dissenting:
Whatever is said about the instruction proposed by \the plaintiffs, it cannot be doubted that the jury was confused by the instructions it did receive. The record showed that John Clark Berry was drinking at both taverns in the hours preceding the accident, and that he was intoxicated at the time of his death. The jury found that he was intoxicated, but somehow concluded that neither tavern “caused” the intoxication. The majority candidly admits that these findings are “difficult to reconcile” (115 Ill. 2d at 464), but nonetheless steadfastly refuses to come to grips with the contradiction. Since there was no evidence that Berry had been drinking elsewhere, one or both of the taverns must have “caused” his intoxication, no matter how causation is defined.
This is an unusual case because the jury’s confusion over the causation issue was manifested not just by the contradictory answers to the special interrogatories, but also by its own inquiry of the trial judge. The jury wanted to know whether liability was proved only if “one or both establishments is totally responsible for Berry’s intoxication [,] or [if] one or both contributed to Berry’s intoxication.” The question is, in itself, illogical because both taverns could not be “totally responsible” and thus demonstrates the jury’s confusion. The question also makes clear that the jury had stalled on the key question of what is meant by “causes the intoxication.”
The majority takes solace in the fact that after the jurors were told that they had all the necessary instructions, someone said to the bailiff, “Okay. That answers our question.” But this response sheds no light on the matter. If all the members of the jury had thought they had sufficient information, they would not have posed the question in the first place. Taken together with the finding that neither tavern caused the intoxication, the statement reported by the bailiff leads me to believe that, if anything, at least one juror hit on the wrong answer: that liability would only attach to a tavern “totally responsible” for the intoxication.
My colleagues believe that the term “causes” is “one of common understanding” (115 Ill. 2d at 463) and “is not a technical legal term requiring definition” (115 Ill. 2d at 462). This comes as a surprise to me, as I think it will to virtually every other lawyer or law student who has struggled with the concept of causation. The mere fact that a word is used in common speech does not make its use in a court of law obvious; for example, the fact that laymen may use the word “murder” in common parlance would not justify a judge’s refusal to explain its legal contours to a jury sitting in a murder trial.
Causation is a difficult legal concept to pin down. The jury was permitted here, though, to roam at will, without meaningful direction, and apparently to conclude that only a dramshop “totally responsible” for the intoxication could be held liable. Many who later wreak havoc on the highways probably drink at more than one establishment, perhaps drinking enough to get drunk at each. The statute would mean little if it only applied when the intoxicated person had the discretion to visit but one tavern.
In fact, the only logical interpretation of the term “causes the intoxication” is that offered by the plaintiff: a particular sale of alcohol must be a “material and substantial factor” in producing the intoxication. The “material and substantial factor” test does not, as the majority apparently thinks, undercut the legislative purpose of protecting those who furnish only minimal amounts of liquor to the intoxicated person. To the contrary, that definition of “causes” makes crystal clear that a de minimis amount could never cause the intoxication.
Perhaps the majority is correct that the instruction offered by the plaintiff could have been more aptly phrased, but the failure to tender a perfect instruction does not justify the trial judge in refusing to fully instruct the jury on appropriate subjects. And, in any event, I confess my total inability to comprehend the majority’s criticism of that portion of the instruction containing the word “result” as well as the word “cause.” A “cause” is defined as “a person or thing that acts, happens or exists in such a way that some specific thing happens as a result.” (Emphasis added.) (Random House Dictionary of the English Language 214 (college ed. 1968); see also Black’s Law Dictionary 200 (5th ed. 1979) (“Something that precedes and brings about an effect or result”).) The court’s fear that the use of the verb “result” in the instruction could mislead the jury to impose liability even when the amount of alcohol provided was so small as to not “cause” the intoxication is therefore simply insupportable as a matter of the English language.
A jury could certainly conclude that neither of two taverns furnishing negligible amounts of alcohol caused a particular intoxication. I do not think the evidence adduced here permitted such an inference, and I believe a properly instructed jury would not have found that neither tavern caused Berry’s intoxication. Since the only evidence was that Berry drank in both taverns, and there was no evidence he drank anywhere else, logic compels the conclusion that one or both caused his intoxication.