# Ballweg v. City of Springfield

> Illinois Supreme Court · October 17, 1986 · 114 Ill. 2d 107

URL: https://www.frixlaw.com/law-library/cases/9744105

## Case

- **Full name:** JOHN E. BALLWEG, Adm’r, Appellant, v. THE CITY OF SPRINGFIELD Et Al., Appellees (Philip Henrici, Appellant)
- **Court:** Illinois Supreme Court
- **Decided:** October 17, 1986
- **Citations:** 114 Ill. 2d 107; 102 Ill. Dec. 360; 499 N.E.2d 1373; 1986 Ill. LEXIS 327
- **Precedential status:** Published
- **Opinion:** Concurring in part by Moran
- **Judges:** Clark, Miller, Moran, Ryan
- **Cited by:** 214 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9744105

## How later opinions describe it (automated extraction)

- holding that evidence of prior occurrences may be admissible to establish the dangerousness of a product
- finding good faith settlement although settling defendant could have raised statute of limitations as an absolute affirmative defense
- stating that the "only pertinent questions" are the three listed above

## Opinion text

JUSTICE MORAN, concurring in part and dissenting in part:
I agree with the majority’s opinion as to most of the issues in this case. However, I cannot agree that it was proper to omit the second paragraph of Illinois Pattern Jury Instruction, Civil, No. 12.04 (2d ed. 1971) (IPI Civil No. 12.04).
The evidence was clear that the all-metal construction of the boat was one of the causes of decedent’s electrocution, i.e., decedent would not have been electrocuted but for the boat’s design. Therefore, the majority concludes, the second paragraph was properly omitted. However, the second paragraph of IPI Civil No. 12.04 is to be given only when there is evidence that the conduct of a third party was the sole proximate cause of the plaintiff’s injuries. Conduct which is not negligent cannot be a proximate cause of an injury even if it is a cause in the “but-for” sense. Although this court has never specifically addressed the issue, the appellate court has held that the second paragraph of IPI Civil No. 12.04 should be given whenever the evidence is such that the jury could find either (1) that the defendant’s negligent conduct was not a proximate cause of the plaintiff’s injuries, or (2) that the defendant’s conduct was not negligent at all. Schmidt v. Blackwell (1973), 15 Ill. App. 3d 190, 195-96 ; Storm v. Brown (1973), 15 Ill. App. 3d 29, 33 .
In this case defendant offered evidence which tended to show that the design of the boat, while dangerous in this situation, was not unreasonably dangerous given the standards of the industry, the possible alternative designs, and the probability that an accident such as the one here involved would occur. There was also substantial evidence that the conduct of Philip Henrici and the city of Springfield were proximate causes of decedent’s death. The jury could have found that defendant was not negligent and that either Henrici’s or the city of Springfield’s negligence, or both, constituted the sole proximate cause of the decedent’s electrocution. Therefore I agree with the appellate court that the second paragraph of IPI Civil No. 12.04 should have been given.
JUSTICE RYAN joins in this partial concurrence and partial dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9744105. Public record. Not legal advice.