IPI 12.04: The “Sole Proximate Cause” Misnomer Should be Replaced by “100% Proximate Cause” to Accurately State the Law and Eliminate Confusion

By: Melinda S. Kollross and Paul V. Esposito, Clausen Miller, Chicago

Names are important. They make identification easier, whether of tangibles like persons, places, and things, or intangibles like Arabic numerals and the Pythagorean Theorem. Some things get wrongly named. Our numerals originated in India, not Arabia. The Babylonians derived the theorem about 1000 years before Pythagoras.

The law also has its misnomers, one being the “sole proximate cause defense.” It has created a lot of confusion. For one, “sole proximate cause” is not an affirmative defense. Leonardi v. Loyola Univ. of Chicago, 168 Ill. 2d 83, 93 (1995). A defendant denying causation need not plead it to raise it. Leonardi, 168 Ill. 2d at 93. Rather, a plaintiff bears the never-shifting burden of proving that a defendant’s wrongful conduct is a proximate cause of injury. Id. at 93-94. The so-called defense merely recognizes a defendant’s right to offer evidence negating causation. Id. This allows a defendant to argue that plaintiff failed to meet its burden.

Far greater confusion results from the word “sole,” especially as seen in IPI 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.] (emphasis supplied).

The first paragraph, which has been Illinois law for over a century, is plain enough. Seith v. Com. Elec. Co., 241 Ill. 252, 259 (1909). It expansively recognizes that more than one defendant, or even more than one nonparty, may be a proximate cause of injury.

The optional second paragraph is the real problem. It is as restrictive as the first paragraph is expansive. It has been read to mean that a defendant may only blame one person—a nonparty—as the “sole” proximate cause. The Notes on Use state:

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.

* * *

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 (emphasis supplied).

Though a defendant might argue that multiple parties and nonparties are the 100% proximate cause, IPI 12.04 does not say so. This omission can negate even the best defense argument as to non-liability.

As originally drafted, IPI 12.04 stated:

More than one person may be to blame for causing injury. If you believe that the defendant was negligent and that its negligence caused injuries to the plaintiff, it is not a defense that some third person may also have been to blame. Quoted in Vandaveer v. Norfolk & W. R.R., 78 Ill. App. 2d 186, 205 (5th Dist. 1966).

The instruction was overhauled in 1965 to read:

More than one person may be to blame for causing an injury. If you decide that a defendant was negligent and that his 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.]

Quoted in Miyatovich v. Chi. Trans. Auth., 112 Ill. App. 2d 437, 443 (1st Dist. 1969).

The overhaul made three changes. First, it required proof of “proximate” causation. Second, it included language in the paragraph to prevent a blameworthy defendant from escaping liability when a nonparty is partially to blame. Third, it added the optional second paragraph on sole proximate cause. That paragraph balanced the first paragraph by allowing a defendant to avoid liability when a nonparty is fully to blame. For example, the Miyatovich defendant fully blamed plaintiff’s nonparty husband, who drove the car in which plaintiff was injured in a collision.

The problem with the second paragraph is not that it is incorrect. While it is a correct statement of law, it fails to account for the many cases in which 100% fault might be shared by multiple parties and nonparties, including plaintiff—but not by a particular defendant. Referring only to “sole” proximate cause leaves the instruction incomplete.

The Supreme Court recognizes that a defendant should be allowed to point at more than one other person as proximately causing injury. In Nolan v. Weil-McLain, 233 Ill. 2d 416 (2009), plaintiff sued twelve asbestos defendants, eleven of whom settled or were dismissed prior to trial. The remaining defendant sought to identify them as the collective proximate cause of the accident. The Supreme Court agreed. The trial court wrongly barred defendant from “presenting evidence of decedent’s other asbestos exposures in support of its sole proximate cause defense.” Nolan, 233 Ill. 2d at 445.

In Ready v. United/Goedecke Services, Inc., 238 Ill. 2d 582 (2010), the decedent was killed when a scaffolding truss fell on him. Defendant contended that the conduct of two settling defendants was the sole proximate cause of the death. The Court ruled that the evidence “tended to show that the settling defendants’ conduct was the sole proximate cause” and so justified an IPI 12.04 instruction. Ready, 238 Ill. 2d at 592 (emphasis supplied).

Based on Nolan and Ready, a divided Appellate Court ruled that the conduct of multiple persons may be lumped together as the sole proximate cause. Douglas v. Arlington Park Racecourse LLC, 2018 IL App (1st) 162962. Plaintiff jockey was paralyzed when he fell from his mount during a race. Plaintiff blamed Arlington for poor maintenance of the synthetic racing surface. Arlington denied negligence and argued that the sole proximate cause was either the surface manufacturer or another jockey. The trial court gave the IPI 12.04 instruction. Following a defense verdict the court granted plaintiff’s motion for new trial, reasoning that evidence of two proximate causes precluded a sole proximate cause.

In a split decision, the First District ordered the verdict reinstated. The panel’s most significant disagreement turned on how to interpret the word “sole.” To the majority, sole proximate cause does not depend on the number of tortfeasors:

The defendant may wish to argue that (1) Non-Party A’s negligence was the sole proximate cause of the plaintiff’s injuries; (2) Non-Party B’s negligence was the sole proximate cause; or (3) the negligence of Non-Party A and Non-Party B, collectively, was the sole proximate cause. Those three arguments are simply three different ways of saying the same thing: that the plaintiff failed to prove that the party-defendant’s negligence was a proximate cause of the plaintiff’s injuries— not even 1% of the cause—because 100% of the cause of the plaintiff’s injuries was the conduct of Non-Party A and/or Non-Party B. The critical point here is that the defendant’s level of contribution to the plaintiff’s injuries is 0%; whether the 100% of the blame falls on Non-Party A, Non-Party B, or both, is of no import. The sole proximate cause theory should be just as viable with two or more nonparty actors as it is with a single nonparty. Douglas, 2018 IL App (1st) 162962, ¶ 37.

The majority also reasoned that from a linguistics perspective, “sole” does not necessarily imply just the singular. Id. ¶ 57. It can also imply an individual group, e.g., a group of sole survivors of an accident. Id. ¶¶ 57-58.

In the dissent’s view, because Arlington offered evidence of two proximate causes unrelated to each other, there could be no “sole” proximate cause. Id. ¶ 125. Focusing on the word “sole,” the dissent found “absurd” the majority’s dividing a single “group” into individuals. Id. ¶ 127. It contended that the language of the instruction and its Notes on Use contemplate that “sole proximate cause” must mean one—and only one—cause. Id. ¶¶ 128-29. If a defendant wants to argue that others are 100% at fault, nothing prevents it. Id. ¶ 134.

Adding further confusion is Doe v. Alexian Bros. Behav. Health Hosp., 2019 IL App (1st) 180955, ¶ 33, which disagreed with the Douglas majority’s explanation of “sole proximate cause.” Besides following the Douglas dissent, the term can be, and was, confusing to the jury. Doe, 2019 IL App (1st) 180955, ¶ 33. A term is ambiguous when it can be understood by reasonably well-informed people in different ways. Carmichael v. Labor. & Ret. Bd. Emps. Annuity Ben. Fund of Chi., 2018 IL 122793, ¶ 36. Absent a definitive Supreme Court ruling, the interpretive differences in “sole” make it the wrong term for IPI 12.04. A judicially created doctrine should be free of ambiguities that can be eliminated by better choices of words.

It is the wrong term for a broader reason: “sole” fails to convey a defendant’s full position on proximate cause. Among multi-party comparative fault cases, those where one party or nonparty is the only proximate cause of injury are probably the exceptions. Causal fault is more often allocated among a number of persons. A defendant who has denied liability does not really care whether all fault can be allocated to one person as the “sole” proximate cause. The defendant cares that 100% fault can be allocated to everyone other than itself. And though it might try to spread causal fault among other parties and nonparties, IPI 12.04 is silent about that subject. It only mentions “sole” proximate cause, which some courts treat as involving only one person.

Plaintiffs are not burdened with the same limitation. No plaintiff needs to prove that one person is the sole proximate cause of injury. A plaintiff may blame as many persons as the evidence allows. IPI 12.04 says so: “More than one person may be to blame for causing an injury.” The current IPI 12.04 is imbalanced because a plaintiff has an easier time proving a defendant’s liability than the defendant has in showing its non-liability. Defendants should be freed from the limitation that the name “sole proximate cause” imposes.

Everyone agrees that a defendant is not liable whether one other person alone is 100% at fault or four others are a combined 100% at fault. The focus of IPI 12.04’s second paragraph should not be on “sole.” It should be on 100%, a term every juror can understand. Ultimately, that is what juries do every day: allocate 100% fault. See IPI B.45.03.A; IPI 600.14 (verdict forms). Juries are even allowed to allocate fault to nonparties when a plaintiff’s contributory fault is at issue. Id. The goal is to find where the 100% fault lies, whether among all parties or nonparties, or just one of them.

Because the scope of proximate is much broader than “sole” proximate cause, IPI 12.04 needs another overhaul. Here is a proposal:

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/her [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that one or more persons [, even if not a party,] to the suit may also have been to blame.

[However, if you decide that the injury to the plaintiff was 100% proximately caused by the conduct of one or more persons [, even if not a party to the suit,] other than [the] [a] defendant, then your verdict should be for [the] [that] defendant.]

[For purposes of the instructions, the word “person” includes a business organization of any type (for example, a corporation, partnership, proprietorship, etc.).]

The first paragraph remains largely unchanged. It still allows plaintiffs to argue that everyone sued is liable, regardless of their shares of fault. It also allows plaintiffs to counter a blameworthy defendant’s suggestion that another person’s fault excuses the defendant from liability.

The optional second paragraph undergoes a more significant change. It eliminates reference to “sole” proximate cause in favor of “100%” proximate cause. A defendant may still argue that one party, or one nonparty (the traditional “empty chair”), is the 100% proximate cause. In that sense, it retains the notion that sole proximate cause is limited to only one tortfeasor. It also recognizes the law that a defendant is not liable if the causal fault of plaintiff, the other defendants, and any nonparties combines to equal 100%. This is what a good instruction should do: inform a jury of the law. A jury should know that it is unnecessary to identify a “sole” proximate cause to find a defendant not liable.

There is a third proposed paragraph, this one also optional. Because IPI 12.04 currently uses the word “person,” the paragraph tells jurors that the word includes business organizations. Whether it is included in IPI 12.04 or moved to the IPI 1.01 cautionary instruction, jurors need to understand the connection between persons and organizations.

Besides these modifications, the Notes on Use need major revision. Under the current notes, the instruction may not be used to point to any party in the case or to more than one nonparty. As Nolan, Ready, and Douglas show, however, the law is very different. A revised 12.04 should explain the expansive scope of proximate cause.

Some names likely will not change; the Babylonians will probably never get credit for their theorem. But the law can do better and should. The focus of IPI 12.04 should be on “100% proximate cause,” not sole proximate cause.

About the Authors

Melinda S. Kollross is an AV-rated Preeminent shareholder and Chair of Clausen Miller’s Appellate Practice Group, handling trial monitoring, post-trial and appellate litigation for savvy clients nationwide. Licensed in Illinois and New York, she has litigated more than 200 appeals in state and federal reviewing courts, including participation in three appeals before the United States Supreme Court. Her practice includes commercial litigation, first-party property, liability insurance coverage and liability defense. Ms. Kollross is a proud member of the Federation of Defense and Corporate Counsel (FDCC), the Defense Research Institute (DRI), the Illinois Defense Counsel (IDC), and the Appellate Lawyers Association.

Paul V. Esposito is a partner at Clausen Miller P.C., where he is a member of the firm’s appellate practice group. He has brief and argued cases in the Supreme Court of the United States, several federal courts of appeals, all Illinois reviewing courts, and numerous reviewing courts throughout the country. Mr. Esposito often works directly with defense counsel at trials nationwide.