Articles Posted in Civil Procedure

This was a pretrial hearing on the motion to add a punitive damage count to a complaint against the Catholic Bishop of Chicago for alleged negligent conduct in hiring, supervising and retaining a priest who allegedly abused John Doe when he was a third-grade student at St. Agatha Academy. The archdiocese argued that Doe shouldn’t have to prove that representatives actually knew about the priest’s wrongdoing and wicked proclivities.

The trial judge ruled that Doe’s evidence about the “utter indifference” of archdiocesan employees’ safety for the young students could justify an exemplary or a claim of punitive damages. The judge certified the question of law for immediate appeal to the Illinois Appellate Court. The appeals panel concluded that the judge “used the appropriate standard” in concluding that Doe may demand punitive damages in his amended complaint.

“Simply put,” Justice Sheldon A. Harris explained, “the trial court may allow a claim for punitive damages if the evidence would reasonably support a finding that defendant acted willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.”

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The Illinois Appellate Court for the 1st District has affirmed the decision of a Circuit Court judge dismissing the lawsuit for the injuries suffered by Rudy Nourse while working as an elevator serviceman.

On March 20, 2014, Nourse was working for the Suburban Elevator Co. He and his supervisor were “performing an elevator modernization” project at the River North Apartments in Chicago.

Fred Carter was on the site in his capacity as an elevator inspector for the City of Chicago’s Bureau of Elevators. As the inspection was starting, Carter ordered Nourse to climb down into the elevator pit.  Nourse did so and while he was in the pit, Nourse’s supervisor, unaware of Nourse’s location, powered up the elevator, which descended into the shaft and struck Nourse, injuring him.

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Ordinarily, a person who is injured must seek a remedy from the person who caused the injury. However, the doctrine of respondeat superior provides an exception to that rule, in that a principal may be held liable for the actions of an agent who causes an injury.

Edward Grinyov was installing dispatch equipment in taxicabs at the local garage of dispatch company 303 Taxi. Grinyov was injured when another taxicab driver backed his vehicle into him pinning him against the fence.

The driver of the other cab was bringing the car to the 303 Taxi garage following the directions of a 303 Taxi manager. Because of Grinyov’s injuries, he brought a lawsuit against the driver of that cab, the owner of that particular taxicab and 303 Taxi.

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Carus Corp. (Carus) was an international company that developed and sold chemical products for municipal and industrial applications. In a federal lawsuit, Carus was named as a defendant. Carus’s products included a chemical called Totalox, which essentially was designed as a deodorizer for sewer systems.

The town of Lexington (town) used Totalox in its sewer treatment plants. In 2010, John Machin, a town employee, was exposed to Totalox when a storage container valve broke during the delivery of Totalox to one of the town’s wastewater stations. He suffered reactive airways syndrome, which was also known as chemically induced asthma or obstructive lung disease.

As a result of his injuries, he filed a workers’ compensation claim and was allowed workers’ compensation benefits. The South Carolina Supreme Court accepted four certified questions from the United States District Court for the District of South Carolina: (1) Under South Carolina law, when a plaintiff seeks recovery from a person, other than his employer, for an injury sustained on the job, may the jury hear an explanation of why the employer is not part of the instant action?; (2) when a plaintiff seeks recovery from a person, other than his employer, for an injury sustained on the job, may a defendant argue the empty chair defense and suggest that plaintiff’s employer is the wrongdoer?; (3) In connection with Question 2, if a defendant retains the right to argue the “empty chair” defense against a plaintiff’s employer, may a court instruct the jury that an employer’s legal responsibility has been determined by another forum, specifically, the state’s workers’ compensation commission?; and (4) when a plaintiff seeks recovery from a person, other than his employer, for an injury sustained on the job, may the court allow the jury to apportion fault against the nonparty employer by placing the name of the employer on the verdict form?

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The plaintiff Stephen Limoges claimed that he suffered significant pulmonary injuries as a result of inhaling the toxic fumes following a chemical spill. Plaintiffs brought suit against three different entities, including Arden Engineering Constructors LLC, alleging that they were individually and collectively responsible for Limoges’s injuries. Mr. Limoges was an employee of the State of Rhode Island as an Assistant Administrator to Facilities and Operations. His duties included overseeing the heating, ventilation, and air conditioning systems (HVAC) in the state’s courthouses.  The Limoges lawsuit claimed that on August 8, 2008, a pipe that carried bromine in the HVAC system at a judicial complex in Providence ruptured causing a chemical spill.  When this pipe burst, Mr. Limoges rushed to the scene to stop the leak.  Limoges asserted that while he was trying to stop the leak, he inhaled bromine which caused his serious pulmonary injuries.  Limoges’ wife was a party plaintiff in this case claiming loss of consortium.

Arden Engineering filed a motion for summary judgment, which the trial level judge granted. Limoges appealed, arguing that that the court made an improper credibility assessment about the affidavit of the Limoges expert and because the judge overlooked material issues of fact that were in dispute. Arden had argued that the Limoges expert’s affidavit was false and that the expert did not provide a basis for his opinions.  Arden maintained that this expert’s affidavit was completely failed to identify one fact which would make Arden responsible, let alone owe a duty to Limoges.

Limoges argued that the expert’s affidavit was sufficient to establish duty and breach, particularly at the summary-judgment phase of the proceedings.

The state Supreme Court vacated the judgment of the superior court, holding that the plaintiff’s expert’s affidavit, combined with the documents that were available to the hearing justice, raised a material  issue of fact as to whether Arden Engineering was responsible for Limoges’s injury.  The attorney representing the Limoges family was Amato A. DeLuca of Providence, RI.

 

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The Illinois Supreme Court has handed down a decision that affirmed a December 2015 ruling by Cook County Associate Judge William E. Gomolinski. The original lawsuit was a medical-malpractice case filed no more than a month after the law, which permitted a unilateral decision by a party to empanel 6-person juries.

The law was approved in the days just after Illinois Republican Gov. Bruce Rauner defeated Democratic Gov. Patrick J. Quinn in 2014 and was seen by many as a gift from Democrats to their allies in the plaintiffs’ bar. The argument for the law was that jurors were not paid appropriately for missing work or taking time away from family and school. The law also had increased the rate the jurors were paid across the state from a high of $17.20 per day in Cook County to $25 on the first day of service and $50 each day thereafter.

It was also argued that federal courts and other states use 6-member juries without issue. But Section 1, Article 13 of the State Constitution says, “[T]he right to trial by jury as heretofore enjoyed shall remain inviolate.”

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In the opinion written by the Illinois Appellate Court for the 4th District, the appellate court upheld the right of an injured plaintiff to recover the full amount of medical expenses if that amount had been written off by the medical provider.

In the underlying case, a Coles County jury entered a verdict in favor of the plaintiff Harold Miller for $133,347 for medical expenses in his July 2015 medical-malpractice trial. The 5th Judicial Circuit Court judge reduced the verdict by $91,724 when the defendant hospital and doctor argued that such a number represented an amount of money that neither Miller nor his health-care provider had a right to recover since it was written off in his medical bills.

The defendants brought their motion to reduce the medical expenses award under Section 2-1205 of the Illinois Code of Civil Procedure. The statute provides that recovery amounts can be reduced by up to 100% of the benefits provided for medical, hospital, nursing or care-taking charges that have either already been paid or become payable to the injured party.

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The 7th Circuit Court of Appeals in Chicago has affirmed a district court decision where sanctions were allowed in the form of attorney fees. The court of appeals stated that under Federal Rule 37, sanctions may include an order to pay the amount of reasonable expenses incurred in preparing the motion for sanctions, including attorney fees.

In March 2012, Angel Houston sued Hyatt Corp. and the Hyatt Regency Inn for breach of contract, intentional misconduct and negligence. The lawsuit arose out of injuries Houston suffered after falling at the downtown Indianapolis Hyatt Hotel during a hotel-sponsored New Year’s Eve party on Dec. 31, 2010.

Houston claimed that Hyatt chose not to provide a safe and secure environment for the party and that this failure was the proximate cause of her injuries. Damages were sought in excess of $1 million.

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The Illinois Supreme Court case of Kotecki v. Cyclops Welding, 146 Ill.2d 155 (1991) is the decision by the court that stands for the law that an employer may avoid contribution liability by waiving its lien under Section 5(b) of the Workers’ Compensation Act. This is in reference to the so-called “Kotecki cap” and affirmative defense that an employer has pleaded and then proved at trial. The question is: Can the employer invoke Kotecki with a post-judgment motion supported by affidavits specifying the amount of benefits it paid to the injured employee?

This is the issue that was taken up by the Illinois Appellate Court for the 3rd District in this Illinois case. Nacin Burhmester was injured while he was working for L.J. Keefe Co. Burhmester prevailed in a trial and received a verdict of $534,608 against Steve Spiess Construction Co.

Spiess in turn sued Keefe for contribution in a third-party action. The answer to the contribution claim by Keefe included an affirmative defense based on Kotecki.  Although Keefe paid benefits to Burhmester totaling $95,487 under the workers’ compensation policy of insurance, it did not present any evidence on this defense during the contribution trial.

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In 1983, Alma and Israel Zivin executed a mutual last will and testament. The will stated that upon either the death of Alma or Israel, all property would go to the other. The will further stated that in the event that they both died or upon the death of their survivor, 50% of their estate should go to the specified family and friends and the remainder would pass to the Hebrew University of Jerusalem in New York City.

The Zivins had no children. Israel passed away in 1984 and his estate was bequeathed in accordance with the terms of the will to Alma.

In 2004, Alma signed her own will, which expressly revoked any and all prior wills. Her new will made specific bequests of personal items and gave the remainder of her estate to a “pour over trust” with no provision made to Hebrew University.

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