Nite Club Altercation – Counterclaims – Negligence

Jury Instructions-IL > Dram Shop & Negligence > Nite Club Altercation – Counterclaims – Negligence

Daniel Falcon v. Anthony Ciancio/Anthony Cancio v. Dan Falcon, Ray Flores & BIA, Inc dba Baccus 05 L 813

This was a 2008 trial involving claims and counterclaims of battery during an altercation at a near northside night club. A security guard (a former NFL player) suffered a broken jaw when attacked by a patron he was escorting out of the bar. He prevailed against the patron in the amount of $200,000, while the patron’s claims against the club owner and security guards failed. Instructions on intoxication and missing evidence were given.

IPI 1.01 Preliminary Cautionary Instructions

The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others. Each party, corporation or an individual, should receive your same fair consideration

It is your duty to resolve this case by determining the facts and following the law given in the instructions.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

IPI 3.01 Rulings and Remarks of the Court

Now that the evidence has concluded, I will further instruct you as to the law and your duties. I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

IPI 3.02 Witness Who Has Been Interviewed by Attorney

An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not reflect adversely on the truth of the testimony of the witness.

IPI 2.01 – Evidence Deposition

The testimony of Dr. Bollinger and Dr. Martino was presented by the reading of the doctor’s testimony. You should give this testimony the same consideration you would give it had the witness personally appeared in court.

IPI 3.04 Circumstantial Evidence

A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 3.08 – Opinion Testimony

You have heard a witness give opinions about matters requiring knowledge and skill. You should judge this testimony in the same way you judge the testimony from any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’ qualifications, and all of the other evidence in the case

5.01 Failure to Produce Evidence or a Witness/Modifed

If a party to this case has failed to offer evidence of a report or reports within its power to produce, you may infer that the evidence would be adverse to that party if you believe each of the following elements:

1. The report or reports were under the control of the party and could have been produced by the exercise of reasonable diligence.

2. The report or reports were not equally available to an adverse party.

3. A reasonably prudent person under the same or similar circumstances would have offered the evidence if he believed it to be favorable to him.

4. No reasonable excuse for the failure has been shown.

IPI 10.01 Negligence—Adult—Definition

When I use the word “negligence” in these instructions, I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.

IPI 10.02 Ordinary Care—Adult—Definition

When I use the words “ordinary care,” I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.

Combined IPI 10.04 Duty to Use Ordinary Care—Adult—Defendant

IPI B10.03—Contributory Negligence

As to the Complaint of Daniel Falcon against Anthony Ciancio,

The Plaintiff is: Daniel Falcon

The Defendant is: Anthony Ciancio

As to this Complaint, it was the duty of the defendant, Anthony Ciancio, before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff, Daniel Falcon. That means it was the duty of the defendant, Anthony Ciancio, to be free from negligence.

Also, it was the duty of the plaintiff, Daniel Falcon, before and at the time of the occurrence, to use ordinary care for his own safety. A plaintiff is contributorily negligent if (1) he failed to use ordinary care for his own safety and (2) such failure to use such ordinary care is a proximate cause of the alleged injuries.

The plaintiff’s contributory negligence, if any, which is 50% or less of the total proximate cause of the injury for which recovery is sought, does not bar recovery. However, the total amount of damages to which the plaintiff would otherwise be entitled is reduced in proportion to the amount of her negligence. This is known as comparative negligence.

If the plaintiff’s contributory negligence is more than 50% of the total proximate cause of the injury or damage for which recovery is sought, the defendant shall be found not liable.

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As to the Counterclaim of Anthony Ciancio against Daniel Falcon, Raymond Flores & BIA, Inc d/b/a Bacchus,

The Counter-Plaintiff is: Anthony Ciancio

The Counter-Defendants are: Daniel Falcon, Raymond Flores & BIA, Inc d/b/a Bacchus

As to this Counterclaim, it was the duty of the Counter-Defendants, Daniel Falcon, Raymond Flores & BIA, Inc d/b/a Bacchus, before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff, Anthony Ciancio. That means it was the duty of the defendants, Daniel Falcon, Raymond Flores & BIA, Inc d/b/a Bacchus, to be free from negligence.

Also, it was the duty of the Counter-Plaintiff, Anthony Ciancio, before and at the time of the occurrence, to use ordinary care for his own safety. A plaintiff is contributorily negligent if (1) he failed to use ordinary care for his own safety and (2) such failure to use such ordinary care is a proximate cause of the alleged injuries.

If the plaintiff’s contributory negligence is more than 50% of the total proximate cause of the injury or damage for which recovery is sought, the defendant shall be found not liable.

12.01 Intoxication as Negligence

Whether or not a person involved in the occurrence was intoxicated at the time is a proper question for the jury to consider together with other facts and circumstances in evidence in determining whether or not he was negligent or contributorily negligent. Intoxication is no excuse for failure to act as a reasonably careful person would act. An intoxicated person is held to the same standard of care as a sober person.

IPI 15.01 Proximate Cause

When I use the expression “proximate cause,” I mean any cause which, in natural or probable sequence, produced the injuries or damages complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injuries or damages.

150.15 Dram Shop Act—”Intoxicated” Defined

A person is “intoxicated” when as a result of drinking alcoholic liquor there is an impairment of his or her mental or physical faculties so as to diminish his or her ability to think and act with ordinary care.

IPI 20.02 (a) Issues Made by the Pleadings—Negligence—One or More Defendants—

The plaintiff, Daniel Falcon, claims that he was injured and sustained damage and that the defendant, Anthony Ciancio, was guilty of negligent acts or omission in one or more of the following respects:

Improperly pushed the plaintiff;

Improperly grabbed the plaintiff;

Improperly struck the plaintiff; or

Improperly physically harmed the plaintiff.

The plaintiff, Daniel Falcon, further claims that one or more of the foregoing was a proximate cause of his injuries.

The defendant, Anthony Ciancio, denies that he did any of the things claimed by the plaintiff, denies that he was negligent in doing any of the things claimed by the plaintiff, and denies that any claimed act or omission on the defendant’s part was a proximate cause of the plaintiff’s claimed injuries. The defendant further denies that the plaintiff sustained injuries to the extent claimed.

The defendant, Anthony Ciancio, claims that the plaintiff, Daniel Falcon, was contributorily negligent in one or more of the following respects:

Improperly applied force upon Anthony Ciancio allowing a dangerous condition to exist; or

Improperly grabbed or slammed Anthony Ciancio onto the ground.

The defendant further claims that one or more of the foregoing was a proximate cause of the plaintiff’s own injuries.

The plaintiff, Daniel Falcon, denies that he did any of the things claimed by the defendant, denies that he was negligent in doing any of the things claimed by defendant, and denies that any claimed act or omission on his part was a proximate cause of his claimed injuries.

IPI 20.02 (b) Issues Made by the Pleadings—Negligence—One or More Defendants— Counterclaim/Modified

Anthony Ciancio as a Counter-Plaintiff claims that he was injured and sustained damages and that Counter-Defendants, Daniel Falcon, Raymond Flores & BIA, Inc., d/b/a Bacchus, were guilty of negligent acts or omission in one or more of the following respects:

As to Falcon and Flores:

Improperly applied force upon Anthony Ciancio allowing a dangerous condition to exist;

Improperly grabbed or slammed Anthony Ciancio onto the ground.

As to BIA, Inc. d/b/a Bacchus,

Failed to properly supervise and keep a proper lookout for patrons and provide them with safe premises; or

Improperly allowed its employees to grab or slam Anthony Ciancio onto the ground.

The Counter-Plaintiff, Anthony Ciancio, further claims that one or more of the foregoing was a proximate cause of his injuries.

The Counter-Defendants, Daniel Falcon, Raymond Flores & BIA, Inc. d/b/a Bacchus, deny that they did any of the things claimed in the Counter-Complaint claim, deny that they were negligent in doing any of the things claimed by the Counter-Plaintiff, and deny doing any claimed act or omission on their part was a proximately cause of the Counter Plaintiff-Anthony Ciancio’s claimed injuries. The Counter-Defendants further deny that the Counter-Plaintiff sustained injuries to the extent claimed.

The Counter-Defendants, Daniel Falcon, Raymond Flores & BIA, Inc. d/b/a Bacchus, claim that the Counter-Plaintiff, Anthony Ciancio, was contributorily negligent in one or more of the following respects:

Failed to leave the premises peacefully when he was asked to do so;

Became intoxicated and acted in a belligerent and abusive manner; or

Struck Bacchus employees Flores and Falcon.

The Counter-Defendants further claim that one or more of the foregoing was a proximate cause of the Counter-Plaintiff’s own injuries.

The Counter-Plaintiff, Anthony Ciancio, denies that he did any of the things claimed by Counter-Defendants, denies that he was negligent in doing any of the things claimed by Counter-Defendants, and denies that any claimed act or omission on his part was a proximate cause of his claimed injuries.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which he has the burden of proof is more probably true than not true.

B21.03 (a) Burden of Proof on the Issues/Modified

As to the claim of Daniel Falcon against Anthony Ciancio, the plaintiff, Daniel Falcon, has the burden of proving each of the following propositions:

First, that the defendant, Anthony Ciancio, acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;

Second, that the plaintiff, Daniel Falcon, was injured;

Third, that the negligence of the defendant was a proximate cause of the injury to the plaintiff, Daniel Falcon.

If you find from your consideration of all the evidence, that any one of the propositions the plaintiff Daniel Falcon is required to prove has not been proved, then your verdict should be for Anthony Ciancio.

If, on the other hand, you find from your consideration of all the evidence that each of the propositions required of the plaintiff, Daniel Falcon, has been proved, then you must consider the defendant’s claim that the Daniel Falcon was contributorily negligent.

As to that claim, defendant has the burden of proving each of the following propositions:

First, that the plaintiff acted or failed to act in one of the ways claimed by the defendant as stated to you in these instructions and that in so acting, or failing to act, the plaintiff was negligent;

Second, that the plaintiff’s negligence was a proximate cause of his injury.

If you find from your consideration of all the evidence that the plaintiff, Daniel Falcon, has proved all the propositions required of the plaintiff, and that the defendant, Anthony Ciancio, has proved both of the propositions required of the defendant, and if you find that the plaintiff’s contributory negligence was 50% or less of the total proximate cause of the damage for which recovery is sought, then your verdict should be for Daniel Falcon, and you will reduce the plaintiff’s damages in the manner stated to you in these instructions.

If you find from your consideration of all the evidence that the Defendant, Anthony Ciancio, has proved both the propositions required of the Defendant and if you find that the plaintiff-Daniel Falcon’ contributory negligence was more than 50% of the total proximate cause of damage for which recovery is sought, then your verdict should be for the defendant, Anthony Ciancio.

B21.03 (b) Burden of Proof on the Issues/Modified

As to the counterclaim of Anthony Ciancio against Daniel Falcon, Raymond Flores & BIA, Inc d/b/a Bacchus, the Counter-Plaintiff, Anthony Ciancio, has the burden of proving each of the following propositions:

First, that Daniel Falcon, Raymond Flores & BIA, Inc. d/b/a Bacchus, acted or failed to act in one of the ways claimed by Anthony Ciancio as stated to you in these instructions and that in so acting, or failing to act, Daniel Falcon, Raymond Flores & BIA, Inc. d/b/a Bacchus were negligent.

Second, that Anthony Ciancio was injured;

Third, that the negligent conduct of Daniel Falcon, Raymond Flores & BIA, Inc. d/b/a Bacchus was a proximate cause of the injury to Anthony Ciancio.

If you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for Daniel Falcon, Raymond Flores & BIA, INC. d/b/a Bacchus as to Anthony Ciancio’s Counterclaim.

If, on the other hand, you find from your consideration of all the evidence that each of the propositions required of the Counter-Plaintiff, Anthony Ciancio, then you must consider the Counter-Defendants’ claim that the Counter-Plaintiff was contributorily negligent.

As to that claim, Counter-Defendant has the burden of proving each of the following propositions:

First, that the Counter-Plaintiff acted or failed to act in one of the ways claimed by the defendant as stated to you in these instructions and that in so acting, or failing to act, the plaintiff was negligent;

Second, that the Counter-Plaintiff’s negligence was a proximate cause of his injury.

If you find from your consideration of all the evidence that the Counter-Plaintiff, Anthony Ciancio, has proved all of the propositions required of him and that the Counter-Defendants, Daniel Falcon, Raymond Flores & BIA, INC. d/b/a Bacchus, have not proved both of the propositions required of them, then your verdict should be for the Anthony Ciancio and you will not reduce the Counter-Plaintiff’s damages.

If you find from your consideration of all the evidence that the Counter-Plaintiff, Anthony Ciancio, has proved all the propositions required of him and that the Counter-Defendants, Daniel Falcon, Raymond Flores & BIA, INC. d/b/a Bacchus, have proved both of the propositions required of them and if you find that the Counter-Plaintiff-Anthony Ciancio’s contributory negligence was 50% or less of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for the Anthony Ciancio and you will reduce the Counter- Plaintiff’s damages in the manner stated to you in these instructions.

If you find from your consideration of all the evidence that the Counter-Plaintiff, Anthony Ciancio, has proved all of the propositions required of him and that the Counter-Defendants, Daniel Falcon, Raymond Flores & BIA, INC. d/b/a Bacchus, have proved both of the propositions required of him, and if you find that the Anthony Ciancio’s contributory negligence was greater than 50% of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for the Counter-Defendants.

30.01 Measure of Damages

If you decide in favor of a party on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have result from wrongful conduct, taking into consideration the nature, extent and duration of the injury.

The value of time, earnings, salaries or benefits lost.

The reasonable expense of necessary medical care, treatment and services received.

The pain and suffering experienced and reasonable certain to be experienced in the future as a result of the injuries;

The loss of a normal life experienced and reasonably certain to be experienced in the future as a result of the injuries.

Disfigurement

Whether any of these elements of damages has been proved by the evidence is for you to determine.

30.04.02 Loss of a Normal Life—Definition

When I use the expression “loss of a normal life”, I mean the temporary or permanent diminished ability to enjoy life. This includes a person’s inability to pursue the pleasurable aspects of life.

IPI.36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for a defendant on the question of liability, you will have no occasion to consider the question of damages as to that defendant.

41.05 Counterclaim—Third Party Complaint

41.01/41.03 Combined/Modified

In this action a counterclaim has been filed. As to the issues raised by the counterclaim and the answer to it, the parties therein named stand in the same relation to one another as do a plaintiff and a defendant. Therefore, the instructions given to you which apply to the plaintiff, Daniel Falcon, and the defendant, Anthony Ciancio apply with the same effect to the Counter-Plaintiff, Anthony Ciancio and Counter-Defendants, Daniel Falcon, Raymond Flores & BIA, Inc d/b/a Bacchus.

IPI 50.01 Both Principal and Agent Sued—No Issue as to Agency

As to the counterclaim, the Counter-Defendants are sued as principal and agent. The Counter-Defendant, BIA, Inc d/b/a Bacchus, is the principal and the Counter-Defendants, Daniel Falcon and Raymond Flores, are its agent. Therefore, if you find that the Counter-Defendants, Daniel Falcon or Raymond Flores, are liable, then you must find that the Counter-Defendant, BIA, Inc d/b/a Bacchus, is also liable.

34.01-4 Damages Arising in the Future—Mortality Tables as Evidence of Damages—Injury Case

If you find that the plaintiff, Daniel Falcon, is entitled to damages arising in the future because of injuries, you must determine the amount of these damages which will arise in the future.

If these damages are of a continuing nature, you may consider how long they will continue. If these damages are permanent in nature, then in computing these damages you may consider how long Daniel Falcon is likely to live.

According to a table of mortality in evidence, the life expectancy of a person aged 32 is 46 years. This figure is not conclusive. It is the average life expectancy of persons who have reached the age of 32. It may be considered by you in connection with other evidence relating to the probable life expectancy of Daniel Falcon in this case, including evidence of his health, habits, and other activities, bearing in mind that some persons live longer and some persons less than the average.

B45.02 Instruction on Use of Verdict Forms

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations. Your verdicts must be unanimous. Forms of verdicts are supplied with these instructions. After you have reached your verdicts, fill in and sign the appropriate forms and return them to the court. Your verdicts must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

You must return one verdict as to the Complaint of Daniel Falcon as against Anthony Ciancio, and one verdict as to the Counterclaim of Anthony Ciancio as against Daniel Falcon, Raymond Flores & BIA Inc. d/b/a Bacchus.

As to Daniel Falcon’s Complaint:

If you find for Plaintiff, Daniel Falcon and against the Defendant, Anthony Ciancio, and if you further find that Daniel Falcon was not contributorily negligent, then you should use Verdict Form A.

If you find for Plaintiff, Daniel Falcon, and against the Defendant, Anthony Ciancio, and if you further find that the Plaintiff’s injuries were proximately caused by a combination of Defendant’s negligence and the Plaintiff-Daniel Falcon’s contributory negligence, and that Falcon’s contributory negligence was 50% or less of the total proximate cause of damages for which recovery is sought, then you should use Verdict Form B.

If you find for Defendant, Anthony Ciancio, and against the Plaintiff, Daniel Falcon, or if you find that Plaintiff-Daniel Falcon’s contributory negligence was more than 50% of the total proximate cause of damages for which recovery is sought, then you should use Verdict Form C.

As to Anthony Ciancio’s Counterclaim:

If you find for Counter-Plaintiff, Anthony Ciancio, and against the Defendants, Daniel Falcon, Raymond Flores & BIA, INC. d/b/a Bacchus, and if you further find that Anthony Ciancio was not contributorily negligent, then you should use Verdict Form D.

If you find for Counter-Plaintiff, Anthony Ciancio, and against the Counter-Defendants, Daniel Falcon, Raymond Flores & BIA, INC. d/b/a Bacchus, and if you further find that Anthony Ciancio’s injuries were proximately caused by a combination of Counter-Defendants’ negligence and the Counter-Plaintiff’s contributory negligence, and that Counter-Plaintiff’s contributory negligence was 50% or less of the total proximate cause of damages for which recovery is sought, then you should use Verdict Form E.

If you find for Counter-Defendants, Daniel Falcon, Raymond Flores & BIA, INC. d/b/a Bacchus, and against the Counter-Plaintiff, Anthony Ciancio, or if you find that Anthony Ciancio’s contributory negligence was more than 50% of the total proximate cause of damages for which recovery is sought, then you should use Verdict Form F.

B45.02.D Verdict Form D—Single Plaintiff and Defendant—Counterclaim—No Contributory Negligence Pleaded

VERDICT FORM A

As to Daniel Falcon’s Complaint against Anthony Ciancio, we, the jury, find for Daniel Falcon and against Anthony Ciancio. We assess Daniel Falcon’s damages in the amount of $________________________, itemized as follows:

The value of time, earnings, salaries or benefits lost. $__________________

Reasonable expense of necessary medical care, treatment and services received. $__________________

Pain and suffering experienced and reasonably certain to be experienced in the future. $__________________

Loss of a normal life experienced and reasonably certain to be experienced in the future.$__________________

Disfigurement. $__________________

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VERDICT FORM B

The value of time, earnings, salaries or benefits lost. $__________________

Reasonable expense of necessary medical care, treatment and services received. $__________________

Pain and suffering experienced and reasonably certain to be experienced in the future. $__________________

Loss of a normal life experienced and reasonably certain to be experienced in the future.$_________________

Disfigurement. $__________________

We further find the following:

First: Without taking into consideration the question of reduction of damages due to the negligence of the Plaintiff, we find that the total amount of damages suffered by Plaintiff as a proximate result of the occurrence in question is $_________________

Second: Assuming that 100% represents the total combined negligence of all persons whose negligence proximately contributed to the plaintiff’s damages, including the Plaintiff and the Defendant, we find that the percentage of such negligence attributable solely to Plaintiff is ________ percent(%)

Third: After reducing the total damages sustained by Plaintiff by the percentage of negligence attributable solely to Plaintiff, we assess Plaintiff’s recoverable damages in the sum of $__________________.

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VERDICT FORM C

As to Daniel Falcon’s Complaint against Anthony Ciancio, we, the jury, find for Anthony Ciancio and against Daniel Falcon.

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VERDICT FORM D

As to Anthony Ciancio’s counterclaim against Daniel Falcon, Raymond Flores and BIA, Inc. d/b/a Bacchus, we, the jury, find for Anthony Ciancio and against Daniel Falcon, Raymond Flores or BIA, Inc. d/b/a Bacchus. We assess Anthony Ciancio’s damages on his counterclaim in the sum of $______________________, itemized as follows:

Reasonable expense of necessary medical care, treatment and services received. $__________________

Pain and suffering experienced. $__________________

Loss of a normal life experienced .$_________________

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VERDICT FORM E

Reasonable expense of necessary medical care, treatment and services received. $__________________

Pain and suffering experienced. $__________________

Loss of a normal life experienced .$_________________

We further find the following:

First: Without taking into consideration the question of reduction of damages due to the negligence of the Counter-Plaintiff, we find that the total amount of damages suffered by Counter-Plaintiff as a proximate result of the occurrence in question is $_________________

Second: Assuming that 100% represents the total combined negligence of all persons whose negligence proximately contributed to the Counter-Plaintiff’s damages, including the Counter-Plaintiff and the Counter-Defendant, we find that the percentage of such negligence attributable solely to Plaintiff is ________ percent(%)

Third: After reducing the total damages sustained by Counter-Plaintiff by the percentage of negligence attributable solely to Counter-Plaintiff, we assess Counter-Plaintiff’s recoverable damages in the sum of $__________________.

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VERDICT FORM F

As to Anthony Ciancio’s Counter-Complaint Claim against Daniel Falcon, Raymond Flores and BIA, Inc. d/b/a Bacchus, we, the jury, find for Daniel Falcon, Raymond Flores and BIA, Inc. d/b/a Bacchus, and against Anthony Ciancio.

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