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In the final installment of his in-depth analysis of case evaluation and trial strategy, Johnson & Bell Shareholder, Charles P. Rantis, focuses on the sole proximate cause argument in product liability cases – withdrawing all affirmative defenses and trying the case on damages alone. (Read Part One and Part Two)

Trial Strategy: Withdrawal of Affirmative Defenses and Focus on Sole Proximate Cause

Irrespective of whether the plaintiff’s conduct is characterized as assumption of the risk of injury or unforeseeable misuse or even contributory negligence, the defendant manufacturer may assert that the sole proximate cause of the plaintiff’s accident was the plaintiff’s own conduct or the plaintiff’s employer’s conduct.

a.       Plaintiff’s conduct or plaintiff’s employer’s conduct as sole proximate cause of accident

The conduct of the plaintiff is relevant to the issue of proximate cause in a product liability action based on either strict liability in tort or negligence.  In the case of Korando v. Uniroyal Goodrich Tire Co., 159 Ill.2d 335, 637 N.E.2d 1020 (1994), the plaintiff’s decedents were killed in a one-car motor vehicle accident after the tread and top belt of the right rear steel belted radial tire separated from the belt.  The decedents’ automobile skidded and went off the roadway, where it collided with a tree, vaulted into the air and landed upside down in a creek.  The plaintiff’s decedents died as a result of the injuries sustained in the accident.

The sole theory of recovery was based on strict liability in tort.  The defendant manufacturer denied the plaintiff’s allegations and raised three (3) affirmative defenses: misuse, assumption of the risk of injury and contributory negligence.  Subsequently, the defendant tire manufacturer withdrew its affirmative defenses.  As such, these defenses were not presented to the jury for consideration.  However, the tire manufacturer through expert testimony presented evidence of the driver’s speed, braking and steering as the proximate cause of the accident.  One of the issues on appeal was whether evidence of the decedent driver’s conduct was admissible in a strict liability in tort action without being pled as an affirmative defense.

The Korando court agreed with the defendant tire manufacturer that it was not required to plead lack of proximate cause as an affirmative defense.  Id. at 1025.  The Korando court held that evidence of the plaintiff’s conduct is directly relative to the issue of proximate cause.  The Korando court concluded:

In this case, the defendant’s evidence with respect to [the decedent driver’s] speed, braking and steering relates to the defendant’s denial that its tire’s alleged defect was the proximate cause of the injuries suffered by the plaintiff’s decedents.  We find that the conduct of a plaintiff or a third party is relevant to the issue of proximate cause in a strict products liability case.  Although a plaintiff’s negligence is generally not an issue in a strict products liability case, evidence relating to the plaintiff’s conduct is admissible to establish a defendant’s theory of defense that the product was not the proximate cause of the plaintiff’s injuries.

Id. at 1025.

The Korando court further stated that evidence of the decedent driver’s speed, braking, steering, and the substantial alteration of the tire were all relevant to the defendant’s denial of the plaintiff’s claim, and therefore properly admitted.  Id. at 1026.

b.       Third person’s conduct need not be negligent conduct

It is important to note that a defense based on sole proximate cause does not require that a defendant demonstrate that the third person’s conduct was negligent or fault-based.  See McDonnell v. McPartlin, 192 Ill.2d 505, 736 N.E.2d 1074 (2000).  The Illinois Supreme Court in McDonnell stated that the sole proximate cause jury instruction does not require that a defendant demonstrate that a third person’s conduct was negligent in addition to being the sole proximate cause of the plaintiff’s injuries.  Id. at 1083.  The sole proximate cause instruction, like any other jury instruction, requires that there be some evidence to justify the theory of the instruction.  McDonnell v. McPartlin, Id. at 1085.

c.       Sole proximate cause is an all-or-nothing proposition

The benefit of the sole proximate cause otherwise known as the “empty chair defense” is clear:  the jury is not provided with the opportunity to find in favor of the plaintiff but still reduce the verdict by some percentage of fault.  The affirmative defenses of the assumption of the risk of injury and unforeseeable misuse are not complete bars to the plaintiff’s recovery.  They are damage-reducing factors only.

The sole proximate cause defense is an all-or-nothing proposition.  The defendant manufacturer must successfully argue that another entity’s conduct was the sole cause of the plaintiff’s injuries.  For example, Johnson & Bell successfully defended a case for a fire equipment manufacturer based on the “empty chair defense.”  The plaintiff was severely injured in an accident in which the plaintiff’s conduct was neither a cause nor contributing factor to the accident.  Johnson & Bell argued at trial that the sole proximate cause of the accident was the plaintiff’s employer’s failure to follow warnings and instructions provided with the fire equipment.  Further, Johnson & Bell introduced post-accident remedial measures of the non-party employer to demonstrate that the manufacturer’s conduct was not a proximate cause of the plaintiff’s accident.  (See Zavala v. St. Regis Paper Company, 256 Ill.App.3d 736, 628 N.E.2d 405 (1st Dist. 1993); McLaughlin v. Rush-Presbyterian St. Luke’s Medical Center, 68 Ill.App.3d 546, 386 N.E.2d 334 (1st Dist. 1979).

In another case successfully defended by Johnson & Bell, a ladder manufacturer received a defense verdict in a case involving a severely brain injured plaintiff who was rendered an incomplete quadriplegic and confined to a long term nursing facility following the accident.  The plaintiff was determined to be incompetent to testify.  There was no evidence of any subjective knowledge on the part of the plaintiff such that he knew of a specific prior defect, understood the defect, and appreciated the risk of injury from that defect, but used the product any way.  No such evidence existed in the case.  Therefore, it would have been an ill-advised trial strategy to attempt to demonstrate subjective knowledge of the defect on the part of the plaintiff at trial.  The defense decided to withdraw its affirmative defenses of assumption of the risk of injury and unforeseeable misuse. The defendant ladder manufacturer argued that the sole proximate cause of the accident was the plaintiff’s conduct.  The jury rendered its verdict in favor of Johnson & Bell’s client, the defendant ladder manufacturer.

d.       IPI 12.04 and IPI 12.05

In Illinois, when proceeding on a theory of defense based on sole proximate cause, defense counsel will tender IPI jury instruction 12.04 (“Concurrent Negligence Other Than Defendant’s”).  The long-form version of IPI 12.04 applies when a plaintiff’s injury is caused by some person other than the defendant.  A similar version of this jury instruction is at IPI 12.05 (“Negligence – Intervention Of Outside Agency”) which applies where a plaintiff’s injury is caused by something other than the conduct of the defendant.  (See IPI Civil 3d nos. 12.04 and 12.05).

It is important to note that in order to be successful, the defendant manufacturer must contend that another person’s or entity’s conduct was the sole cause of the injuries.  It is insufficient to argue that another person’s or entity’s conduct combined with that of the defendants in order to cause the injury.  The sole proximate cause defense will fail under these circumstances.  Further, in all likelihood, the court would likely reject any tender by the defense of Illinois Pattern Jury Instruction 12.04.

Trial Strategy: Admitting Liability

In the previous sections of this article, the discussion focused on enhancing a defendant’s likelihood of success by focusing on liability factors.  On the other hand, there are cases with unfavorable facts and totally lacking in credible theories of defense.  Under those circumstances, contesting liability at trial would expose the defendant to a risk of an aggravated verdict.

Generally speaking, an aggravated verdict could be the result of one or more of the following factors:

1.       Lack of credible evidence and liability arguments.

2.       Conduct of the defendants.

3.       Conduct of counsel.

4.       Aggravating factors inherent in the facts of a given case.

 It is well established under Illinois law that once a defendant admits liability, evidence of facts relating to issues of liability is irrelevant.  In Bullard v. Barnes, 102 Ill.2d 505, 468 N.E.2d 1228 (1984), the Illinois Supreme Court held that once liability is admitted, facts of the accident are irrelevant.  If a defendant admits liability, then liability matters are not in controversy.  Moreover, a defendant’s liability is not relevant to the issue of damages when a defendant admits fault and proximate cause for the accident.  The facts and circumstances of an accident should not be presented to the jury when liability is admitted.  See Pleasance v. City of Chicago, 396 Ill.App.3d 821, 920 N.E.2d 572 (1st Dist. 2009).  Finally, the issue of when the defendant admits liability is irrelevant to the consideration before the jury which is what represents fair and reasonable compensation to be awarded to the plaintiff.  See Balzekas v. Looking Elk, 254 Ill.App.3d 527, 627 N.E.2d 84 (1st Dist. 1993).

The strategy of admitting liability focuses the case on what is fair and reasonable compensation.  Admitting liability will maximize the defendant’s credibility with the jury.  In addition, the defense should attempt to portray the plaintiff’s attorney or the plaintiff as greedy in an admitted liability case.

When the credibility of the defendant and defense counsel is enhanced by admitting liability (both negligence and proximate cause), there is a great likelihood that the jury will be receptive to the defense arguments.  In contrast, litigating liability issues with underlying bad facts with little to no likelihood of a defense verdict will likely cause the jurors to view all defense arguments with skepticism.  Liability factors tend to drive up damages and damages tend to drive up liability factors.  Unless the defendant admits liability under those circumstances, the recipe for disaster in the form of an aggravated verdict is all but certain.

The ultimate goal of admitting liability is to minimize or even eliminate the likelihood of an excess verdict and to bring the jury verdict within or below a certain range.

In an admitted liability trial, the plaintiff will attempt to exploit the sympathy factor with the jury.  In contrast, the defense must make every effort to minimize the sympathy factor by exercising common sense and humility in front of the jury.  The defense must present damages experts who will provide a realistic and more “down to earth” presentation of the damages compared to plaintiff’s stratospheric presentation of damages.


Case evaluation and assessment begins with the initial investigation and analysis of the case and continues through trial preparation.  Eliciting admissions from the plaintiff at his deposition is required to establish the evidence necessary to support the affirmative defenses of assumption of the risk and, to the extent applicable, unforeseeable misuse, in a product liability action based on strict liability in tort.  In cases where such evidence is lacking, withdrawal of affirmative defenses and proceeding on a sole proximate cause defense can be very successful.  On the other hand, without credible liability defenses, admitting liability – as difficult as it may be – will likely minimize or eliminate the likelihood of a verdict in the upper range of the gross jury verdict potential of a case.  Defense counsel should provide a realistic case evaluation and assessment of the exposure as well as the likelihood of success well in advance of trial.  The foundation for a successful trial strategy is often the result of careful, deliberate and insightful analysis of the case.

**The author would like to thank law student Katherine Lyons for her research and assistance in the preparation of this article.