The most recent Illinois court decision summaries can be found on this page. Previous months have been archived below.
March 2012
Wrongful Death
Attorney’s Fees
Nursing Home Act
Jury
Unrebutted Evidence Cannot Create an Inference that is Inconsistent with the Evidence
Loss of Society – Good Discussion of Definitions of Loss of Society and Pecuniary Injury
Retainer Agreement Terms May Not Be Considered Reasonable Under the Nursing Home Act
Watson v. South Shore Nursing and Rehabilitation Center
In this Nursing Home Act case, the decedent's daughter filed a survival and wrongful death action arising out of her father’s death as a result of burns caused by his dropping a lit cigarette in the nursing home. The patient had been unsupervised in the dining area of the facility and caught on fire, suffering extensive first, second and third degree burns which became infected. He died nearly two years later. The jury awarded a verdict for $1.65 million for medical expenses, pain and suffering, disfigurement, and loss of normal life, but awarded no damages for loss of society. Plaintiff’s counsel petitioned for the award of attorney’s fees in line with the one-third contingent fee provided by the retainer agreement.
The Appellate Court granted a new trial on damages in light of the jury’s failure to award damages for the lost society, finding that the jury had ignored a proven element of damages. The Court noted that “the undisputed testimony at trial established that Mr. Sloan’s daughters enjoyed his love, companionship, and affection during his life and, correspondingly, were deprived of such benefits upon his death.
The trial court sided with the defendant in awarding attorney’s fees under the Act, finding that the contingent fee agreement was not reasonable for the action. The Appellate Court affirmed the award by the trial judge of $322,220 under the Nursing Home Care Act, and did not abuse its discretion in finding that $568,187 sought was unreasonable. The Court noted that the fact that the one-third contingency fee was close to the amount sought did not support the plaintiff’s attorney’s argument that the amount sought was reasonable, as the petition included erroneous and duplicated charges, an exorbitant hourly rate and excessive hours. Plaintiff entitled to new trial on issue of damages for loss of society. Jury ignored a proven element of damages, as uncontroverted testimony of daughters and facility employees showed that decedent's four daughters were deprived of his society by his death.
Substitution of Judge
Each Party Who Challenges Judgments or Orders Entered After Denial of Motion to Substitute Judge Must Have Their Own Basis for Subsitution
Powell v. Dean Foods Company
In this multi-defendant case arising from the death of three individuals as a result of a collision between a car and tractor-trailor, the defendants had all filed motions for substitution of judge to move the case from several judges who had been assigned the case for trial. Eventually, a jury awarded damages of over $20 million. The Appellate Court reversed the judgment, basing its reversal on the denial of a motion to dismiss the trial judge as a matter of right, and finding that the judge's ruling on the status of one corporate defendant was not a substantive motion matter. The defendants contended that they all shared the same rights as all other defendants to contest the validity of orders, and the judgment, because one of the parties, who had been dismissed by the plaintiffs, may have had a basis to substitute the judge. The Illinois Supreme Court held that once a given defendant is no longer in the case, no other defendant has standing to challenge a denial of that dismissed defendant's motion for substitution of judge. In order to show prejudice, defendants would have to have shown that they had a right to substitution of judge, but two defendants did not because they had already obtained a substitution of judge; and the other defendant did not because he failed to file a motion and seek the substitution of judge either as a matter of right or for cause under735 ILCS 5/2-1001(a)(3).
3/9/12
Evidence 4th Dist.
Rules of Evidence are Procedural and are Effective Upon their Effective Date Even to Actions Which Accrued Before the Effective Date
Rule 409 of the Illinois Rules of Evidence and Section 8-1901 of Code of Civil Procedure Preclude Offers to Pay Expenses As Evidence of Liability
Lambert v. Coonrod, 2012 IL App (4th) 110518 (March 5, 2012) Macoupin Co. (TURNER) Affirmed.
In this premises liability case, the plaintiff sued for injuries he sustained when he fell from a wire spool that was in a shed at the Defendant's residence. He was using the spool as a support as he was reaching for an item on a shelf, when the spool shifted, causing him to fall. Plaintiff sought to introduce evidence of Defendant’s statement that he was sorry about the incident and would cover their expenses, but this was denied in limine, although Plaintiff was allowed to introduce the statement that Defendant said he was sorry about the incident. Plaintiff sought to preclude Defendant’s introduction of photos that showed the shed in which the accident had occurred because the photo was taken after the occurrence and showed the presence of a ladder which was not present at the time of the occurrence, but the trial court ruled the photos admissible, and Defendant testified that the ladder in the photo was not present at the time. Affirming the jury’s judgment for Defendant, the Appellate Court held that the statement made by Defendant to Plaintiff offering to pay all expenses relating to accident was inadmissible, both under Rule 409 of Illinois Rules of Evidence, and under Section 8-1901 of Code of Civil Procedure to prove liability. While Plaintiff argued that 409 did not apply because the accident had occurred prior to the Rule’s passage, rules of evidence are procedural, and apply to all matters after their effective date, and in this case, Rule 409 was effective before the trial. The Court held that the photos of the shed, taken one year later and showing ladder which had been purchased later, were admissible as showing the interior of shed, and found that the jury was not misled as the judge had admonished jury to not concern itself with the contents of shed shown in the photo.
February 2012
Summary Judgment
SUMMARY JUDGMENT GRANTED BECAUSE SUBCONTRACTOR DID NOT RETAIN SUFFICIENT CONTROL OVER ERECTION OF STEEL
Oshana v. FCL Builders, 2012 IL App (1st) 101628 (January 27, 2012) Cook Co., 6th Div. (LAMPKIN) Affirmed.
General contractor retained Ironwork subcontractor to fabricate steel. Ironwork subcontractor hired another subcontractor to erect steel. Ironworker employed by steel erecting company was injured when he fell from steel beam at construction site. The After a review of the applicable contracts and testimony of witnesses, the Court found that the Ironwork subcontractor did not retain control over erection work of ironworker's employer, as it did not have ongoing presence at jobsite, and its officer was not knowledgeable about steel erection. Thus, evidence of subcontractor's control was insufficient, under retained control exception of Section 414 of Restatement of Torts, for Plaintiff and general contractor to survive summary judgment.
January 2012
Premises Liability/Willful and Wanton/Summary Judgment
ILLINOIS SNOW AND ICE REMOVAL ACT REQUIRES SUMMARY JUDGMENT IN FAVOR OF DEFENDANT IF IT NEGLIGENTLY REMOVES SNOW FROM RESIDENTIAL SIDEWALK AND ITS ACTS OR OMISSIONS WERE NOT WILLFUL AND WANTON
Pikovsky v. North Skokie Boulevard Condominium Association , 2011 IL App (1st) 103742 (December 27, 2011) Cook Co. (CUNNINGHAM) Affirmed.
Summary judgment was properly entered for defendant condominium Association and management company in plaintiff's action for the injuries she suffered when she slipped and fell on the "icy snow mounds" on the rear-entrance sidewalk going to the building where her condominium unit was located. Defendants claimed that the Illinois Snow and Ice Removal Act (the Act) (745 ILCS 75/2 (West 2008) granted them immunity from liability for negligence arising out of snow and ice removal on residential sidewalks.
The Act contains two relevant parts, which state:
§ 1. It is declared to be the public policy of this State that owners and others residing in residential units be encouraged to clean the sidewalks abutting their residences of snow and ice. The General Assembly, therefore, determines that it is undesirable for any person to be found liable for damages due to his or her efforts in the removal of snow or ice from such sidewalks, except for acts which amount to clear wrongdoing, as described in Section 2 of this Act. 745 ILCS 75/1 (West 2008).
§ 2. Any owner, lessor, occupant or other person in charge of any residential property, or any agent of or other person engaged by any such party, who removes or attempts to remove snow or ice from sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting from his or her acts or omissions unless the alleged misconduct was willful or wanton. 745 ILCS 75/2 (West 2008).
The Court held that the Illinois Snow and Ice Removal Act barred her negligence claim against defendants and the snow removal and that the defendants' conduct was not willful and wanton. The Court also held that the snow disposal ordinance of the city where the condominium was located did not apply to the sidewalk where plaintiff fell, because that sidewalk was on private property and was not a "public way."
Common Fund Doctrine
COURT CORRECTLY APPLIED COMMON FUND DOCTRINE TO LIEN OF PLAINTIFF'S MEDICAL PAYMENTS INSURANCE, EVEN THOUGH THE PLAINTIFF'S INSURANCE COMPANY WAS INVOLVED IN SEPARATE ARBITRATION WITH DEFENDANT'S INSURANCE COMPANY OVER THE SAME MEDICAL PAYMENTS
Wajnberg v. Wunglueck , 2011 IL App (2d) 110190 (December 29, 2011) Kane Co. (JORGENSEN) Affirmed.
In an action arising from an automobile accident where plaintiff's insurer paid plaintiff's medical expenses and then sought reimbursement from defendant's insurer through intercompany arbitration while plaintiff filed an action against defendant, settled for an amount including the medical payments made by plaintiff's insurer, and then moved to adjudicate the insurer's lien, the trial court properly granted plaintiff's motion and, pursuant to the common fund doctrine, reduced the insurer's lien by one third, since plaintiff's insurer never gave plaintiff, his attorneys or defendant's insurer notice that it intended to collect its subrogation claim on its own, that it did not want the assistance of plaintiff's counsel, and that its claim should not be included in any settlement.
Motions
Substitution of Judge after Party Dismissed
Jury awarded over $20 million for death of three people in collision between car and tractor-trailer. Appellate court reversed, based on denial of motion to substitute judge as a matter of right, finding that judge's ruling on status of one corporate defendant was not "substantial". Once a given defendant is no longer in the case, no other defendant has standing to challenge denial of that defendant's motion for substitution of judge. To show prejudice, defendants would have to show that they had a right to substitution of judge, but two defendants did not because they had already obtained a substitution of judge. Moreover, other defendant did not because he did not seek substitution of judge as of right or for cause. (THOMAS) Appellate court judgment vacated; circuit court judgment reinstated; remanded. (FREEMAN, GARMAN, KARMEIER, BURKE, and THEIS, concurring.) Powell v. Dean Foods Company, 2012 IL 111714 (1st Dist. January 20, 2012) Cook Co.
Causation/Damages/Arbitration
Arbitrator May Not Exceed Authority Agreed to by Parties; Indivisible Injuries and Joint and Several Liability
Plaintiff was in two unrelated auto accidents, with two different Defendants. Suits were consolidated. Parties agreed to participate in ADR voluntary binding arbitration, and agreed to high/low terms as part of their arbitration agreement, but agreement specifically barred parties from disclosing these high/low agreements to the arbitrator. Arbitrator's written decision revealed he had knowledge of high/low terms. Arbitration award must be vacated because arbitrator exceeded authority granted to him by parties, as he was not permitted to know about high/low terms.
If two defendants are responsible for plaintiff's indivisible injury, the fact that one defendant's liability is capped does not preclude applicability of joint and several liability. In other words, one defendant could still be responsible for balance of award or verdict. Award cannot be reinstated because it is ambiguous as to applicability of joint and several liability. Clanton v. Ray, 2011 IL App (1st) 101894 (December 30, 2011) Cook Co., 5th Div. (J. GORDON) Reversed and remanded. (EPSTEIN and McBRIDE, concurring.)
Appeal/Arbitration
Review of Arbitration Awards on Appeal
Unlike review of a lower court’s decision, judicial review of an arbitration award is “extremely limited.” Anderson v. Golf Mill Ford, Inc., 383 Ill. App. 3d 474, 479 (2008). Because the parties have agreed that their dispute shall be settled by an arbitrator, the court should not vacate an award simply because its interpretation differs from that of the arbitrator. Galasso v. KNS Companies, Inc., 364 Ill. App. 3d 124, 131 (2006); Board of Ed. of City of Chicago v. Chicago Teachers Union, Local No. 1, 86 Ill. 2d 469, 478 (1981) (“Because the arbitrator’s decision was bargained for, the courts would have no business overruling the arbitrator’s interpretation even if they disagreed”). Thus, an award may not be vacated for mere errors in judgment or mistakes of fact or law. Sloan Elec. v. Professional Realty and Development Corp., 353 Ill. App. 3d 614, 621 (2004). However, an award may be vacated where “a gross error of law or fact appears on the award’s face.” Id.; see Galasso, 364 Ill. App. 3d at 131. A gross error of law exists only where it appears from the face of the award that the arbitrator was so mistaken as to the law that, if the arbitrator had been informed of the mistake, the award would have been different. Chicago Teachers Union, 86 Ill. 2d at 477. Moreover, the Illinois Uniform Arbitration Act (the Arbitration Act) presents five additional circumstances in which an arbitration award shall be vacated: (1) the award was procured by corruption or fraud, (2) there was evident partiality by an arbitrator appointed as a neutral party, or corruption in any arbitrator, (3) the arbitrators exceeded their powers, (4) the arbitrators refused to postpone the hearing upon a showing of sufficient cause, or refused to hear evidence material to the No. 1-10-1894 controversy, or (5) there was no arbitration agreement between the parties. 710 ILCS 5/12(a) (West 2008). Clanton v. Ray, 2011 IL App (1st) 101894 (December 30, 2011) Cook Co., 5th Div. (J. GORDON) Reversed and remanded.
December 2011
RULE 341 REQUIRES PARTY TO PROVIDE COMPLETE RECORD FOR APPEAL: FACTUAL ALLEGATIONS AND ARGUMENTS THAT ARE NOT SUPPORTED BY PROPER AND ACCURATE CITES TO THE RECORD WILL BE DISREGARDED AND CONSIDERED WAIVED
Walters v. Rodriguez, 2011 IL App (1st) 103488 (November 9, 2011) Cook Co. (MURPHY) Affirmed.
(Court opinion corrected 12/5/11.) In this case, the plaintiff and his passengers were injured when their minivan was struck by a train as the van was crossing the defendants' train tracks. Plaintiffs originally filed suit in the federal district court, which resulted in a defense verdict. Plaintiffs then filed suit in Cook County, alleging causes of action for fraudulent concealment, spoliation of evidence, conspiracy, and fraud. In the course of the federal case, during the course of the prior litigation, plaintiffs brought numerous discovery motions before the federal court, including motions to compel discovery and for sanctions. The motions were all related to defendants' alleged spoliation and concealment of evidence and failure to timely produce vital evidence from electronic recorders concerning the operation of the signals at the grade crossing where plaintiffs' vehicle was struck. Plaintiffs' allegations and requests for leave to file claims of negligent and intentional spoliation and fraudulent concealment were rejected. Among the stated reasons for rejecting these claims, the federal court found that plaintiffs failed to: diligently pursue some of this discovery; show that the evidence sought was material; present evidence that defendants intentionally hid evidence; or show defendants intentionally destroyed evidence. Defendants moved for summary judgment, arguing that the claims were barred by the doctrines of res judicata and collateral estoppel as well as the statute of limitations. Defendants also argued that the evidence did not support plaintiffs' claims and Illinois did not recognize the separate cause of action for intentional spoliation of evidence. The court never reached or addressed any of Defendants' arguments, finding instead that Plaintiffs' failure to comply with Rule 341, by citing predominantly to the federal court record instead of the record before the court, by giving incorrect citations and by not including in the record evidence and materials that Plaintiffs wanted the Court to consider. Therefore, the Court held that Plaintiffs' factual allegations were to be disregarded and unsupported arguments are considered waived, and that therefore Plaintiffs failed to overcome the presumption that the trial court correctly ascertained the facts and followed the law in granting Defendants' motion to dismiss.
Arbitration
Judicial Estoppel
Insurer Must Show Prejudice in Order to Support Denial of Coverage on Basis of Non-Cooperation
GOOD DISCUSSION OF JUDICIAL ESTOPPEL AND COLLATERAL ESTOPPEL.
United Automobile Insurance Company v. Buckley , 2011 IL App (1st) 103666 (December 5, 2011) Cook Co. (ROCHFORD) Affirmed.
In this case, the defendant driver in an auto accident case inadvertently failed to appear for a mandatory arbitration proceeding, and an award was entered in the plaintiff's behalf. United was found to have taken reasonable steps to insure its insured's presence, but the insured was mistaken as to the day of the hearing, although he knew of the correct date. Although Defendant's insurer filed a timely rejection of the award, the trial court held that it was debarred from rejecting the award because of Defendant's failure to appear for the arbitration. The plaintiff then brought garnishment proceedings against United, and United then brought its declaratory judgment action. After a bench trial, the court found that United's insured had not breached his contractual duty to cooperate and entered judgment for Plaintiff. United argued that the finding of bad faith in failing to appear collaterally estopped its insured from arguing that his failure to attend the arbitration was inadvertent, and that United should be allowed to avoid coverage. The doctrine of judicial estoppel "promote[s] the truth and protect[s] the integrity of the court system by preventing litigants from deliberately shifting positions to suit the exigencies of the moment." Bidani v. Lewis, 285 Ill. App. 3d 545, 550 (1996). Judicial estoppel is "flexible" but five elements are "generally necessary": "(1) the two positions must be taken by the same party; (2) the positions must be taken in judicial proceedings; (3) the positions must be given under oath; (4) the party must have successfully maintained the first position and received some benefit; and (5) the two positions must be totally inconsistent." Id. "Judicial estoppel applies to statements of fact and not to legal opinions or conclusions." Maniez v. Citibank, F.S.B., 404 Ill. App. 3d 941, 949 (2010). We review a trial court's decision, as to the application of judicial estoppel, under an abuse of discretion standard. Moy v. Ng, 371 Ill. App. 3d 957, 962 (2007). Collateral estoppel, an equitable doctrine, applies "when the issue decided in the prior adjudication is identical with the one presented in the current action, there was a final judgment on the merits in the prior adjudication, and the party against whom estoppel is asserted was a party to, or in privity with a party to, the prior adjudication." Du Page Forklift Service, Inc. v. Material Handling Services, Inc., 195 Ill. 2d 71, 81 (2001). Collateral estoppel "may generally apply to prior determinations of law." Id. at 80. The doctrine will not be applied where to do so would result in unfairness. Kim v. St. Elizabeth's Hospital of the Hospitals Sisters of the Third Order of St. Francis, 395 Ill. App. 3d 1086, 1093 (2009). The Court held that collateral estoppel was not applicable, as it would be unfair to thereby preclude Plaintiff from litigating coverage. United failed to show substantial prejudice by its insured's inadvertent failure to appear at arbitration, as his absence at the hearing did not prevent the insurer from challenging damages evidence or from cross-examination of the plaintiff at the arbitration. Also, the Court noted that "United, in seeking judicial estoppel application, does not set forth any statements of fact made under oath at the arbitration hearing or in the earlier court proceedings by or on behalf of Mr. Haywood. The motion to bar rejection of the award was not verified or supported by testimony or evidence. Judicial estoppel does not apply to alleged legal inconsistencies and there was no abuse of discretion by the trial court in rejecting application of this doctrine against Mr. Haywood."
Chicago Tribune
Illinois Pattern Jury Instructions now available online
Illinois Pattern Jury Instructions for both civil and criminal cases are now available free of charge on the website of the Illinois Supreme Court.
Illinois Lawyer Now
Insurance
A-1 Roofing Company v. Navigators Insurance Company, 2011 IL App (1st) 100878 (June 24, 2011) Cook Co., 6th Div. (CAHILL) Reversed and remanded.
(Court opinion corrected 11/21/11.) In this case, suit was brought against the general contractor and others for a wrongful death case arising from a roof resurfacing job at a high school. A-1 was the only additional insured under the subcontractor's CGL policy which had an additional insured endorsement stating that coverage would not be provided for any claim arising out of sole negligence of any additional insured. An employee of another subcontractor was killed while he was operating a boom-lift which had been leased by the insured's subcontractor. The court held that the language of the policy exclusion was clear, and that the victim's complaint here did not allege that his injuries arose solely from A-1's negligence. The complaint also alleged negligence on the part of BSE and two other parties. "We believe the plain, unambiguous meaning of "the sole negligence of any additional insured" implies "exclusively or entirely" or "single-handedly." See Dodd, 365 Ill. App. 3d at 266 ("[t]he Policy excludes liability for claims based on [the additional insured's] sole negligence, and [the plaintiff] claims only that [the additional insured] singlehandedly, negligently caused [the plaintiff's] injuries"); Hoffman Estates, 283 Ill. App. 3d at 1014 ("[t]he term 'solely' implies exclusively or entirely. By the express terms of the endorsement, [the named insured's] acts or omissions must be the sole ground for alleging liability against the [additional insured] for coverage to apply. *** [The underlying plaintiff's] complaint alleged liability directly against both defendants, [the named insured] and [the additional insured].
Interest
Judgments
IN ORDER TO STOP THE ACCRUAL OF POST-JUDGMENT INTEREST, DEFENDANT MUST MAKE TENDER OF OFFER OF PAYMENT OF FULL JUDGMENT, COSTS AND INTEREST
Poliszczuk v. Winkler, 2011 IL App (1st) 101847 (December 9, 2011) Cook Co., 6th Div. (R.E. GORDON) Reversed and remanded with instructions.
After jury trial, which was affirmed on appeal, Plaintiffs were awarded damages for their personal injury action. The trial Court granted their motion for post-judgment interest, ordering Defendant to pay interest only from the date of the judgment until the date Defendant offered to pay the judgment and court costs that had been awarded. In reversing the trial court, the Appellate court noted that "It is apparent from the Niemeyer decision, just as it was in Yassin, that for tender or an offer to tender to be considered sufficient for the purpose of stopping the accrual of post-judgment interest, it must, at the very least, include interest on the judgment plus applicable costs. Niemeyer, 336 Ill. App. 3d at 116; see also River Valley Cartage Co. v. Hawkeye-Security Insurance Co., 17 Ill. 2d 242, 246 (1959) (quoting Sweetland v. Tuthill, 54 Ill. 215, 216 (1870)(holding that a valid tender by a judgment debtor must be " 'sufficient to cover all that the creditor then has a right to recover, whether of debt, interest or costs. If he tenders less, then the tender is not good ***.' ")). " The court also ruled that the issue of whether a judgment creditor's rejection of a tender constitutes a waiver of his right to further accrual of interest on the judgment is contingent upon whether the judgment debtor's offer constitutes a legally sufficient offer to tender. Niemeyer, 336 Ill. App. 3d at 115. In the case at bar, the defendant's offers did not include interest, did not provide a date for payment or an indication that interest would be paid to the date of payment, and thus did not constitute a legally sufficient offer of tender.
Negligence/Summary Judgment/Open and Obvious
Summary Judgment Appropriate Where Danger Is Open and Obvious and No Evidence to Support Deliberate Encounter Exception
Swearingen v. Momentive Specialty Chemical, Inc., No. 11-2088 (December 7, 2011) N.D. Ill., E. Div. Affirmed
Plaintiff was at the defendant's business attempting to unload chemicals from the top of a truck owned by his employer when he fell off the truck and suffered serious injuries. The defendant moved for summary judgment based on its lack of duty because the danger of this activity was open and obvious and that plaintiff attempted to open the lid on the top of the truck without wearing a fall-protection harness. The Dist. Ct. granted summary judgment.
The 7th Circuit Appellate Court held that the Dist. Ct. did not err in granting defendant's motion for summary judgment. The Court rejected plaintiff's argument that the deliberate-encounter exception to open-and-obvious doctrine applied where there was nothing in record to support plaintiff's assertion that defendant had reason to suspect that plaintiff would ignore his safety training and climb on top of truck to open lid.
November 2011
Experts
Expert opinions lacking the recognized hallmarks of scientific reliability as set forth in Daubert are properly barred.
Bielskis v. Louisville Ladder, Inc., No. 10-1194 (7th Cir. November 18, 2011) Appeal from N.D. Ill., E. Div. Affirmed
In this scaffolding collapse case, pursuant to Daubert, the District Court barred the opinions Plaintiff's expert witness because his methodology underlying his opinions was unreliable. The expert was retained to render opinions as to what caused a part on a scaffolding to break, and to what alternative designs are safer. However, the expert only inspected the scaffolding for one hour using only his naked eye. The expert did not attempt to test his opinions. The expert did not take any measurements of the broken part; rather, he assumed it to be a specific size. The expert did not know what the broken part was made of. The expert did not attempt to quantify the broken part's strength. Instead, the expert's opinion leaped, without any data or testing, from his premises to his ultimate conclusion. In barring the expert's opinion, the District Court reasoned that the experts "sources of information - which were nothing more than his own speculation - were insufficient." Because Plaintiff did not have any expert testimony, the District Court granted summary judgment in favor of the defendant. Plaintiff appealed and the Seventh Circuit Court of Appeals affirmed. It reasoned the expert used nothing more than his engineering background and experience and a one our examination of the scaffolding with his naked eye to reach his opinion. The expert did not submit anything with his opinion demonstrating that there would be any consensuses in the engineering community to support his conclusion. Further, it reasoned that it was not possible to assess the known or potential error rate behind the expert's methodology because he did not use any particular methodology to reach his opinions. It further reasoned that, "of course, [the expert's] 'methodology' of looking at the [broken part] with his naked eye could not be subjected to peer review." The Appellate Court concluded that the expert's opinion "would add little if anything to [Plaintiff's] case" and given the opinion's "lack of recognized hallmarks of scientific reliability, the district court did not abuse its considerable discretion by barring [the expert's] testimony in its entirety." Further, the District Court did not abuse its discretion in denying Plaintiff's motion for a continuance to find a new expert where discovery had been closed for some time.
Premises
Negligence 1st Dist.
No Duty to Warn of Danger of Stepping In Front of Moving Train, As Danger is Open and Obvious
Park v. Northeast Illinois Regional Commuter Railroad Corporation, 2011 IL App (1st) 101283 (November 4, 2011) Cook Co., 6th Div. (CAHILL) Affirmed.
- In this case, Plaintiff brought a wrongful death case against the defendant railroad for her son's death. The son was struck and killed by an Amtrak train as he crossed the railroad tracks at a Metra commuter station.
There were no audible or visual warning devices or a crossing gate at the pedestrian crossing to warn passengers of approaching trains. There were audible and visual warning devices at the alternative railroad crossing near Devon Avenue located about 100 yards south of the pedestrian crossing. Metra did not announce the approach of the Amtrak train on the loudspeakers located along both passenger platforms. Plaintiff alleged that as her son crossed the tracks, he was aware of the approaching Amtrak train but believed it to be the Metra train he intended to board. Plaintiff claimed the light, sound and appearance of the Amtrak train were inadequate to dissuade her son of his assumption that the approaching train was the Metra train which was scheduled to stop at the station. The Amtrak train passed through the station at about 70 miles per hour, striking and killing Decedent. The court held that the danger of stepping in front of a moving train is open and obvious regardless of the type of train it is. Therefore, the rail companies owed no duty to warn Decedent of the type of train that was approaching. The danger to Decedent was not foreseeable because he was expected to appreciate and avoid danger of stepping in front of moving train.
Negligence
Premises Liability
No Common Law Duty to Provide Lifeguards at Swimming Pool
Good Discussion of Swimming Facility Act
Barnett v. Ludwig and Company, 2011 IL App (2d) 101053 (November 4, 2011) Lake Co. (BIRKETT) Affirmed.
- In this case, Plaintiff sued for the drowning death of a 17-year-old, who was a guest of his sister at her apartment complex swimming pool. The complaint alleged numerous grounds of negligence. First, plaintiff alleged that defendants were negligent because their employee, the pool attendant, did not attempt to stop the "dangerous activities" in which the swimmers were engaged and did not act to assist Darius when alerted that he was in distress. Second, plaintiff alleged that defendants failed to comply with the Swimming Facility Act (Act) (210 ILCS 125/1 et seq. (West 2010)), section 820.300(b) of title 77 of the Illinois Administrative Code (Code) (77 Ill. Adm. Code 820.300(b) (2011)), and defendants' own policies on pool use in force on July 30, 2008. Specifically, plaintiff claimed that defendants violated section 820.300(b) "by not providing a lifeguard" and violated the Act "by not preserving the public health, safety, and general welfare of residents and guests using their swimming pool, including [Darius], [and] by failing to provide and enforce the minimum required standards for safety for its swimming pool as required by the [Code]." Plaintiff did not allege how defendants failed to comply with their own policies, but did quote the following extracts from those policies: " 'The protection, health, and safety of our residents are our primary concern.' " " 'An attendant is present in the pool when it is open. No one is permitted in the pool if the attendant is not present without the consent of management. The attendant has all authority to maintain the proper conduct and operation of the pool. It is their discretion to close the pool whenever circumstances warrant it. They also retain the right to order anyone out of the pool and the surrounding area if they deem their conduct to be hazardous to themselves, the property, or other residents/guests. If they find it necessary to summon the police, ambulances etc., they have full authority to do so.' "Plaintiff also alleged that defendants' policies provided that "residents and guests over the age of sixteen (16) were allowed to use the pool and the pool area without the requirement of a supervising adult."
The court upheld summary judgment for the defendant apartment complex, which did not violate the Swimming Facility Act. Section 820.300(b) of the Act provides: "(b) Lifeguards. Lifeguards shall be provided at all wave pools, and water slides. In addition, lifeguards shall be provided at all pools, as defined in Section 820.10 [(Ill. Adm. Code 820.10 (2011))], when persons under the age of 16 are allowed in the pool enclosure specified in Section 820.200(a) [(Ill. Adm. Code 820.200(a) (2010))] without supervision by a parent, guardian or other responsible person at least 16 years of age. At facilities where lifeguards are not provided, a sign shall be posted that states 'This facility is not protected by lifeguards. Persons under the age of 16 must be accompanied by a parent, guardian or other responsible person at least 16 years of age. Swimming alone is not recommended.' " Ill. Adm. Code 820.300(b) (2011). The court also noted that it is not enough, that the decedent suffered the kind of harm the provision was meant to prevent. The decedent must also fall within the class of persons the provision was meant to protect. See Petrauskas v. Wexenthaller Realty Management, Inc., 186 Ill. App. 3d 820, 830 (1989) ("The plaintiff must be within the class of persons intended to be protected by the [provision] and the resulting harm must be of the kind that the ordinance was intended to prevent." (Emphasis added.)). Here, the Act was applicable to pools where persons UNDER 16 years of age were permitted, which was not the case. Because signs, in compliance with Section 820.300(b) of Act, were posted at the swimming pool that persons under age 16 were not allowed to swim without a parent, guardian, or other responsible person over age 16, and that no lifeguard was on duty, the complex owed no duty to provide a lifeguard at the pool. Ultimately, the court held that, there was no common law requirement to provide a lifeguard, and that, as a matter of law, defendants owed no duty to Darius to provide a lifeguard at the CLT pool. Alternatively, they hold that, even if a duty to Darius could be derived from section 820.300(b), defendants fulfilled that duty by posting the proper notice in lieu of providing a lifeguard. (JORGENSEN and HUDSON, concurring.)
Motor Vehicle Defined
Allstate Property and Casualty Insurance Company v. Mahoney, 2011 IL App (2d) 101279 (November 1, 2011) Du Page Co. (SCHOSTOK) Affirmed.
- The plaintiff in this case owned a garage where another person was working on his motorcycle. The defendant asked the plaintiff to test drive the motorcycle, and Plaintiff was injured when the brake pedal that had been welded onto the motorcycle by its owner snapped off during the test drive. Plaintiff sued the motorcycle owner for his injuries, seeking coverage under his parents' homeowner's policy. The insurer filed a declaratory judgment action, contending that a policy exclusion precluded coverage. The exclusion read: "We do not cover bodily injury or property damage arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motor vehicle or trailer. However, this exclusion does not apply to: a) a motor vehicle in dead storage or used exclusively on an insured premises."
The parties' insurance contract did not define the term "motor vehicle." The term is defined by Webster's dictionary as "[a] self-propelled motor-powered vehicle that does not run on rails but travels on wheels." Webster's II New Riverside Dictionary 460 (1984). This definition is consistent with the definition of "motor vehicle" provided in the Illinois Vehicle Code (625 ILCS 5/1-146 (West 2010)).
The Illinois Vehicle Code defines "motor vehicle" as: "Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles." 625 ILCS 5/1-146 (West 2010).
"Vehicle" is defined as: "Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this Code [(625 ILCS 5/3-101(d) (West 2010))]." 625 ILCS 5/1-217 (West 2010). .
The court noted: "Our supreme court has explained that, where an insurance policy excludes coverage for bodily injury "arising out of the ownership, maintenance, use or entrustment to others of any [motor vehicle] owned or operated or rented or loaned to any insured," coverage will not be found unless the alleged negligence occurred "wholly independent of any operation of the [motor vehicle]." (Internal quotation marks omitted.) Northbrook Property & Casualty Co. v. Transportation Joint Agreement, 194 Ill. 2d 96, 98-99 (2000); see also Maxum Indemnity Co. v. Gillette, 405 Ill. App. 3d 881, 887 (2010); State Farm Fire & Casualty Co. v. Perez, 387 Ill. App. 3d 549, 556-57 (2008).
Since a negligent welding of the brake pedal would not have proximately caused injuries if the motorcycle had not been in motion at time of accident, the welding was not "wholly independent" of the use of the motorcycle. Therefore, the insurer had no duty to defend considering the policy's exclusion.
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July 2011
Jurisdiction/Supreme Court Rule 103(b) Dismissal.
Kimbrell v. Brown, No. 10-1029 (July 11, 2011) S.D. Ill. Appeal dismissed.
-Melvin Kimbrell, a citizen of Illinois, brought personal-injury claims against Kary
Brown and Brown's employer, Koetter Woodworking, Inc., citizens of Indiana. After Brown notified the district court that he had filed for Chapter 13 bankruptcy, the district court stayed the case as to Brown, as required by the Bankruptcy Code. The district court
then dismissed Kimbrell's claims against Koetter Woodworking with prejudice, finding that Kimbrell failed to exercise reasonable diligence in serving process under Illinois Supreme Court Rule 103(b).
Kimbrell appealed the district court's dismissal of his claims against Koetter Woodworking. We dismiss the appeal for lack of jurisdiction. The dismissal of Kimbrell's claims against Koetter Woodworking was not a final judgment because Kimbrell continues to seek adjudication of his claims against Brown.
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June 2011
DAMAGES / EVIDENCE
Medicals May Be Admissible Without Medical Testimony
Westlake v. C. House Corporation, No. 1-10-0653 (1st Dist. June 15, 2011) Cook Co., 3d Div. (QUINN)Affirmed.
-After bench trial, court entered judgment for Defendant restaurant/bar and two of its employees ("bouncers"), for damages arising from altercation among patrons. Court logically inferred from security video, which showed that one Defendant was struck in face by Plaintiff, that ER treatment was necessarily incurred. Therefore, court properly admitted Defendant's medical bills into evidence without medical testimony.
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May 2011
DISMISSAL / DUTY
A restatement is not binding on Illinois courts unless it has been adopted by the Illinois Supreme Court and Section 318 of the Restatement (Second) of Torts has not been adopted.
Tilschner v. Spangler, No. 2-10-0111 (Ill. App., 2nd Dist., May 6, 2011)
-Plaintiff filed suit against homeowner for injuries she sustained at a party at the homeowner's home when another partygoer ignited fireworks. One count in Plaintiff's complaint alleged that the homeowner violated the duty set forth in Section 318 of the Restatement (Second) of Torts, which provides: "If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third person, and, (b) knows or should know of the necessity and opportunity for exercising such control." A restatement is not binding on Illinois courts unless it has been adopted by the Illinois Supreme Court. Upon examination of many Illinois cases, the Second District Appellate Court held that the Illinois Supreme Court has never explicitly, implicitly, or impliedly adopted Section 318 of the Restatement (Second) of Torts. As such, the trial court correctly dismissed that count of Plaintiff's complaint.
Medical Malpractice
Damages / Negligence
1st District
Clark v. The Children's Memorial Hospital, No. 108656 (May 6, 2011) Cook Co. (GARMAN) Affirmed in part and reversed in part; remanded.
-In this case, a married couple brought claims for wrongful birth and negligent infliction of emotional distress, alleging that the defendant physicians and hospital had been negligent in not informing them of test results which showed that their first son, born in 1997, had a genetic defect, known as "Angelman Syndrome". The mother had been informed by the doctor that all known mechanisms for the defect had been ruled out. A second son, born in 2002, had the same problems as the first child. The Supreme Court held that liability claims for expenses beyond age 18 cannot stand, as Illinois law does not impose an obligation on married parents to support a disabled child beyond age 18. However, the Court ruled that public policy favors preserving the cause of action for "wrongful birth" for defendants depriving parents of opportunity to make an informed decision, and defendants are liable for all harms proximately caused to the parents, which do not include expenses they voluntarily make to support their child as an adult. The Court also ruled that, in this setting, a negligent infliction of emotional distress claim cannot be made, as Plaintiffs were not in any "zone of danger". The "zone-of-danger" rule does not apply in a wrongful-birth case, where the tort has already been committed and parents assert emotional distress as an element of damages for that tort.
APPEALS / EVIDENCE / MEDICAL MALPRACTICE
Failure to object at trial results in forfeiture of the issue on appeal.
The state of mind exception to the hearsay rule does not apply where the declarant's state of mind is not relevant to the case.
Where there is no causation evidence linking deviations of the standard of care to the injury, evidence of the deviations are inadmissible and a directed verdict on that issue is appropriate.
Guski v. Raja , No. 1-10-0108 (Ill. App., 1st Dist., May 10, 2011)
-Wrongful death and survival medical malpractice trial resulted in both directed verdicts and jury verdicts in favor of defendant doctor and his group. Plaintiff alleged a multitude of errors that stemmed from the trial court's rulings on motions in limine and other evidentiary rulings. A court's evidentiary rulings are unreviewable on appeal if they have not been properly preserved. When the court makes its rulings before trial pursuant to the parties' motions in limine, the rulings are interlocutory and remain subject to reconsideration by the court throughout the trial. Consequently, denial of the complaining party's pretrial motion to exclude evidence is not sufficient to preserve the issue for appeal. The complaining party must also make a contemporaneous objection at trial when the evidence is introduced to allow the court the opportunity to revisit its earlier ruling. Failure to object at trial results in forfeiture of the issue on appeal. In this case, Plaintiff failed to object at the appropriate times during the trial and so many of the issues were waived on appeal. As to those issues properly preserved for appeal, first, the trial court properly excluded as hearsay statements made by the decedents family members regarding how the decedent said he was feeling before he went to the emergency room. The state of mind exception was not applicable because the decedent's state of mind before he went to the emergency room was not relevant. It does not matter that the hearsay statement itself is relevant. Second, the trial court properly ruled that Plaintiff's expert could not testify as to the defendant doctor's errors in charting because there was not going to be any causation testimony linking the alleged errors to the death, and, as such, the alleged errors were irrelevant. Lastly, the trial court's directed verdict on the defendant's failure to take an adequate medical history was proper because Plaintiff failed to provide expert testimony that said negligence proximately caused the death.
JURISDICTION
Where a defendant is fraudulently joined for the purpose of destroying diversity, said defendant is properly dismissed leaving the federal court with jurisdiction because of complete diversity.
A pharmacy is protected by the learned intermediary doctrine so long as the pharmacy is not aware that its customer is susceptible to the side effects of the drug that it sells to that customer.
Common defense exception to fraudulent joinder applies only when the claim against the non-diverse defendant is no weaker that his claim against the diverse defendants.
Walton v. Bayer Corp., No. 10-3462 (7th Cir., May 23, 2011)
-Plaintiff, an Illinois citizen, filed suit in Illinois state court against a number of Bayer affiliates, all non-Illinois citizens, and against a pharmacy operator, an Illinois citizen, for injures she sustained because of defendants' failure to warn of the dangerous side effects of Yazmin. The case was removed to federal district court and the court properly determined that the pharmacy operator, the only Illinois citizen, was fraudulently joined because of the learned intermediary doctrine, which excuses, among others, pharmacies, from having to warn its customers of the drug's adverse side effects. However, if the pharmacy is aware that its customer is susceptible to the side effects of a drug that it sells to that customer - susceptibilities because of other drugs that the pharmacy knows the customer is taking or a known pre-existing physical or mental condition that makes the drug contraindicated for the customer - then the pharmacy must warn either the customer or her physician. In this case, there was no evidence that the pharmacy knew anything about the Plaintiff's susceptibility, and so it had the full protection of the learned intermediary doctrine. In addition, the common-defense exception did not apply. A plaintiff can defeat fraudulent joinder by proving that his claim against the non-diverse defendant is no weaker that his claim against the diverse defendants because, in such a case, the diverse defendants really are just arguing that the entire suit has no merit whatsoever. In this case, while the Plaintiff did allege that all the defendants failed to warn of the side effects, she only alleged that the non-Illinois defendants concealed the side effects. As such, Plaintiff's allegations against the Illinois defendant were weaker that her allegations against the non-Illinois defendants, and so the common defense exception did not apply. Since the pharmacy was fraudulently joined, it was properly dismissed from the case. Without it in the case, complete diversity existed and the district properly denied Plaintiff's motion to remand the case back to state court.
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