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Volume XXV, No. 22, December 9, 2013  

From the Law Offices of Garan Lucow Miller, P.C.

From the Editor: Sarah Nadeau 

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Garan Lucow Miller presents its Windy City Seminar in the fall of each year at different locations around Chicagoland.  This free seminar has historically provided our insurance clients with updates on Michigan first party and third party No Fault claims, Indiana and Illinois first party and third party claims, as well as various other topics of interest, such as trial and deposition preparation, premises liability claims, and using social networking sites as a discovery tool.

In part two of our update on 2013 Illinois decisions, below are decisions from several third-party cases.

 

 

CONTRIBUTOR – GREGORY BOKOTA

 

Klingelhoets v Charlton-Perrin, 983 N.E.2d 1095 (ILL. App. 2013)

In this case, a pedestrian was struck by a motorist while walking across the street. She filed a negligence action against the motorist. The motorist admitted fault but disputed the pedestrian’s injuries and damages. The Cook County Trial Judge entered judgment on a jury verdict awarding $713,602 to the pedestrian. The motorist appealed.

On appeal, the Court addressed a number of issues raised. First, the Court ruled that the pedestrian’s comments regarding the motorist’s expert in opening statement and closing argument were borne out by evidence and did not deny a motorist a fair trial. Second, the pedestrian’s comments during rebuttal closing argument were not an improper personal attack on the motorist’s counsel. Third, the Trial Court did not abuse its discretion in refusing to permit the motorist to call the witness, a co-worker of the pedestrian, who was present at the time of the accident, after the pedestrian elected not to call the co-worker as a witness.

Fourth, a lay witness who had been the pedestrian’s friend and co-worker for 25 years had a proper foundation to testify as to her personal observations regarding the pedestrian’s physical and mental status, both before and after the accident. Fifth, the testimony of the pedestrian’s retained medical expert witness was proper rebuttal testimony and not merely cumulative testimony by the treating physician. Sixth, the Trial Court did not abuse its discretion in allowing the pedestrian to testify that she did not continue with physical therapy because of the cost. And last, but not least, the jury award was not unreasonable, shocking or the result of prejudice so as to warrant remittitur.

 

Guzman v 7513 West Madison Street, Inc. d/b/a Duffy’s Tavern, 988 N.E.2d 201 (ILL. App. 2013)

An injured driver, passenger and pedestrian filed suit under the Dram Shop Act against Duffy’s Tavern. After suit was filed, the bar’s liquor liability insurer was declared insolvent and the Insurance Guarantee Fund assumed the responsibility for the Bar’s defense. The Cook County Trial Court denied the plaintiffs’ motion to strike the Bar’s affirmative defense regarding the plaintiffs’ maximum recovery under the Guarantee Fund Act.

On appeal, the Court of Appeals held that other insurance recoveries provision of the Guarantee Fund Act required that the plaintiffs’ recoveries from the other insurance policies be applied against the Bar’s maximum liability under the Dram Shop Act, rather than the jury verdict, if the jury’s verdict was in excess of the Bar’s maximum liability pursuant to 215 I.L.C.S. 5/6-21, 5/534, 3, 5/537.2, 5/546(a).

 

Lough v BNSF Railway Company, 988 N.E. 2d 1090 (ILL. App. 2013)

The Executor of an Estate of a driver involved in the motor vehicle accident sued the employee driver and his employer for wrongful death and negligence. The Bureau County Trial Judge granted the employee driver and employer’s summary judgment as to the wrongful death. The Executor appealed.

On appeal, the Court of Appeals held that there was no evidence that the automobile accident caused or aggravated the driver’s congestive heart failure or chronic constructive pulmonary disease (COPD)/emphysema which were the causes of death listed on the death certificate for the death that occurred 22 months after the accident, as required to establish the proximate cause of a wrongful death claim under 740 I.L.C.S 180/1.

 

Dunet v Simmons, 989 N.E.2d 279 (ILL. App. 2013)

In Dunet, the administrator of the deceased pedestrian’s Estate brought a wrongful death action against the Village and the electric utility alleging negligence and willful wanton conduct, after the pedestrian was struck by a car while crossing the street. The Cook County Trial Judge granted both defendants’ summary judgment. The Administrator appealed.

On appeal, the Court of Appeals held that the pedestrian was not an intended user of the street so as to create a duty on the part of the Village under the Tort Immunity Act. The Court noted that a duty will not be imposed on a municipality pursuant to the Local Governmental Employees Tort Immunity Act unless the plaintiff is both a legally permitted user of the property and an intended user. 745 I.L.C.S. 10/3-102(a). The Court noted that the general rule in Illinois is that a municipality does not owe a duty of reasonable care to pedestrians who walk in a street outside of a crosswalk, because they are not intended users of the street.

 

Kilburg v Mohiuddin, 990 N.E.2d 292 (ILL. App. 2013)

In this case, a taxi passenger filed a personal injury lawsuit against the taxi driver, the owner of the taxi, the taxi association and others after the taxi she was traveling in left the roadway and struck a tree injuring the passenger. The Trial Judge dismissed the spoliation claim. The passenger appealed.

On appeal, the Court first held that the complaint alleged facts sufficient to support a finding of a special circumstance that gave rise to a duty on the part of a taxi driver and taxi owner to preserve the event data recorder for the taxi, and thus that the passenger sufficiently alleged a claim for spoliation of evidence and a negligence action. Second, the Court of Appeals held that the complaint alleging spoliation of evidence by the taxi driver and taxi owner in connection with the negligence action was sufficient to set forth an exception to the general rule that a defendant has no duty to preserve evidence.

Finally, the Court of Appeals held that the mere assertion that the company that leased the lot that stored taxi cabs, the company that paid rent for the lot, or the taxi association, were in possession and control of the taxi was insufficient to establish a special circumstance that gave rise to a duty on the part of those companies and association to preserve the taxi for use in a negligence action. Thus, the evidence was insufficient to establish a claim for spoliation of evidence against those companies.

 

Noble v Earle M. Jorgensen Company, et al, 990 N.E.2d 377 (ILL. App. 2013)

In Noble, the first driver brought a negligence action against the second driver and his employer and sought damages for injuries that the first driver allegedly sustained to her low back and coccyx in the car accident. After a jury trial, the St. Clair County Judge entered judgment for the first driver in the amount of $576,000 wherein the defendants appealed.

On appeal, the Court of Appeals held that insufficient expert testimony had been presented to establish a causal connection between the first driver’s injuries to her low back and gluteal region and her subsequent fracture and injuries to the coccyx, sacral iliac joint and piriformis muscle. The Court of Appeals further held that defendants were required to present expert testimony to establish a causal connection between the first driver’s injuries to her low back and the subsequent fracture and the injuries she allegedly sustained in the motor vehicle accident to her coccyx, sacral iliac joint and piriformis muscle. Finally, the first driver’s comment regarding her buttocks being a part of her low back did not open the door for the defendants to present testimony on medical records concerning the first driver’s previous complaints of low back pain.

 

Blake v Colfax Corporation, 993 N.E. 2d 930 (ILL. App. 2013)

In this case, Blake sued another driver, Ed Warren, and his company, Colfax Corporation for injuries Blake sustained in a car accident. A Trial Court Judge denied the defendants’ motion to transfer venue. They appealed.

On appeal, the Court of Appeals held that the Trial Court’s denial of the defendants’ intrastate forum non conveniens motion did not constitute an abuse of discretion. The court held that the choice of plaintiff/driver husband to file suit in the County in which the defendant and employer maintained its place of business was entitled to some deference, even if the plaintiffs resided in another County and the accident occurred there, no defendant or eyewitness to the collision resided in the County of the plaintiff’s residence, the plaintiff/driver’s work address was the same County as the employer’s place of business, ease of access to sources of evidence did not favor transfer, and the County in which the action was brought had a legitimate interest in deciding the controversy involving its resident, Defendant Corporation which presumably paid taxes in the County.

 

Trigsted v Chicago Transit Authority, 994 N.E.2d 682 (ILL. App. 2013)

A bus passenger, individually and on behalf of her daughter, sued the CTA to recover for injuries they suffered when they were attacked by third parties while riding a CTA bus. The Cook County Trial Judge granted summary judgment in favor of the CTA. The plaintiffs appealed.

On appeal, the Court of Appeals held that the CTA’s conduct in overcrowding its buses was not a proximate cause of the plaintiffs’ claimed injuries. The Court found that the CTA’s conduct in permitting a bus to become overcrowded was not a cause in fact of the deliberate physical attack of passengers by third parties as required to support a negligent action against the CTA. The Court found that the passengers’ injuries were not connected with any altercation related to finding a seat or inadvertent pushes or contact as might be expected from overcrowding. Instead, the injuries appear to have been purely as a result of racial and ethnic hostility.