November 2010
Medical Malpractice / Pleadings / Sanctions / Motions
Sufficiency of 2-622 Report May Be Established by Prior Depositions
2-622 Doctor Must Have Practiced within Last 6 Years Not Necessarily At Time of Malpractice
Deposition of 2-622 Doctor May Be Taken Pursuant to 2-622(e) If Statements Untrue and Sanctions May Be Entered
Cutler v. Northwest Suburban Community Hospital, Inc., No. 2-09-1074 (November 29, 2010).
- Even though reviewing physician's report did not state the manner in which he had been practicing within the last six years, the circumstances (including his prior depositions) sufficiently established that he had practiced within the last six years in the same area of health care at issue in the case, and his report stated that he was familiar with patients of the type involved. 2-622 does not require certifying doctor to have practiced at the time of the treatment at issue. Physician's prior depositions did not materially conflict with his report. Therefore, 2-622(e) deposition of physician was not justified. Under 2-622(e), a party may take a certifying doctor's deposition if the report was made without reasonable cause and was found to be untrue. This section also allows for sanctions. Sanctions were
not appropriate here. Court should have granted plaintiff's request for contempt finding, rather than dismiss plaintiff's complaint with prejudice, as Plaintiff had good-faith basis to refuse to produce physician for deposition in that confusion existed, at time of filing, as to whether disclosure of reviewing physician's identity was required and doctor's statements in report were true. Therefore, trial court erred in ordering doctor's deposition and erred in ordering a dismissal based upon plaintiff's failure to produce doctor for deposition - court should have granted plaintiff's request for a contempt finding rather than dismissed plaintiff's complaint with prejudice.
Experts/ /Discovery/ Summary Judgment/Causation
Plaintiff Waived Argument That Untimely Expert Disclosure Was Harmless by Not Raising in District Court. Also, Summary Judgment Properly Granted Because Expert Testimony, Even if Allowed, Could Not Show Breach of Standard of Care or Causation by Defendant.
Clifford v. Crop Production Services, Inc., No. 10-1377 (November 29, 2010) C.D. Ill. Affirmed,
- District Court ruled that Plaintiff's expert was untimely disclosed and granted defendant's motion for summary judgment. The case involved the ruining of a corn crop by providing an herbicide blend that contained glyphosate, which had a negative effect on the crop.
The Appellate Court held affirmed and held that Plaintiff had failed to timely disclose his expert witness, and that Plaintiff waived any argument that the untimely disclosure was harmless for failing to raise the argument in District Court. The Court further held that the expert's testimony, which did not identify the source of the glyphosate, could not have established plaintiff's negligence claim or offer any testimony that defendant breached any duty of care.
Duty / Insurance
Since a Parade Float Was An "Auto" As Defined by the Policy, and Since the Auto Exclusion in the Commercial Liability Policy Applied, the Insurer Did Not Have a Duty to Defend the Underlying Personal Injury Action Involving the Parade Float.
Maxum Indemnity Company v. Gillette, No. 3-10-0006 (Ill. App., 3rd Dist., November 22, 2010) LaSalle Co.
- A parade float passenger was thrown off the float and injured when it hit a bump in the road during a parade. The passenger filed suit against the defendant, a parade float transportation company. The defendant's commercial liability insurance company denied coverage and this declaratory judgment action ensued. The defendant's commercial liability policy contains an auto exclusion that excludes coverage for "bodily injury . . . arising out of the ownership, maintenance, use . . . of any . . . auto . . . ." In turn, "auto" was defined as "a land motor vehicle, trailer or semi-trailer designed for travel on public roads . . . ." The passenger's complaint alleged two different theories of liability: the first related to the negligent operation of the automobile / float, and the second related to the defective condition of the float. The Appellate Court held the insurer had no duty to defend the defendant in the underlying lawsuit. It reasoned, first, that a float fits within the definition of "auto" because it is a "trailer . . . designed for travel on public roads." Since a float is an "auto," the Court further reasoned that the claims regarding the negligent operation of the automobile / float fall squarely within the scope of the exclusion. Finally, it reasoned the defective condition claims fall within the scope of the exclusion because the injuries arose, not because of any defective condition, but because of the operation of the automobile and float. The alleged defective conditions merely created a risk to the passenger when the float was in motion. As such, the defective condition claims were not wholly independent of the alleged negligent operation or use of the float.
Products Liability / Summary Judgment
Summary Judgment Precluded in Products Case Where Evidence of Product Defect that Could Prevent Injury
Malen v. MTD Products, Inc., No. 08-3855 (November 19, 2010) N.D. Ill., E. Div. Reversed and remanded
- In this case, the plaintiff was injured when he stepped off of a riding lawnmower and slid beneath the cutting deck. The trial court found that the plaintiff's conduct was the sole cause of his accident, and granted summary judgment in favor of the defendant. The appellate court held that the trial judge had erred in granting defendant-manufacturer's motion for summary judgment under both strict product s liability and negligence actions which alleged that the defendant's lawnmower was defective in design and construction.. Although the trial judge believed that plaintiff was the sole cause of his accident because he had ignored printed label by dismounting mower with cutting deck raised, the appellate court held that, under the circumstances, a jury could find that the mower was defective. Viewing the record in the light most favorable to the plaintiffs and taking all inferences in their favor, the Court concluded that a jury could find that the mower was both defective and the proximate cause of the plaintiff's injury.where: (1) mower's safety interlock system, which would have killed engine when plaintiff got off of his seat, was not connected; and (2) there was some evidence that said system had never been connected. The fact that the particular mower was reconditioned, as opposed to newly manufactured, was not dispositive. Also, a jury could find that the mower was defectively designed where the safety system that was used by Defendant was not fail safe, and where alternative safety system could have prevented plaintiff's injury.
Duty / Negligence
Any Entity Maintaining a Road Does Not Have a Common Law or Statutory Duty to Correct, Repair or Improve Its Roads Beyond Its Duty to Maintain the Traveled Way in a Reasonably Safe Condition.
Rommel v. The Illinois State Toll Highway Authority, No. 2-10-0531 (Ill. App., 2nd Dist., November 17, 2010) DuPage Co.
- Several lawsuits were filed against the Illinois State Toll Highway Authority ("ISTHA") for various injuries and deaths that occurred in median crossover vehicle collisions on tollways maintained by ISTHA. The trial court certified for appeal the following questions: (1) whether ISTHA had a common law duty to its users to correct, repair, and/or improve its tollway system to prevent against crossover vehicle collisions when it was on notice that such collisions were occurring, and (2) whether the Illinois Road and Bridge Tollway Act ("IRBTA") imposed upon ISTHA a statutory duty to its users to correct, repair, and/or improve its tollway system to prevent against crossover vehicle collisions. The Appellate Court answered both questions in the negative. Citing to and relying on
DiBenedetto v. Flora Township
, 153 Ill. 2d 66 (1992), the Appellate Court held that any entity maintaining a road has no common law duty beyond its duty to maintain the traveled way in a reasonably safe condition. The duty does not extend to the medians separating the directions of travel. The fact that the users of the tollway are paying customers / business invitees was of no consequence. In addition, nothing in the IRBTA expressly or impliedly imposes a duty on the ISTHA to correct, repair, and/or improve its tollway system to prevent against crossover vehicle collisions.
Forum Non Conveniens 1st Dist.
Plaintiff's Choice of Forum Not So Important When Other Factors Favor Different Forum, Especially in Refiled Case Where Original Filing Was in Different Forum
Bruce v. Atadero, No. 1-09-2463 (November 12, 2010) Cook Co., 5th Dist. (TOOMIN) Reversed and remanded with directions.
- Plaintiff originally filed a wrongful death medical malpractice suit in McHenry County against Defendants for negligence in their treatment of Plaintiff's decedent at a McHenry County clinic. The suit was voluntarily dismissed nearly two years later, then re-filed in Cook County, where two physical therapy facilities of Defendant Sherman Hospital were located, but which were not related to the treatment at issue. In reversing the trial court's denial of Defendant's motion to transfer, the Appellate Court discussed the factors to be considered in determining which of at least 2 proper venues is the appropriate forum in which the case should be tried:
"...it is incumbent upon the court to balance the prevailing private and public interests. Glass , 393 Ill. App. 3d at 832-33, 912 N.E.2d at 767, citing Dawdy v. Union Pacific R.R. Co. , 207 Ill. 2d 167, 172, 797 N.E.2d 687, 693 (2003). "In Illinois, the private interest factors include the convenience of the parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the availability of compulsory process to secure attendance of unwilling witnesses; the cost to obtain attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all other practical considerations that make a trial easy, expeditious, and inexpensive." Glass , 393 Ill. App. 3d at 833, 912 N.E.2d at 767, citing Dawdy , 207 Ill. 2d at 172, 797 N.E.2d at 693.
The relevant public interest factors implicate: "the administrative difficulties caused when litigation is handled in a congested venue instead of being handled at its origin; the unfairness of imposing jury duty upon residents of a county with no connection ot the litigation; and the interest in having local controversies decided locally." Glass , 393 Ill. App. 3d at 833, 912 N.E.2d at 767, citing Dawdy , 207 Ill. 2d at 173, 797 N.E.2d at 693. "The private interest factors are not weighed against the public interest factors; rather, the trial court must evaluate the total circumstances of the case in determining whether the defendant has proven that the balance of factors strongly favors transfer." Langenhorst , 219 Ill. 2d at 444, 848 N.E.2d at 935.
Our consideration of the issue makes clear that the burden is on the defendant to show that the relevant private and public interest factors "strongly favor" the defendant's choice of forum to warrant disturbing plaintiff's choice. Langenhorst , 219 Ill. 2d at 444, 848 N.E.2d at 935. The defendant must show that plaintiff's chosen forum is inconvenient to the defendant and that another forum is more convenient to all parties. First American Bank v. Guerine , 198 Ill. 2d511, 518, 764 N.E.2d 54, 59 (2002). Unless the balance of factors strongly favor a defendant's choice of forum, the plaintiff's forum choice should rarely be disturbed. Langenhorst , 219 Ill. 2d 7. When the plaintiff is foreign to the chosen forum and the action that gives rise to the litigation did not occur in the chosen forum, " 'it is reasonable to conclude that the plaintiff engaged in forum shopping to suit his individual interests, a strategy contrary to the purposes behind the venue rules.' " Dawdy , 207 Ill. 2d at 174, 797 N.E.2d at 694, quoting Certain Underwriters at Lloyd's, London v. Illinois Central R.R. Co. , 329 Ill. App. 3d 189, 196, 768 N.E.2d 779, 785 (2002). As the supreme court noted in Guerine , "a concern animating our forum non conveniens jurisprudence is curtailing forum shopping by plaintiffs." Guerine , 198 Ill. 2d at 521, 764 N.E.2d at 61.
Our supreme court embodied this concern in the analysis from the very beginning upon its adoption of the doctrine in Torres : "In recognizing the discretion of the trial court to dismiss a case within its jurisdiction when a more appropriate intrastate forum is available and when maintenance of the action in the original forum causes unnecessary hardship to the defendant and other interested parties, we hope to promote fair play between plaintiffs and defendants and discourage the incessant jockeying for a more sympathetic jury likely to come forward with a more substantial award." Torres , 98 Ill. 2d at 351, 456 N.E.2d at 607. at 444, 848 N.E.2d at 935; Guerine , 198 Ill. 2d at 517, 764 N.E.2d at 58. Nonetheless, "the plaintiff's interest in choosing the forum receives somewhat less deference when neither the plaintiff's residence nor the site of the accident or injury is located in the chosen forum." Guerine , 198 Ill. 2d at 517, 764 N.E.2d at 59. While we are mindful of this limitation when the plaintiff chooses a forum other than where he resides, " 'the deference to be accorded is only less , as opposed to none .' " (Emphasis in original.) Guerine , 198 Ill. 2d at 518, 764 N.E.2d at 59, quoting Elling v. State Farm Mutual Automobile Insurance Co. , 291 Ill. App. 3d 311, 318, 683 N.E.2d 929, 935 (1997).
Prevailing practice further dictates that the determination of a forum non conveniens motion lies within the sound discretion of the trial court. Glass , 393 Ill. App. 3d at 832, 912 N.E.2d at 766-67, citing Dawdy v. Union Pacific R.R. Co. , 207 Ill. 2d 167, 176-77, 797 N.E.2d 687, 696 (2003). Public and private interest factors favored transfer back to McHenry County, where all treatment occurred, and where bulk of occurrence witnesses for treatment are located, and where Defendant physician resides. Undue weight should not be given to the residence of several damage witnesses in Cook County, as other damages witnesses are in other counties and most key witnesses are in McHenry County.
Premises Liability / Negligence
Urban Landowners Subject to Liability to Persons Using a Public Highway for Physical Harm Resulting from His Failure to Exercise Reasonable Care to Prevent an Unreasonable Risk of Harm Arising from the Condition of Trees on the Land Near the Highway.
Ortiz v. Jesus People, No. 1-09-3255 (November 12, 2010) Cook Co., 4th Div. (O'MARA FROSSARD) Affirmed.
- In this case, the plaintiff, who had stopped on a sidewalk while bicycling on a busy city street on a very windy day, was hit and injured by a falling tree limb which extended over the public sidewalk. The tree was on the defendant's property, but had large branches which extended over the sidewalk. The tree was a Siberian elm, which is a variety which is apparently known to be brittle, and not well-suited to urban use. In affirming a verdict for the Plaintiff for $686,831, the Appellate Court noted: "The general rule set forth in section 363 (natural conditions) of the Restatement (Second) of Torts provides that "a possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land." Restatement (Second) of Torts §363(1), at 258 (1965). The "natural condition of the land" includes "the natural growth of trees and other vegetation upon land not artificially made receptive to them." Restatement (Second) of Torts §363, Comment
b
, at 258 (1965). However, there is an exception to the general rule of nonliability that pertains to a possessor of land "in an urban area" where such possessor is "subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway." Restatement (Second) of Torts §363(2), at 258 (1965)".. Consistent with the verdict, the record reflects that Defendant breached its duty of reasonable care by failing to take reasonable measures to prevent harm from the very large tree limb to those travelling the public sidewalk.
Summary Judgment
Material Issue of Fact as to Criminal Intent Precludes Summary Judgment of Immunity from Criminal Acts
Torf v. Chicago Transit Authority, No. 1-09-1710 (November 12, 2010) 1st Dist.,Cook Co., 6th Div. (McBRIDE)
- In this case, the plaintiff was injured when, as a passenger of a CTA train, she was ordered to evacuate the train, which had been stopped on the tracks, short of the station, while a person on the tracks ahead was threatening suicide. As Plaintiff was trying to lower herself to the tracks, she was pushed by two other passengers who were exiting the train. The complaint alleged that the CTA was liable through its violation of a duty to exercise the highest degree of care as a common carrier for its failure to provide a safe means of exiting the train. The CTA asserted that it was immune from liability under the Metropolitan Transit Authority Act (the Act) (70 ILCS 3605/27 (West 2008), which provides in part: "Neither the Authority, the members of its Board, nor its officers or employees shall be held liable for failure to provide a security or police force or, if a security or police force is provided, for failure to provide adequate police protection or security, failure to prevent the commission of crimes by fellow passengers or other third persons or for the failure to apprehend criminals." 70 ILCS 3605/27 (West 2008)..The trial judge erroneously granted summary judgment in favor of the CTA, holding that the pushing by the other passengers constituted a criminal battery, and that, therefore, the CTA was immune from liability. The appellate court held that there was insufficient evidence to establish the requisite intent of the other passengers to commit the crime of battery upon Plaintiff, and so there was a material issue of fact as to whether the cause of the accident was any criminal act, and that the complaint had not asserted any failure to protect from criminal acts as a basis for liability. (GARCIA and R.E. GORDON, concurring.)
Insurance
Lack of Cooperation as Valid Defense to Coverage Where Insurance Policy Provides for a Duty to Cooperate.
Piser v. State Farm Mutual Automobile Insurance Company, No. 1-09-3379 (November 12, 2010) 1st Dist Cook Co., 5th Div. (TOOMIN) Affirmed.
- In this case, the plaintiff filed a claim with his insurer that his motorcycle, which had been customized for over $60,000, had been stolen. Plaintiff brought claims against his insurer for breach of contract and vexatious and unreasonable delay pursuant to section 155 of the Insurance Code (215 ILCS 5/155 (West 2006). The insurance company moved to dismiss pursuant to section 2-619(a)(9) based on its policy's cooperation clause, relying on its adjustor's affidavit and materials attached thereto requesting production of documentation to which plaintiff never responded. The Court properly granted the insurer's motion to dismiss based upon the policy's cooperation clause, relying on its adjustor's affidavit that the plaintiff had failed to respond to the insurer's request for a statement under oath and failed to provide financial status documents and a credit report authorization, as the insurance company wanted to investigate whether Plaintiff had any financial motive to file a false claim. The insurer presented adequate proof of substantial prejudice by its insured's negligible cooperation and by the insurer being hampered in its defense by the lack of cooperation. The Court held that a breach of the insurance cooperation clause is a valid defense which is an "other affirmative matter" barring a claim per Section 2-619(a)(9) of Code of Civil Procedure. I FITZGERALD SMITH and HOWSE, concurring.)
Requests to Admit/Discovery/Sanctions
Trial Court Abused Its Discretion in Denying 219(b) Sanctions for Failure to Answer Rule 216 Request to Admit in Good Faith. Court Also Erred in Finding That an "Intent to Obstruct" Was Necessary Before Imposing Sanctions.
McGrath v. Botsford, No. 2-09-0235 (November 5, 2010) DuPage Co. Reversed and remanded with directions. 2d Dist.
- In a dispute over the start of a business partnership, the Defendant served Plaintiff with Requests to Admit, which he failed to answer. Sometime later, the trial court granted leave to file late responses, and Plaintiff denied all facts set forth in Requests to Admit. Plaintiff later admitted many of the denied facts in deposition and trial. The trial court ruled in Defendant's favor at conclusion of bench trial. Defendant then moved for fees and costs for responding to the request to admit in bad faith. The trial court stated a need to prove that the denials were made "almost with an attempt to obstruct."
The appellate court held that the trial court abused its discretion by denying Defendant's motion in connection with Plaintiff's bad faith denials of many of the facts his Request to Admit. The appellate court expressly stated that neither Rule 219(b) nor Rule 216 require that an "intent to obstruct" must be shown before reasonable expenses and fees can be awarded under Rule 219 for failure to meet affirmative obligation to respond in good faith to Requests to Admit or to file objection within 28 days. The appellate court also affirmatively stated that the plaintiff's argument that the admission might have effect of requiring the entry of judgment against a party is not "good reason" to deny a Request to Admit. The case was remanded for further hearing by the trial court on the motion for sanctions.
Summary Judgment 1st Dist.
Open and Obvious Defense Defeated by Testimony of Plaintiff and Expert Testimony
Alqadhi v. Standard Parking, Inc., No. 1-08-3554 (November 5, 2010) Cook Co., 6th Div. (CAHILL) Reversed and remanded.
- Plaintiff sued for injuries caused by her tripping on a 3/4-inch rise in concrete of a wheelchair-accessible ramp near the exit to her regular parking garage. Plaintiff testified that although she had parked at the lot before, she usually parked on a different floor, and that conditions at the time of her accident were dark and she could not see the change in elevation. The trial court ruled that the defect was open and obvious, and granted summary judgment against Plaintiff, disregarding the facts that Plaintiff's expert had testified that, although the ramp was imprinted with a cross-hatched diamond pattern designed to warn pedestrians and that the imprint complied with the Americans with Disabilities Act of 1990 (42 U.S.C. §12101
et seq.
(2000), and the expert's finding that, "The lack of contrast between the surface of the parking level and the curb ramp disguised the abrupt change in vertical elevation between the parking level and those surfaces, and the abrupt change in vertical elevation as marked by Plaintiff on the proffered photograph at her deposition was not obvious and his opinion that the "application of contrast paint was essential. Lastly, he testified that every Federal and State accessibility standard, every National consensus, accessibility standard, building or property maintenance standard *** supports the assertion that an abrupt vertical change in the level of adjacent horizontal surfaces in excess of one-quarter inch is a dangerous tripping hazard." The Appellate court discussed the open and obvious doctrine:
"Our supreme court has held that the doctrine implicates the first two factors of the traditional duty analysis: likelihood of injury and foreseeability. Sollami v. Eaton, 201 Ill. 2d 1, 15, 17, 772 N.E.2d 215 (2002), citing Bucheleres, 171 Ill. 2d at 456. Where a condition is deemed open and obvious, the likelihood of injury is generally considered slight because it is assumed that people encountering potentially dangerous conditions that are open and obvious will appreciate and avoid the risks. Bucheleres, 171 Ill. 2d at 456. Injuries caused by open and obvious conditions are unlikely to be reasonably foreseeable as people will generally appreciate the risks associated with such conditions and exercise care for their own safety. Bucheleres, 171 Ill. 2d at 456-57. A condition is open and obvious where a reasonable person in the plaintiff's position exercising ordinary perception, intelligence and judgment would recognize both the condition and the risk involved. Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 435, 566 N.E.2d 239 (1990); Green v. Jewel Food Stores, Inc., 343 Ill. App. 3d 830, 832, 799 N.E.2d 740 (2003); see also Sandoval v. City of Chicago, 357 Ill. App. 3d 1023, 1028, 830 N.E.2d 722 (2005) (whether a condition is open and obvious "depends not on plaintiff's subjective knowledge but, rather, on the objective knowledge of a reasonable person confronted with the same condition")."
The appellate court reversed the summary judgment, finding that Plaintiff's testimony, raised a dispute about the physical nature of the condition. The evidence of impaired visibility concealed the otherwise minor defect, and the testimony of Plaintiff and her expert was sufficient to remove case from open and obvious and de minimus rule.
Office Location
