Articles Posted in Illinois Civil Procedure

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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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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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A lawsuit was filed against the Chicago Zoological Society, which operates Brookfield Zoo, on land owned by the Cook County Forest Preserve District. The case was filed by Kristine O’Toole for injuries that she suffered when she fell because of an alleged defect in the pavement.

The defendant, the Chicago Zoological Society, which is a not-for-profit corporation, moved to dismiss the lawsuit under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, which includes a shortened statute of limitations — that being one-year rather than two years for the usual tort claim. The shortened one-year deadline applies to “any not-for-profit corporation organized for the purpose of conducting public business.”

The Cook County judge granted the motion dismissing O’Toole’s case because she had not filed the lawsuit within the one-year statute of limitations from the date of her injury that the judge decided applied. She took an appeal claiming that the defendant did not qualify as a “local public entity” that would impose the one-year statute.

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The Illinois Business Corporation Act, Section 7.75, gives shareholders the right to inspect a company’s records, “but only for a proper purpose.” The Illinois Business Corporation Act was amended in 1984, requiring shareholders to make their demand in writing, “stating with particularity the records sought to be examined and the purpose therefore.” 805 ILCS 5/7.75.

The plaintiffs in this case, Sunlitz Holding Co. (and three of the company’s shareholders) appealed from an order that dismissed its complaint for mandamus against Trading Block Holdings Inc., which claimed that it had satisfied the “proper purpose” and “particularity” requirements.

The lawsuit complaint contained exhibits attaching two letters the plaintiff sent to Trading Block. In an April 1, 2013 letter, plaintiff Sunliz said it wanted to inspect the corporation’s records “to determine the financial condition of the company, the character of the management of the company and whether the company’s financial practices were appropriate.” In another letter dated May 17, 2013, the plaintiff said he was worried that the corporation was being used “as a piggy bank for the insiders and the board of directors.”

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The general rule in Illinois, under Section 2-610(b) of the Illinois Civil Procedure, “every allegation, except allegations of damages, not explicitly denied is admitted.” In this case, the defendant chose not to file an answer before the start of the trial. The question for the appellate court was: “Are the allegations in the complaint automatically considered as having been admitted based on Section 2-610(b)?” The answer to the question by the Illinois Appellate Court for the 5th District was, “No.” The appellate court concluded that “Section 2-610 of the Code is inapplicable in a situation where there has been no answer filed.”

In this case, Crawford County Oil and LaCross Inc. sued Floyd Weger, Michael Worthy, Paula Worthy and Charlene Cornwell in a downstate Illinois municipality 243 miles south of Chicago. First, the defendants moved to dismiss. When that motion was denied, the defendants requested summary judgment.

The Illinois Supreme Court Rule 181(a) says that when a defendant responds to a complaint by filing a motion and the request is denied; “an answer or another appropriate motion shall be filed within the time the court directs in the order disposing of the motion.”

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On Aug. 2, 2005, Brandy Pirrello was a resident at Maryville Academy, a facility that houses and treats minors with behavioral problems. At the time, Brandy was 16 years old. She had been admitted to the facility in early 2005 and had been diagnosed with bipolar disorder and was at risk of suicide or self-harm. On Aug. 2, 2005, Brandy leaped from her second-story window, landed on a cement patio and seriously injured herself.

On July 17, 2007, Brandy turned 18 years old. The day before, she filed a lawsuit against Maryville. Brandy claimed that Maryville had been negligent in choosing not to take precautions against the risk that she would try to hurt herself. Brandy was seeking compensation for the expenses that she incurred due to her hospitalization and related medical expenses.

However, the injury and the bulk of the expenses incurred between the ages of 16 and 18 and as such, fell under Illinois Family Expense Act. By the terms of the act, the responsibility for paying for Brandy’s medical care was her parents’ responsibility rather than Brandy herself. Therefore, her parents had the right to sue. Brandy’s parents did not join her as a plaintiff in the lawsuit. Brandy’s parents divorced when she was 8, and Brandy was on her father’s health insurance at the time of her injuries. Brandy’s father indicated at a deposition that he did not intend to be involved in her lawsuit.

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In a car crash case in which the plaintiff claimed injury, the jury found for the defendant, and the plaintiff appealed. The appellate court found that the plaintiff had not preserved the appealed issues and affirmed the decision of the jury and the trial court in favor of the defendant.

On appeal from a verdict for the defendant, the plaintiff, Warren G. Hamilton, asked the Illinois Appellate Court to grant his request for judgment as a matter of law on the liability and to return the case the trial judge on the issue of damages.

Hamilton thought he preserved the issue for appeal by (1) asking for a directed verdict or in the jury instructions conference; and (2) filing an opposed trial motion under §2-1202(a) of the Illinois Code of Civil Procedure that argued, among other things, the “defendant was negligent as a matter of law” and “the court erred in failing to direct a verdict for the plaintiff at the close of evidence.” In the same motion, Hamilton argued that the verdict was against the manifest weight of the evidence, and closed by asking for a new trial, not judgment notwithstanding the verdict on liability.

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Ann E. Guiffrida’s personal injury case against the owner of a bar called The Palace in downstate Hamburg, Ill., was dismissed because the plaintiff had mixed up the names of two corporations. One was The Palace Inc. and the other was Boothy’s Palace Tavern Inc.

Guiffrida filed a lawsuit in the federal district of the Central District of Illinois naming the defendant The Palace Inc. When venue was challenged, Hamburg, Ill., located on the Mississippi River, 80 miles north of St. Louis, is in the Southern District of Illinois, not the Central District. Guiffrida voluntarily dismissed the federal case and then filed the state claim in Madison County, Ill., although Hamburg is actually in Calhoun County, Ill.

When Guiffrida found out that she should have sued and served Boothy’s Palace Tavern Inc., she argued that this was merely a case of misidentifying the correct name or a misnomer that is covered by Section 2-401 of the Illinois Code of Civil Procedure. Rather than a mistake of the identify by the defendant, which would have required Guiffrida to satisfy Section 2-616(d) as to relating back, the judge in Madison County concluded that the mix-up fell within the category of misnomer.

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Lawyers who handle jury trials prepare their cases typically by reviewing all of the depositions, all of the issues of damages, the pleadings, the written discovery, the law that applies and the jury instructions that may be used. That would be just the start. Some lawyers, like me, abstract all of the depositions, which mean a summary by page is made for each deposition transcript. That allows the lawyer to both read again the transcripts of depositions that may have been taken some years ago and now refresh the memory of the lawyer who may call the witness either as a witness on direct examination or a witness that may be called by the opposition and cross-examined during the trial.

Lawyers spend a lot of time doing all of this work in reviewing the case, meeting with the clients, re-reading the file, the medical records, the photographs and other evidence, the preparation of demonstrative evidence, the preparation of visuals such as large blow-ups or use of computers to generate images for the jury, all the while perhaps spending little time on preparing the case for the jurors in anticipation of what they will discuss in the jury room.

In my practice before trial I utilize the benefits of a focus group, which would be a method to test-drive the elements of the case before an uninterested, unbiased group just like the jury, to evaluate strengths and weaknesses of the case. The discussions that these practice jurors have are many times the same kinds of discussions and deliberations that take place at the end of the trial in the jury room.

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On Aug. 7, 2008, Frosini Xeniotis was evaluated by an oral surgeon, Dr. Cynthia Satko. One of Xeniotis’s baby teeth had never fallen out, and her adult tooth had grown in behind it. The result was just simply “not aesthetically pleasing” to Xeniotis.

Xeniotis was referred to Dr. Satko by her primary dentist. To improve the condition, an oral surgeon would have to remove both the baby tooth and the adult tooth and fill the remaining space. Dr. Satko recommended an implant during this initial consultation.

The procedure described by Dr. Satko involved surgically inserting a titanium screw into the bone and then attaching an artificial tooth to the screw. Under the best of circumstances, this procedure would have been followed by a dental crown. Xeniotis agreed with the plan, and the next day Dr. Satko removed the two teeth and inserted the implant. Over the following year and half, the artificial tooth failed to fully afix into Xeniotis’s jaw.

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