B21.04. Burden Of Proof-Counterclaim-Negligence Only-One Plaintiff and One Defendant

B21.04 Burden of Proof--Counterclaim--Negligence Only--One Plaintiff and One Defendant [1] In this suit, there is not only the complaint of the plaintiff but also a counterclaim by the defendant. [2] Because there is a counterclaim in this case you may reach one of four results. [3] First, you may find for the plaintiff on his complaint and against the defendant on his counterclaim. [4] Second, you may find for the defendant on his counterclaim and against the plaintiff on his complaint. [5] Third, you may find against both, the plaintiff on his complaint and the defendant on his counterclaim. [6] Fourth, you may find for both, the plaintiff on his complaint and the defendant on his counterclaim. [7] In order for the plaintiff to recover, he has the burden of proving each of the following propositions: [Insert here points "First" through "Third" of IPI B21.02.] [8] If you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict shall be for the defendant as to plaintiff's complaint. On the other hand, if you find from your consideration of all the evidence that all of these propositions have been proved, then you must consider defendant's claim that plaintiff was contributorily negligent. [9] As to that claim, defendant has the burden of proving each of the following propositions: [10] A: 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 contributorily negligent; [11] B: That plaintiff's contributory negligence was a proximate cause of [his injury] [and] [the damage to his property]. [12] If you find from your consideration of all the evidence that the plaintiff has proved all the propositions required of the plaintiff and that defendant has not proved both of the propositions required of the defendant, then your verdict should be for the plaintiff and you shall not reduce the plaintiff's damages. [13] If you find from your consideration of all the evidence that the plaintiff has proved all the propositions required of the plaintiff and that the defendant has proved both of the propositions required of the defendant, and if you find that the plaintiff'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 shall be for the defendant. [14] Finally, if you find from your consideration of all the evidence that plaintiff has proved all the propositions required of the plaintiff and that the defendant has proved both of the propositions required of the defendant, and if you find that plaintiff'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 shall be for the plaintiff and you shall reduce the plaintiff's damages in the manner stated to you in these instructions. [15] In order for the defendant to recover on his counterclaim, the defendant has the burden of proving each of the following propositions: [Here adapt points "First" through "Third" of IPI B21.02 to the allegations in the defendant's counterclaim.] [16] 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 the plaintiff as to the defendant's counterclaim. On the other hand, if you find from your consideration of all the evidence that all of these propositions have been proved, then you must consider the plaintiff's claim that the defendant was contributorily negligent. [17] As to that claim, the plaintiff has the burden of proving each of the following propositions: [18] A: That the defendant 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 contributorily negligent; [19] B: That defendant's contributory negligence was a proximate cause of [his injury] [and] [the damage to his property]. [20] If you find from your consideration of all the evidence that the defendant has proved all the propositions required of the defendant and that the plaintiff has not proved both of the propositions required of the plaintiff, then your verdict should be for the defendant on the counterclaim and you will not reduce the defendant's damages. [21] If you find from your consideration of all the evidence that the defendant has proved all the propositions required of the defendant and that the plaintiff has proved both of the propositions required of the plaintiff, and if you find that the defendant'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 plaintiff on the defendant's counterclaim. [22] Finally, if you find from your consideration of all the evidence that the defendant has proved all the propositions required of the defendant and that the plaintiff has proved both of the propositions required of the plaintiff, and if you find that the defendant'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 shall be for the defendant on the counterclaim and you shall reduce the defendant's damages in the manner stated to you in these instructions.