VOL. 10 NO. 3. Issues with the Recent ISBA Pre-Judgment Interest Proposal. Edward K. Grassé Busse, Busse & Grassé, P.C.

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1 VOL. 10 NO. 3 A publication generated by the Illinois Association of Defense Trial Counsel Civil Practice and Procedure Committee Issues with the Recent ISBA Pre-Judgment Interest Proposal Edward K. Grassé Busse, Busse & Grassé, P.C. On December 13, 2008, the ISBA adopted a Pre-Judgment interest proposal that was incorporated into their legislative package. The IDC and several other organizations appeared before the ISBA Assembly and argued against the proposal in substance and in principal. Despite the many issues with the proposal that were pointed out to the assembly, the proposal passed the ISBA Assembly. In February, SB184 was introduced into the Illinois General Assembly. As of this writing, it appears that SB184 is not going to be taken any further; however, the bill could be reincarnated in a different form. The purpose of this article is to alert members to the many issues created by such a proposal. The full text of the ISBA proposal follows: Sec Prejudgment interest. (a) If a party seeks money damages in an action at law or in arbitration, prejudgment interest must be awarded from the date the party from whom money damages are sought is given written notice of the claim for money damages or the action or arbitration is filed, whichever is earlier, until the award or judgment is entered. Actions at law include counter claims, third party actions, and claims for contribution. The written notice of the claim for money damages must reference this Section and be tendered by (1) personal service by the sheriff or private process server; (2) certified mail, return receipt requested; or (3) any method in which delivery is documented and tracked by accepted business practices. The written notice may be tendered by the party seeking money damages or his or her attorney and may be tendered to the party from whom money damages are sought, that party s attorney, or that party s liability insurer. (b) The monthly prejudgment interest rate shall be calculated by the Comptroller and published on his or her website each month. The monthly prejudgment interest rate shall be calculated by adding 2% to the interest rate of the one-year Treasury constant maturity stated in the last H15 report of the Edward K. Grassé is a partner at the law firm of Busse, Busse & Grassé, P.C. He has practiced in the area of tort litigation for over 10 years and concentrates his practice in the defense of personal injury, construction, fire and explosion, and premises liability suits. Since his admission to the bar, his legal experience has focused primarily in the defense of automobile accident, premises liability, fire and arson, commercial trucking, Dram Shop, religious organizations, mechanics liens, and insurance coverage. He is presently the co-chair of the IDC Civil Practice Committee and is a former chair of the Civil Practice and Procedure Committee of the Chicago Bar Association. On the inside Beware if Ice: Natural v. Unnatural Accumulation Spoliation of Evidence Provocation Restored as Affirmative Defense to Dram Shop Act

2 civil practice & procedure Page 2 previous month, published by the Federal Reserve System. (c) The prejudgment interest rate to be applied to an award or judgment is the monthly prejudgment interest rate calculated and published by the comptroller in the month preceding the date that the award or judgment is entered. (d) Any defendant may avoid paying prejudgment interest by making a written offer of settlement to the plaintiff at any time after that defendant has filed an answer to a complaint, petition, or demand for arbitration but no later than 120 days after filing an answer. If the plaintiff does not accept that offer of settlement in writing within 30 days of his or her receipt of it, and the plaintiff s award or judgment against that defendant is less than or equal to that offer of settlement, no prejudgment interest may be awarded against that defendant. The parties may agree in writing to extend the 120- day period for defendant to make a written offer of settlement. (e) This Section does not apply to any of these parties, claims, or circumstances: (1) A unit of local government, as defined Section 1 of Article VII of the Constitution, a school district, a community college district, or any other governmental entity. (2) An action in small claims. (3) A claim for punitive damages. (4) If the action is governed by a more specific State statute, including but not limited to the Interest Act, or preemptive federal law. (f) This Section applies only to causes of action accruing on or after the effective date of this amendatory Act of the 196th General Assembly. On its face, this proposal is designed to provide additional compensation to plaintiffs, over and above that which any particular plaintiff may presently be entitled. There is no benefit to any other entity within the judicial system other than the plaintiff and the plaintiff s bar. There can be no benefit to the defense bar or to the court system from such a proposal. In the end, this proposal is designed to benefit plaintiffs and plaintiffs alone. One wonders why the ISBA is the proponent of such a drastically unfair and biased proposal. Some will argue that this proposal promotes early settlement. If the proposal s intent is to promote early settlement, then the proposal should actually do so. A biased, one sided proposal such as this cannot be said to promote settlement when it puts no onus on the plaintiff s bar to seek early settlement. In fact, this proposal is more likely to have the opposite effect. As written, a defendant has only 120 days after filing an answer in which to make an offer of settlement. If that offer is accepted or if the eventual award is less than or equal to that offer, then no pre-judgment interest can be awarded. Although it is possible to fully understand all issues in a case within the first 120 days, more often than not, a defendant is not and cannot be fully apprised of the issues and damages in that first 120 days. This puts defendants in the position of potentially paying pre-judgment interest on claims or damages for which they were entirely unaware. This would also encourage the plaintiff s bar to add elements of damage after the expiration of this 120 period in order to force pre-judgment interest. Imagine scenarios where offers of settlement are made based on the known damages, only to have those damages increase after the expiration of the 120 day period. A plaintiff decides to undergo additional treatment or have a surgery after a valid offer was made and rejected. A plaintiff loses his job and claims it to be as a result of the injury. There are many other scenarios were a defendant could make a good faith and valid offer and still be obligated to pay This publication was generated by the IDC Civil Practice & Procedure Committee Edward K. Grassé, Busse, Busse & Grassé, P.C. and Stephen Kaufman, HeplerBroom LLC, Co-Chairs Statements or expressions of opinions in this publication are those of the authors and not necessarily those of the Association or Editors.

3 civil practice & procedure Page 3 pre-judgment interest, through no fault of the defendant. It is unfathomable that the argument is made that this proposal would encourage early settlement. The only possible result of this proposal is to increase the costs of litigation to the defense bar and to increase damages to which plaintiffs may be entitled. Additionally, the proposal does not distinguish between monetary and non-monetary damages. Proponents of such pre-judgment interest proposals argue that a plaintiff is entitled to same because he has been deprived of the potential use of those damages. This argument is non-sensical when compared to this proposal. This argument only works if the pre-judgment interest only applied to monetary damages. Under this proposal, a plaintiff is entitled to prejudgment interest on all elements of damage, including pain and suffering, disability, disfigurement, etc. This additional recovery also fails to account for the fact that monetary damages are often compensated through other sources. A plaintiff that has health insurance, receives pay during time off work, or receives worker s compensation payments, has not lost the use of any money. This would lead to a further windfall for plaintiffs. Lastly, and most importantly, this proposal violates the Due Process Clause. Any defendant has the right to due process under the laws. Under this proposal, a defendant cannot protect itself from paying pre-judgment interest other than making an offer in the first 120 days. Failure to do so makes a defendant fully responsible for pre-judgment interest on all damages. This award of pre-judgment interest is uncontestable on any grounds other than making an offer in the first 120 days that is less than or equal to the eventual award. Without having some mechanism in which to challenge any such award of pre-judgment interest, this proposal is unconstitutional. Conclusion I urge all defense counsel to fully review this proposal, contact your legislator, and work diligently to oppose this proposal or any other proposal that mirrors this one. Please visit the IDC website for additional information on this proposal. Beware of Ice: Natural v. Unnatural Accumulation Nathan M. Henderson HeplerBroom, LLC The climate in Illinois between December and March provides those of us that practice in the area of slip and fall defense ample opportunities to analyze the liabilities of our clients. As snow and ice cover sidewalks and parking lots many clients are presented with the question of what safeguards should be taken to ensure the safety of those entering their premises. While the Illinois Legislature as well as its courts have made efforts to shield property owners who attempt to clear their land of snow and ice from liability, liability often depends upon whether an accumulation of snow and ice on which a Plaintiff has fallen is a natural or unnatural accumulation. Residential Property In 1979, the Illinois Legislature enacted the Illinois Snow and Ice Removal Act. The Act provides that it is the public policy of this State that owners and others residing in residential units be encouraged to clean the sidewalks abutting their residences of snow and ice. To encourage this, the Act shields any person from liability for damages due to Nathan M. Henderson is an associate in the Springfield office of HeplerBroom, LLC where he concentrates his practice on general litigation. He was admitted to the Illinois bar in 2003 after receiving his J.D. from Southern Illinois University. He is also admitted to practice in Missouri and the Central District of Illinois. Mr. Henderson is a member of the Illinois State Bar Association, the Sangamon County Bar Association and the Illinois Association of Defense Trial Counsel.

4 civil practice & procedure Page 4 his or her efforts in the removal of snow or ice from such residential sidewalks, except for acts or omissions determined to be willful or wanton. 745 ILCS 75/1 and 75/2. The immunity provided under the Act has been extended to driveways and public sidewalks that abut residential properties. Kurczak v. Cornwell, 359 Ill. App. 3d 1051, 835 N.E.2d 452 (2d Dist. 2005); and Flight v. Am. Cmty. Mgmt., 384 Ill. App. 3d 540, 893 N.E.2d 285 (1 st Dist. 2008). However, the immunity is lost by the landowner or management when an unnatural accumulation of snow or ice is allowed to exist on the property. (i.e. Durkin v. Lewitz, 3 Ill. App. 2d 481, 123 N.E.2d 151 (1 st Dist. 1954), where the Plaintiff tenant fell on an accumulation of ice caused by a defective roof gutter on the Defendant landlord s premises). The First District Illinois Appellate Court recently held that the Act s protection applies not only to the landowner and management, but also to a snow removal contractor hired by them to remove snow and ice from the parking lot and walkways of the condominium complex. Divis v. Woods Edge Homeowners Association et al., 385 Ill. App. 3d 636, 897 N.E.2d 375, (1 Dist. 2008). While snow removal contractors may be immune from liability for removal of snow, the courts have drawn a distinction between removal and plowing, which may give rise to liability if done negligently. McCarthy vs. Hidden Lake Village Condominium Association et al., 186 Ill. App. 3d 752, 542 N.E.2d 868 (1 st Dist. 1989). However, McCarthy did not rest on the proposition that all snow and ice had to be removed from a premises. Instead, the Court reasoned that liability was possible because the contractor had left a significant unnatural embankment of snow on a driveway which resulted in the Plaintiff s fall. McCarthy, 186 Ill. App. 3d 752 at 758. Non-Residential Property The Snow and Ice Removal Act does not provide the same immunity for owners of non-residential premises. Instead, Illinois courts have adopted the Natural Accumulation Rule. The Illinois Supreme Court created the Natural Accumulation Rule as a matter of tort common law (Graham v. City of Chicago, 346 Ill. 638 (Ill. 1931)), and has often reaffirmed that rule. Ziencina v. County of Cook, 188 Ill. 2d 1, 10 (Ill. 1999); Lansing v. County of McLean, 69 Ill. 2d 562 (Ill. 1978); Strappelli v. Chicago, 371 Ill. 72 (Ill. 1939). The Rule states that a property owner has no duty to remove a natural accumulation of snow and ice from his property. Nowak v. Coghill, 296 Ill. App. 3d 886, 695 N.E.2d 532 (2 nd Dist. 1998). A Plaintiff cannot recover for injuries sustained in a fall on ice, snow or water unless he or she establishes that the accumulation was not natural and was created directly or indirectly by the Defendant. Stypinski v. First Chicago Building Corp., 214 Ill. App. 3d 714, 574 N.E.2d 717 (1 st Dist. 1991). Thus, the question of liability for owners and managers of non-residential properties turns on whether or not the presence of snow and ice on the property is natural. Clearly, freshly fallen snow and ice is a natural accumulation for which Illinois courts have assigned no liability for non-removal. Courts though have had to consider how to define a natural accumulation when snow is not removed immediately after the snowfall has stopped. Typically, there is no duty to remove natural accumulations of snow and ice even after the expiration of a reasonable length of time. Foster v. Cyrus & Co., 2 Ill. App. 3d 274, 276 N.E.2d 38 (1 st Dist. 1971). Even when a property owner attempts to remove snow and ice, the leaving of a natural ice formation remaining on the premises does not itself constitute negligence. Watson v. J.C. Penney Co., 237 Ill. App. 3d 976, 605 N.E.2d 723 (4 th Dist. 1992); Sheffer v. Springfield Airport Authority, 261 Ill. App. 3d 151, 632 N.E.2d 1069 (4 th Dist. 1994); Bakeman v. Sears, Roebuck & Co., 16 Ill. App. 3d 1065, 307 N.E.2d 449 (2 nd Dist. 1974); Anderson v. Davis Development Corp., 99 Ill. App. 2d 55, 241 N.E.2d 222 (3 rd Dist. 1968). For example, mere traffic use, including pedestrian and vehicular, and fluctuating temperatures resulting in compacted snow and ice with an uneven surface of ruts and ridges is still a natural accumulation under this Rule. Strappelli v. City of Chicago, 371 Ill. 72; DeMario v. Sears Roebuck & Co., 6 Ill. App. 3d 46, 284 N.E.2d 330 (1 st Dist. 1972). However, questions of fact did exist regarding whether an unnatural condition existed when ruts were created by Defendant s employees walking on a sidewalk combined with thawing and refreezing caused by Defendant s application of chemicals to melt the snow. Endsley v. Harrisburg Medical Center, 209 Ill. App. 3d 908, 568 N.E.2d 470 (5 th Dist. 1991). In order to circumvent the Natural Accumulation Rule and recover for injuries resulting from a fall on a Defendant s premises, a Plaintiff has the burden of affirmatively showing that the origin of ice upon which he or she slipped was unnatural or aggravated by actions of the Defendant. Byrne v. Catholic Bishop of Chicago, 131 Ill. App. 2d 356, 266 N.E.2d 708 (1 st Dist. 1971); Bloom v. Bistro Restaurant Limited Partnership, 304 Ill. App. 3d 707, 710 N.E.2d 121 (1 st Dist. 1999). Often, natural accumulation becomes unnatural as a result of the construction and maintenance of the premises in question. When water from melting snow is allowed to puddle in uneven surfaces of a parking lot and refreeze, an unnatural accumulation arises. Fitzsimons v. National Tea Company, 29 Ill. App. 2d 306, 173 N.E.2d 534 (2 nd Dist. 1961). Further, when a landowner allows water runoff in an area over which the landowner knows people will walk, and

5 civil practice & procedure Page 5 the water freezes for a period of time sufficient to give the landowner notice of the dangerous condition, the resulting ice is an unnatural accumulation for which the landowner may be liable. Graham, 346 Ill. 638; Ordman v. Dacon Management Corp., 261 Ill.App.3d 275, 633 N.E.2d 1307 (3 rd Dist. 1994). Beyond the condition of the property, a landowner can be found negligent for improper plowing of snow by a contractor. Those situations generally arise when a person is injured when stepping on an unnatural pile of snow left on a parking lot by a plow company. Foster v. Cyrus, 2 Ill. App. 3d 274, 276 N.E.2d 38 (1 st Dist. 1971). Conclusion As is seen in the myriad of case law available on the subject, Illinois law attempts to shield landowners, both residential and commercial, from liability for good-faith efforts to clear snow and ice from their properties, while preventing liability for a failure to even attempt such action. The lessons to be learned all involve unnatural accumulations. To avoid liability for slip and falls on ice and snow, unnatural accumulations must be prevented. Short of the presence of an unnatural accumulation, liability should not attach in these cases. Spoliation of Evidence Michael J. Chessler HeplerBroom, LLC What should defense attorneys and insurance companies do to avoid a claim of spoliation of evidence? Illinois Supreme Court Authority The Illinois Supreme Court in Boyd v. Travelers Insurance Co. 166 Ill. 2d 188; 658 N.E.2d 267 (1995) found that negligent spoliation of evidence is not a separate tort, but such cause of action could be stated under existing negligence law. See Boyd, 166 Ill. 2d at In Boyd the plaintiff was using a propane heater, which allegedly caused an explosion. The defendant, who was the insurance company for the manufacturer, took possession of the heater to test it. The heater was lost while in control of the defendant. The plaintiff brought claims for both negligent and willful and wanton spoliation of evidence. The court declined the plaintiff s request to recognize intentional spoliation of evidence as a new tort. Id. at 201. The Boyd court set out the circumstances as to when there is a duty to preserve evidence. The general rule is that there is no duty to preserve evidence; however a duty to preserve evidence may arise through an agreement, a contact, a statute or another special circumstance. Moreover, a defendant may voluntarily assume a duty by affirmative conduct. In any of the foregoing instances, a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant s position should have foreseen that the evidence was material to a potential civil action. Id. at 195. Several years after Boyd, the Illinois Supreme Court decided Dardeen v. Kuehling 213 Ill. 2d 329; 821 N.E.2d 227 (2004). In that case, the plaintiff suffered injury by falling in a hole in the sidewalk in front of the defendant s house. The defendant asked her insurer if she could fix the sidewalk and the insurer told her she could. Fixing the sidewalk destroyed potential evidence in the case. However, the plaintiff had already inspected the sidewalk and had the opportunity to photograph it before the defendant repaired it, but did not. Michael J. Chessler is an associate in the Edwardsville office of the HeplerBroom, LLC law firm where he practices in the area of toxic tort litigation. Mr. Chessler graduated from The John Marshall Law School in Chicago in 1995 where he was awarded the Corpus Juris Secondum Award for Scholastic Excellence in Torts. Mr. Chessler graduated with a B.A. from The George Washington University in Washington D.C. in Prior to coming to work at HeplerBroom, Mr. Chessler practiced international trade and customs law in Washington D.C.

6 civil practice & procedure Page 6 The court in Dardeen held that insurance company was not under duty to preserve evidence. When we said in Boyd, that a duty to preserve evidence could arise by agreement or contract, we meant an agreement or contract between the parties to the spoliation claim. [Insured] and [insurer] had an insurance contract, to which [the plaintiff] was not a privy. Dardeen, 213 Ill. 2d at (citations omitted). The Dardeen court noted the plaintiff s opportunity to control and preserve evidence and failure to do so. See Id. at 338. The court also pointed out the public policy factor of encouraging public safety. Id. Fifth District Appellate Court Authority In 2007, the Illinois Appellate Court Fifth District decided Jones v. O Brien Tire and Battery Service Center Inc. 374 Ill. App. 3d 918; 871 N.E.2d 98 (5 th Dist. 2007). Jones sued the defendant Macios for damages caused when the wheels fell off the defendant s truck after being repaired at O Brien s. Macios insurer, Country Mutual, sent a letter to their insured telling him to preserve tires as evidence. After an accident report was issued, Macios had the wheels repaired at another repair shop, where evidence was discarded. After Jones case against Macios settled, Jones then sued O Brien. O Brien filed a third-party complaint against Country Mutual alleging negligent spoliation of evidence. The court found that O Brien met all criteria necessary to prevail on a claim of negligent spoliation. The Jones court found that the insurer had a duty to preserve because it controlled the evidence by exercising its authority to direct its insured to preserve evidence, and that the defendant voluntarily assumed a duty to exercise reasonable care and due diligence to preserve the evidence. Jones, 374 Ill. App. 3d at 928. The Jones court also found that a claim against O Brien was easy to foresee, that a reasonable claims adjuster would anticipate that the cause of accident would be an issue in that litigation, and that it was reasonably foreseeable that the wheels and tires would be critical evidence in future litigation. Id. at 928. The Jones court held that the insurance agent was negligent in failing to consider the possibility that the insured may not know to preserve evidence, and in not reminding the insured to maintain the evidence. The agent never followed-up on the letter to maintain the evidence to be sure the insured received it and understood it. The insurer was also negligent in failing to take adequate steps to instruct their insured how to preserve the evidence and failing to check to see that the insured was taking proper steps to preserve the evidence. Id. at The dissent in Jones declared the reasoning of the majority to be against logic. Id. at 938. The dissent claimed that the majority s distinction would turn public policy on its head. It defies common sense to say that by advising an insured not to preserve evidence, an insurance company can avoid liability [Dardeen], but by advising an insured to preserve evidence, an insurance company is assuming liability [Jones]. The public policy implication of the majority s holding would be to encourage insurance companies to advise their insureds not to preserve evidence. Id. at 939. The dissent also found the majority s holding that there was a duty to preserve for other potential litigants troublesome. To hold that its duty would continue for the benefit of any other potential litigants is unlimited in time and scope and, consequently, unworkable. I do not find any Illinois law or law of any other jurisdiction that imposes such a continuing, limitless duty. Id. The Illinois Supreme Court denied leave to appeal the Jones decision. Jones v. O Brien Tire and Battery Service Center Inc. 225 Ill. 2d 636; 875 N.E.2d 1113 (2007). Jones has been cited in one subsequent case so far, Stoner v. Walmart Stores, Inc U.S. Dist. LEXIS (C.D. Ill. Aug. 18, 2008). The Central District Court of Illinois cited Jones, Dardeen, and Boyd for the elements of a negligent spoliation claim in Illinois. The court did not discuss the merits of the Jones decision. One difference between Jones and Dardeen that may explain the apparent incongruous holdings is that in Dardeen, the court emphasized that the plaintiff had an opportunity to preserve the evidence. In Jones, the third party plaintiff was a not party to the litigation until after the evidence had been destroyed. Another factor is the public safety considerations expressed in Dardeen. After reading Dardeen and Jones, you may not want to say anything to your client regarding preservation of evidence. A more prudent course of action may be to quickly determine the key evidence in your case, send a letter to your client with detailed instructions regarding how to preserve that evidence, and follow-up making sure the client receives and understands the instructions. If possible, give adverse parties the opportunity to inspect evidence. If there is a third party materially affected by the evidence, you may have a duty to preserve for that third party. Jones shows the dangers of not following up on an evidence hold letter. Dardeen gives guidance as to when there should and should not be a duty to preserve evidence. Saying nothing or advising against preserving evidence can be risky, especially since there still can be sanctions under Rule 219(c). See Adams v. Bath and Body Works 358 Ill. App. 3d 387; 830 N.E.2d. 645 (1 st Dist. 2005). The key is to know your case and be diligent about the material evidence in it.

7 civil practice & procedure Page 7 Provocation Restored as Affirmative Defense to Dram Shop Act Kenneth M. Lubinski Busse, Busse & Grassé, P.C. On September 28, 2007, the Appellate Court rendered its decision in the case of Werner v. Nebal, No In that opinion, the Appellate Court specifically found that provocation is a valid affirmative defense to a Dram Shop Action in Illinois. Following the decision of the Appellate Court, in October of 2008, the Illinois Supreme Court Committee on Jury Instructions issued a revised introduction to the Dram Shop Act instructions. This revised introduction, however, suggests that there is still a question as to whether provocation is a valid affirmative defense to the Dram Shop Act. While the introduction cites to Werner, it also cites to a 5 th District Court decision which held that provocation was not a valid affirmative defense. Despite the wording of the revised introduction, it is clear that provocation is a valid affirmative defense. It has long been established in Illinois that provocation is an affirmative defense to a Dram Shop Action. Akin v. J.R. s Lounge, 158 Ill. App.3d 834, 837, 512 N.E.2d 130, 131, (1987). Under the affirmative defense of provocation, if the jury finds that the plaintiff provoked the conduct of the alleged intoxicated person, then the plaintiff cannot recover damages from the defendant. I.P.I (2000 Edition.) Prior versions of Illinois Pattern Jury Instruction actually contained the affirmative defense of provocation. For example, the 2000 Edition of I.P.I read as follows: If you find that [ ] [ ] plaintiff s names names of real parties in interest did [any of] the following things then [ ] [that person] [those persons] plaintiff s name cannot recover damages in this case [from ]. defendant keeper or owner [5.] [Provoked the conduct of which caused the injury. intoxicated person Nevertheless, the affirmative defense of provocation was removed from the most recent Illinois Pattern Jury Instructions. See I.P.I (2005 and 2007 Editions.) Instruction in the 2007 Edition purported to contain the Affirmative Defenses to the Dram Shop Act. That instruction states, [In this lawsuit][in Count ] the defendant claims the plaintiff should not recover because of plaintiff s conduct in causing s intoxication. (intoxicated person) To establish this defense the defendant must prove the plaintiff actively contributed to or procured the intoxication of. (intoxicated person) As can be seen, this instruction only contains the affirmative defense of complicity and fails to include the affirmative defense of provocation. In choosing to remove the affirmative defense of provocation from the recent editions of the Illinois Pattern Jury Instructions, the Committee appears to have misinterpreted the case law. The case of Nelson v. Araiza, 69 Ill. 2d 534, 372 N.E.2d 637 (1978), was cited in the comments to the 2007 I.P.I instruction to support the position that Kenneth M. Lubinski is an associate with the law firm of Busse, Busse & Grassé, P.C., in Chicago, where he specializes in the defense of civil litigation matters including construction litigation, dram shop litigation, premises liability, personal injury defense, and automobile accident defense. He is a graduate of Indiana University and of the Loyola University Chicago, School of Law.

8 Presorted Standard U.S. Postage PAID Permit No. 650 Springfield, IL P.O. Box 3144 Springfield, IL PROVOCATION continued from page 7 provocation is no longer an affirmative defense to a Dram Shop action. A careful reading of Nelson, however, shows that Nelson does not overrule the affirmative defense of provocation, but merely sets forth the definition of another affirmative defense to a Dram Shop action, complicity. In fact, cases since Nelson specifically upheld the affirmative defense of provocation. In Akin v. J.R. s Lounge, 158 Ill. App. 3d 834, 512 N.E.2d 130 (3 rd Dist. 1987), the court specifically held that the weight of authority, and the better reasoned view as well, is that provocation is an affirmative defense in a Dram Shop case. In making this ruling, the Akin Court cited to a number of cases in which the provocation affirmative defense was given. See Williams v. Franks, 11 Ill. App. 3d 937, 298 N.E.2d 401; Tresch v. Nielsen, 57 Ill. App. 2d 469, 207 N.E.2d 109; Bowman v. O Brien, 303 Ill. App. 630, 25 N.E.2d 544; Taylor v. Hughes, 17 Ill. App. 2d 138, 149 N.E.2d 393; and, Martin v. Blackburn, 312 Ill. App. 549, 38 N.E.2d 939. None of these cases have been overruled, therefore, they are still good law in Illinois. As noted above, after the Appellate Court s decision in Werner, the introduction to the Dram Shop instructions was revised to state that the Appellate Court held that provocation is a valid affirmative defense to the Dram Shop Act. The introduction was also revised to recognize the fact that Nelson did not address the issue of provocation. Nevertheless, in this modified introduction, the Committee still suggests that a court could find that provocation is not a valid affirmative defense to the Dram Shop Act. The introduction states, Galyean v. Duncan [...] held that provocation was not a defense to the Act. Galyean is a poor choice for the Committee to use to support its proposition that provocation may not be a valid defense. The Galyean court s holding that provocation is not a defense to a Dramshop Action in Illinois, is based entirely on the Nelson case. As noted above, the Committee itself, in the same introduction, states the Nelson court did not specifically address the issue of provocation. It is not clear how the Committee explains this legal paradox. Therefore, based on the case law, and on the Appellate Court s recent decision in Werner, it is evident the jury instruction for provocation was improperly removed from the Illinois Pattern Jury Instructions. The case cited by the Committee to suggest that a court could find that provocation is not a valid defense incorrectly interprets the case law on this issue. While the Committee has refused to restore the provocation instruction in the jury instructions for the Dram Shop Act, it has been restored by the Appellate Court, and is a valid affirmative defense is Illinois.