Brown v. Advocate Health – Trial Court Did Not Abuse Discretion in Requiring In Camera Inspection of Self-Insured Trust Documents Withheld by Defendant Hospital

Brown v. Advocate Health and Hospitals Corporation, No. 1-16-1918.

Facts:  Defendant identified a self-insured trust with coverage of $14.5 million but refused to produce the corresponding documents.  Plaintiff presented a motion to compel and the trial court ordered that defendant produce the documents for in camera inspection.  Defendant refused and requested a friendly contempt finding in order to appeal the order.

Holding:  Trial Court did not abuse discretion in requiring defendant to produce the documents for in camera inspection and defendant’s argument that the documents were not relevant is incorrect as the amounts of available insurance coverage for a claim is important information for litigants as a practical matter and should be fully disclosed.

Filed in Trial Book Under:  Discovery; Insurance Coverage

Commentary:  I have not run into this specific response from a defendant to a request for insurance information but often get some type of “relevance” objection to the production of actual policy documents.  Typically, the defendants will disclose the amount of insurance and excess policies in their answers to interrogatories and then file a pro-forma objection when the documents are requested in a 214 Request for Production.  As a practical matter, this non-disclosure tactic works because the insurance coverage is adequate to satisfy any judgment and/or the actual insurance contract documents are not particularly needed to determine whether there is coverage or not so it’s not worth fighting over in a motion to compel.  In cases where there may be a coverage issue, like construction claims where there are tenders from the general to a sub-contractor, it is important to actually see the language in the contract, so this case could be helpful in the event that there is push back in producing it.   Moreover, in a case where the damages are extensive and could easily exceed the different policies it would be a good idea to have access to the actual agreements so this case could be useful in that type of dispute.  Also of interest in this case is that Justice Gordon filed a dissenting opinion finding that the documents would likely be confidential financial documents that should not have been produced.

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Filed under Discovery, Insurance Coverage, Uncategorized

Cox v. US Fitness, LLC – Summary judgment in favor of gym operator upheld due to valid exculpatory clause signed by Plaintiff

Cox v. US Fitness LLC, 2013 IL App (1st) 122442 (Hyman)

Facts:  Plaintiff joins a gym and signs a waiver acknowledging the risks of injury associated with the gym membership, including equipment and fitness advisory services.  Later, she buys a personal training fitness package and while jumping onto risers that were set by her trainer at 18″ high, they collapsed and caused her to fall and seriously injure her wrist.  The defendant moved for summary judgment on the basis of the signed waiver and the trial court dismissed the case.  Plaintiff appeals.

Holding:  Summary judgment in favor of defendant was proper because the plaintiff’s personal training sessions fell within “fitness advisory services” and therefore were contemplated within the valid waiver signed by plaintiff.  Also, the inability of the defendant to produce the supplemental contract for personal training services, which was arguably a technical violation of the Physical Fitness Services Act requiring the gym to maintain original copies for 3 years, did not serve to create a question of fact as to a valid contract modification that would invalidate the waiver because plaintiff failed to produce specimen copy and was merely speculating on its impact.

Filed in Trial Book Under:  Gyms/Health Clubs, Exculpatory Clauses, Waiver of Liability, Unconscionability

Commentary:  No big surprise here.  Exculpatory clauses within the context of injuries at gyms and health clubs have long been deemed valid and not against public policy.  The injury suffered by the plaintiff clearly fell within the type of occurrence that would be contemplated in the release.

Useful Rules/Language from the Opinion:

Exculpatory Clauses/Waiver of Liabilty:  “The precise occurrence that results in injury *** need not have been contemplated by the parties at the time of contracting.” Id. “The injury must only fall within the scope of possible dangers ordinarily accompanying the activity and, therefore, reasonably contemplated by the parties.” (Internal quotation marks omitted.) Hamer v. City Segway Tours of Chicago, LLC, 402 Ill. App. 3d 42, 45 (2010).

Unconscionability:  Whether a contract is unconscionable is a matter of law. Razor v. Hyundai Motor America, 222 Ill. 2d 75, 99 (2006). The courts recognize two types of unconscionability: (i) “procedural unconscionability” occurs where “a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it, and also takes into account a lack of bargaining power;” and (ii) “substantive unconscionability refers to those terms which are inordinately one-sided in one party’s favor.”  To determine procedural unconscionability, courts consider: (i) the manner in which the contract was entered into; (ii) whether each party had a reasonable opportunity to understand the terms of the contract; and (iii) whether important terms were hidden in a maze of fine print. Frank’s Maintenance & Engineering, Inc. v. C.A. Roberts Co., 86 Ill. App. 3d 980, 989-90 (1980).

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Filed under Negligence

Williams v. BNSF Railway Co. – Railroad failed to file its appeal within 30 days of trial court’s oral order denying its post-trial motion

Williams v. BNSF Ry. Co., 2013 IL App (1st) 121901 (Mason)

Facts:  Plaintiff obtains verdict against the defendant and third party defendant in an F.E.L.A. case.  The defendant files a post-trial motion raising 45 different substantive basis as to why the verdict should be overturned or modified and also a 46th point seeking a set-off for taxes that would be paid for future wage loss.  On April 18, 2012, the trial court denied the defendant’s motion on the 45 different substantive bases in an oral ruling but took the “taxation” issue under advisement and indicated it would issue a ruling in the future.  On May 31, 2012, the defendant brought an emergency motion seeking leave to file supplemental authority relating to a remittitur claim that had been previously denied.  The trial court reiterated that the only issue under advisement was the taxation issue but made a comment that it was appropriate for the defendant to bring new case law to the court’s attention.  The trial court asked the parties to come back on June 6, 2012 and at the hearing on that date distinguished the case law that defendant provided and denied the defendant’s motion.  The parties then fought over the wording in the order, with the defendant seeking language that made it appear as if the order related to all aspects of the post-trial motion and the plaintiff seeking the order to reflect a ruling limited only to the disability payment remitittur and taxation issue.  The trial court sided with the plaintiff on the language in the order.  On June 29, 2012, the defendant filed its notice of appeal.

Holding:  The defendant’s request for a set off only serves to satisfy, not modify, the judgment and therefore did not serve to toll the time for filing the notice of appeal on the other grounds of the post-trial motion and because more than 30 days elapsed before the defendant filed it notice of appeal it was not timely and the appeal was properly dismissed.  The fact that the trial court did not issue a written order denying the post trial motions does not make the oral ruling of April 18, 2012 any less final.

Filed in Trial Book Under:  Notice of Appeal, Set-Off, SCR 272, Final and Appealable Order

Commentary:  The defendant’s attorney is likely in hot water with the client over this case.  This was a seven figure verdict and with 45 different grounds for new trial raised in the post-trial motion, the defendant clearly believed that they had a bad trial.  In light of the claimed confusion over the finality of the oral ruling on April 12, 2012, it was incumbent upon the defendant’s attorney to get a clarification relating to the impact of the oral ruling.  The opinion cites the recent case of Hernandez v. Pritikin on the issue that its a movant’s responsibility to obtain a ruling on his motion of he is to avoid forfeiture on appeal.  I’m surprised that on a case of this magnitude that a written order wasn’t required by the trial judge, or at least requested by the defendant’s attorney.  Making a clear and easy to understand record is a good practice to adopt and this case is a great example of the perils of permitting confusion to prevail without asking for clarification.

Useful Rules/Language from the Opinion:

Set-Offs:  “As our supreme court has noted, a request for a setoff seeks to satisfy, not modify, the judgment entered by the trial court. Star Charters v. Figueroa, 192 Ill. 2d 47, 48 (2000)…..Because the request is not a motion directed against the judgment, it is not subject to the 30-day time limit applicable to post-trial motions.” (Emphases in original.) Star Charters, 192 Ill. 2d at 48-49.

Final and Appealable Orders and SCR 272:  “Finally, the fact that the trial court did not issue a written order denying the posttrial motions does not make the oral ruling of April 18 any less final. Illinois Supreme Court Rule 272 provides that if, at the time of announcing final judgment, the judge requires the submission of a written order or if a circuit court rule requires the prevailing party to submit a draft order, the judgment is not final until the signed judgment is filed. Ill. S. Ct. R. 272 (eff. Nov. 1, 1990). However, Rule 272 further provides that if no such signed judgment is to be filed, the judgment is entered at the time it is entered of record.

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Filed under Appeal

Egan v. McCullough – Trial court did not err in refusing an instruction that at least one of the drivers was negligent in death of passengers

Egan v. McCullough, 2013 IL App (1st) 122475 (Hyman)

Facts:  The executors of the estates of three women killed when they were passengers in a car that collided with a truck on an icy road filed wrongful death claims against both the driver of the vehicle and the driver of the truck (and his employer and affiliates) alleging that both drivers were traveling too fast for conditions and that the truck driver should have not have veered to the right prior to the collision.  Prior to trial, the plaintiff presented a motion in limine that sought to bar any argument or reference that anything other than the alleged negligence of the defendants caused or contributed to cause plaintiffs’ injuries, which was not objected to by the defendants and granted.  At trial, the evidence revealed that the roads were “icy, slushy, slippery, treacherous” and both of the drivers were traveling below the posted speed limit.  The driver of the car lost control of her vehicle on the ice and began to fishtail and cross over the center line and into the truck’s path of travel.  In response to this, the truck driver began to slow his vehicle in a controlled braking and also veered to the right into a field.  The car continued to cross into the oncoming lanes and also veered into the field where the car and truck ultimately collided.  The three passengers in the vehicle were killed as a result of injuries sustained in the collision.  The plaintiff presented an expert witness that was critical of the truck driver for traveling too fast for conditions and opined that had he been traveling 30 mph, which was 25 mph below the posted speed limit, he would have been able to stop his truck without colliding with the plaintiff.  The plaintiff also presented 3 animations showing various fact patterns, including a theory that if the truck driver had stayed in his lane and not veered to the right, the truck would have just missed colliding with the vehicle as it crossed over the oncoming lanes.  The plaintiff’s expert conceded on cross examination that the vehicle code does not require trucks to travel 25 mph below the speed limit, that he would not advise a driver to stay in its lane if a vehicle is crossing into its path of travel and that once the car crossed the center line the truck driver had 1.5 seconds to perceive the situation, decide on an action plan and react.  After the close of evidence, the plaintiff submitted a modified IPI 3.06 jury instruction that advised the jury that the court had determined that the collision is not one that occurred in the absence of negligence and that one or more of the defendants is liable.  The trial court ruled that it would be improper for the jury to be instructed that it had determined that the collision was a result of negligence because no motion for directed verdict had been presented or granted by the court and neither of the defendants had conceded negligence.  The trial court refused the instruction and the jury found in favor of both defendants.

Holding:  Trial court did not abuse its discretion in refusing to give an instruction that at least one of the drivers was negligent since there was substantial disputed evidence as to whether either driver was negligent and the jury was free to find that both drivers acted reasonably under the circumstances.

Filed in Trial Book:  Standard of Review – Jury Instructions, Absence of Negligence, Snow and Ice, Directed Verdict, New Trial

Commentary:  This is the kind of result that keeps plaintiff’s lawyers up late into the night.  Typically, representing a passenger in a motor vehicle collision is a great case for the attorney because you file suit against both defendants and let the jury sort out the degrees of fault between the drivers.  But this case was far from typical and demonstrates that the mere existence of a collision does not always mean that you can establish negligence against the defendant drivers.  The plaintiff argued on appeal the finding from Millette v. Radosta, 84 Ill.App. 3d 5 (1980), which held that “an automobile properly operated does not, under normal conditions, collide with another automobile or strike a building. Where two automobiles collide under normal conditions, it will be presumed that the collision occurred from the negligent operation of one or both colliding automobiles.”   But the appellate court distinguished this case and found that the accident did not occur under “normal conditions” and because of the icy road conditions the collision could have occurred in the absence of negligent driving.  This conclusion is a bit troubling because snow and ice is not unusual on Illinois roads in the winter (or fall and spring) and drivers need to be accountable for how they operate their vehicles in these conditions.  In my opinion, ice is a normal condition that drivers find in the winter, and if you lose control of the vehicle while driving on an icy road, it seems to follow that this loss of control occurred because you were traveling too fast for the conditions present on the road.  Adding typical and predictable snow and ice conditions on a roadway to the “act of god” defense seems to have the potential for unjust outcomes.

I don’t know what the policy limits were on the car, but I suspect that the likelihood of collecting  on a substantial verdict was much greater if the truck’s responsibility for the collision was at least 25%, and as a result the plaintiff tried to steer as much evidence of negligence onto the truck drier as they reasonably could.  From the facts presented in the opinion, it appears that the majority of any potential liability was on the driver of the vehicle who set the collision in motion when she lost control of her vehicle on ice and veered over the center line and into the path of the truck.  At that time, the truck driver was driving below the speed limit and, importantly, there was no evidence that he lost control of the truck on the ice.  Instead, he deliberately veered to the right to avoid the collision.  I think that the plaintiffs theory that the collision could have been avoided had the driver not veered to the right and stayed straight on his original path is a really tough argument to sell to a jury.  It’s hard to criticize a driver for instinctively veering away when suddenly presented with a vehicle crossing over the center line into its path of travel, and the plaintiffs’ retained expert conceded on cross-examination that he would not advise drivers to continue driving straight when a car crosses the center line into their lane of travel. Clearly, if the plaintiffs had received the jury instruction that they tendered regarding fault, the jury would have had to find one of the drivers responsible.  But based upon the evidence presented to the jury, the trial court refused the instruction because there was disputed evidence on whether any of the acts of the drivers were unreasonable under the circumstances.

Again, this is a heartbreaking result.  The plaintiffs were represented by a very good attorney with a track record for very successful results at trial, and with the expert testimony and three animations presented to the jury in support of the plaintiffs theory, it’s clear that no expense was spared in preparing the case for trial.  Yet, at the end of the day it seems as if the jury identified with the plight of the drivers on the snowy and slick road.

Useful Rules/Language from the Opinion:

Standard of Review – Jury Instructions:  A trial court has discretion to determine which instructions to give the jury and that determination will not be disturbed absent an abuse of that discretion. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002).  A circuit court does not abuse its discretion regarding jury instructions if the instructions in their entirety “fairly, fully, and comprehensively apprise[ ] the jury of the relevant legal principles.” Id. A reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless they plainly misled the jury and resulted in prejudice to the appellant. Id. at 274.

Absence of Negligence:  ‘[W]e believe a presumption of negligence does arise when the occurrence is shown to proceed from a performance of acts of such character, that when due care is taken, no injury ordinarily results from it. An automobile properly operated does not, under normal conditions, collide with another automobile or strike a building. Where two automobiles collide under normal conditions, it will be presumed that the collision occurred from the negligent operation of one or both colliding automobiles.’ Millette v. Radosta, 84 Ill. App. 3d 5, 27 (quoting Krump v. Highlander Ice Cream Co., 30 Ill. App. 2d 103, 105-07 (1961))….That the accident did not occur under “normal conditions” constitutes another characteristic distinguishing this case from Millette.  As plaintiffs tried to establish throughout the trial, snow covered Peace Road when the accident occurred, and witnesses offered differing opinions about the condition of the road and the effect it may have had on driving conditions. Therefore, unlike in Millette, it cannot be said that under the conditions present on Peace Road on December 1, 2008, an accident could not have happened unless one or both of the parties were negligent.

Directed Verdict:  Where a substantial factual dispute is disclosed by the evidence, the question of plaintiff’s due care or defendant’s negligence should be given to the jury for determination. Korpalski v. Lyman, 114 Ill. App. 3d 563, 566 (1983)

New Trial:  A court of review will not reverse a circuit court’s decision with respect to a motion for a new trial unless it finds the circuit court abused its discretion, and the reviewing court must be “mindful that credibility determinations and the resolution of inconsistencies and conflicts in testimony are for the jury.” York, 222 Ill. 2d at 179. An abuse of discretion occurs only if “no reasonable person would take the view adopted by the trial court.” Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).

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Filed under Automobile, Negligence, Trial

Harden v. City of Chicago – City not liable for pedestrian fall that was outside of marked crosswalk despite her claim that lines were not visible due to snow

Harden v. City of Chicago, 2013 IL App (1st) 120846 (McBride)

Facts:  Plaintiff was injured while crossing the street when she stepped on a metal plate that had been placed over the road due to construction on Wacker Drive and Adams Street.  Plaintiff admitted in her deposition that she stepped off the curb in the area in-between the stop line and the crosswalk and the photo of the metal plate showed that the area of her fall was three feet outside of the marked lines of the crosswalk.  Defendant moved for summary judgment on the basis the plaintiff was not an intended and permitted user of the road at that location and pursuant to section 3-102 of the Tort Immunity Act the defendant owed no duty to plaintiff.  Plaintiff argued that due to the lack of visibility of the lines and the forgeability that pedestrians would cross in that location, the definition of a crosswalk should be broadened to include the area of the fall as an unmarked crosswalk.  The trial court granted the defendant motion for summary judgment and plaintiff appeals.

Holding:  Summary judgment was proper because plaintiff fell outside of the marked crosswalk lines and was not an intended and permitted user of the roadway despite her claim that the crosswalk lines were not visible due to snow.

Filed in Trial Book Under:  Section 3-102 of the Tort Immunity Act, Intended and Permitted User, Crosswalk

Commentary:  It is the intent of the municipality that dictates whether a pedestrian is an intended or permitted user or not.  Here, there was a marked crosswalk so the intent of the municipality was clear and any fall outside of the marked lines was not actionable.  The case has a great discussion of most of the major cases on the issue.

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Filed under Tort Immunity

Edwards v. Lombardi – Llama attack not actionable because caretaker assumed risk of injury

Edward v. Lombardi, 2013 IL App (3d) 120518 (McDade)

Facts: Plaintiff was injured by a llama while caring for the defendants animals when they were out of town.  The plaintiff testified that he had seen prior incidents of aggressive behavior by the llama including an incident in the presence of the defendant where the llama reared up and bloodied the nose and mouth of plaintiff.  Defendant denied knowledge of any aggressive behavior towards the plaintiff or other humans, but admitted to seeing the llama exhibit aggressive behavior toward other animals.  The plaintiff initially filed suit under the Animal Control Act, which the defendant raised affirmative defenses, including assumption of the risk.  The Animal Control count was dismissed with leave for the plaintiff to add a negligence count.  The defendant then moved for summary judgment, without having first raised the affirmative defense of assumption of the risk, and the trial court granted the motion specifically finding that the plaintiff had assumed the risk of injury.

Holding:  As a result of past attacks on the plaintiff, he assumed the risk of injury when accepting a job that involved feeding the animal.  Further, plaintiff waived its argument that the assumption of risk wasn’t specifically pled or that the deliberate encounter exception applied because they weren’t raised in the underlying proceedings.

Filed in Trial Book Under:  Animal Control Act, Animals, Assumption of Risk, Waiver

Commentary:  Clearly the plaintiff was a “keeper” of the animal under the Animal Control Act so the dismissal of that count was not surprising, nor a subject of the appeal.  The problem for him is that as a “keeper” with a paid contract to care for the animal, coupled with specific knowledge of the dangerous propensities of the llama, he was hard pressed to be able to argue against the assumption of the risk.  What’s more interesting here is the throwaway comment by the appellate court regarding the waiver of the deliberate encounter exception where the opinion states:

“we note that is unclear whether the deliberate encounter exception would apply to Edwards’ assumption of the risk. The doctrine normally applies in the context of open and obvious dangers on land, although the appellate court in Morrissey indicated that even when primary assumption of the risk applies, the deliberate encounter exception may still allow a plaintiff to recover. (Morrissey, 404 Ill.App.3d at 732 (finding insufficient support to conclude that primary assumption of the risk necessarily abrogates the deliberate encounter exception)). We need not decide whether the deliberate encounter exception applies here, however, because once again Edwards has waived the argument on appeal by failing to raise it below.”

I would have liked to have seen the analysis on this issue because it seems as if the deliberate encounter exception would be appropriate here.

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Filed under Animal Control Act, Negligence

Betts v. City of Chicago – Trial court was too restrictive on discovery allowed to plaintiff to respond to motion to dismiss

Betts v. City of Chicago, 2013 IL App (1st) 123653 (McBride)

Facts:  Plaintiff was injured in her parked car when an undercover police officer backed into her vehicle while he was trying to pull out of his parking space while on duty in an undercover surveillance.  Defendant presented a motion to dismiss on the basis that section 2-202 of the Tort Immunity Act immunized the officer from a negligence suit because he was in the execution and enforcement of the law at the time of the collision.  Defendant produced an affidavit that merely concluded that the officer was on duty and “in the scope of his duties” at the time of the incident.  The plaintiff requested a limited discovery deposition to develop facts detailing what the officer was actually doing at the time of the occurrence, but the trial court denied the request and instead permitted 5 interrogatories to be submitted to the defendant.  The defendants answers to interrogatories described his activity as conducting surveillance pursuant to a narcotics investigation but, as plaintiff argued, were equivocal and unclear on the specific activities that were underway to determine whether it met threshold for execution and enforcement of the law. The trial court granted defendant’s motion to dismiss based solely upon the affidavit and answers to interrogatories and plaintiff appeals.

Holding:  Trial court lacked sufficient facts to support defendant’s claim that officer was engaged in the execution and enforcement of the law at the time of the accident and plaintiff was entitled to additional discovery to determine whether the Tort Immunity Act applied.

Filed in Trial Book Under:  Tort Immunity – Section 2-202, Execution and Enforcement of Law, Affidavit, SCR 191, 735 ILCS 5/2-619

Commentary:  Although it does not reach any conclusions relating to the facts present in this case, the opinion has a pretty good summary of cases interpreting the law on execution and enforcement of the law.  Not everything that an officer does while on duty is worthy of immunity and the appellate court needs sufficient facts to make a determination of whether the immunity applies or not.  The affidavit provided by the defendant was conclusory in nature and therefore violated SCR 191 and was not considered.  The interrogatory answers provided were equivocal and the appellate court was not able to determine exactly what the officer was doing at the time he backed his vehicle up so they reversed the trial courts dismissal and remanded the case for further development of facts on the issue.  Clearly, a deposition would be the easiest way to ferret out this issue and I’m not sure why the trial court was reluctant to permit it to go forward in the first place.  I have never had a judge not permit a deposition of an affiant on a motion to dismiss, but in the event that happens some time in the future this will be a good case to provide to the court to try to convince them to reconsider.

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Filed under Civil Procedure, Tort Immunity