B21.05. Burden Of Proof-Third-Party Complaint-Negligence Only

B21.05 Burden of Proof--Third-Party Complaint--Negligence Only [1] In this suit there is not only the complaint of [name of plaintiff] but also the complaint of [name of third-party plaintiff]. [2] In order for [name of plaintiff] to recover, he has the burden of proving each of the following propositions: [Insert here points "First" through "Third" of IPI B21.02.] [3] 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 [name of defendant] as to [name of 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 [name of defendant]'s claim that [name of plaintiff] was contributorily negligent. [4] As to that claim, [name of defendant] has the burden of proving both of the following propositions: [5] A: That [name of plaintiff] acted or failed to act in one or more of the ways claimed by [name of defendant] as stated to you in these instructions, and that in so acting, or failing to act, [name of plaintiff] was contributorily negligent; [6] B: That [name of plaintiff]'s contributory negligence was a proximate cause of [his injury] [and] [the damage to his property]. [7] If you find from your consideration of all the evidence that [name of plaintiff] has proved all the propositions required of him and that [name of defendant] has not proved both of the propositions required of him, then your verdict shall be for [name of plaintiff] and you shall not reduce [name of plaintiff]'s damages. [8] If you find from your consideration of all the evidence that [name of plaintiff] has proved all the propositions required of him and that [name of defendant] has proved both of the propositions required of him, and if you find that [name of 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 [name of defendant] as to [name of plaintiff]'s complaint. [9] If you find from your consideration of all the evidence that [name of plaintiff] has proved all the propositions required of him and that [name of defendant] has proved both of the propositions required of him, and if you find that [name of 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 [name of plaintiff] as to [name of plaintiff]'s complaint, and you shall reduce [name of plaintiff]'s damages in the manner stated to you in these instructions. [10] In order for [name of third party plaintiff] to recover on his complaint, he has the burden of proving each of the following propositions: [Here adapt points "First" through "Third" of IPI B21.02.] [11] 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 [name of third party defendant] as to [name of third party 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 [name of third party defendant]'s claim that [name of third party plaintiff] was contributorily negligent. [12] As to that claim, [name of third party defendant] has the burden of proving both of the following propositions: [13] A: That [name of third party plaintiff] acted or failed to act in one of the ways claimed by [name of third party defendant] as stated to you in these instructions and that in so acting, or failing to act, [name of third party plaintiff] was contributorily negligent; [14] B: That [name of third party plaintiff]'s contributory negligence was a proximate cause of [his injury] [and] [the damages to his property]. [15] If you find from your consideration of all the evidence that [name of third party plaintiff] has proved all of the propositions required of him and that [name of third party defendant] has not proved both of the propositions required of him, then your verdict shall be for [name of third party plaintiff] and you shall not reduce [name of third party plaintiff]'s damages. [16] If you find from your consideration of all the evidence that [name of third party plaintiff] has proved all the propositions required of him and that [name of third party defendant] has proved both of propositions required of him, and if you find that [name of third party 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 [name of third party defendant] as to [name of third party plaintiff]'s complaint. [17] If you find from your consideration of all the evidence that [name of third party plaintiff] has proved all the propositions required of him and that [name of third party defendant] has proved both of the propositions required of him, and if you find that [name of third party 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 [name of third party plaintiff] as to [name of third party plaintiff]'s complaint, and you shall reduce [name of third party plaintiff]'s damages in the manner stated to you in these instructions.