Illinois Tort Law Update 2014 Case Summaries

Transcription

1 Illinois Tort Law Update 2014 Case Summaries Peoria County Bar Association CLE Spalding Pastoral Center February 7, 2015 Jeffrey R. Bach 110 SW Jefferson, Suite 410 Peoria, Illinois T: F:

2 TABLE OF CONTENTS PART I - SUBSTANTIVE LAW I. Damages 3 II. Governmental Liability 5 III. Insurance 12 IV. Malpractice 20 V. Negligence 26 VI. Product Liability 38 VII. Miscellaneous Actions 39 PART II PROCEDURAL LAW I. General Procedure 41 II. Appeals 42 III. Evidence 43 IV. Limitations 49 V. Pleadings 52 VI. Trial Issues 52 VII. Miscellaneous 54 Copyright All rights reserved.

3 SUBSTANTIVE LAW I. DAMAGES a. Goldfine v. Barack, Ferrazzano, Kirschbaum, & Perlman, et. al., 2014 IL : Plaintiffs alleged that the Defendants committed legal malpractice when they failed to preserve a cause of action under the Illinois Securities Law against an investment firm. Plaintiffs further alleged that the lawyers failed to file a rescission claim in a timely fashion causing it to be barred under the statute of limitations. The main issue in the appeal before the Illinois Supreme Court was section 13(A) of the Illinois Securities Law, 815 ILCS 5/13(A), which provides for interest of 10% if damages are proven. Defendants argued that the imposition of the 10% interest was unfair and that Section 13(A) did not apply to lawyers in legal malpractice actions. The Supreme Court rejected that argument, explaining, that the damage award in a legal malpractice action compensates plaintiffs for the actual amount plaintiffs would have recovered had they been successful in the Illinois Securities Law claim. The Supreme Court also rejected an argument that Section 13(A) damages were punitive in nature because they were statutory damages. The court wrote that Section 13(A) is a civil remedy designed to compensate investors for their lost return and to make the investor whole. The case was remanded to the trial court to allow it to recalculate the proper amount of interest. In closing, the court noted that the client is entitled to be placed in the same position that he would have been in had the lawyer met the standard of care. Here, the breach of the standard of care led to a large damage award. b. Rogers v. Imeri, 2013 IL : As you may recall from last year, this matter involved the application of the statutory dram shop cap to a plaintiff s recovery. Plaintiff s son sustained fatal injuries in an automobile accident with an intoxicated driver. Plaintiff first sued the driver and recovered approximately $26,000.00; Plaintiff then proceeded against its own automobile insurance under the underinsured motorist provision and recovered an additional $80, At this point, Plaintiff s total recovery was $106, and the dram shop cap at the time was $130, in a fatal accident. At the time of the accident, the tavern where the driver was allegedly overserved had dram shop insurance, but the insurance company was subsequently 3

4 declared insolvent and liquidated. The Illinois Insurance Guaranty Fund ( Fund ) then took over the defense of the litigation. In the trial court, the Fund filed a motion arguing that the amount of money the Plaintiffs had already recovered should be applied to the statutory dram shop cap of $130,000.00, reducing the Funds liability to approximately $24, Plaintiff filed a motion arguing that the jury should be allowed to reach a verdict before any setoffs were applied. The Appellate Court held that if it adopted the Fund s reasoning it would infringe upon the role of the jury as the finder of fact, and determined that the Dram Shop Act (235 ILCS 5/6-21) requires the following procedure where setoffs are involved: First, the jury determines the total damages sustained. Next, the jury s award is then offset by other recoveries. Finally, if the remainder is above the statutory limit, it is reduced to that limit. On appeal, the Supreme Court reversed the Appellate Court s findings and determined that the proper way to handle this was to offset the other recoveries against the statutory maximum under the Dram Shop Act and not against the potential jury verdict. c. Williams v. Rosner, 2014 Ill. App. (1 st ) : Plaintiffs were husband and wife who each carried a sickle cell trait. Plaintiffs subsequently had a son who was born with sickle cell disease. The wife decided to undergo a tubal ligation to prevent further pregnancies. This was performed by Defendant doctor in In 2009, Plaintiff learned she was pregnant. She subsequently gave birth to a daughter who also carried the sickle cell trait. After the birth of the daughter, Plaintiffs filed a complaint against Defendant and his clinic alleging medical negligence and wrongful pregnancy. They also asked for what they termed extraordinary expenses related to raising their daughter with sickle cell disease. Defendants filed a Motion to Dismiss arguing that Plaintiffs were only entitled to damages for the costs of the unsuccessful operation, pain and suffering, any medical complications caused by the pregnancy, the costs of the child s delivery, lost wages and loss of consortium under a wrongful pregnancy theory. The Circuit Court denied Defendant s Motion to Dismiss, but certified the question of whether Plaintiffs could recover extraordinary expenses to the Appellate Court. The Appellate Court held that Plaintiffs could recover extraordinary expenses because, where the parents desire to avoid contraception has been communicated to the doctor performing the procedure, it was a reasonably foreseeable consequence of negligently performing a sterilization procedure. 4

5 II. GOVERNMENTAL LIABILITY a. Betts v. City of Chicago, 2013 Ill. App. (1st) : Plaintiff brought a complaint for negligence against Defendant police officer for backing into her vehicle. At the time of the accident, it was undisputed that Defendant was operating his vehicle as an agent, servant, and employee of the Defendant. Defendants filed a motion to dismiss pursuant to 2-619(a)(9) of the Code of Civil Procedure. 735 ILCS 5/2-619(a)(9). The motion to dismiss was based on a provision of the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/2-202, which states that a public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct. Defendants attached the affidavit of the officer whose car hit Plaintiff, in which he stated that he was on duty with the Chicago Police Department and acted within his scope of duties at the time of the accident. Plaintiff filed a response to the motion to dismiss, contending that at the time of the accident the officer had not yet begun to execute or enforce any law, but was merely on his way to take over for the team engaged in an investigation, and thus Defendants were not entitled to immunity under the Tort Immunity Act. The trial court granted the Defendant s motion to dismiss. On appeal, the Appellate Court found that it was premature to grant a motion to dismiss when there was a factual dispute as to whether or the officer was executing or enforcing the law at the time of the collision. b. Robles v. City of Chicago, 2014 Ill. App. (1 st ) : Decedent s estate brought an action against Defendant alleging that a police officer committed willful and wanton misconduct when he shot and killed decedent. Defendant moved for summary judgment on the basis that the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/2-202, prevented the estate from recovering damages because the officer was enforcing the law. The Trial Court granted the motion for summary judgment, finding that even if willful and wanton conduct was committed, it made no difference because Section of the Tort Immunity Act precluded liability. The Appellate Court reversed and held that whether a person is guilty of willful and wanton conduct within the meaning of the Tort Immunity Act is a fact question for a jury and should rarely be ruled on as a matter of law. It also held that under Section 2/202 of the Act, the estate could recover damages from the 5

6 Defendant if its officers acted willfully and wantonly when they shot the decedent in the course of enforcing the law. c. Abrams v. Oak Lawn-Hometown Middle School, 2014 Ill. App. (1 st ) : Plaintiff was a student who was injured while on school property after hours to attend a National Junior Honors Society induction. As Plaintiff was lining up in the cafetorium, a combined auditorium/cafeteria space, she fell and was injured. Plaintiff filed a complaint against the school and the school district, as she attributed her accident to a dark, non-illuminated, elevated unmarked and uneven surface. Evidence showed that the room was used both as a cafeteria and as an auditorium. It was also regularly used for practices and performances of the school band, the chorus and drama programs. Evidence further showed that the cafetorium s tiered floor made the room unsuitable for athletics and that no sporting events had ever been held in the room. The trial court sent the Appellate Court a certified question which read as follows: Where an injury occurs on an area of public property which has both recreational and non-recreational purposes, should Section immunity apply when said area is located within a public school where the primary character of the area and overall facility is educational and non-recreational? (745 ILCS 10/3-106). The Appellate Court noted that the character and nature of the property as a whole determines whether the section of the Local Governmental and Governmental Employees Tort Immunity Act applies which immunizes public entities from liability for negligence arising on public property used for recreational purposes. They specifically rejected a test which would determine what the injured party s use of the property was or her activity was at the time of the injury. The Appellate Court also noted that courts are to consider whether the property has been used for recreation in the past or whether recreation has been encouraged there. In this case, the Appellate Court found that the middle school s cafetorium was not intended or permitted to be used for recreational purposes and thus the section of the Tort Immunity Act immunizing public entities from liability for negligence arising on public property intended or permitted to be used for recreational purposes did not apply to bar Plaintiff s clam. d. Abruzzo v. City of Park Ridge, 2013 Ill. App. (1 st ) : The estate of a patient who died from a drug overdose brought a wrongful death action against the City arising from the city s response to request for emergency services. The decedent s father called the paramedics after the decedent was non-responsive. 6

7 Further, when father called the paramedics, decedent looked blue and was gasping for breath. By the time the paramedics arrived, the decedent was able to sit up and tell the paramedics and his father that it s these pills that I m taking, they make me tired. The paramedics failed to follow their standard operating procedure for checking on a patient with the decedent s condition. The matter was tried before a jury, and the jury returned a verdict in favor of the estate. On appeal, the City argued that the paramedics did not act willfully and wantonly in responding to the decedent s emergency, which is a requirement to remove immunity from a city under the Emergency Medical Services Act (210 ILCS 50/1). The Appellate Court disagreed, finding that the question of whether or not the City was wanton and willful was a fact question properly left to the jury. It also affirmed the damages award. e. Brooks v. McLean County Unit District No. 5, 2014 Ill. App. (4 th ) : Plaintiff was a special administrator of the estate of a student who died while playing a game called Body Shots. This game involved students voluntarily punching each other with closed fists as hard as they could in the abdomen, chest, and ribs. After participating in this game, decedent collapsed in the hallway and later died. The special administrator filed a three-count complaint seeking medical expenses under the Family Expense Act, 750 ILCS 65/15, recovery under the Illinois Wrongful Death Act, 740 ILCS 180/1, and damages pursuant to the Illinois Survival Act, 755 ILCS 5/27-6. The allegations included that the school district administrators and teachers were aware that students played the game, students had been injured playing the game, and that the administrators failed to control the behavior of the students and punish known dangerous behavior to prevent injury. Plaintiff further alleged willful and wanton conduct on the part of the school district for failing to monitor the bathrooms, educate students, and allowing the students to play the game. Defendant filed a combined motion to dismiss, alleging that the special administrator did not have authority to bring any claim other than that for wrongful death without opening a probate estate, that the school district did not have a duty to protect individual students from tortious acts of others under the public-duty rule, that the special administrator failed to allege a special-duty exception to the public-duty rule, and assuming that the school district owed a duty, the complaint was still barred by the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/4-102, 2-201, 2-109). The trial court granted the motion to dismiss. 7

8 The Appellate Court held that the administrator lacked the standing to bring claims outside of the Wrongful Death Statute. It further held that the public-duty rule did not apply, and that the school district owed a duty to supervise the students. However, the Tort Immunity Act precluded recovery. It went on to find that the school district did not engage in willful and wanton conduct so as to defeat the liability bar of the Tort Immunity Act. The court stated that the publicduty rule, which states that a governmental entity and its employees owe no duty of care to individual members of the general public to provide governmental services, did not apply in this case; rather, traditional duty analysis applied. The court further found that the school district did not engage in willful and wanton conduct because Plaintiff did not plead facts establishing a course of action showing a deliberate intention by the district to harm the decedent, nor did Plaintiff s complaint allege sufficient facts establishing utter indifference to or conscious disregard for the decedent s safety. f. Richter v. College of DuPage, 2013 Ill. App (2 nd ) : Plaintiff was injured when she tripped on a raised portion of the sidewalk near a revolving door on campus property, causing her to fall forward against the door. Deposition testimony showed that the area where Plaintiff fell was approximately 1 to 1 ½ inches higher than the surrounding area and was painted yellow, indicating that there was a raise. Evidence showed that the maintenance person employed by Defendant had discretion to decide which repairs were made. Defendant filed an answer and raised three affirmative defenses to Plaintiff s Complaint. First, Defendant argued that the height differential between the slabs of concrete and the sidewalk was de minims. Second, Defendant argued that it was immune from liability under Section of the Local Governmental and Governmental Employees Tort Immunity Act because it maintained its premises and did not have any actual or constructive knowledge that the sidewalk was unreasonably safe. Third, Defendant argued that the risk was open and obvious to the Plaintiff. Defendant later moved for summary judgment on the basis that it was entitled to discretionary immunity under Sections ( [a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable ) and ( [a] public employee is not liable for a discretionary act ) of the Tort Immunity Act. 745 ILCS 10/2-109, 10/2-201, 10/ The Trial Court granted the motion, as it found that the supervisor of maintenance made a discretionary decision as to how to repair the sidewalk. In distinguishing between ministerial and discretionary acts, the trial court noted that there was no law stating that a sidewalk deviation that was 1 inch or above must be repaired. 8

9 The Appellate Court found that the Defendant s decision not to repair the sidewalk was made pursuant to a policy such that it was entitled to immunity because the college had adopted a wait and see approach to repairing deviations in the sidewalk and made each decision on a case by case basis given the uncertainties of the winter. The Appellate Court also found that the repair of the uneven sidewalk was a discretionary decision because the supervisor of maintenance made the determination of whether to repair a sidewalk slab, and there was no set of rules or regulations that he was bound to follow. It also noted, that in differentiating the concept of ministerial and discretionary, discretionary acts involve the exercise of personal deliberation in judgment in deciding whether to perform a particular act or how and in what manner that act should be performed, whereas ministerial acts are those which a person performs on a given state of facts and in a prescribed manner, in obedience to the mandate of legal authority, and without reference to the official discretion as to the propriety of the act. g. Harden v. City of Chicago, 2013 Ill. App. (1 st ) : Plaintiff sued Defendant after she was injured when her foot got caught on a metal plate as she was crossing the street. The evidence tended to show during depositions that Plaintiff was crossing the street slightly outside of the marked cross-walk and there was a small amount of snow on the ground at the time the accident occurred. As Plaintiff was about to step onto the curb and continue, her foot became caught in the metal plate and she was injured. Defendant filed a motion for summary judgment, alleging that by crossing outside of the cross-walk, the Plaintiff was not an intended user of the property. The trial court granted the Defendant s motion. The Appellate Court noted that there was only a limited exception to the general rule that municipalities do not owe a duty of reasonable care to pedestrians who attempt to cross the street outside the cross-walk, and that exception is for those who are entering a vehicle. The court was not persuaded by Plaintiff s contention that she was not able to see where the cross-walk began and ended because there was snow on the ground. h. Suchy v. City of Geneva, 2014 Ill. App. (2d) : Decedent s estate brought wrongful death and survival actions against the Defendant city. Decedent was in a city park that contained a river. Decedent jumped in to save a child from drowning, and in the process sustained injuries that eventually led to his death. Plaintiff alleged that city was under the obligation to warn of the dangers of the 9

10 river, or in the alternative that this situation fell into the deliberate encounter exception, providing that harm may be foreseeable when a land owner has reason to expect that the invitee would proceed to encounter the obvious danger because doing so would outweigh the apparent risk. The trial court dismissed Plaintiff s complaints, finding that Defendants had no duty to warn or otherwise protect the decedent against the danger the river presented because it was open and obvious. The Appellate Court agreed with the trial court that the danger was open and obvious, and analyzed whether the deliberate encounter exception to the open and obvious rule would apply. The Appellate Court found that for the deliberate encounter exception to apply, a legally recognized compulsion or impetus must be present; otherwise, the deliberate encounter exception would not apply. In this case, since there is no legal duty to rescue, the court found that there was no impetus or compulsion, thus the trial court s ruling was upheld. i. O Toole v. Chicago Zoological Association, 2014 Ill. App. (1 st ) : Plaintiff alleged she was injured while visiting the Brookfield Zoo, which Defendant owned and operated. She filed her complaint for personal injuries more than one year but less than two years after her injury. Defendant moved to dismiss the claim pursuant to Section of the Code of Civil Procedure, arguing that the Local Governmental and Governmental Employees Tort Immunity Act one-year statute of limitations applied, 745 ILCS 10/8-101(a), because Defendant was a not-for-profit organization or organized for the purpose of conducting public business. In support of its argument that it conducted public business, Defendant further alleged that it was organized for the purpose of maintaining the zoo and the land owned by the Forest Preserve District of Cook County ( District ) and pursued an activity that benefited the entire community without limitation. Defendant also argued that an agreement between the Defendant and the District in 1986 gave the District control over Defendant s operation and maintenance of the zoo. In response, Plaintiff disputed that the Defendant constituted a local public entity to which the Tort Immunity Act s one year statute of limitations applied because Defendant did not conduct public business. Plaintiff relied on Defendant s responses to Plaintiff s Requests to Admit Facts, specifically that Defendant admitted that it was not a department of any government and was not created by a government entity but it did not operate entirely separate from the District, which reviewed Defendant s annual budget. Plaintiff also presented evidence that although Defendant s Board of Trustees had a role in development of certain unidentified polices pertaining to the Zoo s operation, over 90% of Defendant s Board of Trustees and governing members 10

11 were neither employees or elected officials of the District. Plaintiff further presented evidence that the Defendant received less than 50% of its revenue from tax funds raised by the District. The trial court held that the Defendant was a public entity for the purposes of determining the statute of limitations and dismissed the case. On appeal, the Appellate Court held that the Defendant did not conduct public business because the contract between the zoo and the District gave the Zoological Society the entire control and management of the zoo, including control over daily operations, maintenance of zoo buildings and collections, over 90% of the Zoological Society s Board of Trustees and governing members were neither employees nor elected officials of the District. It further found that zoo employees were not entitled to a state pension or state workers compensation. For these reasons, it reversed the trial court and held that the two-year statute of limitations for personal injury applied in this case. j. Payne v. City of Chicago, 2014 Ill. App. (1 st ) : Police responded to a call for assistance by Plaintiff s relatives because Plaintiff was high on crack cocaine, suffering hallucinations, physically swinging around him, had broken furniture and a window, and was injured and bleeding. When the police arrived, a responding sergeant used a taser to subdue Plaintiff. Plaintiff then either fell or jumped out of the second floor window and became a paraplegic as a result of the fall. Plaintiff filed a complaint alleging that the police committed willful and wanton conduct in the execution or enforcement of the law. Under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/2-202, there is an exception that allows an individual to sue governmental entities for willful and wanton conduct. Defendant claimed that instead the police were providing protection or a service pursuant to 745 ILCS 10/4-102, which provides absolute immunity. The trial court agreed and ruled that the police were providing a service. The Appellate Court affirmed that the police were providing a service and that absolute immunity applied on the basis that they were not engaged in the execution or enforcement of any law at the time of the incident. 11

12 III. INSURANCE a. Bridgeview Healthcare Center Ltd. v. State Farm Fire and Casualty Company, 2014 IL : Plaintiff was sued by the recipients of unwanted facsimiles under the Telephone Consumer Protection Act (47 U.S.C. 227). Plaintiff had a policy of general liability insurance with Defendant, but there was a dispute as to whether Illinois or Indiana law would control in this matter. The records showed that Indiana law might conflict with Illinois law on the basis of two unreported federal decisions from Indiana which predicted how the Indiana Supreme Court would rule. Parties filed cross motions for summary judgment on the matter of which jurisdiction governed. The Circuit Court granted Plaintiff s motion for partial summary judgment, finding that Pekin Insurance Co. v. Xdata Solutions Inc., 2011 Ill. App. (1 st ) , 354 Ill. Dec. 654, 58 N.E. 2d 397 (2011) controlled. In Pekin Insurance, the First District Appellate Court held that a federal district court decision which merely predicts what state law would be does not in itself constitute state law and further, when there is not state case law in question there can be no conflict. The Appellate Court reversed, opting not to follow the Pekin Insurance decision. It found that the judgment of the federal district court did constitute state law. The Supreme Court reinstated the circuit court judgment finding that the party seeking the choice of law determination bears the burden of demonstrating that a conflict does exist. It also held that Federal District Court decisions which predicted a conflict of law could not trigger a choice of law analysis, overruling Sterling Finance Management, L.P. v. UBS PaineWebber Inc., 336 Ill. App. 3d 442, 270 Il. Dec. 336, 782 N.E.2d 895, which held that a choice of law determination was required when the movant demonstrated a potential conflict between state laws. b. American Access Casualty Company v. Ana Reyes, 2013 IL : Defendant motorist obtained a policy of liability insurance from the Plaintiff and was subsequently involved in an automobile accident. In the insurance policy, the Defendant was identified as driver number one but where the driver s license number was to be included; the policy stated TITLE HOLDER EXCLUDE. One of the Defendant s friends was listed as driver number two and identified as the primary driver. On the Declarations sheet, the Defendant was identified as the named insured and listed as an operator, but the notation EXCLUDED appeared next to the Defendant s name. Thus, the Defendant was the named insured but also an excluded driver. 12

13 Plaintiff insurance company filed a declaratory judgment action stating that it did not owe coverage to the Defendant. The trial court granted the Plaintiff s request for declaratory judgment. On appeal, the Appellate Court reversed and remanded, holding that a blanket exclusion in an insurance policy, which precludes all liability coverage for the only named insured, violated public policy. The Supreme Court accepted the appeal and used the Illinois Safety and Family Financial Responsibility Law, 625 ILCS 5/7-601(a), to determine if the language of the insurance policy violated public policy. The Court noted that the Act requires liability insurance coverage for all motor vehicles and that it mandates that a liability policy shall insure the person named therein and any other person using or responsible for the use of such motor vehicle or vehicles with the express or implied permission of the insured. The Court found that the principal purpose of the Act s requirement that every motorist have liability insurance is to protect the public by securing payment of damages. The Court noted that the rule is that when liability coverage is mandated by statute, a contractual provision in an insurance policy which conflicts with the statute will be deemed void. The Court affirmed the judgment of the Appellate Court, finding that exclusion of named drivers for motor vehicle liability insurance policy coverage is permitted, but the exclusion of a vehicle owner who is also the only named insured is a violation of public policy as it conflicts with the plain language of the Act. Justice Kilbride filed a dissent, arguing that sole named insureds should be allowed to exclude themselves from liability coverage as drivers, while still enabling themselves to obtain coverage on permissive drivers of their vehicles. He believed that this would allow virtually all car owners to register and license their vehicles by complying with mandatory insurance provisions. c. Interstate Bankers Casualty Company v. Hernandez, 2013 Ill. App. (1 st ) : Automobile accident case. Plaintiff sustained property damage to his vehicle and turned in a claim to his own insurance. Subsequently, Plaintiff and his insurance company filed suit against Defendant for the property damage. Defendants filed a motion to dismiss pursuant to of the Illinois Code for Civil Procedure, arguing that the claim should be dismissed because it is barred by Section (d) of the Illinois Insurance Code, 215 ILCS 5/143.24(d), which states that all claims for physical damage subrogation between insurers where the amount in controversy is less than $2, must be arbitrated. Plaintiff filed a 13

14 response to the motion, arguing that he had a constitutional right to a jury trial and that this section of the insurance code violated his constitutional rights. The trial court granted the motion to dismiss. The Appellate Court reversed the trial court s decision. The Appellate Court noted that the Illinois State Constitution was passed in 1970 and Article I, Section 13 contains a provision that states the right of trial by jury as heretofore enjoyed shall remain inviolate. The court found that since subrogation was a claim for which jury trial was available, that this part of the insurance code was unconstitutional because it took away the right for a jury trial. d. Country Mutual Insurance Co. v. Hilltop View, LLC., 2013 Ill. App. (4 th ) : This was a declaratory judgment action to determine if a hog farm had coverage under its umbrella policy when its neighbors filed a nuisance and negligence lawsuit predicated on the alleged odors associated with the operation of the hog farm. The umbrella policy that was in effect at the time the complaint was filed contained an exclusion for pollution. Each party filed a motion for summary judgment in the trial court and the court granted the insureds motion, finding that there was coverage. The Appellate Court affirmed on the basis that the pollution exclusion clause did not bar coverage for the lawsuit because the hogs, their manure, and smells associated with them did not constitute traditional environmental pollution. The matter was remanded to the trial court to determine if the other coverage defenses that the insurance company asserted were valid. e. American Access Casualty Co. v. Griffin, 2014 Ill. App. (1 st ) : Defendant was Plaintiff s insured who was involved in an automobile accident while driving a car that was insured through her mother. Plaintiff had issued a non-owners insurance policy to Defendant, providing that the automobile that Defendant drove was not regularly used by her and was not covered under the insurance policy. Plaintiff sought a declaration of rights, and attempted to serve Defendant and her mother, but was initially unable to secure service. Subsequently, the Secretary of State was appointed to accept service for Defendant. Plaintiff filed a motion for summary judgment based on conversations held with Defendant after the accident, alleging that Defendant was the primary driver of the vehicle that was involved in the accident for which the third-party Defendants sought damages. The trial court granted Plaintiff s motion for summary judgment, finding that there was no genuine issue of material fact. The Appellate Court held that there was not enough information to enter summary judgment, since genuine issues of material fact existed as to whether Defendant had to ask her 14

15 mother for permission to use the car, the nature of the permission that was granted, whether Defendant was the regular or primary driver of the car, and whether any policy exclusions applied under the circumstances. f. Justin Time Transportation, LLC. v. Harco National Insurance Company, 2014 Ill. App. (5 th ) : Auto accident case where the decedent was struck by a tractor-trailer leased to Plaintiff by leasing company. Plaintiff and leasing company each had primary insurance through Netherlands Insurance Company. The Defendant in this case, HARCO, also had a policy with Plaintiff providing $1 million in liability coverage. The policy had an exception which indicated that for any leased vehicle, the insurance would only apply if the party s primary insurance was uncollectible. Plaintiff and leasing company filed a declaratory judgment asking the court to find that this insurance was primary. Parties filed cross motions for summary judgment. The trial court granted Plaintiff s motion for summary judgment, finding that the endorsement contained ambiguous language rendering the exclusion of coverage void, and finding that Defendant waived its right to raise the endorsement because it did not promptly cite to the endorsement in response to claims made against the policy. The Appellate Court held that the policy provided contingency coverage and that the endorsement was not ambiguous. It further held that the insured did not waive its right to contingent coverage by failing to raise the endorsement, finding that coverage could not be created by a waiver, reversing the trial court. g. Kim v. State Farm Mutual Automobile Insurance Co., 2014 Ill. App. (1st) : Plaintiff was the estate of the decedent who was struck and killed while installing traffic counting devices for his employer. At the time decedent was killed, he had parked his automobile on the side of the road and was in the road installing the devices. His employer had an insurance policy with State Farm which provide up to $1,000, in underinsured motorist benefits. Plaintiff s estate first sued the driver that struck Plaintiff, and recovered full policy limits from him. It then attempted to assert an underinsured motorist claim against State Farm, which denied the claim. The trial court granted summary judgment in favor of Plaintiff, finding that decedent was an insured under the policy because he was using the vehicle with his employer s permission and within the scope of his employment at the time of the accident. State farm appealed. The Appellate Court held that Plaintiff was using his employer s vehicle, which was parked on the shoulder when he was struck by a car in the lane of traffic, and thus he was entitled to underinsured motorist benefits under his employer s policy. 15

16 h. O Connor v. Country Mutual Insurance Company, 2013 Ill. App. (3 rd ) : Plaintiff sued her insurance company based on the insurance company s conduct during an under insured motorist claim. Plaintiff was injured in an automobile accident and recovered $105, in damages from the tortfeasor s insurers. Plaintiff subsequently made a claim against her underinsured motorist coverage and offered to settle the claim for approximately $100,000.00, her insurance company offered her $40, The case proceeded to arbitration and the arbitrator awarded Plaintiff a net payment of $100, The insurance company promptly paid the arbitration award and Plaintiff deposited the check. She then filed a two-count complaint seeking damages under the Illinois Insurance Code, 215 ILCS 5/155. Specifically, Plaintiff alleged that since the arbitration award was twice more than what her insurance company was willing to offer, it raised the inference that Defendant failed and refused to evaluate and pay Plaintiff s claim. The case proceeded to trial and the trial court held that Plaintiff failed to prove that Defendant acted vexatiously and unreasonably in settling the claim. The Appellate Court agreed and noted that the key question in determining whether an insurer s failure to pay a claim was vexatious and unreasonable is whether the insurer had a bona fide defense to the insured s claim. It held that in this case, Defendant engaged in good faith settlement negotiations and did not delay the arbitration process. i. Powell v. American Service Insurance Company, 2014 Ill. App. (1 st ) : Plaintiff allegedly sustained injuries in an automobile accident involving the Defendant s insured. Insured had policy limits of $20, per person. Prior to this matter proceeding to trial, Plaintiff s counsel made a demand for settlement for the $20, policy limits. Defendant insurance company rejected the settlement offer and the case proceeded to trial. At trial, the jury awarded Plaintiff a net verdict of $47,000.00, plus costs. Defendant motorist assigned her rights under the policy to Plaintiff who then filed a claim for bad faith against the Defendant insurance company. The facts of the accident were in some dispute, and at trial Plaintiff was found forty percent at fault for the accident. Defendant filed a motion to dismiss alleging that Plaintiff failed to plead sufficient facts to show a reasonable probability that Defendant s insured was at least fifty-percent at fault and that Plaintiff failed to plead sufficient facts demonstrating a reasonable probability of damages in excess of the policy limits. 16

17 The circuit court concluded that Plaintiff failed to plead facts showing a reasonable probability of recovery in excess of the policy limits and dismissed the claim. On appeal, the Appellate Court noted that to sustain a cause of action for bad faith against the liability insurer, Plaintiff must allege: 1) duty to settle arose; 2) insurer breached the duty; and 3) the breach caused injury to the insured. The Appellate Court held that Plaintiff failed to plead facts to establish reasonable probability of liability against the insured because the facts of the accident could lead reasonable people to differ as to Plaintiff s or Defendant s liability. j. Allstate Property and Casualty Insurance Co. v. Trujillo, 2014 Ill. App. (1 st ) : Defendant was riding as a passenger in a vehicle driven by Plaintiff s insured when the vehicle was involved in an automobile accident and Defendant was injured. Defendant subsequently settled her claim against the driver of the other vehicle for policy limits of $20, and settled her claim against the driver of the vehicle in which she was riding for policy limits of $100, Defendant then tried to assert a claim for underinsured motorist benefits in the amount of $80,000.00, representing the difference between Plaintiff s insured s policy limits and the policy limits of the other driver involved in the accident. Plaintiff insurance company filed a motion for judgment on the pleadings pursuant to Section 2-615(e) of the Code of Civil Procedure, arguing that the endorsement contained in the policy expressly reduced its underinsured motorist exposure by any payment made under other provisions of the policy. Defendant subsequently filed her own motion for judgment on the pleadings, arguing that Plaintiff s interpretation of its policy was contrary to public policy. The trial Court ruled in favor of the insurance company. The Appellate Court held that the insurance company was not entitled to a setoff except to the extent necessary to prevent a double recovery of the amounts it paid to Defendant under the policy s bodily injury provision. The Appellate Court reasoned that the purpose of underinsured motorist coverage was to place the injured party in the same position he or she would be in if the other party had proper insurance coverage, so it held that Plaintiff was not entitled to set off any amounts paid to the injured party pursuant to the other terms of its policy. In this case, because the driver who caused the collision had policy limits of $20, and its own insured had policy limits of $100,000.00, then the injured party was limited to a recovery of $80, under the underinsured motorist benefits provision of the policy. 17

18 k. Direct Auto Insurance Co. v. Beltran, 2013 Ill. App. (1 st ) : Declaratory judgment entered as a result of an automobile accident. The driver who was allegedly at fault was driving his sister s vehicle at the time of the accident, but was not listed as another driver on the insurance policy even though he lived in the same household as her. That driver s insurance company alleged that the sister s failure to name him as an additional insured was a material misrepresentation that voided the policy, thus there was no coverage for this accident. The policy contained a fraud and misrepresentation provision that denied coverage in the event that any representation contained in the application was false, misleading, or materially affected the acceptance or rating of risk by the company. At the sister s deposition, she testified that she told the individual at the dealership who obtained insurance for her that her brother lived in the house with her, but that the individual at the dealership told her that s okay. The not-at-fault driver s insurance company filed a motion for summary judgment, which the trial court granted, finding that any false representations made by the sister were not material. The Appellate Court affirmed. l. Gaudina v. State Farm Mutual Automobile Insurance Co., 2014 Ill. App. (1 st ) : Plaintiff was injured in an automobile accident and attempted to assert an underinsured motorist claim against his wife s insurance policy. Insurance company denied coverage on the grounds that Plaintiff was not insured because at the time of the accident he was not residing primarily with his wife. One of the definitions of the policy was spouse means your husband or wife who resides primarily with you. At the time of the accident, it was undisputed that wife had asked Plaintiff to move out of the house and husband was renting a room in a townhouse. The evidence showed that Plaintiff left property at the named insured s house, visited once or twice per week, and stated an intention to return there. The trial court granted Defendant insurance company s motion for summary judgment, and the Appellate Court upheld on the basis that the terms of the policy were not ambiguous. m. Rosalind Franklin University of Medicine and Science v. Lexington Insurance Co., 2014 Ill. App. (1 st ) : Plaintiff hospital was sued in a different suit by individuals who were part of a breast cancer vaccine development trial. The hospital reached settlement in that suit, and this case involved the hospital s three insurance policies, and which, if any, provided coverage for the hospital in the suit brought by the breast cancer development plaintiffs. The three policies were as follows: a primary policy which provided coverage for malpractice and other actions involving the treatment of patients, an excess policy which 18

19 provided coverage along the same terms, and an officers and director s policy which covered wrongful acts of the corporation s officers and directors. The hospital alleged that the primary and excess insurer failed to provide proper notice that it was defending the previous case under a reservation of rights. The trial court determined that the primary and excess insurer appointed counsel to defend the hospital in the prior suit and that the insurance companies failure to inform the hospital that it was defending under reservation of rights caused the insurance company to forfeit the defense that it was defending the suit under a reservation of rights. The Appellate Court noted that the primary question in determining whether an insurer is estopped from asserting defense of non-coverage is whether the insured suffered prejudice based on the insurer s actions. In this case, it found that it did not. This case also discussed the distinction between damages that were allocated in the first trial, specifically whether they were awarded for medical malpractice or for other reasons. n. Huizenga v. Auto Owners Insurance, 2014 Ill. App. (3d) : Plaintiffs were injured in an automobile accident. Their damages exceeded $500,000. At the time of the accident, Plaintiffs were beneficiaries of an underlying automobile insurance policy with coverage for bodily injury and uninsured and underinsured motorist of $500,000 per person and per occurrence. They also owned an umbrella policy with limits that were higher than their auto policy. The individual who caused Plaintiff s injuries was underinsured, so Plaintiffs asserted they were entitled to use their umbrella policy as additional underinsured/uninsured motorist coverage. The policy contained language which stated we do not cover personal injury to you or a relative. We will cover such injury to the extent that insurance is provided by an underlying policy. The insurance company filed a motion for summary judgment citing this exclusion, which was granted in the trial court. The Appellate Court noted that no Illinois court had been called upon to render an opinion regarding this language, but that the Wisconsin Supreme Court had indicated in a case with identical language that the umbrella policy did not afford first party motorist coverage. The Appellate Court held that the language in the policy was unambiguous and that the finding that the insureds were not allowed to make a claim under their umbrella policy was consistent with Illinois law and public policy. 19

20 o. Mei Pang v. Farmer s Insurance Group, 2014 Ill. App. (1 st ) : Plaintiff was riding in a vehicle driven by the insured when a collision occurred with another vehicle operated by an underinsured motorist. The underinsured motorist paid policy limits to settle Plaintiff s claim. At the time of the collision, the insured and her husband were the named insureds on a special umbrella policy issued to them by Defendant. Plaintiff filed a complaint for underinsured motorist benefit coverage under both the umbrella policy issued by Defendant and a primary auto insurance policy issued to the insured driver by another insurer. The other insurer promptly settled Plaintiff s claim, but the umbrella policy insurer filed an answer denying Plaintiff coverage under the umbrella policy because Plaintiff did not fall within the umbrella policy s definition. The umbrella policy explicitly defined insured to cover: 1) the named insureds; 2) the named insured s relatives by blood, marriage, or adoption; or 3) any person under the age of 21 in the care of the named insureds. This case was more complicated because the umbrella policy itself could not be produced, rather the policy was reconstructed based on the Defendant s records, a common practice in insurance disputes. The trial court granted Defendant s motion for summary judgment. The Appellate Court upheld the dismissal, finding that Plaintiff was not entitled to underinsured motorist benefits under the umbrella policy and that she was not entitled to additional discovery of the underwriting file, policy forms and underwriting manuals. p. Illinois State Bar Association Mutual Insurance Company v. Law Office of Tuzzolino and Terpinas, 2013 Ill. App. (1 st ) : This case arose because one partner failed to disclose a malpractice claim on the partnership s malpractice insurance application. When the ISBA discovered the law firm s failure to disclose the malpractice claim, it filed a complaint for rescission and declaratory relief finding that ISBA had no duty or obligation to defend the law firm in connection with the malpractice claim. The other partner in the law firm filed a counterclaim seeking a declaratory judgment that the insurance company covered him with respect to the other partner s malpractice suit. The trial court granted the ISBA s motion for summary judgment, rescinding the contract and finding that the ISBA had no duty or obligation to defend the law firm in the malpractice claim. The Appellate Court held that the ISBA could not rescind the policy as to the innocent partner under the common law Innocent Insured doctrine and that the severability clause allowed it to be partially rescinded. 20

21 IV. MALPRACTICE a. Homestar Bank and Financial Service v. Emergency Care and Health Organization, Ltd., 2014 IL : Guardian of the estate of a disabled person brought a medical malpractice action against the emergency room physician and emergency room physician s group. Defendant doctor was working in the emergency department when disabled adult was brought in. Doctor attempted to intubate the disabled adult, but as a result of the doctor s actions the disabled adult suffered permanent brain injury. The doctor did not bill the disabled adult for this service, but provided the care under the terms of the contract between his physicians group and the hospital. The trial court granted Defendant s motion for summary judgment on the basis that the Good Samaritan Act, 745 ILCS 49/25, states that any person licensed to practice medicine in good faith and provides emergency care without a fee to a person shall not be held liable for civil damages except if that person engages in willful and wanton conduct. The Appellate Court reversed, finding that the Good Samaritan Act was not meant to protect a practicing physician who was being paid for his time. The Appellate Court was not persuaded by the doctor s argument that since he did not bill the patient directly his service was provided without a fee. The Supreme Court unanimously affirmed the judgment of the Appellate Court, finding that the physician did not treat the patient without fee for purposes of the Good Samaritan Act because even though he did not bill for the services, he was fully compensated for his time and he responded to the code blue not because he was volunteering to help because it was his job to do so. b. In re: Estate of Powell, 2014 IL : The Office of the State Guardian sued on behalf of Plaintiff who was the beneficiary of a medical malpractice claim based upon the death of his father. Two settlements were subsequently reached: the first was for $5,000.00, the second was for $118, Plaintiff s sister was initially his guardian, but was subsequently replaced after it was found that she had wrongfully removed approximately $100,000 from his bank account. At the time the second settlement was issued, the attorneys did not present a petition to the probate court for distribution of the estate and instead placed it into a joint account with Plaintiff s sister. The Office of the State Guardian brought legal malpractice complaints based on both the first and second settlement. Defendants filed a motion for summary judgment, arguing that Plaintiffs failed to 21

22 state a claim. The trial court granted the motions, finding that the complaint failed to sufficiently allege Defendant attorneys owed Plaintiff a duty and also failed to allege proximate cause. The Appellate Court reversed in part, finding that the complaint sufficiently alleged Defendant owed Plaintiff a duty as an intended beneficiary only as to the second settlement, reasoning that the first settlement would not have been probated in any case. The Supreme Court adopted the Appellate Court s ruling, and held that an attorney who brings a wrongful death action has a legal duty to the decedent s beneficiaries at the distribution of funds phase of the action. c. Huang v. Brenson, 2014 Ill. App. (1 st ) : This is a convoluted fact pattern involving two separate legal malpractice suits. Plaintiff was an attorney who was originally hired by an immigrant who was going to be deported. The immigrant then sued Plaintiff for malpractice. Defendant was the attorney representing the Plaintiff in the malpractice suit brought by the immigrant. At that trial, Defendant (Plaintiff s malpractice attorney) moved for summary judgment on the Plaintiff attorney s behalf arguing that the immigrant could not recover noneconomic damages in a legal malpractice action. The Judge denied the motion for summary judgment and denied a motion in limine which would have excluded evidence of non-economic damages. The jury awarded the immigrant $4,000, based on non-economic injuries. After the trial, Plaintiff attorney terminated Defendant attorney and hired two new attorneys who were successful in reversing the malpractice award. Plaintiff attorney then sued Defendant attorney for legal malpractice, meaning the attorney who represented Plaintiff in his legal malpractice case was now the subject of a legal malpractice action brought by Plaintiff. Plaintiff filed claims for negligence/legal malpractice and claims for breach of fiduciary duty. The trial court dismissed all of Plaintiff s claims, finding that Defendant attorney could not be held responsible for a judicial mistake that required an appeal to correct. The breach of fiduciary duty counts were based on Defendant s alleged failure to represent Plaintiff s interests; instead Plaintiff alleged that the Defendant represented the insurance company s interest. The trial court held that absent a showing that the plaintiff in the original malpractice case was making reasonable settlement demands and that the insurer would have or should have in good faith accepted the demands, there was no claim for breach of fiduciary duty. The Appellate Court affirmed the trial court. 22

23 d. Brannen v. Seifert, 2013 Ill. App. (1 st ) : Legal malpractice case. Plaintiffs entered into a contract for the sale of land with buyer. Buyer was supposed to make installment payments on the contract, but failed to make payments almost immediately. Plaintiffs hired the Defendant attorney to go after the buyer for the unpaid payments. Defendant instead sent a letter to the buyers that declared a default and forfeiture of the agreement. Defendant sent the letter without consulting the Plaintiffs, and Plaintiffs were unaware that their right to recover past payments was terminated when the Defendant attorney declared forfeiture. Plaintiffs subsequently sued the Defendant under a legal malpractice theory. At trial, evidence was presented that the buyers who breached the contract were solvent; specifically, that one of the buyers was a partner in a law firm with numerous unsettled contingent fee cases, that he sold his prior home for a profit, and that he had paid tax liens against the house in full. The jury returned a verdict for Plaintiffs, and Defendant appealed. The Appellate Court held that the attorney s strategy of declaring the contract as forfeited was negligent, and that the evidence supported the finding that the purchasers who breached the contract with the client were solvent. The Appellate Court decision also discussed set offs and special interrogatories. e. Green v. Papa, 2014 Ill. App. (5 th ) : Client brought legal malpractice against her former attorney. Plaintiff was injured in an automobile accident when she was struck by a dump truck owed by IDOT. At the trial of the auto accident, the Defendant attorney attempted to introduce a doctor s discovery deposition as evidence, but the court refused to accept it because it was not an evidence deposition. Evidence was also introduced in that trial that Plaintiff had fallen off a chair at work, which IDOT claimed may have been the cause of some of her treatment. A verdict was returned for Plaintiff, but the court found that any injuries for which Plaintiff received treatment after her fall from the chair were not caused by the traffic accident. In the trial of the malpractice case, the judge found for the Defendant attorney. The Appellate Court affirmed, holding that the attorney s breach of the duty of care in sending the wrong notice for the deposition of the doctor which was subsequently not admitted was not the proximate cause of the client s damages. f. Hemminger v. LeMay, 2014 Ill. App. (3d) : Plaintiff was the estate of the decedent who died from the alleged malpractice committed by her gynecologist. At trial, Plaintiff s expert testified that within a reasonable degree of medical certainty if the decedent s cancer had been diagnosed when she initially had symptoms, her chances of survival would have either been 80-90% or 58%. It 23

24 was undisputed that at the time Plaintiff s cancer was diagnosed her survival rate had dropped to 32%. Defendants moved for a directed verdict on the basis that Plaintiff did not prove proximate causation. The trial court granted the motion. The Appellate Court held that under the doctrine of the lost chance of survival theory, Plaintiff had produced enough evidence to allow the matter to go to the jury. The Appellate Court held that the expert only needed to show that the gynecologist s negligence deprived the patient of an opportunity to undergo treatment that could have been more effective if given earlier not that such treatment would have been effective. It further noted that for an expert s opinion to satisfy the proximate causation standard in a medical malpractice action under the lost chance of recovery theory there does not need to be a statement by the expert that a preponderance of the evidence shows that the alleged negligence proximately caused an increased risk of harm or lost chance of recovery. Rather, an expert need only offer her opinion based on a reasonable degree of medical certainty and need not state that her causation opinion is based on the preponderance of the evidence. g. Perkey v. Portes-Jarol, 2013 Ill. App. (2 nd ) : Plaintiff was the estate of a deceased individual who died from pancreatic cancer. Plaintiff saw her general practitioner in February of 2001, complaining of back pain that could not be alleviated with over the counter medication. Family physician ordered an abdominal CT scan to rule out the possibility of kidney stones. The CT scan showed that the pancreatic duct was dilated. The family doctor told Plaintiff that there was nothing significant in the CT scan. He did not tell her that her pancreatic duct was wider than it should have been or that she might have a tumor there. Approximately one year and a half later, Plaintiff felt tired and saw her gynecologist. Her gynecologist referred her to a gastroenterologist who ordered a CT scan which showed a blockage in her bile duct. The gastroenterologist determined that she had cancer and operated on the cancer. Plaintiff died four years later and her estate sued the general practitioner for medical malpractice. The case went to the jury, who awarded a $600,000.00, verdict. Defendant appealed and the Appellate Court discussed the following issues in its opinion: whether an expert witness s incorrect description of the standard of care rendered her testimony unreliable; whether the physician s alleged deviation from standard of care caused increased risk; and whether the jury instructions properly described the standard of care applicable to physicians. It also discussed evidence and damages, remanding the case to the trial court to 24

25 determine whether medical and lost wages benefits paid to Plaintiff could be set off against the verdict. h. Smith v. Bhattacharya, 2014 Ill. App. (2d) : Plaintiff was the representative of decedent s estate who sued Defendant doctor for medical malpractice alleging the decedent died from Defendant doctor s negligence. Plaintiff initially filed suit but neglected to include a report from the reviewing physician as required by Section 2-622(a)1 of the Code of Civil Procedure (735 ILCS 5/2-622(a)1). Section 2-622(a)1 provided a ninety-day period to provide such a report, and Plaintiff voluntarily dismissed the suit without obtaining the report. Subsequently, Plaintiff filed suit with the Section report. Plaintiff testified at her deposition that she lived with the doctor who authored the report and that they were engaged to be married. The matter was set for trial and Plaintiff was given until March 1, 2013, to disclose expert witnesses. On February 11, 2013, Plaintiff filed a motion to revise that order and the court extended the disclosure deadline until May 16, Plaintiff did not file the disclosures and on May 29, 2013, Defendants moved for summary judgment. At hearing, Plaintiff s counsel stated that he had scheduled a meeting with an expert on June 21, The court then set a response date on the motion for summary judgment for June 26, 2013, and set the hearing on summary judgment for July 30, On June 28, 2013, Plaintiff filed a response contending that it would be unfair to grant summary judgment and requesting an additional 30 days to make the requested disclosures. On the date of the summary judgment hearing, July 30, 2013, Plaintiff still had not disclosed an expert witness and had not provided any expert evidence in response to the motion for summary judgment. The court then granted Defendant s motion for summary judgment. The Appellate Court held that summary judgment was appropriate in this matter because Plaintiff did not name an expert witness, despite ample time to do so. 25

26 V. NEGLIGENCE a. Doe v. Boy Scouts of America, 2014 Ill. App. (2d) : Plaintiff brought an action for negligent hiring after her son was sexually assaulted by a former Boy Scout District executive. Defendant filed a motion for summary judgment arguing that the executive was not an employee of the Boy Scouts. The evidence tended to show that Defendant did not have the right to control the executive s work. There was also evidence indicating the executive had been discharged from the Navy for suspected homosexuality and that the executive would allegedly watch members of the boys swim team change clothing. At the time of the sexual assault, the executive was retired from the Boy Scouts. The trial court granted the Defendant s motion for summary judgment, finding that the executive was not an employee of the Boy Scouts even when he was still an executive, and he was definitely not an employee at the time suit was brought because he was retired. The Appellate Court noted that an action for negligent hiring requires a plaintiff to plead and prove: 1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third person; 2) that such particular unfitness was known or should have been known at the time of the employees hiring; and 3) that this particular unfitness proximately caused the Plaintiff s injury. It also noted that for purposes of determining whether an employment relationship exists, the following factors are considered: the right to control the manner in which the work is performed; the right to discharge; the method of payment; whether taxes are deducted from the payment; the level of skill required to perform the work; and the furnishing of the necessary tools, materials, or equipment. In this case, the Appellate Court found that the national Boy Scout organization did not have the ability to control the executive s work, so he was not an employee. The Appellate Court also found that to bring a successful action for negligent hiring, the employee must still be an employee at the time the injury occurs. b. Fonseca v. Clark Construction Group, LLC, 2014 Ill. App. (1 st ) : Plaintiff employee was injured on a job site as he was working for a subcontractor of the general contractor. Plaintiff brought a negligence action against the general contractor. The trial court granted summary judgment for the general contractor, finding that no duty was owed to Plaintiff at the time of his accident. The Appellate Court noted that in cases involving a general contractor and an independent contractor, the following is determinative: if the subcontractor is 26

27 contractually responsible for job safety and the defendant general contractor takes no active role in insuring the safety, or alternatively where the general contractor reserves the general right of supervision over the independent contractor but does not retain control over the incidental aspects of the independent contractor s work, it is appropriate to find summary judgment in favor of the defendant general contractor. The court noted that in this particular case the general contractor s right to stop work and order changes are general rights of supervision and not a retention of control over the incidental aspects of the work. c. Ramirez v. FCL Builders, Inc., 2014 Ill. App. (1st) : Plaintiff employee of subcontractor brought action against general contractor when he was injured while moving roofing materials. Plaintiff filed a complaint alleging that the general contractor violated the duty to exercise reasonable care under the circumstances to protect the safety of Plaintiff by failing to allow Plaintiff and his co-workers to use certain equipment and follow safety practices. Defendants filed affirmative defenses claiming that Plaintiff s negligence caused the accident. Case was submitted to the jury which returned a verdict for Plaintiff. This case was very fact driven. Some of the issues that were discussed were whether the general contractor retained a degree of control over the operative details of the subcontractor s work so as to be liable for the worker s injuries, whether the general contractor was directly liable for the worker s injuries, jury instructions, and whether an incident report prepared by the subcontractor fell under the business record exception to the hearsay rule. The Appellate Court affirmed the trial court. d. Wiggins v. Bonsack, 2014 Ill. App. (5 th ) : Plaintiff and Defendant were involved in a two vehicle accident. Defendant was waiting to make a left turn and had been waiting for approximately two or three minutes due to heavy traffic. Defendant needed to cross two lanes to make her left turn. At some point, a vehicle stopped in the lane closest to Defendant and waved Defendant out. The Defendant attempted to make the left turn, but Plaintiff s vehicle struck Defendant s vehicle as Plaintiff was traveling in the lane farther away from Defendant. Evidence was presented at trial that Plaintiff waited 87 days to seek medical treatment; that she made a statement immediately after the collision that she was not hurt; and that she continued to participate in numerous sportsrelated activities following the collision. A verdict was returned in favor of Defendant and Plaintiff appealed. The Appellate Court held that there was no evidence that Plaintiff was contributorily negligent in any way in this accident 27

28 and because there was no evidence, Plaintiff was entitled to a new trial on the issue of damages only. e. Bell v. Bakus, 2014 Ill. App. (1 st ) : Minor Plaintiff was injured when his shirt caught on fire as he walked past the stove in the kitchen of his apartment. The evidence showed that Plaintiff s mother had turned on the burners of the stove because the apartment was cold. The stove bordered the primary hallway into and out of the kitchen. Plaintiff filed a negligence action alleging that the placement of the stove caused the minor s injuries. Plaintiff s mother presented evidence that she had contacted Defendants after moving into the apartment and requested they install a counter to separate the gas range from the entrance and exit to the kitchen. Defendants agreed to this arrangement but failed to do so before the minor was injured. Defendant filed a motion for summary judgment arguing that the placement of the stove was not the legal cause of the minor s injuries, which the trial court granted. On appeal, the Appellate Court held that a genuine issue of material fact existed as to whether the placement of the stove was the legal cause of the Plaintiff s injuries. The court further held that any negligence on the part of Plaintiff s mother in deciding to the leave the stove burners on could not be imputed to the minor Plaintiff and remanded the case back to the trial court. f. Garest v. Booth, 2013 Ill. App. (1 st ) : Plaintiff fell down the exterior stairwell of a building and then sued the owner of the building, as well as the construction company that built the building. The evidence at trial showed that Plaintiff was attempting to go to a funeral home that shared a parking lot with the building where she was injured. After she parked her car, she proceeded towards the wrong building and fell down an unlit exterior stairwell. Plaintiff sued the building owner for negligence in not having exterior light in the stairwell, and sued the construction company for building a structure that was not up to the local building code. Both Defendants made motions for directed verdict at the close of Plaintiff s case, and at the close of all evidence. A jury returned a verdict in Plaintiff s favor which apportioned 64% of the fault to the construction company and 34% of the fault to the building owner, with the remaining 2% to Plaintiff. The Appellate Court agreed with the trial court that the construction company owed the Plaintiff a duty of reasonable care in the construction of the building, specifically dismissing the construction company s contention that it owed the same duty of care that an owner or an occupier of land would. With regard to the 28

29 building owner, one of the issues on appeal was Plaintiff s status at the time she was injured. The jury returned special interrogatories which found that Plaintiff was an implied invitee at the time she was injured. On appeal, the Defendant building owner argued that it was not possible as a matter of law for Plaintiff to be an invitee as he received no financial benefit from Plaintiff being on its premises. The Appellate Court reversed and remanded with regard to the business owner. g. Hougan v. Ulta Salon, Cosmetics, and Fragrance, Inc., 2013 Ill. App. (2d) : Plaintiff stopped by a cosmetics store. After she made her purchases, she was waiting in front of the store when a driver accidently pressed the accelerator rather than the brake, causing the car to jump the curb and injure her. She filed a complaint against the driver and the cosmetics store. The Defendant cosmetics store moved for summary judgment on the basis that it owed no duty to her. The trial court granted the motion for summary judgment. The Appellate Court first noted that in determining whether a duty of care exists, the court looks to four factors: 1) the reasonable foreseeability of injury; 2) the likelihood of injury; 3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant. The court weighed the four factors and determined that Defendant did not owe a duty to Plaintiff. It also determined that it did not owe a duty to warn Plaintiff against the possible consequences of standing near the business, when Plaintiff had commented on the proximity of the store to the parking lot to both her husband and store employees. h. Porter v. Illinois Central Railroad Company, 2014 Ill. App. (5 th ) : Plaintiff was the estate of two sisters who were killed at a railroad crossing as a result of a collision between the car they were driving and a freight train operated by Defendant. At the time of the collision the crossing was equipped only with luminous flashing light signals, not automatic gates. Plaintiff alleged that Defendant was negligent in failing to equip the railroad crossing with automatic gates, because the existing conditions at the intersection met the minimum requirements for installation of the automatic gates. Defendant filed for summary judgment arguing that the State Commerce Commission had previously approved and ordered the installation of flashing luminous light signals, so it had no duty to install or to petition to install automatic gates at the railroad crossing in question. The parties tendered certified questions to the Appellate Court asking whether the railroad had a duty to install automatic gates at the crossing, and a more specific question regarding the installation of automatic gates. 29

30 The Appellate Court held that the railroad had no duty to install, or to petition for the permission to install automatic gates at the crossing in question, even if existing conditions met the minimum requirements for the installation of automatic gates, because the Illinois State Commerce Commission had previously approved and ordered installation of flashing luminous light signals. i. Nida v. Spurgeon, 2013 Ill. App. (4 th ) : Plaintiff was injured when she was walking down the driveway of her rental property and a piece of broken asphalt snapped, causing her to break her ankle. Plaintiff testified that she had complained about the condition of the driveway on numerous times, and that Defendant or her agents had promised to fix it. Defendant filed a motion for summary judgment, arguing: 1) she did not owe a duty of care because Plaintiff fell on a public right-of-way; 2) the driveway condition was open and obvious; and 3) Plaintiff failed to produce any evidence that the broken piece of asphalt was anything other than de minimis. The trial court granted Defendant s motion for summary judgment, finding that the condition was open and obvious and the de minimis rule applied based on the speculative nature of Plaintiff s testimony about the size of the alleged defect. The Appellate Court affirmed the case, finding that Defendant, as landlord, did not have a duty to provide the tenant with a reasonably safe means of ingress and egress and that the evidence failed to establish that Defendant controlled the driveway where the tenant fell. Further, the evidence supported the finding that the deteriorating condition of the driveway was open and obvious. j. Ryan v. Glen Ellyn Raintree Condominium Association, 2014 Ill. App. (2d) : Plaintiff was injured in the common areas of the Defendant condominium complex. Plaintiff initially filed suit against the condominium owners and the contractor with which the condominium owners had a contract with to remove snow and ice. The contractor was subsequently dismissed, leaving only the condominium owner. Plaintiff filed a complaint alleging that Defendant was negligent because Defendant failed to correct a design flaw in the awning that directed melted snow and rain water onto the walkway below. Moreover, Defendant voluntarily undertook to remove snow and ice from the premises but failed to clear the particular patch of snow and ice on which she slipped. Defendants moved for summary judgment on two grounds. First, Defendants invoked the common law rule that land owners have no duty to remove natural accumulations of snow or ice and claimed that the ice in which Plaintiff slipped 30

31 was entirely natural accumulation. Alternatively, Defendants maintained that Plaintiff s suit was barred by the Snow and Ice Removal Act (745 ILCS 75/2) which eliminates liability for injuries resulting from a residential owner s acts or omissions in attempting to remove snow or ice from sidewalks abutting the property, unless the alleged misconduct was willful or wanton. In response, Plaintiff maintained that her complaint alleged liability based on an architectural feature of the premises and not on any omission by Defendants and their snow and ice removal errors. The trial court granted the motion for summary judgment. The Appellate Court upheld the trial court s decision, finding that the Snow and Ice Removal Act barred Plaintiff s suit because Plaintiff attributed her fall to the consequences of Defendants failed snow and ice removal efforts. k. St. Martin v. First Hospitality Group, Inc., 2014 Ill. App. (2d) : Plaintiff tripped and fell outside of Defendant s hotel. He filed a complaint alleging that the difference in height between concrete slabs outside of the hotel caused his fall. Plaintiff s evidence showed that the height differentials were between 1 ½ and 1 ¾ inches. Defendant hired an expert, who submitted an affidavit stating that the difference in height was less than an inch. Defendant moved for summary judgment arguing that the defect in the sidewalk was de minimis. Plaintiff argued that the de minimis rule was inapplicable because the defect was near the front door and that there were issues of fact as to whether aggravating circumstances existed. The trial court granted Defendant s motion for summary judgment, finding that the defect was de minimis as a matter of law and further noting that the affidavit of Defendant s expert was unrebutted. The Appellate Court noted that absent any aggravating factors of vertical displacement of less than 2 inches between two sidewalk slabs is de minimis within the meaning of the rule that a land owner has no duty to repair de minimis defects in its sidewalks. The Appellate Court also found that since Plaintiff did not present evidence tending to prove the existence of aggravating factors, summary judgment on this claim was appropriate. l. Whitten v. Luck, 2014 Ill. App. (5 th ) : Plaintiff was injured while riding his motorcycle when a black Labrador Retriever ran into his path, causing him to lose control of his motorcycle and sustain injuries. The owner of the property near where the dog came from had leased it to another individual and his girlfriend, who owned a dog. The lease stipulated that the dog could not be kept in the home, so the dog was allowed to roam on the Defendants 75-acre tract. Dog owner/lessee provided all care for the dog. He fed the dog, trained it, played with it, groomed it, and paid all veterinary bills. It was undisputed that neither of 31

32 Defendant landowners ever provided any care for the dog. Plaintiff filed an action against dog owner and land owner alleging common law negligence and liability pursuant to the Animal Control Act. (510 ILCS 5/1, et. seq.) At the time this matter was heard, the only count remaining was an Animal Control Act count against the land owner. The trial court entered summary judgment in favor of Defendants, finding that Defendant land owners had not harbored the dog. The Appellate Court held that harboring of an animal is limited to situations where an individual provides food and shelter of at least a semi-permanent nature. It also held that to establish that one is a keeper of an animal, it must be shown that the person had control over the animal at the time of the injury or immediately prior to the injury. m. Bruntjen v. Bethalto Pizza, LLC., 2014 Ill. App. (5 th ) : Plaintiff was a passenger in a van that was struck by a vehicle driven by a pizza delivery driver. Plaintiff brought a negligence action against the driver, the driver s employer, and the franchise of the driver s employer. At trial, the driver conceded that his negligence caused the automobile accident issue, and the employer admitted that it was responsible for the acts of the driver as his employer. However, the franchise owner contested its duty to the Plaintiff via a motion to dismiss, motion for summary judgment and a motion for directed verdict, all of which were denied. Subsequently, a jury verdict was entered against all three defendants in the amount of 2.3 million dollars and Defendants appealed. The Appellate Court held that the franchise owner had a duty to the passenger and that the franchise owner undertook to monitor the employee s driving record. It found that the franchise owner s failure to correctly monitor the employee s driving record was within the scope of its assumed duty to protect third parties from accidents involving delivery drivers and that the franchise owner was negligent. It further found that the evidence was sufficient to support the jury s finding that the employer was the franchise owner s agent and affirmed the trial court s decision. n. Cain v. Joe Contarino, 2014 Ill. App. (2d) : Plaintiff was an employee of a subcontractor who was injured on a job site. Plaintiff brought a negligence action against the general contractor seeking damages for injuries incurred at the job site. Plaintiff brought counts against the general contractor on theories of negligence for not promoting a safe work environment, and for premises liability alleging the general contractor possessed, operated, managed, maintained, and controlled or had a duty to do the same with regard to the building that was 32

33 under construction at the time of the accident. The trial court granted the general contractor s motion for summary judgment, finding that it did not retain control over the subcontractor or supervise the details of the subcontractor s work to a degree that it would imply control. It also found that the general contractor was not a possessor of land where the work site was located, holding that although the landowner and contractor had a common owner, the agreement between the contractor and subcontractor gave the subcontractor control over all aspects of its work and made the subcontractor solely responsible for workplace safety. The Appellate Court affirmed on the same basis. o. National Railroad Passenger Corporation v. Terracon Consultants, Inc., 2014 Ill. App. (5 th ) : Defendant was the estate of a mother and her unborn child who were killed in an accident when they collided with an Amtrak train at a railroad crossing. Amtrak subsequently settled with the decedent s estate. Following those settlements, Amtrak brought a contribution action against Defendant s employer and Defendant s estate alleging that both were guilty of acts of negligence that caused the collision and therefore proximately caused the fetus death. Decedent s estate moved to dismiss, contending that the mother owed no legal duty to her unborn fetus, and that in the absence of legal duty no cause of action was stated or could be stated against her estate by the complaint for contribution. The trial court granted the motion and dismissed the case. The Appellate Court held that the driver owed no duty to her unborn fetus who did not survive the injuries of the accident. It noted that the recognition of a legal duty to guarantee the mental and physical health to the fetus would have created an environment wherein the driver and the child would have been legal adversaries from the moment of conception until birth. It remanded the case on the basis that her employer could be held liable in tort for allegedly negligently training the driver. p. Turcios v. DeBruler Company, 2014 Ill. App. (2d) : Plaintiff was the estate of the decedent which filed a wrongful death complaint against Defendant based on a pattern of Defendant s attempt to evict decedent from her apartment. The evidence showed that decedent and another individual signed a lease for an apartment that was owned by Defendant. Less than one month later, the decedent received a notice from Defendant that they were being evicted and they had 30 days to vacate the apartment. The decedent and other tenant contacted a charity which spoke with an agent of Defendant who claimed that the lease was invalid. Defendants then began a pattern of harassment and 33

34 intimidation for decedent and the other tenant to move. Eventually, decedent committed suicide and decedent s estate filed a wrongful death complaint alleging intentional infliction of emotional distress. Defendants filed a motion to dismiss the wrongful death count pursuant to Section of the Code of Civil Procedure, 735 ILCS 5/2-615, and the trial court granted it finding there was no cause of action for wrongful death via suicide. The Appellate Court disagreed, finding that at a matter of first impression in the case of the tort of intentional infliction of emotional distress the fact that a victim commits suicide in no way limits the Defendant s liability for its action where the emotional distress is a substantial factor in causing the suicide. q. Tyrka v. Glen View Ridge Condominium Association, 2014 Ill. App. (1 st ) : Defendant s dog attacked Plaintiff s dog and Plaintiff in the common area of the condominium association. Plaintiff filed a complaint against the dog owner and the condominium association alleging that the condominium association had regulations against owning dogs weighing more than 25 pounds and that it knew Defendant s dog weighed more than twenty-five pounds. Plaintiff also alleged that the condo association knew that the dog was violent or had propensity for violence, because prior to the incident with Plaintiff other residents had complained to the Defendant condo association of the violent nature of the dog. The complaint against the condominium association was subsequently dismissed because the trial court found Plaintiff could not prove that the condominium association had knowledge of the dog s vicious tendencies. The Appellate Court held that notice of complaints from other owners was not enough to impute knowledge of the dog s viciousness, and without that the condominium association did not owe Plaintiff a duty of care. r. Cox v. U.S. Fitness, LLC., 2013 Ill. App. (1 st ) : Plaintiff sued the Defendant gym and personal trainer after she fell and sustained a wrist injury during a personal training session. Prior to her enrollment in the gym and personal training, she signed a waiver which contained the following language: [a]s material consideration for Fitness Formula Clubs and its affiliated clubs permitting members and guest to use the Club or its facilities, each member or guest agrees to specifically assume all risks of personal injury, property loss or other damages including risk associated with fitness classes and equipment, sports exercise, all locker room facilities and fitness advisory services and all other facilities. The accident occurred while Plaintiff was training with a personal trainer and jumping off risers that were placed on the floor. As Plaintiff was jumping onto the riser, the risers collapsed. Plaintiff filed a complaint 34

35 against the personal trainer and the gym, alleging that the Defendants negligently: stacked the risers; instructed Plaintiff on how to jump on top of the risers; failed to implement necessary safety measures when instructing Plaintiff on how to jump onto the risers; and failed to train employees on how to safely instruct, monitor, and supervise Plaintiff s exercise. Defendants moved for summary judgment, which the trial court granted. The Appellate Court, in determining whether the waiver that Plaintiff signed was valid, focused on the foreseeability of the injury. The court found that it was foreseeable that Plaintiff could have fallen and been injured during personal training sessions due to inadequate or faulty instruction. The court additionally found that the misuse of the risers was foreseeable. The court further found that Plaintiff s injury was within the scope of the language of the waiver and, as a result, Plaintiff s claims were appropriately dismissed as a matter of law and the injury was reasonably foreseeable based on the language of the waiver. The court then found that the waiver was not unconscionable as a matter of law and was enforceable. s. Edwards v. Lombardi, 2013 Ill. App. (3d) : Plaintiff was injured by Defendant s llama as he was cleaning the Defendant s barn. Plaintiff had previously been employed by Defendant at their pet store and had also worked on their farm feeding the animals. The evidence showed that in previous encounters the llama was aggressive and that Plaintiff had been injured on another occasion. Plaintiff filed his complaint for damages under the Animal Control Act, 510 ILCS 5/16. Defendant filed a motion for summary judgment alleging that Plaintiff had assumed the risk by attempting to take care of the llama. The trial court granted the motion. The Appellate Court affirmed the trial court on the basis that Plaintiff had previously encountered the llama and was aware of the danger it posed. t. Regions Bank v. Joyce Meyer Ministries, Inc., 2014 Ill. App (5 th ) : This cause of action arose out of the Christopher Coleman/bodyguard case. To refresh your recollection, Chris Coleman murdered his wife and two young sons in Prior to his conviction, Coleman had served in a high level security position with Defendant, Joyce Meyer Ministries, for approximately eight years. Plaintiff filed a complaint alleging wrongful death against the Defendant under a theory of negligent undertaking to protect the decedents from threatened harm. Plaintiff argued a cause of action existed because Coleman sent s directing death threats at himself and his family prior to their murder. Plaintiff alleged that the Defendant employer failed to take prompt action with respect to the 35

36 investigation of s and that after the investigation, it promised Coleman s wife that it would provide them with additional security. Plaintiff further alleged that the investigation failed to identify that Coleman was the source of the s. The trial court dismissed this count of the complaint with prejudice and Plaintiff appealed. The Appellate Court noted that to pursue a claim for negligence against Defendant based on Defendant s alleged voluntary undertaking that imposes a duty to protect the decedents from the criminal acts of a third party, Plaintiff must allege facts that indicate: 1) Defendant voluntarily undertook to render services necessary for the protection of another person or took charge of another person s protection; 2) that Defendant failed to exercise reasonable care in that it wholly failed to perform the undertaking; and 3) that the harm was suffered because of the decedent s reliance on Defendant s undertaking. Since the trial court dismissed the action pursuant to a Section motion, the Appellate Court found that Plaintiff had adequately pleaded in facts that would allow it to recover if successfully proven and remanded the case to the trial court. u. Sedlacek v. Belmonte Properties, LLC, 2014 Ill. App. (2d) : Plaintiff was walking his dog on a public sidewalk when a Rottweiler came running from the backyard of a home that was rented to the owner of the dog by the Defendant. Plaintiff filed suit against the Defendant landlord, which later filed a third party complaint for contribution against the owners of the dog. Defendant landlord then moved for summary judgment against Plaintiff. Evidence presented prior to the motion tended to show the dog owners signed a lease with the Defendant landlord prohibiting owners from owning aggressive dog breads. The lease further indicated that any responsibility for damages caused by the pet would be the responsibility of the owners and not the Defendant landlord. The dog owners claimed that the dog escaped because of a faulty gate, which the Defendant landlord owned. The dog owners asked the landlords to repeatedly repair the gate. Two weeks prior to the incident, the property manager stopped by the property to inquire about rent and told the dog owner that he needed to get rid of the dog or move out. In response, the dog owner told the property manager that the gate needed to be fixed and that he was working on getting rid of the dog. The property manager then failed to follow-up with the dog owner on the gate. The trial court granted the Defendant landlord s motion for summary judgment. The Appellate Court affirmed, holding that the Defendant s landlord did not owe 36

37 a duty to Plaintiff because any promise to fix the broken gate was not premised on the tenants keeping a Rottweiler. v. Johnson v. Johnson & Bell, Ltd., 2014 IL App (1 st ) : Plaintiff initially sued a department store for injuries which occurred while on the premises. The case was removed to federal court, a jury verdict was returned for Defendant, and the case was appealed to the Seventh Circuit. Prior to the trial, a final pretrial order was prepared and signed by all parties which had appendices containing all exhibits and deposition transcripts the parties planned to use at trial. Plaintiff filed suit in state court against the department store and its attorneys alleging that their failure to redact certain information caused Plaintiff to suffer an invasion of privacy, negligence, and negligent infliction of emotional distress. Defendants filed a motion to dismiss under Section of the Code of Civil Procedure arguing that this cause of action was barred by the absolute litigation doctrine and that Plaintiff s complaint constituted an improper collateral attack on the federal court s order sealing the documents in question. The state court granted the motion to dismiss. The Appellate Court held that as a matter of first impression in the State, the absolute litigation privilege barred Plaintiff s negligent infliction of emotional distress and breach of contract claims. w. Lederer v. Executive Construction Inc., 2014 Ill. App. (1 st ) : Plaintiff was an employee of a subcontractor who brought a negligence action against the general contractor after falling from stilts at a job site. The evidence showed that the subcontractor s contract with the general contractor required the subcontractor to report improper working conditions and to follow the general contractor s safety program. It also showed that the general contractor s safety manual specifically prohibited the use of stilts by subcontractor employees and that the general contractor retained the authority to stop unsafe work and order it remedied. Finally, the evidence tended to show that the general contractor s superintendent maintained a strong presence at the job site. The general contractor was aware of the congested condition of the area where the accident occurred a week or two before the accident. Defendant filed a motion for summary judgment, which the trial court granted. The Appellate Court found that in this case, the general contractor was vicariously liable for the subcontractor s negligence under the principles of agency because the contractor retained control over the operative detail of the part of the subcontractor s work. It further found that the general contractor knew or should have known the dangerous conditions that allegedly caused the 37

38 employee s injuries, so Plaintiff could proceed on a theory of direct liability for failure to exercise reasonable care in supervising the subcontractor. VI. PRODUCTS LIABILITY a. Bowles v. Owens-Illinois, Inc., 2013 Ill. App. (4 th ) : The Plaintiff executor of the estate of a man who was in the Navy for many years filed suit against an asbestos manufacturer, claiming that the decedent had suffered injury and death as a result of exposure to asbestos-containing products. Deposition testimony indicated that the decedent had worked on a ship which produced dust particles when the ships guns were fired, but there was not any definitive evidence that the dust particles contained asbestos. Plaintiff s expert testified that the ship on which decedent was stationed underwent a process of replacing the insulation to remove the asbestos approximately one and a half years after Plaintiff was initially stationed on the ship, while Plaintiff was still stationed on the ship. Plaintiff s expert testified that he did not see how the decedent could have avoided exposure during the overhaul. Plaintiff s doctor testified that the decedent s autopsy was consistent with metastatic adenocarcinoma of the lung and doctor further opined that the decedent s lung cancer was caused by his exposure to asbestos in combination with his habit of smoking. Defendant filed a motion for summary judgment arguing that none of the deposed witnesses testified that Decedent worked with or around Defendant s asbestos-containing product. The trial court granted Defendant s motion for summary judgment. The Appellate Court affirmed on the basis that there was no evidence that the decedent regularly worked in an area where the manufacturer s asbestos-containing products were used. b. Gillenwater v. Honeywell International Inc., 2013 Ill. App. (4 th ) : Pipefitter and his wife brought an action against the manufacturers of asbestos. The Plaintiff pipefitter sought compensation from the manufacturers on the theory that they had been in a civil conspiracy with one another to conceal the respiratory dangers of asbestos. Plaintiff s alternate theory was that the three named Defendants conspired together and entered into a conspiracy with a nonparty to conceal the dangers of asbestos. Plaintiff s wife sued on the basis of loss of consortium. At the trial court, summary judgment was entered in Defendants favor on the wife s claims of loss of consortium because at the time 38

39 he was exposed to the asbestos, the pipefitter was not married to his wife. The jury returned a verdict for Plaintiff and against the three Defendants and awarded him punitive damages on the other counts. Some of the Defendants were then granted a motion for a judgment notwithstanding the verdict, but one Defendant remained. The Appellate Court held that the manufacturer of asbestos-containing insulation could not be held liable as a conspirator for selling asbestoscontaining products without an adequate warning label. Moreover, the court held that the manufacturer did not owe a duty to warn of dangers of asbestos insulation manufactured by distributer after the manufacturer sold its insulation division. The wife s claim was properly dismissed on summary judgment because the manufacturer owed no duty to her. The Appellate Court noted that to sustain a complaint for conspiracy, the evidence must be clear and convincing. It also noted that a civil conspiracy only exists if the others intentionally assisted or encouraged the tortuous conduct of the act of wrongdoer. In this matter, it found that the evidence was consistent with innocence as much as it was with guilt. VII. MISCELLANEOUS ACTIONS a. Stein v. Krislov, 2013 Ill. App. (1 st ) : Plaintiff and Defendant were both attorneys. Plaintiff had previously worked for Defendant. After leaving the Defendant s employ, Plaintiff attempted to represent a class action group in Pennsylvania. Attached to his motion for class certification was a description of the Plaintiff and his firm s prior experience. Defendant subsequently discovered the motion, and sent an unsigned letter to the judge presiding over the class action case. In the unsigned letter, Defendant advised that Plaintiff s representations regarding his experience were beyond puffing and were simply misstatements, known by the filers to be untrue. Plaintiff filed a suit alleging libel, breach of contract, and violation of the Wage Payment and Collection Act. (820 ILCS 115/1, et. seq.) With regard to the libel counts, Defendant filed a motion for summary judgment, arguing that the statements contained in the letter were absolutely privileged because they occurred as part of judicial proceedings or alternatively were made 39

40 in the discharge of duty under express authority of the law. Defendant also argued that this was a strategic lawsuit against public participation which was barred by the Citizen Participation Act. (735 ILCS 110/1, et. seq.) The trial court granted the Defendant s motion for summary judgment. On appeal, the Appellate Court held that the lawsuit was not a strategic lawsuit against public participation because Defendant could not prove the truth of the content of his letter. With regard to the privilege, the court determined that since Defendant had no role in the lawsuit in which he sent a letter, the statements were not absolutely privileged, and that Defendant did not make the statements under a discharge of duty under express authority of the law, and thus privilege did not apply, reversing the trial court. b. Sherer v. Sarma, 2014 Ill. App. (5 th ) : Plaintiff was the estate of a woman who was murdered by her husband. Defendant was a psychiatrist who treated the woman and her husband prior to the woman s murder. The estate brought a wrongful death and survival action against Defendant. Defendant moved for summary judgment, and the trial court granted the motion. The Appellate Court noted that to sustain a cause of action predicated on a therapist s alleged duty to warn third parties of the potential violent acts of a patient, Plaintiff must demonstrate the following: 1) the patient made specific threats of violence; 2) the threats of violence were directed against a specific and readily identifiable victim; and 3) there was a direct physician/patient relationship between Defendant and victim or a special relationship between the patient and the victim. In this case, the Appellate Court found that the husband had not made any specific threats of violence against his wife before killing her, so it affirmed the trial court s decision. 40

41 PROCEDURAL LAW I. GENERAL PROCEDURE a. Jiotis v. Burr Ridge Park District, 2014 Ill. App. (2 nd ) : Plaintiff was injured while entering a hay ride when the step stool that he was using to enter the ride broke. Plaintiff filed a negligence action against the park district, and eventually amended the complaint to include a count for willful and wanton conduct. Park district filed a motion for summary judgment, arguing that Plaintiff could not establish actual or constructive notice of a defect, that the spontaneous collapse of the step stool could not constitute willful and wanton conduct as a matter of law, and the Park District had absolute immunity from liability under certain sections of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 2-109, 2-101). Plaintiff filed a motion in response under Illinois Supreme Court Rule 191(b), stating that he needed further discovery to respond to the motion for summary judgment. The trial court granted the motion for further discovery, and Defendants asked to be held in friendly contempt to appeal the trial court s order. The Appellate Court first noted that there are two different types of motions for summary judgment. The first, is known as a traditional motion supported by affidavit, and the second is a Celotex type motion which relies on the weakness of the opponent s case instead of the affirmative strength of the movant. Celotex Corp. v. Catrett, 477 U.S. 317 (1986) The Appellate Court went on to write that whether the trial court classifies a Defendant s motion for summary judgment as traditional or Celotex matters because strict compliance with the summary judgment rules affidavit requirement is not automatically necessary when the Defendant files a Celotex-type motion. Further, it noted that the trial court has discretion to permit a continuance for discovery without compliance with the summary judgment affidavit requirement in a case where the movant asserts that the non-movant cannot prove a prima facie case and the movant does not have the burden of proof on the issue. The court held that the park district s motion for summary judgment was a Celotex-type motion because it argued that the passenger could not establish that the park district or employee s conduct was willful and wanton. It went on to note that to establish willful and wanton conduct necessary to preclude a government entity s immunity from suit under the Tort Immunity Act, the plaintiff must put forth facts that satisfy the elements 41

42 of negligence plus show intent to harm or conscious disregard for the plaintiff s wellbeing. II. APPEALS a. Hamilton v. Hastings, 2014 Ill. App. (4 th ) : Plaintiff filed a personal injury complaint against Defendant based on an automobile accident, alleging that Defendant was negligent and struck Plaintiff s vehicle causing damage. After a jury trial, a verdict was returned for Defendant. Plaintiff filed a post-trial motion seeking a new trial, but did not ask that a judgment notwithstanding the verdict ( JNOV ) be entered. On appeal, Plaintiff argued that he was entitled to ask for a JNOV, but the Appellate Court ruled that the failure to ask for a JNOV in a posttrial motion was not a mere technical deficiency because different evidentiary standards applied to a motion for a JNOV and a motion for a new trial. It further held that in this case, sufficient evidence existed that the accident did not proximately cause Plaintiff s injuries so the Appellate Court affirmed the trial court. b. Zamora v. Montiel, 2013 Ill. App. (2d) : The procedural history of this case is not entirely clear from reading the opinion. However, Plaintiff filed a negligence claim against two different sets of Defendants, one of which was most likely his employer and the other the actual tortfeasor. Again, it is not entirely clear from the record. On March 24, 2010 the trial court dismissed Plaintiff s complaint as it pertained to the employers, finding that is was barred by the exclusivity provisions of the Illinois Workers Compensation Act. The court included an Illinois Supreme Court Rule 304(a) finding. On April 23, 2010, Plaintiff filed a motion to reconsider the dismissal. On June 29, 2010, the trial court granted the tortfeasors leave to file a third-party complaint seeking contribution against the employer. On July 7, 2010, the trial court denied Plaintiff s motion to reconsider. Subsequently, there were some other pleadings, and Plaintiff attempted to file a Notice of Appeal seeking a reversal of the original March 24, 2010, dismissal on June 5, On appeal, Plaintiff argued that when the trial court granted the Defendant tortfeasors leave to file their third-party complaint, the previous Rule 304(a) finding was rendered ineffective. Defendant argued that the original date to file an appeal of the motion to reconsider was 30 days after the ruling which would have been August 6, The Appellate Court held that the 30 day period to file a notice of appeal began to run on the date of the circuit court s denial of the motion to reconsider. 42

43 III. EVIDENCE a. Davis v. City of Chicago, 204 Ill. App. (1 st ) : Plaintiff was the mother of decedent, who was shot and killed by Chicago police officers in performance of their duties. The facts of the incident, while interesting, did not really have a bearing on the case. What was at issue, however, was whether the decedent s pending criminal gun charge could be used as evidence in the wrongful death trial. This was tried three times before a verdict was reached. In the third trial, the trial court judge ruled that the decedent s estate was entitled to a motion in limine barring Defendants from introducing evidence of Plaintiff s pending gun charge at the time of his death. Defendant s counsel went on to mention the pending gun charge in the opening statements. Verdict was returned for Defendant, and Plaintiff filed a motion for a new trial on numerous bases. The judge granted the motion for the new trial on the basis of Defendant s improper opening remarks in opening statements. The Appellate Court held that since these opening statement remarks were not made in bad faith and did not cause substantial prejudice, that a retrial should not have been ordered. b. Powell v. Dean Food Company, 2013 Ill. App. (1 st ) B: This case has a long procedural history, but the underlying case involves three plaintiffs who were killed when their car was struck by a tractor/trailer. The case originally went up to the Illinois Supreme Court on the trial court s denial of a motion to dismiss the judge as a matter of right. To rectify that, Plaintiffs dismissed one named defendant with prejudice this defendant had a complaint regarding the judge -- and the Supreme Court held that this dismissal operated to bar the other Defendants from litigating the substitution of judge. The trial court entered a jury verdict of over 20 million dollars in favor of the three Plaintiffs. On this particular appeal, the main issue was whether the trial court erred in admitting evidence of the tractor/trailer driver s prior bad acts. Two of the main issues at trial were whether the driver was speeding and whether the driver was fatigued at the time of the accident. The trial court admitted evidence regarding the truck driver s prior bad acts, specifically prior speeding, prior log violations, and a prior fine. The log violations were admitted to support Plaintiffs contention that Defendant was fatigued at the time of the accident. The Appellate Court noted that evidence of prior acts may be admitted if it is 43

44 relevant to prove modus operandi, intent, identity, motive, absence of mistake, or any other material question other than the propensity to commit a crime. The decision whether to admit evidence of prior acts to prove something other than the propensity to commit a crime is within the discretion of the trial judge, who must balance the danger of unfair prejudice the Defendant versus the probative value of the prior act evidence. In such a circumstance, the danger of unfair prejudice must substantially outweigh the probative value of the prior act evidence. The Appellate Court held that the evidence of the truck driver s prior bad acts was not admitted to show purpose, intent, motive, knowledge or other mental state, so the evidence was improper and the error was not harmless. Therefore, the Appellate Court remanded the case to the trial court. c. Klaine v. Southern Illinois Hospital Services, 2014 Ill. App. (5 th ) : Plaintiff filed a medical malpractice action against doctor who performed the surgery and hospital where the surgery took place. The complaint included allegations of negligent credentialing of the Defendant doctor. Plaintiff requested a copy of the physician s application for staff privileges and a history and summary of the doctor s surgical procedures. The Defendant refused, asserting that the Data Collections Act prevented disclosure (410 ILCS 517/15(h). The Data Collections Act provides that any credentials data collected or obtained by the hospital shall be confidential and otherwise may not be disclosed without written consent of the healthcare professional. Defendants also asserted that certain aspects of the credentialing data were privileged under the Medical Studies Act, 735 ILCS 5/8-2102, which provides that material generated as part of a medical study shall not be admissible as evidence nor discoverable in any action of any kind in any court or before any tribunal, board, agency or person. The trial court reviewed the documents in camera and held that Defendants were required to disclose them. The Defendants requested the trial court hold them in contempt so that the matter could be appealed. The Appellate Court found that the application for staff privileges was relevant and not privileged under the Data Collections Act because the language of the Act only referred to the data as confidential, not non-discoverable, in contrast to the Medical Studies Act, which explicitly described privileged data as nondiscoverable. It further held that references to peer review evaluation reports in the application were privileged under the Medical Studies Act and nondiscoverable. Finally, it found that the history and summary of the Defendant physician s procedures performed were not privileged under Medical Services Act because the document contained only raw data about the procedures and no data reflecting any evaluation of the physician s performance. 44

45 d. Wells v. Colonial Heights Recreation Center, 2013 Ill. App. (1 st ) : Plaintiff was injured when she was exiting the swimming pool at her condominium. Plaintiff filed a negligence complaint alleging Defendants failed to provide a proper place for Plaintiff to use the swimming pool; negligently failed to repair the broken pool ladder; failed to post a warning to inform pool users of the broken ladder; failed to have a continuous and uninterrupted means of egress from the pool; failed to maintain the pool ladder in a safe condition; and failed to cordon out the broken ladder to prevent pool users from climbing the ladder in a broken and dangerous condition. After depositions were taken, Defendants filed a motion for summary judgment alleging that they had no notice of the defect. The trial court granted the motion. On appeal, Plaintiff argued that she had filed a general negligence complaint as opposed to a premises liability complaint, because under a general theory of negligence notice would not be required. The Appellate Court held that Plaintiff s complaint, although based in premises liability, was also based in a general theory of negligence, so it remanded the case to the trial court. e. Segovia v. Romero, 2014 Ill. App. (1 st ) : Plaintiff and her husband were injured in an automobile accident. Each made claims for medical expenses under their own insurance policy. Husband only made claims through his own insurance company, which were subsequently settled in a subrogation lawsuit. The release sent by Defendant s insurance company to husband and Plaintiff s insurance company indicated that only husband was bound by the terms of the release, but wife s medical payments were included in the subrogation lawsuit. Wife subsequently filed a personal injury action, which was tried. The verdict returned only money for medical expenses. Defendant filed a motion for setoff claiming that it was entitled to a setoff of the monies awarded by the jury because it was for medical expenses which had already been paid by Defendant as part of the subrogation case. The trial court found that the collateral source rule prevented a setoff in favor of Defendant, and Defendant appealed. The Appellate Court held that the collateral source rule provides that benefits received by the injured party from a source holding independent of, and collateral to, the tortfeasor will not diminish damages otherwise recoverable from the tortfeasor. The court went out to rule that the collateral source rule bars a defendant from reducing a plaintiff s compensatory award by the amount the plaintiff received from the collateral source. The Appellate Court found that in this case, the collateral source rule did not bar the Defendant insurance 45

46 company for asking for a set off, because the Defendant s insurer was not a collateral source, but rather a source related to the Defendant through contract. f. Deprizio v. MacNeal Memorial Hospital Association, 2014 Ill. App. (1 st ) : Plaintiff alleged that she suffered from lithium overdose as a patient at Defendant hospital and subsequently filed suit alleging medical malpractice. One of the Defendant doctors filed a motion to compel production of Plaintiff s psychological care records in the decade leading up to her injury, which Plaintiff refused to comply with claiming the materials were protected under the Mental Health and Developmental Disability Confidentiality Act. (740 ILCS 110/1, et seq.) The trial court denied the motion to compel, in part, but granted production of records pertaining to Plaintiff s prescriptions, levels, and reactions to lithium; and mental health records from a doctor who treated Plaintiff after her alleged injury. Plaintiff s attorney refused to produce the records and the court held him in contempt. The Appellate Court affirmed the disclosure. On remand, Plaintiff s attorney filed supplemental disclosures of three independent expert witnesses. Defendants filed another motion to compel all of Plaintiff s mental health records on the basis that Plaintiff placed her mental health condition at issue by introducing her mental well-being as an element of damages; and the records were relevant because Plaintiff s bipolar disorder and depression might have contributed to her cognitive impairment. The trial court conducted an in-camera examination of all of Plaintiff s psychiatric records and redacted portions of the same. The trial court ordered Plaintiff s attorney to release the records. He refused and filed an appeal. The Appellate Court found that Plaintiff waived her privilege against disclosure of mental health records once they were reviewed by her experts, and that the trial court s redaction of portions of the records was not an abuse of discretion. g. Fraser v. Jackson, 2014 Ill. App. (2d) : This case arose out of an automobile accident. Prior to trial, Plaintiff tendered requests to admit asking Defendant to admit that Plaintiff s medical expenses were reasonable and necessary and were fair, reasonable and customary. Defendant denied all requests. Defendant asked the court to order a Rule 215 examination of Plaintiff by its opinion witness. Prior to that, Plaintiff issued a supplemental production request to the Defendant regarding the doctor. Receiving no response, it issued a subpoena duces tecum to the doctor. Finally, the trial court ordered the Defendant to produce the materials requested in the subpoena duces tecum on three separate occasions and set a deadline for compliance of 5:00 P.M. on November 1. As a sanction for the failure to comply with the discovery 46

47 deadlines, the trial court barred Defendant s experts from testifying and subsequently awarded $4, in costs and attorney s fees to Plaintiff which represented the cost of securing the testimony of the healthcare provider s billing representative. The Appellate Court upheld the ruling of the trial court, finding that barring of testimony was a proper discovery sanction and that the award of costs and attorney s fees to secure the testimony of the healthcare billing provider was a fair sanction. The court reaffirmed that a party has a good faith obligation to make a reasonable effort to secure answers to requests to admit from persons and documents within the responding party s reasonable control. It also found that a civil defendant has an affirmative obligation under the rules of procedure to admit or deny requested admissions in good faith or, if the requested admission isn t proper due to privilege, form, or any other reason, to file an objection within the 28 days given for responding, and, if a Plaintiff can show that the Defendant has not complied with these affirmative obligations, the Plaintiff may obtain reasonable expenses, regardless of whether Defendant had the intent to obstruct the progress of litigation. This case also discussed sanctions for filing a frivolous appeal. h. Sharbono v. Hillborn, 2014 Ill. App. (3d) : Plaintiff was the estate of the decedent who died from breast cancer. The breast cancer was initially diagnosed in August 2006, but decedent had gone to see her primary care doctor in Decedent s doctor ordered a mammogram, which was interpreted by Defendant. The mammogram showed a lesion in decedent s left breast, so an ultrasound was ordered. Following an evaluation of the ultrasound, Defendant ultimately concluded that the lesion in Plaintiff s left breast was benign. Decedent s estate sued Defendant for medical malpractice on the basis of Defendant s erroneous diagnosis. At the trial, Defendant s expert used a slide show presentation which contained images from the decedent s test as well as from a treatise. This was presented as demonstrative evidence rather than real evidence. The jury subsequently returned a verdict in favor of the Defendant. Plaintiff appealed on the basis that the slide show used by Defendant s expert was real evidence and not demonstrative evidence, and that Defendants failed to lay foundation for this evidence. The Appellate Court noted that demonstrative evidence consists of objects that do not have a direct part in the incident at issue and are only being used to help explain or illustrate to the trier of fact the testimony of a witness or other evidence. The court further noted that demonstrative evidence has no probative 47

48 value in and of itself and is merely admitted or used as a visual aid to the trier of fact. The Appellate Court ruled that the slide show presentation containing the treatise images along with the patient s own test was used as real evidence because the images from the decedent s tests were placed under heading such as benign and benign appearing lesions and that there was no reason for this other than to support and show the basis for the expert medical opinion. The court reversed the trial court and remanded the case for a new trial. i. Xeniotis v. Satko, 2014 Ill. App. (1 st ) : Plaintiff brought a dental malpractice action against an oral surgeon. One of the allegations was that the patient lacked informed consent. During Plaintiff s expert s deposition, the expert testified that he could not give an opinion as to whether Defendant breached the standard of care with regard to informed consent. The expert subsequently submitted an affidavit in which he attested that he was of the opinion that the Defendant doctor breached the standard of care because her records failed to describe the risk of failure or other complications of the implant procedure. Defendants moved for summary judgment on the basis that Plaintiff had not filed a 2-622(a)(1) report supporting her allegations (735 ILCS 5/2-622). Defendants further made a motion to strike the affidavit of Plaintiff s expert. The trial court struck the affidavit of Plaintiff s expert because it contradicted his deposition testimony and granted summary judgment in favor of Defendant. On appeal, the Appellate Court affirmed the decision, agreeing that Plaintiff was required to support her lack of informed consent claim with expert medical testimony establishing the standard of care, and that the trial court was justified in striking the expert s affidavit based on the change of his deposition testimony. j. Jones v. Beck, 2014 Ill. App. (1 st ) : Plaintiff filed a medical malpractice case against physician alleging that physician was negligent in failing to insert a nasogastric (NG tube) which resulted in perforations of the patient s colon. The case proceeded to trial and a jury verdict was returned for Defendant. Plaintiff appealed on the basis that Defendant failed to adequately disclose its expert s opinion prior to trial. The Appellate Court held that the expert opinion had been adequately disclosed because the disclosure indicated that the expert disagreed with the Plaintiff s expert s opinion that the standard of care required the physician to insert an NG tube. Further, the court noted that the expert had reviewed patient s records and disclosed his expert s education, training and experience as basis for their anticipate opinion testimony. The Appellate Court also dealt with jury instructions and the dismissal of a juror. 48

49 k. Lorenz v. Pledge, 2014 Ill. App. (3d) : Plaintiff was the estate of two decedents who were killed when the vehicle they were traveling in was struck by a police officer. At the time of the accident, the officer was pursuing another vehicle at speeds approaching 100 mph. The officer s vehicle struck Plaintiff s vehicle during the chase. Prior to the trial, both parties filed motions in limine. Plaintiffs sought to exclude a videotape prepared by a defense expert that portrayed a visibility, or line of sight study undertaken by Defendant s expert, designed to give an indication of the line of sight down the road that the officer was traveling and Plaintiff would have had from the left turn lane. The trial court denied the motion and further denied Defendant s motion for summary judgment. The video was introduced at trial, and Plaintiffs renewed their objection. The jury subsequently returned a verdict for Defendants after asking to see the squad car video. Plaintiff appealed on the basis that the video should not have been admitted without adequate foundation. The Appellate Court held that the conditions under which the line of sight video was recorded were not substantially similar to those that existed at the time of the accident and thus adequate foundation was not laid for the admission of the video. It further found that the admission prejudiced Plaintiffs and remanded the case to the trial court for a new trial. IV. LIMITATIONS a. Evanston Insurance Company v. Riseborough, 2014 IL : This matter arose out of underlying litigation which involved a general contractor and a personal injury suit brought against it by its employee. At the time of the accident, the general contractor was a named insured under primary and excess policies and was an additional insured on each of its subcontractor s insurance policies, one of which was the Plaintiff in this action. Employee and general contractor subsequently settled for five million dollars. To fund this, the insurance companies entered into an agreement, which was referred to by the parties as a Fund and Fight Agreement in which they agreed to contribute their policy limits to fund the settlement. The Agreement provided that the insurers reserved the right to litigate policy and coverage defenses among themselves. The general contractor and its primary insurance company also agreed to reimburse the contributing insurers if defenses to coverage on behalf of any or all of these insurers are judicially found to be valid or the position taken by the general contractor and primary insurer is invalid. An attorney from the firm representing the general contractor signed the agreement as the duly authorized agent and representative of general contractor. Plaintiff filed a 49

50 declaratory judgment stating that the primary insurer and general contractor were obligated to reimburse it under the terms of the agreement. In response, the president of the general contractor filed an affidavit stating that he had no knowledge of the agreement at the time of its creation and that the attorney lacked authorization to sign the agreement on the general contractor s behalf. Plaintiff filed a complaint against Defendant attorneys in 2005, which was dismissed because at the time of filing the complaint the insurance company had not established its entitlement to collect reimbursement from the general contractor under the terms of the agreement. Subsequently, in 2009, nine years after the Fund and Fight Agreement was entered into, the insurance company filed its second amended complaint. Defendant law firm filed a motion to dismiss arguing that the six year Statute of Repose barred the insurance company s claim. Trial court dismissed. Appellate Court reversed and remanded for further proceedings and Supreme Court accepted the appeal. The Supreme Court held that it was the nature of the act or omission, rather than the identity of the Plaintiff that determines whether the six year Statute of Repose for actions against an attorney applied to the excess insurer s claims against the attorney in the law firm. This overruled Ganci v. Blauvelt, 294 Ill. App. 3d 508, 228 IL Dec 890, 690 N.E.2d 649. It additionally found the circuit court s dismissal of the 2005 complaint did not toll Statute of Repose, and that the Statute of Repose began running on the date the attorneys purportedly entered into a Fund and Fight Agreement between the insurers without the authorization of their client. The policy reason behind this was to allow a definite time period after which parties could be certain they would not be liable. b. Kadlec v. Sumner, 2013 Ill. App. (1 st ) : Legal malpractice action. Plaintiff was the Executor of the estate of decedent and hired Defendant attorney to administer the estate and prepare a tax return. Both Plaintiff and Defendant attorney knew that the estate tax returns were due to be filed on February 15, The parties obtained a six month extension to file the returns, meaning that the returns should have been filed on August 16, On February 15, 2008, the Plaintiff and Defendant entered into an agreement whereby they mutually agreed to toll the statute of limitations applicable to a legal malpractice action to September 21, Complaint for legal malpractice was filed on September 18, Defendant attorney then filed a complaint for contribution against accounting firms that were allegedly supposed to prepare the estate s tax return. Third party Defendants filed a motion to dismiss the contribution claim because the two year statute of limitations covering accounting malpractice had 50

51 expired. Further the third party Defendants argued the Defendant attorney could not avail herself of the two year statute of limitations provide for in 735 ILCS 5/13-204(b) which allows a contribution action to be filed within two years after a party seeking contribution or indemnity has been served or served with process in the underlying action but only to the extent that Claimant in an underlying action could have timely sued the party from whom contribution or indemnity is sought, based on Plaintiff and Defendant s agreement to toll the statute of limitations. Circuit court granted the third party Defendant s motion to dismiss. The Appellate Court held that for purposes of the discovery rule, the statute of limitations for any accounting malpractice claim by the client began to run on the day that the Federal Estate Tax Return should have been filed, because the attorney should have realized that something was wrong on that day. c. McCarthy v. Pointer, 2013 Ill. App. (1 st ) : Plaintiff initially sued Defendant and two other individuals for defamation. Defendant was an officer of a fraternity. After trial on the merits, Plaintiff obtained leave of court to amend his complaint to add the fraternity as a Defendant. The trial court, however dismissed Defendant individually, with prejudice. After further legal meandering, Plaintiff obtained a judgment against the fraternity in the trial court, which was reversed by the Appellate Court. Plaintiff then sought to vacate the order which dismissed Defendant from the case, five years after the order was entered. Plaintiff s theory was that the dismissal order was a void order due to the alleged deceptive conduct of the fraternity, its district, and Defendant, which deprived the trial court of the opportunity to review and correct any errors. The trial court agreed with Plaintiff and entered an order vacating its 2007 order. The Appellate Court first noted that the trial court had both subjectmatter and personal jurisdiction at the time of the entry of the order, so those were not valid points in finding the order void. The court then disposed of Plaintiff s arguments regarding fraud, by finding that Plaintiff had not made sufficient allegations of fraud and that the case law did not support the allegation that a fraud on the court which does not affect jurisdiction renders a judgment void. 51

52 V. PLEADINGS a. McDonald v. Lipov, 2014 Ill. App. (2d) : Plaintiff filed a pro se medical malpractice and medical battery complaint which did not include a Section 2-622(a)(1) certificate of merit signed by a practicing physician. (735 ILCS 5/2-622(a)1) Defendants filed a motion to dismiss which the trial court granted with prejudice. The Plaintiff appealed arguing that she was not required to file a certificate of merit as part of her medical battery claims. The Appellate Court agreed with the trial court that a certificate of merit is required in a medical battery case. VI. TRIAL ISSUES a. Cholipski v. Bovis Lend Lease, Inc., 2014 Ill. App. (1 st ) : Plaintiff was injured when a piece of metal tubing fell on him while he was working on a construction project. He a brought a negligence action against the construction company. Six months prior to the start of the trial, Defendants filed a third party complaint for contribution alleging that Plaintiff s pain management doctor committed malpractice in his diagnosis of and in his failure to treat Plaintiff, and the doctor s malpractice was the cause of Plaintiff s current pain and incapacitation. The trial court granted Defendants leave to file their contribution claim but stayed the claim pending the outcome of the trial on Plaintiff s negligence claims. The construction company appealed the stay. The Appellate Court noted that the trial court did not act outside its discretion by staying a proceeding in favor of another proceeding that could dispose of significant issues. In this case, it found that the resolution of the trial had the possibility of being completely dispositive of the entire case, so the stay was warranted. b. Egan v. McCullough, 2013 Ill. App (1 st ) : The estates of three passengers who were killed in a car accident brought suit against the driver of the car and the driver of the truck that hit them alleging that both were traveling too fast for road conditions. The evidence showed that on the day of the accident, it was snowing and that both cars were traveling below the posted speed limit. Prior to trial, Plaintiffs filed a motion in limine asking that all evidence or argument that anything other than the Defendants alleged negligence caused Plaintiffs injuries be barred. The motion was granted without objection. At the conclusion of the evidence in the trial court, Plaintiff submitted a jury instruction which was a modified version of IPI Civil No. 3.06, which stated as follows: The Court has 52

53 determined that this collision is not one that occurred in the absence of negligence and that one or more of the defendants is liable to the plaintiff. The instruction then went on to indicate that the jurors needed to decide which Defendant was liable. The circuit court denied the jury instruction, and a unanimous jury verdict was entered in favor of all Defendants. The Appellate Court held that the jury instruction was proper, because there was a substantial amount of disputed evidence as to whether the driver of the car or the driver of the truck was driving too fast for conditions. As such, the court reasoned that it fell within the province of the jury to determine the negligence, if any of the Defendants. c. Fakes v. Eloy, 2014 Ill. App. (4 th ) : Plaintiff was the estate of a patient who died while under treatment of Defendant doctor. Case proceeded to jury trial, during which Plaintiff s counsel asked Defendant doctor what his opinion was with regard to the cause of Plaintiff s death. Defendant doctor had previously testified at deposition that to a reasonable degree of medical certainty the patient s death was caused by a certain bleeding process. At trial, doctor testified that he was not exactly sure what caused the patient s death, and the Judge allowed this testimony to stand. Plaintiff appealed, and the Appellate Court held that the trial court committed error in permitting the doctor s testimony to stand because the cause of death was a critical issue in this case, and if the doctor wanted to change his testimony he was required to seasonably supplement it. Absent the supplementation, Decedent s estate had the absolute right to expect the doctor s testimony at trial would be substantially similar to his deposition testimony. d. Pister v. Matrix Service Industrial Contractors, Inc., 2013 Ill. App. (4 th ) : Plaintiff was the estate of an individual who was struck and killed by another individual who was driving to report to work. The individual who was reporting to work was driving from Ohio toward a construction site in Champaign with construction supplies in order to start a job for which he was hired by the Defendant. Plaintiff filed a complaint against the decedent s estate which also contained two counts of respondeat superior against the decedent s employer. The case proceeded to jury trial, and the central issue was whether the decedent was within the scope of his employment with Defendant at the time of the accident, as demonstrated by the decedent transporting materials and equipment in his vehicle. The Judge refused to tender Illinois Pattern Jury Instructions (IPI), and instead tendered only a Non Pattern Jury Instruction which defined the special errand theory of liability that was presented by the Plaintiff. The jury returned a verdict for Defendant, and Plaintiff argued that the 53

54 Judge should have tendered an IPI jury instruction regarding agency law. The Appellate Court affirmed the trial court, finding that the failure to tender the IPI jury instruction was harmless error. VII. MICELLANEOUS a. Shoup v. Gore, 2014 Ill. App. (4 th ) : Plaintiff was a surveyor who was injured while surveying property for an electrical utility. In February 2010, Plaintiff filed a Chapter 13 bankruptcy petition. The cause of action against the utility subsequently accrued in October Plaintiff failed to take any action to amend his bankruptcy filing or otherwise advise the bankruptcy court or the trustee of his claim against the Defendants prior to receiving a discharge on June 25, Plaintiff filed his personal injury lawsuit against Defendants on June 8, 2012, and Defendants filed a motion for summary judgment claiming the doctrine of judicial estoppel barred the Plaintiff s claims because he never advised the bankruptcy court of the claim against the Defendants. The Appellate Court noted that judicial estoppel applies if the following five separate elements are present: 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 receive some benefit thereby; 5) the two positions must be totally inconsistent. In this case, the Appellate Court found that the Plaintiff took two different positions in two separate judicial proceedings under oath by impliedly representing to the bankruptcy court that he had no pending lawsuit while at the same time pursuing a lawsuit in state court. It further held that since the Plaintiff received a discharge from bankruptcy court without its knowledge of the personal injury, the Plaintiff received a benefit from the inconsistent positions. The Appellate Court affirmed the trial court. b. American Service Insurance Co. v. China Ocean Shipping Co. Inc., 2014 Ill. App. (1 st ) : This case involved a fatal multi-vehicle trucking accident. The principal case had already been litigated, appealed and finalized and this matter only involved the payment of attorney s fees between insurance companies. This case was very fact specific and involved whether or not additional discovery could be conducted in the fee petition case. The Circuit Court ruled that additional discovery was not necessary and the Appellate Court affirmed. Additional details can be found by reading the case. 54

55 c. Dass v. Yale, 2013 Ill. App. (1 st ) : The Plaintiff condominium owner sued Defendant for fraudulent misrepresentation. The Defendant alleged that he was acting as the manager of an LLC at all relevant times. Plaintiff argued that the LLC Act (805 ILCS 180/10-10) should not shield Defendant from liability for fraudulent misrepresentation. After a number of amended complaints, Defendant s motion for summary judgment was granted. On appeal, the court noted that Plaintiff was not suing the Defendant in his individual capacity and did not argue that Defendant should be liable through the doctrine of piercing the corporate veil. Instead, the Plaintiffs were arguing that the relevant section of the LLC Act does not exempt LLC members or managers from personal liability for torts or fraud committed in their capacity as members or managers of the LLC. The court determined that the purpose of the LLC Act was to shield individuals from liability, and that if the legislature had intended that LLC members could be personally liable for their actions as LLC managers, it would have amended the statute. d. Themas v. Greens Tap, Inc., 2014 Ill. App. (2d) : Plaintiff sued Defendant tavern, alleging that a fan at the tavern severed the tip of her finger. The complaint included a jury demand. The tavern filed a third party complaint against its insurance company, alleging that the insurance company undertook to provide all necessary insurance for the bar business but provided only dram shop insurance and not general liability coverage. The third party complaint did not contain a jury demand. Insurance company answered and filed a jury demand. Plaintiff and tavern eventually settled, with tavern agreeing to pay Plaintiff a small cash settlement and assigning her its claim against the insurance company. Insurance company then moved to withdraw its jury demand and set the matter for a bench trial. Plaintiff objected, arguing that her jury demand filed with the original complaint covered the assigned claim against insurance company. Insurance company responded that Plaintiff took the assigned claim as she found it and that the tavern had not filed a jury demand with the third party Complaint. The trial court agreed with the insurance company and set the matter for a bench trial. Following the bench trial the court entered judgment for the insurance company. On appeal, the Appellate Court held that the Plaintiff s jury demand regarding her personal injury claim against the tavern applied to the tavern s third party claim, finding that the assignee of a claim for damages steps into the shoes of the assignor means only that the assignment removes some legal impediment, not that it means that the assignee takes the existing court case exactly as she finds it. 55

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