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

O’Connor v. Country Mutual Insurance Company – UIM Result That was More Than Double the Offer Was Not Evidence Per Se of Unreasonable and Vexatious Conduct

O’Connor v. Country Mutual Insurance Company, 2013 IL App (3d) 110870 (O’Brien)

Facts:  Plaintiff suffered a broken leg in a motor vehicle collision, incurring $24,000 in medical expenses.  She had a $250,000 UIM policy with the defendant with additional coverage for $10,000 in medical payments.  She obtained a recovery of $105,000 from the at fault driver and pursued her UIM claim.  She made an initial demand of $135,000 which represented the available coverage after reducing all set-offs applicable to the policy and then reduced her demand to $97,500.  The defendant evaluated the claim through two sets of attorneys, both in house and outside counsel, with a value of between $145,000 to $155,000.  The defendant’s attorney made a final offer of $40,000 prior to arbitration.  The arbitrators awarded the plaintiff $213,295, which after the set-offs were applied resulted in a net award of $98,295.  Defendant promptly paid the arbitration award.  Plaintiff then filed a  section 155 complaint seeking damages for unreasonable and vexatious delay in settling the case, citing the award of more than double the offer as evidence of unreasonable and vexatious conduct.  Plaintiff further cited provisions of section 154.6 relating to the lack of a manual for evaluating the claim as further evidence of unreasonable and vexatious conduct.  The trial court heard evidence from the defendants attorneys relating to their process  and rationale for evaluating the claim and found that the defendant had “fully engaged in attempting to present a bona fide defense” and ruled in favor of the defendant.  Plaintiff appeals the trial court’s ruling in favor of the defendant.

Holding:  (1) The arbitration award that was more than double the pre-arbitration offer, standing alone, did not establish that the offer was unreasonable and (2) the defendant presented sufficient evidence that it used reasonable standards in evaluating claims despite the absence of a manual for such evaluations.

Filed in Trial Book Under:  Bad Faith, Section 155

Commentary:  The mere fact that an insurance company got their evaluation wrong does not mean that their deficient offer is automatically unreasonable and vexatious.  I think that 155 claims are really designed for egregious circumstances, which is why the statute uses strong terms like “unreasonable and vexatious”.  Here, they just saw the claim differently than the plaintiff and she was right.

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Filed under Bad Faith and Section 155

Zamora v. Montiel – A Party Merely Obtaining Leave to File a 3rd Party Claim Did Not Trigger the Need for a New SCR 304(a) Finding

Zamora v. Montiel, 2013 IL App (2d) 130579 (Hudson)

Facts:  Plaintiff filed a negligence complaint against defendants Montiel, Newsboy Delivery Systems, Inc. and Unique Distribution (the Employment Defendants) and Cherie and Paul Payne (the Payne defendants).  The Employment defendant moved to dismiss the complaint on the grounds that it was barred by the exclusive remedy provision of the Worker’s Compensation Act and on March 24, 2010 the trial court granted the motion and dismissed the complaint against these defendants and included a 304(a) finding in the dismissal order.  On April 23, 2010, Plaintiff filed a motion to reconsider this order within 30 days.  On June 29, 2010, prior to the hearing on the motion to reconsider, the trial court granted leave to the Payne defendants to file a 3rd party complaint against the Employment defendants.  On July 7, 2010, the trial court denied plaintiff motion to reconsider.  On August 25, 2010, after 30 days had already elapsed since the denial of the motion to reconsider, the Payne defendants filed their 3rd party claims.  On July 11, 2012, more than 2 years after the denial of the motion to reconsider, the trial court dismissed Payne’s 3rd party contribution claim.  Plaintiff requested at this time that the trial court make a new 304(a) finding as to the March 24, 2010 dismissal order, which was granted.  On July 24, 2012, the plaintiff filed a notice of appeal of the March 24, 2010 dismissal order and its related motion to reconsider.  On December 12, 2012, the appellate court dismissed the appeal for lack of jurisdiction.  The plaintiff then moved in the trial court for a “renewal” of the March 24, 2010 304(a) finding which was denied on March 20, 2013.  The trial court then dismissed all remaining causes of action against the Payne defendants on May 24, 2013.  The plaintiff then filed a notice of appeal seeking a reversal of the March 24, 2010 dismissal order and the March 20, 2013 denial of the motion to “review” the previous 304(a) finding.  The Employment defendant moved to dismiss the appeal for lack of jurisdiction.

Holding:  The Plaintiff’s failure to file a notice of appeal within 30 days of the trial court’s resolution of his motion to reconsider the March 24, 2010, dismissal of his claims against the defendant deprives the appellate court of jurisdiction over the appeal.

“We decline to equate obtaining leave to file a claim with actually filing that claim” and “merely obtaining leave to file a claim does not trigger the need for a new 304(a) finding.”

Filed in Trial Book Under:  Appeal; SCR 304(a)

Commentary:  The plaintiff operated under the impression that because the Payne defendants had sought leave to file a 3rd party complaint against the Employment defendants while the motion to reconsider was still pending that it somehow mooted the initial 304(a) finding.  In the time between the denial of the motion to reconsider on July 7, 2010, and the actual filing of the 3rd Party claims on August 25, 2010, the 30 day appeal period elapsed.   Because of the 304(a) language in the initial dismissal order, the appeal needed to be filed by August 7, 2010.  If there is a take away here, it is probably that assumptions are very dangerous.  It doesn’t appear from the recitation of facts in this opinion whether the impact of the Payne defendants seeking leave to 3rd party the employment defendants back into the case was ever addressed with the trial court at the motion to reconsider.  This certainly changed the dimension of the case and could have led to the trial court to reconsider its 304(a) finding.  However, just assuming that the impending 3rd party claims mooted the 304(a) finding without getting an explicit finding from the trial court resulted in the appellate court losing jurisdiction.

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Filed under Appeal

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

Settlement Funding, LLC v. Brenston – Appellate Court Determines Transfer of Structured Settlement Obtained by Fraud Upon the Court and Reverses Transfers

Settlement Funding, LLC v. Brenston, 2013 IL App (4th) 120869 (Cates)

Facts: In 1999, Cathy Brenston obtained a settlement in a medical negligence case that was set up with a structured component wherein she would receive monthly payments over a period of time.  The written settlement agreement contained a provision where claimant (Brenston) “acknowledges that the periodic payments could not be accelerated, deferred, increased or decreased” nor could she have “the power to sell, mortgage, encumber or anticipate the Periodic Payments by assignment.”  The defendant in the medical malpractice case executed two uniform qualified assignments to accomplish the periodic payments, one to Allstate and another to GE.  Each of the qualified assignments contained language that Cathy Brenston was not the owner of the annuity contract, instead she was the secured party, and had no right to sell or assign the contract.

In 2007, Cathy Brenston entered into an agreement with Settlement Funding, LLC whereby she assigned her interest in each of the annuity contracts for a lump sum payment, which not surprisingly were significantly lower than the present cash value of each of the contracts. Settlement Funding, LLC presented petitions to the trial court to have the transfer orders approved pursuant to the provisions of the Structured Settlement Protection Act.  Notably absent from each of the petitions was an expression to the trial court that there were anti-assignment provisions in the annuity contracts and the attachments to the petition did not include copies of any of the documents that would provide the trial court with that information.  The trial court granted the petitions and entered orders permitting the transfers to Settlement Funding, LLC on March 31, 2008 and April 10, 2008.

On October 28, 2011, Cathy Brenston filed a 2-1401 petition to vacate the orders entered in 2008 and declare them void because the Structured Settlement Protection Act and the anti-assignment clauses in the settlement agreement and qualified assignments prevented the trial court from exercising jurisdiction. Settlement Funding moved to dismiss the petition on the grounds that it was time barred as result of being filed over 2 years after the order was entered, which the trial court granted and dismissed the petitions.  Cathy Brenston appealed the trial court’s denial of her 2-1401 petition.

Holding: Because of the anti-assignment clause in the settlement agreement and annuity contract, the trial court was without authority to approve Settlement Funding, LLC’s petitions under the Structured Settlement Protection Act. Further, the underlying transfer orders were procured by a fraud on the trial court and are void ab initio and therefore are not time-barred by 2-1401.

Filed in Trial Book Under: Structured Settlement Protection Act, Fraud Upon the Court, 735 ILCS 5/2-1401, Judgment – Void Ab Initio

Commentary:  The attorney for Settlement Funding has really gotten himself into some hot water in this case.  The same attorney had handled prior cases where the appellate court established its precedent that anti-assignment clauses would serve to prohibit the trial court from having authority to enter a transfer order.  As a result, this appellate court panel was convinced that the attorney deliberately excluded documents that would reveal to the trial court that there had been such language in the original settlement agreements and found an outright fraud upon the court.  Because the orders were obtained by fraud, they were void ab initio and could be attacked at any time and the trial courts dismissal of the 2-1401 petition was reversed.  This is an equitable result, particularly because the appellate court has ordered that a hearing be held to restore the plaintiff to her original position, less the money she received so that there is no windfall.  It’s too bad that we permit these types of companies to exist.  They prey on the poor and unsophisticated for a profit that is simply unconscionable.

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Filed under Civil Procedure, Settlement

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