specially concurring:
Plaintiff contends that the inherent contradiction and error contained in the instructions was in the use of the term “highest degree of care.” She contends that the failure to define the term misled the jury into concluding that defendant’s duty, in effect, was the same as in a typical negligence claim. The jury was instructed that defendant had a duty to use the highest degree of care and that a failure to fulfill this duty would be negligence. IPI Civil (1995) No. 100.01; Illinois Pattern Jury Instructions, Civil, No. 100.01 (2000) (hereinafter IPI Civil (2000)). The phrase “highest degree of care” was not defined. Plaintiff contends this is misleading, considering that negligence is usually understood to consist of a duty to exercise ordinary care.
The expression “highest degree of care” is a legal phrase that should be defined. The phrase is similar to other legal terms that have a specific legal meaning. See Assise v. Dawe’s Laboratories, Inc., 7 Ill. App. 3d 1045, 1049, 288 N.E.2d 641, 644 (1972) (a failure to define “wilful”); Shore v. Turman, 63 Ill. App. 2d 315, 322, 210 N.E.2d 232, 235 (1965) (a failure to define “intoxication”). The standard of care owed by a party in other situations is defined by pattern instructions, for example, “ordinary care” and “willful and wanton conduct.” IPI Civil (2000) Nos. 10.02 (“Ordinary Care — Adult—Definition”), 10.05 (“Ordinary Care — Minor—Definition”), 14.01 (“Willful and Wanton Conduct — Definition”). Illinois pattern instructions are also offered for terms essential for determining liability. See, e.g., IPI Civil (2000) No. 500.02 (“Definition — ‘Active Conduct’ — ‘Passive Conduct’ ”).
The necessity of defining legal terms was discussed in Rikard v. Dover Elevator Co., 126 Ill. App. 3d 438, 441, 467 N.E.2d 386, 388 (1984). In Rikard, reversible error was committed when the trial court failed to instruct the jury of the burden of proof to be applied. In language applicable to the case at hand, the court stated:
“It is elementary that the court instructs the jury in the law and the jury finds the facts and applies them to the law. Without basic instructions, each juror would be free to make his or her own interpretation of the law. Instructions provide jurors with a uniformity of approach in the application of the facts to the law.” Rikard, 126 Ill. App. 3d at 440, 467 N.E.2d at 387.
The court pointed out that a failure to properly instruct a jury left open the possibility that a juror applied an incorrect standard, possibly applying a burden from a prior case on which the juror had sat. Rikard, 126 Ill. App. 3d at 441, 467 N.E.2d at 388.
Likewise, the possibility of confusion in this case is increased by the use of the term “negligence.” The definition for “negligence” involves a failure to exercise ordinary care. IPI Civil (2000) No. 10.01 (“Negligence — Adult—Definition”). In typical negligence cases, the jury is instructed on the meaning of “ordinary care.” IPI Civil (2000) No. 10.02 (“Ordinary Care — Adult—Definition”). In those cases, providing the definition of “ordinary care” ensures that the jury will be informed of the applicable law and that the law will be applied uniformly. In contrast, the failure to define the legal phrase “highest degree of care” leaves open the possibility of confusion and disparate application.
Other jurisdictions have ruled that confusion about the meaning of “highest degree of care” in jury instructions constitutes reversible error. Wood v. Groh, 269 Kan. 420, 426, 7 P.3d 1163, 1169 (2000) (“There is a substantial difference between the two standards proposed: ordinary care or the highest degree of care. Other jurisdictions considering instructional errors concerning the standard of care to be applied by the jury in its evaluation of the defendant’s conduct have concluded that such error requires reversal”); Jones v. Port Authority of Allegheny County, 136 Pa. Commw. 445, 449, 583 A.2d 512, 514 (1990) (considering the instructions as a whole, the trial court failed to adequately explain the highest duty of care); Urban v. Minneapolis Street Ry. Co., 256 Minn. 1, 6, 96 N.W.2d 698, 701 (1959) (holding that the instructions were confusing because the jury was likely to evaluate the defendant’s actions under an “ordinary care” standard rather than the “highest degree of care” standard); see also Kindle v. Keene, 676 S.W.2d 82, 84 (Mo. App. 1984); Doyle v. Bi-State Development Agency, 628 S.W.2d 695, 697 (Mo. App. 1982) (explicitly rejecting an argument that the terms “negligence” and “highest degree of care” are synonymous and need not be separately defined).
Defendant contends that the instruction offered by plaintiff would lead a jury to believe that this is not a case involving negligence but, rather, one of strict liability. Plaintiff in this case tendered the following definition:
“When I use the term ‘highest degree of care,’ I mean extraordinary care, care more than the ordinary. It means the same as the greatest care or utmost care.”
Defendant contends that this is essentially strict liability, because the jury could conclude that if there were anything more that defendant could have done to prevent plaintiff’s injury, then defendant has breached a duty. I disagree. With plaintiffs proposed definition, which does not mention or imply strict liability, the jury would be fully informed of the existence of the degrees of care and which degree was appropriate in this case. The failure to so define in this case in which the jury is instructed to determine if a party is “negligent” invites confusion.
Plaintiff’s proposed instruction is consistent with the law. Defendant did not object to the proposed instruction to the trial court except on the ground that the definition was not an Illinois pattern instruction. See Balestri v. Terminal Freight Cooperative Ass’n, 76 Ill. 2d 451, 456, 394 N.E.2d 391, 393 (1979). The proposed instruction informed the trial court of the problem, accurately stated the law, and preserved the issue for appeal.
The need to properly instruct the jury is particularly acute in regard to the standard of care.
“A jury instruction which erroneously defines the standard of care to be applied in a personal injury case constitutes reversible error.” Fravel v. Morenz, 151 Ill. App. 3d 42, 45, 502 N.E.2d 480, 482 (1986), citing Cooper v. Cox, 31 Ill. App. 2d 51, 57, 175 N.E.2d 651, 654 (1961).
The inclusion of a proper instruction does not cure the error if the jury might still be misled regarding the definition of the standard of care. See Fravel, 151 Ill. App. 3d at 46, 502 N.E.2d at 482; Seibert v. Grana, 102 Ill. App. 2d 283, 285, 243 N.E.2d 538, 540 (1968); Milford Canning Co. v. Central Illinois Public Service Co., 39 Ill. App. 2d 258, 263, 188 N.E.2d 397, 400 (1963). The failure to define “highest degree of care” in a context where the jury is asked whether a party is negligent is inviting confusion.
The majority relies on our opinion in Lockett v. Board of Education for School District No. 189, 198 Ill. App. 3d 252, 555 N.E.2d 1055 (1990), for the proposition that it was not error to refuse a definitional instruction for the term “highest degree of care.” The Lockett instruction given, however, did not include the word “negligence,” while the given instruction in the instant case does. Lockett does not prohibit a definitional instruction, and one that accurately states the law, as does plaintiffs proposed instruction, does not run afoul of Lockett and is consistent with Balestri.
All this being said, I fully recognize that a circuit judge has a fairly wide range of judgment concerning jury instructions. The primary touchstone is care that the instructions accurately state the law, do not confuse or mislead, are not contradictory, and follow and build on the foundation of Illinois pattern instructions. In this case, the judge also had our opinion in Lockett. While for the reasons stated above I conclude that plaintiffs proposed instruction should have been given, I would be hard-pressed to say that Judge Speroni abused his discretion or committed an error of law in refusing the proposed instruction. Instead, we should consider overruling Lockett.
Accordingly, I specially concur.