finding that the trial court properly refused defendant’s request to instruct the jury on an affirmative defense, even though the evidence presented at trial suggested the appropriateness of the defense, where defendant failed to plead it
How later courts described this case
- finding that the trial court properly refused defendant’s request to instruct the jury on an affirmative defense, even though the evidence presented at trial suggested the appropriateness of the defense, where defendant failed to plead it
Written by the judges who cited it.
The opinion
JUSTICE McCORMICK, concurring in part and dissenting in part:
I respectfully concur in part and dissent in part.
I dissent only from the majority’s holding that the failure to include the second paragraph of IPI Civil 2d No. 12.04 could have confused the issue of sole proximate cause and that it was reversible error.
When a party seeks reversal of a trial court’s judgment due to errors in jury instructions, this court must consider all of the instructions as a whole, mindful that “[a] deficiency in one instruction may be cured by another.” (Friedman v. Park District (1986), 151 Ill. App. 3d 374, 389 , 502 N.E.2d 826, 837 .) We should not reverse the judgment unless the party challenging the instructions shows that the jury was misled to that party’s prejudice. Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App. 3d 155, 162-63 , 349 N.E.2d 578, 585 ; Webb v. Angell (1987), 155 Ill. App. 3d 848, 854 , 508 N.E.2d 508, 514 .
The trial court properly instructed the jury on the definition of proximate cause and gave IPI Civil 2d No. A21.02 (Supp. 1981) by which the court informed the jurors of plaintiff’s burden of proving that the negligence of defendant was a proximate cause of the injury to the plaintiff. The jury was instructed that if you find that plaintiff fails to prove this proposition, your verdict is for defendant, and if plaintiff proves this proposition, your verdict is for plaintiff. It’s elementary logic that if defendant’s conduct was negligent and was the proximate cause (in whole or in part) of the injury, the conduct of Diamond could not be the sole proximate cause. The jury found by its verdict that the negligence of defendant was a proximate cause of the injury. The verdict for plaintiff could not have been rendered.
If a perfect trial was conducted, the second paragraph of IPI Civil 2d No. 12.05 would have been given. Assume that the jury during its deliberations found that defendant’s negligence was a proximate cause of the injury. Would it be wrong, in view of this finding, if the jury concluded that it is unnecessary to address the issue of whether Diamond’s conduct was the sole proximate cause of the injury? If Diamond’s acts were the sole proximate cause of plaintiff’s injuries, that fact would preempt and exclude the possibility of defendant’s negligence being a proximate cause. A finding that one party’s conduct is a proximate cause cannot coexist with a finding that another person’s conduct is the sole proximate cause. The jury’s verdict in favor of plaintiff dismisses the possibility of Diamond’s conduct being the sole proximate cause of plaintiff’s injuries.
This court in Ruggiero v. Public Taxi Service, Inc. (1973), 16 Ill. App. 3d 754 , 306 N.E.2d 567 , found that the trial court improperly refused to include the second paragraph of IPI Civil 2d No. 12.04 in its jury instructions, but this court affirmed the trial court’s judgment, finding that the defendant did not show that the error misled the jury. This court stated:
“The jurors *** were properly instructed as to the definition of proximate cause. Defendants’ instruction No. 11, which was given, informed the jurors that plaintiffs had the burden of proving, inter alia, '*** that the negligence of the defendants was a proximate cause of the injuries to the plaintiffs.’ They were also instructed that, ‘If, on the other hand, 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, *** then your verdict should be for the defendants.’ Thus the jury was told that if they found [codefendant’s] conduct was not a proximate cause of plaintiffs’ injuries, they must rule for defendants. This, in essence, gives the jury the same information as the second paragraph would have given them.” Ruggiero, 16 Ill. App. 3d at 762-63 , 306 N.E.2d at 573 .
The instructions given in this case were essentially identical to the instructions given in Ruggiero on the issue of proximate cause. The defendant in this case, like the defendant in Ruggiero, has not shown that the jury was misled to defendant’s prejudice by the instructions considered as a whole, and therefore, the judgment of the trial court should be affirmed.