The Pulse July 2025 - Sole Proximate Cause Discussion
Withdrawn but not forgotten--were the sole proximate cause jury instructions ever really out of play? At Heyl Royster, we never thought they were, and now the First District Appellate Court of Illinois has confirmed our belief. In the Court’s recent opinion in Bonita Johnson et al. v. Advocate Health and Hospitals Corporation d/b/a Advocate Christ Medical Center et al., the Court had the opportunity to address withdrawn Illinois Pattern Jury Instructions Nos. 12.04 and 12.05 and their stated replacement, revised IPI 15.01. The Court ultimately found that “a defendant is entitled to an explicit instruction ‘that the conduct of a third person, or some other causative factor, is the sole proximate cause of plaintiff’s injuries’” and that IPI 15.01 does not provide sufficient instruction on the sole proximate cause defense. Bonita Johnson et al. v. Advocate Health and Hospitals Corporation d/b/a Advocate Christ Hospital and Medical Center et al., 2025 IL App (1st) 230087, ¶ 59.
This development is significant because, for the first time since IPI Nos. 12.04 and 12.05 were withdrawn by the Committee on Illinois Pattern Jury Instructions, an appellate court has found that those instructions were proper and should be given. In Johnson, the Court essentially opined that failure to give an explicit sole proximate cause instruction may be reversible error, and the defense does not need to rely on the revised IPI 15.01 to instruct the jury on sole proximate cause. The Court found the defendant has the right to rebut evidence regarding the proximate cause of the plaintiff’s injuries and has the right to establish that a third party or other causative factor is the sole proximate cause of the plaintiff’s injuries. Id. ¶ 58 (citing Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 101 (1995)).
IPI 12.04 reads “More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that their negligence was a proximate cause of injury to the plaintiff, it is not a defense that some 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.”
IPI 12.05 states, “If you decide that the defendant was negligent and that 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.”
In 2021, these instructions were replaced with Illinois Pattern Jury Instruction 15.01 as an attempt to “harmonize” the latter instructions.
The revised IPI 15.01 reads, “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.] [If you decide that the defendant was negligent and that their negligence was a proximate cause of injury to the plaintiff, it is not a defense that something or someone else may also have been a cause of the injury. However, if you decide that the defendant’s conduct was not a proximate cause of the plaintiff’s injury, then your verdict should be for the defendant.]”
Over the course of a three-week trial, the Plaintiff in Bonita Johnson argued that baby AJ, who was born with developmental disabilities, suffered from those disabilities as a result of hypoxic ischemic encephalopathy (“HIE”)-- brain damage resulting from lack of oxygen and low blood flow. The plaintiff believed that baby AJ suffered from HIE because he was partially asphyxiated for a prolonged period during the 45 minutes immediately preceding his delivery.
Defendant Advocate Christ Medical Center argued that baby AJ’s developmental disabilities were a result of fetal growth restriction (“FGR”). The FGR was flagged at his 33-week and 40-week ultrasounds and was noted again after he was born as occurring during his gestation. At the 40-week ultrasound, Plaintiff’s doctor determined Plaintiff should be induced. After slow labor progress, Plaintiff’s physician determined a Cesarean was necessary. While driving to the hospital, the Plaintiff’s physician instructed a resident to prepare the Plaintiff for the operation. When Plaintiff was moved to the operating room, baby AJ’s heart tracings worsened and eventually indicated bradycardia. An attempt to call an in-house obstetrician was unsuccessful, and when the Plaintiff’s physician arrived at the hospital (1:24 pm) and delivered baby AJ (1:28 pm), he was not moving or breathing on his own. He was intubated and placed in a cooling blanket to prevent brain injury or alleviate further brain injury. Approximately one day after birth, he began having seizures, and testing revealed liver, kidney, and muscle damage. Baby AJ was placed in the neonatal intensive care unit for six weeks.
During the trial, Plaintiff’s doctor testified that if she had been kept properly informed about baby AJ’s heart rate tracings by the residents and nurses, she would have ordered an expedited Cesarean as early as 10:30 am. She believed the heart rate tracings indicated baby AJ was distressed and was not receiving sufficient oxygen. At the close of trial, the parties tendered differing jury instructions regarding proximate cause. Plaintiff submitted IPI No. 15.01 to the jury while Defendant Advocate Christ Medical Center tendered a modified version of IPI No. 15.01, which relied on withdrawn IPI 12.04 and 12.05. The Court reasoned that since IPI Nos. 12.04 and 12.05 were withdrawn by the Committee on Illinois Pattern Jury Instructions, the Defendant’s modified version of IPI No. 15.01 should not be given to the jury.
Ultimately, the jury found for the plaintiff. On appeal, the Court found that it was an error not to provide Defendant Advocate Medical Center’s tendered non-pattern jury instruction on sole proximate cause, but the Court affirmed, finding that the failure to give the instruction did not result in serious prejudice to Defendant Advocate Christ Medical Center because it was clear from the record that the jury knew causation was the pivotal issue. As a result, the Court determined the jury was not misled. In other words, the Appellate Court found that the defense lawyer did such a good job explaining the court’s error that the failure to give the instruction amounted to a harmless error. Despite affirming the trial court, the First District made clear that the defense is entitled to a jury instruction concerning sole proximate cause and – if the evidence supports it - the failure to give one is a reversible error. Notably, the Court also suggested that where there is a dispute regarding jury instructions, a special interrogatory is required to assess potential jury confusion. Id. ¶ 69.
Since the Court held that IPI No. 15.01 does not provide sufficient instruction on the sole proximate cause defense, we are working now on presenting the issue to the Committee on Illinois Pattern Jury Instructions (Civil). Heyl Royster Shareholder Mike Denning is a member of that committee and will lead that effort. For now, when the evidence supports it, defendants should request an explicit instruction on sole proximate cause in accordance with Johnson.
