Category Archives: Negligence

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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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

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

Morris v. Ingersoll Cutting Tool Co. – 2nd Dist. holds 1.5 inch defect in loading dock de minimis and not actionable

Morris v. Ingersol Cutting Tool Inc., 2103 IL App (2d) 120760 (Birkett)

Facts:  Plaintiff was unloading a truck at defendant loading bay when he backed up and fell as a result of a defect in the pavement that was 2.5 feet long, 1 foot wide and 1.5 inches deep according to the plaintiff’s expert report.  The trial court ruled that the plaintiff fell as result of the height deviation and since the defect was only 1.5 inches in height differential it was de minimis and not actionable.  Plaintiff appeals.

Holding:  The 1 1/2 inch defect in the surface area of the loading bay was de minims and not actionable in the absence of any aggravating factors that would be sufficient to negate the de minims rule.

Filed in Trial Book Under:  Premises Liability – Trip and Fall, Deminimis

Commentary:  It seems to me like the plaintiff’s attorney did everything he could to try to get this case to a jury.  He got some good admissions from the defendant relating to weekly safety inspections and that 1.5 inch deviations were tripping hazards, he hired an expert to evaluate the defect and provide testimony regarding its danger and he seemed to make very good arguments regarding all of the aggravating circumstances that were present at this location in order for the trial court and appellate court to look past a knee-jerk application of the de minimus standard to a trip and fall occurrence.  Despite all of these efforts, the appellate court seemed pretty determined to uphold the ruling and find there is no duty to protect workers on loading docks.  Although this opinion isn’t particularly surprising, it’s an unfortunate result in my opinion.  One of the major points that the court makes in the opinion is basically that not many people use this particular area, unlike cases where liability was found because the location was a point of ingress and egress for pedestrians.  In this case, because the loading bay is not used by many people, a defect is somehow less dangerous for the people that will use the area.  Along those lines, the opinion specifically states that the loading bay is designed primarily for vehicular travel and not pedestrian travel.  This approach seems to ignore that the term loading is the operative and important word in “loading bay.”  Respectfully, the merchandise doesn’t move itself from off the back of the trucks.  People do that, namely truck drivers and other laborers.  And when they do, they are often distracted and focused on carrying large cumbersome loads in awkward positions.  In short, they need to have a work area that is safe and free from unreasonable tripping hazards. Given the facts that are developed in this case, it would seem to me that a large depression at a location where trucks are likely to be unloading is not a difficult problem to resolve and should be encouraged.  This opinion does absolutely nothing for promoting workplace safety and seems to take a very flawed economic cost-benefit analysis that is designed to be applied to municipalities that may have literally hundreds of thousands of miles sidewalks and roadways to conclude that improving a 65 foot loading bay at a commercial building that invites trucks to load and unload on its property is simply too much of an economic burden for any business to take.  The only upside to this case is that it will be yet another anecdote to use with clients during  the case intake process to explain how difficult it is these days to prevail in a concrete deviation trip and fall case.

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Filed under Negligence, Premises Liability

Perkey v. Portes-Jarol – Plaintiff met evidentiary standard for Holton “lost chance” claim but the trial court erred in not reducing medical malpractice judgment by the medical charges associated with the claim less the lien amount paid by plaintiff’s insurer

Perkey v. Portes-Jarol, 2013 IL App (2d) 120470 (Spence)

Facts:  Plaintiff sees the defendant, her primary care physician, with complaints of back pain and she orders a CT scan to rule out kidney stones.  The CT report states that the pancreatic ducts dilated and the radiologist recommends additional evaluation with ERCP to assess for either stricture or tumor causing this finding.  The defendant does not refer the plaintiff to a gastroenterologist for evaluation or consideration of the ERCP and the evidence is in direct conflict over whether the defendant discussed the findings of the CT with the plaintiff.  The plaintiff claims it wasn’t discussed at all and defendant claims that he advised that an ERCP wasn’t warranted because she had no other symptoms consistent with cancer and that they should take a “wait and see approach.”  Plaintiff never returned with any further complaints.  About one year later, the plaintiff was getting evaluated to donate a kidney to a friend and underwent another CT scan that led to an ERCP which revealed a tumor.  Plaintiff was diagnosed with pancreatic cancer.  She underwent a resection procedure and chemotherapy and radiation therapy and was able to resume her normal life.  Four years later she developed cancer in her lung, which was the same type as her pancreatic cancer and had metastasized to her lungs and resulted in her death approximately one year after the diagnosis.

At trial, a surgical oncologist testified that the cause of the dilation seen in the initial CT scan was the plaintiff’s pancreatic cancer and that the delay in her diagnosis of pancreatic cancer from February 2001 to July 2002 was a cause of the recurrence of her cancer in February 2006.  Her pancreatic cancer was Stage IIB when it was removed, which has a 5 year survival rate of 6%, and at the time of the misdiagnosis the cancer was likely a Stage II A, which has a 5 year survival rate of 12% or a Stage IA which has a 5 year survival rate of 36%.  The surgical oncologist conceded that the chances of it having already metastasized at the time of the initial CT scan was greater than 50% but if it had been diagnosed at that time the chances for a cure would have been greater.

The plaintiff’s expert family practice physician testified on direct exam that the treatment provided by the defendant did not conform to the degree of care, knowledge and skill that a reasonably careful family practice physician would use in Chicago in 2001 in like or similar circumstances.  On cross examination she described that the standard of care was what a typical patient would receive from 80% of the doctors.  The defendant moved for a directed verdict at the close of the plaintiffs case arguing that (1) the expert’s definition of the standard of care was improper and (2) the evidence did not support proximate cause because even if the defendant had diagnosed the plaintiff in 2001 her treatment would have been the same and there was more than 50% chance that she would have succumbed to the disease.  The trial court denied the motions on both counts.  The defendant then presented its evidence that the standard of care was met and that the plaintiff was going to die regardless of the diagnosis.  The jury found in favor of the plaintiff and against the defendant and awarded $600,000, of which $310,000 was allocated to the reimbursement of medical bills.

The defendant moved for a new trial on the grounds of (1) the experts incorrect definition of the standard of care, (2) that the proximate cause nexus had not been established, (3) that the jury was improperly instructed on the standard of care because the instruction utilized the term “reasonably careful” family physician, and (4) that the judgment should be reduced by $300,000 pursuant to section 2-1205.  After the motion was filed, the defendants learned that the bills had been paid by Blue Cross Blue Shield for a total of $136,933.85, so they modified their request to a reduction of $175,066.15.  Plaintiff argued that section 2-1205 did not permit a set-off in this case because there was a right of recoupment for the medical bills paid by the insurer. The trial court denied the motion.  Defendant then filed a motion to reconsider and requested that the court consider new documents that were not subpoenaed until after the initial motion.  The trial court granted defendant leave to file additional materials, which showed that the lien was subject to a further reduction of 1/3 under the common fund doctrine, but the trial court granted plaintiff’s motion to strike the materials because they were not “newly discovered” evidence as they were always available to defendant had they requested them prior to the initial motion for new trial.  Defendant appeals.

Holding:  (1) Trial court did not err in denying directed verdict and new trial on basis of experts incorrect definition of the standard of care on cross examination because the plaintiff had used the correct definition in its questioning on direct exam and any inconsistency merely went to the credibility of the witness. (2) The plaintiff’s evidence that the delay in diagnosis decreased her chances of survival met the legal requirements of the lost chance doctrine established in Holton which can be met despite the chances of survival being less than 50%.  (3) The jury instruction defining the standard of care was proper and in conformance with the revised 2011 IPI instruction.  (4) The trial court erred in not reducing the judgment pursuant to section 2-1205 by the medical charges less the amount paid by the insurer.

Filed in Trial Book Under:  Standard of Care, Proximate Cause – Lost Chance, IPI 150.01, Set-Offs, 735 ILCS 5/2-1205, Directed Verdict, New Trial, Motion to Reconsider

Commentary:  There’s a lot of material covered in this case and it is fact intensive so somewhat hard to keep straight, at least for me.  It seemed like a pretty solid case for the plaintiff on the issue of liability and that the defendant did not have a strong understanding or appreciation for the lost chance doctrine.  The lost chance doctrine from the Holton case only requires that Plaintiff establish some evidence that the negligence of the defendant reduced the effectiveness of treatment and that some lost chance of survival resulted.  It does not require that there be a greater than 50% chance of survival.  Here, the survival chances went from only 6% to 12% and Holton applied so this is a good case for citation in the future on this issue.  This case also serves a strong warning to plaintiffs attorneys to educate their experts on the appropriate definition of the standard of care and, just to be safe, work the definition into their questions on direct examination.  Even though the experts are pretty smart in their respective fields, they aren’t lawyers and won’t always appreciate how important the precise language of the instructions can be to the case.  I’ve had this happen to me before with an expert coming up with a goofy definition of the standard of care that then required that I pull out my jury instruction and literally read from it word for word as I asked the expert further questions.  The set-off issue should be a lesson to defense lawyers to get their duckpin a row prior to the trial regarding liens and rights of recoupment.  Even though the appellate court ultimately reduced the judgment, it came very close to finding a waiver on the issue and seemed critical of the defense for not issuing subpoenas until after they had already lost their motion.

Useful Rules/Language from Opinion:

Standard of Care:  In order for an expert to be competent to testify about the standard of care in a particular case, he or she must be licensed in the defendant’s school of medicine and be able to show that he or she is familiar with the methods, procedures, and treatments ordinarily observed by other physicians in the defendant’s community or in a similar community. citing Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112 (2004)

Directed Verdict:  A trial court may not enter a directed verdict or judgment n.o.v. if there is any evidence, together with reasonable inferences drawn from the evidence, demonstrating a substantial factual dispute, or if the assessment of witness credibility or the determination regarding conflicting evidence is decisive to the outcome. Solis v. BASF Corp., 2012 IL App (1st) 110875

New Trial:  A trial court should grant a motion for a new trial if the verdict is contrary to the manifest weight of the evidence. Lawlor, 2012 IL 112530.  That occurs where the opposite result is clearly evident or where the jury’s findings are unreasonable, arbitrary, and not based on any of the evidence. Id. We will reverse a trial court’s ruling on a motion for a new trial only if the trial court abused its discretion. Id

Lost Chance:  In Holton, our supreme court stated, “To the extent a plaintiff’s chance of recovery or survival is lessened by the malpractice, he or she should be able to present evidence to a jury that the defendant’s malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery.” Id. at 119. Plaintiffs are not required to prove that they would have had a greater than 50% chance of survival or recovery absent the alleged malpractice. Id.

Battle of the Experts:  The jury was faced with a classic battle of the experts, and the battle was for the jury, as the trier of fact, to resolve. See Davis, 405 Ill. App. 3d at 37-38.

IPI 150.01:  The Studt court did not reject the use of “reasonably careful” in the 2006 version of the instruction. Moreover, the appellate court has directly held that the phrase “reasonably careful” correctly replaces “reasonably well-qualified” in the instruction. Matarese v. Buka, 386 Ill. App. 3d 176, 184-85 (2008); LaSalle Bank, N.A. v. C/HCA Development Corp., 384 Ill. App. 3d 806, 816-17 (2008). Accordingly, we conclude that IPI Civil (2011) No. 105.01 correctly states the law on professional negligence, and the trial court did not err in instructing the jury using this version.

Jury Instruction – New Trial:  A reviewing court will not grant a new trial based on a trial court’s refusal to provide a suggested jury instruction unless the refusal seriously prejudiced the complaining party’s right to a fair trial. Surestaff, Inc. v. Azteca Foods, Inc., 374 Ill. App. 3d 625, 627 (2007).

Motion to Reconsider:  The trial court’s ruling striking the evidence conformed with the principle that “[t]rial courts should not permit litigants to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling.” Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d 242, 248 (1991).

Section 2-1205: Here, plaintiff’s interpretation of the statute would be correct if the statute stated “Such reduction shall not apply if there is a right of recoupment.” However, given that the statute says that the reduction shall not apply “to the extent that” there is a right of recoupment, we agree that this language limits the reduction by only the extent of, or amount of, the right to recoupment.

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Filed under Medical Malpractice, Negligence, Post Trial, Proximate Cause, Trial, Wrongful Death and Survival Claims

Rogers v. Imeri – Illinois Supreme Court Resolves Split in Circuits over How to Apply Set-Off’s When the Guaranty Fund Defends a Dram Shop Defendant

Rogers v. Imeri, 2013 IL 115860 (Theis)

Facts:  Plaintiff’s decedent was killed in a head-on motor vehicle collision with an intoxicated driver. The Estate had two available claims, the automobile negligence claim against the driver and a dram shop claim against the bar that served him alcohol.  The dram shop claim included claims for injury and loss of society thereby making $130,335.51 the total statutory amount available to the plaintiff under the Dram Shop Act.  The Estate obtained $26,550 from the driver’s insurance policy and an additional $80,000 in underinsured coverage from its own policy.  The insurer for the dram shop defendant was insolvent and so the Illinois Insurance Guaranty Fund was defending the case.  It sought a ruling from the trial court that pursuant to section 546(a) of the Illinois Insurance Guaranty Fund Act the $106,550 recovered by the plaintiff should be set off as “other insurance” from the $130,335.51 statutory cap amount such that the total recoverable to the plaintiff would be only $23,788.51.  The plaintiff argued that the “other insurance” set off should not be applied until after a jury verdict.  The trial court agreed with the plaintiff and ruled that the request was pre-mature and set-offs would be determined after a jury determined the total damages, however, it approved a 308 certified question which was accepted and affirmed by the appellate court.  The defendant petitioned the Illinois Supreme Court for review which due to a split in authority between the First District and Fifth District was accepted.

Holding:  When the Illinois Insurance Guaranty Fund is defending a claim under the Dram Shop Act, the set-off from other insurance are reduced from the total available limits under the Dram Shop Act, not from the verdict.

Filed in Trial Book Under:  Dram Shop Act, Illinois Insurance Guaranty Fund, Statutory Interpretation, Set-Offs

Commentary:  Add this decision to the long list of reasons that Dram Shop cases are generally unappealing for plaintiffs.  Under the approach adopted by the plaintiff, and followed by the 5th District, the plaintiff would be able to try the case to a verdict and if the result were say $500,000, the $106,550 in other insurance would then be applied to that total, and the Guaranty Fund would be required to underwrite the entire statutory limit under the Dram Shop because the verdict was much higher than the “other insurance” set-off.  Instead, they are left with only $23,788.51 in coverage because the court is to apply the other insurance to the statutory limits of the Dram Shop Act first.  I certainly understand the logic of the plaintiff and the Fifth District here, and wish that the Supreme Court had followed it, but at the end of the day the statutory purpose of the Guaranty Fund is to be an insurer of last resort and not to make the plaintiff whole, or “more whole” in this particular case.

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Filed under Dram Shop, Insurance Coverage, Statutory Interpretation

Kilburg v. Mohiuddin – First District Reverses Trial Court on Dismissal of Spoliation of Evidence Claim

Kilburg v. Mohiuddin, 2013 IL App (1st) 113408 (Palmer)

Facts:  Plaintiff was seriously injured while riding as a passenger in a taxi cab that slammed into a tree.  The cab driver claimed shortly after the collision that there was a “sudden acceleration” of the vehicle. The cab was first towed by the police to the Chicago auto pound and then towed from the pound to a lot operated by a company affiliated with the taxi company.  The vehicle was equipped with an event data recorder that should be able to rule in or out a sudden acceleration that could potentially serve as the basis for a products liability claim so the Plaintiff’s attorneys sent a preservation letter to the taxi driver, the owner of the vehicle and “Checker Taxi Company, Inc” three (3) days after the collision on October 9, 2009.  Then on October 15, 2009, the plaintiff filed a complaint against those three defendants and then had an order of protection entered by the court on October 17, 2009 directing those three defendants to preserve the taxi cab.  “Checker Taxi Company, Inc” was a non-existent entity; the involved taxi cab company was Wolley d/b/a Checker Taxi Affiliation, Inc.  On November 9, 2009, the plaintiff attempted to inspect the vehicle with its consultants and found that the event data recorder was missing.  This gave rise to the complaint being amended to include a spoliation claim against the defendants.  By the sixth amended complaint, the plaintiff had a spoliation counts against the taxi driver, the vehicle owner, Wolley and Taxi Medallion, who operated the storage lot, and Taxi Affiliation who paid rent for the storage lot.  The allegations against the corporate entities inferred knowledge of the preservation letter as a result of their relationships with the other defendants, but did not allege that each of these companies received the preservation letter, complaint or order of protection during the probative time period.  The defendants all moved to dismiss the spoliation claims on the basis that there is no duty to preserve evidence.  The trial court granted the motion as to all defendants and plaintiff appealed.

Holding: Trial court erred in dismissing the spoliation counts against the taxi driver and vehicle owner because plaintiff pleaded sufficient facts to support a special circumstance giving rise to a duty to protect the evidence because these defendants had knowledge of the importance of the evidence, were in receipt of the preservation letter, complaint and order of protection.  The corporate defendants were properly dismissed because there were insufficient facts to establish the same special circumstance as to them.

Filed in Trial Book Under:  Spoliation of Evidence; Motion to Dismiss – 2-615

Commentary:  This case is a step in the right direction for spoliation claims.  Under the “relationship” prong the plaintiff must establish an agreement, contract, statute, special circumstance, or voluntary undertaking that gives rise to a duty to preserve the evidence.  There is very rarely an agreement, contract or statute at issue, so the battle lines on most of these cases are seen with claims by the plaintiff that there exists a special circumstance or voluntary undertaking that gives rise to the duty.  The court has rejected the claim that knowledge of the accident and potential importance of certain evidence alone is sufficient to give rise to a special circumstance.  However, that knowledge when coupled with the receipt of the preservation letter and the complaint and the order of protection was sufficient to the appellate court to give rise to a duty as a special circumstance in this case because the plaintiff also alleged that the defendants exercised possession or control over the vehicle during the critical time.  I don’t know if the plaintiff will ultimately have enough facts developed to show when the event recorder went missing such that it fits within the actionable time period, but I certainly hope so.  It’s also too bad that one of the corporate entities was not given the appropriate notice of the need to preserve the evidence such that they could be included in the spoliation count.  Instead, the plaintiff is left with only the driver and owner of the cab.  It seems to me that the notice to “Checker Cab” was simply a misnomer and  would be sufficient to tie in Wolley, similar to a relation back claim on a filed complaint, but this issue was not raised in the opinion so I’m not sure if it was raised or not.  An important take away from this case is to be careful on how you identify corporate entities so that you name the correct party and also be sure to serve anyone and everyone that you can think of that could exercise some control of the vehicle with the preservation letter and the order of protection.  It might have also been a good idea to get an order for immediate access to the vehicle merely to document the existence of the event recorder prior to

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Filed under Civil Procedure, Negligence