Articles Posted in Civil Procedure

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The Illinois Appellate Court has affirmed a Cook County trial judge’s order regarding the effect of an attorney’s lien notice sent to a defendant’s attorneys rather than the defendant directly.

Randy Brown was the owner and operator of a Harold’s Chicken Shack in suburban Broadview, Ill., until Jan. 15, 2009. On that date, the building’s roof collapsed, and the restaurant was destroyed.

The building was leased to Brown by Tap Investment LLC. It was managed by Universal Realty Group. Tap and Universal were defendants in this case. Brown sued both companies and their principals. His lawsuit was filed on Aug. 2, 2010, and the complaint was signed by a lawyer with the law firm representing Brown. The law firm was based in Naperville, Ill.

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The Illinois appellate court has reinstated a product-liability lawsuit against a distributor in which there was a default judgment against the manufacturer of the product. In this case, the manufacturer was not subject to jurisdiction, and the plaintiff wasn’t able to satisfy the judgment. Nevertheless, the court ruled that the plaintiff may reinstate the lawsuit against the distributor.

In 2009, Jeff Chraca was unpacking a shipment of golf cart batteries. Chraca was employed by Chicago Battery Co. Chraca was lifting and carrying the batteries with the aid of a black strap that came with the shipment of batteries. The strap broke suddenly and Chraca wrenched one of his shoulders and his neck.

Chraca filed a worker’s compensation claim in 2011 and then filed a strict tort product-liability action against U.S. Battery — the company that sent the batteries and the strap to Chraca’s employer. However, U.S. Battery did not manufacture the strap; instead, it merely sent it along with the battery shipment.

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The U.S. Court of Appeals for the 7th Circuit in Chicago has affirmed a decision by a United States district court judge regarding subject-matter jurisdiction and a voluntary dismissal of a complaint.

Mieczyslaw Kuznar, a native of Poland, moved to the United States leaving his wife, Emilia, and his son, Thomas, behind. While living in the United States, Kuznar married Anna, but never divorced Emilia. Kuznar died intestate in 1995. Anna began collecting spousal benefits from his pension the year of his death.

In 1997, Thomas, by that time an adult, opened a probate estate in the Illinois state court seeking judicial administration of his father’s estate. Thomas was acting on his mother’s behalf; she continued to live in Poland.

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The Illinois Appellate Court has affirmed a defense verdict in a multi-vehicle crash on an icy Indiana highway that caused severe injuries to motorists. The big issue in the case was which state’s law should be applied at a Cook County Circuit Court jury trial.

On Dec. 26, 2007, Clifford Ruse, a truck driver for Harvey, Ill.-based Envirite of Illinois Inc. was driving eastbound on Interstate 80/94 in Hammond, Ind., when he was struck by an SUV whose driver had lost control on a patch of black ice.

Ruse swerved his truck to the left and hit the highway’s median wall. On impact, the container of mill dust in tow was detached from his truck and that container crossed into the westbound lanes of the interstate highway. The plaintiff in the case, Daniel Kovera, was one of several drivers injured when the container landed on their cars. In March 2008, Kovera and his wife filed a lawsuit in the Circuit Court of Cook County, Ill.

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Larry Fabian was hired in 2001 by Cantor Fitzgerald to be a broker at the Chicago Mercantile Exchange. In 2007, he was transferred to BGC, which was a spinoff company of Cantor Fitzgerald.

In 2008, Fabian was named as a partner of “Founding Partner No. 69.” According to Fabian, he earned 100,393 “founding partner units” which could later be converted into common stock of the company.

On March 27, 2009, Fabian quit working for BGC to work for another securities firm. Shortly after leaving BGC, Fabian initiated arbitration before the Chicago Mercantile Exchange where he received $121,758 in commissions that he was owed from Cantor Fitzgerald. This did not include any reimbursement for his “founding partner units.”

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In the early morning hours of April 19, 2010, Chantel Jobes was driving a vehicle alone and left the southbound lane of Highway 11, crossed the northbound lane and crashed into a concrete railroad trestle. Jobes was seriously injured and filed a lawsuit against the Norfolk Southern Railway Co., the Mississippi Transportation Commission and the Mississippi Department of Transportation. The trial judge denied the defendants’ motion for summary judgment. The Supreme Court of Mississippi granted the defendants’ request for an interlocutory appeal and that court entered summary judgment in their favor.

Jobes was working at TGI Fridays in Hattiesburg, Miss., when she started her shift as the manager at 4 p.m. on April 18, 2010. She finished her shift at approximately 1:30 a.m. the morning of April 19 and then went directly to a 24/7 gym nearby to work out, which was her normal routine. After about an hour at the gym, she headed to a friend’s house to celebrate his birthday. She does not remember the party, but her friends told her that she “didn’t want to finish the cocktail drink [she] had,” and she wanted to go home.

Jobes left the birthday party and drove toward her home. The crash described above occurred about 4:42 a.m. on April 19. The weather was clear and dry, and the crash injuries were life-threatening. Jobes was driving with a suspended license and was legally intoxicated and also had prescription anti-anxiety medication in her system. Jobes testified at her deposition that she had worked 3 straight weeks without a day off up until the crash. She could not remember a time when she had been more stressed.

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The Illinois Appellate Court has reversed a summary judgment order that was entered by a Cook County judge in favor of Safeway Insurance Co. In this case, Jeffrey and Stephanie Hadary were injured in a car crash when Carlos Velez was driving a car he rented from Hertz Corp. The Hadarys claimed that they had suffered injuries that amounted to damages in excess of $40,000, which was the insurance limits of Velez’s insurance carrier, American Access Casualty Co., which had limits of $20,000 per person and $40,000 per accident. The Hadarys reportedly declined to buy the “liability insurance supplement” when they rented the car from Hertz.

Under Illinois’ financial responsibility law, Hertz was bound to provide a bond, an insurance policy or certificate of self-insurance that promised to pay judgments against its customers and anyone driving a Hertz vehicle with a customer’s consent. Section 9-105 of the Illinois Vehicle Code required Hertz to provide this liability coverage with limits of (a) $50,000 for injury to one person or damage to property and (b) $100,000 for injuries to two or more persons.

After American Access paid its $40,000 policy limits to Hadarys, who paid $57 as a premium for underinsured motorist coverage from Safeway Insurance Co. with limits of $100,000 per person and $300,000 per occurrence, they alleged that Velez was an underinsured motorist.

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At the beginning of January 2015, the Law Division of the Circuit Court of Cook County, Ill., will begin its new mandatory arbitration program for certain cases. The program is targeted for cases that have value of less than $75,000. In order to file and hear a case in Law Division, the value of the matter must exceed $50,000.

The eligibility categories of cases that will be involved in the mandatory arbitration program include breach of contract, employment disputes, including discrimination, whistleblowing cases, civil or commercial fraud or conspiracy, business interference and shareholder disputes.

The program gained approval by the Illinois Supreme Court, and then the Circuit Court Judges voted to adopt the new local rule in December 2014. The presiding judge of the Law Division is Judge James T. Flannery Jr., who said that judges would begin referring cases at the start of 2015. Arbitration sessions will begin in April or May 2015.

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All evidence is required to meet the foundation requirement of admissibility, which would include relevancy, the best evidence rule and hearsay. Under the law, the courts require authentication because before a tangible object or writing can be admitted into evidence, it must be shown that it is in fact what it claims to be. Thus evidence that is not authenticated is not relevant and must be excluded from consideration by the court.

Digital evidence has the same requirements as all other evidence in terms of authentication and foundation before it could be admitted into evidence. Digital evidence is also known sometimes as electronically stored information (ESI). That phrase was made a part of the Federal Rules of Civil Procedure in 2006. The leading case on the application of the Federal Rules of Civil Procedure and adopted by Illinois came to be in the 2007 Maryland case of Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007). In that case, magistrate Judge Paul Grimm of the U.S. District Court for the District of Maryland noted that the failure to authenticate ESI “almost always is self-inflicted injury which can be avoided by thoughtful advanced preparation.”

One of the principal problems with digital evidence is that it can be manipulated, changed, fabricated by hackers and other sophisticated software users. It is also difficult to show to the court who was responsible for creating the digital evidence, whether it was on a keyboard on a computer or by cell phone or iPad. In some mobile apps, text messages seem to come from a particular person’s telephone, when in fact they did not. But evidence authentication does not require certainty. People v. Anderson, No. 311448, 2014 W.L.1383399 at 4 n. 3 (Mich. Ct. App. April 8, 2014); State v. Mays, 729 A.2d 1074, 1079 (N.J. Super. Ct. App. Div. 1999). In these cases dealing with authenticity, the parties hired experts to testify about who was the sender or recipient of certain digital evidence.

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The U.S. Court of Appeals in Chicago has affirmed a decision of the U.S. District Court for the Northern District of Illinois dismissing a lawsuit against a Wal-Mart store for injuries suffered by Kristen Zuppardi. She went to the Wal-Mart store in Champaign, Ill., with her brother and her son on June 15, 2010. When she entered the store, Ms. Zuppardi took a shopping cart from the front of the store and then walked down one of the main aisles of the store. Ms. Zuppardi was on her way to the back of the store to purchase milk. As she was walking down the aisle she slipped and fell in a puddle of water on the store’s concrete floors. She filed a complaint against Wal-Mart in state court in June 2012. The case was removed to the Federal District Court by Wal-Mart for diversity of citizenship jurisdiction.

One of the Wal-Mart store’s assistant managers, George Steward, stated that he did not witness the fall, but that he knew that because the fall occurred in close proximity to the store’s back doors, Wal-Mart personnel would have promptly dealt with the puddle even if the plaintiff had not fallen.

Wal-Mart was unable to locate the customer’s incident file of this occurrence and was accordingly incapable of producing any documents related to the investigation other than five photographs depicting the location of the fall and a report submitted to Wal-Mart’s casualty claims administrator. There was no video footage available.

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