The opinion
Mr. JUSTICE TRAPP, specially concurring:
I concur with the statement of Mr. Justice Mills that the judgment of the trial court should be affirmed, but disagree with his conclusion that the affirmance is required because the issue concerning the giving and refusing of the instructions was not sufficiently preserved in the post-trial motion under the provisions of section 68.1(2) of the Civil Practice Act. Ill. Rev. Stat. 1977, ch. 110, par. 68.1(2).
Mr. Justice MiUs has fairly set forth the opinions which have considered the form in which objections to instructions must be set forth in the post-trial motion, but concludes that the opinion in Sny Island prevails over the appeUate opinions in Tabor v. Tazewell Service and Crothers v. La Salle Institute, and quotes:
“The motion should specify the grounds tehy the refusal (or giving) of the instruction was error, and if the party fails to do so he waives the right of review.” (Emphasis supplied.) Sny Island Levee Drainage District v. Meyer (1963), 27 Ill. 2d 530, 537-38 , 190 N.E.2d 356, 361 .
Many of the cited appellate opinions indicate a practice in several districts of not requiring a post-trial motion to set forth reasons both “why” an instruction should or should not have been given.
In Sny Island ( 27 Ill. 2d 530, 537 , 190 N.E.2d 356 , 361), the objection stated in the post-trial motion was to “ ‘every instruction that was tendered by the objectors and refused by the court.’ ” It does not appear that the court had occasion to consider the question in the light of Supreme Court Rule 239 (58 Ill. 2d R. 239), effective as Supreme Court Rule 25 — 1 in 1961, which required that at the conference on instructions “The grounds of the objections shaU be particularly specified.” The historical notes found in Smith-Hurd Annotated Statutes directed to section 67(3) of the Civil Practice Act (Ill. Ann. Stat., ch. 110, par. 67(3), Historical and Practice Notes, at 301 (Smith-Hurd 1968)) disclosed that a provision for an instruction conference was provided in 1955, but that statute contained no requirement for specifying objections to the instructions. It cannot be ascertained from the opinion in Sny Island whether the rule requiring specific objections was operative at the time of the trial in Sny Island. In the light of the present rule requiring specific objections to be stated at an instruction conference, as a matter of record upon which the trial court rules, we are reluctant to invoke the rule in this case. It seems sufficient that at the time of the post-trial hearing the matters of objection would have been heard by the trial judge at a conference on instructions. For this reason we are reluctant to invoke a rule of waiver in this case.
Plaintiff’s theory of recovery was based upon the opinion in Dezort v. Village of Hinsdale (1976), 35 Ill. App. 3d 703 , 342 N.E.2d 468 . There a wrongful death action was brought by a personal representative for her decedent’s suicide while in the defendant’s jail. The trial court granted defendant’s motion for summary judgment because the decedent’s death was self-inflicted and he was voluntarily intoxicated at the time. The appellate court reversed, stating:
“The finding that decedent voluntarily became intoxicated and while in that condition engaged in an act which, objectively, could be characterized as voluntary and which proximately caused the death does not show contributory negligence as a matter of law. The relevant inquiry is whether the decedent in his condition was incapable of exercising due care for his own safety and whether the persons charged with responsibility toward him knew or reasonably should have known of his incapability. (See Barlow v. City of New Orleans 257 La. 91, 102 , 240 So. 2d 501 , 505 (1970).)” ( 35 Ill. App. 3d 703, 711 , 342 N.E.2d 468, 474 .)
It is noted that the Barlow opinion discloses that in Louisiana contributory negligence is an affirmative defense with the burden of proof upon the defendant.
In addition to Barlow, the Dezort opinion cited Thomas v. Williams (1962), 105 Ga. App. 321 , 124 S.E.2d 409 , and Kimbrell v. American Indemnity Co. (La. App. 1952), 56 So. 2d 880 . A footnote in Dezort mentioned that Kimbrell had applied a rule similar to that in Burke v. Chicago & Northwestern R.R. Co. (1902), 108 Ill. App. 565 ; Panor v. Northwestern Elevated R.R. Co. (1923), 228 Ill. App. 162 , and Chevalier v. Chicago Transit Authority (1949), 338 Ill. App. 119 , 86 N.E.2d 838 . Prior to the previously quoted passage from Dezort, that opinion had stated that contributory negligence was a bar to recovery for wrongful death and that court saw “no reason to deny its application” to that case. 35 Ill. App. 3d 703, 710 , 342 N.E.2d 468, 474 .
We deem the rule set forth in Dezort, to be substantially as follows, where (1) an individual is placed in the care of custody of an entity such as police (Dezort, Thomas, Kimbrell), a carrier (Burke, Panor, Chevalier), or, as here, a hospital, (2) that person is incapable of exercising care because of voluntary intoxication, and (3) those in charge of the entity know of the person’s incapacity, recovery may be obtained on behalf of the individual for injury proximately caused by the negligence of those having the care or custody even though the conduct of the injured person would otherwise have been contributory negligence. Under these circumstances, the usual rule that a voluntarily intoxicated person is responsible for his conduct while intoxicated (Illinois Pattern Jury Instructions, Civil, No. 12.01 (2d ed. 1971) (hereinafter cited as IPI Civil)) is not applicable. Knowledge by the alleged tortfeasor of the injured party’s incapacity is an element not only of the duty owed to the injured party, but also as to whether the injured party is excused from otherwise negligent conduct which occurred during the incapacity.
The refused instructions in issue which concerned the Dezort theory of recovery were as follows:
Plaintiff’s instruction 9 (IPI Civil No. 10.03, modified), which stated:
“It was the duty of plaintiff, before and at the time of the occurrence, to use ordinary care for his own safety unless he was so intoxicated or sedated that he was incapable of exercising due care.”
Plaintiff’s instruction 16 (IPI Civil No. 21.02, modified), which stated in part:
“The plaintiff has the burden of proving each of the following propositions:
First, that the plaintiff before and at the time of the occurrence was using ordinary care for his own safety or incapable of exercising ordinary care.”
As the rule set forth in Dezort which relieves a plaintiff from responsibility for conduct which would otherwise be contributory negligence is premised not only upon the alleged fact of plaintiffs incapacity but also upon knowledge on the part of the defendant of that incapacity, the refusal to give plaintiff’s instructions 9 and 16 was not error for it is apparent that they omit all reference to the requirements that defendant has knowledge of the plaintiffs incapacity.
It is contended that the trial court erred in giving certain instructions.
Defendant’s instruction 1 (IPI Civil No. 10.03) stated:
“It was the duty of the plaintiff, before and at the time of the occurrence, to use ordinary care for his own safety. That means it was the duty of the plaintiff to be free from contributory negligence.”
Defendant’s instruction 2 (IPI Civil No. 12.01) stated:
“Whether or not a person involved in the occurrence was intoxicated at the time is a proper question for the jury to consider together with other facts and circumstances in evidence in determining whether or not he was contributorily negligent. 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.”
Defendant’s instruction 4 (IPI Civil No. 21.02), stated, in part:
“First, that the plaintiff before and at the time of the occurrence was using ordinary care for his own safety.”
Plaintiff’s supplemental abstract shows that no objection was made to giving this instruction.
I would find no error in the giving of defendant’s instructions. It would appear necessary that the jury be instructed as to the law controlling where the evidence was less than that of plaintiff’s complete lack of capacity to protect himself and that such condition was known to defendant.
Contributory negligence remains an issue in the claim by plaintiff. Dezort v. Village of Hinsdale (1976), 35 Ill. App. 3d 703, 710 , 342 N.E.2d 468, 474 .
In Panor v. Northwestern Elevated R.R. Co. (1923), 228 Ill. App. 162 , the evidence disclosed that the decedent was helplessly intoxicated and that such fact was known to defendant. Decedent was removed from defendant’s car and left in a position where he was struck by a following train. The reviewing court examined the available law upon such facts at length and stated:
“In no case that we have been able to find has the Supreme Court had before it the direct question whether voluntary intoxication is in any way an excuse or condonation for lack of ordinary care. We are of the opinion that, as stated in the Burke case, supra, the allegations in voluntary intoxication cases, where they go so far as to set up complete helplessness, constitute an exception to the general rule.” (Emphasis supplied.) 228 Ill. App. 162, 177-78 .
The stated principle was comparably expressed in Chevalier v. Chicago Transit Authority (1949), 338 Ill. App. 119, 127 , 86 N.E.2d 838 , 842:
“While it is true that if a person is so intoxicated as to be in a helpless condition, of which condition defendant has knowledge, and he is so accepted as a passenger, then if an injury is received by such person as a proximate result of defendant’s negligence, the pre-existing condition of intoxication cannot be considered as an element demonstrating contributory negligence.”
In IPI Criminal Nos. 24.01 and 24.02, one finds forms of proper instructions stating the “exception” to the law concerning criminal responsibility arising by reason of such a degree of intoxication or mental incapacity that one is unable to act responsibly. Cf. IPI Civil No. 10.05; Porter v. County of Cook (1976), 42 Ill. App. 3d 287, 293 , 355 N.E.2d 561, 565 .
The record discloses no tender of an instruction by plaintiff which correctly states the law upon the alleged facts which might excuse the plaintiff from his duty to exercise ordinary care for his own safety.
Plaintiff also maintains that the court erred in giving IPI Civil No. 15.01 on proximate cause without, as requested by plaintiff, including in the instruction the statement that the proximate cause “need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.” The “Notes on Use” for the instruction indicate that the foregoing should be included in the instruction when there is evidence of concurring or contributing cause. Here, evidence of liability of others was very minimal at best, and no argument was made that anyone other than hospital personnel was a proximate cause of plaintiff’s injuries. Any failure to include the requested matter in the instruction was reversible error.
Plaintiff has the burden of submitting instructions which correctly state the law upon his theory of the case. There is no burden upon defendant to incorporate plaintiff’s theory of the case into its otherwise correct statement of the law.