Articles Posted in Civil Procedure

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In September 2010, Thomas Berz was riding his bike in an Evanston alley when he hit a pothole. Berz fell off his bike and suffered a traumatic brain injury. He sued the City of Evanston in July 2011 claiming that it was negligent for choosing not to maintain the surface of the alley. A month later, Evanston filed a motion to dismiss on the basis that the Tort Immunity Act (745 ILCS 10/1-101 et seq.) protects the city from plaintiffs who are injured from using property differently than its intended use. 

The circuit court judge dismissed the case in November 2011, but granted Berz leave to amend his complaint. Berz amended the complaint providing new photographs of the alley’s condition and included greater detail on how this incident took place. Berz argued that under the Evanston Municipal Code and city-published bicycle maps, he was an intended user of the alley.

However, the trial court disagreed with Berz and dismissed his amended complaint in August 2012. But Berz filed a third amended complaint, arguing that his bike was a vehicle and therefore an intended user. Again, the city moved to dismiss arguing that a bicycle rider was not an intended user of an alley and the court agreed dismissing Berz’s complaint in November 2012.  Berz appealed to the Illinois Appellate Court, which reviewed whether a bicyclist was considered an intended user of the alley based on state law, the city’s ordinance and signage in the alley.

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During a relay race at a party for members of the Calvary Kids Club (CKC), a running backwards race resulted in an injury to one of the children, who broke both of her arms. The event was sponsored by the Calvary Chapel of Lake Villa.

The lawsuit for the injuries to Brittney Gallarneau was brought alleging that Calvary Chapel was negligent. The issue on the motion for summary judgment brought by the defendant Calvary Chapel was whether the Calvary Kid’s Club qualified as a school under Section 24-24 of the Illinois school law. The trial judge granted summary judgment in favor of Calvary Chapel, and this appeal followed.

The Illinois Appellate Court reversing the trial judge’s grant of summary judgment concluded that, “While Calvary provides religious instructions through Calvary Kid’s Club (CKC), CKC is nevertheless not the type of establishment that comes within the scope of Section 24-24; thus, Calvary is not entitled to the immunity provided by that section.”

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Illinois Gov. Pat Quinn has signed a bill into law that would require defendants in most civil cases to submit to plaintiffs an executed release within 14 days of a written settlement agreement. The new law goes into effect on Jan. 1, 2014.

Significantly, the new law will require a defendant to pay all of the settlement amounts to the plaintiff within 30 days of the date that the signed release is tendered to the defendant. If the defendant fails to timely pay the money required by the agreement, the plaintiff can return to court on a motion for added costs and interest.

The law will create a new “Part 23” of the Illinois Code of Civil Procedure to be titled “Settlement of Claims; Payment” (735 ILCS 5/2-2301).

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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.

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In a lawsuit against ExxonMobil Corp., four individuals claimed injury and death because they were exposed to benzene and other hazardous chemicals when they worked as rubber workers, tire builders and final finish laborers at a tire manufacturing facility.  The cases were brought by the families of these deceased workers for their wrongful deaths and survival claims. In the circuit court, the claims were dismissed on summary judgment being timed-barred. This case was filed in Wisconsin and the plaintiffs appealed to the Wisconsin Court of Appeals.

In the lawsuit that was filed, the four individuals also claimed that they suffered personal injuries and died as a result of their exposure to benzene and benzene-containing materials. 

It was determined by the trial judge that the statute of limitations began to run for all claims at the latest on the decedents’ dates of death and that the complaint, which was filed more than three years (statute of limitations in Wisconsin), after those dates was time-barred because the three years had passed.

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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.

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In a February 2010 lawsuit filed by the plaintiff, Sandra Relf, it was alleged that Joseph Pre Jr. was negligent when their vehicles crashed in February 2008. The Cook County Sheriff’s Office could not serve Pre with a lawsuit, so Relf filed a motion to appoint a special process server to deliver a service of summons to Pre. However, he died in April 2008. When Relf learned of Pre’s death, she filed a motion for leave to appoint a special administrator for Pre’s estate.

The trial judge approved the motion to name the special administrator of Pre’s estate. However, at the same time, Pre’s family opened a probate estate for him in August 2008, four months after the appointment of the special administrator. Because the estate already existed at the time Relf filed her lawsuit, the estate asked the judge to rule that the lawsuit was void. The estate argued that the appointment of a special administrator was improper because Pre’s family received no notice of it.

The response by plaintiff Relf was that she didn’t know that Pre had passed away when her lawsuit was filed. However, the trial judge granted the estate’s motion to dismiss and an appeal was taken.

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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.

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A Will County, Illinois, jury verdict has been reversed by the Illinois Appellate Court for the Third District. In this case, Yvonne Johnson was injured in a Casey’s General Store parking lot when she was struck by a vehicle operated by the defendant, Charles Bailey. At the Bailey deposition, photographs of the parking lot taken by Mr. Bailey were introduced. He had taken the photos using his own vehicle and that of his fiancé’s as props.

At the Johnson deposition, she testified that she had injured her neck, head, shoulders and back in a 2005 fall unrelated to this incident. From that time on, she continued to see a chiropractor who completed her treatment, but he continued to treat her after she was injured in this accident.

Prior to the beginning of the jury trial, Johnson filed a motion seeking an order precluding the photographs of the parking lot outside the Casey’s General Store. Johnson argued that Bailey had not laid a proper foundation for them in his deposition and that they should not be used at trial without laying a proper foundation.

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A recent Illinois Appellate Court decision provided additional clarification regarding the admissibility of photographic evidence. At issue was whether or not a judge had correctly allowed photographs taken at the scene of an accident to be admitted into evidence during a Cook County personal injury trial. The appellate court ruled that judge had and upheld the jury verdict in Patricia Williamson v. Luis Morales, 2012 IL App. (1st) 110324-U.

Williamson involved a 2006 car accident in which the defendant Luis Morales rear-ended the plaintiff Patricia Williamson’s vehicle. And while Morales admitted to having caused the accident, there was some debate as to the extent of Williamson’s injuries. Williamson refused treatment by paramedics at the accident scene, but then did head to the Christ Medical Center Emergency Room just one hour later. And even though her x-rays did not show any fractures, she continued to experience pain and treatment with a chiropractor for four to five months following the accident.

When Williamson brought her personal injury claim against Morales he denied that the car accident was responsible for the extent of Williamson’s injuries and her lost time from work. And when Williamson’s attorney attempted to produce photographs from the accident scene as a way to demonstrate the severity and nature of the car accident, Morales’s attorney objected on the basis that they were not relevant and could not be introduced unless in conjunction with expert testimony. The court agreed and stipulated that the photographs could not be introduced unless the defendant first opened the door to their submission.

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