himself offered an instruction on joint enterprise
which did not contain a definition of joint enterprise.
The refusal of an instruction on joint enterprise was not error when there was no evidence
of a business enterprise. Smith v. Bishop, 32 Ill.2d 380, 205 N.E.2d 461 (1965).
The giving of a joint enterprise instruction was reversible error where there was no
evidence of a business enterprise. Babington v. Bogdanovic, 7 Ill.App.3d 593, 288 N.E.2d 40
(4th Dist.1972).
No common interest or business enterprise may be inferred from sharing incidental
expenses or aiding a friend in shopping for an automobile. Galliher v. Holloway, 130 Ill.App.3d
628, 474 N.E.2d 797, 85 Ill.Dec. 837 (5th Dist.1985).
No joint enterprise existed between a mother and her sons who were traveling together in
the family automobile to work at a restaurant. The relationship between two employees is not a
joint enterprise. Andes v. Lauer, 80 Ill.App.3d 411, 399 N.E.2d 990, 993; 35 Ill.Dec. 701, 704
(3d Dist.1980).
Section 72, Page 7 of 8
72.05 Duty of Driver To Guest or Joint Venturer In Motor Vehicle or On Motorcycle
[Withdrawn]
Comment
The “Guest Act” was repealed in 1971, effective January 1, 1972, and therefore this instruction
has been withdrawn.
72.06 Duty of Guest Rider To Warn Driver
[Withdrawn]
Comment
The “Guest Act” was repealed in 1971, effective January 1, 1972, and therefore this instruction
has been withdrawn.
Section 72, Page 8 of 8
72.07 Gratuitous Bailment--Negligence of Driver Not Attributable To Owner
If you find that there was negligence on the part of the driver of the vehicle owned by the
plaintiff, that driver's negligence cannot be charged to the plaintiff.
Notes on Use
This instruction is new. It should only be given where there is no issue of agency involved. If
agency is an issue, use IPI 50.07.
Comment
In an action by an owner against a negligent third party for damage to the owner's property while
in the possession of a gratuitous bailee, the negligence of the bailee is not imputed to the owner absent
agency or negligent entrustment. This is true even if the owner is in the vehicle at the time of damage.
Andes v. Lauer, 80 Ill.App.3d 411, 399 N.E.2d 990, 35 Ill.Dec. 701 (3d Dist.1980).
“It is settled law that the negligence of a bailee is not imputed to the bailor.” Eckerty v. Lowman,
16 Ill.App.3d 373, 306 N.E.2d 356, 357 (4th Dist.1974).
“The modern rule supported by most authorities is that the bailee's negligence is not imputable to
the bailor in the latter's action against a third person for injury to, or destruction of, the subject of the
bailment.” 8 Am. Jur. 2d Bailments, §269 (1980).
Section 73, Page 1 of 5
73.00
RAILROAD CROSSINGS
INTRODUCTION
The instructions in this section are unchanged even though there have been extensive
changes and developments in the law which have had a profound impact upon the trial of railroad
crossing cases.
In 1971 when IPI 2d was published, Illinois was a contributory negligence state and many
railroad crossing cases failed because the plaintiff was found to be contributorily negligent as a
matter of law. Greenwald v. Baltimore & O. R. Co., 332 Ill. 627, 631-632; 164 N.E. 142,
143-144 (1928); Tucker v. New York, C. & St. L. R. Co., 12 Ill.2d 532, 147 N.E.2d 376 (1957);
Moudy v. New York, C. & St. L. R. Co., 385 Ill. 446, 53 N.E.2d 406 (1944).
However, in 1981, the Illinois Supreme Court embraced comparative negligence in its
pure form. Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52 Ill.Dec. 23 (1981). Thereafter, a claim
for damages for injury or death as the result of a collision at a railroad crossing could and did
succeed even though the plaintiff was found to have been partly at fault. This rule (pure
comparative negligence) was subsequently changed by the legislature affecting causes of action
accruing on or after November 25, 1986, and now a claim is barred if the injured party's (or
decedent's) fault was more than 50%. 735 ILCS 5/2-1107.1 (1994).
The adoption of comparative negligence, however, does not necessarily alter preexisting
duty rules. For example, the doctrine does not change the rule that, ordinarily, a train stopped at a
crossing is itself adequate notice of its own presence, and therefore the railroad has no duty to
provide additional warnings unless the plaintiff can show “special circumstances.” Dunn v.
Baltimore & O. R.R. Co., 127 Ill.2d 350, 537 N.E.2d 738, 741-743; 130 Ill.Dec. 409, 412-414
(1989) (no special circumstances shown).
There have been other changes which have affected trials and the results of trials which,
while not as far reaching as the abandonment of contributory negligence as a total bar to a
recovery, have had an impact upon railroad litigation.
At the time that these instructions were originally formulated, Ill. Rev. Stat. ch. 111 2/3,
&p;77, provided for the imposition of punitive damages for wilful violations of the Public
Utilities Act. Section 73 of that act provided:
In case any public utility shall do, cause to be done or permit to be done any act, matter or
thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter
or thing required to be done either by any provisions of this act or any rule, regulation,
order or decision of the commission, issued under authority of this act, such public utility
shall be liable to the persons or corporations affected thereby for all loss, damages or
injury caused thereby or resulting therefrom, and if the court shall find that the act or
Section 73, Page 2 of 5
omission was wilful, the court may in addition to the actual damages, award damages for
the sake of example and by the way of punishment. An action to recover for such loss,
damage or injury may be brought in any court of competent jurisdiction by any person or
corporation.
In Churchill v. Norfolk & W. Ry. Co., 73 Ill.2d 127, 383 N.E.2d 929, 23 Ill.Dec. 58
(1978), the Illinois Supreme Court held that this act provided a remedy for personal injuries
sustained as a result of the violation of ICC rules. That remedy was also available to persons who
had sustained financial injury from death caused by a wilful violation of the Public Utilities Act.
The Public Utilities Act was amended effective October 1, 1985, to exclude railroads, but
the remedy remains available for any claims resulting from injuries sustained prior to that date.
A change has been made with respect to the manner in which culpable conduct on the
part of the railroad could be established. At the time that these instructions were published in IPI
2d, it was proper to prove that a crossing was very inadequately protected. Merchants Nat. Bank
v. Elgin J. & E. Ry. Co., 121 Ill.App.2d 445, 257 N.E.2d 216 (2d Dist.1970), aff'd, 49 Ill.2d 118,
273 N.E.2d 809 (1971).
That proof may now no longer be available in some cases. 625 ILCS 5/18c-7401(3)
(1994), provides that “[l]uminous flashing signal or crossing gate devices installed at grade
crossings, which have been approved by the Commission, shall be deemed adequate and
appropriate.”
In Hunter v. Chicago & N.W. Transp. Co., 200 Ill.App.3d 458, 558 N.E.2d 216, 146
Ill.Dec. 253 (1st Dist.1990), the appellate court (in dictum) concluded that:
[T]he legislative intent was that the issue of the adequacy of the warning devices at a
crossing, once ordered by the Commission, would no longer be an issue in this type of
litigation. Once the Commission has investigated and ordered the installation of a
particular kind of warning device, its decision is conclusive, and the railroad is precluded
from installing any other signal. 82nd Ill.Gen.Assem., House Proceedings, April 22,
1982, at 114-23.
Id. at 465-466, 558 N.E.2d at 221, 146 Ill.Dec. at 258. However, if the Commission has not acted
pursuant to the statute, the plaintiff arguably can still claim that the crossing was not adequately
protected.
625 ILCS 5/18c-7401(3) (1994), establishes the duty of a railroad to sound a bell, whistle
or horn. Other safety requirements, in addition to those stated in 625 ILCS 5/18c-7401 to
18c-7404 (1994), are now contained in title 92 of the Illinois Administrative Code, which
supersedes and rescinds General Order 176 of the Illinois Commerce Commission, and
supersedes and rescinds General Order 121 of the Illinois Commerce Commission to the extent
that General Order 121 applies to railroads.
Section 73, Page 3 of 5
73.01 Duty of Driver Crossing Tracks
A railroad crossing is a place of danger. If you believe from the evidence that as the
[plaintiff] [decedent] was approaching the crossing he knew, or, in the exercise of ordinary care
should have known, that a train approaching the crossing was so close to the crossing that it
would be likely to arrive at the crossing at about the same time as the plaintiff's vehicle, then it
was the duty of the [plaintiff] [decedent] to yield the right of way to the train.
Notes on Use
This instruction generally should not be used in a case where there are automatic gates or flasher
signals at a crossing and there is evidence tending to show that the gates were up or the flasher signals
were not operating at the time of the occurrence. However, if there is also evidence sufficient to support a
jury finding that, despite the fact that the gates or flashers were inoperative, the driver, in the exercise of
ordinary care, should have known that a train was in fact approaching the crossing, this instruction may
be appropriate.
Comment
This instruction is properly given if the crossing gates and flashers were operating properly.
Frankenthal v. Grand Trunk Western R. Co., 120 Ill.App.3d 409, 458 N.E.2d 530, 76 Ill.Dec. 130 (1st
Dist.1983).
However, where automatic gates at a railroad crossing are in an upraised position, or where
railroad crossing signals are not operating, under certain circumstances the driver of a motor vehicle
approaching the crossing is justified in assuming that no train is at or near the crossing and in proceeding
over the crossing on that assumption unless, in the exercise of ordinary care, he should have been aware
that a train was in fact in dangerous proximity to the crossing. Langston v. Chicago & N.W. Ry. Co., 398
Ill. 248, 75 N.E.2d 363 (1947); Humbert v. Lowden, 385 Ill. 437, 53 N.E.2d 418 (1944). See also Dunn v.
Baltimore & Ohio R. Co., 127 Ill.2d 350, 537 N.E.2d 738, 741-743; 130 Ill.Dec. 409, 412-414 (1989)
(absent special circumstances, a train stopped at a crossing is itself adequate notice of its own presence).
Where the railroad's rules required the train to be stopped at crossings on company property and
not to proceed until the crossing was protected by a member of the crew, refusal to give this instruction
was proper. Winsor v. Baltimore & O. R.R. Co., 92 Ill.App.3d 437, 415 N.E.2d 1141, 47 Ill.Dec. 828 (4th
Dist.1980).
Section 73, Page 4 of 5
73.02 Speed At Which Trains Are Run
The Federal Government, by regulation, has established a speed limit of ____ for the
section of track involved in this case. If you find that the Defendant was operating its train at or
below this speed limit, then the speed of the train may not be the basis of [negligence] [fault] by
the Defendant. If, on the other hand, you find that the train was operating in excess of this speed
limit, then you may consider whether the speed of the train was consistent with the exercise of
[ordinary care on the part of the Defendant] [the highest degree of care that could have been used
in the practical operation of its business as common carrier by the railroad].
Notes on Use
In the last sentence, the second bracket is to be used instead of the first bracket where plaintiff
was a passenger on defendant's train.
This instruction should be given only when there is some evidence tending to show that the train
was traveling at a speed in excess of the federally prescribed speed limit for that section of track. If there
is no evidence which tends to show that the train was traveling in excess of the federally posted speed
limit, the speed of the train should not be an issue in the case.
Comment
In CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d
387 (1993), the Supreme Court specifically held that under the Federal Railroad Safety Act of
1970, the federal regulations adopted by the Secretary of Transportation pre-empt a state tort
claim based upon excessive speed where the speed of the train is below the speed set by the
federal regulations promulgated at 49 CFR Sec. 213.9(a) (1992). The Court noted that these
regulations set a speed limit for every section of freight or passenger track in the United States
based upon the classification of the track.
In Zook v. Norfolk & Western Railway Company, 268 Ill. App.3d 157, 642 N.E.2d 1348,
205 Ill. Dec. 231 (1994), the Appellate Court for the Fourth District adopted the Supreme Court's
directive in CSX. The Court indicated, however, that a tort law claim is viable where there is
evidence that the train's speed was in excess of that set by the federal regulation for that section
of track.
Section 73, Page 5 of 5
73.03 Duty of Railroad To Sound Bell, Whistle, or Horn Before Intersection
There was in force in the State of Illinois at the time of the occurrence in question a
statute which provided:
Every rail carrier shall cause a bell, and a whistle or horn to be placed and kept on each
locomotive, and shall cause the same to be rung or sounded by the engineer or fireman, at
the distance of at least 1,320 feet, from the place where the railroad crosses or intersects
any public highway, and shall be kept ringing or sounding until the highway is reached.
If you decide that the defendant violated the statute on the occasion in question, then you
may consider that fact together with all the other facts and circumstances in evidence in
determining whether and to what extent, if any, the defendant was negligent before and at the
time of the occurrence.
Notes on Use
The paraphrased paragraph, 625 ILCS 5/18c-7402(2) (a) (1994), continues as follows:
“[P]rovided that at crossings where the [Illinois Commerce] Commission shall by order direct, only after
a hearing has been held to determine the public is reasonably and sufficiently protected, the rail carrier
may be excused from giving warning provided by this paragraph.”
The Illinois Administrative Code (Title 92, §1535.501 (1985)) provides in part that railroads are
excused from giving signals, “at such railroad highway grade crossings which are protected by flashing
light signals or flashing light signals combined with short-arm gates that are automatically controlled and
operated by means of track circuits or other automatic devices . . . .” This instruction should not be
given when §1535.501 of the Administrative Code applies.
Comment
Prior to 1986, the “bell, whistle or horn” statute was codified as Ill. Rev. Stat. ch. 114, &p;59
(1983). Public Act 84-796, effective January 1, 1986, recodified it (with minor changes) as 625 ILCS
5/18c-7402(2) (a) (1994). However, decisions under the prior version should be fully applicable to the
current version.
The failure to ring a bell or blow a whistle or horn as required by the statute establishes a prima
facie case of negligence. Randolph v. New York Cent. R. Co., 334 Ill.App. 268, 277; 79 N.E.2d 301, 305
(4th Dist.1948); Hatcher v. New York Cent. R. Co., 20 Ill.App.2d 481, 156 N.E.2d 617 (3d Dist.1959)
(abstract), rev'd on other grounds, 17 Ill.2d 587, 162 N.E.2d 362 (1959). However, the failure to ring a
bell or sound a whistle or horn is not per se wilful and wanton misconduct. Robertson v. New York Cent.
R. Co., 388 Ill. 580, 585; 58 N.E.2d 527, 529 (1944).
In a case involving an Indiana statute very similar in nature to the Illinois statute, the Illinois
Appellate Court, First District affirmed a judgment for compensatory damages but reversed an award for
punitive damages. The court held that a statutory violation considered to be negligence per se would not,
alone, necessarily indicate wilful and wanton conduct. The judgment for compensatory damages was
affirmed and the award of punitive damages was reversed. Anderson v. Chesapeake & O. Ry. Co., 147
Ill.App.3d 960, 498 N.E.2d 586, 101 Ill.Dec. 262 (1st Dist.1986).
Section 100, Page 1 of 18
PARTICULARIZED STANDARDS OF CONDUCT
100.00
COMMON CARRIERS
INTRODUCTION
These instructions are provided to address the common law and statutory duty imposed
upon common carriers with regard to maintaining the safety of their passengers. A common
carrier owes its passengers the duty to use the highest degree of care consistent with the type of
vehicle used in the practical operation of its business. Rotheli v. Chicago Transit Authority, 7
Ill.2d 172, 130 N.E.2d 172 (1955).
Various conveyances and devices have been classified as common carriers:
Plane: Kamienski v. Bluebird Air Service, 321 Ill.App. 340, 53 N.E.2d 131 (1st
Dist.1944); McCusker v. Curtiss Wright Flying Service, 269 Ill.App. 502 (1st Dist.1933).
Ship: Keokuk Northern Line Packet Co. v. True, 88 Ill. 608 (1878).
Bus: Ward v. Peoria Transit Lines, 2 Ill.App.2d 170, 118 N.E.2d 611 (2d Dist.1954);
Duncan v. Fisher, 101 Ill.App.2d 213, 242 N.E.2d 479 (3d Dist.1968).
Taxicab: Przybylski v. Yellow Cab Co., 6 Ill.App.3d 243, 285 N.E.2d 506 (1st
Dist.1972).
Limousine: Smith v. Chicago Limousine Service, 109 Ill.App.3d 755, 441 N.E.2d 81, 65
Ill.Dec. 289 (1st Dist.1982).
Amusement Devices: Pajak v. Mamsch, 338 Ill.App. 337, 87 N.E.2d 147 (1st Dist.1949)
(ferris wheel).
Railroads: McNealy v. Illinois Cent. R. Co., 43 Ill.App.2d 460, 193 N.E.2d 879 (1st
Dist.1963).
Elevator: Shoemaker v. Rush-Presbyterian-St. Luke's Medical Center, 187 Ill.App.3d
1040, 543 N.E.2d 1014, 135 Ill.Dec. 446 (1st Dist.1989); Cobb v. Marshall Field & Co., 22
Ill.App.2d 143, 159 N.E.2d 520 (1st Dist.1959). The duty of highest degree of care is limited to
the business house or the owner of the building operating the elevator as a part of its business
operation. It does not extend to those who undertake to inspect and maintain elevators. They need
only exercise due care. Jardine v. Rubloff, 73 Ill.2d 31, 382 N.E.2d 232, 21 Ill.Dec. 868 (1978)
(owners of buildings with elevators are viewed as common carriers). Kaminsky v. Arthur Rubloff
& Co., 72 Ill.App.2d 68, 218 N.E.2d 860 (1st Dist.1966).
However, escalators have been held not to be common carriers. See Tolman v. Wieboldt
Stores, Inc., 38 Ill.2d 519, 525, 233 N.E.2d 33 (1967); Stach v. Sears, Roebuck and Co., 102
Ill.App.3d 397, 412, 57 Ill.Dec. 879, 429 N.E.2d 1242 (1st Dist. 1981).
Section 100, Page 2 of 18
The relationship of passenger and carrier exists only when the person is in the act of
boarding, is upon, or is in the act of alighting from the carrier's vehicle. Katamay v. Chicago
Transit Authority, 53 Ill.2d 27, 289 N.E.2d 623 (1972) (citing IPI 100.09). The scope of
“boarding” the conveyance has been held to include standing in line to get on a train (Katamay,
supra) and “alighting” the conveyance does not terminate until the passenger has had a
reasonable opportunity to reach a place of safety. Garrett v. Grant School Dist. No. 124, 139
Ill.App.3d 569, 487 N.E.2d 699, 93 Ill.Dec. 874 (2d Dist.1985).
The common carrier's duty to protect its passengers also extends to acts committed by the
carrier's employees, other passengers, and strangers. A common carrier undertakes by contract of
carriage to protect its passengers. Therefore, the carrier is responsible for injury caused by the
intentional acts of its employees regardless of whether the act was within the actual or apparent
scope of the employee's authority. Chicago & Eastern Railroad Co. v. Flexman, 103 Ill. 546
(1882); McMahon v. Chicago City Railway Co., 239 Ill. 334, 88 N.E. 223 (1909).
However, when a passenger leaves a conveyance and reaches a place of safety, normal
rules of respondeat superior apply. Horecker v. Pere Marquette R. Co., 238 Ill.App. 278 (1st
Dist.1925).
A common carrier also owes the highest degree of care to protect its passengers from
assault, injury, or abuse by other passengers or third parties. Where the common carrier knows,
or from facts and circumstances known to it should anticipate the danger of assault to a passenger
by a fellow passenger, then it has the duty to exercise the highest degree of care to protect a
passenger from assault, injury or abuse. Blackwell v. Fernandez, 324 Ill.App. 597, 602-603; 59
N.E.2d 342, 344-345 (1st Dist.1945); McCoy v. Chicago Transit Authority, 69 Ill.2d 280, 371
N.E.2d 625, 13 Ill.Dec. 690 (1977); Letsos v. Chicago Transit Authority, 47 Ill.2d 437, 265
N.E.2d 650 (1970).
This duty arises only when the carrier has actual notice of a danger or notice of facts and
circumstances that a danger probably exists. The carrier's knowledge is a prerequisite to the
imposition of the duty of the highest degree of care. Anderson v. Yellow Cab Co., 28 Ill.App.3d
656, 329 N.E.2d 278 (1st Dist.1975).
Public Act 84-939, effective September 24, 1985, amended the Metropolitan Transit
Authority Act (70 ILCS 3605/27 (1994)), the Regional Transportation Authority Act (70 ILCS
3615/2.08 (1994)), and the Local Mass Transit District Act (70 ILCS 3610/4 (1994)) excluding
the entities governed by these acts, their board members, officers, and employees from liability
for:
[F]ailure to provide a security or police force or, if a security or police force is provided,
for failure to provide adequate police protection or security, failure to prevent the
commission of crimes by fellow passengers or other third persons or for the failure to
apprehend criminals.
70 ILCS 3605/27 (1994).
The Illinois Supreme Court upheld the constitutionality of this Act in Bilyk v. Chicago
Section 100, Page 3 of 18
Transit Authority, 125 Ill.2d 230, 531 N.E.2d 1, 125 Ill.Dec. 822 (1988). The Appellate Court in
Young v. Chicago Transit Authority, 209 Ill.App.3d 84, 568 N.E.2d 18, 154 Ill.Dec. 18 (1st
Dist.1990), held that the immunity afforded under this statute applied only prospectively from the
statute's effective date of September 24, 1985.
In discharging its duty to passengers as a general class, a carrier has a qualified privilege
under the common law to eject passengers for a failure to properly conduct themselves or obey
reasonable rules. Carriers have the right to promulgate reasonable rules necessary to perform its
statutory duty and may eject a passenger who violates such rules. Chicago & Alton Railroad Co.
v. Willard, 31 Ill.App. 435 (4th Dist.1888). Railroad conductors are given the statutory power to
arrest and eject passengers for specified acts under certain conditions. 610 ILCS 80/2, 80/3, 90/1,
90/2 (1994).
Section 100, Page 4 of 18
100.01 Duty Of Common Carrier To Passenger
At the time of the occurrence in question, the defendant, [name of carrier], was a common
carrier. A common carrier is not a guarantor of its passengers' safety, but it has a duty to its
passengers to use the highest degree of care consistent with the mode of conveyance used and the
practical operation of its business as a common carrier by [rail, air, etc.]. Its failure to fulfill this
duty is negligence.
Notes on Use
This instruction is not appropriate in a case where the affirmative act of a third person led
to a passenger's injury. See IPI 100.02 (injury by third person); IPI 100.03 (injury by another
passenger); IPI 100.04 (injury by carrier's employee). This instruction shall be used in place of
IPI 10.04 to define the duty underlying the issue of negligence when the defendant is a common
carrier.
Comment
This instruction sets forth the common law duty owed by a common carrier to its
passengers. Loring v. Yellow Cab Co., 33 Ill.App.3d 154, 337 N.E.2d 428 (1st Dist.1975). While
a common carrier owes its passengers the highest degree of care consistent with the operation of
its vehicles, it is not an absolute insurer of its passengers' safety. A common carrier is not
responsible for injuries suffered by a passenger unless a breach of the duty described herein is the
proximate cause of the injury. Smith v. Chicago Limousine Service, Inc., 109 Ill.App.3d 755, 441
N.E.2d 81, 65 Ill.Dec. 289 (1st Dist.1982).
Section 100, Page 5 of 18
100.02 Duty Of Carrier To Protect Passengers >From Injury By Third Persons
It was the duty of the defendant to exercise the highest degree of care consistent with the
type of vehicle used and the practical operation of its business as a common carrier by [rail, air,
etc.] to protect its passengers from the danger of injury from [e.g., stone throwing] of which it
knew or should have anticipated from facts and circumstances known to it while the passengers
were on its [train, plane, etc.] or while boarding or alighting therefrom. The failure of the
defendant to fulfill this duty is negligence.
Notes on Use
This instruction is applicable when the injury is alleged to be the result of the direct
conduct of a non-passenger. This instruction shall be used in place of IPI 10.04 to define the duty
underlying the issue of negligence when the defendant is a common carrier.
Comment
This instruction, IPI 100.03 (common carrier's duty to protect passengers from assaults by
other passengers) and IPI 100.12 (common carrier's duty to protect invitees from assault) have
one rule of law in common. In order for any duty of protection to arise, the carrier must have
notice of the actual danger, or notice from facts and circumstances known to it that the danger
probably exists. Morris v. Chicago Transit Authority, 28 Ill.App.3d 183, 328 N.E.2d 208 (1st
Dist.1975) (defendant had no notice of rock throwing incidents prior to occurrence); Blackwell v.
Fernandez, 324 Ill.App. 597, 602-603; 59 N.E.2d 342, 344-345 (1st Dist.1945) (the carrier had
notice from the insulting behavior of a drunk that an assault was likely); Neering v. Illinois
Central R. Co., 383 Ill. 366, 378-380; 50 N.E.2d 497, 502-503 (1943) (the railroad was liable for
an assault on a person waiting on a train platform by one of a group of hobos the railroad knew
congregated in the area).
These situations where notice of the danger is required before a duty to protect from it
arises must be distinguished from those situations in which the accident was caused by the act of
a third person but the carrier was negligent in not guarding against the occurrence. Elgin, A. & S.
Traction Co. v. Wilson, 217 Ill. 47, 51-52; 75 N.E. 436, 437 (1905) (railroad liable for injuries to
passenger when boys threw unlocked and unattended switch); Chicago, P. & St. L. Ry. Co. v.
Lewis, 145 Ill. 67, 33 N.E. 960 (1893) (an instruction that the carrier was not liable if its tracks
were “apparently” in good condition was held erroneous because the carrier had the duty to
exercise the highest degree of care to discover the defects).
Amendments to the Metropolitan Transit Authority Act (70 ILCS 3605/27 (1994)), the
Regional Transportation Authority Act (70 ILCS 3615/2.08 (1994)), and the Local Mass Transit
District Act (70 ILCS 3610/4 (1994)), effective September 24, 1985, have exempted the Chicago
Transit Authority and the other entities governed by these acts from liability for the failure to
prevent the commission of crimes by fellow passengers or other third parties. See Introduction.
Section 100, Page 6 of 18
100.03 Duty Of Carrier To Protect Passengers From Other Passengers
It was the duty of the defendant to exercise the highest degree of care consistent with the
type of vehicle used and the practical operation of its business as a common carrier by [rail, air,
etc.] to protect its passengers while they were on its [train, plane, etc.], or while boarding or
alighting therefrom, from [assault,] [injury,] [and] [abuse] from fellow passengers, of which it
knew, or should have anticipated, from facts and circumstances known to it. The failure of the
defendant to fulfill this duty is negligence.
[This obligation cannot be delegated to another. It is therefore not a defense for the
defendant that another person, including [i.e., police department] failed to protect the defendant's
passengers while they were on the defendant's [train, plane, etc.] from assault, injury and abuse
from fellow passengers, of which the defendant knew, or should have anticipated from facts and
circumstances known to it. Now, when I use the term “cannot be delegated” in these instructions,
I mean that the duty must be performed by the defendant and cannot be left to some other
person.]
Notes on Use
This instruction is applicable when the injury is alleged to be the result of the direct
conduct of another passenger. This instruction shall be used in place of IPI 10.04 to define the
duty underlying the issue of negligence when the defendant is a common carrier.
The bracketed second paragraph should only be used where evidence has been offered
that a third party or entity (i.e., local police department) may have had a concurrent duty to
protect the plaintiff or been present under circumstances where such third party or entity may
have been expected to render protection to the plaintiff.
Comment
The duty to exercise the highest degree of care extends to the protection of passengers
from assault by other passengers.
If the common carrier knows, or from facts and circumstances known to it should
anticipate the danger of assault to a passenger by a fellow passenger, then it has the duty to
exercise the highest degree of care to protect a passenger from assault, injury, or abuse. McCoy v.
Chicago Transit Authority, 69 Ill.2d 280, 371 N.E.2d 625, 13 Ill.Dec. 690 (1977) (question of
fact as to whether carrier should have been aware that three intoxicated men had propensity to
cause injury); Watson v. Chicago Transit Authority, 52 Ill.2d 503, 288 N.E.2d 476 (1972)
(question of fact whether bus driver should have known of danger presented by passengers
brandishing a gun); Blackwell v. Fernandez, 324 Ill.App. 597, 602-603; 59 N.E.2d 342, 344-345
(1st Dist.1945) (the carrier had the duty to protect its passenger from abuse of a drunk and was
therefore liable for the resulting knifing). This duty to protect passengers cannot be delegated by
the carrier. The bracketed language was approved in Gordon v. Chicago Transit Authority, 128
Section 100, Page 7 of 18
Ill.App.3d 493, 470 N.E.2d 1163, 83 Ill.Dec. 743 (1st Dist.1984).
Amendments to the Metropolitan Transit Authority Act (70 ILCS 3605/27 (1994)), the
Regional Transportation Authority Act (70 ILCS 3615/2.08 (1994)), and the Local Mass Transit
District Act (70 ILCS 3610/4 (1994)), effective September 24, 1985, have exempted the Chicago
Transit Authority and the other entities governed by these acts from liability for the failure to
prevent the commission of crimes by fellow passengers or other third parties. See Introduction.
Section 100, Page 8 of 18
100.04 Duty Of Carrier To Protect Passengers From Assault, Abuse, Or Intentional Harm
By Employees
The defendant is liable for any injury caused to its passengers by any [assault] [abuse]
[intentional harm] to them by an employee of the carrier [then on duty].
Notes on Use
The material in the last bracket, “then on duty,” should only be used when this is an issue.
Comment
A common carrier undertakes by contract of carriage to protect its passengers. Therefore,
when an employee is on duty, whether the act is or is not in the actual or apparent scope of
authority is immaterial. In Chicago & E. R. Co. v. Flexman, 103 Ill. 546 (1882), a passenger who
had lost his watch accused a brakeman of having it and was assaulted by the brakeman. The court
held that whether or not the brakeman was furthering his employment was immaterial; the
railroad by contract had undertaken to carry the passenger safely and treat him respectfully.
McMahon v. Chicago City Ry. Co., 239 Ill. 334, 88 N.E. 223 (1909) (passenger knocked down in
a scuffle between conductor and another passenger over a right to further “transfers”).
However, when a passenger leaves a conveyance and reaches a place of safety, normal
rules of respondeat superior apply. Horecker v. Pere Marquette R. Co., 238 Ill.App. 278 (1st
Dist.1925) (railroad not liable for the assault of an off-duty gatekeeper on a husband
accompanying his wife to the station).
Section 100, Page 9 of 18
100.05 Statutory Duty And Power Of Railroad Conductor To Arrest For Drinking Or
Intoxication
There was in force in the State of Illinois at the time of the occurrence in question a
certain statute which provided that any person who shall drink any intoxicating liquor, or who
shall be intoxicated in or upon any railroad car in use for the transportation of passengers, or in or
about any railroad station or platform, shall be subject to arrest and conviction and any railroad
conductor while on duty is authorized and empowered, for the purposes of enforcing this statute,
to exercise all the powers conferred upon sheriffs. It is the duty of conductors to enforce this
statute and to arrest without process any person who violates the statute and in so doing the
railroad conductor shall be held to be acting for the State of Illinois and not as the employee of
the railroad.
Notes on Use
This instruction should be used only where an arrest is made or attempted by a conductor.
Where a conductor does not make an arrest, IPI 100.06 and 100.07 are more appropriate.
Comment
This instruction is based on 610 ILCS 90/1, 90/2 (1994).
Section 100, Page 10 of 18
100.06 Duty Of Carrier To Protect Passengers--Conductor Vested With Police Powers
There was in force in the State of Illinois at the time of the occurrence in question a
certain statute which provided that the conductors of all railroad trains carrying passengers shall
be vested with police powers while on duty on their respective trains. It is further provided in this
statute that when any passenger [shall be guilty of disorderly conduct] [uses any obscene
language, to the annoyance and vexation of passengers] [plays any games of cards or other games
of chance for money or other valuable thing] upon any railroad train, the conductor of the train is
authorized to stop the train and eject the passenger from the train, using only such force as may
be necessary to accomplish the removal, and may command the assistance of the employees of
the railroad company, or any of the passengers, to assist in the passenger's removal; but before
ejecting the passenger the conductor shall tender to him any unused portion of the fare which he
has paid.
In ejecting the passenger the conductor must exercise reasonable care to put him off at a
reasonably safe place.
Comment
This instruction is based on 610 ILCS 80/2, 80/3 (1994). A carrier may have right to eject
passenger but not at a time or under circumstances which make it dangerous to life or limb.
Chicago City Ry. Co. v. Pelletier, 134 Ill. 120, 24 N.E. 770 (1890) (noisy passenger forcibly
ejected from train).
Section 100, Page 11 of 18
100.07 Conduct Of Passengers--Right Of Carriers To Eject
Passengers riding in public conveyances are required to conform their conduct to the
ordinary and usual standards of passengers. They must also comply with reasonable rules and
regulations of the carrier designed to provide for the safety and comfort of the passengers and the
proper management of the conveyance as are made known to them.
The failure or refusal of a passenger so to conduct himself, or a violation of known
reasonable rules and regulations of the carrier, results in a termination of his rights as a
passenger. The defendant's employees then have the right to use such force as is reasonably
necessary to eject the passenger from the conveyance on the tender by the carrier's employee to
the plaintiff any unused portion of the fare which he has paid.
Comment
The carrier has the common law right to make and enforce reasonable and just rules
enabling it to perform the duty owed to its passengers. Passengers must comply with such rules.
A railroad may eject a passenger who violates reasonable rules and regulations. Chicago & Alton
R. Co. v. Willard, 31 Ill.App. 435 (4th Dist.1888) (the railroad was privileged to eject a person
who failed to produce a ticket by the time the train reached the next station and was forcibly put
off). A train conductor has a statutory right to eject a passenger for failing to pay his lawful fare;
the use of abusive, profane, vulgar, or obscene language; or conducting himself so as to make his
presence offensive or unsafe to other passengers. 740 ILCS 135/31 (1994).
So long as the ejection does not employ unreasonable or unnecessary force and violence,
it does not constitute an assault. People v. Ibom, 25 Ill.2d 585, 185 N.E.2d 690 (1962). The use
of unreasonable force gives rise to a cause of action for damages against a train conductor. 740
ILCS 135/31 (1994).
Section 100, Page 12 of 18
100.08 Duty To Disabled, Infirm, Or Intoxicated Person, Or To A Child
When a carrier is aware that a passenger is [mentally or physically disabled] [feeble or
infirm] [intoxicated] [a child traveling alone] so that the hazards of travel are increased as to
[him] [her], it is the duty of the carrier to provide that additional care which the circumstances
reasonably require. The failure of the defendant to fulfill this duty is negligence.
Notes on Use
This instruction shall be used in place of IPI 10.04 to define the duty underlying the issue
of negligence when the defendant is a common carrier.
Comment
When a common carrier has actual knowledge that a person is suffering from some
physical or mental disability, and further realizes that that person is in an unsafe place or cannot
safely alight from its conveyance, the carrier owes him a duty to provide the additional care
which his circumstances reasonably require. Burke v. Chicago & N.W. R. Co., 108 Ill.App. 565
(2d Dist.1902) (a helpless drunk was injured by a switching train after he had been deposited on a
platform located between two sets of tracks). Chevalier v. Chicago Transit Authority, 338
Ill.App. 119, 86 N.E.2d 838 (1st Dist.1949) (carrier not on notice that drunk requires special
attention when he was able to stand by himself). Dabney v. Baltimore & O.S.W. R. Co., 140
Ill.App. 269 (4th Dist.1908) (carrier's duty of additional care had terminated when drunk was
deposited safely on platform and was later injured while trying to walk back to station along the
tracks). Smorawski v. Chicago City R. Co., 211 Ill.App. 557, 561 (1st Dist.1918) (verdict
affirmed for boy between 6 and 7 who fell from the back step of a streetcar where he was
hanging by a grabrail).
Section 100, Page 13 of 18
100.09 Who Is A Passenger
When I use the word passenger, I mean a person who with the actual or implied consent
of the carrier [is in the act of boarding] [is upon] [or] [is in the act of alighting from] the [vehicle]
[conveyance] of a common carrier.
Notes on Use
IPI 100.10 covers the definition of a passenger when the issue of a transfer from one
conveyance to another exists. IPI 100.11 covers the definition of a passenger on an elevator or
escalator.
Comment
It is not a requirement that the plaintiff be in physical contact with the conveyance in
order to occupy the status of passenger. In Katamay v. Chicago Transit Authority, 53 Ill.2d 27,
289 N.E.2d 623 (1972), the Illinois Supreme Court held that a woman standing on the platform
provided for boarding and alighting was in the “act of boarding” if with the intent to board a
standing train she was moving toward the train for that purpose. Although it is not necessary that
a person shall have paid his fare or be in possession of a ticket, the person must put himself in the
care of the carrier or directly within its control with the bona fide intention of becoming a
passenger. Burns v. Regional Transp. Authority, 112 Ill.App.3d 464, 445 N.E.2d 348, 67 Ill.Dec.
868 (1st Dist.1982), rev'd on other grounds sub nom. Stack v. Regional Transp. Authority, 101
Ill.2d 284, 461 N.E.2d 969, 78 Ill.Dec. 135 (1984).
One who intends to become a passenger and boards a conveyance through the customary
entrance becomes a passenger when expressly or impliedly accepted as such by the carrier.
Illinois Cent. R. Co. v. O'Keefe, 168 Ill. 115, 119; 48 N.E. 294, 294 (1897) (a person who
jumped on the baggage car platform of a moving train after the passenger doors had been closed
was not impliedly accepted as a passenger by the railroad even though the conductor knew that
someone had boarded the baggage car). Finley v. Chicago, A. & E. Ry. Co., 3 Ill.App.2d 436,
122 N.E.2d 594 (1st Dist.1954) (person who got on slowly-moving train at station only to be
thrown off by a violent acceleration was a passenger). Actually paying a fare is unnecessary.
Ruch v. Aurora, E. & C. R. Co., 150 Ill.App. 329 (2d Dist.1909) (plaintiff, who had fare and
intended to pay it, was passenger notwithstanding conductor had not asked for the fare).
The relationship of passenger and carrier continues after the passenger alights until the
passenger has had a reasonable opportunity to reach a place of safety. Loring v. Yellow Cab Co.,
33 Ill.App.3d 154, 337 N.E.2d 428 (1st Dist.1975). From the moment a passenger reaches a place
of safety, a common carrier owes a person only the duty of ordinary care. Sims v. Chicago
Transit Authority, 4 Ill.2d 60, 122 N.E.2d 221 (1954) (person no longer a passenger after getting
off streetcar in the middle of block and walking around in front of it where she was struck by
streetcar coming in opposite direction).
Section 100, Page 14 of 18
100.10 Who Is A Passenger--Transfer From One Vehicle To Another At Issue
The duty of the defendant to a passenger to exercise the highest degree of care is
suspended from the time the passenger alights at an intermediate point to transfer to another
[train, plane, etc.] after the passenger has had a reasonable opportunity to reach a place of
reasonable safety, and resumes when the passenger is in the act of boarding another [train, plane,
etc.] within the time and place fixed by the transfer, to continue his journey. During the period
from the time the plaintiff alighted from the defendant's [train, plane, etc.] and after he had a
reasonable opportunity to reach a place of reasonable safety, until the time when he was in the act
of boarding another of the defendant's [train, plane, etc.]s, the duty the defendant owed to the
plaintiff was the same it owed to the general public, that is to exercise ordinary care.
A failure of the defendant to fulfill the duty applicable to the facts as you determine them
to be in this case is negligence.
Notes on Use
This instruction is to be used only when there is a question of fact as to whether the
injured person was in the process of transferring from one vehicle to another. This instruction
may only be used in conjunction with IPI 100.09 defining a passenger. This instruction shall be
used in place of IPI 10.04 to define the duty underlying the issue of negligence when the
defendant is a common carrier under evidence giving rise to this instruction.
Comment
The duty of a common carrier to exercise the highest degree of care arises out of the
contract of carriage in exchange for consideration. While the duty is continuous throughout this
relationship and extends to transferring passengers from one conveyance to another, it is
suspended from the time the carrier discharges a passenger at an intermediate point of his journey
until the conveyance is resumed. The duty during the interim is one of ordinary care. Rotheli v.
Chicago Transit Authority, 7 Ill.2d 172, 130 N.E.2d 172 (1955); Jones v. Chicago & N.W.
Transp. Co., 206 Ill.App.3d 136, 563 N.E.2d 1120, 151 Ill.Dec. 14 (1st Dist.1990).
Section 100, Page 15 of 18
100.11 Who Is A Passenger--Elevator, Escalator Only
When I use the word passenger, I mean a person, who, with the actual or implied consent
of the defendant, is [entering] [leaving] [or] [riding] upon an [elevator] [escalator] to be carried
from one floor of the defendant's [building] [place of business] to another.
Notes on Use
This instruction is limited to passengers on elevators and escalators. For the definition of
passengers in other situations see IPI 100.09, 100.10.
Comment
In elevator and escalator cases, whether the operator has accepted a person as a passenger
will usually depend on the purpose for which the person is in the building. Steiskal v. Marshall
Field & Co., 238 Ill. 92, 87 N.E. 117 (1908) (an unsolicited, prospective employee who was
directed to see the superintendent on the ninth floor was a passenger while on an elevator on the
way down from that floor after he could not locate the superintendent); Heffernan v. Mandel
Brothers, 297 Ill.App. 272, 17 N.E.2d 523 (1st Dist.1938) (a customer who slipped when an
escalator jerked was a passenger).
Section 100, Page 16 of 18
100.12 Duty Of Carrier To Protect Invitees From Assault
It was the duty of the defendant to exercise ordinary care to protect [the plaintiff] [its
invitees] while within or upon the premises of its [station] [depot] [platform] from the danger of
assault of which it knew, or should have anticipated from facts and circumstances known to it.
Notes on Use
This instruction may be used when either a common carrier or terminal station operator is
sued. This instruction should be used in conjunction with IPI 10.04.
The Premises Liability Act, 740 ILCS 130/1-130/4 (1994), abolished the distinction
between licensees and invitees as to occurrences on or after September 12, 1984. The Act
imposes a duty of ordinary care as to both licensees and invitees. Therefore, as to cases arising
out of occurrences on or after September 12, 1984, “the plaintiff” will be used in the second line.
See IPI 120.06 as to duties to invitees for injuries other than assault.
Comment
The duties owed business visitors by common carriers in their stations and on their
platforms was historically the same as that owed by the owners of business premises to their
invitees. Haynes v. Chicago Transit Authority, 59 Ill.App.3d 997, 376 N.E.2d 680, 17 Ill.Dec.
534 (1st Dist.1978). Section 2 of the Premises Liability Act, 740 ILCS 130/2 (1994), provides
(emphasis added):
§2. The distinction under the common law between invitees and licensees as to
the duty owed by an owner or occupier of any premises to such entrants is abolished.
The duty owed to such entrants is that of reasonable care under the circumstances
regarding the state of the premises or acts done or omitted on them.
The statute therefore expanded the duty owed by the owner of any premises to include not
only invitees, but licensees as well.
If the carrier's employees assault or injure the invitee, the carrier will be liable if the
employee was acting in the actual or apparent scope of his duties. Horecker v. Pere Marquette R.
Co., 238 Ill.App. 278 (1st Dist.1925) (the railroad was not liable for an assault by an off-duty
gatekeeper on a husband accompanying his wife to the station).
On the other hand, if the assault is made by a stranger or another invitee, the carrier must
know, or from facts or circumstances known to it should have known, that an assault was likely.
Section 100, Page 17 of 18
Neering v. Illinois Central R. Co., 383 Ill. 366, 50 N.E.2d 497 (1943) (the railroad was liable to
an invitee who was assaulted by one of a number of hobos, who usually congregated in that
vicinity, while she was waiting for a train on the platform). Meyer v. Riverview Park Co., 342
Ill.App. 218, 96 N.E.2d 379 (1st Dist.1950) (defendant had no notice that a passenger who had
just gotten off a roller-coaster would be assaulted by another passenger with whom he had a
trivial scuffle before getting on the roller-coaster).
Amendments to the Metropolitan Transit Authority Act (70 ILCS 3605/27 (1994)), the
Regional Transportation Authority Act (70 ILCS 3615/2.08 (1994)), and the Local Mass Transit
District Act (70 ILCS 3610/4 (1994)), effective September 24, 1985, have exempted the Chicago
Transit Authority and the other entities governed by these acts from liability for the failure to
prevent the commission of crimes by fellow passengers or other third parties. See Introduction.
Section 100, Page 18 of 18
100.15 Place To Board And Alight
In selecting a place for the plaintiff to [board] [alight from] its vehicles, it was the duty of
the defendant, as a common carrier, to exercise the highest degree of care consistent with the
mode of conveyance used and the practical operation of its business as a common carrier by [bus,
taxi, etc.]. The failure of the defendant to fulfill this duty is negligence.
Notes on Use
This instruction shall be used in place of IPI 10.04 to define the duty underlying the issue
of negligence when the defendant is a common carrier.
Comment
A common carrier has a duty to exercise the highest degree of care to a passenger, and
that duty extends until the passenger has been given an opportunity to alight in a safe place.
Miskunas v. Chicago Transit Authority, 42 Ill.App.3d 202, 355 N.E.2d 738 (1st Dist.1976).
Therefore, the common carrier has a duty to furnish a reasonably safe place for a passenger to
alight. Borus v. Yellow Cab Co., 52 Ill.App.3d 194, 367 N.E.2d 277, 9 Ill.Dec. 843 (1st
Dist.1977); DeBello v. Checker Taxi Co., 8 Ill.App.3d 401, 290 N.E.2d 367 (1st Dist.1972);
O'Shea v. Chicago Motor Coach Co., 328 Ill.App. 457, 66 N.E.2d 482 (1st Dist.1946) (the bus
company was negligent when it stopped at a dark place where the street was severely cracked);
Sims v. Chicago Transit Authority, 4 Ill.2d 60, 65; 122 N.E.2d 221, 223-224 (1954) (a streetcar
discharged plaintiff at a reasonably safe place notwithstanding that it was in the middle of the
block on a heavily-traveled street); Kiesel v. Chicago Transit Authority, 6 Ill.App.2d 13, 126
N.E.2d 170 (1st Dist.1955) (it was not negligent to let the plaintiff off on an icy patch where icy
conditions were general throughout the city).
Section 105, Page 1 of 26
105.00
PROFESSIONAL NEGLIGENCE
INTRODUCTION
The jury instructions in the 105.00 series deal with negligence actions brought against
professionals, including doctors, dentists, attorneys, architects and others. Generally,
professional negligence actions are predicated on a failure of the professional to conform to the
appropriate standard of care. In prior editions, the term “malpractice” was used. However, the
committee believes that “professional negligence” more accurately describes the type of case in
which these instructions can be used.
Actions based on the performance of a procedure on a patient by a medical professional
without the consent of the patient or authorized individual are brought under the legal theory of
assault and battery.
In an action for medical professional negligence the plaintiff must prove by expert
testimony that the defendant physician failed to conform to the applicable standard of care unless
the alleged negligence is grossly apparent or is obvious to a layman. Addison v. Whittenberg,
124 Ill.2d 287, 529 N.E.2d 552, 124 Ill.Dec. 571 (1988); Purtill v. Hess, 111 Ill.2d 229, 242; 489
N.E.2d 867, 872; 95 Ill.Dec. 305, 310 (1986); Walski v. Tiesenga, 72 Ill.2d 249, 381 N.E.2d 279,
21 Ill.Dec. 201(1978); Borowski v. Von Solbrig, 60 Ill.2d 418, 328 N.E.2d 301 (1975). See 735
ILCS 5/2-1113 (1994). The applicable standard of care may also be proven by explicit
manufacturer's instructions for proper use of a medication (Ohligschlager v. Proctor Community
Hosp., 55 Ill.2d 411, 303 N.E.2d 392 (1973)), by cross-examination of the defendant (Metz v.
Fairbury Hosp., 118 Ill.App.3d 1093, 455 N.E.2d 1096, 74 Ill.Dec. 472 (4th Dist.1983)), or by
hospital licensing regulations or accreditation standards (Smith v. South Shore Hosp., 187
Ill.App.3d 847, 543 N.E.2d 868, 135 Ill.Dec. 300 (1st Dist.1989)).
The same general standard of care applies to all professionals, that is, the same degree of
knowledge, skill and ability as an ordinarily careful professional would exercise under similar
circumstances. Northern Trust Co. v. Louis A. Weiss Memorial Hosp., 143 Ill.App.3d 479, 493
N.E.2d 6, 97 Ill.Dec. 524 (1st Dist.1986) (registered nurse); St. Gemme v. Tomlin, 118
Ill.App.3d 766, 455 N.E.2d 294, 74 Ill.Dec. 264 (4th Dist.1983) (dentist); Thompson v. Webb,
138 Ill.App.3d 629, 486 N.E.2d 326, 93 Ill.Dec. 225 (4th Dist.1985) (doctor); Laukkanen v.
Jewel Tea Co., 78 Ill.App.2d 153, 222 N.E.2d 584 (4th Dist.1966) (engineer); Brown v. Gitlin,
19 Ill.App.3d 1018, 313 N.E.2d 180 (1st Dist.1974) (attorney); Rosos Litho Supply Corp. v.
Hansen, 123 Ill.App.3d 290, 462 N.E.2d 566, 78 Ill.Dec. 447 (1st Dist.1984) (architect); Horak
v. Biris, 130 Ill.App.3d 140, 474 N.E.2d 13, 85 Ill.Dec. 599 (2d Dist.1985) (social worker);
Cereal Byproducts Co. v. Hall, 16 Ill.App.2d 79, 147 N.E.2d 383 (1st Dist.1958), aff'd, 15 Ill.2d
313, 155 N.E.2d 14 (1958) (accountant); Spilotro v. Hugi, 93 Ill.App.3d 837, 417 N.E.2d 1066,
49 Ill.Dec. 239 (2d Dist.1981) (veterinarian); Barnes v. Rakow, 78 Ill.App.3d 404, 396 N.E.2d
1168, 33 Ill.Dec. 444 (1st Dist.1979) (surveyor). Therefore, regardless of the defendant's
profession, the same jury instructions may be used with appropriate modifications, if needed.
The Medical Malpractice Act, P.A. 84-7, modified the law of medical negligence for
Section 105, Page 2 of 26
cases filed after August 15, 1985. However, the Act did not require major changes in the
professional negligence instructions in this chapter. The changes in jury instructions required by
the Act are in the damages instructions. 735 ILCS 5/2-1109 (1994) (itemized verdicts); 735 ILCS
5/2-1707 (1994) (calculation of future damages).
Instructions dealing with informed consent, res ipsa loquitur, and the duty of a health
care institution have been added to reflect the current state of the law. See 735 ILCS 5/2-622(3)
(d) (1994).
Section 105, Page 3 of 26
105. 01 PROFESSIONAL NEGLIGENCE – DUTY
A _________________________________________________________ must possess and use
[specialist/doctor/nurse/therapist/health-care provider/accountant/lawyer/other]
the knowledge, skill, and care ordinarily used by a reasonably careful
__________________________________________________________.
[specialist/doctor/nurse/therapist/health-care provider/accountant/lawyer/other]
The failure to do something that a reasonably careful
___________________________________________________________
[specialist/doctor/nurse/therapist/health-care provider/accountant/lawyer/other]
[practicing in the same or similar localities] would do, or the doing of something that a reasonably
careful __________________________________________________________ would not do, under
[specialist/doctor/nurse/therapist/health-care provider/accountant/lawyer/other]
circumstances similar to those shown by the evidence, is “professional negligence”.
The phrase “deviation from the standard of [care][practice]” means the same thing as
“professional negligence”.
The law does not say how a reasonably careful _______________________________would act
[specialist/doctor/nurse/therapist/health-care
provider/accountant/lawyer/other]
under these circumstances. That is for you to decide. In reaching your decision, you must rely upon
opinion testimony from qualified witnesses [and] [evidence of professional standards][evidence of
by-laws/rules/regulations/policies/procedures] [or similar evidence]. You must not attempt to
determine how a reasonably careful ______________________________________________________
[specialist/doctor/nurse/therapist/health-care provider/accountant/lawyer/other]
would act from any personal knowledge you may have.
Instruction and Notes on Use revised September 2011. Comment revised December 2011.
Section 105, Page 4 of 26
Notes on Use
The bracketed language (“deviation from the standard of practice”) in the second
paragraph may be more appropriate for an accountant or attorney malpractice case than the
“deviation from the standard of care” language that is most appropriate for medical negligence
cases.
The second paragraph must be given unless the Court determines that expert testimony is
not necessary because the case falls within the “common knowledge” exception. Jones v.
Chicago HMO, Ltd. of Illinois, 191 Ill.2d 278, 296, 730 N.E.2d 1119, 246 Ill.Dec. 654 (2000);
Borowski v. Van Solbrig, 60 Ill.2d 418, 328 N.E.2d 301 (1975).
The bracketed language in paragraph three is limited to those cases where the evidence
warrants its use and is not to be viewed as an alternative to expert testimony. Studt v. Sherman
Health Sys., 951 N.E.2d 1131, 2011 Ill. LEXIS 1093, 351 Ill.Dec. 467 (2011) (citing
Ohligshager v. Proctor Community Hosp., 55 Ill.2d 411, 303 N.E.2d 392 (1973); Metz v.
Fairbury Hosp., 118 Ill.App.3d 1093, 455 N.E.2d 1096, 74 Ill.Dec. 472 (1983)).
The locality rule has largely faded from current practice. If there is no issue of an
applicable local standard of care, the locality language should be deleted. Purtill v. Hess, 111
Ill.2d 229, 489 N.E.2d 867, 95 Ill.Dec. 305 (1986); Karsten v. McCray, 157 Ill.App.3d 1, 509
N.E.2d 1376, 109 Ill.Dec. 364 (2d Dist. 1987). The locality rule has also been applied in
attorney malpractice cases. O’Brien v. Noble, 106 Ill.App.3d 126, 435 N.E.2d 554, 61 Ill.Dec.
857 (4th Dist. 1982).
Comment
In Studt v. Sherman Health Sys., 951 N.E.2d 1131, 2011 Ill. LEXIS 1093, 351 Ill.Dec.
467 (2011), the Illinois Supreme Court distinguished between professional medical negligence
and institutional medical negligence, holding that expert opinion testimony is required in a
professional medical negligence action, except in limited circumstances. Compare with IPI Civil
105.03.01 Duty of a Healthcare Institution – Institutional Negligence.
This instruction supersedes IPI 105.01 found in the IPI 2011 and previous editions.
Section 105, Page 5 of 26
105.02 Duty Of Specialist--Professional Negligence
[Withdrawn]
IPI 105.02 is withdrawn. Use the current version of IPI 105.01 for professional
negligence cases against a specialist.
Section 105, Page 6 of 26
105.03 Duty To Refer To Specialist--Professional Negligence
[Withdrawn]
Comment
IPI 2d (Civil) contained a duty instruction on the duty of a physician to refer a patient to a
specialist when ordinary care would so require. That instruction is withdrawn, and the
Committee recommends that no such instruction be given. These allegations can be included in
an appropriate issues instruction. The Committee believes that the legal duty of a professional to
refer to a specialist is adequately covered by IPI 105.01 or 105.02 when used in conjunction with
appropriate issues instructions.
Section 105, Page 7 of 26
105.03.01 Duty Of A Health Care Institution--Institutional Negligence
Negligence by a [hospital/other institution] is the failure to do something that a
reasonably careful [hospital/other institution] would do, or the doing of something that a
reasonably careful [hospital/other institution] would not do, under circumstances similar to those
shown by the evidence.
[In deciding whether the defendant [hospital/other institution] was negligent, you may
consider (opinion testimony from qualified witnesses) (evidence of professional standards)
(evidence of by-laws/rules/regulations/policies/procedures) (evidence of community practice)
(and other evidence) presented in this case.]
The law does not say how a reasonably careful [hospital/other institution] would act
under these circumstances. That is for you to decide.
Notes on Use
This instruction incorporates the duty of a hospital or other treating institution as defined
in Darling v. Charleston Community Memorial Hosp., 33 Ill.2d 326, 211 N.E.2d 253 (1965). See
also Stogsdill v. Manor Convalescent Home, Inc., 35 Ill.App.3d 634, 343 N.E.2d 589 (2d
Dist.1976); Magana v. Elie, 108 Ill.App.3d 1028, 439 N.E.2d 1319, 64 Ill.Dec. 511 (2d
Dist.1982); Wogelius v. Dallas, 152 Ill.App.3d 614, 504 N.E.2d 791, 105 Ill.Dec. 506 (1st
Dist.1987); Alford v. Phipps, 169 Ill.App.3d 845, 523 N.E.2d 563, 119 Ill.Dec. 807 (4th
Dist.1988). Ordinarily, this duty involves the hospital's own management responsibility.
This instruction does not apply where the institution's liability is based on vicarious
liability for the professional negligence of a doctor or nurse or similar professional. For such
vicarious liability, use IPI 105.01 with appropriate agency instructions.
This instruction does not apply if the case involves only ordinary principles of
negligence, such as premises liability, as opposed to professional negligence.
If the jury is entitled to rely on “common knowledge” in determining the standard of care,
omit the second paragraph of this instruction.
Comment
A hospital is not an insurer of a patient's safety, but it owes the patient a duty of
protection and must exercise reasonable care toward him as his known condition requires. Slater
v. Missionary Sisters of the Sacred Heart, 20 Ill.App.3d 464, 314 N.E.2d 715 (1st Dist.1974). A
hospital is under a duty to conform to the legal standard of reasonable conduct in light of the
apparent risk. Ohligschlager v. Proctor Community Hosp., 55 Ill.2d 411, 303 N.E.2d 392 (1973);
Johnson v. St. Bernard Hosp., 79 Ill.App.3d 709, 399 N.E.2d 198, 35 Ill.Dec. 364 (1st
Dist.1979); Andrews v. Northwestern Memorial Hosp., 184 Ill.App.3d 486, 540 N.E.2d 447,
452; 132 Ill.Dec. 707, 712 (1st Dist.1989). “A hospital has an independent duty to its patients to
review and supervise treatment.” Id.
Whether or not the defendant has conformed to this standard of care may be proved by a
Section 105, Page 8 of 26
wide variety of evidence, including, but not limited to, expert testimony, hospital by-laws,
statutes, accreditation standards, customs, and community practice. Darling v. Charleston
Community Memorial Hosp., 33 Ill.2d 326, 211 N.E.2d 253 (1965); Andrews v. Northwestern
Memorial Hosp., 184 Ill.App.3d 486, 540 N.E.2d 447, 452; 132 Ill.Dec. 707, 712 (1st
Dist.1989). There is no case law on whether the breach of the duty of an institution must be
proven generally only by expert testimony or other evidence of professional standards.
Accordingly, the second paragraph of this instruction does not use the mandatory language
contained in the third paragraph of IPI 105.01. See Northern Trust Co. v. Louis A. Weiss
Memorial Hosp., 143 Ill.App.3d 479, 492; 493 N.E.2d 6, 15; 97 Ill.Dec. 524, 533 (1st
Dist.1986); Andrews v. Northwestern Memorial Hosp., supra (expert medical testimony not
required in an institutional negligence case to establish standard of care).
One must distinguish cases of institutional professional negligence from cases that
involve only ordinary principles of negligence, such as premises liability. Compare Kolanowski
v. Illinois Valley Community Hosp., 188 Ill.App.3d 821, 544 N.E.2d 821, 136 Ill.Dec. 135 (3d
Dist.1989) (hospital's alleged failure to provide adequate patient restraints, such as bed rails, was
professional negligence requiring expert testimony) with Owens v. Manor Health Care Corp.,
159 Ill.App.3d 684, 512 N.E.2d 820, 111 Ill.Dec. 431 (4th Dist.1987) (fall from wheelchair in
nursing home involved only ordinary negligence). This instruction necessarily applies only to the
former.
The predecessor version of this instruction and its Notes on Use were criticized in Ellig v.
Delnor Community Hospital, 237 Ill.App.3d 396, 411-412; 603 N.E.2d 1203, 177 Ill.Dec. 829
(2d Dist.1992).
Section 105, Page 9 of 26
105.04 Delegation Of Duties--Professional Negligence
[Withdrawn]
Comment
IPI 2d (Civil) contained a duty instruction on the appropriateness in certain situations of
the delegation of duties by a physician. That instruction is withdrawn, and the Committee
recommends that no such instruction be given. These allegations can be included in an
appropriate issues instruction. The Committee believes that the legal duty of a professional
arising from the delegation of duties is adequately covered by IPI 105.01 or 105.02 when used in
conjunction with appropriate issues instructions.
Section 105, Page 10 of 26
105.05 Consent To Procedure--Battery--Non-Emergency
Before a [insert appropriate medical professional person] may [describe the procedure
performed] upon a patient, the consent of the patient for the [describe the procedure performed]
must be obtained.
[However, (if the patient is a minor) (if the patient lacks mental capacity to give consent),
then the [insert appropriate medical professional person] is excused from obtaining consent of
the patient to the procedure. In this situation the consent must be obtained from a person
authorized to give consent to the [describe the procedure performed].]
Notes on Use
Any operation performed without consent in a non-emergency situation constitutes a
battery. This instruction should not be given when the issue is informed consent. This instruction
should only be used when the cause of action is the intentional tort of battery.
Comment
In performing an operation upon a patient, it is necessary to obtain the consent of the
patient. This consent must be obtained from the patient unless the patient is legally unable or the
patient's condition is such that obtaining consent would endanger the health of the patient. There
are also exceptions for emergencies that develop during an operation or when the doctor
determines that it is impracticable to obtain the consent of the patient or authorized person. Pratt
v. Davis, 224 Ill. 300, 79 N.E. 562 (1906); Beringer v. Lackner, 331 Ill.App. 591, 73 N.E.2d 620
(1st Dist.1947).
If the issue is whether or not the patient consented to the physician that performed the
procedure, this instruction should be modified. Guebard v. Jabaay, 117 Ill.App.3d 1, 452 N.E.2d
751, 72 Ill.Dec. 498 (2d Dist.1983).
Section 105, Page 11 of 26
105.06 Emergency Arising During A Procedure--Battery
Before a [insert appropriate medical professional person] may [describe the procedure
performed] upon a patient, the consent of the patient for the [describe the procedure performed]
must be obtained unless during the course of the [describe the procedure performed] an
emergency arises requiring further or different treatment to protect the patient's health, and it is
impossible or impracticable to obtain consent either from the patient or from someone authorized
to consent for him. Whether there was such an emergency and whether it was impossible or
impracticable to obtain consent is for you to decide.
Notes on Use
This instruction is proper only if the initial operation has been properly consented to and
the cause of action is battery. It should not be given when the issue is informed consent and the
cause of action is negligence.
Comment
Authority for this instruction was found in dictum in Pratt v. Davis, 224 Ill. 300, 309; 79
N.E. 562, 565 (1906), and Beringer v. Lackner, 331 Ill.App. 591, 73 N.E.2d 620 (1st Dist.1947).
See Comment to IPI 105.05.
Section 105, Page 12 of 26
105.07 Emergency Arising Before A Procedure--Battery
Before a [insert appropriate medical professional person] may [describe the procedure
performed] upon a patient, the consent of the patient for the [describe the procedure performed]
must be obtained unless an emergency arises and treatment is required in order to protect the
patient's health, and it is impossible or impracticable to obtain consent either from the patient or
from someone authorized to consent for him. Whether there was such an emergency and whether
it was impossible or impracticable to obtain consent is for you to decide.
Notes on Use
This instruction should not be given when the issue is informed consent and the cause of
action is negligence. This instruction should only be given when the cause of action is battery.
Comment
See Pratt v. Davis, 224 Ill. 300, 309-310; 79 N.E. 562, 565 (1906).
Physicians who provide emergency care without a fee are not liable for their negligence.
225 ILCS 60/30 (1994). Other professionals or occupations are protected by similar “good
Samaritan” laws. 225 ILCS 25/53 (1994) (dentists); 745 ILCS 20/1 (1994) (law enforcement
officers and firemen); 225 ILCS 90/35 (1994) (physical therapists).
Section 105, Page 13 of 26
105.07.01 Informed Consent--Duty And Definition--Professional Negligence
In providing medical [services] [care] [treatment] to [patient's name], a [insert appropriate
medical professional] must obtain [patient's name]'s informed consent.
When I use the expression “informed consent” I mean a consent obtained from a patient
by a [insert appropriate medical professional] after the disclosure by the [insert appropriate
medical professional] of those [risks of] [and] [or] [alternatives to] the proposed treatment which
a reasonably well-qualified [insert appropriate medical professional] would disclose under the
same or similar circumstances. A failure to obtain informed consent is professional negligence.
[The only way in which you may decide what (risks) (and) (or) (alternatives) the [insert
appropriate medical professional] should have disclosed to [patient's name] is from expert
testimony presented in the trial. You must not attempt to determine this from any personal
knowledge you have.]
Notes on Use
This instruction is to be used when the case involves an allegation that the defendant
failed to fully apprise the plaintiff of relevant factors affecting the plaintiff's decision concerning
the service to be rendered. Such an action is based upon negligence.
In most cases, the evidence will show that what should have been disclosed consisted of
the risks of the proposed treatment, alternatives to the proposed treatment, or both. However, if
the evidence shows that some other factor (i.e., the relative benefits or lack of benefits of
alternative treatments) should have been disclosed, then the instruction may be modified
accordingly.
The third paragraph must be given unless the court determines that expert testimony is
not necessary because the case falls within the “common knowledge” exception. Taber v.
Riordan, 83 Ill.App.3d 900, 403 N.E.2d 1349, 38 Ill.Dec. 745 (2d Dist.1980).
This instruction is not to be used where the patient has given consent to one professional
and an unauthorized professional performs the service. Perna v. Pirozzi, 92 N.J. 446, 457 A.2d
431 (1983); Guebard v. Jabaay, 117 Ill.App.3d 1, 452 N.E.2d 751, 72 Ill.Dec. 498 (2d
Dist.1983). In such cases, see IPI 105.05 or 105.06.
The phrase “in the same or similar localities” is deleted from this instruction because
Guebard v. Jabaay, 117 Ill.App.3d 1, 452 N.E.2d 751, 72 Ill.Dec. 498 (2d Dist.1983), adopted a
national standard and noted the inapplicability of the locality rule in informed consent cases. See
also Weekly v. Solomon, 156 Ill.App.3d 1011, 510 N.E.2d 152, 109 Ill.Dec. 531 (2d Dist.1987).
Comment
This instruction differs from instructions based upon failure to obtain consent. Such
actions are brought under a theory of battery. Informed consent is a negligence concept.
“The physician has a duty to disclose to the patient those risks, results or alternatives that
Section 105, Page 14 of 26
a reasonable medical practitioner of the same school, in the same or similar circumstances,
would have disclosed.” Miceikis v. Field, 37 Ill.App.3d 763, 767; 347 N.E.2d 320, 324 (1st
Dist.1976). See also Taber v. Riordan, 83 Ill.App.3d 900, 403 N.E.2d 1349, 38 Ill.Dec. 745 (2d
Dist.1980); Magana v. Elie, 108 Ill.App.3d 1028, 439 N.E.2d 1319, 64 Ill.Dec. 511 (2d
Dist.1982); Hansbrough v. Kosyak, 141 Ill.App.3d 538, 490 N.E.2d 181, 95 Ill.Dec. 708 (4th
Dist.1986).
Guebard v. Jabaay, 117 Ill.App.3d 1, 452 N.E.2d 751, 72 Ill.Dec. 498 (2d Dist.1983),
adopted a national standard in defining what a reasonable physician under similar circumstances
would disclose and noted the inapplicability of the locality rule in informed consent cases. But
see Weekly v. Solomon, 156 Ill.App.3d 1011, 510 N.E.2d 152, 109 Ill.Dec. 531 (2d Dist.1987).
At the time of filing a professional negligence case relying upon informed consent, there
must be filed a report from the reviewing health professional that there was a violation of what a
reasonable health professional would have disclosed. 735 ILCS 5/2-622(3) (d) (1994). See
DeLuna v. St. Elizabeth's Hosp., 147 Ill.2d 57, 588 N.E.2d 1139, 167 Ill.Dec. 1009 (1992) (§2622 held constitutional).
The standard of disclosure must be proved by expert testimony (Magana v. Elie, 108
Ill.App.3d 1028, 439 N.E.2d 1319, 64 Ill.Dec. 511 (2d Dist.1982); Green v. Hussey, 127
Ill.App.2d 174, 262 N.E.2d 156 (1st Dist.1970); Guebard v. Jabaay, 117 Ill.App.3d 1, 452
N.E.2d 751, 72 Ill.Dec. 498 (2d Dist.1983); Sheahan v. Dexter, 136 Ill.App.3d 241, 483 N.E.2d
402, 91 Ill.Dec. 120 (3d Dist.1985)), unless the matters involved are common knowledge or
within the experience of laymen (Taber v. Riordan, 83 Ill.App.3d 900, 403 N.E.2d 1349, 38
Ill.Dec. 745 (2d Dist.1980)).
Section 105, Page 15 of 26
105.07.02 Informed Consent--Issues Made By The Pleadings--Professional Negligence--One
Plaintiff And One Defendant
[The plaintiff's complaint consists of ____ counts. The issues to be decided by you under
Count ____ of the complaint are as follows:]
The plaintiff claims that the defendant failed to inform the plaintiff of those [risks of]
[and] [or] [alternatives to] the [describe the procedure performed] which a reasonably wellqualified [insert appropriate medical professional] would have disclosed under the same or
similar circumstances;
The plaintiff further claims that if the defendant had disclosed those [risks] [and] [or]
[alternatives], a reasonable person in the plaintiff's position would not have submitted to the
[describe the procedure performed]; and
The plaintiff further claims that he was injured, and that the defendant's failure to disclose
those [risks] [and] [or] [alternatives] was a proximate cause of that injury.
The defendant [denies that he failed to inform the plaintiff of those (risks of) (and) (or)
(alternatives to) the [describe the procedure performed] which a reasonably well-qualified [insert
appropriate medical professional] would have disclosed under the same or similar
circumstances;] [denies that a reasonable person in the plaintiff's position would not have
submitted to the [describe the procedure performed] after being told of those (risks) (and) (or)
(alternatives)]; [denies that the plaintiff was injured or sustained damages (to the extent
claimed);] [and] [denies that any failure to disclose those (risks) (and) (or) (alternatives) was a
proximate cause of any injury].
Notes on Use
This instruction should be used only for professional negligence cases based upon the
failure to obtain the informed consent of the plaintiff.
In most cases, the evidence will show that what should have been disclosed consisted of
the risks of the proposed treatment, alternatives to the proposed treatment, or both. However, if
the evidence shows that some other factor (i.e., the relative benefits or lack of benefits of
alternative treatments) should have been disclosed, then the instruction may be modified
accordingly.
If the defendant has alleged any affirmative defenses, or if the defendant claims that the
plaintiff was contributorily negligent, and if the trial court rules that the defendant has made a
submissible case on any of these defenses, then appropriate language will need to be added to
this instruction. See, e.g., IPI 20.01.
If this instruction is given, IPI 105.07.01, defining informed consent, IPI 15.01, defining
proximate cause, and IPI 105.07.03, the informed consent burden of proof instruction, must also
be given.
Comment
Just as in all other negligence cases, the plaintiff must prove that the injury resulting from
Section 105, Page 16 of 26
the defendant's failure to make the required disclosure was proximately caused by the lack of
informed consent. Green v. Hussey, 127 Ill.App.2d 174, 262 N.E.2d 156 (1970). In addition,
Illinois follows the majority rule that, in informed consent cases, the plaintiff must also prove
that a reasonable person in plaintiff's position would have chosen another alternative if the
required disclosure had been made. Guebard v. Jabaay, 117 Ill.App.3d 1, 452 N.E.2d 751, 72
Ill.Dec. 498 (2d Dist.1983); St. Gemme v. Tomlin, 118 Ill.App.3d 766, 455 N.E.2d 294, 74
Ill.Dec. 264 (4th Dist.1983); Lowney v. Arciom, 232 Ill.App.3d 715, 597 N.E.2d 817, 173
Ill.Dec. 843 (3d Dist.1992).
This instruction may need to be modified in the situation where the medical procedure
involves some type of aesthetic cosmetic surgery. Zalazar v. Vercimak, 261 Ill.App.3d 250, 633
N.E.2d 1223, 199 Ill.Dec. 232 (3d Dist.1993) (subjective causation standard for cosmetic
surgery).
In informed consent cases, proof of causation may need to include expert testimony. St.
Gemme v. Tomlin, 118 Ill.App.3d 766, 455 N.E.2d 294, 74 Ill.Dec. 264 (4th Dist.1983).
See also the Comment to IPI 105.07.01.
Section 105, Page 17 of 26
105.07.03 Informed Consent--Burden Of Proof On The Issues--Professional Negligence-One Plaintiff And One Defendant
[Under Count ____,] The plaintiff has the burden of proving each of the following
propositions:
First, that the defendant failed to inform the plaintiff of those [risks of] [and] [or]
[alternatives to] the [describe the procedure performed] which a reasonably well-qualified [insert
appropriate medical professional] would have disclosed under the same or similar circumstances;
Second, that if the defendant had disclosed those [risks] [and] [or] [alternatives], a
reasonable person in the plaintiff's position would not have submitted to the [describe the
procedure performed].
Third, that the plaintiff was injured; and
Fourth, that the defendant's failure to disclose those [risks] [and] [or] [alternatives] was a
proximate cause of the plaintiff's injury.
If you find from your consideration of all the evidence that all of these propositions have
been proved, then your verdict should be for the plaintiff. On the other hand, if you find from
your consideration of all the evidence that any of these propositions has not been proved, then
your verdict should be for the defendant.
Notes on Use
This instruction should be used only for professional negligence cases based upon the
failure to obtain the informed consent of the plaintiff.
In most cases, the evidence will show that what should have been disclosed consisted of
the risks of the proposed treatment, alternatives to the proposed treatment, or both. However, if
the evidence shows that some other factor (i.e., the relative benefits or lack of benefits of
alternative treatments) should have been disclosed, then the instruction may be modified
accordingly.
If the defendant has alleged any affirmative defenses, or if the defendant claims that the
plaintiff was contributorily negligent, and if the trial court rules that the defendant has made a
submissible case on any of these defenses, then the last paragraph of this instruction should be
deleted and appropriate language added. See, e.g., the last two paragraphs of IPI B21.02
(contributory negligence).
If this instruction is given, IPI 105.07.01, defining informed consent, IPI 15.01, defining
proximate cause, and IPI 105.07.02, the informed consent issues instruction, must also be given.
Comment
See the Comments to IPI 105.07.01 and 105.07.02.
Section 105, Page 18 of 26
105.08 Ordinary Care--Duty To Follow Instructions--Submit To Treatment--Mitigation Of
Damages--Professional Negligence
A patient must exercise ordinary care to [seek treatment] [follow reasonable medical
(advice) (instructions)]. A physician is not liable for the consequences of a patient's failure to do
so. A patient's failure to use ordinary care in obtaining treatment or in following instructions
does not absolve the physician from any damages resulting from the physician's negligence. It
only absolves the physician from any damages caused by the patient's failure to exercise ordinary
care to [seek treatment] [follow reasonable medical (advice) (instructions)].
Notes on Use
This instruction applies only to those instances where the defendant claims that the
plaintiff has failed to mitigate his damages by failing to use ordinary care in not seeking
treatment or in not following the doctor's instructions concerning treatment. If this instruction is
given, also use IPI 10.02 (ordinary care), modified as appropriate.
Comment
Once an injury has occurred as a proximate result of medical negligence, the patient has a
continuing duty to follow the instruction of physicians in order to mitigate his damages. Haering
v. Spicer, 92 Ill.App. 449 (1900); Littlejohn v. Arbogast, 95 Ill.App. 605 (1901). A physician
will not be held liable for any injuries resulting from the patient's failure to follow instructions,
but the physician will continue to be responsible for the injury caused by his original
professional negligence. Wesley v. Allen, 235 Ill.App. 322 (4th Dist.1925); Krauss v. Ballinger,
171 Ill.App. 534 (1912).
This bar of recovery for additional injuries proximately caused by plaintiff's failure to
mitigate damages has been consistently recognized in cases not involving professional
negligence. Culligan Rock River Water Conditioning Co. v. Gearhart, 111 Ill.App.3d 254, 443
N.E.2d 1065, 66 Ill.Dec. 902 (2d Dist.1982). See IPI 33.01. Defendant must plead and prove
plaintiff's failure to mitigate damages. Nancy's Home of the Stuffed Pizza, Inc. v. Cirrincione,
144 Ill.App.3d 934, 494 N.E.2d 795, 98 Ill.Dec. 673 (1st Dist.1986).
It is important, of course, to distinguish between mitigation of damages and contributory
negligence. See Newell v. Corres, 125 Ill.App.3d 1087, 466 N.E.2d 1085, 81 Ill.Dec. 283 (1st
Dist.1984).
Section 105, Page 19 of 26
105.09 Res Ipsa Loquitur--Burden Of Proof--Professional Negligence--Where No Claim Of
Contributory Negligence
[Under Count ____,] The plaintiff has the burden of proving each of the following
propositions:
First: That [patient's name] was injured.
Second: That the injury [was received from] [occurred during] a [name of instrumentality
or procedure] which [was] [had been] under the defendant's [control] [management].
Third: That in the normal course of events, this injury would not have occurred if the
defendant had used a reasonable standard of professional care while the [name of instrumentality
or procedure] was under his [control] [management].
If you find that each of these propositions has been proved, the law permits you to infer
from them that the defendant was negligent with respect to the [instrumentality or procedure]
while it was under his [control] [management].
If you do draw such an inference, and if you further find that [patient's name]'s injury was
proximately caused by that negligence, your verdict should be for the plaintiff [under this
Count]. On the other hand, if you find that any of these propositions has not been proved, or if
you find that the defendant used a reasonable standard of professional care for the safety of
[patient's name] in his [control] [management] of the [instrumentality or procedure], or if you
find that the defendant's negligence, if any, was not a proximate cause of [patient's name]'s
injury, then your verdict should be for the defendant [under this Count].
[Whether the injury in the normal course of events would not have occurred if the
defendant had used a reasonable standard of professional care while the [instrumentality or
procedure] was under his [control] [management] must be determined from expert testimony
presented in this trial. You must not attempt to determine this question from any personal
knowledge you have.]
Notes on Use
Where the defendant charges contributory negligence, use IPI B105.09 in lieu of this
instruction.
Unlike the old versions of the res ipsa loquitur instructions, this instruction is now a
complete burden of proof instruction. This instruction must be given with IPI 21.01, which
defines the phrase “burden of proof.”
If the patient's/client's contributory negligence is an issue, IPI B21.07 should also be
given.
Use “had been” in the second element if the instrumentality was not under the defendant's
control at the time of the injury.
The bracketed final paragraph should not be used when the relevant res ipsa issue falls
within the common knowledge exception. In all other cases the paragraph must be used. See 735
ILCS 5/2-1113 (1994). See also Smith v. South Shore Hosp., 187 Ill.App.3d 847, 543 N.E.2d
868, 135 Ill.Dec. 300 (1st Dist.1989).
Section 105, Page 20 of 26
This instruction should only be given where res ipsa is raised in a professional negligence
case. In all other cases use IPI B22.01.
Comment
The doctrine of res ipsa loquitur is clearly applicable to medical negligence cases. The
doctrine that is applicable is the same as defined in Metz v. Central Illinois Elec. & Gas Co., 32
Ill.2d 446, 207 N.E.2d 305 (1965), and as incorporated in the present IPI res ipsa instructions,
IPI 22.01. Gatlin v. Ruder, 137 Ill.2d 284, 560 N.E.2d 586, 148 Ill.Dec. 188 (1990); Spidle v.
Steward, 79 Ill.2d 1, 402 N.E.2d 216, 37 Ill.Dec. 326 (1980). See also Edgar County Bank &
Trust Co. v. Paris Hosp., Inc., 57 Ill.2d 298, 312 N.E.2d 259 (1974); Borowski v. Von Solbrig,
60 Ill.2d 418, 328 N.E.2d 301 (1975); Alton v. Kitt, 103 Ill.App.3d 387, 431 N.E.2d 417, 59
Ill.Dec. 132 (4th Dist.1982). In Walker v. Rumer, 72 Ill.2d 495, 500; 381 N.E.2d 689, 691; 21
Ill.Dec. 362, 364 (1978), the supreme court stated that res ipsa was applicable in every
malpractice case where it is shown that the injury would not have happened had proper care been
used. The Walker court stated:
The requirement for the application of the doctrine of res ipsa loquitur is not that the
surgical procedure be “commonplace” or that the “average person” be able to understand
what is involved; the determination which must be made as a matter of law is whether
“the occurrence is such as in the ordinary course of things would not have happened” if
the party exercising control or management had exercised proper care. That
determination may rest either upon the common knowledge of laymen or expert
testimony.
There is no reason the doctrine would not also be applicable to other professionals
outside the medical area.
735 ILCS 5/2-622 (1994) provides that at the time of filing a professional negligence case
relying upon res ipsa loquitur, there must be filed a report from a reviewing health care
professional that professional negligence has occurred in the course of treatment. In addition,
there must be a certification that this doctrine is being relied upon. See DeLuna v. St. Elizabeth's
Hosp., 147 Ill.2d 57, 588 N.E.2d 1139, 167 Ill.Dec. 1009 (1992) (§2-622 held constitutional).
See Comment to IPI B22.01.
Section 105, Page 21 of 26
B105.09 Res Ipsa Loquitur--Burden Of Proof--Professional Negligence--Where
Contributory Negligence Is Claimed
[Under Count ____,] The plaintiff has the burden of proving each of the following
propositions:
First: That [patient's name] was injured.
Second: That the injury [was received from] [occurred during] a [name of instrumentality
or procedure] which [was] [had been] under the defendant's [control] [management].
Third: That in the normal course of events, this injury would not have occurred if the
defendant had used a reasonable standard of professional care while the [name of instrumentality
or procedure] was under his [control] [management].
[Whether the injury in the normal course of events would not have occurred if the
defendant had used a reasonable standard of professional care while the [instrumentality or
procedure] was under his [control] [management] must be determined from expert testimony
presented in this trial. You must not attempt to determine this question from any personal
knowledge you have.]
If you find that each of these propositions has been proved, the law permits you to infer
from them that the defendant was negligent with respect to [instrumentality or procedure] while
it was under his [control] [management].
If you do draw such an inference, and if you further find that [patient's name]'s injury was
proximately caused by that negligence, you must next consider the defendant's claim that
[patient's name] was contributorily negligent.
As to that claim, the defendant has the burden of proving each of the following
propositions:
First, that [patient's name] acted or failed to act in one of the ways claimed by the
defendant as stated to you in these instructions and that in so acting, or failing to act, [patient's
name] was negligent;
Second, that [patient's name]'s negligence was a proximate cause of his injury.
You must reach one of the following four verdicts (A, B, C, or D):
A:. If you have found that the defendant was negligent and that that negligence was a
proximate cause of plaintiff's injury, and if you further find that the defendant has not proved
both of the propositions required of him, then your verdict should be for the plaintiff [under this
Count] and you will not reduce the plaintiff's damages.
B:. If you have found that the defendant was negligent and that that negligence was a
proximate cause of plaintiff's injury, and if you further find that the defendant has proved both of
the propositions required of him, and if you further find that [patient's name]'s contributory
negligence was 50% or less of the total proximate cause of the injury or damage for which
recovery is sought, then your verdict should be for the plaintiff [under this Count] and you will
reduce the plaintiff's damages in the manner stated to you in these instructions.
C:. If you have found that the defendant was negligent and that that negligence was a
proximate cause of plaintiff's injury, and if you further find that the defendant has proved both of
the propositions required of him, and if you further find that [patient's name]'s contributory
negligence was greater than 50% of the total proximate cause of the injury or damage for which
recovery is sought, then your verdict should be for the defendant.
D:. If you find that any of the propositions required of the plaintiff has not been proved,
or if you find that the defendant used a reasonable standard of professional care for the safety of
Section 105, Page 22 of 26
[patient's name] in his [control] [management] of the [instrumentality or procedure], or if you
find that the defendant's negligence, if any, was not a proximate cause of [patient's name]'s
injury, then your verdict should be for the defendant [under this Count].
Notes on Use
This instruction should be used only if contributory negligence is claimed. If not, use IPI
105.09.
Unlike the old versions of the res ipsa loquitur instructions, this instruction is now a
complete burden of proof instruction. This instruction must be given with IPI 21.01, which
defines the phrase “burden of proof.” IPI B21.07 has been combined with this instruction, and
therefore B21.07 should not be given when this instruction is used.
Use “had been” in the second element if the instrumentality was not under the defendant's
control at the time of the injury.
The bracketed final paragraph should not be used when the relevant res ipsa issue falls
within the common knowledge exception. In all other cases the paragraph must be used. See 735
ILCS 5/2-1113 (1994). See also Smith v. South Shore Hosp., 187 Ill.App.3d 847, 543 N.E.2d
868, 135 Ill.Dec. 300 (1st Dist.1989).
This instruction should only be given where res ipsa is raised in a professional negligence
case. In all other cases use IPI B22.01.
Comment
The doctrine of res ipsa loquitur is clearly applicable to medical negligence cases. The
doctrine that is applicable is the same as defined in Metz v. Central Illinois Elec. & Gas Co., 32
Ill.2d 446, 207 N.E.2d 305 (1965), and as incorporated in the present IPI res ipsa instructions,
IPI B22.01. Gatlin v. Ruder, 137 Ill.2d 284, 560 N.E.2d 586, 148 Ill.Dec. 188 (1990); Spidle v.
Steward, 79 Ill.2d 1, 402 N.E.2d 216, 37 Ill.Dec. 326 (1980). See also Edgar County Bank &
Trust Co. v. Paris Hosp., 57 Ill.2d 298, 312 N.E.2d 259 (1974); Borowski v. Von Solbrig, 60
Ill.2d 418, 328 N.E.2d 301 (1975); Alton v. Kitt, 103 Ill.App.3d 387, 431 N.E.2d 417, 59 Ill.Dec.
132 (4th Dist.1982). In Walker v. Rumer, 72 Ill.2d 495, 500; 381 N.E.2d 689, 691; 21 Ill.Dec.
362, 364 (1978), the supreme court stated that res ipsa was applicable in every malpractice case
where it is shown that the injury would not have happened had proper care been used. The
Walker court stated:
The requirement for the application of the doctrine of res ipsa loquitur is not that the
surgical procedure be “commonplace” or that the “average person” be able to understand
what is involved; the determination which must be made as a matter of law is whether
“the occurrence is such as in the ordinary course of things would not have happened” if
the party exercising control or management had exercised proper care. That
determination may rest either upon the common knowledge of laymen or expert
testimony.
Section 105, Page 23 of 26
There is no reason the doctrine would not also be applicable to other professionals
outside the medical area.
735 ILCS 5/2-622 (1994) provides that at the time of filing a professional negligence case
relying upon res ipsa loquitur, there must be filed a report from a reviewing health care
professional that professional negligence has occurred in the course of treatment. In addition,
there must be a certification that this doctrine is being relied upon. See DeLuna v. St. Elizabeth's
Hosp., 147 Ill.2d 57, 588 N.E.2d 1139, 167 Ill.Dec. 1009 (1992) (§2-622 held constitutional).
See Comment to IPI B22.01.
Section 105, Page 24 of 26
105.10 Claims Based On Apparent Agency--Both Principal And Agent Sued--Principal
Sued Under Respondeat Superior Only--Medical Malpractice Actions--Reliance On
Principal Alleged
Under certain circumstances, the liability of a party may arise from an act or omission of
that party's apparent agent.
In the present case, [plaintiff's name] has sued [principal's name] as the principal and
[apparent agent's name] as [his] [her] [its] apparent agent. [principal's name] denies that any
apparent agency relationship existed.
In order for an apparent agency relationship to have existed, [plaintiff's name] must prove
the following:
First, that [principal's name] held [himself] [herself] [itself] out as a provider of [type of
care, e.g., complete emergency room care] and that [plaintiff's/decedent's name] neither knew
nor should have known that [apparent agent's name] was not an employee of [principal's name].
Second, that [plaintiff's/decedent's name] [or others] did not choose [apparent agent's
name] but relied upon [principal's name] to provide [type of care, e.g., complete emergency room
care].
If you find that [apparent agent's name] was the apparent agent of [principal's name] at
the time of the occurrence, and if you find that [apparent agent's name] is liable, then both
[defendant] and [defendant] are liable.
If you find that [apparent agent's name] is not liable, then neither [defendant] nor
[defendant] is liable for the acts of [apparent agent's name].
If you find that [apparent agent's name] is liable, but that [he] [she] [it] was not the
apparent agent of [principal's name] at the time of the occurrence, then [principal's name] is not
liable for the acts of [apparent agent's name].
Notes on Use
This instruction should be used where the issue of apparent agency is in dispute, the
principal and agent are sued in the same case, and plaintiff alleges reliance on a “holding out” by
the principal. If plaintiff alleges reliance on a “holding out” by an agent and “acquiescence” by
the principal, please refer to Gilbert v. Sycamore, 156 Ill.2d 511, 622 N.E.2d 788, 190 Ill.Dec.
758 (1993), for a discussion for the necessary elements. If there is a basis for liability against the
principal independent of apparent agency, this instruction should be modified accordingly or
replaced by other instructions.
This instruction is intended to apply where apparent agency is alleged relative to a
hospital or other such institutional provider. The instruction should not be used without
modification where apparent agency is alleged relative to a health maintenance organization or
health insurance provider. See Petrovich v. Share Health Plan of Illinois, 188 Ill.2d 17, 719
N.E.2d 756, 241 Ill.Dec. 627 (1999). Moreover, the instruction should not be used without
modification where apparent agency is alleged in contexts other than medical negligence. See
O'Banner v. McDonald's Corp., 173 Ill.2d 208, 670 N.E.2d 632, 218 Ill.Dec. 910 (1992).
The bracketed phrase “or others” in the instruction should be used where there is
evidence that a person or persons other than the plaintiff or the decedent relied upon the principal
Section 105, Page 25 of 26
to provide the medical care under consideration. Please refer to the Comment below for a
discussion of this issue.
If the issue of apparent agency is in dispute and the principal is sued alone, IPI 105.11
should be used.
Comment
This instruction reflects the opinion of the Illinois Supreme Court in Gilbert v. Sycamore,
156 Ill.2d 511, 622 N.E.2d 788, 190 Ill.Dec. 758 (1993). Gilbert set forth and explained the
elements necessary to establish apparent agency, namely, a “holding out” and “justifiable
reliance.” In Gilbert, the court further held that apparent agency cannot be established in
situations where a patient knew or should have known that the physician providing treatment was
not an agent or employee of the hospital. Id. at 524. In reaching its decision, the Gilbert court
referred to “two realities of modern hospital care”: first, that health care providers increasingly
hold themselves out to the public as providers of health care through their marketing efforts; and,
secondly, that patients have come to rely upon the reputations of hospitals in seeking health care.
Id.
The element of “holding out” is satisfied where it is proven that the principal acted in a
manner which would lead a reasonable person to conclude that the physician alleged to be
negligent was an agent or employee of the principal. Id.
The element of “justifiable reliance” is satisfied where there is reliance upon the hospital
to provide care, rather than upon a specific physician. Id. A pre-existing physician--patient
relationship will not preclude a claim by the patient of reliance upon the hospital. Malanowski v.
Jabamoni, 293 Ill.App.3d 720, 727; 688 N.E.2d 732, 738; 228 Ill.Dec. 34 (1st Dist.1997).
Although Gilbert involved an emergency room setting, the Gilbert analysis is not limited
to such situations. See, e.g., Malanowski v. Jabamoni, 293 Ill.App.3d 720, 688 N.E.2d 732, 228
Ill.Dec. 34 (1st Dist.1997) (applying Gilbert to an outpatient clinic situation).
In the absence of proof of actual reliance by plaintiff, several appellate decisions hold
that the element of justifiable reliance may be satisfied where there is reliance by those acting on
behalf of the plaintiff. See, e.g., Monti v. Silver Cross Hospital, 262 Ill.App.3d 503, 507-508;
637 N.E.2d 427, 201 Ill.Dec. 838 (3d Dist.1994) (emergency personnel brought patient to
hospital); Golden v. Kishwaukee Community Health Services, 269 Ill.App.3d 37, 46; 206
Ill.Dec. 314, 645 N.E.2d 319 (1st Dist.1994) (plaintiff brought to hospital at direction of
plaintiff's friends); Kane v. Doctors Hospital, 302 Ill.App.3d 755, 706 N.E.2d 71, 235 Ill.Dec.
811 (4th Dist.1999) (plaintiff's personal physician arranged for treatment at hospital); Scardina v.
Alexian Brothers Medical Center, 308 Ill.App.3d 359, 719 N.E.2d 1150, 241 Ill.Dec. 747 (1st
Dist.1999) (plaintiff's physician referred him to a hospital where he was seen by a radiologist).
But see, Butkiewicz v. Loyola University Medical Center, slip op. No. 1-98-2899 (1st Dist. Feb.
7, 2000) (disagreeing with Kane, distinguishing Monti, and finding that plaintiff's reliance on his
“trusted” physician did not constitute “justifiable reliance” as to the defendant hospital).
Section 105, Page 26 of 26
105.11 Claims Based On Apparent Agency--Principal Sued, But Not Agent--Principal Sued
Under Respondeat Superior Only--Medical Malpractice Actions--Reliance On Principal
Alleged
Under certain circumstances, the liability of a party may arise from an act or omission of
that party's apparent agent.
In the present case, [plaintiff's name] has sued [principal's name] as the principal.
[plaintiff's name] claims that [apparent agent's name] was the apparent agent of [principal's
name]. [principals' name] denies that any apparent agency relationship existed.
In order for an apparent agency relationship to have existed, [plaintiff's name] must prove
the following:
First, that [principal's name] held [himself] [herself] [itself] out as a provider of [type of
care, e.g., complete emergency room care] and that [plaintiff's/decedent's name] neither knew
nor should have known that [apparent agent's name] was not an employee of [principal's name].
Second, that [plaintiff's/decedent's name] [or others] did not choose [apparent agent's
name] but relied upon [principal's name] to provide [type of care, e.g., complete emergency room
care].
If you find that [apparent agent's name] was the apparent agent of [principal's name] at
the time of the occurrence, then any act or omission of [apparent agent's name] was the act or
omission of [principal's name], and [principal's name] is liable for the acts or omissions of
[apparent agent's name].
If you find that [apparent agent's name] was the apparent agent of [principal's name] at
the time of the occurrence, then any act or omission of [apparent agent's name] was the act or
omission of [principal's name], and [principal's name] is not liable for the acts or omissions of
[apparent agent's name].
Notes on Use
This instruction should be used where the issue of apparent agency is in dispute, the
principal alone is sued, and plaintiff alleges reliance upon a “holding out” on the part of the
principal. If plaintiff alleges reliance upon a “holding out” by the agent and “acquiescence” by
the principal, please see Gilbert v. Sycamore, 156 Ill.2d 511, 622 N.E.2d 788, 190 Ill.Dec. 758
(1993), for a discussion of the necessary elements. If there is a basis for liability against the
principal independent of apparent agency, this instruction should be modified accordingly or
replaced by other instructions. IPI 105.10 should be used where the issue of apparent agency is in
dispute and where the principal and agent are sued in the same case.
Comments
Please refer to the comment to IPI 105.10.
Section 110, Page 1 of 15
110.00
ANIMALS
PERMISSION TO PUBLISH GRANTED IN 2003
INTRODUCTION
This chapter contains instructions for cases involving the special common law and
statutory liability rules governing physical harm to persons or property caused by animals.
“Wild” or Inherently Dangerous Nondomestic Animals: Common Law Strict Liability
The owner or keeper of an animal which is not commonly domesticated is subject to
common law strict liability for injuries caused by that animal. Restatement (Second) of Torts
§507 (1977). The injury must be caused by a dangerous propensity which is characteristic of
such an animal, or of which the possessor has reason to know. Id. §507(2).
Although liability is strict, certain defenses are available--for example, the fact that the
plaintiff trespassed into the animal's presence (id. §511) or assumed the risk (id. §515), or when
the possessor was required by law to keep or transport the animal (id. §517).
In Illinois, it is now unlawful to possess a “dangerous animal,” defined as a “lion, tiger,
leopard, ocelot, jaguar, cheetah, margay, mountain lion, lynx, bobcat, jaguarundi, bear, hyena,
wolf or coyote, or any poisonous or life-threatening reptile,” and the fact that an attempt was
made to domesticate the animal is no defense. 720 ILCS 585/0.1-585/4 (1994). See People v.
Fabing, 143 Ill.2d 48, 570 N.E.2d 329, 155 Ill.Dec. 816 (1991).
Domestic Animals: Common Law Strict Liability
Illinois follows the general common law rule that the owner or keeper of a domestic
animal (most often dogs, cats, and horses or other livestock) is strictly liable for injuries caused
by the animal only if the plaintiff can show that the animal had an uncommon “mischievous” or
dangerous propensity to commit such an injury and that the owner had actual knowledge of that
propensity. Domm v. Hollenbeck, 259 Ill. 382, 385; 102 N.E. 782, 783 (1913); Forsyth v.
Dugger, 169 Ill.App.3d 362, 523 N.E.2d 704, 707, 119 Ill.Dec. 948, 951 (4th Dist.1988). Accord:
Restatement (Second) of Torts §509 (1977).
Domestic Animals: Statutory Strict Liability
By statute, Illinois has broadened the strict liability of owners and keepers of animals.
Section 16 of the Illinois Animal Control Act (510 ILCS 5/16 (1994)) provides:
If a dog or other animal,1without provocation, attacks or injures any person who
1 The statute, which originally applied only to dogs, was amended in 1973 to add the phrase “or
other animal.” A different section of the Act defines the term “animal” as “any animal, other than
Section 110, Page 2 of 15
is peaceably conducting himself in any place where he may lawfully be, the owner of
such dog or other animal is liable in damages to such person for the full amount of the
injury sustained.
“Owner” is defined as “any person2 having a right of property in a dog or other animal, or who
keeps or harbors a dog or other animal, or who has it in his care, or acts as its custodian, or who
knowingly permits a dog or other domestic animal to remain on or about any premise occupied
by him.” 510 ILCS 5/2.16 (1994).
The statute thus eliminates the requirement that the “owner” have prior knowledge of the
vicious or dangerous propensity of his animal. Steinberg v. Petta, 114 Ill.2d 496, 501 N.E.2d
1263, 103 Ill.Dec. 725 (1986). Under section 16, there are only four elements which the plaintiff
must prove: (1) injury caused by an animal “owned” by the defendant; (2) lack of provocation;
(3) peaceable conduct of the person injured; and (4) the presence of the injured person in a place
where he has a right to be. Robinson v. Meadows, 203 Ill.App.3d 706, 710; 561 N.E.2d 111, 113;
148 Ill.Dec. 805, 807 (5th Dist.1990).
Common law strict liability and section 16 of the Animal Control Act are concurrent
remedies; a plaintiff may seek recovery under either or both. Steichman v. Hurst, 2 Ill.App.3d
415, 275 N.E.2d 679 (1971); Reeves v. Eckles, 77 Ill.App.2d 408, 222 N.E.2d 530 (1966). While
there may be situations in which the plaintiff will need to rely on the common law remedy, in
most cases the statutory action will be preferred.
Provocation
Under both common law strict liability and section 16 of the Animal Control Act,
plaintiff's provocation of the animal will defeat liability. (At common law, provocation is a
defense; under section 16, plaintiff must prove his lack of provocation.) See Comment to IPI
110.04, infra.
Statutory Liability: Domestic Animals Running At Large
Another cause of action is created by the Domestic Animals Running At Large Act
(DARAL) (510 ILCS 55/1-55/5.1 (1994)):
No person or owner of livestock3 shall allow livestock to run at large in the State
man, which may be affected by rabies.” 510 ILCS 5/2.02 (1994). However, no court so far has
decided whether the term “animal” in section 16 is limited by this definition or whether it is allinclusive.
2 “Person” is defined to include any “person, firm, corporation, partnership, society, association
or other legal entity, any public or private institution, the State of Illinois, municipal corporation
or political subdivision of the State, or any other business unit.” 510 ILCS 5/2.17 (1994).
3 “Livestock” is defined as “bison, cattle, swine, sheep, goats, equidae, or geese.” 510 ILCS
Section 110, Page 3 of 15
of Illinois. All owners of livestock shall provide the necessary restraints to prevent such
livestock from so running at large and shall be liable in civil action for all damages
occasioned by such animals running at large; Provided, that no owner or keeper of such
animals shall be liable for damages in any civil suit for injury to the person or property of
another caused by the running at large thereof, without the knowledge of such owner or
keeper, when such owner or keeper can establish that he used reasonable care in
restraining such animals from so running at large.
510 ILCS 55/1 (1994). This statute applies only when grazing livestock escape from
confinement. Moore v. Roberts, 193 Ill.App.3d 541, 549 N.E.2d 1277, 140 Ill.Dec. 405 (4th
Dist.1990). Plaintiff must prove that (1) the owner had knowledge of the animal's escape, and (2)
the owner was negligent in constructing or maintaining the enclosure. Abadie v. Royer, 215
Ill.App.3d 444, 574 N.E.2d 1306, 1310; 158 Ill.Dec. 913, 917 (2d Dist.1991); O'Gara v. Kane,
38 Ill.App.3d 641, 348 N.E.2d 503 (5th Dist.1976); Guay v. Neel, 340 Ill.App. 111, 91 N.E.2d
151 (1st Dist.1950).
A typical case under this statute involves a horse or bovine that wanders onto a highway
and is struck by the plaintiff's vehicle.
This statute is construed as an exception to section 16 of the Animal Control Act. If the
DARAL applies, it is the exclusive remedy. Abadie v. Royer, 215 Ill.App.3d 444, 574 N.E.2d
1306, 158 Ill.Dec. 913 (2d Dist.1991); Zears v. Davison, 154 Ill.App.3d 408, 506 N.E.2d 1041,
107 Ill.Dec. 150 (3d Dist.1987); McQueen v. Erickson, 61 Ill.App.3d 859, 378 N.E.2d 614, 19
Ill.Dec. 113 (2d Dist.1978).
Strict Liability: Animals Entering Fenced Enclosure
A provision of the Fences Act (765 ILCS 130/1-130/21 (1994)) makes the owner of
certain animals (“horse, mule, ass, or any neat cattle, hogs or sheep, or other domestic animals”)
strictly liable for all damages caused when the animals break into plaintiff's “inclosure, the fence
being good and sufficient.” 765 ILCS 130/20 (1994).
Common Law Negligence Liability
Although it has been suggested that the foregoing remedies replace common law
negligence liability for injuries caused by a domestic animal (Forsyth v. Dugger, 169 Ill.App.3d
362, 523 N.E.2d 704, 707; 119 Ill.Dec. 948, 951 (4th Dist.1988), citing Beckert v. Risberg, 50
Ill.App.2d 100, 199 N.E.2d 811 (1st Dist.1964), rev'd on other grounds, 33 Ill.2d 44, 210 N.E.2d
207 (1965)), such an assertion is probably too broad. Forsyth and Beckert merely hold that a
common law negligence action requires an allegation that the owner had knowledge of the
animal's vicious propensity. Accord: Abadie v. Royer, 215 Ill.App.3d 444, 574 N.E.2d 1306, 158
55/1.1 (1994). This provision has been interpreted literally; thus, turkeys (McPherson v. James,
69 Ill.App. 337 (3d Dist.1897)) and ducks (Hamilton v. Green, 44 Ill.App.3d 987, 358 N.E.2d
1250, 3 Ill.Dec. 565 (2d Dist.1976)) are not included.
Section 110, Page 4 of 15
Ill.Dec. 913 (2d Dist.1991); see Domm v. Hollenbeck, 259 Ill. 382, 385; 102 N.E. 782, 783
(1913). Given the presumption that domestic animals are inherently harmless to humans, this
allegation will be essential to any negligence claim arising out of an animal's attack. Lucas v.
Kriska, 168 Ill.App.3d 317, 522 N.E.2d 736, 119 Ill.Dec. 74 (1st Dist.1988). Therefore, with the
addition of this limitation, one should be able to assert a negligence cause of action in addition
to, or in lieu of, common law or statutory strict liability claims for violence by domestic animals.
Id.
In addition, there is no apparent reason why a negligence claim could not be made with
respect to other types of injuries that happen to involve animals. See Ward v. Ondrejka, 5
Ill.App.3d 1068, 284 N.E.2d 470 (1st Dist.1972) (plaintiffs injured when auto struck steer on
highway; common law liability assumed, but no negligence proved); Abadie v. Royer, 215
Ill.App.3d 444, 574 N.E.2d 1306, 158 Ill.Dec. 913 (2d Dist.1991) (auto struck horse on highway;
plaintiff failed to show dangerous disposition of which defendant was aware); Hamilton v.
Green, 44 Ill.App.3d 987, 990; 358 N.E.2d 1250, 1252; 3 Ill.Dec. 565, 567 (2d Dist.1976)
(plaintiff injured chasing stray ducks; no liability).
Section 110, Page 5 of 15
110.01 Inherently Dangerous Or “Wild” Animal--Common Law Strict Liability
One who [keeps] [owns] a [e.g., bear] is liable for injury caused by that animal [unless
the person injured has deliberately provoked the animal] [, or] [unless the person injured,
knowing of the animal's propensity to violence, voluntarily exposed himself to injury].
Notes on Use
This instruction does not apply to ordinary domestic animals.
This instruction should be accompanied by appropriate issues and burden of proof
instructions.
Comment
Lions, tigers, bears and many other “wild” animals are inherently dangerous. The owner
of these types of animals is strictly liable for their acts which result in personal injury, provided
the injury results from the animal's inherently dangerous characteristic. Restatement (Second) of
Torts §507 (1977); Moss v. Pardridge, 9 Ill.App. 490, 491 (1st Dist.1881) (dictum). Probably a
person who provokes the injury cannot recover. See Comment to IPI 110.04 for a discussion of
provocation.
Under the Dangerous Animals Act, 720 ILCS 585/0.1-585/4 (1994), a dangerous animal
is defined as a “lion, tiger, leopard, ocelot, jaguar, cheetah, margay, mountain lion, lynx, bobcat,
jaguarundi, bear, hyena, wolf or coyote, or any poisonous or life-threatening reptile.” “Lifethreatening reptile” was held not to be unconstitutionally vague as to defendant's two 15-20 feet
long Burmese Pythons and his alligator. But as to defendant's seven-foot-long boa constrictor,
the court said that the statute was ambiguous and therefore unconstitutionally vague. People v.
Fabing, 143 Ill.2d 48, 570 N.E.2d 329, 155 Ill.Dec. 816 (1991).
Section 110, Page 6 of 15
110.02 Domestic Animal--Common Law Strict Liability
One who [keeps] [owns] an animal which he knows is vicious or dangerous to people is
liable to a person injured by the animal [unless the injured person did something a reasonable
person should have known was likely to provoke an attack by the animal] [, or] [unless the
injured person knew of an unusual characteristic of the animal and did something which a
reasonable person could reasonably expect to provoke an attack by that particular animal] [, or]
[unless the injured person voluntarily exposed himself to injury, either knowing the customary
nature of the animal or knowing the peculiar nature of this specific animal].
Notes on Use
This instruction deals with common law strict liability for harm caused by domestic
animals.
This cause of action may be combined with an action for strict liability under the Animal
Control Act (IPI 110.04). If both theories are submitted to the jury, this instruction should be
limited to a particular count.
The last bracketed phrase expresses the defense of primary assumption of risk. See
Comment to IPI 110.04.
This instruction should be accompanied by appropriate issues and burden of proof
instructions.
Comment
Knowledge of Animal's Dangerous Propensity. At common law, domestic animals
(dogs, cats, horses, cattle, sheep, etc.) are regarded as not inherently violent or dangerous to
humans. Therefore, absent knowledge that a particular domestic animal has a vicious propensity,
its owner is not liable for any injuries it may cause. However, once the owner has knowledge of
the animal's dangerousness, the owner is thereafter strictly liable for harm caused by that
propensity.
One is on notice that an animal is dangerous to others if that is a reasonable inference
from the facts, notwithstanding the fact that the animal has yet to attack or bite anyone. Gerulis
v. Lunecki, 284 Ill.App. 44, 45-47; 1 N.E.2d 440, 441 (1st Dist.1936) (an owner who bought a
dog to watch her property and kept the dog chained during the daytime indicated by these acts
awareness that it probably would bite humans); Steichman v. Hurst, 2 Ill.App.3d 415, 275
N.E.2d 679 (2d Dist.1971).
Provocation. Under common law strict liability, provocation is an affirmative defense.
The case law concerning provocation has largely developed under the Animal Control Act, and
therefore is discussed in that context. See Comment to IPI 110.04, infra.
Persons Liable. One who owns, possesses, or voluntarily assumes control of a domestic
animal becomes responsible for its actions. Ward v. Brown, 64 Ill. 307 (1872).
Section 110, Page 7 of 15
110.03 Domestic Animals Running At Large--Statutory Liability
An owner or keeper of an animal is liable in damages if his [e.g., horse] while running at
large caused the injury or damage complained of, unless the owner or keeper did not know his
animal was running at large and he used reasonable care in restraining it.
[A person is a “keeper” when he has the right to control the animal's movements or has
knowingly and voluntarily undertaken to control the animal's movements.]
[An animal is “running at large” only if it strays from confinement or restraint and from
the limits of the owner or keeper.]
Notes on Use
This instruction is based on a provision of the Domestic Animals Running At Large Act,
510 ILCS 55/1 (1994), which imposes liability for injuries and damages for allowing certain
animals to run at large. Cities and villages may regulate the running at large of animals, 65 ILCS
5/11-20-9 (1994). Therefore, this source should be checked before this instruction is given.
This instruction should be used in an action to recover damages caused by animals
grazing at pasture which are beyond the control and supervision of their keepers. Moore v.
Roberts, 193 Ill.App.3d 541, 549 N.E.2d 1277, 140 Ill.Dec. 405 (4th Dist.1990); Zears v.
Davison, 154 Ill.App.3d 408, 506 N.E.2d 1041, 107 Ill.Dec. 150 (3d Dist.1987). IPI 110.05
should be used when an animal breaks into an enclosure. IPI 110.02 (common law strict liability)
and/or IPI 110.04 (statutory strict liability) applies when the animal is not grazing or is under the
control of its owner or keeper. If, on the facts of the case, the Domestic Animals Running At
Large Act (510 ILCS 55/1 (1994)) applies, then it is the exclusive remedy. Abadie v. Royer, 215
Ill.App.3d 444, 574 N.E.2d 1306, 158 Ill.Dec. 913 (2d Dist.1991); Zears v. Davison, 154
Ill.App.3d 408, 506 N.E.2d 1041, 107 Ill.Dec. 150 (3d Dist.1987); McQueen v. Erickson, 61
Ill.App.3d 859, 378 N.E.2d 614, 19 Ill.Dec. 113 (2d Dist.1978).
The second (bracketed) paragraph should be used if there is a fact issue as to whether the
defendant qualifies as a “keeper” of the animal under the statutory definition added by P.A. 8428, effective January 1, 1986 (510 ILCS 55/1.1 (1994)) as interpreted by the courts. The new
statute defines an “owner” as “any person who (a) has a right of property in an animal, (b) keeps
or harbors an animal, (c) has an animal in his care, or (d) acts as custodian of an animal.” Since
the issue will usually arise in the context of a defendant who is not the actual owner of the
animal, the Committee has retained the term “keeper” to describe such persons.
The third (bracketed) paragraph should be used if there is an issue as to whether the
animal was restrained or confined when it escaped. P.A. 84-28, effective January 1, 1986, added
this definition of “running at large.” 510 ILCS 55/1.1 (1994).
This instruction should be accompanied by appropriate issues and burden of proof
instructions.
Comment
The statute upon which this instruction is based only prohibits certain kinds of animals
Section 110, Page 8 of 15
from running at large. Formerly, these were defined as “the species of horse, ass, mule, cattle,
sheep, goat, swine, or geese.” P.A. 84-28, effective January 1, 1986, made the statute applicable
to “livestock” and defined the term “livestock” as “bison, cattle, swine, sheep, goats, equidae, or
geese.” (“Equidae” is the family of which “equus” is the only surviving genus. “Equus”
comprises “horses, asses, zebras, and related ... animals . . . .” Webster's Third New
International Dictionary 769 (1981).)
In defining the animals to which it applies, the statute has been literally construed. Thus,
the statutory language does not encompass turkeys (McPherson v. James, 69 Ill.App. 337 (3d
Dist.1897)) or ducks (Hamilton v. Green, 44 Ill.App.3d 987, 358 N.E.2d 1250, 3 Ill.Dec. 565 (2d
Dist.1976)).
Keepers of horses or cows that escape their enclosure while grazing and wander into the
road causing damage or injury are subject to liability under the statute. McQueen v. Erickson, 61
Ill.App.3d 859, 378 N.E.2d 614, 19 Ill.Dec. 113 (2d Dist.1978); Zears v. Davison, 154 Ill.App.3d
408, 506 N.E.2d 1041, 107 Ill.Dec. 150 (3d Dist.1987).
Plaintiff makes out a prima facie case by proving that a grazing animal escaped its
enclosure and was running at large. Defendant can prevail only by showing that (1) he did not
then know that the animal had escaped, and (2) he exercised reasonable care to keep it confined.
While the prima facie case shifts the burden of going forward with the evidence to the defendant,
the burden of proof on all elements remains on the plaintiff. Abadie v. Royer, 215 Ill.App.3d
444, 574 N.E.2d 1306, 1310; 158 Ill.Dec. 913, 917 (2d Dist.1991); O'Gara v. Kane, 38
Ill.App.3d 641, 348 N.E.2d 503 (5th Dist.1976); Guay v. Neel, 340 Ill.App. 111, 91 N.E.2d 151
(1st Dist.1950).
Persons Liable. A defendant who lived on rented property and boarded horses was
considered a “keeper” of a horse that escaped and caused property damage when it was hit by a
car. Wakefield v. Kern, 58 Ill.App.3d 837, 374 N.E.2d 1074, 16 Ill.Dec. 299 (2d Dist.1978).
On the other hand, in Blakley v. Glass, 342 Ill.App. 90, 95 N.E.2d 128 (1st Dist.1950)
(abstract decision), the court held that a horse pastured in a host's enclosure during a social visit
did not make the host a keeper. In McEvoy v. Brown, 17 Ill.App.2d 470, 150 N.E.2d 652 (3d
Dist.1958), the court held that releasing and feeding a dog staked on a host's premises by guests
did not make the host a keeper. In Gahm v. Cave, 194 Ill.App.3d 954, 551 N.E.2d 779, 141
Ill.Dec. 592 (3d Dist.1990), a calf escaped onto the defendant's property while being unloaded
from the owner's trailer. The court held that the defendant was not a keeper under the statute
because control and ownership of the calf remained with the calf owner during the unloading
process. Accord, Ward v. Ondrejka, 5 Ill.App.3d 1068, 284 N.E.2d 470 (1st Dist.1972). In Smith
v. Gleason, 152 Ill.App.3d 346, 504 N.E.2d 240, 105 Ill.Dec. 371 (2d Dist.1987), the court held
that a complaint against a landowner under the statute was properly dismissed because he was
not an owner or keeper of the animal. The landowner merely rented property to another who
boarded horses as a business. Similarly, the owner of premises leased to another for pasture was
not a “keeper” under the Act. Heyen v. Willis, 94 Ill.App.2d 290, 236 N.E.2d 580 (4th
Dist.1968).
Section 110, Page 9 of 15
The statute did not apply when a horse broke through a racetrack enclosure at a county
fair and ran through the crowd injuring plaintiff. Moore v. Roberts, 193 Ill.App.3d 541, 549
N.E.2d 1277, 140 Ill.Dec. 405 (4th Dist.1990). Nor did the statute apply when plaintiff, while
riding defendant's horse, was killed by a cement truck when plaintiff lost control of the horse and
it ran into the road. Chittum v. Evanston Fuel & Material Co., 92 Ill.App.3d 188, 416 N.E.2d 5,
48 Ill.Dec. 110 (1st Dist.1980). However, the court in Abadie v. Royer, 215 Ill.App.3d 444, 574
N.E.2d 1306, 158 Ill.Dec. 913 (2d Dist.1991), using language rejecting Chittum, held that the
statute applied when the defendants' horse escaped from the barn and ran into the path of the
plaintiff's car.
Section 110, Page 10 of 15
110.04 Liability Of Owner Or Keeper Of A Dog Or Other Animal--Statutory Strict
Liability
The law provides that [the owner of an animal] [a person keeping an animal] [a person
harboring an animal] [a person who knowingly permits an animal to remain on or about any
premise occupied by that person] is liable in damages for injuries sustained from any attack or
injury by the animal on a person peacefully conducting [himself] [herself] in a place where [he]
[she] may lawfully be [unless that person (or another) provoked the animal] [or] [unless that
person (or another) knew of the presence of the animal and of the unusual and dangerous nature
of the animal and provoked it].
[The term “provoked” means any action or activity, whether intentional or unintentional,
which would reasonably be expected (to cause a normal animal in similar circumstances to react
in a manner similar to that shown by the evidence) (or) (to cause an animal with an unusual and
dangerous nature to react in a manner similar to that shown by the evidence).]
Instruction revised June 2009.
Notes on Use
This instruction incorporates 510 ILCS 5/16 (1994). An action under this statute may be
brought in the alternative with an action under the common law as embodied in IPI 110.02.
Steichman v. Hurst, 2 Ill.App.3d 415, 275 N.E.2d 679 (2d Dist.1971); Reeves v. Eckles, 77
Ill.App.2d 408, 222 N.E.2d 530 (2d Dist.1966).
This instruction should be used in an action to recover for injuries caused by animals
other than those inherently dangerous. It does not apply to actions for injuries or damages caused
by a grazing animal which is beyond the control and supervision of its keeper. In such a case, the
Domestic Animals Running At Large Act (see IPI 110.03) is an exception to liability under the
Animal Control Act.
This instruction should be accompanied by appropriate issues and burden of proof
instructions. The second paragraph, and the references to “provocation” in the first paragraph,
should be used only in cases where provocation is an issue.
Comment
Attack or Injury. The statute states that the owner is liable when the animal “attacks or
injures” any person. The courts have interpreted that language to mean that an “attack” (an
aggressive violent action) by the animal is not required. Any action which results in injury is
covered by the statute. Chittum v. Evanston Fuel & Material Co., 92 Ill.App.3d 188, 416 N.E.2d
5, 48 Ill.Dec. 110 (1st Dist.1980) (horse bolted and ran into road, rider killed). The Animal
Control Act is applicable when a dog is in the road and causes a wreck. Kirchgessner v. Tazewell
County, 162 Ill.App.3d 510, 516 N.E.2d 379, 114 Ill.Dec. 224 (3d Dist.1987); Taylor v. Hull, 7
Ill.App.3d 218, 287 N.E.2d 167 (5th Dist.1972); cf. Aldridge v. Jensen, 124 Ill.App.2d 444, 259
N.E.2d 355 (3d Dist.1970) (dog owner subject to liability under Act when plaintiff injured in fall
from bicycle while being chased by defendant's dog). In Moore v. Roberts, 193 Ill.App.3d 541,
Section 110, Page 11 of 15
549 N.E.2d 1277, 140 Ill.Dec. 405 (4th Dist.1990), an action under the Animal Control Act was
allowed when a racehorse broke out of the track and ran through the crowd injuring the plaintiff.
In Ross v. Ross, 104 F.R.D. 439 (N.D.Ill.1984), the court said that recovery was available when
the defendant's poodle excitedly greeted the plaintiff, knocking her down and causing her injury.
And in McEvoy v. Brown, 17 Ill.App.2d 470, 150 N.E.2d 652 (3d Dist.1958), a dog's owner was
liable when the dog ran between the plaintiff's legs, causing her to fall.
However, when an animal is a passive causal force it cannot be the proximate cause of
injuries if it stands or lies still or moves away from the plaintiff in a usual, predictable manner
known to the plaintiff. King v. Ohren, 198 Ill.App.3d 1098, 556 N.E.2d 756, 145 Ill.Dec. 138
(1st Dist.1990). In King, the plaintiff (a domestic employee) was denied recovery for injuries
sustained when she spilled boiling water as she stepped over defendant's dog which had been
following her around the kitchen. In Bailey v. Bly, 87 Ill.App.2d 259, 231 N.E.2d 8 (4th
Dist.1967), a dog owner was not liable for injuries sustained when the plaintiff tripped over the
dog as it lay on the front porch steps. In Partipilo v. DiMaria, 211 Ill.App.3d 813, 570 N.E.2d
683, 156 Ill.Dec. 207 (1st Dist.1991), the plaintiff, who had fallen down a staircase after being
frightened by defendants' dog, was denied recovery because it was “impossible for defendants'
dog to attack or injure plaintiff” as the dog was in defendants' home, behind a locked gate, where
it could not escape.
Assumption of Risk. The Illinois Supreme Court has held that the statute does not apply
to the ordinary risks inherent in horseback riding, of which an experienced rider is presumed to
be aware. Harris v. Walker, 119 Ill.2d 542, 519 N.E.2d 917, 116 Ill.Dec. 702 (1988). This form
of assumption of risk is sometimes referred to as the primary form of implied assumption of risk.
See IPI 13.00. Other examples of such primary assumption of risk include Malott v. Hart, 167
Ill.App.3d 209, 521 N.E.2d 137, 138; 118 Ill.Dec. 69, 70 (3d Dist.1988) (experienced cattleman
assumed known risk that cattle had normal propensity to trample people on occasion); Clark v.
Rogers, 137 Ill.App.3d 591, 484 N.E.2d 867, 92 Ill.Dec. 136 (4th Dist.1985) (trained,
experienced horsewoman assumed known risks of normal propensities of stallion); Vanderlei v.
Heideman, 83 Ill.App.3d 158, 403 N.E.2d 756, 38 Ill.Dec. 525 (2d Dist.1980) (professional
horseshoer assumed known risk of being kicked by horse being shod). However, in Guthrie v.
Zielinski, 185 Ill.App.3d 266, 541 N.E.2d 178, 133 Ill.Dec. 341 (2d Dist.1989), the court,
emphasizing the absence of a contractual or employment relationship between the parties,
declined to apply the doctrine of implied assumption of risk to defendants' daughter who merely
entered their home unannounced with knowledge of their dog's unfriendly attitude toward her.
Express assumption of risk is also an available defense under this statute. Harris v.
Walker, 119 Ill.2d 542, 519 N.E.2d 917, 116 Ill.Dec. 702 (1988).
This instruction does not include either form of assumption of risk. If assumption of risk
is an issue, a separate instruction will be necessary. As to implied assumption of risk, see IPI
13.00.
Provocation. The provocation element of the Animal Control Act is not an affirmative
defense. The burden is on the plaintiff to prove that there was no provocation. Stehl v. Dose, 83
Ill.App.3d 440, 403 N.E.2d 1301, 38 Ill.Dec. 697 (3d Dist.1980); Sobotta v. Carlson, 65
Section 110, Page 12 of 15
Ill.App.3d 752, 382 N.E.2d 855, 22 Ill.Dec. 465 (3d Dist.1978).
Whether plaintiff has sustained his burden of proof on lack of provocation under the
statute is a question of fact. In Guthrie v. Zielinski, 185 Ill.App.3d 266, 541 N.E.2d 178, 133
Ill.Dec. 341 (2d Dist.1989), the case was remanded for a factual determination of whether
daughter's unannounced entry into her parents' home was provocation for the dog to attack her
when it was known that the dog disliked her. In Steichman v. Hurst, 2 Ill.App.3d 415, 275
N.E.2d 679 (2d Dist.1971), it was not provocation for a 180 pound mail carrier to spray “Halt” at
a ten pound dog that was advancing toward her. A jury found that the plaintiff did not sustain his
burden of proof in Stehl v. Dose, 83 Ill.App.3d 440, 403 N.E.2d 1301, 38 Ill.Dec. 697 (3d
Dist.1980), when he was attacked by a German Shepherd after entering the dog's territory and
kneeling within the perimeter of its chain while it was eating. Other provocation cases include
McEvoy v. Brown, 17 Ill.App.2d 470, 150 N.E.2d 652 (3d Dist.1958) (untying and feeding dog
not provocation); Messa v. Sullivan, 61 Ill.App.2d 386, 209 N.E.2d 872 (1st Dist.1965) (stepping
off elevator and walking toward apartment door not provocation); Siewerth v. Charleston, 89
Ill.App.2d 64, 231 N.E.2d 644 (1967) (boys pushing and kicking dog which is recuperating from
an injury is provocation); and Keightlinger v. Egan, 65 Ill. 235, 238 (1872) (unjustifiably kicking
a dog is provocation).
The prior version of this instruction provided that a plaintiff could not recover by reason
of “provocation” if “that person knew of the presence of an animal and did something a
reasonable person should have known would be likely to provoke” the animal. Kirkham v. Will,
311 Ill.App.3d 787, 724 N.E.2d 1062, 244 Ill.Dec. 174 (5th Dist.2000) noted that provocation is
to be measured with respect to how a “normal” animal would react to an alleged act of
provocation. Kirkham held that the prior version of this instruction did not correctly state the law
in view of the absence of a definition of “provocation” which defined provocation with respect to
the conduct of a “normal” animal. The Kirkham court further noted that the provoking act need
not be intentional in character, as explained below. The prior version of the instruction has been
modified to reflect the Kirkham opinion, and also to accommodate the factual possibility,
discussed below, that someone other than the injured party may have committed the act of
provocation.
The bracketed material referring to “an animal with an unusual and dangerous nature” is
supported by Sections 509 and 515 of the Restatement of Torts, Second. Section 509 provides
for liability on the part of a possessor of a domestic animal that the possessor “knows or has
reason to know has dangerous propensities abnormal to its class.” Section 515 states that in those
situations, the general rule is that a plaintiff's contributory negligence is not a defense. Section
515 further provides that a plaintiff's contributory negligence “in knowingly and unreasonably
subjecting himself to the risk that ... an abnormally dangerous domestic animal will do harm” is a
defense to a strict liability claim. Although there are no known Illinois cases on this point, the
bracketed material adapts “provocation” to a situation involving a domestic animal that is known
to have an abnormally dangerous nature.
Unintentional provocation falls within the meaning of the statute. A Dalmatian scratched
a child plaintiff in the eye after the plaintiff stepped on dog's tail while playing “Crack the
Whip.” The court said that the dog's act was not out of proportion to the unintentional act
Section 110, Page 13 of 15
involved, and therefore defendant was not liable. Nelson v. Lewis, 36 Ill.App.3d 130, 344
N.E.2d 268 (5th Dist.1976). See also Stehl v. Dose, 83 Ill.App.3d 440, 403 N.E.2d 1301, 38
Ill.Dec. 697 (3d Dist.1980), discussed above. However, in Robinson v. Meadows, 203 Ill.App.3d
706, 561 N.E.2d 111, 148 Ill.Dec. 805 (5th Dist.1990), the court overturned a jury verdict for the
defendants because a child's screaming at the excited barking of a dog was not sufficient
provocation for the brutal attack that resulted.
The injured party does not have to be the provocateur. In Forsyth v. Dugger, 169
Ill.App.3d 362, 523 N.E.2d 704, 119 Ill.Dec. 948 (4th Dist.1988), summary judgment for the
defendant was upheld when the plaintiff was injured after defendant's pony bolted under a tree
limb after a third party jumped onto its back. See also Siewerth v. Charleston, 89 Ill.App.2d 64,
231 N.E.2d 644 (1967) (plaintiff's playmate also kicked dog).
“Place Where He Has a Right to Be.” An owner of property who provides a path or
walk from the public way to his door, without some indication (sign, posting of notice, or words)
warning away those who seek lawful business with him extends a license to use the path or walk
during the ordinary hours of the day. A person who uses the path or walk is a licensee, and
therefore is in a “place where he may lawfully be” within the meaning of the statute. Smith v.
Pitchford, 219 Ill.App.3d 152, 579 N.E.2d 24, 161 Ill.Dec. 767 (5th Dist.1991) (8-year-old
child); Dobrin v. Stebbins, 122 Ill.App.2d 387, 259 N.E.2d 405 (1st Dist.1970) (17-year-old
magazine salesman). See also Messa v. Sullivan, 61 Ill.App.2d 386, 209 N.E.2d 872 (1st
Dist.1965) (dog warning sign inadequate). And where plaintiff had her own key and regularly
visited her parents' home unannounced, she was held to be lawfully on the premises. Guthrie v.
Zielinski, 185 Ill.App.3d 266, 541 N.E.2d 178, 133 Ill.Dec. 341 (2d Dist.1989).
However, the defendant may be able to prevail by showing that the plaintiff was in an
area closed to the public, or that a warning (such as signs or the dog's presence) was given to the
victim before the incident. Frostin v. Radick, 78 Ill.App.3d 352, 397 N.E.2d 208, 210, 33 Ill.Dec.
875, 877 (1st Dist.1979).
“Owner.” Although the statute places liability upon the animal's “owner,” that term is
defined to include not only persons having a right of property in the animal but also one who
“keeps” or “harbors” it, or who has it in his “care,” or acts as its “custodian,” or “knowingly
permits [it] to remain on or about any premise occupied by him.” 510 ILCS 5/2.16 (1994).
A defendant is not a “harborer” of a dog when he is an absentee landlord who merely
allows a tenant to keep a dog. Steinberg v. Petta, 114 Ill.2d 496, 501 N.E.2d 1263, 103 Ill.Dec.
725 (1986). However, a plaintiff who agreed to board and care for a dog could not recover when
the dog attacked her because she fell within the definition of “owner” under the statute.
Wilcoxen v. Paige, 174 Ill.App.3d 541, 528 N.E.2d 1104, 124 Ill.Dec. 213 (3d Dist.1988). In
Thompson v. Dawson, 136 Ill.App.3d 695, 483 N.E.2d 1072, 91 Ill.Dec. 586 (4th Dist.1985), the
appellate court sustained the trial court's factual determination that the act of feeding and
watering a stray dog until it could be taken to the animal shelter or placed in a home did not
make the defendants “owners” under the statute. However, in Kirchgessner v. Tazewell County,
162 Ill.App.3d 510, 516 N.E.2d 379, 114 Ill.Dec. 224 (3d Dist.1987), the court held that a county
animal shelter acting as a “keeper” of a dog falls within the definition of an “owner.”
Section 110, Page 14 of 15
When the owner of a horse (or his employee) takes custody of the horse to ride it, the
owner of the property on which the horse is being boarded is, during the time the employee has
custody, no longer within the definition of “owner.” Clark v. Rogers, 137 Ill.App.3d 591, 484
N.E.2d 867, 92 Ill.Dec. 136 (4th Dist.1985).
See also the cases discussed in the Comment to IPI 110.03 (Domestic Animals Running
At Large Act).
Section 110, Page 15 of 15
110.05 Animals Breaking Into A Fenced Enclosure--Statutory Strict Liability
At the time of this occurrence there was in force in the State of Illinois a statute which
provides if a [e.g., cow] breaks into any person's inclosure, the fence being good and sufficient,
the [e.g., cow]'s owner is liable to the [owner] [occupier] of the property for all damages caused
by the entry.
Notes on Use
This instruction is based on a provision of the Fence Act, 765 ILCS 130/20 (1994). It is
distinguished from IPI 110.03 (Domestic Animals Running At Large Act) in that this instruction
may be used when a domesticated animal breaks into an enclosure separated by a division fence.
Under the DARAL, no such breaking is necessary, but there are other requirements.
This instruction should be accompanied by appropriate issues and burden of proof
instructions.
Comment
In Hart v. Meredith, 196 Ill.App.3d 367, 553 N.E.2d 782, 784; 143 Ill.Dec. 75, 77 (3d
Dist.1990), the court held that “a livestock owner is strictly liable under the Fence Law if his
livestock enters a landowner's property enclosed with a good and sufficient fence.” The Fence
Act specifically provides that it does not require a landowner to construct a fence in order to
maintain an action for injuries done by animals running at large. Therefore, if the landowner
chooses not to construct a fence, the animal's owner may still be liable if the landowner can
prove the requirements of the Domestic Animals Running At Large Act (see IPI 110.03). But if
the landowner does have a fence, then the Fence Act provides a broader remedy.
The Fence Act has no application to outside fences; it is applicable only between the
owners of adjoining lands. McKee v. Trisler, 311 Ill. 536, 143 N.E. 69 (1924); Smith v. Gleason,
152 Ill.App.3d 346, 504 N.E.2d 240, 105 Ill.Dec. 371 (2d Dist.1987). The Fence Act imposes a
duty to erect a division line fence by adjoining owners. Id.
Section 115, Page 1 of 2
115.00
ULTRAHAZARDOUS ACTIVITIES
115.01 Ultrahazardous Activities--Strict Liability
When a person carries on an ultrahazardous activity such as [e.g., blasting], he is liable
for any [injury] [property damage] proximately caused by that activity regardless of the amount
of care used [except to one who has actual knowledge of the dangers involved and (voluntarily
participates in the activity) (or) (voluntarily exposes himself to the dangers)].
Notes on Use
There is no Illinois case law as to whether the doctrine of strict liability for
ultrahazardous activities applies to trespassers. See Restatement (Second) of Torts §520B (1977)
(does not apply to intentional or negligent trespassers; no opinion as to whether doctrine applies
to those who trespass accidentally, inadvertently, or by innocent mistake).
The bracketed phrase should be used if the court rules that the common-law defense of
assumption of risk is applicable. See Restatement (Second) of Torts §523 (1977). As to whether
this is a complete bar to recovery or is only a damage-reducing factor, the Committee expresses
no opinion.
Comment
Use of explosives is the typical example of an ultrahazardous activity. Opal v. Material
Serv. Corp., 9 Ill.App.2d 433, 133 N.E.2d 733 (1st Dist.1956); Hadraba v. Sanitary Dist. of
Chicago, 309 Ill.App. 577, 33 N.E.2d 627 (1st Dist.1941) (abstract opinion); Baker v. S.A. Healy
Co., 302 Ill.App. 634, 24 N.E.2d 228 (1st Dist.1939); City of Joliet v. Harwood, 86 Ill. 110
(1877); Fitzsimons & Connell Co. v. Braun, 199 Ill. 390, 65 N.E. 249 (1902). In Clark v. City of
Chicago, 88 Ill.App.3d 760, 410 N.E.2d 1025, 43 Ill.Dec. 892 (1st Dist.1980), the court held
that, as a matter of law, the demolition of a five-story building within the city of Chicago was an
inherently dangerous activity for which the city should be held absolutely liable. See also
Chicago & N.W. R. Co. v. Hunerberg, 16 Ill.App. 387 (1st Dist.1885) (train derailed and struck
plaintiff's house); Indiana I. & I. R. Co. v. Hawkins, 81 Ill.App. 570 (2d Dist.1899) (fire escaped
from defendant's right-of-way onto plaintiff's property).
The United States Court of Appeals for the Seventh Circuit held that determining what
activity is “abnormally dangerous”4 is a matter of law to be decided by the court, and that
placing acrylonitrile in a rail shipment that will pass through a metropolitan area does not subject
the shipper to strict liability. Indiana Harbor Belt R. Co. v. Am. Cyanamid Co., 916 F.2d 1174
(7th Cir.1990). Neither does manufacturing polychlorinated biphenyls (PCBs) constitute an
abnormally dangerous activity. City of Bloomington v. Westinghouse Electric Corp., 891 F.2d
611 (7th Cir.1989) (applying Indiana law, but stated as being no different from Illinois law). The
Illinois Appellate Court held that the “plaintiff had failed to allege sufficient facts showing that
4 The Restatement (Second) of Torts uses the phrase “abnormally dangerous” in place of the
more traditional term “ultrahazardous.” The Committee has kept the latter term, which was used
in previous editions.
Section 115, Page 2 of 2
storing containers of highly flammable solid and liquid chemicals in the subject warehouse was
an abnormally dangerous activity.” Continental Bldg. Corp. v. Union Oil Co., 152 Ill.App.3d
513, 504 N.E.2d 787, 105 Ill.Dec. 502 (1st Dist.1987). A trampoline is not an abnormally
dangerous instrumentality nor is its use an abnormally dangerous activity. Fallon v. Indian Trail
School, 148 Ill.App.3d 931, 500 N.E.2d 101, 102 Ill.Dec. 479 (2d Dist.1986). In Anderson v.
Marathon Petroleum Co., 801 F.2d 936 (7th Cir.1986), the court held that sandblasting was not
an abnormally dangerous activity because the plaintiff had failed to show that people engaged in
sandblasting cannot prevent a serious risk of injury by taking precautions. The manufacture and
sale of handguns is not an ultrahazardous activity. Riordan v. Int'l Armament Corp., 132
Ill.App.3d 642, 477 N.E.2d 1293, 87 Ill.Dec. 765 (1st Dist. 1985); Martin v. Harrington &
Richardson, Inc., 743 F.2d 1200 (7th Cir.1984). The Martin court stated, “plaintiff's attempt to
impose strict liability for engaging in an ultrahazardous activity upon the sale of a nondefective
product is unprecedented in Illinois . . . .” 743 F.2d at 1203. Both the Martin and Riordan courts
stated that it was the use or misuse of the handgun that constitutes the ultrahazardous activity.
Traditionally, plaintiff's assumption of the risk of the activity has been regarded as a
complete defense. Restatement (Second) of Torts §523 (1977). In Nat'l Bank of Bloomington v.
City of Lexington, 138 Ill.App.3d 805, 486 N.E.2d 967, 93 Ill.Dec. 434 (4th Dist.1985), the court
held that the trial court's granting of the city's summary judgment motion was in error because
reasonable minds might differ as to whether plaintiff was participating (along with the city's
independent contractor) in the allegedly ultrahazardous activity of felling a tree. (This issue as to
whether the felling of the tree was an ultrahazardous activity was not before the reviewing court.)
Contributory negligence traditionally has not been a defense. Restatement (Second) of
Torts §524 (1977).
See generally Restatement (Second) of Torts ch. 21 (1977); Prosser & Keeton on Torts
ch. 13 (5th ed. 1984); Burke, Rylands v. Fletcher in Illinois, 22 Chi. Kent L. Rev. 103
(1944).
Section 120, Page 1 of 25
OWNERS AND OCCUPIERS OF LAND
120.00
PREMISES
PERMISSION TO PUBLISH GRANTED IN 2004.
INTRODUCTION
Over the past several years the committee has been working on streamlining the jury
instructions and working to reduce redundancy. It was the committee's belief that one area of
redundancy was the wording of the issues and burden of proof instructions. By combining these
two instructions, the committee felt that redundancy would be reduced.
The premises instruction(s) are the first series to incorporate the new format of combined
issue and burden of proof instructions.
Further, the effects of the jury's finding have been removed from the issues/burden of
proof instruction and have been segmented into different components depending upon the state of
the pleadings. Rather than have the committee try and draft instructions for every possible
permutation or combination of affirmative defense, counter-claim, cross-claim or third-party
claim, the “effects of finding” have been broken into their individual components and can be
combined by the attorney as the parties appear before the court. Sample combinations to illustrate
how the components go together are shown in IPI 128.04.
Under Illinois law, the duty owed by an owner or occupier of land to a third person
depends upon that person's legal status. Prior to September 12, 1984, the effective date of the
Premises Liability Act, 740 ILCS 130/1 et seq., non-trespassing visitors on land were divided
into two categories, licensees and invitees. Section 2 of the Act abolished this distinction, as
follows:
§2. The distinction under the common law between invitees and licensees as to
the duty owed by an owner or occupier of any premises to such entrants is abolished.
The duty owed to such entrants is that of reasonable care under the circumstances
regarding the state of the premises or acts done or omitted on them.
The Act applies to occurrences on and after September 12, 1984, and is not retroactive. Lorek v.
Hollenkamp, 144 Ill.App.3d 1100, 495 N.E.2d 679, 681-82, 99 Ill.Dec. 232, 233-34 (2d
Dist.1986); Grimwood v. Tabor Grain Co., 130 Ill.App.3d 708, 474 N.E.2d 920, 922-23, 86
Ill.Dec. 6, 8-9 (3d Dist.1985). The Act does not change the legal duty owed trespassers (§3) or
users of certain recreational facilities (§4) as defined by 740 ILCS 130/1-130/5 (1994). Invitees
become trespassers when they exceed the scope of the invitation. Cockerell v. Koppers Indus.,
Inc., 281 Ill.App.3d 1099, 1104, 667 N.E.2d 676, 680, 217 Ill.Dec. 587 (1st Dist.1996) (workers
Section 120, Page 2 of 25
strayed from the intended area); Briney v. Ill. Ctr. R.R. Co., 401 Ill. 181, 188, 190, 81 N.E.2d 866
(1948) (no invitation from caboose crew to boys to throw railroad switches).
Genaust v. Ill. Power Co., 62 Ill.2d 456, 343 N.E.2d 465 (1976), adopted §343 of the
Restatement (Second) of Torts as the law governing landowner liability for negligence. The
Restatement provides that a land possessor is liable for conditions of the land only if he:
(1) Knows or in the exercise of reasonable care would discover the condition and
should realize that the condition involves an unreasonable risk of harm to those on the
land, and
(2) Should expect that such persons will not discover or realize the danger, or will
fail to protect themselves against it, or
(3) Fails to exercise reasonable care to protect those lawfully on this land.
See also Sollami v. Eaton, 201 Ill.2d 1, 772 N.E.2d 215, 265 Ill.Dec. 177 (2002); Longnecker v.
Ill. Power Co., 64 Ill.App.3d 634, 381 N.E.2d 709, 713-14, 21 Ill.Dec. 382, 385-87 (5th
Dist.1978); Chapman v. Foggy, 59 Ill.App.3d 552, 375 N.E.2d 865, 16 Ill.Dec. 758 (5th
Dist.1978).
As a general rule, a landowner has no duty to warn of open and obvious conditions.
Genaust v. Ill. Power Co., supra (electricity); Bucheleres v. Chi. Park Dist., 171 Ill.2d 435, 665
N.E.2d 826, 216 Ill.Dec. 568 (1996) (body of water); Sepesy v. Archer Daniels Midland Co., 97
Ill.App.3d 868, 423 N.E.2d 942, 53 Ill.Dec. 273 (4th Dist.1981) (trucks poised on an inclined
ramp). Whether a particular condition on defendant's property served as sufficient notice of its
presence so as to be “open and obvious” may present a question of fact. Am. Nat'l Bank & Trust
Co. of Chi. v. Nat'l Adver. Co., 149 Ill.2d 14, 594 N.E.2d 313, 171 Ill.Dec. 461; Simmons v. Am.
Drug Stores, Inc., 329 Ill.App.3d 38, 768 N.E.2d 46, 263 Ill.Dec. 286 (1st Dist.2002); Pullia v.
Builders Square, Inc., 265 Ill.App.3d 933, 939, 638 N.E.2d 688, 693, 202 Ill.Dec. 820 (1st
Dist.1994). In Ward v. Kmart Corp., 136 Ill.2d 132, 147-48, 554 N.E.2d 223, 320, 143 Ill.Dec.
288 (1990), the Supreme Court rejected a “per se” open and obvious rule and adopted an
exception described in Restatement (Second) of Torts, §343A. Under this “distraction exception,”
if the owner has reason to suspect that guests or workers may not appreciate the danger because
they are distracted or preoccupied, the owner has a duty of reasonable care. In Ward, carrying a
large mirror distracted the plaintiff, preventing him from seeing a concrete post located near a
doorway. Ward, 136 Ill.2d at 135-39. In Deibert v. Bauer Bros. Constr. Co., Inc., 141 Ill.2d 430,
433, 488, 566 N.E.2d 239, 240, 243, 152 Ill.Dec. 552 (1990), the Supreme Court applied the
distraction exception to circumstances in which the plaintiff had failed to look at the ground he
was walking on. In Menough v. Woodfield Gardens, 296 Ill.App.3d 244, 249, 694 N.E.2d 1038,
1042, 230 Ill.Dec. 760 (1st Dist.1998), the exception applied where playing basketball distracted
the plaintiff from seeing the protruding base supporting the basket.
The second exception described in Restatement (Second) of Torts §343A, is the
“deliberate encounter” exception. A duty to warn of an open and obvious danger exists where the
owner may reasonably expect the person to encounter the danger, if the advantages of proceeding
outweigh the apparent risk. The standard used is that of a reasonable person in the same position
Section 120, Page 3 of 25
as the possessor of the premises. LaFever v. Kemlite Co., 185 Ill.2d 380, 391, 396, 706 N.E.2d
441, 448, 450, 235 Ill.Dec. 886 (1998). The plaintiff in LaFever slipped on debris near a
dumpster on the defendant's property, despite the fact that he knew the materials near the
dumpster posed a hazard. His job entailed emptying the dumpster, necessitating that he encounter
the waste. LaFever, 185 Ill.2d at 386. Unless one of these exceptions is found to apply, the law
does not impose a duty to warn of open and obvious dangers. Sollami v. Eaton, 201 Ill.2d 1, 772
N.E.2d 215, 265 Ill.Dec. 177 (2002).
The “notice” requirement of Restatement §343 has long been recognized in Illinois. The
property owner or occupier must have either “actual” or “constructive” notice of the dangerous
condition to impose liability. Sparling v. Peabody Coal Co., 59 Ill.2d 491, 322 N.E.2d 5, 9-10
(1974); Perminas v. Montgomery Ward & Co., 60 Ill.2d 469, 328 N.E.2d 290 (1975). Without
evidence that the owner knew or should have discovered the condition had he exercised ordinary
care, liability cannot be imposed. Kostecki v. Pavlis, 140 Ill.App.3d 176, 488 N.E.2d 644, 646,
94 Ill.Dec. 645, 647 (1st Dist.1986); Hresil v. Sears Roebuck & Co., 82 Ill.App.3d 1000, 403
N.E.2d 678, 38 Ill.Dec. 447 (1st Dist.1982); Clarke v. Rural Electric Convenience Coop. Co.,
110 Ill.App.3d 259, 442 N.E.2d 278, 280-81, 66 Ill.Dec. 6, 8-9 (4th Dist.1982).
Case law departs from the “notice” requirement of Restatement §343 when the plaintiff
shows, through direct or circumstantial evidence, that the dangerous condition arose from the
defendant's acts or as part of his business. Reed v. Walmart Stores, Inc., 298 Ill.App.3d 712, 233
Ill.Dec. 111, 700 N.E.2d 212 (4th Dist.1998). In Reed, the court indicated that an action may be
based upon either ordinary negligence or premises liability-or both. In determining that the
plaintiff in Reed was not required to prove notice, the court stated that “plaintiffs are masters of
their complaint and are entitled to proceed under whichever theory they decide, so long as the
evidence supports such a theory.” Id. at 717-18 see also Piper v. Moran's Enters., 121 Ill.App.3d
644, 652, 459 N.E.2d 1382, 77 Ill.Dec. 133 (5th Dist.1984) (grocery patron fell after catching her
foot in the slats of a pallet while trying to reach a carton of soda stacked at its rear); Donoho v.
O'Connell's, 13 Ill.2d 113, 122, 148 N.E.2d 434 (1958) (slip and fall involving a piece of grilled
onion at a restaurant); Rutzen v. Pertile, 172 Ill.App.3d 968, 979, 527 N.E.2d 603, 123 Ill.Dec.
140 (2d Dist.1988) (foot went through board on pier used by boating patrons of supper club). In
such cases, the landowner owes a duty of exercising ordinary care for the safety of those lawfully
on his property. Piper v. Moran's Enters., supra; Rutzen v. Pertile, supra; Donoho v. O'Connell's,
Inc., supra.
An owner owes no duty to a trespasser for the condition of the premises, until the
trespasser's presence on the land is either known or should be known, after which the owner has a
duty not to cause injury willfully or wantonly. Morgan v. N.Y. Cent. R.R., 327 Ill. 339, 344, 158
N.E. 724, 726 (1927). If, however, the property owner knew or should have known that an
artificial condition on his property presented a risk of death or serious bodily injury, and if the
owner knew of, or had reason to anticipate, the presence of trespassers in dangerous proximity to
the hazard, then the property owner had a duty to exercise ordinary care to warn of the condition.
Lee v. Chi. Transit Auth., 152 Ill.2d 432, 605 N.E.2d 493, 178 Ill.Dec. 699 (1992) (applying the
Restatement (Second) of Torts §337). In addition, if the owner knew or should have known that
the trespasser was in a position where the owner's activities could endanger the trespasser, then
the owner has a duty of ordinary care to avoid injuring others from those activities. Votava v.
Section 120, Page 4 of 25
Material Serv. Corp., 74 Ill.App.3d 208, 392 N.E.2d 768, 771-72, 30 Ill.Dec. 113, 116-17 (2d
Dist.1979).
A final area is the landowner or occupier's potential liability for injury to trespassing
children. Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836 (1955), rejected imposing
strict liability on landowners under the common law doctrine of “attractive nuisance,” and in its
place recognized a negligence cause of action based upon the foreseeability of risk to children on
the premises and the relative expense in remedying dangerous conditions. Such actions could be
maintained regardless of whether the injured child was lawfully on the premises. See IPI 120.10.
Later cases continue to recognize that the duty owed to children is essentially a negligence
concept and has based liability on the foreseeability of injury to children. Corcoran v. Village of
Libertyville, 73 Ill.2d 316, 325-26, 383 N.E.2d 177, 22 Ill.Dec. 701 (1978); Mt. Zion State Bank
& Trust v. Consol. Commc'ns, Inc., 169 Ill.2d 110, 660 N.E.2d 863, 214 Ill.Dec. 156 (1995). The
landowner has no duty, however, to protect children from obvious risks that they would be
expected to appreciate and avoid. Cope v. Doe, 102 Ill.2d 278, 286, 464 N.E.2d 1023, 80 Ill.Dec.
40 (1984) (thin ice on a pond); Mt. Zion, 169 Ill.2d at 120, 660 N.E.2d at 870, 214 Ill.Dec. at 165
(an above ground pool); Logan v. Old Enter. Farms, Ltd., 139 Ill.2d 229, 241, 564 N.E.2d 778,
784, 151 Ill.Dec. 323 (1990) (climbing a tree); Bucheleres v. Chi. Park Dist., 171 Ill.2d 435, 455,
665 N.E.2d 826, 216 Ill.Dec. 568 (1996) (diving into a large body of water with fluctuating water
levels and bottom composition). Where a child is harmed not by the owner, but by the acts of
another trespasser, ordinary negligence rules apply. Mt. Zion, 169 Ill.2d at 124.
This chapter deals only with the liability of the owner or occupier of land for conditions
on his premises. It can be used in conjunction with the instruction on liability for falls on snow
and ice. (IPI 125.01).
Section 120, Page 5 of 25
120.01 Trespasser--Definition
A trespasser is a person who goes upon the premises of another without express or
implied right. [A person can become a trespasser by going (beyond an area where he/she was
invited) (into an area where he/she was not invited).]
Notes on Use
For trespassing children, refer to IPI 120.05 and IPI 120.10, as well as the Comment
below.
Use the bracketed section if there is an issue concerning the scope of the invitation or the
right of the plaintiff to go beyond a limited area. If there is an issue as to the scope of the
invitation or permission, refer to IPI 120.06 in addition to this instruction.
Comment
A trespasser is one who enters the premises of another without permission, or without
express or implied invitation. Restatement (Second) of Torts §329 (1965); Ill. Cent. R.R. Co. v.
Eicher, 202 Ill. 556, 560, 67 N.E. 376, 378 (1903); Grimwood v. Tabor Grain Co., 130 Ill.App.3d
708, 711-12, 474 N.E.2d 920, 922, 86 Ill.Dec. 6, 8-9 (3d Dist.1985). The court in Trout v. Bank
of Belleville, 36 Ill.App.3d 83, 87, 343 N.E.2d 261 (5th Dist.1976), cited IPI 120.01 and defined
“trespasser” as one who enters property “without permission, invitation, or other right, and
intrudes for some purpose of his own, or at his convenience, or merely as an idler.” Trout v. Bank
of Belleville, 36 Ill.App.3d 83, 87, 343 N.E.2d 261, 264-65 (5th Dist.1976) (citing 62 Am. Jur.
2d, Premises Liability (1972) and IPI). A trespasser is also someone who, after being invited
upon the premises, goes to another area beyond the scope of the invitation. Cockrell v. Koppers
Indus., Inc., 281 Ill.App.3d 1099, 1104, 667 N.E.2d 676, 680, 217 Ill.Dec. 587 (1st Dist.1996)
(workers straying from the intended worksite are trespassers). Whether a person is a trespasser or
someone lawfully on the premises is a question for the jury. Eshoo v. Chi. Transit Auth., 309
Ill.App.3d 831, 836, 723 N.E.2d 339, 343, 243 Ill.Dec. 307 (1st Dist.1999) (finding a jury should
determine whether a fare-paying passenger, who left an “el” platform to urinate on the tracks,
was a trespasser).
Lee v. Chi. Transit Auth., 152 Ill.2d 432, 605 N.E.2d 493, 178 Ill.Dec. 699 (1992),
provides an exception that changes an owner's duty to a trespasser. Prior to Lee, a landowner or
occupier owed a trespasser the duty of not willfully or wantonly causing injury. Marcovitz v.
Hergenrether, 302 Ill. 162, 167, 134 N.E. 85, 88, (1922); Votava v. Material Serv. Corp., 74
Ill.App.3d 208, 212, 392 N.E.2d 768, 771, 30 Ill.Dec. 113 (2d Dist.1979). Lee altered this
traditional rule, by imposing a duty of ordinary care to trespassers who are known or should be
known to the owner. The Illinois Supreme Court reached this decision through the following
analysis. The Restatement (Second) of Torts §337 imposes liability on owners for highly
dangerous, artificial conditions, which endanger known trespassers. For a duty of ordinary care to
apply under §337, the owner or occupier must know, or have reason to know, of the trespasser's
presence. The Restatement defines “reason to know,” in §12, as having “information from which
a person of reasonable intelligence ... would infer that the fact in question exists.” Lee, 152 Ill.2d
Section 120, Page 6 of 25
at 448. The Lee court determined that the record showed reasonable anticipation by the CTA of a
trespasser's presence, therefore an ordinary duty of care applied. Id. at 449, 452. The court noted
that §337, comment a, did not render the “reason to know” requirement inapplicable. In support,
the court turned to an Arizona Supreme Court case, Webster v. Culbertson, 158 Ariz. 159, 761
P.2d 1063 (1988) (barbed wire stretched across land used by trespassing equestrians). Webster,
158 Ariz. at 161. The Webster court determined that the “actual notice” requirement of comment
a did not trump the “reason to know” requirement of §337. Id. The result was that, as the Lee
court noted, “the [Webster court] placed a duty to warn on a person who maintains a dangerous
artificial condition when the person is aware of the possibility that others will come into
dangerous proximity of the condition.” Lee, 152 Ill.2d at 451.
An owner's duty to trespassing children is somewhat unique. Illinois rejects strict liability
under the “attractive nuisance” doctrine and instead places a duty on the landowner or occupier
based upon the foreseeability of risk to the trespassing child. See IPI 120.10; Restatement
(Second) of Torts §339 (1965); Kahn v. James Burton Co., 5 Ill.2d 614, 622, 126 N.E.2d 836,
840 (1955); Corcoran v. Village of Libertyville, 73 Ill.2d 316, 325-26, 383 N.E.2d 177, 180, 22
Ill.Dec. 701 (1978); Mt. Zion State Bank & Trust v. Consol. Commc'ns, Inc., 169 Ill.2d 110, 116,
120, 660 N.E.2d 863, 868, 869, 214 Ill.Dec. 156 (1995). The landowner has no duty, however, to
protect trespassing children from obvious risks they would be expected to appreciate and avoid.
See, e.g., Mt. Zion, 169 Ill.2d at 120, 660 N.E.2d at 870, 214 Ill.Dec. at 165 (an above ground
pool).
Policemen, firemen and other public officials, entering the premises in their official
capacity, are not considered trespassers and are owed a duty of ordinary care as to the condition
of the premises. Dini v. Naiditch, 20 Ill.2d 406, 417, 170 N.E.2d 881 (1960); Fancil v. Q.S.E.
Foods, Inc., 60 Ill.2d 552, 556-57, 328 N.E.2d 538, 540-41 (1975) (applying Restatement
(Second) of Torts §§345, 343 (1965)); Horn v. Urban Inv. & Dev. Co., 166 Ill.App.3d 62, 66, 519
N.E.2d 489, 491, 116 Ill.Dec. 597 (2d Dist.1988). The “fireman's rule,” however, absolves the
owner of liability, where the owner owes no duty to the fireman or policeman for the fire or
criminal activity necessitating their presence on the premises. These are viewed as inherent risks
of those occupations. Washington v. Atlantic Richfield Co., 66 Ill.2d 103, 108, 361 N.E.2d 282,
285, 5 Ill.Dec. 143 (1976); Court v. Grzelinski, 72 Ill.2d 141, 379 N.E.2d 281, 19 Ill.Dec. 617
(1978). The fireman's rule subsumes the deliberate encounter exception outlined in LaFever v.
Kemlite Co., 185 Ill.2d 380, 706 N.E.2d 441, 235 Ill.Dec. 886 (1998) as the nature of a fireman's
job is deliberately to encounter certain dangers that are known to them to be inherent in their job.
Smithers v. Ctr. Point Props. Corp., 318 Ill.App.3d 430, 741 N.E.2d 1152, 251 Ill.Dec. 974 (1st
Dist. 2000). An owner or possessor protected by the fireman's rule owes no duty to the plaintiff
and may not be liable, even potentially, for the plaintiff's injury or wrongful death. Vroegh v. J &
M Forklift, 165 Ill.2d 523, 531, 651 N.E.2d 121, 126, 209 Ill.Dec. 193 (1995). The Second
District in Zimmerman v. Fasco Mills Co., 302 Ill.App.3d 308, 704 N.E.2d 949, 35 Ill.Dec. 376
(2d Dist.1998) found that the fireman's rule does not protect an owner from a risk that is
unreasonable and unknown to the firefighter and held the fireman's rule inapplicable to the
specific facts of the case. In Hedberg v. Mendino, 218 Ill.App.3d 1087, 1090-91, 579 N.E.2d
398, 399, 161 Ill.Dec. 850 (2d Dist.1991), the Second District declined to extend the fireman's
rule to a situation where a police officer tripped on a broken sidewalk while responding to a call
Section 120, Page 7 of 25
about a prowler. The Second District noted that the police officer was injured by a cause
independent of the emergency he was investigating. Hedberg, 218 Ill.App.3d at 1093.
Section 120, Page 8 of 25
120.02 Duty To An Adult Lawfully On The Property--Condition Of Property
It was the duty of [defendant's name], as an (owner) (occupier) (other) of the property in
question, to exercise ordinary care to see that the property was reasonably safe for the use of
those lawfully on the property.
Notes on Use
This instruction is to be used if the injury is to an adult lawfully on the premises. Use this
instruction if the injury was caused by the condition of the premises. This instruction should also
be used if the injury was caused by the condition of property owned or occupied by a local public
entity. See Wojdyla v. City of Park Ridge, 209 Ill.App.3d 290, 293, 568 N.E.2d 144, 145, 154
Ill.Dec. 144 (1st Dist.1991). If the plaintiff is alleging an activity of the owner caused the injury,
use the appropriate instructions for a negligence case. See Reed v. Wal-Mart Stores, Inc., 298
Ill.App.3d 712, 700 N.E.2d 212, 233 Ill.Dec. 111 (4th Dist.1998).
This instruction and IPI 120.03 should be combined in three paragraphs if there is a
question of fact as to whether the plaintiff was a trespasser. Begin with this instruction, IPI
120.02, and add IPI 120.03 as the second and third paragraphs. IPI 120.01, the definition of a
trespasser, should also be given.
Comment
The Illinois Supreme Court adopted §343 of the Restatement (Second) of Torts governing
landowner liability for negligence in Genaust v. Illinois Power Co., 62 Ill.2d 456, 343 N.E.2d
465 (1976). The Restatement provides that a land possessor is liable for conditions of the land if
he fails to exercise reasonable care to protect those lawfully on the land. However, as a general
rule, a landowner has no duty to warn of open and obvious conditions. Sepesy v. Archer Daniels
Midland Co., 97 Ill.App.3d 868, 423 N.E.2d 942, 53 Ill.Dec. 273 (4th Dist.1981). Whether or not
a condition is open and obvious may present a question of fact. Am. Nat'l Bank & Trust Co. of
Chi. v. Nat'l Adver. Co., 149 Ill.2d 14, 594 N.E.2d 313, 171 Ill.Dec. 461 (1992); Simmons v.
Am. Drug Stores, Inc., 329 Ill.App.3d 38, 768 N.E.2d 46, 263 Ill.Dec. 286 (1st Dist.2002); Pullia
v. Builders Square, Inc., 265 Ill.App.3d 933, 939, 638 N.E.2d 688, 202 Ill.Dec. 820 (1st
Dist.1994). There are two exceptions to the open and obvious rule: the “distraction exception”
set forth in Ward v. Kmart Corp., 136 Ill.2d 132, 147-48, 554 N.E.2d 223, 143 Ill.Dec. 288
(1990), and the “deliberate encounter exception” set forth in LaFever v. Kemlite Co., 185 Ill.2d
380, 391, 706 N.E.2d 441, 235 Ill.Dec. 886 (1998). Under the “distraction exception,” if the
owner has reason to suspect that guests or workers may not appreciate the danger because they
are distracted or preoccupied, the owner has a duty of reasonable care. In Ward, carrying a large
mirror distracted the plaintiff, preventing him from seeing a concrete post located near a
doorway. Ward, 136 Ill.2d at 135-39. In Deibert v. Bauer Bros. Constr. Co., Inc., 141 Ill.2d 430,
433, 566 N.E.2d 239, 240, 243, 152 Ill.Dec. 552 (1990), the court applied the distraction
exception to circumstances in which the plaintiff had failed to look at the ground he was walking
on. In Menough v. Woodfield Gardens, 296 Ill.App.3d 244, 249, 694 N.E.2d 1038, 1042, 230
Ill.Dec. 760 (1st Dist.1998), the exception applied where playing basketball distracted the
Section 120, Page 9 of 25
plaintiff from seeing the protruding base supporting the basket. Under the deliberate encounter
exception outlined in LaFever, a landowner has a duty to warn of an open and obvious danger
where the landowner may reasonably expect a reasonable person to encounter the danger given
that the advantages of proceeding outweigh the apparent risk. The standard used for the
reasonable expectation is that of a reasonable person in the same position as the possessor of the
premises. LaFever at 396.
Section 120, Page 10 of 25
120.03 Duty To Adult Trespasser--Condition Of Property
It was the duty of [defendant's name], as an (owner) (occupier) (other) of the property in
question, to refrain from willful and wanton conduct which would endanger the safety of (a)
trespasser(s) on the property.
[However, if [defendant's name], knew of, or reasonably should have anticipated, the
presence of [a] trespasser(s) where a condition on [defendant's name] property presented a risk of
death or serious bodily injury and that the trespasser(s) would not discover or realize the risk
involved, then [defendant's name] had a duty to exercise ordinary care to warn of that condition.]
Notes on Use
This instruction is to be used if the injury is to an adult trespasser on the landowner's
premises. The last bracketed sentence should be used when there is an issue of negligently failing
to warn a trespasser. See Comment below.
If the trespasser is a child, use IPI 120.05 and IPI 120.1.
Comment
A trespasser is one who enters the premises of another without permission or without
express or implied invitation or one who goes beyond the scope of his invitation onto the
premises. While a landowner or occupier does not owe a duty to a trespasser to see that the
premises are safe for his use, (See Marcovitz v. Hergenrether, 302 Ill. 162, 167, 134 N.E. 85, 8788 (1922); Smith v. Goldman, 53 Ill.App.3d 632, 368 N.E.2d 1052, 11 Ill.Dec. 444 (2d
Dist.1977), a landowner or occupier owes a duty to trespassers to refrain from willful and wanton
conduct. Bofman v. Material Serv. Corp., 125 Ill.App.3d 1053, 1064, 466 N.E.2d 1064, 1072-73,
82 Ill.Dec. 262, 270-71 (1st Dist.1984). If, however, a property owner knew or should have
known that an artificial condition on his property presented a risk of death or serious bodily
injury, and if the owner knew of or had reason to anticipate the presence of trespassers in
dangerous proximity to the hazard, then the property owner had a duty to exercise ordinary care
to warn of the condition. Lee v. Chi. Transit Auth., 152 Ill.2d 432, 605 N.E.2d 493, 178 Ill.Dec.
699 (1992), applying the Restatement (Second) of Torts §337. For a duty of ordinary care to
apply under §337 of the Restatement (Second) of Torts, the landowner or occupier must know, or
have reason to know of the trespasser's presence. As the Lee Court noted, “reason to know” is
defined under the Restatement as having “information from which a person of ‘reasonable
intelligence would infer that the fact in question exists.’ ” Lee 152 Ill. 2d at, 448. Policemen,
firemen, and other public officials entering premises in their official capacity are not considered
trespassers and are owed a duty of ordinary care as to the condition of the premises. Dini v.
Naiditch, 20 Ill.2d 406, 417, 170 N.E.2d 881 (1960); Fancil v. Q.S.E. Foods, Inc., 60 Ill.2d 552,
556-57, 328 N.E.2d 538, 540-41 (1975) (applying Restatement (Second) of Torts §§345, 343
(1965)); Horn v. Urban Inv. & Dev. Co., 166 Ill.App.3d 62, 66, 519 N.E.2d 489, 491, 116
Ill.Dec. 597 (2d Dist.1988). Given that the nature of a fireman's job is to deliberately encounter
certain dangers that are known to them to be inherent in their job, landowners owe no duty to
Section 120, Page 11 of 25
firemen as to the hazards inherent in fire fighting. Smithers v. Ctr. Point Props. Corp., 318
Ill.App.3d 430, 741 N.E.2d 1152, 251 lll.Dec. 974 (1st Dist.2000).
Section 120, Page 12 of 25
120.04 Duty To Children Lawfully On Property--Condition Of Property
It was the duty of [defendant's name], as an (owner) (occupier) (other) of the property in
question, to exercise ordinary care to see that the property was reasonably safe for the use of
children lawfully on the property.
Notes on Use
This instruction is to be used if the injury is to a non-trespassing child on the premises. In
addition to this instruction, use IPI 120.08. The duty stated here is the same as IPI 120.02, which
applies to all persons lawfully on the premises. The purpose of this instruction is to distinguish
between the duty to trespassing children and the duty to children lawfully on the premises.
If the child is a trespasser, use IPI 120.05 and IPI 120.10.
Comment
Ordinary negligence concepts are used in a case involving children lawfully on the
property.
Section 120, Page 13 of 25
120.05 Duty To Trespassing Children--Condition Of Property
If [defendant's name], an as (owner) (occupier) (other) of the property in question knew of
or reasonably should have anticipated the presence of [a child] [children] near a condition on
[defendant's name] property which presented a risk of injury which children would not
appreciate, and where the expense or inconvenience of remedying the condition is slight
compared to the risk, then the (owner) (occupier) (other) has a duty to remedy the condition or
protect children from injury resulting from the condition.
Notes on Use
Use IPI 120.10 in addition to this instruction for injury caused by condition of property to
trespassing children. Combine the appropriate instructions from the 128.20 series. If contributory
negligence is an issue, use IPI 128.02 and the appropriate instruction from the 11 series; if there
is no issue of contributory negligence, use IPI 128.01.
Comment
The duty owed to a trespassing child injured as a result of a condition of a landowner's or
occupier's property was outlined in Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836
(1955). In Kahn, the Illinois Supreme Court departed from the traditional strict liability
“attractive nuisance” doctrine imposed upon landowners and occupiers of property, and instead,
recognized a negligence cause of action based upon the foreseeability of risk to children on the
premises and the relative expense in remedying dangerous conditions. The court in Mt. Zion
State Bank & Trust v. Consol. Commc'ns, Inc., 169 Ill.2d 110, 660 N.E.2d 863, 214 Ill.Dec. 156
(1995), said that the attractive nuisance doctrine, although abandoned, retained utility in
analyzing duty. The court held: “That an attraction or allurement existed on the land is significant
insofar as it indicates that the trespass should have been anticipated.” Mt. Zion, 169 Ill.2d at 118.
Illinois case law, following Kahn, embraced the principle that a duty owed to trespassing children
is essentially a negligence concept based upon the foreseeability of injury to children balanced
against the relative expense in remedying dangerous conditions. Corcoran v. Village of
Libertyville, 73 Ill.2d 316, 325-26, 383 N.E.2d 177, 22 Ill.Dec. 701 (1978); Mt. Zion State Bank
& Trust v. Consol. Commc'ns, Inc., supra. However, a landowner's liability to a trespassing child
is not absolute. A landowner or occupier has no duty to protect trespassing children from obvious
risks that a child would be expected to appreciate and avoid. Cope v. Doe, 102 Ill.2d 278, 286,
464 N.E.2d 1023, 80 Ill.Dec. 40 (1984) (thin ice on a pond); Mt. Zion, 169 Ill.2d at 120 (an above
ground pool); Logan v. Old Enter. Farms, Ltd., 139 Ill.2d 229, 241, 564 N.E.2d 778, 784, 151
Ill.Dec. 323 (1990) (climbing a tree); Bucheleres v. Chi. Park Dist., 171 Ill.2d 435, 455, 665
N.E.2d 826, 216 Ill.Dec. 568 (1996) (diving into a large body of water with fluctuating water
levels and bottom composition).
Section 120, Page 14 of 25
120.06 Duty To Persons On Premises--Scope Of Invitation--Condition Of Premises
It was the duty of defendant, [defendant's name], as an (owner) (occupier) (other) of the
property in question, to exercise ordinary care to see that the property was reasonably safe for the
use of those lawfully on the property. [That duty extends only to the portion of the premises onto
which the person has either expressly or impliedly (been invited) (or) (been given permission) to
use (or) to that portion the (owner) (occupier) (other) might reasonably expect him to use in
connection with the (invitation) (permission) (and) only to that manner of use which the (owner)
(occupier) might reasonably expect in connection with the express or implied (invitation) (or)
(permission)].
[However, if [plaintiff's name], was on a portion of the premises to which he was not
expressly or impliedly (invited) (or) (permitted) (or) which the (owner) (or) (occupant) would not
reasonably expect him to use in connection with the (invitation) (or) (permission) (or) was using
the premises for a purpose other than that for which he was (invited) (or) (permitted) (or) (for
which the (owner) (occupier) might reasonably have expected him to use the premises), then it
was the duty of the defendant to refrain from willful and wanton conduct which would endanger
the safety of the plaintiff.]
Notes on Use
If there is no issue as to the scope of the invitation or permission, use IPI 120.02 instead
of this instruction.
The second sentence should be used only where there is a dispute as to whether plaintiff
was in an area beyond the scope of his express or implied permission at the time of the
occurrence. The last part of the bracketed phrase should be used only when there is an issue of
whether the plaintiff's manner of use of the premises exceeded the express or implied permission.
The entire bracketed sentence in the first paragraph can be used if scope of invitation and manner
of use are disputed.
In the alternative, the last bracketed paragraph should be used only if plaintiff has pled
that defendant was guilty of willful and wanton conduct toward a trespassing plaintiff.
Comment
A trespasser is one who enters the premises of another without permission or without
express or implied invitation. Restatement (Second) of Torts §329 (1965); Ill. Cent. R.R. Co. v.
Eicher, 202 Ill. 556, 560, 67 N.E. 376, 378 (1903); Grimwood v. Tabor Grain Co., 130 Ill.App.3d
708, 711-12, 474 N.E.2d 920, 922, 86 Ill.Dec. 6, 8-9 (3d Dist.1985). The court in Trout v. Bank
of Belleville, 36 Ill.App.3d 83, 87, 343 N.E.2d 261 (5th Dist.1976), cited IPI 120.01 and defined
“trespasser” as one who enters property “without permission, invitation, or other right, and
intrudes for some purpose of his own, or at his convenience, or merely as an idler.” Trout v. Bank
of Belleville, 36 Ill.App.3d 83, 87, 343 N.E.2d 261, 264-65 (5th Dist.1976) (citing 62 Am. Jur.
2d, Premises Liability (1972) and IPI). A trespasser is also someone who, after being invited
upon the premises, goes to another area beyond the scope of the invitation. Cockrell v. Koppers
Section 120, Page 15 of 25
Indus., Inc., 281 Ill.App.3d 1099, 1104, 667 N.E.2d 676, 680, 217 Ill.Dec. 587 (1st Dist.1996)
(workers straying from the intended worksite are trespassers). Whether a person is a trespasser or
someone lawfully on the premises is a question for the jury. Eshoo v. Chi. Transit Auth., 309
Ill.App.3d 831, 836, 723 N.E.2d 339, 343, 243 Ill.Dec. 307 (1st Dist.1999) (finding a jury should
determine whether a fare-paying passenger, who left an “el” platform to urinate on the tracks,
was a trespasser).
Section 120, Page 16 of 25
120.07 Reserved
Section 120, Page 17 of 25
120.08 Issue/Burden Of Proof Premises/Condition/Distraction
[In Count __], [plaintiff's name] seeks to recover damages from the defendant
[defendant's name]. In order to recover damages, the plaintiff has the burden of proving:
First, there was a condition on the [property] [land] [building] [other] which presented an
unreasonable risk of harm to [people] [children] on the property.
Second, the defendant knew or in the exercise of ordinary care should have known of
both the condition and the risk.
Third, the defendant could reasonably expect that [people] [children] on the property
[would not discover or realize the danger] [or] [would fail to protect themselves against such
danger].
Fourth, the defendant was negligent in one or more of the following ways:
a) ________,
b) ________,
c) ________,
Fifth, the plaintiff was injured.
Sixth, the defendant's negligence was a proximate cause of the plaintiff's injury.
Notes on Use
This instruction combines the issues instruction and burden of proof instruction into one
instruction. Use this instruction for premises liability cases, including those in which the plaintiff
claims that he/she was distracted and failed to observe an open and obvious defect on the
property. It is also appropriate for cases involving children who were lawfully on the premises.
For trespassing children, use IPI 120.10. If the action alleges that an activity on the premises
caused the injury or that the dangerous condition arose as part of the defendant's business, use IPI
20.01 and IPI B10.03. If there is a dispute as to ownership of the property, add the following
paragraph and label it “First”:
First, the defendant, [owned] [controlled] [managed] the property.
This instruction should be combined on the same page with the appropriate instructions
from the 128 series. If contributory negligence is an issue, use IPI 128.02. If there is no issue of
contributory negligence, use IPI 128.01. See Simich v. Edgewater Beach Apartments Corp., 368
Ill.App.3d 394, 306 Ill.Dec. 535, 857 N.E.2d 934 (1st Dist. 2006), for a limitation on the use of
this instruction.
Notes revised April 2007.
Comment
Traditionally, a landowner or occupier owed no duty to a trespasser or a person legally on
the premises, except not to willfully or wantonly cause injury. Restatement (Second) of Torts
§336 (1965); Marcovitz v. Hergenrether, 302 Ill. 162, 167, 134 N.E. 85, 88 (1922); Bofman v.
Material Serv. Corp., 125 Ill.App.3d 1053, 1064, 466 N.E.2d 1064, 1072, 81 Ill.Dec. 262 (1st
Section 120, Page 18 of 25
Dist. 1984); Votava v. Material Serv. Corp., 74 Ill.App.3d 208, 213, 392 N.E.2d 768, 771-72, 30
Ill.Dec. 113, 116-17 (2d Dist. 1979) (citing IPI); Lee v. Chi. Transit Auth., 152 Ill.2d 432, 472,
605 N.E.2d 493, 511, 178 Ill.Dec. 699 (1992). The duty owed to both trespassers and people
legally on the premises has changed to a shifting standard or a duty based upon knowledge of
conditions on the property and the risk of harm to people who frequent the property. It is
expected that people on the premises will notice and avoid open and obvious dangers. However,
the owner has a duty to warn others about dangerous conditions on the property where the owner
or occupier knows or should know that people will approach the hazard while distracted, Ward v.
Kmart Corp., 136 Ill.2d 132, 149-50, 554 N.E.2d 223, 143 Ill.Dec. 288 (1990), or will perceive
an economic necessity to deliberately encounter the danger. LaFever v. Kemlite Co., 185 Ill.2d
380, 395, 706 N.E.2d 441, 449, 235 Ill.Dec. 886 (1998).
For persons legally on the premises, the owner owes a duty of reasonable care. The
Premises Liability Act states an owner's duty to non-trespassers is one of reasonable care under
the circumstances. The Act abolishes the common-law distinction between the invitees and
licensees. 740 ILCS 130/2 (West 1998), effective September 12, 1984; Erne v. Peace, 164
Ill.App.3d 420, 423, 517 N.E.2d 1203, 1205, 115 Ill.Dec. 517 (2d Dist. 1987). Open and obvious
hazards on the premises are expected to be noticed and avoided. Deibert v. Bauer Bros. Constr.
Co., 141 Ill.2d 430, 439, 566 N.E.2d 239, 152 Ill.Dec. 552 (1990). An owner has no duty
regarding open and obvious dangerous conditions except in two situations. See Restatement
(Second) of Torts §343A. First, the open and obvious exception does not apply where something
distracted the person, or where he deliberately encountered danger out of economic necessity.
LaFever v. Kemlite Co., 185 Ill.2d 380, 391, 706 N.E.2d 441, 448, 235 Ill.Dec. 886 (1998).
Second, the owner or occupier does have a duty to warn about dangerous conditions on the
property if he knows or should know that people on the premises with permission could approach
the hazard while distracted, Ward v. Kmart Corp., 136 Ill.2d 132, 149-50, 554 N.E.2d 223, 143
Ill.Dec. 288 (1990), or will do so deliberately out of economic necessity, LaFever v. Kemlite Co.,
185 Ill.2d 380, 391, 706 N.E.2d 441, 448, 235 Ill.Dec. 886 (1998).
The rule applicable to trespassers is that an owner owes a duty of ordinary care regarding
conditions on the property if the property owner knows, or should know, that an artificial
condition on the property presents a risk of death or serious bodily injury, and if the owner knows
about or anticipates the trespasser's presence in dangerous proximity to the condition. Lee v. Chi.
Transit Auth., 152 Ill.2d 432, 472, 605 N.E.2d 493, 511, 178 Ill.Dec. 699 (1992) (applying the
Restatement (Second) of Torts §337). The terms of Restatement §337 limit the application of the
rule to “artificial” conditions. However, Comment b states:
The few cases in which the situation covered by this Section has arisen have involved
artificial conditions with a risk of death or serious bodily harm to the trespasser, and such
harm has in fact resulted. No reason is apparent, however, for any limitation of the rule to
such cases, and it may reasonably be expected to apply to natural conditions on the land,
or to the risk of harm less than death or serious bodily harm, including harm to the
trespasser's property.
Section 120, Page 19 of 25
So far, no Illinois case sets forth whether this rule extends to natural conditions for either a
trespasser or a person lawfully on the premises. Burns v. Addison Golf Club, 161 Ill.App.3d 127,
130-31, 514 N.E.2d 68, 71, 112 Ill.Dec. 672 (2d Dist. 1987) (no liability for injury caused by the
open and obvious, natural condition of an exposed tree root). The court in Burns v. Addison Golf
Club analogized the hazard posed by a tree root to that of snow and ice under the natural
accumulations rule. For accumulations of snow and ice, an owner generally is not liable for
resultant injuries. However, a limited exception to this rule can impose liability if the owner
aggravated or acted in a way that caused the natural condition to become an unnatural condition.
Harkins v. Sys. Parking, Inc., 186 Ill.App.3d 869, 872, 542 N.E.2d 921, 923-24, 134 Ill.Dec. 575
(1st Dist. 1989) (no liability for a fall on a snowy and icy parking lot); Endsley v. Harrisburg
Med. Ctr., 209 Ill.App.3d 908, 910, 568 N.E.2d 470, 471, 154 Ill.Dec. 470 (5th Dist. 1991)
(liability for ruts in an ice-covered sidewalk, where defendant directed traffic solely on that path);
Wittaker v. Honegger, 284 Ill.App.3d 739, 743, 674 N.E.2d 1274, 1276, 221 Ill.Dec. 169 (5th
Dist. 1996) (extending liability to loose driveway gravel on highway).
Section 120, Page 20 of 25
120.09 Issue/Burden Of Proof Premises/Deliberate Encounter
[In Count __], [plaintiff's name] seeks to recover damages from the [defendant's name].
In order to recover damages, the plaintiff has the burden of proving:
First, there was a condition on the [property] [land] [building] [other] which presented an
unreasonable risk of harm to [people] [children] on the property.
Second, the defendant knew or in the exercise of ordinary care should have known of
both the condition and the risk.
Third, the defendant could reasonably expect that a reasonable person in plaintiff's
position, knowing of the condition, would proceed to encounter it because the advantage of doing
so outweighs the apparent risk.
Fourth, the defendant was negligent in one or more of the following ways:
a) ________,
b) ________,
c) ________,
Fifth, the plaintiff was injured.
Sixth, the defendant's negligence was a proximate cause of the plaintiff's injury.
Notes on Use
This instruction combines the issues instruction and burden of proof instruction into one
instruction. Use this instruction when the issues involve the plaintiff's deliberate encounter with
an open and obvious defect on the defendant's premises. If the action alleges an activity which is
negligent, rather than a dangerous condition on the premises, see Notes on Use for IPI 120.02 and
Reed v. Walmart Stores, Inc., 298 Ill.App.3d 712, 700 N.E.2d 212, 233 Ill.Dec. 111 (1998). This
instruction should be combined with the appropriate instructions from the 128 series. If
contributory negligence is an issue use IPI 128.02. If there is no issue of contributory negligence,
use IPI 128.01.
Comment
The deliberate encounter exception extends owner liability to circumstances in which the
open and obvious rule would otherwise bar liability. LaFever v. Kemlite Co., 185 Ill.2d 380, 391,
706 N.E.2d 441, 448, 235 Ill.Dec. 886 (1998).
The Court assessed the defendant's duty by examining foreseeability, likelihood of injury,
the magnitude of the defendant's burden to prevent the injury, and the consequences of placing
this burden on the defendant. It also applied the foreseeability analysis of Restatement (Second)
of Torts §343 (1965), as well as addressed the open and obvious rule set forth in §343A of
Restatement (Second) of Torts (1965). The Court noted that §343A relieves possessors and
owners of land from liability for open and obvious dangers. However, the Court noted that the
open and obvious rule is not limitless in scope, but rather, it is limited by the distraction and
deliberate encounter exceptions. To define the “deliberate encounter exception,” the Supreme
Court turned to the Restatement (Second) of Torts §343A, Comment f, at 220:
Section 120, Page 21 of 25
[H]arm may be reasonably anticipated when the possessor “has reason to expect that the
invitee will proceed to encounter the known or obvious danger because to a reasonable
man in his position the advantages of doing so would outweigh the apparent risk.
LaFever v. Kemlite Co., 185 Ill.2d 380, 391, 706 N.E.2d 441, 448, 235 Ill.Dec. 886 (1998).
Under the Restatement, liability flows from the owner's knowledge of his premises and what he
could expect a person to do, when encountering any hazards. LaFever (citing Restatement
(Second) of Torts §343A, Comment f, at 220). Economic necessity is a factor to be considered in
the deliberate encounter exception to the open and obvious rule. LaFever v. Kemlite Co., 185
Ill.2d 380, 391, 706 N.E.2d 441, 448, 235 Ill.Dec. 886 (1998).
Section 120, Page 22 of 25
120.10 Issue/Burden Of Proof--Injury To Trespassing Children
[In Count __], the minor plaintiff, [plaintiff's name], by [guardian's name], his/her
Guardian, seeks to recover damages from defendant [defendant's name]. In order to recover
damages, the plaintiff has the burden of proving:
First, the defendant knew, or in the exercise of ordinary care, should have known, that
children frequented defendant's [property] [land] [building] [other].
Second, there was a [condition] [activity] on defendant's [property] [land] [building]
[other] that presented a risk of harm to children that they would not appreciate due to their
immaturity.
Third, the expense or inconvenience to the defendant in protecting children against the
[condition] [activity] would be slight in comparison to the risk of harm to them, and that in
(failing to act) (acting) the defendant was negligent in one or more of the following ways:
a) ________,
b) ________,
c) ________,
Fourth, the minor plaintiff was injured.
Fifth, the [condition] [activity] was a proximate cause of the injury or damage to the
minor plaintiff.
Notes on Use
This instruction should be used where injury is claimed to a trespassing child as a result
of some condition of the premises. If the child was lawfully on the premises, use IPI 120.08. This
instruction should be combined with the appropriate instructions from the IPI 128 series. If
contributory negligence is an issue, use IPI 128.02. If there is no issue of contributory negligence,
use IPI 128.01.
Comment
For injuries to a trespassing child, the duty of a landowner or possessor turns upon the
foreseeability of harm to the child, and the child's ability to appreciate danger on the property.
The leading case, Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836 (1955), rejected the
implication in the attractive nuisance doctrine that the dangerous condition had to lure children
into trespassing on the premises. Instead, Kahn established that the cornerstone of liability was
foreseeability of harm to children. This test eliminated the need for distinctions between invitees,
licensees, and trespassers. Corcoran v. Village of Libertyville, 73 Ill.2d 316, 326, 383 N.E.2d
177, 22 Ill.Dec. 701 (1978), refined the landowner's duty by stating “The essence of the Kahn
principle is to impose a duty ... to remedy conditions which, although considered harmless to
adults, are dangerous to children who foreseeably wander onto the premises.” This duty does not
extend to remedying obvious risks that courts have held children are capable of “appreciating.”
Id. at 326 (ditch in park); Mt. Zion State Bank & Trust v. Consol. Commc'ns, Inc., 169 Ill.2d
110, 117, 660 N.E.2d 863, 868, 214 Ill.Dec. 156 (1995) (above ground pool); Cope v. Doe, 102
Ill.2d 278, 286, 464 N.E.2d 1023, 80 Ill.Dec. 40 (1984) (thin ice on a pond); Logan v. Old Enter.
Farms, Ltd., 139 Ill.2d 229, 241, 564 N.E.2d 778, 784, 151 Ill.Dec. 323 (1990) (climbing a tree);
Section 120, Page 23 of 25
Bucheleres v. Chi. Park Dist., 171 Ill.2d 435, 455, 665 N.E.2d 826, 216 Ill.Dec. 568 (1996)
(diving into a large body of water with fluctuating water levels and bottom composition). Where
the child is harmed not by the owner, but by another trespasser, ordinary negligence rules govern
and apply to the activity of the other trespasser. Mt. Zion, 169 Ill.2d at 124.
After Kahn, the test for imposing liability is as follows: (1) the occupier knows that young
children frequent the vicinity; (2) there is a defective structure or dangerous agency present on
the land; (3) that structure or agency is likely to cause injury because of the child's inability to
appreciate risk; and (4) the expense of remedying the situation is slight. Trobiani v. Racienda, 95
Ill.App.2d 228, 233, 238 N.E.2d 177, 179 (1st Dist.1968); accord LaSalle Nat'l Bank v. City of
Chi., 132 Ill.App.3d 607, 478 N.E.2d 417, 424, 88 Ill.Dec. 102, 109 (1st Dist.1985); Cummings
v. Jackson, 57 Ill.App.3d 68, 372 N.E.2d 1127, 14 Ill.Dec. 848 (4th Dist.1978); Dickeson v.
Baltimore & O.C.T.R. Co., 73 Ill.App.2d 5, 32, 220 N.E.2d 43, 46 (1st Dist.1965).
If the owner lacks knowledge of the trespasser's presence, no duty applies, except not to
willfully and wantonly cause injury. Eshoo v. Chi. Transit Auth., 309 Ill.App.3d 831, 837, 723
N.E.2d 334, 243 Ill.Dec. 307 (1st Dist.1999). Case law extends this rule to trespassing children.
Id.; Mt. Zion, 169 Ill.2d at 116; Kahn, 5 Ill.2d at 624. However, where the owner knows, or
reasonably should know, of the trespasser's presence, a duty of ordinary care applies. Eshoo, 309
Ill.App.3d at 837. The Appellate Court uniformly interprets Kahn to mean that a person must use
ordinary care to protect children from dangerous conditions, whether created by the defendant or
found on his property. Melford v. Gaus & Brown Constr. Co., 17 Ill.App.2d 497, 151 N.E.2d 128
(1st Dist.1958) (unguarded excavation); Runions v. Liberty Nat'l Bank, 15 Ill.App.2d 538, 147
N.E.2d 380 (1st Dist.1957) (playground equipment formed a natural ladder to garage roof);
Kleren v. Bowman, 15 Ill.App.2d 148, 145 N.E.2d 810 (2d Dist.1957) (child rode a bicycle off
parking lot and fell down an embankment); Wilinski v. Belmont Builders, Inc., 14 Ill.App.2d
100, 143 N.E.2d 69 (1st Dist.1957) (rung broke on a homemade ladder at a construction site).
If there are disputed facts or differing inferences from undisputed facts, the trespasser
status of the child is a question for the jury. Eshoo, 309 Ill.App.3d at 836, 723 N.E.2d 339, 343,
243 Ill.Dec. 307 (1st Dist.1999) (jury determines whether a fare-paying, minor-passenger, who
left an “el” platform to urinate on the tracks, was a trespasser). Cases applying Kahn to children
lawfully on the premises, include: Cope v. Doe, 102 Ill.2d 278, 286, 464 N.E.2d 1023, 80 Ill.Dec.
40 (1984) (partially frozen pond on apartment grounds); Alop v. Edgewood Valley Cmty. Ass'n,
154 Ill.App.3d 482, 507 N.E.2d 19, 107 Ill.Dec. 355 (1st Dist.1987) (fall on asphalt surface of
playground); Logan v. Old Enter. Farms, Ltd., 139 Ill.2d 229, 564 N.E.2d 778, 151 Ill.Dec. 323
(1990) (fall from tree).
Section 120, Page 24 of 25
120.11 Issue/Burden Of Proof--Premises/Willful And Wanton
[In Count __], plaintiff [plaintiff's name] seeks to recover damages from the defendant
[defendant's name]. In order to recover damages, the plaintiff has the burden of proving:
First, there was a condition on the [property] [land] [building] [other] which presented an
unreasonable risk of harm to [people] [children] on the property.
Second, the defendant knew of [or] [was willful and wanton in failing to discover] both
the condition and the risk.
Third, the defendant could reasonably expect that [people] [children] on the property
would not discover or realize the danger.
Fourth, the defendant was willful and wanton in one or more of the following ways:
a) ________,
b) ________,
c) ________,
Fifth, the plaintiff was injured.
Sixth, the defendant's willful and wanton conduct was a proximate cause of the plaintiff's
injury.
Notes on Use
This instruction should be used if the condition is claimed to be a result of willful and
wanton conduct. With respect to defendant's claim that plaintiff contributed to the injury, Poole
v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171 (1995), held that a
plaintiff's contributory negligence is a damage-reducing factor if the defendant's willful and
wanton conduct was “reckless,” but not if it was “intentional.”
This instruction should be combined with the appropriate instructions from the IPI 128
series. If contributory negligence is an issue, use IPI 128.02. If there is no issue of contributory
negligence, use IPI 128.01.
Comment
Traditionally, an owner's duty not to act in a willful or wanton manner applied toward
both trespassers and persons legally on the premises. Restatement (Second) of Torts §336 (1965);
Marcovitz v. Hergenrether, 302 Ill. 162, 167, 134 N.E. 85, 88 (1922); Bofman v. Material Serv.
Corp., 125 Ill.App.3d 1053, 1064, 466 N.E.2d 1064, 1072, 81 Ill.Dec. 262 (1st Dist.1984);
Votava v. Material Serv. Corp., 74 Ill.App.3d 208, 213, 392 N.E.2d 768, 771-72, 30 Ill.Dec. 113,
116-17 (2d Dist.1979) (citing IPI); Lee v. Chi. Transit Auth., 152 Ill.2d 432, 472, 605 N.E.2d
493, 511, 178 Ill.Dec. 699 (1992).
For a discussion of the law concerning trespassers, see the Comment to IPI 120.08.
An owner behaves in a “willful and wanton” manner if he has either a deliberate intent to
harm, or an utter indifference to, or a conscious disregard for, the safety of others. Sumner v.
Hebenstreit, 167 Ill.App.3d 881, 886, 522 N.E.2d 343, 118 Ill.Dec. 888 (5th Dist.1988) (citing
Section 120, Page 25 of 25
Hocking v. Rehnquist, 44 Ill.2d 196, 201, 254 N.E.2d 515, 518 (1969)). In premises liability
cases, a landowner or possessor acts willfully and wantonly when failing to warn of a dangerous
condition that actually is concealed. Sumner, 167 Ill.App.3d at 886. For persons lawfully on the
premises, the occupier of land has no duty to render a condition safe, or to discover an unsafe
condition. Stephen v. Swiatkowski, 263 Ill.App.3d 694, 701, 635 N.E.2d 997, 1003, 200 Ill.Dec.
658 (1st Dist.1994) (citing Schoen v. Harris, 108 Ill.App.2d 186, 190, 246 N.E.2d 849 (1969)).
Instead, the open and obvious exception applies. Stephen, 263 Ill.App.3d at 702; LaFever v.
Kemlite Co., 185 Ill.2d 380, 391, 706 N.E.2d 441, 448, 235 Ill.Dec. 886 (1998).
Section 125, Page 1 of 8
125.00
LIABILITY FOR FALLS ON SNOW AND ICE
PERMISSION TO PUBLISH GRANTED IN 2004.
INTRODUCTION
As a general rule, property owners have no duty to remove natural accumulations of
snow, ice or melt water from their premises. Riccitelli v. Sternfeld, 1 Ill.2d 133, 115 N.E.2d 288
(1953); see also Selby v. Danville Pepsi-Cola Bottling Co., 169 Ill.App.3d 427, 435, 523 N.E.2d
697, 119 Ill.Dec. 941 (4th Dist.1988); Smalling v. LaSalle Nat'l Bank, 104 Ill.App.3d 894, 899,
433 N.E.2d 713, 60 Ill.Dec. 671 (4th Dist.1982); Hankla v. Burger Chef Sys., Inc., 93 Ill.App.3d
909, 418 N.E.2d 35, 49 Ill.Dec. 391 (1st Dist.1981). There is no liability for clearing off snow
under which there is a natural accumulation of ice. McCann v. Bethesda Hosp., 80 Ill.App.3d
544, 549, 400 N.E.2d 16, 35 Ill.Dec. 879 (1st Dist.1979).
Recovery for falls on icy sidewalks or parking lots can be based on negligent design or
maintenance of the underlying pavement. Sepesy v. Archer Daniels Co., 59 Ill.App.3d 56, 375
N.E.2d 180, 16 Ill.Dec. 549 (4th Dist.1978) (sloping surface created unnatural accumulations);
McCann v. Bethesda Hosp., 80 Ill.App.3d 544, 549, 400 N.E.2d 16, 35 Ill.Dec. 879 (1st
Dist.1970) (architect testified to improper design of entry way which resulted in unnatural
accumulations); Webb v. Morgan, 176 Ill.App.3d 378, 531 N.E.2d 36, 125 Ill.Dec. 857 (5th
Dist.1988) (slope of parking lot altered natural run-off); Wolter v. Chi. Melrose Park Assocs., 68
Ill.App.3d 1011, 1019, 386 N.E.2d 495, 25 Ill.Dec. 224 (1st Dist.1979) (negligent maintenance
of parking lot surface could cause unnatural accumulation of ice). Other cases have recognized a
cause of action for negligent removal of ice and snow because an “unnatural accumulation”
resulted. Fitz Simons v. Nat'l Tea Co., 29 Ill.App.2d 306, 173 N.E.2d 534 (1961); Foster v.
George J. Cyrus & Co., 2 Ill.App.3d 274, 276 N.E.2d 38 (1st Dist.1971); McCarthy v. Hidden
Lake Village Condo. Ass'n, 186 Ill.App.3d 752, 542 N.E.2d 868, 134 Ill.Dec. 522 (1st
Dist.1989).
Illinois courts have applied the “unnatural accumulation” requirement in a number of
specific contexts. There is no duty to warn customers or invitees of the danger of natural
accumulations. McCann v. Bethesda Hosp., 80 Ill.App.3d 544, 549, 400 N.E.2d 16, 35 Ill.Dec.
879 (1st Dist.1979). Property owners have no duty to clean up ice, snow or water which is
tracked in by customers. Demario v. Sears, Roebuck & Co., 6 Ill.App.3d 46, 284 N.E.2d 330 (1st
Dist.1972), or to provide mats or rugs for customers to wipe their feet. Lohan v. Walgreens Co.,
140 Ill.App.3d 171, 488 N.E.2d 679, 94 Ill.Dec. 680 (1st Dist.1986). A mat, which becomes
saturated in a store's entryway due to tracked-in water, does not transform the water into an
unnatural accumulation, nor does it aggravate the water's natural accumulation. Wilson v.
Gorski's Food Fair, 196 Ill.App.3d 612, 554 N.E.2d 412, 143 Ill.Dec. 477 (1st Dist.1990). Where
there is no evidence to show that moisture originated from an unnatural accumulation, property
owners are under no duty to remove water from interior floors near mats. Roberson v. J.C.
Penney Co., 251 Ill.App.3d 523, 623 N.E.2d 364, 191 Ill.Dec. 119 (3d Dist.1993); see Richter v.
Burton Inv. Props., Inc., 240 Ill.App.3d 998, 1004, 181 Ill.Dec. 780, 608 N.E.2d 1254 (2d
Dist.1993) (holding that the placement of mats on a ceramic tile floor did not create a duty to
Section 125, Page 2 of 8
cure an excessively slippery floor). But see Fanning v. Lemay, 78 Ill.App.2d 166, 222 N.E.2d
815 (5th Dist.1966), rev'd on other grounds, 38 Ill.2d 209, 230 N.E.2d 182 (1967) (liability
predicated on negligent use of floor tile which became slippery when wet). Normal usage of the
property by vehicles or pedestrians which leaves ruts or ridges or ice in natural accumulations or
which causes ice to form as a result of thawing and refreezing on an otherwise properly
maintained surface has been held to be a natural accumulation. Selby v. Danville Pepsi-Cola
Bottling Co., 169 Ill.App.3d 427, 435, 523 N.E.2d 697, 119 Ill.Dec. 941 (4th Dist.1988); Harkins
v. Sys. Parking Inc., 186 Ill.App.3d 869, 872-73, 542 N.E.2d 921, 134 Ill.Dec. 575 (1st
Dist.1989).
Given that a property owner is not liable for injuries caused by natural accumulations of
ice and snow, a property owner cannot be held liable for a failure to provide adequate safeguards
to prevent others from falling as a result of those natural accumulations. Branson v. R & L Inv.,
Inc., 196 Ill.App.3d 1088, 1094, 143 Ill.Dec. 689, 554 N.E.2d 624 (1st Dist.1992).
The existence of a municipal nuisance ordinance does not imply a duty to remove natural
accumulations where the common law creates no such duty. Thompson v. Tormike, Inc., 127
Ill.App.3d 674, 469 N.E.2d 453, 82 Ill.Dec. 919 (1st Dist.1984). A municipal ordinance
requiring abutting property owners to remove snow and ice from public sidewalks within 24
hours of snowfall of two inches or more is an ordinance for the benefit of the municipality. Such
an ordinance does not create a duty for the landowners. Klikas v. Hanover Square Condo. Ass'n,
240 Ill.App.3d 715, 608 N.E.2d 541, 181 Ill.Dec. 468 (1st Dist.1992).
A contract or a lease agreement that requires snow removal can create a duty to remove
natural accumulations. Schoondyke v. Heil, Heil, Smart & Golee, Inc., 89 Ill.App.3d 640, 411
N.E.2d 1168, 44 Ill.Dec. 802 (1st Dist.1980). The plaintiff has the burden of proving that the
defendant knew or should have known of the dangerous condition and failed to take proper steps
to guard against it. The lease may create a duty of snow removal but does not establish a strict
liability standard. Tressler v. Winfield Vill. Coop., Inc., 134 Ill.App.3d 578, 481 N.E.2d 75, 89
Ill.Dec. 723 (4th Dist.1985). A visitor on the property is not necessarily a third-party beneficiary
of a contract of the property owner with a snow removal service. Wells v. Great Atl. & Pac. Tea
Co., 171 Ill.App.3d 1012, 525 N.E.2d 1127, 121 Ill.Dec. 820 (1st Dist.1988). However, Eichler
v. Plitt Theatres, Inc., 167 Ill.App.3d 685, 521 N.E.2d 1196, 118 Ill.Dec. 503 (2d Dist.1988),
held that a lease requiring the removal of “all” snow and ice would be construed as requiring
removal of all that was reasonably practical and that such a lease could create a duty of ordinary
care toward a business patron who fell (applying the Restatement (Second) of Torts §324A).
The General Assembly adopted the Snow and Ice Removal Act (745 ILCS 75/1-75/2),
effective September 14, 1979. Section 2 provides:
§2. Any owner, lessor, occupant or other person in charge of any residential
property, or any agent of or other person engaged by any such party, who removes or
attempts to remove snow or ice from sidewalks abutting the property shall not be liable
for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk
resulting from his or her acts or omissions unless the alleged misconduct was willful or
wanton.
Section 125, Page 3 of 8
In 1996, the Second District considered this statute in the context of removal of snow and ice
from “sidewalks abutting” residential property. Yu v. Kobayashi, 281 Ill.App.3d 489, 667
N.E.2d 106, 217 Ill.Dec. 313 (2d Dist.1996). In Yu, the court found that the defendant was not
liable for any negligence in removing or attempting to remove snow from a paved area between
the stoop of an apartment and a parking lot where plaintiff slipped and fell. The court noted that
the paved area, part of the continuous walkway, was sufficiently similar to a traditional sidewalk
and to classify it otherwise would be unreasonable. Other cases have considered snow and ice
removal from “sidewalks abutting” property without referring to the statute. See Klikas, 240
Ill.App.3d 715, 608 N.E.2d 541, 181 Ill.Dec. 468 (1st Dist.1992) discussed above.
Section 125, Page 4 of 8
125.01 Duty Of Landowner--Snow And Ice Removal--Condition Of The Premises
[However,] The [owner] [occupant] of property is under no duty to remove ice or snow
which has resulted from natural accumulations.
Notes on Use
This instruction should be given in cases where the landowner or occupier's liability is
based upon the existence of unnatural accumulations of snow or ice, whatever the cause. This
instruction should be given in conjunction with IPI 125.02.
This instruction should be given with IPI 125.02 and such premises liability instructions
as may be applicable. If the plaintiff claims he was injured directly by a snow removal operation,
then use IPI 20.01 and IPI 10.03 instead of this instruction.
This instruction can be added as an additional paragraph to the applicable duty instruction
(e.g. IPI 10.04-negligence, or IPI 14.04-willful and wanton) by using the bracketed word,
“However,” or can be given as a separate instruction without that word.
This instruction should not be given if “natural accumulation” is not an issue for the jury.
Comment
The refusal to give an instruction about the duty as to natural accumulations was held to
be reversible error in Foster v. George J. Cyrus & Co., 2 Ill.App.3d 274, 276, 276 N.E.2d 38 (1st
Dist.1971). A similar instruction was approved with additional comments on the law in Wolter v.
Chi. Melrose Park Assocs., 68 Ill.App.3d 1011, 1019-20, 386 N.E.2d 495, 500-01, 25 Ill.Dec.
224, 229-30 (1st Dist.1979). See Smalling v. LaSalle Nat'l Bank, 104 Ill.App.3d 894, 433 N.E.2d
713, 60 Ill.Dec. 671 (4th Dist.1982).
If a duty to remove or protect against natural accumulations of snow or ice is created by
conduct or contract, then the plaintiff need not prove the existence of “unnatural accumulation”
and this instruction is inapplicable. Schoondyke v. Heil, Heil, Smart & Golee, Inc., 89 Ill.App.3d
640, 411 N.E.2d 1168, 44 Ill.Dec. 802 (1st Dist.1980); Tressler v. Winfield Vill. Coop., Inc., 134
Ill.App.3d 578, 481 N.E.2d 75, 89 Ill.Dec. 723 (4th Dist. 1985); Eichler v. Plitt Theatres, Inc.,
167 Ill.App.3d 685, 521 N.E.2d 1196, 118 Ill.Dec. 503 (2d Dist. 1988); Williams v. Alfred N.
Koplin & Co., 114 Ill.App.3d 482, 448 N.E.2d 1042, 70 Ill.Dec. 164 (2d Dist.1983) (duty arose
by voluntary conduct).
Section 125, Page 5 of 8
125.02 Falls On Ice Or Snow--Negligence Only--No Issue As To Ownership Or Control-Issues/Burden Of Proof
[In Count __], plaintiff [plaintiff's name] seeks to recover damages from the defendant
[defendant's name]. In order to recover damages, the plaintiff has the burden of proving:
First, there was an unnatural accumulation of [ice] [snow] on the [property] [land]
[building] [other] which presented an unreasonable risk of harm to people on the property.
Second, the defendant knew or in the exercise of ordinary care should have known of
both the condition and the risk.
Third, the defendant could reasonably expect that people on the property [would not
discover or realize the danger] [or] [would fail to protect against such danger].
Fourth, the defendant was negligent in one or more of the following ways:
a) ________,
b) ________,
c) ________,
Fifth, the plaintiff was injured.
Sixth, the defendant's negligence was a proximate cause of the plaintiff's injury.
Notes on Use
This instruction should be given with IPI 125.01 and IPI 125.04. If there is an issue as to
ownership or control over the premises, this instruction must be modified accordingly. Do not
use this instruction unless there is an issue concerning an unnatural accumulation. If the case is
based upon improper removal of or attempts to remove snow and ice from residential sidewalks,
pursuant to 745 ILCS 75/2, this instruction cannot be used as written because the statute requires
“willful and wanton” conduct.
This instruction as drafted is applicable only if there is no willful and wanton allegation.
Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 212 Ill.Dec. 171 (1995), held
that a plaintiff's contributory negligence is a damage-reducing factor if the defendant's willful
and wanton conduct was “reckless,” but not if it was “intentional.” Therefore, if plaintiff's only
claim is that defendant's conduct was the intentional form of willful and wanton, this instruction
should not be used in its present form. If plaintiff claims intentional willful and wanton conduct
in addition to other claims, this instruction should be modified accordingly. If there is a willful
and wanton allegation, this instruction may need to be modified so that one instruction is given
with respect to negligence and contributory negligence and one is given with respect to willful
and wanton conduct. The content of the latter instruction will depend on the trial court's ruling as
to the effect of the plaintiff's contributory fault, if any.
This instruction should be combined with the appropriate instructions from the 128
series. If contributory negligence is an issue, use IPI 128.02. If there is no contributory
negligence issue, use IPI 128.01.
Section 125, Page 6 of 8
Comment
The plaintiff has the burden of proving that the accumulation of ice and snow is
“unnatural,” that the defendant had actual or constructive notice of the condition, and that
defendant failed to take reasonable precaution to avoid injury to others. Wolter v. Chi. Melrose
Park Assocs., 68 Ill.App.3d 1011, 1018-19, 386 N.E.2d 495, 500-01, 25 Ill.Dec. 224, 229-30 (1st
Dist. 1979); see also Selby v. Danville Pepsi-Cola Bottling Co., 169 Ill.App.3d 427, 435, 523
N.E.2d 697, 700, 119 Ill.Dec. 941, 944 (4th Dist.1988).
The issue of whether or not accumulations are natural is a question of fact. Turner v.
Cosmopolitan Nat'l Bank, 180 Ill.App.3d 939, 536 N.E.2d 706, 812, 129 Ill.Dec. 756, 762 (1st
Dist. 1989) (broken door which allowed snow to blow into building created jury issue as to
unnatural accumulation); Johnson v. Sears, Roebuck & Co., 186 Ill.App.3d 725, 727-28, 542
N.E.2d 841, 842-43, 134 Ill.Dec. 495, 496-97 (1st Dist. 1989) (broken bag of garden soil near
door which mixed with tracked-in water created jury issue as to unnatural accumulation);
McCarthy v. Hidden Lake Vill. Condo. Assoc., 186 Ill.App.3d 752, 542 N.E.2d 868, 134 Ill.Dec.
522 (1st Dist. 1989) (negligently conducted plowing created jury issue as to unnatural
accumulation).
If a duty to remove or protect against natural accumulations of snow or ice is created by
conduct or contract, then the plaintiff need not prove the existence of an “unnatural
accumulation” and this instruction is inapplicable. Schoondyke v. Heil, Heil, Smart & Golee,
Inc., 89 Ill.App.3d 640, 411 N.E.2d 1168, 44 Ill.Dec. 802 (1st Dist. 1980); Tressler v. Winfield
Vill. Coop., Inc., 134 Ill.App.3d 578, 481 N.E.2d 75, 89 Ill.Dec. 723 (4th Dist. 1985); Eichler v.
Plitt Theatres, Inc., 167 Ill.App.3d 685, 521 N.E.2d 1196, 118 Ill.Dec. 503 (2d Dist. 1988);
Williams v. Alfred N. Koplin & Co., 114 Ill.App.3d 482, 448 N.E.2d 1042, 70 Ill.Dec. 164 (2d
Dist. 1983).
Section 125, Page 7 of 8
125.03 Reserved
Section 125, Page 8 of 8
125.04 Natural Accumulation Defined
In these instructions, I have used the expression “natural accumulation of [ice] [snow]
[____].”
The [snow] [ice] [____] involved in this case was a natural accumulation if it resulted
from [(fill in appropriate language determined by the court to define the disputed issue in the
case, e.g., moisture which is tracked into a building; the normal effects of pedestrian or vehicular
traffic on snowfall; normal freezing and thawing; the effects of normal snow removal, etc.)]
On the other hand, the [snow] [ice] [____] involved in this case was an unnatural
accumulation if it resulted from [(fill in appropriate language by the court to define the disputed
issue in the case, e.g., impaired or altered drainage of the premises; negligent maintenance of the
underlying sidewalk/parking lot by the property owner; negligence of the property owner in
leaving spilled liquid in a high traffic area, etc.)]
Whether the [snow] [ice] [____] which the plaintiff claims proximately caused injury was
a natural accumulation or was an unnatural accumulation is for you to decide.
Notes on Use
This instruction is appropriate only if there is a disputed issue of fact for the jury to
decide on the issue of “natural” vs. “unnatural” accumulation. If the material facts regarding this
issue are not in dispute, this instruction should not be given and IPI 125.01 also should not be
given.
Because this issue usually arises in a highly factually specific context, the court should
determine which facts in the case will establish an “unnatural” accumulation giving rise to a
duty, which facts will establish a “natural” accumulation, and complete the instruction
accordingly. The examples in the instruction are offered as illustration based on present case law.
However, these examples are not intended to represent any opinion by the committee as to what
the law is or should be or as to the exact language for instructing the jury in any given case.
In completing the instruction, the language of the court should be based on the evidence
and issues of the specific case and should be understandable and nonargumentative.
Comment
Swartz v. Sears Roebuck & Co., 264 Ill.App.3d 254, 636 N.E.2d 642, 201 Ill.Dec. 210
(1st Dist. 1993), held that it was reversible error for the trial court to refuse to instruct the jury on
the issue of what constituted a natural accumulation of moisture in the context of that case.
For a general discussion of the law on this issue, see the Introduction, IPI 125.00.
Section 128, Page 1 of 5
128.00
CONCLUDING PARAGRAPHS--NO CONTRIBUTORY NEGLIGENCE--CONTRIBUTORY
NEGLIGENCE--AFFIRMATIVE DEFENSE
INTRODUCTION
As alluded to in the introduction to the premises instructions the following chapter
contains the alternative concluding paragraph(s) which would be appropriate for each case.
The alternatives are: a concluding paragraph that relates to no issues of contributory
negligence or other affirmative defenses, a concluding paragraph to be used when there is a
claim of contributory negligence, and a concluding paragraph that would incorporate the claim in
an affirmative defense. These alternatives are put together much as IPI 30.01 is assembled with
regard to damages. The trial attorneys and Court can then pick the appropriate alternatives based
upon which claims the jury must decide. A sample instruction (IPI 128.04) shows how the
various alternatives fit together.
128.01 Concluding Paragraph--No Issue Of Contributory Negligence Or Affirmative
Defense
If you find from your consideration of all the evidence, that each of these propositions
has been proved, your verdict should be for the plaintiff. On the other hand, if you find that any
of these propositions has not been proved, your verdict should be for the defendant.
Notes on Use
The instructions numbered IPI 128.01 through 128.03 should be combined with the issues
instructions IPI 120.08 through 125.02, as appropriate. Use IPI 128.01 as the last paragraph of
the issue/burden of proof instruction in a premises case in which contributory negligence is not
an issue. IPI 128.02 should follow the issue instruction when there is evidence supporting a
contributory negligence verdict. IPI 128.03 contains an instruction for an affirmative defense.
If contributory negligence and/or an affirmative defense will be instructed upon, omit the
final phrase “your verdict should be for the defendant.” Also use IPI 128.02 or 128.03 as
appropriate.
Section 128, Page 2 of 5
128.02 Concluding Paragraph--Contributory Negligence Claimed
If you find from your consideration of all of the evidence that any of these propositions
has not been proved, then your verdict shall be for the defendant. On the other hand, if you find
from your consideration of all the evidence that each of these propositions has been proved, then
you must consider the defendant's claim that the plaintiff was contributorily negligent.
In order to reduce or deny plaintiff damages, the defendant has the burden of proving
each of the following:
First, that plaintiff [plaintiff's name] failed to exercise ordinary care [for (his/her) own
safety] [for the safety of (his/her) property] in one or more of the following ways:
a) ________,
b) ________,
c) ________,
Second, plaintiff's failure to exercise ordinary care was a proximate cause of
plaintiff['s][s'] [injury] [and] [damage].
If you find that the defendant has not proved both of the propositions required of the
defendant, then your verdict should be for the plaintiff and you will not reduce plaintiff's
damages. You should use Verdict form A.
If you find that the defendant has proved both of the propositions required of the
defendant, and if you find that the plaintiff's contributory negligence was more than 50% of the
total proximate cause of the [injury] [and] [damage] for which recovery is sought, then your
verdict should be for the defendant. You should use Verdict form C.
If you find that the plaintiff has proved all the propositions required of the plaintiff and
that the defendant has proved both of the propositions required of the defendant, and if you find
that the plaintiff's contributory negligence was 50% or less of the total proximate cause of the
[injury] [and] [damage] for which recovery is sought, then your verdict should be for the plaintiff
and you will reduce the plaintiff's damages in the manner stated to you in these instructions. You
should use Verdict form B.
Instruction revised April 2007.
Notes on Use
The instructions numbered IPI 128.01 through IPI 128.03 should be used as concluding
paragraphs with the issues/burden instructions IPI 120.08 through IPI 125.02. Use IPI 128.01
where contributory negligence is not an issue. Use IPI 128.02 where contributory negligence is
claimed.
Section 128, Page 3 of 5
128.03 Concluding Paragraph--Affirmative Defense Claimed
If you find that the plaintiff has proved each of these propositions, then you should
consider the defendant's affirmative defense of ____. In order to defeat the plaintiff's claim, the
defendant must prove:
First: ________,
Second: ________,
(List the elements of the affirmative defense.)
If the defendant proves all of these propositions, your verdict should be for the defendant.
If the defendant has failed to prove each of these propositions, [then you must consider the
defendant's claim that the plaintiff was contributorily negligent] [then you must find for the
plaintiff.]
Notes on Use
Use this instruction as the concluding paragraph to the issues/ burden instructions IPI
120.08 through IPI 125.02 where an affirmative defense other than contributory negligence is
asserted.
If both an affirmative defense and contributory negligence are being asserted, a) this
instruction should be appended to, and immediately follow, the appropriate issue/burden of proof
instruction, b) the appropriate bracketed language above referring to the claim of contributory
negligence must be used, rather than the language directing a finding for the plaintiff, and c) IPI
128.02, the contributory negligence instruction, should be appended to follow this instruction.
Section 128, Page 4 of 5
128.04 Sample Instruction--Premises--Contributory Negligence Claimed (120.08 And
128.02)
[In Count __], plaintiff [plaintiff's name] seeks to recover damages from the defendant
[defendant's name]. In order to recover damages, the plaintiff has the burden of proving:
First, there was a condition on the [property, land, building, ____] which presented an
unreasonable risk of harm to people [children] on the property.
Second, the defendant knew or in the exercise of ordinary care should have known of
both the condition and the risk.
Third, the defendant could reasonably expect that people [children] on the property
[would not discover or realize the danger] [or] [would fail to protect themselves against such
danger].
Fourth, the defendant was negligent in one or more of the following ways:
a) ________,
b) ________,
c) ________.
Fifth, the plaintiff was injured.
Sixth, the defendant's negligence was a proximate cause of the plaintiff's injury.
If you find from your consideration of all of the evidence that the plaintiff has proved
each of these propositions, then you should consider the defendant's affirmative defense of ____.
In order to defeat the plaintiff's claim, the defendant must prove:
First: ________.
Second: ________.
(List the elements of the affirmative defense.)
If the defendant proves all of these items, your verdict should be for the defendant. If the
defendant has failed to prove each of these propositions, then you must consider the defendant's
claim that the plaintiff was contributorily negligent.
In order to reduce or deny plaintiff damages, the defendant has the burden of proving
each of the following propositions:
First, plaintiff [plaintiff's name] failed to exercise ordinary care [for (his/her) own safety]
[for the safety of (his/her) property] in one or more of the following ways:
a) ________,
b) ________,
c) ________.
Second, plaintiff's failure to exercise ordinary care was a proximate cause of
plaintiff['s][s'] [injury] [and] [damage].
If you find the defendant has not proved both of the propositions required of the
defendant, then your verdict should be for the plaintiff and you will not reduce plaintiff's
damages. You should use Verdict form A.
If you find that the defendant has proved both of the propositions required of the
defendant, and if you find that the plaintiff's contributory negligence was more than 50% of the
total proximate cause of the injury [or damage] for which recovery is sought, then your verdict
should be for the defendant. You should use Verdict form C.
If you find from your consideration of all the evidence that the plaintiff has proved all the
propositions required of the plaintiff and that the defendant has proved both of the propositions
required of the defendant, and if you find that the plaintiff's contributory negligence was 50% or
Section 128, Page 5 of 5
less of the total proximate cause of the [injury] [and] [damage] for which recovery is sought,
then your verdict should be for the plaintiff and you will reduce the plaintiff's damages in the
manner stated to you in these instructions. You should use Verdict form B.
Section 130, Page 1 of 5
130.00
LANDLORD AND TENANT
130.01 Accident On Leased Premises--Latent Defect
If a landlord either knows about an existing defect on the premises which is not readily
apparent, or knows of facts and circumstances which would indicate that there is such a defect,
then he must tell his tenant about it [before the tenant moves in] [at the time of the letting].
However, a landlord need not warn his tenant about a defect which the tenant could have
discovered by a reasonable inspection.
Notes on Use
If there is no dispute as to the fact the landlord knew about the defect, use the following
in lieu of the first sentence: “Usually a landlord must warn his tenant about defects in the
premises which are not readily apparent.”
This instruction is not intended for use when the accident occurs on that part of the
premises reserved for use by all the tenants, such as hallways or stairs. In that case, IPI 130.02
should be used.
Do not use this instruction where the plaintiff is a small child. See Rahn v. Beurskens, 66
Ill.App.2d 423, 213 N.E.2d 301 (4th Dist.1966).
Comment
A landlord must tell a tenant of a defect on the premises about which he knows or, from
facts known to him, should know, and which could not be discovered by the tenant after a
reasonable inspection. Mercer v. Meinel, 290 Ill. 395, 401; 125 N.E. 288, 290 (1919) (it was
proper to direct a verdict when there was no evidence “that the defendant knew or from any fact
or circumstance ought to have known” of an improperly vented exhaust from water heater in
bathroom); Borggard v. Gale, 205 Ill. 511, 514; 68 N.E. 1063, 1064 (1903) (verdict for defendant
with regard to an obvious hole in the floor affirmed); Sunasack v. Morey, 196 Ill. 569, 63 N.E.
1039 (1902) (it was error in effect to dismiss a complaint that alleged sickness was from sewer
gas, the presence of which was known to the landlord and not known to the tenant); Hamilton v.
Baugh, 335 Ill.App. 346, 82 N.E.2d 196 (4th Dist.1948) (plaintiffs did not prove that defendant
landlord had knowledge of the rotted condition of the privy into the vault of which they fell);
Taylor v. Geroff, 347 Ill.App. 55, 59; 106 N.E.2d 210, 212 (4th Dist.1952) (landlord had no
actual knowledge of defects that made furnace explode and therefore was entitled to the directed
verdict); Garcia v. Jiminez, 184 Ill.App.3d 107, 539 N.E.2d 1356, 132 Ill.Dec. 550 (2d
Dist.1989) (verdict for defendant proper where jury could find from evidence that defendant did
not and should not have known that the paint plaintiff's child ingested was peeling or contained
lead); Kordig v. Northern Const. Co., 18 Ill.App.2d 48, 151 N.E.2d 470 (1st Dist.1958) (absence
of extra handrail on stairway not a concealed or latent defect); Cromwell v. Allen, 151 Ill.App.
404 (4th Dist.1909) (no liability where defendant had no knowledge of rotted condition of
porch); Shields v. J.H. Dole Co., 186 Ill.App. 250 (2d Dist.1914) (no liability for injury to
Section 130, Page 2 of 5
tenant's servant where landlord and tenant both had knowledge of the defective condition of the
building); Soibel v. Oconto Co., 299 Ill.App. 518, 20 N.E.2d 309 (1st Dist.1939) (no evidence
that landlord knew or should have known of rotted floor); Elbers v. Standard Oil Co., 331
Ill.App. 207, 72 N.E.2d 874 (1st Dist.1947) (lack of oil in hydraulic lift not a latent defect);
Farmer v. Alton Bldg. & Loan Ass'n, 294 Ill.App. 206, 13 N.E.2d 652 (4th Dist.1938) (jury
question as to whether a cesspool covering was defective and whether defendant knew or should
have known about the defect); Clerken v. Cohen, 315 Ill.App. 222, 42 N.E.2d 846 (1st
Dist.1942) (lack of gutters which caused ice to form not a latent defect); Sollars v. Blayney, 31
Ill.App.2d 341, 176 N.E.2d 477 (3d Dist.1961) (judgment for plaintiff proper where evidence
showed landlord knew of defect in roof which caused puddle on plaintiff's floor); Murphy v.
Messerschmidt, 41 Ill.App.3d 659, 355 N.E.2d 78 (5th Dist.1976), aff'd, 68 Ill.2d 79, 368 N.E.2d
1299, 11 Ill.Dec. 553 (1977) (texture of stairs not latent defect where fall was caused by severe
rain); Webster v. Heim, 80 Ill.App.3d 315, 399 N.E.2d 690, 35 Ill.Dec. 624 (3d Dist.1980) (a
single exit, lack of fire doors and provision of combustible furniture to other tenants were not
latent defects).
A landlord has no duty, however, to notify a tenant of defects discovered after the time of
letting. Long v. Joseph Schlitz Brewing Co., 214 Ill.App. 517 (1st Dist.1919).
Section 130, Page 3 of 5
130.02 Accident On Premises Reserved For Common Use
A landlord must use ordinary care to keep the [stairs, hallway, etc.] in a reasonably safe
condition [for the purpose for which the [stairs, hallway, etc.] were reasonably intended].
Notes on Use
This instruction is applicable where there is more than one living unit in the building and
there are premises reserved for common use. The blanks should be filled in with items used in
common, such as stairs, hallway, etc.
The bracketed phrase should be used where there is a dispute as to whether the premises
were being used for a purpose for which they were reasonably intended. The phrase may not be
appropriate in the case of a minor using the premises for purposes other than those for which the
premises were reasonably intended. Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836
(1955); Smith v. Springman Lumber Co., 41 Ill.App.2d 403, 191 N.E.2d 256 (4th Dist.1963)
(verdict in favor of minor tenant proper where it was foreseeable that children would play on
dangerous, unused fuel oil tank stored in side yard); Rahn v. Beurskens, 66 Ill.App.2d 423, 213
N.E.2d 301 (4th Dist.1966) (jury question as to whether it was foreseeable that a minor tenant
might grasp a defective electrical wire while simultaneously grasping a water faucet); Drell v.
American Nat. Bank & Trust Co., 57 Ill.App.2d 129, 207 N.E.2d 101 (1st Dist.1965) (owner of
apartment building liable when empty oxygen tank stored in passageway was upset by tug of
dog's leash tied to tank, injuring minor plaintiff).
The fact that a minor may be trespassing on a landlord's property is not a defense.
Schranz v. Halley, 114 Ill.App.3d 159, 448 N.E.2d 601, 69 Ill.Dec. 883 (3d Dist.1983)
(instruction improper which implied that if the jury found that the minor plaintiff, who was
injured when she leaned against a defective railing and fell to the ground, was trespassing, she
could not recover).
IPI 120.04 should be used in a case involving a minor whose rights are governed by the
doctrine in the Kahn case. See Comment to IPI 120.04.
Comment
The landlord must use ordinary care to keep the premises reserved for common use
reasonably safe. Durkin v. Lewitz, 3 Ill.App.2d 481, 123 N.E.2d 151 (1st Dist.1954) (it was
negligent to permit ice to form on a second floor landing as a result of defective gutter);
Stevenson v. Byrne, 3 Ill.App.2d 43, 48, 120 N.E.2d 377, 379-380 (1st Dist.1954) (plaintiff fell
because of a hole in the vestibule floor). Liability extends to injuries on the leased premises
caused by negligence in maintaining the common premises. Ciskoski v. Michalsen, 19 Ill.App.2d
327, 152 N.E.2d 479 (1st Dist.1958) (blocked chimney caused asphyxiation from fumes of gas
heater); Mangan v. F.C. Pilgrim & Co., 32 Ill.App.3d 563, 336 N.E.2d 374 (1st Dist.1975)
(building's infestation with mice caused plaintiff to encounter a mouse in her apartment, become
frightened, and fall). This duty of the landlord does not go beyond maintaining the common
premises for the uses for which they were reasonably intended. If the tenant puts the common
Section 130, Page 4 of 5
premises to a different use, the landlord's duty ceases. McGinnis v. Berven, 16 Ill.App. 354, 356
(1st Dist.1885) (mandatory instructions were erroneous which did not limit use of a second story
porch to its intended purposes where the porch gave way under the load of seven people and an
ash box weighing one ton).
The landlord has no duty to remove natural accumulations of snow or ice regardless of
the length of time which passes after the accumulation. Foster v. George J. Cyrus & Co., 2
Ill.App.3d 274, 276 N.E.2d 38 (1st Dist.1971) (rejecting dicta in Durkin, supra, indicating
otherwise).
Liability may be incurred, however, when snow or ice is not produced or accumulated
from natural causes, but as a result of artificial causes or in any unnatural way, or when
defendant's own use of the area concerned created the condition, and whether the condition has
been there long enough to charge the responsible party with notice and knowledge of the
dangerous condition. Bakeman v. Sears, Roebuck & Co., 16 Ill.App.3d 1065, 307 N.E.2d 449
(2d Dist.1974); Cupp v. Nelson, 5 Ill.App.3d 37, 282 N.E.2d 513 (1st Dist.1972) (error to grant
new trial where jury found defendant negligent in spreading salt on some but not all of the icy
steps upon which plaintiff fell); Webb v. Morgan, 176 Ill.App.3d 378, 531 N.E.2d 36, 125
Ill.Dec. 857 (5th Dist.1988) (verdict for plaintiff proper where jury could determine that an icy
parking lot upon which plaintiff fell was the product of an unnatural accumulation caused by
water running off snowbanks onto a common parking area and freezing); Lapidus v. Hahn, 115
Ill.App.3d 795, 450 N.E.2d 824, 71 Ill.Dec. 136 (1st Dist.1983) (ice formed because of defective
roof was an unnatural accumulation).
The mere sprinkling of salt on a stairway, which may cause ice to melt, although it later
refreezes, is not the kind of act which aggravates a natural condition and leads to a landlord's
liability. Lewis v. W. F. Smith & Co., 71 Ill.App.3d 1032, 390 N.E.2d 39, 28 Ill.Dec. 57 (1st
Dist.1979). A custom of gratuitous snow and ice removal does not give rise to a duty to continue
to remove natural accumulations of snow or ice. Chisolm v. Stephens, 47 Ill.App.3d 999, 365
N.E.2d 80, 7 Ill.Dec. 795 (1st Dist.1977).
Section 130, Page 5 of 5
130.03 Accident On Leased Premises--Landlord Undertakes Repairs
A landlord who undertakes to make improvements or repairs upon the leased premises is
under a duty to use ordinary care in carrying out the work [even if the landlord was not under a
legal obligation to make the improvements or repairs].
Notes on Use
Before this instruction can be given, there must be evidence of affirmative conduct which
caused a defect. Saputo v. Fatla, 25 Ill.App.3d 775, 324 N.E.2d 34 (1st Dist.1975) (instruction
properly refused where no evidence was presented linking general plumbing repairs with water
on the floor of a bathroom); St. Mary's Hospital v. Auburn, 128 Ill.App.3d 747, 471 N.E.2d 584,
84 Ill.Dec. 55 (4th Dist.1984) (no liability in furnace explosion action for failing to inspect
furnace where there was no evidence of the negligent performance of work on the furnace).
Evidence of affirmative conduct may include a landlord's consistent course of conduct in making
repairs, which may establish a duty to maintain plaintiff's premises. Jones v. Chicago Housing
Authority, 59 Ill.App.3d 138, 376 N.E.2d 26, 17 Ill.Dec. 133 (1st Dist.1978) (landlord liable for
failure to repair window latch where it had consistently made repairs in the past when notified of
the need). Thus, failure to act can also impose liability where the landlord's course of conduct in
consistently making repairs establishes a duty to maintain plaintiff's premises.
The bracketed material should be used when some point is made during the trial that the
landlord undertook to make the repairs without compensation.
Comment
A landlord who undertakes repairs must use ordinary care in carrying them out whether
fulfilling a contractual obligation or doing them gratuitously. Roesler v. Liberty Nat. Bank of
Chicago, 2 Ill.App.2d 54, 118 N.E.2d 621 (1st Dist.1954); Jordan v. Savage, 88 Ill.App.2d 251,
232 N.E.2d 580 (1st Dist.1967) (plaintiff injured on stairs after landlord inadequately secured a
bannister to a deteriorated plaster wall with straight nails); Watts v. Bacon & Van Buskirk Glass
Co., 20 Ill.App.2d 164, 155 N.E.2d 333 (3d Dist.1958) (lessor liable for installing plate glass
door instead of tempered glass); Sims v. Block, 94 Ill.App.2d 215, 236 N.E.2d 572 (5th
Dist.1968) (landlord liable for negligent snow removal in parking lot); Williams v. Alfred N.
Koplin & Co., 114 Ill.App.3d 482, 448 N.E.2d 1042, 70 Ill.Dec. 164 (2d Dist.1983) (summary
judgment inappropriate where plaintiff alleged her fall was caused by the landlord's voluntarily
shoveling a narrow path on a stairway which left a handrail inaccessible).
This duty extends to all those who may reasonably be expected to encounter the
improved or repaired property. Brewer v. Bankord, 69 Ill.App.3d 196, 387 N.E.2d 344, 25
Ill.Dec. 688 (2d Dist.1979) (complaint alleging tenant's social guest injured by landlord's
negligent repairs stated cause of action).
Section 135, Page 1 of 1
135.00
ABUTTING PROPERTY OWNER
135.01 Duty Of Owner Of Property Abutting Sidewalk
The owner of property abutting a public sidewalk is under a duty to exercise ordinary
care not to create an unsafe condition [which would interfere] [by interfering] with the customary
and regular use of the walk.
Comment
An owner of abutting property who alters a sidewalk for his own convenience has a duty
to use ordinary care to maintain the alteration in a reasonably safe condition. Kellems v. Schiele,
297 Ill.App. 388, 394; 17 N.E.2d 604, 606 (4th Dist.1938) (plaintiff walking on the sidewalk fell
into a coal chute insecurely covered with a piece of iron); Sweat v. Aircraft & Diesel Equipment
Corp., 335 Ill.App. 177, 81 N.E.2d 8 (1st Dist.1948) (owner liable when it roped off section of
sidewalk to prevent the possibility of injury from a falling cornice, thereby forcing plaintiff to
use a rough and slippery portion of the sidewalk on which she fell); McDonald v. Frontier Lanes,
Inc., 1 Ill.App.3d 345, 272 N.E.2d 369 (2d Dist.1971) (owner liable where he allowed cars to
park in a position blocking the sidewalk and forcing pedestrians to walk on a parkway).
For liability to be imposed, however, a landowner must perform some affirmative act in
creating an unsafe condition or obstruction or in asserting control over a sidewalk. Dodd v.
Cavett Rexall Drugs, Inc., 178 Ill.App.3d 424, 533 N.E.2d 486, 127 Ill.Dec. 614 (1st Dist.1988)
(no affirmative act to assert control where sidewalk in question was not the only means of
ingress and egress, and building did not even have an entrance along that sidewalk); accord,
Thiede v. Tambone, 196 Ill.App.3d 253, 553 N.E.2d 817, 143 Ill.Dec. 110 (2d Dist.1990); Smith
v. Rengel, 97 Ill.App.3d 204, 422 N.E.2d 1146, 52 Ill.Dec. 937 (4th Dist.1981) (landlord's
actions in mowing lawn, shoveling snow and filling holes in parkway adjacent to walkway
constituted sufficient exercise of control to impose liability for plaintiff's injury caused by hole in
parkway); Perry v. Chicago & North Western Transp. Co., 54 Ill.App.3d 82, 369 N.E.2d 155, 11
Ill.Dec. 701 (1st Dist.1977) (instruction properly refused where construction of passenger
terminal, though blocking motorists' vision of pedestrians, did not alter or create an obstruction
on a sidewalk); Repinski v. Jubilee Oil Co., 85 Ill.App.3d 15, 405 N.E.2d 1383, 40 Ill.Dec. 291
(1st Dist.1980) (no liability when plaintiff tripped in a depressed area of sidewalk also used as
driveway, where driveway was used for intended purpose and defect was caused by normal
deterioration).
However, an owner is not liable for ice forming on a sidewalk as a result of his piling
snow next to the sidewalk. Riccitelli v. Sternfeld, 1 Ill.2d 133, 115 N.E.2d 288 (1953) (merely
adding snow from defendant's business premises to piles created by shoveling sidewalk did not
create an unnatural condition).
Section 140, Page 1 of 1
140.00
MUNICIPALITY
140.01 Streets, Parkways, Sidewalks And Alleys--Duty Of City
[Withdrawn]
Comment
In prior editions of IPI, this instruction read: “A city has a duty to use ordinary care to
maintain [streets] [parkways] [sidewalks] and [alleys] in a reasonably safe condition.”
The committee has withdrawn IPI 140.01 and offers no instructions that deal specifically
with the duties or negligence of municipalities. This is based on the committee's conclusion that
such instructions are unnecessary and duplicative of IPI 10.04 (adult's duty to use ordinary care),
14.04 (duty to refrain from willful and wanton conduct) and 120.02 (duty of owner/occupier to
exercise ordinary care to keep property in a reasonably safe condition). See Barreto v. City of
Waukegan, 133 Ill.App.3d 119, 478 N.E.2d 581, 590; 88 Ill.Dec. 266, 274 (2d Dist.1985); Rehak
v. City of Joliet, 52 Ill.App.3d 724, 367 N.E.2d 1070, 1071-1072; 10 Ill.Dec. 461, 462-463 (3d
Dist.1977).
A municipality's duty to a particular plaintiff in a particular fact situation is an issue of
law to be determined by the court. Once that determination is made, either IPI 10.04, 14.04, or
120.02 will almost always apply. Ordinarily, there should be no reason to particularize the duty
to the facts of the case, any more than in any other case involving non-municipality defendants.
In the rare case where a special duty exists, IPI 10.04 or 14.04 can be modified appropriately.
Section 150, Page 1 of 25
ACTIONS BASED ON STATUTES
150.00
DRAM SHOP ACT
PERMISSION TO PUBLISH GRANTED IN 2003.
INTRODUCTION
Section 6-21 of the Liquor Control Act of 1934 (the Dramshop Act) (235 ILCS 5/6-21
(2000)) creates a cause of action against owners of businesses that sell liquor, and also against
lessors or owners of the premises on which the liquor is sold, for physical injury to a person, for
injury to tangible property, or for injury to means of support or loss of society, but not both,
caused by an intoxicated person.
The plaintiff must prove that the intoxication was caused by consumption of liquor
provided by a defendant and that the injury, property damage, or loss of means of support or loss
of society was caused by the act of an intoxicated person. Davis v. Oettle, 43 Ill.App.2d 149, 193
N.E.2d 111 (4th Dist.1963); Hernandez v. Diaz, 31 Ill.2d 393, 202 N.E.2d 9 (1964); Clifton v.
Nardi, 65 Ill.App.3d 344, 382 N.E.2d 514, 22 Ill.Dec. 194 (1st Dist.1978). The concept of
causation is one commonly understood and the jury need not be instructed as to its meaning.
Kingston v. Turner, 115 Ill.2d 445, 505 N.E.2d 320, 106 Ill.Dec. 14 (1987). More than one dram
shop may cause a single intoxication. In order to “cause” the intoxication the liquor must be a
material and substantial factor in the intoxication. There is no liability for providing a de
minimus amount. However, two 12 ounce cans of beer sold immediately before the collision is
sufficient. Mohr v. Jilg, 223 Ill.App.3d 217, 586 N.E.2d 807, 166 Ill.Dec. 849 (4th Dist.1992).
See also Kingston. An example of an action is one brought as the result of a collision of a car
driven by an intoxicated person with another car, injuring its driver and killing the passenger, the
father of four. In that case, there would be injury to the person of the driver, to the property of
the driver, and injury to the means of support of the family of the passenger or, at his election,
loss of society.
The practitioner should consider whether there is a basis to seek recovery simultaneously
for property damage, personal injury, and damage to means of support or loss of society. Shiflett
v. Madison, 105 Ill.App.2d 382, 388-389, 245 N.E.2d 567, 570-571 (1969); Kelly v. Hughes, 33
Ill.App.2d 314, 179 N.E.2d 273 (2d Dist.1962). Separate recoveries can be obtained as to each of
these types of damage where applicable, and statutory limitations upon the amount of recovery
apply to each element separately and not to the aggregate amount recovered. However, a plaintiff
must elect between loss of society and loss of means of support as the statute provides that the
plaintiff may not recover for both. 235 ILCS 5/6-21(a) (1998). Note, however, that if more than
one dram shop is liable, the limits apply to all dram shops liable as a group. In other words, dram
shops cannot be “stacked.”
Section 150, Page 2 of 25
Pursuant to the Dram Shop Act, recovery is limited to $15,000 for personal injury and
property damage and $20,000 for loss of support for actions arising prior to September 12, 1985.
However, for causes of action arising after that date, the limits of recovery have been raised by
the 1985 amendment to the Dram Shop Act to $30,000 for personal injury and property damage
and $40,000 for loss of support. Effective July 1, 1998, the limits were raised to $45,000 for
personal injury or property damage and $55,000 for either loss of means of support or loss of
society. Beginning in 1999 the amount is to be adjusted for inflation. It has been held that the
legislature's increase in the liability limits did not change existing case law in regard to stacking.
Rinkenberger v. Cook, 191 Ill.App.3d 508, 548 N.E.2d 133, 138 Ill.Dec. 903 (4th Dist.1989).
The dram shop litigant must also be aware of the types of expenditures which qualify as
recoverable damages. As a general rule, medical expenses incurred on behalf of the injured
person constitute personal injury damages, not property damage. Thorsen v. City of Chicago, 74
Ill.App.3d 98, 392 N.E.2d 716, 30 Ill.Dec. 61 (1st Dist.1979); Rinkenberger v. Cook, 191
Ill.App.3d 508, 548 N.E.2d 133, 138 Ill.Dec. 903 (4th Dist.1989). However, if the injured person
is a minor or spouse physically injured by an intoxicated person, and the parent or non-injured
spouse is obligated to pay the medical expenses under the family expense statute, 750 ILCS
65/15 (1994), these medical expenses may be considered property damage. Thompson v.
Tranberg, 45 Ill.App.3d 809, 360 N.E.2d 108, 4 Ill.Dec. 361 (2d Dist.1977); Kelly v. Hughes, 33
Ill.App.2d 314, 179 N.E.2d 273 (2d Dist.1962); Shepherd v. Marsaglia, 31 Ill.App.2d 379, 176
N.E.2d 473 (2d Dist.1961); Fortner v. Norris, 19 Ill.App.2d 212, 153 N.E.2d 433 (3d Dist.1958).
In Ragan v. Protko, 66 Ill.App.3d 257, 383 N.E.2d 745, 22 Ill.Dec. 937 (5th Dist.1978),
the court concluded that in order for a parent to recover for his adult child's medical and funeral
expenses, he must be legally liable for the charges, and this liability must not arise due to a
voluntary assumption of financial responsibility. Maras v. Bertholdt, 126 Ill.App.3d 876, 467
N.E.2d 599, 81 Ill.Dec. 728 (2d Dist.1984), also suggested (in dictum) that if the plaintiff-estate
has paid the decedent's medical and funeral bills, the bills would be recoverable as property
damage inasmuch as the estate has a legal obligation to pay the bills and suffered a loss of
property.
Relying on Demikis v. One Cent Club, 319 Ill.App. 191, 48 N.E.2d 782 (1943), and
Shiflett v. Madison, 105 Ill.App.2d 382, 245 N.E.2d 567 (1969), the court in Maras v. Bertholdt,
supra, held that pain and suffering is an element recoverable as a personal injury. The Maras
court further held that recovery for pain and suffering survives the death of the injured party, and
that the plaintiff could recover for decedent's pain and suffering if the plaintiff could prove that
the decedent consciously suffered pain following the accident. Prior to the 1998 amendment, loss
of consortium was not recoverable under the Dram Shop Act. Knierim v. Izzo, 22 Ill.2d 73, 174
N.E.2d 157 (1961). Effective July 1, 1998, plaintiff may recover loss of society. 235 ILCS 5/621 (1998).
Recovery for loss of support under the Act is justified under the theory that a person
actually contributing to support prior to the time of his death would likely have continued such
support had he lived. Angeloff v. Raymond, 70 Ill.App.3d 594, 388 N.E.2d 1128, 27 Ill.Dec. 165
(2d Dist.1979). The law requires a showing that support was in fact rendered, and recovery
cannot be based upon the future potential of support not presently provable. Angeloff v.
Section 150, Page 3 of 25
Raymond, supra, Penoyer v. Hare, 76 Ill.App.3d 225, 394 N.E.2d 1082, 31 Ill.Dec. 764 (2d
Dist.1979). Support must be measured by such tangibles as loss of wages and inability to
continue to earn a living. Stevens v. B & L Package Liquors, Inc., 66 Ill.App.3d 120, 383 N.E.2d
676, 22 Ill.Dec. 868 (5th Dist.1978). It need not be proven that the decedent had a legal
obligation to support the plaintiff. Support actually received, though voluntarily contributed, is
sufficient and there need not be a legal claim to support. Robertson v. White, 11 Ill.App.2d 177,
136 N.E.2d 550 (1st Dist.1956).
Services rendered by a wife in performance of her household and domestic duties do not
constitute a loss of means of support under the Act. Although there is a language in Weiner v.
Trasatti, 19 Ill.App.3d 240, 311 N.E.2d 313 (1st Dist.1974), suggesting that domestic services
are a means of support, the Illinois decisions since Weiner have continued to back away from
that language. These courts construe the Wiener language as dicta, having no precedential value.
See Farmers State Bank & Trust Co. v. Lahey's Lounge, Inc., 165 Ill.App.3d 473, 519 N.E.2d
121, 116 Ill.Dec. 531 (4th Dist.1988) (summarizing decisions); Wilberton v. Freddie's Pepper
Box, Inc., 148 Ill.App.3d 319, 499 N.E.2d 615, 102 Ill.Dec. 58 (1st Dist.1986); Maras v.
Bertholdt, 126 Ill.App.3d 876, 467 N.E.2d 599, 81 Ill.Dec. 728 (2d Dist.1984); Penoyer v. Hare,
76 Ill.App.3d 225, 394 N.E.2d 1082, 31 Ill.Dec. 764 (2d Dist.1979); Martin v. American Legion
Post No. 784, 66 Ill.App.3d 116, 383 N.E.2d 672, 22 Ill.Dec. 864 (5th Dist.1978); Stevens v. B &
L Package Liquors, Inc., 66 Ill.App.3d 120, 383 N.E.2d 676, 22 Ill.Dec. 868 (5th Dist.1978).
Means of support as defined in the post Weiner decisions relates to a party's wage earning
potential and does not include maternal duties and domestic chores. Note however that the cases
holding loss of society is not recoverable as part of loss of support have been affected by the
statutory amendment effective July 1, 1998, allowing recovery for loss of means of support.
The presumption of loss existing under the Wrongful Death Act when beneficiaries are
lineal next of kin does not exist under the Dram Shop Act. Howlett v. Doglio, 402 Ill. 311, 83
N.E.2d 708 (1949); Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157 (1961).
In addition to those statutory amendments noted above, other amendments of significance
to the Dram Shop Act occurred in 1965, 1971, 1986 and 1998. The 1965 Amendment allowed a
person who was injured in means of support to maintain a loss of support action in his own
name, even if the person providing the support was alive at the time the action was brought. Prior
to 1965, the person providing the support was a necessary party in such cases. See Simmons v.
Hendricks, 32 Ill.2d 489, 207 N.E.2d 440 (1965).
The 1971 amendment eliminated the words “in whole or in part” from the first sentence
of the Act. Prior to the 1971 amendment, liability was imposed upon any defendant who “by
selling or giving alcoholic liquor has caused the intoxication, in whole or in part, of such person
...” Thus, a dram shop plaintiff must now prove that the defendant dram shop “caused” the
intoxication of the allegedly intoxicated person. The amendment established a requirement that
the charged defendant must have done more than furnish a negligible amount of intoxicating
liquor. Kingston v. Turner, 115 Ill.2d 445, 457; 505 N.E.2d 320, 325; 106 Ill.Dec. 14, 19 (1987);
Caruso v. Kazense, 20 Ill.App.3d 695, 697, 313 N.E.2d 689, 691 (3d Dist.1974); Nelson v.
Araiza, 69 Ill.2d 534, 372 N.E.2d 637, 14 Ill.Dec. 441 (2d Dist.1977); Henry v. Bloomington
Third Ward Community Club, 89 Ill.App.3d 106, 411 N.E.2d 540, 44 Ill.Dec. 418 (4th
Dist.1980). However, more than one dram shop can be liable if more than one “caused” the
Section 150, Page 4 of 25
intoxication. Thompson v. Tranberg, 45 Ill.App.3d 809, 812; 360 N.E.2d 108, 111; 4 Ill.Dec.
361, 364 (2d Dist.1977).
A 1986 amendment provides that anyone at least 21 years old, who pays for a hotel or
motel room or facility knowing that such place is to be used by anyone under 21 for the unlawful
consumption of liquor and such consumption causes the intoxication of the person under 21,
shall be liable to anyone who is injured by the intoxicated person. 235 ILCS 5/6-21.
The 1998 amendment increased the limits, provided for limit “indexing” and allowed for
recovery for loss of means of support. The definition of loss of means of support is identical to
the language of IPI 31.11. The Dram Shop Act itself contains a one-year limitations period. 235
ILCS 5/6-21 (1998). This restriction is statutory and not subject to the general provisions of the
Limitations Act (735 ILCS 5/13-101 et seq. (1994)). The dram shop limitations period is not
tolled for injuries to minors. Seal v. American Legion Post No. 492, 245 F.2d 908 (7th Cir.1957);
Lowrey v. Malkowski, 20 Ill.2d 280, 170 N.E.2d 147 (1960); cert. denied, 365 U.S. 879, 81 S.Ct.
1029, 6 L.Ed.2d 191 (1961); Demchuk v. Duplancich, 92 Ill.2d 1, 440 N.E.2d 112, 64 Ill.Dec.
560 (1982). Nor is it equitably tolled merely because discovery could not be obtained because of
a driver's invocation of the fifth amendment based on pending criminal charges. Bradford v.
Soto, 159 Ill.App.3d 668, 512 N.E.2d 765, 111 Ill.Dec. 376 (2d Dist.1987).
The Dram Shop Act has limited extra-territorial effect. Thus, no cause of action arises
under the Act for injuries occurring outside the State of Illinois, even though the gift or sale of
alcoholic liquors which caused the occurrence may have occurred within this state and the person
harmed is a resident of Illinois. Graham v. General U.S. Grant Post No. 2665, V.F.W., 43 Ill.2d
1, 248 N.E.2d 657 (1969); Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292 (1st
Dist.1963); Eldridge v. Don Beachcomber, Inc., 342 Ill.App. 151, 95 N.E.2d 512 (1st Dist.1950).
This holding was codified by Public Act 84-1381, effective September 12, 1986, which explicitly
provided that only persons injured “within this state” have a cause of action under the Dram
Shop Act. However, that same amendment to the Act states that a cause of action can be
maintained against any person, “licensed under the laws of this state or of any other state to sell
alcoholic liquor,” who sells or gives liquor “within or without the territorial limits of this state.”
Thus, although a prerequisite to a cause of action is that the injury occur within Illinois, a sale of
liquor outside of Illinois causing injury within Illinois is now actionable under the Illinois Dram
Shop Act. This 1986 amendment statutorily overrules prior cases (e.g., Wimmer v. Koenigseder,
108 Ill.2d 435, 484 N.E.2d 1088, 92 Ill.Dec. 233 (1985)) which held that no cause of action
arises for injuries occurring in Illinois following the sale of alcoholic liquors outside of Illinois to
Illinois residents.
An insurance carrier which has paid first party benefits to the injured victim has the right,
as subrogee of an injured party, to bring an action against the responsible dram shop. Dworak v.
Tempel, 17 Ill.2d 181, 161 N.E.2d 258 (1959).
An intoxicated person has no cause of action for his own injuries. Holmes v. Rolando,
320 Ill.App. 475, 51 N.E.2d 786 (4th Dist.1943); Monsen v. DeGroot, 130 Ill.App.3d 735, 475
N.E.2d 5, 86 Ill.Dec. 199 (1st Dist.1985). Contributory negligence is not a defense in dram shop
cases. Merritt v. Chonowski, 58 Ill.App.3d 192, 373 N.E.2d 1060, 15 Ill.Dec. 588 (3d Dist.1978).
Section 150, Page 5 of 25
Also, the doctrine of comparative negligence has not been recognized in a dram shop action.
Reeves v. Brno, Inc., 138 Ill.App.3d 861, 486 N.E.2d 405, 93 Ill.Dec. 304 (2d Dist.1985).
Furthermore, the Dram Shop Act does not create tort liability for purposes of the Contribution
Act, since the liability created by the Dram Shop Act does not sound in tort. Hopkins v. Powers,
113 Ill.2d 206, 497 N.E.2d 757, 100 Ill.Dec. 579 (1986); Jodelis v. Harris, 118 Ill.2d 482, 517
N.E.2d 1055, 115 Ill.Dec. 369 (1987).
The Dram Shop Act provides the sole remedy against tavern operators and owners of
tavern premises for any injury caused by an intoxicated person or in consequence of intoxication.
Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157 (1961); see also Hopkins v. Powers, 113 Ill.2d 206,
497 N.E.2d 757, 100 Ill.Dec. 579 (1986). However, the Dram Shop Act does not insulate a
tavern owner from all potential common law liability. Thus, a tavern keeper has a duty to see that
his guests are free from annoyance of injury as much as any possessor of land must act as a
reasonable man in avoiding harm to invitees from negligence or even intentional attacks of third
persons. Lessner v. Hurtt, 55 Ill.App.3d 195, 371 N.E.2d 125, 13 Ill.Dec. 430 (2d Dist. 1977). It
has been held that this duty of a tavern keeper to a patron is a “high duty of care.” Hayes v.
O'Donnell, 76 Ill.App.3d 695, 395 N.E.2d 184, 32 Ill.Dec. 237 (2d Dist. 1979). While the tavern
owner's duty may decrease when the patron leaves the bar, the tavern operator is in a special
relationship with third persons on his premises and has a duty to take reasonable action to protect
invitees from foreseeable damages caused by third persons. St. Phillips v. O'Donnell, 137
Ill.App.3d 639, 484 N.E.2d 1209, 92 Ill.Dec. 354 (2d Dist. 1985). The tavern keeper must take
reasonable affirmative action to protect against misconduct of third parties, when the danger is
apparent and the circumstances are such as to put a prudent person on notice of the probability of
danger. Yangas v. Charlie Club, Inc., 113 Ill.App.3d 398, 447 N.E.2d 484, 69 Ill.Dec. 267 (3d
Dist. 1983). See also Osborne v. Stages Music Hall, Inc., 312 Ill.App.3d 141, 726 N.E.2d 728,
244 Ill.Dec. 753 (1st Dist. 2000).
A tavern keeper may be liable to his business invitees on the same basis as any other
owner or occupier of property, even though the sale and consumption of alcoholic beverages
may have been a factor in the injury. In Harris v. Gower, Inc., 153 Ill.App.3d 1035, 506 N.E.2d
624, 106 Ill.Dec. 824 (5th Dist. 1987), a complaint alleging that the tavern owners negligently
removed an unconscious and intoxicated patron from the tavern and placed him in his car where
he subsequently froze to death was held to state a cause of action for common-law negligence
rather than negligence in the sale of intoxicating liquor, and thus was not barred by the existence
of the Dram Shop Act as the exclusive remedy against tavern owners for injuries resulting from
intoxication.
The two defenses which were generally recognized are commonly referred to as
“complicity” and “provocation.” Earlier cases based the defense of complicity on the proposition
that a plaintiff cannot recover for injuries or damage inflicted by an intoxicated person when the
plaintiff contributes to a material and substantial degree to the intoxication. Osinger v. Christian,
43 Ill.App.2d 480, 193 N.E.2d 872 (1st Dist. 1963); Holcomb v. Hornback, 51 Ill.App.2d 84, 200
N.E.2d 745 (4th Dist. 1964). In Nelson v. Araiza, 69 Ill.2d 534, 543; 372 N.E.2d 637, 641; 14
Ill.Dec. 441, 445 (1978), a number of inconsistent judicial definitions and applications of the
complicity doctrine were “distilled” into this rule of law: “only one who actively contributes to
or procures the intoxication of the inebriate is precluded from recovery.” See also Parsons v.
Section 150, Page 6 of 25
Veterans of Foreign Wars Post 6372, 86 Il.App.3d 515, 408 N.E.2d 68, 41 Ill.Dec. 722 (5th Dist.
1980). Following Nelson, there were several decisions that seemed to authorize other definitions
of complicity. In Walter v. Carriage House, Hotels Ltd., 164 Ill.2d 80, 646 N.E.2d 599, 207
Ill.Dec. 33, (1995), the Supreme Court noted the bright line drawn by the Nelson court and found
that IPI 150.17 did not reflect the law following Nelson. IPI 150.17 has been amended to follow
Nelson.
Whether or not a plaintiff is barred by his conduct under the doctrine of complicity is
generally a question of fact for the jury. Complicity is an affirmative defense which must be
raised by the defendant. Goodknight v. Piraino, 197 Ill.App.3d 319, 554 N.E.2d 1, 7; 143 Ill.Dec.
208, 214 (4th Dist. 1990); cf. Darguzas v. Robinson, 162 Ill.App.3d 362, 515 N.E.2d 451, 452;
113 Ill.Dec. 642, 643 (2d Dist. 1987) (referring to the “affirmative defense of complicity”).
Since complicity is not predicated on the plaintiff’s contribution to his injury, but only
upon his contribution to the intoxication, the question arises as to whether or not provocation is a
defense to a claim under the Illinois Liquor Control Act. In Nelson v. Araiza, 69 Ill. 2d 534, 372
N.E.2d 637, 14 Ill.Dec. 441 (1978), the Illinois Supreme Court held that since the Illinois Liquor
Control Act was not predicated on negligence, contributory negligence was not a defense in a
dramshop case, and held that the doctrine of complicity was an affirmative defense under the
Act. The Nelson court did not specifically address the issue of provocation. Before and after
Nelson, but preceding Walter v. Carriage House Hotels, 164 Ill.2d 80, 646 N.E.2d 599, 207
Ill.Dec. 33 (1995), a variety of cases held under the old Act that provocation was an affirmative
defense which must be raised by the defendant. Tresch v. Nielsen, 57 Ill.App.2d 469, 207 N.E.2d
109 (1st Dist. 1965); Williams v. Franks, 11 Ill.App.3d 937, 298 N.E. 401 (1st Dist. 1973); Aiken
v. J.R.’s Lounge, Inc., 158 Ill.App.3d 834, 512 N.E.2d 130, 111 Ill.Dec. 226 (3rd Dist. 1987);
Gilman v. Kessler, 192 Ill.App.3d 630, 548 N.E.2d 1371, 139 Ill.Dec. 657 (2nd Dist. 1989).
However, Galyean v. Duncan, 125 Ill.App.3d 464, 466 N.E.2d 264, 80 Ill.Dec. 812 (5th
Dist. 1984), held that provocation was not a defense to the Act, refusing a defendant’s proposed
instructions on provocation. But see Werner v. Nebal, 377 Ill.App.3d 447, 878 N.E.2d 811, 316
Ill.Dec. 89 (1st Dist. 2007) (refusing an instruction on the issue of provocation because the facts
did not warrant it, but stated that provocation is an affirmative defense under the Act.)
Charitable organizations selling liquor are liable, as is a trustee operating a dram shop
pursuant to testamentary direction. Klopp v. Benevolent Protective Order of Elks, 309 Ill.App.
145, 33 N.E.2d 161 (3d Dist.1941); Moran v. Katsinas, 17 Ill.App.2d 423, 150 N.E.2d 637 (3d
Dist. 1958), aff'd, 16 Ill.2d 169, 157 N.E.2d 38 (1959). However, a trustee under a land trust is
not liable under the Dram Shop Act. Wendt v. Myers, 59 Ill.2d 246, 319 N.E.2d 777 (1974);
Robinson v. Walker, 63 Ill.App.2d 204, 211 N.E.2d 488 (1st Dist. 1965).
Because the Dram Shop Act is designed to regulate the liquor traffic as a business, it does
not apply to an individual who serves intoxicants to his guests. Cruse v. Aden, 127 Ill. 231, 20
N.E. 73 (1889); Blackwell v. Fernandez, 324 Ill.App. 597, 59 N.E.2d 342 (1st Dist. 1945). Thus,
social hosts whose guests became intoxicated are not liable under the Act. Miller v. Moran, 96
Ill.App.3d 596, 421 N.E.2d 1046, 52 Ill.Dec. 183 (4th Dist. 1981); Richardson v. Ansco, Inc., 75
Ill.App.3d 731, 394 N.E.2d 801, 31 Ill.Dec. 599 (3d Dist. 1979); Heldt v. Brei, 118 Ill.App.3d
Section 150, Page 7 of 25
798, 455 N.E.2d 842, 74 Ill.Dec. 413 (1st Dist. 1983); Wienke v. Champaign County Grain
Ass'n, 113 Ill.App.3d 1005, 447 N.E.2d 1388, 69 Ill.Dec. 701 (4th Dist. 1983); Puckett v. Mr.
Lucky's, Ltd., 175 Ill.App.3d 355, 357; 529 N.E.2d 1169, 1170; 125 Ill.Dec. 93, 94 (4th Dist.
1988). The Act has also been held not to be applicable to a noncommercial supplier and
employer who served intoxicating liquor to his minor employee. Martin v. Palazzolo Produce
Co., 146 Ill.App.3d 1084, 497 N.E.2d 881, 100 Ill.Dec. 703 (5th Dist.1986).
Illinois does not recognize a common law action for negligently furnishing alcoholic
beverages which cause intoxication and result in injury. See e.g., Puckett v. Mr. Lucky's, Ltd.,
175 Ill.App.3d 355, 357-358; 529 N.E.2d 1169, 1170-1171; 125 Ill.Dec. 93, 94-95 (4th Dist.
1988) (holding that there is no common law right to recover against a tavern for giving away or
selling intoxicating liquor because the Dram Shop Act provides the exclusive source of such
liability); but see Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity, 155 Ill.App.3d 231,
237; 507 N.E.2d 1193, 1197-1198; 107 Ill.Dec. 824, 828-829 (4th Dist. 1987), recognizing that
the furnishing of intoxicating beverages to underage persons does not of itself create a legal duty
necessary for the establishment of a common law negligence action, but also finding that a
fraternal organization may be held liable in negligence, under appropriate circumstances, for
foreseeable injuries sustained by membership applicants required to engage in illegal and
excessively dangerous activities.
Comments, instructions and related notes to “in consequence” actions have been omitted
in that they apply only to causes of action accruing before 9/12/85. In the event a practitioner
should need to review those, they are in the 1995 edition.
Introduction revised October 2008.
Section 150, Page 8 of 25
150.01 Dram Shop Act--Injury to Person or Property by an Intoxicated Person
There was in force in the State of Illinois at the time of the occurrence in question a
statute called the Dram Shop Act providing that every person who shall be injured in person or
property by any intoxicated person as a result of his intoxication shall have a right of action [in
his own name] against any person who shall, by selling or giving alcoholic liquor, have caused
the intoxication of such intoxicated person.
Notes on Use
This instruction is to be used when the seller alone is sued for injury to person or property
by an intoxicated person. This instruction should be given with IPI 150.02 (elements), IPI 150.15
(defining intoxicated), and, if necessary IPI 150.16 (defining alcoholic liquor). These dramshop
instructions should be used with as much of IPI 30.01-30.16 on damages as is applicable under
the pleadings and proof. IPI 30.01 should be changed from “have resulted from the negligence
[wrongful conduct] of the defendant” to “caused by the intoxicated person.”
Section 150, Page 9 of 25
150.02 Dram Shop Act--Issue/Burden of Proof
[In this lawsuit] [In Count ____,] plaintiff [(name)] claims [(he/she)] is entitled to recover
damages from the defendant. The plaintiff must prove:
First, [(allegedly intoxicated person)] was intoxicated at the time of the [(e.g., collision)].
Second, the defendant, his agents or servants, sold or gave intoxicating liquor consumed
by [(allegedly intoxicated person)].
Third, the liquor thus consumed caused the intoxication of [(allegedly intoxicated
person)].
Fourth, [(allegedly intoxicated person)]'s intoxication was at least one cause of the
occurrence in question.
Fifth, as a result of the occurrence, plaintiff suffered [injury] [damage to his property].
If you find from your consideration of all the evidence that each of these propositions has
been proved, then your verdict should be for the plaintiff. But if, on the other hand, you find
from your consideration of all the evidence that any of these propositions has not been proved,
then your verdict should be for the defendant.
Instruction and Notes on Use revised May 2009.
Notes on Use
This instruction lists the elements in a cause of action against the seller alone for injury to
person or property by an intoxicated person. Therefore, it is to be used with IPI 150.01. The
addition of the last paragraph to this instruction is to advise the jury of the effect of their finding
of the evidence and eliminates the need to give IPI 21.02 as a separate instruction.
Comment
While the defendant's actions must be a “material and substantial factor” in causing the
intoxication (Thompson v. Tranberg, 45 Ill.App.3d 809, 360 N.E.2d 108, 4 Ill.Dec. 361 (2d Dist.
1977)), the Illinois Supreme Court held that the use of the Thompson language in a jury
instruction was “confusing,” “uninstructive” and “unnecessary.” Kingston v. Turner, 115 Ill.2d
445, 461; 505 N.E.2d 320, 327; 106 Ill.Dec. 14, 21 (1987). The word “causes” is not a “technical
legal term requiring definition” and “has a commonly understood meaning familiar to any
jurors,” and therefore it was inappropriate to define it using the Thompson language. Id. at 45960, 505 N.E.2d at 326-327, 106 Ill.Dec. at 20, 21 (quoting in part Caruso v. Kazense, 20
Ill.App.3d 695, 697; 313 N.E.2d 689, 691 (3d Dist. 1974)). Pursuant to the Supreme Court's
guidance, the word “caused” in element 3 will remain unmodified and undefined.
Section 150, Page 10 of 25
150.03 Dram Shop Act--Injury to Means of Support by an Intoxicated Person--Seller Sued
There was in force in the State of Illinois at the time of the occurrence in question a
statute called the Dram Shop Act providing that every person who shall be injured in [means of
support] [loss of society] by an intoxicated person or persons shall have a right of action against
any person or persons who shall, by selling or giving alcoholic liquor, have caused the
intoxication of such intoxicated person
[The suit is brought in the name of [plaintiff's name], for the exclusive benefit of [those
claiming loss of support], the person(s) who claim(s) to have been injured in (his) (their) means
of support, and (he) (they) (is) (are) the real (party) (parties) in interest.]
Notes on Use
This instruction is to be used when the seller alone is sued for injury to means of support
or loss of society caused by an intoxicated person. A plaintiff cannot recover for both loss of
society and loss of means of support.
This instruction should be given with IPI 150.04 (elements of cause of action), IPI 150.15
(defining intoxicated), IPI 150.14 (defining means of support), IPI 31.11 (defining loss of
society), IPI 150.13 (damage for injury to means of support), and, if necessary, IPI 150.16
(defining alcoholic liquor).
Comment
The instruction is based on that part of 235 ILCS 5/6-21 (1998), which applies in cases of
injury to means of support caused by an intoxicated person. Generally, the act of the intoxicated
person must be a tort for which he would be liable at common law. Hill v. Alexander, 321
Ill.App. 406, 427, 53 N.E.2d 307, 316 (1st Dist. 1944).
Section 150, Page 11 of 25
150.04 Dram Shop Act--Issue/Burden of Proof--Loss of Means of Support or Society
[In this lawsuit] [In Count ____,] plaintiff [(name)] claims [(name)] is entitled to recover
damages from the defendant. The plaintiff must prove:
First, [(allegedly intoxicated person)] was intoxicated at the time of the [(e.g., collision)].
Second, the defendant, his agents or servants, sold or gave intoxicating liquor consumed
by [(allegedly intoxicated person)].
Third, the liquor consumed caused the intoxication of [(allegedly intoxicated person)].
Fourth, [(allegedly intoxicated person)]'s intoxication was at least one cause of the
[injury] [death] of [(name)].
Fifth, as a result of the occurrence, [plaintiff's name] [names of real parties in interest]
[has] [have] suffered [injury to [his] [their] means of support] [a loss of society].
If you find from your consideration of all the evidence that each of these propositions has
been proved, then your verdict should be for the plaintiff. But if, on the other hand, you find
from your consideration of all the evidence that any of these propositions has not been proved,
then your verdict should be for the defendant.
Instruction and Notes on Use revised May 2009.
Notes on Use
This instruction defines the elements necessary to be proved when a seller alone is sued
for injury to means of support or loss of society caused by an intoxicated person. It should be
given with IPI 150.03. The addition of the last paragraph to this instruction is to advise the jury
of the effect of their finding of the evidence and eliminates the need to give IPI 21.02 as a
separate instruction. If loss of society is an issue, IPI 31.11 should be used.
Comment
See Comment to IPI 150.02.
Section 150, Page 12 of 25
150.07 Dram Shop Act--Joint Liability of Owner, Lessor, etc.
The Dram Shop Act also provides that any person owning, renting, leasing or permitting
the occupation of any building or premises, and having knowledge that alcoholic liquors are to
be sold therein or who, having leased the same for other purposes, shall knowingly permit the
sale therein of alcoholic liquors that have caused the intoxication of any person, shall be liable
jointly with the person selling or giving alcoholic liquors.
Notes on Use
This instruction is to be used where both seller and another (such as the owner, lessor,
etc.) are sued. It should be given with other instructions according to the theory of liability. For
example:
(a) Injury to person or property by an intoxicated person, give with IPI 150.01 and IPI
150.09.
(b) Injury to means of support by an intoxicated person, give with IPI 150.03 and IPI
150.11.
Pursuant to an amendment to the Dram Shop Act, effective September 12, 1985, there is
no cause of action under the Act for loss of means of support to dependents of the intoxicated
person himself or by any person claiming to be supported by such intoxicated person.
In addition, in all three instances use IPI 150.15 (defining intoxicated) and, if necessary,
IPI 150.16 (defining alcoholic liquor). Finally, if the injury is to means of support, IPI 150.14
(defining means of support) and IPI 150.13 (damages for means of support) should also be given.
IPI 31.11 (defining loss of society) should be given if that is the loss claimed.
Section 150, Page 13 of 25
150.08 Dram Shop Act--Injury to Person or Property--Only Owner, Lessor, etc. Sued-Statutory Provisions
There was in force in the State of Illinois at the time of this occurrence a statute called the
Dram Shop Act providing that any person owning, renting, leasing or permitting the occupation
of any building or premises and having knowledge that alcoholic liquors were to be sold therein,
or who having leased the same for other purposes, shall knowingly permit the sale therein of
alcoholic liquors, and if the sale or gift of alcoholic liquors in those premises has caused the
intoxication of any person, then every person injured in person or property by the intoxicated
person shall have a right of action [in (his)(her) own name] against the person owning, renting,
leasing or permitting the premises to be so used for the sale or gift of alcoholic liquors.
Notes on Use
This instruction is to be used where the owner or another alone is sued for injury to
person or property caused by an intoxicated person. It should be given with IPI 150.09 (elements
of the cause of action), IPI 150.15 (defining intoxicated) and, if necessary, IPI 150.16 (defining
alcoholic liquor). These dramshop instructions should be used with as much of IPI 30.01-30.16
on damages as is applicable under the pleadings and proof. IPI 30.01 should be changed from
“have resulted from the negligence [wrongful conduct] of the defendant” to “caused by the
intoxicated person.”
Section 150, Page 14 of 25
150.09 Dram Shop Act--Burden of Proof--Injury to Person or Property by an Intoxicated
Person--Tavern Operator and Property Owner Both Sued
[In this lawsuit] [In Count ____,] plaintiff [(name)] claims [(name)] is entitled to recover
damages from the defendant. The plaintiff must prove:
First, [(name of intoxicated person)] was intoxicated at the time of the [(e.g., collision)].
Second, the defendant [(tavern operator)], or his agents or servants, sold or gave
intoxicating liquors consumed by [(name of intoxicated person)].
Third, the liquor thus consumed caused the intoxication of [(name of intoxicated
person)].
Fourth, [(intoxicated person)] intoxication was at least one cause of the occurrence in
question.
Fifth, as a result of the occurrence, plaintiff suffered [injury] [damage to his property].
In the case against the defendant [name of property owner], the plaintiff has the burden of
proving all the foregoing foregoing propositions and also must prove the further proposition that
the defendant [name of property owner] [either] [owned], [rented], [leased] [or] [permitted the
occupation of] the premises [knowing that alcoholic liquors were to be sold there] [or] [although
(owning), (renting), (leasing) (or) (permitting the occupation of) the premises for purposes other
than selling alcoholic liquors, knowingly permitted them to be sold there].
Notes on Use
This instruction lists the elements which must be proved in a suit for injury to person or
property by an intoxicated person.
The instruction should be given with IPI 150.07 if the owner and seller are sued jointly.
In that case identify the defendants by name in elements two and three.
The instruction should be given with IPI 150.08 if the owner is sued alone. In that case
omit the bracketed material in element three.
These dramshop instructions should be used with as much of IPI 30.01-30.16 on damages
as is applicable under the pleadings and proof. IPI 30.01 should be changed from “have resulted
from the negligence [wrongful conduct] of the defendant” to “caused by the intoxicated person.”
You must also use an appropriate “effects of finding” instruction (i.e. 20.02) and a conclusion
(i.e. 20.02(b) or 150.17) if complicity is plead.
Comment
See Comment to IPI 150.02.
Section 150, Page 15 of 25
150.10 Dram Shop Act--Injury to Means of Support--Loss of Society--Only Owner, Lessor,
etc. Sued
There was in force in the State of Illinois at the time of the occurrence in question a
statute called the Dram Shop Act providing that every person who shall [be injured in means of
support] [suffer a loss of society] by an intoxicated person shall have a right of action against any
person owning, renting, leasing or permitting the occupation of any building or premises and
having knowledge that alcoholic liquors were to be sold therein or who having leased the same
for other purposes shall knowingly permit the sale therein of alcoholic liquors that have caused
the intoxication of such intoxicated person.
[The suit is brought in the name of [plaintiff's name] for the exclusive benefit of [those
claiming loss of support], the person(s) who claim(s) to have been injured in (his) (their) means
of support, and (he) (they) (is) (are) the real (party) (parties) in interest.]
Notes on Use
This instruction is to be used where the owner or lessor alone is sued for injury to means
of support by the intoxicated person.
This instruction should be given with IPI 150.11.
In addition, it should be used with IPI 150.15 (defining intoxicated), IPI 150.14 (defining
means of support), and IPI 150.13 (damages for injury to means of support), and, if necessary,
IPI 150.16 (defining alcoholic liquors).
Section 150, Page 16 of 25
150.11 Dram Shop Act--Burden of Proof--Injury to Means of Support by an Intoxicated
Person--Tavern Operator and Property Owner Both Sued
[In this lawsuit] [In Count ____,] plaintiff [(name)] claims [(name)] is entitled to recover
damages from the defendant. The plaintiff must prove:
First, [(name of intoxicated person)] was intoxicated at the time of the [(e.g., collision)].
Second, the defendant [(tavern operator)], or his agents or servants, sold or gave
intoxicating liquors consumed by [(name of intoxicated person)].
Third, the liquor thus consumed caused the intoxication of [(name of intoxicated
person)].
Fourth, [(intoxicated person)] intoxication was at least one cause of [(injured person)]'s
[injury] [death].
Fifth, as a result of the occurrence, [(plaintiff's name)] [one or more of the following:
[(names of real parties in interest)]] [has] [have] suffered [injury] [to (his) (their) means of
support] [damage to his property].
In his case against the defendant [name of property owner], the plaintiff has the burden of
proving all of the foregoing propositions and also must prove the further propositions that the
defendant [name of property owner] [either] [owned], [rented], [leased] [or] [permitted the
occupation of] the premises knowing that alcoholic liquors were to be sold there [or] [although
(owning), (renting), (leasing) (or) (permitting the occupation of) the premises for purposes other
than selling alcoholic liquors, knowingly permitted them to be sold there].
Notes on Use
This instruction sets forth the elements in a cause of action for injury to means of support
or loss of society by the intoxication of a person.
The instruction should be given with IPI 150.07 if the owner and seller are sued jointly.
The instruction should be given with IPI 150.10 if the owner is sued alone. IPI 31.11
(defining loss of society) should be given if that is the loss claimed. Appropriate effect of
findings instruction and a concluding paragraph are also required.
Comment
See Comment to IPI 150.02.
Section 150, Page 17 of 25
150.13 Dram Shop Act--Damages--Apportionment--Means of Support--Loss of Society
If you decide for the plaintiff on the question of liability, you must then fix the total
amount of money which will reasonably and fairly compensate the person[s] you find [has]
[have] suffered [loss to [his] [their] means of support] [for their loss of society], for such loss.
[You should also state the proportions in which the amount shall be distributed among
those persons.]
Notes on Use
Use the second paragraph if more than one person claims loss of support and if plaintiff
requests that the jury apportion the damages. In that case, a verdict form must also be submitted
which includes the names of the claimants and a line for each on which the jury can fill in the
amount awarded to that person. The Committee recommends that the verdict form use dollar
amounts rather than percentages.
IPI 41.04 may be used with this instruction if there are two or more defendants.
IPI 150.14 should be used to define means of support. IPI 31.11 defines loss of society.
Comment
Prior to the September 12, 1985, amendment to the Dram Shop Act, the amount that can
be recovered for loss of support resulting from an injury to the person furnishing support is an
aggregate of $20,000. Under the September 12, 1985, amendment, the amount that can be
recovered for loss of support resulting from an injury to the person furnishing support is an
aggregate of $40,000. Effective on July 1, 1998, this was raised to $55,000 and added an
alternative to recover loss of society but not both. This is true regardless of the fact that several
persons claim loss of support. See Moran v. Katsinas, 16 Ill.2d 169, 157 N.E.2d 38 (1959).
No special instructions as to the dollar limits on recovery may be given the jury. 235
ILCS 5/6-21 (1994).
235 ILCS 5/6-21 (1998) provides in part that the amount awarded, “shall be distributed to
such persons in the proportions determined by the judgment or verdict rendered in the action.”
Therefore, because of the inclusion of the words “or verdict,” it seems proper either for the jury
in its verdict or the court after the verdict to allocate the sum among the persons claiming loss of
support. The defendant or defendants cannot object that the jury has not made an allocation
because this determination is a matter between the beneficial plaintiffs in which the defendants
have no real interest. Peters v. Kamiczaitis, 161 Ill.App. 575 (3d Dist. 1911).
A jury may not return a verdict apportioning damages between joint defendants, as for
example, between the first tavern and the last tavern where the intoxicated person was served
liquor. Schwehr v. Badalamenti, 14 Ill.App.2d 128, 134-136; 143 N.E.2d 558, 561-562 (4th Dist.
1957).
Section 150, Page 18 of 25
150.14 Dram Shop Act--”Means of Support”--Defined
The phrase, “means of support” includes the necessities of life, and comforts as well.
Whatever lessens or impairs the ability to supply the necessities of life and suitable comforts
which might reasonably be expected from the person who furnished support, considering his
occupation and capacity for earning money, may be regarded as lessening or impairing the
“means of support” referred to in these instructions.
Comment
Under the September 12, 1985, amendment to the Dram Shop Act, there is no cause of
action remaining under the Act for loss of means of support to dependents of the intoxicated
person himself or by any person claiming to be supported by such intoxicated person. For causes
of action arising after that amendment, therefore, this instruction only has applicability for loss of
means of support caused by an intoxicated person.
In McMahon v. Sankey, 133 Ill. 636, 24 N.E. 1027 (1890), the court approved an
instruction similar to this one and also approved deleting from another instruction the question of
whether the person injured in means of support was financially independent. No definite basis
for estimating damages need be proved, nor need there be a legal liability for support. Pearson v.
Renfro, 320 Ill.App. 202, 50 N.E.2d 598 (2d Dist. 1943) (injured sons contributed to parent's
household expenses); Herring v. Ervin, 48 Ill.App. 369 (3d Dist. 1892).
Possible prospective support is not sufficient. See the Introduction.
Section 150, Page 19 of 25
150.15 Dram Shop Act—“Intoxicated” Defined
A person is “intoxicated” when as a result of drinking alcoholic liquor there is an
impairment of his mental or physical faculties so as to diminish his ability to think and act with
ordinary care.
Notes on Use
This instruction may also be used in negligence or other cases in which intoxication is claimed.
See IPI 12.01.
Comment
This instruction was approved in Navarro v. Lerman, 48 Ill.App.2d 27, 36, 198 N.E.2d
159, 162-163 (1st Dist. 1964). See also Woolley v. Hafner's Wagon Wheel, Inc., 22 Ill.2d 413,
420; 176 N.E.2d 757, 760-761 (1961).
Section 150, Page 20 of 25
150.16 Dram Shop Act—“Alcoholic Liquor” Defined
The term “alcoholic liquor” means and includes every liquid or solid containing alcohol,
wine, beer, or spirits including brandy, rum, whiskey, and gin and capable of being consumed as
a beverage by a human being, but does not mean or include any such liquid or solid which
contains one-half of one per cent, or less, of alcohol, by volume.
Comment
The definition is based on 235 ILCS 5/1-3.01 to 5/1-3.05 (1994), especially the latter. An
instruction in the words of the statute was approved in Cox v. Hrasky, 318 Ill.App. 287, 295; 47
N.E.2d 728, 732 (4th Dist. 1943).
Section 150, Page 21 of 25
150.17 Dram Shop Act--Affirmative Defense--Complicity
[In this lawsuit][In Count ____] the defendant claims the plaintiff should not recover
because of plaintiff's conduct in causing [(allegedly intoxicated person)]'s intoxication. To
establish this defense the defendant must prove the plaintiff actively contributed to or procured
the intoxication of [(allegedly intoxicated person)].
If you find the plaintiff actively contributed to or procured the intoxication of [(allegedly
intoxicated person)], then your verdict should be for the defendant.
Instruction, Notes on Use and Comment revised May 2009.
Notes on Use
Use in conjunction with the issue/burden of proof instruction IPI 150.02 and/or 150.04.
Comment
This is the only definition of complicity after Nelson v. Araiza, 69 Ill.2d 534, 372 N.E.2d
637, 14 Ill.Dec. 441 (1978). There the court enumerated why the other previous alternatives
including provocation were not complicity.
After Nelson, several appellate cases seemed to adopt pre-Nelson definitions of
complicity. In Walter v. Carriage House Hotels, Ltd., 164 Ill.2d 80, 646 N.E.2d 599, 207 Ill.Dec.
33 (1995), the Supreme Court again dealt with the issue of complicity. The court started with a
detailed review of Nelson. The court explained how post-Nelson cases ignored the clear language
of Nelson: that a plaintiff is guilty of complicity only if he actively contributed to or procured the
intoxication of the intoxicated person.
Since Walter, this is the only definition used in reported cases. See Kulikowski v. Lawson,
305 Ill.App.3d 110, 710 N.E.2d 1275, 238 Ill.Dec. 173 (3d Dist.1999) and dissenting opinion in
Charles v. Seigfried, 165 Ill.2d 482, 651 N.E.2d 154, 209 Ill.Dec. 226 (1995).
Section 150, Page 22 of 25
150.17A Dram Shop Act--Effect of Finding Complicity Defense
[Withdrawn]
Instruction withdrawn May 2009.
Comment
See IPI 150.17.
Section 150, Page 23 of 25
150.18 Dram Shop Act--Injury to Person or Property--Person Paying for Hotel or Motel
Room or Facility
There was in force in the State of Illinois at the time of this occurrence a statute called the
Dram Shop Act, providing that any person at least 21 years of age who pays for a hotel or motel
room or facility knowing that the room or facility is to be used by any person under 21 years of
age for the unlawful consumption of alcoholic liquors shall be liable to any person who is injured
in person or property by the intoxicated person under 21 years of age who used the room or
facility for such consumption and became intoxicated.
Notes on Use
This instruction is to be used where a person at least 21 years of age, who pays for the
hotel or motel room or facility, is sued for injury to person or property caused by an intoxicated
person under 21 years of age. It should be given with IPI 150.19 (elements of the cause of
action), IPI 150.15 (defining intoxicated) and, if necessary, IPI 150.16 (defining alcoholic
liquor). These dramshop instructions should be used with as much of IPI 30.01 through 30.16 on
damages as is applicable under the pleadings and proof. IPI 30.01 should be changed from “have
resulted from the negligence (wrongful conduct) of the defendant” to “caused by the intoxicated
person.”
Comment
This provision was added by amendment to 235 ILCS 5/6-21(c)(1994).
Section 150, Page 24 of 25
150.19 Dram Shop Act--Burden of Proof--Injury to Person or Property by an Intoxicated
Person Under 21--Person Paying for Hotel or Motel or Facility
[In this lawsuit] [In Count ____,] plaintiff [(name)] claims [(name)] is entitled to recover
damages from the defendant. The plaintiff must prove:
First, [(name of intoxicated person under 21 years of age)] was intoxicated at the time of
the [(e.g., collision)].
Second, the defendant, [(person allegedly paying for room or facility)], paid for a hotel or
motel room or facility.
Third, the defendant [(person allegedly paying for room or facility)], was at least 21 years
of age when he paid for the hotel or motel room or facility.
Fourth, the defendant [(person allegedly paying for room or facility)], knew that the hotel
or motel room or facility was to be used by a person under 21 years of age for the unlawful
consumption of alcoholic liquors.
Fifth, the liquor thus consumed caused the intoxication of [(name of intoxicated person
under 21 years of age)].
Sixth, [(intoxicated person under 21 years of age)]'s intoxication was at least one cause of
the occurrence in question.
Seventh, as a result of the occurrence, plaintiff suffered [injury] [damage to his property].
Notes on Use
This instruction lists the elements which must be proved in a suit for injury to person or
property by an intoxicated person under 21 years of age with respect to a person who pays for a
hotel or motel room or facility. See 235 ILCS 5/6-21(a)(1994).
The instruction should be given with IPI 150.18 and with an appropriate effect of finding
concluding paragraph.
These dramshop instructions should be used with as much of IPI 30.01-30.16 on damages
as is applicable under the pleadings and proof. IPI 30.01 should be changed from “have resulted
from the negligence [wrongful conduct] of the defendant” to “caused by the intoxicated person.”
Section 155, Page 1 of 8
155.00
The Drug or Alcohol Impaired Minor Responsibility Act
INTRODUCTION
Illinois courts have been consistent in relying on over a century of precedent prohibiting
common-law actions for injuries arising out of the sale or gift of alcoholic beverages. Charles v.
Seigfried, 165 Ill.2d 482, 209 Ill.Dec. 226, 651 N.E.2d 154 (1995). Our Supreme Court has held
that the legislature, through the enactment of the Illinois Liquor Control Act of 1934, 235 ILCS
5/6-21 (West 2000), has preempted the field of alcohol-related liability, and that any changes in
the law governing alcohol-related liability should be made by the General Assembly. Charles,
supra.
Two exceptions have arisen, however, and common-law tort causes of action have been
held to exist where a.) there have been violations of the Illinois Hazing Statute (720 ILCS 120/5)
where plaintiffs were required to drink to intoxication to become members of a fraternity, Quinn
v. Sigma Rho Chapter of Beta Theta Pi Fraternity, 155 Ill.App.3d 231, 107 Ill.Dec. 824, 507
N.E.2d 1193 (1987); Haben v. Anderson, 232 Ill.App.3d 260, 173 Ill.Dec. 681, 597 N.E.2d 655
(1992); Goodknight v. Piraino, 197 Ill.App.3d 319, 143 Ill.Dec.208, 554 N.E.2d 1(1990),
expressly rejecting the extension of the Quinn-Haben analysis to situations other than those
involving a college hazing incident and b.) where there has been a negligent performance of a
voluntary undertaking (adopting Restatement (2nd) of Torts section 323) where one voluntarily
undertakes the responsibility to care for an intoxicated person and does so negligently. Wakulich
v. Mraz, 203 Ill.2d 223, 271 Ill.Dec. 649, 785 N.E.2d 843 (2003).
After Wakulich, 740 ILCS 58/5, et seq. became effective on January 1, 2004, applying to
causes of action accruing on or after October 1, 2004.
Instruction approved January 2010.
Section 155, Page 2 of 8
155.01 The Drug or Alcohol Impaired Minor Responsibility Act--Injury to Person or
Property by an Impaired Minor
There was in force in the State of Illinois at the time of the occurrence in question a
statute called “The [Drug] [or] [Alcohol] Impaired Minor Responsibility Act,” which states:
Any person 18 years of age or older who [willfully supplies, sells, gives or delivers
(alcoholic liquor)(illegal drugs)] [willfully permits the consumption of (alcoholic
liquor)(illegal drugs) on non-residential premises owned or controlled by that person] to a
person under the age of 18 and causes or contributes to cause the impairment of that
person, is liable for [death][or][injury] to a [person][or] [property] caused by the
impairment of such person.
Instruction, Notes on Use and Comment approved January 2010.
Notes on Use
The above is a synopsis of the Act. The bracketed language should be used to comply
with the facts of the case.
Comment
Note that paragraph (a) of the statute imposes liability on a person “at least 18 years of
age” but paragraphs (b) and (b)(ii) refer to a person “over the age of 18.” The committee believes
it was the legislature's intent to impose liability on a person “18 years of age or older,” and the
legislative hearings so reflect.
Section 155, Page 3 of 8
155.02 The Drug or Alcohol Impaired Minor Responsibility Act--Issues/Burden of Proof-Willfully Supplied
[In this lawsuit] [In Count], [plaintiff's name] claims [he] [she] [it] is entitled to recover
damages from [defendant's name]. The plaintiff must prove:
First, [defendant] is a person at least 18 years of age;
Second, [defendant] willfully [(supplied)(sold)(gave)(delivered)] [(alcoholic
liquor)(illegal drugs)] to [AIP], a person under the age of 18, which
Third, caused or contributed to cause the impairment of [AIP].
Fourth, the impairment of [AIP] caused [injury to [plaintiff]] [the death of [plaintiff's
decedent]][property damage to [plaintiff]].
[Defendant's name] [denies that he did (any)(one or more) of the things alleged by
(plaintiff's name)][denies that any claimed act on his part was a cause of the impairment of
[AIP]][denies that the impairment caused injury or damage to (plaintiff's name)] and denies that
[plaintiff's name] has been injured to the extent claimed.
Instruction, Notes on Use and Comment approved January 2010.
Notes on Use
Use Issue/Burden of Proof 155.03 if the allegations involve consumption of liquor or
drugs on non-residential property.
Comment
Note that the person injured may be the impaired person. Also, neither “willful” nor
“impairment” is defined under the Act.
Section 155, Page 4 of 8
155.03 The Drug or Alcohol Impaired Minor Responsibility Act--Issues/Burden of Proof-Willfully Permitted
[In this lawsuit] [In Count], [plaintiff's name] claims [he] [she] [it] is entitled to recover
damages from [defendant's name]. The plaintiff must prove:
First, [defendant] is a person at least 18 years of age;
Second, [defendant] willfully permitted the consumption of [(alcoholic liquor)(illegal
drugs)] on non-residential property owned or controlled by [defendant], to [AIP], a person under
the age of 18, which
Third, caused or contributed to cause the impairment of [AIP].
Fourth, the impairment of [AIP] caused [injury to [plaintiff]] [the death of [plaintiff's
decedent]][property damage to [plaintiff]].
[Defendant's name] [denies that he did (any)(one or more) of the things alleged by
(plaintiff's name)][denies that any claimed act on his part was a cause of the impairment of
[AIP]][denies that the impairment caused injury or damage to (plaintiff's name)] and denies that
[plaintiff's name] has been injured to the extent claimed.
Instruction, Notes on Use and Comment approved January 2010.
Notes on Use
Use Issue/Burden of Proof 155.02 if the allegations do not involve consumption of liquor
or drugs on non-residential property.
Comment
Note that the person injured may be the impaired person. Also, neither “willful” nor
“impairment” is defined under the Act.
Section 155, Page 5 of 8
155.04 The Drug or Alcohol Impaired Minor Responsibility Act--Measure of Damages
If you decide for [plaintiff's name] on the question of liability, you must then fix the
amount of money that will reasonably and fairly compensate [him] [her] [it] for any of the
following elements of damages proved by the evidence to have resulted from the impairment of
the person under the age of 18:
Economic Damages
[the cost of treatment and rehabilitation]
[medical expenses]
[loss of economic or educational potential]
[loss of productivity]
[absenteeism]
[support expenses]
[accidents or injuries]
[any other pecuniary loss]
Non-Economic Damages
[physical and emotional pain]
[suffering]
[physical impairment]
[emotional distress]
[mental anguish]
[disfigurement]
[loss of enjoyment of life]
[loss of companionship]
[services]
[consortium]
[any other non-pecuniary losses]
Section 155, Page 6 of 8
Property Damages
Punitive Damages
Whether any of these elements of damages has been proved by the evidence is for you to
decide.
Instruction, Notes on Use and Comment approved January 2010.
Notes on Use
The bracketed subparts should only be used if there is evidence of such damage(s). For
property damage instructions, refer to IPI 30.10 to 30.20, when appropriate. For punitive
damages, refer to the new instruction within this section.
Comment
In addition to the above damages, the statute, 740 ILCS 58/10 (3) and (4), allows
attorneys' fees and costs of suit, including, but not limited to, reasonable expenses for expert
testimony. The committee believes that these elements of damages should be assessed by the
court rather than by a jury.
Section 155, Page 7 of 8
155.05 The Drug or Alcohol Impaired Minor Responsibility Act--Punitive Damages
In addition to compensatory damages, the law permits you to award punitive damages for
conduct that violates the Act. If you believe that justice and the public good require it, you may
award an amount of money that will punish [(defendant's name)] and discourage [it, him, her]
and others from similar conduct.
In arriving at your decision as to the amount of punitive damages, you should consider
the following three questions. The first question is the most important to determine the amount of
punitive damages:
1. How reprehensible was [(defendant's name)] conduct?
On this subject, you should consider the following:
a) The facts and circumstances of defendant's conduct;
b) The [financial] vulnerability of the plaintiff;
c) The duration of the misconduct;
d) The frequency of defendant's misconduct;
e) Whether the harm was physical as opposed to economic;
f) Whether defendant tried to conceal the misconduct;
g) [other]
2. What actual and potential harm did defendant's conduct cause to the plaintiff in this case?
3. What amount of money is necessary to punish defendant and discourage defendant and others
from future wrongful conduct [in light of defendant's financial condition]?
[In assessing the amount of punitive damages, you may not consider defendant's similar
conduct in jurisdictions where such conduct was lawful when it was committed].
The amount of punitive damages must be reasonable and in proportion to the actual and
potential harm suffered by the plaintiff.
Instruction and Notes on Use approved January 2010.
Notes on Use
The Act allows for punitive damages, and this instruction should be used instead of the
common-law instruction for punitive damages (see IPI 35.01 for comparison).
Section 155, Page 8 of 8
155.06 The Drug or Alcohol Impaired Minor Responsibility Act--Contributory Negligence
and Contributory Willful and Wanton Conduct--Not Defenses
[In this lawsuit] [In Count __] [contributory negligence][contributory willful and wanton
conduct] is not a defense.
You must not consider whether there was [contributory negligence][contributory willful
and wanton conduct] on behalf of [plaintiff or the injured party claiming damages].
Instruction and Notes on Use approved January 2010.
Notes on Use
Section 58/15 (740 ILCS 58/15) specifically excludes contributory negligence and willful
and wanton conduct as defenses.
Section 160, Page 1 of 44
160.00
FEDERAL EMPLOYERS' LIABILITY ACT
INTRODUCTION
Railroad employees who are injured in the course of their employment have a cause of
action against their employer under a Federal statute known as The Federal Employers' Liability
Act (FELA), 46 U.S.C.A. §§ 51-59, rather than under the common law. Under certain
circumstances, FELA actions may also involve either the Safety Appliance Act, 45 U.S.C.A. §§
1-16, the Boiler Inspection Act, 45 U.S.C.A. §§ 22-23, or both. In addition to railroad
employees, the protection of the Federal Employers' Liability Act is also extended to seamen by
the Jones Act, 46 U.S.C.A. § 688. The instructions in this section can be readily adapted for use
in Jones Act cases.
Section 51 of FELA provides for an action for damages against any common carrier by
railroad in interstate or foreign commerce arising out of the injury or death of an employee while
employed in such commerce, “resulting in whole or in part from the negligence of any of the
officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to
its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves,
or other equipment.”
The second paragraph of that section declares that any employee, “any part of whose
duties ... shall be the furtherance of interstate or foreign commerce; or shall, in any way directly
or closely and substantially affect such commerce,” is within the scope of the Act.
Section 53 removes contributory negligence as a complete defense to the action and
provides instead for proportionate diminution of damages to the extent of the employee's
contributory negligence. This is the “pure” form of comparative negligence as adapted in Illinois
for negligence in Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52 Ill.Dec. 23 (1981), not the
statutory comparative fault subsequently mandated by the Illinois General Assembly for causes
of action accruing on and after November 25, 1986 (735 ILCS 5/2-1116 (1994)). Moreover,
under FELA, where a carrier's violation of a statute enacted for the safety of employees (such as
the Safety Appliance Act or Boiler Inspection Act) contributes to the injury or death, the
employee cannot be deemed guilty of any contributory negligence.
Section 54, by its language, removes assumption of risk as a defense in cases where the
injury or death resulted, in whole or in part, from the negligence of an officer, agent or employee
of the carrier, or where the violation of a statute enacted for the safety of employees contributed
to the injury or death.
Section 59 provides for the survival of actions under the Act to the personal
representative for the benefit of the surviving spouse and children, and if none, for the benefit of
the parents, and if none, for the benefit of the next of kin dependent on the decedent. As opposed
to the Illinois Wrongful Death Act, which is for the benefit of the “surviving spouse and next of
Section 160, Page 2 of 44
kin” (740 ILCS 180/2 (1994)), the next of kin under FELA have no right of recovery if there is a
spouse, child or parent surviving.
A final general area of difference includes the extent to which federal, rather than state,
law is applicable, even where the action is tried in a state court. Bowman v. Illinois Central R.
Co., 11 Ill.2d 186, 142 N.E.2d 104 (1957), cert. denied, 355 U.S. 837, 78 S.Ct. 63, 2 L.Ed.2d 49
(1957) (reviewing court in FELA case may not determine whether jury verdict and judgment are
against the manifest weight of the evidence; limited to determining whether there is an
evidentiary basis for the verdict); Mitchell v. Toledo, P. & W. R. Co., 4 Ill.App.3d 1, 279 N.E.2d
782 (3d Dist.1972) (scope of appellate review is governed by federal law and is limited to
determining whether there is an evidentiary basis for the verdict; only when there is a complete
absence of probative facts to support the verdict can there be a reversal).
Section 160, Page 3 of 44
160.01 Statutory Provisions
At the time of the occurrence, there was in force a federal statute known as the Federal
Employers' Liability Act. That Act provided that whenever an employee of a railroad is [injured]
[or] [killed] while engaged in the course of his employment, the railroad shall be liable in
damages [to the injured employee] [and/or] [for the death of the employee], where the [injury]
[and/or] [death] results in whole or in part [from the negligence of any of the officers, agents, or
other employees of the railroad] [or] [by reason of any defect or insufficiency, due to the
railroad's negligence, in its (cars) (engines) (appliances) (machinery) (track) (roadbed) (works)
(boats) (wharves) (other equipment)].
[Contributory negligence on the part of the injured employee shall not bar a recovery, but
the damages shall be diminished by the jury in proportion to the amount of negligence
attributable to such employee.]
Notes on Use
The bracketed material should be selected to fit the charges of negligence to be submitted
to the jury. For example, in a case involving only allegations charging negligence of an
employee, the bracketed phraseology concerning equipment should be omitted.
If contributory negligence is a factual issue, the second paragraph should be given.
If the Safety Appliance or Boiler Inspection Acts are at issue, then use the IPI 170 series
of instructions.
The instruction as to the method by which damages should be adjusted for contributory
negligence, IPI 160.13, should also be given when this issue is involved.
The instruction should be accompanied by IPI 10.01 defining negligence. If contributory
negligence is an issue, IPI 160.04 defining contributory negligence in FELA cases should also be
used with this instruction. See Wilson v. Norfolk & W. Ry. Co., 109 Ill.App.3d 79, 440 N.E.2d
238, 64 Ill.Dec. 686 (5th Dist.1982).
Moreover, IPI 15.01 dealing with proximate cause should not be used in a FELA case.
160.01 is a combination of former instructions 160.01-160.04.
Comment
This instruction paraphrases the pertinent portions of the Act, 45 U.S.C.A. §§ 51 et seq.
An instruction in the language of the statute has been sustained. Fritz v. Pennsylvania R. Co.,
185 F.2d 31 (7th Cir.1950), and authorities therein cited. The categories of equipment set out in
the bracket meets the requirement that only the specific provisions of the Act actually involved
should be mentioned. Terminal R. Ass'n of St. Louis v. Fitzjohn, 165 F.2d 473, 480 (8th
Cir.1948).
Section 160, Page 4 of 44
Conforming to the committee's decision to follow the statutory language, the phrase
“results in whole or in part from the negligence” has been employed in lieu of the proximate
cause terminology more customary in common law negligence actions. Such an instruction is
adequate, and the addition of the terminology “proximate” adds nothing and is not essential.
Gilmore v. Toledo P.W. R.R. Co., 36 Ill.2d 510, 515, 224 N.E.2d 228, 231 (1967). See the
Comment to IPI 160.04 regarding the issue of proximate cause.
Although the statutory language does not specifically so provide, the decisions restrict the
effect of contributory negligence to that which is direct, or proximate, in considering diminution
of damages. Broadley v. Union R. Co., 132 F.2d 419 (6th Cir.1942) (error to give instruction
permitting jury to consider remote contributory negligence). In connection with this instruction
see also the Comments to IPI 160.01 and 160.13.
If the negligence of an employee was the sole cause of his injury he may not recover.
Helton v. Thomson, 311 Ill.App. 354, 36 N.E.2d 267 (1st Dist.1941), cert. denied, 316 U.S. 688,
62 S.Ct. 1280, 86 L.Ed. 1760 (1942).
In Chicago, St. P., M. & O. R. Co. v. Arnold, 160 F.2d 1002 (8th Cir.1947), the court held
the jury had been correctly charged that if it found that the plaintiff's negligence was the sole
proximate cause of his injury, he could not recover. The court, however, reversed a jury verdict
for the plaintiff on the ground that the trial court refused to give an instruction tendered by the
defendant railroad. The gist of the instruction was that if the jury found the plaintiff was given
timely warning by a supervisor that there was insufficient clearance, the verdict should be for the
defendant. In so holding, the Court of Appeals said (160 F.2d at 1008):
In the absence of the requested instruction the jury could not be expected to understand
that [plaintiff's] failure to obey the warning, if given, was the sole proximate cause of his
injury within the meaning of the court's charge.
Contrary to the Arnold case is Trowbridge v. Chicago & Ill. Midland Ry. Co., 131
Ill.App.2d 707, 263 N.E.2d 619 (3d Dist.1970). In that case the railroad requested an instruction
using the language of former IPI 160.02 but modified by the addition of the following language:
“If, however, you find from the evidence that the sole proximate cause of the injury was the
negligence of the plaintiff, then the plaintiff shall not recover any damages from defendant
railroad.” The railroad also objected to the plaintiff's burden of proof instruction (IPI 21.02)
because the instruction failed to refer to the plaintiff's contributory negligence as the sole
proximate cause of his injury. After reviewing, among others, the Helton and Arnold cases cited
above, the court said, in sustaining a verdict for the plaintiff (263 N.E.2d at 622, 623):
We do not believe the general language of the foregoing cases can be extended to
authorize or approve the giving of a sole proximate cause instruction. On the contrary
Page v. St. Louis Southwestern Railway Co., 349 F.2d 820 (5th Cir.1965), concludes that
the introduction of such an issue is likely to be confusing and is not a distinct issue apart
from the standard imposed by the FELA.
Section 160, Page 5 of 44
* * *
As indicated earlier in this opinion Helton v. Thomson and Chicago, St. P., M. &
O. R. Co. supra (cited in the IPI comment to 160.02) do not authorize or require the
modification recommended.
See also the comment to IPI 160.10.
Section 160, Page 6 of 44
160.02 FELA--Issues Made by the Pleadings
[1] [The plaintiff claims that he was injured and sustained damages while he was engaged
in the course of his employment by the railroad.]
[The plaintiff claims that damages were sustained by reason of the (injury) (death) of the
decedent while the decedent was engaged in the course of his employment by the railroad.]
[2] The plaintiff further claims that the railroad violated the Federal Employers' Liability
Act in that:
a. [an (officer) (agent) (or) (other employee) (of the) railroad was negligent in that]
[Set forth in simple form without undue emphasis or repetition those allegations of the
complaint as to negligence which have not been withdrawn or ruled out by the court and
are supported by the evidence.]
b. [there was a defect or insufficiency due to the railroad's negligence in its (cars)
(engines) (appliances) (machinery) (track) (roadbed) (works) (boats) (wharves) (or) (other
equipment).]
[3] The plaintiff further claims that the [injury] [death] resulted in whole or in part from
one or more of the alleged violations of the Act.
[4] The railroad denies [that it violated the Federal Employers' Liability Act as claimed
by the plaintiff] [or] [and] [that the (plaintiff) (decedent) was engaged in the course of his
employment for the railroad at the time of the alleged occurrence].
[5] [The railroad further denies that (any of the alleged injuries) (the death) resulted, in
whole or in part, from any violation of the Act.]
[6] [The railroad further denies that the plaintiff (was injured) (or) sustained damages (to
the extent claimed).]
[7] [The railroad claims that the (plaintiff) (decedent) was contributorily negligent (in
that) (in one or more of the following respects):]
[Set forth in simple form without undue emphasis or repetition those allegations of the
answer as to the plaintiff's or decedent's contributory negligence which have not been
withdrawn or ruled out by the court and are supported by the evidence.]
[8] [The railroad further claims that one or more of the foregoing caused in whole or in
part the (plaintiff's injuries) (decedent's death).]
[9] [The plaintiff (denies that (he did) (the decedent did) any of the things claimed by the
railroad,) (denies that (he) (the decedent) was negligent (in doing any of the things claimed by
Section 160, Page 7 of 44
the railroad,) (to the extent claimed by the railroad),) (and denies that any claimed act or
omission on (his) (the decedent's) part caused in whole or in part (his claimed injuries) (the
decedent's death)).]
Notes on Use
The instruction assumes that there is no factual issue as to whether the defendant was a
common carrier by railroad in interstate commerce and whether the plaintiff was employed in
such commerce. Where such issues exist, the instruction should be modified by inserting the
necessary additional statutory language in lieu of the terms “railroad” or “employee,” as the case
may be. In the event there is an issue as to whether interstate commerce is involved, the
definition of “interstate commerce” contained in paragraph 2 of 45 U.S.C.A. § 51 should be
given. Where there is an issue as to whether the employee was engaged in the course of his
employment, IPI 160.05, defining this phrase, should be used with this instruction.
Also see Notes on Use to IPI 160.01.
This instruction can be used in cases involving injury or death. Section 59 of the Act
provides for the survival of actions under the Act to the personal representative for the surviving
spouse, child, parent or next of kin. As opposed to the Illinois Wrongful Death Act, which is for
the benefit of the “surviving spouse and next of kin” (740 ILCS 180/2 (1994)), the next of kin
under FELA have no right of recovery if there is a spouse, child or parent surviving. In a death
case under FELA use IPI 160.26.
Comment
See Comment to IPI 160.01.
For the issue of proximate cause see Comment to IPI 160.04.
In Bridgeman v. Terminal R.R. Ass'n, 195 Ill.App.3d 966, 552 N.E.2d 1146, 142 Ill.Dec.
405 (5th Dist.1990), a railroad employee had notified co-workers, including a foreman, that he
was not feeling well. He was subsequently found in a bathroom, slumped down against the wall.
An ambulance was called and the employee was pronounced dead at the scene. The court held
that the railroad had a duty to help the employee once it was aware of his need for help. Because
there was conflicting testimony as to when help was sought, the court held that enough had been
established to submit the question of the railroad's negligence to the jury.
In Laird v. Illinois Central Gulf R. Co., 208 Ill.App.3d 51, 566 N.E.2d 944, 153 Ill.Dec.
94 (5th Dist.1991), a railroad employee who had a long history of back problems was injured
after helping to move 200 pound kegs and 150 pound spike pullers. In its motion for a directed
verdict, the railroad claimed that because the employee failed to obtain an off-duty or light-duty
medical excuse, it was his own negligence that was the sole proximate cause of his injuries. The
appellate court upheld the denial of this motion and held that “the railroad had a duty to assign
employees to work for which they are reasonably suited and will breach that duty if it negligently
assigns an employee to perform work beyond his capacity.”
Section 160, Page 8 of 44
160.02.01 FELA--Issues Made by the Pleadings--Emotional Injury--Zone of Danger
[1] [The plaintiff claims that he suffered emotional injury that resulted in damages while
he was in the zone of danger of physical harm and while he was engaged in the course of his
employment by the railroad.]
[2] The plaintiff further claims that the railroad violated the Federal Employers' Liability
Act in that:
a. [an (officer) (agent) (or) (other employee) (of the) railroad was negligent in that]
[Set forth in simple form without undue emphasis or repetition those allegations of the
complaint as to negligence which have not been withdrawn or ruled out by the court and
are supported by the evidence.]
b. [there was a defect or insufficiency due to the railroad's negligence in its (cars)
(engines) (appliances) (machinery) (track) (roadbed) (works) (boats) (wharves) (or) (other
equipment).]
[3] The plaintiff further claims that his injury and damages resulted in whole or in part
from one or more of the alleged violations of the Act.
[4] The railroad [denies that it violated the Federal Employers' Liability Act as claimed
by the plaintiff] [or] [and] [denies that the plaintiff was in the zone of danger of physical harm]
[or] [and] [denies that the (plaintiff) (decedent) was engaged in the course of his employment for
the railroad at the time of the alleged occurrence].
[5] [The railroad further denies that any of the alleged emotional injuries resulted, in
whole or in part, from any violation of the Act.]
[6] [The railroad further denies that the plaintiff (was emotionally injured) (or) sustained
damages (to the extent claimed).]
[7] [The railroad claims that the (plaintiff) (decedent) was contributorily negligent (in
that) (in one or more of the following respects):]
[Set forth in simple form without undue emphasis or repetition those allegations of the
answer as to the plaintiff's contributory negligence which have not been withdrawn or
ruled out by the court and are supported by the evidence.]
[8] [The railroad further claims that one or more of the foregoing caused in whole or in
part the plaintiff's emotional injuries.]
[9] [The plaintiff (denies that he did any of the things claimed by the railroad,) (denies
that he was negligent (in doing any of the things claimed by the railroad,) (to the extent claimed
Section 160, Page 9 of 44
by the railroad),) (and denies that any claimed act or omission on his part caused in whole or in
part his claimed emotional injuries).]
Notes on Use
The instruction assumes that there is no factual issue as to whether the defendant was a
common carrier by railroad in interstate commerce and whether the plaintiff was employed in
such commerce. Where such issues exist, the instruction should be modified by inserting the
necessary additional statutory language in lieu of the terms “railroad” or “employee,” as the case
may be. In the event there is an issue as to whether interstate commerce is involved, the
definition of “interstate commerce” contained in paragraph 2 of 45 U.S.C.A. § 51 should be
given. Where there is an issue as to whether the employee was engaged in the course of his
employment, IPI 160.05, defining this phrase, should be used with this instruction.
Also see Notes on Use to IPI 160.01.
This instruction should be used in cases involving emotional injury only. Use of this
instruction assumes that the plaintiff suffered no physical injury other than that resulting from his
emotional injury.
Comment
See Comment to IPI 160.01.
For the issue of proximate cause see Comment to IPI 160.04.
In Bridgeman v. Terminal R.R. Ass'n, 195 Ill.App.3d 966, 552 N.E.2d 1146, 142 Ill.Dec.
405 (5th Dist.1990), a railroad employee had notified co-workers, including a foreman, that he
was not feeling well. He was subsequently found in a bathroom, slumped down against the wall.
An ambulance was called and the employee was pronounced dead at the scene. The court held
that the railroad had a duty to help the employee once it was aware of his need for help. Because
there was conflicting testimony as to when help was sought, the court held that enough had been
established to submit the question of the railroad's negligence to the jury.
In Laird v. Illinois Central Gulf R. Co., 208 Ill.App.3d 51, 566 N.E.2d 944, 153 Ill.Dec.
94 (5th Dist.1991), a railroad employee who had a long history of back problems was injured
after helping to move 200 pound kegs and 150 pound spike pullers. In its motion for a directed
verdict, the railroad claimed that because the employee failed to obtain an off-duty or light-duty
medical excuse, it was his own negligence that was the sole proximate cause of his injuries. The
appellate court upheld the denial of this motion and held that “the railroad had a duty to assign
employees to work for which they are reasonably suited and will breach that duty if it negligently
assigns an employee to perform work beyond his capacity.”
In Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427
(1994), the Court recognized a claim for negligent infliction of emotional distress under FELA
Section 160, Page 10 of 44
and further held that the zone of danger test applies to determine who may recover for the
negligent infliction of emotional distress.
Section 160, Page 11 of 44
160.03 FELA--Burden of Proof
[Part A]
The plaintiff has the burden of proving each of the following propositions:
[First, that he was injured and sustained damages while he was engaged in the course of
his employment by the railroad.]
[First, that the plaintiff sustained damages as a result of the decedent's death while the
decedent was engaged in the course of his employment by the railroad.]
Second, that the railroad violated the Federal Employers' Liability Act in one of the ways
claimed by the plaintiff as stated to you in these instructions.
Third, that the [injury] [death of the decedent] and damages to the plaintiff resulted, in
whole or in part, from a violation of the Federal Employers' Liability Act.
[If you find from your consideration of all the evidence that each of these propositions
has been proved, then your verdict should be for the plaintiff. If, on the other hand, you find from
your consideration of all the evidence that any of these propositions has not been proved, then
your verdict should be for the railroad.]
[Part B]
[If you find in favor of the plaintiff and against the railroad, you must then consider the
railroad's claim that the plaintiff was contributorily negligent.
As to that claim, the railroad has the burden of proving each of the following
propositions:
First, that the (plaintiff) (decedent) acted or failed to act in one of the ways claimed by
the railroad as stated to you in these instructions and that in so acting, or failing to act, the
(plaintiff) (decedent) was negligent;
Second, that the (plaintiff's) (decedent's) negligence was a cause in whole or in part of his
(injury) (and) (death).
If you find from your consideration of all the evidence that the railroad has proved each
of these propositions, then you will reduce the plaintiff's damages in the manner stated to you in
these instructions. On the other hand, if you find from your consideration of all the evidence that
either of these propositions has not been proved, then you will not reduce the plaintiff's
damages.]
Section 160, Page 12 of 44
Notes on Use
If there is evidence of the plaintiff's or decedent's contributory negligence, then Part B of
this instruction should be given.
Also see Notes on Use to IPI 160.01.
Comment
See Comment to IPI 160.01.
An instruction that under the FELA the burden is on the defendant to prove contributory
negligence by the preponderance of the evidence was approved in Fisher v. Chicago, R. I. & P.
R. Co., 290 Ill. 49, 124 N.E. 831 (1919). The reason for inclusion of such an instruction is that
the burden of proof has been held a matter of substance to be determined by federal law rather
than local law in actions under this statute. Central Vermont R. Co. v. White, 238 U.S. 507, 35
S.Ct. 865, 59 L.Ed. 1433 (1915), and cases there cited. In that case, the Court said (238 U.S. at
512, 83 S.Ct. at 868):
But the United States Courts have uniformly held that as a matter of general law the
burden of proving contributory negligence is on the defendant. The federal courts have
enforced that principle even in trials in states which hold that the burden is on the
plaintiff . . . . Congress in passing the Federal Employers' Liability Act evidently
intended that the federal statute should be construed in the light of these and other
decisions of the federal court.
Section 160, Page 13 of 44
160.03.01 FELA--Burden of Proof--Emotional Injury--Zone of Danger
[Part A]
The plaintiff has the burden of proving each of the following propositions:
[First, that he suffered emotional injury that resulted in damages while he was in the zone
of danger of physical harm and while he was engaged in the course of his employment by the
railroad.]
Second, that the railroad violated the Federal Employers' Liability Act in one of the ways
claimed by the plaintiff as stated to you in these instructions.
Third, that the emotional injury and damages to the plaintiff resulted, in whole or in part,
from a violation of the Federal Employers' Liability Act.
[If you find from your consideration of all the evidence that each of these propositions
has been proved, then your verdict should be for the plaintiff. If, on the other hand, you find from
your consideration of all the evidence that any of these propositions has not been proved, then
your verdict should be for the railroad.]
[Part B]
[If you find in favor of the plaintiff and against the railroad, you must then consider the
railroad's claim that the plaintiff was contributorily negligent.
As to that claim, the railroad has the burden of proving each of the following
propositions:
First, that the plaintiff acted or failed to act in one of the ways claimed by the railroad as
stated to you in these instructions and that in so acting, or failing to act, the plaintiff was
negligent;
Second, that the plaintiff's negligence was a cause in whole or in part of his emotional
injury.
If you find from your consideration of all the evidence that the railroad has proved each
of these propositions, then you will reduce the plaintiff's damages in the manner stated to you in
these instructions. On the other hand, if you find from your consideration of all the evidence that
either of these propositions has not been proved, then you will not reduce the plaintiff's
damages.]
Notes on Use
If there is evidence of the plaintiff's contributory negligence, then Part B of this
instruction should be given.
Also see Notes on Use to IPI 160.01 and 160.02.01
Section 160, Page 14 of 44
Comment
See Comments to IPI 160.01 and 160.02.01.
An instruction that under the FELA the burden is on the defendant to prove contributory
negligence by the preponderance of the evidence was approved in Fisher v. Chicago, R. I. & P.
R. Co., 290 Ill. 49, 124 N.E. 831 (1919). The reason for inclusion of such an instruction is that
the burden of proof has been held a matter of substance to be determined by federal law rather
than local law in actions under this statute. Central Vermont R. Co. v. White, 238 U.S. 507, 35
S.Ct. 865, 59 L.Ed. 1433 (1915), and cases there cited. In that case, the Court said (238 U.S. at
512, 83 S.Ct. at 868):
But the United States Courts have uniformly held that as a matter of general law the
burden of proving contributory negligence is on the defendant. The federal courts have
enforced that principle even in trials in states which hold that the burden is on the
plaintiff . . . . Congress in passing the Federal Employers' Liability Act evidently
intended that the federal statute should be construed in the light of these and other
decisions of the federal court.
Section 160, Page 15 of 44
160.03.02 FELA--Definition of Zone of Danger of Physical Harm
When I use the expression “zone of danger of physical harm,” I mean that location where
the plaintiff [suffered physical impact] [or] [was placed in immediate risk of physical harm] from
the claimed acts of the railroad.
Notes on Use
This instruction should be given whenever IPI 160.02.01 or IPI 160.03.01 is given.
Comment
See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427
(1994).
Section 160, Page 16 of 44
160.04 Definition of Contributory Negligence for Use in FELA Cases Only
When I use the expression “contributory negligence” [in Count ____], I mean negligence
on the part of the [plaintiff] [decedent] that contributed in whole or in part to the [alleged]
[injury] [death].
Notes on Use
This instruction is to be used only when contributory negligence is an issue. If
contributory negligence is not an issue, use IPI 160.11.
Contributory negligence may also be at issue in a count other than the count of the
complaint based on FELA. If contributory negligence is at issue in a count other than the FELA
count, then specify in the bracket in which count the FELA definition of contributory negligence
is to be used.
Comment
The IPI 160 series instructions do not use the phrase “proximate cause,” but instead uses
the phrase “that contributed in whole or in part” in reference to negligence or contributory
negligence. Early FELA cases refer to “proximate cause.” See, e.g., Tennant v. Peoria & P. U.
Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 (1944); Williams v. N.Y. Central R. Co., 402 Ill.
494, 84 N.E.2d 399 (1949); Allendorf v. E., J. & E. Ry. Co., 8 Ill.2d 164, 133 N.E.2d 288 (1956),
cert. denied, 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53 (1956); Ganotis v. New York Central R.R.
Co., 342 F.2d 767 (6th Cir.1965); Coray v. Southern Pacific Co., 335 U.S. 520, 69 S.Ct. 275, 93
L.Ed. 208 (1949).
The more recent FELA cases have, however, adopted the standard set forth in Rogers v.
Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). In Rogers, the court
reversed the Missouri Supreme Court and sustained a jury verdict in holding that (352 U.S. at
506, 77 S.Ct. at 448):
Under this statute the test of a jury case is simply whether the proofs justify with reason
the conclusion that employer negligence played any part, even the slightest, in producing
the injury or death for which damages are sought.
In so holding, the court rejected the Missouri Supreme Court's decision as having adopted the
“language of proximate causation.”
In Hamrock v. Consolidated Rail Corp., 151 Ill.App.3d 55, 501 N.E.2d 1274, 1278; 103
Ill.Dec. 736, 740 (1st Dist.1986), the court quoted from Rogers and added, “In order to recover
under the FELA, a plaintiff must show both negligence on the part of the employer and
causation; however, ‘the quantum of evidence necessary to establish liability is much less in a
FELA case than it would be in an ordinary negligence case [cite].’ ”
Section 160, Page 17 of 44
The Fifth Circuit discussed proximate cause, negligence and contributory negligence at
great length in Page v. St. Louis Southwestern Ry. Co., 349 F.2d 820 (5th Cir.1965), where the
district court defined an injury “proximately caused” as one caused by an act or omission which
“played any part, no matter how small, in actually bringing about or causing the injury.” Id. at
822, fn. 3. In reversing a judgment for the defendant, the court remarked (349 F.2d at 824, 827):
[O]n the Rogers thesis which we follow, there is really no place for “proximate cause” as
such. True, there must be a causal relation either to impose damages against the Railroad
or to require diminution for negligence of the injured worker. But it only adds to the
problem to recast this simplified formula in the awkward but outmoded dialectic.
* * *
We ought to avoid those practices which “distract the jury's attention from the simple
issues of whether the carrier was negligent and whether that negligence was the cause, in
whole or in part, of the plaintiff's injury.” [Citation omitted]. All of the issues, affirmative
and defensive ... can be simply inquired into in a simple way . . . . When done in this
fashion, with suitable accompanying general instruction ..., there is no need any longer
for putting this in the labored terms of “proximate cause” or “sole proximate cause” or
“contributory negligence.”
In Weese v. Chesapeake & O. Ry. Co., 570 F.2d 611, 613 (6th Cir.1978), Essary v.
Louisiana Dock Co., 66 Ill.App.3d 182, 383 N.E.2d 731, 22 Ill.Dec. 923 (5th Dist.1978), and
Hollinghead v. Toledo P. & W. R.R. Co., 39 Ill.App.3d 538, 349 N.E.2d 98, 101 (3d Dist.1976),
the courts adopted the Rogers standard, that the proofs need only justify the conclusion that the
employer's negligence played any part, even the slightest, in producing the injury.
In Gilmore v. Toledo, P. & W. R.R. Co., 36 Ill.2d 510, 224 N.E.2d 228 (1967), the court
also considered the question. After discussing the old and new concepts of what constituted
“proximate cause,” the court concluded (36 Ill.2d at 515, 224 N.E.2d at 231):
It is apparent from what we have already said that an instruction saying defendants'
negligence must be in whole or in part “the cause” of the injury is an adequate one in a
FELA case. The addition of the word proximate would add nothing and is not essential.
In Ganotis v. New York Central R.R. Co., 342 F.2d 767 (6th Cir.1965), the court stated
(342 F.2d at 768-769):
One of the purposes of the Federal Employers' Liability Act, as amended, was to abolish
the common law defenses of assumption of risk, fellow servant rule and contributory
negligence. With respect to contributory negligence it established the rule of comparison
of negligence instead of barring the employee from all recovery because of contributory
negligence. [cite] We do not believe that the Act also intended to make a distinction
between proximate cause when considered in connection with the carrier's negligence and
Section 160, Page 18 of 44
proximate cause when considered in connection with the employee's contributory
negligence. If it had so intended, express words to that effect could easily have been used.
Based on the above-cited cases, the committee believes the term “proximate cause”
should not be used in the plaintiff's case or in the defendant's case. The committee believes that
in place of the term “proximate cause,” the terms “in whole or in part” should be used to define
the causation element because the terms “in whole or in part” are used in the statute.
Section 160, Page 19 of 44
160.05 FELA--When Employee Is Engaged in the Course of His Employment
A person is in the course of his employment when he is doing anything he was employed
to do, or when he is doing anything which his employment authorizes him to do or which is
reasonably incidental to the employment.
Notes on Use
This instruction should only be given where there is a factual issue whether the employee
was engaged in the course of his employment at the time of the occurrence.
Comment
The phrase “course of his employment” has received a broad construction in FELA cases,
due, in part, to the fact that the exigencies of railroading require a wide variety of activities,
otherwise personal, to be done on the job. Chicago, M., St. P. & P. R. Co. v. Kane, 33 F.2d 866
(9th Cir.1929), cert. denied, 280 U.S. 588, 50 S.Ct. 37, 74 L.Ed. 637 (1929) (employee crossing
track from bunk car to toilet before going to work); Mostyn v. Delaware, L. & W. R. Co., 160
F.2d 15 (2d Cir.1947), cert. denied, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355 (1947) (employee
sleeping on ground along side track where he was injured was in the “employ” of the railroad);
Healy v. Pennsylvania R. Co., 184 F.2d 209 (3d Cir.1950), cert. denied, 340 U.S. 935, 71 S.Ct.
490, 95 L.Ed. 674 (1951) (employee crossing tracks to inquire of supervisor as to delivery of war
bond; scope of employment held for jury).
Several decisions have indicated that § 229 of the Restatement (Second) of Agency
(1957) sets forth appropriate guidelines for determining whether the employee's conduct is
within the scope of his employment. Wilson v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co.,
841 F.2d 1347, 1355 (7th Cir.1988); Rogers v. Chicago & N.W. Transp. Co., 947 F.2d 837, 839
(7th Cir.1991). These factors include (a) whether or not the acts are commonly done by such
servants; (b) the time, place, and purpose of the act; (c) the previous relations between the master
and the servant; (d) the extent to which the business of the master is apportioned between
different servants; (e) whether or not the act is outside the enterprise of the master or, if within
the enterprise, has not been entrusted to any servant; (f) whether or not the master has reason to
expect that such an act will be done; (g) the similarity in quality of the act done to the act
authorized; (h) whether or not the instrumentality by which the harm is done has been furnished
by the master to the servant; (i) the extent of departure from the normal method of accomplishing
an authorized result; and (j) whether or not the act is seriously criminal. Restatement (Second) of
Agency § 229(2) (1957).
Acts of employee were deemed within the scope of his employ where employee, while on
his way to eat lunch, slipped on ice in parking lot of the motel at which he was staying during a
rest period. Duffield v. Marra, Inc., 166 Ill.App.3d 754, 520 N.E.2d 938, 117 Ill.Dec. 587 (5th
Dist.1988).
Section 160, Page 20 of 44
160.06 FELA--Course of Employment as Matter of Law
At the time of this occurrence the [plaintiff] [decedent] was in the course of his
employment.
Notes on Use
This instruction may be given only where there is no question of fact as to whether the
plaintiff was in the course of his employment. It is given because IPI 160.01-160.03 refers to the
statutory requirement that a plaintiff or decedent, under the Act, must be injured “while
employed.” Therefore, it is desirable, where no such issue has been raised, to remove any
question concerning it from the jury's consideration.
Section 160, Page 21 of 44
160.07 FELA--Duty to Provide Safe Tools, Appliances, and Machinery Where Tools, etc.,
Supplied
It was the duty of the railroad to use ordinary care to provide [the plaintiff] [its
employees] with reasonably safe and suitable [tools] [machinery and appliances] with which to
do [his] [their] work. [Tools] [Machinery and appliances], in order to be reasonably safe and
suitable, need not necessarily be the latest or best which could have been provided to do the
work.
Comment
A railroad's duty with respect to tools, machinery and appliances is to use ordinary or
reasonable care to furnish those which are reasonably safe and suitable. Jacob v. New York City,
315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166 (1942). What is reasonable depends upon the
circumstances, and the greater the danger, the greater the obligation to use all appliances readily
obtainable to prevent accidents. Margevich v. Chicago & N.W. Ry. Co., 1 Ill.App.2d 162, 116
N.E.2d 914 (1st Dist.1953), cert. denied, 348 U.S. 861, 75 S.Ct. 84, 99 L.Ed. 678 (1954).
In Lowe v. Norfolk & W. Ry. Co., 124 Ill.App.3d 80, 463 N.E.2d 792, 79 Ill.Dec. 238 (5th
Dist.1984), employees had presented evidence of a lack of protective clothing and the trial court
modified the instruction by replacing “[tools] [machinery and appliances]” with “protective
equipment.” The Appellate Court, in reversing the case for retrial, held that the use of the
language was not error, but that instruction should be more carefully reworded on retrial.
Section 160, Page 22 of 44
160.08 FELA--Duty to Provide a Reasonably Safe Place to Work
It was the duty of the railroad to use ordinary care to provide the plaintiff with a
reasonably safe place in which to do his work.
Comment
The duty of a railroad is to use ordinary care to furnish a reasonably safe place to work.
The diligence which must be used to meet this duty increases as the danger increases. Bailey v.
Central Vermont Ry. Co., 319 U.S. 350, 352; 63 S.Ct. 1062, 1063; 87 L.Ed. 1444 (1943); Inman
v. Baltimore & Ohio R. Co., 361 U.S. 138, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959) (reversal of trial
court's judgment for plaintiff affirmed by 5 to 4 vote, where plaintiff, a crossing guard, was
struck by drunken motorist while flagging traffic and action was predicated on violation of the
duty to provide a safe place to work).
This duty exists even when railroad employees are required to go onto premises of a third
party over which the railroad has no control. Duffield v. Marra, Inc., 166 Ill.App.3d 754, 520
N.E.2d 938, 117 Ill.Dec. 587 (5th Dist.1988).
In Laird v. Illinois Central Gulf R. Co., 208 Ill.App.3d 51, 566 N.E.2d 944, 153 Ill.Dec.
94 (5th Dist.1991), the court held that where IPI 160.02 and 160.07 were given, the trial court
did not commit error by refusing to give a non-IPI instruction that the employer was not a
guarantor of the safety of the work place.
In Ellis v. St. Louis Southwestern Ry. Co., 193 Ill.App.3d 357, 549 N.E.2d 899, 140
Ill.Dec. 248 (5th Dist.1990), the jury was given this instruction, and the employee claimed that
the railway furnished him defective equipment with which to work. The Appellate Court held
that because the plaintiff had not presented any evidence that the employee's injury was due to an
unsafe workplace, it was not error to refuse to give a separate safe workplace issues instruction.
Use of this instruction in unmodified form was upheld in Greenfield v. Consolidated Rail
Corp., 150 Ill.App.3d 331, 500 N.E.2d 1083, 103 Ill.Dec. 12 (5th Dist.1986), and Howes v.
Baker, 16 Ill.App.3d 39, 305 N.E.2d 689 (1st Dist.1973).
Section 160, Page 23 of 44
160.09 FELA--No Assumption of Risk By Employee
At the time of the occurrence there was in force a federal statute which provided that in
any action brought against a railroad to recover damages for [injury to] [death of] an employee,
the employee shall not be held to have assumed the risks of his employment in any case where
the [injury] [death] resulted in whole or in part from the negligence of any of the officers, agents
or employees of the railroad, [or by reason of any defect, due to the railroad's negligence, in its
(cars,) (engines,) (machinery,) (track,) (roadbed,) (works,) (boats,) (wharves,) (or) (other
equipment)].
Comment
This instruction includes language from that portion of Section 4 of the Act, 45 U.S.C.A.
§ 54, applicable to FELA actions which do not involve either Safety Appliance or Boiler
Inspection Act violations. It also includes language concerning equipment which is, due to the
railroad's negligence, defective, since courts have held that the assumption of risk defense is also
unavailable when such defective equipment causes an injury. Birchem v. Burlington N. R. Co.,
812 F.2d 1047 (8th Cir.1987).
In Hamrock v. Consolidated Rail Corp., 151 Ill.App.3d 55, 501 N.E.2d 1274, 103 Ill.Dec.
736 (1st Dist.1986), refusal to give a similar instruction was held to be reversible error. Although
the defense was not explicitly asserted, there was evidence from which a jury could have
reasonably inferred that the employee had assumed the risk. The railroad had attempted to show
that the employee's negligence was the sole cause of employee's injuries. See also Dilley v.
Chesapeake & O. R. Co., 327 F.2d 249 (6th Cir.1964) (stating that where the jury had heard
nothing with respect to the doctrine of assumption of risk until the doctrine was defined and its
application debated in final arguments, and merely mentioned in court instructions, it would have
been better practice to have eliminated any reference to the doctrine), and Howes v. Baker, 16
Ill.App.3d 39, 305 N.E.2d 689 (1st Dist.1973) (in which the court held that it was not error to
give the instruction under the facts of that case, although it was not necessary to include the
instruction in every case).
Section 160, Page 24 of 44
160.10 FELA--Burden of Proof--Contributory Negligence
[Withdrawn]
Notes on Use
This instruction has been withdrawn, and is now part of IPI 160.03. It previously
provided “The burden of proving contributory negligence on the part of the [plaintiff] [decedent]
rests upon the railroad.”
The instruction on issues is now IPI 160.02.
The instruction on contributory negligence is now IPI 160.04.
Section 160, Page 25 of 44
160.11 FELA--No Contributory Negligence as a Matter of Law
The evidence in this case fails to show contributory negligence on the part of [the
plaintiff] [the deceased employee], and, therefore, you should not consider the question of
contributory negligence raised by the defendant.
Notes on Use
This instruction is to be given only when the jury has been told during the trial that
contributory negligence is in issue, and at the close of all the evidence, the proof is insufficient to
submit the issue to the jury. Where no mention of contributory negligence has been made there is
no need for this instruction.
Section 160, Page 26 of 44
160.12 Damages Instructions
Comment
Additional damage instructions are necessary in FELA actions because of differences in
comparative negligence rules and the elements of damages recoverable in death actions under the
FELA as opposed to a state wrongful death action. Therefore, in injury actions, the basic group
of damage instructions is the 30.00 series supplemented with IPI 160.13 or 160.23, depending on
whether there are single or multiple defendants. On the other hand, in death actions, IPI 160.14160.20 entirely replace the 31.00 series on wrongful death. General damage instructions
concerning mitigation of damages, IPI 33.01 and 33.02, discount of future damages and
mortality tables, IPI 34.00, exemplary damages, IPI 35.00, and forms of verdict, IPI 45.00, can
be used in either injury or death actions under the FELA.
Section 160, Page 27 of 44
160.13 FELA--Diminishing Damages Because of Contributory Negligence
If you find that the [plaintiff's injury] [decedent's death] was caused by a combination of
negligence of [one or more of] the railroad defendant[s] and contributory negligence of the
[plaintiff] [decedent], you must determine the amount of damages to be awarded by you on
Verdict Form ____ as follows:
First: Determine the total amount of damages to which the [plaintiff] [decedent] would be
entitled under the court's instructions if the plaintiff had not been contributorily negligent.
Second: Assume that 100% represents the total combined negligence of all persons
whose negligence contributed in whole or in part to the [plaintiff's] [decedent's] [injury] [or]
[death], including the plaintiff[,] [and] the defendant[s you found liable] [, and all other persons].
Determine the percentage of such negligence attributable solely to the plaintiff [the decedent].
Third: Reduce the total amount of the plaintiff's damages by the proportion or percentage
of negligence attributable solely to the plaintiff.
The resulting amount, after making such reduction, will be the amount of your verdict.
Notes on Use
The bracketed words and phrases in this instruction represent the alternative forms
necessary to adapt the instruction to either a death action or an action for personal injuries under
the Act. See IPI 160.01.
Comment
The jury should be instructed on the pure form of comparative negligence, in accord with
Section 53 of the Act. See Louisville & N. R. Co. v. Wene, 202 Fed. 887, 890 (7th Cir.1913);
Sprickerhoff v. Baltimore & O. R. Co., 323 Ill.App. 340, 55 N.E.2d 532 (4th Dist.1944); Thatch
v. Missouri Pac. R. Co., 47 Ill.App.3d 980, 362 N.E.2d 1064, 6 Ill.Dec. 242 (5th Dist.1977).
Section 160, Page 28 of 44
160.14 FELA--Measure of Damages--Death--No Contributory Negligence
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate the survivors of the decedent for any
pecuniary loss they have suffered and for any pecuniary loss they are reasonably certain to suffer
in the future by reason of the death of the decedent.
[In calculating the amount of any future pecuniary loss, you must not simply multiply the
survivors' life expectancies by the annual losses. Instead, you must determine the present cash
value of the future losses. “Present cash value” means the sum of money needed now which,
together with what that sum may reasonably be expected to earn in the future, will equal the
amounts of the pecuniary losses at the times in the future when they will be sustained.]
Notes on Use
If the mortality tables have been introduced into evidence, IPI 34.05 should be used.
Failure to give that type of cautionary instruction concerning life expectancy, work expectancy,
and present value, has been held error in a FELA case. Fritz v. Pennsylvania R. Co., 185 F.2d 31
(7th Cir.1950). But see Illinois Supreme Court Rule 366(b) (2) (i) (1994): “No party may raise on
appeal the failure to give an instruction unless he shall have tendered it” and Fed. R. Civ. P. 51:
“No party may assign as error the giving or failure to give an instruction unless that party objects
thereto before the jury retires to consider its verdict . . . .”
Because it duplicates certain portions of IPI 34.05, the bracketed material should be
omitted when that instruction is given.
Comment
The damages available under FELA are less extensive than those recoverable under the
Illinois Wrongful Death Act. For example, under FELA, no cause of action for loss of
consortium is allowed. Kelsaw v. Union Pacific R. Co., 686 F.2d 819 (9th Cir.1982), cert.
denied, 459 U.S. 1207, 103 S.Ct. 1197, 75 L.Ed.2d 440 (1983); Howes v. Baker, 16 Ill.App.3d
39, 305 N.E.2d 689 (1st Dist.1973). By contrast, the Illinois Wrongful Death Act does allow for
recovery based on loss of consortium. See, e.g., Bullard v. Barnes, 102 Ill.2d 505, 468 N.E.2d
1228, 82 Ill.Dec. 448 (1984); Elliott v. Willis, 92 Ill.2d 530, 442 N.E.2d 163, 65 Ill.Dec. 852
(1982).
The limited measure of damages available under FELA was discussed by the United
States Supreme Court in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d
275 (1990). In that case, the Court held that the federal statute providing for damages in an
admiralty wrongful death action (known as the Jones Act) incorporates FELA standards and, like
FELA, allows recovery only for pecuniary loss. The Court thus denied recovery for loss of
society.
The United States Supreme Court has also held that, as a matter of federal law, damage
awards in suits governed by federal law, including FELA cases, should be based on present
Section 160, Page 29 of 44
value. St. Louis Southwestern R. Co. v. Dickerson, 470 U.S. 409, 105 S.Ct. 1347, 84 L.Ed.2d 303
(1985).
Section 160, Page 30 of 44
160.15 FELA--Death Action--How to Determine Pecuniary Loss
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will reasonably and fairly compensate [name(s) of survivors entitled to claim] for
the pecuniary loss proved by the evidence to have resulted to [name(s) of survivors entitled to
claim] from the death of the decedent. “Pecuniary loss” may include loss of money, benefits,
goods, services.
In determining pecuniary loss, you may consider what the evidence shows concerning the
following:
[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily
contributed in the past;]
[2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to have
contributed in the future;]
[3. The decedent's personal expenses (and other deductions);]
[4. What instruction, moral training, and superintendence of education the decedent might
reasonably have been expected to give his child(ren) had he lived;]
[5. His age;]
[6. His sex;]
[7. His health;]
[8. His habits of (industry,) (sobriety,) (and) (thrift);]
[9. His occupational abilities].
The contributions and benefits which you may consider must be only those contributions
and benefits upon which a money value can be placed. You are not permitted to award any
amount for the grief or loss of society and companionship caused any survivor by the death of
[decedent's name].
Comment
The FELA has consistently been interpreted as providing recovery only for pecuniary
loss. In Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913),
the United States Supreme Court explained that the language of the FELA wrongful death
provision is essentially identical to that of Lord Campbell's Act, 9 & 10 Vict. ch. 93 (1846), the
first wrongful death statute. Although Lord Campbell's Act did not explicitly limit the
“damages” to be recovered, that Act and many state statutes that followed it were consistently
Section 160, Page 31 of 44
interpreted as providing only for pecuniary loss. Vreeland, 227 U.S. at 69-71; 33 S.Ct. at 195196. The Supreme Court accordingly so construed the death provision of FELA. Id.
The limited measure of damages available under the FELA was reaffirmed in Miles v.
Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), where the Supreme
Court construed the federal statute providing for damages in an admiralty wrongful death action
(Jones Act). Recognizing that Congress incorporated the FELA unaltered into the Jones Act, the
Court stated that “Congress must have intended to incorporate the pecuniary limitation on
damages as well.” 498 U.S. at _, 111 S.Ct. at 325. The Court thus held that there is no recovery
for loss of society in a Jones Act wrongful death action. Id.
By contrast, damages recoverable under the Illinois Wrongful Death Act are not limited
solely to tangible economic loss; they may also include recovery for loss of consortium or for
loss of society. See IPI 160.14.
Damages recoverable by the deceased's children are restricted to the benefits they might
have expected to receive during minority, unless proof is made of unusual facts showing that a
child might reasonably expect support after reaching majority. Hines v. Walker, 225 S.W. 837
(Tex.Civ.App.1920), error refused.
Cases recognizing that the care, attention, instruction, training, advice and guidance
which the evidence showed the decedent reasonably might have been expected to give his
children during their minority have pecuniary value are: Norfolk & W. R. Co. v. Holbrook, 235
U.S. 625, 629; 35 S.Ct. 143, 144; 59 L.Ed. 392 (1915); St. Louis & S.F.R. Co. v. Duke, 192 Fed.
306, 309-310 (8th Cir.1911); Duke v. St. Louis & S.F.R. Co., 172 Fed. 684, 688-89
(C.C.W.D.Ark.1909); Cain v. Southern R. Co., 199 Fed. 211, 213 (C.C.E.D.Tenn.1911); Giles v.
Chicago Great Western R. Co., 72 F.Supp. 493 (D.Minn.1947); Liepelt v. Norfolk & W. Ry. Co.,
62 Ill.App.3d 653, 378 N.E.2d 1232, 19 Ill.Dec. 357 (1st Dist.1978), rev'd on other grounds, 444
U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980).
In St. Louis & S.F.R. Co. v. Duke, 192 Fed. 306 (8th Cir.1911), the court approved an
instruction that “neither sympathy nor bereavement, nor affection, nor love, nor devotion which
might have existed between the husband and wife and children can be rightly considered as an
element of damage in a case of this kind. The law permits compensation for the pecuniary loss
sustained, but not for sorrow, loss of companionship, or society.” See also Michigan Cent. R. Co.
v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913); Allendorf v. Elgin, J. & E. Ry. Co.,
8 Ill.2d 164, 179-180; 133 N.E.2d 288, 295-296 (1956), cert. denied, 352 U.S. 833, 77 S.Ct. 49,
1 L.Ed.2d 53 (1956). Evidence of the anticipated future income tax liability that the decedent
would have incurred had he lived is admissible to assist the jury in determining the survivor's net
loss. Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980).
Loss of future earnings may be based on the decedent's full life expectancy and need not
be limited to an arbitrary retirement age as a wage earner. Allendorf v. Elgin, J. & E. R. Co., 8
Ill.2d 164, 181, 133 N.E.2d 288, 296 (1956), cert. denied, 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d
53 (1956); Avance v. Thompson, 387 Ill. 77, 84, 55 N.E.2d 57, 60 (1944), cert. denied, 323 U.S.
753, 65 S.Ct. 82, 89 L.Ed. 603 (1944).
Section 160, Page 32 of 44
160.16 FELA--Death Case--Survival Action
If you decide for the plaintiff on the question of liability, you must then fix the amount of
money which will provide reasonable and fair compensation for any of the following elements of
damages proved by the evidence to have been suffered by the decedent during the period
between the time of the decedent's injuries and the time of his death and resulting from
defendant's violation of the FELA, taking into consideration the nature, extent, and duration of
the injury:
[Here insert the elements of damages which have a basis in the evidence.]
Whether any of these elements of damages has been proved by the evidence is for you to
determine.
Notes on Use
This instruction is based upon IPI 30.01 and combines former IPI 160.16, 160.17, 160.18
and 160.19. With respect to appropriate elements of damage, see generally IPI Chapter 30. If
contributory negligence is an issue in the case, IPI 160.13 concerning the diminution of damages
due to contributory negligence, and IPI 11.01 defining contributory negligence, should be used
with this instruction.
Comment
Survival action recovery under the FELA was cited by the Illinois Supreme Court in
Murphy v. Martin Oil Co., 56 Ill.2d 423, 308 N.E.2d 583 (1974), as persuasive authority for
departing from prior precedent and construing the Illinois Survival Act (735 ILCS 5/27-6 (1994))
to permit recovery for loss of property, loss of wages and conscious pain and suffering.
Section 160, Page 33 of 44
160.17 FELA--Medical Expenses--Death Case--Contributory Negligence an Issue
This instruction has been merged with IPI 160.16.
Section 160, Page 34 of 44
160.18 FELA--Death Case--Pain and Suffering of Deceased--No Contributory Negligence
This instruction has been merged with IPI 160.16.
Section 160, Page 35 of 44
160.19 FELA--Death Case--Pain and Suffering of Decedent--Contributory Negligence an
Issue
This instruction has been merged with IPI 160.16.
Section 160, Page 36 of 44
160.20 FELA--Concerning Allocation of Damages--Death Case
The committee recommends that no instruction requiring the jury to allocate damages in
a death case be given.
Comment
To conform to the statutory provision and the decisions construing it, an instruction on
this subject should state that the jury should award only one aggregate sum. This is predicated
upon the fact that section nine of the Act, 45 U.S.C.A. § 59, provides for “only one recovery.”
This may be covered by the forms of verdict so that no instruction is necessary.
The problem arises as to whether the jury should then allocate the award among the
various beneficiaries. The statute is silent upon this point, and the decisions are not clear.
In Gulf, C. & S. F. R. Co. v. McGinnis, 228 U.S. 173, 176; 33 S.Ct. 426, 427; 57 L.Ed.
785 (1913), the statement was made that it was the function of the jury to apportion damages
among the beneficiaries. In the later case of Central Vermont R. Co. v. White, 238 U.S. 507, 35
S.Ct. 865, 59 L.Ed. 1433 (1915), the court interpreted the McGinnis case to mean that the jury
might apportion damages among the beneficiaries in a FELA case where the state practice so
provided. However, the Court also said (238 U.S. at 515, 35 S.Ct. at 869):
That omission [of a statutory requirement that the jury apportion damages] clearly
indicates an intent on the part of Congress to change what was the English practice so as
to make the Federal statute conform to what was the rule in most of the states in which it
was to operate. Those statutes, when silent on the subject, have generally been construed
not to require juries to make an apportionment. Indeed, to make them do so would, in
many cases, double the issues; for in connection with the determination of negligence and
damage, it would be necessary also to enter upon an investigation of the domestic affairs
of the deceased--a matter for probate courts, and not for jurors.
It has likewise been held that a court has the power to compel a proper distribution of the
recovery so as to protect the defendant against the claims of persons other than the plaintiff.
Anderson v. Louisville & N. R. Co., 210 Fed. 689 (6th Cir.1914). And, in connection with a
judicially approved settlement, the apportionment has been held to be collateral or ancillary to
the main controversy and, hence, within the jurisdiction of the Federal court in which the action
was pending. Stark v. Chicago, N. S. & M. Ry. Co., 203 F.2d 786 (7th Cir.1953).
In view of the foregoing authorities, the practical difficulties of proofs and computation
involved in an apportionment, and possible disputes between the various classes of beneficiaries,
the preferable practice is to permit the jury to return a verdict for the total damages and to require
the trial judge to apportion that verdict among the beneficiaries shown to be entitled to
participate in the recovery, protecting the defendant against additional claims. This treatment of
the matter turns the apportionment into an ancillary proceeding between or among the
beneficiaries.
Section 160, Page 37 of 44
160.21 FELA--Differing Effect of Contributory Negligence--Railroad and Non-Railroad
Defendants--Employing and Non-Employing Railroad Defendants
The liability of the defendants in this case will be different if you find that the [plaintiff]
[decedent] was guilty of contributory negligence.
As to the defendant [name railroad which employed plaintiff or decedent], if you find that
its negligence, in whole or in part, caused [injury to the plaintiff] [the death of the decedent],
then the defendant [name railroad which employed plaintiff or decedent] is liable, even if the
[plaintiff] [decedent] was guilty of contributory negligence, because so far as the defendant
[name railroad which employed plaintiff or decedent] is concerned, contributory negligence of
the [plaintiff] [decedent] would reduce the amount of the damages which may be recovered but
would not entirely prevent the [decedent's] [plaintiff's] recovery [of damages against that
defendant].
As to the defendant [non-FELA defendant or railroad defendant that did not employ
plaintiff or decedent], however, negligence of the [plaintiff] [decedent] which is more than 50%
of the cause of the [injury] [death] would be a complete bar to recovery of damages from the
defendant [non-FELA defendant or railroad defendant that did not employ plaintiff or decedent].
Notes on Use
IPI 160.13 concerning the diminution of damages because of contributory negligence,
and IPI 11.01 defining contributory negligence should be used with this instruction.
Comment
At the time of the publication of IPI, Second Edition, contributory negligence was a
complete bar to a common law negligence action. As a result, IPI 160.21 in the Second Edition
instructed the jury as to the difference between pure comparative negligence under the FELA
(damage reduction) and contributory negligence under Illinois law (complete bar to recovery) for
actions which joined FELA claims with common law negligence actions. In Alvis v. Ribar, 85
Ill.2d 1, 421 N.E.2d 886, 52 Ill.Dec. 23 (1981), the Illinois Supreme Court adopted the pure form
of comparative negligence for all cases in which the trial commences on or after June 8, 1981.
This decision conformed the Illinois law of contributory negligence to that which has been
historically applicable to FELA actions. Because the plaintiff's contributory negligence would
then have the same effect on railroad defendants which employed the plaintiff or decedent, nonrailroad defendants, or non-employer railroad defendants, pursuant to the Alvis decision, former
IPI 160.21 would no longer be applicable to actions arising prior to November 25, 1986.
For causes of action accruing on or after November 25, 1986, Illinois has adopted by
statute a modified form of comparative negligence. The court is required to instruct the jury in
writing that a non-FELA defendant should be found not liable if the jury finds that the
contributory fault of the plaintiff is more than 50% of the proximate cause of the injury. See 735
ILCS 5/2-1107.1 (1994). As a result, this instruction should be given instructing the jury on the
Section 160, Page 38 of 44
difference between pure comparative negligence under the FELA and a modified comparative
negligence under Illinois law.
This instruction differentiates between a FELA action and an ordinary negligence action
as to the effect of contributory negligence. It is intended for use where liability against one codefendant is asserted under the Act and liability against the other co-defendant is asserted under
common law and both actions are tried together. The joinder of a FELA action with a common
law action has repeatedly been sustained. Doyle v. St. Paul Union Depot Co., 134 Minn. 461,
159 N.W. 1081 (1916); Bankson v. Illinois Central R. Co., 196 Fed. 171 (N.D.Iowa 1912);
Robbins v. Illinois Power & Light Corp., 255 Ill.App. 106 (3d Dist.1929). Even in jurisdictions
where contributory negligence is a complete bar to recovery under the common law, it has been
held that a FELA action may be tried together with a common law action. Waylander-Peterson
Co. v. Great Northern Ry. Co., 201 F.2d 408 (8th Cir.1953). Each party is entitled to have the
law applicable to his case stated correctly. Because of the identity of terms, the jury will be less
confused if the principles applicable to contributory negligence for both the FELA and the
common law action are stated in the same instruction and differentiated.
Section 160, Page 39 of 44
160.22 Employing and Non-Employing Railroad Defendants--Differing Effect of
Contributory Negligence on Liability
This instruction has been merged with 160.21.
Section 160, Page 40 of 44
160.23 FELA--Effect of Contributory Negligence on Damages Where Plaintiff, Third
Party, and Railroad Are Negligent
If you find the defendant [non-FELA defendant or railroad defendant that did not employ
plaintiff or decedent] not liable by reason of contributory negligence on the part of the [plaintiff]
[decedent], and if you further find that the defendant [railroad that employed plaintiff or
decedent] is liable, then you should assess damages against defendant [railroad which employed
plaintiff or decedent] in the same manner as stated to you in these instructions.
Notes on Use
IPI 160.13 concerning the diminution of damages due to contributory negligence, and IPI
160.21 concerning the differing effect of contributory negligence in FELA and common law
actions, should also be given. It is recommended that this instruction be given immediately
following those instructions.
Section 160, Page 41 of 44
160.24 FELA--Burden of Proof--Contributory Negligence When Railroad and Either NonEmploying Railroad or Non-Railroad Are Defendants
The committee has withdrawn this instruction. The instruction on burden of proof on the
issue of contributory negligence is now part of IPI 160.03.
Comment
In Casey v. Baseden, 111 Ill.2d 341, 490 N.E.2d 4, 95 Ill.Dec. 531 (1986), the Illinois
Supreme Court held that the defendant has the burden of proving the plaintiff's contributory
negligence. Since the burden of proving contributory negligence is the same under Illinois law as
under the FELA, former IPI 160.24 is no longer a correct statement of the law.
Section 160, Page 42 of 44
160.25 FELA--Any Award of Damages Is Not Subject to Taxation
If you find for the plaintiff, any damages you award will not be subject to income taxes
and therefore you should not consider taxes in fixing the amount of the verdict.
Comment
This instruction reflects the decision of the United States Supreme Court in Norfolk &
Western Ry. Co. v. Liepelt, 444 U.S. 490, 498; 100 S.Ct. 755, 759; 62 L.Ed.2d 689 (1980), and
must be given if requested. It is applicable to all claims based on federal law but not as to claims
involving purely state law. See Klawonn v. Mitchell, 105 Ill.2d 450, 456; 475 N.E.2d 857, 861;
86 Ill.Dec. 478, 482 (1985).
Section 160, Page 43 of 44
160.26 Death Case Under FELA
The plaintiff [personal representative] brings this action in a representative capacity by
reason of his being [administrator] [executor] of the estate of [deceased's name], deceased. He
represents the [surviving spouse] [child(ren)] [parent(s)] [next of kin] of the deceased. He is the
real party in interest in this lawsuit, and in that sense is the real plaintiff whose damages you are
to determine if you decide for the [administrator] [executor] of the estate of [deceased's name].
Comment
Under Section 59 of FELA the right of action given to the injured employee survives to
his personal representative for the benefit of the beneficiaries provided for in this section;
namely, “for the benefit of the surviving widow or husband and children of such employee, and,
if none, then of such employee's parents; and, if none, then of the next of kin dependent upon
such employee . . . .” 45 U.S.C.A. § 59.
Although the deceased's administrator is the “personal representative” under Section 59,
Williams v. Louisville & N.R. Co., 371 F.2d 125 (6th Cir.1967), cert. denied, 388 U.S. 919, 87
S.Ct. 2138, 18 L.Ed.2d 1364 (1967), the cause of action which survives under this section does
not survive for the benefit of the deceased's estate, but only for the benefit of the relatives stated
in this section and in the order specified. If no such relatives survive, no right of recovery is
given by this section. Hogan v. New York Cent. & H. R.R. Co., 223 Fed. 890 (2d Cir.1915).
Section 160, Page 44 of 44
160.27 Measure of Damages, Federal Employers' Liability Act Aggravation of Pre-Existing
Condition
If you find for [(plaintiff's name)], you should compensate [(plaintiff's name)] for any
aggravation of an existing disease or physical defect resulting from such injury. If you find that
the pre-existing condition made [him] [her] more susceptible to injury than a person in good
health, [(defendant's name)] is responsible for all injuries suffered by [him] [her] as a result of
[their] [its] [his] [her] negligence. This is true even if those injuries are greater than would have
been suffered by a person in good health under the same circumstances.
If you find that there was an aggravation of a pre-existing condition you should determine
what portion of [(plaintiff's name)] condition resulted from the aggravation and make allowance
in your verdict only for the aggravation. However, if you cannot make the determination or if it
cannot be said that the condition would have existed apart from the injury, then [(defendant's
name)] is liable for all of the injuries.
Notes on Use
This instruction should be given whenever there is evidence of an aggravation of a
preexisting condition in a FELA case.
Comment
In Schultz v. Northeast Illinois Regional Commuter Railroad Corporation, d/b/a Metra,
201 Ill.2d 260, 775 N.E.2d 964, 266 Ill.Dec. 892 (2002), the Supreme Court determined that in
FELA cases, the proper content of jury instructions regarding damages for an injury resulting
from an aggravation of a pre-existing condition is determined by federal law. The Court
concluded that an instruction essentially similar to 160.27 correctly stated the law that when the
defendant's negligence aggravates a plaintiff's pre-existing condition, the defendant is liable only
for the additional injury caused by the negligence.
This instruction is a composite of the instruction that the Supreme Court approved in the
Schultz case and instructions cited in Sauer v. Burlington Northern R.R. Co., 106 F.3d 1490
(10th Cir.1997) and Stevens v. Bangor & Aroostook R.R. Co., 97 F.3d 594 (1st Cir.1996). In
Sauer, the Court cited the Federal Pattern Instruction § 155.65 from the Federal Jury Practice and
Instructions, 5th Edition (2001).
Section 170, Page 1 of 15
170.00
SAFETY APPLIANCE AND BOILER INSPECTION ACTS
INTRODUCTION
Certain types of FELA actions are commonly referred to as “Safety Appliance Act” and
“Boiler Inspection Act” cases. The actual relationship between the three acts is that all actions
for personal injuries by railroad employees falling within the scope of FELA are brought under
that Act, but, in instances where violation of either the Safety Appliance Act or the Boiler
Inspection Act is involved, the violation of these Acts supplies the wrongful act necessary for
liability under the FELA and the question of the railroad's negligence is not involved. The
relation between the FELA and either of these two Acts, as well as the issues involved in a
FELA action predicated upon one of these Acts, was explained as follows in Carter v. Atlanta &
St. A.B. Ry. Co., 338 U.S. 430, 434-435; 70 S.Ct. 226, 229; 94 L.Ed. 236 (1949):
In this situation the test of causal relation stated in the Employers' Liability Act is
applicable, the violation of the Appliance Act supplying the wrongful act necessary to
ground liability under the F.E.L.A. [Citations.] Sometimes that violation is described as
“negligence per se,” [citations]; but we have made clear in the O'Donnell case [O'Donnell
v. Elgin, J. & E. R. Co., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187 (1949)] that that term is
a confusing label for what is simply a violation of an absolute duty.
Once the violation is established, only causal relation is in issue. And Congress
has directed liability if the injury resulted “in whole or in part” from defendant's
negligence or its violation of the Safety Appliance Act.
Under the Safety Appliance Act, there are two different categories of violations that serve
as a basis upon which liability may be predicated.
The first category consists of violations of the statutory provisions themselves. These
include: a prohibition against using any locomotive engine not equipped with a power driving
wheel brake and appliances for operating the train brake system or running a train without a
sufficient number of cars equipped with sufficient train brakes so that the engineer can control its
speed without requiring brakemen to use hand brakes for that purpose, 45 U.S.C.A. § 1; a
requirement that cars be equipped with couplers, which couple automatically upon impact and
can be uncoupled without the necessity of men going between the ends of the cars, 45 U.S.C.A. §
2; a requirement of secure grab irons on the ends and sides of cars, 45 U.S.C.A. § 4; and the
general provision, 45 U.S.C.A. § 11:
All cars must be equipped with secure sill steps and efficient hand brakes; all cars
requiring secure ladders and secure running boards shall be equipped with such ladders
and running boards, and all cars having ladders shall also be equipped with secure
handholds or grab irons on their roofs at the top of such ladders . . . .
Section 170, Page 2 of 15
The second category consists of violations of regulations promulgated by the Secretary of
Transportation. Some of the sections under which the Secretary's regulatory powers might be
exercised are 45 U.S.C.A. § 5 which prohibits the use of freight cars that do not comply with the
“prescribed standards” as to the height of drawbars; section 9, which requires that at least 50% of
the cars in any train be equipped with power brakes, subject to the power of the Secretary to
increase the percentage, and which further requires that such power brakes conform to the
Association of American Railroads standards for such brakes, subject to the Secretary's power to
modify such standards for the purpose of achieving safety; and section 12, which requires that
the appliances specified in section 4 (secure grab irons and handholds) and section 11 (secure sill
steps, efficient hand brakes, secure ladders and running boards, secure grab irons or handholds)
of the Act shall conform in number, dimensions, location, and manner of application to the
standards fixed, and to be fixed by the Secretary.
Thus, in instructions as to duty in this second class of cases, attention must be given to
the applicable rules and regulations, as well as to the statute itself. See Atchison, T. & S.F. Ry.
Co. v. Scarlett, 300 U.S. 471, 57 S.Ct. 541, 81 L.Ed. 748 (1937) (liability predicated upon
violation of rule prescribing standards for ladders; brace rod held not a ladder and rule not
applicable); Williams v. New York Central R. Co., 402 Ill. 494, 501-503; 84 N.E.2d 399, 403-404
(1949) (ICC rules required boxcars to be equipped with running boards and had no such
requirement for gondola cars; another rule provided that special cars should have the same
equipment as required for cars of the nearest approximate type; question whether converted
boxcar more nearly approximated a boxcar or a gondola car held for the jury).
The section of the Boiler Inspection Act establishing standards imposes a dual
requirement that a locomotive, its boiler, tender and all parts and appurtenances (1) shall be in
proper condition and safe to operate so that they may be employed in the active service of the
carrier without unnecessary peril to life and limb, and (2) shall have been inspected as provided
in the Act and be able to withstand the tests prescribed by the Secretary, 45 U.S.C.A. § 23. This
latter requirement has been construed as delegating rule making power to the Interstate
Commerce Commission (which was the predecessor to the Department of Transportation) under
this Act as well. Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 612; 47 S.Ct. 207, 209; 71
L.Ed. 432 (1926).
The FELA itself provides for a further differentiation between actions based in part on
the Safety Appliance and Boiler Inspection Acts and other actions based entirely on the FELA.
Where violations of the Boiler Inspection and Safety Appliance Acts are involved, contributory
negligence may not be considered in mitigation of damages, 45 U.S.C.A. § 53. In addition to the
general section of the FELA abolishing the defense of assumption of risk, 45 U.S.C.A. § 54, the
Safety Appliance Act contains a section also abolishing assumption of risk where the employee
is injured even though the employee has actual notice of the violation, 45 U.S.C.A. § 7, and a
specific provision saving actions for personal injury to employees in situations where the penal
provisions of the act are not enforceable, 45 U.S.C.A. § 13.
A further difference arises in the manner of proof of cases based partly on the Safety
Appliance and Boiler Inspection Acts. As expressed in Myers v. Reading Co., 331 U.S. 477, 483;
Section 170, Page 3 of 15
67 S.Ct. 1334, 1338; 91 L.Ed. 1615 (1947), quoting from Didinger v. Pennsylvania R. Co., 39
F.2d 798, 799 (6th Cir.1930):
‘There are two recognized methods of showing the inefficiency of hand brake equipment.
Evidence may be adduced to establish some particular defect, or the same inefficiency
may be established by showing a failure to function, when operated with due care, in the
normal, natural, and usual manner.’
See also Spokane & I. E. R. Co. v. Campbell, 241 U.S. 497, 505; 36 S.Ct. 683, 687; 60
L.Ed. 1125 (1916), for an illustration of the kind of evidence that establishes a violation of the
Safety Appliance Act. The terms efficient and inefficient as used in 45 U.S.C.A. § 11 have been
defined as follows: “Efficient means adequate in performance; producing properly a desired
effect. Inefficient means not producing or not capable of producing the desired effect: incapable;
incompetent; inadequate.” Spotts v. Baltimore & O.R. Co., 102 F.2d 160, 162 (7th Cir.1938).
In O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 394; 70 S.Ct. 200, 206; 94 L.Ed.
187 (1949), the Court, in holding that plaintiff was entitled to a peremptory instruction that
equipping a car with a coupler that broke was a violation of the Safety Appliance Act, in effect
held that proof of malfunction was sufficient evidence of a violation, indicating, by means of a
footnote, that the only defense would be proof that the failure was caused through something
other than the inadequacy or defectiveness of the appliance. See also Coleman v. Burlington
Northern, Inc., 681 F.2d 542 (8th Cir.1982), where the court held that where there is no factual
issue as to the failure of a safety appliance required by the Act to function properly, the jury must
be given a preemptive instruction that said failure did constitute a violation of the Act.
Finally, sections 1, 2, 6 and 11 of the Safety Appliance Act as well as language in the
Boiler Inspection Act (§ 23) limit their applicability to equipment which is hauled or used on the
carrier's line. Tisneros v. Chicago & N.W. Ry. Co., 197 F.2d 466 (7th Cir.1952), cert. denied, 344
U.S. 885, 73 S.Ct. 184, 97 L.Ed. 685 (1952) (fire knocker, injured while climbing engine to
either extinguish or build up fire in engine standing in roundhouse, denied recovery); Lyle v.
Atchison, T. & S.F. Ry. Co., 177 F.2d 221 (7th Cir.1949), cert. denied, 339 U.S. 913, 70 S.Ct.
574, 94 L.Ed. 1339 (1950) (hostler's helper servicing locomotives to prepare them for use,
denied recovery); Baltimore & Ohio R. Co. v. Hooven, 297 F. 919 (6th Cir.1924) (Safety
Appliance Act case; locomotive in roundhouse for monthly inspection and repairs held not in
use). But see Jenkins v. Chicago & Eastern Ill. R.R., 5 Ill.App.3d 954, 284 N.E.2d 392 (1st
Dist.1972) (prior use is not a sufficient basis for liability, but a car held to be “in use” even
though it had been delivered to a user on its own spur track for loading and unloading); Angell v.
Chesapeake & O. Ry. Co., 618 F.2d 260 (4th Cir.1980) (engine held “in use” even though it was
on a service and maintenance track when maintenance was completed and engine was being
returned to active track).
More extended discussions of the problems involved in actions predicated upon
violations of these two Acts are contained in the articles cited in the introduction to the FELA at
IPI 160.00.
Section 170, Page 4 of 15
These instructions do not cover the following factual issues: whether the locomotive was
being “used on its line” by the railroad, whether the plaintiff or decedent was an employee, or the
question of interstate commerce. Where such an issue exists, the instructions should be modified
or supplemented, if and to the extent that the court determines that the issue is one for the jury.
Section 170, Page 5 of 15
170.01.01 Safety Appliance Act--Statutory Provisions
At the time of the occurrence, there was in force a federal statute known as the Safety
Appliance Act. That Act imposed upon the railroad the absolute duty to have all cars that it hauls
or permits to be hauled or used on its line [equipped with couplers coupling automatically by
impact, and which can be uncoupled without the necessity of persons going between the ends of
the cars] [equipped with efficient hand brakes] [equipped with secure and adequate grab irons or
handholds at the ends and sides of each car (and on the roof at the top of the ladder on each car)].
This statute is violated when [a coupler fails to function properly while (used) (operated)
in the usual and customary manner] [a coupler fails to function properly because of a defect]
[hand brakes fail to perform properly while (used) (operated) in the usual and customary manner]
[hand brakes fail to perform properly because of a defect] [a car does not have the required grab
irons or handholds] [a car grab iron or handhold on a car is not secure or adequate for use].
The statute provides that railroads violating the Act are liable to persons covered under
the Act for [injuries] [death] caused in whole or in part by such violations.
The statute further provides that neither negligence on the part of the employee nor the
absence of negligence on the part of the railroad is a defense to liability under this Act.
Notes on Use
This instruction is a combination of, and replaces, former IPI instructions 170.01, 170.02,
and 170.03.
A violation of the Act is proved by establishing a specific defect or by proof that the
coupler or brake failed to function properly when used with due care in the normal and usual
manner. See Introduction. The bracketed terms in paragraph two of the instruction should be
used to make the instruction conform to the evidence.
Comment
The instruction follows the language of the statutory sections except for the phrase
“absolute duty” and the use of this paragraph, including that phrase is proper. Howard v.
Baltimore & O. C. T. R. Co., 327 Ill.App. 83, 63 N.E.2d 774 (1st Dist.1945). The second
paragraph states the way in which the violation may be proved. See Introduction. Where the
evidence tends to support both allegations of negligence and violation of the Act, a plaintiff is
entitled to have the instruction given. O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 70 S.Ct.
200, 94 L.Ed. 187 (1949).
It is reversible error if the court does not separate the negligence claim from the claim for
violation of the Act and make it clear that neither evidence of negligence nor due care can be
considered in determining a defendant's liability under the Act. Trout v. Pennsylvania R. Co.,
300 F.2d 826 (3d Cir.1962).
Section 170, Page 6 of 15
If the evidence establishes that the plaintiff or decedent was engaged in the “coupling
process” when injured or killed, the evidence is sufficient as a matter of law to constitute cause
in fact, and there is no issue of proximate cause to be decided by the jury. Reynolds v. Alton &
Southern Ry. Co., 115 Ill.App.3d 88, 450 N.E.2d 402, 70 Ill.Dec. 929 (5th Dist.1983).
In Spotts v. Baltimore & O. R. Co., 102 F.2d 160, 162 (7th Cir.1938), the court defined
the terms efficient and inefficient under this section as follows: “Efficient means adequate in
performance; producing properly a desired effect. Inefficient means not producing or not capable
of producing the desired effect; incapable; incompetent, inadequate.”
Section 170, Page 7 of 15
170.01.02 Safety Appliance Act--Issues Made by the Pleadings
[The plaintiff claims that he was injured and sustained damages while he was engaged in
the course of his employment by the railroad.]
[The plaintiff claims that [decedent's name] was killed while [decedent's name] was
engaged in the course of his employment by the railroad, and that [names of beneficiaries]
sustained damages by reason of [decedent's name]'s death.]
The plaintiff further claims that the railroad violated the Safety Appliance Act in [that]
[one or more of the following respects]:
[1.] [The coupler (on a car used on its line) (on one of its cars) failed to function
properly] [when it was (used) (operated) in the usual and customary manner].
[2.] [The coupler (on a car used on its line) (on one of its cars) failed to function properly
because of a defect.]
[3.] [The hand brakes (on a car used on its line) (on one of its cars) failed to perform
properly when they were (used) (operated) in the usual and customary manner.]
[4.] [The hand brakes (on a car used on its line) (on one of its cars) failed to perform
properly because of a defect.]
[5.] [A car used on its line] [One of its cars] [did not have the required grab irons or
handholds.]
[6.] [The grab iron or handhold (on a car used on its line) (on one of its cars) was not
secure or adequate for use.]
The plaintiff further claims that the [injury] [death] resulted in whole or in part from [one
or more of] the alleged violation[s] of the Act.
The railroad denies [that it violated the Safety Appliance Act as claimed by the plaintiff]
[or] [and] [that (plaintiff) (decedent) was engaged in the course of his employment for the
railroad at the time of the alleged occurrence].
[The railroad further denies that (any of alleged injuries) (the death) and damage resulted,
in whole or in part, from any violation of the Act.]
[The railroad further denies that the plaintiff was injured or sustained damages (to the
extent claimed).]
Section 170, Page 8 of 15
Notes on Use
This instruction is new. The former Safety Appliance Act instructions did not include an
issues instruction.
The first two paragraphs are alternatives.
The numbered bracketed terms should be used to make the instruction conform to the
evidence and the statutory violation alleged. For example, [1] and [2] are for use with alleged
violations of 45 U.S.C.A. § 2; [3] and [4] are for use with alleged violations of 45 U.S.C.A. § 11;
and [5] and [6] are for use with alleged violations of 45 U.S.C.A. § 4.
Factual issues as to whether the car was being “used on its line” by the railroad, whether
the plaintiff or decedent was an employee, or whether there was the requisite nexus with
interstate commerce are not covered by this instruction. Where such issues exist and the court
rules that the issue is one for the jury, the instruction should be modified accordingly.
Section 170, Page 9 of 15
170.01.03 Safety Appliance Act--Burden of Proof
The plaintiff has the burden of proving each of the following propositions:
First, that the [plaintiff was injured] [decedent was killed] while the [plaintiff] [decedent]
was engaged in the course of his employment by the railroad.
Second, that the railroad violated the Safety Appliance Act in one of the ways claimed by
the plaintiff as stated in these instructions.
Third, that the [plaintiff's injury] [decedent's death] resulted, in whole or in part, from a
violation of the Safety Appliance Act.
If you find from your consideration of all the evidence that each of these propositions has
been proved, then your verdict should be for the plaintiff. If, on the other hand, you find from
your consideration of all the evidence that any of these propositions has not been proved, then
your verdict should be for the railroad.
Notes on Use
The former Safety Appliance Act instructions did not include a burden of proof
instruction.
Section 170, Page 10 of 15
170.04 Safety Appliance Act--Boiler Inspection Act--No Assumption of Risk by Employee
At the time of the occurrence there was in force a federal statute known as the [Safety
Appliance Act] [Boiler Inspection Act] which provided that in any action brought against a
railroad to recover damages for [injury to] [the death of] an employee, the employee shall not be
held to have assumed the risks of his employment in any case where the violation by the railroad
of the Act caused, in whole or in part, the [injury to] [death of] the employee.
Comment
This instruction paraphrases that portion of 45 U.S.C.A. § 54 applicable to cases based
upon Safety Appliance Act and Boiler Inspection Act violations.
Section 170, Page 11 of 15
170.05 Combined FELA & Safety Appliance Act or Boiler Inspection Act Case--No
Assumption of Risk by Employee
At the time of the occurrence there was in force a federal statute which provided that in
any action brought against a railroad to recover damages for [injury to] [the death of] an
employee, the employee shall not be held to have assumed the risks of his employment in any
case where the [injury] [death] resulted in whole or in part from the negligence of any of the
officers, agents, or employees of the railroad or where the violation by the railroad of any statute
enacted for the safety of the employee caused, in whole or in part, the [injury to] [death of] the
employee.
Notes on Use
This instruction combines the portion of 45 U.S.C.A. § 54 applicable to FELA negligence
actions with those applicable to actions based on violations of the Safety Appliance Act or Boiler
Inspection Act. It should be given in lieu of IPI 160.09 and 170.04 when both types of action are
submitted to the jury.
Comment
See Comment to IPI 160.09.
Section 170, Page 12 of 15
170.06 Boiler Inspection Act--Statutory Provisions
At the time of the occurrence, there was in force a federal statute known as the Boiler
Inspection Act. That Act imposed upon the railroad the absolute duty to have every locomotive
used or permitted to be used on its line, together with [the (boiler) (tender)] all parts and
appurtenances of any such locomotive, in a proper and safe condition for operation on the
railroad without unnecessary danger to life or limb.
The statute provides that railroads violating the Act are liable to persons covered under
the Act for [injuries] [death] caused in whole or in part by such violations.
The statute further provides that neither negligence on the part of the employee nor the
absence of negligence on the part of the railroad is a defense to liability under this Act.
Notes on Use
The second paragraph has been added to make it clear that the statute is violated if the
equipment is unsafe in use despite the fact that no actual defect in the equipment is shown.
Comment
This instruction covers a violation of 45 U.S.C.A. § 23, the Boiler Inspection Act. The
comment under IPI 170.01.01 is applicable since the Act is given the same construction as the
Safety Appliance Act. Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 485-488; 63 S.Ct.
347, 350-352; 87 L.Ed. 411 (1943); Calabritto v. New York, N.H. & H.R. Co., 287 F.2d 394 (2d
Cir.1961), cert. denied, 366 U.S. 928, 81 S.Ct. 1649, 6 L.Ed.2d 387 (1961).
Dangerous conditions caused by foreign substances (such as ice or sand and oil) may give
rise to liability under the Boiler Inspection Act even in the absence of a violation of federal
safety regulations. Whelan v. Penn Cent. Co., 503 F.2d 886 (2d Cir.1974).
In Bankston v. Chesapeake & Ohio Ry. Co., 128 Ill.App.3d 166, 470 N.E.2d 512, 83
Ill.Dec. 386 (1st Dist.1984), there was evidence that oil was on the exterior catwalk of the
locomotive and that the plaintiff slipped on the oil. This instruction was given without objection.
The court held that this evidence supported the jury's findings that the railroad had violated 45
U.S.C.A. § 23 and was liable to the plaintiff.
Section 170, Page 13 of 15
170.06.01 Boiler Inspection Act--Issues Made by the Pleadings
[The plaintiff claims that he was injured and sustained damages while he was engaged in
the course of his employment by the railroad.]
[The plaintiff claims that [decedent's name] was killed while [decedent's name] was
engaged in the course of his employment by the railroad, and that [names of beneficiaries]
sustained damages by reason of [decedent's name]'s death.]
The plaintiff further claims that the railroad violated the Boiler Inspection Act in that the
locomotive used or permitted to be used on its line together with [the boiler, tender, and] all parts
and appurtenances of the locomotive was not in a proper and safe condition for operation on the
railroad and was a danger to life or limb.
The plaintiff further claims that the [injury] [death] resulted in whole or in part from [one
or more of] the alleged violation[s] of the Act.
The railroad [denies that it violated the Boiler Inspection Act as claimed by the plaintiff]
[and] [denies that the (plaintiff) (decedent) was engaged in the course of his employment for the
railroad at the time of the alleged occurrence.]
The railroad further denies that [(any of) the alleged (injuries) (damages)] [the death]
resulted, in whole or in part, from any violation of the Act.
[The railroad further denies that the plaintiff (was injured) (or) (sustained damages) (to
the extent claimed).]
Notes on Use
The former Boiler Inspection Act instructions did not include an issues instruction.
The first two paragraphs are alternatives.
Section 170, Page 14 of 15
170.06.02 Boiler Inspection Act--Burden of Proof
The plaintiff has the burden of proving each of the following propositions:
First, that the [plaintiff was injured] [decedent was killed] while the [plaintiff] [decedent] was
engaged in the course of his employment by the railroad.
Second, that the railroad violated the Boiler Inspection Act in one of the ways claimed by the
plaintiff as stated in these instructions.
Third, that the [plaintiff's injury] [decedent's death] resulted, in whole or in part, from a violation
of the Boiler Inspection Act.
If you find from your consideration of all the evidence that each of these propositions has been
proved, then your verdict should be for the plaintiff. If, on the other hand, you find from your
consideration of all the evidence that any of these propositions has not been proved, then your
verdict should be for the railroad.
Notes on Use
The former Boiler Inspection Act instructions did not include a burden of proof
instruction.
Section 170, Page 15 of 15
170.07 Damages--Contributory Negligence Not a Bar and Does Not Diminish Damages
Where Injury or Death Caused by Violation of Safety Appliance or Boiler Inspection Act
If you find that the [plaintiff's injuries] [decedent's death] resulted in whole or in part
from the violation by the railroad of the [Safety Appliance Act] [Boiler Inspection Act], then
contributory negligence of the [plaintiff] [decedent] shall neither bar a recovery nor reduce the
amount of the plaintiff's damages.
Comment
This instruction states the applicable provisions of 45 U.S.C.A. § 53.
Section 180, Page 1 of 1
180.00
STRUCTURAL WORK ACT
STATUTE REPEALED IN 1995.
Section 185, Page 1 of 17
185.00
MAGNUSON-MOSS ACT
INTRODUCTION
The Magnuson-Moss Act was enacted in 1975 “to improve the adequacy of information
available to consumers, prevent deception and improve competition” with respect to consumer
products issued with written warranties. 15 U.S.C. § 2302 (a) (1994). The Act was designed to
protect consumers from deceptive warranty practices by establishing standards for the form and
content of written warranties. Lysek v. Elmhurst Dodge, Inc., 325 Ill. App. 3d 536, 259 Ill. Dec.
454 (2001).
The Act applies to consumer products, which are tangible items of personal property
“normally used for personal, family or household purposes.” 15 U.S.C. § 2301 (1) (1975). The
Act does not require that manufacturers give a warranty; however, if a written warranty is given,
the Act “imposes certain requirements as to its contents, disclosures, and the effect of extending
a written warranty.” Szajna v. Gen. Motors Corp., 115 Ill. 2d 294, 312, 503 N.E.2d 760, 768
(1986). Written warranties must be designated as either “full” or “limited.” 15 U.S.C. § 2304
(1976). “A warrantor giving a ‘full’ written warranty may not impose any limitations on the
duration of an implied warranty and may not exclude or limit consequential damages for breach
of a written or implied warranty.” Szajna, 115 Ill. 2d at 312-13 (citing 15 U.S.C. § 2304 (1976)).
Within a reasonable amount of time, a full written warranty must offer a remedy of repair,
replacement or refund, at the option of the warrantor, for any defect, malfunction or failure to
comply with the written warranty, without charge to the consumer. 15 U.S.C. § 2304 (a) (1); 15
U.S.C. § 2301 (10-12). Only a supplier giving a limited written warranty may disclaim or modify
an implied warranty; and, the only modification allowed is that the duration of the implied
warranty may be limited to the duration of the written warranty “if such limitation is
conscionable and is clearly set forth.” Szajna, 115 Ill. 2d at 313 (citing 15 U.S.C. § 2308 (1976)).
Introduction approved January 2007.
Section 185, Page 2 of 17
185.01 Statutory Provisions
At the time of the [sale] [lease] [service contract] of the [vehicle] [product] there was in
force a federal statute known as the Magnuson-Moss Warranty Act. That Act provided that a
consumer who is damaged by the failure of a [manufacturer] [seller] [supplier] [service
contractor] [warrantor] to comply with a [written] [and/or] [implied] warranty may bring suit for
[damages], [refund], [repair], or [replacement].
Instruction and Comment approved January 2007.
Comment
Pursuant to the Magnuson-Moss Act, “a consumer who is damaged by the failure of a
supplier, warrantor, or service contractor to comply with any obligation under this chapter, or
under a written warranty, implied warranty, or service contract, may bring suit for damages and
other legal and equitable relief.” 15 U.S.C. § 2310(d)(1) (1994). Actions for breach of an implied
warranty of merchantability arise under the Act by state law. 15 U.S.C. § 2301(7) (1994). Illinois
state law regarding actions for breach of an implied warranty of merchantability is stated in
section 2-314 of the UCC (810 ILCS 5/2-314 (West 2002)). Under the UCC, a buyer of goods
seeking purely economic damages for a breach of an implied warranty has “a potential cause of
action only against his immediate seller.” The Magnuson-Moss Act imposes on manufacturers
the same implied warranties that state law imposes on the buyer's immediate seller. In actions
where (1) a consumer filed against a manufacturer pursuant to the Magnuson-Moss Act and (2)
the manufacturer has expressly warranted a product to the consumer, the plaintiff has a cause of
action for breach of implied warranty under the Magnuson-Moss Act against the manufacturer.
Razor v. Hyundai Motor Am., 349 Ill.App.3d 651, 285 Ill.Dec. 190, 813 N.E.2d 247 (2004)
(affirmed in part, reversed in part, and remanded 222 Ill. 2d 75 (2006)), citing Mekertichian v.
Mercedes-Benz U.S.A., 347 Ill.App.3d 828, 807 N.E.2d 1165 (2004), citing Szajna v. Gen.
Motors Corp., 115 Ill. 2d 294, 311, 503 N.E. 2d 760, 767, 104 Ill.Dec. 898, 503 N.E.2d 760, 768
tline(1986), and Rothe v. Maloney Cadillac, Inc., 119 Ill.2d 288, 292, 518 N.E.2d 1028, 1029-30
(1988). The Magnuson-Moss Act prohibits anyone who offers a written warranty from
disclaiming or modifying implied warranties. No matter how broad or narrow a written warranty
is, consumers always receive the basic protection of the implied warranty of merchantability.
The Act applies to sales, leases, service contracts and the sale of extended warranties after sale
with the product. Lysek v. Elmhurst Dodge, Inc., 325 Ill. App. 3d 536, 259 Ill. Dec. 454 (2001);
Mangold v. Nissan N. Am., Inc., 347 Ill. App. 3d 1008, 809 N.E.2d 251, 284 Ill. Dec. 129 (2004).
Section 185, Page 3 of 17
185.02 Magnuson-Moss Act--Issues Made by the Pleadings
[1] [The Plaintiff claims that he sustained damages as a [purchaser] [lessee] of a [vehicle]
[product] [manufactured] [sold] [leased] [distributed] [supplied] [warranted] by the Defendant.]
[2] The Plaintiff further claims that the Defendant violated the Magnuson-Moss Act in
that:
a. [the Defendant breached a written warranty given with the vehicle [product].
Set forth in simple form without undue emphasis or repetition those allegations of the
complaint as to breach of a written warranty which have not been withdrawn or ruled out
by the court and are supported by the evidence.]
b. [the Defendant breached the implied warranty of merchantability given with the
[vehicle] [product].
Set forth in simple form without undue emphasis or repetition those allegations of the
complaint as to breach of the implied warranty of merchantability which have not been
withdrawn or ruled out by the court and are supported by the evidence.]
[3] The Plaintiff further claims that damages resulted in whole or in part from one or
more of the alleged violations of the Act.
[4] The Defendant denies that it violated the Magnuson-Moss Act as claimed by the
Plaintiff.
[5] The Defendant further denies that any of the alleged damages resulted, in whole or in
part, from any violation of the Act.
[6] The Defendant further denies that the Plaintiff sustained damages (to the extent
claimed).
[7] The Defendant also sets up the following affirmative defense[s]:
[Set forth in simple terms without undue emphasis or repetition those affirmative defenses
to warranty enforcement in the answer which have not been withdrawn or ruled out by
the court and are supported by the evidence.]
[8] The Plaintiff denies that [summarize affirmative defense or defenses].
Instruction approved January 2007.
Section 185, Page 4 of 17
185.03 Magnuson-Moss Act--Burden of Proof--Breach of Written Warranty
In order for Plaintiff to recover for a breach of written warranty claim against Defendant,
Plaintiff has the burden of proving each of the following propositions:
First, the existence of a defect in the [vehicle] [product] covered by the warranty;
Second, compliance with the terms of the warranty by Plaintiff;
Third, that the Plaintiff afforded Defendant a reasonable opportunity to repair the defect;
and
Fourth, that Defendant, through its authorized dealer [did not repair] [was unable to
repair] the [vehicle] [product] after being given a reasonable number of attempts or a reasonable
amount of time; or did not offer to refund or replace within a reasonable amount of time.
Fifth, that Plaintiff sustained damages as a result of Defendant's failure to take action
required by the warranty to correct the defect or malfunction or otherwise to correct the problem.
If you find from your consideration of all the evidence that each of these propositions has
been proven, then your verdict should be for the Plaintiff. On the other hand, if you find from
your consideration of all the evidence that any of these propositions has not been proven, then
your verdict should be for the Defendant.
Instruction, Notes and Comment approved January 2007.
Notes on Use
This burden of proof instruction should be used where no affirmative defenses have been
raised or the sole affirmative defense raised is mitigation of damages. Where mitigation of
damages is raised also give IPI 185.11. This instruction should be given with IPI 21.01 which
defines the phrase “burden of proof.”
This instruction conforms to the burden of proof requirements for breach of a written
warranty as stated in Pearson v. DaimlerChrysler Corp., 349 Ill. App. 3d 688, 286 Ill. Dec. 173,
813 N.E.2d 230 (2004) and Razor v. Hyundai Motor Am., 349 Ill. App. 3d 651, 286 Ill. Dec.
190, 813 N.E.2d 247 (2004) (affirmed in part, reversed in part, and remanded 222 Ill. 2d 75
(2006)), which states that the plaintiff has the burden of proving a reasonable basis for damages
proximately caused by defendant's breach.
In the fourth burden of proof element the phrase “or did not offer to refund or replace
within a reasonable amount of time” should be included in full warranty cases, and only those
limited warranty cases where the right to recover a refund or replacement of the product is
provided in the warranty.
Section 185, Page 5 of 17
Comment
The Magnuson-Moss Warranty Act creates a contractual right on the part of consumers
for the replacement of or refund of the purchase price of defective products which are covered by
a full warranty. The warrantor's failure to allow the consumer to elect replacement or refund
gives rise to an action at law for breach of warranty in which the consumer must prove only that
a defect in the product exists which the warrantor was unable to repair after a reasonable number
of attempts. Sadat v. Am. Motors Corp., 114 Ill. App. 3d 376, 70 Ill. Dec. 22, 448 N.E.2d 900
(1983). A full written warranty must offer a remedy of repair, replacement or refund, at the
option of the warrantor, for any defect, malfunction or failure to comply with the written
warranty, without charge to the consumer. 15 U.S.C. § 2304 (a) (1); 15 U.S.C. § 2301 (10-12). A
limited written warranty may offer a remedy of repair, replacement or refund but it is not
required. The Magnuson-Moss Act applies to limited warranties. A plaintiff is entitled to bring
an action under the Act based on alleged breach of a limited written warranty provided by
defendant. Mydlach v. DaimlerChrysler Corp., 364 Ill. App. 3d 135, 301 Ill. Dec. 164, 846
N.E.2d 126 (2006). The Act requires that every written warranty on a consumer product that
costs more than $10 have a title that says the warranty is either “full” or “limited.” Lara v.
Hyundai Motor Am., 331 Ill. App. 3d 53, 264 Ill. Dec. 416, 770 N.E.2d 721 (2002).
Section 185, Page 6 of 17
185.04 Magnuson-Moss Act--Burden of Proof--Breach of Written Warranty--Affirmative
Defenses to Warranty Enforcement
In order for Plaintiff to recover for a breach of written warranty claim against Defendant,
Plaintiff has the burden of proving each of the following propositions:
First, the existence of a defect in the [vehicle] [product] covered by the warranty;
Second, compliance with the terms of the warranty by Plaintiff;
Third, that the Plaintiff afforded Defendant a reasonable opportunity to repair the defect;
and
Fourth, that Defendant, through its authorized dealer [did not repair] [was unable to
repair] the [vehicle] [product] after being given a reasonable number of attempts or a reasonable
amount of time; or did not offer to refund or replace within a reasonable amount of time.
Fifth, that Plaintiff sustained damages as a result of Defendant's failure to take action
required by the warranty to correct the defect or malfunction or otherwise to correct the problem.
[In this case Defendant has asserted the affirmative defense that:
Summarize in simple form and without undue emphasis or repetition affirmative
defense(s) to warranty enforcement which has not been withdrawn or ruled out by the
court and is supported by the evidence.
The Defendant has the burden of proving this affirmative defense.]
If you find from your consideration of all the evidence that the propositions required of
the Plaintiff have been proven and that [the Defendant's affirmative defense has not] [none of the
Defendant's affirmative defenses has] been proven, then your verdict should be for the Plaintiff.
If, on the other hand, you find from your consideration of all the evidence, that the propositions
the Plaintiff is required to prove have not been proven, or that [any one of] the Defendant's
affirmative defense[s] has been proven, then your verdict should be for the Defendant.
Instruction, Notes and Comment approved January 2007.
Notes on Use
This burden of proof instruction should only be used when affirmative defenses other
than mitigation of damages are raised. Where mitigation of damages is raised give IPI 185.03
and IPI 185.11. This instruction should be given with IPI 21.01 which defines the phrase “burden
of proof.”
This instruction conforms to the burden of proof requirements for breach of a written
warranty as stated in Pearson v. DaimlerChrysler Corp., 349 Ill. App. 3d 688, 286 Ill. Dec. 173,
813 N.E.2d 230 (2004) and Razor v. Hyundai Motor Am., 349 Ill. App. 3d 651, 286 Ill. Dec. 190,
Section 185, Page 7 of 17
813 N.E.2d 247 (2004) (affirmed in part, reversed in part, and remanded 222 Ill. 2d 75 (2006)),
which states that the plaintiff has the burden of proving a reasonable basis for damages
proximately caused by defendant's breach.
In the fourth burden of proof element the phrase “or did not offer to refund or replace
within a reasonable amount of time” should be included in full warranty cases, and only those
limited warranty cases where the right to recover a refund or replacement of the product is
provided in the warranty.
Comment
The Magnuson-Moss Warranty Act creates a contractual right on the part of consumers
for the replacement of or refund of the purchase price of defective products which are covered by
a full warranty. The warrantor's failure to allow the consumer to elect replacement or refund
gives rise to an action at law for breach of warranty in which the consumer must prove only that
a defect in the product exists which the warrantor was unable to repair after a reasonable number
of attempts. Sadat v. Am. Motors Corp., 114 Ill. App. 3d 376, 70 Ill. Dec. 22, 448 N.E.2d 900
(1983). A full written warranty must offer a remedy of repair, replacement or refund, at the
option of the warrantor, for any defect, malfunction or failure to comply with the written
warranty, without charge to the consumer. 15 U.S.C. § 2304 (a) (1); 15 U.S.C. § 2301 (10). A
limited written warranty may offer a remedy of repair, replacement or refund but it is not
required. The Act requires that every written warranty on a consumer product that costs more
than $10 have a title that says the warranty is either “full” or “limited.” Lara v. Hyundai Motor
Am., 331 Ill. App. 3d 53, 264 Ill. Dec. 416, 770 N.E.2d 721 (2002).
Section 185, Page 8 of 17
185.05 Magnuson-Moss Act--Burden of Proof--Breach of Implied Warranty
In order for Plaintiff to recover for a breach of implied warranty of merchantability claim
against Defendant, Plaintiff has the burden of proving each of the following propositions:
First, that the problem of which Plaintiff complains existed when it left Defendant's
control. The Plaintiff may prove this by showing:
a. [the problem was due to a defect or malfunction of the [vehicle] [product];] or
b. [in the absence of abnormal use or reasonable secondary causes the [vehicle] [product]
failed to perform in the manner reasonably expected in light of its nature and intended
function;]
Second, that the defect made the [vehicle] [product] unfit for the ordinary purpose such a
[vehicle] [product] is used;
Third, that the Plaintiff notified Defendant or its authorized dealer of the defect within a
reasonable amount of time after discovering it;
Fourth, that Defendant or its authorized dealer did not repair the vehicle [product] after
being given a reasonable number of attempts or did not offer to refund, replace or take other
remedial action within a reasonable amount of time.
Fifth, that Plaintiff sustained damages; and
Sixth, that Plaintiff's damages were proximately caused by the [vehicle] [product] being
unfit for the ordinary purpose for which such [vehicles] [products] are used.
If you find from your consideration of all the evidence that each of these propositions has
been proven, then your verdict should be for the Plaintiff. On the other hand, if you find from
your consideration of all the evidence that any of these propositions has not been proven, then
your verdict should be for the Defendant.
Instruction, Notes and Comment approved January 2007.
Notes on Use
This burden of proof instruction should be used where no affirmative defenses have been
raised or the sole affirmative defense raised is mitigation of damages. Where mitigation of
damages is raised also give IPI 185.11. This instruction should be given with IPI 21.01 which
defines the phrase “burden of proof.”
Comment
The first element of the burden of proof conforms to the alternative manner which
plaintiff may prove a defect in implied warranty cases as held