APRIL 18, 2011 E-CLIPS
MEDICAL MALPRACTICE/EXPERTS/PLEADINGS/DISMISSAL
Expert Qualifications under 2-624, Requiring Same Profession and Same Class of License
Court properly dismissed, with prejudice, a medical malpractice complaint against two podiatrists, on grounds that reviewing physician, a licensed Wisconsin osteopathic physician, was not licensed in podiatry at time he authored the report attached to the original complaint. In this case, although the doctor was licensed at the time of authorship as an osteopathic physician in Wisconsin and had previously held a license in podiatry, he was not a health professional licensed in the same profession, with the same class of license, as the Defendants, within the meaning of Section 2-622, and dismissal with prejudice is warranted as this defect was not a mere technical error.
Christmas v. Hugar, No. 1-10-1743 Cook Co., 2d Div(1st Dist. April 5, 2011)
MEDICAL MALPRACTICE/EXPERTS/PLEADINGS/DISMISSAL
Failing to Have a Properly Qualifying Expert under 2-622 May be Grounds for Dismissal with Prejudice
Where it was only discovered that the expert who drafted the 2-622 report did not possess the requisite license to testify as an expert in the same profession and class, the Court held that this error amounted to more than a mere technicality. Granting the Plaintiff leave to amend their complaint and expert’s report would be prejudicial to the Defendant. More importantly, the Court took issue with the fact that at no time during the litigation did the Plaintiff attempt to correct the section 2-622 deficiency in her pleadings, and at no point did she attempt to demonstrate good cause for why she failed to bring this to the court's attention and remedy the matter.
Christmas v. Hugar, No. 1-10-1743 Cook Co., 2d Div (1st Dist. April 5, 2011)
PLEADINGS/AGENCY/EVIDENCE
Requirements to Establish Agency as Opposed to Independent Contractor
A Jury verdict was entered against the Defendant company for $23.775 million for the death of two people and the severe injuries of one person in multi-car collision with tractor-trailer driven by the Defendant’s employee. Court properly found that principal-agent relationship existed between the Defendant company and the driver, as company owned the load of potatoes driver was hauling, and controlled the method of payment and manner of driver's work performance, including the imposition of fines if driver did not arrive at the warehouse within certain time. In determining whether a person is an agent or an independent contractor, the court's cardinal consideration is the right to control the manner of work performance, regardless of whether that right was actually exercised. Another significant factor is the nature of work performed in relation to the general business of the employer. Other factors to consider are: (1) the right to discharge; (2) the method of payment; (3) the provision of necessary tools, materials, and equipment; (4) whether taxes are deducted from the payment; and (5) the level of skill required.
Sperl v. C.H. Robinson Worldwide , No. 3-09-0830 Will Co. (3d Dist. March 30, 2011)
AGENCY/EVIDENCE/JURY INSTRUCTIONS
Agency Eliminates Need to Apportion Fault
Where it has been found that an agency relationship exists, Section 2-1117, which apportions fault among multiple tortfeasors, becomes irrelevant. An agency relationship establishes that the employer is liable for the actions of their agent; therefore, there is no need to apportion fault between them.
Sperl v. C.H. Robinson Worldwide , No. 3-09-0830 Will Co. (3d Dist. March 30, 2011)
JURISDICTION/PRODUCT/LIABILITY
Personal Jurisdiction Over International Defendants in Products Can
Plaintiff filed suit against a French company which made an defective helicopter part, for the death of his brother who was piloting the helicopter in Illinois at the time of the crash. The trial court dismissed case for lack of personal jurisdiction. The Appellate Court reversed, finding that there was specific jurisdiction under the long-arm statute. The issue of minimum contacts was resolved, where it was found that the company had custom made the part for use in helicopters that it knew would be sold in a U.S. forum. The Court also held that the reasonableness requirement established by Ashai was also met, because the tort occurred in Illinois, Illinois has an interest in resolving a dispute over a crash and death in Illinois, and the concern with safety standards for the public good. The due-process requirement of the statute was fulfilled where the Court held that the Defendant could reasonably expect to be defending itself in a U.S. forum given the fact that they had previously done so and were making custom parts for U.S. aircrafts.
Russell v. SNFA , No. 1-09-3012 Cook Co., 6th Div. (1st Dist. March 31, 2011)
IMMUNITY/GOVERNMENT/PREMISES
Tort Immunity Act Extends to Willful and Wanton Conduct Unless There is a Specific Exception
Plaintiff sued the City, alleging willful and wanton conduct by city building inspectors, and the owners and managers of an apartment building, for injuries from a fall from a second-floor, rear staircase, in an area where a portion of the rear staircase handrail had been removed and marked with yellow caution tape. The Appellate Court affirmed the lower court’s grant of summary judgment for the city. The Court found that Illinois continues to recognize the common law public duty rule that a governmental entity generally owes no duty to provide an individual citizen with specific municipal services and it recognizes a special duty exception to the public duty rule, but this exception applies only in cases where the legislature has not provided a specific governmental immunity. Furthermore, statutory immunities provided by the Tort Immunity Act also extend to allegations of willful and wanton conduct unless the legislature has specifically indicated otherwise. Finally, section 2–202 does not provide an exception to the immunities provided in other sections of the Tort Immunity Act.
Hess v. Flores, No. 1-08-1653 Cook Co., 1st Div. (1st Dist. March 31, 2011)
CAUSATION
Causation When There is Assumption of Risk
Plaintiff filed suit for negligence against the trucking company, the repair garage, and the truck service company, for injuries he sustained when the brakes failed on truck he was driving. Court properly granted the trucking company's motion for summary judgment. The Court found that the Plaintiff did not reasonably rely on the company's alleged promise to ensure that the Defendant garage inspected the truck, because Plaintiff also spoke to the mechanic personally. The Plaintiff knew that no repairs had been made, as the garage could not find anything wrong with truck. Plaintiff failed to show that the company's breach of duty to convey to the garage that the driver wanted the brakes to be inspected, rather than actual failure of brakes, was proximate cause of Plaintiff's injury. The Plaintiff made the decision to drive the truck knowing that there was an unresolved issue with the brakes. Lewis v. Chica Trucking , No. 1-10-0540 Cook Co., 6th Div. (1st Dist. March 31, 2011)
Schools
Governmental Immunity
Public Duty Rule does not invoke tort immunity protections where alleged conduct is a voluntary undertaking which creates the danger of the harm suffered. A duty to warn exists where there is unequal knowledge, actual or constructive, and the defendant, possessed of such knowledge, knows or should know that harm might or could occur if no warning is given.
Jane Doe-3 v. White, Nos. 4-10-0137, 4-10-0138 cons. (April 29, 2011) Champaign Co. (APPLETON) Reversed and remanded.
-In this case, Plaintiffs were second-grade students who were sexually abused by their teacher at an elementary school in Urbana. They and their mothers sued the teacher, school board and administrators of the school district where the teacher had been previously employed. Plaintiffs alleged that Defendants engaged in intentional egregious conduct while in the course of their employment, in that they knew that this teacher had sexually abused students at his previous school, but failed to report the abuse to DCFS or to Urbana, and thereby allowed and actually facilitated teacher's employment in Urbana. The school had created and sent a false letter of endorsement to Urbana. The defendants argued that the Public Duty Rule and Tort Immunity Act. The Appellate Court reversed the trial court's dismissal, holding that the nature of the alleged conduct of administrators barred application of public-duty rule, and bars the application of protections of the Tort Immunity Act, as Plaintiffs' Complaint adequately alleged that their conduct was a voluntary undertaking which specifically created the danger of abuse which was reasonably foreseeable.
Generally, there is no duty requiring one person to protect another from criminal activity by third persons absent a special relationship. Iseberg v. Gross, 227 Ill. 2d 78, 87 (2007). Here, while there was no "special relationship" between the individual administrators of one school district and the students of another. However, even without a "special relationship," a person could still be liable for the criminal acts of a third party if that person performed a voluntary undertaking to protect another from harm. Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 217 (1988). (Section 324A of the Restatement (Second) of Torts, which Illinois courts have adopted (see Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 210-11 (1979)), addresses the concept of liability based on a voluntary undertaking and provides as follows:
"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking." Restatement (Second) of Torts §324A, at 142 (1965). In order for a duty to arise under circumstances to which section 324A may apply, there must be sufficient facts to put the defendant on notice that an intervening criminal act is likely to occur. In other words, in the context of an intervening criminal act by a third person, "the existence of a legal duty requires that the occurrence be reasonably foreseeable." Mazzone v. Chicago & North Western Transportation Co., 226 Ill. App. 3d 56, 58 (1992). On this point, our supreme court has stated: "A familiar treatise on torts warns that it must be remembered that the mere fact that misconduct on the part of another might be foreseen is not of itself sufficient to place the responsibility upon the defendant. W. Keeton, Prosser & Keeton on Torts §44, at 305 (5th ed. 1984). Further, even though the intervening cause may be regarded as foreseeable, the defendant is not liable unless the defendant's conduct has created or increased an unreasonable risk of harm through its intervention. W. Keeton, Prosser & Keeton on Torts §44, at 305 (5th ed. 1984). These comments, contained in the section of the treatise discussing intervening causes, refer the reader to the earlier discussion of the standard of conduct:
Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law. W. Keeton, Prosser & Keeton on Torts §33, at 201 (5th ed. 1984). In other situations, however, the actor may have a duty of care for the protection of others. Such situations include situations in which the actor has a special responsibility for the protection of the plaintiff, perhaps arising by contract or founded upon a special relationship between the two, and where there is an especial temptation and opportunity for criminal misconduct brought about by the defendant. W. Keeton, Prosser & Keeton on Torts §33, at 201-03 (5th ed. 1984). Section 324A of the Restatement (Second) of Torts, which Illinois courts have adopted (see Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 210-11 (1979)), addresses the concept of liability based on a voluntary undertaking and provides as follows:
"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking." Restatement (Second) of Torts §324A, at 142 (1965). In order for a duty to arise under circumstances to which section 324A may apply, there must be sufficient facts to put the defendant on notice that an intervening criminal act is likely to occur. In other words, in the context of an intervening criminal act by a third person, "the existence of a legal duty requires that the occurrence be reasonably foreseeable." Mazzone v. Chicago & North Western Transportation Co., 226 Ill. App. 3d 56, 58 (1992). On this point, our supreme court has stated: "A familiar treatise on torts warns that it must be remembered that the mere fact that misconduct on the part of another might be foreseen is not of itself sufficient to place the responsibility upon the defendant. W. Keeton, Prosser & Keeton on Torts §44, at 305 (5th ed. 1984). Further, even though the intervening cause may be regarded as foreseeable, the defendant is not liable unless the defendant's conduct has created or increased an unreasonable risk of harm through its intervention. W. Keeton, Prosser & Keeton on Torts §44, at 305 (5th ed. 1984).
These comments, contained in the section of the treatise discussing intervening causes, refer the reader to the earlier discussion of the standard of conduct: Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law. W. Keeton, Prosser & Keeton on Torts §33, at 201 (5th ed. 1984). In other situations, however, the actor may have a duty of care for the protection of others. Such situations include situations in which the actor has a special responsibility for the protection of the plaintiff, perhaps arising by contract or founded upon a special relationship between the two, and where there is an especial temptation and opportunity for criminal misconduct brought about by the defendant. W. Keeton, Prosser & Keeton on Torts §33, at 201-03 (5th ed. 1984). These excerpts from the treatise illustrate the link between the questions of the existence of a duty and the existence of legal cause. Both depend on an analysis of foresee ability." (Internal quotation marks omitted.) Beretta U.S.A., 213 Ill. 2d at 409-10. Further support for plaintiffs' allegations may be found in section 311 of the Restatement (Second) of Torts, which our supreme court adopted in Board of Education v. A, C & S, Inc., 131 Ill. 2d 428, 455 (1989), entitled "Negligent Misrepresentation Involving Risk of Physical Harm." Though the section refers to negligent misrepresentation, it could be applied equally to fraudulent misrepresentation, including only a different mental state. The section provides as follows: "(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other, or (b) to such third persons as the actor should expect to be put in peril by the action taken. (2) Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated." Restatement (Second) of Torts §311 (1965). "The rule of liability in section 311 extends to any defendant who, in the course of an activity which is in furtherance of his own interests, undertakes to give information to another, and knows or should realize that the safety of the person or others may depend upon the accuracy of the information." (Internal quotation marks omitted.) Board of Education, 131 Ill. 2d at 455 (quoting Restatement (Second) of Torts §311, cmt. b (1965)). There appears to be some overlap in the applicability of this Restatement section and that of section 324A, as both impose liability upon the actor's undertaking of an affirmative act. Regardless of which specific tort principle applies, under the facts alleged in this case, there exists both (1) a voluntary undertaking on the individual administrators' part that was performed with an alleged intentional disregard for plaintiffs' welfare, as well as (2) the occurrence of a reasonably foreseeable intervening criminal act created by the administrators' conduct. If the well-pleaded allegations set forth in plaintiffs' complaints are true, as we must assume they are at this point in the proceedings, the individual administrators, by creating and tendering a false letter of recommendation, failing to report White's conduct, and failing to warn Urbana of White's conduct, created the opportunity for White to commit further abuse at Urbana. In fact, further abuse was not only foreseeable, but likely. We also note that Illinois law has established a duty to warn others in certain circumstances. "A duty to warn exists where there is unequal knowledge, actual or constructive, and the defendant, possessed of such knowledge, knows or should know that harm might or could occur if no warning is given." Kirby v. General Paving Co., 86 Ill. App. 2d 453, 457 (1967).STEIGMANN and McCULLOUGH, concurring.)
Medical Malpractice
Petrillo violation occurs when employer clinic in malpractice suit has ex parte communications with employees whose conduct is NOT a basis for liability in the case at the time of the communications.
Aylward v. Settecase, No. 1-10-1939 (April 29, 2011) Cook Co., 5th Div. (J. GORDON) Affirmed.
-Plaintiff brought medical malpractice suit against a physician and his employer, a multi-specialty clinic, alleging their failure timely to diagnose lung cancer. The trial court granted permission for the defendant-employer to have ex parte communications with its staff members who were involved in Plaintiff's medical treatment who were not named as defendants, but then reversed its decision and barred any such communications. The Appellate Court ruled that counsel for the clinic cannot communicate ex parte with its employees whose actions are not presently the basis for liability against the clinic. Allowing such communication would substantially erode the rationale underlying Petrillo, and would permit defendants to communicate with anyone, regardless of privilege.
Office Location
