Articles Posted in Illinois Civil Procedure

by

Great caution must be taken when multi-count lawsuits are filed and a voluntary dismissal considered. Suppose one of the three counts of the complaint turns out to be unsustainable and a voluntary dismissal is taken as to Count II leaving Counts I and III.  The voluntary dismissal as to that count II amounts to a dismissal with prejudice.

Suppose further that as the case remains, the case reaches a point where the plaintiff makes a decision to voluntarily dismiss without the remaining two-count complaint under Illinois Code of Civil Procedure §2-1009, which allows the refiling of the case within one year.

This is where it becomes very tricky. Under the Hudson v. City of Chicago, the Illinois Supreme Court set out the issue as:  “Whether the involuntary dismissal of plaintiffs’ negligence claim and plaintiffs’ subsequent voluntary dismissal of their remaining willful and wanton misconduct claim (against the City of Chicago) barred the refiling of their willful and wanton misconduct claim under the doctrine of res judicata.” What the Illinois Supreme Court was looking at is that in Hudson, the original complaint was two counts. The first count sounded in negligence and the second willful and wanton misconduct.  Under the law, the City and its employees had immunity under the Emergency Medical Services Systems Act. 210 ILCS 50/3.150.

Continue reading

by

The Illinois Appellate Court has affirmed a decision of a Cook County Circuit Court judge with respect to the forum-selection clause found in a service contract. MillerCoors, headquartered in Chicago, is the second largest brewer in the United States with approximately 30% market share. In 2007, MillerCoors approached Entec regarding parts procurement and management services.

On March 1, 2010, Entec and MillerCoors entered into a contract wherein Entec agreed to provide parts procurement for MillerCoors breweries in Georgia, North Carolina, Virginia and Ohio. The agreement between the parties was a standard contract that MillerCoors had used in the past. The document included a forum-selection clause indicating that all litigation that may arise involving the contract could be brought against MillerCoors in Colorado.That part of the contract was not discussed or negotiated by the evidence that the court reviewed. The contract was nevertheless signed by the parties.

During the course of the contract, MillerCoors understood that some of its suppliers reported that Entec had failed to pay them.  This was true even though MillerCoors had paid Entec. MillerCoors began receiving complaints and notices of mechanic’s liens, and some suppliers threatened to cease providing supplies to MillerCoors.

Continue reading

by

A lawsuit was brought on behalf of the plaintiff, Gerardo Solis, alleging negligence and strict liability because his lungs were injured by a synthetic chemical that he used while working in a flavoring company. At the trial court level, the judge entered a directed verdict in favor of Solis on the defendant distributor’s claim that the action was barred by the statute of limitations.

The Solis claim was that his lungs were injured while he worked with diacetyl, a synthetic chemical used in artificial butter flavoring. Solis’s claim was that the defendant BASF Corp. (BASF) and one of the distributors failed to warn of the dangerous product and was negligent in allowing its use by its employees.

After a jury heard this case at trial, it returned a verdict for $32 million in favor of Solis, and BASF appealed. At the core of the appeal was that BASF claimed that the trial court erred by directing a verdict in favor of Solis on BASF’s statute of limitations defense. BASF had argued that there was evidence that Solis was aware of his lung injury and its wrongful cause more than two years before this suit was filed.

Continue reading

by

After the collapse of a bridge deck on Route 154 near Sparta, Ill., the general contractor, Keeley & Sons, used a jackhammer to break up the concrete I-beam that allegedly caused the accident.

Three workers were on the bridge deck when it collapsed. The issue in this case was whether there was a duty of the defendant, Keeley & Sons, to preserve evidence. The Illinois Supreme Court held there were insufficient facts to establish a duty on Keeley & Sons based on a voluntary undertaking.

The trial court in St. Clair County, Ill., entered an order granting summary judgment for Keeley & Sons finding that it had no duty to preserve the I-beam after this occurrence. The appellate court had reversed the summary judgment order, but the Supreme Court has now reversed the appellate court and affirmed the trial court’s decision.

Continue reading

by

Edward Myles, a truck driver, claimed that he lost earnings due to the defendants’ unfair acts and practices. The claim stemmed from the defendants’ breach of contract relating to the sale of commercial trucking equipment.

Mr. Myles claimed loss of revenue due to the defendants’ intentional interference with a third-party contract.

The defendants denied all of the plaintiff’s claims and filed a counterclaim seeking to recover the unpaid balance on the equipment.

Continue reading

by

The lawsuit brought by Patricia Emrickson against Fernando Morfin was dismissed with prejudice because Ms. Emrickson’s attorney relied on an online search service that had inaccurate information about the current address for the defendant, Mr. Morfin. Under Illinois Supreme Court Rule 103(b), a suing plaintiff has a duty to use reasonable diligence in serving a defendant with the complaint.

In this case, the lawsuit was filed by Ms. Emrickson just a short time before the two-year statute of limitations had run out. Although the lawsuit was filed in a timely fashion, Mr. Morfin was not served immediately with the complaint, which alleged that Ms. Emrickson was injured in a car accident. It took 13 months before Mr. Morfin was finally served with a summons.

According to the Illinois Appellate Court, Ms. Emrickson chose not to use reasonable diligence in having Mr. Morfin served before the statute of limitations expired, opening the way for Mr. Morfin to dismiss the case with prejudice under Rule 103(b).

Continue reading

by

Four teenagers went out to dinner and later had a party in the basement home of the Gordons, the parent home of one of the teenagers. The incident took place in July 2006. Two of the individuals, Hoyle and Peabody, arrived and talked with the Gordon mother, Rachelle. Hoyle smoked one cigarette and believed that the younger Gordon and Peabody each smoked one cigarette too.

Hoyle remembered putting out her own cigarette when finished, and she and her friend Gordon left after midnight. Peabody and Blake left separately.

Keyth Security Systems and Security Associates International, Inc., were responsible for the Gordon’s home fire detection system. That fire detection system failed to detect a fire that started in the basement that night. The fire resulted in the deaths by carbon monoxide poisoning of the Gordon family.

Continue reading

by

Rhonda Williams was an employee of Superior Air Ground Ambulance Service and was driving an ambulance when her vehicle crashed into a car driven by the plaintiff, Karen Wilkins. Williams was taking a patient on a non-emergency basis to a nursing home. The ambulance was not using its emergency lights or sirens at the time.

Deposition testimony showed that the crash took place at westbound 95th Street in Oak Lawn, Ill. At that intersection, there were three west-bound lanes. The ambulance was in the outside right lane. The traffic on the left and center lanes had stopped for a red light. The right lane had no stopped traffic because it was primarily used as a right-turn lane.

Just before the crash, Wilkins was turning left from the eastbound lanes of 95th Street. Wilkins proceeded past the left and center westbound lanes before she was hit by the ambulance. According to some testimony, the ambulance driven by Williams did not stop for the red light. Wilkins suffered brain injuries from the crash.

Continue reading

by

A recent Cook County lawsuit was reviewed by the Illinois Appellate Court, which found that the trial judge had erred in dismissing the plaintiff’s personal injury claim. While the judge had held that the case facts supported a summary judgment in favor of the defendant hospital, the appellate court found that there was sufficient evidence to support some of the plaintiff’s claims. Caburnay v. Norwegian American Hospital, 2011 IL App. (1st) 101740 (Dec. 23, 2011).

The injury in question occurred at Norwegian American Hospital. The plaintiff, Dr. Fernando Caburnay, was an anesthesiologist at the hospital and was waiting for an elevator at the time of his accident. It was a rainy day and a 6 ft. x 10 ft. rubber mat had been placed in front of the elevator. As Dr. Caburnay was stepping back from pressing the call button, he tripped backwards over the mat. The back of his head hit a couch, and he fractured his spine, leaving him a quadriplegic.

Dr. Caburnay filed a personal injury lawsuit against Norwegian American Hospital, the basis of which was their negligence in creating a dangerous situation in the form of the rubber and fabric mat. Dr. Caburnay testified that the mat was the cause of his injury; he tripped after catching his foot on a fold in the mat and falling backwards. However, the hospital denied liability for Dr. Caburnay’s injuries and filed a motion for summary judgment in which it asked the judge to dismiss the claims against Norwegian American Hospital. The judge complied, at which point Dr. Caburnay filed an appeal.

Continue reading

by

The Illinois Appellate Court ruled on a premise liability claim involving a building owner’s duty to maintain clear sidewalks and driveways. At issue was whether or not the plaintiff’s amended complaint raised new issues of fact in Kristopher McCarthy v. R&M Holdings & Quality, No. 1-10-2778 (February 2, 2012). While the trial court held that it did not, the appellate court found that it did and remanded the case to the trial court for further proceedings.

McCarthy was brought after the plaintiff slipped and fell on the way to his parked car. McCarthy had just finished his shift at the Harwood Heights Cosco on an icy December day. His car was parked in the parking lot next to Cosco’s parking lot. According to McCarthy, he was walking through the snow and did not realize that there was a layer of ice underneath; he fell and dislocated his right shoulder and right knee.

McCarthy brought his premise liability lawsuit against R&M Holdings & Quality, the owner of the commercial building and property. In his complaint he alleged that the icy patch he fell on was part of the run-off from the building’s roof and gutters. There was a downspout that ran directly into the parking lot; McCarthy alleged that this downspout was the source of the water that formed the ice that he fell on and therefore was caused by the building owners and not a natural hazard.

In his first complaint, McCarthy cited ordinary negligence and per se negligence under the Harwood Heights Municipal Code, §15.24.100. While ordinary negligence requires a party to prove that someone acted in an unreasonable or wanton manner, per se negligence simply requires a party to show that an entity violated an established law or code. In response, the defendant property owner filed a motion for summary judgement on the basis that the case could be decided without a trial. The judge dismissed the plaintiff’s original claims, but allowed the plaintiff to file an amended complaint.

Continue reading